PREAMBLE

We, the people of the Commonwealth of Kentucky, grateful to Almighty God for the civil, political and religious liberties we enjoy, and invoking the continuance of these blessings, do ordain and establish this Constitution.

NOTES TO DECISIONS

1.Purpose.

The Constitution is not a technical instrument and should not be so construed as to defeat substantial purpose of its adoption. Anderson v. Wayne County, 310 Ky. 597 , 221 S.W.2d 429, 1949 Ky. LEXIS 970 ( Ky. 1949 ).

In construing constitutional provisions, the courts will look to history of the times and the state of existing things to ascertain intention of framers of the Constitution and people adopting it, and a practical interpretation will be given to the end that the plainly manifested purpose of those who created the Constitution, or its amendments may be carried out. Keck v. Manning, 313 Ky. 433 , 231 S.W.2d 604, 1950 Ky. LEXIS 897 ( Ky. 1950 ).

2.Construction.

No part of Constitution should be construed so as to defeat its substantial purpose or the reasonable intent of the people in adopting it. Gaines v. O'Connell, 305 Ky. 397 , 204 S.W.2d 425, 1947 Ky. LEXIS 820 ( Ky. 1947 ).

Basic rule is to interpret constitutional provision according to what was said and not what might have been said, and according to what was included and not what might have been included. Pardue v. Miller, 306 Ky. 110 , 206 S.W.2d 75, 1947 Ky. LEXIS 953 ( Ky. 1947 ).

Courts ought not to attribute as intention when there was none, as, for example, concerning aeroplanes, automobiles, radios, and many other familiar things of today. Pardue v. Miller, 306 Ky. 110 , 206 S.W.2d 75, 1947 Ky. LEXIS 953 ( Ky. 1947 ).

When words used express a meaning clearly, distinctly, and completely, there is no occasion for recourse to implication or conjecture by which words are interpolated. Pardue v. Miller, 306 Ky. 110 , 206 S.W.2d 75, 1947 Ky. LEXIS 953 ( Ky. 1947 ).

While intentions expressed or fairly to be inferred are to be respected and preserved, court ought not to press too rigid an interpretation or application of a provision in which the intention is unclear or may only be surmised where it threatens public welfare under changed conditions unforeseen. Pardue v. Miller, 306 Ky. 110 , 206 S.W.2d 75, 1947 Ky. LEXIS 953 ( Ky. 1947 ).

All provisions bearing on particular subject are to be brought into view and so interpreted as to effectuate purposes of all provisions. Runyon v. Smith, 308 Ky. 73 , 212 S.W.2d 521, 1948 Ky. LEXIS 843 ( Ky. 1948 ).

No one provision of Constitution is to be separated from all others and considered alone. Runyon v. Smith, 308 Ky. 73 , 212 S.W.2d 521, 1948 Ky. LEXIS 843 ( Ky. 1948 ).

In the enactment of so enduring, dignified, and formal a document as that of a Constitution, the basic law of self-governing people, it is not to be assumed that any words written into the instrument were there written into the instrument were there written lightly, or without some definite and precise purpose. Harrod v. Meigs, 340 S.W.2d 601, 1960 Ky. LEXIS 58 ( Ky. 1960 ).

When the intent and meaning of the Constitution seems to be clear from the document itself, it is unnecessary to search extraneous authority for the intent. Harrod v. Meigs, 340 S.W.2d 601, 1960 Ky. LEXIS 58 ( Ky. 1960 ).

Where it is possible, the Constitution should be construed liberally, and doubtful questions ought to be resolved in favor of the freedom of the living generation to govern its own affairs in light of modern circumstances. Board of Education v. De Weese, 343 S.W.2d 598, 1960 Ky. LEXIS 116 ( Ky. 1960 ).

3.Application.

The construction is concerned with substance and not with form and its framers did not intend to forbid a common sense application of its provisions. Keck v. Manning, 313 Ky. 433 , 231 S.W.2d 604, 1950 Ky. LEXIS 897 ( Ky. 1950 ).

4.Supreme Law.

The Kentucky Constitution is, in matters of state law, the supreme law of this Commonwealth to which all acts of the legislature, the judiciary and any government agent are subordinate. Kuprion v. Fitzgerald, 888 S.W.2d 679, 1994 Ky. LEXIS 135 ( Ky. 1994 ).

5.Amendments.

When an amendment is made to a provision in the Constitution to which a certain construction has been given, it will be presumed that its unchanged portions have the same meaning formerly given it by legislative or judicial construction. Hodgkin v. Kentucky Chamber of Commerce, 246 S.W.2d 1014, 1952 Ky. LEXIS 657 ( Ky. 1952 ).

Neither legislature, nor people, nor both, can short-circuit Constitution and when question is raised in proper manner and at proper time validity of proposed change is judicial question. Stovall v. Gartrell, 332 S.W.2d 256, 1960 Ky. LEXIS 141 ( Ky. 1960 ).

6.Constitutional Limitations.

Liberal construction is to be given to constitutional limitations, with reasonable doubts being resolved in favor of validity. Dalton v. State Property & Bldgs. Com., 304 S.W.2d 342, 1957 Ky. LEXIS 276 ( Ky. 1957 ).

7.Constitutional Presumptions.

Wherever language admits a doubt, it is presumed that it was intended to be in accordance with generally recognized rules and principles of public policy. Gaines v. O'Connell, 305 Ky. 397 , 204 S.W.2d 425, 1947 Ky. LEXIS 820 ( Ky. 1947 ).

8.Constitutional Rights.

A denial of a constitutional right will not render a judgment void if court had jurisdiction of person and offense. Moss v. Jones, 342 S.W.2d 522, 1961 Ky. LEXIS 385 ( Ky. 1961 ).

Rights of states may be waived by action thereto of their officials. Jones v. Rayborn, 346 S.W.2d 743, 1961 Ky. LEXIS 329 ( Ky. 1961 ), limited, Baker v. Commonwealth, 378 S.W.2d 616, 1964 Ky. LEXIS 191 ( Ky. 1964 ), overruled, Commonwealth v. Hale, 96 S.W.3d 24, 2003 Ky. LEXIS 15 ( Ky. 2003 ).

Denial of constitutional rights does not invalidate judgment of conviction where court which tried case had jurisdiction. Decker v. Russell, 357 S.W.2d 886, 1962 Ky. LEXIS 161 ( Ky. 1962 ).

9.Constitutionally Conferred Powers.

Where power is conferred by Constitution it must be exercised as directed by law. Gaines v. O'Connell, 305 Ky. 397 , 204 S.W.2d 425, 1947 Ky. LEXIS 820 ( Ky. 1947 ).

10.Implied Provisions.

What is implied is as much a part of the instrument as what is expressed. Gaines v. O'Connell, 305 Ky. 397 , 204 S.W.2d 425, 1947 Ky. LEXIS 820 ( Ky. 1947 ).

11.Legislative Acts.

All doubt in respect to constitutionality of legislative enactments shall be resolved in favor of constitutionality. Barker v. Lannert, 310 Ky. 843 , 222 S.W.2d 659, 1949 Ky. LEXIS 1022 ( Ky. 1949 ).

The general rule, where the constitutionality of legislation is to be ascertained by the courts, is that any reasonable doubt must be resolved in favor of the legislative action, and the act sustained. Harrod v. Meigs, 340 S.W.2d 601, 1960 Ky. LEXIS 58 ( Ky. 1960 ).

Where it is not clear that the Constitution had been invaded, the courts will rarely, if ever, interfere to arrest the operation of legislative enactments. Harrod v. Meigs, 340 S.W.2d 601, 1960 Ky. LEXIS 58 ( Ky. 1960 ).

12.Mandatory Provisions.

Constitutional provisions of Constitution are not mandatory unless by express language or necessary implication a different intention is manifest. Gaines v. O'Connell, 305 Ky. 397 , 204 S.W.2d 425, 1947 Ky. LEXIS 820 ( Ky. 1947 ).

13.Municipalities.

Generally in the absence of a constitutional provision safeguarding it to them, municipalities have no right to self-government beyond the legislative control of the Board of Trustees v. Paducah, 333 S.W.2d 515, 1960 Ky. LEXIS 196 ( Ky. 1960 ).

14.Public Policy.

It is only where the Constitution and statutes are silent on a subject that courts have an independent right to declare the public policy. Kentucky State Fair Board v. Fowler, 310 Ky. 607 , 221 S.W.2d 435, 1949 Ky. LEXIS 973 ( Ky. 1949 ).

The public policy of a state is to be found first in the Constitution, second in the acts of the legislature, and third in its judicial decisions. Kentucky State Fair Board v. Fowler, 310 Ky. 607 , 221 S.W.2d 435, 1949 Ky. LEXIS 973 ( Ky. 1949 ).

Where the Constitution is silent, the public policy of the state is to be determined by the legislature on subjects on which it has seen fit to speak. Kentucky State Fair Board v. Fowler, 310 Ky. 607 , 221 S.W.2d 435, 1949 Ky. LEXIS 973 ( Ky. 1949 ).

15.Relation to Old Constitution.

The 1891 Constitution was, in every sense of the word, a new Constitution; while many of the threads of the old Constitution were retained in the new, yet it was essentially a new instrument. Stone v. Pryor, 103 Ky. 645 , 45 S.W. 1053, 20 Ky. L. Rptr. 312 , 1898 Ky. LEXIS 112 ( Ky. 1898 ).

16.Restrictions in Making.

The only restriction upon the people in making the 1891 Constitution was that it should be republican in form and not in conflict with the Constitution of the United States. Stone v. Pryor, 103 Ky. 645 , 45 S.W. 1053, 20 Ky. L. Rptr. 312 , 1898 Ky. LEXIS 112 ( Ky. 1898 ).

Cited:

Hopkins County v. St. Bernard Coal Co., 114 Ky. 153 , 24 Ky. L. Rptr. 942 , 70 S.W. 289, 1902 Ky. LEXIS 142 ( Ky. 1902 ).

BILL OF RIGHTS

That the great and essential principles of liberty and free government may be recognized and established, we declare that:

§ 1. Rights of life, liberty, worship, pursuit of safety and happiness, free speech, acquiring and protecting property, peaceable assembly, redress of grievances, bearing arms.

All men are, by nature, free and equal, and have certain inherent and inalienable rights, among which may be reckoned:

First: The right of enjoying and defending their lives and liberties.

Second: The right of worshipping Almighty God according to the dictates of their consciences.

Third: The right of seeking and pursuing their safety and happiness.

Fourth: The right of freely communicating their thoughts and opinions.

Fifth: The right of acquiring and protecting property.

Sixth: The right of assembling together in a peaceable manner for their common good, and of applying to those invested with the power of government for redress of grievances or other proper purposes, by petition, address or remonstrance.

Seventh: The right to bear arms in defense of themselves and of the State, subject to the power of the General Assembly to enact laws to prevent persons from carrying concealed weapons.

NOTES TO DECISIONS

Analysis

1.In General.

Law-making body may not transgress inhibitions contained in bill of rights and courts have power to declare laws in violation thereof to be illegal and void. Louisville of Kuhn, 284 Ky. 684 , 145 S.W.2d 851, 1940 Ky. LEXIS 563 ( Ky. 1940 ).

Right of acquiring, possessing and protecting property and of pursuing one’s safety and happiness is guaranteed by this section. Louisville of Kuhn, 284 Ky. 684 , 145 S.W.2d 851, 1940 Ky. LEXIS 563 ( Ky. 1940 ).

Kentucky did not recognize a common law cause of action for retaliatory failure to hire; the public-policy-based exceptions to the at-will employment doctrine were narrow, no support for such a claim was provided by the First Amendment to the United States Constitution, Ky. Const., § 1, or Ky. Const., § 14, and a teacher’s proposed cause of action for an alleged retaliatory failure to hire did not meet the criteria for a judicial exception to the employment-at-will doctrine. Baker v. Campbell County Bd. of Educ., 180 S.W.3d 479, 2005 Ky. App. LEXIS 231 (Ky. Ct. App. 2005).

2.Applicability
3.—Civil Defendants.

In a termination of parental rights’ appeal, a counsel for a mother and a counsel for a father requested an appellate court to review the record for prejudicial error pursuant to Anders, in which the U.S. Supreme Court referred only to criminal cases to which the Sixth Amendment right to counsel applied and did not extend its decision to civil cases. Because the applicability of Anders to civil cases had not been properly brought to the attention of the appellate court and because the briefs filed were not accompanied by motions to withdraw, the appellate court declined to consider them as Anders briefs or to address whether Anders might be invoked in a termination of parental rights case. C.R.G. v. Cabinet for Health & Fam. Servs., 297 S.W.3d 914, 2009 Ky. App. LEXIS 215 (Ky. Ct. App. 2009).

4.Libel.

Newspaper articles constituting libel were not privileged under subsection (6) of this section. Coel v. Commonwealth, 222 Ky. 350 , 300 S.W. 907, 1927 Ky. LEXIS 937 ( Ky. 1927 ).

Common-law crime of criminal libel analyzed and held not so vague, indefinite or uncertain as to violate the due process or free speech provisions of the Constitution. Ashton v. Kentucky, 384 U.S. 195, 86 S. Ct. 1407, 16 L. Ed. 2d 469, 1966 U.S. LEXIS 1644 (U.S. 1966).

5.Vaccinations.

Compulsory vaccination of school children for smallpox does not violate constitutional guarantees. Mosier v. Barren County Board of Health, 308 Ky. 829 , 215 S.W.2d 967, 1948 Ky. LEXIS 1050 ( Ky. 1948 ).

Law requiring that parents, guardians, trustees and committees have children under their care vaccinated did not violate the constitutional guarantees of objecting parents as against their contention that their religious and conscientious beliefs prevented such a practice. Mosier v. Barren County Board of Health, 308 Ky. 829 , 215 S.W.2d 967, 1948 Ky. LEXIS 1050 ( Ky. 1948 ).

6.Land Use Control.

So long as ordinances for the protection of property are reasonable, a citizen may not complain even though his unlimited and unrestricted use and enjoyment of his own property is to some extent abridged or denied by reason thereof, since the use and enjoyment of property guaranteed by the state and federal Constitutions mean such use and enjoyment as will not unnecessarily endanger or destroy the property of others. O'Bryan v. Highland Apartment Co., 128 Ky. 282 , 108 S.W. 257, 33 Ky. L. Rptr. 349 , 1908 Ky. LEXIS 54 ( Ky. 1908 ).

Mere ownership of property which could be utilized for the conduct of a lawful business does not constitute a right to so utilize it which cannot be terminated by a zoning ordinance. Darlington v. Board of Councilmen, 282 Ky. 778 , 140 S.W.2d 392, 1940 Ky. LEXIS 258 ( Ky. 1940 ).

Summary judgment for a city on its claim for relief against property owners relating to an access point to the owners’ property was error because the notice to the owners that the zoning administrator was revoking the temporary access did not set out the reasons for the decision or inform the owners of their right to appeal to the board of adjustment, did not comport with the minimum requirements of due process, did not give any basis for meaningful appellate review by the board, and left the owners to guess the appropriate course of action; since the notice was so defective, the owners’ right to administrative review was not extinguished. Godman v. City of Fort Wright, 234 S.W.3d 362, 2007 Ky. App. LEXIS 317 (Ky. Ct. App. 2007).

Where property owners operated a bed and breakfast, tearoom, and catering service as an accessory use and the board of adjustment imposed restrictions pursuant to an amended ordinance, since the board did not retain the authority to reasonably restrict the accessory uses of the property that existed prior to the adoption of the amended ordinance, the restrictions on the uses of the property as a tearoom and the catering of special events were illegally imposed. Greater Harrodsburg/Mercer County Planning & Zoning Comm'n v. Romero, 250 S.W.3d 355, 2008 Ky. App. LEXIS 92 (Ky. Ct. App. 2008).

7.Traffic Regulations.

Evidence that sound trucks were intended to attract attention of pedestrians and motorists, and that attention was attracted with the result that the safety of motorists and pedestrians was endangered, and a hazard created, justified ordinance provision prohibiting operation in congested traffic area. Brachey v. Maupin, 277 Ky. 467 , 126 S.W.2d 881, 1939 Ky. LEXIS 683 ( Ky. 1939 ).

Municipal ordinance prohibiting operation of sound trucks within a designated area, consisting of the congested traffic area, at any time, and within any place in the city between 6 p.m. and 9 a.m., was constitutional. Brachey v. Maupin, 277 Ky. 467 , 126 S.W.2d 881, 1939 Ky. LEXIS 683 ( Ky. 1939 ).

8.Criminal Defendants.

The right to be heard by himself and counsel is an inherent and inalienable right that no defendant should be denied. Chenault v. Commonwealth, 282 Ky. 453 , 138 S.W.2d 969, 1940 Ky. LEXIS 189 ( Ky. 1940 ).

A criminal, however shocking his crime, is not to answer for it with forfeiture of life or liberty till tried and convicted in conformity with law. Powell v. Commonwealth, 346 S.W.2d 731, 1961 Ky. LEXIS 327 ( Ky. 1961 ).

Defendant did not preserve his insufficiency-of-the-evidence allegation for appellate review as he never raised any arguments with respect to the firearm enhancement charge in either of his motions for a directed verdict of acquittal; however, the appellate court reviewed the claim since a conviction based on insufficient evidence would deprive defendant of substantial due process rights. Lunsford v. Commonwealth, 139 S.W.3d 926, 2004 Ky. App. LEXIS 204 (Ky. Ct. App. 2004).

Trial court did not clearly err in finding that defendant had made a knowing, intelligent, and voluntary waiver of the right to counsel, as the proceedings before the trial court met all the requirements of the Sixth Amendment and Ky. Const. § 1. Defendant made an unequivocal request to dismiss defendant’s trial counsel and proceed pro se and the trial court extensively questioned defendant about defendant’s desire for self-representation. Goods v. Commonwealth, 239 S.W.3d 580, 2007 Ky. App. LEXIS 418 (Ky. Ct. App. 2007).

In a case where an inmate sought a declaration that Kentucky’s self-defense statutes, as they existed at the time of his 1991 trial, were unconstitutional under Ky. Const. § 1, relief was not appropriate because no actual controversy was pled. The constitutionality of the self-defense statutes had no foreseeable application to the inmate, who was under six death sentences. Foley v. Commonwealth, 306 S.W.3d 28, 2010 Ky. LEXIS 53 ( Ky. 2010 ).

9.Probable Cause.

This section should afford some protection against unjustified or unreasonable stopping of person by police, and in such case any evidence obtained as result of such stopping is illegally obtained and inadmissible. Commonwealth v. Robey, 337 S.W.2d 34, 1960 Ky. LEXIS 361 ( Ky. 1960 ), overruled, Pennington v. Commonwealth, 429 S.W.2d 364, 1967 Ky. LEXIS 527 ( Ky. 1967 ).

In the search of an automobile and discovery of incriminating material upon arrest for a traffic violation, the crucial question to be determined by the trial court upon evidence out of the hearing of the jury is whether or not probable caused existed for the initial stopping, and this should be done without regard to the pendency or the disposition of the initial offense. Pennington v. Commonwealth, 429 S.W.2d 364, 1967 Ky. LEXIS 527 ( Ky. 1967 ).

10.Injunctions.

The right to carry on a business and to fulfill contracts made in the course thereof is a property right, falling within the constitutional guaranty of the right to acquire and protect property, which injunction may issue to protect. Underhill v. Murphy, 117 Ky. 640 , 78 S.W. 482, 25 Ky. L. Rptr. 1731 , 1904 Ky. LEXIS 227 ( Ky. 1904 ).

Speaker was entitled to injunction against contemplated city and police interference with his speech where it was not objectionable and his audience was not unlawfully assembled. Louisville v. Lougher, 209 Ky. 299 , 272 S.W. 748, 1925 Ky. LEXIS 486 ( Ky. 1925 ).

11.Sunday Closing Laws.

Sunday closing law (KRS 436.160 ) did not violate religious freedom or right to worship granted in this section, as no religion was affirmatively preferred under such law. Commonwealth v. Arlan's Dep't Store, 357 S.W.2d 708, 1962 Ky. LEXIS 140 ( Ky. 1962 ).

Since the regulation of poolrooms is an authorized exercise of police power, the prohibition of subsection (5) of KRS 436.160 against allowing poolroom operators to open for business on Sunday is not a violation of the equal protection of the laws. Walters v. Bindner, 435 S.W.2d 464, 1968 Ky. LEXIS 210 ( Ky. 1968 ) (decision prior to 1972 amendment to KRS 436.160 ).

12.Price Regulations.

It was constitutional for legislature to at least fix minimum prices for all commodities and services dealt in, rendered, produced, or furnished by particular business whether or not such business was one affected with a public interest. Moore v. Northern Kentucky Independent Food Dealers Ass'n, 286 Ky. 24 , 149 S.W.2d 755, 1941 Ky. LEXIS 211 ( Ky. 1941 ).

Law which prohibited the sale of commodities by retail to individual customers at prices below cost, in order to injure creditors and destroy competition, did not violate this section. Moore v. Northern Kentucky Independent Food Dealers Ass'n, 286 Ky. 24 , 149 S.W.2d 755, 1941 Ky. LEXIS 211 ( Ky. 1941 ).

KRS 244.080 , 244.380 (now repealed), 244.390 (now repealed), 244.400 (now repealed), 244.410 (now repealed) and 244.470 (now repealed), concerning sale of alcoholic beverages, provide for a system of resale pricing that conflicts with the Sherman Antitrust Act (15 USCS § 1 et seq.) as that act has come to be construed by the United States Supreme Court, but do not violate this section or Const., § 2. Alcoholic Beverage Control Bd. v. Taylor Drug Stores, Inc., 635 S.W.2d 319, 1982 Ky. LEXIS 269 ( Ky. 1982 ).

A statute involving the regulation of economic matters comports with both state and federal equal protection if the law is rationally related to a legitimate government objective; the constitutionality of a statute will be upheld if its classification is not arbitrary, or if it is founded upon any substantial distinction suggesting the necessity or propriety of such legislation. Kentucky Harlan Coal Co. v. Holmes, 872 S.W.2d 446, 1994 Ky. LEXIS 6 ( Ky. 1994 ), overruled in part, Vision Mining, Inc. v. Gardner, 364 S.W.3d 455, 2011 Ky. LEXIS 177 ( Ky. 2011 ).

13.Eminent Domain.

Under this section and Const., §§ 13 and 242, highway commission’s contractor was liable for taking plaintiff’s property before plaintiff received payment therefor, notwithstanding compensation proceedings were pending. Terhune v. Gorham, 225 Ky. 249 , 8 S.W.2d 431, 1928 Ky. LEXIS 785 ( Ky. 1928 ).

When a city and a corporation entered into an agreed judgment following a condemnation suit, whereby the corporation deeded to the city, for construction of sewers, certain land including a stream which was being used by the corporation for sewerage purposes, and, in part consideration thereof, the city agreed to allow the corporation, its successors and assigns free use of sewers, a subsequently created metropolitan sewer district which took over city sewer system could not, by exercise of the police power of the city, abrogate the judgment and force successors of the corporation to pay for use of the sewers without just compensation, for to permit such abrogation and payment would be taking property without compensation and destroying vested rights. Bond Bros. v. Louisville & Jefferson County Metropolitan Sewer Dist., 307 Ky. 689 , 211 S.W.2d 867, 1948 Ky. LEXIS 805 ( Ky. 1948 ), cert. denied, 339 U.S. 943, 70 S. Ct. 796, 94 L. Ed. 1358, 1950 U.S. LEXIS 2086 (U.S. 1950).

14.— Dedication Requirements.

So long as the taking of a portion of land, whether on the exterior or from the interior, is based on the reasonably anticipated burdens to be caused by the development, making dedication requirements a condition precedent to plat approval is not an unconstitutional taking of land without just compensation. Lampton v. Pinaire, 610 S.W.2d 915, 1980 Ky. App. LEXIS 408 (Ky. Ct. App. 1980).

15.Racial Discrimination.

The right to teach white and Negro children in a private school at the same time and place is not a property right. Berea College v. Commonwealth, 123 Ky. 209 , 94 S.W. 623, 29 Ky. L. Rptr. 284 , 1906 Ky. LEXIS 139 ( Ky. 1906 ), aff'd, 211 U.S. 45, 29 S. Ct. 33, 53 L. Ed. 81, 1908 U.S. LEXIS 1526 (U.S. 1908).

Antidiscrimination ordinance prohibiting the refusal to serve food to Negroes by restaurant owner was not violative of constitutional provisions guaranteeing property or contract rights. Commonwealth v. Beasy, 386 S.W.2d 444, 1965 Ky. LEXIS 502 ( Ky. 1965 ).

16.Unions.

Men engaged in lawful strike have lawful right to assemble and address their fellowmen in peaceful manner. Alsbrook v. Commonwealth, 243 Ky. 814 , 50 S.W.2d 22, 1932 Ky. LEXIS 204 ( Ky. 1932 ).

The right to earn a living is “property” within concept of constitutional rights, and a trade union in service of its own interests may not deprive a person of such constitutional right. Hill v. United Public Workers Union, 314 Ky. 791 , 236 S.W.2d 887, 1950 Ky. LEXIS 1101 ( Ky. 1950 ).

Injunction prohibiting union members from congregating in large numbers at or about premises of employer even if for lawful purpose was unconstitutional denial of rights under subsection (6) of this section. Boyd v. Deena Artware, Inc., 239 S.W.2d 86, 1951 Ky. LEXIS 852 ( Ky. 1951 ).

Section of union constitution prohibiting members from appearing before legislative or executive groups in opposition to declared programs or policies of union was not violative of rights under this section since such prohibition was expressly inapplicable to member acting in private capacity. Harrison v. Brotherhood of R. & S. S. Clerks, 271 S.W.2d 852, 1954 Ky. LEXIS 1049 ( Ky. 1954 ).

In a civil rights suit brought under 42 USCS § 1983 and Kentucky law, specifically §§ 1, 2 and 8 of the Kentucky Constitution and KRS 161.164 and 161.750(2), a teacher asserted that she was not rehired because of her union activities. Because hiring school district employees is an act essential to the function of the school district, Kentucky’s governmental immunity protected the school district and the school superintendent, in his official capacity, from liability for the teacher’s state-law claims. Smith v. Floyd County Bd. of Educ., 401 F. Supp. 2d 789, 2005 U.S. Dist. LEXIS 29220 (E.D. Ky. 2005 ).

In a civil rights suit brought under 42 USCS § 1983 and Kentucky law, specifically §§ 1, 2 and 8 of the Kentucky Constitution and KRS 161.164 and 161.750(2), a teacher asserted that she was not rehired because of her union activities. For claims against the school superintendent in his individual capacity for hiring decisions in which he actually participated and or in which his role was unclear, the superintendent was not entitled to summary judgment; it had long been established that discharging or failing to hire or retain an employee because she engaged in protected speech was wrongful, so the superintendent was not entitled to qualified immunity from liability for those claims. Smith v. Floyd County Bd. of Educ., 401 F. Supp. 2d 789, 2005 U.S. Dist. LEXIS 29220 (E.D. Ky. 2005 ).

2017 Ky. Acts 1 does not violate the equal protection provisions of the Kentucky Constitution; the legislature clearly established a rational basis for the Act, to promote economic development, to promote job growth, and to remove Kentucky’s economic disadvantages in competing with neighboring states. Zuckerman v. Bevin, 565 S.W.3d 580, 2018 Ky. LEXIS 502 ( Ky. 2018 ).

Employers might be attracted to locate in a state where wages are lower as opposed to a state where wages are higher, and to the extent this conclusion might be characterized as speculative, it is undoubtedly rational; the legislature can clearly make a policy decision that 2017 Ky. Acts 1 might result in more jobs, albeit at lower wages, and that this result, in turn, might benefit the overall economic climate of Kentucky. Zuckerman v. Bevin, 565 S.W.3d 580, 2018 Ky. LEXIS 502 ( Ky. 2018 ).

Rational basis review is appropriate for evaluating 2017 Ky. Acts 1 since the Act is expressly permitted by the Taft-Hartley Act. Zuckerman v. Bevin, 565 S.W.3d 580, 2018 Ky. LEXIS 502 ( Ky. 2018 ).

17.Public Welfare.

The people of every state have the inherent right to pass laws for the public safety, health, morals and general welfare. Bosworth v. Lexington, 277 Ky. 90 , 125 S.W.2d 995, 1939 Ky. LEXIS 615 ( Ky. 1939 ).

The protection of citizens in their quietude, rest and sleep during the night justified ordinance provision prohibiting operation of sound trucks at night. Brachey v. Maupin, 277 Ky. 467 , 126 S.W.2d 881, 1939 Ky. LEXIS 683 ( Ky. 1939 ).

Authority is vested by police power in legislative bodies to enact laws relating to almost if not all professions and many other subjects affecting the public weal, and to enact complete prohibition of some activities or in certain areas if based on sufficient reasons. Louisville of Kuhn, 284 Ky. 684 , 145 S.W.2d 851, 1940 Ky. LEXIS 563 ( Ky. 1940 ).

Whether legislation enacted under authority of police power be prohibitory or regulatory, it must not exceed limits of reasonableness, or be rested upon grounds without foundation in fact, or be more destructive of, than beneficial to, interest of public at large. Louisville of Kuhn, 284 Ky. 684 , 145 S.W.2d 851, 1940 Ky. LEXIS 563 ( Ky. 1940 ).

The constitutional guarantees in the third and fourth subsections may — when occasions and conditions require it — be regulated by the legislature under its police power, if such regulation is based upon reasonable grounds for the promotion of the interest or welfare of the general public, but not to be exercised arbitrarily so as to destroy the rights guaranteed. Moore v. Northern Kentucky Independent Food Dealers Ass'n, 286 Ky. 24 , 149 S.W.2d 755, 1941 Ky. LEXIS 211 ( Ky. 1941 ).

The Constitution protects the right of a person to follow any occupation the pursuit of which does not injure the public weal. Southern Linen Supply Co. v. Hazard, 286 Ky. 626 , 151 S.W.2d 758, 1941 Ky. LEXIS 319 ( Ky. 1941 ).

Regulations imposed on restaurants due to the COVID-19 pandemic were not arbitrary under this section because the Cabinet for Health and Family Services’ broad police powers for dealing with contagious diseases, Ky. Rev. Stat. Ann. §§ 211.025 , 211.180(1)63 provided a rational basis for the face covering and the social distancing measure. Beshear v. Acree, 615 S.W.3d 780, 2020 Ky. LEXIS 405 ( Ky. 2020 ).

Regulations imposed on child care facilities due to the COVID-19 pandemic were not arbitrary under this section because the record amply reflected a rational basis for both sets of restrictions; the Limited Duration Centers were literally emergency childcare for healthcare workers and first responders in the very early days of the pandemic with regulations based on successful emergency childcare centers in other states, and when regular Kentucky childcare facilities generally reopened in June 2020, the group sizes and the tour restrictions for these centers were based on articulated public health reasons, i.e., efforts to limit the spread of disease as society in general was reopening. Beshear v. Acree, 615 S.W.3d 780, 2020 Ky. LEXIS 405 ( Ky. 2020 ).

18.Religious Freedom.

Statute which made it a misdemeanor to wilfully disturb a congregation or to sell liquor within a mile of divine services did not violate this section. Rich v. Bailey, 123 Ky. 827 , 97 S.W. 747, 30 Ky. L. Rptr. 155 , 1906 Ky. LEXIS 220 (Ky. Ct. App. 1906).

One distributing religious tracts for Jehovah’s Witnesses, either selling or donating them, is engaged in religious and not commercial activity and an ordinance forbidding commercial peddling, if applicable, would violate this section guaranteeing freedom of religion. Seevers v. Somerset, 295 Ky. 595 , 175 S.W.2d 18, 1943 Ky. LEXIS 304 ( Ky. 1943 ). See Hibsman v. Madisonville, 295 Ky. 601 , 175 S.W.2d 21, 1943 Ky. LEXIS 305 ( Ky. 1943 ).

One may have any religious belief desired, but one’s conduct remains subject to regulation for the protection of society. Mosier v. Barren County Board of Health, 308 Ky. 829 , 215 S.W.2d 967, 1948 Ky. LEXIS 1050 ( Ky. 1948 ).

Religious freedom embraces two (2) conceptions: freedom to believe and freedom to act. The first is absolute, but, in the nature of things, the second cannot be. Mosier v. Barren County Board of Health, 308 Ky. 829 , 215 S.W.2d 967, 1948 Ky. LEXIS 1050 ( Ky. 1948 ).

The constitutional guarantee of religious freedom does not permit the practice of religious rites dangerous or detrimental to the lives, safety, or health of the participants or to the public. Mosier v. Barren County Board of Health, 308 Ky. 829 , 215 S.W.2d 967, 1948 Ky. LEXIS 1050 ( Ky. 1948 ).

Wearing of religious dress and emblems by Catholic sisters while teaching in public schools was not violative of this section. Rawlings v. Butler, 290 S.W.2d 801, 1956 Ky. LEXIS 345 ( Ky. 1956 ).

Lease of hospital building to religious organization was not violative of this section. Abernathy v. Irvine, 355 S.W.2d 159, 1961 Ky. LEXIS 16 ( Ky. 1961 ), cert. denied, 371 U.S. 831, 83 S. Ct. 49, 9 L. Ed. 2d 67, 1962 U.S. LEXIS 649 (U.S. 1962).

The Commonwealth may only infringe upon the free exercise of religion when it does so in pursuit of an overriding, compelling interest of the highest order, and only if it does so in the least restrictive manner possible. Cabinet for Human Resources Kentucky Health Facilities v. Provincial Convent of Good Shepherd, Inc., 701 S.W.2d 137, 1985 Ky. App. LEXIS 616 (Ky. Ct. App. 1985).

Requiring students to take the Kentucky Instructional Results Information System (KIRIS) examination did not violate students’ constitutional rights of freedom of religion. Triplett v. Livingston County Bd. of Educ., 967 S.W.2d 25, 1997 Ky. App. LEXIS 74 (Ky. Ct. App. 1997), cert. denied, 525 U.S. 1104, 119 S. Ct. 870, 142 L. Ed. 2d 771, 1999 U.S. LEXIS 599 (U.S. 1999).

KRS 189.820 does not infringe upon the right to exercise religion by restricting religious worship rituals or enforcing compulsory conduct to which a person is conscientiously opposed; driving an automobile is not a fundamental constitutional right, but a legitimately regulated privilege, like the use of public roads, and the use of a vehicle and the public roads are not acts of religious worship. KRS 189.820 is a neutral law of general applicability, and does not invoke strict scrutiny analysis; the Commonwealth’s objective of ensuring public safety through the most effective means possible by use of an emblem to alert to a slow-moving vehicle overshadowed any encumbrances on religious practices. KRS 189.820 would have passed constitutional muster if a strict scrutiny analysis was applied, an argument that a bicycle exemption created a showing of legislative belief that slow-moving vehicle emblems did not promote roadway safety was rejected, and an argument that reflective tape was a less restrictive alternative was also rejected. Gingerich v. Commonwealth, 2011 Ky. App. LEXIS 97 (Ky. Ct. App. June 3, 2011, sub. op., 2011 Ky. App. Unpub. LEXIS 963 (Ky. Ct. App. June 3, 2011).

Drivers who refused to display a slow-moving vehicle emblem on horse-and-buggy vehicles for religious reasons could be ticketed and fined under KRS 189.820 without violating their right to the free exercise of religion under Ky. Const. §§ 1, 5. Under the rational basis standard of review, which was appropriate because § 189.820 is a public safety statute that generally applies to all slow-moving vehicles and does not prohibit any religious practice, there was ample rational basis for a statute regulating slow-moving vehicles for safety reasons. Gingerich v. Commonwealth, 382 S.W.3d 835, 2012 Ky. LEXIS 175 ( Ky. 2012 ).

Free-exercise-of-religion protections in Ky. Const. §§ 1, 5 provide no more protection than the First Amendment, U.S. Const. amend. I; thus, generally applicable statutes that provide for the public health, safety, and welfare and only incidentally affect the practice of religion are subject to rational basis review under the Kentucky Constitution, as they are under the federal Constitution. Enactments that directly prohibit or restrain a religious practice are subject to a strict scrutiny standard of review under Kentucky law. Gingerich v. Commonwealth, 382 S.W.3d 835, 2012 Ky. LEXIS 175 ( Ky. 2012 ).

19.Freedom of Speech.

The proposed application of KRS 121.025 and § 150 of the Constitution to prohibit the Louisville Bar Association’s paid advertisement showing the results of a poll of its members as to the qualification of candidates for the judiciary would be incompatible with the freedoms secured by the first amendment of both the Kentucky and the United States Constitutions. Kentucky Registry of Election Finance v. Louisville Bar Asso., 579 S.W.2d 622, 1978 Ky. App. LEXIS 673 (Ky. Ct. App. 1978).

KRS 161.190 , which provides that no person shall upbraid, insult or abuse a public school teacher in the presence of the school or a pupil thereof, is an unconstitutional violation of the First Amendment and Section 1(4) and Section 8 of the Kentucky Constitution. Commonwealth v. Ashcraft, 691 S.W.2d 229, 1985 Ky. App. LEXIS 554 (Ky. Ct. App. 1985).

Employee who was transferred from his position as a university athletic director to the directorship of corporate and foundation giving could not recover for retaliation in violation of his free speech rights under Ky. Const. § 1 because he could not show that his transfer was caused by his political statements, although the transfer was an adverse employment action. Dennison v. Murray State Univ., 465 F. Supp. 2d 733, 2006 U.S. Dist. LEXIS 80800 (W.D. Ky. 2006 ).

County ordinance’s “no touch” provision was unconstitutionally overbroad under the First Amendment because prohibiting all touching between adult establishment customers and entertainers, including benign, nonsexual touching, was substantially broader than necessary to achieve the county’s interest in combating prostitution and sexually transmitted diseases. An ordinance could easily be more narrowly tailored to prohibit sexual touching, as in a ban on touching during a performance or while in a state of nudity. Blue Movies, Inc. v. Louisville/Jefferson County Metro Gov't, 317 S.W.3d 23, 2010 Ky. LEXIS 101 ( Ky. 2010 ), cert. denied, 562 U.S. 1272, 131 S. Ct. 1617, 179 L. Ed. 2d 502, 2011 U.S. LEXIS 1991 (U.S. 2011).

20.Regulating Occupations.

Under this section one may engage in businesses or occupations which are not harmful to public good. Lawton v. Stewart Dry Goods Co., 197 Ky. 394 , 247 S.W. 14, 1923 Ky. LEXIS 636 ( Ky. 1923 ).

To sustain legislative interference with lawful business of a citizen, the court must be able to see that the act tends in some degree to promote public health, morals, safety or welfare, and means adopted must be reasonably necessary to accomplish purpose and not be unduly oppressive. Ware v. Ammon, 212 Ky. 152 , 278 S.W. 593, 1925 Ky. LEXIS 1094 ( Ky. 1925 ). See Rawles v. Jenkins, 212 Ky. 287 , 279 S.W. 350, 1925 Ky. LEXIS 1121 ( Ky. 1925 ).

The legislature may make regulations to prevent undue or unseemly rivalry or competition in the professions, and may prohibit practices whose general effect is to deceive the public, even though in particular instances there may be no actual deception or misstatement. Reynolds v. Walz, 278 Ky. 309 , 128 S.W.2d 734, 1939 Ky. LEXIS 427 ( Ky. 1939 ).

The legislature may not put arbitrary and unnecessary restrictions upon lawful occupations under the mask of police power and the restriction or regulation must be reasonably necessary to effectuate the results desired. Beacon Liquors v. Martin, 279 Ky. 468 , 131 S.W.2d 446, 1939 Ky. LEXIS 304 ( Ky. 1939 ).

If business operating under regulations as to qualifications of participants therein is lawful and is necessary for comfort and convenience of public, its hours for conducting business may not be arbitrarily interfered with by legislative body. Louisville of Kuhn, 284 Ky. 684 , 145 S.W.2d 851, 1940 Ky. LEXIS 563 ( Ky. 1940 ).

A city may not impose a license fee which is grossly disproportionate to the business actually being done or which reasonably can be done within the city. Southern Linen Supply Co. v. Hazard, 286 Ky. 626 , 151 S.W.2d 758, 1941 Ky. LEXIS 319 ( Ky. 1941 ).

An ordinance by a municipal corporation regulating the hours during which a business may be operated which does not directly or remotely tend to benefit the public health, morals, safety or the general welfare when applied to a restaurant cannot be justified on the theory that it was passed under the police power. Jackson v. Murray-Reed-Slone & Co., 297 Ky. 1 , 178 S.W.2d 847, 1944 Ky. LEXIS 652 ( Ky. 1 944).

The provision of former law that required compulsory malpractice insurance constituted an unjustifiable interference with the right to pursue a legitimate business or profession and was therefore unconstitutional under this section. McGuffey v. Hall, 557 S.W.2d 401, 1977 Ky. LEXIS 533 ( Ky. 1977 ).

21.— Particular Occupations.

Law having made it unlawful for the owner of pooled products to violate his pooling contract by selling his part of such products without the consent of the agent of the pooling parties, a further provision, making it an offense for persons to buy from him knowing he was so violating his pooling contract, did not interfere with their right under the constitution to acquire property. Commonwealth v. Hodges, 137 Ky. 233 , 125 S.W. 689, 1910 Ky. LEXIS 562 ( Ky. 1910 ).

The regulation of the production and marketing of milk is a proper exercise of the police power, and the court will accept the legislature’s judgment as to classification and regulation, where there is room for reasonable difference of opinion. Pure Milk Producers & Distributors Ass'ns v. Morton, 276 Ky. 736 , 125 S.W.2d 216, 1939 Ky. LEXIS 575 ( Ky. 1939 ).

No one has an inherent right to practice the profession of medicine or dentistry, and the legislature may regulate those professions on a different basis than ordinary commercial businesses. Reynolds v. Walz, 278 Ky. 309 , 128 S.W.2d 734, 1939 Ky. LEXIS 427 ( Ky. 1939 ).

The profession of dentistry and its practice is subject to the police power of the state, and the legislature may make reasonable regulations in the interest of public health, safety, morals or general welfare. Reynolds v. Walz, 278 Ky. 309 , 128 S.W.2d 734, 1939 Ky. LEXIS 427 ( Ky. 1939 ).

The provisions of KRS 313.140 prohibiting the advertising of credit or terms of credit by dentists do not violate this section. Reynolds v. Walz, 278 Ky. 309 , 128 S.W.2d 734, 1939 Ky. LEXIS 427 ( Ky. 1939 ).

Ordinance regulating barbering prohibiting shops from keeping open before 8:00 a.m. or after 6:00 p. m. except on Saturdays and days preceding holidays was invalid under police power, since restrictions were unreasonable, and without justification denied barbers right to render and public to receive services at hours most profitable for barbers and most convenient for public. Louisville of Kuhn, 284 Ky. 684 , 145 S.W.2d 851, 1940 Ky. LEXIS 563 ( Ky. 1940 ).

So far as ordinance regulating barbering business related to sanitary condition of premises and qualifications of barbers, it was legally unobjectionable. Louisville of Kuhn, 284 Ky. 684 , 145 S.W.2d 851, 1940 Ky. LEXIS 563 ( Ky. 1940 ).

Limitations regulating “outside work” by policemen imposed by ordinance are not unlawful if the ordinance neither forces them to serve nor prohibits them from doing whatever they wish to do if they choose not to serve. Hopwood v. Paducah, 424 S.W.2d 134, 1968 Ky. LEXIS 447 ( Ky. 1968 ).

Supreme Court Rule 3.130 governing disciplinary action against attorneys was not so vague as to be constitutionally infirm. Kentucky Bar Asso. v. Kramer, 555 S.W.2d 245, 1977 Ky. LEXIS 498 ( Ky. 1977 ) (decision prior to 1978 amendment of S.C.R. 3.130).

The fact that statutes of limitations do not apply to the initiation of disciplinary proceedings against attorneys does not deprive attorneys of due process. Kentucky Bar Asso. v. Signer, 558 S.W.2d 582, 1977 Ky. LEXIS 535 ( Ky. 1977 ).

22.Right to Earn Livelihood.

Where owners of existing cable television stations were not treated any differently than any other persons by a resolution dividing a county into cable television districts, the resolution did not deprive them of the right to earn a livelihood by restricting their operations. Akers v. Floyd County Fiscal Court, 556 S.W.2d 146, 1977 Ky. LEXIS 518 ( Ky. 1977 ).

23.Taxation.

The mere right to own and hold property cannot be made the subject of excises. Craig v. E. H. Taylor, Jr. & Sons, 192 Ky. 36 , 232 S.W. 395, 1921 Ky. LEXIS 28 ( Ky. 1921 ).

Any prohibitory tax of legitimate business violated bill of rights as read in conjunction with Const., § 181. Field Packing Co. v. Glenn, 5 F. Supp. 4, 1933 U.S. Dist. LEXIS 1127 (D. Ky.), modified, 290 U.S. 177, 54 S. Ct. 138, 78 L. Ed. 252, 1933 U.S. LEXIS 453 (U.S. 1933).

Gross sales tax on retail merchants did not constitute exercise of arbitrary power over lives, liberty, or property of such merchants, nor deny them their constitutional rights to acquire and protect property. Stewart Dry Goods Co. v. Lewis, 7 F. Supp. 438, 1933 U.S. Dist. LEXIS 1007 (D. Ky. 1933 ), rev'd, 294 U.S. 550, 55 S. Ct. 525, 79 L. Ed. 1054, 1935 U.S. LEXIS 57 (U.S. 1935).

Law that imposed a license tax on retail merchants, graduated according to the number of stores operated in the state, amounted to confiscation of taxpayer’s property under this section as read in connection with Const., § 181. Great Atlantic & Pacific Tea Co. v. Kentucky Tax Com., 278 Ky. 367 , 128 S.W.2d 581, 1939 Ky. LEXIS 406 ( Ky. 1939 ).

A 50-cent fee imposed on farmers, selling their own produce in city, by provision exempting them from license tax on wholesale dealers imposed by ordinance was not an excise tax or privilege tax, but an inspection fee validly levied under the police power to aid in enforcement of ordinance. Hartman v. Louisville, 282 Ky. 487 , 138 S.W.2d 948, 1940 Ky. LEXIS 183 ( Ky. 1940 ).

Unless an occupation may be absolutely prohibited, taxes levied against it must not be prohibitive or confiscatory. Hartman v. Louisville, 282 Ky. 487 , 138 S.W.2d 948, 1940 Ky. LEXIS 183 ( Ky. 1940 ).

A municipal occupational tax on legitimate businesses must not be confiscatory. Southern Linen Supply Co. v. Hazard, 286 Ky. 626 , 151 S.W.2d 758, 1941 Ky. LEXIS 319 ( Ky. 1941 ).

Though Const., §§ 1 and 2 guarantee to everyone the inalienable right to earn a livelihood, Const., § 181 expressly qualifies that right to the extent that it empowers cities, counties, towns, and other municipal corporations to impose an occupational license tax on “trades, occupations and professions.” The quoted language covers all fields of employment and all means of earning a livelihood. Louisville v. Sebree, 308 Ky. 420 , 214 S.W.2d 248, 1948 Ky. LEXIS 907 ( Ky. 1948 ).

Although classification by KRS 136.120 of municipal solid waste disposal facilities that dispose of waste by landfill singles out such facilities for disparate tax treatment and is not a perfect fit to the state’s objectives, such classification is reasonably related to the state’s goals for solid waste management and is therefore constitutional. Cooksey Bros. Disposal Co. v. Boyd County, 973 S.W.2d 64, 1997 Ky. App. LEXIS 132 (Ky. Ct. App. 1997), cert. denied, 525 U.S. 930, 119 S. Ct. 338, 142 L. Ed. 2d 279, 1998 U.S. LEXIS 6495 (U.S. 1998).

24.Incompetent Persons.

Person could not be declared incompetent and have his property taken away or be confined without jury intervention and jury verdict declaring such person non sui juris. Hager v. Pacific Mut. Life Ins. Co., 43 F. Supp. 22, 1942 U.S. Dist. LEXIS 3145 (D. Ky. 1942 ).

Where the withdrawal of life-prolonging medical treatment becomes solely another person’s decision about the incompetent patient’s quality of life, the patient’s “inalienable right to life” outweighs any consideration of the quality or value of the life at stake. DeGrella v. Elston, 858 S.W.2d 698, 1993 Ky. LEXIS 103 ( Ky. 1993 ).

No liability attaches to a decision, and a court order is not required, to withdraw medical treatment from a patient in a persistent vegetative state, where the patient’s wishes were known, and the necessary facts are established and carefully documented by the parties involved. DeGrella v. Elston, 858 S.W.2d 698, 1993 Ky. LEXIS 103 ( Ky. 1993 ).

25.Fair Trade Acts.

Nonsigner provisions in McGuire act and Kentucky fair trade statute were unlawful exercise of police power under this section and United States Const., Amends. 5 and 14. Sunbeam Corp. v. Richardson, 144 F. Supp. 583, 1956 U.S. Dist. LEXIS 2806 (D. Ky. 1956 ), rev'd, 243 F.2d 501, 1957 U.S. App. LEXIS 5247 (6th Cir. Ky. 1957 ).

26.Franchise Laws.

Ordinance requiring franchise for city ambulance service was not violative of rights under subsection (5) of this section. Ray v. Owensboro, 415 S.W.2d 77, 1967 Ky. LEXIS 294 ( Ky. 1967 ).

Where a fiscal court resolution provided that a successful bidder for a cable television franchise must purchase the existing cable television system at a price to be determined by three appraisers, such resolution would be construed to mean that the franchise winner must buy the existing system only if the owner wanted to sell it and, as so construed, there was no taking of private property in violation of due process. Akers v. Floyd County Fiscal Court, 556 S.W.2d 146, 1977 Ky. LEXIS 518 ( Ky. 1977 ).

27.Absentee Voting.

Law that established two (2) general classes of voters who are eligible to vote by absentee ballot was not unconstitutionally unreasonable and arbitrary. Hallahan v. Mittlebeeler, 373 S.W.2d 726, 1963 Ky. LEXIS 171 ( Ky. 1963 ).

28.Delinquency.

Subsection (1) of KRS 199.320 (now repealed) making it criminal offense to contribute to delinquency of minor was not unconstitutionally vague and indefinite. McDonald v. Commonwealth, 331 S.W.2d 716, 1960 Ky. LEXIS 125 ( Ky. 1960 ).

The Kentucky Unified Juvenile Code has extinguished the common law presumption that a child is without criminal capacity (the “infancy defense”), since a delinquency adjudication in juvenile court is not a criminal conviction under KRS 635.040 , and allowing the presumption would frustrate the clinical and rehabilitative purposes of the Code. W.D.B. v. Commonwealth, 246 S.W.3d 448, 2007 Ky. LEXIS 241 ( Ky. 2007 ).

The trial court did not err in declining to hold a Daubert hearing to determine the reliability of the methods used by the commonwealth to evaluate the juvenile offender for treatment as a sexual offender where he had already been adjudicated guilty of first-degree sexual abuse under KRS 635.505(2)(a) and KRS 510.110 , and the assessment was used to decide appropriate treatment for defendant and not for adjudicatory purposes. W.D.B. v. Commonwealth, 246 S.W.3d 448, 2007 Ky. LEXIS 241 ( Ky. 2007 ).

Requiring juveniles adjudicated public offenders for various sex offenses to submit DNA samples in accordance with Kentucky’s DNA sampling statutes, KRS 17.170 through 17.175 (KRS 17.171 through KRS 17.174 are now repealed), did not violate the Fourth Amendment or Ky. Const. §§ 1, 2, and 11 because the juveniles’ privacy interests did not outweigh law enforcement’s interest in solving crimes. Petitioner F v. Brown, 306 S.W.3d 80, 2010 Ky. LEXIS 70 (Ky.), cert. denied, 562 U.S. 985, 131 S. Ct. 422, 178 L. Ed. 2d 329, 2010 U.S. LEXIS 8178 (U.S. 2010).

29.Residency Requirements.

KRS 280.180 (repealed), 280.200 (repealed) and 280.220 requiring residency in order to have ferry privilege, was not void as depriving nonresident of property without compensation. Muscovalley v. Horn, 246 Ky. 778 , 56 S.W.2d 354, 1932 Ky. LEXIS 826 ( Ky. 1932 ).

30.Workmen’s Compensation.

Legislative regulation of contracts under compensation law was not violation of right to enter into lawful contracts under this section or Const., § 2. Workmen's Compensation Board v. Abbott, 212 Ky. 123 , 278 S.W. 533, 1925 Ky. LEXIS 1088 ( Ky. 1925 ).

Employer’s due process rights were not violated when the administrator for the deceased employee’s estate mistakenly sent the initial notice of claim to the place of the work injury and not to the employer’s address, and when subsequent other notices and filings went to the wrong address, because the employer’s insurance carrier received timely notice and entered a timely answer on behalf of the employer and the employer otherwise was given an opportunity to be heard. Realty Improvement Co. v. Raley, 194 S.W.3d 818, 2006 Ky. LEXIS 158 ( Ky. 2006 ).

Consensus procedure under KRS 342.316 for coal workers’ pneumoconiosis claims did not violate equal protection under U.S. Const. amend. XIV and Ky. Const. §§ 1, 2, and 3 because the inherent differences in pneumoconiosis, which was slow to develop, and a traumatic injury provided a reasonable basis for the different statutory treatment for such workers’ compensation claims. KRS 342.316 (13) did not impose a greater burden of proof than on those workers who claimed benefits under KRS 342.730 as the presumption in the consensus procedure was a rebuttable one that could be overcome with clear and convincing evidence. Durham v. Peabody Coal Co., 272 S.W.3d 192, 2008 Ky. LEXIS 240 ( Ky. 2008 ), overruled in part, Vision Mining, Inc. v. Gardner, 364 S.W.3d 455, 2011 Ky. LEXIS 177 ( Ky. 2011 ).

31.Burial Associations.

That part of act regulating burial associations, prohibiting association from restricting payment of burial benefits to undertaker named in policy agreement, was unconstitutional as interfering with the right of private contract in a field of competitive business. Kenton & Campbell Benevolent Burial Ass'n v. Goodpaster, 304 Ky. 233 , 200 S.W.2d 120, 1946 Ky. LEXIS 932 ( Ky. 1946 ).

32.Sunday Assemblies.

This section guarantees to citizens the right to assemble peaceably at motion picture or elsewhere on any day of the week including Sunday. Commonwealth v. Phoenix Amusement Co., 241 Ky. 678 , 44 S.W.2d 830, 1931 Ky. LEXIS 150 ( Ky. 1931 ).

33.Masks and Disguises.

Ordinance was not violative of this section which made it unlawful to appear on street wearing mask or other disguise. Pineville v. Marshall, 222 Ky. 4 , 299 S.W. 1072, 1927 Ky. LEXIS 852 ( Ky. 1927 ).

34.Penalty Provisions.

Penalty provisions of KRS, 132.290 were not arbitrary and thus were not in contravention of this section. Commonwealth v. St. Matthews Gas & Electric Shop, Inc., 252 S.W.2d 673, 1952 Ky. LEXIS 1011 ( Ky. 1952 ).

35.Rights of Minors.

Law was void to extent it attempted to authorize leasing of mineral rights of infant owner for period beyond minority of such infant. Lawrence E. Tierney Coal Co. v. Smith's Guardian, 180 Ky. 815 , 203 S.W. 731, 1918 Ky. LEXIS 151 (Ky.), modified, 181 Ky. 764 , 205 S.W. 951, 1918 Ky. LEXIS 623 ( Ky. 1918 ).

36.Rights to Privacy.

The legislature cannot invade the privacy of a citizen’s life and regulate his conduct in matters in which he alone is concerned, or prohibit him any liberty, the exercise of which will not directly injure society. Commonwealth v. Campbell, 133 Ky. 50 , 117 S.W. 383, 1909 Ky. LEXIS 169 ( Ky. 1909 ).

Statutes barring trafficking in or possessing marijuana did not violate the right to privacy because the statutes did not criminalize private possession and sale out of misplaced concerns about morality or public decency, as Kentucky citizens’ health, safety and well-being were implicated. Seum v. Bevin, 2019 Ky. App. LEXIS 29 (Ky. Ct. App. Mar. 8, 2019), sub. op., 584 S.W.3d 771, 2019 Ky. App. LEXIS 46 (Ky. Ct. App. 2019).

37.Sexual Conduct.

KRS 510.100 , which criminalized deviate sexual intercourse between consenting adults of the same sex, even if the act was committed in the privacy of a home, violated the Kentucky Constitution as: (1) An invasion of a constitutionally protected right of privacy; and (2) invidious discrimination in violation of constitutionally protected rights to equal treatment. Commonwealth v. Wasson, 842 S.W.2d 487, 1992 Ky. LEXIS 140 ( Ky. 1992 ).

Local municipality’s ordinance requiring the licensing of adult entertainment businesses, prohibiting nudity, restricting operation hours, requiring a buffer zone, prohibiting touching and other restrictions, was constitutional upon application of an intermediate scrutiny level of review. The ordinance was content neutral and within the municipality’s police power to regulate the secondary effects of such establishments. Cam I, Inc. v. Louisville/Jefferson County Metro Gov't, 2007 Ky. App. LEXIS 370 (Ky. Ct. App. Oct. 5, 2007), aff'd in part and rev'd in part, 317 S.W.3d 23, 2010 Ky. LEXIS 101 ( Ky. 2010 ).

38.Domestic Corporations.

Any law which seeks arbitrarily to deprive a domestic corporation, organized under the statute to establish and maintain an industrial school for colored people, of the right to use its property in any way it sees fit within its charactered powers not inimical to the public welfare is in violation of this section. Columbia Trust Co. v. Lincoln Institute of Kentucky, 138 Ky. 804 , 129 S.W. 113, 1910 Ky. LEXIS 138 ( Ky. 1910 ).

39.Right to Petition.

Any citizen or number of citizens may petition the legislature of the Commonwealth for any necessary and proper purpose, which includes the right to lawfully circulate the petition, and procure others to sign it, and will be in accord with this section. Yancey v. Commonwealth, 135 Ky. 207 , 122 S.W. 123, 1909 Ky. LEXIS 278 ( Ky. 1909 ).

The registration, reporting and disclosure provisions of KRS 6.801 and 11A.211 are not an impermissible burden on Associated Industries of Kentucky’s freedom of association and right to petition, and the “chilling effect” of these provisions, which prohibit anonymous lobbying, is minimal in view of the governmental interest of curtailing lobbying abuse, thus they are not unconstitutional. Associated Indus. v. Commonwealth, 912 S.W.2d 947, 1995 Ky. LEXIS 147 ( Ky. 1995 ).

40.Liquor Prohibition.

There is not and never has been any law in this state that prohibited the citizen from purchasing, where it is lawful to sell it, intoxicating liquor for his personal use or from having in his possession for such use liquor so purchased. Adams Express Co. v. Commonwealth, 154 Ky. 462 , 157 S.W. 908, 1913 Ky. LEXIS 96 ( Ky. 1913 ).

41.Automobiles.

Permission to operate an auto on the public highways is a temporary right granted by the state, and its use and enjoyment depends upon compliance with the conditions prescribed. Revocation of the operator’s license is merely forfeiture of a conditional temporary permit, and does not deprive the holder of any guaranteed civil right. Commonwealth v. Harris, 278 Ky. 218 , 128 S.W.2d 579, 1939 Ky. LEXIS 405 ( Ky. 1939 ).

42.Due Process.

Fundamental purpose of police power is to better conditions of living, and chief objectives are improvement of morals, health, education, cooperation, and all other things to make government run smoothly, but it is subject to limitations guaranteed by federal and state Constitutions that citizen’s property and personal rights shall not be taken without due process of law. Louisville of Kuhn, 284 Ky. 684 , 145 S.W.2d 851, 1940 Ky. LEXIS 563 ( Ky. 1940 ).

The “good cause” standard for removal of judges is not so vague as to violate due process requirements, since, although the specific acts of misconduct encompassed within the phrase are numerous, ample guidelines for the determination of proper conduct may be found in the ethical standards applicable to lawyers and judges adopted by national and state bar associations and in the moral standards expected of judicial officers by the public. Nicholson v. Judicial Retirement & Removal Com., 562 S.W.2d 306, 1978 Ky. LEXIS 322 ( Ky. 1978 ).

Where the Judicial Retirement and Removal Commission investigated the allegations of misconduct, instituted formal proceedings and issued a public censure after conducting an evidentiary hearing, the mere combination of the investigative and adjudicative functions within the commission did not violate the judge’s due process right to an unbiased trier of fact. Nicholson v. Judicial Retirement & Removal Com., 562 S.W.2d 306, 1978 Ky. LEXIS 322 ( Ky. 1978 ).

Inmate transferred from a Virginia correctional facility to a Kentucky correctional facility was not entitled to have Virginia’s prison disciplinary rules and regulations applied while incarcerated in the Kentucky facility under the Interstate Corrections Compact (ICC), KRS 196.610 , because both the implementing transfer contract and art. IV(e) of the ICC indicated that the prison rules and regulations of the receiving state, Kentucky, applied and requiring receiving states to learn the policies and procedures of each sending state would have thwarted the ICC’s purpose of developing a cooperative prison program; thus, the inmate’s request for declaratory relief was properly decided adversely to the inmate because there was no violation of the right to due process. Vigue v. Underwood, 139 S.W.3d 168, 2004 Ky. App. LEXIS 24 (Ky. Ct. App. 2004).

District court properly dismissed a former public employee’s federal and state due process claims because, although the employee had a right to insist that her former employer follow the procedures set forth KRS 151B.085 , the statute contained no “cause” requirement where a continuing employee was laid off because her position was abolished. Thus, the employee had no protectible property interest in her continued employment. Gragg v. Somerset Tech. College, 373 F.3d 763, 2004 FED App. 0190P, 2004 U.S. App. LEXIS 12229 (6th Cir. Ky. 2004 ).

County’s occupational license fee ordinance and KRS 68.197 were constitutionally valid because when the fee was first imposed under a public question ballot, the county was not required to give taxpayers credit for city fees and retroactive restoration of that provision had legitimate purpose and did not violate due process under the Kentucky Constitution or KRS 446.080 . King v. Campbell County, 217 S.W.3d 862, 2006 Ky. App. LEXIS 331 (Ky. Ct. App. 2006).

County ordinance banning pit bull terriers and imposing penalties for their possession gave an owner the opportunity to appear in court and present evidence and defenses to the action; therefore, the ordinance afforded procedural due process. Bess v. Bracken County Fiscal Court, 210 S.W.3d 177, 2006 Ky. App. LEXIS 347 (Ky. Ct. App. 2006).

KRS 61.590(3), limiting the time allowed to change a payment option, was not vague or ambiguous; because KRS 61.590(3) was plainly written, an explanatory administrative regulation was unnecessary. A trial court’s judgment affirming a determination that a retiree was not permitted to change his retirement payment option was proper because there was no evidence that the retirement system was negligent or that information provided to retiree was erroneous. Lawson v. Ky. Ret. Sys., 2007 Ky. App. LEXIS 200 (Ky. Ct. App. July 6, 2007, sub. op., 2007 Ky. App. Unpub. LEXIS 507 (Ky. Ct. App. July 6, 2007).

Trial court erred in ordering the cabinet for health and family services to pay for opiate hair follicle drug screen testing performed on the parents of a neglected child because there was no specific statute authorizing assessment of such payment and there was no significant potential infringement of the parents’ due process rights which would serve to bring the issue within the purview of the court’s inherent powers to administer justice. Commonwealth v. G.W.F., 229 S.W.3d 596, 2007 Ky. App. LEXIS 364 (Ky. Ct. App. 2007).

Mother’s due process rights were not violated by the denial of her request that her children testify in a termination of parental rights proceeding as the ramifications of the children’s testimony was considered, and for purposes of KRS 625.080(2) it was not in their best interests to testify; the mother had the opportunity to question the children during an in camera interview. J.M.R. v. Commonwealth, 239 S.W.3d 116, 2007 Ky. App. LEXIS 407 (Ky. Ct. App. 2007), overruled, Colvard v. Commonwealth, 309 S.W.3d 239, 2010 Ky. LEXIS 62 ( Ky. 2010 ).

43.— During Trial.

Prosecutor’s comments were not error and were certainly not palpable error under RCr 10.26; he did not make unfounded and inflammatory attacks on the opposing advocate, and his comments on the mitigation evidence were not misleading and the prosecutor confined himself to the facts in evidence and the fair inferences that could be withdrawn therefrom. Young v. Commonwealth, 129 S.W.3d 343, 2004 Ky. LEXIS 78 ( Ky. 2004 ).

Punitive damages awarded to an injured party in a wrongful death action violated the Due Process Clause as the jury considered a manufacturer’s conduct on a nationwide scale in awarding the punitive damages and as the jury instructions did not provide a safeguard from extraterritorial punishment. Sand Hill Energy, Inc. v. Smith, 142 S.W.3d 153, 2004 Ky. LEXIS 226 ( Ky. 2004 ).

Trial court violated the contemnor’s due process rights when the trial court found the contemnor in contempt for the contemnor’s conduct while representing a defendant in a criminal proceeding, summarily jailed the contemnor for a few hours, and then scheduled a sentencing hearing a few weeks later on the matter without allowing the contemnor to be heard; although the trial court had the authority to find the contemnor in contempt and summarily jail the contemnor to address the disrespect the contemnor showed to the trial court, the trial court’s conduct in continuing the matter for a later sentencing hearing meant there was no longer a threat to the trial court and the contemnor should have been allowed to be heard on the matter. Schroering v. Hickman, 229 S.W.3d 591, 2007 Ky. App. LEXIS 59 (Ky. Ct. App. 2007).

In proceedings to revoke defendant’s conditional discharge for flagrant nonsupport under KRS 530.050 , while defendant argued that his due process rights under the 14th Amendment and Ky. Const. §§ 1, 2, and 11 were violated as the Circuit Court refused to consider possible alternative punishments, no legal authority existed that required the Circuit Court to consider alternative forms of punishment when revoking probation or conditional discharge for failure to pay child support. Marshall v. Commonwealth, 2008 Ky. App. LEXIS 253 (Ky. Ct. App. Aug. 8, 2008), aff'd, 345 S.W.3d 822, 2011 Ky. LEXIS 107 ( Ky. 2011 ).

Defendant’s due process rights under the 14th Amendment and Ky. Const. §§ 1, 2, and 11 were violated by the Circuit Court’s failure to make findings of fact specifying the evidence relied upon to support its decision to revoke defendant’s conditional discharge for flagrant nonsupport under KRS 530.050 . Marshall v. Commonwealth, 2008 Ky. App. LEXIS 253 (Ky. Ct. App. Aug. 8, 2008), aff'd, 345 S.W.3d 822, 2011 Ky. LEXIS 107 ( Ky. 2011 ).

Mother’s due process rights and rights under KRS 625.080(3) and KRS 620.100(1) were violated when a Family Court proceeded to take testimony from two witnesses in a termination of parental rights trial even though the mother’s counsel could not get to court due to a snow storm. A.P. v. Commonwealth, 270 S.W.3d 418, 2008 Ky. App. LEXIS 319 (Ky. Ct. App. 2008).

Trial court erred when it declined to allow an attorney a warning order fee in a divorce case and failed to direct the wife to pay the fee because the more specific provisions in KRS 453.060 took precedence over more general language of KRS 453.190(1), and KRS 453.060 (2) clearly mandated that a warning order attorney be granted a reasonable fee. The wife was not denied access to the court, nor had the adjudication of her divorce been impeded or impaired by a demand for payment of fees. Spees v. Ky. Legal Aid, 274 S.W.3d 447, 2009 Ky. LEXIS 16 ( Ky. 2009 ).

KRS 17.510(10)(a) was not unconstitutionally vague as applied to defendant because, even though defendant became homeless when he was expelled from a center where he was living, this fact was irrelevant to the statute’s application; the statute did not require that a registrant must have had an actual place he was moving to. Further, KRS 17.510(10)(a) as written did not cause arbitrary or discriminatory enforcement and did not criminalize being homeless because all sex offenders, regardless of socioeconomic status, had to register with the proper authorities and report any change in address. Tobar v. Commonwealth, 284 S.W.3d 133, 2009 Ky. LEXIS 81 ( Ky. 2009 ).

44.— As Applied to Inmates.

Where a chain of custody of a urinalysis was not flawed, an inmate’s loss of good-time credits for unauthorized drug use was not a violation of due process; the inmate received all due process to which the inmate was entitled and the trial court did not err in denying the inmate’s petition for a declaratory judgment. Rhodes v. Phillips, 2003 Ky. App. Unpub. LEXIS 955 (Ky. Ct. App. May 23, 2003).

In disciplinary proceedings in which two inmates were charged with possession of dangerous contraband, due process required prison officials to present evidence that the Duquenois-Levine and the Marquis Reagent field drug tests were reliable as a foundation; prison officials’ failure to do so meant that the field tests utilized could not serve to meet the “some evidence” standard required to support the punishment imposed upon the inmates, which included loss of good time credit and segregation. Webb v. Sharp, 223 S.W.3d 113, 2007 Ky. LEXIS 119 ( Ky. 2007 ).

Circuit Court properly dismissed an inmate’s declaration of rights petition, as his claims that his due process rights were violated by denying him extended discovery and that his rights under the federal HIPAA statute were breached lacked merit. McMillen v. Ky. Dep't of Corr., 233 S.W.3d 203, 2007 Ky. App. LEXIS 300 (Ky. Ct. App. 2007).

45.Class Legislation.

Equal protection requires that in defining a class subject to legislation, the distinctions that are drawn have some relevance to the purpose for which the classification is made. Walters v. Bindner, 435 S.W.2d 464, 1968 Ky. LEXIS 210 ( Ky. 1968 ).

Without a showing of compelling governmental interest, the policy of a school board in showing preference for the employment of natives of its county constituted an inherently suspect classification, unconstitutionally discriminatory and preferential in violation of this section and sections 2 and 3 of the Constitution. Johnson v. Dixon, 501 S.W.2d 256, 1973 Ky. LEXIS 128 ( Ky. 1973 ).

46.Parades.

Where in defiance of judicial officers, who had ruled a Klu Klux Klan pre-election masked parade was a breach of the peace, a police officer, unmasked, led the parade with a banner with defiant wording, evidence to this effect presented question of guilt, as the assemblage was not in accord with this section. West v. Commonwealth, 208 Ky. 735 , 271 S.W. 1079, 1925 Ky. LEXIS 379 ( Ky. 1925 ).

47.Right to Bear Arms.

KRS 435.230 (repealed), prohibiting the carrying of concealed weapons, as amended in 1946 (Acts 1946, chapter 40) was constitutional under this section and section 51 of the Constitution. Reed v. Commonwealth, 306 Ky. 295 , 206 S.W.2d 949, 1947 Ky. LEXIS 998 ( Ky. 1947 ).

The District Court did not err in counting 1970 convictions against defendant for purposes of sentencing him under the Armed Career Criminal Act even though in 1970 the laws of Kentucky did not criminalize possession of a firearm by a felon and the Kentucky Constitution guaranteed citizens the right to bear arms. Kentucky does not restore civil rights to convicted felons by statute but provides that a prisoner’s civil rights may be restored by “an act of the governor.” Even if defendant may have been able to possess a firearm for some period of time following his 1970 convictions, such would not act as a restoration of civil rights within the meaning of 18 USCS § 921(a)(20). United States v. Warren, 973 F.2d 1304, 1992 U.S. App. LEXIS 20541 (6th Cir. Ky. 1992 ).

A federal statute, which prohibits the possession of firearms while subject to a domestic violence order, does not violate the state constitutional right to bear arms since such provision is trumped by the Supremacy Clause of the United States Constitution. United States v. Napier, 233 F.3d 394, 2000 FED App. 0397P, 2000 U.S. App. LEXIS 29531 (6th Cir. Ky. 2000 ).

KRS 527.040 , which prohibits convicted felons from possessing firearms, is not arbitrary or irrational and does not unduly infringe upon the right to bear arms which was reserved to the people through Ky. Const., § 1(7). Posey v. Commonwealth, 185 S.W.3d 170, 2006 Ky. LEXIS 53 (Ky.), cert. denied, 549 U.S. 842, 127 S. Ct. 85, 166 L. Ed. 2d 73, 2006 U.S. LEXIS 6540 (U.S. 2006).

48.Religious Convalescent Retirement Home.

Subjecting a private religious convalescent retirement home operated exclusively for the benefit of a religious order to regulations of the Cabinet for Human Resources would potentially cause excessive church/state entanglement. The Commonwealth did not establish an overriding and compelling interest of the highest order to justify infringement upon the religious order’s free exercise of religion with the imposition of these regulations. Cabinet for Human Resources Kentucky Health Facilities v. Provincial Convent of Good Shepherd, Inc., 701 S.W.2d 137, 1985 Ky. App. LEXIS 616 (Ky. Ct. App. 1985).

49.Equal Protection.

Section 59 of the Constitution is more than simply another way of restating the generalized language of the equal protection clause of the Fourteenth Amendment to the United States Constitution; this section and Const., §§ 2 and 3, which provide that the General Assembly is denied arbitrary power and shall treat all persons equally, suffice to embrace the equal protection clause to the Fourteenth Amendment. Tabler v. Wallace, 704 S.W.2d 179, 1985 Ky. LEXIS 291 ( Ky. 1985 ), cert. denied, 479 U.S. 822, 107 S. Ct. 89, 93 L. Ed. 2d 41, 1986 U.S. LEXIS 3436 (U.S. 1986).

Strip mining regulation which denies a due process hearing to an aggrieved party based solely on his financial inability to pay the penalties which he seeks to appeal is unconstitutional, in violation of the equal protection clauses of both the United States and Kentucky Constitutions. Franklin v. Natural Resources & Environmental Protection Cabinet, 799 S.W.2d 1, 1990 Ky. LEXIS 75 ( Ky. 1990 ).

“Zero tolerance” provisions of KRS 189A.010 , pertaining to underage drinking and driving, are rationally related to a legitimate state purpose and are based on a valid distinction; therefore, such provisions are valid under the equal protection clauses of the United States and Kentucky Constitutions and do not constitute special legislation in violation of Ky. Const., § 59. Commonwealth v. Howard, 969 S.W.2d 700, 1998 Ky. LEXIS 95 ( Ky. 1998 ).

There was no rational basis for the geographically-based distinction created by KRS 159.051 between students subject to losing their operator’s licenses under the statute and students precluded from the statute; thus, KRS 159.051 was unconstitutional. D.F. v. Codell, 127 S.W.3d 571, 2003 Ky. LEXIS 262 ( Ky. 2003 ).

When the Deputy sheriff merit board ordered that a deputy sheriff be reinstated with back pay, and the sheriff refused to comply with the order, the deputy’s equal protection claim that he was entitled to attorney’s fees in his action to enforce the order, on the theory that KRS 453.260(1) and (3) allowed recovery of such fees by a party prevailing in an action brought by the Commonwealth, had no merit because the case did not begin as a civil action brought by the Commonwealth, so KRS 453.260(1) and (3) were not implicated. Cherry v. Augustus, 245 S.W.3d 766, 2006 Ky. App. LEXIS 205 (Ky. Ct. App. 2006).

Defendant was not denied equal protection when the Commonwealth used a peremptory challenge to strike one of two African-Americans who remained in the jury pool after a third was struck for cause, where the struck juror stated that she knew several people who had been convicted and “done time” although they had not committed their alleged crimes. Rodgers v. Commonwealth, 285 S.W.3d 740, 2009 Ky. LEXIS 163 ( Ky. 2009 ).

Consensus procedure required by KRS 342.316 for proving the existence of coal workers’ pneumoconiosis, and the clear and convincing standard required to rebut such a consensus, violated the equal protection guarantees of U.S. Const. amend. XIV and Ky. Const. § 1-3 because there was no rational basis or substantial and justifiable reason for the disparate treatment of coal workers. Pneumoconiosis caused by exposure to coal dust was the same disease as pneumoconiosis caused by exposure to dust particles in other industries, yet coal workers faced different, higher standard-of-proof requirements than those other workers. Vision Mining, Inc. v. Gardner, 364 S.W.3d 455, 2011 Ky. LEXIS 177 ( Ky. 2011 ).

Employee's claim that Ky. Rev. Stat. Ann. § 342.732(1)(a)(7) violated equal protection was subject to rational basis review given that workers' compensation statutes concerned matters of social and economic policy. Ballou v. Enter. Mining Co, LLC, 512 S.W.3d 724, 2017 Ky. LEXIS 78 ( Ky. 2017 ).

Ky. Rev. Stat. Ann. § 342.732(1)(a)(7) did not violate equal protection because paying employees between the ages of 57 and 65 a monetary benefit that was not tied to retraining may have encouraged them to leave the coal mining industry, thus removing employees susceptible to more severe impairment from the work place, and as a result, treating retraining incentive benefits eligible employees differently was rationally related to the purpose of those benefits. Ballou v. Enter. Mining Co, LLC, 512 S.W.3d 724, 2017 Ky. LEXIS 78 ( Ky. 2017 ).

Court of Appeals of Kentucky holds Ky. Rev. Stat. Ann. § 342.7305(2) violates equal protection guarantees established in the Fourteenth Amendment to the United States Constitution and Ky. Const. §§ 1, 2, and 3. In particular, the Court of Appeals holds the Supreme Court of Kentucky’s decision in Vision Mining, Inc. v. Gardner, 364 S.W.3d 455 ( Ky. 2011 ), is dispositive. Napier v. Enter. Mining Co., 2018 Ky. App. LEXIS 108 (Ky. Ct. App. Mar. 23, 2018, sub. op., 2018 Ky. App. Unpub. LEXIS 986 (Ky. Ct. App. Mar. 23, 2018).

Ky. Rev. Stat. Ann. § 342.7305(2) offends equal protection guarantees by creating two separate and unequal subclasses of similarly situated hearing loss claimants: all of whom suffered work-related injuries severe enough to qualify for an impairment rating under the American Medical Association’s Guides to the Evaluation of Permanent Impairment, and all of whom endured equivalent permanent sensory loss, limited treatment modalities, diminution of daily activities, and occupational restrictions and preclusions, but some of whom are denied equal access to income benefits due to imposition of an arbitrary impairment rating threshold. Napier v. Enter. Mining Co., 2018 Ky. App. LEXIS 108 (Ky. Ct. App. Mar. 23, 2018, sub. op., 2018 Ky. App. Unpub. LEXIS 986 (Ky. Ct. App. Mar. 23, 2018).

50.— City Ordinance.

Ordinance which restricted the use of free standing signs within city limits by reducing their maximum allowable size did not violate plaintiffs’ right to equal protection under Const., §§ 1 or 3 since the plaintiffs did not allege that they belonged to a suspect class and the ordinance did not burden either plaintiffs’ fundamental right of free speech or fundamental right to just compensation for a taking of property. Wilson v. City of Louisville, 957 F. Supp. 948, 1997 U.S. Dist. LEXIS 2897 (W.D. Ky. 1997 ).

Where in amending ordinance which further restricted the use of small freestanding signs within city limits by reducing their maximum allowable size, the planning commission based its decision on two (2) separate public hearings in which the opponents and proponents of the amendments testified and the commission adopted findings that held that the proscribed portable signs were detrimental to both the aesthetics and safety of the city, the ordinance was related to the commissions goals of aesthetic improvement and safety and did not violate Const., §§ 1 or 3. Wilson v. City of Louisville, 957 F. Supp. 948, 1997 U.S. Dist. LEXIS 2897 (W.D. Ky. 1997 ).

51.— Voir Dire.

Although the striking of one (1) black juror for a racial reason is an equal protection violation, even where other black jurors are seated, and even when valid reasons for the striking of some black jurors are shown, that does not mean the striking of one (1) black juror can constitute a prima facie case if the racial reason is not apparent from statistical inference or other reasons; the defendant must show he is a member of a racial group, that the prosecutor used peremptory challenges to exclude members of that group, and that these facts and other circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race. Pottinger v. Warden, Northpoint Training Center, 716 F. Supp. 1005, 1989 U.S. Dist. LEXIS 7965 (W.D. Ky. 1989 ), aff'd, 899 F.2d 1222 (6th Cir. Ky. 1990 ).

A female defendant is not denied equal protection under the law when the Commonwealth peremptorily challenges female jurors, as the prohibitions concerning the utilization of peremptory challenges, as described in Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69, 1986 U.S. LEXIS 150 (1986) do not extend beyond racial discrimination. Hannan v. Commonwealth, 774 S.W.2d 462, 1989 Ky. App. LEXIS 92 (Ky. Ct. App. 1989).

KRS 342.316(3)(b)(4)(e) denied a workers’ compensation benefits claimant equal protection because it discriminated between him and a similarly-situated worker whose employer also submitted evidence of category 1 disease but whose claim was not subject to the second phase of the consensus process; KRS 342.316(3)(b)(4)(e) creates two classes of workers based solely on the amount of discrepancy between the worker’s and employer’s evidence, and because there is no rational or reasonable basis for such discrimination where the employer’s evidence effectively concedes the worker’s entitlement to a retraining incentive benefit. Cain v. Lodestar Energy, Inc., 302 S.W.3d 39, 2009 Ky. LEXIS 71 ( Ky. 2009 ).

49.5.—Workers’ Compensation.

Court of Appeals erred in holding that the hearing-loss statute violated the federal and state equal protection guarantees because a rational basis existed for treating hearing-loss claimants differently from other types of traumatic injury claimants inasmuch as the statute followed the approach in the Guides to the Evaluation of Permanent Impairment for not subtracting age-related hearing loss from an impairment rating, and the 8% threshold all but guaranteed that hearing-loss claimants who met the threshold had work-related, not just age-related, hearing loss. Teco/Perry Cty. Coal v. Feltner, 582 S.W.3d 42, 2019 Ky. LEXIS 210 ( Ky. 2019 ).

Court of Appeals erred in holding that the hearing-loss statute violated the federal and state equal protection guarantees because a rational basis existed for treating hearing-loss claimants differently from other types of traumatic injury claimants inasmuch as the statute followed the approach in the Guides to the Evaluation of Permanent Impairment for not subtracting age-related hearing loss from an impairment rating, and the 8% threshold all but guaranteed that hearing-loss claimants who met the threshold had work-related, not just age-related, hearing loss. Teco/Perry Cty. Coal v. Feltner, 582 S.W.3d 42, 2019 Ky. LEXIS 210 ( Ky. 2019 ).

Time limitation in Ky. Rev. Stat. Ann. § 342.750(6) did not violate the guarantees of equal protection under the federal and state constitutions because the four-year limit applied equally to all injured workers; substantial and justifiable reasons supported that classification and it was rationally related to a legitimate government purpose; and the employer was entitled to rely on the repose provision in Ky. Rev. Stat. Ann. § 342.750(6). Calloway Cty. Sheriff's Dep't v. Woodall, 607 S.W.3d 557, 2020 Ky. LEXIS 300 ( Ky. 2020 ).

Statutory amendment, which terminated workers’ compensation income benefits when the recipient reached the age of 70 or four years from the date of injury or last injurious exposure, whichever event occurred last, did not violate the Equal Protection Clause because the age classification was rationally related to the legitimate state interests of preventing a duplication of wage-loss protection programs and of promoting the solvency of the Kentucky workers’ compensation system. Cates v. Kroger, 2021 Ky. LEXIS 311 (Ky. Aug. 26, 2021).

52.Physical Specimens.

An order requiring a defendant, under indictment for sex offenses, to submit to the involuntary taking of physical specimens from his person did not violate a state constitutional “right of personal security.” Holbrook v. Knopf, 847 S.W.2d 52, 1992 Ky. LEXIS 191 ( Ky. 1992 ).

53.Taking of Property.
54.— Eminent Domain.

The Eminent Domain statutes make no provisions for the jury to consider bad faith or fraud; any allegation of bad faith or fraud would necessarily have to come before the judge who would decide if it affects the state’s right to take. Commonwealth v. Cooksey, 948 S.W.2d 122, 1997 Ky. App. LEXIS 60 (Ky. Ct. App. 1997).

In eminent domain proceedings a court will deny the right to take only where there has been gross abuse or manifest fraud. Commonwealth v. Cooksey, 948 S.W.2d 122, 1997 Ky. App. LEXIS 60 (Ky. Ct. App. 1997).

55.Curfew.

Plaintiffs were entitled to summary judgment on their action challenging a city ordinance that imposed a curfew on all persons on streets or public places within the city limits during the early morning hours, because the objective of reducing vandalism and disturbing noise late at night did not justify an ordinance that prohibited the casual citizen from wandering the streets; because the city had not used narrowly tailored means to accomplish its legitimate goals of protecting property and public safety, the ordinance was unconstitutional and unenforceable. Embry v. City of Cloverport, 2004 U.S. Dist. LEXIS 1079 (W.D. Ky. Jan. 22, 2004).

56.DNA Database.

Collection of juveniles’ DNA samples pursuant to KRS 17.174 did not violate the juveniles’ constitutional rights to privacy under U.S. Const. amend. XIV and Ky. Const. §§ 1, 2, and 11. Petitioner F v. Brown, 2008 Ky. App. LEXIS 42 (Ky. Ct. App. Feb. 22, 2008, sub. op., 2008 Ky. App. Unpub. LEXIS 532 (Ky. Ct. App. Feb. 22, 2008).

Cited:

Adams Express Co. v. Kentucky, 238 U.S. 190, 35 S. Ct. 824, 59 L. Ed. 1267, 1915 U.S. LEXIS 1613 (U.S. 1915); Avent Beattyville Coal Co. v. Commonwealth, 96 Ky. 218 , 28 S.W. 502, 16 Ky. L. Rptr. 414 , 1894 Ky. LEXIS 1 17 ( Ky. 1 894 ); Bullock v. Commonwealth, 96 Ky. 537 , 29 S.W. 341, 16 Ky. L. Rptr. 621 , 1895 Ky. LEXIS 1 14 ( Ky. 1 895); Trustees of Kentucky Female Orphan School v. Louisville, 100 Ky. 470 , 36 S.W. 921, 19 Ky. L. Rptr. 1091 , 19 Ky. L. Rptr. 1916 , 1896 Ky. LEXIS 130 ( Ky. 1896 ); Stone v. Pryor, 103 Ky. 645 , 45 S.W. 1053, 20 Ky. L. Rptr. 312 , 1898 Ky. LEXIS 112 ( Ky. 1898 ); Nelson v. State Board of Health, 108 Ky. 769 , 57 S.W. 501, 22 Ky. L. Rptr. 438 , 1900 Ky. LEXIS 100 ( Ky. 1900 ); Early v. Rains, 121 Ky. 439 , 106 Mo. App. 684, 89 S.W. 289, 28 Ky. L. Rptr. 415 , 1905 Ky. LEXIS 224 ( Ky. 1905 ); Commonwealth use of Madisonville v. Price, 123 Ky. 163 , 94 S.W. 32, 29 Ky. L. Rptr. 593 , 1906 Ky. LEXIS 137 ( Ky. 1906 ); Orr v. Kevil, 124 Ky. 720 , 100 S.W. 314, 30 Ky. L. Rptr. 761 , 30 Ky. L. Rptr. 946 , 1907 Ky. LEXIS 249 ( Ky. 1907 ); Ragland v. Anderson, 125 Ky. 141 , 100 S.W. 865, 30 Ky. L. Rptr. 1199 , 1907 Ky. LEXIS 273 ( Ky. 1907 ); Hager v. Walker, 128 Ky. 1, 107 S.W. 254, 32 Ky. L. Rptr. 748 , 1908 Ky. LEXIS 29 ( Ky. 1908 ); Booth's Ex'r v. Commonwealth, 130 Ky. 88 , 113 S.W. 61, 1908 Ky. LEXIS 247 ( Ky. 1908 ); Fiscal Court of Owen County v. F. & A. Cox Co., 132 Ky. 738 , 117 S.W. 296, 1909 Ky. LEXIS 151 ( Ky. 1909 ); Commonwealth v. Morton, 140 Ky. 628 , 131 S.W. 506, 1910 Ky. LEXIS 340 ( Ky. 1910 ); Adams Express Co. v. Commonwealth, 154 Ky. 462 , 157 S.W. 908, 1913 Ky. LEXIS 96 ( Ky. 1913 ); Hager v. Robinson, 154 Ky. 489 , 157 S.W. 1138, 1913 Ky. LEXIS 129 ( Ky. 1913 ); Hahn v. Newport, 175 Ky. 185 , 194 S.W. 114, 1917 Ky. LEXIS 304 ( Ky. 1917 ); Morton v. Sanders, 178 Ky. 836 , 200 S.W. 24, 1918 Ky. LEXIS 467 ( Ky. 1918 ); Trustees of Graded Free Colored Common Schools v. Trustees of Graded Free White Common Schools, 180 Ky. 574 , 203 S.W. 520, 1918 Ky. LEXIS 114 ( Ky. 1918 ); McDaniel v. Commonwealth, 181 Ky. 766 , 205 S.W. 915, 1918 Ky. LEXIS 612 (Ky. 1918); Bushart v. Fulton County, 183 Ky. 471 , 209 S.W. 499, 1919 Ky. LEXIS 50 4 ( Ky. 1919 ); Purcell v. Lexington, 186 Ky. 381 , 216 S.W. 599, 1919 Ky. LEXIS 226 ( Ky. 1919 ); Jewell Tabacco Warehouse Co. v. Kemper, 206 Ky. 667 , 268 S.W. 324, 1925 Ky. LEXIS 1023 ( Ky. 1925 ); Votteler v. Fields, 232 Ky. 322 , 23 S.W.2d 588, 1926 Ky. LEXIS 1 ( Ky. 1926 ); People's Transit Co. v. Louisville R. Co., 220 Ky. 728 , 295 S.W. 1055, 1927 Ky. LEXIS 631 ( Ky. 1927 ); Campbell v. Commonwealth, 229 Ky. 264 , 17 S.W.2d 227, 1929 Ky. LEXIS 756 ( Ky. 1929 ); Mansbach Scrap Iron Co. v. Ashland, 235 Ky. 265 , 30 S.W.2d 968, 1930 Ky. LEXIS 338 ( Ky. 1930 ); Stiglitz v. Schardien, 239 Ky. 799 , 40 S.W.2d 315, 1931 Ky. LEXIS 849 ( Ky. 1931 ); McCown v. Gose, 244 Ky. 402 , 51 S.W.2d 251, 1932 Ky. LEXIS 441 ( Ky. 1932 ); Nourse v. Russellville, 257 Ky. 525 , 78 S.W.2d 761, 1935 Ky. LEXIS 53 ( Ky. 1935 ); Smith v. Board of Education, 264 Ky. 150 , 94 S.W.2d 321, 1936 Ky. LEXIS 285 ( Ky. 1936 ); Spahn v. Stewart, 268 Ky. 97 , 103 S.W.2d 651, 1937 Ky. LEXIS 405 ( Ky. 1937 ); Eagle v. Cox, 268 Ky. 58 , 103 S.W.2d 682, 1937 Ky. LEXIS 411 ( Ky. 1937 ); Martin v. Nocero Ice Cream Co., 269 Ky. 151 , 106 S.W.2d 64, 1937 Ky. LEXIS 543 (Ky. 1937); Kerr v. Louisville, 271 Ky. 335 , 111 S.W.2d 1046, 1937 Ky. LEXIS 241 (Ky. 1937); Maryland Casualty Co. v. Newport Culvert Co., 277 Ky. 320 , 126 S.W.2d 468, 1939 Ky. LEXIS 657 ( Ky. 1939 ); Keller v. Kentucky Alcoholic Beverage Countrol Board, 279 Ky. 272 , 130 S.W.2d 821, 1939 Ky. LEXIS 29 3 ( Ky. 1939 ); Dumesnil v. Reeves, 283 Ky. 563 , 142 S.W.2d 132, 1940 Ky. LEXIS 370 ( Ky. 1940 ); Burrow v. Kapfhammer, 284 Ky. 753 , 145 S.W.2d 1067, 1940 Ky. LEXIS 577 ( Ky. 1940 ); Crain v. Louisville, 298 Ky. 421 , 182 S.W.2d 787, 1944 Ky. LEXIS 890 ( Ky. 1944 ); Commonwealth ex rel. Howard v. Imperial Oil Co., 304 Ky. 705 , 202 S.W.2d 413, 1947 Ky. LEXIS 719 ( Ky. 1947 ); Reeves v. Wright & Taylor, 310 Ky. 470 , 220 S.W.2d 1007, 1949 Ky. LEXIS 950 ( Ky. 1949 ); Duke v. Smith, 253 S.W.2d 242, 1952 Ky. LEXIS 1070 ( Ky. 1952 ); Standiford Civic Club v. Commonwealth, 289 S.W.2d 498, 1956 Ky. LEXIS 285 ( Ky. 1956 ); Holland v. Commonwealth, 294 S.W.2d 83, 1956 Ky. LEXIS 113 ( Ky. 1956 ); General Electric Co. v. American Buyers Cooperative, Inc., 316 S.W.2d 354, 1958 Ky. LEXIS 42 ( Ky. 1958 ); Gray v. Wingo, 423 S.W.2d 517, 1968 Ky. LEXIS 483 ( Ky. 1968 ); Branzburg v. Meigs, 503 S.W.2d 748, 1971 Ky. LEXIS 50 ( Ky. 1971 ); Glasson v. Tucker, 477 S.W.2d 168, 1972 Ky. LEXIS 354 ( Ky. 1972 ); Lee v. Commonwealth, 565 S.W.2d 634, 1978 Ky. App. LEXIS 511 (Ky. Ct. App. 1978); Haynes v. McConnell, 642 S.W.2d 902, 1982 Ky. App. LEXIS 272 (Ky. Ct. App. 1982); Senay v. Commonwealth, 650 S.W.2d 259, 1983 Ky. LEXIS 247 ( Ky. 1983 ); Kentucky Milk Marketing & Antimonopoly Com. v. Kroger Co., 691 S.W.2d 893, 1985 Ky. LEXIS 224 ( Ky. 1985 ); Grzyb v. Evans, 700 S.W.2d 399, 1985 Ky. LEXIS 279 ( Ky. 1985 ); Singleton v. Commonwealth, 740 S.W.2d 159, 1986 Ky. App. LEXIS 1484 (Ky. Ct. App. 1986); Yancey v. Carroll County, 876 F.2d 1238, 1989 U.S. App. LEXIS 4731 (6th Cir. Ky. 1989 ); Wal-Juice Bar, Inc. v. Elliott, 899 F.2d 1502, 1990 U.S. App. LEXIS 4877 (6th Cir. Ky. 1990 ); Commonwealth v. Foley, 798 S.W.2d 947, 1990 Ky. LEXIS 121 ( Ky. 1990 ); State Bd. for Elementary & Secondary Educ. v. Howard, 834 S.W.2d 657, 1992 Ky. LEXIS 85 ( Ky. 1992 ); Capital Area Right to Life v. Downtown Frankfort, 862 S.W.2d 297, 1993 Ky. LEXIS 97 ( Ky. 1993 ).

Notes to Unpublished Decisions

1.Equal Protection.

Unpublished decision: KRS § 635.020(4) is constitutional and does not violate the equal protection clause because there is a rational basis for the statutory classification, and the statute does not violate the fair hearing requirement of case law and due process; thus, the court rejected defendant’s claim to the contrary, given that a preliminary hearing was held after which the trial court found probable cause to believe that defendant was 14 years of age when defendant committed a felony. Caldwell v. Commonwealth, 133 S.W.3d 445, 2004 Ky. LEXIS 77 ( Ky. 2004 ).

Opinions of Attorney General.

An ordinance imposing a curfew on minors would be valid if it was designed only to prevent minors from loitering or remaining or tarrying unnecessarily in public places during late hours. OAG 65-687 .

A city would have no authority to adopt an ordinance prohibiting the carrying of unconcealed weapons. OAG 74-73 .

In prohibiting an officer of the bureau of state police (now Department of State Police) from running for political office, KRS 16.170 is a reasonable exercise of the legislative power to promote the efficiency and integrity of the state police in discharging its public duties, and, as such, the prohibition against running for office does not violate the freedom of speech. OAG 75-713 .

A person has a right to bear arms in his own defense as long as he does not conceal them. OAG 78-25 .

Because KRS 186.230(9) does not provide any essential protection to the rights of creditors, but does severely restrict the individual’s use and disposition of his property, it is an unconstitutional infringement upon the right to acquire and protect property and to be free from any unreasonable restraint upon the use of property in violation of this section and Const., § 2. OAG 79-445 .

A real estate commission regulation which requires a realtor to advertise property in her broker’s name would, when applied to a realtor acting as an executrix, be an unconstitutional restraint on the alienation of property under this section, Const., § 2 and the Fourteenth Amendment to the United States Constitution, since it forces the heirs to list the testamentary real property with a particular broker contrary to their desire to sell it privately. OAG 82-36 .

A statute or regulation restricting the distribution on public property of leaflets and handbills promoting commercial or business activities is constitutional. OAG 82-165 .

While there are no reported Kentucky cases dealing specifically with whether local governments may enact gun control legislation in view of the seventh paragraph of this section, the experiences of many other states seems to indicate that the manner of bearing arms is subject to reasonable regulation by local governments under their police power. OAG 82-237 .

A statement by a school board candidate that he prefers a certain individual to serve as superintendent is protected by the first amendment of the United States Constitution and Ky. Const., § 1. OAG 92-156 .

An amendment to KRS 311.571 or any other provision in KRS Chapter 311 requiring a physician to treat any individual covered by a certain type of insurance is not rationally related to the legitimate state end of that chapter which is to protect the public from improperly trained or educated physicians. However, such a requirement contained in another portion of the KRS may withstand constitutional scrutiny if a court could be convinced that the requirement is rationally related to some legitimate state end. OAG 93-28 .

House Bill 359 (Acts 1994, ch. 30, § 1; codified as KRS 527.100 ) which restricts possession of handguns by minors is constitutional under both the Second Amendment to the Constitution of the United States and Ky. Const., § 7. OAG 94-14 .

Since the geographic areas occupied by university campuses are quite limited and given the fact that one has no absolute right to carry arms on the property of another, it is reasonable to conclude that a university ban on deadly weapons and destructive devices is not clearly contrary to that right to bear arms which is secured by the Seventh Clause of this section. OAG 96-40 .

The fact that the legislature in enacting subsection (1) of KRS 527.070 has elected not to criminalize the carrying of certain weapons on the property of institutions of postsecondary or higher education does not preclude the governing boards of public institutions of higher education from otherwise controlling the possession of deadly weapons on their properties. OAG 96-40 .

While KRS 237.115(1) recognizes the right of colleges and universities to control possession of deadly weapons, generally, on their properties, KRS 237.115(1) limits other units of state government, city governments, county governments, urban-county governments, and charter county governments to prohibiting only the carrying of concealed deadly weapons. The Kentucky General Assembly, therefore, has recognized that the governing board of a college or university of this Commonwealth has a right to control the possession of all deadly weapons on its properties, regardless of whether the weapons are concealed or carried openly. OAG 96-40 .

While the Seventh Clause of this section secures a right to bear arms, it does not define the scope of that right in absolute terms. OAG 96-40 .

University policy prohibiting possession or storage of deadly weapons or destructive devices on any university campus or in any facility owned, leased or operated by the University does not violate the Seventh Clause of this section. The policy therefore is not void pursuant to Const., § 26. OAG 96-40 .

The General Assembly may permit referenda on local school curriculum; however, in doing so, the General Assembly must not violate equal protection provisions and special and local legislation provisions of the Kentucky Constitution. OAG 00-3 .

Research References and Practice Aids

Cross-References.

Carrying concealed weapon, KRS 527.020 .

Concealed weapons, penalty for carrying, KRS 527.020 .

Free speech, right of, Const., § 8.

Religious freedom, right of Const., § 5.

Kentucky Bench & Bar.

Wiseman & Royse, More than Just a Sanctuary: The Impact of RLUIPA on Megachurches in the United States. Vol. 73, No. 1, January 2009, Ky. Bench & Bar 15.

Dady & Robinson, Citizens United: Death Knell for Campaign Reform? Vol. 76, No. 4, July 2012, Ky. Bench & Bar 20.

Kentucky Law Journal.

Comments, Pendleton v. Pendleton: An Equal Right of Inheritance for the Illegitimate?, 65 Ky. L.J. 712 (1976-77).

Kentucky Law Survey: Savage, Insurance, 66 Ky. L.J. 631 (1977-1978).

Gormley and Hartman, The Kentucky Bill of Rights: A Bicentennial Celebration, 80 Ky. L.J. 1 (1990-91).

Weigand and Farr, Part of the Moving Stream: State Constitutional Law, Sodomy, and Beyond, 81 Ky. L.J. 449 (1992-93).

Roach, Rule of Men, 81 Ky. L.J. 483 (1992-93).

Fine, Beware That False First Step, 82 Ky. L.J. 731 (1993-94).

Article: A Dangerous Undertaking Indeed: Juvenile Humor, Raunchy Jokes, Obscene Materials and Bad Taste in Copyright, 98 Ky. L.J. 517 (2009/2010).

Northern Kentucky Law Review.

Comment, A Constitutional Analysis of Kentucky’s Noncommercial Bail Bondsmen System, 4 N. Ky. L. Rev. 121 (1977).

Comments, Separation of Church and State: Education and Religion in Kentucky, 6 N. Ky. L. Rev. 125 (1979).

Elder, Kentucky Criminal Libel Law and Public Officials — An Historical Anachronism, 8 N. Ky. L. Rev. 37 (1981).

Kazee, The Sherman Act and the Arbitrary Power Section of the Kentucky Constitution As Applied to Kentucky Fair Trade Laws, 20 N. Ky. L. Rev. 297 (1993).

Wintersheimer, State Constitutional Law, 20 N. Ky. L. Rev. 591 (1993).

Wintersheimer, State Constitutional Law Survey, 21 N. Ky. L. Rev. 257 (1994).

General Law Issue: Note: Doninger v. Niehoff: “Tinker is Online and in Trouble”, see 36 N. Ky. L. Rev. 185 (2009).

§ 2. Absolute and arbitrary power denied.

Absolute and arbitrary power over the lives, liberty and property of freemen exists nowhere in a republic, not even in the largest majority.

NOTES TO DECISIONS

Analysis

1.In General.

Law that required immediate payment of assessments averaging less than 25 cents an acre, and provided that where the assessments exceed that sum a delay of 30 days after notice should be deemed a consent to issuance of bonds, was invalid as authorizing the deprivation of property without due process contrary to this section, Const., § 14, and United States Const., Amend. 14. Williams v. Wedding, 165 Ky. 361 , 176 S.W. 1176, 1915 Ky. LEXIS 531 ( Ky. 19 15 ). See Henshaw v. Holt, 262 Ky. 19 , 89 S.W.2d 313, 1935 Ky. LEXIS 762 ( Ky. 1935 ).

Where legislature could properly prohibit certain acts entirely, it may provide that the acts cannot be done without the consent of named individuals or classes, and the fact that the acts may be done in one case and not in another, depending upon the whim of the individual or class having the consent power, does not render the law void as an unlawful delegation of legislative power. Whitaker v. Green River Coal Co., 276 Ky. 43 , 122 S.W.2d 1012, 1938 Ky. LEXIS 529 ( Ky. 1938 ).

The action of the government may not arbitrarily invade liberty or property rights under guise of police regulation. Bond Bros. v. Louisville & Jefferson County Metropolitan Sewer Dist., 307 Ky. 689 , 211 S.W.2d 867, 1948 Ky. LEXIS 805 ( Ky. 1948 ), cert. denied, 339 U.S. 943, 70 S. Ct. 796, 94 L. Ed. 1358, 1950 U.S. LEXIS 2086 (U.S. 1950).

This section is a curb on the legislative as well as on any other public body or public officer in the assertion or attempted exercise of political power. Sanitation Dist. of Jefferson County v. Louisville, 308 Ky. 368 , 213 S.W.2d 995, 1948 Ky. LEXIS 879 ( Ky. 1948 ); Kentucky Milk Marketing & Antimonopoly Com. v. Kroger Co., 691 S.W.2d 893, 1985 Ky. LEXIS 224 ( Ky. 1985 ).

Whatever is contrary to democratic ideals, customs and maxims is arbitrary. Likewise, whatever is essentially unjust and unequal or exceeds the reasonable and legitimate interests of the people is arbitrary. Sanitation Dist. of Jefferson County v. Louisville, 308 Ky. 368 , 213 S.W.2d 995, 1948 Ky. LEXIS 879 ( Ky. 1948 ).

Policy choices made by government, even if in reality they are political actions, do not violate this section as being arbitrary if they are not otherwise in conflict with constitutional principles. White v. Danville, 465 S.W.2d 67, 1971 Ky. LEXIS 433 ( Ky. 1971 ).

If a law’s provisions were reasonable, the law was not arbitrary. Jefferson County v. King, 479 S.W.2d 880, 1972 Ky. LEXIS 320 ( Ky. 1972 ).

Where the constitutionality of ordinance was not submitted to the trial court, the award of permanent injunction and writ of prohibition on the ground that the enforcement of the ordinance would be in violation of Const., §§ 2 and 19 was error. Bowling Green v. Gasoline Marketers, Inc., 514 S.W.2d 685, 1974 Ky. LEXIS 326 ( Ky. 1974 ).

In order to invoke the fundamental protections against the unfair administration of a law that is not itself unconstitutional the unequal treatment must amount to a conscious violation of the principle of uniformity. Standard Oil Co. v. Boone County Board of Supervisors, 562 S.W.2d 83, 1978 Ky. LEXIS 319 ( Ky. 1978 ).

Neither peculiar individual hardship (which might involve cost) nor difficulty in compliance is sufficient constitutional objection unless the public interest at stake is shown to have no reasonable relationship to the regulatory program. Boyle County Stockyard Co. v. Commonwealth, Dep't of Agriculture, 570 S.W.2d 650, 1978 Ky. App. LEXIS 578 (Ky. Ct. App. 1978).

Unequal enforcement of the law, if it rises to the level of conscious violation of the principle of uniformity, is prohibited by this section. Kentucky Milk Marketing & Antimonopoly Com. v. Kroger Co., 691 S.W.2d 893, 1985 Ky. LEXIS 224 ( Ky. 1985 ).

It is not a constitutional violation for ALJs or the Commissioner of the Workers’ Compensation Board not to have a set of guidelines or criteria by which to enforce KRS 342.0011(11). The 14th Amendment of the U.S. Constitution and the Prohibition Against Arbitrary Powers of Section Two of the Kentucky Constitution provide no right of action because all workers are treated the same; and, no due process rights are violated because workers are allowed a hearing at which they may testify, present evidence, and cross-examine physicians testifying for the defense and because they are afforded an exhaustive review process. Miller v. East Ky. Beverage/Pepsico, 951 S.W.2d 329, 1997 Ky. LEXIS 95 ( Ky. 1997 ).

A defendant convicted of rape and related charges was not deprived of due process under the Kentucky Constitution because of the Commonwealth’s negligent failure to collect as evidence a towel produced by the victim’s mother and allegedly containing the appellant’s semen. The Court applied the “bad faith” test of Arizona v. Youngblood, finding that the defendant failed to show “any ill motive or intention on the part of the Commonwealth in failing to collect the towel”; further, the fact that the jury had been instructed that they might infer that the towel evidence would be in favor of the defendant if such towel existed and the Commonwealth failed to collect it as evidence provided “more than the process due.” Collins v. Commonwealth, 951 S.W.2d 569, 1997 Ky. LEXIS 103 ( Ky. 1997 ).

2.Purpose.

This section has to do only with the exercise of arbitrary power over the lives, liberty, and property of individuals, and not with the handling of state property or funds. Guthrie v. Curlin, 263 S.W.2d 240, 1953 Ky. LEXIS 1238 (Ky. Ct. App. 1953).

This section was intended to protect citizens against actions which are essentially unjust, unequal and in excess of the legitimate interest of the people. Louisville Shopping Center, Inc. v. St. Matthews, 635 S.W.2d 307, 1982 Ky. LEXIS 266 ( Ky. 1982 ).

3.Scope.

This section is broad enough to embrace the traditional concepts of both due process of law and equal protection of the law. Kentucky Milk Marketing & Antimonopoly Com. v. Kroger Co., 691 S.W.2d 893, 1985 Ky. LEXIS 224 ( Ky. 1985 ).

The “cost of production” includes the cost of raw materials as well as the cost of processing; thus, a vegetable oil refining and distribution company was required to include the cost of the crude oil itself in its cost of production for the purposes of the revenue statute. Also, the fact that the cost-of-energy computation must be made on the basis of plant facilities at one (1) location does not serve to limit taxpayer’s production costs. Further, the statute does not violate the equal protection provisions of the Kentucky Constitution because a processor of bought materials is not similarly situated to a processor of materials owned by others or a processor of its own materials. Louisville Edible Oil Prods. v. Revenue Cabinet Commonwealth, 957 S.W.2d 272, 1997 Ky. App. LEXIS 81 (Ky. Ct. App. 1997).

Where a state employee sued the Kentucky Transportation Department, its former deputy secretary, and the state republican party pursuant to 42 USCS § 1983, alleging that defendants conspired in an illegal patronage system that adversely affected his employment and violated his federal and state constitutional rights and state law, claims against the republican party had to be dismissed because his complaint failed to identify any legal basis for his wrongful discharge claim and Ky. Const. § 2 did not apply to private actors. Gritton v. Disponett, 2006 U.S. Dist. LEXIS 63611 (E.D. Ky. Sept. 6, 2006), aff'd, 332 Fed. Appx. 232, 2009 FED App. 0372N, 2009 U.S. App. LEXIS 11343 (6th Cir. Ky. 2009 ).

As the Deer Feeding Ordinance gave persons of ordinary intelligence a reasonable opportunity to know what was prohibited, so they could act accordingly, it was not unconstitutionally vague. Sheffield v. City of Fort Thomas, 620 F.3d 596, 2010 FED App. 0285P, 2010 U.S. App. LEXIS 18437 (6th Cir. Ky. 2010 ).

State supreme court did not need to apply the Fifth Amendment, U.S. Const. amend. V, which was made applicable to the states through the Fourteenth Amendment, Ky. Const. § 2 involving exercises of power, or Ky. Const. § 11 regarding the right against self-incrimination in answering the question about whether the trial court could hold a revocation of probation hearing on new, unresolved charges. Under its supervisory authority based on Ky. Const. § 110, Ky. Const. § 115, and Ky. Const. § 116, the state supreme court could craft a rule recognizing that it was not necessary that a conviction occur before a probation revocation hearing could be held, but the trial court had to make a probationer aware that while the testimony in such a hearing could not be used as substantive evidence in a criminal proceeding, such testimony could be used for other purposes, such as impeachment. Barker v. Commonwealth, 379 S.W.3d 116, 2012 Ky. LEXIS 132 ( Ky. 2012 ).

Circuit court properly granted an inmate summary judgment in his action for declaratory and injunctive relief and held that the statute at issue was unconstitutional because the statute failed to describe the conduct that would subject the inmate to a close or maximum classification subsequently subjecting him to post-incarceration supervision, he was denied counsel in a “critical stage” in the prosecution, a hearing was not held, the statute failed to provide reasonably clear guidelines for the Department of Corrections (DOC) to follow, and allowed the DOC, an executive agency, to encroach on powers expressly enumerated to the judicial branch by issuing a criminal sentence resulting in incarceration without judicial review. Ky. Dep't of Corr. v. Mitchem, 586 S.W.3d 256, 2019 Ky. App. LEXIS 168 (Ky. Ct. App. 2019).

4.Administrative Law.

Provision of personnel commission act providing that members may remove director for cause was not violative of this section as the director is a ministerial officer. Kerr v. Louisville, 271 Ky. 335 , 111 S.W.2d 1046, 1937 Ky. LEXIS 241 ( Ky. 1937 ).

Veterans’ bonus law provision (KRS 40.120 ) that there would be no recourse to courts by claimant whose application was denied by administrator of such law was not invalid under this section, since claims were reviewable before review board, and since courts were always available for relief from arbitrary exercise of power. Watkins v. State Property & Bldgs. Com., 342 S.W.2d 511, 1960 Ky. LEXIS 94 ( Ky. 1960 ).

In interdepartmental dispute, personnel board could conduct hearing without scope thereof regulated by court, since any arbitrary decision by such board would be violative of this section and entitle administrative parties involved to judicial review, notwithstanding statutory mandate to contrary in KRS 18.270 (now see KRS 18A.095 ). Pritchett v. Marshall, 375 S.W.2d 253, 1963 Ky. LEXIS 187 ( Ky. 1963 ).

There was inherent right of appeal from orders of administrative agency where constitutional rights were involved, and within scope of such review was court’s determination whether such agency acted in excess of its statutory powers and thus in violation of this section. American Beauty Homes Corp. v. Louisville & Jefferson County Planning & Zoning Com., 379 S.W.2d 450, 1964 Ky. LEXIS 240 ( Ky. 1964 ), limited, Osborne v. Bullitt County Bd. of Educ., 415 S.W.2d 607, 1967 Ky. LEXIS 325 ( Ky. 1967 ), limited, Brady v. Pettit, 586 S.W.2d 29, 1979 Ky. LEXIS 280 ( Ky. 1979 ).

Failure to grant administrative relief to one carrying the burden is arbitrary if the record compels a contrary decision in light of substantial evidence therein. Bourbon County Bd. of Adjustment v. Currans, 873 S.W.2d 836, 1994 Ky. App. LEXIS 36 (Ky. Ct. App. 1994).

5.Administrative Hearings.

In a trial-type adjudicatory hearing before an administrative body, the right of cross-examination is required by due process of law. Kaelin v. Louisville, 643 S.W.2d 590, 1982 Ky. LEXIS 325 ( Ky. 1982 ).

This section was not compromised by prison adjustment committees disciplinary finding that defendant was guilty on basis of some evidence standard of review. Smith v. O'Dea, 939 S.W.2d 353, 1997 Ky. App. LEXIS 9 (Ky. Ct. App. 1997).

Bifurcated hearings regarding post-mining land use violations and the penalty assessed, did not satisfy fundamental due process by operating under a double standard of access to an administrative forum; thus, insofar as they exacted a monetary pre-requisite prior to the penalty phase hearing, both KRS 350.0301 and 405 KAR 7:092 were unconstitutional violations of due process, equal protection, and the ban against arbitrary state action contained in Ky. Const., § 2. Kentec Coal Co. v. Commonwealth, 2003 Ky. App. LEXIS 179 (Ky. Ct. App. July 25, 2003), aff'd, 177 S.W.3d 718, 2005 Ky. LEXIS 303 ( Ky. 2005 ).

Where the doctor’s application for reinstatement of the doctor’s license to practice medicine, which complied with KRS 311.607 , was denied by the Kentucky Board of Medical Licensure, the doctor was entitled to review under Ky. Const., § 2, regardless of whether there was a statutory procedure established for that purpose. Shamaeizadeh v. Ky. Bd. of Med. Licensure, 2006 Ky. App. LEXIS 20 (Ky. Ct. App. Jan. 27, 2006, sub. op., 2006 Ky. App. Unpub. LEXIS 1229 (Ky. Ct. App. Jan. 27, 2006).

Where a store was disqualified from participating in the WIC program, the Kentucky Cabinet for Health and Family Services irrationally limited the store’s due process rights under Ky. Const. § 2 by granting the store an opportunity for a hearing but not allowing review of the central issue in the case. The circuit court correctly held that the store was subject to a waiver from disqualification to avoid inadequate participant access. Commonwealth v. Gambrel's Food Mart, Inc., 2009 Ky. App. LEXIS 150 (Ky. Ct. App. Aug. 28, 2009).

In a case in which a company challenged a decision of the Kentucky Board of Housing, Buildings and Construction not to approve the company’s plumbing device, the company was not denied the minimum standards for procedural due process where the company had presented the device for approval in Kentucky on at least eleven occasions, and where the record indicated that the company was provided the opportunity to present evidence. An unfavorable outcome to the company did not equate to a denial of due process under the law. Studor, Inc. v. Commonwealth, 390 S.W.3d 145, 2012 Ky. App. LEXIS 70 (Ky. Ct. App. 2012).

Denial of unemployment benefits to the employee was inappropriate because he was not given the chance to meaningfully present his evidence and he was denied his meaningful opportunity to be heard since he was prohibited from collecting evidence to be used during his hearing. He was denied a subpoena and a continuance and that was an arbitrary denial of due process; the employee should have been granted his subpoena, or at least given a continuance in order to try to obtain another subpoena. Hicks v. Ky. Unemployment Ins. Comm'n, 390 S.W.3d 167, 2013 Ky. App. LEXIS 6 (Ky. Ct. App. 2013).

6.Administrative Agency.

An administrative agency is prohibited from acting in an arbitrary manner by this section. Bunch v. Personnel Bd., Commonwealth, 719 S.W.2d 8, 1986 Ky. App. LEXIS 1469 (Ky. Ct. App. 1986).

Where a Personnel Board’s findings of fact regarding criteria used for a hiring decision were supported by substantial evidence and the Board applied the correct rule of law to its factual findings, the final order of the Board was required to be upheld as this section prohibits the exercise of arbitrary power by an administrative agency and judicial review by the Court of Appeal of the administrative agency’s action did not find the Board’s decision to be arbitrary. Bowling v. Natural Resources & Envtl. Protection Cabinet, 891 S.W.2d 406, 1994 Ky. App. LEXIS 157 (Ky. Ct. App. 1994).

Unsuccessful state job applicant’s claim that the Personnel Board’s order to re-open the position because the statutory and regulatory procedure of KRS 18A.005 was not properly followed failed to provide her with the complete relief to which she was entitled which was promotion to the position, was without merit as there was substantial evidence to support the Board’s finding, therefore, it was not arbitrary under this section and must be affirmed. Bowling v. Natural Resources & Envtl. Protection Cabinet, 891 S.W.2d 406, 1994 Ky. App. LEXIS 157 (Ky. Ct. App. 1994).

Bid protestor has standing to challenge a contract award and an actual case or controversy exists in spite of the underlying contract’s expiration. Since the Kentucky Model Procurement Code (KMPC) and Kentucky law affords judicial review of administrative actions if an award is arbitrary, capricious, or made in violation of the KMPC, the matter is not moot despite the contract having expired. Lab. Corp. of Am. Holdings v. Rudolph, 184 S.W.3d 68, 2005 Ky. App. LEXIS 169 (Ky. Ct. App. 2005).

An administrative subpoena issued to a corporation pursuant to an investigation of securities fraud was not arbitrary administrative action when the inquiry was within the authority of the agency, the demand was not too indefinite, and the information sought was reasonably relevant. Target Oil & Gas Corp. v. Commonwealth, 2006 Ky. App. LEXIS 156 (Ky. Ct. App. May 26, 2006), review denied, ordered not published, 2007 Ky. LEXIS 47 (Ky. Feb. 14, 2007).

Circuit court erred in affirming a decision of the Kentucky Occupational Safety and Health Review Commission (Tribunal) because the Tribunal acted outside its role as a neutral administrative arbiter; the Tribunal relied on a regulation the Kentucky Occupational Safety and Health Standards Board never endorsed, and thus, it effectively expanded the kinds of complaints protected by the Kentucky Occupational Safety and Health Act which was a usurpation of the Board's policy-making authority. Estill County Fiscal Court v. Commonwealth, 2015 Ky. App. LEXIS 24 (Ky. Ct. App. Feb. 27, 2015, sub. op., 2015 Ky. App. Unpub. LEXIS 865 (Ky. Ct. App. Feb. 27, 2015).

7.Alcoholic Beverages.

The state cannot make the possession of intoxicating liquors for an innocent purpose unlawful, and an act prohibiting the keeping and possession of intoxicating liquors construed as applying to keeping and possession though not for purpose of sale is unconstitutional. Commonwealth v. Smith, 163 Ky. 227 , 173 S.W. 340, 1915 Ky. LEXIS 192 ( Ky. 1915 ) ( Ky. 1915 ).

The state under the police power may, through delegated agencies, vest wide discretion and regulatory authority in them concerning the traffic in alcoholic liquors, but such discretion may not be extended so as to infringe upon this section of the Constitution. Alcoholic Beverage Control Board v. Hall, 297 Ky. 432 , 180 S.W.2d 293, 1944 Ky. LEXIS 743 ( Ky. 1944 ).

KRS 244.080 , 244.380 (now repealed), 244.390 (now repealed), 244.400 (now repealed), 244.410 (now repealed) and 244.470 (now repealed), governing sale of alcoholic beverages, provide for a system of resale pricing that conflicts with the Sherman Antitrust Act (15 USCS § 1 et seq.) as that act has come to be construed by the United States Supreme Court, but do not violate Const., § 1 or this section. Alcoholic Beverage Control Bd. v. Taylor Drug Stores, Inc., 635 S.W.2d 319, 1982 Ky. LEXIS 269 ( Ky. 1982 ).

8.Annexation.

While recognizing right of city of first class to annex adjacent territory, law that required the city, on annexation of a sanitation district, to assume the revenue bond obligations of the district to be paid out of general funds of the city, which obligations would make city’s debt exceed limitation set out in Const., § 157, had effect of making annexation prohibitive, and therefore was unconstitutional as being arbitrary. Sanitation Dist. of Jefferson County v. Louisville, 308 Ky. 368 , 213 S.W.2d 995, 1948 Ky. LEXIS 879 ( Ky. 1948 ).

Where appellant in remonstrance alleged that inclusion of property within town boundaries was for the purpose of imposing taxation upon appellant for the benefit of the other residents of the town without any benefits to the appellant or the town except for additional revenue, inclusion of the property within the boundaries of the town under these conditions would deprive appellant of its property without just compensation in violation of Const., § 13 and would constitute an exercise of arbitrary power over the property of appellant in violation of Const., § 2. Chesapeake & O. R. Co. v. Silver Grove, 249 S.W.2d 520, 1952 Ky. LEXIS 817 ( Ky. 1952 ).

KRS 81.190 (now repealed), which provided for annexation by cities of third class, did not violate this section or Const., § 59. Yount v. Frankfort, 255 S.W.2d 632, 1953 Ky. LEXIS 676 ( Ky. 1953 ).

KRS 81A.510 does not violate this section of the Constitution. White v. Danville, 465 S.W.2d 67, 1971 Ky. LEXIS 433 ( Ky. 1971 ).

The annexation of property by a municipality is a political act within the exclusive control of the legislature and that body may enact any reasonable statutory procedures necessary in the premises. White v. Danville, 465 S.W.2d 67, 1971 Ky. LEXIS 433 ( Ky. 1971 ).

KRS 81A.420 , providing for annexation elections, enhances the rights of the people to overcome a decision which they view to be inimical to their interests, and clearly is not a violation of this section. Louisville Shopping Center, Inc. v. St. Matthews, 635 S.W.2d 307, 1982 Ky. LEXIS 266 ( Ky. 1982 ).

KRS 81A.420 , providing for annexation elections, does not grant power over the “liberty and property” of citizens, but simply enables a minimum of 75 percent of the voters in an affected area to nullify the actions of a city legislative body through the process of referendum. Louisville Shopping Center, Inc. v. St. Matthews, 635 S.W.2d 307, 1982 Ky. LEXIS 266 ( Ky. 1982 ).

9.Appointed Officers.

Law could constitutionally give governor power to remove his appointed officers for any sufficient cause at his discretion. Johnson v. Laffoon, 257 Ky. 156 , 77 S.W.2d 345, 1934 Ky. LEXIS 505 ( Ky. 1934 ).

10.Arbitration.

Home buyers did not demonstrate that KRS 417.045 et seq., regarding arbitration, violated the provisions of Ky. Const. § 2 by failing to provide for meaningful judicial review of arbitration decisions because KRS 417.160 and KRS 417.170 provided for such review, and the level of judicial review provided was consistent with the underlying purposes of arbitration generally, one of which was to avoid the time and expense involved with courtroom litigation. Dutschke v. Jim Russell Realtors, Inc., 281 S.W.3d 817, 2008 Ky. App. LEXIS 248 (Ky. Ct. App. 2008).

11.Attorneys.
12.— Disbarment.

Power of court to determine issue of disbarment of attorney was not arbitrary in violation of this section. In re Sparks, 267 Ky. 93 , 101 S.W.2d 194, 1936 Ky. LEXIS 757 ( Ky. 1936 ).

13.— Fees.

That part of former law which provided for allowance of reasonable attorney’s fees by woman or minor worker in civil action to recover wages due under minimum fair-wage order was not so lacking in justification as to constitute arbitrariness in violation of this section. Owens v. Clemons, 408 S.W.2d 642, 1966 Ky. LEXIS 131 ( Ky. 1966 ).

Commutation of future payments to pay a claimant’s attorney’s fee is not an exercise of arbitrary power and the procedure does not violate this section, nor does it deprive the employers or the special fund of property without due process of law as guaranteed by the Fourteenth Amendment, because when the claimant petitions the board to approve the attorney’s fee and to commute his final payment to a lump sum to pay this obligation, the end point of the indefinite award is fixed by life expectancy on the date of injury and the requisite payment may be commuted. Livingston County Farm Supply, Inc. v. Spencer, 593 S.W.2d 76, 1979 Ky. LEXIS 319 ( Ky. 1979 ).

14.Bonds and Bail.

Where the defendant had been released on bond but after a change of venue the judge of the court to which venue was changed, on his own motion, held a hearing and revoked the bond although there was evidence that the offense might have been committed in self-defense, the defendant was entitled to bail in a reasonable amount not to exceed the amount originally fixed. Marcum v. Broughton, 442 S.W.2d 307, 1969 Ky. LEXIS 263 ( Ky. 1969 ).

15.City Councils.

City council could not be conferred with any arbitrary powers. Slaughter v. Post, 214 Ky. 175 , 282 S.W. 1091, 1926 Ky. LEXIS 298 ( Ky. 1926 ).

A statute empowering city council to require contractor to perfect public work or modify cost should not be construed to give right to reject entire estimate, as such would be violative of this section. Earlington v. Powell, 226 Ky. 353 , 10 S.W.2d 1060, 1928 Ky. LEXIS 77 ( Ky. 1928 ).

16.Condemnation.

Court would not invoke its power against administrative agency’s discretion in determining what was in public interest, including what particular property was needed for valid public project, absent such clear and gross abuse of such discretion as would violate this section. Commonwealth Dep't of Highways v. Vandertoll, 388 S.W.2d 358, 1964 Ky. LEXIS 538 (Ky. Ct. App. 1964). See Commonwealth, Dep't of Highways v. Burchett, 367 S.W.2d 262, 1963 Ky. LEXIS 19 ( Ky. 1963 ).

The constitutional restrictions against the taking of property without compensation have no application to the situation where the highway department refuses to allow an abutting property owner to build a structure over the highway. Commonwealth, Dep't of Highways v. Trimble, 451 S.W.2d 641, 1969 Ky. LEXIS 18 ( Ky. 1969 ).

Where more land was condemned than was actually needed or used by the highway department but where the department claimed it might be needed at some future time, absent a showing that there was such a clear and gross abuse of discretion as to offend the guaranty of this section against the exercise of arbitrary power, the judicial power of government should not be invoked. Maze v. Commonwealth, Department of Highways, 461 S.W.2d 72, 1970 Ky. LEXIS 603 ( Ky. 1970 ).

City housing code provision was an unconstitutional violation of this section, where housing code mandated that if cost of repairs to building exceeded total value of building, building had to be demolished. Washington v. City of Winchester, 861 S.W.2d 125, 1993 Ky. App. LEXIS 122 (Ky. Ct. App. 1993).

A committee of judges designated to represent a sanitation district under KRS 220.035 did not act arbitrarily in violation of Ky. Const. § 2 when it approved the acquisition of land and raised a taxpayer’s rates because the committee heard extensive arguments from several interested parties prior to approving the acquisition of the property; thus, the evidence was overwhelming that the committee’s decision was based on a professional, impartial, and comprehensive analysis. Garriga v. Sanitation Dist. No. 1, 2003 Ky. App. LEXIS 305 (Ky. Ct. App. Dec. 5, 2003).

The judicial power of government should not be invoked against the discretion of an agency of the executive branch in determining what is in the public interest, including what particular property is needed in connection with a valid public project, unless there is such a clear and gross abuse of that discretion as to offend the guaranty of Ky. Const. § 2 against the exercise of arbitrary power; thus, a court was unable to conclude that a gross abuse or manifest fraud took place in respect to a sanitation district’s decision to condemn a certain amount of the property owners’ land. Garriga v. Sanitation Dist. No. 1, 2003 Ky. App. LEXIS 305 (Ky. Ct. App. Dec. 5, 2003).

In a condemnation proceeding, there was no showing of bad faith or arbitrariness under Ky. Const. § 2 because the record reflected that a utilities company properly studied alternate locations and that the Kentucky Public Service Commission rejected the proposed alternate locations submitted by several owners. Jent v. Ky. Utils. Co., 332 S.W.3d 102, 2010 Ky. App. LEXIS 76 (Ky. Ct. App. 2010).

17.Criminal Convictions.

Application of habitual criminal statute to defendant, who was second person convicted under it in his county, was not violative of this section. Lloyd v. Jones, 344 S.W.2d 618, 1961 Ky. LEXIS 242 ( Ky. 1961 ).

In a criminal prosecution, results from a DNA test establishing a likelihood of 99.74 percent that defendant was the father of the victim’s child was admissible, and it did not lessen the prosecution’s burden of proof in violation of Ky. Const. §§ 2, 11, although the test used a .5 prior probability statistic. Butcher v. Commonwealth, 96 S.W.3d 3, 2002 Ky. LEXIS 224 ( Ky. 2002 ), cert. denied, 540 U.S. 864, 124 S. Ct. 174, 157 L. Ed. 2d 116, 2003 U.S. LEXIS 6842 (U.S. 2003).

Verdict convicting defendant of drug trafficking was not unanimous in violation of Ky. Const. §§ 2, 7, 11 and RCr 9.82(1), because the trial court erroneously instructed the jury regarding intent to manufacture or dispense drugs, where there was insufficient evidence to establish this. Commonwealth v. Whitmore, 92 S.W.3d 76, 2002 Ky. LEXIS 231 ( Ky. 2002 ).

Defendant’s conviction for criminal mischief and disorderly conduct was affirmed as: (1) the police officers had a legal right to be on the premises as they were there in response to a 911 call of domestic violence, (2) there was ample evidence to indicate that the potential for domestic violence existed, (3) after locating defendant, the police acted reasonably in asking him to step out of an abandoned vehicle so that they could determine whether he was a threat, (4) defendant’s repeated refusals to cooperate, his reaching under the seat, and his desire to let loose his dog caused the officers to remove him forcibly from the vehicle, and (5) defendant was handcuffed and placed in the police cruiser because he was prohibiting the officers from carrying out their duty under KRS 403.785 , not because the officers were attempting to place him under arrest. Poe v. Commonwealth, 201 S.W.3d 37, 2006 Ky. App. LEXIS 258 (Ky. Ct. App. 2006).

In a murder case, discovery failures by the Commonwealth did not amount to arbitrary state action in violation of the Kentucky Constitution, and did not entitle defendant to dismissal of his indictment with prejudice; at any rate, defendant already received appropriate judicial remedies in the form of a mistrial and exclusion of evidence. Pettway v. Commonwealth, 470 S.W.3d 706, 2015 Ky. LEXIS 1862 ( Ky. 2015 ).

18.Double Jeopardy.

Second and separate prosecution for same offense of which defendant had been previously convicted or acquitted would amount to harassment and arbitrary treatment in violation of this section. Huff v. Commonwealth, 406 S.W.2d 831, 1966 Ky. LEXIS 219 ( Ky. 1966 ).

Trial court did not have the power to increase defendant’s sentence from 10 years in prison to 20 years in prison as a condition of granting defendant’s request for shock probation, and the state supreme court reversed the trial court’s judgment revoking defendant’s probation and sentencing defendant to 20 years in prison, and directed the trial court to enter a new order which reinstated the sentence of 10 years in prison which the trial court originally imposed. Stallworth v. Commonwealth, 102 S.W.3d 918, 2003 Ky. LEXIS 83 ( Ky. 2003 ).

19.Elections.

Legislatively created election commissioners could not be conferred with power of contest of elections under this section. Pratt v. Breckinridge, 112 Ky. 1 , 65 S.W. 136, 23 Ky. L. Rptr. 1356 , 1901 Ky. LEXIS 286 ( Ky. 1 901).

KRS 118.176 permits a Circuit Court to consider and adjudicate challenges to a candidate’s bona fides that are commenced prior to the general election, and had jurisdiction to determine that due to that candidate’s failure to meet the residency requirements of Ky. Const., § 32, she was disqualified. Stephenson v. Woodward, 182 S.W.3d 162, 2005 Ky. LEXIS 391 ( Ky. 2005 ).

20.Regulation of Property Use.

It was unconstitutionally arbitrary to provide by law that owners of two-thirds (2/3) of residential block property had to consent before one could establish filling station therein. McCown v. Gose, 244 Ky. 402 , 51 S.W.2d 251, 1932 Ky. LEXIS 441 ( Ky. 1932 ).

Where the administrative and legislative bodies of the city acted arbitrarily in rezoning a parcel of property, the ordinance effectuating the zoning was void. Fallon v. Baker, 455 S.W.2d 572, 1970 Ky. LEXIS 265 ( Ky. 1970 ).

A legislative body’s action on a zoning case will not be found “arbitrary” where the decision was made on the basis of appropriate findings of either the zoning commission or the legislative body which are supported by substantial evidence adduced at a trial-type hearing. Louisville v. McDonald, 470 S.W.2d 173, 1971 Ky. LEXIS 268 ( Ky. 1971 ).

This section’s guarantee against “arbitrary” action requires a legislative body, when acting on the recommendations of the zoning commission while considering an application for a zoning change, to fulfill due process requirements by acting on the basis of a record and on the basis of substantial evidence. Louisville v. McDonald, 470 S.W.2d 173, 1971 Ky. LEXIS 268 ( Ky. 1971 ).

Where a board of aldermen did not hold a trial-type hearing in an application for a zoning classification change, and where the adjudicative facts found by the zoning commission do not support the aldermen’s action, the board of aldermen acted arbitrarily in violation of this section. Louisville v. McDonald, 470 S.W.2d 173, 1971 Ky. LEXIS 268 ( Ky. 1971 ).

Naked and unconditional governmental power to compel a citizen to surrender his productive and attractive property to another citizen who would use it predominantly for his own private profit just because such alternative private use has been thought to be preferable in the subjective notion of governmental authorities would be repugnant to the constitutional protections whether they be cast in the fundamental fairness component of due process or in the prohibition against the exercise of arbitrary power. Owensboro v. McCormick, 581 S.W.2d 3, 1979 Ky. LEXIS 252 ( Ky. 1979 ).

Because a phrase in a county zoning ordinance was “may not” rather than “may,” no discretion was permitted, and the constitutionality of the ordinance was not implicated. Stringer v. Realty Unlimited, Inc., 97 S.W.3d 446, 2002 Ky. LEXIS 181 ( Ky. 2002 ).

21.Taking of Property.

Regulation requiring brucellosis tests for livestock at stockyards was not an unreasonable taking of property and did not violate this section. Boyle County Stockyard Co. v. Commonwealth, Dep't of Agriculture, 570 S.W.2d 650, 1978 Ky. App. LEXIS 578 (Ky. Ct. App. 1978).

22.Zoning Procedures.

Procedural due process is required in proceedings before a zoning board. The requisite procedural elements are a hearing, the taking and weighing of evidence, a finding of fact based upon an evaluation of the evidence and conclusions supported by substantial evidence. Kaelin v. Louisville, 643 S.W.2d 590, 1982 Ky. LEXIS 325 ( Ky. 1982 ).

Ordinances that prohibited subdivision of tracts of land into nonagricultural lots, for resale, and/or with the inclusion of one or more new streets, were not unconstitutionally vague; the ordinances provided fair notice and a mechanism for review by the Planning Commission, and the standards for its enforcement were sufficiently clear to avoid arbitrary and discriminatory application. Campbell County Fiscal Court v. Nash, 2008 Ky. App. LEXIS 373 (Ky. Ct. App. Dec. 12, 2008), review granted, transferred, 2010 Ky. LEXIS 40 (Ky. Jan. 13, 2010), aff'd in part and rev'd in part, 345 S.W.3d 811, 2011 Ky. LEXIS 57 ( Ky. 2011 ).

Since the ordinances adopted by the Planning Commission stated that any subdivider claiming to be aggrieved by any actions of the Planning Commission’s duly authorized representative may appeal such actions to the Planning Commission, and since KRS 100.347 provided for an appeal from the final action of the Planning Commission to the Circuit Court, a review mechanism was set in place; thus, on its face, the subdivision review process did not appear arbitrary or violative of due process as contemplated by Ky. Const. § 2. Campbell County Fiscal Court v. Nash, 2008 Ky. App. LEXIS 373 (Ky. Ct. App. Dec. 12, 2008), review granted, transferred, 2010 Ky. LEXIS 40 (Ky. Jan. 13, 2010), aff'd in part and rev'd in part, 345 S.W.3d 811, 2011 Ky. LEXIS 57 ( Ky. 2011 ).

23.Habeas Corpus.

In action for discharge under habeas corpus writ, conviction and imprisonment of defendant could not be held violative of this section where there was no appeal in which sufficiency of proof of guilt could have been reviewed, and no basis for argument that conviction was void. Hines v. Commonwealth, 357 S.W.2d 843, 1962 Ky. LEXIS 143 ( Ky. 1962 ).

24.Incompetency.

Under this section, person cannot be declared incompetent and have his property taken out of his hand or be placed in confinement without intervention of jury and jury verdict declaring such person to be non sui juris. Hager v. Pacific Mut. Life Ins. Co., 43 F. Supp. 22, 1942 U.S. Dist. LEXIS 3145 (D. Ky. 1942 ).

25.Liens.

KRS 376.280 providing for sale of automobile by lienor with newspaper notice of sale only was not violative of this section. Willis v. La Fayette-Phoenix Garage Co., 202 Ky. 554 , 260 S.W. 364, 1924 Ky. LEXIS 759 ( Ky. 1924 ).

26.Appropriations.

This section has no connection with the appropriation of public funds, and provision of appropriation bill giving governor power to determine use to which certain appropriations shall be put does not violate this section. Commonwealth ex rel. Meredith v. Johnson, 292 Ky. 288 , 166 S.W.2d 409, 1942 Ky. LEXIS 73 ( Ky. 1942 ).

27.Mines.

KRS 352.490 , relating to mining within twenty-five (25) feet of a property line, does not violate this section. Whitaker v. Green River Coal Co., 276 Ky. 43 , 122 S.W.2d 1012, 1938 Ky. LEXIS 529 ( Ky. 1938 ).

28.Licensing.

Where city ordinance of fourth-class city providing for licensing of places of entertainment where sandwiches and soft drinks were dispensed did not prescribe any standards or qualifications for applicants for licenses, city clerk had no authority, on instructions of mayor, to deny a license to an applicant, regardless of mayor’s commendable motives and regardless of bad reputation of applicant’s place of business. Pineville v. Helton, 300 Ky. 170 , 188 S.W.2d 101, 1945 Ky. LEXIS 509 ( Ky. 1945 ).

Minister’s license to perform marriages could be revoked by county court without violation of this section. Ladd v. Commonwealth, 313 Ky. 754 , 233 S.W.2d 517, 1950 Ky. LEXIS 975 ( Ky. 1950 ).

City ordinance requiring licensing of junkyards was unconstitutional under this section to extent it required mayor’s approval of location of junkyard without prescribing standards to guide him. Turner v. Peters, 327 S.W.2d 958, 1959 Ky. LEXIS 88 ( Ky. 1959 ).

Mere direction in automobile trailer park licensing ordinance that board of commissioners should take into consideration factors of topography and density of population and of location supplied no standard at all, and thus constituted effort to vest absolute and arbitrary power in such board in violation of this section. Schneider v. Wink, 350 S.W.2d 504, 1961 Ky. LEXIS 114 ( Ky. 1961 ).

Where city ordinance gave to the city council the uncontrolled discretion to grant or deny licenses for public dance halls, it was a grant of arbitrary power and consequently was invalid under Const., § 2. Bruner v. Danville, 394 S.W.2d 939, 1965 Ky. LEXIS 236 ( Ky. 1965 ).

A truck driver whose vehicle was impounded in accord with KRS 138.990(15), which required mandatory impoundment of vehicle when driver was found operating the vehicle without a Kentucky motor fuel user’s license (KYU), was not deprived of his due process rights, in that he had had statutory opportunities for a hearing and appeal when his license was originally revoked for failure to maintain a fuel tax bond. Transportation Cabinet v. Cassity, 912 S.W.2d 48, 1995 Ky. LEXIS 149 ( Ky. 1995 ), cert. denied, 517 U.S. 1209, 116 S. Ct. 1825, 134 L. Ed. 2d 931, 1996 U.S. LEXIS 3285 (U.S. 1996).

29.Motor Vehicles.

Law that required that taxi operator obtain bus operator certificate to operate his taxi as a bus was not arbitrary under this section. Crigger & Stepp v. Allen, 219 Ky. 254 , 292 S.W. 811, 1927 Ky. LEXIS 322 ( Ky. 1927 ).

Law could constitutionally give tax commission discretion in establishment of bond or insurance amounts to be furnished by taxi operators. Gross v. Commonwealth, 256 Ky. 19 , 75 S.W.2d 558, 1934 Ky. LEXIS 349 ( Ky. 19 34).

Law prohibiting operation of sound trucks at certain times and places was not unconstitutionally arbitrary. Brachey v. Maupin, 277 Ky. 467 , 126 S.W.2d 881, 1939 Ky. LEXIS 683 ( Ky. 1939 ).

The citizen’s right to use the highways for travel and for transporting his own property is a usual and ordinary right, but the right of a motor carrier to use the highways as a place of business is an unusual and extraordinary right, over which the state or the city has broad regulatory power. Bell Bros. Trucking Co. v. Kelley, 277 Ky. 781 , 127 S.W.2d 831, 1939 Ky. LEXIS 730 ( Ky. 1939 ).

It is not competent for the general assembly to make the mere failure to secure an operator’s license prima facie evidence of negligent driving, since such a violation of law has no evidentiary relation to or logical tendency to prove the fact of negligence. Tipton v. Estill Ice Co., 279 Ky. 793 , 132 S.W.2d 347, 1939 Ky. LEXIS 365 ( Ky. 1939 ).

The practice of setting up a roadblock for motor vehicles for the purpose of requiring the driver to display an operator’s license cannot be regarded as exercising arbitrary power over the lives, liberty and property of free men; therefore, evidence obtained entirely and solely by such procedure that driver did not have or display a driver’s license is admissible in prosecution for driving without a license. Commonwealth v. Mitchell, 355 S.W.2d 686, 1962 Ky. LEXIS 83 ( Ky. 1962 ).

A regulation by the Motor Vehicle Commission which restricted off-site sales of motor vehicles was properly ruled to be invalid for lack of any legitimate purpose and was further held to contain several key provisions which were individually unconstitutional. Motor Vehicle Com. v. Hertz Corp., 767 S.W.2d 1, 1989 Ky. App. LEXIS 39 (Ky. Ct. App. 1989).

A statute of the type of KRS 189A.010 is not just a road regulation, but a prohibition against an intoxicated person’s driving an automobile, which may be an act dangerous to the public and the driver wherever it may occur, consequently the individual’s right to privacy must yield to the demands of public and personal safety. Lynch v. Commonwealth, 902 S.W.2d 813, 1995 Ky. LEXIS 55 ( Ky. 1995 ).

The prohibition of KRS 189A.010 of operating or being in physical control of a vehicle anywhere in the state while under the influence of alcohol or other substance does not constitute an unreasonable restriction upon the conduct of an individual wherein it violates his constitutional right with regard to privacy and the right to do as he pleases on his own property, for it is not unbridled government decision making, as it it not a law restricting individual freedom without any relation to a valid public interest. Lynch v. Commonwealth, 902 S.W.2d 813, 1995 Ky. LEXIS 55 ( Ky. 1995 ).

“Zero tolerance” provisions of KRS 189A.010 , pertaining to underage drinking and driving, are rationally related to a legitimate state purpose and are based on a valid distinction; therefore, such provisions are valid under the equal protection clauses of the United States and Kentucky Constitutions and do not constitute special legislation in violation of Ky. Const., § 59. Commonwealth v. Howard, 969 S.W.2d 700, 1998 Ky. LEXIS 95 ( Ky. 1998 ).

30.Municipal Utilities.

KRS 96.171 to 96.188 , giving public utilities board all power to operate, maintain, improve and extend electric and water service and to fix rates thereof on behalf of third-class city, did not place arbitrary power in such board in violation of this section, since city had power of supervision and control over its appointed board. Settle v. Jones, 306 Ky. 9 , 206 S.W.2d 59, 1947 Ky. LEXIS 946 ( Ky. 1947 ).

It was not arbitrary or unreasonable for metropolitan sewer district to fix higher rates for county users than for city users, where sewer system had been paid for by the city taxpayers and city sewer bonds were still outstanding and would be paid from sinking fund raised from taxation of city property. Louisville & Jefferson County Metropolitan Sewer Dist. v. Joseph E. Seagram & Sons, Inc., 307 Ky. 413 , 211 S.W.2d 122, 1948 Ky. LEXIS 738 ( Ky. 1948 ).

Where, under statutory authority, sanitation district passed regulation requiring all abutting property to connect with public sewer system, even though they had private sewage facilities, regulation and statute were not unconstitutionally arbitrary or the taking of property without due process. Sanitation Dist. v. Campbell, 249 S.W.2d 767, 1952 Ky. LEXIS 860 ( Ky. 1952 ).

City ordinance regulating rates and charges for city water supplied to individuals was not violative of this section in treating owner of premises supplied as consumer and requiring such owner to pay water bill. Puckett v. Muldraugh, 403 S.W.2d 252, 1966 Ky. LEXIS 326 ( Ky. 1966 ).

The fluoridation of public water supplies does not violate Const., § 2 or KRS 315.020 . Graybeal v. McNevin, 439 S.W.2d 323, 1969 Ky. LEXIS 371 ( Ky. 1969 ).

When an existing facility begins to wear out or become obsolete or otherwise inadequate a metropolitan sewer district has the right to determine whether that facility is to be phased out of existence or be permitted to perpetuate its viability through necessary improvement or rehabilitation; such a decision in a given instance cannot be arbitrary, but neither must it be dictated by what is best for the financial interests of individual investors or speculators. Louisville & Jefferson County Metropolitan Sewer Dist. v. Douglass Hills Sanitation Facility, 592 S.W.2d 142, 1979 Ky. LEXIS 317 ( Ky. 1979 ).

Decision of a utility commission to select a higher bid for the construction of a new glass-lined water tank and to reject the lowest bid for the construction of a welded-steel, paint-lined water tank did not violate Ky. Const. § 2 because the decision was not arbitrary and was based upon multiple considerations, including the lower maintenance costs of glass-lined tanks. Laurel Constr. Co. v. Paintsville Util. Comm'n, 336 S.W.3d 903, 2010 Ky. App. LEXIS 40 (Ky. Ct. App. 2010).

31.Parole.

This section was not violated when welfare department which had custody of prisoner on parole took him into custody again for parole violation after his rearrest and acquittal on different charge. Mahan v. Buchanan, 310 Ky. 832 , 221 S.W.2d 945, 1949 Ky. LEXIS 1015 ( Ky. 1949 ).

Where the transfer of a prisoner from Kentucky to Louisiana was not in compliance with either the Interstate Agreement on Detainers or the Uniform Criminal Extradition Act, Kentucky forfeited its right to require prisoner to serve out the remainder of his twelve (12) year sentence. Yost v. Smith, 862 S.W.2d 852, 1993 Ky. LEXIS 83 ( Ky. 1993 ), overruled in part, Commonwealth v. Hale, 96 S.W.3d 24, 2003 Ky. LEXIS 15 ( Ky. 2003 ).

Parole hearing procedure, during which two parole board members were present by video link rather than in person, did not violate an inmate’s rights to procedural due process as secured by U.S. Const. amend. XIV, and Ky. Const. §§ 2, 11; the inmate was entitled to an opportunity to be heard, and a decision which stated the reason for denial, and these requirements were met. Pappas v. Ky. Parole Bd., 156 S.W.3d 303, 2004 Ky. App. LEXIS 199 (Ky. Ct. App. 2004).

Kentucky Parole Board’s decision to rescind its recommendation to parole an inmate did not violate Ky. Const., § 2, as the granting of parole is not a right but a matter of grace or gift to persons deemed eligible. Stewart v. Commonwealth, 153 S.W.3d 789, 2005 Ky. LEXIS 12 ( Ky. 2005 ).

32.Pension Funds.

KRS 95.540 , relating to rules for the government of the pension fund for police and firemen in cities of the second and third classes, did not violate this section. Miller v. Price, 282 Ky. 611 , 139 S.W.2d 450, 1940 Ky. LEXIS 224 ( Ky. 1940 ).

Where a city ordinance established a police pension fund which did not permit police who left the force to withdraw any part of their contribution unless they had served at least five (5) years and did not grant a vested right in such contribution, the ordinance did not run afoul of this section. Louisville Policemen's Retirement Fund v. Bryant, 556 S.W.2d 6, 1977 Ky. LEXIS 515 ( Ky. 1977 ).

Ky. Rev. Stat. Ann. § 61.598 is not arbitrary on its face because it affects employers similarly and only under specified circumstances, and it is reasonably designed to rehabilitate and preserve the pension system; the statute is meant to be a bloat-limiting balancing measure and is written to serve that purpose, and it authorizes the Kentucky Retirement Systems to pass regulations and take prescribed actions to assess increased actuarial costs attributable to employee compensation increases. City of Villa Hills v. Ky. Ret. Sys., 2021 Ky. LEXIS 301 (Ky. Aug. 26, 2021).

33.Public Safety and Welfare.

City ordinance prohibiting privy vault’s abutting public sewers and providing for removal of such vaults in existence after 60 days’ notice was not arbitrary power over property of others under this section. Treasy v. Louisville, 137 Ky. 289 , 125 S.W. 706, 1910 Ky. LEXIS 568 ( Ky. 1910 ).

Law which authorized Kentucky public service commission to fix telephone service schedules, services, rates, charges, practices, rules and regulations was not violative of this section. Smith v. Southern Bell Tel. & Tel. Co., 268 Ky. 421 , 104 S.W.2d 961, 1937 Ky. LEXIS 442 ( Ky. 1937 ).

Attempt of director of division of insurance to close a building unconditionally without opportunity for owners to remedy defects and hazards is, in the absence of emergency or imminent peril, in violation of Const., § 2, particularly when previous safety record was good. Foster v. Goodpaster, 290 Ky. 410 , 161 S.W.2d 626, 1942 Ky. LEXIS 418 ( Ky. 1942 ).

Minimum housing standards requiring inside bathroom with toilet, lavatory basin, and bathtub or shower, with connections to public sewer, hot and cold water lines and water heating facilities, were reasonable, within scope of police powers of city, and not violative of this section. Louisville v. Thompson, 339 S.W.2d 869, 1960 Ky. LEXIS 487 ( Ky. 1960 ).

The enjoyment of many personal rights and freedoms is subject to many kinds of restraints under state police power, which includes reasonable conditions as may be determined by governmental authorities to be essential to the safety, good order and public welfare of the people. Commonwealth v. Mitchell, 355 S.W.2d 686, 1962 Ky. LEXIS 83 ( Ky. 1962 ).

Possible financial loss claimed by fishermen as result of regulation prohibiting fishing and boating in dangerous 100-foot area was not such loss as contemplated by this section. Lovern v. Brown, 390 S.W.2d 448, 1965 Ky. LEXIS 350 ( Ky. 1965 ).

Regulations adopted by the county board of health providing for minimum standards for habitable housing were valid and reasonably necessary to protect the health and welfare of the inhabitants, where they provided for “due process of law” and they were within the framework of the enabling legislation. Louisville & Jefferson County Board of Health v. Haunz, 451 S.W.2d 407, 1969 Ky. LEXIS 16 ( Ky. 1969 ).

The provisions of city housing code and KRS 80.660 (now repealed) and 80.670 (now repealed) requiring compelled destruction when the cost of repair exceeds 50% of value were unconstitutional as contravening this section. Johnson v. Paducah, 512 S.W.2d 514, 1974 Ky. LEXIS 402 ( Ky. 1974 ).

Where a legislative body attempts to prohibit a certain business, the test to be applied to determine the constitutionality of the prohibition is whether it is necessary to prevent the infliction of a public injury. U. S. Mining & Exploration Natural Resources Co. v. Beattyville, 548 S.W.2d 833, 1977 Ky. LEXIS 402 ( Ky. 1977 ).

Members of the public need protection from arbitrary and capricious pricing decisions made by insurance companies, where such decisions constitute a business practice which is unfair or not in the public interest. Morgan v. Blue Cross & Blue Shield, Inc., 794 S.W.2d 629, 1989 Ky. LEXIS 116 ( Ky. 1989 ).

Regulations imposed on child care facilities due to the COVID-19 pandemic were not arbitrary under this section because the record amply reflected a rational basis for both sets of restrictions; the Limited Duration Centers were literally emergency childcare for healthcare workers and first responders in the very early days of the pandemic with regulations based on successful emergency childcare centers in other states, and when regular Kentucky childcare facilities generally reopened in June 2020, the group sizes and the tour restrictions for these centers were based on articulated public health reasons, i.e., efforts to limit the spread of disease as society in general was reopening. Beshear v. Acree, 615 S.W.3d 780, 2020 Ky. LEXIS 405 ( Ky. 2020 ).

Regulations imposed on restaurants due to the COVID-19 pandemic were not arbitrary under this section because the Cabinet for Health and Family Services’ broad police powers for dealing with contagious diseases, Ky. Rev. Stat. Ann. §§ 211.025 , 211.180(1)63 provided a rational basis for the face covering and the social distancing measure. Beshear v. Acree, 615 S.W.3d 780, 2020 Ky. LEXIS 405 ( Ky. 2020 ).

34.— Charitable Gaming.

KRS 238.530(3) is not unconstitutionally overbroad, since it does not prohibit any constitutionally protected conduct; nor is it void as an arbitrary exercise of power, since it is rationally related to valid state purposes. Commonwealth v. Louisville Atlantis Community/Adapt, 971 S.W.2d 810, 1997 Ky. App. LEXIS 86 (Ky. Ct. App. 1997).

Statement of intent in KRS 238.500 “to prevent the commercialization of charitable gaming” is not void for vagueness or overbreadth, since it does not prohibit any conduct; nor is it arbitrarily imposed, since the stated intention is a valid state purpose. Commonwealth v. Louisville Atlantis Community/Adapt, 971 S.W.2d 810, 1997 Ky. App. LEXIS 86 (Ky. Ct. App. 1997).

KRS 238.535 does not create arbitrary distinctions among charitable organizations, but is designed to further a state interest in insuring that only established charities operate charitable gaming facilities. Commonwealth v. Louisville Atlantis Community/Adapt, 971 S.W.2d 810, 1997 Ky. App. LEXIS 86 (Ky. Ct. App. 1997).

Provisions of KRS 238.540 requiring that charitable gaming be conducted at one location, that games be conducted by officers, members and employees of the charity without compensation, and that organizations not contract with others to manage or conduct gaming activities, further legitimate state interests and are not arbitrary; nor do they favor one charity over another or constitute impermissible “special legislation.” Commonwealth v. Louisville Atlantis Community/Adapt, 971 S.W.2d 810, 1997 Ky. App. LEXIS 86 (Ky. Ct. App. 1997).

Provisions of KRS 238.545 limiting charitable gaming to one session per week and limiting the amounts of individual prizes are rationally related to the state’s interest in preventing commercialization of charitable gaming and are therefore constitutional. Commonwealth v. Louisville Atlantis Community/Adapt, 971 S.W.2d 810, 1997 Ky. App. LEXIS 86 (Ky. Ct. App. 1997).

Provisions of KRS 238.550 requiring gross receipts from charitable gambling to be handled only by bona fide officers and employees of the charitable organization and limiting rent and other expenses are rationally related to the state’s interest in insuring that receipts charitable gaming are actually applied to charitable works and are therefore constitutional. Commonwealth v. Louisville Atlantis Community/Adapt, 971 S.W.2d 810, 1997 Ky. App. LEXIS 86 (Ky. Ct. App. 1997).

35.Railroads.

Law that provided for railroad commission hearing complaints against railroads and procedure therefor did not vest in railroad commission any absolute or arbitrary power over property of carriers. Louisville & N. R. Co. v. Greenbrier Distillery Co., 170 Ky. 775 , 187 S.W. 296, 1916 Ky. LEXIS 144 ( Ky. 1916 ).

36.Regulated Occupations.

A board refusing a teacher’s certificate without reasonable grounds therefor could be compelled by mandamus to grant it as a ministerial duty, this section forbidding arbitrary power in any state officer. Flynn v. Barnes, 156 Ky. 498 , 161 S.W. 523, 1913 Ky. LEXIS 468 ( Ky. 1913 ).

Tobacco warehouse act of 1924 (KRS 248.430 , 248.990 ) regulating sale of leaf tobacco at public auction did not violate this section. Jewell Tabacco Warehouse Co. v. Kemper, 206 Ky. 667 , 268 S.W. 324, 1925 Ky. LEXIS 1023 ( Ky. 1925 ).

Ordinance requiring consent by operators of junk shops, wrecking shops and pawnshops to inspection and search by police in order to obtain permit to operate such businesses was not unconstitutionally arbitrary. Mansbach Scrap Iron Co. v. Ashland, 235 Ky. 265 , 30 S.W.2d 968, 1930 Ky. LEXIS 338 ( Ky. 1930 ).

Restrictions or regulations with respect to lawful occupations must be of reasonable necessity and not arbitrary. Beacon Liquors v. Martin, 279 Ky. 468 , 131 S.W.2d 446, 1939 Ky. LEXIS 304 ( Ky. 1939 ).

An ordinance by a municipal corporation which regulates the hours during which businesses may be operated which does not directly or remotely tend to benefit the public health, morals, safety or the general welfare, when applied to restaurant, cannot be justified on the theory that it was passed under the police power. Jackson v. Murray-Reed-Slone & Co., 297 Ky. 1 , 178 S.W.2d 847, 1944 Ky. LEXIS 652 ( Ky. 1 944).

Though Const., §§ 1 and 2 guarantee to everyone the inalienable right to earn a livelihood, Const., § 181 expressly qualifies that right to the extent that it empowers cities, counties, towns and other municipal corporations to impose an occupational license tax on “trades, occupations and professions.” The quoted language covers all fields of employment and all means of earning a livelihood. Louisville v. Sebree, 308 Ky. 420 , 214 S.W.2d 248, 1948 Ky. LEXIS 907 ( Ky. 1948 ).

Occupational license fees could be imposed by board of education under KRS 160.531 to 160.534 (now repealed) without violation of this section. Sims v. Board of Education, 290 S.W.2d 491, 1956 Ky. LEXIS 329 ( Ky. 1956 ).

Junkyard act (KRS 177.905 to 177.951 , 177.990 ), requiring that junkyard be licensed only if effectively hidden from view of motorists by natural or artificial screening, and prohibiting junkyards within certain distance from roads unless permitted by highway department, served to effectuate authentic public purpose and thus did not violate this section. Jasper v. Commonwealth, 375 S.W.2d 709, 1964 Ky. LEXIS 431 ( Ky. 1964 ).

37.— Educational Personnel.

In suit by principal who was demoted to teacher, alleging that denial of his right to the pre-demotion hearing provided for administrators in KRS 161.765 deprived him of equal protection of the laws guaranteed by the Fourteenth Amendment of the U.S. Constitution and was an exercise of arbitrary power prohibited by this section, since “administrators” as defined by subsection (8) of KRS 161.720 as it existed prior to its 1992 amendment did not include “principals” as “administrators”, the court employing the “rational basis scrutiny” held that since there were several distinctions between “principals” and “administrators”, there was a rational basis for the exclusion of “principals” from the definition of “administrators” and thus such exclusion did violate the Fourteenth Amendment of the U.S. Constitution or this section. 902 S.W.2d 842, 1995 Ky. App. LEXIS 77 .

Since claim of principal who was demoted to teacher that he was denied the right to a pre-demotion hearing provided for in KRS 161.765 did not contain claim that his situation involved a suspect classification or a violation of a fundamental right, the rational basis scrutiny was the proper scrutiny to use in determining if principal was denied his right to equal protection of laws of if the denial was an exercise of arbitrary power. 902 S.W.2d 842, 1995 Ky. App. LEXIS 77 .

In a civil rights suit brought under 42 USCS § 1983 and Kentucky law, specifically §§ 1, 2 and 8 of the Kentucky Constitution and KRS 161.164 and 161.750(2), a teacher asserted that she was not rehired because of her union activities. Because hiring school district employees is an act essential to the function of the school district, Kentucky’s governmental immunity protected the school district and the school superintendent, in his official capacity, from liability for the teacher’s state-law claims. Smith v. Floyd County Bd. of Educ., 401 F. Supp. 2d 789, 2005 U.S. Dist. LEXIS 29220 (E.D. Ky. 2005 ).

In a civil rights suit brought under 42 USCS. § 1983 and Kentucky law, specifically §§ 1, 2 and 8 of the Kentucky Constitution and KRS 161.164 and 161.750(2), a teacher asserted that she was not rehired because of her union activities. For claims against the school superintendent in his individual capacity for hiring decisions in which he actually participated and or in which his role was unclear, the superintendent was not entitled to summary judgment; it had long been established that discharging or failing to hire or retain an employee because she engaged in protected speech was wrongful, so the superintendent was not entitled to qualified immunity from liability for those claims. Smith v. Floyd County Bd. of Educ., 401 F. Supp. 2d 789, 2005 U.S. Dist. LEXIS 29220 (E.D. Ky. 2005 ).

38.— Medical Malpractice Insurance.

The burden of collecting and handling the surcharge mentioned in KRS 304.40-330 (now repealed) does not violate the rights of medical malpractice insurers under this section. McGuffey v. Hall, 557 S.W.2d 401, 1977 Ky. LEXIS 533 ( Ky. 1977 ).

The requirements of KRS 304.40-330 (2) and (5) (now repealed) that all physicians and hospitals be members of and contribute to the patient compensation fund was not an arbitrary classification. McGuffey v. Hall, 557 S.W.2d 401, 1977 Ky. LEXIS 533 ( Ky. 1977 ).

The provision of KRS 304.40-330 (now repealed) requiring compulsory malpractice insurance constitutes an unjustifiable interference with the right to pursue a legitimate business or profession and is therefore unconstitutional under this section. McGuffey v. Hall, 557 S.W.2d 401, 1977 Ky. LEXIS 533 ( Ky. 1977 ).

The provisions of KRS 304.40-330 (6) (now repealed) limiting the number of members insured in the patient compensation fund were arbitrary and therefore violated this section. McGuffey v. Hall, 557 S.W.2d 401, 1977 Ky. LEXIS 533 ( Ky. 1977 ).

The provisions of former law establishing patients’ compensation fund, authorizing the commissioner to exempt certain physicians from the patient compensation fund and to fix the rate of surcharges, were not unconstitutional on their faces and, if properly implemented, would not have violated this section. McGuffey v. Hall, 557 S.W.2d 401, 1977 Ky. LEXIS 533 ( Ky. 1977 ).

39.Ordinances.

Where a city ordinance made the person in possession of premises responsible for an act not committed by him and which he had no intention to commit, and to a prosecution for which he could make no defense, it was in violation of this section. City of Campbellsburg v. Odewalt, 72 S.W. 314, 24 Ky. L. Rptr. 1717 , 24 Ky. L. Rptr. 1739 , 1903 Ky. LEXIS 469 (Ky. Ct. App. 1903).

Regulation imposing on business entities subject to the licensing ordinance the duty to register and give information as to items subject to the federal income tax but exempt from the occupational tax did not represent an unconstitutional exercise of absolute and arbitrary power. Commissioners of Sinking Fund v. Estate of Doyle, 573 S.W.2d 932, 1978 Ky. App. LEXIS 615 (Ky. Ct. App. 1978).

County’s ordinance banning smoking in public buildings was not an improper infringement upon property rights where the county considered lengthy public hearings at which evidence of the problems connected with the use of tobacco products and second-hand smoke were extensively discussed by all sides to the controversy and where evidence was presented that used objective sales data to the effect that “no adverse economic effect” or “improved business” was found. Lexington Fayette County Food & Bev. Ass'n v. Lexington-Fayette Urban County Gov't, 131 S.W.3d 745, 2004 Ky. LEXIS 94 ( Ky. 2004 ).

Where city residents argued that local ordinances aimed at controlling deer populations which included permitting the discharge of arrows within city limits violated their fundamental right to personal security, even if the ordinances may have increased the risk that a resident would have been exposed to private acts of violence, the residents could not prevail under a state-created-danger theory because there was no evidence that the ordinances subjected them to any special danger. Kelly v. City of Fort Thomas, 610 F. Supp. 2d 759, 2009 U.S. Dist. LEXIS 1146 (E.D. Ky. 2009 ), aff'd in part and rev'd in part, 620 F.3d 596, 2010 FED App. 0285P, 2010 U.S. App. LEXIS 18437 (6th Cir. Ky. 2010 ).

City ordinances were rationally related to the city’s public safety interest in reducing its urban deer population. The ordinances sought to reduce the deer population by decreasing their available food sources within the city limits, by permitting a person who complied with the accompanying restrictions to use a bow or crossbow to assist in culling the deer population, and by imposing field dressing requirements that were rationally related to the city’s public health concerns arising from a likely increase in deer kills within city limits. Kelly v. City of Fort Thomas, 610 F. Supp. 2d 759, 2009 U.S. Dist. LEXIS 1146 (E.D. Ky. 2009 ), aff'd in part and rev'd in part, 620 F.3d 596, 2010 FED App. 0285P, 2010 U.S. App. LEXIS 18437 (6th Cir. Ky. 2010 ).

40.— Adult Entertainment.

Local municipality’s ordinance requiring the licensing of adult entertainment businesses, prohibiting nudity, restricting operation hours, requiring a buffer zone, prohibiting touching and other restrictions, was constitutional upon application of an intermediate scrutiny level of review. The ordinance was content neutral and within the municipality’s police power to regulate the secondary effects of such establishments. Cam I, Inc. v. Louisville/Jefferson County Metro Gov't, 2007 Ky. App. LEXIS 370 (Ky. Ct. App. Oct. 5, 2007), aff'd in part and rev'd in part, 317 S.W.3d 23, 2010 Ky. LEXIS 101 ( Ky. 2010 ).

County ordinance’s “no touch” provision was unconstitutionally overbroad under the First Amendment because prohibiting all touching between adult establishment customers and entertainers, including benign, nonsexual touching, was substantially broader than necessary to achieve the county’s interest in combating prostitution and sexually transmitted diseases. An ordinance could easily be more narrowly tailored to prohibit sexual touching, as in a ban on touching during a performance or while in a state of nudity. Blue Movies, Inc. v. Louisville/Jefferson County Metro Gov't, 317 S.W.3d 23, 2010 Ky. LEXIS 101 ( Ky. 2010 ), cert. denied, 562 U.S. 1272, 131 S. Ct. 1617, 179 L. Ed. 2d 502, 2011 U.S. LEXIS 1991 (U.S. 2011).

41.— Building Regulations.

Ordinance which lays down no requirements to be followed and no general and uniform rule is invalid because it leaves the granting of such a thing as a building permit to the sometimes arbitrary discretion of municipal authorities. Colyer v. Somerset, 306 Ky. 797 , 208 S.W.2d 976, 1947 Ky. LEXIS 1025 ( Ky. 1947 ).

Where ordinance authorizing city council to grant building permits gave them the right to designate the distance from inside the sidewalk to the front of any building without laying down any general requirements to be followed, it was invalid under this section as it gave council an arbitrary power which they could exercise in a capricious manner. Colyer v. Somerset, 306 Ky. 797 , 208 S.W.2d 976, 1947 Ky. LEXIS 1025 ( Ky. 1947 ).

42.— Employees.

An ordinance restricting or prohibiting the outside employment of policemen or firemen is not arbitrary or unreasonable. Hopwood v. Paducah, 424 S.W.2d 134, 1968 Ky. LEXIS 447 ( Ky. 1968 ).

43.— Regulation of Streets.

City ordinance authorizing mayor and council to designate streets on which motor carriers may operate and places where freight depots may be established does not confer arbitrary power, since discretion must be exercised properly and fairly, and can be controlled by courts. Bell Bros. Trucking Co. v. Kelley, 277 Ky. 781 , 127 S.W.2d 831, 1939 Ky. LEXIS 730 ( Ky. 1939 ).

Plaintiffs were entitled to summary judgment on their action challenging a city ordinance that imposed a curfew on all persons on streets or public places within the city limits during the early morning hours, because the objective of reducing vandalism and disturbing noise late at night did not justify an ordinance that prohibited the casual citizen from wandering the streets; because the city had not used narrowly tailored means to accomplish its legitimate goals of protecting property and public safety, the ordinance was unconstitutional and unenforceable. Embry v. City of Cloverport, 2004 U.S. Dist. LEXIS 1079 (W.D. Ky. Jan. 22, 2004).

44.— Nuisance Abatement.

Board of commissioners could not by ordinance declare building to be a public nuisance, summarily eject occupants, take charge of building and contents, and lock same so as to deprive owner or his lessee of possession and use thereof. Corbin v. Hays, 244 Ky. 33 , 50 S.W.2d 31, 1932 Ky. LEXIS 379 ( Ky. 1932 ).

45.— Racial Discrimination.

Enactment of penal ordinance prohibiting discrimination in places of public accommodation did not violate rights guaranteed by this section or Const., §§ 1, 13, 25, and 242. Commonwealth v. Beasy, 386 S.W.2d 444, 1965 Ky. LEXIS 502 ( Ky. 1965 ).

46.— Regulation of Occupations.

City ordinance which regulated business hours and conduct of barber shops was void as being arbitrary in violation of this section. Louisville of Kuhn, 284 Ky. 684 , 145 S.W.2d 851, 1940 Ky. LEXIS 563 ( Ky. 1940 ).

47.— Wages and Salaries.

A reduction in salary by ordinance after election of the officer was arbitrary and unreasonable and the ordinance was subject to judicial attack as an abuse of discretion. Dennis v. Rich, 434 S.W.2d 632, 1968 Ky. LEXIS 237 ( Ky. 1968 ).

48.Police Power.

The regulation of the production and marketing of milk is a proper exercise of the police power, and the court will accept the legislature’s judgment as to classification and regulation, where there is room for reasonable difference of opinion. Pure Milk Producers & Distributors Ass'ns v. Morton, 276 Ky. 736 , 125 S.W.2d 216, 1939 Ky. LEXIS 575 ( Ky. 1939 ).

Billboard act (KRS 177.830 to 177.990 ) did not constitute arbitrary exercise of police power in violation of this section since it was within scope of public purpose and regulations imposed thereunder were not unreasonable. Moore v. Ward, 377 S.W.2d 881, 1964 Ky. LEXIS 505 ( Ky. 1964 ).

A municipal corporation may exercise its police power to restrict lawful businesses only if the regulation bears a reasonable relation to the promotion of health, safety, morality or other phase of the general welfare. U. S. Mining & Exploration Natural Resources Co. v. Beattyville, 548 S.W.2d 833, 1977 Ky. LEXIS 402 ( Ky. 1977 ).

The question of reasonableness of an exercise of the police power is one of degree and must be based on the facts of a particular case. Boyle County Stockyard Co. v. Commonwealth, Dep't of Agriculture, 570 S.W.2d 650, 1978 Ky. App. LEXIS 578 (Ky. Ct. App. 1978).

The enjoyment of many personal rights and freedoms is subject to many kinds of restraints under the police power of the state, which includes reasonable conditions as may be determined by governmental authority to be essential to public welfare, safety, and good order of the people. Lynch v. Commonwealth, 902 S.W.2d 813, 1995 Ky. LEXIS 55 ( Ky. 1995 ).

49.— Civil Penalties.

KRS 382.365 is not unconstitutional under the Due Process Clause and Ky. Const. § 2 in providing a severe penalty as a mortgagor has a duty to act reasonably and in good faith and the mortgagor’s rights flow from a contract, in which there is an implied covenant of good faith and fair dealing. Union Planters Bank, N.A. v. Hutson, 210 S.W.3d 163, 2006 Ky. App. LEXIS 170 (Ky. Ct. App. 2006).

50.— Nuisance Abatement.

State could not provide under its police power for forfeiture of all one’s property, though in no way connected with nuisance to be abated thereby. Rickman v. Commonwealth, 204 Ky. 848 , 265 S.W. 452, 1924 Ky. LEXIS 587 ( Ky. 1924 ).

The exercise of power delegated to an administrative board to abate nuisances is justified only upon a finding of conditions equivalent to a nuisance, that is, a condition injurious to life, health or morals. Kentucky Alcoholic Beverage Control Board v. Jacobs, 269 S.W.2d 189, 1954 Ky. LEXIS 951 ( Ky. 1954 ).

Blanket prohibition of the construction and operation of coal tipples is arbitrary and unconstitutional unless municipality can show that operation of a coal tipple is a nuisance per se. U. S. Mining & Exploration Natural Resources Co. v. Beattyville, 548 S.W.2d 833, 1977 Ky. LEXIS 402 ( Ky. 1977 ).

51.Sovereign Immunity.

Neither this section nor Const., §§ 14 and 26 were intended in any way to impinge on right of commonwealth by its general assembly under Const., § 231 to direct in what manner and in what courts suits might be brought against it. Wood v. Board of Education, 412 S.W.2d 877, 1967 Ky. LEXIS 445 ( Ky. 1967 ).

52.Right to Appeal.

An appeal is a matter of grace with the legislature, and act providing for establishment of roads is not unconstitutional in denying right of appeal and does not contravene this section. Gratzer v. Gertisen, 181 Ky. 626 , 205 S.W. 782, 1918 Ky. LEXIS 599 ( Ky. 1918 ).

An arbitrary dismissal of an appeal is equally offensive to the rights guaranteed by the United States Const., Amend. 14, and by Const., § 2, whether it results from an erroneous conclusion as to jurisdiction or from some other improper reason. Dryden v. Commonwealth, 435 S.W.2d 457, 1968 Ky. LEXIS 208 ( Ky. 1968 ).

If the affidavit of merits presents a purely legal as distinguished from a factual issue, the circuit court may deny the appeal upon resolving the legal question adversely to the appellant, in which event there would be no occasion for a de novo trial. Dryden v. Commonwealth, 435 S.W.2d 457, 1968 Ky. LEXIS 208 ( Ky. 1968 ).

If the circuit court denies an appeal from the juvenile court that presents a substantial factual issue or a question of constitutional law, its action in so doing is reviewable by the Court of Appeals. Dryden v. Commonwealth, 435 S.W.2d 457, 1968 Ky. LEXIS 208 ( Ky. 1968 ).

Although a trial court’s decision was not a final order, KRS 22A.020(4) allowed the Commonwealth to take an interlocutory appeal. Section 22A.020(4) did not violate Ky. Const. § 2 even though it was solely for the benefit of the Commonwealth as it furthered the Commonwealth’s legitimate interest in the administration of justice. Ballard v. Commonwealth, 320 S.W.3d 69, 2010 Ky. LEXIS 206 ( Ky. 2010 ).

53.Right to Vote.

Law that established two (2) general classes of voters who were eligible to vote by absentee ballot — federal employees and full-time students — did not violate this section. Hallahan v. Mittlebeeler, 373 S.W.2d 726, 1963 Ky. LEXIS 171 ( Ky. 1963 ).

54.Street Improvements.

An act conferring on a city the right to require construction of a new sidewalk did not violate this section. Lambert v. Thornberry, 153 Ky. 523 , 155 S.W. 1163, 1913 Ky. LEXIS 871 ( Ky. 1913 ).

Under statutes authorizing assessment for street improvement, arbitrary rejection of street improvement by commissioners was not authorized, but only power to require the contractor to correct the defects, or modify the estimate of costs as to the parts affected. Covington v. McKenna, 242 Ky. 452 , 46 S.W.2d 760, 1932 Ky. LEXIS 289 ( Ky. 1932 ).

55.Sunday Closing Laws.

Sunday closing law could not be enforced against department store where it was not enforced against other businesses such as grocery stores, pharmacies, and car washes. Ashland v. Heck's, Inc., 407 S.W.2d 421, 1966 Ky. LEXIS 164 ( Ky. 1966 ).

56.School Boards.

KRS 160.045 did not unconstitutionally deprive boards of education of their responsibility for school system and vest absolute and arbitrary power in property owners, since school boards exercised complete control as to whether territory should become part of city school district. Board of Education v. Board of Education, 250 S.W.2d 1017, 1952 Ky. LEXIS 897 ( Ky. 1952 ).

Public school students could be prohibited by law from frequenting certain food establishment during school hours without violating this section. Casey County Board of Education v. Luster, 282 S.W.2d 333, 1955 Ky. LEXIS 238 ( Ky. 1955 ).

The function of the courts is to decide a test of regularity and legality of a board’s action by the statutory law and by the constitutional protection against the exercise of arbitrary official power. Wells v. Board of Education, 289 S.W.2d 492, 1956 Ky. LEXIS 283 ( Ky. 1956 ).

In hearing by school board of dismissal charges against employee, such board was entitled to benefit of discovery and amendment to extent of frank answers to their questions to employee, on assumption that orderly procedure was both essential to and qualification of fairness guaranteed by this section. Board of Education v. Chattin, 376 S.W.2d 693, 1964 Ky. LEXIS 471 ( Ky. 1964 ), overruled, Osborne v. Bullitt County Bd. of Educ., 415 S.W.2d 607, 1967 Ky. LEXIS 325 ( Ky. 1967 ).

Without a showing of compelling governmental interest, the policy of a school board in showing preference for the employment of natives of its county constituted an inherently suspect classification, unconstitutionally discriminatory and preferential in violation of this section and sections 1 and 3 of the Constitution. Johnson v. Dixon, 501 S.W.2d 256, 1973 Ky. LEXIS 128 ( Ky. 1973 ).

It is clear from the language of this section that the prohibition against arbitrary action applies to all public bodies and all public officials, e.g., school boards and school superintendents, in their assertion or attempted exercise of political power. Board of Educ. v. Jayne, 812 S.W.2d 129, 1991 Ky. LEXIS 51 ( Ky. 1991 ).

Two (2) teachers who were transferred to other schools after failing to improve their pass/failure rate suffered no injury as they suffered no loss of pay, and no loss of fringe benefits, nor was there evidence indicating that the decision of the superintendent and the school board was based on racial discrimination, gender discrimination, religious discrimination, or political activity discrimination and therefore this section was not invoked. Board of Educ. v. Jayne, 812 S.W.2d 129, 1991 Ky. LEXIS 51 ( Ky. 1991 ).

Decision by school board to close school was a matter involving legislative facts; as a result, the standards involving adjudicative facts and quasi-judicial opinions, with regard to due process, did not apply. Coppage v. Ohio County Bd. of Educ., 860 S.W.2d 779, 1992 Ky. App. LEXIS 182 (Ky. Ct. App. 1992).

Claims for violations of KRS 433.150 and Ky. Const., § 2 and for various tort actions brought by plaintiff special needs student against defendant school board, superintendent, and principal were dismissed because the board and superintendent were entitled to governmental immunity and the principal was entitled to good faith immunity. M.W. v. Madison County Bd. of Educ., 262 F. Supp. 2d 737, 2003 U.S. Dist. LEXIS 8117 (E.D. Ky. 2003 ).

57.— Principals.

School principal’s decision to suspend student for possessing alcohol at a school-sponsored basketball game was not arbitrary because principal acted within his statutory powers, student was afforded procedural due process, and it was undisputed that there was evidence that student possessed alcohol. Pirschel v. Sorrell, 2 F. Supp. 2d 930, 1998 U.S. Dist. LEXIS 5503 (E.D. Ky. 1998 ).

58.Taxation.

Section 181 of the Constitution, when read in connection with this section and other sections in bill of rights, confers no power to prohibit or substantially prohibit legitimate business by taxation. Field Packing Co. v. Glenn, 5 F. Supp. 4, 1933 U.S. Dist. LEXIS 1127 (D. Ky.), modified, 290 U.S. 177, 54 S. Ct. 138, 78 L. Ed. 252, 1933 U.S. LEXIS 453 (U.S. 1933).

Retail merchants’ gross sales tax act was not violative of this section. Stewart Dry Goods Co. v. Lewis, 7 F. Supp. 438, 1933 U.S. Dist. LEXIS 1007 (D. Ky. 1933 ), rev'd, 294 U.S. 550, 55 S. Ct. 525, 79 L. Ed. 1054, 1935 U.S. LEXIS 57 (U.S. 1935).

Collection of additional tax for support of schools was not violative of this section. Larue v. Redmon, 168 Ky. 487 , 182 S.W. 622, 1916 Ky. LEXIS 583 ( Ky. 1916 ).

As law that imposed transfer tax on the exercise of a power of appointment derived from any disposition of property provided that even where appointment was not made by donee the tax applied, such law was not arbitrary and did not violate Const., § 2, for legislature had the right to tax beneficiaries coming into the possession and enjoyment of an estate at the death of the donee. Commonwealth v. Fidelity & Columbia Trust Co., 285 Ky. 1 , 146 S.W.2d 3, 1940 Ky. LEXIS 589 ( Ky. 1 940).

A municipal occupational tax on legitimate businesses must not be confiscatory. Southern Linen Supply Co. v. Hazard, 286 Ky. 626 , 151 S.W.2d 758, 1941 Ky. LEXIS 319 ( Ky. 1941 ).

Where tax is so high as to result in taxed occupation earning no profit, it is void. Lone Star Shows, Inc. v. Commissioner of Sinking Fund, 294 Ky. 114 , 171 S.W.2d 28, 1943 Ky. LEXIS 399 ( Ky. 1943 ).

Statute permitting utilities to pass a school tax, on their gross receipts, on to users was not unconstitutional as making an arbitrary classification because users paid by the quantity of utilities used rather than by their use of the schools. Lamar v. Board Education, 467 S.W.2d 143, 1971 Ky. LEXIS 359 ( Ky. 1971 ).

The exercise of the licensing power is subject to the requirements, established by this section and Ky. Const., § 171, that classifications for purposes of taxation of occupations and businesses must be based on reasonable distinctions, must be uniform as to the class and must not be excessive, arbitrary or prohibitive and these requirements apply whether the case involves an increase of a license fee or the initial imposition thereof. Baker v. Corbin, 556 S.W.2d 449, 1977 Ky. App. LEXIS 817 (Ky. Ct. App. 1977).

Where nothing in the record indicated that a 100 percent increase in the licensing fee for physicians and other professionals was so excessive as to be confiscatory or prohibitory, the court would not invalidate the ordinance imposing the tax. Baker v. Corbin, 556 S.W.2d 449, 1977 Ky. App. LEXIS 817 (Ky. Ct. App. 1977).

Where some leaseholders of land owned by an airport were being taxed, but those holding leasehold interest under industrial revenue bond issues were not, the sensible solution was to right the wrong by filing the omission rather than by extending the exemption to other leaseholders. Standard Oil Co. v. Boone County Board of Supervisors, 562 S.W.2d 83, 1978 Ky. LEXIS 319 ( Ky. 1978 ).

Imposition of a use tax upon purchase of materials used in the publication of a newspaper delivered free of charge was not in violation of the equal protection clause of the Fourteenth Amendment of the United States Constitution, Const., § 171, and this section. Box Photo & Engraving Co. v. Revenue Cabinet, 743 S.W.2d 849, 1987 Ky. App. LEXIS 557 (Ky. Ct. App. 1987).

The Revenue Cabinet’s failure to appeal a prior decision, against the constitutionality of inheritance taxes on survivorship property, did not create estoppel against appeal nor arbitrary and unconstitutionally unequal treatment of other parties in later litigation. Revenue Cabinet, Commonwealth v. Samani, 757 S.W.2d 199, 1988 Ky. App. LEXIS 64 (Ky. Ct. App. 1988).

Property Valuation Administrator’s (PVA) quadrennial plan, which divided the county into four (4) sections and undertook to physically examine the properties in one (1) section each year, complied with all relevant statutory requirements, and did not violate this section or Const., §§ 171 or 172. Revenue Cabinet v. Leary, 880 S.W.2d 878, 1994 Ky. App. LEXIS 8 (Ky. Ct. App. 1994).

It was a forbidden arbitrary and naked exercise of power for the Revenue Cabinet to apply a statute in a particular manner for 18 years and then, with no public hearing or any other logical reason, to announce an opposite interpretation of the statute. Revenue Cabinet v. Humana, Inc., 998 S.W.2d 494, 1998 Ky. App. LEXIS 89 (Ky. Ct. App. 1998).

59.— Assessments.

Law which empowered tax commission to equalize assessments did not authorize arbitrary assessments and was not violative of this section. Johnson v. Fordson Coal Co., 213 Ky. 445 , 281 S.W. 472, 1926 Ky. LEXIS 535 ( Ky. 1926 ), writ of error dismissed, 275 U.S. 494, 48 S. Ct. 82, 72 L. Ed. 391, 1927 U.S. LEXIS 310 (U.S. 1927).

Law providing that assessment of property for taxation to develop and support watershed conservancy district should be assessment made by county tax commissioners as equalized by state department of revenue was not violative of this section. Forrester v. Terry, 357 S.W.2d 308, 1962 Ky. LEXIS 114 ( Ky. 1962 ).

A county ordinance, which levied an occupational license fee on the gross compensation of all persons employed or self-employed within the county, did not constitute an arbitrary exercise of power and, therefore, did not violate this section, notwithstanding that a city within the county already imposed a similar occupational license fee and that the city license fee could not be offset against the county license fee. Preston v. Johnson County Fiscal Court, 27 S.W.3d 790, 2000 Ky. LEXIS 119 ( Ky. 2000 ).

60.— Reassessment.

KRS 132.660 , relating to reassessment of property for taxation by the department of revenue, does not confer arbitrary power on the department, since the provision that a reassessment may be made only when it appears that the original assessment was not in substantial compliance with law, or that the interest of the public necessitates a reassessment, furnishes a sufficient standard. Burke v. Department of Revenue, 293 Ky. 281 , 168 S.W.2d 997, 1943 Ky. LEXIS 607 ( Ky. 1943 ).

Where the property value administrator had begun her reevaluation by reassessing residential property, but intended to also reassess commercial and agricultural property as soon as possible, there was no unconstitutional, unequal treatment. Layson v. Brady, 576 S.W.2d 223, 1978 Ky. App. LEXIS 651 (Ky. Ct. App. 1978).

61.— Unreasonable Classification.

Law imposing license tax on retail merchants, graduated according to number of stores operated in state, was violative of this section as containing unreasonable and arbitrary classification of those engaged in trade or occupation of merchant for taxation purposes. Great Atlantic & Pacific Tea Co. v. Kentucky Tax Com., 278 Ky. 367 , 128 S.W.2d 581, 1939 Ky. LEXIS 406 ( Ky. 1939 ).

An ordinance taxing only motels and hotels and no other businesses is arbitrary in violation of this section and violates the uniformity principle of Const., § 171. Lexington v. Motel Developers, Inc., 465 S.W.2d 253, 1971 Ky. LEXIS 443 ( Ky. 1971 ).

Imposition of an additional business license tax on mobile home park owners, levying a flat fee for each space in addition to an annual business license tax, was an unconstitutional selection of one business to bear a heavier tax burden than others, because it was not founded on a rational distinction. Jahr v. Radcliff, 503 S.W.2d 743, 1973 Ky. LEXIS 48 ( Ky. 1973 ).

Because the distinction drawn by a city between professions and non-professions for purposes of imposing an occupational license fee was based upon the city’s need for funds, Flemingsburg, Ky., Ordinance 12-85-1 is arbitrary in violation of Ky. Const., § 2 and violates the uniformity principle of Ky. Const., § 171. Womack v. City of Flemingsburg, 102 S.W.3d 513, 2002 Ky. App. LEXIS 2352 (Ky. Ct. App. 2002).

62.— Reasonable Classification.

The reasonableness of distinctions made in taxing occupations and businesses is a matter within the discretion of the taxing body and where there was no evidence in the record to indicate the reason for a 100 percent increase in the licensing fee of physicians and other professions, the matter would be left within the discretion of the city taxing body since the ordinance in question did not create a special class for the purpose of imposing an additional tax burden. Baker v. Corbin, 556 S.W.2d 449, 1977 Ky. App. LEXIS 817 (Ky. Ct. App. 1977).

Where a city ordinance increased the licensing fees for physicians and other professions by 100 percent, but increased that for other occupations only from 20 percent to 40 percent, the requirement of uniformity was met since the tax was applied uniformly to all members of the class and was not required to be uniform as to all classes. Baker v. Corbin, 556 S.W.2d 449, 1977 Ky. App. LEXIS 817 (Ky. Ct. App. 1977).

Subdivision (4)(c) of KRS 140.300 did not violate this section or Const., §§ 171 and 172A because each class is taxed equally. Revenue Cabinet Commonwealth v. Estate of Marshall, 746 S.W.2d 408, 1988 Ky. App. LEXIS 39 (Ky. Ct. App. 1988).

Although classification by KRS 136.120 of municipal solid waste disposal facilities that dispose of waste by landfill singles out such facilities for disparate tax treatment and is not a perfect fit to the state’s objectives, such classification is reasonably related to the state’s goals for solid waste management and is therefore constitutional. Cooksey Bros. Disposal Co. v. Boyd County, 973 S.W.2d 64, 1997 Ky. App. LEXIS 132 (Ky. Ct. App. 1997), cert. denied, 525 U.S. 930, 119 S. Ct. 338, 142 L. Ed. 2d 279, 1998 U.S. LEXIS 6495 (U.S. 1998).

Since KRS 138.450(12)(a) and (f) further a legitimate governmental interest (stimulating the used car market in Kentucky) the distinction between a new car and a used car for the purpose of taxation was not an exercise of arbitrary power over property by the legislature. Accordingly, KRS 138.450(12)(a) and (f) do not violate Ky. Const. § 2. Fin. & Admin. Cabinet v. Beyer, 193 S.W.3d 755, 2006 Ky. App. LEXIS 152 (Ky. Ct. App. 2006).

63.— Penalties.

Statutory penalties of 100 percent were imposed against taxpayer failing to list intangible property for assessment, plus 20 percent if commonwealth brought action to collect tax and penalty and were not unconstitutionally arbitrary. Commonwealth v. St. Matthews Gas & Electric Shop, Inc., 252 S.W.2d 673, 1952 Ky. LEXIS 1011 ( Ky. 1952 ).

64.— Taxing Districts.

Former law which allowed relatively few petitioners in a county to establish a taxing district without exercise of discretion by local authorities, unconstitutionally violated this section and were invalid. Reid v. Allinder, 504 S.W.2d 706, 1974 Ky. LEXIS 828 ( Ky. 1974 ).

65.— Exemptions.

Discretionary power of commissioner of revenue to establish standards for passing qualifying examinations was not violative of this section. Department of Revenue ex rel. Allphin v. Turner, 260 S.W.2d 658, 1953 Ky. LEXIS 983 ( Ky. 1953 ).

The exemption of the University of Kentucky bookstore from the sales tax by the department of revenue is not arbitrary or resulting in a proscribed discrimination. Kennedy Book Store, Inc. v. Dep't of Revenue, 450 S.W.2d 524, 1970 Ky. LEXIS 453 (Ky.), cert. denied, 400 U.S. 824, 91 S. Ct. 46, 27 L. Ed. 2d 52, 1970 U.S. LEXIS 921 (U.S. 1970).

66.Urban Renewal.

Area city chose to place in urban renewal project was primarily, if not exclusively, matter of legislative discretion in which courts had no legitimate power to interfere unless such action was so unreasonable that it could be called arbitrary and in violation of this section. Watkins v. Fugazzi, 394 S.W.2d 594, 1965 Ky. LEXIS 194 ( Ky. 1965 ).

67.Wages and Salaries.

Law forbidding employers to deduct from wages of employees for their absence during four (4) hour period allowed for voting under Const., § 148 was unconstitutional as exercise of arbitrary power in violation of this section, and as depriving person of property without due process of law in violation of federal Constitution. Illinois C. R. Co. v. Commonwealth, 305 Ky. 632 , 204 S.W.2d 973, 1947 Ky. LEXIS 869 ( Ky. 1947 ), cert. denied, 334 U.S. 843, 68 S. Ct. 1511, 92 L. Ed. 1767, 1948 U.S. LEXIS 2004 (U.S. 1948).

The fact that commonwealth attorneys of first and second-class cities have a higher maximum salary than attorneys of other cities does not violate this section as there is a reasonable basis for the classification. Commonwealth ex rel. Hancock v. Davis, 521 S.W.2d 823, 1975 Ky. LEXIS 162 ( Ky. 1975 ).

Statutes requiring that municipalities pay their firefighters a minimum wage (KRS 337.275 ) and overtime pay (KRS 337.285 ) did not per se constitute the exercise by the legislature of absolute or arbitrary power over the municipalities. Kentucky Municipal League v. Commonwealth, 530 S.W.2d 198, 1975 Ky. LEXIS 48 ( Ky. 1975 ).

School board was immune from damages sought under KRS 446.070 for failure to deduct union dues from employees’ wages. Clevinger v. Board of Educ., 789 S.W.2d 5, 1990 Ky. LEXIS 40 ( Ky. 1990 ).

KRS 337.550 and 336.986(3) required the Kentucky Labor Cabinet (Cabinet) to bring a civil action to collect back wages and civil penalties, respectively, and thus, so long as the Cabinet followed the procedures set forth in the statutes, it could not deprive a contractor of property without court intervention; the Cabinet’s actions did not deprive the contractor of a protected property interest. TECO Mech. Contr., Inc. v. Commonwealth, 366 S.W.3d 386, 2012 Ky. LEXIS 23 ( Ky. 2012 ).

Contractor failed to establish that the Kentucky Labor Cabinet’s actions under the prevailing wage law deprived it of a property or liberty interest that was protected by the Due Process Clause; the impairment of the contractor’s future business opportunities was insufficient harm. TECO Mech. Contr., Inc. v. Commonwealth, 366 S.W.3d 386, 2012 Ky. LEXIS 23 ( Ky. 2012 ).

68.Workers’ Compensation.

Right of the legislature to declare what is public policy so as to regulate exercise of police power is limited only by consideration that its action may not be arbitrary, but must be rested upon tangible and reasonably clear public purpose to be served and to further interest of public welfare. Workers’ compensation acts are authorized under police power as furnishing sound public policy. Workmen's Compensation Board v. Abbott, 212 Ky. 123 , 278 S.W. 533, 1925 Ky. LEXIS 1088 ( Ky. 1925 ).

Subsection (2) of KRS 342.320 requiring employer to pay all or part of employee’s attorney fee violated due process clause of United States Constitution and this section. Burns v. Shepherd, 264 S.W.2d 685, 1953 Ky. App. LEXIS 141 ( Ky. 1953 ) (decision prior to 1966 amendment of KRS 342.320 ).

The interpretation of KRS 342.740 and 342.730 , prior to the 1976 amendment of the latter, to allow minimum weekly benefits for permanent, partial disability was not unconstitutional. Yocum v. Gantley, 566 S.W.2d 176, 1978 Ky. App. LEXIS 517 (Ky. Ct. App. 1978).

Commuting future payments to make a lump sum payment to the claimant himself does not violate this section or the Fourteenth Amendment; the fact that a person may not live out his life expectancy calculated as of the date of injury does not subject the fund and employer to an undue risk of overpayment. Livingston County Farm Supply, Inc. v. Spencer, 593 S.W.2d 76, 1979 Ky. LEXIS 319 ( Ky. 1979 ).

Future benefits payable pursuant to a workers’ compensation award to continue during disability may be commuted to a lump sum for the purpose of the payment of the fee of the attorney for the claimant or other benefit of the claimant without violating either the United States or Kentucky Constitutions. Livingston County Farm Supply, Inc. v. Spencer, 593 S.W.2d 76, 1979 Ky. LEXIS 319 ( Ky. 1979 ).

No arbitrary power is exercised over the rights of freemen in the requirement that a workers’ compensation claimant must adduce compelling evidence to overcome an adverse finding of the Workers’ Compensation Board; therefore, this section does not require the abolishment of the compelling evidence rule of KRS 342.285 . Tucker v. Tri-State Lawn & Garden, Inc., 708 S.W.2d 116, 1986 Ky. App. LEXIS 1056 (Ky. Ct. App. 1986).

KRS 342.732 furthers the goals of lessening economic drain on the Special Fund caused by claims due to coal mine employment, reducing workers’ compensation payments and providing an alternative to total disability with a specific purpose of retraining workers for other jobs so as to diminish the likelihood of their becoming totally disabled by coal miners’ pneumoconiosis later on; as such, it does not violate the employer’s right to due process under this section. Leeco, Inc. v. Asher, 919 S.W.2d 227, 1996 Ky. App. LEXIS 36 (Ky. Ct. App. 1996); Leeco, Inc. v. Brock, 919 S.W.2d 229, 1996 Ky. App. LEXIS 32 (Ky. Ct. App. 1996); Leeco, Inc. v. Asher, 919 S.W.2d 232, 1996 Ky. App. LEXIS 31 (Ky. Ct. App. 1996); Leeco, Inc. v. Caldwell, 919 S.W.2d 234, 1996 Ky. App. LEXIS 41 (Ky. Ct. App. 1996); Leeco, Inc. v. Sizemore, 919 S.W.2d 237, 1996 Ky. App. LEXIS 54 (Ky. Ct. App. 1996); Lost Mountain Mining v. Fields, 918 S.W.2d 232, 1996 Ky. App. LEXIS 28 (Ky. Ct. App. 1996); Kem Coal Co. v. Baker, 918 S.W.2d 236, 1996 Ky. App. LEXIS 37 (Ky. Ct. App. 1996).

The 1996 amendment to KRS 342.320(2)(a), which limits the maximum attorney fee for representing an injured worker before an arbitrator to $2,000.00, is not arbitrary and capricious and, therefore, does not violate Sections 2, 14, 19, 28, 29, 109, and 116 of the Kentucky Constitution or Article 1, § 10 of the United States Constitution.Daub v. Baker Concrete, 25 S.W.3d 124, 2000 Ky. LEXIS 91 ( Ky. 2000 ).

The 1996 amendment to KRS 342.320(2)(c), requiring an employer or its carrier to pay up to $5,000.00 of an injured worker’s attorney fees if the employer appeals an award by an arbitrator or administrative law judge and does not prevail, is unconstitutional as it violates procedural due process and is a pure act of arbitrary power that violates section 2 of the Kentucky Constitution. City of Louisville v. Slack, 39 S.W.3d 809, 2001 Ky. LEXIS 54 ( Ky. 2001 ).

To the extent that KRS 342.316 and the regulations promulgated thereunder preclude the use of additional x-ray evidence in rebuttal in a coal-worker’s pneumoconiosis claim, they violate the parties’ due-process rights under U.S. Const. amend. XIV and Ky. Const., § 2. Bartrum v. Hunter Excavating, 2004 Ky. App. LEXIS 156 (Ky. Ct. App. May 28, 2004), aff'd in part and rev'd in part, 168 S.W.3d 381, 2005 Ky. LEXIS 151 ( Ky. 2005 ).

When a carrier was denied a subrogation recovery under KRS 342.700(1) because the claimant’s legal fees exceeded the benefits paid by the carrier, this did not violate due process or Ky. Const. § 2. The plain language of the statute required such a result, since it was only fair to require employer/insurers benefiting from the fruits of a tort claim to share in its costs, even when a portion of the legal fees might be attributed to the recovery of damages such as pain and suffering that did not duplicate workers’ compensation benefits. AIK Selective Self-Insurance Fund v. Minton, 192 S.W.3d 415, 2006 Ky. LEXIS 130 ( Ky. 2006 ).

Consensus procedure under KRS 342.316 for coal workers’ pneumoconiosis claims did not violate equal protection under U.S. Const. amend. XIV and Ky. Const. §§ 1, 2, and 3 because the inherent differences in pneumoconiosis, which was slow to develop, and a traumatic injury provided a reasonable basis for the different statutory treatment for such workers’ compensation claims. KRS 342.316 (13) did not impose a greater burden of proof than on those workers who claimed benefits under KRS 342.730 as the presumption in the consensus procedure was a rebuttable one that could be overcome with clear and convincing evidence. Durham v. Peabody Coal Co., 272 S.W.3d 192, 2008 Ky. LEXIS 240 ( Ky. 2008 ), overruled in part, Vision Mining, Inc. v. Gardner, 364 S.W.3d 455, 2011 Ky. LEXIS 177 ( Ky. 2011 ).

Court of Appeals of Kentucky holds Ky. Rev. Stat. Ann. § 342.7305(2) violates equal protection guarantees established in the Fourteenth Amendment to the United States Constitution and Ky. Const. §§ 1, 2, and 3. In particular, the Court of Appeals holds the Supreme Court of Kentucky’s decision in Vision Mining, Inc. v. Gardner, 364 S.W.3d 455 ( Ky. 2011 ), is dispositive. Napier v. Enter. Mining Co., 2018 Ky. App. LEXIS 108 (Ky. Ct. App. Mar. 23, 2018, sub. op., 2018 Ky. App. Unpub. LEXIS 986 (Ky. Ct. App. Mar. 23, 2018).

Ky. Rev. Stat. Ann. § 342.7305(2) offends equal protection guarantees by creating two separate and unequal subclasses of similarly situated hearing loss claimants: all of whom suffered work-related injuries severe enough to qualify for an impairment rating under the American Medical Association’s Guides to the Evaluation of Permanent Impairment, and all of whom endured equivalent permanent sensory loss, limited treatment modalities, diminution of daily activities, and occupational restrictions and preclusions, but some of whom are denied equal access to income benefits due to imposition of an arbitrary impairment rating threshold. Napier v. Enter. Mining Co., 2018 Ky. App. LEXIS 108 (Ky. Ct. App. Mar. 23, 2018, sub. op., 2018 Ky. App. Unpub. LEXIS 986 (Ky. Ct. App. Mar. 23, 2018).

Court of Appeals erred in holding that the hearing-loss statute violated the federal and state equal protection guarantees because a rational basis existed for treating hearing-loss claimants differently from other types of traumatic injury claimants inasmuch as the statute followed the approach in the Guides to the Evaluation of Permanent Impairment for not subtracting age-related hearing loss from an impairment rating, and the 8% threshold all but guaranteed that hearing-loss claimants who met the threshold had work-related, not just age-related, hearing loss. Teco/Perry Cty. Coal v. Feltner, 582 S.W.3d 42, 2019 Ky. LEXIS 210 ( Ky. 2019 ).

Time limitation in Ky. Rev. Stat. Ann. § 342.750(6) did not violate the guarantees of equal protection under the federal and state constitutions because the four-year limit applied equally to all injured workers; substantial and justifiable reasons supported that classification and it was rationally related to a legitimate government purpose; and the employer was entitled to rely on the repose provision in Ky. Rev. Stat. Ann. § 342.750(6). Calloway Cty. Sheriff's Dep't v. Woodall, 607 S.W.3d 557, 2020 Ky. LEXIS 300 ( Ky. 2020 ).

Statutory amendment, which terminated workers’ compensation income benefits when the recipient reached the age of 70 or four years from the date of injury or last injurious exposure, whichever event occurred last, did not violate the Equal Protection Clause because the age classification was rationally related to the legitimate state interests of preventing a duplication of wage-loss protection programs and of promoting the solvency of the Kentucky workers’ compensation system. Cates v. Kroger, 2021 Ky. LEXIS 311 (Ky. Aug. 26, 2021).

69.— Coal Workers.

Dismissal of a motion to reopen a workers’ compensation claim arising from pneumoconiosis was proper because the worker had received no additional exposure to coal dust, and KRS 342.125(5)(a) required a worker seeking to reopen an award rendered under KRS 342.732 to make a preliminary showing that included a progression of pneumoconiosis, the development of respiratory impairment due the disease, and two additional years of continuous exposure to the hazards of the disease in Kentucky; the additional-exposure requirement was not arbitrary or capricious, and did not violate the Kentucky Constitution. Bolin v. T & T Mining, 231 S.W.3d 130, 2007 Ky. LEXIS 171 ( Ky. 2007 ).

70.State Departments.

KRS 132.380 , relating to the examination of candidates for the office of county tax commissioner, does not confer arbitrary power on the department of revenue, although the department has discretion as to the character of questions and the standards of grading. Burke v. Department of Revenue, 293 Ky. 281 , 168 S.W.2d 997, 1943 Ky. LEXIS 607 ( Ky. 1943 ).

71.— Revocation of Licenses.

Motor transportation department under authority of motor carrier act could suspend or revoke certificate of carrier who violated law, where such carrier had opportunity of hearing, trial, and appeal. Parrish v. Claxon Truck Lines, Inc., 286 S.W.2d 508, 1955 Ky. LEXIS 98 ( Ky. 1955 ).

72.— Employment of Personnel.

An act which authorized state departments to employ attorneys when the departments “deem it necessary” was not an unconstitutional delegation of legislative power, nor did it confer absolute and arbitrary power, nor was it an act whose taking effect depended upon the approval of any other authority than the general assembly. Johnson v. Commonwealth, 291 Ky. 829 , 165 S.W.2d 820, 1942 Ky. LEXIS 329 ( Ky. 1942 ).

73.— Dismissal of School Superintendent.

It was not arbitrary and capricious for Commissioner of Education to require acting county school superintendent to dismiss former school superintendent who had been reassigned as an at-will employee and against whom serious charges of financial misconduct had been brought while formerly employed as superintendent. Shepherd v. Boysen, 849 F. Supp. 1168, 1994 U.S. Dist. LEXIS 5330 (E.D. Ky. 1994 ).

74.Road Funds.

Although the allocation of the rural secondary road fund among all counties on the basis of rural population and rural road use, regardless of the amount of tax collected in each county, did not consider the over-all population of each county or the number of vehicles per mile of rural roads in accordance with the formulae for distribution of road funds prescribed by KRS 177.360 and 179.410 , the allocation was not unconstitutionally arbitrary under this section, nor did it constitute special or local legislation as prohibited by Const., §§ 59 and 60, since those formulae were not so directly related to the public purpose of improving and maintaining rural roads as to require their inclusion in the basis used for allocation; the basis used was reasonably related to the public purpose, and the resulting classification was reasonable. Jefferson County v. King, 479 S.W.2d 880, 1972 Ky. LEXIS 320 ( Ky. 1972 ).

75.— Classification of prisoners.

Department of Corrections policies and procedures regarding reclassification of inmates to less secure facilities did not create a liberty interest in such reassignment, where override system was also mandated by Department procedure; therefore defendant had no right to a minimum security classification. Mahoney v. Carter, 938 S.W.2d 575, 1997 Ky. LEXIS 6 ( Ky. 1997 ).

76.Franchises.

Where a section of a fiscal court resolution forbade owners of cable television stations to bid on any cable television district franchises other than those in the districts in which they were presently operating, there was no rational reason for such provision and it was unconstitutional under this section. Akers v. Floyd County Fiscal Court, 556 S.W.2d 146, 1977 Ky. LEXIS 518 ( Ky. 1977 ).

While a fiscal court has the right to make reasonable classifications relating to cable television service, there must be a reasonable relationship between the resolution and the purpose to be accomplished and the resolution must tend toward the accomplishment or promotion of public safety, health, peace, good order or morals. Akers v. Floyd County Fiscal Court, 556 S.W.2d 146, 1977 Ky. LEXIS 518 ( Ky. 1977 ).

77.Inheritance.

Former law providing that a bastard should inherit only from his mother was unconstitutional under this section since the state has no legitimate interest in unjustly prohibiting an illegitimate child from inheriting from its father simply because it was born out of wedlock. Rudolph v. Rudolph, 556 S.W.2d 152, 1977 Ky. App. LEXIS 806 (Ky. Ct. App. 1977).

78.Public Employees.

So long as it is not based upon a constitutionally impermissible reason, a decision to terminate the employment of a public officer or employee does not raise an issue under this section. Bowlin v. Thomas, 548 S.W.2d 515, 1977 Ky. App. LEXIS 654 (Ky. Ct. App. 1977).

The denial of the employee’s rights to seek review of his discharge before the personnel board was arbitrary, where the employee was required to resign from the part-time “status” position to be reappointed the next day to the full-time position, there was no competition for the position when the employee’s classification was changed, and the employee was working full-time hours and the reclassification was simply a change “on the books” to reflect that. Bunch v. Personnel Bd., Commonwealth, 719 S.W.2d 8, 1986 Ky. App. LEXIS 1469 (Ky. Ct. App. 1986).

Defendants were entitled to summary judgment on civil rights claims asserted by deputy sheriff who was discharged after he was convicted of hindering prosecution and official misconduct; the deputy’s claim under Ky. Const., § 2 failed as a matter of law because the deputy failed to demonstrate that defendants’ actions were in any way arbitrary or capricious. Humphrey v. Scott County Fiscal Court, 2005 U.S. Dist. LEXIS 32362 (E.D. Ky. Dec. 9, 2005), aff'd, 211 Fed. Appx. 390, 2006 FED App. 0861N, 2006 U.S. App. LEXIS 29193 (6th Cir. Ky. 2006 ).

Defendants were entitled to summary judgment on civil rights claims asserted by deputy sheriff who was discharged after he was convicted of hindering prosecution and official misconduct; the deputy’s claim under Ky. Const. § 2 failed as a matter of law because the deputy failed to demonstrate that defendants’ actions were in any way arbitrary or capricious. Humphrey v. Scott County Fiscal Court, 2005 U.S. Dist. LEXIS 32362 (E.D. Ky. Dec. 9, 2005), aff'd, 211 Fed. Appx. 390, 2006 FED App. 0861N, 2006 U.S. App. LEXIS 29193 (6th Cir. Ky. 2006 ).

In a case arising out of the death of a female inmate while she was incarcerated in a county jail, the appellate court was unable to discern non-arbitrary reason for applying a jail policy requiring an inmate to be moved to the general population within four hours of arrival only to male inmates; based on its determinations, the circuit court would be able to determine whether the defense that the decision when to move female inmates from holding cells to the general population was a discretionary act. Coleman v. Smith, 405 S.W.3d 487, 2012 Ky. App. LEXIS 186 (Ky. Ct. App. 2012).

State law enforcement officer was no longer entitled to a pretermination hearing when he was reclassified as a state police employee rather than an executive branch employee; thus, the denial of such a hearing was not arbitrary action. Dep't of Ky. State Police v. Garland, 2013 Ky. App. LEXIS 118 (Ky. Ct. App. Aug. 2, 2013), review denied, ordered not published, 2014 Ky. LEXIS 269 (Ky. June 11, 2014).

Circuit court properly denied a university's motions to dismiss actions filed by two employees after they were denied long-term disability (LTD) benefits because the employees had a property interest as beneficiaries of the LTD trust which could not be arbitrarily denied by the university, the court had the power and duty to grant injunctive relief that would enjoin the university to direct the trustee to grant such benefits under its LTD program, whatever immunity the university had as a state agency did not preclude a declaratory judgment action based on allegations that it violated the state constitution when it denied the employees benefits, and the university's immunity did not, as a matter of law, preclude injunctive relief. Univ. of Ky. v. Davis, 551 S.W.3d 443, 2017 Ky. App. LEXIS 516 (Ky. Ct. App. 2017).

79.Venue.

Divorce venue statute requirement under KRS 452.470 that venue is in home county of the wife if she has an actual residence in the state, and in the county of the husband if she does not, is unconstitutional under the equal protection clause of the Fourteenth Amendment of the United States Constitution since a gender-based venue does not serve important governmental objectives and is not substantially related to the achievement of those objectives, and under this section since the treatment of litigants under KRS 452.470 is patently unequal, arbitrary and unjust. Hummeldorf v. Hummeldorf, 616 S.W.2d 794, 1981 Ky. App. LEXIS 242 (Ky. Ct. App. 1981).

80.Milk Marketing Law.

The Kentucky Milk Marketing Law, on its face, is violative of this section. The statutory purpose of the Law is to prevent monopolies and unfair practices in the sale of milk and milk products. The Law is in reality and in practice not an anti-monopoly statute, but is rather a minimum mark-up law. An enactment of such a nature is an arbitrary exercise of power by the General Assembly over the lives and property of free men. Kentucky Milk Marketing & Antimonopoly Com. v. Kroger Co., 691 S.W.2d 893, 1985 Ky. LEXIS 224 ( Ky. 1985 ).

81.Equal Protection.

Strip mining regulation which denies a due process hearing to an aggrieved party based solely on his financial inability to pay the penalties which he seeks to appeal is unconstitutional, in violation of the equal protection clauses of both the United States and Kentucky Constitutions. Franklin v. Natural Resources & Environmental Protection Cabinet, 799 S.W.2d 1, 1990 Ky. LEXIS 75 ( Ky. 1990 ).

Appellate court’s failure to publish all opinions, along with the prohibition found in CR 76.28 against citing unpublished opinions, did not violate defendant’s due process or equal protection rights where a favorable unpublished Court of Appeals opinion, even if it had been published, could have had no legal effect on a prior Supreme Court decision which affirmed defendant’s sentence. Goodlet v. Commonwealth, 825 S.W.2d 290, 1992 Ky. App. LEXIS 33 (Ky. Ct. App. 1992).

KRS 510.100 , which criminalized deviate sexual intercourse between consenting adults of the same sex, even if the act was committed in the privacy of a home, violated the Kentucky Constitution as: (1) An invasion of a constitutionally protected right of privacy; and (2) invidious discrimination in violation of constitutionally protected rights to equal treatment. Commonwealth v. Wasson, 842 S.W.2d 487, 1992 Ky. LEXIS 140 ( Ky. 1992 ).

A statute involving the regulation of economic matters comports with both state and federal equal protection if the law is rationally related to a legitimate government objective; the constitutionality of a statute will be upheld if its classification is not arbitrary, or if it is founded upon any substantial distinction suggesting the necessity or propriety of such legislation. Kentucky Harlan Coal Co. v. Holmes, 872 S.W.2d 446, 1994 Ky. LEXIS 6 ( Ky. 1994 ), overruled in part, Vision Mining, Inc. v. Gardner, 364 S.W.3d 455, 2011 Ky. LEXIS 177 ( Ky. 2011 ).

Legislative distinctions between persons, under traditional equal protection analysis, must bear a rational relationship to a legitimate state end, and those attacking the rationality of the legislative classification have the burden to negative every conceivable basis which might support it. 902 S.W.2d 842, 1995 Ky. App. LEXIS 77 .

There was no rational basis for the geographically-based distinction created by KRS 159.051 between students subject to losing their operator’s licenses under the statute and students precluded from the statute; thus, KRS 159.051 was unconstitutional. D.F. v. Codell, 127 S.W.3d 571, 2003 Ky. LEXIS 262 ( Ky. 2003 ).

Where defendant’s newborn child testified positive for cocaine, trying her for first degree wanton endangerment of her unborn child under KRS 508.060(1) did not violate her due process and equal protection rights under Ky. Const. §§ 2, 3, and 11; abortion laws did not grant a woman the unfettered guarantee to an abortion at any time and certainly not to one on the day a woman gave birth. Commonwealth v. Cochran, 2008 Ky. App. LEXIS 8 (Ky. Ct. App. Jan. 11, 2008), sub. op., 2008 Ky. App. Unpub. LEXIS 733 (Ky. Ct. App. Jan. 11, 2008), rev'd, 315 S.W.3d 325, 2010 Ky. LEXIS 157 ( Ky. 2010 ).

A State Health Plan issued by the Cabinet for Health and Family Services which established criteria for a pilot project to study the risks and benefits of allowing angioplasty at hospitals without immediate access to an open-heart surgery facility, was limited to one hospital in eastern Kentucky and one hospital in western Kentucky, and required the hospitals to be located thirty (30) minutes from an on-site open-heart surgery center, was not unconstitutional, as: (1) such did not constitute special or local legislation, in violation of Ky. Const. §§ 59 and 60; (2) the classification was reasonable, natural, and consistent with the legitimate purpose of the government; and (3) it passed the rational basis test. St. Luke Hosps., Inc. v. Commonwealth, 254 S.W.3d 830, 2008 Ky. App. LEXIS 146 (Ky. Ct. App. 2008).

KRS 342.316(3)(b)(4)(e) denied a workers’ compensation benefits claimant equal protection because it discriminated between him and a similarly-situated worker whose employer also submitted evidence of category 1 disease but whose claim was not subject to the second phase of the consensus process; KRS 342.316(3)(b)(4)(e) creates two classes of workers based solely on the amount of discrepancy between the worker’s and employer’s evidence, and because there is no rational or reasonable basis for such discrimination where the employer’s evidence effectively concedes the worker’s entitlement to a retraining incentive benefit. Cain v. Lodestar Energy, Inc., 302 S.W.3d 39, 2009 Ky. LEXIS 71 ( Ky. 2009 ).

Consensus procedure required by KRS 342.316 for proving the existence of coal workers’ pneumoconiosis, and the clear and convincing standard required to rebut such a consensus, violated the equal protection guarantees of U.S. Const. amend. XIV and Ky. Const. § 1-3 because there was no rational basis or substantial and justifiable reason for the disparate treatment of coal workers. Pneumoconiosis caused by exposure to coal dust was the same disease as pneumoconiosis caused by exposure to dust particles in other industries, yet coal workers faced different, higher standard-of-proof requirements than those other workers. Vision Mining, Inc. v. Gardner, 364 S.W.3d 455, 2011 Ky. LEXIS 177 ( Ky. 2011 ).

Employee's claim that Ky. Rev. Stat. Ann. § 342.732(1)(a)(7) violated equal protection was subject to rational basis review given that workers' compensation statutes concerned matters of social and economic policy. Ballou v. Enter. Mining Co, LLC, 512 S.W.3d 724, 2017 Ky. LEXIS 78 ( Ky. 2017 ).

Ky. Rev. Stat. Ann. § 342.732(1)(a)(7) did not violate equal protection because paying employees between the ages of 57 and 65 a monetary benefit that was not tied to retraining may have encouraged them to leave the coal mining industry, thus removing employees susceptible to more severe impairment from the work place, and as a result, treating retraining incentive benefits eligible employees differently was rationally related to the purpose of those benefits. Ballou v. Enter. Mining Co, LLC, 512 S.W.3d 724, 2017 Ky. LEXIS 78 ( Ky. 2017 ).

2017 Ky. Acts 1 does not violate the equal protection provisions of the Kentucky Constitution; the legislature clearly established a rational basis for the Act, to promote economic development, to promote job growth, and to remove Kentucky’s economic disadvantages in competing with neighboring states. Zuckerman v. Bevin, 565 S.W.3d 580, 2018 Ky. LEXIS 502 ( Ky. 2018 ).

Employers might be attracted to locate in a state where wages are lower as opposed to a state where wages are higher, and to the extent this conclusion might be characterized as speculative, it is undoubtedly rational; the legislature can clearly make a policy decision that 2017 Ky. Acts 1 might result in more jobs, albeit at lower wages, and that this result, in turn, might benefit the overall economic climate of Kentucky. Zuckerman v. Bevin, 565 S.W.3d 580, 2018 Ky. LEXIS 502 ( Ky. 2018 ).

Rational basis review is appropriate for evaluating 2017 Ky. Acts 1 since the Act is expressly permitted by the Taft-Hartley Act. Zuckerman v. Bevin, 565 S.W.3d 580, 2018 Ky. LEXIS 502 ( Ky. 2018 ).

82.— Voir Dire.

Section 59 of the Constitution is more than simply another way of restating the generalized language of the equal protection clause of the Fourteenth Amendment to the United States Constitution; this section and Const., §§ 1 and 3, which provide that the General Assembly is denied arbitrary power and shall treat all persons equally, suffice to embrace the equal protection clause to the Fourteenth Amendment. Tabler v. Wallace, 704 S.W.2d 179, 1985 Ky. LEXIS 291 ( Ky. 1985 ), cert. denied, 479 U.S. 822, 107 S. Ct. 89, 93 L. Ed. 2d 41, 1986 U.S. LEXIS 3436 (U.S. 1986).

Although the striking of one (1) black juror for a racial reason is an equal protection violation, even where other black jurors are seated, and even when valid reasons for the striking of some black jurors are shown, that does not mean the striking of one (1) black juror can constitute a prima facie case if the racial reason is not apparent from statistical inference or other reasons; the defendant must show he is a member of a racial group, that the prosecutor used peremptory challenges to exclude members of that group, and that these facts and other circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race. Pottinger v. Warden, Northpoint Training Center, 716 F. Supp. 1005, 1989 U.S. Dist. LEXIS 7965 (W.D. Ky. 1989 ), aff'd, 899 F.2d 1222 (6th Cir. Ky. 1990 ).

A female defendant is not denied equal protection under the law when the Commonwealth peremptorily challenges female jurors, as the prohibitions concerning the utilization of peremptory challenges, as described in Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69, 1986 U.S. LEXIS 150 (1986), do not extend beyond racial discrimination. Hannan v. Commonwealth, 774 S.W.2d 462, 1989 Ky. App. LEXIS 92 (Ky. Ct. App. 1989).

Striking for cause of three (3) jurors because of their inability to set aside their views about the death penalty did not deprive murder defendant of his right to a fair trial. Mabe v. Commonwealth, 884 S.W.2d 668, 1994 Ky. LEXIS 98 ( Ky. 1994 ).

83.Civil Rules.

It takes more than a showing that a civil rule cannot be applied with mathematical certitude to demonstrate that it is unconstitutionally arbitrary. Tohtz v. United States, 743 S.W.2d 45, 1988 Ky. App. LEXIS 5 (Ky. Ct. App. 1988).

CR 11 is not violative of this section for being arbitrary. Tohtz v. United States, 743 S.W.2d 45, 1988 Ky. App. LEXIS 5 (Ky. Ct. App. 1988).

84.Sales.

KRS 365.030 is a minimum mark-up law, and it is facially unconstitutional as being violative of this section. Remote Services, Inc. v. FDR Corp., 764 S.W.2d 80, 1989 Ky. LEXIS 2 ( Ky. 1989 ).

85.Prison Visitation Regulations.

Regulations governing general prison visitation did not contain language requiring that a particular result be reached upon a finding that substantive predicates within the regulations are met, and since the overall effect of the regulations is not such that an inmate can reasonably form an objective expectation that a visit would necessarily be allowed absent the occurrence of one of the conditions listed therein, said regulations did not establish a liberty interest entitled to constitutional protections. Kentucky Dep't of Corrections v. Thompson, 490 U.S. 454, 109 S. Ct. 1904, 104 L. Ed. 2d 506, 1989 U.S. LEXIS 2466 (U.S. 1989).

The denial of prison access to a particular visitor is well within the terms of confinement ordinarily contemplated by a prison sentence, and is not independently protected by this section. Kentucky Dep't of Corrections v. Thompson, 490 U.S. 454, 109 S. Ct. 1904, 104 L. Ed. 2d 506, 1989 U.S. LEXIS 2466 (U.S. 1989).

86.Right to a Fair Trial.

A prosecutor’s trial conduct, which included the impermissible glorification of the victim, combined with the sensationalization of that victim’s suffering, tended to pressure the jury to decide the issue of guilt or innocence on considerations apart from the evidence of the defendant’s culpability, and thus was improper. Dean v. Commonwealth, 777 S.W.2d 900, 1989 Ky. LEXIS 77 ( Ky. 1989 ), overruled in part, Caudill v. Commonwealth, 120 S.W.3d 635, 2003 Ky. LEXIS 140 ( Ky. 2003 ), limited, Quarels v. Commonwealth, 142 S.W.3d 73, 2004 Ky. LEXIS 186 ( Ky. 2004 ), overruled in part, Commonwealth v. McGorman, 489 S.W.3d 731, 2016 Ky. LEXIS 102 ( Ky. 2016 ).

Admission of witness testimony describing the contents of a destroyed surveillance videotape would not violate defendant's right to a fair trial because the testimony was admissible under Ky. R. Evid. 402 and 1004, and the standards that informed those rules provided adequate safeguards against their being applied arbitrarily in violation of this section. Commonwealth v. Newkirk, 2014 Ky. App. LEXIS 180 (Ky. Ct. App. Nov. 21, 2014, sub. op., 2014 Ky. App. Unpub. LEXIS 1048 (Ky. Ct. App. Nov. 21, 2014).

87.Abuse of Discretion.

There was no substantial evidence in the record to support the declaration of blight made by the Board of Aldermen, and merely establishing a large administrative and legislative record does not entitle a legislature or administrative agency to declare an apple to be an orange; the record may be replete with expert testimony on similarities between the fruits, however, a legislature or administrative agency, regardless of the size of the record it establishes, cannot lawfully make such a declaration; to, by legislative fiat, declare an object to be something it is not is such an abuse of discretion as to be arbitrary. Prestonia Area Neighborhood Ass'n v. Abramson, 797 S.W.2d 708, 1990 Ky. LEXIS 100 ( Ky. 1990 ).

88.Appointing Authority.

No appointing authority may exercise absolute and arbitrary power without being subject to review either by another administrative agency or authority of the courts. Louisville by Kuster v. Milligan, 798 S.W.2d 454, 1990 Ky. LEXIS 114 ( Ky. 1990 ).

89.Destruction of Evidence.

Unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law; therefore, where prosecutor had no objection to defendant making independent tests of defendant’s blood sample, and only after the request was made did either party discover the sample had been destroyed pursuant to established lab policy, it was immaterial that the evidence might have assisted defendant. Allen v. Commonwealth, 817 S.W.2d 458, 1991 Ky. App. LEXIS 125 (Ky. Ct. App. 1991).

90.Police Officers’ Outside Employment.

Any contention that a police officer has a constitutional right to work for a person with a reputation for involvement in criminal activity borders on the absurd, while prohibition against employment in places where the sale of liquor is a primary business and a requirement of indemnification and insurance by the police officers on behalf of the county government were also not violative of this section of the Constitution. Puckett v. Miller, 821 S.W.2d 791, 1991 Ky. LEXIS 194 ( Ky. 1991 ).

Regulation which requires prior approval by the Chief of Police for police officers to accept outside employment leads directly to the conclusion that arbitrary power has been granted and the regulation was invalidated. Puckett v. Miller, 821 S.W.2d 791, 1991 Ky. LEXIS 194 ( Ky. 1991 ).

The prior authorization by the Chief of Police requirement for officers to accept outside employment was held invalid but was separate from the general restrictions upon off-duty employment, as the restrictions were not essentially and inseparably connected with and dependent upon the prior authorization requirement and were complete and capable of standing alone; severance of the prior authorization provision did not affect the intent of the legislative body in enacting the remainder of the county police force regulations. Puckett v. Miller, 821 S.W.2d 791, 1991 Ky. LEXIS 194 ( Ky. 1991 ).

91.Sentencing.

Where evidence in a capital murder case showed that appellant was a 19-year old man of limited mental capabilities involved in a five (5) week marriage with victim that suffered from numerous separations and regular infidelities on the victim’s part, appellant and victim fought constantly, and appellant was aware that victim had been with another man on the night of her death, trial court’s failure to provide the jury with an instruction to consider extreme mental or emotional disturbance as a mitigating factor violated appellant’s constitutional right to individualized sentencing and due process. Hunter v. Commonwealth, 869 S.W.2d 719, 1994 Ky. LEXIS 14 ( Ky. 1994 ).

KRS 189A.010(4)(c) is not arbitrary and does not offend this section; the defendant failed to establish that those with a blood alcohol level of 0.18 are not seriously impaired or that they do not impose a greater threat to themselves and others than less intoxicated drivers of motor vehicles. Cornelison v. Commonwealth, 2000 Ky. App. LEXIS 73 (Ky. Ct. App. July 7, 2000), aff'd, 52 S.W.3d 570, 2001 Ky. LEXIS 133 ( Ky. 2001 ).

Defendant’s probation ineligibility did not violate this section because the General Assembly had a rational reason for denying probation under Ky. Rev. Stat. Ann. § 532.045(2) to defendants, youthful offenders and adults alike, who were convicted of committing incest: protecting the safety of the public, and defendant’s juvenile sexual offender risk re-assessment report opined that he continued to remain a high risk for sexual reoffending and had chronic homicidal ideations about killing his adoptive parents and siblings. Bloyer v. Commonwealth, 2020 Ky. App. LEXIS 99 (Ky. Ct. App. Aug. 28, 2020, sub. op., 2020 Ky. App. Unpub. LEXIS 828 (Ky. Ct. App. Aug. 28, 2020).

92.— Enhanced.

Nothing in KRS 439.265 , the shock probation statute, leads one to the rational belief that a prisoner is privileged to negotiate his release by agreeing to an enhanced sentence. A longer sentence may not supply the quid pro quo for probationary release. A rule which would allow a prisoner to obtain probation in exchange for a longer sentence in the event of revocation would not only result in chaos, but invite intrusion of arbitrary power which is foreign to Kentucky’s system of government. Moreover, such practice would offend the due process clauses and double jeopardy clauses of both the state and federal Constitutions. Galusha v. Commonwealth, 834 S.W.2d 696, 1992 Ky. App. LEXIS 168 (Ky. Ct. App. 1992).

Defendant’s twenty-year sentence for the Class D felony of assaulting a police officer invoked no sense of fundamental unfairness and did not constitute an exercise of absolute and arbitrary power as proscribed by the Kentucky Constitution because he offered nothing that indicated that he had been arbitrarily singled out for severe punishment, and because nothing in the record suggested that he had been subjected to unequal, disparate, or arbitrary treatment; defendant himself conceded that the sentencing evidence showed that he was almost always in trouble with the law. Thornton v. Commonwealth, 421 S.W.3d 372, 2013 Ky. LEXIS 401 ( Ky. 2013 ).

93.Justification.

Justification under Const., § 59 equates to reasonable justification under Ky. Const., §§ 2 and 3. Revenue Cabinet v. Smith, 875 S.W.2d 873, 1994 Ky. LEXIS 34 (Ky.), cert. denied, 513 U.S. 1000, 115 S. Ct. 509, 130 L. Ed. 2d 417, 1994 U.S. LEXIS 8026 (U.S. 1994).

94.Economic and Business Rights.

Acts 1988, Chapter 225 amendments to KRS 304.35-010 , et seq., that required the Insurance Commissioner, if he determined that a reasonable degree of competition failed to exist for any line of casualty or property insurance, to make provisions for expanded funding and to thereafter order the Fair Access to Insurance Requirements (FAIR) Plan’s governing committee to provide a residual market mechanism was already functioning were challenged as violative of this section by automobile insurance company, but were upheld over an equal protection argument because when a party is caused to bear a different economic burden or enjoy a different economic benefit, where economic and business rights are involved, rather than fundamental rights, substantive due process requires that a statute be rationally related to a legitimate state objective and that the question of reasonableness is one of degree and must be based on the facts of the particular case. Stephens v. State Farm Mut. Auto. Ins. Co., 894 S.W.2d 624, 1995 Ky. LEXIS 7 ( Ky. 1995 ).

Health care provider was required to make a free copy of a patient’s medical record available to the patient’s attorneys as authorized agents for the patient; however, KRS 422.317(1) allowed the provider to charge for additional expenses such as mailing or faxing. Imposing this requirement did not violate Ky. Const. § 2, nor was there any merit to the provider’s takings and equal protection arguments under U.S. Const. amends. V, XIV. William C. Eriksen, P.S.C. v. Gruner & Simms, 400 S.W.3d 290, 2013 Ky. App. LEXIS 77 (Ky. Ct. App. 2013).

95.Insurance.

Acts 1988, Chapter 225 amendments to KRS 304.35-010 , et seq., that required the Insurance Commissioner, if he determined that a reasonable degree of competition failed to exist for any line of casualty or property insurance, to make provisions for expanded funding and to thereafter order the Fair Access to Insurance Requirements (FAIR) Plan’s governing committee to provide a residual market mechanism was already functioning were challenged as violative of this section by automobile insurance company which argued that the amendments required it to support a residual market mechanism, the FAIR Plan, in which none of its lines of insurance could participate. The Supreme Court held that the amendments were constitutional and absolutely did not impose such a classification as to include persons within the class who were not rationally related to the goal of the legislation. Stephens v. State Farm Mut. Auto. Ins. Co., 894 S.W.2d 624, 1995 Ky. LEXIS 7 ( Ky. 1995 ).

96.— Rehabilitation/Liquidation Proceedings.

The state did not violate this section and was justified in interposing its authority on behalf of the public in conducting the liquidation proceedings for an insolvent insurer under KRS Subtitle 33 of Chapter 304 because the interest of the public required it, and the means were reasonably necessary for accomplishing the purpose and not unduly oppressive upon individuals. Kentucky Cent. Life Ins. Co. v. Stephens, 897 S.W.2d 583, 1995 Ky. LEXIS 60 ( Ky. 1995 ).

97.Regulations of Cabinet.

Regulations of Transportation Cabinet governing lighted message boards which prohibited commercial speech but allowed time, date, temperature or weather information to be displayed were substantially broader than necessary to protect the governmental interests of highway safety and aesthetics. The Cabinet failed to demonstrate a reasonable connection between the requirements of highway safety and aesthetics and had not narrowly tailored the regulation to achieve any desired objectives and therefore developed an unconstitutional regulation on commercial free speech as well as upon noncommercial free speech because the state had chosen to allow some noncommercial messages to be displayed. Flying J Travel Plaza v. Transportation Cabinet, Dep't of Highways, 928 S.W.2d 344, 1996 Ky. LEXIS 41 ( Ky. 1996 ).

98.Private Use of Public Property.

Abutting property owner did not have right of private railway access over property reacquired by city under operation of law; reasonable right of access did not encompass grant of private right of railway access as to do so would be in contravention of the right enjoyed by all other members of the public or other abutting property owners and would constitute use of public property for a private purpose prohibited by Ky. Const., §§ 2, 13, 179, and 242. City of Louisville v. Louisville Scrap Material Co., 932 S.W.2d 352, 1996 Ky. LEXIS 62 ( Ky. 1996 ).

99.County Board of Education.

County board of education is a political body with a corporate structure and is entitled to the protection of Const., § 2. Reis v. Campbell County Bd. of Educ., 938 S.W.2d 880, 1996 Ky. LEXIS 130 ( Ky. 1996 ).

100.Drugs and Narcotics.

The statutory system which criminalizes the possession of marijuana and includes hemp does not violate Section 2 of the Kentucky Constitution. Commonwealth v. Harrelson, 14 S.W.3d 541, 2000 Ky. LEXIS 25 ( Ky. 2000 ).

County board of education had an inherent right to appeal decision of tribunal’s that teacher should not have been terminated on grounds that tribunal decision was arbitrary even though the board did not have a liberty interest at stake. Reis v. Campbell County Bd. of Educ., 938 S.W.2d 880, 1996 Ky. LEXIS 130 ( Ky. 1996 ).

Statutes barring trafficking in or possessing marijuana did not violate the right to privacy because the statutes did not criminalize private possession and sale out of misplaced concerns about morality or public decency, as Kentucky citizens’ health, safety and well-being were implicated. Seum v. Bevin, 2019 Ky. App. LEXIS 29 (Ky. Ct. App. Mar. 8, 2019), sub. op., 584 S.W.3d 771, 2019 Ky. App. LEXIS 46 (Ky. Ct. App. 2019).

Petition alleging statutes barring trafficking in and possessing marijuana were unconstitutional was properly dismissed because (1) finding marijuana was safe for medical purposes was for the legislature, and (2) the Kentucky Constitution did not authorize Kentucky’s courts to implement statutory changes reflecting public policy. Seum v. Bevin, 2019 Ky. App. LEXIS 29 (Ky. Ct. App. Mar. 8, 2019), sub. op., 584 S.W.3d 771, 2019 Ky. App. LEXIS 46 (Ky. Ct. App. 2019).

Ky. Rev. Stat. Ann. §§ 218A.1421 and 218A.1422 did not violate Ky. Const. § 2 or the right to privacy insofar as the statutes criminalized the possession and sale of marijuana for medical purposes because the statutes did not criminalize the private possession and sale of marijuana out of misplaced concerns about morality or public decency, as the definition of marijuana implicated the health, safety, and well-being of the citizens of Kentucky. Seum v. Bevin, 584 S.W.3d 771, 2019 Ky. App. LEXIS 46 (Ky. Ct. App. 2019).

101.Juvenile Offenders.

The statutory scheme established for the discretionary transfer of juvenile offenders to Circuit Court, KRS 640.010 , is not constitutionally infirm or violative of a juvenile’s due process rights because it neglects to provide a standard of proof, much less the standard of clear and convincing proof. Stout v. Commonwealth, 44 S.W.3d 781, 2000 Ky. App. LEXIS 86 (Ky. Ct. App. 2000).

Requiring juveniles adjudicated public offenders for various sex offenses to submit DNA samples in accordance with Kentucky’s DNA sampling statutes, KRS 17.170 through 17.175 (KRS 17.171 through KRS 17.174 are now repealed), did not violate the Fourth Amendment or Ky. Const. §§ 1, 2, and 11 because the juveniles’ privacy interests did not outweigh law enforcement’s interest in solving crimes. Petitioner F v. Brown, 306 S.W.3d 80, 2010 Ky. LEXIS 70 (Ky.), cert. denied, 562 U.S. 985, 131 S. Ct. 422, 178 L. Ed. 2d 329, 2010 U.S. LEXIS 8178 (U.S. 2010).

102.Legislative Redistricting.

Where KRS 67C.135(3) contained sufficient criteria for drawing new legislative districts and the fiscal court had no power or discretion as to the creation of the initial districts, the statute did not violate the prohibition against arbitrary power or the doctrine of separation of powers in Ky. Const., §§ 2, 27, 28, 29 when it required fiscal court approval of the plan without permitting it to make further refinements after-the-fact. Owens v. Jefferson County Fiscal Court, 128 S.W.3d 834, 2004 Ky. App. LEXIS 37 (Ky. Ct. App. 2004).

103.Child Support Obligations.

Award of $5,000 in punitive damages in neighbors’ action concerning the use of a dirt road which bordered the parties’ properties was affirmed, as the neighbors provided adequate proof that defendants acted with malice or oppression in denying the neighbors access to the road as required by KRS 411.184 , and the amount of the award did not violate due process rights under Ky. Const. § 2, as the award was reasonable in light of and proportionate to the conduct of the defendants, which included harassment of the neighbors. Roberie v. VonBokern,2006 Ky. LEXIS 186 ( Ky. 2006 ).

Trial court’s order that allowed the mother to impute a child support obligation for a prior-born child, pursuant to KRS 403.212(2)(g)(4), was upheld, in part, because the father had not provided sufficient evidence to establish that his due process rights were violated when the mother was not collecting a child support obligation from the father for the prior-born child. Kimbrough v. Child Support Div. ex rel. Belmar, 215 S.W.3d 69, 2006 Ky. App. LEXIS 226 (Ky. Ct. App. 2006).

104.Punitive Damages.

Since the property owners’ act of vandalizing their neighbors’ gate involved deliberate malice and deceit, the jury’s punitive damage award of 3.57 times the compensatory damages did not violate due process. McConnell v. Stivers, 2007 Ky. App. LEXIS 5 (Ky. Ct. App. Jan. 12, 2007).

105.Change In Penal Law.

Because Commonwealth v. Morris, 142 S.W.3d 654, 2004 Ky. LEXIS 153 ( Ky. 2004 ), which held that all viable fetuses were “persons” protected under the penal statutes, was decided a year and half before defendant ingested the cocaine that served as the basis for a wanton endangerment charge under KRS 508.060(1), she had fair notice that her conduct could result in criminal charges. Therefore, the rights afforded her by Ky. Const. §§ 2 and 11 were not violated. Commonwealth v. Cochran, 2008 Ky. App. LEXIS 8 (Ky. Ct. App. Jan. 11, 2008), sub. op., 2008 Ky. App. Unpub. LEXIS 733 (Ky. Ct. App. Jan. 11, 2008), rev'd, 315 S.W.3d 325, 2010 Ky. LEXIS 157 ( Ky. 2010 ).

Collection of juveniles’ DNA samples pursuant to KRS 17.174 did not violate the juveniles constitutional rights to privacy under U.S. Const. amend. XIV and Ky. Const. §§ 1, 2, and 11; and to due process of law under U.S. Const. amend. VI and Ky. Const. §§ 2 and 11. Petitioner F v. Brown, 2008 Ky. App. LEXIS 42 (Ky. Ct. App. Feb. 22, 2008, sub. op., 2008 Ky. App. Unpub. LEXIS 532 (Ky. Ct. App. Feb. 22, 2008).

106.Probation Revocation.

In proceedings to revoke defendant’s conditional discharge for flagrant nonsupport under KRS 530.050 , while defendant argued that his due process rights under the 14th Amendment and Ky. Const. §§ 1, 2, and 11 were violated as the Circuit Court refused to consider possible alternative punishments, no legal authority existed that required the Circuit Court to consider alternative forms of punishment when revoking probation or conditional discharge for failure to pay child support. Marshall v. Commonwealth, 2008 Ky. App. LEXIS 253 (Ky. Ct. App. Aug. 8, 2008), aff'd, 345 S.W.3d 822, 2011 Ky. LEXIS 107 ( Ky. 2011 ).

Defendant’s due process rights under the 14th Amendment and Ky. Const. §§ 1, 2, and 11 were violated by the Circuit Court’s failure to make findings of fact specifying the evidence relied upon to support its decision to revoke defendant’s conditional discharge for flagrant nonsupport under KRS 530.050 . Marshall v. Commonwealth, 2008 Ky. App. LEXIS 253 (Ky. Ct. App. Aug. 8, 2008), aff'd, 345 S.W.3d 822, 2011 Ky. LEXIS 107 ( Ky. 2011 ).

107.Due Process.

City’s Bow-and-Arrow Ordinance allowing discharge of arrows within the city limits passed rational-basis scrutiny because reining in the deer population was clearly a legitimate government purpose, and concluding that allowing arrows to be discharged within city limits would further that purpose was not wholly irrational. Sheffield v. City of Fort Thomas, 620 F.3d 596, 2010 FED App. 0285P, 2010 U.S. App. LEXIS 18437 (6th Cir. Ky. 2010 ).

Kentucky’s registry scheme used to substantiate allegations of child abuse did not violate the alleged abuser’s constitutional right to due process under the Fourteenth Amendment, U.S. Const. amend. XIV, and Ky. Const. § 2. That scheme provided the alleged abuser with fair notice of the allegation and a rigorous trial-type proceeding for addressing the allegation. W.B. v. Commonwealth, 2011 Ky. App. LEXIS 47 (Ky. Ct. App. Mar. 11, 2011).

Appellant property owners’ action alleging due process violations under Ky. Const. § 2 regarding nomination of their property to the National Register of Historic Places was improperly dismissed because the procedure was arbitrary in that no fixed time was set at which the number and names of landowners were determined for the purposes of the required objections. Norton v. Perry, 2012 Ky. App. LEXIS 208 (Ky. Ct. App. Oct. 12, 2012), op. withdrawn, sub. op., 2013 Ky. App. LEXIS 10 (Ky. Ct. App. Jan. 11, 2013).

108.Search and Seizure.

No violation of Ky. Const. §§ 2, 10 or the Fourth Amendment occurred when, for no articulable reason, an officer ran a vehicle’s tags in the computer system in his patrol car, after observing the vehicle parked or traveling on a public street, thereby exposing its license plate to public view. That check provided a reasonable suspicion for a traffic stop, even though the driver was not the car’s owner, because the officer testified that the driver met the description of the owner who had a suspended license. Gentry v. Commonwealth, 2012 Ky. App. LEXIS 209 (Ky. Ct. App. Oct. 12, 2012, sub. op., 2012 Ky. App. Unpub. LEXIS 1040 (Ky. Ct. App. Oct. 12, 2012).

Running of a vehicle’s license plate information without guiding police department policies and/or supervisor involvement, is not arbitrary in violation of Ky. Const. § 2. Gentry v. Commonwealth, 2012 Ky. App. LEXIS 209 (Ky. Ct. App. Oct. 12, 2012, sub. op., 2012 Ky. App. Unpub. LEXIS 1040 (Ky. Ct. App. Oct. 12, 2012).

Cited:

Covington & Lexington Turnpike Road Co. v. Sanford, 164 U.S. 578, 17 S. Ct. 198, 41 L. Ed. 560, 1896 U.S. LEXIS 1891 (U.S. 1896); Adams Express Co. v. Kentucky, 238 U.S. 190, 35 S. Ct. 824, 59 L. Ed. 1267, 1915 U.S. LEXIS 1613 (U.S. 1915); Lenox Land Co. v. Oakdale, 137 Ky. 484 , 125 S.W. 1089, 1910 Ky. LEXIS 591 ( Ky. 1910 ); Columbia Trust Co. v. Lincoln Institute of Kentucky, 138 Ky. 804 , 129 S.W. 113, 1910 Ky. LEXIS 138 ( Ky. 1910 ); City of Newport v. Silva, 144 Ky. 450 , 137 S.W. 546, 1911 Ky. LEXIS 533 (Ky. Ct. App. 1911); Adams Express Co. v. Commonwealth, 154 Ky. 462 , 157 S.W. 908, 1913 Ky. LEXIS 9 6 ( Ky. 1913 ); Board of Levee Comm'rs v. Johnson, 178 Ky. 287 , 199 S.W. 8, 1917 Ky. LEXIS 748 ( Ky. 1917 ) ( Ky. 1917 ); Lawrence E. Tierney Coal Co. v. Smith's Guardian, 180 Ky. 815 , 203 S.W. 731, 1918 Ky. LEXIS 151 ( Ky. 1918 ); Yewell v. Board of Drainage Comm'rs, 187 Ky. 434 , 219 S.W. 1049, 1920 Ky. LEXIS 141 ( Ky. 1920 ); Bard v. Board of Drainage Comm'rs, 274 Ky. 491 , 118 S.W.2d 1013, 1938 Ky. LEXIS 292 ( Ky. 1938 ); McCracken Fiscal Court v. McFadden, 275 Ky. 819 , 122 S.W.2d 761, 1938 Ky. LEXIS 499 ( Ky. 1938 ); Bosworth v. Lexington, 277 Ky. 90 , 125 S.W.2d 995, 1939 Ky. LEXIS 615 ( Ky. 1939 ); Webb v. Eminence, 282 Ky. 849 , 140 S.W.2d 622, 1940 Ky. LEXIS 265 ( Ky. 1940 ); Burrow v. Kapfhammer, 284 Ky. 753 , 145 S.W.2d 1067, 1940 Ky. LEXIS 577 ( Ky. 1940 ); Moore v. Northern Kentucky Independent Food Dealers Ass'n, 286 Ky. 24 , 149 S.W.2d 755, 1941 Ky. LEXIS 211 ( Ky. 1941 ); Kenton & Campbell Benevolent Burial Ass'n v. Goodpaster, 304 Ky. 233 , 200 S.W.2d 120, 1946 Ky. LEXIS 9 32 ( Ky. 1946 ); Engle v. Bonnie, 305 Ky. 850 , 204 S.W.2d 963, 1947 Ky. LEXIS 865 ( Ky. 1947 ); Masonic Widows & Orphans Home & Infirmary v. Louisville, 309 Ky. 532 , 217 S.W.2d 815, 1948 Ky. LEXIS 1081 ( Ky. 1948 ); Reeves v. Wright & Taylor, 310 Ky. 470 , 220 S.W.2d 1007, 1949 Ky. LEXIS 950 ( Ky. 1949 ); Chesapeake & O. R. Co. v. Murphy, 314 Ky. 309 , 234 S.W.2d 969, 1950 Ky. LEXIS 1085 ( Ky. 1950 ); Parkrite Auto Park, Inc. v. Shea, 314 Ky. 520 , 235 S.W.2d 986, 1950 Ky. LEXIS 109 4 ( Ky. 1950 ); Eline v. Lampe, 275 S.W.2d 64, 1955 Ky. LEXIS 347 ( Ky. 1955 ); Commonwealth ex rel. Tinder v. Werner, 280 S.W.2d 214, 1955 Ky. LEXIS 152 ( Ky. 1955 ); General Electric Co. v. American Buyers Cooperative, Inc., 316 S.W.2d 354, 1958 Ky. LEXIS 42 ( Ky. 1958 ); Commonwealth ex rel. Kentucky R. Com. v. Illinois C. R. Co., 358 S.W.2d 533, 1962 Ky. LEXIS 194 ( Ky. 1962 ); Frankfort v. Triplett, 365 S.W.2d 328, 1963 Ky. LEXIS 219 ( Ky. 1963 ); Kelley v. Dailey, 366 S.W.2d 181, 1963 Ky. LEXIS 9 ( Ky. 1963 ); Crady v. Cranfill, 371 S.W.2d 640, 1963 Ky. LEXIS 110 (Ky. 1963); Idol v. Knuckles, 383 S.W.2d 910, 1964 Ky. LEXIS 64 ( Ky. 1964 ); Sturgill v. Commonwealth, Dep't of Highways, 384 S.W.2d 89, 1964 Ky. LEXIS 79 ( Ky. 1964 ); Adams, Inc. v. Louisville & Jefferson County Board of Health, 439 S.W.2d 586, 1969 Ky. LEXIS 374 ( Ky. 1969 ); Branzburg v. Meigs, 503 S.W.2d 748, 1971 Ky. LEXIS 50 ( Ky. 1971 ); Commonwealth use of Erlanger v. Cullum, 494 S.W.2d 521, 1973 Ky. LEXIS 44 8 ( Ky. 1973 ); Commonwealth ex rel. Stephens v. South Cent. Bell Tel. Co., 545 S.W.2d 927, 1976 Ky. LEXIS 142 ( Ky. 1976 ); Carlton v. Taylor, 569 S.W.2d 679, 1978 Ky. App. LEXIS 561 (Ky. Ct. App. 1978); Creative Displays, Inc. v. Florence, 602 S.W.2d 682, 1980 Ky. LEXIS 248 ( Ky. 1980 ); Pattie A. Clay Infirmary Asso. v. First Presbyterian Church, 605 S.W.2d 52, 1980 Ky. App. LEXIS 368 (Ky. Ct. App. 1980); Petrey v. Flaugher, 505 F. Supp. 1087, 1981 U.S. Dist. LEXIS 10458 (E.D. Ky. 1981 ); Fiscal Court of Jefferson County v. Don Ridge Land Developing Co., 669 S.W.2d 922, 1984 Ky. LEXIS 23 3 ( Ky. 1984 ); Wiggins v. Stuart, 671 S.W.2d 262, 1984 Ky. App. LEXIS 513 (Ky. Ct. App. 1984); Merritt v. Campbellsville, 678 S.W.2d 788, 1984 Ky. App. LEXIS 625 (Ky. Ct. App. 1984); Stevens v. Flannery, 700 S.W.2d 78, 1985 Ky. App. LEXIS 688 (Ky. Ct. App. 1985); Singleton v. Commonwealth, 740 S.W.2d 159, 1986 Ky. App. LEXIS 1484 (Ky. Ct. App. 1986); Transportation Cabinet, Dep't of Highways v. Express Mart, 759 S.W.2d 600, 1988 Ky. App. LEXIS 211 (Ky. Ct. App. 1988); Yancey v. Carroll County, 876 F.2d 1238, 1989 U.S. App. LEXIS 4731 (6th Cir. Ky. 1989 ); Natural Resources & Environmental Protection Cabinet v. Williams, 768 S.W.2d 47, 1989 Ky. LEXIS 23 ( Ky. 1989 ); Board of Trustees v. Hayse, 782 S.W.2d 609, 1989 Ky. LEXIS 99 (Ky. 1989); McGregor v. Commonwealth, 784 S.W.2d 785, 1990 Ky. App. LEXIS 25 (Ky. Ct. App. 1990); Wal-Juice Bar, Inc. v. Elliott, 899 F.2d 1502, 1990 U.S. App. LEXIS 4877 (6th Cir. Ky. 1990 ); Moore v. Kentucky State Penitentiary, 789 S.W.2d 788, 1990 Ky. App. LEXIS 30 (Ky. Ct. App. 1990); Commonwealth v. Foley, 798 S.W.2d 947, 1990 Ky. LEXIS 121 ( Ky. 1990 ); Perkins v. Northeastern Log Homes, 808 S.W.2d 809, 1991 Ky. LEXIS 44 ( Ky. 1991 ); Commonwealth v. Miles, 816 S.W.2d 657, 1991 Ky. App. LEXIS 18 (Ky. Ct. App. 1991); Kentucky Ass'n of Realtors, Inc. v. Musselman, 817 S.W.2d 213, 1991 Ky. LEXIS 109 ( Ky. 1991 ); Wilson v. Commonwealth, 836 S.W.2d 872, 1992 Ky. LEXIS 84 ( Ky. 1992 ); Triple M Mining Co. v. Natural Resources & Envtl. Protection Cabinet, 906 S.W.2d 364, 1995 Ky. App. LEXIS 146 (Ky. Ct. App. 1995); Belt v. Commonwealth, 2 S.W.3d 790, 1999 Ky. App. LEXIS 136 (Ky. Ct. App. 1999); Gragg v. Ky. Cabinet for Workforce Dev., 289 F.3d 958, 2002 FED App. 0175P, 2002 U.S. App. LEXIS 9510 (6th Cir. Ky. 2002 ); K & P Grocery, Inc. v. Commonwealth, 103 S.W.3d 701, 2002 Ky. App. LEXIS 2327 (Ky. Ct. App. 2002); Rabourn v. Commonwealth, 2006 Ky. App. LEXIS 216 (Ky. Ct. App. 2006); Emberton v. GMRI, Inc., 299 S.W.3d 565, 2009 Ky. LEXIS 250 ( Ky. 2009 ); Dunlap v. Commonwealth, 435 S.W.3d 537, 2013 Ky. LEXIS 292 ( Ky. 2013 ) ; Estate of McVey v. Dep't of Revenue, Fin. & Admin. Cabinet, 2013 Ky. App. LEXIS 171 (Ky. Ct. App. Dec. 13, 2013); Ky. State Police v. Conder, 447 S.W.3d 189, 2014 Ky. App. LEXIS 166 (Ky. Ct. App. 2014).

Notes to Unpublished Decisions

1.In General.

Unpublished decision: Operating property statute, KRS 136.120 , taxed the cable television company for the right to public thoroughfares of the cities in which it operated in the same manner that it taxed other domestic public service corporations enjoying that privilege, thus ensuing the taxing law was equally applied; accordingly, the cable television company did not show that either its equal protection or substantive due process rights under the Kentucky Constitution were violated. Revenue Cabinet v. Comcast Cablevision, 147 S.W.3d 743, 2003 Ky. App. LEXIS 330 (Ky. Ct. App. 2003).

Opinions of Attorney General.

Scenic strips and easements adjacent to the highway rights of way could be legally purchased for beautification purposes and highway could be expended for such purpose. OAG 66-35 .

A board of education would be acting at its peril, both as a board and individually if it dismissed any employee without the superintendent’s recommendation and without being able to show sufficient cause although KRS 160.380 leaves open the question of whether the dismissal of a nontenure employee must be recommended by the superintendent. OAG 73-366 .

The residency provisions of subsections (15) and (22) (now subsections (17) and (24)) of KRS 150.010 do not render the section unconstitutional in the absence of a showing that the differential treatment of $5 for a resident license and $10 for a non-resident license is arbitrary or that the statute’s discrimination is so without reason that no conceivable situation of fact can be found to justify it. OAG 74-510 .

A legislative attempt to give the union or the majority of miners at a given mine the authority to appoint or elect mine safety committee members who are required to be paid by the mine employer would clearly be prohibited as an unlawful delegation of legislative authority. OAG 76-337 .

Even without an open record statute it would be constitutionally unacceptable to allow an administrative officer the prerogative of requiring a subordinate to make a choice between admitting private charges or facing a public hearing. OAG 78-133 .

The compensation limits set forth in § 246 of the Constitution are based on the purchasing power of the 1949 dollar and are therefore adjustable to its fluctuations, but a court could set aside such salaries if the evidence in a taxpayer’s suit would show that the time spent by the magistrates on county business is such that payment of such salaries would be arbitrary under § 2 of the Constitution. OAG 78-426 .

In defining the term “arbitrary,” the court has written in effect that the term would mean that the governmental action was not right and equitable under the circumstances, and not directed by sound reason and in the exercise of good judgment and conscience. OAG 79-82 .

Where the population of the magisterial districts is substantially unequal, a county administrative code could not require an equal amount of road work be done in each district, unless supported by other relevant factors, such as traffic volume, importance to the county of given road segments in each district, and road mileage, since such a result could be considered arbitrary without such supporting data. OAG 79-179 .

A county road repair program must be based upon several factors, which include: condition of roads, mileage of county roads in all districts, number of people served in all the districts, etc.; to merely divide the money equally, without any other equitable considerations, would be arbitrary. OAG 79-238 .

Because KRS 186.230(9) does not provide any essential protection to the rights of creditors, but does severely restrict the individual’s use and disposition of his property, it is an unconstitutional infringement upon the right to acquire and protect property and to be free from any unreasonable restraint upon the use of property in violation of this section and Const., § 1. OAG 79-445 .

KRS 186.230(9) is unconstitutional because the classification set out therein is arbitrary and is consequently in violation of this section and Const., § 59. OAG 79-445 .

Where fiscal court does not approve nomination of district hospital board member by county judge/executive, the present member can continue in that post under subsection (1) of KRS 216.325 until another successor is nominated and approved; however, the fiscal court cannot under this section arbitrarily fail to approve a successor so as to allow the incumbent member to hold office for a substantial length of time since KRS 216.323 imposes upon them a strongly implied duty to reach agreement. OAG 81-29 .

While KRS 67.063 (repealed) mentions no appeal to the court system, any citizen aggrieved by the order of reapportionment of the fiscal court could seek a review of the order in circuit court under this section on the question of whether or not the reapportionment was constitutionally effected. OAG 81-119 .

Subsection (9) of KRS 186.230 , which prohibits the alienability or transfer of a motor vehicle while a lien is still on it, is clearly unconstitutional since it promotes no perceptible and clear legitimate public interest and has no reasonable relation to such police power objects as public safety, health, peace, good order or morals; thus, the statutory restraint is unreasonable and arbitrary under this section. OAG 81-160 .

It is not lawful to pay group insurance for part of the county employees and not all of them since, for purposes of hospitalization insurance, all county employees would be in the same class and discrimination cannot be made against persons in the same class. OAG 81-188 .

A county fiscal court may not adopt rules and regulations which would close the county jail to pretrial investigation as to a bail determination and to the trial commissioner for bail, between the hours of 11 p.m. and 7 a.m., with the effect that an individual arrested at night would be housed for at least eight (8) hours before he could make bail, since the bail bond provisions of RCr 4.00 to 4.58 and KRS 431.510 to 431.550 reflects the legislative policy that if pretrial release is to be effected at all, it should be done quickly to preserve the presumption of innocence, and since the practical effect of excluding bail officers for the stated period would be arbitrary denial of bail, which would be prohibited by the proscription of this section against arbitrary action. OAG 81-299 .

Although a fifth-class city may levy a license tax based on the licensee’s gross income pursuant to KRS 92.280 , the percentage rate of taxation would have to remain fixed because a license tax rate which was graduated according to the amount of gross sales made would be arbitrary and unequal under this section and Const., § 171, and thus unconstitutional. OAG 82-33 .

A real estate commission regulation which requires a realtor to advertise property in her broker’s name would, when applied to a realtor acting as an executrix, be an unconstitutional restraint on the alienation of property under this section, Const., § 1 and the Fourteenth Amendment to the United States Constitution, since it forces the heirs to list the testamentary real property with a particular broker contrary to their desire to sell it privately. OAG 82-36 .

In view of the modern conditions reflected in population improvement, concentration in urban areas and the husband and wife as teachers, a school board regulation requiring certified employees to be residents of its district would be arbitrary and violate this section. OAG 82-59 .

A department of human resources (now Cabinet for Human Resources) policy which allowed the department to withhold 25 percent of a county’s yearly allocation of appropriations if the county chose to retain its county health departments rather than join a district health department violated the express provisions of subsection (2) of KRS 212.120 and was arbitrary under this section. OAG 82-78 .

The expenditure of county money on a cemetery maintained exclusively for the burial of persons of a particular religious faith would be arbitrary under this section. OAG 82-101 .

There was no improper discrimination between classified employees and certified employees of a school district based upon the ability of teachers to participate in an extended school day plan (snowbank) days and the inability of classified employees to do the same, as there were two (2) distinct classifications of school employees. It is only the arbitrary classification and treatment of individuals that runs afoul of this section and the U.S. Const., amend. 14. OAG 82-132 .

A friend or even a fiance of a prisoner has no constitutional right to visit the prisoner; however, in refusing a prisoner’s fiance visitation privileges, which are inextricably intertwined with the prisoner’s desire for such visitation, the prison authority must act reasonably so as not to violate the spirit of this section. OAG 82-197 .

In view of the increased load effected by the garbage of areas outside a county, and the attendant implications for the public health of citizens of such county by way of increasing health problems or hazards, an ordinance prohibiting citizens from other counties from dumping their trash and garbage into county trash containers was a valid, not arbitrary, exercise of the fiscal court’s police powers, particularly as the outside citizens paid nothing toward the maintenance of the garbage, while the citizens of the county directly supported the garbage operation through the county’s general fund. OAG 82-236 .

The fiscal court has a positive responsibility to fund properly an existing county police force, and cannot arbitrarily withhold proper funding. Once the county judge/executive establishes a reasonable county police force, he may obtain court relief to enforce the proper funding of such police force. OAG 82-347 .

A fiscal court cannot indirectly, by lowering the salary of the deputy to an unconscionable and unconstitutional level, bring about the departure of a particular deputy from office. OAG 82-515 .

Technically, the fiscal court may lower the salary of a deputy county judge/executive; however, the lowering of the deputy’s salary would have to be effected under the yardstick of a “reasonable salary” for services actually performed. Any salary lowering not based upon the “reasonable salary” concept would on its face appar to be arbitrary and would be unconstitutional under this section, which prohibits arbitrary action. OAG 82-515 .

Where the fiscal court provides for four (4) county officials’ reimbursement for litigational expenses, such are legal if they meet the guidelines for reimbursement of expenses; however, where the fiscal court, as relates to the litigation involving four (4) county officials, decides to not reimburse a fifth county official involved in the same litigation, such action, where the case of the fifth defendant meets the guidelines, might be construed by the courts to be arbitrary under this section. Thus, where five (5) county officials were involved, and they are qualified under the guidelines for reimbursement of expenses, the reimbursement should be effected on a fair and equitable basis, if at all, for five (5) defendants. OAG 82-596 .

In reducing the compensation of county employees, including nonconstitutional officers, a fiscal court must act with reason and with a uniformly applied policy. They cannot act arbitrarily; arbitrary classification and treatment of such employees would run afoul of this section and the Fourteenth Amendment to the U.S. Constitution. In other words, where some salaries of county employees are cut and some are not, there must be a reasonable classification established for those who are cut. OAG 83-169 .

Where the members of fiscal court fail or refuse to enter an order ordering the levy of a library tax pursuant to the filing of a petition, such inaction is in violation of KRS 173.720 and is arbitrary; this section would also be violated, since it expressly prohibits the exercise of arbitrary power. If the fiscal court does not enter the order, as required, it may be subjected to a citizens’ suit in the local circuit court for mandamus or mandatory injunction to compel the fiscal court to do its duty. OAG 83-310 .

There is no distinction between a business license tax measured by gross receipts and one measured by net profits since the tax is levied on the privilege of doing business and that privilege does not require a greater rate for greater profits, but is worth the same for all businesses; consequently, a graduated city business license tax based on net profits would violate Ky. Const., § 171 and this section. OAG 83-331 .

A city had no authority to enact an ordinance absolutely prohibiting all businesses from playing amplified music on the alleged basis of an existing nuisance since there was no showing that the absolute prohibition had a reasonable relation to the public safety, welfare or convenience of the city’s citizenry. Such ordinance was arbitrary and oppressive in its absoluteness and absence of any standards and thus was illegal and unconstitutional under this section and the First and Fourteenth Amendments to the U.S. Constitution. OAG 84-39 .

If it appeared that overtime work by sheriff’s deputy was reasonably necessary to carry out the sheriff’s duties, then the fiscal court must give the sheriff credit in the yearly settlement for the amount of overtime pay the sheriff effected from the funds of his office; the overtime should normally be paid out of the salary source, which was the county treasury for the particular deputy sheriff. If the fiscal court refuses to credit the sheriff’s payment of overtime, assuming that the overtime work was reasonably necessary, the fiscal court would be acting arbitrarily, contrary to this section. OAG 84-183 .

Where a county entered into a contract for the furnishing of ambulance service, pursuant to KRS 65.710 , the ambulance service involved a purpose common to the entire county; thus, unless such contract embraced all citizens within the county, including those who lived in cities within the county, this section and § 171 of the Constitution would be violated. OAG 84-323 .

Neither KRS 186.193 nor KRS 186.232 support an arbitrary classification in violation of this section and § 59 of the Constitution; these statutes apply equally to all vehicles and trailers which are to be operated on the highways of this state. OAG 84-339 .

Where the state has occupied the field of prohibitory legislation on a particular subject, local government lacks authority to legislate with respect thereto; thus, a county may not enact an ordinance requiring all mopeds operated within the county to display a sticker showing that the vehicle may only be operated by a person having a valid motor vehicle operator’s license. OAG 84-380 .

The allowance by the fiscal court of an amendment to an existing cable television franchise, which would require a $20.00 security deposit from renters, but not from owners, was a reasonable classification and did not violate this section; when considering the actual experience of the company with the renters, and the fact that the company suffered a monetary loss in extending service to renters without requiring a security deposit for the converter boxes, such requirement was reasonable and not discriminatory, it being applied to all within that class. OAG 85-8 .

An amendment to KRS 311.571 or any other provision in KRS Chapter 311 requiring a physician to treat any individual covered by a certain type of insurance is not rationally related to the legitimate state end of that chapter which is to protect the public from improperly trained or educated physicians. However, such a requirement contained in another portion of the KRS may withstand constitutional scrutiny if a court could be convinced that the requirement is rationally related to some legitimate state end. OAG 93-28 .

Despite the 1990 amendment, the Unfair Cigarette Sales Act is a minimum markup law and is unconstitutional under this section because the “cost of doing cigarette business” under KRS 365.270 is still determined with reference to the seller’s total operational expense. OAG 93-74 .

The General Assembly may permit referenda on local school curriculum; however, in doing so, the General Assembly must not violate equal protection provisions and special and local legislation provisions of the Kentucky Constitution. OAG 00-3 .

A school board may not require principals to be residents of the school district. OAG 01-7 .

Shock probation for persons convicted of a DUI vehicular homicide does not constitute an exercise of absolute and arbitrary power in violation of the Kentucky Constitution, although it is questionable as public policy. OAG 11-005 , 2011 Ky. AG LEXIS 215 (2011).

Research References and Practice Aids

Kentucky Bench & Bar.

Dyche, The History and Meaning of Section 2 of the Kentucky Constitution, Volume 55, No. 4, Fall 1991 Ky. Bench & B. 17.

Durant, Procedural Due Process Past Due, Vol. 61, No. 1, Winter 1997, Ky. Bench & Bar 6.

Kentucky Law Journal.

Comments, The Employee Defense Act: Wearing Down Sovereign Immunity, 66 Ky. L.J. 150 (1977-78).

Kentucky Law Survey: Savage, Insurance, 66 Ky. L.J. 631 (1977-1978).

Ziegler, A Primer on Administrative Rules and Rule-Making in Kentucky, 67 Ky. L.J. 103 (1978-79).

Kentucky Law Survey, Rogers and Sims, Administrative Law, 69 Ky. L.J. 489 (1980-81).

Kentucky Law Survey, Graham and Jakubowicz, Domestic Relations, 70 Ky. L.J. 425 (1981-82).

Notes, Court-Annexed Arbitration: Kentucky’s Viable Alternative to Litigation, 77 Ky. L.J. 881 (1988-89).

Reynolds, Education Finance Reform Litigation and Separation of Powers: Kentucky Makes Its Contribution, 80 Ky. L.J. 309 (1990-91).

Lewis, Jural Rights under Kentucky’s Constitution: Realities Grounded in Myth, 80 Ky. L.J. 953 (1992).

Lewis, Commonwealth v. Wasson: Invalidating Kentucky’s Sodomy Statute, 81 Ky. L.J. 423 (1992-93).

Weigand and Farr, Part of the Moving Stream: State Constitutional Law, Sodomy, and Beyond, 81 Ky. L.J. 449 (1992-93).

Roach, Rule of Men, 81 Ky. L.J. 483 (1992-93).

Fine, Beware That False First Step, 82 Ky. L.J. 731 (1993-94).

Northern Kentucky Law Review.

Ziegler, Legitimizing the Administrative State: The Judicial Development of the Nondelegation Doctrine in Kentucky, 4 N. Ky. L. Rev. 87 (1977).

Comment, A Constitutional Analysis of Kentucky’s Noncommercial Bail Bondsmen System, 4 N. Ky. L. Rev. 121 (1977).

Notes, Insurance — Medical Malpractice — Uncoupling the Freight Train: The Kentucky Medical Malpractice Act — McGuffey v. Hall, 557 S.W.2d 401, 1977 Ky. LEXIS 533 ( Ky. 1977 ), 5 N. Ky. L. Rev. 123 (1978).

Comments, Reda Pump, a Division of TRW, Inc. v. Finck: An Update on Kentucky Product Liability Law, 14 N. Ky. L. Rev. 395 (1988).

Dyche, Section 2 of the Kentucky Constitution — Where Did It Come From and What Does it Mean?, 18 N. Ky. L. Rev. 503 (1991).

Kazee, The Sherman Act and the Arbitrary Power Section of the Kentucky Constitution As Applied to Kentucky Fair Trade Laws, 20 N. Ky. L. Rev. 297 (1993).

Wintersheimer, State Constitutional Law, 20 N. Ky. L. Rev. 591 (1993).

Wintersheimer, State Constitutional Law Survey, 21 N. Ky. L. Rev. 257 (1994).

Edmondson and Rylee, Termination of the Tenured Teacher in Kentucky: Does K.R.S. 161.790

Notes, Restoration of the Collateral Source Rule in Kentucky: A Review of O’Bryan v. Hedgespeth, 23 N. Ky. L. Rev. 357 (1996).

Stinnett, A Breath of Fresh Air: A Smoking Ban’s Legal Invasion of Property Rights in Lexington Fayette County Food & Beverage Ass’n v. Lexington-Fayette Urban County Gov’t.,32 N. Ky. L. Rev. 239 (2005).

§ 3. Men are equal — No exclusive grant except for public services — Property not to be exempted from taxation — Grants revocable.

All men, when they form a social compact, are equal; and no grant of exclusive, separate public emoluments or privileges shall be made to any man or set of men, except in consideration of public services; but no property shall be exempt from taxation except as provided in this Constitution, and every grant of a franchise, privilege or exemption, shall remain subject to revocation, alteration or amendment.

NOTES TO DECISIONS

Analysis

1.Construction.

This section should not be too strictly interpreted. Miller v. Robertson, 306 Ky. 653 , 208 S.W.2d 977, 1948 Ky. LEXIS 631 ( Ky. 1948 ).

This section and Const., §§ 171, 172, 174 and 175 are self-executing; they require that all property, unless exempted, be assessed for taxation and taxed and no discretion is left to the General Assembly. Reeves v. Island Creek Fuel & Transp. Co., 313 Ky. 400 , 230 S.W.2d 924, 1950 Ky. LEXIS 859 (Ky.), cert. denied, 340 U.S. 853, 71 S. Ct. 82, 95 L. Ed. 625, 1950 U.S. LEXIS 1535 (U.S. 1950).

This section reserves the power in the state to revoke, alter, or amend, but this power will not be exercised to destroy or substantially impair rights vested under the state’s grant. Banner Transfer Co. v. Ockerman, 354 S.W.2d 514, 1961 Ky. LEXIS 11 ( Ky. 1961 ).

2.Class Legislation.

The objection that a statute favoring a certain class is discriminatory cannot be raised by a member of that class, since he has not been discriminated against, nor denied any privilege. Owen County Burley Tobacco Soc. v. Brumback, 128 Ky. 137 , 107 S.W. 710, 32 Ky. L. Rptr. 916 , 1908 Ky. LEXIS 38 ( Ky. 1908 ).

This section does not deny the legislature the right to select and classify persons or occupations or the right to enact reasonable laws for the government of each class that it deals with. Owen County Burley Tobacco Soc. v. Brumback, 128 Ky. 137 , 107 S.W. 710, 32 Ky. L. Rptr. 916 , 1908 Ky. LEXIS 38 ( Ky. 1908 ).

A statute which, when construed according to the canons of statutory construction, confers the right on one class of citizens to do an act made a criminal offense when done by any other class, conflicts with United States Const., Amend. 14. Commonwealth v. International Harvester Co., 131 Ky. 551 , 115 S.W. 703, 1909 Ky. LEXIS 40 ( Ky. 1909 ), overruled, Gay v. Brent, 166 Ky. 833 , 179 S.W. 1051, 1915 Ky. LEXIS 783 ( Ky. 1915 ).

Act that provided for a bipartisan hospital board, did not violate this section in that it required the board to be appointed from the democratic and republican parties excluding members of other political parties. Render v. Louisville, 142 Ky. 409 , 134 S.W. 458, 1911 Ky. LEXIS 200 ( Ky. 1911 ).

Law creating exception to betting laws by providing for pari-mutuel betting on horses amounted to legislative classification which was reasonable and so not violative of this section. Commonwealth v. Kentucky Jockey Club, 238 Ky. 739 , 38 S.W.2d 987, 1931 Ky. LEXIS 321 ( Ky. 1931 ).

Educational qualifications law which provided that board members in office at time law went into effect might be reelected regardless of such qualifications was constitutional as setting up reasonable and natural class. Commonwealth v. Griffen, 268 Ky. 830 , 105 S.W.2d 1063, 1937 Ky. LEXIS 536 ( Ky. 1937 ).

KRS 186.050(4), farmer’s truck license law would not be read as denying license to one who, although engaged in another business besides farming, proposed to use his truck as farmer’s truck, since to do so would raise grave issue as to constitutionality under this section. Fischer v. Grieb, 272 Ky. 166 , 113 S.W.2d 1139, 1938 Ky. LEXIS 93 ( Ky. 1938 ).

KRS 243.220 , in classifying drug stores, hotels and private clubs as proper dispensers of liquor, and giving them privileges which are denied to other licensees, uses a rational basis for classification, and does not violate this section. Beacon Liquors v. Martin, 279 Ky. 468 , 131 S.W.2d 446, 1939 Ky. LEXIS 304 ( Ky. 1939 ).

An act requiring that certain appliances be sold only by registered pharmacists was based on a proper classification, where it was reasonable to assume that pharmacists were especially qualified to determine whether appliances complied with specifications required by act. Markendorf v. Friedman, 280 Ky. 484 , 133 S.W.2d 516, 1939 Ky. LEXIS 130 ( Ky. 1939 ).

This section does not forbid a classification based on reasonable and natural distinctions, and an act making a classification will only be voided where the classification is manifestly arbitrary and unreasonable so as to exclude one or more of a class without reasonable basis in fact. Markendorf v. Friedman, 280 Ky. 484 , 133 S.W.2d 516, 1939 Ky. LEXIS 130 ( Ky. 1939 ).

Law that provided for aid to the needy blind was not in contravention of this section and was valid since this section does not apply where payments are made in discharge of an inherent duty. Aid to the needy blind is a payment by the state in discharge of a duty to a recipient who is entitled to it as of right, having established his eligibility under the act. Bowman v. Frost, 289 Ky. 826 , 158 S.W.2d 945, 1942 Ky. LEXIS 557 ( Ky. 1942 ).

Statutes providing state aid for dependent children did not violate this section. The fact that aid was provided only for children living with certain relatives did not constitute an unreasonable classification. Meredith v. Ray, 292 Ky. 326 , 166 S.W.2d 437, 1942 Ky. LEXIS 81 ( Ky. 1942 ).

KRS 231.020 does not violate this section, although it regulates only places of entertainment located outside of cities, since there is a reasonable basis for such classification arising from the fact that cities have police protection. Ratliff v. Hill, 293 Ky. 36 , 168 S.W.2d 336, 1943 Ky. LEXIS 556 ( Ky. 1943 ).

This section prevents class legislation. W. W. Mac Co. v. Teague, 297 Ky. 475 , 180 S.W.2d 387, 1944 Ky. LEXIS 752 ( Ky. 1944 ).

Car rental agencies constituted proper class for regulation by law providing for insurance covering operation of rented cars and law was thus not violative of this section. Reeves v. Wright & Taylor, 310 Ky. 470 , 220 S.W.2d 1007, 1949 Ky. LEXIS 950 ( Ky. 1949 ).

Stipulation of KRS 132.380 , exempting incumbent county tax commissioners from necessity of taking further examination in order to succeed themselves, was not discriminatory to persons seeking nomination and election to such office, since classification of incumbents was germane to purpose of such law and therefore was not violative of this section or Const., § 59. Department of Revenue ex rel. Allphin v. Turner, 260 S.W.2d 658, 1953 Ky. LEXIS 983 ( Ky. 1953 ).

The provision in the uniform support of dependents act does not violate this section, in that it grants the privilege of free legal representation to a dependent person when the person liable to support is in another state, but denies such privilege when the person liable to support is within the state, as this constitutes a reasonable classification. Duncan v. Smith, 262 S.W.2d 373, 1953 Ky. LEXIS 1090 ( Ky. 1953 ).

Former law regarding qualification of private schools for education of exceptional children had a valid public purpose within the scope and spirit of this section, Const., §§ 171 and 177. Butler v. United Cerebral Palsy, Inc., 352 S.W.2d 203, 1961 Ky. LEXIS 200 ( Ky. 1961 ).

Under KRS 157.305 (repealed), exceptional children, for whose education the common schools are not adequate, are proper subjects of classification. Butler v. United Cerebral Palsy, Inc., 352 S.W.2d 203, 1961 Ky. LEXIS 200 ( Ky. 1961 ).

Law that established two (2) general classes of voters who were eligible to vote by absentee ballot, federal employees and full-time students, did not violate this section. Hallahan v. Mittlebeeler, 373 S.W.2d 726, 1963 Ky. LEXIS 171 ( Ky. 1963 ).

An ordinance that authorizes all vehicles engaged in a funeral procession to proceed through or against red traffic lights is not class legislation which is forbidden by this section. Newman v. Lee, 471 S.W.2d 293, 1971 Ky. LEXIS 229 ( Ky. 1971 ).

Without a showing of compelling governmental interest, the policy of a school board in showing preference for the employment of natives of the county constituted an inherently suspect classification, unconstitutionally discriminatory and preferential in violation of this section and Const., §§ 1 and 2. Johnson v. Dixon, 501 S.W.2d 256, 1973 Ky. LEXIS 128 ( Ky. 1973 ).

3.Consideration.

“Consideration,” as that term is used in this section, does not mean “consideration” in a contractual sense, but means “because of” or “on account of” services rendered. Talbott v. Thomas, 286 Ky. 786 , 151 S.W.2d 1, 1941 Ky. LEXIS 277 ( Ky. 1941 ).

4.Corporations.

The fact that the statute excepts certain classes of corporations from the operation of the section imposing a personal liability upon stockholders does not render it unconstitutional, as the action of the legislature in making such a classification will not be disturbed unless manifestly arbitrary and unjust. Williams v. Nall, 108 Ky. 21 , 55 S.W. 706, 21 Ky. L. Rptr. 1526 , 1900 Ky. LEXIS 6 ( Ky. 1900 ).

A foreign telegraph corporation engaged in interstate commerce is not entitled to construct its poles and wires on the streets of a city without payment of compensation. Postal Tel. Cable Co. v. Newport, 25 Ky. 635 , 76 S.W. 159, 25 Ky. L. Rptr. 635 , 1903 Ky. LEXIS 295 (Ky. Ct. App. 1903).

A Kentucky statute prohibiting persons and corporations from maintaining schools for both white persons and Negroes is separable, and even if an unconstitutional restraint as to individuals, it is not unconstitutional as to corporations, it being within the power of the state to determine the power conferred upon its corporations. Berea College v. Kentucky, 211 U.S. 45, 29 S. Ct. 33, 53 L. Ed. 81, 1908 U.S. LEXIS 1526 (U.S. 1908).

5.Emoluments or Privileges.

Law which related to the pooling of agricultural products for the purpose of sale did not grant any exclusive, separate public emoluments or privileges, but simply selected a class and provided what it might do, without withholding the privilege from others. Owen County Burley Tobacco Soc. v. Brumback, 128 Ky. 137 , 107 S.W. 710, 32 Ky. L. Rptr. 916 , 1908 Ky. LEXIS 38 ( Ky. 1908 ).

KRS 244.390 (now repealed), relating to regulation of liquor sales and minimum mark-up resale prices thereon, was not for sole benefit of dealers and did not grant exclusive emoluments or privileges. Reeves v. Simons, 289 Ky. 793 , 160 S.W.2d 149, 1942 Ky. LEXIS 637 ( Ky. 1942 ).

Since property and bonds of municipal housing commission were properly exempt from taxation under Const., §§ 170 and 171, such exemption did not grant exclusive, separate public emoluments or privileges under this section. Webster v. Frankfort Housing Com., 293 Ky. 114 , 168 S.W.2d 344, 1943 Ky. LEXIS 559 ( Ky. 1943 ).

Statutory provision of subsection (2) of KRS 321.210 (now repealed), authorizing issuance of veterinary license, without examination, to persons who had practiced for one year prior to effective date of original licensing law enacted in 1916, which provision was contained in a 1948 act revising the veterinary law, was not unconstitutional as being special or class legislation or as granting special privileges or emoluments. Doller v. Reid, 308 Ky. 348 , 214 S.W.2d 584, 1948 Ky. LEXIS 939 ( Ky. 1948 ).

6.— Emoluments.

This section did not apply to payments made to stimulate prisoners to render better service and obedience during confinement since such payments were made in exercise of police power relative to reformation of prisoners. State Board of Charities & Corrections v. Hays, 190 Ky. 147 , 227 S.W. 282, 1920 Ky. LEXIS 554 ( Ky. 1920 ).

Even if one who assisted police officer were entitled to compensation for such assistance, this section would not cover personal injuries sustained while performing such services. Caudill v. Pinsion, 233 Ky. 12 , 24 S.W.2d 938, 1930 Ky. LEXIS 498 ( Ky. 1930 ).

Where city ordinance and contract provided that railroad company be reimbursed by the city to the amount of that portion of the cost of sewers and sewer disposal plant assessed on railroad company’s land, it was invalid under this section on ground of discrimination. Corbin v. Louisville & N. R. Co., 233 Ky. 709 , 26 S.W.2d 539, 1930 Ky. LEXIS 630 ( Ky. 1930 ).

Emolument means a profit from office, employment or labor, compensation, perquisites, fees or salary. Talbott v. Thomas, 286 Ky. 786 , 151 S.W.2d 1, 1941 Ky. LEXIS 277 ( Ky. 1941 ).

Law that provided for $5,000 annual pensions for judges of the Court of Appeals, violated this section and Const., § 246, because the pensions amounted to additional compensation, which exceeded the constitutional salary limit. Talbott v. Thomas, 286 Ky. 786 , 151 S.W.2d 1, 1941 Ky. LEXIS 277 ( Ky. 1941 ).

This section does not prohibit paying compensation to public officer during periods of absence from work. Miller v. Robertson, 306 Ky. 653 , 208 S.W.2d 977, 1948 Ky. LEXIS 631 ( Ky. 1948 ).

Compensation from public funds to state employee on leave from regular duties for purposes of attending school to better qualify herself to perform her duties is prohibited by this section. Barnes v. Adams, 305 S.W.2d 754, 1957 Ky. LEXIS 325 ( Ky. 1957 ).

Former law providing that legislative body of second-class cities by proper legislation could provide for pension fund for police judges and ordinance providing for such pension fund were not unconstitutional under this section since the services performed by the judges were public services and this section sets no limitation on the salaries that may be paid to a public officer for his services but merely provides that no emoluments may be granted except for public service. Maybury v. Coyne, 312 S.W.2d 455, 1958 Ky. LEXIS 225 ( Ky. 1958 ).

Statute authorizing retirement pensions to police judges and ordinance of city setting up a pension fund pursuant to such statute are constitutional. Maybury v. Coyne, 312 S.W.2d 455, 1958 Ky. LEXIS 225 ( Ky. 1958 ).

Subsection (3) of KRS 21.365 (now repealed), which attempted to provide a pension for judges who were in service during a period when the retirement program was not in effect, was unconstitutional as a violation of this section. Littleton v. Reed, 456 S.W.2d 695, 1970 Ky. LEXIS 232 ( Ky. 1970 ).

Where a county fiscal court could not justify paying at least $9,600 to each of its three (3) justices of the peace based upon the present absence of public services performed by them, the solution would be for the magistrates to request the Kentucky legislature to either increase the duties of those not serving on a fiscal court, or, in the alternative for the fiscal court, to be permitted to establish a salary below $9,600 in line with services actually performed. Roland v. Jefferson County Fiscal Court, 599 S.W.2d 469, 1980 Ky. App. LEXIS 320 (Ky. Ct. App. 1980).

7.— Privileges.

New corporation formed under 1893 consolidation law at time when such law was in effect, could claim no right to exclusive privilege to conduct business conferred by law enacted prior to adoption of this section. Shaw v. Covington, 194 U.S. 593, 24 S. Ct. 754, 48 L. Ed. 1131, 1904 U.S. LEXIS 796 (U.S. 1904).

If a statute grants exclusive privileges, it violates not only this section, but United States Const., Amend. 14. Owen County Burley Tobacco Soc. v. Brumback, 128 Ky. 137 , 107 S.W. 710, 32 Ky. L. Rptr. 916 , 1908 Ky. LEXIS 38 ( Ky. 1908 ).

A statute providing that the use of certain containers without the written consent of the person whose brand is on them and recorded, shall be presumptive evidence of the unlawful use of such containers, is not violative of this section forbidding a grant of separate privileges. Commonwealth v. Goldburg, 167 Ky. 96 , 180 S.W. 68, 1915 Ky. LEXIS 818 ( Ky. 1915 ).

Law violated this section in providing that certain number of students per county by population would be given free tuition and rooming at state university, since such students thereby received exclusive privileges. Barker v. Crum, 177 Ky. 637 , 198 S.W. 211, 1917 Ky. LEXIS 665 ( Ky. 1917 ) ( Ky. 1917 ).

It was not necessary that the privileges of the white and colored races be identical, it was sufficient that they were equal therefor and law that provided for a visitor for colored schools only was not violation of this section, the effect of the act being to provide an officer who took place of trustee. Daviess County Board of Education v. Johnson, 179 Ky. 34 , 200 S.W. 313, 1918 Ky. LEXIS 171 ( Ky. 1918 ).

Law which regulated automobile transportation companies, which specifically excluded cars having seating capacity of five (5) or less from its provisions except as to payment of fees, did not violate this section. Reo Bus Lines Co. v. Southern Bus Line Co., 209 Ky. 40 , 272 S.W. 18, 1925 Ky. LEXIS 421 ( Ky. 1925 ). See Harrison v. Big Four Bus Lines, 217 Ky. 119 , 288 S.W. 1049, 1926 Ky. LEXIS 26 ( Ky. 1926 ).

A public privilege is a privilege to participate in the formation, administration and conduct of government. Talbott v. Thomas, 286 Ky. 786 , 151 S.W.2d 1, 1941 Ky. LEXIS 277 ( Ky. 1941 ).

Legislative resolution appropriating funds to reimburse former state treasurer for money expended by him while in office did not violate this section by granting special privilege to him. Department of Finance v. Dishman, 298 Ky. 545 , 183 S.W.2d 540, 1944 Ky. LEXIS 948 ( Ky. 1944 ).

The specific distinction between this section and Const., § 171 is that the provisions of this section forbid a special privilege, while the provisions of Const., § 171 require a public purpose. Nichols v. Henry, 301 Ky. 434 , 191 S.W.2d 930, 1945 Ky. LEXIS 746 ( Ky. 1945 ).

Law naming American Legion as nominating agency with respect to members of disabled veterans’ board, was not unconstitutional grant of privilege, since such agency’s members did not receive any special benefit or privilege, and since objective of legislation was to care for interests of disabled veterans or their dependents. Elrod v. Willis, 305 Ky. 225 , 203 S.W.2d 18, 1947 Ky. LEXIS 778 ( Ky. 1947 ).

KRS 96.172 relating to municipal utility plants in third-class cities, imposing restrictions on appointment of board members and employment of superintendent and employees, with view to preventing political interference and nepotism, did not grant exclusive privileges in violation of this section. Settle v. Jones, 306 Ky. 9 , 206 S.W.2d 59, 1947 Ky. LEXIS 946 ( Ky. 1947 ).

A metropolitan sewer district, created to take over and operate the sewer system of a city of the first class, was bound by the terms of an existing sewer-service contract between the city and a contiguous area, and adherence to the contract rates was not the granting of an exclusive privilege within the meaning of this section. Louisville & Jefferson County Metropolitan Sewer Dist. v. Strathmoor Village, 307 Ky. 343 , 211 S.W.2d 127, 1948 Ky. LEXIS 739 ( Ky. 1948 ).

Act 1948, ch. 118, requiring city of first class, on annexation of sanitation district, to assume revenue bond obligations of district to be payable out of general funds of city, was unconstitutional in that, in relieving the property owners of the district of the obligation of paying for their own sewer system, it was the granting of an exclusive privilege in contravention of this section. Sanitation Dist. of Jefferson County v. Louisville, 308 Ky. 368 , 213 S.W.2d 995, 1948 Ky. LEXIS 879 ( Ky. 1948 ).

Law providing that no candidate defeated for office in primary could have his name printed on ballot for general election for same office except candidates for judge of Court of Appeals or circuit court, did not confer special rights and privileges on candidates for such judgeships in violation of this section. Rosenberg v. Queenan, 261 S.W.2d 617, 1953 Ky. LEXIS 1025 ( Ky. 1953 ).

Personalized license plates containing the call letters of an amateur radio operator, as provided in KRS 186.177 , or containing the office and district of a member of the General Assembly, as provided in KRS 186.178 , are not unconstitutional symbols of privilege or special favor but are merely badges of identification. Maynard v. Commonwealth, 538 S.W.2d 38, 1976 Ky. LEXIS 60 ( Ky. 1976 ).

The provision of former law limiting the number of members insured in the patient compensation fund did not confer a special privilege in violation of this section. McGuffey v. Hall, 557 S.W.2d 401, 1977 Ky. LEXIS 533 ( Ky. 1977 ).

Although this section and Section 179 of the Kentucky Constitution could prohibit an outright gift or lending of credit, these sections do not prevent all public incentives when offered in furtherance of a valid public service, such as economic development efforts. Dannheiser v. City of Henderson, 4 S.W.3d 542, 1999 Ky. LEXIS 114 ( Ky. 1999 ).

The sale of municipal property to private companies was for a proper public purpose where the city’s sole purpose was to develop a corporate park so as to foster economic development by attempting to retain existing industry as well as to attract new industry to its local community; further, in order to show such public purpose, the city was not required to prove by clear and convincing evidence that unemployment was a widespread problem in the vicinity and, instead, only needed to prove that the development had a reasonable or sufficient relationship to the purpose of economic growth. Dannheiser v. City of Henderson, 4 S.W.3d 542, 1999 Ky. LEXIS 114 ( Ky. 1999 ).

8.Equal Protection.

Law providing that taxes raised from property owned by white persons could not be applied to use of Negro schools was unconstitutional as in violation of equal protection clause of Constitution. Trustees of Graded Free Colored Common Schools v. Trustees of Graded Free White Common Schools, 180 Ky. 574 , 203 S.W. 520, 1918 Ky. LEXIS 114 ( Ky. 1918 ).

Reciprocity clause was not intended to permit nonresidents to do business regularly in this state without complying with regulations and paying taxes observed and paid by residents, since otherwise such clause would violate equality provision of this section. Reeves v. Deisenroth, 288 Ky. 724 , 157 S.W.2d 331, 1941 Ky. LEXIS 197 ( Ky. 1941 ).

That part of KRS 277.330 which imposed duty upon railroad company of proving itself free from negligence in killing or injury of cattle by its engine or cars, was invalid as being contrary to purpose of this section with respect to equal protection. Louisville & N. R. Co. v. Faulkner, 307 S.W.2d 196, 1957 Ky. LEXIS 83 ( Ky. 1957 ) (decision prior to 1966 amendment of KRS 277.330 ).

Both local acts and special laws are prohibited by Const., § 59 as well as by guarantees of equal protection of United States Const., Amend. 14 and this section. Louisville v. Klusmeyer, 324 S.W.2d 831, 1959 Ky. LEXIS 396 ( Ky. 1959 ).

Where lawyer was convicted on three (3) counts of failure to file federal income tax returns, disciplinary action against him under SCR 3.130 did not deny him equal protection of the laws. Kentucky Bar Asso. v. Kramer, 555 S.W.2d 245, 1977 Ky. LEXIS 498 ( Ky. 1977 ) (decision prior to 1978 amendment of SCR 3.130).

The requirements of former law regarding patients’ compensation fund that all physicians and hospitals be members of and contribute to the patient compensation fund was not an arbitrary classification. McGuffey v. Hall, 557 S.W.2d 401, 1977 Ky. LEXIS 533 ( Ky. 1977 ).

The fact that statutes of limitations do not apply to the initiation of disciplinary proceedings against attorneys does not deprive attorneys of equal protection. Kentucky Bar Asso. v. Signer, 558 S.W.2d 582, 1977 Ky. LEXIS 535 ( Ky. 1977 ).

The agriculture exclusion contained in the Workers’ Compensation Act is not violative of the equal protection clauses of the state and federal Constitutions because of discriminatory classification of workers. Fitzpatrick v. Crestfield Farm, Inc., 582 S.W.2d 44, 1978 Ky. App. LEXIS 678 (Ky. Ct. App. 1978).

Where the profits or losses of a hospital did not relate to alleged sex discrimination in composition of the board of directors and could not be considered an indispensable element in the financial success of a government agency, where property was conveyed by state to hospital with right of reverter should the property cease to be used as a medical facility but such reverter was merely part of business transaction in which hospital would be recompensed for the property, where benefits derived by state university from location of hospital were merely incidental to contract between state and hospital, and where city’s issuance of bonds for expansion of hospital was collateralized by transfer of title to city only during the period of the loan so that the city had no daily role in the business affairs of the hospital, there was no showing of state action and requirement of hospital’s bylaws that the board of directors consist of 12 women did not violate equal protection. Pattie A. Clay Infirmary Asso. v. First Presbyterian Church, 605 S.W.2d 52, 1980 Ky. App. LEXIS 368 (Ky. Ct. App. 1980).

Section 59 of the Constitution is more than simply another way of restating the generalized language of the equal protection clause of the Fourteenth Amendment to the United States Constitution; this section and Const., §§ 1 and 2, which provide that the General Assembly is denied arbitrary power and shall treat all persons equally, suffice to embrace the equal protection clause to the Fourteenth Amendment. Tabler v. Wallace, 704 S.W.2d 179, 1985 Ky. LEXIS 291 ( Ky. 1985 ), cert. denied, 479 U.S. 822, 107 S. Ct. 89, 93 L. Ed. 2d 41, 1986 U.S. LEXIS 3436 (U.S. 1986).

KRS 189A.070 , governing license revocation for operating a motor vehicle while under the influence of alcohol, does not fail the “rational basis test” of equal protection, it does not constitute special legislation in contravention of Const., § 59, it does not violate this section, and it does not contravene the prohibition against cruel and unusual punishment found in the Eighth Amendment to the United States Constitution and Const., § 17. Praete v. Commonwealth, 722 S.W.2d 602, 1987 Ky. App. LEXIS 416 (Ky. Ct. App. 1987).

Although the striking of one (1) black juror for a racial reason is an equal protection violation, even where other black jurors are seated, and even when valid reasons for the striking of some black jurors are shown, that does not mean the striking of one (1) black juror can constitute a prima facie case if the racial reason is not apparent from statistical inference or other reasons; the defendant must show he is a member of a racial group, that the prosecutor used peremptory challenges to exclude members of that group, and that these facts and other circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race. Pottinger v. Warden, Northpoint Training Center, 716 F. Supp. 1005, 1989 U.S. Dist. LEXIS 7965 (W.D. Ky. 1989 ), aff'd, 899 F.2d 1222 (6th Cir. Ky. 1990 ).

A female defendant is not denied equal protection under the law when the Commonwealth peremptorily challenges female jurors, as the prohibitions concerning the utilization of peremptory challenges, as described in Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69, 1986 U.S. LEXIS 150 (1986) do not extend beyond racial discrimination. Hannan v. Commonwealth, 774 S.W.2d 462, 1989 Ky. App. LEXIS 92 (Ky. Ct. App. 1989).

Where metropolitan sewer district utilized a rate structure based upon the equivalent service unit approach, this was a reasonable and rational classification and was uniform for all residential property. Long Run Baptist Asso. v. Louisville & Jefferson County Metropolitan Sewer Dist., 775 S.W.2d 520, 1989 Ky. App. LEXIS 106 (Ky. Ct. App. 1989).

The ordinary duties of a school principal differ greatly from those of a school teacher, as administrative personnel have either fiscal management duties and educational supervisory duties, or both, with responsibilities which are quite different from those of classroom teachers; the role of an administrator in carrying out policy and in formulating overall policy is also quite different from that of a teacher, and it is certainly not beyond reason that the legislature would deem it advisable not to give one whose supervisory and policy role is so different, the same kind of job protection given to a classroom teacher. Hooks v. Smith, 781 S.W.2d 522, 1989 Ky. App. LEXIS 151 (Ky. Ct. App. 1989).

The proper test to be applied under the equal protection clause of the Kentucky Constitution is whether there is a rational basis for the different treatment of school administrators from that of school teachers. Hooks v. Smith, 781 S.W.2d 522, 1989 Ky. App. LEXIS 151 (Ky. Ct. App. 1989).

Strip mining regulation which denies a due process hearing to an aggrieved party based solely on his financial inability to pay the penalties which he seeks to appeal is unconstitutional, in violation of the equal protection clauses of both the United States and Kentucky Constitutions. Franklin v. Natural Resources & Environmental Protection Cabinet, 799 S.W.2d 1, 1990 Ky. LEXIS 75 ( Ky. 1990 ).

KRS 510.100 , which criminalized deviate sexual intercourse between consenting adults of the same sex, even if the act was committed in the privacy of a home, violated the Kentucky Constitution as: (1) An invasion of a constitutionally protected right of privacy; and (2) invidious discrimination in violation of constitutionally protected rights to equal treatment. Commonwealth v. Wasson, 842 S.W.2d 487, 1992 Ky. LEXIS 140 ( Ky. 1992 ).

No denial of equal protection of the law or discrimination occurred by virtue of plaintiff’s dissolution of marriage case being assigned to an elected District Judge sitting as an approved special Circuit Judge because such a submission could have resulted regardless of whether the cases were assigned alphabetically or in any other manner. Kuprion v. Fitzgerald, 888 S.W.2d 679, 1994 Ky. LEXIS 135 ( Ky. 1994 ).

Ordinance which restricted the use of free standing signs within city limits by reducing their maximum allowable size did not violate plaintiffs’ right to equal protection under Const., §§ 1 or 3 since the plaintiffs did not allege that they belonged to a suspect class and the ordinance did not burden either plaintiffs’ fundamental right of free speech or fundamental right to just compensation for a taking of property. Wilson v. City of Louisville, 957 F. Supp. 948, 1997 U.S. Dist. LEXIS 2897 (W.D. Ky. 1997 ).

Where in amending ordinance which further restricted the use of small freestanding signs within city limits by reducing their maximum allowable size, the planning commission based its decision on two (2) separate public hearings in which the opponents and proponents of the amendments testified and the commission adopted findings that held that the proscribed portable signs were detrimental to both the aesthetics and safety of the city, the ordinance was related to the commissions goals of aesthetic improvement and safety and did not violate Const., §§ 1 or 3. Wilson v. City of Louisville, 957 F. Supp. 948, 1997 U.S. Dist. LEXIS 2897 (W.D. Ky. 1997 ).

The “cost of production” includes the cost of raw materials as well as the cost of processing; thus, a vegetable oil refining and distribution company was required to include the cost of the crude oil itself in its cost of production for the purposes of the revenue statute. Also, the fact that the cost-of-energy computation must be made on the basis of plant facilities at one (1) location does not serve to limit taxpayer’s production costs. Further, the statute does not violate the equal protection provisions of the Kentucky Constitution because a processor of bought materials is not similarly situated to a processor of materials owned by others or a processor of its own materials. Louisville Edible Oil Prods. v. Revenue Cabinet Commonwealth, 957 S.W.2d 272, 1997 Ky. App. LEXIS 81 (Ky. Ct. App. 1997).

“Zero tolerance” provisions of KRS 189A.010 , pertaining to underage drinking and driving, are rationally related to a legitimate state purpose and are based on a valid distinction; therefore, such provisions are valid under the equal protection clauses of the United States and Kentucky Constitutions and do not constitute special legislation in violation of Ky. Const., § 59. Commonwealth v. Howard, 969 S.W.2d 700, 1998 Ky. LEXIS 95 ( Ky. 1998 ).

The proof requirement of KRS 391.105 , which pertains to intestate succession of persons born out of wedlock, does not violate the equal protection clauses of the federal or state Constitution. Harris v. Stewart, 981 S.W.2d 122, 1998 Ky. App. LEXIS 14 (Ky. Ct. App. 1998).

There was no rational basis for the geographically-based distinction created by KRS 159.051 between students subject to losing their operator’s licenses under the statute and students precluded from the statute; thus, KRS 159.051 was unconstitutional. D.F. v. Codell, 127 S.W.3d 571, 2003 Ky. LEXIS 262 ( Ky. 2003 ).

As the negative, secondary effects associated with sexually-oriented businesses were unique to those establishments, the fiscal court could have reasonably concluded that an establishment which regularly featured adult entertainment would be more likely to attract the negative, secondary effects associated with sexually-oriented businesses than an establishment which only occasionally featured adult-type entertainment; thus, regulations of McCracken County, Ky., Ordinance No. 2000-4 prohibiting nude dancing were not in violation of the Equal Protection Clause of the Kentucky Constitution. Jameson v. Commonwealth, 2004 Ky. App. LEXIS 229 (Ky. Ct. App. Aug. 6, 2004), rev'd in part, 215 S.W.3d 9, 2006 Ky. LEXIS 290 ( Ky. 2006 ).

Trial court’s order that allowed the mother to impute a child support obligation for a prior-born child, pursuant to KRS 403.212(2)(g)(4), was upheld because the statute protected a legitimate state interest in assuring that the prior-born child was cared for and the statute did not violate the father’s equal protection rights because he could not take a similar deduction for his after-born child. Kimbrough v. Child Support Div. ex rel. Belmar, 215 S.W.3d 69, 2006 Ky. App. LEXIS 226 (Ky. Ct. App. 2006).

KRS 218A.500 and KRS 218A.510 were constitutional, as applied to defendant. The statutes were not overbroad, because the facts surrounding defendant’s arrest provided a context to support a citation for possession of drug paraphernalia; the statutes were not vague, as they clearly gave a person of common intelligence notice of what was unlawful under the statutes; and the statutes did not violate defendant’s equal protection rights under Ky. Const. §§ 1, 2, and 3, as nothing in either statute could be construed as treating like persons differently. Atkins v. Commonwealth, 2007 Ky. App. LEXIS 285 (Ky. Ct. App. Aug. 17, 2007), review denied, ordered not published, 2007 Ky. LEXIS 257 (Ky. Nov. 15, 2007).

Although a classification between fire and casualty insurance companies that insured property or risks within the unincorporated areas of the county and those that did not could have had a rational basis, where a resident of the unincorporated area had alleged that the county placed revenue from the insurance license tax in a sinking fund which benefitted all citizens of the county, not just those in the unincorporated areas of the county, because that fact was in dispute, a motion to dismiss the equal protection claim was denied Rose v. Daviess County Fiscal Court, 2007 U.S. Dist. LEXIS 82481 (W.D. Ky. Nov. 5, 2007).

Where defendant’s newborn child testified positive for cocaine, trying her for first degree wanton endangerment of her unborn child under KRS 508.060(1) did not violate her due process and equal protection rights under Ky. Const. §§ 2, 3, and 11; abortion laws did not grant a woman the unfettered guarantee to an abortion at any time and certainly not to one on the day a woman gave birth. Commonwealth v. Cochran, 2008 Ky. App. LEXIS 8 (Ky. Ct. App. Jan. 11, 2008), sub. op., 2008 Ky. App. Unpub. LEXIS 733 (Ky. Ct. App. Jan. 11, 2008), rev'd, 315 S.W.3d 325, 2010 Ky. LEXIS 157 ( Ky. 2010 ).

A State Health Plan issued by the Cabinet for Health and Family Services which established criteria for a pilot project to study the risks and benefits of allowing angioplasty at hospitals without immediate access to an open-heart surgery facility, was limited to one hospital in eastern Kentucky and one hospital in western Kentucky, and required the hospitals to be located thirty minutes from an on-site open-heart surgery center, was not unconstitutional, as: (1) such did not constitute special or local legislation, in violation of Ky. Const. §§ 59 and 60; (2) the classification was reasonable, natural, and consistent with the legitimate purpose of the government; and (3) it passed the rational basis test. St. Luke Hosps., Inc. v. Commonwealth, 254 S.W.3d 830, 2008 Ky. App. LEXIS 146 (Ky. Ct. App. 2008).

Consensus procedure required by KRS 342.316 for proving the existence of coal workers’ pneumoconiosis, and the clear and convincing standard required to rebut such a consensus, violated the equal protection guarantees of U.S. Const. amend. XIV and Ky. Const. § 1-3 because there was no rational basis or substantial and justifiable reason for the disparate treatment of coal workers. Pneumoconiosis caused by exposure to coal dust was the same disease as pneumoconiosis caused by exposure to dust particles in other industries, yet coal workers faced different, higher standard-of-proof requirements than those other workers. Vision Mining, Inc. v. Gardner, 364 S.W.3d 455, 2011 Ky. LEXIS 177 ( Ky. 2011 ).

Because the “Statute” (Ky. Rev. Stat. § 243.230(5) and its accompanying regulation, 804 Ky. Admin. Regs. 4:270) failed review under U.S. Const. amend. XIV, it likewise failed whatever review applied under the Kentucky Constitution. Maxwell's Pic-Pac, Inc. v. Dehner, 887 F. Supp. 2d 733, 2012 U.S. Dist. LEXIS 114420 (W.D. Ky. 2012 ), aff'd in part and rev'd in part, 739 F.3d 936, 2014 FED App. 15P, 2014 U.S. App. LEXIS 761 (6th Cir. Ky. 2014 ), dismissed, 2014 U.S. Dist. LEXIS 93572 (W.D. Ky. July 9, 2014).

Employee's claim that Ky. Rev. Stat. Ann. § 342.732(1)(a)(7) violated equal protection was subject to rational basis review given that workers' compensation statutes concerned matters of social and economic policy. Ballou v. Enter. Mining Co, LLC, 512 S.W.3d 724, 2017 Ky. LEXIS 78 ( Ky. 2017 ).

Ky. Rev. Stat. Ann. § 342.732(1)(a)(7) did not violate equal protection because paying employees between the ages of 57 and 65 a monetary benefit that was not tied to retraining may have encouraged them to leave the coal mining industry, thus removing employees susceptible to more severe impairment from the work place, and as a result, treating retraining incentive benefits eligible employees differently was rationally related to the purpose of those benefits. Ballou v. Enter. Mining Co, LLC, 512 S.W.3d 724, 2017 Ky. LEXIS 78 ( Ky. 2017 ).

2017 Ky. Acts 1 does not violate the equal protection provisions of the Kentucky Constitution; the legislature clearly established a rational basis for the Act, to promote economic development, to promote job growth, and to remove Kentucky’s economic disadvantages in competing with neighboring states. Zuckerman v. Bevin, 565 S.W.3d 580, 2018 Ky. LEXIS 502 ( Ky. 2018 ).

Employers might be attracted to locate in a state where wages are lower as opposed to a state where wages are higher, and to the extent this conclusion might be characterized as speculative, it is undoubtedly rational; the legislature can clearly make a policy decision that 2017 Ky. Acts 1 might result in more jobs, albeit at lower wages, and that this result, in turn, might benefit the overall economic climate of Kentucky. Zuckerman v. Bevin, 565 S.W.3d 580, 2018 Ky. LEXIS 502 ( Ky. 2018 ).

Rational basis review is appropriate for evaluating 2017 Ky. Acts 1 since the Act is expressly permitted by the Taft-Hartley Act. Zuckerman v. Bevin, 565 S.W.3d 580, 2018 Ky. LEXIS 502 ( Ky. 2018 ).

9.Fiscal Courts.

Statute organizing farm bureaus to advance agriculture in cooperation with state college of agriculture and United States department of agriculture and providing for appropriation by fiscal courts to such purpose did not violate this section. Hendrickson v. Taylor County Farm Bureau, 196 Ky. 75 , 244 S.W. 82, 1922 Ky. LEXIS 456 ( Ky. 1922 ).

Where a fiscal court resolution provided that cable television franchises would be awarded to the highest bidder in each district, the fiscal court having determined that such a method of operation was in the best interest of the community, the resolution was within the fiscal court’s authority and since all cable operators were treated alike, was not an exercise of police power to promote private industry. Akers v. Floyd County Fiscal Court, 556 S.W.2d 146, 1977 Ky. LEXIS 518 ( Ky. 1977 ).

A county fiscal court’s resolution which provided approximately 65 percent of the total cost of transporting non-public elementary school students was not unconstitutional where (1) funds were not paid directly to any private or parochial school and were, instead, paid to the individual local board of education operated transportation system of contracted bus and vehicle companies, (2) the benefit provided by the resolution went directly toward the safety and welfare of elementary age school children and not into the accounts of non-public schools, and (3) the resolution did not establish a tuition ceiling as a requisite to eligibility for the transportation subsidy. Neal v. Fiscal Court, 986 S.W.2d 907, 1999 Ky. LEXIS 24 ( Ky. 1999 ).

When a county commissioner was also a member of the fiscal court, under Ky. Const., § 144, the county government’s merger into an urban county or merged government did not allow an elimination or reduction of the commissioner’s compensation, despite Ky. Const., § 3, prohibiting the payment of public funds to an official who had no duties, as his position was constitutionally created, and could not be abolished by the General Assembly. Owens v. Maze, 132 S.W.3d 874, 2003 Ky. App. LEXIS 101 (Ky. Ct. App. 2003).

10.Food and Drink.

A second-class city ordinance prohibiting retailing meats from vehicles did not violate this or any other section of bill of rights of the Constitution of Kentucky. Hahn v. Newport, 175 Ky. 185 , 194 S.W. 114, 1917 Ky. LEXIS 304 ( Ky. 1917 ).

11.Police Power.

A ferry franchise under this section is subject to alteration, and a statute prohibiting operation of a ferry within one mile of existing ferry is in nature of a police regulation and is not unconstitutional. State Highway Com. v. Smith, 250 Ky. 269 , 62 S.W.2d 1044, 1933 Ky. LEXIS 685 ( Ky. 1933 ).

If a classification made by the legislature under the police power is not so arbitrary as to be unreasonable, and is put upon a rational basis which is calculated to protect the public health, safety or morals, it is valid. Beacon Liquors v. Martin, 279 Ky. 468 , 131 S.W.2d 446, 1939 Ky. LEXIS 304 ( Ky. 1939 ).

12.Public Services.

Legislative grant to city gas company of exclusive 20-year privilege of establishing gas works and supplying city with gas, constituted contract which was not violative of provision of former Constitution that forbade separate public emoluments or privileges for any man, or group of men, since services undertaken to be performed by such company were public services. Louisville Gas Co. v. Citizens' Gas Co., 115 U.S. 683, 6 S. Ct. 265, 29 L. Ed. 510, 1885 U.S. LEXIS 1881 (U.S. 1885) (decided under prior law).

Law that incorporated a private police and detective agency, and provided that members thereof who gave a bond and took an oath to faithfully perform the duties of their office would have authority to arrest and imprison, and required no public service and no qualification except ability to read and write English, and put no limit on the time a member could discharge such powers, was unconstitutional. Swincher v. Commonwealth, 72 S.W. 306, 24 Ky. L. Rptr. 1897 , 1903 Ky. LEXIS 301 (Ky. Ct. App. 1903).

A fire and life protective association incorporated under a special act not subject to municipal or public control, and whose expenses were paid by fire insurance companies doing business in the city, and whose members acted as agents of and for benefit of insurance companies, though incidentally protecting life and property, was not engaged in a public service under this section, and an act insofar as it purported to give the association a right of way through the streets and alleys, subject only to rights of the fire department, was void. Louisville R. Co. v. Louisville Fire & Life Protective Ass'n, 151 Ky. 644 , 152 S.W. 799, 1913 Ky. LEXIS 561 ( Ky. 1913 ).

Law which granted pensions to indigent confederate soldiers, did not violate this section, the services rendered to the state by confederate soldiers being deemed a public service in view of settled legislative policy as shown by maintaining confederate soldiers’ home and erecting monuments to distinguished confederate soldiers. Bosworth v. Harp, 154 Ky. 559 , 157 S.W. 1084, 1913 Ky. LEXIS 114 ( Ky. 1913 ).

Fiscal court order for appropriation of revenue to be used as part payment of salary of county agent who was employed by such court, was not violative of this section, since such order was made pursuant to legislation having ultimate public purpose of development of state’s agricultural interests. Carman v. Hickman County, 185 Ky. 630 , 215 S.W. 408, 1919 Ky. LEXIS 351 ( Ky. 1919 ).

Bonus of $300 voted to chief clerk of house of representatives had to be included in computation of his public salary, since such bonus could only be paid to him in consideration of his public services under this section. Sanders v. Talbott, 255 Ky. 50 , 72 S.W.2d 758, 1934 Ky. LEXIS 185 ( Ky. 1934 ).

Legislature may in accordance with this section appropriate and distribute compensation on per capita basis to all teachers of common schools of the state, as these teachers are state employees rendering service for the state for public purpose. Board of Education v. Talbott, 261 Ky. 66 , 86 S.W.2d 1059, 1935 Ky. LEXIS 592 ( Ky. 1935 ).

Public services as that term is used in this section, are not necessarily the same as official services, which are services rendered by an officer in the performance of his duties. Talbott v. Thomas, 286 Ky. 786 , 151 S.W.2d 1, 1941 Ky. LEXIS 277 ( Ky. 1941 ).

Separate public emoluments when given in consideration of public services are allowed when a person has become a public benefactor, by reason of heroism, inventive genius, great mental endowments or a life of public virtue. Talbott v. Thomas, 286 Ky. 786 , 151 S.W.2d 1, 1941 Ky. LEXIS 277 ( Ky. 1941 ).

The official services of a judge of the Court of Appeals are public services within the meaning of this section. Talbott v. Thomas, 286 Ky. 786 , 151 S.W.2d 1, 1941 Ky. LEXIS 277 ( Ky. 1941 ).

This section does not apply to public services for which compensation has been provided or has been paid. Talbott v. Thomas, 286 Ky. 786 , 151 S.W.2d 1, 1941 Ky. LEXIS 277 ( Ky. 1941 ).

A person may be granted separate emoluments or privileges by reason of public service, as contemplated by this section, only where such person shall, by heroic deeds, inventive genius, or great mental endowments, and a life of public virtue, become, in the legislature’s judgment, a public benefactor. Reid v. Robertson, 304 Ky. 509 , 200 S.W.2d 900, 1947 Ky. LEXIS 643 ( Ky. 1947 ).

Practicing profession of veterinary surgeon for one year did not come within definition of character of public services as contemplated by this section, and one who had thus practiced was not therefore entitled to grant of special privilege of practicing such profession without appropriate examination. Reid v. Robertson, 304 Ky. 509 , 200 S.W.2d 900, 1947 Ky. LEXIS 643 ( Ky. 1947 ).

The services contemplated by this section that would entitle one to separate public emoluments or privileges must be those directly affecting the public generally, at least to an appreciable extent, and not services remotely or indirectly affecting the public such as those performed in the prosecution of a chosen profession, necessarily for compensation. Reid v. Robertson, 304 Ky. 509 , 200 S.W.2d 900, 1947 Ky. LEXIS 643 ( Ky. 1947 ).

Provisions in law that enacted a division of medical hospitals and related services and law that authorized the use of state tax funds to match federal funds for the construction of nonprofit, privately-owned hospitals open to the public were not violative of the provisions in this section prohibiting exclusive grant of public emoluments except in consideration of public service, or of the provision in Const., § 171 prohibiting the levy and collection of taxes except for public purposes only. The proposed hospitals were to render a public service and were to be for public purposes. Kentucky Bldg. Com. v. Effron, 310 Ky. 355 , 220 S.W.2d 836, 1949 Ky. LEXIS 915 ( Ky. 1949 ).

Payment of bonus to veterans of armed services was constitutional under this section since military service constituted proper public services. Grise v. Combs, 342 S.W.2d 680, 1961 Ky. LEXIS 393 ( Ky. 1961 ).

It was not unconstitutional, under Ky. Const., §§ 3 and 171, for the trial court to order the Cabinet for Health and Family Services to pay for substance abuse and mental health counseling recommended for a mother whose child was removed by the Cabinet, which she could not pay for, because governmental efforts in the area of family reunification served a public purpose as evidenced by the statutes providing for the Cabinet’s involvement in these matters. Cabinet for Health & Family Servs. v. Evans, 2006 Ky. App. LEXIS 52 (Ky. Ct. App. Feb. 17, 2006, sub. op., 2006 Ky. App. Unpub. LEXIS 831 (Ky. Ct. App. Feb. 17, 2006).

13.Taxation.

Law providing that distilled spirits in bonded warehouses would be assessed for taxation by state valuation and assessment board, rather than by county assessor, did not confer exclusive privilege. Commonwealth ex rel. Armstrong v. E. H. Taylor Jr. Co., 101 Ky. 325 , 41 S.W. 11 ( Ky. 1897 ).

Under the Constitution in force in 1888, a city, though empowered by its charter to contract with a water company for water for fire and domestic purposes, had no authority, as a part of the consideration of the contract, to grant the company an exemption of its property from taxation. Dayton v. Bellevue Water & Fuel Gaslight Co., 119 Ky. 714 , 68 S.W. 142, 24 Ky. L. Rptr. 194 , 1902 Ky. LEXIS 176 ( Ky. 1902 ) (decided under prior law).

An ordinance taxing professions practiced within the city, and exempting from the payment of the tax persons temporarily in the city of specific professional business, who did not advertise or solicit additional business therein, was not unreasonable, nor violative of this section. Evers v. Mayfield, 120 Ky. 73 , 85 S.W. 697, 27 Ky. L. Rptr. 481 , 1905 Ky. LEXIS 76 ( Ky. 1905 ).

An exemption from taxation not in consideration of public services is an exclusive and separate privilege and hence invalid. Winchester v. Winchester Water Works Co., 149 Ky. 177 , 148 S.W. 1, 1912 Ky. LEXIS 589 ( Ky. 1912 ).

Ordinance which exempted grocers from payment of license tax imposed upon other milk dealers was not unconstitutional, since grocer had to pay general license tax and thus was not granted special privileges. Newport v. French Bros. Bauer Co., 169 Ky. 174 , 183 S.W. 532, 1916 Ky. LEXIS 677 ( Ky. 1916 ).

Law under which city assessor made tax assessment of alcoholic beverages in bonded warehouses was not violative of this section. Jetts Bros. Distilling Co. v. Carrollton, 178 Ky. 561 , 199 S.W. 37, 1917 Ky. LEXIS 758 ( Ky. 1917 ), writ of error dismissed, 252 U.S. 1, 40 S. Ct. 255, 64 L. Ed. 421, 1920 U.S. LEXIS 1654 (U.S. 1920).

Legislature could not confer power on city to tax some property and not other property, in view of constitutional prohibition against separate privileges of former Constitution. Purcell v. Lexington, 186 Ky. 381 , 216 S.W. 599, 1919 Ky. LEXIS 226 ( Ky. 1919 ), dismissed, 253 U.S. 476, 40 S. Ct. 583, 64 L. Ed. 1021, 1920 U.S. LEXIS 1430 (1920) (decided under prior law).

Under this section and Const., §§ 170 and 181, a city is not exempt from the payment of state gasoline tax. Louisville v. Cromwell, 233 Ky. 828 , 27 S.W.2d 377, 1930 Ky. LEXIS 663 ( Ky. 1930 ).

A provision in a statute which exempts from taxation bonds issued in the construction of bridges, is not a violation of this section. Estes v. State Highway Com., 235 Ky. 86 , 29 S.W.2d 583, 1930 Ky. LEXIS 292 ( Ky. 1930 ).

Law imposing gross sales tax was not unconstitutional as violating this section. Moore v. State Board of Charities & Corrections, 239 Ky. 729 , 40 S.W.2d 349, 1931 Ky. LEXIS 864 ( Ky. 1931 ).

Provision exempting from taxation bonds issued by state educational institutions did not render unconstitutional statute providing for construction of buildings by such institutions. J. D. Van Hooser & Co. v. University of Kentucky, 262 Ky. 581 , 90 S.W.2d 1029, 1936 Ky. LEXIS 76 ( Ky. 1936 ).

Exemption of the property and bonds of municipal housing commission from taxation does not violate this section. Webster v. Frankfort Housing Com., 293 Ky. 114 , 168 S.W.2d 344, 1943 Ky. LEXIS 559 ( Ky. 1943 ).

County could levy special tax for purpose of funding transportation of pupils to private, sectarian and parochial schools, when general funds were exhausted, without violation of this section. Nichols v. Henry, 301 Ky. 434 , 191 S.W.2d 930, 1945 Ky. LEXIS 746 ( Ky. 1945 ).

It was not arbitrary or unreasonable for metropolitan sewer district to fix higher rates for county users than for city users, where sewer system had been paid for by the city taxpayers and city sewer bonds were still outstanding and would be paid from sinking fund raised from taxation of city property. Louisville & Jefferson County Metropolitan Sewer Dist. v. Joseph E. Seagram & Sons, Inc., 307 Ky. 413 , 211 S.W.2d 122, 1948 Ky. LEXIS 738 ( Ky. 1948 ).

A private agency may be utilized as the pipeline through which a public expenditure is made, the test being not who receives the money, but the character of the use for which it is expended. Kentucky Bldg. Com. v. Effron, 310 Ky. 355 , 220 S.W.2d 836, 1949 Ky. LEXIS 915 ( Ky. 1949 ).

Apportionment method of taxation of towboats and barges was constitutional under this section and Const., §§ 171, 172, 174 and 175. Reeves v. Island Creek Fuel & Transp. Co., 313 Ky. 400 , 230 S.W.2d 924, 1950 Ky. LEXIS 859 (Ky.), cert. denied, 340 U.S. 853, 71 S. Ct. 82, 95 L. Ed. 625, 1950 U.S. LEXIS 1535 (U.S. 1950).

KRS 154.001 to 154.170 (now repealed or renumbered), creating independent state agency to appropriate funds and make loans therefrom to qualified local development agencies, was not violative of this section or Const., § 171, since public purpose of such law was employment relief and encouragement of industry. Industrial Development Authority v. Eastern Kentucky Regional Planning Com., 332 S.W.2d 274, 1960 Ky. LEXIS 142 ( Ky. 1960 ).

In the field of taxation the legislature may make classifications, and the constitutional limitations prohibit only such classifications as are arbitrary and unreasonable in having no fair and substantial relation to the permissible governmental purpose of the legislation. Department of Revenue v. Spalding Laundry & Dry Cleaning Co., 436 S.W.2d 522, 1968 Ky. LEXIS 184 ( Ky. 1968 ).

The exemption from the sales tax of machinery used in manufacturing is not arbitrary and unreasonable because it does not equally exempt similar machinery used in a service industry or plant. Department of Revenue v. Spalding Laundry & Dry Cleaning Co., 436 S.W.2d 522, 1968 Ky. LEXIS 184 ( Ky. 1968 ).

As a consequence of the disparity between the numbers of eligible producers voting in successive referenda required to adopt and to terminate or discontinue the assessment program for tobacco promotion (KRS 247.780 (1)), the votes of those producers who favor the assessment program are accorded substantially greater weight than votes of those persons in the same class of producers who are opposed to the program; thus the terms and conditions of subsection (1) of KRS 247.780 effectively operate to deny the producers of burley tobacco who are opposed to an assessment program the equal protection of the law required by the Fourteenth Amendment to the Constitution of the United States, and the same contravenes this section and Const., § 59 and therefore said subsection is discriminatory and void. Tabor v. Council for Burley Tobacco, Inc., 599 S.W.2d 466, 1980 Ky. App. LEXIS 319 (Ky. Ct. App. 1980).

If the purposes served by an action constitute public purposes for which tax revenues may be levied and expended under Const., § 171, the manner of the use and expenditure is also proper under this section and is not a private use as distinct from a public use. Hayes v. State Property & Bldgs. Com., 731 S.W.2d 797, 1987 Ky. LEXIS 217 ( Ky. 1987 ).

The corporate shares tax, KRS 132.020 and the exemption statute, KRS 136.030(1), are inseparable because the striking of the exemption statute would result in the taxation not only of corporations, but their shareholders which result would be in direct contravention of the expressed intent of the General Assembly; thus both statutes are invalid as they discriminate against interstate commerce and thus violate the commerce Clause of the United States Constitution under the reasoning of Fulton Corp. v. Faulkner, 516 U.S. 325, 116 S. Ct. 848, 133 L. Ed. 2d 796, 1996 U.S. LEXIS 1379 (1996).St. Ledger v. Revenue Cabinet, 942 S.W.2d 893, 1997 Ky. LEXIS 17 ( Ky. 1997 ), modified, 1997 Ky. LEXIS 45 (Ky. Apr. 24, 1997), reprinted, 942 S.W.2d 893 ( Ky. 1997 ), limited, Dawson v. Birenbaum, 968 S.W.2d 663, 1998 Ky. LEXIS 56 ( Ky. 1998 ).

Although classification by KRS 136.120 of municipal solid waste disposal facilities that dispose of waste by landfill singles out such facilities for disparate tax treatment and is not a perfect fit to the state’s objectives, such classification is reasonably related to the state’s goals for solid waste management and is therefore constitutional. Cooksey Bros. Disposal Co. v. Boyd County, 973 S.W.2d 64, 1997 Ky. App. LEXIS 132 (Ky. Ct. App. 1997), cert. denied, 525 U.S. 930, 119 S. Ct. 338, 142 L. Ed. 2d 279, 1998 U.S. LEXIS 6495 (U.S. 1998).

Legislation which extended a provider tax to hospitals did not violate the equal protection clause. Children's Psychiatric Hosp., Inc. v. Revenue Cabinet, 989 S.W.2d 583, 1999 Ky. LEXIS 43 ( Ky. 1999 ).

A county ordinance, which levied an occupational license fee on the gross compensation of all persons employed or self-employed within the county, did not violate the equal protection clauses of the United States and/or Kentucky Constitutions, notwithstanding that a city within the county already imposed a similar occupational license fee and that the city license fee could not be offset against the county license fee because the county had a population of less than 30,000. Preston v. Johnson County Fiscal Court, 27 S.W.3d 790, 2000 Ky. LEXIS 119 ( Ky. 2000 ).

Where no fundamental right is at stake and no “suspect class” is implicated, a tax exemption is analyzed for equal protection purposes only to determine if there is a “rational basis” for the classification; Under the rational basis test, a classification must be upheld against an equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification. Popplewell's Alligator Dock No. 1, Inc. v. Revenue Cabinet, 133 S.W.3d 456, 2004 Ky. LEXIS 92 ( Ky. 2004 ).

14.Revocation or Amendment.

Law which gave the railroad commission power to hear and determine, on complaint, whether a railroad is exacting extortionate rates, and to fix reasonable rates, did not violate the railroad’s rights under a special charter granted prior to the Constitution, as under this section every grant of a franchise, privilege or exemption is subject to revocation, alteration or amendment. Louisville & N. R. Co. v. Siler, 186 F. 176, 1911 U.S. App. LEXIS 5131 (6th Cir. 1911), aff’d, Louisville & N. R. Co. v. Garrett, 231 U.S. 298, 34 S. Ct. 48, 58 L. Ed. 229, 1913 U.S. LEXIS 2567 (1913). See Vanceburg & Stout's Lane Turnpike Rd. Co. v. Chesapeake & O. R. Co., 280 F. 482, 1922 U.S. App. LEXIS 1814 (6th Cir. Ky. 1922 ); Louisville v. Louisville R. Co., 281 F. 353, 1922 U.S. App. LEXIS 2083, 1922 U.S. App. LEXIS 2084 (6th Cir. Ky. 1922 ).

Amendments to law regarding incorporation of marketing associations allowing corporate directors to extend corporate term of existence without vote of members, and directors’ action thereunder, did not violate due process or contract impairment under Const., § 19 or United States Const., Art. I § 10, since this section was in effect and part of corporate charter, thus providing right to revoke, alter, or amend such charter, and since members suffered no substantial impairment of their voting rights thereby as they could always withdraw anyway at anytime. Ayers v. Burley Tobacco Growers Cooperative Asso., 344 S.W.2d 836, 1961 Ky. LEXIS 264 ( Ky. 1961 ).

15.— Revocation.

A city has no right to revoke an otherwise binding contract unless that power has been granted it by the Constitution or the legislature. Bowling Green v. Davis, 313 Ky. 203 , 230 S.W.2d 909, 1950 Ky. LEXIS 853 ( Ky. 1950 ).

Where bus company held certificate from state to operate in certain area, annexation of such area by city gave city bus company superior right to operate therein, since under this section such certificate was revocable. Whitaker v. Louisville Transit Co., 274 S.W.2d 391, 1954 Ky. LEXIS 1229 ( Ky. 1954 ).

16.— Amendment.

Under this section, railway corporate had power to consolidate, and contractual rights of preferred stockholders were subject to corporation’s prerogative to thereby alter such rights. Donohue v. Heuser, 239 S.W.2d 238, 1951 Ky. LEXIS 866 ( Ky. 1951 ).

17.Teachers’ Pensions.

This section does not prohibit granting of pensions to teachers. Board of Education v. Louisville, 288 Ky. 656 , 157 S.W.2d 337, 1941 Ky. LEXIS 198 ( Ky. 1941 ).

18.Sovereign Immunity.

This section does not deny to the state the right to waive its exemption from suit in any particular case. Daniel's Adm'r v. Hoofnel, 287 Ky. 834 , 155 S.W.2d 469, 1941 Ky. LEXIS 654 ( Ky. 1941 ).

19.Due Process.

The application of a liberal construction of the workers’ compensation act by the workers’ compensation board does not violate an employer’s right to due process of law under this section. Cowden Mfg. Co. v. Fultz, 472 S.W.2d 679, 1971 Ky. LEXIS 207 ( Ky. 1971 ).

20.Road Funds.

Although the allocation of the rural secondary road fund among all counties on the basis of rural population and rural road use, regardless of the amount of tax collected in each county, did not consider the over-all population of each county or the number of vehicles per mile of rural roads in accordance with the formulae for distribution of road funds prescribed by KRS 177.360 and 179.410 , the allocation was not unconstitutionally arbitrary since those formulae were not so directly related to the public purpose of improving rural roads as to require their inclusion and the basis used for the allocation was reasonably related to the public purpose. Jefferson County v. King, 479 S.W.2d 880, 1972 Ky. LEXIS 320 ( Ky. 1972 ).

21.Medical Malpractice Insurance.

The burden of collecting and handling the surcharge mentioned in KRS 304.40-330 (now repealed) does not violate the rights of malpractice insurers under this section. McGuffey v. Hall, 557 S.W.2d 401, 1977 Ky. LEXIS 533 ( Ky. 1977 ).

The provisions of former law providing for patients’ compensation fund, authorizing the commissioner to exempt certain physicians from the fund and to fix the rate of surcharges, was not unconstitutional on its face and, if properly implemented, would not violate this section. McGuffey v. Hall, 557 S.W.2d 401, 1977 Ky. LEXIS 533 ( Ky. 1977 ).

The primary function of the University of Kentucky medical center clinic activities is to further the educational and service goals of the medical center; accordingly, KRS 164.939 to 164.944 , which provide medical malpractice coverage for clinical employees, do not violate this section since the coverage is being provided in return for public services. Board of Trustees v. Commonwealth, 625 S.W.2d 867, 1981 Ky. App. LEXIS 306 (Ky. Ct. App. 1981).

22.Worker’s Compensation.

The interpretation of KRS 342.740 and 342.730 , prior to the 1976 amendment of the latter, to allow minimum weekly benefits for permanent, partial disability was not unconstitutional. Yocum v. Gantley, 566 S.W.2d 176, 1978 Ky. App. LEXIS 517 (Ky. Ct. App. 1978).

KRS 342.316(7), which provided that workers’ compensation was payable only to after-born children of a marriage existing at the beginning of a disability, did not violate the federal or Kentucky equal protection clauses since (1) the statute was, in fact, a saving statute which extended benefits to after-born children of a marriage existing on the date of the compensable event, and (2) the statute was rationally based so as to give an employer, its insurer and the Special Fund a reasonable basis to anticipate the amount and duration of their potential liability for a particular claim and to establish reasonable monetary reserves to cover that liability. Steven Lee Enters. v. Varney, 36 S.W.3d 391, 2000 Ky. LEXIS 153 ( Ky. 2000 ).

Consensus procedure under KRS 342.316 for coal workers’ pneumoconiosis claims did not violate equal protection under U.S. Const. amend. XIV and Ky. Const. §§ 1, 2, and 3 because the inherent differences in pneumoconiosis, which was slow to develop, and a traumatic injury provided a reasonable basis for the different statutory treatment for such workers’ compensation claims. KRS 342.316 (13) did not impose a greater burden of proof than on those workers who claimed benefits under KRS 342.730 as the presumption in the consensus procedure was a rebuttable one that could be overcome with clear and convincing evidence. Durham v. Peabody Coal Co., 272 S.W.3d 192, 2008 Ky. LEXIS 240 ( Ky. 2008 ), overruled in part, Vision Mining, Inc. v. Gardner, 364 S.W.3d 455, 2011 Ky. LEXIS 177 ( Ky. 2011 ).

KRS 342.316(3)(b)(4)(e) denied a workers’ compensation benefits claimant equal protection because it discriminated between him and a similarly-situated worker whose employer also submitted evidence of category 1 disease but whose claim was not subject to the second phase of the consensus process; KRS 342.316(3)(b)(4)(e) creates two classes of workers based solely on the amount of discrepancy between the worker’s and employer’s evidence, and because there is no rational or reasonable basis for such discrimination where the employer’s evidence effectively concedes the worker’s entitlement to a retraining incentive benefit. Cain v. Lodestar Energy, Inc., 302 S.W.3d 39, 2009 Ky. LEXIS 71 ( Ky. 2009 ).

Ky. Rev. Stat. Ann. § 342.7305(2) offends equal protection guarantees by creating two separate and unequal subclasses of similarly situated hearing loss claimants: all of whom suffered work-related injuries severe enough to qualify for an impairment rating under the American Medical Association’s Guides to the Evaluation of Permanent Impairment, and all of whom endured equivalent permanent sensory loss, limited treatment modalities, diminution of daily activities, and occupational restrictions and preclusions, but some of whom are denied equal access to income benefits due to imposition of an arbitrary impairment rating threshold. Napier v. Enter. Mining Co., 2018 Ky. App. LEXIS 108 (Ky. Ct. App. Mar. 23, 2018, sub. op., 2018 Ky. App. Unpub. LEXIS 986 (Ky. Ct. App. Mar. 23, 2018).

Court of Appeals of Kentucky holds Ky. Rev. Stat. Ann. § 342.7305(2) violates equal protection guarantees established in the Fourteenth Amendment to the United States Constitution and Ky. Const. §§ 1, 2, and 3. In particular, the Court of Appeals holds the Supreme Court of Kentucky’s decision in Vision Mining, Inc. v. Gardner, 364 S.W.3d 455 ( Ky. 2011 ), is dispositive. Napier v. Enter. Mining Co., 2018 Ky. App. LEXIS 108 (Ky. Ct. App. Mar. 23, 2018, sub. op., 2018 Ky. App. Unpub. LEXIS 986 (Ky. Ct. App. Mar. 23, 2018).

Court of Appeals erred in holding that the hearing-loss statute violated the federal and state equal protection guarantees because a rational basis existed for treating hearing-loss claimants differently from other types of traumatic injury claimants inasmuch as the statute followed the approach in the Guides to the Evaluation of Permanent Impairment for not subtracting age-related hearing loss from an impairment rating, and the 8% threshold all but guaranteed that hearing-loss claimants who met the threshold had work-related, not just age-related, hearing loss. Teco/Perry Cty. Coal v. Feltner, 582 S.W.3d 42, 2019 Ky. LEXIS 210 ( Ky. 2019 ).

Court of Appeals erred in holding that the hearing-loss statute violated the federal and state equal protection guarantees because a rational basis existed for treating hearing-loss claimants differently from other types of traumatic injury claimants inasmuch as the statute followed the approach in the Guides to the Evaluation of Permanent Impairment for not subtracting age-related hearing loss from an impairment rating, and the 8% threshold all but guaranteed that hearing-loss claimants who met the threshold had work-related, not just age-related, hearing loss. Teco/Perry Cty. Coal v. Feltner, 582 S.W.3d 42, 2019 Ky. LEXIS 210 ( Ky. 2019 ).

Time limitation in Ky. Rev. Stat. Ann. § 342.750(6) did not violate the guarantees of equal protection under the federal and state constitutions because the four-year limit applied equally to all injured workers; substantial and justifiable reasons supported that classification and it was rationally related to a legitimate government purpose; and the employer was entitled to rely on the repose provision in Ky. Rev. Stat. Ann. § 342.750(6). Calloway Cty. Sheriff's Dep't v. Woodall, 607 S.W.3d 557, 2020 Ky. LEXIS 300 ( Ky. 2020 ).

Statutory amendment, which terminated workers’ compensation income benefits when the recipient reached the age of 70 or four years from the date of injury or last injurious exposure, whichever event occurred last, did not violate the Equal Protection Clause because the age classification was rationally related to the legitimate state interests of preventing a duplication of wage-loss protection programs and of promoting the solvency of the Kentucky workers’ compensation system. Cates v. Kroger, 2021 Ky. LEXIS 311 (Ky. Aug. 26, 2021).

23.Aid to Nonpublic Schools.

KRS 171.215 , which provides that the department of libraries must supply textbooks without cost to pupils attending nonpublic schools, is unconstitutional in that it directs the expenditure of public funds for educational purposes through nonpublic schools. Fannin v. Williams, 655 S.W.2d 480, 1983 Ky. LEXIS 290 ( Ky. 1983 ).

If the exclusive purpose of KRS 171.215 , which provides that the state must supply textbooks to students in nonpublic schools, is to pay the expenses of children in private schools, this section has been directly violated; conversely, if the textbooks also aid in the functioning of the private schools themselves, Const., §§ 171, 184, 186 and 189 have been violated. Fannin v. Williams, 655 S.W.2d 480, 1983 Ky. LEXIS 290 ( Ky. 1983 ).

24.Regulation of Economic Matters.

A statute involving the regulation of economic matters comports with both state and federal equal protection if the law is rationally related to a legitimate government objective; the constitutionality of a statute will be upheld if its classification is not arbitrary, or if it is founded upon any substantial distinction suggesting the necessity or propriety of such legislation. Kentucky Harlan Coal Co. v. Holmes, 872 S.W.2d 446, 1994 Ky. LEXIS 6 ( Ky. 1994 ), overruled in part, Vision Mining, Inc. v. Gardner, 364 S.W.3d 455, 2011 Ky. LEXIS 177 ( Ky. 2011 ).

25.Justification.

Justification under Const., § 59 equates to reasonable justification under Const., §§ 2 and 3. Revenue Cabinet v. Smith, 875 S.W.2d 873, 1994 Ky. LEXIS 34 (Ky.), cert. denied, 513 U.S. 1000, 115 S. Ct. 509, 130 L. Ed. 2d 417, 1994 U.S. LEXIS 8026 (U.S. 1994).

26.Public Employees.

Kentucky Claims Against Local Governments Act, KRS 65.200 to 65.2006 , does not violate Ky. Const. § 3 because the duty of a local government to defend employees in civil actions extends only to claims arising out of employment with the local government. Richardson v. Louisville/Jefferson County Metro Gov't, 260 S.W.3d 777, 2008 Ky. LEXIS 152 ( Ky. 2008 ).

Students had no private right of action for their state constitutional claims when the parents of the students argued that allowing public school employees to be protected by immunity against suit for alleged failure to prevent or report alleged sexual abuse of students by a special education teacher, while private school employees faced litigation, violated the Equal Protection Clause of the Kentucky Constitution. Doe v. Logan, 602 S.W.3d 177, 2020 Ky. App. LEXIS 6 (Ky. Ct. App. 2020).

Cited in:

Covington & Lexington Turnpike Road Co. v. Sanford, 164 U.S. 578, 17 S. Ct. 198, 41 L. Ed. 560, 1896 U.S. LEXIS 1891 (U.S. 1896); Gosnell v. Louisville, 104 Ky. 201 , 46 S.W. 722, 20 Ky. L. Rptr. 519 , 1898 Ky. LEXIS 156 ( Ky. 1898 ); Ragland v. Anderson, 125 Ky. 141 , 100 S.W. 865, 30 Ky. L. Rptr. 1199 , 1907 Ky. LEXIS 2 73 ( Ky. 190 7); Stites v. Norton, 125 Ky. 672 , 101 S.W. 1189, 31 Ky. L. Rptr. 263 , 1907 Ky. LEXIS 3 23 ( Ky. 190 7); McGlone v. Womack, 129 Ky. 274 , 111 S.W. 688, 33 Ky. L. Rptr. 811 , 33 Ky. L. Rptr. 864 , 1908 Ky. LEXIS 16 6 (Kan. Ct. App. 1908); Booth's Ex'r v. Commonwealth, 130 Ky. 88 , 113 S.W. 61, 1908 Ky. LEXIS 2 47 ( Ky. 1908 ); Commonwealth v. Hodges, 137 Ky. 233 , 125 S.W. 689, 1910 Ky. LEXIS 562 ( Ky. 1910 ); Gay v. Brent, 166 Ky. 833 , 179 S.W. 1051, 1915 Ky. LEXIS 783 ( Ky. 1915 ); Larue v. Redmon, 168 Ky. 487 , 182 S.W. 622, 1916 Ky. LEXIS 583 ( Ky. 1916 ); Hughes v. Marvin, 216 Ky. 190, 287 S.W. 561, 1926 Ky. LEXIS 872 ( Ky. 1926 ); Stiglitz v. Schardien, 239 Ky. 799 , 40 S.W.2d 315, 1931 Ky. LEXIS 849 ( Ky. 1931 ); Jennings v. Fidelity & Columbia Trust Co., 240 Ky. 24 , 41 S.W.2d 537, 1931 Ky. LEXIS 3 42 ( Ky. 1931 ); Fox v. Petty, 244 Ky. 385 , 51 S.W.2d 260, 1932 Ky. LEXIS 44 6 ( Ky. 1932 ); Talbott v. Kentucky State Board of Education, 244 Ky. 826 , 52 S.W.2d 727, 1932 Ky. LEXIS 516 ( Ky. 1932 ); Smith v. Southern Bell Tel. & Tel. Co., 268 Ky. 421 , 104 S.W.2d 961, 1937 Ky. LEXIS 44 2 ( Ky. 1937 ); Kerr v. Louisville, 271 Ky. 335 , 111 S.W.2d 1046, 1937 Ky. LEXIS 241 ( Ky. 1937 ); Bard v. Board of Drainage Comm'rs, 274 Ky. 491 , 118 S.W.2d 1013, 1938 Ky. LEXIS 292 ( Ky. 1938 ); Carr v. Jefferson County, 275 Ky. 685 , 122 S.W.2d 482, 1938 Ky. LEXIS 475 ( Ky. 1938 ); Webb v. Eminence, 282 Ky. 849 , 140 S.W.2d 622, 1940 Ky. LEXIS 265 ( Ky. 1940 ); Sherrard v. Jefferson County Board of Education, 294 Ky. 469 , 171 S.W.2d 963, 1942 Ky. LEXIS 2 ( Ky. 1942 ); Inter-County Rural Electric Co-operative Corp. v. Reeves, 294 Ky. 458 , 171 S.W.2d 978, 1943 Ky. LEXIS 446 ( Ky. 1943 ); O'Brien v. O'Brien, 294 Ky. 793 , 172 S.W.2d 595, 1942 Ky. LEXIS 3 ( Ky. 1942 ); Kesselring v. Bonnycastle Club, Inc., 299 Ky. 585 , 186 S.W.2d 402, 1945 Ky. LEXIS 471 ( Ky. 1945 ); Fraysure v. Kentucky Unemployment Compensation Com., 305 Ky. 164 , 202 S.W.2d 377, 1947 Ky. LEXIS 709 ( Ky. 1947 ); Radford v. Estill County, 306 Ky. 330 , 207 S.W.2d 762, 1948 Ky. LEXIS 557 ( Ky. 1948 ); Manning v. Sims, 308 Ky. 587 , 213 S.W.2d 577, 1948 Ky. LEXIS 864 ( Ky. 1948 ); Goodwin v. Louisville, 309 Ky. 11 , 215 S.W.2d 557, 1948 Ky. LEXIS 1013 (Ky. 1948); Masonic Widows & Orphans Home & Infirmary v. Louisville, 309 Ky. 532 , 217 S.W.2d 815, 1948 Ky. LEXIS 1081 (Ky. 1948); Eline v. Lampe, 275 S.W.2d 64, 1955 Ky. LEXIS 347 ( Ky. 1955 ); Davis v. Commonwealth Life Ins. Co., 284 S.W.2d 809, 1955 Ky. LEXIS 46 ( Ky. 1955 ); Wooley v. Spalding, 293 S.W.2d 563, 1956 Ky. LEXIS 73 ( Ky. 1956 ); Public Service Com. v. Paris, 299 S.W.2d 811, 1957 Ky. LEXIS 432 ( Ky. 1957 ); General Electric Co. v. American Buyers Cooperative, Inc., 316 S.W.2d 354, 1958 Ky. LEXIS 42 ( Ky. 1958 ); Abernathy v. Irvine, 355 S.W.2d 159, 1961 Ky. LEXIS 16 ( Ky. 1961 ); Stovall v. Eastern Baptist Institute, 375 S.W.2d 273, 1964 Ky. LEXIS 406 ( Ky. 1964 ); Freeman v. Danville Tobacco Board of Trade, Inc., 380 S.W.2d 215, 1964 Ky. LEXIS 284 ( Ky. 1964 ); Louisville v. Klusmeyer, 324 S.W.2d 831, 1959 Ky. LEXIS 396 ( Ky. 1959 ); Otto v. Kosofsky, 476 S.W.2d 626, 1971 Ky. LEXIS 64 ( Ky. 1971 ); Wiggins v. Stuart, 671 S.W.2d 262, 1984 Ky. App. LEXIS 513 (Ky. Ct. App. 1984); E.M. Bailey Distributing Co. v. Conagra, Inc., 676 S.W.2d 770, 1984 Ky. LEXIS 235 ( Ky. 1984 ); Yancey v. Carroll County, 876 F.2d 1238, 1989 U.S. App. LEXIS 4731 (6th Cir. Ky. 1989 ); Perkins v. Northeastern Log Homes, 808 S.W.2d 809, 1991 Ky. LEXIS 44 ( Ky. 1991 ); Kentucky Ass'n of Realtors, Inc. v. Musselman, 817 S.W.2d 213, 1991 Ky. LEXIS 109 ( Ky. 1991 ); Whitlock v. Rowland, 453 S.W.3d 740, 2015 Ky. App. LEXIS 1 (Ky. Ct. App. 2015).

Notes to Unpublished Decisions

1.Equal Protection.

Unpublished decision: Operating property statute, KRS 136.120 , taxed the cable television company for the right to public thoroughfares of the cities in which it operated in the same manner that it taxed other domestic public service corporations enjoying that privilege, thus ensuing the taxing law was equally applied; accordingly, the cable television company did not show that either its equal protection or substantive due process rights under the Kentucky Constitution were violated. Revenue Cabinet v. Comcast Cablevision, 147 S.W.3d 743, 2003 Ky. App. LEXIS 330 (Ky. Ct. App. 2003).

Opinions of Attorney General.

Lewis, Jural Rights under Kentucky’s Constitution: Realities Grounded in Myth, 80 Ky. L.J. 953 (1992).

A city is not legally authorized to grant a bonus or additional compensation to city employees out of public funds over and above that amount fixed according to law. OAG 62-1 .

A city ordinance which exempted from city taxes all property owned by volunteer firemen was void for going beyond the exemptions allowed in the Constitution. OAG 62-81 .

The governing bodies of the state university and colleges, under their power of appointment and their power to operate the institutions, have an area of reasonable discretion in effecting payment of recruiting expenses such as travel and lodging, whether those interviewed are employed or not, out of funds labelled “General Expense.” OAG 64-421 .

A city has authority to exempt a manufacturing establishment for at least five (5) years from city taxes only as an inducement to its location within the city, but no exemption is permitted from city school taxes. OAG 65-171 .

The granting of free parking space on a street beside the courthouse would not violate section 3 of the Kentucky Constitution since the consideration is public services and the public interest. OAG 67-376 .

Payments in consideration of an employee’s resigning and relinquishing his right to appeal are not made “in consideration of public services.” 68-237.

The expenses of a potential job applicant should be allowed only in those extraordinary circumstances in which a complicated or difficult job, requiring real academic and work experience cannot be filled properly and adequately without such extra recruitment consideration. OAG 69-347 .

Legislation granting state aid in the construction of an office building for the Kentucky Municipal League would be constitutional. OAG 70-93 .

While a school board has authority to sell school property, it only has authority to sell it for its fair market value. Therefore it would be a violation of this section for a school board to sell school property to any person or organization for a nominal sum simply because the purchaser proposed to use the property for laudable public purposes. Although KRS 45.360(7) (now repealed) does not apply to school boards, such a board and its members would be well advised to follow the procedure prescribed therein for their own protection. OAG 72-30 .

A city is not exempt from the payment of the tax imposed on gasoline in view of this section’s provision that no property shall be exempt from taxation except as provided in the Constitution. OAG 72-92 .

The provisions of KRS 61.710 requiring financial disclosure by any employee of a daily newspaper with a circulation of 50,000 or more published in Kentucky who either orally or in writing contributes to the editorial policy of the newspaper and by any employee of a radio or television station that is owned in common with such a newspaper who directly or indirectly contributed to the editorial policy of the station are unconstitutional under this section and Const., §§ 59 and 60 as establishing an arbitrary classification and as special legislation. OAG 72-289 .

A city could not, under this section, refuse to license a movie theater, which was a legitimate business, engaged in the exhibition of nude and X-rated films, nor could it increase the license fees of such theater unless the increase was reasonable and applied to all theaters. OAG 72-396 .

A board of education cannot legally pay the tuition of a teacher taking a university course even though it would enhance her professional qualifications and make her services more valuable to the school district, as this section prohibits such payments to any person except in consideration of public services and such payment would, in effect, be giving her extra compensation without the performance of extra duties. OAG 73-110 .

The board of commissioners of the city of Paducah does not have the power, by ordinance or otherwise, to regulate, set aside, or “roll back” all residential reappraisals on property belonging to persons over 65 years of age, leaving this group with their 1972 assessment as it was for the previous year, as this section prohibits exemption of any property from taxation except as provided in the Constitution. Section 171 requires that taxes shall be levied and collected for public purposes and shall be uniform upon all property of the same class subject to taxation within the territorial limits of the authority levying the tax, and § 172 requires all property not exempted by the Constitution to be assessed at fair cash value, so that any taxpayer aggrieved by the assessment placed upon his property by the city assessor should protest to the board of equalization as provided by KRS 92.440 . OAG 73-195 .

Under this section and Kentucky Const., § 171 a city ordinance authorizing an incentive bonus for city employees who work a full year without taking a vacation to which they are entitled is illegal. OAG 73-436 .

Although a board of education does not have to accept nonresident students on a tuition basis, if it decides to do so it must charge all pupils at the same rate and not upon a varying scale which is determined upon some extraneous factor such as the assessed value of a person’s residential property. OAG 73-837 .

Under this section and Const., § 171 a city employee cannot be paid for working during his vacation period rather than taking the vacation days as this would constitute double payment for a particular period of time. OAG 74-306 .

Reimbursement, by a county on order of the fiscal court under authority granted by KRS 67.083 (1), of a county judge for life, health and accident insurance premiums paid by him on his life is payment of a fringe benefit in consideration of public services. OAG 74-347 .

The reimbursement by a city of a private corporation for the construction of a portion of a sewer line to a private hospital along public rights of way, in the form of property tax credits to the corporation until completed would be in violation of Const., §§ 171 and 174 requiring uniform and equal tax levies according to classification, this section prohibiting exclusive grants except for public service and Const., § 170 as it is not enumerated as exempt under that section. OAG 74-616 .

Reclamation of strip mined Kentucky land is a public purpose and a fiscal court may assist in funding a private college to set up instruction and a degree in reclamation, providing the fiscal court determines that the program will result in a real and direct benefit to the county by, for example, the direct involvement of persons taking the instruction in reclamation within the county. OAG 74-730 .

The coal severance tax imposed by KRS 143.010 to 143.990 , as distributed to the counties pursuant to KRS 42.300 (repealed), is not unconstitutional in violation of this section or Const., §§ 51, 59, 177, or 181. OAG 75-76 .

KRS 180.276 must describe with intelligibility the public purpose to be served if it is to meet the constitutional test of public purpose as set out in this section and as the legislative intent is completely obscure, the constitutionality of KRS 180.276 will have to be determined by the courts. OAG 75-445 .

Although a monetary payment given to employees in state service in recognition of excellence of past performance would be unconstitutional as a gratuity, a single monetary payment in consideration of future outstanding performance is legal consideration. OAG 75-704 .

Subject to any maximum level of office expenses which may have been established by a fiscal court order pursuant to KRS 64.530 , a county clerk could purchase, out of the fees of his office, a hospitalization plan for his regularly employed deputies as a fringe benefit based on service. OAG 76-69 .

The marshal in a sixth class city cannot be paid a bonus at any time. OAG 76-242 .

Although subsequent to January 2, 1978, persons may still be elected to the office of justice of the peace and justices of the peace would retain any nonjudicial powers found in the statutes, in a county having the commissioner type of government in 1978 there are practically no authorized statutory functions for a justice of the peace and since performance of some statutory duties is necessary to entitle justices of the peace to compensation and expense allowances in 1978, payment of any compensation or expense allowance to such justices not serving on fiscal courts would raise a serious constitutional question. OAG 77-133 .

Where the county jail was condemned and closed and the incumbent county jailer performed only janitorial services at the courthouse but had no duties in relation to keeping prisoners since they were housed in jail facilities in surrounding counties, the payment of any portion of such jailer’s salary not reflecting services actually rendered would be illegal. OAG 77-523 .

This section contemplates the use of tax money to pay public officials only for services actually rendered. OAG 78-206 .

Where a police officer was on work-related disability for approximately one year and, consequently, rendered no public service during that period since he did not work in his capacity as a city police officer, he was not entitled to paid annual leave time for that period of time. OAG 78-206 .

The fiscal court can approve the payroll prior to the actual pay period so that the clerk can issue checks without having to wait for the next fiscal court meeting for approval as long as, at the time the checks are actually issued and delivered to the county employees, the checks relate only to services actually performed prior to the issuance and delivery of the checks to the payees. OAG 78-248 .

Where county attorney had been suspended from the practice of law he no longer possessed the constitutional qualifications of a county attorney and thus since he can no longer serve as county attorney and as a prosecutor in the court of justice his prosecutorial salary from the State treasury and his expense allowance should be stopped. OAG 78-279 .

Where the Kentucky State Board of Registration for Professional Engineers and Land Surveyors leased office facilities for 35 years and were required to prepay all $135,000 of rent for that time, but could get a refund of the bulk of that amount if they decided to terminate the lease sooner, the expenditure was valid and constitutional since they got what they bargained for, i.e., an estate for years. OAG 78-724 .

City’s proposed educational incentive pay plan for its firemen is illegal in that there is no statutory authorization for the program; moreover payments for taking college courses do not come within the definition of “salary” for municipal firemen and since such proposed payments are not for services rendered to the city those payments would be in violation of this section and Const., § 171. OAG 79-32 .

A city cannot appropriate public funds to nonprofit corporations or to associations or individuals in absence of legislative authorization when it has no control of such organizations and no direct connection with them; furthermore, all appropriations of public money by municipalities must be for a public and corporate purpose rather than for private uses. OAG 79-67 .

Under KRS 132.190 , all real and personal property within this state is subject to taxation, unless exempted by the Constitution and while household goods of a person used in his home is exempt from taxation, under § 170 of the Constitution, the personal property of the taxpayer used in his business or profession is not exempt, which means a lawyer would have to list for taxes the personal tangible property in his law office, which could include law library, bookcases, typewriters, filing cabinets and other items of equipment used in that office. OAG 79-140 .

Where an exclusive franchise is in the public interest, this section would not be violated, since the consideration is public services and the public interest. OAG 79-199 .

A county would be in violation of the law if an improvement was made for a school bus turnaround if the property was privately owned and not deeded to the county. OAG 79-200 .

The use of county funds, personnel or equipment to improve or maintain private drives or lanes is illegal and unconstitutional. OAG 79-343 .

The practice of making full or partial payments on state personal service contracts which reflect no services actually rendered is unconstitutional. OAG 79-448 .

This section is unequivocal on the point that public emolument to any person must be based on the consideration of “public services,” which means “public services actually rendered,” not “public services to be rendered.” OAG 79-448 .

The use of city street equipment and material for paving private driveways purchased with public funds is illegal and unconstitutional, and the fact that the private citizens whose driveways are paved will repay the city for the material used is of no consequence as the question hinges on the initial use of such equipment and material purchased with public municipal funds. OAG 79-509 .

The advance payment of money to the Brussels office of the European Economic Development Office of the Commonwealth of Kentucky for the purpose of paying certain operational expenses is constitutional under this section and § 171 of the Constitution and meets precisely the requirements of KRS 44.010 that claims against the state treasury be paid only when due since the final and effective disbursement of the operational money is only effected after the persons or corporations have actually performed the services. OAG 79-532 .

A city cannot legally provide fire protection services only to those city employees and their immediate families who reside outside the city limits, as a fringe benefit, as such services constitute a bonus or extra compensation and are prohibited by this section and § 171 of the Constitution. OAG 79-611 .

An officer would not be entitled to utilize any of his annual leave, unless and until he has earned it, since to do otherwise would violate this section as payment for services not actually rendered. OAG 80-28 .

The payment of travel expenses to out-of-state persons invited to Kentucky by departments and agencies of the central state government for screening employment interviews, involving high level positions, would definitely be for a public purpose since it is desirable to procure the best possible qualified people for such positions in the interest of promoting efficient government. OAG 80-37 .

Any practice of making full or partial payments on state personal service contracts in advance of the actual and full performance of the contract is unconstitutional. OAG 80-38 .

The advance transfer of state money to the International Tourism Office for the payment of operational expenses is constitutional under this section and Const., § 171, since the final and effective disbursement of the state money is made only after the goods and services, for which a claim is made, have been fully furnished and performed. OAG 80-38 .

The mere transfer of the state money from the state’s depository to the Brussels Kentucky Office of Tourism does not involve, at that point, a final effective disbursement. OAG 80-38 .

The fiscal court may expend county funds for the maintenance of the road leading to the public cemetery, provided that such road has been taken into the county road system by way of a formal order of the fiscal court. OAG 80-562 .

A county could not legally construct a bridge across a creek for the benefit of one (1) or two (2) property owners and provide that the owner or owners of the property upon which the bridge is built convey the necessary land to the county by a right-of-way deed. OAG 80-587 .

It is not lawful to pay group insurance for part of the county employees and not all of them since, for purposes of hospitalization insurance, all county employees would be in the same class and discrimination cannot be made against persons in the same class. OAG 81-188 .

The compensation of the county judge/executive, county clerk, sheriff and jailer can be adjusted to the rubber dollar maximum pursuant to KRS 64.527 ; however, such adjustment for a magistrate or coroner would violate this section and Const., § 171 where such offices are not full-time positions, unless the officer is only paid a percentage of the rubber dollar maximum equivalent to the actual hours worked as compared to a full workweek. OAG 82-16 .

Where an outgoing fiscal court sets new salary levels for part-time constitutional officers, which salaries exceed the amount that the part-time officers should receive, the new fiscal court should not honor the new salaries for any part-time officers; if the new salaries for the part-time officers are paid, the new fiscal court members would be personally and individually liable. OAG 82-16 .

Even if no contractual obligation for maintenance and repair by a county is created, a fiscal court must use its good business judgment in entering into a lease of county real property and the lease must be considered as involving a public purpose and in the public interest, as relates to the rental aspect and use of the property. OAG 82-60 .

KRS 160.291 calls for all of the full-time, regular employees of a school district to be treated in parity. Thus, while school employees are to continue to receive their pay checks even though not actually working, it is the school district’s obligation under KRS 160.291 and this section to see that before the school year has ended, teachers and classified employees alike have only been paid for school days actually worked. OAG 82-132 .

KRS 79.080 authorizing hospitalization coverage of city employees does not authorize the exclusion of a group of employees for any reason, much less one based upon the total family income of the individual employee which is completely unrelated to his public employment duties. Such exclusion would no doubt be considered discriminatory and create an arbitrary classification in violation of this section and the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution. OAG 82-247 .

An arrangement whereby the state’s money remains in the hands of officials or employees of state government and is not finally and effectively paid out until the services are performed is valid under Const., §§ 3 and 171. OAG 82-281 .

State money can only be spent for a “public purpose,” not a “private” one; thus either goods must be furnished to the state government or services for the state government must be actually rendered before the state’s money can be used to finally pay for such. OAG 82-281 .

Statutory law and Const., §§ 3 and 171 mandate the payment of state money only after the services have been rendered or performed. OAG 82-281 .

Where it is contemplated that state money must be turned over or advanced to private or corporate contractors before contractual services are actually rendered, and the state officials engaging in the contracts determine in good faith that such advancements are necessary in point of time and the ultimate rendering of the services sought, such advancements may be constitutional under these conditions: (1) the contract must expressly provide that the responsible contractor will not make final effective disbursement of the advanced state funds until the contractual services have in fact been rendered; (2) in order to protect the state treasury, the contractor must execute a suitable bond or procure an insurance contract providing for full repayment to the state where advance money has been disbursed without reflecting the concomitant contractual services to be rendered. OAG 82-281 .

The expenditure of public funds by local governments to pay employees their salaries while those employees, who are members of the National Guard and reserve components of the armed forces of the United States, are on annual military leave does not violate state constitutional provisions concerning the expenditure of public funds. OAG 82-305 .

A plan which provides an annual bonus to teachers who use no sick leave is not legally permissible in Kentucky. There is no statute authorizing a bonus for unused sick leave and, if the legislature passed such a statute, it would be unconstitutional as violative of this section. OAG 82-316 .

While a city cannot legally donate or contribute public funds to a private corporation over which it has no control, with certain exceptions where the state legislature has specifically authorized such donations, the city could contract with a nonprofit organization to render paramedic services to its citizens the same as it is specifically authorized to do with respect to contracting for emergency ambulance service pursuant to KRS 65.710 and 65.720 . The city could also provide for paramedic service in conjunction with the operation of its own emergency ambulance service on behalf of the citizens of the city. OAG 82-366 .

The county commissioners on a fiscal court must be paid the same compensation, regardless of what the legal sum is. In view of the fact that Const., § 171 and this section demand that an officer or employee of government receive compensation actually earned by rendering appropriate statutory services, this means that each commissioner is required to have approximately the same work load. OAG 82-461 .

Former law regarding merger of credit unions did not violate any constitutional provisions, even though the effect of the section was to permit credit unions consisting of state employees to merge under the provisions of KRS Chapter 271A, which only requires the affirmative vote of a majority of the shareholders of each such credit union desiring to merge, while the only manner in which the members of other types of credit unions can effectively unite their credit unions is by dissolution under former law providing for voluntary dissolution, a prerequisite of which was a four-fifths (4/5) affirmative vote of the shareholders. OAG 82-467 .

A fiscal court could sell a hospital physical plant, which was not needed by the county, to a nonprofit corporation for at least its fair market value; a sale of surplus land for fair market value would satisfy Const., §§ 171, 179 and this section, as relates to prohibited gifts of county money. OAG 83-37 .

Assuming that a city council’s sole reason for enacting an ordinance restricting the outside activity of the city’s water and sewer employees from gainful employment in the private field of plumbing and contracting during their off duty hours, is simply to prevent them from competing with private plumbers, this action on the part of the city, would be unconstitutional as a violation of the equal protection rights of the employees, unless the city could show that the outside employment adversely affected their performance in their positions with the city. OAG 83-130 .

Where fiscal court magistrates served on a number of boards and committees, but none of these boards or committees were official committees of the fiscal court, no part of the expense allowance provided by KRS 64.530(6) could be paid since such moneys can only be expended in consideration for public services. OAG 84-71 .

Although the Commonwealth Credit Union was created with the trappings of a private corporation, it is recognized by the General Assembly as a state agency, which exists for the recognized purpose of extending “fringe benefits” to state employees; such a purpose is a public purpose, as envisioned in this section and Const., § 171. OAG 84-80 .

While the General Assembly could authorize the earning of annual and sick leave days in advance as part of the emoluments of service in the General Assembly, to grant sick leave after the fact of serving time would be a grant in violation of this section. Therefore, the correct interpretation of KRS 18A.185 is that General Assembly time may be included in determining total length of service for purposes of figuring the 1 day, 1 1/4 days, 1 1/2 days, or 1 3/4 days of annual leave earned per month for those persons eligible to earn and now earning annual leave, but members of the General Assembly do not earn annual or sick leave while they are in such positions. OAG 84-128 .

In light of Bernal v. Fainter, 467 U.S. 216, 104 S. Ct. 2312, 81 L. Ed. 2d 175, 1984 U.S. LEXIS 93, (1984), the citizenship requirement of Const., § 228 is not enforcible as to the office of notary public under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and this section. OAG 85-37 , modifying OAG 77-297 .

It would be unconstitutional under this section and Const., § 171 to utilize state facilities and expend state funds to provide exclusive educational privileges to only children of employees of certain foreign owned corporations; however, in the case of the Japanese Saturday school administered by the University of Kentucky, since the program was operated with 100% private funds and did not involve providing exclusive educational privileges to only children of employees of certain foreign owned corporations, it was a legally permissible endeavor. OAG 86-82 .

Payment by a board of education for the sabbatical leave of a teacher or superintendent is constitutional so long as the teacher or superintendent agrees to extend at least two (2) years of future services to the school board. OAG 88-29 . ( OAG 75-370 rescinded)

Compensation for unused sick leave at time of retirement does not constitute a bonus, in contravention of this section of the Kentucky Constitution, but instead constitutes part of retirement benefits. OAG 91-219 .

There is nothing in KRS 136.1873 , 136.1875 , or 136.1877 that would exempt “the occasional, transient motorcoach, charter, or tour bus operation” from the assessment procedure set out in KRS 136.1873 , nor is there anything unconstitutional in this procedure; it is simply an attempt by the state to insure compliance with the constitutional directive that all property be taxed. OAG 92-71 .

KRS 136.1873 , 136.1875 , and 136.1877 do not subject any property to taxation because the Constitution has already subjected all property in the state to taxation with a few limited exceptions. OAG 92-71 .

Statutory provisions that generally operate to require a fiscal court to maintain a county road, or that underpin an expenditure for such purpose, will not supercede constitutional provisions limiting governmental expenditures to public purposes. OAG 92-74 .

The county is not responsible for repairing a bridge which, though in the county road system, now due to rerouting of the county road serves only one (1) private residence; the bridge does not serve a public purpose and accordingly, public funds cannot be spent to repair or improve it. OAG 92-74 .

A county road department is prohibited from providing at public expense, labor necessary to install a culvert to enhance access to private property from a county road. OAG 93-24 .

A fiscal court, assuming funds have been properly budgeted for the purpose, may lawfully approve reimbursement, subject to proper documentation being submitted, of the reasonable expenses for travel, meals, and lodging, actually paid by one elected to a county office who has not yet assumed such office, where such expenses are immediately incident to attending statutorily provided training for such office. OAG 93-72 .

The General Assembly may permit referenda on local school curriculum; however, in doing so, the General Assembly must not violate equal protection provisions and special and local legislation provisions of the Kentucky Constitution. OAG 00-3 .

McCracken County Fiscal Court has the authority under Kentucky law to offer a grant of a short term loan to a start-up business if done for a legitimate public purpose. OAG 2008-06 .

Research References and Practice Aids

Cross-References.

Corporation charters and grants subject to revocation, KRS 271A.710 .

Private and local legislation prohibited, Const., § 59.

Property exempt from taxation, Const., § 170; KRS 132.190 to 132.210 .

Journal of Mineral Law & Policy.

Comments, Constitutional Validity of the Kentucky Unmined Coal Tax: Gillis v. Yount, 4 J.M.L. & P. 159 (1988).

Kentucky Bench & Bar.

Tobergte, The Impact of Kentucky’s Present Constitution Upon Business Growth & Development, Volume 51, No. 3, Summer 1987 Ky. Bench & B. 21.

Kentucky Law Journal.

J. & R. Stephenson, Public Schools: Serrano v. Priest — A Challenge to Kentucky, 60 Ky. L.J. 156 (1971).

Notes, Energy v. Environment: Who Wins in the Race for Coal in Kentucky, 64 Ky. L.J. 641 (1975-76).

Weber and Olsen, Religious Property Tax Exemptions in Kentucky, 66 Ky. L.J. 651 (1977-1978).

Notes, Fraud Between Sexual Partners Regarding the Use of Contraceptives, 71 Ky. L.J. 593 (1982-83).

Comments, Design for Challenge: The Kentucky Statute of Repose for Improvements to Real Property, 73 Ky. L.J. 1143 (1984-85).

Notes, Court-Annexed Arbitration: Kentucky’s Viable Alternative to Litigation, 77 Ky. L.J. 881 (1988-89).

Reynolds, Education Finance Reform Litigation and Separation of Powers: Kentucky Makes Its Contribution, 80 Ky. L.J. 309 (1990-91).

Lewis, Jural Rights under Kentucky’s Constitution: Realities Grounded in Myth, 80 Ky. L.J. 953 (1992).

Weigand and Farr, Part of the Moving Stream: State Constitutional Law, Sodomy, and Beyond, 81 Ky. L.J. 449 (1992-93).

Northern Kentucky Law Review.

Note, Facing the Economic Challenges of the Eighties — The Kentucky Constitution and Hayes v. The State Property and Buildings Commission of Kentucky, 15 N. Ky. L. Rev. 645 (1988).

Wintersheimer, State Constitutional Law, 20 N. Ky. L. Rev. 591 (1993).

Wintersheimer, State Constitutional Law Survey, 21 N. Ky. L. Rev. 257 (1994).

§ 4. Power inherent in the people — Right to alter, reform, or abolish government.

All power is inherent in the people, and all free governments are founded on their authority and instituted for their peace, safety, happiness and the protection of property. For the advancement of these ends, they have at all times an inalienable and indefeasible right to alter, reform or abolish their government in such manner as they may deem proper.

NOTES TO DECISIONS

1.Constitutional Revision.

Const., §§ 256 and 258 do not provide exclusive methods of amending or revising the Constitution. Accordingly a revised Constitution prepared by an assembly created by law is properly submitted for a vote by the people. Gatewood v. Matthews, 403 S.W.2d 716, 1966 Ky. LEXIS 348 ( Ky. 1966 ).

2.Local Government.

The rights granted under this section are rights of all the people of the entire Commonwealth, and this section does not pertain to local government. Jacober v. Board of Comm'rs, 607 S.W.2d 126, 1980 Ky. App. LEXIS 374 (Ky. Ct. App. 1980).

Cited:

Bosworth v. Harp, 154 Ky. 559 , 157 S.W. 1084, 1913 Ky. LEXIS 114 ( Ky. 1913 ); Board of Education v. Sea, 167 Ky. 772 , 181 S.W. 670, 1916 Ky. LEXIS 492 ( Ky. 1916 ); Furste v. Gray, 240 Ky. 604 , 42 S.W.2d 889, 1931 Ky. LEXIS 458 ( Ky. 1931 ); Funk v. Fielder, 243 S.W.2d 474, 1951 Ky. LEXIS 1128 ( Ky. 1951 ); Public Service Com. v. Paris, 299 S.W.2d 811, 1957 Ky. LEXIS 432 ( Ky. 1957 ); Holsclaw v. Stephens, 507 S.W.2d 462, 1973 Ky. LEXIS 3 ( Ky. 1973 ).

Research References and Practice Aids

Kentucky Law Journal.

Comments, The Employee Defense Act: Wearing Down Sovereign Immunity, 66 Ky. L.J. 150 (1977-78).

Northern Kentucky Law Review.

Brown, Notes, Deters v. Judicial Retirement and Removal Commission: Free Speech and the Appearance of Judicial Impartiality, 22 N. Ky. L. Rev. 497 (1995).

§ 5. Right of religious freedom.

No preference shall ever be given by law to any religious sect, society or denomination; nor to any particular creed, mode of worship or system of ecclesiastical polity; nor shall any person be compelled to attend any place of worship, to contribute to the erection or maintenance of any such place, or to the salary or support of any minister of religion; nor shall any man be compelled to send his child to any school to which he may be conscientiously opposed; and the civil rights, privileges or capacities of no person shall be taken away, or in anywise diminished or enlarged, on account of his belief or disbelief of any religious tenet, dogma or teaching. No human authority shall, in any case whatever, control or interfere with the rights of conscience.

NOTES TO DECISIONS

1.Hospitals.

The drafters of our Constitution did not intend to go so far as to prevent a public benefit, like a hospital in which the followers of all faiths and creeds are admitted, from receiving state aid merely because it was originally founded by a certain religious denomination whose members now serve on its board of trustees. Kentucky Bldg. Com. v. Effron, 310 Ky. 355 , 220 S.W.2d 836, 1949 Ky. LEXIS 915 ( Ky. 1949 ).

The provision in Const., § 5 prohibiting preference by law to any religious sect, society or denomination was not violated by provisions of law which authorized allocation of state tax funds to nonprofit, privately owned hospitals which were governed and controlled by the members of certain religious faiths. Kentucky Bldg. Com. v. Effron, 310 Ky. 355 , 220 S.W.2d 836, 1949 Ky. LEXIS 915 ( Ky. 1949 ).

Lease of city-county hospital to religious organization did not violate this section. Abernathy v. Irvine, 355 S.W.2d 159, 1961 Ky. LEXIS 16 ( Ky. 1961 ), cert. denied, 371 U.S. 831, 83 S. Ct. 49, 9 L. Ed. 2d 67, 1962 U.S. LEXIS 649 (U.S. 1962).

2.Oaths.

Fact that jurors were given oath ending with “so help me God” did not violate constitutional rights of person accused of felony. Pierce v. Commonwealth, 408 S.W.2d 187, 1966 Ky. LEXIS 81 ( Ky. 1966 ).

3.Schools.
4.— Religious Beliefs of School Administration.

Where school administrator’s use of her religious beliefs in exercising her administrative duties and in exercising authority over teachers was offensive to some of the staff, it did not invariably pose some substantial threat to public safety, peace or order, and thus, her behavior in this regard was protected conduct. Hooks v. Smith, 781 S.W.2d 522, 1989 Ky. App. LEXIS 151 (Ky. Ct. App. 1989).

5.— Compulsory Attendance.

While the state has an interest in the education of its citizens which could be furthered through compulsory education, the rights of conscience of those who desire education of their children in private and parochial schools should be protected. Kentucky State Board for Elementary & Secondary Education v. Rudasill, 589 S.W.2d 877, 1979 Ky. LEXIS 295 ( Ky. 1979 ), cert. denied, 446 U.S. 938, 100 S. Ct. 2158, 64 L. Ed. 2d 792, 1980 U.S. LEXIS 1592 (U.S. 1980).

The language of this section concerning compulsory school attendance is intended to permit the Commonwealth to prepare its children to intelligently exercise the right of suffrage by compelling attendance at a formal school, public or private or parochial, for a legislatively determined period each year. Kentucky State Board for Elementary & Secondary Education v. Rudasill, 589 S.W.2d 877, 1979 Ky. LEXIS 295 ( Ky. 1979 ), cert. denied, 446 U.S. 938, 100 S. Ct. 2158, 64 L. Ed. 2d 792, 1980 U.S. LEXIS 1592 (U.S. 1980).

If the legislature wishes to monitor the work of private and parochial schools in accomplishing the constitutional purpose of compulsory education, it may do so by an appropriate standardized achievement testing program, and if the results show that one or more private or parochial schools have failed to reasonably accomplish the constitutional purpose, the Commonwealth may then withdraw approval and seek to close them for they no longer fulfill the purpose of “schools.” Kentucky State Board for Elementary & Secondary Education v. Rudasill, 589 S.W.2d 877, 1979 Ky. LEXIS 295 ( Ky. 1979 ), cert. denied, 446 U.S. 938, 100 S. Ct. 2158, 64 L. Ed. 2d 792, 1980 U.S. LEXIS 1592 (U.S. 1980).

6.— Achievement Testing.

Requiring students to take the Kentucky Instructional Results Information System (KIRIS) examination did not violate students’ constitutional rights of freedom of religion. Triplett v. Livingston County Bd. of Educ., 967 S.W.2d 25, 1997 Ky. App. LEXIS 74 (Ky. Ct. App. 1997), cert. denied, 525 U.S. 1104, 119 S. Ct. 870, 142 L. Ed. 2d 771, 1999 U.S. LEXIS 599 (U.S. 1999).

7.— Maintenance.

Contract by school district trustees to maintain sectarian school free of charge from public funds in return for sectarian school teaching common school pupils free of charge was in violation of this section. Williams v. Board of Trustees, 173 Ky. 708 , 191 S.W. 507, 1917 Ky. LEXIS 518 ( Ky. 1917 ) ( Ky. 1917 ).

8.— Student Transportation.

A county fiscal court’s resolution which provided approximately 65 percent of the total cost of transporting non-public elementary school students was not unconstitutional where (1) funds were not paid directly to any private or parochial school and were, instead, paid to the individual local board of education operated transportation system of contracted bus and vehicle companies, (2) the benefit provided by the resolution went directly toward the safety and welfare of elementary age school children and not into the accounts of non-public schools, and (3) the resolution did not establish a tuition ceiling as a requisite to eligibility for the transportation subsidy. Neal v. Fiscal Court, 986 S.W.2d 907, 1999 Ky. LEXIS 24 ( Ky. 1999 ).

9.— Place of Worship.

A public school opened with prayer and the reading without comment of passage from King James’ translation of the Bible, during which pupils are not required to attend, is not a place of worship, nor are its teachers ministers of religion within the meaning of this section. Hackett v. Brooksville Graded School Dist., 120 Ky. 608 , 87 S.W. 792, 27 Ky. L. Rptr. 1021 , 1905 Ky. LEXIS 144 ( Ky. 1905 ).

10.Religion.

Taxpayers could not intervene in a suit by a religious non-profit against the Commonwealth regarding a tourism incentive program as the required significant legal interest they alleged was rooted in their status as taxpayers, and their generalized interest in how their tax dollars were used was insufficient to intervene as of right under Fed. R. Civ. P. 24(a); they did not establish direct personal injury and mere disagreement over litigation strategy was not inadequacy of representation. Ark Encounter, LLC v. Stewart, 311 F.R.D. 414, 2015 U.S. Dist. LEXIS 147650 (E.D. Ky. 2015 ), dismissed in part, 152 F. Supp. 3d 880, 2016 U.S. Dist. LEXIS 8405 (E.D. Ky. 2016 ).

Taxpayers could not intervene in a suit by a religious non-profit against the Commonwealth regarding a tourism incentive program because the potential strains on judicial economy and delays, confusion, and prejudice to the existing parties that would result from unrestricted intervention by taxpayers weighed against allowing permissive intervention under Fed. R. Civ. P. 24(b). Ark Encounter, LLC v. Stewart, 311 F.R.D. 414, 2015 U.S. Dist. LEXIS 147650 (E.D. Ky. 2015 ), dismissed in part, 152 F. Supp. 3d 880, 2016 U.S. Dist. LEXIS 8405 (E.D. Ky. 2016 ).

11.— Beliefs.

KRS 39A.285 and 39G.010 do not violate the First and Fourteenth Amendments, U.S. Const. amend. I and XIV, and Ky. Const. § 5 as the legislation merely pays lip service to a commonly held belief in the puissance of God; the legislation does not seek to advance religion, nor does it have the effect of advancing religion, but instead seeks to recognize the historical reliance on God for protection. Ky. Office of Homeland Sec. v. Christerson, 371 S.W.3d 754, 2011 Ky. App. LEXIS 209 (Ky. Ct. App. 2011), cert. denied, 568 U.S. 1228, 133 S. Ct. 1582, 185 L. Ed. 2d 577, 2013 U.S. LEXIS 2211 (U.S. 2013).

12.— Witnesses.

A witness may not be cross-examined as to his religious belief for the purpose of discrediting him, as by Const., § 2 and this section, all persons are placed on the same footing as witnesses, without regard to religious beliefs. Louisville & N. R. Co. v. Mayes, 80 S.W. 1096, 26 Ky. L. Rptr. 197 (1904).

13.— Materials.
14.— — Distribution.

One distributing religious tracts for Jehovah’s Witnesses, either selling or donating them, is engaged in religious and not commercial activity and an ordinance forbidding commercial peddling, if applicable, would violate this section guaranteeing freedom of religion. Seevers v. Somerset, 295 Ky. 595 , 175 S.W.2d 18, 1943 Ky. LEXIS 304 ( Ky. 1943 ). See Hibsman v. Madisonville, 295 Ky. 601 , 175 S.W.2d 21, 1943 Ky. LEXIS 305 ( Ky. 1943 ).

15.— Services.

Award of 99 percent of fiscal court’s transportation subsidy to educational institutions that promoted religious teachings and beliefs, while equivalent support for the public school optional program was withheld violated this section and Const., § 189. Fiscal Court v. Brady, 885 S.W.2d 681, 1994 Ky. LEXIS 88 ( Ky. 1994 ).

16.— — Public Safety.

A legislature may prohibit the practice of a religious rite or ceremony that endangers the lives, health or safety of the participants or other persons. Lawson v. Commonwealth, 291 Ky. 437 , 164 S.W.2d 972, 1942 Ky. LEXIS 254 ( Ky. 1942 ).

The legislature has no right to interfere with religious beliefs, but it does have the right to impose reasonable limitations upon acts done under color of the exercise of religious beliefs, including the power to regulate the times, places and manner of performing such acts when necessary to safeguard the health, good order and comfort of the community. Lawson v. Commonwealth, 291 Ky. 437 , 164 S.W.2d 972, 1942 Ky. LEXIS 254 ( Ky. 1942 ).

17.— — Reptiles.

Statute prohibiting handling of snakes in religious services was valid, notwithstanding that harmless as well as poisonous snakes were included, since ordinary person cannot distinguish between them. Lawson v. Commonwealth, 291 Ky. 437 , 164 S.W.2d 972, 1942 Ky. LEXIS 254 ( Ky. 1942 ).

18.Sunday Laws.

Statute pertaining to and regulating certain amusements, work and labor on Sabbath could not be constitutionally enforced as regulation of religion under this section. Commonwealth v. Phoenix Amusement Co., 241 Ky. 678 , 44 S.W.2d 830, 1931 Ky. LEXIS 150 ( Ky. 1931 ).

19.Taxation.

Notwithstanding this section or Const., §§ 170 or 189, trust fund devoted to propagation of Christian principles as taught by Christian church was not exempt from taxation as church property. Commonwealth v. Thomas, 119 Ky. 208 , 83 S.W. 572, 26 Ky. L. Rptr. 1128 , 1904 Ky. LEXIS 160 ( Ky. 1904 ).

KRS 158.115 authorizing county to use county funds to provide transportation for school children attending school in compliance with compulsory attendance laws, where children did not reside within reasonable walking distance of school and there were no sidewalks upon which they could travel, did not violate this section, notwithstanding that it would authorize transportation of children to parochial schools as well as public schools for it is simply an exercise of police power for the protection of children against the inclemency of weather and hazards of highway traffic. Nichols v. Henry, 301 Ky. 434 , 191 S.W.2d 930, 1945 Ky. LEXIS 746 ( Ky. 1945 ).

20.Employment Discrimination.

KRS 344.030(5) and 344.040 prohibiting employers from discriminating on the basis of religion unless the employer is unable to reasonably accommodate to the employee’s religious observance do not violate the establishment clauses of the federal or state Constitutions since the statutes have a secular purpose to promote equal employment opportunity, do not have a primary effect which either advances or inhibits religion and do not involve excessive entanglement of the government in religion. Kentucky Com. on Human Rights v. Kerns Bakery, Inc., 644 S.W.2d 350, 1982 Ky. App. LEXIS 277 (Ky. Ct. App. 1982), cert. denied, 462 U.S. 1133, 103 S. Ct. 3115, 77 L. Ed. 2d 1369, 1983 U.S. LEXIS 635 (U.S. 1983).

City and county ordinances which prohibited employment discrimination on the basis of sexual orientation or gender identity did not violate the constitutional prohibition against interference with the rights of conscience. Hyman v. City of Louisville, 132 F. Supp. 2d 528, 2001 U.S. Dist. LEXIS 4016 (W.D. Ky. 2001 ).

21.Use of Vehicle.

KRS 189.820 does not infringe upon the right to exercise religion by restricting religious worship rituals or enforcing compulsory conduct to which a person is conscientiously opposed; driving an automobile is not a fundamental constitutional right, but a legitimately regulated privilege, like the use of public roads, and the use of a vehicle and the public roads are not acts of religious worship. KRS 189.820 is a neutral law of general applicability, and does not invoke strict scrutiny analysis; the Commonwealth’s objective of ensuring public safety through the most effective means possible by use of an emblem to alert to a slow-moving vehicle overshadowed any encumbrances on religious practices. KRS 189.820 would have passed constitutional muster if a strict scrutiny analysis was applied; an argument that a bicycle exemption created a showing of legislative belief that slow-moving vehicle emblems did not promote roadway safety was rejected, and an argument that reflective tape was a less restrictive alternative was also rejected. Gingerich v. Commonwealth, 2011 Ky. App. LEXIS 97 (Ky. Ct. App. June 3, 2011, sub. op., 2011 Ky. App. Unpub. LEXIS 963 (Ky. Ct. App. June 3, 2011).

Drivers who refused to display a slow-moving vehicle emblem on horse-and-buggy vehicles for religious reasons could be ticketed and fined under KRS 189.820 without violating their right to the free exercise of religion under Ky. Const. §§ 1, 5. Under the rational basis standard of review, which was appropriate because § 189.820 is a public safety statute that generally applies to all slow-moving vehicles and does not prohibit any religious practice, there was ample rational basis for a statute regulating slow-moving vehicles for safety reasons. Gingerich v. Commonwealth, 382 S.W.3d 835, 2012 Ky. LEXIS 175 ( Ky. 2012 ).

22.Scope of Protection.

Free-exercise-of-religion protections in Ky. Const. §§ 1, 5 provide no more protection than the First Amendment, U.S. Const. amend. I; thus, generally applicable statutes that provide for the public health, safety, and welfare and only incidentally affect the practice of religion are subject to rational basis review under the Kentucky Constitution, as they are under the federal Constitution. Enactments that directly prohibit or restrain a religious practice are subject to a strict scrutiny standard of review under Kentucky law. Gingerich v. Commonwealth, 382 S.W.3d 835, 2012 Ky. LEXIS 175 ( Ky. 2012 ).

Cited:

Calvary Baptist Church v. Milliken, 148 Ky. 580 , 147 S.W. 12, 1912 Ky. LEXIS 486 ( Ky. 1912 ); Kerr v. Louisville, 271 Ky. 335 , 111 S.W.2d 1046, 1937 Ky. LEXIS 2 41 ( Ky. 1937 ); Sherrard v. Jefferson County Board of Education, 294 Ky. 469 , 171 S.W.2d 963, 1942 Ky. LEXIS 2 ( Ky. 1942 ); Ashland v. Calvary Protestant Episcopal Church, 278 S.W.2d 708, 1955 Ky. LEXIS 483 ( Ky. 1955 ); Fannin v. Williams, 655 S.W.2d 480, 1983 Ky. LEXIS 290 ( Ky. 1983 ).

Opinions of Attorney General.

Under subsection (2) of KRS 160.290 , a school board may make regulations designed to protect the general welfare and safety of students and in doing so may take into account specific standards of moral conduct so that school dances could be eliminated as an approved school function by the board unless such ban were imposed for religious reasons, in which case it would violate this section and the first amendment to the federal Constitution. OAG 70-167 .

For the Commonwealth to grant to a private college the power to exercise eminent domain, from a public-purpose standpoint the private institution of higher learning would have to be one which accords entrance privileges to qualified applicants on an open and equal basis without discrimination as to race, national origin or religious belief. OAG 70-567 .

The benefits of eminent domain could be given to certain qualifying private colleges either by providing for the exercise of the right in behalf of a particular qualifying private college through a designated state agency, with related over-all responsibilities for higher education, or by extending the right to certain specified classes of private colleges and private universities. OAG 70-567 .

The acceptance by the Commonwealth for a possible erection on the capitol grounds of a monolith and base on which is inscribed the Ten Commandments would, as a replica of a recognized code of law or moral conduct, not appear to offend either the Kentucky or United States Constitutions. OAG 71-179 .

Voluntary and spontaneous prayer meetings by students on school property not held during regular school hours constitute no violation of this section. OAG 72-386 .

While conceivably a state university might legally employ a minister to teach or perform services not related to his professional status as a minister or to the promotion of any religion, this section prohibits the appointment of financial aid from state funds to a chaplain or religious education director of a state subsidized college or university. OAG 73-563 .

A local board of education may constitutionally conduct within its school speech therapy courses for parochial school pupils residing within the school district. OAG 75-639 .

A nonprofit organization, created for the production of outdoor “religious dramas” such as to contribute to the “religious well-being” of county citizens, is nonsecular or sectarian in its publicly declared and avowed character; thus, even though it produces other than religious dramas, the financial support by the government with coal funds runs afoul of the first amendment. OAG 79-490 .

County money cannot be legally used to maintain a cemetery or cemetery road if the cemetery only allows burial of persons of a particular religion, since such expenditure would involve the use of public funds with a preference for a particular religious faith; however, even though the cemetery is maintained by a particular religious faith, if the cemetery is available for the public generally, regardless of the particular faith of the maintaining church, the expenditure would be constitutional. OAG 82-101 .

There is no statute that regulates the entrance age for a child to attend a nonpublic school and one could not constitutionally be enacted due to the Kentucky Supreme Court’s view of this section and the proscription against state regulation of nonpublic schools. OAG 82-408 .

Since the statutory powers of a county fiscal court do not include carrying on or promoting the work of the church or churches, a fiscal court cannot legally expend county tax money in putting rock and gravel upon church parking lots, meritorious as it might otherwise be in relation to spiritual and moral training. OAG 83-175 .

Research References and Practice Aids

Cross-References.

Freedom of worship, Const., § 1.

Religious instruction in schools, KRS 158.170 to 158.260 .

School money not to be used for sectarian schools, Const., § 189.

Kentucky Law Journal.

Weber and Olsen, Religious Property Tax Exemptions in Kentucky, 66 Ky. L.J. 651 (1977-1978).

Comment, Regulation of Fundamentalist Christian Schools: Free Exercise of Religion v. The State’s Interest in Quality Education, 67 Ky. L.J. 415 (1978-1979).

Weigand and Farr, Part of the Moving Stream: State Constitutional Law, Sodomy, and Beyond, 81 Ky. L.J. 449 (1992-93).

Northern Kentucky Law Review.

Comments, Separation of Church and State: Education and Religion in Kentucky, 6 N. Ky. L. Rev. 125 (1979).

Comments, Their Life Is In The Blood: Jehovah’s Witnesses, Blood Transfusions And The Courts, 10 N. Ky. L. Rev. 281 (1983).

The Establishment Clause: A Survey of Recent Religion Cases Decided Within the Sixth Circuit, 29 N. Ky. L. Rev. 73 (2002).

Bartlett, Displaying the Ten Commandments on Public Property: The Kentucky Experience: Wasn’t It Written In Stone?, 30 N. Ky. L. Rev. 163 (2003).

§ 6. Elections to be free and equal.

All elections shall be free and equal.

NOTES TO DECISIONS

1.In General.

Reasonable classifications may be provided even in elections so long as the election is public and open to all qualified electors alike and where every voter has the same right as any other voter to cast his ballot for the candidate of his choice. Mann v. Cornett, 445 S.W.2d 853, 1969 Ky. LEXIS 185 ( Ky. 1969 ).

2.Construction.

This section was construed to mean that the voter shall not be physically restrained in the exercise of his right to vote. Hatcher v. Meredith, 295 Ky. 194 , 173 S.W.2d 665, 1943 Ky. LEXIS 191 ( Ky. 194 3).

3.Application.

This section applies only to general elections. Rosenberg v. Republican Party of Louisville & Jefferson County, 270 S.W.2d 171, 1954 Ky. LEXIS 1025 ( Ky. 1954 ).

4.Absentee Voting.

The fact that law that provided for absentee voting in federal elections did not make provision for registering ballots of absent voters on voting machines in precincts where such machines are used did not result in violation of requirement of this section that elections be free and equal, since special ballot boxes could be provided in such precincts to receive the absentee ballots. Commonwealth ex rel. Dummit v. O'Connell, 298 Ky. 44 , 181 S.W.2d 691, 1944 Ky. LEXIS 837 ( Ky. 1944 ).

Law that prohibited mailing of absentee ballot to any applicant prior to 14 days before election, was violative of this section because it would operate to deprive numbers of voters of opportunity to vote. Queenan v. Russell, 339 S.W.2d 475, 1960 Ky. LEXIS 469 ( Ky. 1960 ).

Though there is no unqualified constitutional right to vote by absentee ballot, when the legislature grants such right by statute, it must operate with equality among all the class to which it is granted. Queenan v. Russell, 339 S.W.2d 475, 1960 Ky. LEXIS 469 ( Ky. 1960 ).

Amendment to absentee voting law that established two (2) general classes of voters eligible to vote by absentee ballot did not violate this section. Hallahan v. Mittlebeeler, 373 S.W.2d 726, 1963 Ky. LEXIS 171 ( Ky. 1963 ).

5.Apportionment.

Since the apportionment of the state into senatorial districts under the Act June 28, 1893 was accepted for 13 years without its validity being questioned, the constitutionality of the act could not be questioned in 1906 on the ground that it infringed on this section. Adams v. Bosworth, 126 Ky. 61 , 102 S.W. 861, 31 Ky. L. Rptr. 518 , 1907 Ky. LEXIS 20 ( Ky. 1907 ).

The city council of a city of the fourth class being authorized by statute to divide the city into wards, and provide for the election of councilmen from their respective wards, and there being no constitutional or statutory provision requiring that such division be so made as to provide equal representation, the courts cannot interfere with the exercise of the legislative power so conferred by invalidating an ordinance so dividing the city into wards as to cause unequal representation. Moore v. Georgetown, 127 Ky. 409 , 105 S.W. 905, 32 Ky. L. Rptr. 315 , 32 Ky. L. Rptr. 323 , 1907 Ky. LEXIS 148 ( Ky. 1907 ).

In reapportionment case, fact that districts did not contain exact numbers of people did not violate this section, since “absolute equality cannot be obtained.” Watts v. O'Connell, 247 S.W.2d 531, 1952 Ky. LEXIS 718 ( Ky. 1952 ).

Redistricting of congressional districts, resulting in some differences in district population and lack of compactness, was not violative of this section. Watts v. Carter, 355 S.W.2d 657, 1962 Ky. LEXIS 73 ( Ky. 1962 ). But see Watts v. O'Connell, 247 S.W.2d 531, 1952 Ky. LEXIS 718 ( Ky. 1952 ).

It is duty of legislature to recognize that disproportionate representation, whether it results from population changes or from new legislation, can be so flagrant and unwarranted that duty of courts to uphold constitutional rights of equality under law will override traditional reluctance to enter political thicket. Watts v. Carter, 355 S.W.2d 657, 1962 Ky. LEXIS 73 ( Ky. 1962 ).

6.Ballots.

Statutory provisions requiring voter instead of judge to deposit ballot in box, requiring voter to detach secondary stub, and requiring ballot boxes to be 15 feet from election officers, do not violate this section. State Board of Election Comm'rs v. Coleman, 235 Ky. 24 , 29 S.W.2d 619, 1930 Ky. LEXIS 305 ( Ky. 1930 ).

Because of the distinct qualifications, responsibilities and duties required of judicial officers separate from political affiliation, a valid basis exists for providing a separate judicial ballot. Mann v. Cornett, 445 S.W.2d 853, 1969 Ky. LEXIS 185 ( Ky. 1969 ).

Law providing for contents and arrangement of judicial ballots did not violate Const., § 6 for although it provided for a separate judicial ballot, it afforded every voter an equal right to exercise his franchise in the selection of judicial officers. Mann v. Cornett, 445 S.W.2d 853, 1969 Ky. LEXIS 185 ( Ky. 1969 ).

7.— Emblems.

Where improper emblems were used on ballots in a local option election for the purpose of influencing voters, such emblems tended to prevent a free and equal expression of opinion on the part of the voters and rendered the election void. Conley v. Hardwick, 141 Ky. 136 , 132 S.W. 140, 1910 Ky. LEXIS 398 ( Ky. 1910 ).

8.— Insufficient Supply.

There was not a free and equal election, within this section, where a third of the electors were prevented from voting because of an insufficient supply of ballots. Hocker v. Pendleton, 100 Ky. 726 , 39 S.W. 250, 19 Ky. L. Rptr. 135 , 1897 Ky. LEXIS 48 ( Ky. 1897 ).

9.Bond Issues.

Where the issuance of bonds is the subject of an act, even though the money is to be devoted to several distinct and unrelated purposes, neither this section nor Const., § 51 is violated. Walton v. Carter, 337 S.W.2d 674, 1960 Ky. LEXIS 363 ( Ky. 1960 ).

10.Candidates.

Where a candidate was nominated for justice of the peace and filed a withdrawal as candidate for constable although he had not been nominated as such, when his name was left off the ballot as a candidate for justice of the peace he was not chargeable with any improper conduct or negligence in filing the withdrawal as candidate for constable. Ferguson v. Rohde, 449 S.W.2d 758, 1970 Ky. LEXIS 474 ( Ky. 1970 ).

11.— Listing on Ballot.

The right to vote and be voted for is a constitutional right, but the privilege of having one’s name printed on the ballot as a candidate is limited to those who comply with statutory requirements. Asher v. Arnett, 280 Ky. 347 , 132 S.W.2d 772, 1939 Ky. LEXIS 87 ( Ky. 1939 ).

Law providing that except for candidates for judge of circuit court or Court of Appeals, no candidate defeated for office in primary election could have name put on ballot for same office in general election, was not violative of this section. Rosenberg v. Queenan, 261 S.W.2d 617, 1953 Ky. LEXIS 1025 ( Ky. 1953 ).

An individual who has been nominated as required by law has an unqualified right to have his name appear on the ballot. Ferguson v. Rohde, 449 S.W.2d 758, 1970 Ky. LEXIS 474 ( Ky. 1970 ).

The county clerk’s failure to place a properly nominated person’s name on the ballot is such a statutory irregularity as must be deemed so pervasive as to vitiate the entire election, as pertains to the office involved. Ferguson v. Rohde, 449 S.W.2d 758, 1970 Ky. LEXIS 474 ( Ky. 1970 ).

12.— Nomination Certificates.

Law requiring nomination certificates to be filed prior to primary election, did not violate this section requiring elections to be free and equal. Asher v. Arnett, 280 Ky. 347 , 132 S.W.2d 772, 1939 Ky. LEXIS 87 ( Ky. 1939 ).

13.— Time for Filing.

Law that specified time for filing for office by candidates in cities of fourth class, did not violate this section or Const., §§ 59 or 60. Hallahan v. Moody, 419 S.W.2d 770, 1967 Ky. LEXIS 196 ( Ky. 1967 ).

14.Election Regulations.

A proviso in the election law that “a candidate who has received the next highest number of votes, and who has not violated the provisions of the law shall be declared . . . . . elected” was unconstitutional and inoperative so far as it authorized the election of a candidate who has not received a majority or plurality of votes cast, which was necessary to a free and equal election. McKinney v. Barker, 180 Ky. 526 , 203 S.W. 303, 1918 Ky. LEXIS 102 ( Ky. 1918 ) ( Ky. 1918 ).

The provisions of the election law that authorized the court to award the election to the second highest candidate had violated the corrupt practices law were constitutional as to primary elections, but unconstitutional as to general elections. Creech v. Fields, 276 Ky. 359 , 124 S.W.2d 503, 1939 Ky. LEXIS 537 ( Ky. 1939 ).

The provisions of the election law that authorized the court to declare the nomination or election of an officer void when the officer had violated the law, were constitutional. Creech v. Fields, 276 Ky. 359 , 124 S.W.2d 503, 1939 Ky. LEXIS 537 ( Ky. 1939 ).

All regulations of the election franchise must be reasonable, uniform and impartial. Asher v. Arnett, 280 Ky. 347 , 132 S.W.2d 772, 1939 Ky. LEXIS 87 ( Ky. 1939 ).

This section does not limit the power of the legislature to enact reasonable regulations for the naming of candidates by political parties and groups of voters. Asher v. Arnett, 280 Ky. 347 , 132 S.W.2d 772, 1939 Ky. LEXIS 87 ( Ky. 1939 ).

Law providing for comparative signature books and for comparison of voter’s signature with the record does not violate this section, as it is reasonable legislative regulation which does not deny voting privilege either directly or otherwise. Wilkinson v. Queen, 269 S.W.2d 223, 1954 Ky. LEXIS 969 ( Ky. 1954 ).

The legislature, under its authority to make reasonable regulations for the exercise of voting franchise, may not so frame such regulations as to deny the voting privilege, either directly or by making exercise thereof so difficult and inconvenient as to amount to a denial. Wilkinson v. Queen, 269 S.W.2d 223, 1954 Ky. LEXIS 969 ( Ky. 1954 ). See Queenan v. Russell, 339 S.W.2d 475, 1960 Ky. LEXIS 469 ( Ky. 1960 ).

15.Illegal Elections.

Where money and whiskey were used to influence voters, circuit court order was disregarded in selecting election officers, election equipment was stolen in one precinct, and in other precincts state patrolmen arrested the election officers, confiscated the ballot boxes and closed the polls, without warrant from any court, the election was not free and equal, and was void. Middleton v. Poer, 275 Ky. 401 , 121 S.W.2d 28, 1938 Ky. LEXIS 400 ( Ky. 1938 ).

Election was illegal where insufficient voting places were provided and there was insufficient notice to voters. Gill v. Board of Education, 288 Ky. 790 , 156 S.W.2d 844, 1941 Ky. LEXIS 142 ( Ky. 1941 ).

Where ballots furnished to some of precincts in one educational division, in school board election, were void because they erroneously carried names of candidates from another division, and total number of registered voters in such precincts was more than 20 per cent of the total for the educational division, the entire election was void although the votes actually cast in such precincts did not change the result of the election. Lakes v. Estridge, 294 Ky. 655 , 172 S.W.2d 454, 1943 Ky. LEXIS 509 ( Ky. 1943 ). See Hillard v. Lakes, 294 Ky. 659 , 172 S.W.2d 456, 1943 Ky. LEXIS 510 ( Ky. 1943 ).

Where two (2) candidates were running for the unexpired term for sheriff and the name of one of the candidates was placed at the foot of the column of one of the major parties under the heading “For Sheriff,” and the other’s name, he being the only independent candidate, was placed at the head of that column under the caption “For the Unexpired Term for Sheriff,” the election to fill that office was invalid because not conducted in compliance with the statute and because it was not free and equal as required by the Constitution. Davidson v. White, 307 Ky. 269 , 210 S.W.2d 943, 1948 Ky. LEXIS 726 ( Ky. 1948 ).

16.— Fraud or Inducement.

Where, if voters in a city who had been disfranchised by force, fraud, and intimidation, had all voted for the defeated candidates, the latter would have been elected by large majorities, and it was impossible to determine who was in fact elected, the entire election would be declared void. Scholl v. Bell, 125 Ky. 750 , 102 S.W. 248, 31 Ky. L. Rptr. 335 , 1907 Ky. LEXIS 328 ( Ky. 1907 ).

Election was declared void under this section due to wholesale bribery and fraud. Ford v. Hopkins, 141 Ky. 181 , 132 S.W. 542, 1910 Ky. LEXIS 448 ( Ky. 1910 ).

Where in a city election for mayor and city commissioners, the then mayor and candidate for commissioner controlled the suffrages of over 30 per cent of the voters through a secret organization with oath to obey him, having induced them to believe they were legally and morally bound, and held their registration certificates till day of election, and the returns of election indicated that the members of the organization voted as directed, there was such intimidation as to render election not free and equal, and it was void. Burns v. Lackey, 171 Ky. 21 , 186 S.W. 909, 1916 Ky. LEXIS 297 ( Ky. 1916 ).

17.— Violence.

Use of intimidation, threats, violence, or other means to drive from polls those of opposite political party constituted violation of this section. Taylor v. Neutzel, 220 Ky. 510 , 295 S.W. 873, 1927 Ky. LEXIS 575 ( Ky. 1927 ).

18.Local Option Elections.

The fact that law provided for the holding of a local option election on the same day that a school election was held, did not constitute a violation of the bill of rights, providing that all elections shall be free and equal. Throckmorton v. Commonwealth, 35 S.W. 635, 18 Ky. L. Rptr. 130 (1896).

A local option election held in an incorporated town in April, without any special registration being provided for, was void, and could not be sustained by showing that the result was not affected by omission of such registration. Early v. Rains, 121 Ky. 439 , 106 Mo. App. 684, 89 S.W. 289, 28 Ky. L. Rptr. 415 , 1905 Ky. LEXIS 224 ( Ky. 1905 ).

Where law provided for the holding of local option elections, regulated the time for holding such elections in towns, cities, districts, or precincts, and in entire counties, differentiating between counties having cities of the fourth class or larger and those not having cities within the fourth class, such classification was proper. Board of Trustees v. Scott, 125 Ky. 545 , 101 S.W. 944, 30 Ky. L. Rptr. 894 , 1907 Ky. LEXIS 313 ( Ky. 1907 ).

County unit law that provided the procedure for local option election and which made the county the unit for holding elections was not in violation of this section requiring all elections be free and equal. McAuliffe v. Helm, 157 Ky. 626 , 163 S.W. 1091, 1914 Ky. LEXIS 349 ( Ky. 1914 ).

A local option election was free and equal notwithstanding absence of a substantial number of legal voters in the armed service. Booth v. McKenzie, 302 Ky. 215 , 194 S.W.2d 63, 1946 Ky. LEXIS 609 ( Ky. 1946 ).

To defeat results of local option election, on ground that it was not free and equal within meaning of the Constitution, contestants must allege and prove that a substantial number of eligible, legal or qualified voters were wrongfully denied right to vote through no fault or cause of their own. Gross v. West, 283 S.W.2d 358, 1955 Ky. LEXIS 301 ( Ky. 1955 ).

19.Majority Vote.

Candidate could not be elected who had not received majority or plurality of votes, even though candidate with next higher number of votes became disqualified. Bogie v. Hill, 286 Ky. 732 , 151 S.W.2d 765, 1941 Ky. LEXIS 323 ( Ky. 1941 ). See McKinney v. Barker, 180 Ky. 526 , 203 S.W. 303, 1918 Ky. LEXIS 102 ( Ky. 1918 ) ( Ky. 1918 ).

20.Polls.

It is improper to have the polling places in a city dominated and controlled by the city’s police force. Scholl v. Bell, 125 Ky. 750 , 102 S.W. 248, 31 Ky. L. Rptr. 335 , 1907 Ky. LEXIS 328 ( Ky. 1907 ).

21.Precincts.

Trustees of graded school district must hold school elections in all voting precincts within district, and designation of single place for holding election was unauthorized, where number of voters was so great as to deprive a large percent of them of an opportunity to vote. Smith v. Kelly, 248 Ky. 370 , 58 S.W.2d 621, 1933 Ky. LEXIS 238 ( Ky. 1933 ).

22.Primary Elections.

This section has no application to primary elections. Montgomery v. Chelf, 118 Ky. 766 , 82 S.W. 388, 26 Ky. L. Rptr. 638 , 1904 Ky. LEXIS 100 ( Ky. 1904 ).

An act providing for primary elections which does not exclude any class of citizens from participation therein, and makes penalties for violation the same as those for violations of general election law, is not in conflict with this section declaring all elections shall be free and equal. Hodge v. Bryan, 149 Ky. 110 , 148 S.W. 21, 1912 Ky. LEXIS 595 ( Ky. 1912 ).

The word election as used in this section does not apply to primary elections, which are not in fact elections of officers but merely a means of selecting candidates, so that primary election law is not in violation of the Constitution. Hager v. Robinson, 154 Ky. 489 , 157 S.W. 1138, 1913 Ky. LEXIS 129 ( Ky. 1913 ).

Third-class city election provision to effect that it was illegal to vote for candidate who was not nominated in primary election, was not contrary to this section. Whitney v. Skinner, 194 Ky. 804 , 241 S.W. 350, 1922 Ky. LEXIS 259 ( Ky. 1922 ).

This section does not apply to primary elections, but applies only to general elections. Davis v. Stahl, 287 Ky. 629 , 154 S.W.2d 736, 1941 Ky. LEXIS 607 ( Ky. 1941 ).

This section was not violated by a statute allowing only a candidate who was voted for at a primary election to contest that election. Davis v. Stahl, 287 Ky. 629 , 154 S.W.2d 736, 1941 Ky. LEXIS 607 ( Ky. 1941 ).

23.Registration.

An act providing only one day in July, 60 days before the general election each year, for registration to be eligible to vote in next election, violated this section. Perkins v. Lucas, 197 Ky. 1 , 246 S.W. 150, 1922 Ky. LEXIS 633 ( Ky. 1 922).

In the absence of any showing that a sufficient number of eligible voters, to have changed the result of the election, were prevented from registering and voting by a slightly earlier than usual closing on a Saturday afternoon, there was no justification for setting aside an election on the ground this section had been violated. Mutters v. Allen, 296 Ky. 113 , 176 S.W.2d 255, 1943 Ky. LEXIS 114 ( Ky. 1943 ).

Where four (4) voters were not permitted to vote in an election because of a clerical error which registered them in the wrong precinct, but they could have voted had they obtained authorization and certification from the election commission on election day, such voters were not denied their rights under this provision. Kirk v. Harmon, 557 S.W.2d 220, 1977 Ky. App. LEXIS 831 (Ky. Ct. App. 1977).

24.— Purgation.

Law providing procedure for registration and purgation of voters did not violate this section on ground that registration books are required to be closed for an unnecessary and unreasonable length of time each year, or on the ground that it does not give a challenged voter ample opportunity to be heard, or that it deprives him of the right of suffrage without due process of law. Burton v. Mayer, 274 Ky. 245 , 118 S.W.2d 161, 1938 Ky. LEXIS 233 ( Ky. 1938 ).

Improper purgation of registration list of voters does not settle issue of free and equal election, since registration is only one qualification of legal voter. Gross v. West, 283 S.W.2d 358, 1955 Ky. LEXIS 301 ( Ky. 1955 ).

25.Right to Vote.

A free and equal election is one at which every person entitled to vote may do so if he desires, and a disbarment of a substantial number of legal voters is necessary to invalidate an election, and if from any cause they are denied the right to vote, the election is not free and equal in the meaning of this section. Wallbrecht v. Ingram, 164 Ky. 463 , 175 S.W. 1022, 1915 Ky. LEXIS 411 (Ky.), writ of error dismissed, 239 U.S. 625, 36 S. Ct. 162, 60 L. Ed. 473, 1915 U.S. LEXIS 1407 (U.S. 1915).

Statute providing for election of county school superintendent by voters outside cities of first four (4) classes violated this section. Robertson v. Hopkins County, 247 Ky. 129 , 56 S.W.2d 700, 1933 Ky. LEXIS 349 ( Ky. 1933 ).

Under this section an election is not free and equal if a substantial number or percentage of qualified electors are deprived of their right to vote. Johnson v. May, 305 Ky. 292 , 203 S.W.2d 37, 1947 Ky. LEXIS 785 ( Ky. 1947 ).

Election is free and equal within meaning of this section only when it is public and open to all qualified electors alike, when every voter has the same right as any other voter, when each voter under the law has right to cast his ballot and have it honestly counted, when regulation of right to exercise franchise does not deny the franchise itself or make it so difficult as to amount to a denial, and when no constitutional right of qualified elector is subverted or denied. Queenan v. Russell, 339 S.W.2d 475, 1960 Ky. LEXIS 469 ( Ky. 1960 ). See Asher v. Arnett, 280 Ky. 347 , 132 S.W.2d 772, 1939 Ky. LEXIS 87 ( Ky. 1939 ).

26.Voting Machines.

The fact that voting machines are used in some precincts and not in others does not violate the requirement that elections be free and equal. Grauman v. Jefferson County Fiscal Court, 294 Ky. 149 , 171 S.W.2d 36, 1943 Ky. LEXIS 402 ( Ky. 1943 ).

The provision of former law for assistance to illiterate or disabled voters in operating the voting machine did not violate this section. Grauman v. Jefferson County Fiscal Court, 294 Ky. 149 , 171 S.W.2d 36, 1943 Ky. LEXIS 402 ( Ky. 1943 ).

Law which permits the use of voting machines in some precincts of a county and voting by hand in other precincts of the county does not violate this section. Grauman v. Jefferson County Fiscal Court, 294 Ky. 149 , 171 S.W.2d 36, 1943 Ky. LEXIS 402 ( Ky. 1943 ).

27.Election Contests.

A voter has no right to keep from office a person elected to the office of alderman, even if the election was illegal, and any contest of such election would, by statute, be settled by the other aldermen, not by the courts. Witten v. Sternberg, 475 S.W.2d 496, 1971 Ky. LEXIS 73 ( Ky. 1971 ).

Cited:

De Haven v. Bowmer, 125 Ky. 800 , 31 Ky. L. Rptr. 416 , 102 S.W. 306, 1907 Ky. LEXIS 336 ( Ky. 1907 ); Skain v. Milward, 138 Ky. 200 , 127 S.W. 773, 1910 Ky. LEXIS 61 ( Ky. 1910 ); Morgan v. Goode, 151 Ky. 284 , 152 S.W. 584, 1912 Ky. LEXIS 820 ( Ky. 1912 ); Vaughan v. Roberts, 192 Ky. 364 , 233 S.W. 733, 1921 Ky. LEXIS 56 ( Ky. 1921 ); Allen v. Cromwell, 203 Ky. 836 , 263 S.W. 356, 1924 Ky. LEXIS 1017 ( Ky. 1924 ); Bard v. Board of Drainage Comm’rs, 274 Ky. 491 , 118 S.W.2d 1013, 1938 Ky. LEXIS 292 ( Ky. 1938 ); Karloftis v. Helton, 297 Ky. 463 , 178 S.W.2d 959, 1944 Ky. LEXIS 665 ( Ky. 1944 ); Cantrell v. Adams, 298 Ky. 845 , 183 S.W.2d 492, 1944 Ky. LEXIS 935 ( Ky. 1944 ); Simpson v. Hughes, 299 Ky. 758 , 187 S.W.2d 440 (1945); Hawkins v. Auxier, 311 Ky. 186 , 223 S.W.2d 753, 1949 Ky. LEXIS 1095 ( Ky. 1949 ); Stephens v. Hicks, 401 S.W.2d 75, 1966 Ky. LEXIS 405 ( Ky. 1966 ); Arnett v. Hensley, 425 S.W.2d 546, 1968 Ky. LEXIS 418 ( Ky. 1968 ); Wood v. Kirby, 566 S.W.2d 751, 1978 Ky. LEXIS 364 ( Ky. 1978 ); Louisville Shopping Center, Inc. v. St. Matthews, 635 S.W.2d 307, 1982 Ky. LEXIS 266 ( Ky. 1982 ); Merritt v. Campbellsville, 678 S.W.2d 788, 1984 Ky. App. LEXIS 625 (Ky. Ct. App. 1984); Commonwealth v. Foley, 798 S.W.2d 947, 1990 Ky. LEXIS 121 ( Ky. 1990 ).

Opinions of Attorney General.

When the 31st of December falls on Sunday and the following day on which county officers are to take office for the ensuing term is a legal holiday, the county officers may be sworn in and execute bond when required on or before the first Monday in January, a legal holiday. OAG 61-886 .

In the absence of any constitutional authority, the general assembly may not disqualify persons from being elected by a write-in vote. OAG 79-488 .

A statement by a school board candidate that he prefers a certain individual to serve as superintendent is protected by the first amendment of the United States Constitution and Ky. Const., § 1. OAG 92-156 .

Research References and Practice Aids

Cross-References.

Elections, Const., §§ 145-155; KRS chs. 116 to 121.

§ 7. Right of trial by jury.

The ancient mode of trial by jury shall be held sacred, and the right thereof remain inviolate, subject to such modifications as may be authorized by this Constitution.

NOTES TO DECISIONS

Analysis

1.In General.

The ancient mode of trial by jury means trial by jury according to the requirements of the common law. Branham v. Commonwealth, 209 Ky. 734 , 273 S.W. 489, 1925 Ky. LEXIS 591 ( Ky. 1925 ), overruled, Short v. Commonwealth, 519 S.W.2d 828, 1975 Ky. LEXIS 182 ( Ky. 1975 ).

There is no right in the Kentucky Constitution which grants a defendant the unqualified right to be tried by a judge without the intervention of a jury. Hayes v. Commonwealth, 470 S.W.2d 601, 1971 Ky. LEXIS 278 ( Ky. 1971 ).

Where the offense with which defendant was charged was not one which was required to be tried by a jury at common law, the court did not err by failing to conduct a jury trial. Donta v. Commonwealth, 858 S.W.2d 719, 1993 Ky. App. LEXIS 95 (Ky. Ct. App. 1993).

The constitutional term “inviolate” means that the right to trial by jury is unassailable, and legislation and civil rules of practice shall be construed strictly and observed vigilantly in favor of the right and is not to be abrogated arbitrarily by the courts; thus the constitutional right to a jury trial cannot be annulled, obstructed, impaired, or restricted by legislative or judicial action. Steelvest, Inc. v. Scansteel Serv. Ctr., 908 S.W.2d 104, 1995 Ky. LEXIS 97 ( Ky. 1995 ).

Proper use of summary judgments, directed verdicts, or other forms of disposition prior to submission to a jury do not violate this section. Godbey v. University Hosp. of the Albert B. Chandler Med. Ctr., 975 S.W.2d 104, 1998 Ky. App. LEXIS 69 (Ky. Ct. App. 1998).

The right to a jury trial under either Ky. Const. § 7 or Ky. Const. § 242 is fundamental, but neither is more so than the other. Louisville & Jefferson County Metro. Sewer Dist. v. Bischoff, 248 S.W.3d 533, 2007 Ky. LEXIS 265 ( Ky. 2007 ).

Practice of eschewing judicial comment is not a constitutional requirement. Walker v. Commonwealth, 349 S.W.3d 307, 2011 Ky. LEXIS 135 ( Ky. 2011 ).

2.Advisory Jury.

Since right to jury trial was preserved by Civil Rules, legal action for recovery of debt was erroneously tried with advisory jury only, although such error was not prejudicial. Brock v. Farmer, 291 S.W.2d 531, 1956 Ky. LEXIS 379 ( Ky. 1956 ).

3.Assignments for Creditors.

The Constitution secures to a litigant the right of trial by jury only in cases where such right existed at common law, and in proceedings to compel an assignee for the benefit of creditors to settle his accounts, the assignee is not entitled to a trial by jury of the questions raised by the pleadings. Comingor v. Louisville Trust Co., 128 Ky. 697 , 108 S.W. 950, 111 S.W. 681, 33 Ky. L. Rptr. 53 , 33 Ky. L. Rptr. 884 , 1908 Ky. LEXIS 90 (Ky. Ct. App. 1908).

4.Arbitration.

Home buyers did not demonstrate that KRS 417.045 et seq., regarding arbitration, violated the buyers’ right to a jury trial in Ky. Const. § 7 because Ky. Const. § 7 contemplated that there could be exceptions to the right, and Ky. Const. § 250, providing for the establishment of a system of arbitration, which, by definition, did not include a trial by jury, was such an exception. Dutschke v. Jim Russell Realtors, Inc., 281 S.W.3d 817, 2008 Ky. App. LEXIS 248 (Ky. Ct. App. 2008).

5.Contempt.

Jury trial in contempt proceedings is constitutionally mandated only where “serious” punishment is imposed and where a $10,000 fine was imposed on a union for striking in violation of a restraining order, such penalty was not “serious” enough to require a jury trial. International Asso. of Firefighters v. Lexington-Fayette Urban County Government, 555 S.W.2d 258, 1977 Ky. LEXIS 502 ( Ky. 1977 ).

In a contempt action where the factual situation is disputed, imprisonment beyond six (6) months is “serious” punishment requiring jury trial, but whether a fine is “serious” must be determined in the particular context rather than by a set figure. International Asso. of Firefighters v. Lexington-Fayette Urban County Government, 555 S.W.2d 258, 1977 Ky. LEXIS 502 ( Ky. 1977 ).

In an action for forcible detainer, the trial court did not deny the tenant her right to a jury trial under Ky. Const. § 7 because detainer actions are tried by a trial judge by default under Ky. Rev. Stat. Ann. § 383.210(2). Since the tenant did not appear after the hearing on her motion for demand for a jury trial, the trial court did not abuse its discretion in punishing the tenant for her contempt of court—through her refusal to appear at the jury trial she requested and as duly ordered by the trial court—by converting the jury trial to a bench trial. Johnson v. Bielefeld, 2022 Ky. App. LEXIS 5 (Ky. Ct. App. Jan. 14, 2022).

6.Court Orders.

Law under which failure to comply with child support order from divorce judgment constituted a felony was unconstitutional, since it in effect made equivalent of contempt a felony without right of defense or trial by jury. Commonwealth v. O'Harrah, 262 S.W.2d 385, 1953 Ky. LEXIS 1096 ( Ky. 1953 ).

7.Discrimination Cases.

Because the right to be free from discrimination based on race, color, religion, national origin, sex, and age is a creature of statute and not a common-law tort, it does not fall within the scope of the right to trial by jury preserved by U.S. Const., Amend. 7 and by this section. Kentucky Com. on Human Rights v. Fraser, 625 S.W.2d 852, 1981 Ky. LEXIS 311 ( Ky. 1981 ).

8.Equity.

Transfer of case to equity where issues were cognizable in equity was not violative of this section. O'Connor v. Henderson Bridge Co., 95 Ky. 633 , 27 S.W. 251, 16 Ky. L. Rptr. 244 , 1894 Ky. LEXIS 78 ( Ky. 1894 ).

In an action purely cognizable in equity, in which no legal issue arises, it is within the sound discretion of the chancellor whether he will impanel a jury to try the issue of fact on which the determination of the equitable issue depends, and his action in refusing to do so will not be disturbed unless that discretion has been abused. Reese's Adm'r v. Youtsey, 113 Ky. 839 , 69 S.W. 708, 24 Ky. L. Rptr. 603 , 1902 Ky. LEXIS 110 ( Ky. 1902 ).

Where case was properly transferred to equity docket, this section was not violated. Manion v. Manion, 120 Ky. 1 , 85 S.W. 197, 27 Ky. L. Rptr. 400 , 1905 Ky. LEXIS 65 ( Ky. 1 905).

This section does not guarantee the right to a jury trial of issues of fact arising in every equity case, but in those cases in which, at common law, a litigant was entitled to a jury trial and in cases of purely equitable cognizance a trial by jury is not a matter of right, but is within the discretion of the chancellor. Rieger v. Schulte & Eicher, 151 Ky. 129 , 151 S.W. 395, 1912 Ky. LEXIS 778 ( Ky. 1912 ). See Scott v. Kirtley, 166 Ky. 727 , 179 S.W. 825, 1915 Ky. LEXIS 762 ( Ky. 1915 ); Stearns Coal & Lumber Co. v. Commonwealth, 167 Ky. 51 , 179 S.W. 1080, 1915 Ky. LEXIS 799 ( Ky. 1915 ).

Constitutional right to jury trial did not apply to proceeding in equity. Wilson v. Carrollton Tobacco Warehouse Co., 182 Ky. 433 , 206 S.W. 618, 1918 Ky. LEXIS 376 ( Ky. 1918 ). See Greenway v. Irvine's Ex'r, 234 Ky. 597 , 28 S.W.2d 760, 1929 Ky. LEXIS 457 ( Ky. 1929 ); Commercial Union Assurance Co. v. Howard, 256 Ky. 363 , 76 S.W.2d 246, 1934 Ky. LEXIS 422 ( Ky. 1934 ).

Defendant is not entitled to trial by jury in proceedings to abate a disorderly house. King v. Commonwealth, 194 Ky. 143 , 238 S.W. 373, 1922 Ky. LEXIS 119 ( Ky. 1922 ).

Trial judge’s denial of demand for jury trial did not violate this section where action was properly cognizable in equity rather than at common law. McGuire v. Hammond, 405 S.W.2d 191, 1966 Ky. LEXIS 245 ( Ky. 1966 ), overruled, Steelvest, Inc. v. Scansteel Serv. Ctr., 908 S.W.2d 104, 1995 Ky. LEXIS 97 ( Ky. 1995 ).

9.Habeas Corpus.

A writ of habeas corpus from a federal court cannot be made to perform the office of a writ of error to review a judgment of conviction in a state court in which it had jurisdiction, even where it is claimed, as in this case, that the jury was packed and defendant was denied a fair trial, as his remedy is appeal and writ of error from Supreme Court of United States if his claim on appeal be decided adversely. Ex parte Powers, 129 F. 985, 1904 U.S. Dist. LEXIS 327 (D. Ky. 1904 ).

9.5.Impartial Jury.

Defendant was denied representation at a critical stage of his trial because the trial court engaged in an ex parte discussion with a juror who had been offered a bribe, and that amounted to structural error as it denied defendant his right to an impartial jury. Eversole v. Commonwealth, 600 S.W.3d 209, 2020 Ky. LEXIS 121 ( Ky. 2020 ).

10.Incompetency.

Under this section a person cannot be declared incompetent and have his property taken out of his hands, or be placed in confinement, without the intervention of a jury and the verdict of a jury declaring him to be non sui juris. Hager v. Pacific Mut. Life Ins. Co., 43 F. Supp. 22, 1942 U.S. Dist. LEXIS 3145 (D. Ky. 1942 ).

11.Issues.

Although as a general rule it is the pleadings rather than the proof which are determinative of whether legal or equitable issues are involved, in exceptional cases pretrial proceedings, or the actual trial of a case, may develop issues which should be resolved by the judge rather than the jury. Brandenburg v. Burns, 451 S.W.2d 413, 1969 Ky. LEXIS 17 ( Ky. 1969 ).

The fact that a number of items are involved does not convert a legal issue into an equitable one for purposes of entitlement to a jury trial. Brandenburg v. Burns, 451 S.W.2d 413, 1969 Ky. LEXIS 17 ( Ky. 1969 ).

Where both legal and equitable issues are involved in a lawsuit, the legal issues should be tried by a jury if proper demand is made. Brandenburg v. Burns, 451 S.W.2d 413, 1969 Ky. LEXIS 17 ( Ky. 1969 ).

Where the principal issues were legal in nature but a lien was asserted in the suit, the fact that incidental relief by way of the enforcement of a lien was involved did not convert the whole action into an equitable one and appellants were entitled to a jury trial on the legal issues. Brandenburg v. Burns, 451 S.W.2d 413, 1969 Ky. LEXIS 17 ( Ky. 1969 ).

12.— Admissibility of Confessions.

Submission of question of admissibility of confession to trial judge rather than jury was not violative of this section. Karl v. Commonwealth, 288 S.W.2d 628, 1956 Ky. LEXIS 266 ( Ky. 1956 ).

13.— Damages.

Issue of damages in legal malice case was question for jury determination. John Brenner Brewing Co. v. McGill, 62 S.W. 722, 23 Ky. L. Rptr. 212 (1901).

Subdivision (3)(h) of KRS 344.230 , which allows the State Commission on Human Rights to award compensatory damages for embarrassment and humiliation in discrimination cases, did not unconstitutionally deprive a defendant employer in a sex discrimination action of his right to a jury trial since the right to be free of sex discrimination is statutory and, therefore, is not within the scope of the right preserved by this section. Kentucky Com. on Human Rights v. Fraser, 625 S.W.2d 852, 1981 Ky. LEXIS 311 ( Ky. 1981 ).

14.— Fact.

The fact that statute which empowers the circuit court to investigate and adjudge whether facts exist to authorize an ordinance of a town of the sixth class to enlarge the boundaries of the town, does not provide for a jury trial, renders it violative of this section. Lewis v. Brandenburg, 105 Ky. 14 , 47 S.W. 862, 20 Ky. L. Rptr. 1011 , 1898 Ky. LEXIS 238 ( Ky. 1898 ).

Where action was brought at common law and involved damages dependent upon issues of fact, and answer presented no equitable defense, plaintiffs had constitutional right to trial by jury. Republic Coal Co. v. Ward, 191 Ky. 368 , 230 S.W. 295, 1921 Ky. LEXIS 315 ( Ky. 1921 ).

Provision in KRS 81.110 (now KRS 81A.020 ) that issue of annexation should be tried by jury did not give protestants of annexation the absolute right to have jury decide the question, in light of a finding by the court that protestants had not presented sufficient evidence to take the case to the jury, and peremptory instruction for annexation was not a violation of the protestants’ constitutional rights to jury trial. Masonic Widows & Orphans Home & Infirmary v. Louisville, 309 Ky. 532 , 217 S.W.2d 815, 1948 Ky. LEXIS 1081 ( Ky. 1948 ).

15.— Guilt.

Constitutional rights to trial by jury extends to trial of issue of guilt or innocence where a plea of not guilty has been entered, and does not extend to fixing of penalty. Williams v. Jones, 338 S.W.2d 693, 1960 Ky. LEXIS 405 ( Ky. 1960 ), cert. denied, 365 U.S. 847, 81 S. Ct. 808, 5 L. Ed. 2d 811, 1961 U.S. LEXIS 1540 (U.S. 1961).

16.— Law.

Where plaintiff’s rights depended on decision of legal as opposed to equitable issues, it was error to refuse to transfer case from equity to common-law docket to be tried by jury. Carder v. Weisenburgh, 95 Ky. 135 , 23 S.W. 964, 15 Ky. L. Rptr. 497 , 1893 Ky. LEXIS 135 ( Ky. 1893 ).

Landowner is not entitled to a jury trial of question of whether a proposed drainage district should be established under authorizing statute. Handley v. Graham, 187 Ky. 316 , 219 S.W. 417, 1920 Ky. LEXIS 121 ( Ky. 1920 ).

The 1942 amendment to KRS 422.110 providing that the trial judge should determine the admissibility of a confession rather than the jury is not a violation of this section for it was a return to and not a departure from the ancient mode of trial by jury. Bass v. Commonwealth, 296 Ky. 426 , 177 S.W.2d 386, 1944 Ky. LEXIS 1069 (Ky.), cert. denied, 323 U.S. 745, 65 S. Ct. 64, 89 L. Ed. 596, 1944 U.S. LEXIS 488 (U.S. 1944).

17.— Negligence.

Negligence issue required jury determination under this section. Chesapeake & O. R. Co. v. Davis, 119 Ky. 641 , 60 S.W. 14, 22 Ky. L. Rptr. 1156 , 1900 Ky. LEXIS 115 ( Ky. 1900 ).

18.— Piercing Corporate Veil.

Limited liability company (LLC) was not entitled to a jury trial under Ky. Const. § 7 and CR 39.01(b) on the issue of whether to pierce the corporate veil in order to allow the LLC to collect from the shareholders on a default judgment as whether to pierce the corporate veil under the instrumentality theory involved an equitable remedy. Daniels v. CDB Bell, LLC, 300 S.W.3d 204, 2009 Ky. App. LEXIS 112 (Ky. Ct. App. 2009).

19.Jurors.

The Court of Appeals cannot reverse a conviction in a criminal case because in the court’s order for summoning jurors from another county it was not required that they should be drawn from the jury wheel of that county, but only that they be summoned from the county at large by the sheriff of the county of trial. Howard v. Commonwealth, 118 Ky. 1 , 80 S.W. 211, 81 S.W. 704, 25 Ky. L. Rptr. 2213 , 26 Ky. L. Rptr. 363 , 1904 Ky. LEXIS 3 ( Ky. 1 904 ), aff'd, 200 U.S. 164, 26 S. Ct. 189, 50 L. Ed. 421, 1906 U.S. LEXIS 1464 (U.S. 1906).

A person who is put on his trial in a court presided over by a judge and before a jury of 12 men who agree on a verdict has a trial by jury as guaranteed by this section, and he may not complain because the qualifications of the jurors or the manner of their selection differ from what it was at common law or is changed from time to time to make the system more efficient. Wendling v. Commonwealth, 143 Ky. 587 , 137 S.W. 205, 1911 Ky. LEXIS 474 ( Ky. 1911 ).

The right to trial by a jury de medietate linguae is not guaranteed by this section. Wendling v. Commonwealth, 143 Ky. 587 , 137 S.W. 205, 1911 Ky. LEXIS 474 ( Ky. 1911 ). See Commonwealth of Kentucky v. Wendling, 182 F. 140, 1910 U.S. App. LEXIS 5635 (C.C.D. Ky. 1910 ).

This section is not violated when a jury is impaneled from another county. Deaton v. Commonwealth, 157 Ky. 308 , 163 S.W. 204, 1914 Ky. LEXIS 287 ( Ky. 1914 ).

Objection to verdict in criminal case on ground that one of jurors was a woman, the claim being that the ancient mode of trial by jury did not permit women to serve, could not be passed on by Court of Appeals. McLaughlin v. Commonwealth, 192 Ky. 206 , 232 S.W. 628, 1921 Ky. LEXIS 40 ( Ky. 1921 ).

Statute authorizing six (6) man juries in prosecutions in quarterly and justice’s courts is constitutional under this section and Ky. Const., § 248. Lakes v. Goodloe, 195 Ky. 240 , 242 S.W. 632, 1922 Ky. LEXIS 342 ( Ky. 1922 ). See Cooke v. Commonwealth, 199 Ky. 111 , 250 S.W. 802, 1923 Ky. LEXIS 771 ( Ky. 1923 ).

The fact that one of jurors selected from a special venire to try a homicide case was not a resident of the county did not violate defendant’s constitutional rights. Baxter v. Commonwealth, 292 Ky. 204 , 166 S.W.2d 24, 1942 Ky. LEXIS 45 ( Ky. 1942 ).

The evidence presented by defendant in support of his motion for mistrial was nothing more than speculation that a juror knew defendant. Not only did defendant fail to establish that the juror knew defendant, but he failed to show how if at all the juror knew defendant. There was nothing in the record to indicate there was any juror bias to support defendant’s claim that the court’s ruling was clearly erroneous in denying the motion for mistrial. Key v. Commonwealth, 840 S.W.2d 827, 1992 Ky. App. LEXIS 126 (Ky. Ct. App. 1992).

Striking for cause of three (3) jurors because of their inability to set aside their views about the death penalty did not deprive murder defendant of his right to a fair trial. Mabe v. Commonwealth, 884 S.W.2d 668, 1994 Ky. LEXIS 98 ( Ky. 1994 ).

In a capital murder case, defendant’s due process rights were not violated by the failure of the court to excuse a juror for cause where she indicated her willingness to consider a minimum sentence; the juror indicated that she would have to listen to the evidence in the case and expressed her willingness not to automatically vote for the death penalty and to consider the full range of penalties. Epperson v. Commonwealth, 197 S.W.3d 46, 2006 Ky. LEXIS 49 ( Ky. 2006 ), cert. denied, 549 U.S. 1290, 127 S. Ct. 1840, 167 L. Ed. 2d 337, 2007 U.S. LEXIS 3185 (U.S. 2007).

Trial court did not abuse its discretion by not declaring a mistrial during a trial’s guilt phase where the juror was unaware that he was one of defendant’s former robbery victims until the trial’s sentencing phase, and since neither the juror, the parties, nor the court were aware of the bias, defendant’s right to a fair trial was not impeded. Commonwealth v. Douglas, 553 S.W.3d 795, 2018 Ky. LEXIS 294 ( Ky. 2018 ).

Trial court did not err by failing to remove a juror because, despite defendant’s argument to the contrary, the juror adamantly told the trial court that she did not know defendant and was not biased, and she denied the claim of the mother of defendant’s child that the two of them shared a half-sister. Torrence v. Commonwealth, 603 S.W.3d 214, 2020 Ky. LEXIS 12 (Ky.), cert. denied, 141 S. Ct. 956, 208 L. Ed. 2d 494, 2020 U.S. LEXIS 6071 (U.S. 2020).

20.Juvenile Courts.

The juvenile court law was not unconstitutional as depriving a committed delinquent or dependent child of his liberty without due process of law, because no jury trial was provided for. Marlow v. Commonwealth, 142 Ky. 106 , 133 S.W. 1137, 1911 Ky. LEXIS 135 ( Ky. 1911 ).

21.Minor Offenses.

Minor offenses may be tried by a police judge without a jury, as such offenses were not, either at the time the adoption of the Constitution or at common law, required to be tried by a jury. Mt. Sterling v. Holly, 57 S.W. 491, 22 Ky. L. Rptr. 358 (1900).

Statute empowering police court to try certain offenses without jury, but limiting imprisonment to 50 days and fine to $100, is not unconstitutional. Houk v. Starck, 251 Ky. 276 , 64 S.W.2d 565, 1933 Ky. LEXIS 833 ( Ky. 1933 ).

22.Pleadings.
23.— Guilty.

This section, guaranteeing trial by jury, applies only to the issue of guilt or innocence under a plea of not guilty, and a plea of guilty dispenses with the necessity of the court submitting to the jury either the issue of guilt or innocence or the determination of the amount of punishment to be inflicted. Ward v. Hurst, 300 Ky. 464 , 189 S.W.2d 594, 1945 Ky. LEXIS 567 ( Ky. 1945 ).

Right under this section did not apply where defendant pleaded guilty. Allison v. Gray, 256 F.2d 763, 1958 U.S. App. LEXIS 4409 (6th Cir. Ky. 1958 ).

24.— Not Guilty.

The court has no right to direct a jury to find defendant guilty where his plea is not guilty, though the evidence of his guilt may be convincing and wholly uncontradicted. Bardin v. Commonwealth, 191 Ky. 651 , 231 S.W. 208, 1921 Ky. LEXIS 364 ( Ky. 1921 ).

The constitutional right of trial by jury applies only to the issue of guilt or innocence under a plea of not guilty. Lee v. Buchanan, 264 S.W.2d 661, 1954 Ky. LEXIS 683 ( Ky. 1954 ).

25.Sentencing.

Law providing for fixing of punishment by judge did not violate this section. Wilson v. Commonwealth, 141 Ky. 341 , 132 S.W. 557, 1910 Ky. LEXIS 456 ( Ky. 1910 ).

This section did not apply to determination of punishment, and was not violated by instruction to jury as to mandatory sentence upon defendant’s plea of guilty. Ward v. Hurst, 300 Ky. 464 , 189 S.W.2d 594, 1945 Ky. LEXIS 567 ( Ky. 1945 ).

Where defendant pleaded guilty, fact that penalty was fixed by jury of ten (10) rather than 12 was not violative of this section. Allison v. Gray, 296 S.W.2d 735, 1956 Ky. LEXIS 233 ( Ky. 1956 ), cert. denied, 353 U.S. 914, 77 S. Ct. 673, 1 L. Ed. 2d 668, 1957 U.S. LEXIS 1178 (U.S. 1957), overruled, Short v. Commonwealth, 519 S.W.2d 828, 1975 Ky. LEXIS 182 ( Ky. 1975 ).

Requiring a capital defendant to prove to a trial court by a preponderance of the evidence that he or she is mentally retarded, for purposes of a motion to prohibit execution of the death sentence, does not violate a defendant’s rights under the federal or state constitutions. Wilson v. Commonwealth, 381 S.W.3d 180, 2012 Ky. LEXIS 64 ( Ky. 2012 ).

26.Verdict.

A verdict cannot be successfully attacked upon the ground that the jurors could have believed either of two (2) theories of the case where both interpretations are supported by the evidence and the proof of either beyond a reasonable doubt constitutes the same offense. Wells v. Commonwealth, 561 S.W.2d 85, 1978 Ky. LEXIS 314 ( Ky. 1978 ).

27.— Directed.

The court had no right, in a prosecution for an offense punishable by a fine of $500, in which defendant pleaded a former conviction, to instruct the jury to find the defendant guilty. Lucas v. Commonwealth, 118 Ky. 818 , 82 S.W. 440, 26 Ky. L. Rptr. 740 , 1904 Ky. LEXIS 111 ( Ky. 1904 ).

28.— Judgment Notwithstanding.

Court decision that as matter of law there was no question for jury did not usurp right to jury trial, and thus appellate decision ordering judgment notwithstanding verdict was not violative of this section. Copley v. Craft, 341 S.W.2d 70, 1960 Ky. LEXIS 66 ( Ky. 1960 ).

29.Unanimous Verdict.

Mere reluctance on the part of a juror to impose punishment does not invalidate the verdict if the juror announces his assent to the verdict, but where juror states that verdict was not with his free consent the verdict must be rejected. Cannon v. Commonwealth, 291 Ky. 50 , 163 S.W.2d 15, 1942 Ky. LEXIS 165 ( Ky. 1942 ).

Where one of jurors, on poll of jury, said “It is not my verdict, I did agree to it, but I didn’t want to do it, it was against my will,” the verdict was not unanimous and the court should not have accepted it. Cannon v. Commonwealth, 291 Ky. 50 , 163 S.W.2d 15, 1942 Ky. LEXIS 165 ( Ky. 1942 ).

Where member of jury stated in open court that he was forced to sign the verdict, unanimity of the jury as required by Const., § 7 and rule regarding procedure for polling of jury was violated. Coomer v. Commonwealth, 238 S.W.2d 161, 1951 Ky. LEXIS 809 ( Ky. 1951 ).

Definitions of position of authority and position of special trust are not mutually exclusive, and rather, one defines the other; the jury was not presented with alternate theories of guilt in this first-degree sexual abuse case and defendant’s unanimity argument failed. Boone v. Commonwealth, 2013 Ky. App. LEXIS 152 (Ky. Ct. App. Oct. 18, 2013), review denied, ordered not published, 2014 Ky. LEXIS 407 (Ky. Aug. 13, 2014).

Defendant's right to an unanimous verdict was not violated because the evidence consisted of only one criminal act on which liability could be found for robbery and one criminal act on which liability could be found for burglary as the Commonwealth presented evidence that defendant assisted in the planning and execution of the robbery; the Commonwealth clearly supported alternative theories that defendant acted as either a principle or an accomplice as to both the robbery and burglary charges; and the instructions were not so confusing or misleading as to lead the jury to believe that more than one criminal act was committed and that it could find guilt based on either one. Forte v. Commonwealth, 2016 Ky. App. LEXIS 182 (Ky. Ct. App. Nov. 4, 2016).

Robbery instructions mention of three types of personal property did not create a unanimity error because the jury did not have to unanimously find what specific property was taken from a victim. Brown v. Commonwealth, 553 S.W.3d 826, 2018 Ky. LEXIS 283 ( Ky. 2018 ).

30.— —Effect of Jury Instructions.

Where it was clearly unreasonable from the evidence for the jury to believe that the defendant’s conduct was anything other than intentional, a jury instruction permitting the defendant to be found guilty of murder under alternate theories of either intent or wantonness denied him the right to a unanimous verdict under this section. Hayes v. Commonwealth, 625 S.W.2d 583, 1981 Ky. LEXIS 307 ( Ky. 1981 ).

Jury instruction that defendant could be convicted of murder if he caused victim’s death “intentionally” or “wantonly . . . . . under circumstances manifesting an extreme indifference to human life,” did not deprive defendant of his right to a unanimous verdict as guaranteed by this section, or his right to due process of law since, for although defendant complained that some jurors might believe “intentionally” and some “wantonly,” under either theory, “intentional” or “wanton,” “murder is a capital offense,” KRS 507.020(2); the argument that this form violates the unanimous verdict requirement is only viable in the case where one theory is not supported by the evidence, and where there was evidence from which the jurors could infer both an intentional act and wanton murder, the judge properly instructed the jury in this respect. Ice v. Commonwealth, 667 S.W.2d 671, 1984 Ky. LEXIS 212 (Ky.), cert. denied, 469 U.S. 860, 105 S. Ct. 192, 83 L. Ed. 2d 125, 1984 U.S. LEXIS 3642 (U.S. 1984).

Verdict convicting defendant of drug trafficking was not unanimous in violation of Ky. Const. §§ 2, 7, 11 and RCr 9.82(1), because the trial court erroneously instructed the jury regarding intent to manufacture or dispense drugs, where there was insufficient evidence to establish this. Commonwealth v. Whitmore, 92 S.W.3d 76, 2002 Ky. LEXIS 231 ( Ky. 2002 ).

Where defendant claimed he was denied a unanimous verdict by an instruction regarding drug trafficking that included multiple theories, one of which was not supported by the evidence, the claim was not reviewable because it had not been raised below and there was no palpable error under RCr 10.26, the evidence having been more than sufficient to convict him under one of the theories set out in the instruction: possessing cocaine with the intent to sell it. Clay v. Commonwealth, 2007 Ky. App. LEXIS 14 (Ky. Ct. App. Jan. 12, 2007, sub. op., 2007 Ky. App. Unpub. LEXIS 414 (Ky. Ct. App. Jan. 12, 2007).

In a prosecution for multiple counts of sexual abuse, rape, and sodomy, defendant was deprived of a unanimous verdict under Ky. Const. § 7 and RCr 9.82 because all of the jury instructions on each offense were verbatim. When the evidence is sufficient to support multiple counts of the same offense, the jury instructions must be tailored to the testimony in order to differentiate each count from the others. Bell v. Commonwealth, 245 S.W.3d 738, 2008 Ky. LEXIS 38 (Ky.), overruled in part, Harp v. Commonwealth, 266 S.W.3d 813, 2008 Ky. LEXIS 323 ( Ky. 2008 ).

Defendant’s substantial rights were violated when the trial court gave instructions to the jury in a case where defendant had sex with an underage girl multiple times that did not separate the multiple charges based on the evidence, and, thus, defendant was entitled to a new trial on all charges. Palpable error pursuant to RCr 10.26 occurred because there could not be certainty about which incidents the jury unanimously found defendant guilty on, and jury unanimity was required pursuant to Ky. Const. § 7. Miller v. Commonwealth, 283 S.W.3d 690, 2009 Ky. LEXIS 97 ( Ky. 2009 ).

Trial court was not required to include any identifying evidentiary detail in instructions in which a defendant was charged with only one count of an offense; defendant was not charged with the same offense multiple times, but rather, he was charged with one count of rape, one count of sodomy, and one count of incest, and the trial court did not err in its instruction to the jury regarding unanimity. Applegate v. Commonwealth, 299 S.W.3d 266, 2009 Ky. LEXIS 244 ( Ky. 2009 ).

In a prosecution for trafficking in cocaine in which the Commonwealth’s sole theory of guilt was that the defendant possessed cocaine with the intent to sell it, jury instructions denied the defendant a unanimous verdict where the court instructed the jury that it was to find the defendant guilty if he knowingly possessed cocaine with the intent to traffic in it and also defined trafficking to mean the manufacture, distribution, dispensation, sale, or transfer of a controlled substance; such instructions allowed the jury to convict the defendant for conduct other than the sale of cocaine and also allowed the jury to convict the defendant on different theories of guilt. Burnett v. Commonwealth, 31 S.W.3d 878, 2000 Ky. LEXIS 146 ( Ky. 2000 ), overruled in part, Travis v. Commonwealth, 327 S.W.3d 456, 2010 Ky. LEXIS 296 ( Ky. 2010 ).

Jury instruction for use of a minor under the age of 18 in a sexual performance as to defendant’s niece denied him a unanimous verdict because it failed to differentiate factually between the alleged instances of sexual abuse; the instruction allowed the jury to convict him of one crime based on two separate and distinct criminal acts that violated the same statute. Kingrey v. Commonwealth, 396 S.W.3d 824, 2013 Ky. LEXIS 85 ( Ky. 2013 ).

General jury verdict based on an instruction including two or more separate instances of a criminal offense, whether explicitly stated in the instruction or based on the proof - violates the requirement of a unanimous verdict. Johnson v. Commonwealth, 405 S.W.3d 439, 2013 Ky. LEXIS 92 ( Ky. 2013 ).

In a child abuse case, defendant’s right to a unanimous verdict was violated because the jury instruction did not specify which of the leg fractures the jury should have considered in determining whether to convict defendant, and that lack of specificity presented a scenario whereby some jurors might have believed that she caused the first fracture, while others believed that she caused the second fracture. Johnson v. Commonwealth, 405 S.W.3d 439, 2013 Ky. LEXIS 92 ( Ky. 2013 ).

Due to error in the jury instruction, it was uncertain whether the jury convicted defendant of Class A felony incest for acts occurring before the amendment of the incest statute, after its amendment but before the victim turned twelve, or after the victim turned twelve. Thus, it could not be said that the jury’s verdict was unanimous. Rodriguez v. Commonwealth, 396 S.W.3d 916, 2013 Ky. LEXIS 98 ( Ky. 2013 ).

Defendant’s conviction for class A felony incest was reversed because defendant was denied the right to a unanimous verdict, as (1) guilt phase jury instructions did not require the jury to find the victim’s age at the time of the crime, so defendant could be convicted, under the instructions given, of class A felony incest when defendant could only be convicted of class C felony incest, due to a statutory amendment, or of class B felony incest, if the crime occurred after the victim turned 12. Rodriguez v. Commonwealth, 2013 Ky. LEXIS 390 (Ky. Apr. 25, 2013).

Instruction in appellant’s first-degree assault trial permitted the jury to find that appellant acted intentionally, wantonly, or recklessly, for purposes of KRS 501.020 , and counsel was adamant that he did not believe the jury had to distinguish the specific state of mind under which the jury found appellant acted; thus, even if the instruction was erroneous and prevented appellant from receiving a unanimous verdict, case law precluded further analysis due to counsel’s waiver of the argument. Moran v. Commonwealth, 399 S.W.3d 35, 2013 Ky. App. LEXIS 71 (Ky. Ct. App. 2013).

Pursuant to Ky. R. Crim. P. 10.26, defendant's sexual abuse and sodomy convictions were reversed where a victim's testimony described a generalized, nonspecific and undifferentiated continuing course of conduct of sexual misconduct perpetrated by defendant, the jury instructions lacked any distinguishing descriptions that fairly apprised the jury of which criminal episode it was charged to consider, and the error was jurisprudentially intolerable it violated the Ky. Const. § 7 right to a unanimous verdict. Ruiz v. Commonwealth, 471 S.W.3d 675, 2015 Ky. LEXIS 1620 ( Ky. 2015 ), modified, 2015 Ky. LEXIS 2002 (Ky. Oct. 29, 2015).

Defendant's sodomy conviction based upon the victim's oral contact with his penis was reversed where the jury instructions did not provide any specifics about the events surrounding the charged conduct. Sheets v. Commonwealth, 495 S.W.3d 654, 2016 Ky. LEXIS 319 ( Ky. 2016 ).

Jury instructions did not violate appellant's right to a unanimous verdict where the instructions identified singularly distinctive circumstances associated with each of the individual events underlying each count. Elam v. Commonwealth, 500 S.W.3d 818, 2016 Ky. LEXIS 512 ( Ky. 2016 ).

Jury instructions given had not distinguished between appellant's act of oral sex on the victim and the victim's performance of oral sex on appellant based on his demand or inform the jury as to which act was being prosecuted, and thus, it could not be concluded with any certainty that the jurors unanimously agreed upon the same act when reaching their verdict. Gullett v. Commonwealth, 514 S.W.3d 518, 2017 Ky. LEXIS 82 ( Ky. 2017 ).

Jury instructions on the charge of complicity to trafficking in a controlled substance in the first degree did not permit a non-unanimous verdict where the jury was instructed on a single count, and the evidence established only a single act that met the instruction. Little v. Commonwealth, 553 S.W.3d 220, 2018 Ky. LEXIS 282 ( Ky. 2018 ).

31.Waiver of Right.

Where no appreciable time elapsed between sustaining of appellee’s motion for submission of case for judgment and court’s indication of what his judgment would be appellants who had objected to such motion, could not be charged with laches and thus did not waive their right to jury trial. Howard v. Maxwell's Ex'r, 98 S.W. 1013, 30 Ky. L. Rptr. 448 , 1907 Ky. LEXIS 363 (Ky. Ct. App. 1907).

Defendant in misdemeanor case could agree to less than 12 jurors, or waive jury completely. Phipps v. Commonwealth, 205 Ky. 832 , 266 S.W. 651, 1924 Ky. LEXIS 235 ( Ky. 1924 ).

Defendant who failed to demand trial by jury waived his right thereto. Brown v. Hoblitzell, 307 S.W.2d 739, 1956 Ky. LEXIS 2 ( Ky. 1956 ).

Waiver of right to jury trial after plea of guilty in felony case was constitutional. Holt v. Commonwealth, 310 S.W.2d 40, 1957 Ky. LEXIS 153 ( Ky. 1957 ), cert. denied, 357 U.S. 909, 78 S. Ct. 1154, 2 L. Ed. 2d 1158, 1958 U.S. LEXIS 902 (U.S. 1958).

At least in misdemeanor cases, defendant might waive not only 12-man jury, but also unanimity of jurors in reaching their verdict, provided always that such waiver was made understandingly and voluntarily and further provided that the commonwealth agreed and the trial court approved. Ashton v. Commonwealth, 405 S.W.2d 562, 1965 Ky. LEXIS 4 ( Ky. 1965 ), rev'd, 384 U.S. 195, 86 S. Ct. 1407, 16 L. Ed. 2d 469, 1966 U.S. LEXIS 1644 (U.S. 1966).

An accused, upon a plea of not guilty in a felony case, may waive his right to a jury trial or may agree to trial by jury of less than 12 members, if consent of the government counsel and the court’s sanction have been obtained and if accused’s waiver is made intelligently and voluntarily. Short v. Commonwealth, 519 S.W.2d 828, 1975 Ky. LEXIS 182 ( Ky. 1975 ).

In determining whether a waiver of a jury trial was made understandingly, intelligently, competently, and voluntarily, the court must apply the same standards that are required on the acceptance of a guilty plea and the record must reflect facts which would allow an independent determination of the validity of the waiver. Short v. Commonwealth, 519 S.W.2d 828, 1975 Ky. LEXIS 182 ( Ky. 1975 ).

Since one who enters a guilty plea waives his right to trial by jury, it must be shown that such waiver was voluntary and knowing and where the record in a rape prosecution did not show that the court discussed the issue with the defendant to insure that the defendant had a full understanding of the consequences of his guilty plea, there was no valid waiver. Scott v. Commonwealth, 555 S.W.2d 623, 1977 Ky. App. LEXIS 797 (Ky. Ct. App. 1977).

An accused can waive his right to a jury trial. Crone v. Commonwealth, 680 S.W.2d 138, 1984 Ky. App. LEXIS 627 (Ky. Ct. App. 1984).

Where the record did not indicate in any manner that the defendant waived his right to a jury trial, the defendant was entitled to a jury trial pursuant to his request, and it was error for the court to deny the jury trial. Crone v. Commonwealth, 680 S.W.2d 138, 1984 Ky. App. LEXIS 627 (Ky. Ct. App. 1984).

Defendant did not knowingly, voluntarily, and intelligently waive the constitutional right to a twelve-person jury because the record was entirely void of any evidence reflecting upon whether defendant’s waiver of his constitutional right to a twelve-person jury represented a knowing, voluntary, and intelligent choice. Smith v. Commonwealth, 2011 Ky. App. LEXIS 9 (Ky. Ct. App. Jan. 21, 2011), aff'd, 394 S.W.3d 903, 2013 Ky. LEXIS 32 ( Ky. 2013 ).

Twelve-person jury is a fundamental right in the Commonwealth, and any waiver of that right must be knowingly and voluntarily made by the defendant personally, not by his counsel unilaterally as a trial-management decision. While waiver of a twelve-person jury should be established through the trial court’s colloquy with the defendant on the record, failure to do so may be harmless error; where counsel has stipulated to proceeding with less than twelve jurors and the defendant has seemingly acquiesced, on remand the trial court should conduct an evidentiary hearing to determine if the defendant knowingly and voluntarily consented to that decision. Commonwealth v. Simmons, 394 S.W.3d 903, 2013 Ky. LEXIS 32 ( Ky. 2013 ).

Trial court properly denied the nursing homes' motions for relief from judgments because, while arbitration was not only sanctioned, but indeed promoted, by the Kentucky Constitution, the arbitration agreements at issue were never validly formed where the powers vested in the attorneys-in-fact did not encompass the power to enter into an arbitration agreements regarding the claims of their decedents, the authority to waive the decedents' constitutional rights of access to the courts by court or jury and to appeal to a higher court were not explicitly set out in the power-of-attorney document, and the attorneys-in-fact were not authorized to enter into arbitration agreements on behalf of the wrongful death beneficiaries. Extendicare Homes, Inc. v. Whisman, 478 S.W.3d 306, 2015 Ky. LEXIS 1867 ( Ky. 2015 ), rev'd in part, vacated, 137 S. Ct. 1421, 197 L. Ed. 2d 806, 2017 U.S. LEXIS 2948 (U.S. 2017).

32.Harmless Error.

Where policemen were ordered to be able to be reached by telephone, and report on duty within 30 minutes thereafter, 24 hours a day, they were not to be paid for “on call” time since policemen are considered to normally be under a duty to respond, as such, at any time, and although it was error for the court to deny a jury trial on this issue, it would be harmless since a directed verdict for the county would have been proper. Spellman v. Fiscal Court of Jefferson County, 574 S.W.2d 342, 1978 Ky. App. LEXIS 623 (Ky. Ct. App. 1978).

33.Civil Rights Actions.
34.—Right to Jury Trial.

The Kentucky Civil Rights Act creates a jural right as well as a right to redress by administrative procedure. To the extent it creates a jural right both plaintiff and defendant are entitled to a trial by jury. Meyers v. Chapman Printing Co., 840 S.W.2d 814, 1992 Ky. LEXIS 151 ( Ky. 1992 ).

The Kentucky Constitution protects the right to trial by jury. A cause of action pursued under the Kentucky Civil Rights Act is a damage suit like any other. Once a cause of action for damages to be tried in the courts of this Commonwealth has been created by statute, a further provision providing the parties shall have a right to trial by jury is surplusage. To state otherwise would conflict with the Kentucky Constitution. Meyers v. Chapman Printing Co., 840 S.W.2d 814, 1992 Ky. LEXIS 151 ( Ky. 1992 ).

Executrix was not wrongly denied a jury trial when the circuit court granted the attorney and law firm summary judgment where even though she requested punitive damages, the circuit court determined that her negligence claims did not exist under Kentucky law. Martin v. Bell, 2018 Ky. App. LEXIS 229 (Ky. Ct. App. Aug. 24, 2018, sub. op., 2018 Ky. App. Unpub. LEXIS 990 (Ky. Ct. App. Aug. 24, 2018).

35.— Review.

Deciding whether evidence of sexual harassment rises to the level of “severe or pervasive” contains an interpretive component. But this does not mean the reviewing court should substitute its judgment on the issue for that of the jury and the trial judge. Utilizing de novo review, is inappropriate as to ultimate fact questions determined by the jury under the Kentucky Civil Rights Act. Meyers v. Chapman Printing Co., 840 S.W.2d 814, 1992 Ky. LEXIS 151 ( Ky. 1992 ).

36.Denial of Right by Court Rule.

Former clause (c) of the second sentence of CR 39.01 violated the right to a trial by jury as guaranteed in this section in at least two (2) respects: it has been used to deny a jury trial where there are raised issues of law and fact and it has broadened the range of application beyond cases of account by authorizing complexity as a basis for constitutionally removing a case from a jury. Steelvest, Inc. v. Scansteel Serv. Ctr., 908 S.W.2d 104, 1995 Ky. LEXIS 97 ( Ky. 1995 ).

Cited:

Louisville Salvage Corps v. Lyons, 145 Ky. 743 , 141 S.W. 42, 1911 Ky. LEXIS 924 ( Ky. 1911 ); Aetna Life Ins. Co. v. Rustin, 151 Ky. 103 , 151 S.W. 366, 1912 Ky. LEXIS 765 ( Ky. 1912 ); Daniel v. Commonwealth, 154 Ky. 601 , 157 S.W. 1127, 1913 Ky. LEXIS 127 ( Ky. 1913 ); Chesapeake & O. R. Co. v. Dean, 160 Ky. 757 , 170 S.W. 167, 1914 Ky. LEXIS 534 ( Ky. 1914 ); Williams v. Wedding, 165 Ky. 361 , 176 S.W. 1176, 1915 Ky. LEXIS 531 ( Ky. 1915 ); Keeling v. Commonwealth, 178 Ky. 624 , 199 S.W. 789, 1918 Ky. LEXIS 437 ( Ky. 1918 ); McLaughlin v. Barr, 191 Ky. 346 , 230 S.W. 304, 1921 Ky. LEXIS 319 ( Ky. 1921 ); Stamp v. Commonwealth, 195 Ky. 404 , 243 S.W. 27, 1922 Ky. LEXIS 374 ( Ky. 1922 ); Payne v. Lexington, 210 Ky. 437 , 276 S.W. 111, 1925 Ky. LEXIS 698 ( Ky. 1925 ); Burton v. Ott, 226 Ky. 647 , 11 S.W.2d 700, 1928 Ky. LEXIS 148 ( Ky. 1928 ); Hurd v. Commonwealth, 229 Ky. 356 , 17 S.W.2d 201, 1929 Ky. LEXIS 74 2 ( Ky. 1929 ); Bowling v. Commonwealth, 230 Ky. 387 , 19 S.W.2d 1086, 1929 Ky. LEXIS 97 ( Ky. 1929 ); Knoxville Tinware Mfg. Co. v. American Safety Mine Appliance Co., 231 Ky. 282 , 21 S.W.2d 451, 1929 Ky. LEXIS 270 (Ky. 1929); Alexander’s Adm’r v. Kentucky Bankers’ Ass’n, 237 Ky. 232 , 35 S.W.2d 287, 1931 Ky. LEXIS 580 ( Ky. 1931 ); Mills v. Commonwealth, 240 Ky. 359 , 42 S.W.2d 505, 1931 Ky. LEXIS 405 ( Ky. 1931 ); Drury v. Franke, 247 Ky. 758 , 57 S.W.2d 969, 1933 Ky. LEXIS 453 , 88 A.L.R. 917 ( Ky. 1933 ); Heil v. Seidel, 249 Ky. 314 , 60 S.W.2d 626, 1933 Ky. LEXIS 516 ( Ky. 1933 ); Abney v. Commonwealth, 251 Ky. 358 , 65 S.W.2d 71, 1933 Ky. LEXIS 877 (Ky. 1933); Nashville, C. & S. L. Ry. v. Byars, 252 Ky. 507 , 67 S.W.2d 497, 1933 Ky. LEXIS 1024 (Ky. 1933); Blackburn v. Beverly, 272 Ky. 346 , 114 S.W.2d 98, 1938 Ky. LEXIS 115 ( Ky. 1938 ); Bowman v. Commonwealth, 276 Ky. 745 , 125 S.W.2d 213, 1939 Ky. LEXIS 574 ( Ky. 1939 ); Garner v. Shouse, 292 Ky. 798 , 168 S.W.2d 42, 1943 Ky. LEXIS 74 7 ( Ky. 1943 ); Williams v. Pierson, 301 Ky. 302 , 191 S.W.2d 574, 1945 Ky. LEXIS 740 ( Ky. 1945 ); Tabor v. Commonwealth, 303 Ky. 810 , 199 S.W.2d 613, 1947 Ky. LEXIS 561 ( Ky. 1947 ); Morris v. Commonwealth, 306 Ky. 349 , 208 S.W.2d 58, 1948 Ky. LEXIS 565 ( Ky. 1948 ); In re Kenton County Bar Ass’n, 314 Ky. 664 , 236 S.W.2d 906, 1951 Ky. LEXIS 715 ( Ky. 1951 ); Lanning v. Brown, 377 S.W.2d 590, 1964 Ky. LEXIS 497 ( Ky. 1964 ); Idol v. Knuckles, 383 S.W.2d 910, 1964 Ky. LEXIS 64 ( Ky. 1964 ); B. F. M. Bldg., Inc. v. Trice, 464 S.W.2d 617, 1971 Ky. LEXIS 491 ( Ky. 1971 ); Probus v. Sirles, 569 S.W.2d 707, 1978 Ky. App. LEXIS 569 (Ky. Ct. App. 1978); Godsey v. Commonwealth, 661 S.W.2d 2, 1983 Ky. App. LEXIS 399 (Ky. Ct. App. 1983); Horton v. Union Light, Heat & Power Co., 690 S.W.2d 382, 1985 Ky. LEXIS 220 ( Ky. 1985 ); Whitler v. Commonwealth, 810 S.W.2d 505, 1991 Ky. LEXIS 74 ( Ky. 1991 ); Belt v. Commonwealth, 2 S.W.3d 790, 1999 Ky. App. LEXIS 136 (Ky. Ct. App. 1999); Wilfong v. Commonwealth, 175 S.W.3d 84, 2004 Ky. App. LEXIS 353 (Ky. Ct. App. 2004); Harp v. Commonwealth, 266 S.W.3d 813, 2008 Ky. LEXIS 323 ( Ky. 2008 ); Colvard v. Commonwealth, 309 S.W.3d 239, 2010 Ky. LEXIS 62 ( Ky. 2010 ); Kerr v. Commonwealth, — S.W.3d —, 2012 Ky. App. LEXIS 21 (Ky. Ct. App. 2012); Dunlap v. Commonwealth, — S.W.3d —, 2013 Ky. LEXIS 292 ( Ky. 2013 ); Pennington v. Wagner’s Pharm., Inc., — S.W.3d —, 2013 Ky. App. LEXIS 104 (Ky. Ct. App. 2013); Rudd v. Commonwealth, 584 S.W.3d 742, 2019 Ky. LEXIS 412 ( Ky. 2019 ).

Notes to Unpublished Decisions

1.Waiver of Right.

Unpublished decision: Where defendants waived their right to a jury trial, the Commonwealth of Kentucky’s consent was not required for the bench trial on defendants’ charges of driving under the influence, first offense; disregarding a stop sign; and reckless driving. Commonwealth v. Green, 2004 Ky. App. LEXIS 171 (Ky. Ct. App. June 11, 2004), rev'd, 194 S.W.3d 277, 2006 Ky. LEXIS 171 ( Ky. 2006 ).

Opinions of Attorney General.

In a misdemeanor case in district court the defendant may waive his right to be tried by a jury, and he may instead be tried by the judge of the court without the intervention of a jury, provided that (1) the defendant affirmatively in open court waives such right and enters into the waiver understandingly and voluntarily and (2) the Commonwealth agrees and the trial court approves; thus, the waiver would require both the consent of the prosecutor and the judge and, in addition, where the prosecutor objects to the waiver, and thus in effect demands a trial by jury, he is not required to advance any specific reason for his demanding a trial by jury. OAG 80-533 .

Research References and Practice Aids

Cross-References.

Juries, Ky. Const., § 248; KRS, ch. 29A.

Kentucky Law Journal.

Comments, No-Fault Insurance In Kentucky — A Constitutional Analysis, 62 Ky. L.J. 590 (1973-74).

Kentucky Law Survey, Campbell, Criminal Procedure, 64 Ky. L.J. 325 (1975-76).

Comments, Wrongful Refusal to Settle: The Implications of Grundy in Kentucky, 65 Ky. L.J. 220 (1976-77).

Comments, The Employee Defense Act: Wearing Down Sovereign Immunity, 66 Ky. L.J. 150 (1977-78).

Kentucky Law Survey: Cooper, Civil Procedure, 66 Ky. L.J. 531 (1977-1978).

Kentucky Law Survey, Rogers and Sims, Administrative Law, 69 Ky. L.J. 489 (1980-81).

Kentucky Law Survey, Fortune, Criminal Rules, 70 Ky. L.J. 395 (1981-82).

Kentucky Law Survey, Fortune, Criminal Procedure, 71 Ky. L.J. 367 (1982-83).

Leathers and Mooney, Civil Procedure, 74 Ky. L.J. 355 (1985-86).

Leibson, Legal Malpractice Cases: Special Problems in Identifying Issues of Law and Fact and in the Use of Expert Testimony, 75 Ky. L.J. 1 (1986-87).

Notes, Court-Annexed Arbitration: Kentucky’s Viable Alternative to Litigation, 77 Ky. L.J. 881 (1988-89).

Harris, Complex Product Design Litigation: A Need for More Capable Fact-Finders, 79 Ky. L.J. 477 (1990-91).

Northern Kentucky Law Review.

Sower, “Complicated Issues” v. The Right to a Jury Trial: A Procedural Remnant in Kentucky Law Raises Constitutional Problems, 3 N. Ky. L. Rev. 173 (1976).

Bartlett, Civil Procedure, 21 N. Ky. L. Rev. 269 (1994).

Treatises

Petrilli, Kentucky Family Law, Marriage in General, § 1.2.

§ 8. Freedom of speech and of the press.

Printing presses shall be free to every person who undertakes to examine the proceedings of the General Assembly or any branch of government, and no law shall ever be made to restrain the right thereof. Every person may freely and fully speak, write and print on any subject, being responsible for the abuse of that liberty.

NOTES TO DECISIONS

1.In General.

The free speech and free expression protections under Ky. Const. § 8 are consistent with those in U.S. Const. amend. I. Cam I, Inc. v. Louisville/Jefferson County Metro Gov't, 2007 Ky. App. LEXIS 370 (Ky. Ct. App. Oct. 5, 2007), aff'd in part and rev'd in part, 317 S.W.3d 23, 2010 Ky. LEXIS 101 ( Ky. 2010 ).

2.Advertising.

The provisions of KRS 313.140 prohibiting dentists from advertising credit or terms of credit do not violate this section. Reynolds v. Walz, 278 Ky. 309 , 128 S.W.2d 734, 1939 Ky. LEXIS 427 ( Ky. 1939 ).

KRS 320.300 , prohibiting certain types of advertising by optometrists and others, was not violative of this section when applied to ophthalmic dispensers, since such regulation was reasonable and proper exercise of police power in interest of public health. Economy Optical Co. v. Kentucky Board of Optometric Examiners, 310 S.W.2d 783, 1958 Ky. LEXIS 408 ( Ky. 1958 ).

3.Libel.

Common-law crime of criminal libel is analyzed and held not so vague, indefinite or uncertain as to violate the due process or free speech provisions of the Constitution. Ashton v. Commonwealth, 405 S.W.2d 562, 1965 Ky. LEXIS 4 ( Ky. 1965 ), rev'd, 384 U.S. 195, 86 S. Ct. 1407, 16 L. Ed. 2d 469, 1966 U.S. LEXIS 1644 (U.S. 1966).

4.— Discovery Order.

In a libel action brought against a newspaper on grounds that it negligently and with reckless disregard for the truth published false and defamatory statements, trial court’s discovery order which required reporters to furnish copies of their notes in lieu of the original notes while permitting them to delete from such copies the portions that referred solely to matters other than the issues raised by the allegations of the complaint and permitted a further hearing whenever there was doubt as to whether further material should or should not be deleted was proper, even though the newspaper asserted that a privilege against disclosure existed by virtue of freedom of the press as guaranteed by the First Amendment to the United States Constitution, this section, and KRS 421.100 . Lexington Herald-Leader Co. v. Beard, 690 S.W.2d 374, 1984 Ky. LEXIS 281 ( Ky. 1984 ).

5.Newspapers, Source Protection.

Where newspaper reporter refused to honor subpoena to appear before grand jury but made no showing that such appearance would have a chilling effect on his sources of information, his action did not have the protection of either this section or United States Const., Amend. 1. Branzburg v. Meigs, 503 S.W.2d 748, 1971 Ky. LEXIS 50 ( Ky. 1971 ), aff'd, 408 U.S. 665, 92 S. Ct. 2646, 33 L. Ed. 2d 626, 1972 U.S. LEXIS 132 (U.S. 1972).

6.Closure of Trial to Press and Public.

Before ordering closure the trial judge should consider the utility of other reasonable methods available to protect the rights of the accused short of closure, and at the time the motion for closure is made or heard any member of the public or press who is then present and objects must be given an opportunity to be heard on the question and if closure is ordered, specific findings should be made setting out the need for closure. Ashland Publishing Co. v. Asbury, 612 S.W.2d 749, 1980 Ky. App. LEXIS 424 (Ky. Ct. App. 1980).

Trial court did not abuse its discretion by not declaring a mistrial during a trial’s guilt phase where the juror was unaware that he was one of defendant’s former robbery victims until the trial’s sentencing phase, and since neither the juror, the parties, nor the court were aware of the bias, defendant’s right to a fair trial was not impeded. Commonwealth v. Douglas, 553 S.W.3d 795, 2018 Ky. LEXIS 294 ( Ky. 2018 ).

7.— Pretrial Hearing.

Where evidence presented only by one side in murder trial is evidence which jury would hear at trial along with countervailing evidence, an accused’s right to fair trial would not be irreparably damaged by permitting the evidence to be disseminated before trial; thus, trial judge’s order closing all pretrial hearings involving evidentiary matters presented by only one side was too broad. Ashland Publishing Co. v. Asbury, 612 S.W.2d 749, 1980 Ky. App. LEXIS 424 (Ky. Ct. App. 1980).

A pretrial hearing should be closed to the public and press only after a determination is made that there is a substantial probability that the right of the accused to a fair trial or his other constitutional rights will be otherwise irreparably damaged; thus, if the evidence to be introduced at the pretrial hearing is found to be of a kind that would not be admissible at the trial itself, and is not otherwise already known generally to the press and public, and if the trial court reasonably believes that its dissemination to the public will probably irreparably damage the constitutional rights of the accused, then closure should be ordered. Ashland Publishing Co. v. Asbury, 612 S.W.2d 749, 1980 Ky. App. LEXIS 424 (Ky. Ct. App. 1980).

Where trial judge ordered that transcripts of all closed pretrial hearings be made available to the public after the jury was empaneled and sequestered or after trial, the public’s acquisition of information was delayed but not frustrated and, although there was slight damage to the commercial interest of the news media, the competing societal interests of fair trial and public access were met. Ashland Publishing Co. v. Asbury, 612 S.W.2d 749, 1980 Ky. App. LEXIS 424 (Ky. Ct. App. 1980).

While the same policy which calls for openness in criminal trials also calls for openness in pretrial proceedings, sequestration of the jury would not be a remedy to prevent the circulation throughout the community or state of prejudicial information from a pretrial proceeding; thus closing pretrial proceedings to the press and public may be proper in preventing jurors from considering inadmissible prejudicial evidence. Ashland Publishing Co. v. Asbury, 612 S.W.2d 749, 1980 Ky. App. LEXIS 424 (Ky. Ct. App. 1980).

8.— Juvenile Proceedings.

Excluding the press from juvenile proceedings does not violate or do violence to either the federal or the state Constitution; a juvenile’s right to a fair trial, and the public’s interest in fostering opportunities for rehabilitation transcend the right of the press to an instantaneous reporting. F.T.P. v. Courier-Journal, 774 S.W.2d 444, 1989 Ky. LEXIS 48 ( Ky. 1989 ).

7.—Pretrial Hearing.

Circuit court judge was ordered to provide members of the media with a copy of the recording of a criminal arraignment and to refrain from closing any future proceeding that was ordinarily open to the public and from sealing records because he failed to conduct a hearing and closed the arraignment without making specific finding or considering less restrictive measures; without the hearing, there was no justification for closing any hearings and no justification for sealing any records. WPSD TV v. Jameson, 552 S.W.3d 93, 2018 Ky. App. LEXIS 178 (Ky. Ct. App. 2018).

9.Standard of Liability for Defamation.

This section mandates that the Supreme Court adopt a standard of liability for defamation by the news media which adequately protects the private individual from defamation and the standard adopted is that a private plaintiff may recover on a showing of simple negligence, measured by what a reasonably prudent person would or would not have done under the same or similar circumstances; adoption of such standard does not imply any change in the basic common law and statutory rules of libel and slander. McCall v. Courier-Journal & Louisville Times Co., 623 S.W.2d 882, 1981 Ky. LEXIS 289 ( Ky. 1981 ), cert. denied, 456 U.S. 975, 102 S. Ct. 2239, 72 L. Ed. 2d 849, 1982 U.S. LEXIS 2104 (U.S. 1982).

10.Conduct.

The prohibition of the use of a minor in a sexual performance, pursuant to KRS 531.310 , as interpreted through its definitional counterpart in subdivision (3)(b) of KRS 531.300 , is not so vague and overbroad as to impinge on freedom of expression in violation of this section and Const., § 11 or U.S. Const., Amends. 1 and 14 since KRS 531.300 , when read as a whole and coupled with a reference to any standard dictionary, should provide the ordinary person of common sense a clear enough indication of the type of acts prohibited. Payne v. Commonwealth, 623 S.W.2d 867, 1981 Ky. LEXIS 286 ( Ky. 1981 ), cert. denied, 456 U.S. 909, 102 S. Ct. 1758, 72 L. Ed. 2d 167, 1982 U.S. LEXIS 1573 (U.S. 1982).

Local municipality’s ordinance requiring the licensing of adult entertainment businesses, prohibiting nudity, restricting operation hours, requiring a buffer zone, prohibiting touching and other restrictions, was constitutional upon application of an intermediate scrutiny level of review. The ordinance was content neutral and within the municipality’s police power to regulate the secondary effects of such establishments. Cam I, Inc. v. Louisville/Jefferson County Metro Gov't, 2007 Ky. App. LEXIS 370 (Ky. Ct. App. Oct. 5, 2007), aff'd in part and rev'd in part, 317 S.W.3d 23, 2010 Ky. LEXIS 101 ( Ky. 2010 ).

11.Insults.

KRS 161.190 , which provides that no person shall upbraid, insult or abuse a public school teacher in the presence of the school or a pupil thereof, is an unconstitutional violation of the First Amendment, Section 1(4) and Section 8 of the Kentucky Constitution. Commonwealth v. Ashcraft, 691 S.W.2d 229, 1985 Ky. App. LEXIS 554 (Ky. Ct. App. 1985).

Where a motorist called a police officer a vernacularism meaning a little, fat person who has a continuing incestuous relationship with his mother, such words would constitute a violation of a statute written narrowly enough to provide criminal penalty without infringing upon the right of free speech as guaranteed by this section. Musselman v. Commonwealth, 705 S.W.2d 476, 1986 Ky. LEXIS 242 ( Ky. 1986 ).

As written, subdivision (1) (b) of KRS 525.070 is unconstitutionally vague and overbroad; this subdivision has no measuring stick, so that persons could be found guilty of its violation in circumstances that would infringe constitutional guarantees of free speech. Musselman v. Commonwealth, 705 S.W.2d 476, 1986 Ky. LEXIS 242 ( Ky. 1986 ).

12.Code of Judicial Conduct.

Former Canon 7B(1)(c) of SCR 4.300 prohibition against candidates use of newsletter format and letter that intimated what approach the candidate would take in a particular class of cases did not infringe on candidates right of free speech under U.S. Constitution, First Amendment or Ky. Const., § 8 and is not unconstitutional as overboard or vague. Summe v. Judicial Retirement & Removal Comm'n, 947 S.W.2d 42, 1997 Ky. LEXIS 69 ( Ky. 1997 ).

13.Defamation.
14.— Proof of Malice.

Amusement park presented clear and convincing evidence that a television station’s statements following an accident involving a roller coaster at the park were made with malice by its proof to the effect that the reporter’s statement that state inspectors thought that the ride was too dangerous was made after the station received specific knowledge that the claim was false, that the statement that the ride “malfunctioned” was made after it had acknowledged to the park that the charge was wrong and would be corrected, and that the station’s reporter admitted that his report that the park removed a key component of the ride was false. Ky. Kingdom Amusement Co. v. Belo Ky., Inc., 179 S.W.3d 785, 2005 Ky. LEXIS 242 ( Ky. 2005 ).

15.— Standard of Review.

Constitutional standard of review under Ky. Const., § 8 applicable to a defamation case relates only to the findings of actual malice, which should be reviewed de novo, and not to other parts of the verdict. There is no constitutional requirement for a heightened review of the determination by the jury that the statements at issue are false or defamatory, and even in considering all the evidence of actual malice, the reviewing court must accept all subsidiary facts that the jury could have found, including those disputed facts constituting the proof of actual malice. Ky. Kingdom Amusement Co. v. Belo Ky., Inc., 179 S.W.3d 785, 2005 Ky. LEXIS 242 ( Ky. 2005 ), rehearing denied, — S.W.3d —, 2006 Ky. LEXIS 433 (Ky. Jan. 19, 2006).

16.Public Employee Speech.

In a civil rights suit brought under 42 USCS § 1983 and Kentucky law, specifically §§ 1, 2 and 8 of the Kentucky Constitution and KRS 161.164 and 161.750(2), a teacher asserted that she was not rehired because of her union activities. Because hiring school district employees is an act essential to the function of the school district, Kentucky’s governmental immunity protected the school district and the school superintendent, in his official capacity, from liability for the teacher’s state-law claims. Smith v. Floyd County Bd. of Educ., 401 F. Supp. 2d 789, 2005 U.S. Dist. LEXIS 29220 (E.D. Ky. 2005 ).

In a civil rights suit brought under 42 USCS § 1983 and Kentucky law, specifically §§ 1, 2 and 8 of the Kentucky Constitution and KRS 161.164 and 161.750(2), a teacher asserted that she was not rehired because of her union activities. For claims against the school superintendent in his individual capacity for hiring decisions in which he actually participated and or in which his role was unclear, the superintendent was not entitled to summary judgment; it had long been established that discharging or failing to hire or retain an employee because she engaged in protected speech was wrongful, so the superintendent was not entitled to qualified immunity from liability for those claims. Smith v. Floyd County Bd. of Educ., 401 F. Supp. 2d 789, 2005 U.S. Dist. LEXIS 29220 (E.D. Ky. 2005 ).

17.Injunctions.

Ky. Const. § 8 appears to adopt the classic law against prior restraints in a defamation case where a party seeks an injunction against speech or writing. The District Court’s best assessment of the Kentucky courts’ likely resolution of the propriety of injunctive relief against defamation or invasion of privacy is that, if they permitted an injunction at all, they would at least require that the court be persuaded by clear and convincing evidence that the expressive matter to be enjoined is false or illegal. Lassiter v. Lassiter, 456 F. Supp. 2d 876, 2006 U.S. Dist. LEXIS 70286 (E.D. Ky. 2006 ), aff'd, 280 Fed. Appx. 503, 2008 FED App. 0318N, 2008 U.S. App. LEXIS 12064 (6th Cir. Ky. 2008 ).

Father's constitutional right to free speech was not violated by a family court's order that restricted his ability to convey specific, private content through email; there was a final adjudication prior to issuance of the injunction, substantial evidence supported the determination the enjoined speech was unprotected, and the speech was not subject to heightened scrutiny because of its nature. The balance of equities weighed in favor of enjoining the father's conduct because the mother had a right to be left alone, and the father's conduct ran counter to the best interests of his children. Wedding v. Harmon, 492 S.W.3d 150, 2016 Ky. App. LEXIS 52 (Ky. Ct. App. 2016).

Cited:

Evening Post Co. v. Richardson, 113 Ky. 641 , 24 Ky. L. Rptr. 456 , 68 S.W. 665, 1902 Ky. LEXIS 88 ( Ky. 1902 ); Berea College v. Commonwealth, 123 Ky. 209 , 29 Ky. L. Rptr. 284 , 94 S.W. 623, 1906 Ky. LEXIS 139 ( Ky. 1906 ); Seevers v. Somerset, 295 Ky. 595 , 175 S.W.2d 18, 1943 Ky. LEXIS 304 ( Ky. 1943 ); Hibsman v. Madisonville, 295 Ky. 601 , 175 S.W.2d 21, 1943 Ky. LEXIS 305 ( Ky. 1943 ); Ladd v. Commonwealth, 313 Ky. 754 , 233 S.W.2d 517, 1950 Ky. LEXIS 97 5 ( Ky. 1950 ); O’Leary v. Commonwealth, 441 S.W.2d 150, 1969 Ky. LEXIS 304 ( Ky. 1969 ); Lee v. Commonwealth, 565 S.W.2d 634, 1978 Ky. App. LEXIS 511 (Ky. Ct. App. 1978); Capital Area Right to Life v. Downtown Frankfort, 862 S.W.2d 297, 1993 Ky. LEXIS 97 ( Ky. 1993 ); Hill v. Petrotech Res. Corp., 325 S.W.3d 302, 2010 Ky. LEXIS 254 ( Ky. 2010 ).

Research References and Practice Aids

Cross-References.

Free speech, Ky. Const., § 1.

Prohibited publications, KRS 438.230 , 531.010 to 531.080 .

Kentucky Bench & Bar.

Mitchell, Beyond McCall: Toward a Neutral Reportage Privilege in Kentucky, Volume 55, No. 1, Winter 1991 Ky. Bench & B. 32.

Alley, Kentucky Courts Have Blazed a Public Access Trail: An Examination of the Evolution of the Law with Respect to the Public’s Access to Court Proceedings, Vol. 76, No. 4, July 2012, Ky. Bench & Bar 24.

Kentucky Law Journal.

Kentucky Law Survey, Fortune, Criminal Procedure, 71 Ky. L.J. 367 (1982-83).

Northern Kentucky Law Review.

Elder, Kentucky Criminal Libel Law and Public Officials — An Historical Anachronism, 8 N. Ky. L. Rev. 37 (1981).

Elder, Kentucky Defamation and Privacy Law — The Last Decade, 23 N. Ky. L. Rev. 231 (1996).

2012 Law & Informatics Issue: Article: The Emerging Conflict between Newsworthiness and the Right to be Forgotten, 39 N. Ky. L. Rev. 119 (2012).

§ 9. Truth may be given in evidence in prosecution for publishing matters proper for public information — Jury to try law and facts in libel prosecutions.

In prosecutions for the publication of papers investigating the official conduct of officers or men in a public capacity, or where the matter published is proper for public information, the truth thereof may be given in evidence; and in all indictments for libel the jury shall have the right to determine the law and the facts, under the direction of the court, as in other cases.

NOTES TO DECISIONS

1.Criminal Libel.

In prosecution for criminal libel, court could charge jury as to law or even direct verdict without violation of this section. Walston v. Commonwealth, 106 S.W. 224, 32 Ky. L. Rptr. 535 (1907).

Cited:

Garrison v. Louisiana, 379 U.S. 64, 85 S. Ct. 209, 13 L. Ed. 2d 125, 1964 U.S. LEXIS 150 (1964); Evening Post Co. v. Richardson, 113 Ky. 641 , 24 Ky. L. Rptr. 456 , 68 S.W. 665, 1902 Ky. LEXIS 88 ( Ky. 1902 ); Ashton v. Commonwealth, 405 S.W.2d 562, 1965 Ky. LEXIS 4 ( Ky. 1965 ).

Research References and Practice Aids

Cross-References.

Actions for libel, KRS 411.045 , 411.051 , 411.060 .

Criminal action for libel or slander of judge or court, KRS 432.280 .

Libel actions, laws governing, KRS 411.045 , 411.051 to 411.062 .

Kentucky Bench & Bar.

Toner and Call, Three Cases That Shaped Kentucky’s History, 56 Ky. Bench & B. 11.

Northern Kentucky Law Review.

Elder, Kentucky Criminal Libel Law and Public Officials — An Historical Anachronism, 8 N. Ky. L. Rev. 37 (1981).

§ 10. Security from search and seizure — Conditions of issuance of warrant.

The people shall be secure in their persons, houses, papers and possessions, from unreasonable search and seizure; and no warrant shall issue to search any place, or seize any person or thing, without describing them as nearly as may be, nor without probable cause supported by oath or affirmation.

NOTES TO DECISIONS

Analysis

1.In General.

Post mortem examination was not violation of this section. Streipe v. Hubbuch Bros. & Wellendorf, 233 Ky. 194 , 25 S.W.2d 358, 1930 Ky. LEXIS 522 ( Ky. 1930 ).

In close cases, question of legality of search must be determined on facts of particular case. Willoughby v. Commonwealth, 313 Ky. 291 , 231 S.W.2d 79, 1950 Ky. LEXIS 889 ( Ky. 1950 ).

This section protects against unreasonable search and seizure, accompanied by a requirement that no search warrant shall issue except upon probable cause supported by oath or affirmation. Berkshire v. Commonwealth, 471 S.W.2d 695, 1971 Ky. LEXIS 243 ( Ky. 1971 ), overruled, Beemer v. Commonwealth, 665 S.W.2d 912, 1984 Ky. LEXIS 215 ( Ky. 1984 ).

This section of the Kentucky Constitution provides no greater protection than does the federal Fourth Amendment. LaFollette v. Commonwealth, 915 S.W.2d 747, 1996 Ky. LEXIS 11 ( Ky. 1996 ).

Ky. Const., § 10 is broader than the Fourth Amendment with respect to due process protections when the nature of the error goes to the accused’s right to have a probable cause determination made by a neutral and detached judicial officer; an error of this magnitude taints the entire judicial process, and can only be cured by suppression of any evidence obtained pursuant to the tainted search, regardless of the good faith of all the parties. Commonwealth v. Brandenburg, 114 S.W.3d 830, 2003 Ky. LEXIS 210 ( Ky. 2003 ).

2.Purpose.

This section did not mean to substitute the good intentions of the police for judicial authorization except in narrowly confined situations. Benge v. Commonwealth, 321 S.W.2d 247, 1959 Ky. LEXIS 272 ( Ky. 1959 ).

3.Construction.

This section means that person may be searched only by proceeding to do so under search warrant or when such person is under a legal arrest or upon strong indication that illegal object of search is actually upon person suspected. Powell v. Commonwealth, 307 Ky. 545 , 211 S.W.2d 850, 1948 Ky. LEXIS 796 ( Ky. 1948 ).

An examination of this section and the Fourth Amendment to the Constitution of the United States reveals little textual difference. The language used is virtually the same and only the arrangement of the words is different. The absence of material difference between these constitutional provisions was recognized in Benge v. Commonwealth, Ky., 321 S.W.2d 247, 1959 Ky. LEXIS 272 (1959).Holbrook v. Knopf, 847 S.W.2d 52, 1992 Ky. LEXIS 191 ( Ky. 1992 ).

To the extent not previously made clear over 20 years of case law, the Supreme Court of Kentucky expressly overrules the holding in Wagner v. Commonwealth, 581 S.W.2d 352, 356 ( Ky. 1979 ), that within the context of warrantless searches, Ky. Const. § 10 provides greater protection than the Fourth Amendment of the Constitution of the United States.Cobb v. Commonwealth, 509 S.W.3d 705, 2017 Ky. LEXIS 6 ( Ky. 2017 ).

4.Application.

Guilt of defendant was no justification for violation of this section, since this protection applied to guilty and innocent alike. Youman v. Commonwealth, 189 Ky. 152 , 224 S.W. 860, 1920 Ky. LEXIS 394 ( Ky. 1920 ).

This section applies notwithstanding possibility in certain cases of results adverse to ends of justice. Bruner v. Commonwealth, 192 Ky. 386 , 233 S.W. 795, 1921 Ky. LEXIS 75 ( Ky. 1921 ).

This section applied to seizure of one’s person as well as possessions. Lewis v. Commonwealth, 197 Ky. 449 , 247 S.W. 749, 1923 Ky. LEXIS 687 ( Ky. 1923 ).

This section applies only to state actions and not to actions of private citizens. Brock v. Commonwealth, 947 S.W.2d 24, 1997 Ky. LEXIS 18 ( Ky. 1997 ).

Although the search warrant issued regarding a search of defendant’s house in a murder case did not comply with RCr P. 2.02 because a notary public could not administer oaths to complaining parties and did not comply with RCr P. 13.10 because it was issued by a court clerk, the motion to suppress that defendant filed could still be denied. The violations of those rules was inadvertent, defendant was not prejudiced by the violations, the violations were not of constitutional magnitude because the provisions of Ky. Const. § 10 and the Fourth Amendment, U.S. Const. amend. IV were still met, and the trial court’s findings of fact regarding the motion to suppress was supported by RCr P. 9.78 substantial evidence. Copley v. Commonwealth, 361 S.W.3d 902, 2012 Ky. LEXIS 26 ( Ky. 2012 ).

5.Search and Seizure.

All persons’ houses, and any parts thereof, were protected under this section. Fleming v. Commonwealth, 217 Ky. 169 , 289 S.W. 212, 1926 Ky. LEXIS 39 ( Ky. 1926 ).

Search was unlawful when conducted without warrant and without arrest. Ross v. Commonwealth, 275 S.W.2d 424, 1955 Ky. LEXIS 353 ( Ky. 1955 ).

Immunity from unlawful search and seizure, guaranteed by constitution, extends not only to home and person of citizen but also to his premises and possessions including truck or automobile, and invasion of such premises for purpose of search by officers without search warrant is unlawful and evidence obtained thereby is incompetent. Alred v. Commonwealth, 272 S.W.2d 44, 1954 Ky. LEXIS 1080 ( Ky. 1954 ).

Search of one’s person, as distinguished from his residence or premises, without a search warrant, may be justified as incident of arrest, but it is limited to a search contemporaneous with, or subsequent to, an arrest prior to an arrest in order to secure evidence to support a future arrest. Manning v. Commonwealth, 328 S.W.2d 421, 1959 Ky. LEXIS 112 ( Ky. 1959 ), overruled, Commonwealth v. Sebastian, 500 S.W.2d 417, 1973 Ky. LEXIS 217 ( Ky. 1973 ).

Where officers had reasonable grounds to believe the occupants of the automobile had committed a felony or felonies and had the fruits of the crimes in their possession, and the officers were authorized to arrest the suspects at once and to conduct a search, the legal efficacy of the search did not depend on whether the officers actually had accomplished the arrest they were empowered to make. Irvin v. Commonwealth, 446 S.W.2d 570, 1969 Ky. LEXIS 128 ( Ky. 1969 ), cert. denied, 400 U.S. 830, 91 S. Ct. 61, 27 L. Ed. 2d 61, 1970 U.S. LEXIS 976 (U.S. 1970).

Where defendant was informed of his right not to consent and was not threatened in any way, a search of his car, which was consented to by the defendant, did not violate his right against unlawful search and seizure. Bowers v. Commonwealth, 555 S.W.2d 241, 1977 Ky. LEXIS 497 ( Ky. 1977 ).

The question of the propriety of a search is generally determined upon the particular facts of each case. Estep v. Commonwealth, 663 S.W.2d 213, 1983 Ky. LEXIS 316 ( Ky. 1983 ).

6.—Expectation of Privacy.

When one takes lodging in a motel it is with the certain knowledge that substantial numbers of persons unknown to him will be nearby and in a position to invade his privacy unless caution is exercised to prevent it; as such, for the purpose of determining whether there has been an impermissible search and seizure under this section, what would be sufficient vigilance to preserve one’s privacy in a home, apartment or office may be insufficient in a motel room. Commonwealth v. Johnson, 777 S.W.2d 876, 1989 Ky. LEXIS 47 ( Ky. 1989 ), cert. denied, 494 U.S. 1046, 110 S. Ct. 1510, 108 L. Ed. 2d 646, 1990 U.S. LEXIS 1509 (U.S. 1990), cert. denied, 494 U.S. 1085, 110 S. Ct. 1823, 108 L. Ed. 2d 952, 1990 U.S. LEXIS 1976 (U.S. 1990); Johnson v. Kentucky, 494 U.S. 1085, 110 S. Ct. 1823, 108 L. Ed. 2d 952, 1990 U.S. LEXIS 1976 (U.S. 1990).

In those instances when the police have a legitimate reason for their presence on motel premises, one who asserts that his rights have been violated by an unreasonable search accomplished by looking through a motel room window or door must show that he took precautions sufficient to create an objectively reasonable expectation of privacy; otherwise, that which was seen was in plain view. Commonwealth v. Johnson, 777 S.W.2d 876, 1989 Ky. LEXIS 47 ( Ky. 1989 ), cert. denied, 494 U.S. 1046, 110 S. Ct. 1510, 108 L. Ed. 2d 646, 1990 U.S. LEXIS 1509 (U.S. 1990), cert. denied, 494 U.S. 1085, 110 S. Ct. 1823, 108 L. Ed. 2d 952, 1990 U.S. LEXIS 1976 (U.S. 1990); Johnson v. Kentucky, 494 U.S. 1085, 110 S. Ct. 1823, 108 L. Ed. 2d 952, 1990 U.S. LEXIS 1976 (U.S. 1990).

Parole officer had no lawful Fourth Amendment basis to enter the parolee defendant’s residence to conduct a warrantless search without defendant’s consent; even though defendant recently tested positive for drugs and defendant’s use of drugs was a parole violation and the officers smelled marijuana when defendant opened defendant’s front door, these facts did not create reasonable suspicion to enter defendant’s residence without defendant’s consent or a search warrant. Defendant’s parole agreement to allow defendant’s parole officer to enter defendant’s residence, and refusal to consent to entry, was a parole violation which made defendant subject to immediate arrest for a parole violation; but the officers did not arrest defendant until after the search, and so the search was not incidental to a lawful arrest. No search warrant exceptions overrode defendant’s expectation of privacy in defendant’s home. Coleman v. Commonwealth, 100 S.W.3d 745, 2002 Ky. LEXIS 247 ( Ky. 2002 ), overruled in part, Bratcher v. Commonwealth, 424 S.W.3d 411, 2014 Ky. LEXIS 85 ( Ky. 2014 ).

Defendant had no standing to object to a search of the vehicle in which he was a passenger, as he claimed no possessory interest in it, and, while he had a subjective expectation of privacy in marijuana that was seized from the vehicle, that expectation was not objectively reasonable, as he had no legal right to limit access to the vehicle or its contents, and the marijuana was not concealed in luggage. Garcia v. Commonwealth, 185 S.W.3d 658, 2006 Ky. App. LEXIS 62 (Ky. Ct. App. 2006).

KRS 218A.202(6)(a) and (b) are facially constitutional as the examination of the Kentucky All-Schedule Prescription Electronic Reporting System reports does not constitute a search under the Fourth Amendment or Ky. Const. § 10 since citizens had no reasonable expectation of privacy in the limited examination of and access to their prescription records. Williams v. Commonwealth, 213 S.W.3d 671, 2006 Ky. LEXIS 305 ( Ky. 2006 ).

Trial court did not err in denying defendant’s motion to suppress evidence police officers seized from the vehicle he was driving prior to his arrest because defendant lacked standing to challenge the search when the vehicle had been abandoned; defendant could not establish that he retained a reasonable expectation of privacy in the car once he fled the scene. Watkins v. Commonwealth, 2008 Ky. App. LEXIS 213 (Ky. Ct. App. July 11, 2008), aff'd, 307 S.W.3d 628, 2010 Ky. LEXIS 60 ( Ky. 2010 ).

Motion to suppress evidence was improperly denied under Ky. Const. § 10 as defendant possessed a reasonable expectation of privacy in defendant’s “trash toter” that was searched because it was located within the curtilage of defendant’s home where others would not have reasonably felt free to rummage through it, so the search was unconstitutional. Ousley v. Commonwealth, 2011 Ky. App. LEXIS 110 (Ky. Ct. App. June 24, 2011), sub. op., 2011 Ky. App. Unpub. LEXIS 966 (Ky. Ct. App. June 24, 2011), aff'd, 393 S.W.3d 15, 2013 Ky. LEXIS 43 ( Ky. 2013 ).

Where a 14-year-old boy disclosed that he was being sodomized by defendant and told the police that he could take them to the place in the woods outside of defendant’s home where one of the assaults occurred, where the police took the boy to the location and discovered a condom that defendant had discarded and that contained the DNA of both defendant and the boy, and where defendant moved to suppress the condom but the trial court denied the motion and held that the evidence was not found in an area that constituted the curtilage of defendant’s home, the appellate court held that, although there was a fence around at least some of defendant’s property, it was not an enclosure that demarked a specific area of land immediately adjacent to the house that was readily identifiable as part and parcel of the house. The fence marked portions of the edge of defendant’s large property rather than enclosing a small area around the house; it was not a fence that enclosed a backyard or patio. Dunn v. Commonwealth, 360 S.W.3d 751, 2012 Ky. LEXIS 8 ( Ky. 2012 ).

Where a 14-year-old boy disclosed that he was being sodomized by defendant and told the police that he could take them to the place in the woods outside of defendant’s home where one of the assaults occurred, where the police took the boy to the location and discovered a condom that defendant had discarded and that contained the DNA of both defendant and the boy, and where defendant moved to suppress the condom but the trial court denied the motion and held that the evidence was not found in an area that constituted the curtilage of defendant’s home, the appellate court held that the use of the area element of the Dunn test weighed against defendant’s claim that the area was part of the curtilage because the area was a wooded area near a deer blind and a four-wheeler trailer. While defendant testified that he managed the vegetation in the area with the goal of attracting deer, hunting and riding four-wheelers were not intimate activities of the home that would show that the area was part of the curtilage. Dunn v. Commonwealth, 360 S.W.3d 751, 2012 Ky. LEXIS 8 ( Ky. 2012 ).

No constitutional violation arose from the admission, in an arson trial, of a stack of overdue bills found in two open trash cans located approximately two feet beyond a rear entrance to defendant’s business because defendant never expressed a subjective belief that the financial documents were in a private location. Further, defendant enjoyed no objective privacy interest in the contents of the trash. Lukjan v. Commonwealth, 358 S.W.3d 33, 2012 Ky. App. LEXIS 5 (Ky. Ct. App. 2012).

There is no expectation of privacy in a license plate affixed to the exterior of one’s motor vehicle that merits constitutional protection and, as a result, when a police officer checks or runs a motor vehicle’s license plate, randomly or otherwise, there is no search as contemplated by Fourth Amendment jurisprudence. Gentry v. Commonwealth, 2012 Ky. App. LEXIS 209 (Ky. Ct. App. Oct. 12, 2012, sub. op., 2012 Ky. App. Unpub. LEXIS 1040 (Ky. Ct. App. Oct. 12, 2012).

In a rape case, a motion to suppress was properly denied because defendant relinquished any privacy interest he had when he left a Styrofoam cup on a table after a police interview; under both the United States and Kentucky Constitutions, abandoned property was outside of constitutional protection. The taking of the saliva sample from the cup and testing it was not a search or a seizure. Marino v. Commonwealth, 488 S.W.3d 621, 2016 Ky. App. LEXIS 64 (Ky. Ct. App. 2016).

7.—Persons.

An officer has no right to search a person upon a suspicion that he is carrying concealed a deadly weapon in violation of law, as the statute, which furnishes the legislative construction of what are reasonable searches and seizures, does not authorize such search. Hughes v. Commonwealth, 41 S.W. 294, 19 Ky. L. Rptr. 497 (1897).

Search was illegal when made of defendant’s person in absence of lawful arrest. Alred v. Commonwealth, 272 S.W.2d 44, 1954 Ky. LEXIS 1080 ( Ky. 1954 ).

Where defendant arrested for drinking on public highway under former law that prohibited drinking or being under the influence of alcoholic beverage in a public place was wanted for questioning in murder-robbery case which arresting officer had helped investigate two (2) days earlier, and officer observed dark stain on eyelet of defendant’s tennis shoes as he stepped out of van, asked defendant to lift his tennis shoe which defendant did voluntarily, then advised defendant that he was suspect in murder-robbery and read him his Miranda rights, after which defendant voluntarily surrendered his tennis shoes to the officer, there was no unreasonable search and seizure under this section or the Fourth Amendment of the United States Constitution, since the officer had an absolute right to stop the van under the circumstances, the action of officer in inspecting the tennis shoes was not a “search,” the tennis shoes were voluntarily surrendered after defendant was given his Miranda rights and it was irrelevant that defendant was charged with another offense. Baril v. Commonwealth, 612 S.W.2d 739, 1981 Ky. LEXIS 217 ( Ky. 1981 ).

Even though defendant was detained beyond time necessary to effectuate purpose of traffic stop, her detention was justified by detective’s reasonable and articulable suspicion that she was engaged in criminal activity, as detective had information that defendant was local staying at hotel for 15 days paying cash and refusing maid service, she was traveling to another hotel, and methamphetamine paraphernalia was found in vehicle hauling her personal belongings. Length of stop was not unreasonable because canine unit responded within 10 minutes of detective’s call. Commonwealth v. Bucalo, 422 S.W.3d 253, 2013 Ky. LEXIS 633 ( Ky. 2013 ).

Under both the United States Constitution and the Kentucky Constitution, a seizure does not occur if in response to a show of authority, the subject does not yield; in that event, the seizure occurs only when the police physically subdue the subject. Hunter v. Commonwealth, 587 S.W.3d 298, 2019 Ky. LEXIS 434 ( Ky. 2019 ).

8.— —Rights of 3rd Parties.

Strangers to property were not protected under this section. Lakes v. Commonwealth, 200 Ky. 266 , 254 S.W. 908, 1923 Ky. LEXIS 78 ( Ky. 1923 ). See Combs v. Commonwealth, 242 Ky. 793 , 47 S.W.2d 725, 1932 Ky. LEXIS 366 ( Ky. 1932 ).

Owner of premises could direct police to search same, without warrant, and evidence thus found was admissible against trespassing defendants. Carter v. Commonwealth, 234 Ky. 695 , 28 S.W.2d 976, 1930 Ky. LEXIS 246 ( Ky. 1930 ).

Immunity from an illegal search is personal, and protection against same may be asserted only by one whose rights are violated. Powell v. Commonwealth, 282 S.W.2d 340, 1955 Ky. LEXIS 241 ( Ky. 1955 ). See Willoughby v. Commonwealth, 313 Ky. 291 , 231 S.W.2d 79, 1950 Ky. LEXIS 889 ( Ky. 1950 ).

9.— —Minors.

This section applied to search of house lived in by minor defendant and his parents. Elmore v. Commonwealth, 282 Ky. 443 , 138 S.W.2d 956, 1940 Ky. LEXIS 186 ( Ky. 1940 ).

10.— —Detention.

Evidence was properly suppressed under RCr 9.78 because defendant had been detained longer than the time required to write him a citation, there was no evidence that defendant was in a high crime area, drug activity had not been confirmed at the residence where defendant had been, and defendant’s prior record alone was not sufficient for the longer detention. Commonwealth v. Gilbert, 2007 Ky. App. LEXIS 15 (Ky. Ct. App. 2007).

Continued questioning and detention of defendant after defendant was given traffic citation was not unreasonable where the officer checked defendant’s license and registration, and believing that defendant’s address was associated with methamphetamine activity, the officer asked for consent to search defendant’s car, and where defendant advised the officer that defendant had two (2) guns for which defendant did not have a permit in defendant’s gym bag. Simmons v. Commonwealth, 2007 Ky. App. LEXIS 405 (Ky. Ct. App. Oct. 19, 2007).

11.—Houses, Structures.

Hillside dugout was house within this section. Morse v. Commonwealth, 204 Ky. 672 , 265 S.W. 37, 1924 Ky. LEXIS 547 ( Ky. 1924 ). See Stafford v. Commonwealth, 212 Ky. 229 , 278 S.W. 574, 1925 Ky. LEXIS 1110 ( Ky. 1925 ).

Warrant which described house occupied and possessed by certain person was not valid for search of separate part of house occupied exclusively by tenants of such person. Nestor v. Commonwealth, 202 Ky. 748 , 261 S.W. 270, 1924 Ky. LEXIS 810 ( Ky. 1924 ).

Where defendant had key to girl friend’s apartment which he was not to use unless she was at home, and did not maintain any property in the apartment except possibly a bottle of after shave or a coat, he had no reasonable expectation of privacy or sufficient property interest in the apartment and thus lacked standing to challenge a search conducted pursuant to a search warrant wherein the police recovered cocaine and morphine hidden by the defendant. Sussman v. Commonwealth, 610 S.W.2d 608, 1980 Ky. LEXIS 286 ( Ky. 1980 ).

Police officer’s shining of a flashlight into the defendant’s darkened motel room was an illegal search where the defendant did not consent to the search, the defendant was not arrested until after the flashlight search, no crime had been committed in the presence of the police, nor did they have any reasonable belief that the defendant had committed a felony, the officers were not responding to an emergency, the contents of his room were not in “plain view,” and despite the officer’s testimony that he did so for his own protection, there was no evidence that any other person was with the defendant, and no noises emanated from within the room. Johnson v. Commonwealth, 746 S.W.2d 80, 1988 Ky. App. LEXIS 36 (Ky. Ct. App. 1988).

Where the officer conducted an illegal search by shining a flashlight into the defendant’s darkened motel room and then obtained a search warrant, the evidence taken under the search warrant was clearly the fruit of the initial illegal search and seizure, and the first search was patently illegal, and the officer’s affidavit given to the magistrate to support the issuance of the warrant was clearly and materially misleading because he testified that he had seen “white powder and drug paraphernalia,” but omitted any mention that he saw them only because he searched a darkened room by illuminating it with a flashlight. Johnson v. Commonwealth, 746 S.W.2d 80, 1988 Ky. App. LEXIS 36 (Ky. Ct. App. 1988).

Remand was required to determine whether a search warrant sufficiently identified the house that was searched, which was found to be a multiple-occupancy structure; for if the premises were found to contain subunits, the search warrant would be invalid as a search warrant directed against a multiple-occupancy structure will usually be held invalid if it fails to describe the particular subunit to be searched with sufficient definiteness to preclude a search of other units located in the building and occupied by innocent persons, but if the premises were occupied in community-living fashion, the search warrant would have been valid as an exception to this general rule. Commonwealth v. Smith, 898 S.W.2d 496, 1995 Ky. App. LEXIS 96 (Ky. Ct. App. 1995).

Warrantless search of a home was supported by exigent circumstances, as (1) it had been under surveillance on suspicion it housed a methamphetamine lab; (2) police had received information that fugitives were living there; (3) police knew the occupants had purchased ingredients used to manufacture methamphetamine; and (4) police had stopped a woman who said she planned to deliver pseudoephedrine tablets to the home, and they reasonably believed she would tip off the occupants so they could destroy evidence before a warrant could be obtained. Layton v. Commonwealth, 2007 Ky. App. LEXIS 134 (Ky. Ct. App. May 4, 2007), review denied, ordered not published, 2008 Ky. LEXIS 45 (Ky. Jan. 16, 2008).

Defendant had no standing to contest a search of another’s home because defendant did not claim to own or live there at the time of the search and, thus, had no reasonable expectation of privacy in the home. Guinn v. Commonwealth, 2014 Ky. App. LEXIS 53 (Ky. Ct. App. Mar. 28, 2014, sub. op., 2014 Ky. App. Unpub. LEXIS 1051 (Ky. Ct. App. Mar. 28, 2014).

Defendant lacked sufficient standing to challenge the validity of a warrantless search of a house due to his failure to establish a possessory or ownership interest in the property. Based on the lack of evidence indicating that defendant owned or lived on the property at the time of the search, the trial court was correct in denying defendant’s motion to suppress. Mackey v. Commonwealth, 407 S.W.3d 554, 2013 Ky. LEXIS 378 ( Ky. 2013 ).

Kentucky Supreme Court continues to follow a plain reading of the rule in Payton v. New York, 445 U.S. 573 (1980), which allows police to enter a suspect's residence with a valid arrest warrant when they have a reason to believe that the suspect lives in the residence and can currently be found inside; reason to believe requires less proof than probable cause and is established by evaluating the totality of the circumstances and common sense factors. Therefore, a motion to suppress was properly denied in a drug case because officers lawfully entered a residence after an anonymous tip gave the residence where defendant was located, and there were warrants out for his arrest. Barrett v. Commonwealth, 470 S.W.3d 337, 2015 Ky. LEXIS 1859 ( Ky. 2015 ), cert. denied, 577 U.S. 1159, 136 S. Ct. 1208, 194 L. Ed. 2d 212, 2016 U.S. LEXIS 1557 (U.S. 2016).

In a drug case, officers did not exceed the scope of a lawful search during the execution of an arrest warrant when they entered upstairs bedrooms after being told that defendant was located in an upstairs closet, but which closet was not specified; moreover, the search ended when defendant was located in a hallway closet. The search was also proper as a protective sweep where a cursory visual inspection of the upstairs rooms was done to look for defendant or anyone else who might have been hiding. Barrett v. Commonwealth, 470 S.W.3d 337, 2015 Ky. LEXIS 1859 ( Ky. 2015 ), cert. denied, 577 U.S. 1159, 136 S. Ct. 1208, 194 L. Ed. 2d 212, 2016 U.S. LEXIS 1557 (U.S. 2016).

12.— —Premises Covered.

Garden and pond appurtenant to defendant’s house came within the purview of this section that prohibited the unreasonable search and seizure of house and possessions. Childers v. Commonwealth, 198 Ky. 848 , 250 S.W. 106, 1923 Ky. LEXIS 564 ( Ky. 1923 ).

Trial court properly denied defendant’s suppression motion as: (1) there was substantial evidence to support a finding that the camper was under defendant’s control and that there was a fair probability that contraband would be found in it; (2) the camper was simply an outbuilding in the curtilage of defendant’s house; and (3) a search of the camper would not have violated the Fourth Amendment, even if the warrant had not specifically designated the camper, as it belonged to defendant, it was located on his property, it was under his control, and it was the type of structure in which drugs could easily be hidden. Swift v. Commonwealth, 2005 Ky. App. LEXIS 285 (Ky. Ct. App. July 29, 2005), sub. op., 2005 Ky. App. Unpub. LEXIS 923 (Ky. Ct. App. July 29, 2005), aff'd, 237 S.W.3d 193, 2007 Ky. LEXIS 202 ( Ky. 2007 ).

13.— — Premises Not Covered.

Wooded area 500 yards from residence was not within purview of this section that prohibited unreasonable search and seizure of house and possessions. Cotton v. Commonwealth, 200 Ky. 349 , 254 S.W. 1061, 1923 Ky. LEXIS 98 ( Ky. 1923 ).

This section does not require a warrant to search for an unlawful thing in a woodland belonging to defendant, situated somewhat remote from the dwelling. Simmons v. Commonwealth, 210 Ky. 33 , 275 S.W. 369, 1925 Ky. LEXIS 623 ( Ky. 1925 ).

Woodland approximately 30 yards from defendant’s house was near enough to require warrant for search. Mullins v. Commonwealth, 220 Ky. 656 , 295 S.W. 987, 1927 Ky. LEXIS 593 ( Ky. 1927 ).

Piece of land some distance up creek from dwelling house, and not used in connection with dwelling, could be searched without warrant. Fugate v. Commonwealth, 294 Ky. 410 , 171 S.W.2d 1020, 1943 Ky. LEXIS 461 ( Ky. 1943 ), overruled, Hay v. Commonwealth, 432 S.W.2d 641, 1968 Ky. LEXIS 348 ( Ky. 1968 ).

14.— —Curtilage.

The curtilage, defined as piece of ground commonly used in connection with dwelling house, is exempt from search without a search warrant. Fugate v. Commonwealth, 294 Ky. 410 , 171 S.W.2d 1020, 1943 Ky. LEXIS 461 ( Ky. 1943 ), overruled, Hay v. Commonwealth, 432 S.W.2d 641, 1968 Ky. LEXIS 348 ( Ky. 1968 ).

Trash pulls were illegal because the trash cans were in defendant’s curtilage, and the officer never tried to contact defendant; indeed, the officer’s chosen approach to investigating—a covert trash pull—depended entirely on not encountering the residents; he went directly to the trash cans under cover of darkness to search them. His goal was not engaging the homeowner, but to approach the house under cover and to avoid detection, thereby avoiding interacting with defendant at all. Commonwealth v. Ousley, 393 S.W.3d 15, 2013 Ky. LEXIS 43 ( Ky. 2013 ).

Officers' viewing of the marijuana baggies in defendants' apartment prior to the search was illegal where the baggies were only viewable from the back patio of their apartment, that patio enjoyed curtilage protection, and it was not reasonable to enter the back patio enclosure and knock on the sliding glass door. Pace v. Commonwealth, 529 S.W.3d 747, 2017 Ky. LEXIS 389 ( Ky. 2017 ).

15.— —Hotel/Motel Room.

The forced, warrantless entry into the defendant’s motel room constituted a search and seizure. Johnson v. Commonwealth, 746 S.W.2d 80, 1988 Ky. App. LEXIS 36 (Ky. Ct. App. 1988).

The government unquestionably conducted a search of the defendant’s motel room when one of the officers shone a flashlight’s beam into his darkened room; the government conducts a search when it uses enhanced viewing of the interior of a home, because it impairs a legitimate expectation of privacy. Johnson v. Commonwealth, 746 S.W.2d 80, 1988 Ky. App. LEXIS 36 (Ky. Ct. App. 1988).

Where the police made a forced, warrantless entry into the defendant’s motel room, the defendant did not consent to the search by failing to ask them to leave; the government has the burden of justifying a warrantless, forcible entry into a citizen’s motel room, and a lone citizen does not bear the burden of disproving his final acquiescence to the entry of his abode by a group of armed police officers, representative of the weighty authority of the government by the badges they wear. Johnson v. Commonwealth, 746 S.W.2d 80, 1988 Ky. App. LEXIS 36 (Ky. Ct. App. 1988).

Because it was unreasonable for an officer to believe that a crime was in progress, exigent circumstances did not justify the officer’s warrantless entry into defendant’s motel room; since the officer had no justifiable reason to enter the room without a warrant, drugs and paraphernalia in the room, which were the fruits of the illegal entry, should have been suppressed. Southers v. Commonwealth, 210 S.W.3d 173, 2006 Ky. App. LEXIS 350 (Ky. Ct. App. 2006), overruled in part, Brumley v. Commonwealth, 413 S.W.3d 280, 2013 Ky. LEXIS 587 ( Ky. 2013 ).

Trial court did not err in denying defendant's motion to suppress because a warrant was clearly obtained before police officers conducted a search of his hotel room, the constitutional protection against unlawful searches and seizures only applied to public officers and not private individuals, and a hotel employee was performing a work-related search of defendant's room when he discovered the marijuana. Rabe v. Commonwealth, 2015 Ky. App. LEXIS 30 (Ky. Ct. App. Feb. 27, 2015).

16.— — Invasion of Privacy.

There was no trespass where search was made under valid warrant. Ingraham v. Blevins, 236 Ky. 505 , 33 S.W.2d 357, 1930 Ky. LEXIS 783 ( Ky. 1930 ).

Search was illegal when made by trespassing on defendant’s private property. Alred v. Commonwealth, 272 S.W.2d 44, 1954 Ky. LEXIS 1080 ( Ky. 1954 ).

There was no invasion of privacy and thus no illegal search and seizure in the inspection of the exterior of the defendant’s automobile for marks of an accident. Smith v. Commonwealth, 424 S.W.2d 835, 1967 Ky. LEXIS 27 ( Ky. 1967 ).

The actions of a police officer did not constitute an impermissible entry onto property when said police officer, in pursuit of a fleeing suspect and without a warrant, entered a house located in close proximity to the scene of an alleged drug offense, as under the circumstances there existed both probable cause and the necessary exigent circumstances to justify the officer’s actions. United States v. Henry, 878 F.2d 937, 1989 U.S. App. LEXIS 9534 (6th Cir. Ky. 1989 ).

When an agent and a detective came to a residence to conduct a knock and talk, it was impermissible to get a landlord to open the door; moreover, the exigent circumstances of plain smell were created when the agent and the detective improperly permitted the landlord to unlock the door. Hall v. Commonwealth, 438 S.W.3d 387, 2014 Ky. App. LEXIS 6 (Ky. Ct. App. 2014).

17.— —Unlawful Entry onto Premises.

The police were not authorized, in anticipation of executing a search warrant upon a person’s property in another location, to enter his motel room and constantly observe him therein at a time when he is not under arrest; if such an intrusion were permitted, even upon the basis of generalized police safety considerations, the police would be authorized to engage in forced, warrantless searches in a multitude of otherwise prohibited circumstances. Commonwealth v. Johnson, 777 S.W.2d 876, 1989 Ky. LEXIS 47 ( Ky. 1989 ), cert. denied, 494 U.S. 1046, 110 S. Ct. 1510, 108 L. Ed. 2d 646, 1990 U.S. LEXIS 1509 (U.S. 1990), cert. denied, 494 U.S. 1085, 110 S. Ct. 1823, 108 L. Ed. 2d 952, 1990 U.S. LEXIS 1976 (U.S. 1990); Johnson v. Kentucky, 494 U.S. 1085, 110 S. Ct. 1823, 108 L. Ed. 2d 952, 1990 U.S. LEXIS 1976 (U.S. 1990).

Where police officers, having knowledge that defendant was known to be armed, forcibly entered and remained in his motel room while defendant dressed in preparation for accompanying the officers as they searched his car, and where the officers while inside the room, were able to observe drugs and drug paraphernalia, under the circumstances of this case, a mere apprehension for personal safety on the part of the officers was insufficient to permit such an entry by the police and accordingly, was sufficient to create an exception to the warrant requirement as provided for under this section. Commonwealth v. Johnson, 777 S.W.2d 876, 1989 Ky. LEXIS 47 ( Ky. 1989 ), cert. denied, 494 U.S. 1046, 110 S. Ct. 1510, 108 L. Ed. 2d 646, 1990 U.S. LEXIS 1509 (U.S. 1990), cert. denied, 494 U.S. 1085, 110 S. Ct. 1823, 108 L. Ed. 2d 952, 1990 U.S. LEXIS 1976 (U.S. 1990); Johnson v. Kentucky, 494 U.S. 1085, 110 S. Ct. 1823, 108 L. Ed. 2d 952, 1990 U.S. LEXIS 1976 (U.S. 1990).

Defendant's motion to suppress evidence seized from his apartment should have been granted where there was no evidence from which to conclude that defendant was lying to the police officers when they knocked on his door searching for a juvenile, and the odor of marijuana immediately outside was insufficient, on its own, to constitute exigent circumstances for a warrantless search. Lydon v. Commonwealth, 490 S.W.3d 699, 2016 Ky. App. LEXIS 78 (Ky. Ct. App. 2016).

18.— — Entry by Ruse.

Officers who used the ruse of pretending to be delivering a pizza in order to gain entry into defendant’s residence and execute a search warrant did not violate defendant’s constitutional right against searches and seizures, and drugs seized pursuant to the entry and search were admissible at trial. Adcock v. Commonwealth, 967 S.W.2d 6, 1998 Ky. LEXIS 59 ( Ky. 1998 ).

Substantial evidence supported a Circuit Court’s finding that defendant’s U.S. Const. amend. IV and Ky. Const. § 10 rights were not violated because she voluntarily consented to a police officer’s warrantless entry into a motel room, which led to the discovery of drugs and drug paraphernalia evidence that was sitting in plain view in the room. Although the officer told defendant that he was there to investigate a noise complaint and did not disclose that he had also received a report of suspicious drug activity, that ruse was not a heinous fabrication given that defendant immediately conceded that the television had been playing loudly, nor was the ruse so unfair and unconscionable as to be coercive. Rogers v. Commonwealth, 2008 Ky. App. LEXIS 280 (Ky. Ct. App. Sept. 12, 2008), review denied, ordered not published, 2009 Ky. LEXIS 117 (Ky. Feb. 11, 2009).

19.—Possessions.

Game wardens’ search of saddlebags of unlicensed hunter was not violative of this section. Manning v. Roberts, 179 Ky. 550 , 200 S.W. 937, 1918 Ky. LEXIS 248 ( Ky. 1918 ).

Possessions within context of this section, and in keeping with rule of ejusdum generis, was defined as items intimately associated with one’s person, as opposed to all of one’s property. Brent v. Commonwealth, 194 Ky. 504 , 240 S.W. 45, 1922 Ky. LEXIS 196 ( Ky. 1922 ).

When suspect left arrest jurisdiction by going out of state, any possessions he left behind by which he could be identified were legally subject to search and seizure without warrant. Sexson v. Commonwealth, 239 Ky. 177 , 39 S.W.2d 229, 1931 Ky. LEXIS 750 ( Ky. 1931 ).

20.— —Automobiles.

Under this section, an individual’s automobile is afforded the same protection from unreasonable search and seizure as is his house or person. Commonwealth v. Chaplin, 307 Ky. 630 , 211 S.W.2d 841, 1948 Ky. LEXIS 793 ( Ky. 1948 ).

Trial court properly denied defendant’s motion to suppress evidence seized from the vehicle he was driving when he was stopped because he could not demonstrate a violation of his Fourth Amendment rights since he did not have a reasonable and legitimate expectation of privacy with respect to the interior of the vehicle; defendant made no showing the owner/passenger relinquished any possessory control or interest to him, and she had the right to decide whether to admit entry to another person. Bolin v. Commonwealth, 592 S.W.3d 305, 2019 Ky. App. LEXIS 198 (Ky. Ct. App. 2019).

Whether the non-owner driver of a vehicle has a reasonable expectation of privacy with respect to the vehicle’s compartments and interior hinges on whether the owner has relinquished both possession of and control over the vehicle to the non-owner such that the non-owner driver formed a subjective expectation of privacy that society is prepared to accept as reasonable; this is a fact intensive inquiry and one that the defendant bears the burden of proving. Bolin v. Commonwealth, 592 S.W.3d 305, 2019 Ky. App. LEXIS 198 (Ky. Ct. App. 2019).

21. —Consent.

Consent waived rights under this section, even where it was given only in return for certain privileges. Richardson v. Commonwealth, 205 Ky. 434 , 266 S.W. 1, 1924 Ky. LEXIS 136 ( Ky. 1924 ).

Notwithstanding provision of prohibition law for issuance of search warrant to search dwelling used for unlawful sale, officer’s search without warrant of house of defendant who had illegal still was not violative of this section, since defendant consented thereto. French v. Commonwealth, 211 Ky. 288 , 277 S.W. 265, 1925 Ky. LEXIS 868 ( Ky. 1925 ).

A search of premises is not unlawful if the owner does not object, since only compulsory search and seizure is prohibited by this section. Davenport v. Commonwealth, 285 Ky. 628 , 148 S.W.2d 1054, 1941 Ky. LEXIS 444 ( Ky. 1941 ).

Consent may be given for search of house by owner or one in charge at time. Cline v. Commonwealth, 312 Ky. 645 , 229 S.W.2d 435, 1950 Ky. LEXIS 724 ( Ky. 1950 ). See Hightower v. Commonwealth, 286 Ky. 561 , 151 S.W.2d 39, 1941 Ky. LEXIS 282 ( Ky. 1941 ); Morris v. Commonwealth, 306 Ky. 349 , 208 S.W.2d 58, 1948 Ky. LEXIS 565 ( Ky. 1948 ).

Defendant’s response of “come in” to knock on door by police was not consent to search of house without warrant. Adams v. Commonwealth, 313 Ky. 298 , 231 S.W.2d 55, 1950 Ky. LEXIS 879 ( Ky. 1950 ).

No search can be made of a citizen’s house without a warrant unless a citizen waives his constitutional rights by consenting thereto, and this consent may be actual or imputed. Hall v. Commonwealth, 261 S.W.2d 677, 1953 Ky. LEXIS 1051 ( Ky. 1953 ).

When defendant was lawfully arrested and consented to search of his car, such search was lawful. Brewster v. Commonwealth, 278 S.W.2d 63, 1955 Ky. LEXIS 473 ( Ky. 1955 ).

Concomitant with the right of the owner or permissive user of a vehicle to prevent a routine inventory by police is the right to have a representative present during any inventory that is authorized and his right to limit the inventory to only specific portions of the vehicle. Wagner v. Commonwealth, 581 S.W.2d 352, 1979 Ky. LEXIS 262 ( Ky. 1979 ), overruled, Estep v. Commonwealth, 663 S.W.2d 213, 1983 Ky. LEXIS 316 ( Ky. 1983 ), overruled, Cobb v. Commonwealth, 509 S.W.3d 705, 2017 Ky. LEXIS 6 ( Ky. 2017 ).

Where allegedly intoxicated defendant asked if he could get into the back seat of the police cruiser at the scene of the accident, and voluntarily submitted to a preliminary breath test, he was neither under arrest nor in custody and the taking of his breath did not constitute an illegal search. Allen v. Commonwealth, 817 S.W.2d 458, 1991 Ky. App. LEXIS 125 (Ky. Ct. App. 1991).

Trial court properly admitted evidence seized from the defendant’s home after he had given a child protective services investigator and deputies consent to enter his home to conduct a mandatory investigation pursuant to KRS 620.040(1). It was not unreasonable for the deputies to enter the bedroom after the investigator informed the appellant that she was required to look into that room, where the drug manufacturing evidence was in plain view. Hallum v. Commonwealth, 219 S.W.3d 216, 2007 Ky. App. LEXIS 89 (Ky. Ct. App. 2007).

Defendant’s consent to a search of the vehicle was voluntary since the officer’s statements that defendant had little choice after admitting possession of two concealed weapons and that the officer could obtain a search warrant if needed were not baseless or deceptive, and did not vitiate defendant’s consent to search the vehicle, and the fact that the officer asked several times before defendant gave consent did not negate the voluntariness of the consent. Simmons v. Commonwealth, 2007 Ky. App. LEXIS 405 (Ky. Ct. App. Oct. 19, 2007).

Supreme Court of Kentucky holds that under Ky. Const. § 10 consent by the owner for the police to enter his home does not extend to the entire house, even for a protective sweep. Guzman v. Commonwealth, 375 S.W.3d 805, 2012 Ky. LEXIS 84 ( Ky. 2012 ).

22.— — Competency.

Consent of defendant’s incompetent father was not valid. Gilliland v. Commonwealth, 224 Ky. 453 , 6 S.W.2d 467, 1928 Ky. LEXIS 608 ( Ky. 1928 ).

23.— — Coercion.

Waiver of constitutional guarantee will not result from a consent that the premises be searched, where the consent is coerced or given in response to a demand by an officer accompanied by the statement that he possesses a warrant authorizing the search. Callebs v. Commonwealth, 290 Ky. 529 , 161 S.W.2d 932, 1942 Ky. LEXIS 431 ( Ky. 1942 ).

Search was not illegal where no objection was made and no coercion was used such as would have induced occupants not to object. Smith v. Commonwealth, 375 S.W.2d 242, 1963 Ky. LEXIS 184 ( Ky. 1963 ). See Pigg v. Commonwealth, 284 S.W.2d 670, 1955 Ky. LEXIS 35 ( Ky. 1955 ); Johnson v. Commonwealth, 291 S.W.2d 550, 1956 Ky. LEXIS 385 ( Ky. 1956 ).

Since the officer did not threaten, force, or assert custody over defendant’s wife, the fact that he merely stated that he had a warrant for defendant’s arrest did not vitiate the voluntariness of her consent for his searching the residence to verify that defendant was not there. Pate v. Commonwealth, 243 S.W.3d 327, 2007 Ky. LEXIS 232 ( Ky. 2007 ), modified, 2007 Ky. LEXIS 289 (Ky. Nov. 1, 2007).

24.— — Other Parties.

Father of defendant, who was owner of house, could consent to search by police, without warrant, of such house. Banks v. Commonwealth, 190 Ky. 330 , 227 S.W. 455, 1921 Ky. LEXIS 436 ( Ky. 1921 ).

Wife’s consent to search by officers without warrant did not render such search legal as to evidence against defendant husband, since fact that she knew such officers to be law enforcement officials invalidated any voluntary consent by her. Potowick v. Commonwealth, 198 Ky. 843 , 250 S.W. 102, 1923 Ky. LEXIS 563 ( Ky. 1923 ).

Where officer went to defendant’s home with search warrant, but did not read it to defendant’s wife, and she got defendant’s pistol from house and gave it to officer at his request, pistol was not obtained by an unlawful search. Brooks v. Commonwealth, 281 Ky. 415 , 136 S.W.2d 552, 1940 Ky. LEXIS 51 ( Ky. 1940 ).

The search of a house without warrant, with permission of mother of minor accused of crime, made hours after minor’s arrest, was an unlawful search, and evidence found as result of search was inadmissible, since under implied coercion mother could not waive minor’s immunity from search of his dwelling without a warrant. Elmore v. Commonwealth, 282 Ky. 443 , 138 S.W.2d 956, 1940 Ky. LEXIS 186 ( Ky. 1940 ).

Taking of articles by officers for use as evidence from defendant’s home while he was unconscious was not a search without his consent, because of defendant’s subsequent actions in voluntarily delivering article of clothing and voluntarily submitting sample of his blood. Davenport v. Commonwealth, 285 Ky. 628 , 148 S.W.2d 1054, 1941 Ky. LEXIS 444 ( Ky. 1941 ).

Where defendant in murder case lived in father’s house, and father consented to search of the house by police officers, empty cartridge case found in kitchen by officers could properly be introduced in evidence. Morris v. Commonwealth, 306 Ky. 349 , 208 S.W.2d 58, 1948 Ky. LEXIS 565 ( Ky. 1948 ).

A stranger or a kinsman, who does not reside in or have possession and control over the premises to be searched, cannot consent to the search of another’s home. Hall v. Commonwealth, 261 S.W.2d 677, 1953 Ky. LEXIS 1051 ( Ky. 1953 ).

Automobile guest could not object to search without warrant of vehicle controlled by another. Brown v. Commonwealth, 378 S.W.2d 608, 1964 Ky. LEXIS 187 , 14 A.L.R.3d 1330 ( Ky. 1964 ), overruled, Payne v. Commonwealth, 656 S.W.2d 719, 1983 Ky. LEXIS 295 ( Ky. 1983 ), overruled in part, Payne v. Commonwealth, 656 S.W.2d 719, 1983 Ky. LEXIS 295 ( Ky. 1983 ), overruled on other grounds, Payne v. Commonwealth, 656 S.W.2d 719, 1983 Ky. LEXIS 295 (Ky. 1983). See West v. Commonwealth, 273 Ky. 779 , 117 S.W.2d 998, 1938 Ky. LEXIS 722 ( Ky. 1938 ); Anderson v. Commonwealth, 312 Ky. 768 , 229 S.W.2d 756, 1950 Ky. LEXIS 760 ( Ky. 1950 ).

Where the defendant’s sister had possessory rights in the searched premises coextensive with the defendant’s, the sister had the authority to grant permission for the search. Garr v. Commonwealth, 463 S.W.2d 109, 1971 Ky. LEXIS 570 (Ky.), cert. denied, 403 U.S. 910, 91 S. Ct. 2219, 29 L. Ed. 2d 687, 1971 U.S. LEXIS 1782 (U.S. 1971).

Pantyhose matching stocking mask used in two (2) robberies were legally seized under this section and the Fourth Amendment to the United States Constitution in warrantless search of defendant’s apartment where defendant’s cotenant in the apartment, his mother-in-law, gave her permission to police officers to enter and search, since a third party with common authority over the premises could give valid consent. Sanders v. Commonwealth, 609 S.W.2d 690, 1980 Ky. LEXIS 275 ( Ky. 1980 ).

Insofar as Louisville Housing Code requires a landlord to consent to an inspection of premises prior to renting out those premises, the landlord’s rights under the Fourth Amendment to the United States Constitution are not abridged, nor does this requirement of the Housing Code violate this section. However, landlord’s consent to an inspection cannot justify a warrantless inspection of premises after they have become the home of a tenant, and such an inspection could not be made absent consent of the tenant or an emergency. Louisville Bd. of Realtors v. Louisville, 634 S.W.2d 163, 1982 Ky. App. LEXIS 218 (Ky. Ct. App. 1982).

The 19 year old defendant’s mother had authority to give consent to a search of his bedroom and a safe therein, notwithstanding that he was on the premises and that officers bypassed asking him for consent. Colbert v. Commonwealth, 43 S.W.3d 777, 2001 Ky. LEXIS 23 ( Ky. 2001 ), modified, 2001 Ky. LEXIS 88 (Ky. May 24, 2001), cert. denied, 534 U.S. 964, 122 S. Ct. 375, 151 L. Ed. 2d 285, 2001 U.S. LEXIS 9680 (U.S. 2001).

When an officer stopped to determine why a truck was parked alongside the highway at 3:30 a.m., the truck’s owner had full authority to consent to a search of the vehicle, including a search of a suspicious article in the truck’s bed, despite the objection of the person who was driving the truck. Travis v. Commonwealth, 2004 Ky. App. LEXIS 149 (Ky. Ct. App. May 21, 2004).

Defendant’s wife voluntarily consented for Fourth Amendment and Ky. Const. § 10 purposes to the officers’ search of a residence by opening the door and stating “Come on in” after a child abuse investigator explained that there had been a complaint of possible child neglect and drugs; also, defendant did not revoke the wife’s consent, or object to the search of the residence, as defendant stated “Fine,” or “Well, okay” after a deputy responded to defendant’s questioning of the officers’ presence by stating that the wife had consented to the search. Payton v. Commonwealth, 2008 Ky. App. LEXIS 370 (Ky. Ct. App. Dec. 5, 2008, sub. op., 2008 Ky. App. Unpub. LEXIS 1221 (Ky. Ct. App. Dec. 5, 2008).

Suppression of evidence was not warranted as it related to postal employees’ search of a package that was sent from a business because it was reasonable to rely on the consent given by the business. Hall v. Commonwealth, 438 S.W.3d 387, 2014 Ky. App. LEXIS 6 (Ky. Ct. App. 2014).

25.— — Defendant on Parole.

Where defendant, as part of his conditions of parole, signed an agreement wherein he consented to a search of his person or property any time probable cause existed for the parole officers to believe that defendant possessed contraband, actions by parole officers were proper because they entered defendant’s residence to discuss his failure to report, saw bullets on the dresser, and after arresting defendant, search revealed cash and contraband drugs; therefore findings of trial court supporting probable cause were based on substantial evidence. Clay v. Commonwealth, 818 S.W.2d 264, 1991 Ky. LEXIS 158 ( Ky. 1991 ), cert. denied, 503 U.S. 923, 112 S. Ct. 1304, 117 L. Ed. 2d 525, 1992 U.S. LEXIS 1609 (U.S. 1992), overruled in part, Bratcher v. Commonwealth, 424 S.W.3d 411, 2014 Ky. LEXIS 85 ( Ky. 2014 ).

25.5.— —Defendant on Probation.

Trial court properly denied defendant's suppression motion because a warrantless search was constitutional where the detectives had a reasonable suspicion, based on a tip, that defendant was selling heroin at the hospital where his girlfriend had just given birth to their child, the search was done with the knowledge of drug court officers and pursuant to the consent form signed by defendant, the informant had been used in other cases and had shown truthfulness and accuracy, defendant waived his rights to be free from unreasonable searches and seizures by signing the drug court consent to search form, and the search did not have to be conducted by a drug court officer. Curtis v. Commonwealth, 2016 Ky. App. LEXIS 180 (Ky. Ct. App. Oct. 28, 2016).

26.— — Electronic Surveillance.

In a prosecution for the offense of bribing a witness, defendant’s Fourth Amendment rights were not violated by the admission of two (2) tape recorded conversations between the defendant and an informant, where the electronic surveillance was with the informant’s express consent, and where the informant and the police officers who monitored the conversations verified the tapes’ authenticity. Carrier v. Commonwealth, 607 S.W.2d 115, 1980 Ky. App. LEXIS 370 (Ky. Ct. App. 1980).

27.— With Warrant.

Where the defendants were apprehended on private property by the owners and were held until the police arrived and the police then inspected the property and found that it had been broken into and property taken, there was probable cause for the immediate warrantless search of the vehicle in which the defendants were found. Sullivan v. Commonwealth, 481 S.W.2d 49, 1972 Ky. LEXIS 217 ( Ky. 1972 ).

Where two (2) men were observed operating a van, which contained television and stereo sets with price tags attached, in a suspicious manner, and the two (2) men were identified by an associate found to be carrying a concealed weapon, the subsequent search by police officers of the occupants of the van was not unreasonable. Bays v. Commonwealth, 486 S.W.2d 706, 1972 Ky. LEXIS 119 ( Ky. 1972 ).

Assuming that the owners of a theater showing a pornographic film were within the scope of protection of this section, seizure of the film pursuant to a warrant issued on the basis of an affidavit of a police officer who saw the film in the theater did not violate this section. Western Corp. v. Commonwealth, 558 S.W.2d 605, 1977 Ky. LEXIS 540 ( Ky. 1977 ).

Where evidence of a suspect’s culpability was at least strong enough to cause investigating officers in possession of such evidence to come under a duty to present it to a judge, so the court could determine if there was probable cause to support the issuance of a search warrant and an arrest warrant, and where as a result of said evidence, such warrants did issue, and where there was no indication that said officers provided any false information in the affidavits used to secure these warrants, such investigation by said officers, without more, does not give rise to the level of a constitutional violation cognizable under 42 USCS § 1983, even where the execution of said warrants led to the seizure of no new evidence, and where all charges were eventually dropped with regard to the suspect. Yancey v. Carroll County, 876 F.2d 1238, 1989 U.S. App. LEXIS 4731 (6th Cir. Ky. 1989 ).

Officer gained access to the defendant’s premises with a properly executed warrant to search for marijuana and cocaine and thus, the discovery of nude photos occurred in the course of a valid search for drugs. It was undisputed that the officer had a right to inspect the bureau and its contents for drugs as the officer reasonably believed that illegal drugs might be found in any of the drawers to the bureau, and that drugs could have been hidden by objects, such as photographs. In fact, drugs were discovered in the bottom drawer of the same bureau which contained the photographs and the nature of the subject matter of the photographs made it immediately apparent to the officer that some criminal activity had occurred. It was irrelevant that the top photograph did not depict or was not indicative of criminal activity since the investigating officer had a right to search under the photographs for the presence of marijuana or cocaine. The “plain view” doctrine was invoked at the time the officer saw the photograph of mother performing oral sex on her daughter. The remaining photographs were then properly reviewed by the officer and, thereafter, seized. Hazel v. Commonwealth, 833 S.W.2d 831, 1992 Ky. LEXIS 105 ( Ky. 1992 ).

28.—Without Warrant.

Moonshine still was legally seized without warrant where it was found by observation of smoke and was located in open area, notwithstanding it was situated on land of defendant’s father who did not consent, since there was no search of defendant’s property. Bowling v. Commonwealth, 193 Ky. 642 , 237 S.W. 381, 1922 Ky. LEXIS 59 ( Ky. 1922 ).

In prosecution for carrying concealed deadly weapon, evidence that arresting officer could see print of pistol in defendant’s shirt, and that defendant, in response to officer’s question, stated that he had pistol in shirt, was sufficient grounds for officer’s belief that defendant was committing the offense of carrying a concealed weapon, and justified his arrest and search without warrant. Johnson v. Commonwealth, 304 Ky. 490 , 200 S.W.2d 913, 1947 Ky. LEXIS 646 ( Ky. 1947 ).

Where a sheriff and his deputies concealed themselves at night near the defendant’s home and observed a man make several trips from the defendant’s home to his automobile, and the search of this man following his arrest revealed a pint bottle of whiskey, and the officers without a search warrant forced their way into defendant’s home, while he and his family were absent therefrom, and searched it and found a quantity of intoxicating liquor, the search was illegal and the evidence thereby obtained was incompetent. Hall v. Commonwealth, 261 S.W.2d 677, 1953 Ky. LEXIS 1051 ( Ky. 1953 ).

Violation of this section was not justified by belief of police that defendant’s home contained contraband. Hall v. Commonwealth, 261 S.W.2d 677, 1953 Ky. LEXIS 1051 ( Ky. 1953 ).

Where officers acting on reliable information giving them reasonable grounds to believe accused had committed wilful murder entered his unlocked apartment in his absence and upon his return arrested him without a valid warrant, then took him into the bedroom to observe the possible presence of a confederate on the street below, seizing while there a billfold lying in plain view on a table and subsequently identified as the property of the deceased, the seizure, which was without a search warrant, was lawful, since, although there may have been a limited intrusion, it was a reasonable one. Caine v. Commonwealth, 491 S.W.2d 824, 1973 Ky. LEXIS 605 (Ky.), cert. denied, 414 U.S. 876, 94 S. Ct. 80, 38 L. Ed. 2d 121, 1973 U.S. LEXIS 885 (U.S. 1973).

Where police had been informed that heroin was being sold from a certain location and car, had obtained a search warrant for the former only, had searched it, finding nothing, and the defendant and his brother then arrived in the car and were searched at which time heroin was discovered both on them and in the car, there was probable cause for the search but no exigent circumstances justifying the second search without a warrant; therefore the evidence must be suppressed, and, since the conviction could not have been obtained without it, the conviction must be reversed. Shanks v. Commonwealth, 574 S.W.2d 688, 1978 Ky. App. LEXIS 630 (Ky. Ct. App. 1978), overruled, Commonwealth v. Ingram, 2006 Ky. App. Unpub. LEXIS 997 (Ky. Ct. App. May 5, 2006).

All warrantless searches are unreasonable and thus illegal unless they fall within one of the limited exceptions to the general rule that a search must be based upon a valid warrant. Cooper v. Commonwealth, 577 S.W.2d 34, 1979 Ky. App. LEXIS 372 (Ky. Ct. App. 1979), overruled, Mash v. Commonwealth, 769 S.W.2d 42, 1989 Ky. LEXIS 34 ( Ky. 1989 ), overruled, Commonwealth v. Ingram, 2006 Ky. App. Unpub. LEXIS 997 (Ky. Ct. App. May 5, 2006).

There is no general automobile exception to the search and seizure provisions of the federal and state constitutions; however, when probable cause to search an automobile is accompanied by exigent circumstances, a warrantless search may be justified, although neither “probable cause” nor “exigent circumstances” alone will justify a warrantless search. Cooper v. Commonwealth, 577 S.W.2d 34, 1979 Ky. App. LEXIS 372 (Ky. Ct. App. 1979), overruled, Mash v. Commonwealth, 769 S.W.2d 42, 1989 Ky. LEXIS 34 ( Ky. 1989 ), overruled, Commonwealth v. Ingram, 2006 Ky. App. Unpub. LEXIS 997 (Ky. Ct. App. May 5, 2006).

Evidence seized during a warrantless raid of defendant’s medical clinic should have been excluded as violative of the Fourth Amendment and Ky. Const. § 10 where criminal law enforcement investigators had supplied the information upon which the raid was based and had determined which files were to be seized by the medical board, and a short delay in obtaining a warrant would not have frustrated the governmental authorities involved in the case. Williams v. Commonwealth, 213 S.W.3d 671, 2006 Ky. LEXIS 305 ( Ky. 2006 ).

Officers’ warrantless entry into defendant’s apartment was not improper where the officers, while in the apartment building’s hallway, smelled a strong odor of burnt marijuana which they believed came from defendant’s apartment, after knocking and announcing the presence of law enforcement heard movement within the apartment, and with no response to the request to open the door, hearing movement within the apartment, and believing that evidence of a felony was in the apartment, the officers believed that the occupants of the apartment might be destroying evidence. Washington v. Commonwealth, 231 S.W.3d 762, 2007 Ky. App. LEXIS 249 (Ky. Ct. App. 2007).

Officers warrantless entry into defendant's apartment did not violate his Ky. Const. § 10 rights where there was a blood trail in the parking lot, defendant was seriously wounded, the debris along the stairs could have been interpreted as additional signs of a struggle, a light was on inside the apartment, the officers' knocks went unanswered, and as a result, the officers had an objectively reasonable basis to believe that medical assistance might be needed in that apartment, thereby justifying their warrantless entry. Goben v. Commonwealth, 503 S.W.3d 890, 2016 Ky. LEXIS 630 ( Ky. 2016 ).

Emergency aid exception did not justify denying defendants' motion to suppress evidence discovered in their apartment where the officers who entered the apartment were not responding to any violence, and there was no evidence of an altercation or injuries. Pace v. Commonwealth, 529 S.W.3d 747, 2017 Ky. LEXIS 389 ( Ky. 2017 ).

29.— —In Plain View.

When search is not required because items sought are in plain view to casual observer, seizure without warrant is legal. Hancock v. Commonwealth, 262 S.W.2d 670, 1953 Ky. LEXIS 1110 ( Ky. 1953 ). See Wilson v. Commonwealth, 258 S.W.2d 497, 1953 Ky. LEXIS 848 ( Ky. 1953 ).

Stolen coat observed in plain view in store of one suspected of receiving stolen goods was legally seized without warrant and was inadmissible. Patterson v. Commonwealth, 252 Ky. 285 , 66 S.W.2d 513, 1933 Ky. LEXIS 1012 ( Ky. 1933 ), overruled in part, Jett v. Commonwealth, 436 S.W.2d 788, 1969 Ky. LEXIS 489 ( Ky. 1969 ).

Where officers were invited into defendant’s room and saw an open paper sack on a coffee table in which officers discovered, on looking into the sack and reaching hand into it, marijuana, there was an illegal search. Nichols v. Commonwealth, 408 S.W.2d 189, 1966 Ky. LEXIS 82 ( Ky. 1966 ).

What cases under the “plain view” doctrine must have in common in order for the seizure to be lawful is that the officer had prior justification for an intrusion in the course of which he inadvertently discovered in plain view a piece of evidence incriminating the accused in which case the doctrine permits a warrantless seizure, serving to supplement the prior justification, whether that justification was a search warrant for another object, hot pursuit, search incident to a lawful arrest, or some other legitimate reason for the officer being present unconnected with a search directed against the accused, but this extension of the original justification for the officer’s presence is legitimate only where it was immediately apparent that he had evidence before him and the “plain view” doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges. Caine v. Commonwealth, 491 S.W.2d 824, 1973 Ky. LEXIS 605 (Ky.), cert. denied, 414 U.S. 876, 94 S. Ct. 80, 38 L. Ed. 2d 121, 1973 U.S. LEXIS 885 (U.S. 1973).

Where officers acting on reliable information giving them reasonable grounds to believe the defendant had committed wilful murder entered his apartment, which was unlocked, and upon his return arrested him and took him into a bedroom to observe the possible presence of a confederate in the street below and while there observed in plain view on a table a wallet which they seized and which subsequently was identified as belonging to the deceased, the seizure without a search warrant was lawful since the arrest was a legal one without a warrant under KRS 431.005 and the intrusion was limited and reasonable under the circumstances. Caine v. Commonwealth, 491 S.W.2d 824, 1973 Ky. LEXIS 605 (Ky.), cert. denied, 414 U.S. 876, 94 S. Ct. 80, 38 L. Ed. 2d 121, 1973 U.S. LEXIS 885 (U.S. 1973).

Where police officer entered driveway of defendant’s neighbor to make inquiries unconnected with defendant and continued on driveway to defendant’s cabin, reasonably believing neighbor might be there, and where nothing indicated that areas within cabin’s curtilage were not impliedly open to his use, and where officer inadvertently observed motorcycle part in plain view which he had reasonable cause to believe was stolen, his seizure of the part was lawful. Cloar v. Commonwealth, 679 S.W.2d 827, 1984 Ky. App. LEXIS 520 (Ky. Ct. App. 1984).

A determination of whether or not contraband is in plain view should not depend on existing lighting conditions or the time of day; one seeking to maintain his privacy should reasonably expect that persons disposed to look inside a motel room will not hesitate to enhance their visibility by use of a widely available device such as a flashlight. Commonwealth v. Johnson, 777 S.W.2d 876, 1989 Ky. LEXIS 47 ( Ky. 1989 ), cert. denied, 494 U.S. 1046, 110 S. Ct. 1510, 108 L. Ed. 2d 646, 1990 U.S. LEXIS 1509 (U.S. 1990), cert. denied, 494 U.S. 1085, 110 S. Ct. 1823, 108 L. Ed. 2d 952, 1990 U.S. LEXIS 1976 (U.S. 1990); Johnson v. Kentucky, 494 U.S. 1085, 110 S. Ct. 1823, 108 L. Ed. 2d 952, 1990 U.S. LEXIS 1976 (U.S. 1990).

Where the officer, attempting to execute a warrant to arrest defendant, saw items used to manufacture methamphetamine in plain view during a search of defendant’s residence with the consent of defendant’s wife, due to the dangers associated with the manufacture of methamphetamine, a warrantless seizure of these items was justified by exigent circumstances. Pate v. Commonwealth, 243 S.W.3d 327, 2007 Ky. LEXIS 232 ( Ky. 2007 ), modified, 2007 Ky. LEXIS 289 (Ky. Nov. 1, 2007).

Where police saw, though an open door, packages of marijuana in defendant’s home, exigent circumstances justified their warrantless entry into the home to prevent the imminent destruction of evidence. The fact that possession of marijuana in violation of KRS 218A.1422 was a misdemeanor was immaterial, as defendant faced up to one year’s imprisonment if convicted. Posey v. Commonwealth, 185 S.W.3d 170, 2006 Ky. LEXIS 53 (Ky.), cert. denied, 549 U.S. 842, 127 S. Ct. 85, 166 L. Ed. 2d 73, 2006 U.S. LEXIS 6540 (U.S. 2006).

Seizure of a pipe from defendant’s house did not fall within the plain view doctrine, where the officer who came to investigate a report of an abandoned minor had no right to enter the house based on exigent circumstances, as he had requested entry only after seeing the pipe and had not attempted to find out whether the minor was actually alone, and he had no probable cause to believe the pipe was drug paraphernalia until he picked it up and smelled marijuana. Commonwealth v. Hatcher, 199 S.W.3d 124, 2006 Ky. LEXIS 131 ( Ky. 2006 ).

Plain view exception did not justify denying defendants' motion to suppress evidence found in their apartment where the exception only excused the seizure of evidence, not warrantless searches. Pace v. Commonwealth, 529 S.W.3d 747, 2017 Ky. LEXIS 389 ( Ky. 2017 ).

30.— — Administrative Search.

Police detective’s use of information from the Kentucky all schedules prescription electronic reporting system (KASPER) of KRS 218A.202 to investigate defendant’s possible violation of controlled substance laws was not an unreasonable search and seizure under U.S. Const. amend. IV or Ky. Const. § 10; instead, the administrative search exception to the warrant and probable cause requirements applied because the State had a substantial interest in tracing drug distributions, the KASPER system reasonably advanced that interest, and KRS 218A.202 (6) clearly informed practitioners and patients that the data was subject to limited police inspection and properly restrained officers’ discretion. Thacker v. Commonwealth, 80 S.W.3d 451, 2002 Ky. App. LEXIS 1276 (Ky. Ct. App. 2002), overruled in part, Williams v. Commonwealth, 213 S.W.3d 671, 2006 Ky. LEXIS 305 ( Ky. 2006 ).

Circuit court properly denied defendant’s motion to suppress information about her which was obtained by a police officer from records in the Kentucky All-Schedule Prescription Electronic Reporting System (KASPER). Defendant had no expectation that her KASPER prescription records were private or subject to protection from unreasonable search and seizure. Carter v. Commonwealth, 358 S.W.3d 4, 2011 Ky. App. LEXIS 82 (Ky. Ct. App. 2011).

31.— — Reasonable and Articulable Suspicion.

Where police officers received word that an apparent theft of a truck was in progress and that a yellow automobile was involved, and almost immediately after obtaining that information, the police officers spotted a yellow automobile within a very short distance of the site of the alleged theft, it was beyond any reasonable challenge that the officers had probable cause to stop that vehicle. Finney v. Commonwealth, 638 S.W.2d 709, 1982 Ky. App. LEXIS 242 (Ky. Ct. App. 1982), cert. denied, 459 U.S. 1176, 103 S. Ct. 826, 74 L. Ed. 2d 1022, 1983 U.S. LEXIS 3257 (U.S. 1983), overruled, Hibbard v. Commonwealth, 661 S.W.2d 473, 1983 Ky. LEXIS 318 ( Ky. 1983 ).

Based on recent thefts at a gas station and the fact that defendant’s vehicle was in its parking lot three times in two hours, under the totality of the circumstances, a police officer had reasonable and articulable suspicion of criminal activity by the occupants of defendant’s vehicle. Therefore, the trial court properly denied defendant’s motion to suppress evidence of his drunk driving obtained pursuant to a traffic stop. Barger v. Commonwealth, 2006 Ky. App. LEXIS 253 (Ky. Ct. App. Aug. 4, 2006, sub. op., 2006 Ky. App. Unpub. LEXIS 670 (Ky. Ct. App. Aug. 4, 2006), review denied, ordered not published, 2006 Ky. LEXIS 318 (Ky. Dec. 13, 2006).

Where a detective saw defendant walking along the road, he appeared to be hitchhiking; when defendant saw a marked police car, he left the road, approached a residence, knocked while looking at the police, and attempted to flee when they approached. Defendant’s conduct on the porch furnished the officers with an articulable, reasonable suspicion that criminal activity might be afoot; therefore, defendant was not permitted to suppress evidence of a handgun seized during a patdown search. Akins v. Commonwealth, 2009 Ky. App. LEXIS 199 (Ky. Ct. App. Oct. 16, 2009), review denied, ordered not published, 2010 Ky. LEXIS 429 (Ky. Aug. 18, 2010).

Officers encountered a frantic witness who informed them that defendant was involved in a fracas inside a nearby apartment unit, and as they proceeded through the apartment, defendant was in one of the rooms with defendant’s back-side partially turned toward an officer and with both hands down the front portion of his pants, and all the while another individual was yelling from inside the apartment “It’s in his crotch—it’s in his crotch!”; thus, the officers had a reasonable fear that defendant had a weapon to support their search of defendant’s groin area. Commonwealth v. Marshall, 319 S.W.3d 352, 2010 Ky. LEXIS 182 ( Ky. 2010 ), cert. denied, 563 U.S. 909, 131 S. Ct. 1793, 179 L. Ed. 2d 663, 2011 U.S. LEXIS 2462 (U.S. 2011).

Warrantless search of defendant’s home did not violate his constitutional rights under Ky. Const., § 10, because the officer’s knowledge that there were firearms present in defendant’s home, gained when defendant let the officer in, was sufficient to trigger the requisite reasonable suspicion to justify the subsequent search. Riley v. Commonwealth, 120 S.W.3d 622, 2003 Ky. LEXIS 119 ( Ky. 2003 ), overruled in part, Bratcher v. Commonwealth, 424 S.W.3d 411, 2014 Ky. LEXIS 85 ( Ky. 2014 ).

32.— —Protective Sweep.

Trial court erred by denying defendant’s motion to suppress evidence of cocaine and drug paraphernalia seized from her apartment, because the protective sweep was illegal under Ky. Const. § 10 and the contraband discovered as the result of this unlawful invasion was fruit of the poisonous tree. Guzman v. Commonwealth, 375 S.W.3d 805, 2012 Ky. LEXIS 84 ( Ky. 2012 ).

Warrantless search satisfied neither the textual directives of federal or state constitution nor the judicially-created exception, and the Commonwealth failed to meet its burden of demonstrating articulable facts that warranted a reasonably prudent officer to believe the area to be swept harbored an individual posing a danger to those on the arrest scene; the order denying the motion to suppress evidence obtained from the protective sweep was reversed. Brumley v. Commonwealth, 413 S.W.3d 280, 2013 Ky. LEXIS 587 ( Ky. 2013 ).

Suppression of defendant's spontaneous utterance was not required because the initial entry of police officers into the residence where defendant was found to arrest a fugitive was consensual, the scope of the protective sweep in the residence was reasonable under the totality of the circumstances, the initial seizure of defendant during that protective sweep was lawful, and the incriminating statement which defendant uttered upon defendant's arrest was spontaneous and not a product of custodial interrogation. Simpson v. Commonwealth, 474 S.W.3d 544, 2015 Ky. LEXIS 1947 ( Ky. 2015 ).

Denying a motion to suppress evidence based on the protective sweep exception to the warrant requirement was error where the arrests made prior to the search of defendants' apartment occurred outside the front of the building, the arrested individuals were detained safely away from the building, and no other factors placed the officers or others on the scene in danger. Pace v. Commonwealth, 529 S.W.3d 747, 2017 Ky. LEXIS 389 ( Ky. 2017 ).

33.—Evidence.

Admissibility of evidence in state court obtained by search under federal warrant was determined by validity of such warrant under federal law, regardless of whether it was valid or not under state law, except that there must have been probable cause for issuance of such warrant as prescribed by state law. Walters v. Commonwealth, 199 Ky. 182 , 250 S.W. 839, 1923 Ky. LEXIS 790 ( Ky. 1923 ), overruled in part, Henson v. Commonwealth, 347 S.W.2d 546, 1961 Ky. LEXIS 374 ( Ky. 1961 ).

Evidence obtained under federal warrant was admissible if such warrant was issued under valid affidavit, constituting probable cause as determined under state test. Vick v. Commonwealth, 204 Ky. 513 , 264 S.W. 1079, 1924 Ky. LEXIS 497 ( Ky. 1924 ).

Where justice of peace issued warrant, then led posse in search, such justice could not testify as private person to evidence found thereby since he had become member of search posse. Danella v. Commonwealth, 207 Ky. 660 , 269 S.W. 1011, 1925 Ky. LEXIS 161 ( Ky. 1925 ).

Defendant must make timely objection to evidence introduced under an alleged invalid search warrant to avail himself of its incompetence. Means v. Commonwealth, 256 Ky. 30 , 75 S.W.2d 546, 1934 Ky. LEXIS 347 ( Ky. 1934 ).

Defendant waives legal objections to evidence produced by illegal search where he does not object to testimony at the time it is introduced, he later admits the facts testified to, and he does not rely on this ground in his motion for a new trial. Smith v. Commonwealth, 283 Ky. 492 , 141 S.W.2d 881, 1940 Ky. LEXIS 360 ( Ky. 1940 ).

When accused is originally charged with one offense which is still pending and is subsequently charged with another offense of a different nature, no evidence obtained solely as a result of search made after the arrest for the first charge is admissible in the trial of the second charge until the offender is found guilty at first trial. Taylor v. Commonwealth, 386 S.W.2d 480, 1964 Ky. LEXIS 176 ( Ky. 1964 ).

Since Kentucky’s constitution prohibits unlawful search and seizure, person who does not seek to exclude the evidence under such provision at the time of his trial cannot be heard on a motion to vacate the judgment to say that his conviction is in violation of the federal constitution because of the admission of evidence obtained by an unlawful search. Collier v. Commonwealth, 387 S.W.2d 858, 1965 Ky. LEXIS 487 ( Ky. 1965 ).

By attempting to explain the possession of the property seized the defendant did not waive his claim that it was obtained by an illegal search. Hay v. Commonwealth, 432 S.W.2d 641, 1968 Ky. LEXIS 348 ( Ky. 1968 ).

Even if the police stopped defendant without the necessary reasonable suspicion of criminal activity, any taint that might have placed on the evidence later seized from defendant was cured by the fact that after stopping defendant, the police determined that there was an outstanding warrant for his arrest, and defendant was arrested pursuant to that warrant. Morris v. Commonwealth, 2008 Ky. App. LEXIS 262 (Ky. Ct. App. Aug. 15, 2008).

34.— —Admissible.

Evidence taken from person of lawfully arrested defendant was admissible. Turner v. Commonwealth, 191 Ky. 825 , 231 S.W. 519, 1921 Ky. LEXIS 390 ( Ky. 1921 ).

Where search of accused’s home was made with valid search warrant, the introduction of his lawful but incriminating articles of clothing together with a white substance found thereon, as evidence of guilt, was free from error, against contention that only property unlawfully possessed or used by accused could be taken. Boles v. Commonwealth, 304 Ky. 216 , 200 S.W.2d 467, 1947 Ky. LEXIS 620 ( Ky. 1947 ).

Where officers watched suspected liquor dispensary in wet territory and saw defendants drive up to rear door, carry out of store and load sacks containing bottles, the officers ascertained that the store sold nothing but liquor in bottles, and they followed car into dry territory before making arrest, the liquor revealed by a search of the car was admissible as evidence in a prosecution under KRS 242.260 because the search was legally made as a result of a misdemeanor committed in officers’ presence. Commonwealth v. Chaplin, 307 Ky. 630 , 211 S.W.2d 841, 1948 Ky. LEXIS 793 ( Ky. 1948 ).

Where warrant under which woodland was searched described appellant’s property on the east side of highway, and after searching the premises of appellant and finding nothing, the officers then searched the woodland across the highway from appellant’s fruitstand and found whiskey, the whiskey was competent evidence against appellant. Powell v. Commonwealth, 282 S.W.2d 340, 1955 Ky. LEXIS 241 ( Ky. 1955 ).

Search made without warrant by police in civilian clothes who purchased liquor from defendant in dry territory while posing as customers was lawful, and liquor seized pursuant thereto was admissible. Staton v. Commonwealth, 307 S.W.2d 570, 1957 Ky. LEXIS 98 ( Ky. 1957 ).

Since this section applied only to searches and seizures conducted in this state, evidence seized illegally in another state was admissible in trial in this state. Young v. Commonwealth, 313 S.W.2d 580, 1958 Ky. LEXIS 270 ( Ky. 1958 ).

Where police arrested defendant for driving without driver’s license and search of car revealed stolen merchandise, such merchandise was admissible in prosecution for burglary notwithstanding absence of trial and conviction of driving offense since defendant admitted he was guilty of such offense. Cole v. Commonwealth, 381 S.W.2d 318, 1964 Ky. LEXIS 319 ( Ky. 1964 ).

Where defendant was observed committing a violation of law that the police had been asked to anticipate, the trial court made findings, pursuant to RCr 9.78, that a police officer was justified in examining defendant’s identification and checking for warrants to investigate defendant’s presence at the scene; as a result, the trial court properly denied defendant’s motion to suppress. Gray v. Commonwealth, 150 S.W.3d 71, 2004 Ky. App. LEXIS 53 (Ky. Ct. App. 2004).

Trial court erred in dismissing defendant’s indictment for the third-degree assault of a police officer because the unlawfulness of the officer’s entry into the residence where defendant was sleeping was not a defense to the assault on the officer; moreover, the evidence regarding the alleged assault by was not tainted by the officer’s unlawful entry and was admissible at trial. Commonwealth v. Johnson, 245 S.W.3d 821, 2008 Ky. App. LEXIS 26 (Ky. Ct. App. 2008).

Defendant’s motion to suppress a gun was properly denied because the gun was not the fruit of any illegal police conduct since it was found along defendant’s flight path, and therefore, it was admissible; defendant was not seized until he was physically apprehended by the police following the chase. Hunter v. Commonwealth, 587 S.W.3d 298, 2019 Ky. LEXIS 434 ( Ky. 2019 ).

35.— —Inadmissible.

Where defendant’s suitcase was seized and searched without warrant, evidence thus obtained was inadmissible. Ash v. Commonwealth, 193 Ky. 452 , 236 S.W. 1032, 1922 Ky. LEXIS 29 ( Ky. 1922 ).

Where door opened at knock of officer investigating noise, moonshine thus found inside was not admissible. Simmons v. Commonwealth, 203 Ky. 621 , 262 S.W. 972, 1924 Ky. LEXIS 969 ( Ky. 1924 ).

Where commonwealth failed to produce search warrant or proof of its loss and contents, evidence seized thereunder was inadmissible. Danella v. Commonwealth, 207 Ky. 660 , 269 S.W. 1011, 1925 Ky. LEXIS 161 ( Ky. 1925 ).

Testimony of private citizen as to result of search by police under invalid warrant was inadmissible since such person was present at request of police. Copley v. Commonwealth, 219 Ky. 498 , 293 S.W. 981, 1927 Ky. LEXIS 371 ( Ky. 1927 ).

Liquor discovered by police officer, who claimed to have found it when he opened door of defendant’s car to get out of rain, was taken in violation of this section and was inadmissible. Young v. Commonwealth, 230 Ky. 767 , 20 S.W.2d 730, 1929 Ky. LEXIS 164 ( Ky. 1929 ).

Evidence as to possession of intoxicating liquor obtained by officers who searched defendant’s truck, parked on highway, without a search warrant and without any offense having been committed in officers’ presence, was not admissible. Settles v. Commonwealth, 294 Ky. 403 , 171 S.W.2d 999, 1943 Ky. LEXIS 453 ( Ky. 1943 ).

Where arrest for reckless driving was not justified without warrant, search incident thereto was illegal and concealed weapon found thereby was inadmissible. Cowan v. Commonwealth, 308 Ky. 842 , 215 S.W.2d 989, 1948 Ky. LEXIS 1058 ( Ky. 1948 ). See Gholson v. Commonwealth, 308 Ky. 82 , 212 S.W.2d 537, 1948 Ky. LEXIS 848 ( Ky. 1948 ).

Where police officers, having been informed that handbook was in operation but without a search warrant, entered defendant’s premises by force and through opened door observed handbook in operation, and, upon defendant’s admission that he was making book, arrested him and seized handbook equipment; in prosecution for receiving, making, transmitting or negotiating bets on horse races, the equipment was incompetent as evidence. Willoughby v. Commonwealth, 313 Ky. 291 , 231 S.W.2d 79, 1950 Ky. LEXIS 889 ( Ky. 1950 ).

When sheriff served temporary restraining order on defendant and discovered untaxed whiskey, such discovery was made in violation of this section. Walker v. Commonwealth, 279 S.W.2d 816, 1955 Ky. LEXIS 553 ( Ky. 1955 ). See Koehler v. Commonwealth, 222 Ky. 670 , 1 S.W.2d 1072, 1928 Ky. LEXIS 220 ( Ky. 1928 ).

Whiskey found in defendant’s apartment by officers who were uninvited and had only a warrant for arrest of woman in another apartment on the same floor was obtained by illegal search and was inadmissible in trial for illegal possession of alcoholic beverages. Johnson v. Commonwealth, 296 S.W.2d 210, 1956 Ky. LEXIS 186 ( Ky. 1956 ).

Evidence obtained under a federal search warrant is not admissible unless warrant is valid under federal law. Ratliff v. Commonwealth, 302 S.W.2d 853, 1957 Ky. LEXIS 226 ( Ky. 1957 ).

Evidence was inadmissible where found by search of home upon arrest of wife without search warrant and without evidence of wife’s consent. Benge v. Commonwealth, 321 S.W.2d 247, 1959 Ky. LEXIS 272 ( Ky. 1959 ).

Stolen goods, found in car of defendant and codefendant in search without warrant and without defendant’s consent, were inadmissible in prosecution of defendant as accomplice. Senibaldi v. Commonwealth, 338 S.W.2d 915, 1960 Ky. LEXIS 425 ( Ky. 1960 ).

Evidence found in search of defendant’s car without arrest and without search warrant was inadmissible. Tabor v. Commonwealth, 380 S.W.2d 245, 1964 Ky. LEXIS 296 ( Ky. 1964 ).

In prosecution for homicide, evidence as to the finding of a knife in the course of an illegal search held admitted erroneously notwithstanding the court excluded introduction of the knife itself. Trevathan v. Commonwealth, 384 S.W.2d 500, 1964 Ky. LEXIS 103 ( Ky. 1964 ).

Where after burglary and larceny of goods, officers followed tracks of car leaving scene of the crime and after overtaking the car stopped it and observed within the car stolen goods, the goods were inadmissible in evidence. Taylor v. Commonwealth, 394 S.W.2d 895, 1965 Ky. LEXIS 214 ( Ky. 1965 ).

Where defendant was arrested and charged with reckless driving and upon search of his car alcoholic beverages were found in dry territory and thereafter a conviction on the possession of alcoholic beverages charge was had while the reckless driving charge was pending on appeal, evidence as to the search was inadmissible because the accused had not been found guilty on the reckless driving charge. Stiltz v. Commonwealth, 390 S.W.2d 642, 1965 Ky. LEXIS 356 ( Ky. 1965 ).

Where police had been informed of suspicious activities of defendants, had time to discover their identity and check with the police in another city, thereby discovering their connection with narcotics there, and kept the defendants under surveillance for a number of hours before stopping them on a minor traffic charge as a pretext for searching their car, there was ample time to secure a search warrant, and the search lacked both probable cause and exigency of circumstance making the evidence inadmissible. Gallman v. Commonwealth, 578 S.W.2d 47, 1979 Ky. LEXIS 226 ( Ky. 1979 ).

Defendant’s arrest violated her constitutional rights; the evidence against her that was subsequently discovered should have been suppressed where the evidence showed the owner of the vehicle, in which defendant was riding, was seated in the front seat and another individual was driving when police stopped the vehicle for speeding and discovered marijuana; since defendant was neither the owner nor the person who had dominion or control of the vehicle but only a back seat passenger and since, while the arrests were being made, the driver admitted to the detective that he had been smoking marijuana the detective had probable cause to arrest the driver, but not defendant. Paul v. Commonwealth, 765 S.W.2d 24, 1988 Ky. App. LEXIS 144 (Ky. Ct. App. 1988).

Defendant was entitled to the suppression of evidence seized by the police officers where the only facts articulated by the officers as existing prior to the seizure were that defendant was in a public area known for criminal activity, late at night, standing near a pay phone that had sometimes been used in drug transactions, and defendant walked quickly to a van parked a few steps away after seeing the officers. Strange v. Commonwealth, 269 S.W.3d 847, 2008 Ky. LEXIS 284 ( Ky. 2008 ).

Trial court properly suppressed evidence resulting from the officers’ warrantless search and seizure of defendant because the Commonwealth failed to show either officer had an articulable reasonable suspicion defendant had committed a crime when an officer directed him to stop. The alleged violation of a city ordinance was neither a misdemeanor nor a felony and thus, defendant did not commit a misdemeanor under Ky. Rev. Stat. Ann. § 520.100(1)(a) and, as a result, the officers were without authority to arrest him under Ky. Rev. Stat. Ann. § 431.005(1)(d). Commonwealth v. Wilson, 625 S.W.3d 252, 2021 Ky. App. LEXIS 65 (Ky. Ct. App. 2021).

36.— —In Plain View.

Where in a murder investigation officers entered a suspect’s apartment without forcible entry in his absence, arresting him on his return there, and immediately thereafter seized from his bedroom a wallet in plain view, which subsequently was identified as belonging to the deceased, the search and seizure were not in violation of defendant’s rights, although the officers had not secured a search warrant, and regardless of the possible invalidity of John Doe arrest warrants, which had been issued for the defendants, since the officers, acting on reliable information developed in the course of the investigation, had reasonable grounds to believe the defendant had committed a felony and the arrest was consequently lawful under KRS 431.005 and the limited entry into defendant’s premises was reasonable. Caine v. Commonwealth, 491 S.W.2d 824, 1973 Ky. LEXIS 605 (Ky.), cert. denied, 414 U.S. 876, 94 S. Ct. 80, 38 L. Ed. 2d 121, 1973 U.S. LEXIS 885 (U.S. 1973).

Regardless of the plain view doctrine, it was inevitable that officer would have obtained sufficient evidence to initiate charges for sexual offenses since the police had information from a prior 1985 investigation that defendant was sexually abusing his stepdaughter. This information came from the victim, a source independent of the 1987 search and seizure in which the nude photographs were found during the course of a search for drugs. Hazel v. Commonwealth, 833 S.W.2d 831, 1992 Ky. LEXIS 105 ( Ky. 1992 ).

Several elements must exist for the plain view exception to be allowed: (1) the law enforcement officer must not have violated the Fourteenth Amendment in arriving at the place where the evidence could be plainly viewed; (2) not only must the officer be lawfully located in a place from which the object can be plainly seen, but he or she must have a lawful right of access to the object itself; and (3) the object’s incriminating character must also be immediately apparent. A pipe should have been suppressed and the trial court improperly found the pipe was subject to the plain view exception where an officer entered a house immediately upon seeing a pipe on a table, although he had no reasonable suspicion that the pipe was criminal in nature, and where the officer could only tell the pipe was criminal in nature after conducting a “second” search upon the pipe by sniffing it for drug residue. Hatcher v. Commonwealth, 2004 Ky. App. LEXIS 49 (Ky. Ct. App. Feb. 27, 2004), aff'd, 199 S.W.3d 124, 2006 Ky. LEXIS 131 ( Ky. 2006 ).

Trial court properly admitted evidence seized from the defendant’s kitchen since the deputy was lawfully in the kitchen to obtain a drink of water for a child during a mandatory child protective services investigation and the evidence was in plain view. Hallum v. Commonwealth, 219 S.W.3d 216, 2007 Ky. App. LEXIS 89 (Ky. Ct. App. 2007).

37.— —Exclusionary Rule.

In prosecution for first-degree murder since there was no evidence that tapes of telephone conversation between witnesses were obtained in violation of a constitutional right, illegally obtained in violation of eavesdropping statute, the exclusionary rule cannot be used to prevent their introduction. Brock v. Commonwealth, 947 S.W.2d 24, 1997 Ky. LEXIS 18 ( Ky. 1997 ).

A statement that defendant made to two agents did not need to be suppressed as fruit of the poisonous tree where the statements were made voluntarily and without any intimidation or coercion and defendant was not seized or detained at the time he was questioned. Williams v. Commonwealth, 213 S.W.3d 671, 2006 Ky. LEXIS 305 ( Ky. 2006 ).

Trial court’s suppression of surveillance videotapes but not of evidence obtained when trash pulls yielded the basis for a search warrant for defendant’s home did not violate defendant’s rights under the Fourth Amendment or Ky. Const. § 10. The tapes were suppressed because the Commonwealth failed to timely provide them to defense, not because they were unconstitutionally obtained, and in any event, the warrant was based on the trash pulls, which defendant conceded were proper. Laterza v. Commonwealth, 244 S.W.3d 754, 2008 Ky. App. LEXIS 10 (Ky. Ct. App. 2008).

The automatic companion rule is a limited and narrow exception to the exclusionary rule designed to apply only in situations in which the driver of a vehicle has been lawfully arrested and the passengers of the vehicle have been lawfully expelled in preparation for a lawful search of the vehicle; the automatic companion rule allows an officer to conduct a brief pat-down for weapons (not a full-blown search) of the vehicle’s passengers, regardless of whether those passengers’ actions or appearance evidenced any independent indicia of dangerousness or suspicion. Owens v. Commonwealth, 244 S.W.3d 83, 2008 Ky. LEXIS 15 ( Ky. 2008 ), vacated, 556 U.S. 1218, 129 S. Ct. 2155, 173 L. Ed. 2d 1152, 2009 U.S. LEXIS 3314 (U.S. 2009).

Police officer’s unlawful entry into a residence does not render evidence of a subsequent assault against the officer inadmissible under the exclusionary rule. Commonwealth v. Johnson, 245 S.W.3d 821, 2008 Ky. App. LEXIS 26 (Ky. Ct. App. 2008).

Though the search of defendant’s car incident to his arrest was illegal under Arizona v. Gant, 556 U.S. 332, 129 S. Ct. 1710, 173 L. Ed. 2d 485, 2009 U.S. LEXIS 3120, which was decided after the search, as the officers conducting the search reasonably relied on New York v. Belton, 453 U.S. 454, 101 S. Ct. 2860, 69 L. Ed. 2d 768, 1981 U.S. LEXIS 13, under which the search was legal, the exclusionary rule did not apply and defendant’s motion to suppress drugs and paraphernalia found during the search was properly denied Valesquez v. Commonwealth, 362 S.W.3d 346, 2011 Ky. App. LEXIS 207 (Ky. Ct. App. 2011).

Trial court did not err in denying defendant’s motion to suppress under the Fourth Amendment of Ky. Const. § 10 because Arizona v. Gant, 556 U.S. 332, 129 S. Ct. 1710, 173 L. Ed. 2d 485, 2009 U.S. LEXIS 3120 (2009), had not yet been decided and, based on the good faith exception, the exclusionary rule did not apply when police officers conducted a search in objectively reasonable reliance on binding appellate precedent. Artis v. Commonwealth, 360 S.W.3d 771, 2012 Ky. App. LEXIS 9 (Ky. Ct. App. 2012).

When law enforcement officers conduct a search in objectively reasonable reliance on clearly established precedent from the Kentucky Supreme Court or the United States Supreme Court, the exclusionary rule does not apply to exclude the admission of evidence obtained as a result of the search. As such, the suppression of evidence found in a vehicle was not warranted because the search was conducted by an officer in an objectively reasonable reliance on clearly established precedent under New York v. Belton, 453 U.S. 454 (1981), and Henry v. Commonwealth, 275 S.W.3d 194 ( Ky. 2008 ); therefore, the exclusionary rule did not apply. Parker v. Commonwealth, 440 S.W.3d 381, 2014 Ky. LEXIS 432 ( Ky. 2014 ).

Evidence illegally seized from defendants' apartment should have been excluded as fruit of the poisonous tree where the first search was improper, and the subsequent consent was not attenuated enough in time or proximity to cure the illegality. Pace v. Commonwealth, 529 S.W.3d 747, 2017 Ky. LEXIS 389 ( Ky. 2017 ).

38.—Particular Searches and Seizures.
39.— —Blood Test.

Alcohol test results were improperly excluded, as the test was presumptively reliable, the test was performed by the hospital and not ordered by the investigating officer, and there was no indication of criminal behavior by the hospital, which would have been negligent to treat defendant without first obtaining a blood sample to determine what substances were in his system. Williams v. Commonwealth, 2015 Ky. App. Unpub. LEXIS 863 (Ky. Ct. App. Feb. 27, 2015), review denied, ordered not published, 2015 Ky. LEXIS 1984 (Ky. Oct. 21, 2015).

The taking of a blood test is merely a minor intrusion into a person and, accordingly, not unreasonable. Allen v. Commonwealth, 817 S.W.2d 458, 1991 Ky. App. LEXIS 125 (Ky. Ct. App. 1991).

The provisions of KRS 189A.200 which provide for a summary pretrial suspension of a motor vehicle operator’s license for refusal of repeat offender to take a blood alcohol test do not violate the procedural or substantive due process requirements of the Fourteenth Amendment to the United States Constitution or of Sections 10 and 11 of the Kentucky Constitution. Commonwealth v. Raines, 847 S.W.2d 724, 1993 Ky. LEXIS 51 ( Ky. 1993 ), overruled in part, Commonwealth v. Howard, 969 S.W.2d 700, 1998 Ky. LEXIS 95 ( Ky. 1998 ), overruled in part, Commonwealth v. Carman, 455 S.W.3d 916, 2015 Ky. LEXIS 66 ( Ky. 2015 ).

Any error in admitting defendant’s refusal of a blood test was harmless, under RCr P. 9.24, because (1) defendant admitted consuming alcohol and driving, and (2) defendant’s recorded interaction with an officer and subsequent sobriety testing showed defendant was intoxicated, so allowing driving under the influence to be presumed based on defendant’s refusal to submit to a blood test was cumulative. Guinn v. Commonwealth, 2014 Ky. App. LEXIS 53 (Ky. Ct. App. Mar. 28, 2014, sub. op., 2014 Ky. App. Unpub. LEXIS 1051 (Ky. Ct. App. Mar. 28, 2014).

40.— —Vehicle.

An automobile may not be stopped on the highway and searched without a warrant unless a misdemeanor is being committed in the presence of the officer or he has probable cause to believe that a felony has been committed. Commonwealth v. Chaplin, 307 Ky. 630 , 211 S.W.2d 841, 1948 Ky. LEXIS 793 ( Ky. 1948 ).

A vehicle may be impounded without a warrant in only four (4) situations: where the owner or permissive user consents to the impoundment; where the vehicle, if not removed, constitutes a danger to other persons or property or the public safety and the owner or permissive user cannot reasonably arrange for alternate means of removal; where the police have probable cause to believe both that the vehicle constitutes an instrumentality or fruit of a crime and that absent immediate impoundment the vehicle will be removed by a third party; or where the police have probable cause to believe both that the vehicle contains evidence of a crime and that absent immediate impoundment the evidence will be lost or destroyed. Wagner v. Commonwealth, 581 S.W.2d 352, 1979 Ky. LEXIS 262 ( Ky. 1979 ), overruled, Estep v. Commonwealth, 663 S.W.2d 213, 1983 Ky. LEXIS 316 ( Ky. 1983 ), overruled, Cobb v. Commonwealth, 509 S.W.3d 705, 2017 Ky. LEXIS 6 ( Ky. 2017 ).

Where probable cause justifies the search of a lawfully stopped vehicle, it also justifies the search of every part of the vehicle and its compartments and contents that may conceal the object of the search. Estep v. Commonwealth, 663 S.W.2d 213, 1983 Ky. LEXIS 316 ( Ky. 1983 ).

Merely approaching a stopped vehicle, without some show of force or authority, is not a seizure within the Fourth Amendment of the United States Constitution.Docksteader v. Commonwealth, 802 S.W.2d 149, 1991 Ky. App. LEXIS 4 (Ky. Ct. App. 1991).

When an officer observed a truck parked alongside the highway at 3:30 a.m., the officer’s community caretaking function allowed the officer to approach the truck to determine why it was stopped. Travis v. Commonwealth, 2004 Ky. App. LEXIS 149 (Ky. Ct. App. May 21, 2004).

Since Ky. Const. § 10 provides no greater protection than the federal Fourth Amendment, under Thornton v. United States, 541 U.S. 615, 124 S. Ct. 2127, 158 L. Ed. 2d 905, 2004 U.S. LEXIS 3681 (2004), the search of defendant’s car when he was arrested 50 feet away from it was a reasonable search because he was a “recent occupant” of the car, both in time and distance. Rainey v. Commonwealth, 197 S.W.3d 89, 2006 Ky. LEXIS 133 ( Ky. 2006 ), cert. denied, 549 U.S. 1117, 127 S. Ct. 1005, 166 L. Ed. 2d 713, 2007 U.S. LEXIS 132 (U.S. 2007), overruled in part, Arizona v. Gant, 556 U.S. 332, 129 S. Ct. 1710, 173 L. Ed. 2d 485, 2009 U.S. LEXIS 3120 (U.S. 2009), overruled in part, Rose v. Commonwealth, 322 S.W.3d 76, 2010 Ky. LEXIS 246 ( Ky. 2010 ).

The words “temporal or spatial” in the opinion of Thornton v. United States, 541 U.S. 615, 124 S. Ct. 2127, 158 L. Ed. 2d 905, 2004 U.S. LEXIS 3681 (2004), with regard to a warrantless vehicle search, means that whether a person had been a “recent occupant” of the vehicle is not determined only on his spatial relationship to the vehicle at the time of his arrest and search but it could also be based solely on his temporal relationship to the vehicle. Rainey v. Commonwealth, 197 S.W.3d 89, 2006 Ky. LEXIS 133 ( Ky. 2006 ), cert. denied, 549 U.S. 1117, 127 S. Ct. 1005, 166 L. Ed. 2d 713, 2007 U.S. LEXIS 132 (U.S. 2007), overruled in part, Arizona v. Gant, 556 U.S. 332, 129 S. Ct. 1710, 173 L. Ed. 2d 485, 2009 U.S. LEXIS 3120 (U.S. 2009), overruled in part, Rose v. Commonwealth, 322 S.W.3d 76, 2010 Ky. LEXIS 246 ( Ky. 2010 ).

While there was no evidence of defendant’s temporal relationship to his car, meaning how long it was between the time he left the car and the time that police officers stopped and arrested him, and while the officers testified that they did not fear for their safety and they testified that defendant, who was in handcuffs, was so far from his car that it was unlikely for him to have accessed it, a search of his car after he had walked 50 feet away from it and had been arrested was lawful under the Fourth Amendment. The arresting officers had seen defendant speed into a housing complex parking lot and walk away, so that on the facts of the case, defendant was a “recent occupant” of the car, and the police had a right to search it. Rainey v. Commonwealth, 197 S.W.3d 89, 2006 Ky. LEXIS 133 ( Ky. 2006 ), cert. denied, 549 U.S. 1117, 127 S. Ct. 1005, 166 L. Ed. 2d 713, 2007 U.S. LEXIS 132 (U.S. 2007), overruled in part, Arizona v. Gant, 556 U.S. 332, 129 S. Ct. 1710, 173 L. Ed. 2d 485, 2009 U.S. LEXIS 3120 (U.S. 2009), overruled in part, Rose v. Commonwealth, 322 S.W.3d 76, 2010 Ky. LEXIS 246 ( Ky. 2010 ).

Under the automatic companion rule, even though defendant’s actions or appearance did not evidence any independent indicia of dangerousness or suspicion, defendant was properly frisked for weapons after defendant was ordered to exit a vehicle so that the vehicle could be searched after the driver was lawfully stopped and arrested for driving with a suspended license and a crack pipe was discovered during a search incident to the driver’s lawful arrest. Owens v. Commonwealth, 244 S.W.3d 83, 2008 Ky. LEXIS 15 ( Ky. 2008 ), vacated, 556 U.S. 1218, 129 S. Ct. 2155, 173 L. Ed. 2d 1152, 2009 U.S. LEXIS 3314 (U.S. 2009).

No violation of Ky. Const. §§ 2, 10 or the Fourth Amendment occurred when, for no articulable reason, an officer ran a vehicle’s tags in the computer system in his patrol car, after observing the vehicle parked or traveling on a public street, thereby exposing its license plate to public view. That check provided a reasonable suspicion for a traffic stop, even though the driver was not the car’s owner, because the officer testified that the driver met the description of the owner who had a suspended license. Gentry v. Commonwealth, 2012 Ky. App. LEXIS 209 (Ky. Ct. App. Oct. 12, 2012, sub. op., 2012 Ky. App. Unpub. LEXIS 1040 (Ky. Ct. App. Oct. 12, 2012).

41.— — — Plain View.

Seizure of contraband without warrant was legal where it was observed in plain view in defendant’s car. Hancock v. Commonwealth, 262 S.W.2d 670, 1953 Ky. LEXIS 1110 ( Ky. 1953 ).

Where defendant was arrested for reckless driving, and officer who, by bending over and looking through a crack caused by a sprung lid, was able to see beer in the trunk, and asked the defendant to open the trunk and he reluctantly did so, evidence that beer was found in dry territory was inadmissible. Johns v. Commonwealth, 394 S.W.2d 890, 1965 Ky. LEXIS 212 ( Ky. 1965 ).

Where state trooper stopped a car having improper license plates in dry territory and could see contraband beverages in vehicle, he was authorized to search the vehicle without a search warrant. Collins v. Commonwealth, 396 S.W.2d 318, 1965 Ky. LEXIS 109 ( Ky. 1965 ).

Where accused when requested to show his driver’s license, opened truck door and got out of truck, and officers saw quantities of alcoholic beverages in truck in local option territory, subsequent search of truck was not illegal. Noble v. Commonwealth, 408 S.W.2d 185, 1966 Ky. LEXIS 80 ( Ky. 1966 ).

Where a police officer had probable cause to stop a vehicle and make an arrest, observing what was in view was not an illegal search. Rogers v. Commonwealth, 432 S.W.2d 405, 1968 Ky. LEXIS 329 ( Ky. 1968 ).

Discovery of stocking mask on hood of car and live shotgun shell on ground next to car by police while checking car’s description and license number made the search and seizure legal under the “plain view” doctrine, so that this section and the Fourth Amendment to the United States Constitution were not violated. Sanders v. Commonwealth, 609 S.W.2d 690, 1980 Ky. LEXIS 275 ( Ky. 1980 ).

Where defendant was stopped and arrested for driving while intoxicated, and where officer at time of arrest knew of reported rape by driver using car fitting same description, action of police in impounding car was not illegal, where interior of car matching victim’s description, knife used in assault and bloodstains on rubber mat in back were all in plain view of arresting officer and officer investigating rape. Pack v. Commonwealth, 610 S.W.2d 594, 1980 Ky. LEXIS 281 ( Ky. 1980 ).

Where duffel bag flaps were open when seized in car where defendant was riding when arrested so as to reveal tennis shoes similar to those worn in robbery for which defendant was accused, and where presence of shoes was noted by police property officer when marking and closing flaps for storage as evidence, a search warrant issued two (2) months later to search the duffel bag based on this observation was valid and not issued on information secured by illegal warrantless search, since the shoes’ visibility was not the result of any purposeful police misconduct and police are not required to be blind concerning that which fate casts into plain view. Caise v. Commonwealth, 610 S.W.2d 605, 1980 Ky. LEXIS 285 ( Ky. 1980 ).

Where the arresting officer had a right to stop the defendant’s car for speeding, and smelled marijuana smoke as the window was rolled down, he had probable cause to search the car, and since the defendant could have destroyed the contraband or escaped in his car there were exigent circumstances justifying search without a warrant; even confining the defendant while a warrant was obtained would not have been a practical alternative since the car would interfere with traffic on a major highway if left unguarded while a warrant was obtained. Cooper v. Commonwealth, 577 S.W.2d 34, 1979 Ky. App. LEXIS 372 (Ky. Ct. App. 1979), overruled, Mash v. Commonwealth, 769 S.W.2d 42, 1989 Ky. LEXIS 34 ( Ky. 1989 ), overruled, Commonwealth v. Ingram, 2006 Ky. App. Unpub. LEXIS 997 (Ky. Ct. App. May 5, 2006).

42.— — — Alcohol-Related

Where officers approached an automobile parked on the wrong side of the road, its occupants apparently arguing, and whereupon defendant was seen with what appeared to be an open beer can in plain view, between his legs, the officer was justified, based on these facts, in requesting defendant to exit the car; not only did the time, place, and the parties’ conduct indicate that criminal activity was afoot but defendant appeared to be committing a misdemeanor offense in the officer’s presence — KRS 222.202 prohibits the consumption of alcoholic beverages in a public place. Docksteader v. Commonwealth, 802 S.W.2d 149, 1991 Ky. App. LEXIS 4 (Ky. Ct. App. 1991).

Officer had reasonable suspicion to stop defendant where tipsters called police to report that a patron of the restaurant where they worked was drunk and driving, where the responding officer had face to face contact with the tipsters in the restaurant parking lot, and the reliability and veracity of the tip was corroborated by the officer. Commonwealth v. Kelly, 180 S.W.3d 474, 2005 Ky. LEXIS 385 ( Ky. 2005 ).

43.— — — Investigatory Stop.

Where officer observed defendant and a male companion parked in the dark corner of a parking lot, in the early hours of the morning, hunched over facing each other, there was sufficient suspicion to justify his stop to ask for registration papers and seizure of drugs and paraphernalia found in the vehicle. Creech v. Commonwealth, 812 S.W.2d 162, 1991 Ky. App. LEXIS 29 (Ky. Ct. App. 1991).

Anonymous tip, alleging defendant was selling drugs, described his appearance and location, but as it failed to predict his future behavior, it did not reveal an insider’s knowledge of concealed criminal activity; therefore, an officer’s investigatory stop of defendant based solely on that tip violated the Fourth Amendment and Ky. Const. § 10. Black v. Commonwealth, 2004 Ky. App. LEXIS 139 (Ky. Ct. App. May 14, 2004).

When an officer, having stopped to determine why a truck was parked alongside the highway at 3:30 a.m., was told by dispatch, after checking the driver’s license, of possible drug activity related to the driver and saw the driver acting suspiciously around an article in the truck’s bed from which the officer had detected the odor of ether, and the driver became excited when the officer asked for consent to search the truck, and approached the officer “flapping his arms,” the officer could handcuff the driver and place him in the officer’s cruiser, as the officer was confronting two (2) individuals by himself in the middle of the night. Travis v. Commonwealth, 2004 Ky. App. LEXIS 149 (Ky. Ct. App. May 21, 2004).

Considering the “totality of the circumstances,” the officer had “reasonable and articuable suspicion of criminal activities afoot” sufficient to justify the stop where the officer was flagged down on the street by a citizen and given information that a narcotics transaction was occurring, complete with a detailed description of the person involved, the officer arrived on the scene and immediately spotted the person and vehicle described just moments before, and the officer observed frantic activity in the vehicle as he approached. Commonwealth v. Priddy, 184 S.W.3d 501, 2005 Ky. LEXIS 389 ( Ky. 2005 ), cert. denied, 549 U.S. 980, 127 S. Ct. 444, 166 L. Ed. 2d 316, 2006 U.S. LEXIS 7879 (U.S. 2006).

Officer did not stop defendant’s vehicle because of his prior record, but because the officer believed that defendant was committing the offense of driving on a suspended license; the officer’s knowledge that defendant’s license was suspended at a recent time was sufficient to create reasonable suspicion of unlawful activity and support an investigatory stop. Deboy v. Commonwealth, 214 S.W.3d 926, 2007 Ky. App. LEXIS 34 (Ky. Ct. App. 2007).

Investigatory stop was not unconstitutional or improper since there was a reasonable and articulable suspicion that defendant was in possession of a stolen barrel at the time of an investigatory stop since defendant was transporting a single, orange construction barrel in an unmarked truck after midnight, and road-construction barrels were ordinarily transported during the daylight, in bunches, by marked construction or government vehicles; it did not matter that the barrel was later shown to have been borrowed. Boyle v. Commonwealth, 245 S.W.3d 219, 2007 Ky. App. LEXIS 411 (Ky. Ct. App. 2007).

Circuit Court erred in denying defendant’s motion to suppress the evidence seized as a result of an investigatory stop, as the arresting officers lacked a reasonable suspicion that defendant was involved in any criminal activity, where he was merely sitting in a legally parked vehicle in front of an apartment complex in a high crime area, and never aroused the officers’ suspicions during the course of the stop. Stone v. Commonwealth, 2008 Ky. App. LEXIS 32 (Ky. Ct. App. Feb. 8, 2008).

Under the totality of the circumstances, police officers had the necessary reasonable suspicion of criminal activity to make an investigative stop of defendant where (1) they observed a known drug trafficker approach a stopped vehicle in the middle of the road in the dark hours of the morning in a high crime area; (2) as the officers approached the vehicle pulled away leaving a group of individuals huddled behind a nearby conversion van; and (3) when the officers approached, the individuals, including defendant, dispersed in different directions from one another at a brisk pace. Morris v. Commonwealth, 2008 Ky. App. LEXIS 262 (Ky. Ct. App. Aug. 15, 2008).

There was not sufficient indicia of reliability to justify the investigative stop of defendants under Ky. Const. § 10, because the officer did not independently observe any illegal activity or suspicious behavior by defendants to corroborate the anonymous tip; the officer testified to seeing a person in a van pointing to defendants’ vehicle and the officer did not have a conversation with the person. Garcia v. Commonwealth, 335 S.W.3d 444, 2010 Ky. App. LEXIS 116 (Ky. Ct. App. 2010).

44.— — —Traffic Stop.

Police did not improperly detain defendant who was stopped because the rear license plate on his car was not illuminated, or coerce him into giving them consent to search his car, and the trial court erred by suppressing drugs which police found. Commonwealth v. Erickson, 132 S.W.3d 884, 2004 Ky. App. LEXIS 38 (Ky. Ct. App. 2004).

Because the officer’s initial traffic stop of defendant had not been completed in the 14 minutes that passed before the K-9 unit arrived, there was no unreasonable or unjustified detention, or any other constitutional implications. Chenault v. Commonwealth, 2007 Ky. App. LEXIS 69 (Ky. Ct. App. Mar. 2, 2007, sub. op., 2007 Ky. App. Unpub. LEXIS 887 (Ky. Ct. App. Mar. 2, 2007).

Trial court did not err by denying defendant’s motion to suppress evidence seized in the search of his vehicle because: (1) the traffic stop was constitutional, as the officer stopped defendant for not wearing a seatbelt and reckless driving; (2) the police saw a laptop bag and lights in plain view inside the vehicle, which they had probable cause to believe were recently stolen; and (3) defendant’s vehicle was readily mobile even though defendant was under arrest at the time the officers conducted the search. Chavies v. Commonwealth, 354 S.W.3d 103, 2011 Ky. LEXIS 161 ( Ky. 2011 ).

Trial court erred in denying defendant's motion to suppress the evidence discovered during a traffic stop because the search violated defendant's right to be free from unreasonable searches and seizures under U.S. Const. amend. 4 and Ky. Const. § 10 where a K9 walk-around of defendant's vehicle impermissibly extended the duration of the stop and was unrelated to the traffic offense where neither the high-crime area, defendant's nervous fumbling, nor the officer's hunch individually constituted a reasonable articulable suspicion of criminal activity, and there was no reasonable articulable suspicion of criminal drug activity warranting the dog sniff. Lane v. Commonwealth, 2016 Ky. App. LEXIS 184 (Ky. Ct. App. Nov. 4, 2016), aff'd, 553 S.W.3d 203, 2018 Ky. LEXIS 280 ( Ky. 2018 ).

Court of appeals erroneously analyzed appellant’s claim that the searches and seizures were illegal because appellant was properly asserting that the officers’ actions infringed upon his own Fourth Amendment rights as a driver of a private passenger vehicle had an expectation of privacy, and the court improperly focused on the grassy area search as the primary alleged illegality instead of focusing on the alleged illegal detention of appellant. Warick v. Commonwealth, 592 S.W.3d 276, 2019 Ky. LEXIS 351 ( Ky. 2019 ).

45.— Stops.

Limited application of a plain feel exception to the warrant requirement in connection with a valid Terry search did not violate this section. Commonwealth v. Crowder, 884 S.W.2d 649, 1994 Ky. LEXIS 107 ( Ky. 1994 ).

When an officer, having stopped to determine why a truck was parked alongside the highway at 3:30 a.m., detected an odor of ether coming from an article in the truck’s bed, and the driver was nervous and evasive, the officer had a reasonable, articulable suspicion of criminal activity which allowed him to request the driver’s license, and the scope of this brief detainment was reasonably related to its justification. Travis v. Commonwealth, 2004 Ky. App. LEXIS 149 (Ky. Ct. App. May 21, 2004).

The cracks in defendant’s windshield were not a basis for a stop of his vehicle because the cracks were not a violation of KRS 189.110 , which concerns window tinting, nor were they severe enough to unreasonably impair his forward vision, so they were not a violation of KRS 189.020 , so a subsequent search to which defendant consented was invalid. Garcia v. Commonwealth, 185 S.W.3d 658, 2006 Ky. App. LEXIS 62 (Ky. Ct. App. 2006).

Where the police officer testified that he asked defendant to come back when she attempted to leave the scene, the defendant was trying to terminate the encounter by going back to the Kroger store when she was asked to return. Under these circumstances, it cannot be said as a matter of law that a reasonable person would have felt free to terminate the encounter. Thus, defendant was siezed for purposes of the Fourth Amendment. Botto v. Commonwealth, 220 S.W.3d 282, 2006 Ky. App. LEXIS 377 (Ky. Ct. App. 2006).

Seizure of defendant was a constitutional Terry stop under the Fourth Amendment and Ky. Const. § 10 because, once the officer made the investigatory stop of a group of nine people, he had reason to believe that defendant was armed and dangerous because the officer saw the bulge created by the handgun concealed in defendant’s clothing. Williams v. Commonwealth, 364 S.W.3d 65, 2011 Ky. LEXIS 168 ( Ky. 2011 ).

46.— — Patdown.

Where police officer did not immediately recognize what he felt in defendant’s pocket as drugs and reached into the pocket to get it out, the seizure of a “bindle” of drugs incident to a Terry patdown search was constitutionally invalid. Since the nature of the non-threatening contraband was not immediately apparent to officer, his further exploration of defendant’s pocket was not authorized by Terry or any other exception to the warrant requirement. Commonwealth v. Crowder, 884 S.W.2d 649, 1994 Ky. LEXIS 107 ( Ky. 1994 ).

47.— DNA Database.

Collection of juveniles’ DNA samples pursuant to KRS 17.174 did not violate the juveniles constitutional rights to be free from unreasonable searches and seizures under U.S. Const. amend. IV and Ky. Const. § 10. Petitioner F v. Brown, 2008 Ky. App. LEXIS 42 (Ky. Ct. App. Feb. 22, 2008, sub. op., 2008 Ky. App. Unpub. LEXIS 532 (Ky. Ct. App. Feb. 22, 2008).

48.— Stolen Property.

Where trailer containing merchandise was stolen, defendants accused of storehouse breaking had no standing to question search of trailer. Commonwealth v. Johnson, 420 S.W.2d 103, 1967 Ky. LEXIS 95 ( Ky. 1967 ).

Where two (2) men were observed operating a van, which contained television and stereo sets with price tags attached, in a suspicious manner, and the two (2) men had been identified by an associate found to be carrying a concealed weapon, the subsequent search by police officers of the occupants of the van was not unreasonable. Bays v. Commonwealth, 486 S.W.2d 706, 1972 Ky. LEXIS 119 ( Ky. 1972 ).

49.— Roadblocks.

The practice of setting up a roadblock for motor vehicles for the purpose of requiring the driver to display an operator’s license is not an unlawful arrest or restraint or an illegal search contrary to this section of the constitution. Commonwealth v. Mitchell, 355 S.W.2d 686, 1962 Ky. LEXIS 83 ( Ky. 1962 ).

Where testimony indicated that the primary purpose of a police roadblock was general crime control, or more specifically, the interdiction of illegal narcotics, the roadblock was unconstitutional and evidence seized from defendant should have been suppressed. Commonwealth v. Buchanon, 122 S.W.3d 565, 2003 Ky. LEXIS 254 ( Ky. 2003 ).

Defendant’s motion to suppress a driving under the influence arrest was properly denied since the roadblock which was set up to check for seatbelt law compliance and to check for general motor vehicle safety was not a violation of constitutional search and seizure rights because the roadblock: (1) was solely used to promote the state’s strong interest in preventing traffic accidents and in promoting highway safety; (2) met nearly every factor in the Kentucky State Police Traffic Safety Checkpoint Policy, which was known as the OM-E-4 guideline; and (3) was minimally intrusive and did not involve an unconstitutional exercise of discretion. Dunlap v. Commonwealth, 2006 Ky. App. LEXIS 107 (Ky. Ct. App. Apr. 7, 2006).

Defendant’s motion to dismiss should have been granted after defendant was charged with driving under the influence and driving without a seatbelt because the basis for defendant’s arrest was premised upon a highway checkpoint and the checkpoint did not comport with state police guidelines. There were no media announcements about the check point, a state trooper was not designated to be in charge of the checkpoint, the checkpoint was closed after defendant was arrested, and the state police could not put forth a constitutionally permissible purpose for its decision to conduct the vehicle checkpoint. Monin v. Commonwealth, 209 S.W.3d 471, 2006 Ky. App. LEXIS 186 (Ky. Ct. App. 2006).

As there was no evidence the sheriff’s department had an internal policy designed to prevent unconstrained discretion by officers conducting a roadblock, and an officer’s questioning of defendant, a passenger, suggested the officer was looking for evidence of ordinary criminal activity, not impaired drivers, the roadblock violated defendant’s Fourth Amendment rights. Therefore, the drugs found in a search of defendant’s person and the car had to be suppressed. Moore v. Commonwealth, 2008 Ky. App. LEXIS 369 (Ky. Ct. App. Nov. 26, 2008), review denied, ordered not published, 2009 Ky. LEXIS 297 (Ky. Oct. 21, 2009).

Under the circumstances of the case, reasonable suspicion arose, U.S. Const. amend. IV and Ky. Const. § 10, and justified defendant’s stop by the police where defendant’s avoidance of the intersection and police roadblock indicated that defendant was intentionally avoiding the roadblock to evade arrest or detection. Bauder v. Commonwealth, 299 S.W.3d 588, 2009 Ky. LEXIS 257 ( Ky. 2009 ), cert. denied, 560 U.S. 953, 130 S. Ct. 3395, 177 L. Ed. 2d 304, 2010 U.S. LEXIS 4672 (U.S. 2010).

50.— Incident to Arrest.

Where defendant was drunk, standing outside of his automobile with engine running, it was the right and duty of arresting officer to take charge of automobile, and his search of it while in his lawful possession did not violate this section. Patrick v. Commonwealth, 199 Ky. 83 , 250 S.W. 507, 1923 Ky. LEXIS 763 ( Ky. 1923 ).

Where defendant was lawfully arrested, search incident thereto was legal and resultant evidence was admissible. Elswick v. Commonwealth, 202 Ky. 703 , 261 S.W. 249, 1924 Ky. LEXIS 797 ( Ky. 1924 ).

Where sheriff merely believed or suspected that defendant had contraband in his car, and in course of attempt to stop defendant’s car one of sheriff’s deputies was accidentally struck by such car, sheriff had no grounds for making lawful arrest, and search and seizure incident thereto were illegal. Bowman v. Commonwealth, 211 Ky. 118 , 276 S.W. 1057, 1925 Ky. LEXIS 823 ( Ky. 1925 ).

Right guaranteed by this section to be free from illegal search and seizure was lost immediately upon lawful arrest. Cowan v. Commonwealth, 308 Ky. 842 , 215 S.W.2d 989, 1948 Ky. LEXIS 1058 ( Ky. 1948 ).

Person arrested for commission of misdemeanor could be searched for presence of weapons. Commonwealth v. Lewis, 309 Ky. 276 , 217 S.W.2d 625, 1949 Ky. LEXIS 682 ( Ky. 1949 ).

Search of person and property in immediate presence of defendant was legal upon his lawful arrest. Commonwealth v. Lewis, 309 Ky. 276 , 217 S.W.2d 625, 1949 Ky. LEXIS 682 ( Ky. 1949 ).

A search without a warrant before an arrest must be justified on conditions preceding arrest, not after arrest. Willoughby v. Commonwealth, 313 Ky. 291 , 231 S.W.2d 79, 1950 Ky. LEXIS 889 ( Ky. 1950 ).

Defendant who was lawfully arrested was legally searched. Ginter v. Commonwealth, 262 S.W.2d 178, 1953 Ky. LEXIS 1073 ( Ky. 1953 ).

While a peace officer has a right to make an arrest without a warrant when a public offense is committed in his presence or he has reasonable grounds for believing that the person arrested has committed a felony, this right is secondary to the privileges guaranteed by Const., § 10. Alred v. Commonwealth, 272 S.W.2d 44, 1954 Ky. LEXIS 1080 ( Ky. 1954 ).

Arresting officer may search person of suspect incident to lawful arrest, without warrant. Pruitt v. Commonwealth, 286 S.W.2d 551, 1955 Ky. LEXIS 104 ( Ky. 1955 ).

The arrest of an individual on a traffic violation provided no authority for the search of a vehicle which was in the complete control and possession of the person arrested. Lane v. Commonwealth, 386 S.W.2d 743, 1964 Ky. LEXIS 179 ( Ky. 1964 ).

Where subsequent to the issue of John Doe warrants in a murder investigation officers went to the residence of one of the defendants identified by an accomplice in custody and, finding the defendant absent but the door open, entered and arrested him upon his return, took him into an adjoining bedroom overlooking the street to look for a confederate and while there observed in plain view a wallet, later identified as belonging to the deceased, which they seized, the search was legal, regardless of the validity of the John Doe warrants and the fact that no search warrant had been issued, since the officers had reasonable grounds to believe that the defendant had committed a felony, therefore having authority to arrest him without a warrant and their intrusion into the bedroom was limited and reasonable. Caine v. Commonwealth, 491 S.W.2d 824, 1973 Ky. LEXIS 605 (Ky.), cert. denied, 414 U.S. 876, 94 S. Ct. 80, 38 L. Ed. 2d 121, 1973 U.S. LEXIS 885 (U.S. 1973).

Where there was probable cause for arrest, the fact that the officer had not placed defendant under formal arrest prior to seizing a plastic baggie from his pocket did not taint the validity of the seizure, since the contraband inevitably would have been discovered. Richardson v. Commonwealth, 975 S.W.2d 932, 1998 Ky. App. LEXIS 18 (Ky. Ct. App. 1998).

Even if an officer improperly seized defendant when he questioned him, the seizure was not so flagrant as to destroy the independent, untainted nature of a valid outstanding arrest warrant for defendant; consequently, the arrest warrant pending removed any taint of the allegedly illegal seizure, and the officer’s later search incident to defendant’s arrest was proper. Birch v. Commonwealth, 203 S.W.3d 156, 2006 Ky. App. LEXIS 84 (Ky. Ct. App. 2006).

Trial court could refuse to grant defendant’s motion to suppress where police obtained contraband evidence as a result of a search of defendant’s vehicle after defendant was arrested. Pursuant to Thornton, the Fourth Amendment, and Ky. Const. § 10, that search was conducted under a permissible exception to the warrant requirement as a search incident to a valid arrest. Henry v. Commonwealth, 275 S.W.3d 194, 2008 Ky. LEXIS 320 ( Ky. 2008 ), overruled in part, Rose v. Commonwealth, 322 S.W.3d 76, 2010 Ky. LEXIS 246 ( Ky. 2010 ).

Where defendant’s stop was, under the totality of the circumstances, based on a reasonable suspicion of criminal activity, a subsequent warrant check was well within the scope of the stop and a search of the vehicle defendant was in subsequent to his arrest on a warrant was permissible as it was subsequent to a valid arrest. Morris v. Commonwealth, 2008 Ky. App. LEXIS 262 (Ky. Ct. App. Aug. 15, 2008).

Trial court properly denied defendant’s motion to suppress evidence seized from defendant’s person after defendant was placed under arrest and searched because the police officer had a reasonable belief to conclude that a criminal trespass was being committed in the police officer’s presence when defendant was on property that was owned by the Lexington Housing Authority. The defendant acted evasively, defendant could not identify who he intended to visit on the property, and the property was clearly posted to prohibit trespassing, loitering, and congregating. Commonwealth v. Fields, 194 S.W.3d 255, 2006 Ky. LEXIS 155 ( Ky. 2006 ).

Trial court did not err in refusing to suppress evidence found in a vehicle search following defendant’s arrest because arresting officers knew defendant to be a convicted drug trafficker, they observed defendant demonstrate control of the car by opening it with a remote, they saw defendant toss cocaine to the ground, and they found substantial money on defendant’s person. Robbins v. Commonwealth, 336 S.W.3d 60, 2011 Ky. LEXIS 36 ( Ky. 2011 ).

51.— — Unlawful Arrest.

Notwithstanding fact that police observed a big bulk under suspect’s clothes, search of suspect illegally in custody and without warrant was illegal. Powell v. Commonwealth, 307 Ky. 545 , 211 S.W.2d 850, 1948 Ky. LEXIS 796 ( Ky. 1948 ).

Search incident to arrest was illegal where such arrest was unauthorized due to insufficiency in arrest warrant. Patrick v. Commonwealth, 238 S.W.2d 1006, 1951 Ky. LEXIS 832 ( Ky. 1951 ).

Fact that person had committed offense for which he could have been arrested, did not justify search if he had not been arrested for such offense. Commonwealth v. Vaughn, 296 S.W.2d 220, 1956 Ky. LEXIS 191 ( Ky. 1956 ).

Where defendant was drunk in public, was arrested, tried and acquitted on charge of drunken driving, and was subsequently charged with carrying concealed weapon, weapon could not be introduced when found by officers incident to arrest for drunken driving, since acquittal rendered such arrest invalid. Commonwealth v. Vaughn, 296 S.W.2d 220, 1956 Ky. LEXIS 191 ( Ky. 1956 ).

Where trooper issued a citation instead of making an arrest for a misdemeanor committed in his presence, the person cited was not arrested and consequently there could have been no legal search of the accused or of his property. Conn v. Commonwealth, 387 S.W.2d 285, 1965 Ky. LEXIS 461 ( Ky. 1965 ).

Where a defendant challenged denial of his motion to suppress, the officers lacked the requisite suspicion of danger to justify a protective sweep of his residence. The officers had no articulable information which led them to reasonably believe someone remained inside the home, and they possessed only the lack of knowledge spoken of in the Colbert decision and they acted only upon the constant assumption spoken of in the Archibald decision, and that was not enough to justify the sweep of defendant’s residence. Brown v. Commonwealth, 423 S.W.3d 765, 2014 Ky. App. LEXIS 26 (Ky. Ct. App. 2014).

52.— After Arrest.

In prosecution for carrying concealed a deadly weapon, verdict properly was directed for accused where evidence showed that charge was based on discovery of pistol in glove compartment of accused’s car, but that the search of the car did not take place until sometime after accused had been arrested and jailed for the commission of a misdemeanor. Commonwealth v. Lewis, 309 Ky. 276 , 217 S.W.2d 625, 1949 Ky. LEXIS 682 ( Ky. 1949 ).

Court properly denied defendant’s motion to suppress because, in effectuating a valid arrest warrant, the officers were allowed to search the bedroom adjoining the place of defendant’s arrest, they then conducted a cursory search of places where a person could be hiding, and in doing so, they observed the unzipped duffel bag full of contraband in plain view. Kerr v. Commonwealth, 400 S.W.3d 250, 2013 Ky. LEXIS 287 ( Ky. 2013 ).

53.— By Private Citizens.

This section did not apply to searches by private persons. Chapman v. Commonwealth, 206 Ky. 439 , 267 S.W. 181, 1924 Ky. LEXIS 340 ( Ky. 1924 ). But see Thacker v. Commonwealth, 310 Ky. 702 , 221 S.W.2d 682, 1949 Ky. LEXIS 1010 ( Ky. 1949 ).

This section applies to searches made incident to citizen’s arrest. Thacker v. Commonwealth, 310 Ky. 702 , 221 S.W.2d 682, 1949 Ky. LEXIS 1010 ( Ky. 1949 ). But see Chapman v. Commonwealth, 206 Ky. 439 , 267 S.W. 181, 1924 Ky. LEXIS 340 ( Ky. 1924 ).

Constitution does not prohibit search by representative of insurance company or other private individual. Stone v. Commonwealth, 418 S.W.2d 646, 1967 Ky. LEXIS 220 ( Ky. 1967 ), cert. denied, 390 U.S. 1010, 88 S. Ct. 1259, 20 L. Ed. 2d 161, 1968 U.S. LEXIS 2015 (U.S. 1968).

54.— Other Searches.

An order requiring a defendant, under indictment for sex offenses, to submit to the involuntary taking of physical specimens from his person did not violate a state constitutional “right of personal security.” Holbrook v. Knopf, 847 S.W.2d 52, 1992 Ky. LEXIS 191 ( Ky. 1992 ).

An order authorizing the Commonwealth to collect blood, hair and saliva specimens from the defendant, for scientific comparison with physical evidence obtained upon examination of the alleged victim was not unconstitutional on the grounds that the procedure compelled the defendant to “give evidence against himself,” in violation of Const. § 11; Const. § 11 was not intended to repeal the authority to seize physical evidence implied by this section. Mace v. Morris, 851 S.W.2d 457, 1993 Ky. LEXIS 10 ( Ky. 1993 ).

Defendant’s conviction for criminal mischief and disorderly conduct was affirmed as: (1) the police officers had a legal right to be on the premises as they were there in response to a 911 call of domestic violence, (2) there was ample evidence to indicate that the potential for domestic violence existed, (3) after locating defendant, the police acted reasonably in asking him to step out of an abandoned vehicle so that they could determine whether he was a threat, (4) defendant’s repeated refusals to cooperate, his reaching under the seat, and his desire to let loose his dog caused the officers to remove him forcibly from the vehicle, and (5) defendant was handcuffed and placed in the police cruiser because he was prohibiting the officers from carrying out their duty under KRS 403.785 , not because the officers were attempting to place him under arrest. Poe v. Commonwealth, 201 S.W.3d 37, 2006 Ky. App. LEXIS 258 (Ky. Ct. App. 2006).

Defendant’s constitutional rights under U.S. Const. amend. IV and Ky. Const. § 10 were not violated because his refusal to voluntarily consent to fingerprint sampling was fairly admitted for the proper purposes of rebutting and impeaching his claim of self defense. Coulthard v. Commonwealth, 230 S.W.3d 572, 2007 Ky. LEXIS 161 ( Ky. 2007 ).

Where, when the police arrived at the Kroger parking lot, defendant was in the company of a methamphetamine trader known to one of the police officers, and defendant was standing near a vehicle that contained a recently purchased large quantity of an ingredient used in the manufacture of methamphetamine, in light of these facts, coupled with the police officer’s experience that methamphetamine users “usually run with other meth users,” there was adequate support for a reasonable suspicion that defendant might be involved in criminal activity and that a brief investigatory stop was justified. Botto v. Commonwealth, 220 S.W.3d 282, 2006 Ky. App. LEXIS 377 (Ky. Ct. App. 2006).

49.—Roadblocks.

Determination that defendant's arrest and DUI conviction was the fruit of an unconstitutional seizure was affirmed where the presiding troopers did not erect warning signs down the road to inform vehicles approaching the site, nor did they post any announcements of a proposed checkpoint to the media, and although the Kentucky State Police did turn on their emergency lights at the roadblock and officers were in uniform, this was not enough to provide adequate notice to approaching motorists. Commonwealth v. Cox, 491 S.W.3d 167, 2015 Ky. LEXIS 2010 ( Ky. 2015 ).

50.—Incident to arrest.

Search of defendant’s pocket was lawful as a search incident to arrest, and the trial court did not err in admitting the fruits of that search, because probable cause existed to justify his arrest for fleeing or evading police in the first degree; a reasonable and prudent police officer would have reason to believe that chasing an armed individual on foot and by vehicle across trafficked streets, through backyards, and across railway tracks created a substantial risk of serious physical injury. Hunter v. Commonwealth, 587 S.W.3d 298, 2019 Ky. LEXIS 434 ( Ky. 2019 ).

Trial court properly denied defendant’s motion to suppress evidence seized from the vehicle he was driving when he was stopped because there was a legitimate reason for the initial stop since the vehicle had an expired registration tag; the search was valid as a search incident to arrest, and because the suppressed statements did not lead to defendant’s arrest, the arrest itself was valid. Bolin v. Commonwealth, 592 S.W.3d 305, 2019 Ky. App. LEXIS 198 (Ky. Ct. App. 2019).

55.Warrants.

Where one applied for writ of prohibition, he was required to allege that search warrant was threatened or about to be issued in order to object that law under which such warrant would be issued violated this section. Lakes v. Goodloe, 195 Ky. 240 , 242 S.W. 632, 1922 Ky. LEXIS 342 ( Ky. 1922 ).

Existence of lost search warrant could be proved by parol evidence. Buchanan v. Commonwealth, 210 Ky. 364 , 275 S.W. 878, 1925 Ky. LEXIS 679 ( Ky. 1925 ).

Provisions of this section apply to the issuing of warrants of arrest and unless the requisite preliminary information is furnished to the officer or court issuing the warrant, such officer or court has no authority to issue the warrant, and if it does so without sufficient information, the warrant is invalid. Patrick v. Commonwealth, 238 S.W.2d 1006, 1951 Ky. LEXIS 832 ( Ky. 1951 ).

Failure of trial court to make findings of fact in litigation involving claim of illegal search and seizure in and of itself does not require reversal; proper procedure is to remand case to the trial court to make the required findings. Lee v. Commonwealth, 547 S.W.2d 792, 1977 Ky. App. LEXIS 639 (Ky. Ct. App. 1977).

This section does not guarantee that the identity of an informant must be disclosed in order to obtain a search warrant, or that the informant’s identity must be disclosed in an affidavit for a search warrant. Berkshire v. Commonwealth, 471 S.W.2d 695, 1971 Ky. LEXIS 243 ( Ky. 1971 ), overruled, Beemer v. Commonwealth, 665 S.W.2d 912, 1984 Ky. LEXIS 215 ( Ky. 1984 ).

56.— Necessity.

A search warrant is not necessary in order for an officer to search one’s premises or person when the search is made after legally arresting the person for another independent crime. Commonwealth v. Puckett, 277 Ky. 131 , 125 S.W.2d 1011, 1939 Ky. LEXIS 619 ( Ky. 1939 ).

In the absence of any showing that the business of a tractor company was inherently dangerous, was subject to federal or state regulation or licensing, was pervasively regulated or was an industry with a long history of regulation, a search and inspection of the closed areas of the premises would not be permitted without a search warrant or court order, either of which must be based upon a showing of probable cause. Yocom v. Burnette Tractor Co., 555 S.W.2d 823, 1977 Ky. App. LEXIS 803 (Ky. Ct. App. 1977), aff'd, 566 S.W.2d 755, 1978 Ky. LEXIS 365 ( Ky. 1978 ).

A motel room is a person’s “home away from home,” and any search of one occupied by a guest encounters the warrant requirement of Fourth Amendment of the United States Constitution and this section. Johnson v. Commonwealth, 746 S.W.2d 80, 1988 Ky. App. LEXIS 36 (Ky. Ct. App. 1988).

57.— — Good Faith Exception.

Application of a good faith exception to the warrant requirement, as articulated in United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677, 1984 U.S. LEXIS 153 (1984), does not violate this section. Crayton v. Commonwealth, 846 S.W.2d 684, 1992 Ky. LEXIS 198 ( Ky. 1992 ), cert. denied, 510 U.S. 856, 114 S. Ct. 165, 126 L. Ed. 2d 125, 1993 U.S. LEXIS 5563 (U.S. 1993).

58.— — Personal Safety.

A mere apprehension for personal safety, and the opportunity such provides for pretext, is insufficient to create an exception to the warrant requirement. Commonwealth v. Johnson, 777 S.W.2d 876, 1989 Ky. LEXIS 47 ( Ky. 1989 ), cert. denied, 494 U.S. 1046, 110 S. Ct. 1510, 108 L. Ed. 2d 646, 1990 U.S. LEXIS 1509 (U.S. 1990), cert. denied, 494 U.S. 1085, 110 S. Ct. 1823, 108 L. Ed. 2d 952, 1990 U.S. LEXIS 1976 (U.S. 1990); Johnson v. Kentucky, 494 U.S. 1085, 110 S. Ct. 1823, 108 L. Ed. 2d 952, 1990 U.S. LEXIS 1976 (U.S. 1990).

It would be totally unreasonable to limit the “Terry” search to only the outer clothing of the suspect if the officer possesses an articulable and objectively reasonable belief that weapons are in or about the suspect’s immediate control and vicinity; and where an officer searched defendant’s pouch, which he reasonably suspected contained a weapon under the circumstances of this case, the stop and search of defendant’s person and the pouch were well within the spirit and law of Terry and its progeny, and although contraband other than weapons was found, the officer was not required to ignore it, and it need not be suppressed. Docksteader v. Commonwealth, 802 S.W.2d 149, 1991 Ky. App. LEXIS 4 (Ky. Ct. App. 1991).

59.— Scope.

Police could not search person who was not owner of automobile under warrant for search of such automobile. Best v. Commonwealth, 207 Ky. 178 , 268 S.W. 1089, 1925 Ky. LEXIS 47 ( Ky. 1925 ).

Search of defendant’s home and automobiles was unlawful where warrant described place of business only. Pigg v. Commonwealth, 299 S.W.2d 796, 1957 Ky. LEXIS 427 ( Ky. 1957 ).

Search of premises is not to be confined to buildings contained in the description, but includes all property necessarily a part of the premises or so inseparable as to constitute portion thereof. Massey v. Commonwealth, 305 S.W.2d 755, 1957 Ky. LEXIS 326 ( Ky. 1957 ).

Automobile could be searched where it was found on premises described in warrant. McCissell v. Commonwealth, 305 S.W.2d 756, 1957 Ky. LEXIS 327 ( Ky. 1957 ). See Massey v. Commonwealth, 305 S.W.2d 755, 1957 Ky. LEXIS 326 ( Ky. 1957 ).

Police who have a legitimate reason to stop an automobile and who have probable cause to believe that the objects of the search are concealed somewhere within the vehicle may conduct a warrantless search of the vehicle and all the compartments and containers thereof as well as the contents thereof that are not in plain view. Estep v. Commonwealth, 663 S.W.2d 213, 1983 Ky. LEXIS 316 ( Ky. 1983 ).

A lawful search of a fixed premises generally extends to the entire area in which objects may be found and is not otherwise limited; thus a warrant to search a home also provides authority to open closets, drawers and containers in which the object of the search might be concealed. Estep v. Commonwealth, 663 S.W.2d 213, 1983 Ky. LEXIS 316 ( Ky. 1983 ).

Person held for committing a crime is a valid object of a properly issued search warrant because the public has a valid interest in the prevention of crime, thus articles held and used to further acts of prostitution constituted ample basis for the search for and seizure thereof. Schweinefuss v. Commonwealth, 395 S.W.2d 370, 1965 Ky. LEXIS 143 ( Ky. 1965 ), overruled in part, St. Clair v. Commonwealth, 140 S.W.3d 510, 2004 Ky. LEXIS 44 ( Ky. 2004 ).

The scope of a warrantless search is defined by the object of the search and the places in which there is probable cause to believe it may be found. Estep v. Commonwealth, 663 S.W.2d 213, 1983 Ky. LEXIS 316 ( Ky. 1983 ).

The reasonable expectation of privacy is a particular relevant factor in determining the validity of any warrantless search but, in regard to automobiles, the expectation of privacy is limited because of the nature of the unit; the obvious mobility of a vehicle distinguishes it from the traditional sanctity afforded a residence or fixed premises. Estep v. Commonwealth, 663 S.W.2d 213, 1983 Ky. LEXIS 316 ( Ky. 1983 ).

60.— Description.

John Doe warrant without description of premises or name of owner was not valid. Weaver v. Ficke, 174 Ky. 432 , 192 S.W. 515, 1917 Ky. LEXIS 204 ( Ky. 1917 ).

Search warrant was not defective where house was described as “224,” absent showing that other houses in city had same number. Lyons v. Commonwealth, 218 Ky. 841 , 292 S.W. 499, 1927 Ky. LEXIS 262 ( Ky. 1927 ).

For search warrant to be valid, it must contain such description of place, person, or thing to be searched as reasonably identifies such place, person, or thing, so that executing officer knows with certainty that premises, thing or person he is searching are those thus authorized and directed to be searched. McMahan's Adm'x v. Draffen, 242 Ky. 785 , 47 S.W.2d 716, 1932 Ky. LEXIS 361 ( Ky. 1932 ).

Search warrant for houses, outbuildings and adjacent premises, describing certain filling station, was sufficient for search of trailer situated under portion of filling station roof. Johnson v. Commonwealth, 313 Ky. 751 , 233 S.W.2d 514, 1950 Ky. LEXIS 973 ( Ky. 1950 ).

It is essential to a valid search warrant that it describe with particularity the place to be searched, and, while the description is not required to be as certain and specific as is necessary in a deed of conveyance, it must contain such a description of the place, person, or thing to be searched or seized as will reasonably identify it. Williams v. Commonwealth, 261 S.W.2d 416, 1953 Ky. LEXIS 1009 ( Ky. 1953 ).

Warrant for search of certain hotel was invalid as not naming person, place, or objects to be searched with sufficient particularity. Williams v. Commonwealth, 261 S.W.2d 416, 1953 Ky. LEXIS 1009 ( Ky. 1953 ).

Where search warrant describes premises in which different persons occupy different parts, and fails to name the accused or occupant or to designate a certain part of the premises, it is defective as a blanket search warrant. Williams v. Commonwealth, 261 S.W.2d 416, 1953 Ky. LEXIS 1009 ( Ky. 1953 ).

Where a search warrant issued in a rural county possessing only two (2) towns, named the occupant of the dwelling to be searched and also described its location in relation to streets so that it could be found in only one place in the county, but the warrant failed to name the town in which the dwelling was located, such description in the warrant was sufficient. Commonwealth v. Martin, 280 S.W.2d 501, 1955 Ky. LEXIS 160 ( Ky. 1955 ).

It was not necessary for search warrant, after describing premises, to contain detailed information as to what personal property within or on premises could be validly searched. Massey v. Commonwealth, 305 S.W.2d 755, 1957 Ky. LEXIS 326 ( Ky. 1957 ).

Where a search warrant commanded search of driver, his car, residence, and “any other person present believed to be involved in the illegal use of, possession of or trafficking in controlled substances”; where the defendant drove up, during the search, accompanying driver, driver was searched and found to be carrying heroin, and the defendant was also searched and heroin discovered, the warrant was not sufficiently descriptive of the defendant to permit the search, nor were there grounds for a warrantless search, and the defendant must be released. Johantgen v. Commonwealth, 571 S.W.2d 110, 1978 Ky. App. LEXIS 588 (Ky. Ct. App. 1978).

Appellant’s drug convictions were reversed where the affidavit on which a search warrant relied failed to name the thing to be seized; the officer’s reliance on the search warrant did not fit within the good faith exception, and thus, the trial court erred in denying the appellant’s motion to suppress the seized evidence. Crum v. Commonwealth, 223 S.W.3d 109, 2007 Ky. LEXIS 118 ( Ky. 2007 ).

Although the search warrant listed an incorrect street number of the searched premises, it clearly described the premises to be searched so that an officer exercising reasonable effort could have easily ascertained the proper trailer to be searched, and thus was sufficiently particular. McCloud v. Commonwealth, 279 S.W.3d 162, 2007 Ky. App. LEXIS 402 (Ky. Ct. App. 2007), cert. denied, 558 U.S. 902, 130 S. Ct. 260, 175 L. Ed. 2d 175, 2009 U.S. LEXIS 7050 (U.S. 2009).

62.— Probable Cause.

Affidavit must show probable cause for issuance of warrant or such warrant is invalid. Colley v. Commonwealth, 195 Ky. 706 , 243 S.W. 913, 1922 Ky. LEXIS 384 ( Ky. 1922 ).

There was probable cause for warrant where affiant stated he had been on premises and had seen defendant there illegally possessing and selling liquor. Alvey v. Commonwealth, 199 Ky. 655 , 251 S.W. 856, 1923 Ky. LEXIS 903 ( Ky. 1923 ).

Where the affidavit for a search warrant shows that the information on which the warrant was asked for was received one year from the day the warrant was sought, it was much too remote to believe there was probable cause for issuing the search warrant and evidence resulting from such warrant is inadmissible. Stroud v. Commonwealth, 295 Ky. 694 , 175 S.W.2d 368, 1943 Ky. LEXIS 333 ( Ky. 1943 ).

This section guarantees security to citizens against unreasonable search and seizure, not against a search and seizure based upon stated facts creating a probable cause. Boles v. Commonwealth, 304 Ky. 216 , 200 S.W.2d 467, 1947 Ky. LEXIS 620 ( Ky. 1947 ).

Reasonable grounds for believing a person has committed a felony, so as to authorize arrest without warrant is practically the same as probable cause which this section requires for issuance of search warrant. Smallwood v. Commonwealth, 305 Ky. 520 , 204 S.W.2d 945, 1947 Ky. LEXIS 858 ( Ky. 1947 ).

Automobile may not be searched without warrant merely on probable cause for belief that it contains contraband. Commonwealth v. Chaplin, 307 Ky. 630 , 211 S.W.2d 841, 1948 Ky. LEXIS 793 ( Ky. 1948 ).

Probable cause must be determined by neutral court officer, not by police. Commonwealth v. Chaplin, 307 Ky. 630 , 211 S.W.2d 841, 1948 Ky. LEXIS 793 ( Ky. 1948 ).

The judge or magistrate before whom the affidavit is filed and who possesses authority under the law to issue a search warrant is the one who is charged with the duty of determining the question of the existence of probable cause and not the person who executes the affidavit and asks for the warrant. Walker v. Commonwealth, 261 S.W.2d 635, 1953 Ky. LEXIS 1035 ( Ky. 1953 ), overruled, Thompson v. Commonwealth, 472 S.W.2d 884, 1971 Ky. LEXIS 217 ( Ky. 1971 ).

Probable cause is defined as one affording a reasonable ground of suspicion, supported by circumstances sufficiently strong within themselves, to warrant a cautious person in the belief that a person accused is guilty of the offense with which he is charged. Emberton v. Commonwealth, 269 S.W.2d 206, 1954 Ky. LEXIS 961 ( Ky. 1954 ).

The cautious person who is charged with the determination of whether or not probable cause exists is the judge or judicial officer who issues the search warrant and not the person who files or swears to the affidavit. Emberton v. Commonwealth, 269 S.W.2d 206, 1954 Ky. LEXIS 961 ( Ky. 1954 ).

Mere recitation that affiant bought alcohol on particular date was insufficient to constitute probable cause for issuance of warrant, where there was no statement as to location or persons involved. Ruth v. Commonwealth, 298 S.W.2d 300, 1957 Ky. LEXIS 368 ( Ky. 1957 ).

Affidavit was too indefinite to create probable cause with respect to liquor law violation where it was stated that packages were delivered to people from particular building on no certain dates. Abner v. Commonwealth, 298 S.W.2d 314, 1957 Ky. LEXIS 373 ( Ky. 1957 ).

Affidavit charging accused only with the offense of selling a specific quantity of whiskey in a restaurant did not afford probable cause within the meaning of this section for believing that he possessed whiskey for the purpose of sale in his residence and automobiles which were not mentioned or described in the affidavit. Pigg v. Commonwealth, 299 S.W.2d 796, 1957 Ky. LEXIS 427 ( Ky. 1957 ).

A search warrant based upon an affidavit which contained false statements given to the officer making it by an informant was not invalid, it not being required that the person making the affidavit verify the truth of the informant’s statement and it not being proper to go behind the allegations of the affidavit in determining whether they furnish sufficient evidence of probable cause. Caslin v. Commonwealth, 491 S.W.2d 832, 1973 Ky. LEXIS 606 ( Ky. 1973 ).

The court erred in admitting evidence obtained with a search warrant which was issued by a judge upon an affidavit which he had not read and without a proper determination of the existence of probable cause. Rooker v. Commonwealth, 508 S.W.2d 570, 1974 Ky. LEXIS 614 ( Ky. 1974 ).

The probable cause requirement for inspection may be satisfied by demonstrating that the place to be inspected is of the general type due for inspection under statutory or administrative standards setting up categories of places subject to inspection and bearing a rational connection to the goal sought to be achieved by the Kentucky Occupational Health and Safety Act and a showing of “reasonable ground of suspicion of violation” in the particular premises is not required before probable cause to inspect is deemed satisfied. Yocom v. Burnette Tractor Co., 566 S.W.2d 755, 1978 Ky. LEXIS 365 ( Ky. 1978 ).

The U.S. Const., Amend. 4 and this section require a search warrant or court order “based upon a showing of probable cause” to permit a search and inspection by state inspection officials of the closed areas of business premises whose health and safety conditions are statutorily regulated in the absence of any showing that the business is inherently dangerous, or in the absence of any showing that the business was subject to federal or state regulation and/or license, or pervasively regulated or an industry with a long history of regulation. Yocom v. Burnette Tractor Co., 566 S.W.2d 755, 1978 Ky. LEXIS 365 ( Ky. 1978 ).

A determination of whether there was probable cause for a search is a question to be determined by a jury unless there is only one (1) reasonable determination. Yancey v. Carroll County, 876 F.2d 1238, 1989 U.S. App. LEXIS 4731 (6th Cir. Ky. 1989 ).

Because the conditions of two rental cars permitted an inference that defendant might be involved in drug trafficking and that evidence of defendant’s drug trafficking might be found at defendant’s home, the trial court did not err in denying defendant’s suppression motion. Beckam v. Commonwealth, 284 S.W.3d 547, 2009 Ky. App. LEXIS 57 (Ky. Ct. App. 2009).

In issuing a search warrant, a magistrate is entitled to draw reasonable inferences about where the evidence is likely to be kept, based on the nature of the evidence and the type of offense, and that in the case of drug dealers evidence is likely to be found where the dealers live. The principle is one essentially of common sense. Beckam v. Commonwealth, 284 S.W.3d 547, 2009 Ky. App. LEXIS 57 (Ky. Ct. App. 2009).

Where probable cause is lacking, the forceable encounter or stop of a citizen by a police officer must arise from a reasonable articulable suspicion that criminal activity is afoot; it is the reasonableness of the officer’s actions, given the facts available to him at the time, that is the touchstone of the court’s inquiry. Docksteader v. Commonwealth, 802 S.W.2d 149, 1991 Ky. App. LEXIS 4 (Ky. Ct. App. 1991).

There was insufficient probable cause to inspect the interior of appellant’s residence for the purpose of determining whether she was in violation of the city’s existing structures code where the only evidence in support of the court order was the existence of exterior violations. Hughett v. Housing & Urban Dev. Comm'n, 855 S.W.2d 340, 1993 Ky. App. LEXIS 77 (Ky. Ct. App. 1993).

Where defendant had characteristics that matched those of a typical drug courier, where the name on his plane ticket was not his true name, where his driver’s license address was different from his claimed place of residence, where after a brief interchange with police defendant changed his travel plans, where he inquired about cashing a check in order to purchase a plane ticket when he had about $700 in cash in his pocket, and where travel plans he described to taxi driver were to take a bus to Cleveland but he had told police his plans were to visit a friend in Cincinnati, police had probable cause to detain defendant’s suitcase for approximately ten (10) hours while they obtained a search warrant. United States v. Respress, 9 F.3d 483, 1993 U.S. App. LEXIS 29005 (6th Cir. Ky. 1993 ).

Motion for production of defendant’s psychological records fell short of both the procedural requirements and probable cause necessary for issuance of a search warrant since, inter alia, the prosecution had no independent knowledge of defendant’s treatment history and lacked specificity regarding the alleged treatment. Thus, the supreme court held that the manner in which the psychologist’s records were obtained failed to satisfy the reasonableness requirement of the Fourth Amendment and Ky. Const. § 10. Carrier v. Commonwealth, 142 S.W.3d 670, 2004 Ky. LEXIS 155 ( Ky. 2004 ).

Search warrants issued in a murder case were not subject to suppression based on a lack of probable cause because, even though stale information was given regarding marijuana, it was corroborated by evidence found during a trash inspection; moreover, the fact that defendant held a murder weapon at a residence for more than six (6) years showed a secure operational base rather than a mere criminal forum of convenience. Ragland v. Commonwealth, 2004 Ky. LEXIS 284 (Ky. Nov. 18, 2004).

Because the smell of ether and ammonia at defendant’s residence provided sufficient probable cause for the issuance of a search warrant, the trial court did not err in denying defendant’s motion to suppress. Drake v. Commonwealth, 222 S.W.3d 254, 2007 Ky. App. LEXIS 118 (Ky. Ct. App. 2007).

Trial court properly denied defendant’s motion to suppress, as the deputy did not intend to mislead the magistrate in the issuance of the search warrant and the deputy’s affidavit, purged of the inaccurate information, was still sufficient to support a finding of probable cause; the physical description of the trailer, the incorrect address aside, was sufficient to satisfy the particularity requirement of the Fourth Amendment and Ky. Const. § 10. Fentress v. Commonwealth, 279 S.W.3d 168, 2008 Ky. App. LEXIS 204 (Ky. Ct. App. 2008).

Search warrant was not supported by probable cause, as the underlying affidavit did not supply any facts indicating the reliability, experience, or past history of dealing with a confidential informant, and the investigating officer testified that the officer was unfamiliar with the informant and did not believe that other law enforcement officers had past experiences that would reflect on the informant’s reliability; the corroborating details were information that could easily be obtained by any member of the public. Rustin v. Commonwealth, 2010 Ky. App. LEXIS 240 (Ky. Ct. App. Dec. 29, 2010).

Under Ky. Const. § 10, defendant’s motion to suppress was properly denied because, although the tips in the affidavit alone would not be sufficient probable cause for the issuance of a warrant, the evidence found in the trash cans located on defendant’s property, which included marijuana, when added to the anonymous tips, gave the issuing court probable cause to issue a search warrant. Howard v. Commonwealth, 362 S.W.3d 333, 2011 Ky. App. LEXIS 86 (Ky. Ct. App. 2011).

In a rape case, there was probable cause for a search of defendant’s address because the issuing judge could draw reasonable inferences about the video camera, videotapes, and erotic female clothing, and draw reasonable inferences about where they were likely to be kept - defendant’s residence. Elders v. Commonwealth, 395 S.W.3d 495, 2012 Ky. App. LEXIS 138 (Ky. Ct. App. 2012).

63.— — Based on Tip.

An anonymous informant’s tip, in and of itself, did not provide probable cause upon which to justify issuing a search warrant for a vehicle, but after much of the information in the tip was corroborated by the police investigation and surveillance, and defendant and his Corvette returned to the scene, there was an adequate basis for an investigatory stop without a search warrant. Raglin v. Commonwealth, 812 S.W.2d 494, 1991 Ky. LEXIS 48 ( Ky. 1991 ), modified, 1991 Ky. LEXIS 129 (Ky. Aug. 29, 1991).

Trial court erred in denying defendants’ motions to suppress evidence obtained during a warrantless search of defendants’ residence as a tip from a defendant’s ex-wife that marijuana was being cultivated in defendants’ residence, coupled with the destruction of flower pots and grow lights after the police officers’ request for consent to search the residence was denied, did not constitute probable cause for a search and seizure under the exigent circumstances exception to the warrant requirement; the police officers admitted that the tip from the ex-wife, alone, did not enable them to obtain a search warrant, and that the officers did not observe marijuana prior to the unauthorized search and seizure. Commonwealth v. McManus, 107 S.W.3d 175, 2003 Ky. LEXIS 146 (Ky.), cert. denied, 540 U.S. 1017, 124 S. Ct. 571, 157 L. Ed. 2d 431, 2003 U.S. LEXIS 8381 (U.S. 2003).

Trial court properly denied defendant’s motion pursuant to RCr 9.78 to suppress drugs found on defendant; an informant’s tip provided probable cause for an arrest and search, as the tip had sufficient indicia of reliability, and police corroborated the details, so defendant’s rights pursuant to Ky. Const., § 10 were not violated, and even though an initial search of defendant’s vehicle did not reveal any contraband, the officer had sufficient probable cause under KRS 431.005(1)(c) to make a warrantless arrest. Williams v. Commonwealth, 147 S.W.3d 1, 2004 Ky. LEXIS 181 ( Ky. 2004 ), cert. denied, 544 U.S. 986, 125 S. Ct. 1859, 161 L. Ed. 2d 745, 2005 U.S. LEXIS 3132 (U.S. 2005).

Because the tip was from an anonymous informant, and the tip provided no information upon which police could corroborate its reliability and provided no basis for its allegation of criminal activity where the tip stated that a black male, wearing a blue-jean jacket and blue jeans, was riding a purple bicycle and selling narcotics across from a store, using a newspaper to conceal the cocaine, the investigatory stop violated U.S. Const. amend. IV and Ky. Const. § 10. Black v. Commonwealth, 2006 Ky. App. LEXIS 307 (Ky. Ct. App. 2006).

Since the issuance of a search warrant that was based on information from two (2) confidential informants was independent of an illegal forced entry into defendant’s premises, the warrant was valid and items seized thereunder were not subject to suppression under the exclusionary rule of U.S. Const. amend. IV, where the affidavit in support of the search warrant indicated that the informants delivered items to defendant’s premises that were used in the manufacture of methamphetamine. Horn v. Commonwealth, 240 S.W.3d 665, 2007 Ky. App. LEXIS 430 (Ky. Ct. App. 2007).

Identified citizen’s tip that a car’s occupant had stolen mail from his mailbox was entitled to a greater presumption of reliability than an anonymous tip and was sufficient to give an officer reasonable suspicion that defendant was engaged in illegal activity when he stopped her car. Therefore, defendant’s motion to suppress evidence seized from her car pursuant to a consent search was properly denied. Kupper v. Commonwealth, 2006 Ky. App. LEXIS 388 (Ky. Ct. App. Dec. 22, 2006, sub. op., 2006 Ky. App. Unpub. LEXIS 916 (Ky. Ct. App. Dec. 22, 2006).

Defendant’s motion to suppress evidence discovered during the execution of a warrant to search the car he was driving was improperly denied because the tip on which the search was based, to the effect that a gun used in a homicide could be found in the vehicle defendant was driving, lacked information that was adequately predictive, which the officer could have corroborated to justify impounding the vehicle. Defendant’s movement across the center console did not corroborate any aspect of the anonymous tip and certainly did not give rise to suspicion that crime evidence would be found anywhere in the car other than the area within defendant’s immediate control. Abdul-Jalil v. Commonwealth, 324 S.W.3d 433, 2010 Ky. App. LEXIS 190 (Ky. Ct. App. 2010).

64.— Supported by Oath or Affirmation.

Affidavit was not insufficient where sworn to before notary public rather than county judge. Wackenthaler v. Commonwealth, 217 Ky. 316 , 289 S.W. 225, 1926 Ky. LEXIS 48 ( Ky. 1926 ). See Fowler v. Commonwealth, 204 Ky. 525 , 264 S.W. 1075, 1924 Ky. LEXIS 494 ( Ky. 1924 ), overruled in part, Henson v. Commonwealth, 347 S.W.2d 546, 1961 Ky. LEXIS 374 ( Ky. 1961 ).

65.— Affidavits.

Court could properly consider both character of affiant as well as that of informant in consideration of affidavit. Goode v. Commonwealth, 199 Ky. 755 , 252 S.W. 105, 1923 Ky. LEXIS 943 ( Ky. 1923 ).

Warrant issued by judge without affidavit of another was invalid, and evidence obtained thereunder was inadmissible. Clark v. Commonwealth, 204 Ky. 740 , 265 S.W. 280, 1924 Ky. LEXIS 553 ( Ky. 1924 ).

An affidavit to support a search warrant based upon information obtained from others must disclose the names of the affiant’s informants. Mattingly v. Commonwealth, 310 Ky. 561 , 221 S.W.2d 82, 1949 Ky. LEXIS 964 ( Ky. 1949 ).

Truth of statements in affidavit was not allowable area of inquiry at trial. Mattingly v. Commonwealth, 310 Ky. 561 , 221 S.W.2d 82, 1949 Ky. LEXIS 964 ( Ky. 1949 ).

An affidavit based upon information obtained from others must disclose the names of the informants. Emberton v. Commonwealth, 269 S.W.2d 206, 1954 Ky. LEXIS 961 ( Ky. 1954 ).

Affidavit for issuance of search warrant must state facts or circumstances from which judicial officer issuing warrant can determine that probable cause exists for its issuance. Abner v. Commonwealth, 298 S.W.2d 314, 1957 Ky. LEXIS 373 ( Ky. 1957 ). See Caudill v. Commonwealth, 198 Ky. 695 , 249 S.W. 1005, 1923 Ky. LEXIS 529 ( Ky. 1923 ), overruled in part, Henson v. Commonwealth, 347 S.W.2d 546, 1961 Ky. LEXIS 374 ( Ky. 1961 ); Commonwealth v. Diebold, 202 Ky. 315 , 259 S.W. 705, 1923 Ky. LEXIS 362 ( Ky. 1923 ); Blankenship v. Commonwealth, 247 S.W.2d 504, 1952 Ky. LEXIS 707 ( Ky. 1952 ).

The reasons for requiring that an affidavit be filed as a prerequisite to the issuance of a search warrant are (1) to enable the officer, whose jurisdiction is invoked, to determine judicially whether probable cause exists for issuing the warrant, and (2) to fix responsibility for civil redress or criminal prosecution in the event of a false accusation. Abner v. Commonwealth, 298 S.W.2d 314, 1957 Ky. LEXIS 373 ( Ky. 1957 ). See Ruth v. Commonwealth, 298 S.W.2d 300, 1957 Ky. LEXIS 368 ( Ky. 1957 ).

Since under this section search warrant could not be issued except upon affidavit of some person other than issuing officer, justice of the peace had no official duty to prepare such affidavit himself. Wells v. Commonwealth, 329 S.W.2d 210, 1959 Ky. LEXIS 154 ( Ky. 1959 ).

The necessity for a simple statement of how and when an alleged existing fact was observed could be unreasonable only to one who actually does not have enough reliable information to justify the warrant. Henson v. Commonwealth, 347 S.W.2d 546, 1961 Ky. LEXIS 374 ( Ky. 1961 ).

The basis for testing the sufficiency of an affidavit for a search warrant by whether its author could be sued or prosecuted for false swearing no longer exists. Rogers v. Commonwealth, 424 S.W.2d 130, 1968 Ky. LEXIS 445 ( Ky. 1968 ).

Search warrant was valid where based on a complete and proper affidavit even though maker testified he did not swear to it. Clark v. Commonwealth, 418 S.W.2d 241, 1967 Ky. LEXIS 206 ( Ky. 1967 ).

Where the affidavit by an officer in support of a search warrant stated that a confidential informant told him that he, the informant, had personally made a drug purchase on the premises, which was false, the purchase actually having been made by a subinformant, but the officer was not aware of this fact, the affidavit was not false and the search warrant based on it was not invalid, it not being required that the person making the affidavit verify the truth of the informant’s statements, and the rule in Kentucky being that it is not proper to go behind the allegations of the affidavit in determining whether they furnished sufficient evidence of probable cause. Caslin v. Commonwealth, 491 S.W.2d 832, 1973 Ky. LEXIS 606 ( Ky. 1973 ).

The affidavit for a warrant permitting the search of the defendant’s residence was not valid on its face where it merely stated that an observed drug transaction “was made in a controlled environment,” but did not allege that the controlled environment was the defendant’s residence and did not allege any connection between the place where the transaction took place and the residence. Guth v. Commonwealth, 29 S.W.3d 809, 2000 Ky. App. LEXIS 101 (Ky. Ct. App. 2000).

Observations of a deputy during the earlier execution of an arrest warrant for defendant were properly used to support the search warrant because a valid arrest warrant authorized police to enter that part of the curtilage of a private residence necessary to secure the rear door of the residence. Even if the deputy’s affidavit was purged of information which defendant claimed was false, it was still sufficient to support a finding of probable cause, based on the actual observation of various items by the deputy. McCloud v. Commonwealth, 279 S.W.3d 162, 2007 Ky. App. LEXIS 402 (Ky. Ct. App. 2007), cert. denied, 558 U.S. 902, 130 S. Ct. 260, 175 L. Ed. 2d 175, 2009 U.S. LEXIS 7050 (U.S. 2009).

Although the search warrant issued regarding a search of defendant’s house in a murder case did not comply with RCr P. 2.02 because a notary public could not administer oaths to complaining parties and did not comply with RCr P. 13.10 because it was issued by a court clerk, the motion to suppress that defendant filed could still be denied. The violations of those rules was inadvertent, defendant was not prejudiced by the violations, the violations were not of constitutional magnitude because the provisions of Ky. Const. § 10 and the Fourth Amendment, U.S. Const. amend. IV were still met, and the trial court’s findings of fact regarding the motion to suppress was supported by RCr P. 9.78 substantial evidence. Copley v. Commonwealth, 361 S.W.3d 902, 2012 Ky. LEXIS 26 ( Ky. 2012 ).

66.— — Sufficient.

Affidavit for search warrant which described premises as “lunch stand” and gave person’s name and well known street location was sufficient for issuance of such warrant. Rose v. Commonwealth, 208 Ky. 478 , 271 S.W. 548, 1925 Ky. LEXIS 309 ( Ky. 1925 ). See Kinney v. Commonwealth, 200 Ky. 221 , 254 S.W. 751, 1923 Ky. LEXIS 53 ( Ky. 1923 ); Wilkerson v. Commonwealth, 200 Ky. 399 , 255 S.W. 76, 1923 Ky. LEXIS 112 ( Ky. 1923 ); Yopp v. Commonwealth, 202 Ky. 716 , 261 S.W. 251, 1924 Ky. LEXIS 798 ( Ky. 1924 ); Blackburn v. Commonwealth, 202 Ky. 751 , 261 S.W. 277, 1924 Ky. LEXIS 815 ( Ky. 1924 ), overruled in part, Henson v. Commonwealth, 347 S.W.2d 546, 1961 Ky. LEXIS 374 ( Ky. 1961 ); Neal v. Commonwealth, 203 Ky. 353 , 262 S.W. 287, 1924 Ky. LEXIS 908 (Ky. 1924), overruled in part, Henson v. Commonwealth, 347 S.W.2d 546, 1961 Ky. LEXIS 374 ( Ky. 1961 ); Hubbard v. Commonwealth, 207 Ky. 76 , 268 S.W. 839, 1925 Ky. LEXIS 18 ( Ky. 1925 ), overruled in part, Henson v. Commonwealth, 347 S.W.2d 546, 1961 Ky. LEXIS 374 (Ky. 1961).

The court cannot go behind the affidavit for a search warrant to test its sufficiency and whether or not the affidavit is sufficient must be determined by what appears on its face. Stroud v. Commonwealth, 295 Ky. 694 , 175 S.W.2d 368, 1943 Ky. LEXIS 333 ( Ky. 1943 ).

Affidavit which contained statements describing stolen goods, place where they might be found, and good-faith reasons for believing theft had been committed, was sufficient. Strong v. Commonwealth, 297 Ky. 591 , 180 S.W.2d 560, 1944 Ky. LEXIS 773 ( Ky. 1944 ).

Affidavit for search warrant reciting facts constituting basis of affiant’s belief that accused was harboring evidence of guilt, but failing to name source of information, was nevertheless sufficient and valid, since affidavit was not required to allege both the source of information and grounds of belief. Boles v. Commonwealth, 304 Ky. 216 , 200 S.W.2d 467, 1947 Ky. LEXIS 620 ( Ky. 1947 ).

Search of property was legal when made under authority of a warrant issued on an affidavit in which affiant stated that he knew a lawn mower answering the description of the one stolen was on the property three (3) days before. Mattingly v. Commonwealth, 310 Ky. 561 , 221 S.W.2d 82, 1949 Ky. LEXIS 964 ( Ky. 1949 ).

Affidavit was sufficient which stated that liquor was illegally sold by named person at named place. Brake v. Commonwealth, 311 Ky. 436 , 224 S.W.2d 698, 1949 Ky. LEXIS 1193 ( Ky. 1949 ).

Affidavit was sufficient which was based on defendant’s reputation for illegal liquor sales and affiant’s statement that he had purchased whiskey from defendant. Blankenship v. Commonwealth, 247 S.W.2d 504, 1952 Ky. LEXIS 707 ( Ky. 1952 ).

The facts stated in the affidavit of complaint must be sufficient to create in the mind of a reasonable person a belief that the accused harbors evidence of guilt which may be discovered by search. Walker v. Commonwealth, 261 S.W.2d 635, 1953 Ky. LEXIS 1035 ( Ky. 1953 ), overruled, Thompson v. Commonwealth, 472 S.W.2d 884, 1971 Ky. LEXIS 217 ( Ky. 1971 ).

Affidavit was sufficient for issuance of valid search warrant where automobile was completely described, including name of owner and county of registration. Baird v. Commonwealth, 273 S.W.2d 44, 1954 Ky. LEXIS 1147 ( Ky. 1954 ).

To be sufficient an affidavit for search warrant must recite facts in regard to the description of the property sufficient to enable the officers serving the warrant to locate the property as well as to enable the officer issuing the warrant to determine if the property is within the area of his jurisdiction. Massey v. Commonwealth, 305 S.W.2d 755, 1957 Ky. LEXIS 326 ( Ky. 1957 ). See Pigg v. Commonwealth, 299 S.W.2d 796, 1957 Ky. LEXIS 427 ( Ky. 1957 ).

Where the affidavit on which a search warrant was based stated that alcoholic beverages were then on the premises of the defendant and that affiant knew they were on the premises for the purposes of sale through information given him by an informant who had purchased beverages there, in violation of KRS 242.230 , such affidavit was sufficient to constitute probable cause for the issuance of the search warrant and did not violate this section. Hopkins v. Commonwealth, 484 S.W.2d 863, 1971 Ky. LEXIS 53 ( Ky. 1971 ).

Where affidavit described the premises to be searched as: “a pale green house trailer approximately 40 ft. to 50 ft. long parked on the southwest corner of a lot 100 ft. south of Grantline Road near a house with green siding and white trim designated as 2114 Grantline Road,” but failed to mention the name of the city, county or state, the affidavit was sufficiently certain to satisfy the description requirement of this section where the issuing judge was familiar with the area and there was only one Grantline Road and where the officers staking out the trailer had been shot at from it and its occupants had been arrested before the actual search was made. Commonwealth v. Appleby, 586 S.W.2d 266, 1978 Ky. App. LEXIS 682 (Ky. Ct. App. 1978).

Whether an officer suspects an individual to be involved in a misdemeanor or felony offense is not controlling in determining the appropriateness of a patdown; in the final analysis, the test is whether the facts available to the officer at the moment of the search, would warrant a person of reasonable caution to believe the suspect may have a weapon. Docksteader v. Commonwealth, 802 S.W.2d 149, 1991 Ky. App. LEXIS 4 (Ky. Ct. App. 1991).

Though an officer had a reasonable and articulable suspicion that a defendant was armed and dangerous to justify a pat down search for weapons, the officer exceeded the scope of that search by demanding that the defendant remove a pill bottle from his pocket since that bottle was not immediately apparent as contraband. The “plain feel” doctrine did not protect the officer’s search into the defendant’s pocket for the pill bottle because the officer had no way to know whether or not the defendant had a valid prescription for the medicine in the bottle, thus, the contraband nature of the bottle was not readily apparent; the court reversed the denial of the defendant’s motion to suppress that evidence and ordered that felony charges against the defendant be dismissed. Jones v. Commonwealth, 2004 Ky. App. LEXIS 321 (Ky. Ct. App. Oct. 29, 2004), aff'd, 217 S.W.3d 190, 2006 Ky. LEXIS 299 ( Ky. 2006 ).

Because law enforcement officers, after conducting surveillance of a body shop upon a report that illegal drug activity was occurring on the premises, and finding drugs on a visitor after leaving the body shop, had a reasonable suspicion that criminal activity was afoot sufficient to conduct a pat-down search of defendant found on that property, the trial court erred in suppressing both the evidence found as a result of the pat-down and later seized from defendant’s residence. Commonwealth v. Marr, 250 S.W.3d 624, 2008 Ky. LEXIS 93 ( Ky. 2008 ).

Where a detective gathered information for six months from anonymous tips and trash pulls, the information provided in his affidavit was not stale and did indicate that contraband would be found in a particular place; defendant was not entitled to suppress evidence of narcotics and drug paraphernalia seized during the execution of the search warrant. The warrantless trash pulls did not violate Ky. Const. § 10 or the Fourth Amendment. Smith v. Commonwealth, 323 S.W.3d 748, 2009 Ky. App. LEXIS 205 (Ky. Ct. App. 2009).

Trial court did not err in denying defendant’s motion to suppress because an officer’s affidavit provided a substantial basis upon which the trial court could have concluded that there was a fair probability that contraband or evidence of a crime would be found at defendant’s residence. Blane v. Commonwealth, 364 S.W.3d 140, 2012 Ky. LEXIS 54 ( Ky. 2012 ), overruled in part, Roe v. Commonwealth, 2015 Ky. LEXIS 2080 (Ky. Sept. 24, 2015).

67.— — Insufficient.

Affidavit was insufficient which merely stated affiant’s belief. Harvey v. Commonwealth, 226 Ky. 36 , 10 S.W.2d 471, 1928 Ky. LEXIS 22 ( Ky. 1928 ). See Craft v. Commonwealth, 197 Ky. 612 , 247 S.W. 722, 1923 Ky. LEXIS 675 ( Ky. 1923 ); Poston v. Commonwealth, 201 Ky. 187 , 256 S.W. 25, 1923 Ky. LEXIS 259 ( Ky. 1923 ); Pezzerossi v. Commonwealth, 214 Ky. 240 , 282 S.W. 1097, 1926 Ky. LEXIS 302 ( Ky. 1926 ).

Affidavit was not sufficient which did not state time alleged offense occurred. Bentley v. Commonwealth, 239 Ky. 122 , 38 S.W.2d 963, 1931 Ky. LEXIS 732 ( Ky. 1931 ).

Affidavit was insufficient which consisted only of affiant’s unsupported belief. Smallwood v. Commonwealth, 305 Ky. 520 , 204 S.W.2d 945, 1947 Ky. LEXIS 858 ( Ky. 1947 ).

Affidavit was insufficient when it failed to fix time of occurrence of gambling offense and did not give sufficient identification of informant. Owens v. Commonwealth, 309 Ky. 478 , 218 S.W.2d 49, 1949 Ky. LEXIS 745 ( Ky. 1949 ).

Affidavit for search warrant for unlawfully possessed liquor was insufficient where affiant stated he had observed sale of tax-paid liquor. Ratliff v. Commonwealth, 302 S.W.2d 853, 1957 Ky. LEXIS 226 ( Ky. 1957 ).

Where affidavit was insufficient, warrant and search were invalid and resultant evidence was inadmissible. Pigg v. Commonwealth, 299 S.W.2d 796, 1957 Ky. LEXIS 427 ( Ky. 1957 ).

Where affidavit for search warrant merely recited that there was unusual amount of vehicular traffic about certain premises but did not state that the premises had a bootlegging reputation or any other circumstances suggesting a cause for believing that alcoholic beverages were involved it was insufficient and evidence obtained under such warrant was inadmissible. Perkins v. Commonwealth, 383 S.W.2d 916, 1964 Ky. LEXIS 67 ( Ky. 1964 ).

Where affidavit for search warrant was based on information given officers but did not state how and when informant obtained the information, it was defective and search warrant based thereon was void. Bruce v. Commonwealth, 418 S.W.2d 645, 1967 Ky. LEXIS 219 ( Ky. 1967 ).

Where a search warrant was issued on the basis of an affidavit made by a person who gave a false name and could not later be located, the affidavit was invalid and the search warrant likewise was invalid. Hay v. Commonwealth, 432 S.W.2d 641, 1968 Ky. LEXIS 348 ( Ky. 1968 ).

Where, on an affidavit for a search warrant, the personal property sought was not stated and the personal property “used as the means of committing a crime” was not described, the affidavit did not make out probable cause, thus making the search constitutionally impermissible and the evidence of the fruits of the search consequently inadmissible. Day v. Commonwealth, 465 S.W.2d 304, 1971 Ky. LEXIS 463 ( Ky. 1971 ).

Officer’s affidavit in support of the warrant to search defendant’s motel room clearly and materially misled the magistrate, where officer testified that he could see the contraband from outside the defendant’s room when in fact it did not become visible until after forced entry, and officer omitted the fact of the forced entry itself. Johnson v. Commonwealth, 746 S.W.2d 80, 1988 Ky. App. LEXIS 36 (Ky. Ct. App. 1988).

Affidavit stating that “with the intent to cause the death of another person, defendant caused the death of such person” was invalid, because it was not based on the personal observation of the affiant and stated only ultimate facts rather than the basis for affiant’s knowledge. Talbott v. Commonwealth, 968 S.W.2d 76, 1998 Ky. LEXIS 41 ( Ky. 1998 ).

Defendant’s motion to quash a search warrant and suppress evidence seized during a search of defendant’s residence was properly granted after he was charged with possession of a handgun and a firearm by a convicted felon. The search warrant affidavit contained false statement, and the sheriff chose to include misleading information. Commonwealth v. McClain, 2011 Ky. App. LEXIS 44 (Ky. Ct. App. Mar. 11, 2011), review denied, ordered not published, 2012 Ky. LEXIS 548 (Ky. Mar. 14, 2012).

68.— — Probable Cause.

Where police had received a description of a car used in a robbery and its license number, the car was stopped by police, and as defendant was apprehended, he put something under the car which was later determined to be a yellow ski mask similar to the one used in the robbery, the police had probable cause to stop the automobile and search the vehicle; accordingly the search, which subsequently uncovered a gun in the glove compartment, was proper. Estep v. Commonwealth, 663 S.W.2d 213, 1983 Ky. LEXIS 316 ( Ky. 1983 ).

69.— Alteration.

Where defendant was arrested under warrant for one offense, conviction for different offense and all proceedings pursuant thereto were voided by order of justice of peace to change warrant to charge different offense. Gross v. Commonwealth, 288 S.W.2d 353, 1956 Ky. LEXIS 259 ( Ky. 1956 ).

Where a search warrant issued by a District Judge for search of the defendant’s apartment located at certain address was supported by a sworn affidavit and described both the basis for the search and the premises to be searched but where after learning that defendant had moved, warrant was altered by police officer after speaking to judge on phone by striking the defendant’s former address and description and inserting the defendant’s new address and description and after the search the altered warrant was presented to the judge for his signature, the search of defendant’s new apartment was illegal and any evidence seized was improperly admitted at trial. Coker v. Commonwealth, 811 S.W.2d 8, 1991 Ky. App. LEXIS 25 (Ky. Ct. App. 1991).

70.— Issuance.

A search warrant purporting to be issued by a county judge must be signed by him, and is void where signed for him by some one else even in his presence and at his request. Byrd v. Commonwealth, 261 S.W.2d 437, 1953 Ky. LEXIS 1017 ( Ky. 1953 ).

A search under a valid search warrant issued by either sovereignty is a “reasonable search” as required by this section and the United States Const., Amend. 4. Ratliff v. Commonwealth, 302 S.W.2d 853, 1957 Ky. LEXIS 226 ( Ky. 1957 ).

Magistrate who knew what constituted probable cause was not disqualified to issue search warrant by the fact that he had not read recent Supreme Court cases dealing with search warrants nor had he committed the Fourth Amendment to memory. Stephens v. Commonwealth, 522 S.W.2d 181, 1975 Ky. LEXIS 128 (Ky.), cert. denied, 423 U.S. 895, 96 S. Ct. 195, 46 L. Ed. 2d 127, 1975 U.S. LEXIS 2957 (U.S. 1975).

This section does not require suppression of evidence when, in the absence of police misconduct, the search warrant was erroneously issued by a judicial officer. Crayton v. Commonwealth, 846 S.W.2d 684, 1992 Ky. LEXIS 198 ( Ky. 1992 ), cert. denied, 510 U.S. 856, 114 S. Ct. 165, 126 L. Ed. 2d 125, 1993 U.S. LEXIS 5563 (U.S. 1993).

Kentucky Court of Appeals properly reversed a trial court’s denial of defendant’s motion to suppress as the trial commissioner did not exhibit that neutrality and detachment demanded of a judicial officer in charge of issuing search warrants due solely to the appearance of impropriety created by the commissioner’s marriage to an employee of the Commonwealth’s Attorney’s office, a violation of SCR 4.300, Canon 2, and Ky. Const., § 10; there need not be an actual claim of bias or impropriety levied, but the mere appearance that such an impropriety might exist is enough to implicate due process concerns. Commonwealth v. Brandenburg, 114 S.W.3d 830, 2003 Ky. LEXIS 210 ( Ky. 2003 ).

Search warrant issued based on a police officer’s affidavit that the officer had received complaints about possible methamphetamine manufacturing and that the officer had detected a strong smell of ether when the officer visited the defendant’s residence was invalid; the officer had not received the complaints on the day the search warrant was issued and the officer did not know what he was smelling even though he claimed to have smelled either; thus, the search warrant was issued based on information that was either inaccurate or false, which did not support a finding of probable cause. Hensley v. Commonwealth, 248 S.W.3d 572, 2007 Ky. App. LEXIS 397 (Ky. Ct. App. 2007).

71.— Not Obtained.

When defendant alleged his residence was searched illegally, trial court committed reversible error in not instructing jury as to issue as to whether or not defendant had consented to such search. Cline v. Commonwealth, 312 Ky. 645 , 229 S.W.2d 435, 1950 Ky. LEXIS 724 ( Ky. 1950 ).

72.— Validity.

Illegal arrest of defendant rendered inadmissible evidence found upon search incident thereto. Helton v. Commonwealth, 195 Ky. 678 , 243 S.W. 918, 1922 Ky. LEXIS 389 ( Ky. 1922 ).

Where warrant was invalid, looking through defendant’s open door was as much illegal search as was entering defendant’s house and evidence thus obtained was inadmissible. Jordon v. Commonwealth, 199 Ky. 331 , 250 S.W. 1004, 1923 Ky. LEXIS 829 ( Ky. 1923 ).

Defendant did not waive rights under this section by consent to search under assumption police warrant was valid, when such warrant was in fact not valid. Coleman v. Commonwealth, 219 Ky. 139 , 292 S.W. 771, 1927 Ky. LEXIS 302 ( Ky. 1927 ).

Where search warrant was valid on its face, defendant had burden of proving issuance of such warrant on insufficient affidavit. Combs v. Commonwealth, 242 Ky. 793 , 47 S.W.2d 725, 1932 Ky. LEXIS 366 ( Ky. 1932 ).

Where accused consented to search, evidence obtained thereby was admissible though officers did not have proper warrant. Bain v. Commonwealth, 283 Ky. 18 , 140 S.W.2d 612, 1940 Ky. LEXIS 276 ( Ky. 1940 ).

The fact that a resident tells an officer “all right, just search” while the officer is reading to him an invalid search warrant does not constitute a waiver of the search warrant and a consent to the search regardless of the validity of the search warrant. Stroud v. Commonwealth, 295 Ky. 694 , 175 S.W.2d 368, 1943 Ky. LEXIS 333 ( Ky. 1943 ).

Person accused of a crime has burden of proving invalidity of search warrant appearing regular on its face. Boles v. Commonwealth, 304 Ky. 216 , 200 S.W.2d 467, 1947 Ky. LEXIS 620 ( Ky. 1947 ). See Terrell v. Commonwealth, 196 Ky. 288 , 244 S.W. 703, 1922 Ky. LEXIS 504 ( Ky. 1922 ).

Search warrant issued by county judge pro tem and appearing regular on its face, was not invalid for commonwealth’s failure to show that regular judge was absent, disqualified, or unable to serve in own right, since defendant had burden of establishing invalidity of the search warrant. Boles v. Commonwealth, 304 Ky. 216 , 200 S.W.2d 467, 1947 Ky. LEXIS 620 ( Ky. 1947 ).

Where magistrate blocked out the word “judge” in signature block on search warrant form and then signed the warrant in his capacity as magistrate but failed to cross out form’s reference to the quarterly court, validity of the warrant was not affected. Stephens v. Commonwealth, 522 S.W.2d 181, 1975 Ky. LEXIS 128 (Ky.), cert. denied, 423 U.S. 895, 96 S. Ct. 195, 46 L. Ed. 2d 127, 1975 U.S. LEXIS 2957 (U.S. 1975).

Where a search warrant for the search of the home of defendant’s parents authorized the seizure of “blue thread,” which had been used to sew together a gorilla mask found at the scene of a burglary and murder, police seized one (1) spool and two (2) bobbins of what appeared to be black or dark blue thread, and a state police chemist testified that the thread fibers were primarily blue in nature, although the thread itself might appear black to some people and blue to others, the language of the warrant “particularly” described the item as required by the Fourth Amendment to the United States Constitution and described it “as nearly as may be” under this section, and, thus, the thread was properly seized under a valid warrant. Wilson v. Commonwealth, 621 S.W.2d 894, 1981 Ky. LEXIS 277 ( Ky. 1981 ).

Where a District Court trial commissioner who practiced law with the county attorney issued search warrants to search the home of the defendants, such a relationship between the trial commissioner and the county attorney presented an insurmountable conflict of interest and appearance of impropriety which destroyed the trial commissioner’s character as a neutral and detached magistrate capable of issuing search warrants under this section when probable cause existed. Dixon v. Commonwealth, 890 S.W.2d 629, 1994 Ky. App. LEXIS 84 (Ky. Ct. App. 1994).

Trial court did not err in denying defendants’ motion to suppress drug evidence obtained in a search of their home because the warrant was not void when signed by a trial commissioner allegedly not lawfully serving that office. Where the trial commissioner was appointed by a judge who did not reappoint the trial commissioner following his re-election but where the trial commissioner continued uninterrupted in that capacity, he remained a de facto officer with authority to issue search warrants. As such, the warrant and the search performed under the warrant’s authority were valid. Gourley v. Commonwealth, 335 S.W.3d 468, 2010 Ky. App. LEXIS 251 (Ky. Ct. App. 2010).

73.Delay in Filing.

Where the judge did not note the filing date on the search warrant affidavit and filed the document with the court clerk after a 32-day delay he failed to comply with the requirements of CR 5.05 which applied because RCr 13.10 does not prescribe the manner of filing the affidavit; however, the evidence seized in the search was improperly suppressed because of the judge’s actions since there was a properly executed search warrant and the accompanying affidavit established probable cause for the search, thus, the search was valid under this section and the Fourth Amendment of the United States Constitution even though the warrant was not filed with the court clerk until after the search was completed. Commonwealth v. Wilson, 610 S.W.2d 896, 1980 Ky. App. LEXIS 402 (Ky. Ct. App. 1980).

Evidence was improperly suppressed where there was properly executed search warrant accompanied by affidavit establishing probable cause for the search, since the search warrant was properly issued under this section and the Fourth Amendment of the United States Constitution, even though warrant was not filed with clerk of the court until 32 days after the search was conducted. Commonwealth v. Wilson, 610 S.W.2d 896, 1980 Ky. App. LEXIS 402 (Ky. Ct. App. 1980).

72.—Validity.

Trial court did not err by denying defendant’s motion to suppress the results of a blood test because, even though the court order obtained by the police was not titled “search warrant,” it had all of the essential elements of a valid warrant, as probable cause existed to justify the blood test, the officer completed a detailed affidavit and petition subscribed and sworn to before a neutral magistrate that outlined the probable cause and the specific item to be seized. The court order provided what the blood sample was to be tested for and what to do with the sample once it was taken. Whitlow v. Commonwealth, 575 S.W.3d 663, 2019 Ky. LEXIS 205 ( Ky. 2019 ).

74.Liability of Police.

Affidavit sufficiently descriptive of place to be searched and warrant sufficiently fair on its face would preclude civil liability of police for search thereunder. Gross v. Metcalf, 311 Ky. 616 , 224 S.W.2d 938, 1949 Ky. LEXIS 1210 ( Ky. 1949 ).

An officer is not entitled to immunity from an action brought pursuant to 42 USCS § 1983 where that officer relies on a judicial determination of probable cause if that officer knowingly makes false statements and omissions to the judge such that but for these falsities the judge would not have issued the warrant. Yancey v. Carroll County, 876 F.2d 1238, 1989 U.S. App. LEXIS 4731 (6th Cir. Ky. 1989 ).

Police officers are entitled to rely on a judicially secured warrant for immunity from an action brought pursuant to 42 USCS § 1983 for illegal search and seizure unless the warrant is so lacking in indicia of probable cause, that official belief in the existence of probable cause is unreasonable. Yancey v. Carroll County, 876 F.2d 1238, 1989 U.S. App. LEXIS 4731 (6th Cir. Ky. 1989 ).

Summary judgment was granted dismissing claims against a police officer for constitutional violations arising from a vehicle chase and stop, and the accidental shooting of a passenger who refused to exit the vehicle, as the officer’s conduct was reasonable; no reasonable jury could find that a State law constitutional violation had occurred. Tallman v. Elizabethtown Police Dep't, 344 F. Supp. 2d 992, 2004 U.S. Dist. LEXIS 23823 (W.D. Ky. 2004 ), dismissed, 2004 U.S. Dist. LEXIS 15291 (W.D. Ky. May 24, 2004).

Trial court did not err in granting a police officer summary judgment in an action filed by a mother and father alleging that their child was removed from their home based on a false report and that the officer illegally searched their home because the alleged search was nothing more than the officer’s act of following a Cabinet for Health and Family Services (CHFS) social worker through the home as she conducted her investigation, and the mother and father never objected to the officer entering their home; no property was seized, and the officer’s observations during the search had no weight on the CHFS social worker’s determination to place the child with a relative pending drug tests. Morgan v. Bird, 289 S.W.3d 222, 2009 Ky. App. LEXIS 68 (Ky. Ct. App. 2009).

75.City Ordinances.

In its exercise of the police power to prevent the sale of impure drugs, a city may provide for the inspection of such foods by a competent inspector, in places where they are offered for sale, without violating this section of constitution. Keiper v. Louisville, 152 Ky. 691 , 154 S.W. 18, 1913 Ky. LEXIS 734 ( Ky. 1913 ).

76.Inspection Laws.

Law providing that any purchased used or broken items containing brass, copper, zinc or lead had to be placed in separate containers, and that sheriff, deputies, prosecutor, or any other interested party could go on buyer’s land to locate and inspect such containers and items was unconstitutional under this section. Sullivan v. Brawner, 237 Ky. 730 , 36 S.W.2d 364, 1931 Ky. LEXIS 683 ( Ky. 1931 ).

Highway patrolman, in requiring driver of truck to allow truck to be weighed to determine whether weight law was being violated, did not commit an illegal search and seizure. Commonwealth v. Abell, 275 Ky. 802 , 122 S.W.2d 757, 1938 Ky. LEXIS 498 ( Ky. 1938 ).

This section does not prohibit reasonable regulations under the police power providing for search or inspection, especially where the right to engage in the particular business may be withheld or controlled by the state. Commonwealth v. Abell, 275 Ky. 802 , 122 S.W.2d 757, 1938 Ky. LEXIS 498 ( Ky. 1938 ). See Mansbach Scrap Iron Co. v. Ashland, 235 Ky. 265 , 30 S.W.2d 968, 1930 Ky. LEXIS 338 ( Ky. 1930 ).

77.Extraterritorial Effect.

This section has no extraterritorial effect in the case of a lawful impoundment and subsequent search of an automobile by another state’s law enforcement authorities. Helm v. Commonwealth, 813 S.W.2d 816, 1991 Ky. LEXIS 92 ( Ky. 1991 ).

Cited:

Dotson v. Commonwealth, 204 Ky. 658 , 265 S.W. 28, 1924 Ky. LEXIS 543 ( Ky. 1924 ); Shadoan v. Barnett, 217 Ky. 205 , 289 S.W. 204, 1926 Ky. LEXIS 34 , 49 A.L.R. 843 ( Ky. 1926 ); Harris v. Commonwealth, 342 S.W.2d 535, 1960 Ky. LEXIS 98 ( Ky. 1960 ); Clemons v. Commonwealth, 462 S.W.2d 919, 1971 Ky. LEXIS 562 ( Ky. 1971 ); Commonwealth v. Schaefer, 639 S.W.2d 776, 1982 Ky. LEXIS 303 ( Ky. 1982 ); Clark v. Commonwealth, 868 S.W.2d 101, 1993 Ky. App. LEXIS 119 (Ky. Ct. App. 1993); Banks v. Commonwealth, — S.W.3d —, 2000 Ky. App. LEXIS 66 (Ky. Ct. App. 2000).

NOTES TO UNPUBLISHED DECISIONS

1.Search and Seizure.
2. —Particular Searches and Seizures.

Alcohol test results were improperly excluded, as the test was presumptively reliable, the test was performed by the hospital and not ordered by the investigating officer, and there was no indication of criminal behavior by the hospital, which would have been negligent to treat defendant without first obtaining a blood sample to determine what substances were in his system. Williams v. Commonwealth, 2015 Ky. App. Unpub. LEXIS 863 (Ky. Ct. App. Feb. 27, 2015), review denied, ordered not published, 2015 Ky. LEXIS 1984 (Ky. Oct. 21, 2015).

Opinions of Attorney General.

Where officers of the Kentucky department of revenue set up a check point and stop and inspect trucks which are apparently transporting tangible personal property of substantial value by checking the registration of the vehicle and by asking the driver the identity and destination of his cargo but do not make any search of any sort, do not break any seal, unlock any door, or look under any tarpaulin or cargo cover and the driver is not detained or interfered with in any way but is directed to move on even if he does not answer, such actions do not constitute an unlawful search or seizure and do not violate § 10 of the Kentucky constitution. OAG 60-692 .

In the affidavit reasonable grounds are necessary and the mere suspicion or the fact that “everybody knows he is a bootlegger” is inadequate. OAG 62-1035 .

A private party is required under RCr 2.02 and 2.04 to make a sworn complaint before a magistrate to authorize a warrant to issue for arrest for peace purposes. OAG 63-354 .

If the affidavit for the issuance of a search warrant is sufficient to show probable cause, such an affidavit could be used as the complaint in the case. OAG 71-405 .

Police officers have no authority to enter private club property without a valid search warrant merely because they suspect misdemeanors are being or are about to be committed there. OAG 74-313 .

Administrative searches as contemplated by KRS 212.245 require a search warrant. OAG 76-20 .

Since the term criminal warrants embraces search warrants, in the event of the absence from a county of all district judges and all circuit judges and all trial commissioners, the circuit clerk in any county in Kentucky may issue not only arrest warrants but may issue search warrants as well provided that such warrants are prepared by the commonwealth attorney or county attorney, who shall certify, before such warrants are issued, that there is no district judge, circuit judge, or trial commissioner within the county. OAG 78-362 .

A general search of all lockers for rotting food, missing library books, or overall cleanliness could be, under most circumstances, an administrative search; and, the fact that contraband, stolen articles, controlled drugs, alcoholic beverages, dangerous weapons, or the like, were inadvertently discovered during the administrative search would not void the search and any such unlawful items found could stand as evidence and as a basis for cause in possibly a suspension or expulsion hearing. OAG 79-168 .

A search of a student by a school official is generally reasonable if it bears a rational relationship to a legitimate education interest which the school official was pursuing in conducting the search. OAG 79-168 .

A search of the person of an older student should be undertaken only under exigent circumstances and if the search is conducted, it should be supported by well-founded reasonable grounds to believe that the fruits of the search will be items prohibited under well delineated and published policies or regulations of the school, and the objective of the search, if prohibited items are found, will be only to subject the student to school disciplinary action. OAG 79-168 .

A search of the person of a student may be conducted without a physical touching by the school teacher or official. OAG 79-168 .

A search should be conducted only if it is based on reasonable suspicion or reasonable grounds to believe that the search will uncover activity that is inimical to the safety and welfare of a student or other students or activity which is antithetical to the educational atmosphere of the school. OAG 79-168 .

A student in Kentucky’s public common schools has the constitutional right to be secure in his or her person from unreasonable searches and seizures. OAG 79-168 .

A student’s car may not be lawfully searched by school officials when the student is not in or about the car nor can the car be searched by the school officials after the student has been taken to the car by the school officials. OAG 79-168 .

Determination of whether a given search conducted by school official was reasonable depends upon: the nature of the place searched, the existence or absence of school customs or regulations allowing such inspections, the scope of such regulations, the purpose for which the search was initiated, and the extent to which the court determines that the in loco parentis doctrine was applicable. OAG 79-168 .

Even if the primary purpose of a search of an older student is based upon reasonable suspicion and the purpose of the search is for possible school disciplinary action and not criminal prosecution, it must be remembered the “causes” upon which suspension or expulsion may be based are very much with overtones of criminality. OAG 79-168 .

For a student’s consent to a search to be considered voluntary, three (3) obstacles must be overcome: (1) the inherent unreliability of actions taken by children to the prejudice of their constitutional rights; (2) failure to advise one of his right not to consent is a relevant factor in determining its voluntariness; and (3) it is not a valid consent if it is the result of coercion in response to a school official’s demand. OAG 79-168 .

In balancing the rights of the students against state society necessity, accompanied by the loco parentis of the school officials, in regard to student person searches, the lesser standard of “reasonable suspicion” is appropriate. OAG 79-168 .

In the situation where a search is conducted by a law enforcement officer with a school officer without consent, without a search warrant, and without any of the case law delineated exceptions existing (e.g., search incident to lawful arrest), the evidence seized would most likely be subject to the exclusionary rule in any criminal action and some case authority would support a conclusion that the evidence seized could also not be used in school disciplinary actions. OAG 79-168 .

In view of the responsibilities of teachers and school administrators, and in view of the fact that teachers and administrators are state officers or employees, they are within the purview of restraint upon activities of the government imposed by the fourth amendment and this section. OAG 79-168 .

The child’s age is quite critical concerning any class of search but this factor must be highlighted as regards a search of a student’s person. OAG 79-168 .

The effect of the doctrine of in loco parentis and the lesser standard for reasonableness of a search is lost or seriously impaired where a teacher or administrator conducts a search with or prompted by law enforcement officers. OAG 79-168 .

The fact that the teacher and administrator are not law enforcement officers does not preclude the need for the protection of students’ constitutional rights against unreasonable searches. OAG 79-168 .

The reasonableness of the search of the locker or desk of a student and conversely the legitimate expectation of privacy of the student will be affected by the presence or absence of various circumstances, not the least of which is a published local board of education policy regarding the reservation for school officials of the right to inspect the contents of school lockers or desks. OAG 79-168 .

Where an assistant principal spotted several students sitting in a parked car prior to school, contrary to school regulations, went to investigate, discovered the odor of marijuana, asked to be allowed to search the vehicle, and discovered a marijuana cigarette, the search was reasonable since the initial reason for approaching the car was enforcement of reasonable school policy, and the subsequent search was based on reasonable grounds to believe other school regulations were being violated. OAG 79-168 .

While the fourth amendment and this section apply to prohibit unreasonable searches relating to Kentucky students by school teachers or administrators, the doctrine of in loco parentis permits a lesser standard than probable cause for a search to be reasonable. OAG 79-168 .

While the fourth amendment and this section protect people, not places, the nature of a place may have considerable bearing upon whether a person has a legitimate expectation of privacy in the place searched. OAG 79-168 .

Where the law enforcement officers have reasonable grounds or probable cause to arrest the individual for commission of a felony, the officer can seize any evidence on the arrestee’s person. OAG 80-183 .

Where the police believe that there is probable cause that property held by a pawn shop is stolen property, they may, absent exigent circumstances, seize such property only under legally issued warrants. OAG 81-415 .

Blanket searches of students should not take place; however, dogs may sniff lockers or other locations under partial control of the student, and to which the student has access during the school day, and law enforcement officers may assist in the search; however, where criminal sanctions are to apply, suspicion should be individualized. OAG 91-9 .

The use of drug sniffing dogs may be defended where there is evidence of drug or alcohol abuse in the schools and the purpose of the search is to reduce or eliminate the use of illegal substances in the schools through the application where possible, of disciplinary action for violation of school policies. OAG 91-9 .

While courts differ in their view of what constitutes a search, it is advisable to assume that the use of a drug sniffing dog may be held to constitute a search under the fourth amendment, and since the Supreme Court has clearly indicated that searches conducted by public school officials constitute state action, any search, initially, must be justified; reasonable grounds that a search will turn up evidence that a student has violated or is violating a law or rules of the school should exist and the measures adopted should be reasonably related to the objectives of the search and not too intrusive in view of the student’s age, sex or nature of the infraction. OAG 91-9 .

The application of Section 1 of House Bill 7 which revises KRS 439.3401 to offenses committed before the effective date, would constitute an ex post facto law in violation of the United States Constitution and the Kentucky Constitution. OAG 91-26 .

The deletion of Section 2 of House Bill 7, which requires that the amendment contained in Section 1 of the Bill apply only to criminal offenses committed after the effective date of the Bill, will not effect the application of the proposed revision of KRS 439.3401 because of the constitutional prohibition against ex post facto laws and because of the requirement of KRS 446.080(3) that retrospective bills contain an express statement of retroactivity. OAG 91-26 .

Research References and Practice Aids

Cross-References.

Alcoholic beverages, search for and seizure of, KRS 241.090 , 242.370 .

Breaking and entering for purpose of serving writs, KRS 70.180 .

Journal of Mineral Law & Policy.

Krause, Drug and Alcohol Abuse in Mining: An Employer’s Dilemma, 3 J.M.L. & P., 2 (1988).

Kentucky Bench & Bar.

Gilday, A Kentuckian’s Standing to Challenge Tainted Evidence, Vol. 44, No. 1, January, 1980, Ky. Bench & Bar 34.

Kentucky Law Journal.

Kentucky Law Survey: Quick, Criminal Procedure, 66 Ky. L.J. 605 (1977-1978).

Kentucky Law Survey, Deddens, Search and Seizure, 68 Ky. L.J. 611 (1979-1980).

Kentucky Law Survey, Fortune, Criminal Rules, 70 Ky. L.J. 395 (1981-82).

Kentucky Law Survey, Fortune, Criminal Procedure, 71 Ky. L.J. 367 (1982-83).

Kentucky Law Survey, Fortune, Criminal Procedure, 73 Ky. L.J. 347 (1984-85).

Note: Apparent Authority in Computer Searches: Sidestepping the Fourth Amendment, 97 Ky. L.J. 721 (2008/2009).

Note: Cell Phone Searches Incident to Arrest: A New Standard Based on Arizona v. Gant, 99 Ky. L.J. 579 (2010/2011).

Article: Material Witness Detentions After al-Kidd, 100 Ky. L.J. 293 (2011/2012).

Northern Kentucky Law Review.

Comments, The Fourth Amendment and the Administrative Search, 5 N. Ky. L. Rev. 219 (1978).

Notes, Search and Seizures—Kentucky’s Constitutional Requirement of a Search Warrant to Inventory an Automobile—The Exceptions, 7 N. Ky. L. Rev. 125 (1980).

Wintersheimer, State Constitutional Law, 20 N. Ky. L. Rev. 591 (1993).

Wintersheimer, State Constitutional Law Survey, 21 N. Ky. L. Rev. 257 (1994).

Article: Survey: How Kentucky Courts Have Applied the Protective Sweep Doctrine, 35 N. Ky. L. Rev. 179 (2008).

2010 General Law Issue: Note: Sext Ed.: Students’ Fourth Amendment Rights in a Technological Age, 37 N. Ky. L. Rev. 192 (2010).

2012 General Law Issue: Article: Court-Sanctioned Government Overreach: The Supreme Court’s Recent Decision in Ashcroft v. al-Kidd, 39 N. Ky. L. Rev. 589 (2012).

§ 11. Rights of accused in criminal prosecution — Change of venue.

In all criminal prosecutions the accused has the right to be heard by himself and counsel; to demand the nature and cause of the accusation against him; to meet the witnesses face to face, and to have compulsory process for obtaining witnesses in his favor. He cannot be compelled to give evidence against himself, nor can he be deprived of his life, liberty or property, unless by the judgment of his peers or the law of the land; and in prosecutions by indictment or information, he shall have a speedy public trial by an impartial jury of the vicinage; but the General Assembly may provide by a general law for a change of venue in such prosecutions for both the defendant and the Commonwealth, the change to be made to the most convenient county in which a fair trial can be obtained.

NOTES TO DECISIONS

Analysis

1.In General.

Provisions of this section were mandatory. Morris v. Commonwealth, 306 Ky. 349 , 208 S.W.2d 58, 1948 Ky. LEXIS 565 ( Ky. 1948 ).

KRS 510.145 (now repealed), the Rape Shield Law, is constitutional and is a valid exercise by the legislature of this Commonwealth to prevent the victim in a sexually related crime from becoming the defendant at a trial. Smith v. Commonwealth, 566 S.W.2d 181, 1978 Ky. App. LEXIS 519 (Ky. Ct. App. 1978).

This section and the provision of the Sixth Amendment to the United States Constitution providing for compulsory process for witnesses contain substantially identical language and there is no basis for different construction. Ross v. Commonwealth, 577 S.W.2d 6, 1977 Ky. App. LEXIS 932 (Ky. Ct. App. 1977).

Practice of eschewing judicial comment is not a constitutional requirement. Walker v. Commonwealth, 349 S.W.3d 307, 2011 Ky. LEXIS 135 ( Ky. 2011 ).

Trial court should have conducted further review of defendant’s request to make opening and closing statements himself as the fear that he would have used those statements as evidence was not irrefutably dispositive. Lang v. Commonwealth, 556 S.W.3d 584, 2018 Ky. LEXIS 355 ( Ky. 2018 ).

2.Application.

This section applies in all cases where punishment may be inflicted, and protects a jury commissioner in declining to testify as to violations of the statute prescribing the method of selection of jury panels, in that the commissioners authorize clerks of the court to perform acts which they themselves should perform, since, being an officer of the court, the wilful violation of his duty will constitute a contempt, but does not protect the clerks of the court, since, as officers of the court, they have no duties to perform in the selection of juries — and are not otherwise punishable for such acts. Louisville, H. & S. L. R. Co. v. Schwab, 127 Ky. 82 , 105 S.W. 110, 31 Ky. L. Rptr. 1313 , 1907 Ky. LEXIS 119 ( Ky. 1907 ).

This section did not apply to questions of practice, and constitutional rights relative thereto could be waived by defendant or counsel. James v. Commonwealth, 197 Ky. 577 , 247 S.W. 945, 1923 Ky. LEXIS 699 ( Ky. 1923 ).

This section did not apply to denial of right to appeal trial court’s decision on jury panel challenge for cause under criminal law. Lake v. Commonwealth, 209 Ky. 832 , 273 S.W. 511, 1925 Ky. LEXIS 613 ( Ky. 1925 ).

This section applied to bastardy case. Smith v. Mustain, 210 Ky. 445 , 276 S.W. 154, 1925 Ky. LEXIS 703 ( Ky. 1925 ).

Negro defendant in murder case, though undesirable citizen, is entitled to full and fair trial and all the rights guaranteed him under this section. Jackson v. Commonwealth, 215 Ky. 800 , 287 S.W. 17, 1926 Ky. LEXIS 814 ( Ky. 1926 ).

This section and Const., § 7, with respect to jury trials, did not apply to minor police court offenses. Houk v. Starck, 251 Ky. 276 , 64 S.W.2d 565, 1933 Ky. LEXIS 833 ( Ky. 1933 ).

In making the mere disobedience of a court’s order in a civil action a felony, the legislature has indirectly denied the accused person the right of a trial by jury, the right to be heard by himself and counsel, the right to meet witnesses face to face, the right to have compulsory process for obtaining witnesses in his favor and the right of immunity from giving evidence against himself, thus this section applies to make unconstitutional the Acts 1950, ch. 181 amendment to former law that provided that violation of court order for child support constitutes a felony. Commonwealth v. O'Harrah, 262 S.W.2d 385, 1953 Ky. LEXIS 1096 ( Ky. 1953 ).

This section applied to misdemeanors. Butcher v. Commonwealth, 276 S.W.2d 437, 1955 Ky. LEXIS 416 ( Ky. 1955 ).

Just as a party charged with a criminal offense is entitled to be tried by a fair and impartial jury composed of members who are disinterested and free from bias and prejudice, actual, implied, or reasonably inferred, a litigant in a civil suit is likewise entitled to no less than an impartial jury. Bowman v. Perkins, 135 S.W.3d 399, 2004 Ky. LEXIS 73 ( Ky. 2004 ), modified, 2004 Ky. LEXIS 157 (Ky. June 17, 2004).

3.Rights of Accused.

Amendment of the indictment at the close of the evidence in a trial for robbery and assault so as to change the name of robbery victim did not prejudice the defendant or expose him to double jeopardy. Watkins v. Commonwealth, 565 S.W.2d 630, 1978 Ky. LEXIS 356 ( Ky. 1978 ).

In prison disciplinary proceedings for assault by defendant on another inmate, even though defendant was limited by the existence of information the Classification Committee deemed confidential, since the record contained information regarding both the name of the informant who aided in the investigation of the assault and information regarding the potentially hostile climate of the prison the need to protect informants was obvious, there was no violation of defendant’s due process rights in the refusal to reveal information which prison officials deemed confidential. Stanford v. Parker, 949 S.W.2d 616, 1996 Ky. App. LEXIS 177 (Ky. Ct. App. 1996).

The 2003 dismissal of a 1988 rape and sodomy charge indictment based upon 1984-1985 alleged acts for violation of a defendant’s speedy trial rights was proper; using the Barker test, the defendant had not waived the right either explicitly or impliedly (by not moving to dismiss sooner), the delay was attributed to the State, the defendant was prejudiced, and the delay was long. Commonwealth v. Vincent, 134 S.W.3d 17, 2004 Ky. App. LEXIS 98 (Ky. Ct. App. 2004).

Where, under four-part Barker test, defendant’s speedy trial rights were violated, the appeals court stated that dismissal was a severe remedy but the only appropriate remedy for the speedy trial violation. Commonwealth v. Vincent, 134 S.W.3d 17, 2004 Ky. App. LEXIS 98 (Ky. Ct. App. 2004).

Four-part Barker ad hoc analysis was applied to the facts of the dormancy of an indictment against a defendant to determine that his speedy trial rights were violated. The test involved (1) delay’s length, (2) delay’s reason, (3) defendant’s assertion of right, and (4) defendant’s prejudice. Commonwealth v. Vincent, 134 S.W.3d 17, 2004 Ky. App. LEXIS 98 (Ky. Ct. App. 2004).

Whatever prohibition against disclosure KRS 218A.202 makes, it cannot infringe on a criminal defendant’s rights under the U.S. Const. amends. V, VI, XIV or Ky. Const. § 11. Therefore, a trial court did not err by ordering the disclosure of Kentucky All-Schedule Prescription Electronic Reporting reports in a criminal case. Commonwealth v. Bartlett, 311 S.W.3d 224, 2010 Ky. LEXIS 55 ( Ky. 2010 ).

4.— Mental Illness.

Although conviction of defendant found guilty but mentally ill was affirmed because the record was devoid of any evidence with which to consider such issues, decision did not put to rest the issues of the constitutionality of the “guilty but mentally ill (GBMI)” statute and the content of the instructions, especially regarding treatment, to be given to the jury in a GBMI case. The fact that 1996 Kentucky House Concurrent Resolution No. 27 to create a task force to study the involuntary commitment and criminal responsibility laws in Kentucky did not emerge from committee, is evidence that the Legislature, with passage of KRS 504.120 through 504.150 , has put into place a system lacking in adequate funding and has taken no positive measures to correct this deficiency, thus falling clearly in contravention of its own mandate for treatment of individuals found to be GBMI. Brown v. Commonwealth, 934 S.W.2d 242, 1996 Ky. LEXIS 97 ( Ky. 1996 ).

5.— Inmate Legal Aid.

Consent decree by which the Department of Justice and the Attorney General of the Commonwealth settled a 42 USCS § 1983 action brought in federal court by inmates of state prison system in which decree only guaranteed that an inmate legal aid or assistant will not be disciplined for assisting other prisoners in their legal actions if that inmate legal aid or assistant has been appointed or is seeking appointment by a court to provide such assistance and did not create a legal right to have an inmate legal aid or assistant appointed to assist another inmate in the prosecution of a civil action in the Kentucky Court of Justice. May v. Coleman, 945 S.W.2d 426, 1997 Ky. LEXIS 63 ( Ky. 1997 ).

6.—Due Process.

Where a psychiatric evaluation and report on the defendant’s mental competency were made to the trial court but were not made part of the record and where the defendant’s own testimony clearly indicated competency, failure to conduct an evidentiary hearing on the issue of competency did not deprive the defendant of due process. Mishler v. Commonwealth, 556 S.W.2d 676, 1977 Ky. LEXIS 525 ( Ky. 1977 ).

Where a defendant was on notice that the commission of an additional crime was in violation of the conditions for probation, he was not denied due process of law by an order revoking probation after he was convicted of another crime. Brown v. Commonwealth, 564 S.W.2d 21, 1977 Ky. App. LEXIS 908 (Ky. Ct. App. 1977).

Despite persistent felony offender’s claim that he was not granted a hearing regarding the validity of certain prior convictions, and that his guilty pleas concerning those convictions were not knowingly and intelligently entered, there was no due process violation where defendant did not challenge those convictions at a hearing granted to provide him with an opportunity to make such a challenge, and where defendant admitted that prior to pleading guilty, he had spoken to a lawyer, that he was satisfied with the representation so provided, that he understood he had a right to a jury trial, and that he was pleading guilty because he was in fact guilty of the crime charged. Pottinger v. Warden, Northpoint Training Center, 716 F. Supp. 1005, 1989 U.S. Dist. LEXIS 7965 (W.D. Ky. 1989 ), aff'd, 899 F.2d 1222 (6th Cir. Ky. 1990 ).

Defendant’s due process rights were not violated where, after he was tried and convicted for second-degree assault, the prosecutor from defendant’s criminal trial brought on behalf of one (1) of the complaining witnesses and against defendant, a civil action stemming from the same incident. Dick v. Scroggy, 882 F.2d 192, 1989 U.S. App. LEXIS 12120 (6th Cir. Ky. 1989 ).

The employment of private counsel to assist the Commonwealth attorney in the prosecution of a criminal case does not violate due process. Commonwealth v. Hubbard, 777 S.W.2d 882, 1989 Ky. LEXIS 69 ( Ky. 1989 ).

Where evidence in a capital murder case showed that appellant was a 19-year old man of limited mental capabilities involved in a five (5) week marriage with victim that suffered from numerous separations and regular infidelities on the victim’s part, appellant and victim fought constantly, and appellant was aware that victim had been with another man on the night of her death, trial court’s failure to provide the jury with an instruction to consider extreme mental or emotional disturbance as a mitigating factor violated appellant’s constitutional right to individualized sentencing and due process. Hunter v. Commonwealth, 869 S.W.2d 719, 1994 Ky. LEXIS 14 ( Ky. 1994 ).

KRS 218A.350 is a legitimate exercise of legislature’s police power to deter drug trafficking and did not violate due process, even if the substance in question was in fact a simulated substance. Buford v. Commonwealth, 942 S.W.2d 909, 1997 Ky. App. LEXIS 32 (Ky. Ct. App. 1997).

The statutory scheme established for the discretionary transfer of juvenile offenders to Circuit Court, KRS 640.010 , is not constitutionally infirm or violative of a juvenile’s due process rights because it neglects to provide a standard of proof, much less the standard of clear and convincing proof. Stout v. Commonwealth, 44 S.W.3d 781, 2000 Ky. App. LEXIS 86 (Ky. Ct. App. 2000).

Trial court did not have the power to increase defendant’s sentence from 10 years in prison to 20 years in prison as a condition of granting defendant’s request for shock probation, and the state supreme court reversed the trial court’s judgment revoking defendant’s probation and sentencing defendant to 20 years in prison, and directed the trial court to enter a new order which reinstated the sentence of 10 years in prison which the trial court originally imposed. Stallworth v. Commonwealth, 102 S.W.3d 918, 2003 Ky. LEXIS 83 ( Ky. 2003 ).

Where the Commonwealth did not supply the list of the burglary victims’ alleged losses until shortly before defendant’s sentencing and defendant was ordered to pay restitution of $140,000 to the victims, defendant was denied the right to due process under Ky. Const. § 11 in the sentencing hearing; the trial court failed to give defendant adequate notice of the claims against defendant and any opportunity to controvert those claims, no item allegedly stolen was specified, and there was no indication of how any item was valued. Fields v. Commonwealth, 123 S.W.3d 914, 2003 Ky. App. LEXIS 291 (Ky. Ct. App. 2003).

Where a medical examiner was asked by a juror pursuant to the juror’s authority under KRE 614(c) how much alcohol the victim would have had to drink to produce the victim’s blood-alcohol concentration of 0.213 at the victim’s time of death, the witness gave a response based upon a person who weighed 150 pounds, and the trial court refused to allow defense counsel to follow-up the witness’s answer by asking the examiner whether a 250-pound man, such as defendant, would have needed to drink substantially more than eight (8) beers in an hour to achieve that same blood-alcohol level. While this may have violated due process or the right to confront an adverse witness pursuant to Ky. Const. § 11, any error was harmless; while the trial court’s blanket policy disallowing follow-up questions to questions asked by jurors may have encroached on defendants’ rights to impeach adverse witnesses and to elicit testimony tending to establish the claim or defense, the follow-up question at issue was cumulative given that the jury had already been duly apprised of the role intoxicants played in the victim’s death. Wright v. Commonwealth, 2004 Ky. App. LEXIS 57 (Ky. Ct. App. Mar. 5, 2004).

Juvenile case was remanded for an evidentiary hearing as to whether his waiver of his right to a preliminary hearing under KRS 640.010 was voluntarily, knowingly, and intelligently made as the waiver of rights form signed by the juvenile and his counsel did not, standing alone, prove that the waiver was valid as the form did not advise the juvenile of the consequences of waiving a KRS 640.010 hearing, nor did it address the additional considerations set forth in KRS 640.010(2)(b); the infirm waiver was not cured by the juvenile’s colloquy with the district court before the transfer of his case to the circuit court. Humphrey v. Commonwealth, 153 S.W.3d 854, 2004 Ky. App. LEXIS 147 (Ky. Ct. App. 2004).

Defendant’s motion for a new trial was properly denied as the trial judge’s statement at a post-trial meeting with the discharged jury that the jury “did the right thing” did not reflect bias such as to per se deny defendant a fair sentencing, the judge’s disclosure to the jury of excluded evidence did not mean that the judge relied on the evidence in sentencing defendant without his ability to confront that evidence, and the proseuctor’s presence at the meeting was harmless error and did not give the Commonwealth an unfair advantage during sentencing. Bowling v. Commonwealth, 168 S.W.3d 2, 2004 Ky. LEXIS 271 ( Ky. 2004 ), cert. denied, 546 U.S. 1153, 126 S. Ct. 1171, 163 L. Ed. 2d 1133, 2006 U.S. LEXIS 986 (U.S. 2006).

Defendant’s motion for a new trial was properly denied as the trial judge’s meeting with the discharged alternate jurors, in the prosecutor’s presence, did not result in a denial of due process and fair sentencing as the jurors no longer had the power to influence the outcome and nothing they said influenced the judge’s penalty decision. Bowling v. Commonwealth, 168 S.W.3d 2, 2004 Ky. LEXIS 271 ( Ky. 2004 ), cert. denied, 546 U.S. 1153, 126 S. Ct. 1171, 163 L. Ed. 2d 1133, 2006 U.S. LEXIS 986 (U.S. 2006).

Indictment was not insufficient under the Due Process Clause because it apprised defendant of the specific offense with which defendant was charged, the nature of the charged crime, and was not misleading, thereby enabling defendant to set forth a defense. Schrimsher v. Commonwealth, 190 S.W.3d 318, 2006 Ky. LEXIS 104 ( Ky. 2006 ).

Trial court erred in failing to excuse a juror during voir dire, as he was disqualified under KRS 29A.130 and 29A.080 for having served on a grand jury during the previous week. Since defendant was required to use a peremptory challenge to remove the juror, his due process rights were violated and he was entitled to a new trial. Musgrove v. Commonwealth, 2006 Ky. App. LEXIS 339 (Ky. Ct. App. Nov. 17, 2006, sub. op., 2006 Ky. App. Unpub. LEXIS 938 (Ky. Ct. App. Nov. 17, 2006), review denied, ordered not published, 2007 Ky. LEXIS 255 (Ky. Oct. 24, 2007).

Defendant could not claim that his right to due process was violated when the Commonwealth failed to inform defendant of tests on a firearm and the results of those tests because defendant failed to move for additional time to have the gun tested and failed to establish that the test firing was somehow defective. Cross v. Commonwealth, 2007 Ky. App. Unpub. LEXIS 90 (Ky. Ct. App. Apr. 27, 2007), review denied, ordered not published, 2008 Ky. LEXIS 198 (Ky. Apr. 16, 2008).

Trial court properly ordered an in camera review of the Kentucky All-Schedule Prescription Electronic Reporting records after defendant made a good cause showing of relevance since defendant’s rights to due and compulsory process under the Fifth, Sixth, and Fourteenth Amendments of the United States Constitution and Ky. Const. § 11 took precedence over any conflicting language in KRS 218A.202 ; the government had to disclose exculpatory information, and the KASPER data was in the government’s possession. Commonwealth v. Bartlett, 2008 Ky. App. LEXIS 191 (Ky. Ct. App. June 13, 2008), aff'd, 311 S.W.3d 224, 2010 Ky. LEXIS 55 ( Ky. 2010 ).

Trial court did not commit palpable error or violate due process in replaying of the recorded testimony to the jury outside of the courtroom because defendant failed to establish that there was a substantial possibility that he would not have been convicted had he been present when the jury viewed the witness testimony. Stacy v. Commonwealth, 396 S.W.3d 787, 2013 Ky. LEXIS 41 ( Ky. 2013 ).

Appellant waived his due process claim regarding the unavailability of fingernail clippings and his inability to have them tested for DNA evidence because he did not pursue his argument to have the items tested in his appeal from the order refusing his request for DNA testing; his failure to assert his right to have the clippings analyzed foreclosed his right to make that demand later and his claim that the destruction of the clippings deprived him of due process. Garland v. Commonwealth, 458 S.W.3d 781, 2015 Ky. LEXIS 11 ( Ky. 2015 ).

Circuit court's finding that appellant failed to establish that police officers acted in bad faith when they destroyed the fingernail clippings was supported by substantial evidence and thus, was not clearly erroneous because the evidence showed that the officers disposed of the material in accordance with routine protocol for handling collected evidence that was not introduced at trial. Garland v. Commonwealth, 458 S.W.3d 781, 2015 Ky. LEXIS 11 ( Ky. 2015 ).

7.— To Be Heard.

No defendant should ever be denied his inherent right to be heard. McDaniel v. Commonwealth, 181 Ky. 766 , 205 S.W. 915, 1918 Ky. LEXIS 612 ( Ky. 1918 ). See Fugate v. Commonwealth, 254 Ky. 663 , 72 S.W.2d 47, 1934 Ky. LEXIS 133 ( Ky. 1934 ); Carter v. Commonwealth, 258 Ky. 807 , 81 S.W.2d 883, 1935 Ky. LEXIS 251 ( Ky. 1935 ).

Where sheriff, at direction of judge, knocked on door of jury room and inquired regarding verdict, there was no violation of defendant’s right to be heard. Sams v. Commonwealth, 212 Ky. 441 , 279 S.W. 661, 1926 Ky. LEXIS 164 ( Ky. 1926 ).

Accused’s constitutional right to be heard by himself and counsel includes reasonable time for argument, which depends on facts of the case and is within the trial court’s sound discretion. Mills v. Commonwealth, 240 Ky. 359 , 42 S.W.2d 505, 1931 Ky. LEXIS 405 ( Ky. 1931 ). See Sizemore v. Commonwealth, 240 Ky. 279 , 42 S.W.2d 328, 1931 Ky. LEXIS 391 ( Ky. 1931 ).

Insofar as law that provided for disqualification of witnesses prevented the accused in a criminal prosecution from testifying in his own behalf, it violated this section. Bowman v. Commonwealth, 276 Ky. 745 , 125 S.W.2d 213, 1939 Ky. LEXIS 574 ( Ky. 1939 ).

The right to be heard by himself and counsel is an inherent and inalienable right that no defendant should be denied. Chenault v. Commonwealth, 282 Ky. 453 , 138 S.W.2d 969, 1940 Ky. LEXIS 189 ( Ky. 1940 ).

Attorney was well qualified to represent defendant and therefore defendant was not deprived of constitutional right to be heard by himself and counsel. Spears v. Commonwealth, 253 S.W.2d 566, 1950 Ky. LEXIS 1108 ( Ky. 1950 ).

This section specifically provides that an accused has the right to be heard by himself and counsel in all criminal prosecutions. Carson v. Commonwealth, 382 S.W.2d 85, 1964 Ky. LEXIS 334 ( Ky. 1964 ), cert. denied, 380 U.S. 938, 85 S. Ct. 949, 13 L. Ed. 2d 825, 1965 U.S. LEXIS 1727 (U.S. 1965).

There is no valid basis for interpreting the words, “by himself and counsel” as meaning that the only right guaranteed is to appear with counsel. Wake v. Barker, 514 S.W.2d 692, 1974 Ky. LEXIS 331 ( Ky. 1974 ).

Defendant was not entitled to a hearing as to whether he knowingly and voluntarily waived his right to testify during both the guilt and penalty phases of his trial where: (1) he was present during the guilt phase when the trial court asked if the defense intended to put on any proof; (2) he said nothing when defense counsel stated that no witnesses would be called; (3) during the penalty phase, defense counsel called defendant’s mother to testify, so defendant was aware that witnesses could be called during the penalty stage, yet made no indication that he wished to testify; (4) defendant showed no desire to testify; and (5) there was no indication that he disagreed with defense counsel’s strategy or was frustrated or prevented from testifying by defense counsel. Watkins v. Commonwealth, 105 S.W.3d 449, 2003 Ky. LEXIS 120 ( Ky. 2003 ).

Trial court has a duty to conduct further inquiry when it has reason to believe that a defendant’s waiver of his right to testify under the Fifth and Sixth Amendments and Ky. Const., § 11 was not knowingly or intelligently made or was somehow wrongly suppressed. Crawley v. Commonwealth, 107 S.W.3d 197, 2003 Ky. LEXIS 148 ( Ky. 2003 ).

Defendant did not knowingly and voluntarily waive his right to testify under the Fifth and Sixth Amendments and Ky. Const., § 11 where the trial court knew that defendant wished to testify but his defense counsel did not allow him to take the stand; although defendant did not protest his counsel’s decision to keep him from testifying, the trial court knew that defendant wanted to testify, and since the trial court was aware of the conflict, it had a duty to further inquire into the situation. Crawley v. Commonwealth, 107 S.W.3d 197, 2003 Ky. LEXIS 148 ( Ky. 2003 ).

Denial of defendant’s right to testify at her trial for lighting herself and her children on fire, resulting in the death of one of the children, was reversible error where defendant was competent to stand trial, where the right was fundamental, personal, and was not waived by her, and where she was prejudiced by the denial of that right because the trial court was forced to gag her and forcibly drag her form the courtroom in the presence of the jury because defendant was disruptive in trying to assert her right to testify. Even though the collective efforts of the trial court, prosecutors and defendant’s own attorneys was to prevent defendant from harming herself by taking the stand and attempting to commit suicide by insuring she would receive the death penalty, the trial court still had to grant defendant the right to tell her story in her own words. Quarels v. Commonwealth, 142 S.W.3d 73, 2004 Ky. LEXIS 186 ( Ky. 2004 ).

Ky. Const. § 11 provides that in criminal prosecutions the accused has a right to be heard by himself and counsel. Such language has never been held to create a right of allocution in Kentucky. Furnish v. Commonwealth, 2006 Ky. LEXIS 233 (Ky. Sept. 21, 2006), sub. op., 267 S.W.3d 656, 2007 Ky. LEXIS 294 ( Ky. 2007 ).

Although a trial court incorrectly informed defendant that, if he testified in his rape prosecution differently from what he told his attorney during the trial with respect to the issue of force and penetration, he could be prosecuted for perjury, defendant was not deprived of his right to testify on his own behalf as the error was harmless, in that it was highly improbable under the circumstances of the case that competent defense counsel would have advised his client to testify and highly improbable that a well-advised defendant would have elected to present defendant’s testimony. Moreover, there was no claim that defendant was dissuaded from taking the stand because of the judge’s comments. Woolfolk v. Commonwealth, 339 S.W.3d 411, 2011 Ky. LEXIS 64 ( Ky. 2011 ).

8.— Recording of Oral Statements.

The Kentucky Constitution does not require law enforcement officers to electronically record oral statements of an accused during custodial interrogations. Brashars v. Commonwealth, 25 S.W.3d 58, 2000 Ky. LEXIS 104 ( Ky. 2000 ), cert. denied, 531 U.S. 1100, 121 S. Ct. 834, 148 L. Ed. 2d 715, 2001 U.S. LEXIS 566 (U.S. 2001), cert. denied, 531 U.S. 1098, 121 S. Ct. 828, 148 L. Ed. 2d 710, 2001 U.S. LEXIS 528 (U.S. 2001).

Trial court’s failure to sua sponte grant a mistrial was not palpable error as the jury was admonished to disregard a detective’s statement that defendant refused to allow his statement to be tape-recorded; defendant did not preserve the issue for appeal as he sought no further relief after the cautionary instruction was given. Boone v. Commonwealth, 155 S.W.3d 727, 2004 Ky. App. LEXIS 252 (Ky. Ct. App. 2004).

9.—Presence at Trial.

Inadvertent delivery of verdict and polling of jury in defendant’s absence was not substantially prejudicial to defendant where shortly thereafter such procedure was accomplished in his presence. Gray v. Commonwealth, 254 Ky. 1 , 70 S.W.2d 970, 1934 Ky. LEXIS 13 ( Ky. 1 934).

Where court sends jury to premises where homicide has been committed, it is, while taking its view, receiving evidence, and accused has constitutional right to be present. Lee v. Commonwealth, 262 Ky. 15 , 89 S.W.2d 316, 1935 Ky. LEXIS 763 ( Ky. 1935 ).

In trial of one charged with felony accused has right to be present and to be heard by himself and counsel. Lett v. Commonwealth, 284 Ky. 267 , 144 S.W.2d 505, 1940 Ky. LEXIS 483 ( Ky. 1940 ).

Where defendant was absent and default judgment was entered against him, no rights of defendant were violated under this section, since defendant had opportunity but did not use it to have judgment set aside, and since his attorney was present at trial and made no motion for continuance. Cagle v. Stephens, 288 Ky. 404 , 156 S.W.2d 155, 1941 Ky. LEXIS 101 ( Ky. 1941 ).

A petition for a writ of coram nobis is a civil proceeding, and it is not necessary that the convicted defendant be present in court at the hearing on the petition. Elliott v. Commonwealth, 292 Ky. 614 , 167 S.W.2d 703, 1942 Ky. LEXIS 145 ( Ky. 1942 ), cert. denied, 319 U.S. 775, 63 S. Ct. 1434, 87 L. Ed. 1722, 1943 U.S. LEXIS 519 (U.S. 1943).

This section means that the accused has the right to have his counsel present at each stage of the trial. Wilcher v. Commonwealth, 297 Ky. 36 , 178 S.W.2d 949, 1944 Ky. LEXIS 661 ( Ky. 1944 ).

Where young girl was prosecutrix in several prosecutions for contributing to delinquency, against different defendants, attorney representing one defendant had right to be present in court during trial of other defendant, and court could not exclude attorney from courtroom on ground that case was of such character as to justify excluding the public. Beauchamp v. Cahill, 297 Ky. 505 , 180 S.W.2d 423, 1944 Ky. LEXIS 766 ( Ky. 1944 ).

Person charged with a misdemeanor has the constitutional right to be present at his trial, and, notwithstanding the provisions of criminal rule he may not be tried in his absence unless his absence is voluntary. Though he has the right to be present and may waive it, it does not follow that he has the right to be absent in violation of his surety’s undertaking that he would be present. Barnett v. Russell, 299 Ky. 242 , 185 S.W.2d 261, 1945 Ky. LEXIS 408 ( Ky. 1945 ).

While the trial of a prosecution for a misdemeanor may proceed in the absence of the defendant, he is not entitled to demand, by attorney, that it shall proceed in his absence, and when the defendant has given bond for his appearance in court on a certain day, and he fails to appear, his bond may be forfeited and a bench warrant issued for his arrest, notwithstanding that his attorney has appeared for him. Barnett v. Russell, 299 Ky. 242 , 185 S.W.2d 261, 1945 Ky. LEXIS 408 ( Ky. 1945 ).

Defendant’s right to be heard included right of himself and counsel to be present throughout trial. Carver v. Commonwealth, 256 S.W.2d 375, 1953 Ky. LEXIS 731 ( Ky. 1953 ).

Defendant’s right to be present did not extend to preliminary proceedings relative to matters not affecting issue of defendant’s guilt or innocence. Harris v. Commonwealth, 285 S.W.2d 489, 1955 Ky. LEXIS 77 ( Ky. 1955 ).

Unless clearly and unequivocally waived, defendant’s right to be heard and to be present with counsel applied to all stages of trial, especially on capital felony charge, and delivery of verdict in absence of counsel was thus reversible error under this section and United States Const. Amend. 14. Powell v. Commonwealth, 346 S.W.2d 731, 1961 Ky. LEXIS 327 ( Ky. 1961 ).

The fact that neither of appellant’s assigned counsel were with him when he was sentenced did not violate his constitutional rights, since the allocution and formal pronouncement of sentence in the defendant’s presence were not constitutional rights, but statutory procedures only, and from a constitutional standpoint it was sufficient that he had due and timely notice of the entry and import of the judgment and a reasonable opportunity to question it by appropriate motion. McIntosh v. Commonwealth, 368 S.W.2d 331, 1963 Ky. LEXIS 47 ( Ky. 1963 ).

In overruling motions and grounds for new trial based on evidence obtained in a proceeding-styled court of inquiry at which neither accused nor her counsel was permitted to be present and participate, the Circuit Court abused its discretion and, by permitting such evidence and procedure, the constitutional rights of the accused were violated. Hill v. Commonwealth, 474 S.W.2d 95, 1971 Ky. LEXIS 90 ( Ky. 1971 ).

Where, in a prosecution for receiving stolen property, defendant’s attorney, in a conference in chambers out of defendant’s presence, stipulated that the property was stolen and waived the requirement that the Commonwealth establish this fact, the defendant was not deprived of her constitutional right to be present at her trial. Franklin v. Commonwealth, 490 S.W.2d 148, 1972 Ky. LEXIS 13 ( Ky. 1972 ), cert. denied, 414 U.S. 858, 94 S. Ct. 66, 38 L. Ed. 2d 108, 1973 U.S. LEXIS 720 (U.S. 1973).

Trial of a misdemeanor in the absence of the defendant is not, in itself, unconstitutional. Burns v. Commonwealth, 655 S.W.2d 497, 1983 Ky. App. LEXIS 314 (Ky. Ct. App. 1983).

Where, in prosecution for murder, before commencing individual voir dire, the trial court read to the prospective jurors, as a group, questions it intended to ask each of them individually when called before the court for questioning, and each juror was then given a copy of the questions, the court’s procedure allowed prospective jurors to study and formulate their responses outside the presence of the defendant and his counsel, violating his right to be present at every critical stage of the trial including the impaneling of the jury and permitting prospective jurors an opportunity to discuss their responses with one another while awaiting their turn to be questioned by the court. Sanborn v. Commonwealth, 754 S.W.2d 534, 1988 Ky. LEXIS 35 ( Ky. 1988 ).

10.— —Absence.

Where the Commonwealth proves the defendant in a misdemeanor case knew of the trial date and did not appear, an inference then may be indulged that the absence was intentional, knowing and voluntary and consequently waived; then the defendant not only has the right but also the burden of going forward with proof that his absence was not intentional, knowing and voluntary, and was consequently not waived, but the waiver resulting from the indulged inference can only be determined from consideration of all the circumstances that show the waiver so clear and unequivocal as to indicate conscious intent to be absent. Burns v. Commonwealth, 655 S.W.2d 497, 1983 Ky. App. LEXIS 314 (Ky. Ct. App. 1983).

Where defendant on misdemeanor charge confused the date of trial, but appeared as soon as he learned of his mistake, and gave reasonable explanation for his inability to contact his counsel prior to trial, the facts did not unequivocally indicate conscious intent to be absent and trial court’s refusal to grant new trial, after having convicted defendant in absentia, violated his constitutional rights under federal and state Constitutions. Burns v. Commonwealth, 655 S.W.2d 497, 1983 Ky. App. LEXIS 314 (Ky. Ct. App. 1983).

Where defendant did not appear at trial, court abused its discretion when it suggested appointed counsel move to withdraw, then permitted his withdrawal based on defendant’s absence; the court thus deprived defendant of his constitutional right to counsel when needed most at a stage where additional constitutional rights were about to be stripped from him by the same court. Burns v. Commonwealth, 655 S.W.2d 497, 1983 Ky. App. LEXIS 314 (Ky. Ct. App. 1983).

The exclusion of a defendant from a hearing to determine the competency of a witness is not violative of a basic right guaranteed by this section. See v. Commonwealth, 746 S.W.2d 401, 1988 Ky. LEXIS 19 ( Ky. 1988 ).

11.— — —Involuntary.

Under this section one accused of a misdemeanor, who shows by uncontradicted affidavits that he is too sick to attend the trial, is entitled to a continuance, though thereby the testimony of the principal witnesses for the state, without which a conviction is impossible, will be lost. Veal v. Commonwealth, 162 Ky. 250 , 172 S.W. 501, 1915 Ky. LEXIS 43 ( Ky. 1915 ). See Threlkeld v. Commonwealth, 167 Ky. 615 , 181 S.W. 175, 1915 Ky. LEXIS 881 ( Ky. 1915 ); Moore v. Commonwealth, 203 Ky. 350 , 262 S.W. 298, 1924 Ky. LEXIS 913 ( Ky. 1924 ); Talbott v. Commonwealth, 207 Ky. 749 , 270 S.W. 32, 1925 Ky. LEXIS 176 ( Ky. 1925 ).

This section was violated when judge entered jury room and charged jury with no notice to defendant or counsel. Puckett v. Commonwealth, 200 Ky. 509 , 255 S.W. 125, 1923 Ky. LEXIS 137 ( Ky. 1923 ).

Under this section, where defendant was in jail in another county for ten (10) days, he was entitled to a continuance, and trial and conviction in his absence will not be permitted to stand. Wallen v. Commonwealth, 204 Ky. 612 , 264 S.W. 1106, 1924 Ky. LEXIS 516 ( Ky. 1924 ).

Where indictment was filed away under an agreement by Commonwealth Attorney to take no further steps, defendant was entitled to notice of reinstatement of case on docket, and trial without such notice violated this section. Huff v. Commonwealth, 217 Ky. 247 , 289 S.W. 246, 1926 Ky. LEXIS 61 ( Ky. 1926 ).

When defendant and his attorney left courtroom and case was called and tried to point of judge’s writing jury instructions before their return, judge abused his discretion in refusing to allow defense to be made. Mullins v. Commonwealth, 262 S.W.2d 666, 1953 Ky. LEXIS 1108 ( Ky. 1953 ).

Where neither defendant nor his counsel had notice of new trial date for misdemeanor, defendant’s absence was involuntary and trial in his absence was abuse of discretion. Butcher v. Commonwealth, 276 S.W.2d 437, 1955 Ky. LEXIS 416 ( Ky. 1955 ).

Defendant’s absence from trial due to illness was involuntary, and court should have granted motion for new trial, since defendant had right to be present and confront witnesses even in misdemeanor case unless absence was voluntary. Fleming v. Commonwealth, 280 S.W.2d 148, 1955 Ky. LEXIS 128 ( Ky. 1955 ).

Trial court erred in proceeding with voir dire in defendant’s absence due to illness because he had a right to be present under both federal and state constitutions, there was no indication that he waived that right, his counsel objected to the proceeding, there was no way to assess the extent of prejudice that defendant endured by not being able to assist his counsel, and his presence during group voir dire the next day did not rectify the prior violation or remove any harm. Truss v. Commonwealth, 560 S.W.3d 865, 2018 Ky. LEXIS 356 ( Ky. 2018 ).

12.— — — Voluntary.

Trial could not be had without defendant’s presence unless his absence was voluntary. Bates v. Commonwealth, 190 Ky. 338 , 227 S.W. 472, 1921 Ky. LEXIS 444 ( Ky. 1921 ).

Where defendant during six (6) months prior to trial for second-degree burglary engaged in numerous delaying tactics including a barrage of motions, cutting his wrist two (2) days prior to an interview with his psychologist six (6) days prior to trial, refusing to leave the courtroom after his competency hearing and battling with four (4) or five (5) police officers although he was handcuffed and shackled and refusing to leave his jail cell on the date of trial due to an intentional overdose of drugs, waiver of right to be present by defendant from his jail cell was valid and did not violate his right to be present at the criminal proceedings under RCr 8.28 and this section, since defendant was in custody in the jail and subject to the orders of the trial court when he waived his right, so that the defendant was constructively present and the trial court was not in absentia. Scott v. Commonwealth, 616 S.W.2d 39, 1981 Ky. LEXIS 246 (Ky.), cert. denied, 454 U.S. 873, 102 S. Ct. 345, 70 L. Ed. 2d 179, 1981 U.S. LEXIS 3772 (U.S. 1981).

While RCr 8.28(4) provides for trial in absentia of a misdemeanant, a defendant cannot be tried in his absence unless that absence is voluntary and therefore a waiver of his right to be present. Burns v. Commonwealth, 655 S.W.2d 497, 1983 Ky. App. LEXIS 314 (Ky. Ct. App. 1983).

13.— — — Of Counsel.

Conviction of murder was reversed where on reconvening of court on morning following day of submission of case to jury, and in absence of accused’s counsel, stenographer read portion of evidence given by a witness. Lett v. Commonwealth, 284 Ky. 267 , 144 S.W.2d 505, 1940 Ky. LEXIS 483 ( Ky. 1940 ).

One accused of robbery who was forced to trial without opportunity to employ other counsel and without appointment of counsel to represent him, when his attorney was ill in bed, was deprived of constitutional right to counsel and did not have fair and impartial trial. Luntz v. Commonwealth, 287 Ky. 517 , 154 S.W.2d 548, 1941 Ky. LEXIS 586 ( Ky. 1941 ).

If appellant was prejudiced by the manner in which the sentence was adjudged and pronounced, without the presence of his assigned counsel, the judgment was at most erroneous and a motion under CR 60.01, supported by a showing of substantial grounds for relief, was the proper remedial approach. McIntosh v. Commonwealth, 368 S.W.2d 331, 1963 Ky. LEXIS 47 ( Ky. 1963 ).

14.— — Waiver.

The right to be present in court during the trial of a misdemeanor case may be waived. Bates v. Commonwealth, 190 Ky. 338 , 227 S.W. 472, 1921 Ky. LEXIS 444 ( Ky. 1921 ). See Moore v. Commonwealth, 203 Ky. 350 , 262 S.W. 298, 1924 Ky. LEXIS 913 ( Ky. 1924 ); Adams v. Slavin, 225 Ky. 135 , 7 S.W.2d 836, 1928 Ky. LEXIS 711 ( Ky. 1928 ), overruled, Roberts v. Noel, 296 S.W.2d 745, 1956 Ky. LEXIS 238 ( Ky. 1956 ). But see Gholson v. Commonwealth, 308 Ky. 82 , 212 S.W.2d 537, 1948 Ky. LEXIS 848 ( Ky. 1948 ).

Defendant’s right to be heard by himself and counsel could not be waived by either of them in capital case. Riddle v. Commonwealth, 216 Ky. 220 , 287 S.W. 704, 1926 Ky. LEXIS 885 ( Ky. 1926 ). See Kokas v. Commonwealth, 194 Ky. 44 , 237 S.W. 1090, 1922 Ky. LEXIS 99 ( Ky. 1922 ).

Defendant waived his right to be present for return of verdict by not moving for new trial on grounds thereof. Boreing v. Beard, 226 Ky. 47 , 10 S.W.2d 447, 1928 Ky. LEXIS 13 ( Ky. 1928 ).

Defendant waived any right he might have had to be present at preliminary examination and various argument hearings by not asserting such right at times thereof. Harris v. Commonwealth, 285 S.W.2d 489, 1955 Ky. LEXIS 77 ( Ky. 1955 ).

The constitutional requirements may be waived in misdemeanor cases by absence from trial, but not in felony cases. Davenport v. Commonwealth, 368 S.W.2d 327, 1963 Ky. LEXIS 46 ( Ky. 1963 ).

Murder defendant waived any right to be present at an in camera juror inquiry by not requesting to be present; he was represented by able counsel who did not object to his absence and the defendant offered nothing to suggest that his absence was anything other than a personal choice. Byrd v. Commonwealth, 825 S.W.2d 272, 1992 Ky. LEXIS 20 ( Ky. 1992 ), overruled in part, Shadowen v. Commonwealth, 82 S.W.3d 896, 2002 Ky. LEXIS 149 ( Ky. 2002 ).

Defendant’s claim that he was denied his right to be present at all critical phases of the proceedings under RCr 8.28(1) was not preserved for appeal and was reviewed under the palpable error standard of RCr 10.26; defendant was not denied his right to be present where he remained in the courtroom while defense counsel discussed a motion for a directed verdict in the judge’s chambers as defendant did not: (1) object, (2) show prejudice from his absence, (3) suggest changes that he would have made to the instructions, or (4) show any assistance that he would have provided had he been present. Watkins v. Commonwealth, 105 S.W.3d 449, 2003 Ky. LEXIS 120 ( Ky. 2003 ).

Court properly denied defendant’s requests to represent himself because defendant was disruptive throughout the proceedings, further, defense counsel told the court that defendant admitted he made his initial request as “a ploy to disrupt decorum of court,” and the day before trial, he move pro se for the judge to recuse himself, for a change of venue, and for reassignment of counsel. Hummel v. Commonwealth, 306 S.W.3d 48, 2010 Ky. LEXIS 51 ( Ky. 2010 ).

Request for self-representation may be denied upon a determination that the defendant is unable or unwilling to abide by courtroom protocol as he conducts his defense, or if it is made purely as a tactic to disrupt or delay proceedings. Hummel v. Commonwealth, 306 S.W.3d 48, 2010 Ky. LEXIS 51 ( Ky. 2010 ).

15.—Counsel.

It was not improper to refuse to grant a new trial on the basis that defendant’s counsel had been intoxicated during the trial and left the city immediately after addressing the jury, where counsel had been freely engaged by defendant’s mother, there was no complaint as to his legal qualifications and the record indicated that he had conducted his examination of witnesses efficiently. O'Brien v. Commonwealth, 115 Ky. 608 , 74 S.W. 666, 24 Ky. L. Rptr. 2511 , 1903 Ky. LEXIS 137 ( Ky. 1903 ).

Defendants who killed their father, fabricated suicide story to neighbors and coroner’s inquest, then stated they were advised by counsel to repeat such fabrication at trial, were not entitled thereafter to reversal of manslaughter conviction and new trial on ground they were denied right to competent counsel, since perjury on advice of counsel was not ground therefor. Payne v. Commonwealth, 257 Ky. 743 , 79 S.W.2d 204, 1935 Ky. LEXIS 94 ( Ky. 1935 ).

Although accused in felony charge has right to be represented by counsel, he is not legally entitled to have present at trial all the individual attorneys he sees fit to employ. Hatfield v. Commonwealth, 287 Ky. 467 , 153 S.W.2d 892, 1941 Ky. LEXIS 550 ( Ky. 1941 ).

This section guarantees to every person accused of a felony, whether it be a capital offense or not, the right to be represented by counsel unless that right be waived. Gholson v. Commonwealth, 308 Ky. 82 , 212 S.W.2d 537, 1948 Ky. LEXIS 848 ( Ky. 1948 ).

Defendant’s rights were not violated by representation by counsel other than his usual attorneys. Blankenship v. Commonwealth, 247 S.W.2d 504, 1952 Ky. LEXIS 707 ( Ky. 1952 ).

Criminal defendant had right to select counsel and right to assistance thereof throughout prosecution. Parsley v. Commonwealth, 272 S.W.2d 326, 1954 Ky. LEXIS 1087 ( Ky. 1954 ), overruled in part, Brown v. Commonwealth, 2008 Ky. Unpub. LEXIS 26 (Ky. Apr. 24, 2008).

Right of counsel guaranteed by this section extends to a person who pleads guilty. Berry v. Gray, 299 S.W.2d 124, 1957 Ky. LEXIS 399 (Ky.), cert. denied, 356 U.S. 986, 77 S. Ct. 1288, 1 L. Ed. 2d 1145, 1957 U.S. LEXIS 824 (U.S. 1957).

Accused felon had right to counsel unless he waived his right voluntarily and with understanding. Neal v. Commonwealth, 303 S.W.2d 903, 1957 Ky. LEXIS 273 ( Ky. 1957 ).

Right to counsel is part of basic constitutional guaranty of fair trial. Woods v. Commonwealth, 305 S.W.2d 935, 1957 Ky. LEXIS 355 ( Ky. 1957 ).

Counsel who was trustee in defendant’s bankruptcy could not be excluded from defendant’s criminal trial because of his service as trustee in bankruptcy, since under this section defendant could have been represented by anyone employed and present at trial. Harrell v. Commonwealth, 328 S.W.2d 531, 1959 Ky. LEXIS 124 ( Ky. 1959 ).

Defendant’s counsel could not be excluded from the trial due to alleged prejudice, since under this section defendant could be represented by anyone employed and present at trial. Harrell v. Commonwealth, 328 S.W.2d 531, 1959 Ky. LEXIS 124 ( Ky. 1959 ).

This section establishes the right to be represented by any employed counsel who is present for purpose of participation in the trial. Harrell v. Commonwealth, 328 S.W.2d 531, 1959 Ky. LEXIS 124 ( Ky. 1959 ).

Defendant could be questioned by postal inspector at police station without waiting until court appearance and appointment of counsel, since defendant was not under arrest and did not have to answer. Bivens v. Commonwealth, 330 S.W.2d 930, 1959 Ky. LEXIS 208 ( Ky. 1959 ).

Fact that defendant did not seek continuance upon withdrawal of his counsel was immaterial to his rights, since he then had no one to advise him of such rights. Roberts v. Commonwealth, 339 S.W.2d 640, 1960 Ky. LEXIS 480 ( Ky. 1960 ).

Right to counsel could not be lost merely on suspicion that defendant waived it, particularly in capital case. Roberts v. Commonwealth, 339 S.W.2d 640, 1960 Ky. LEXIS 480 ( Ky. 1960 ).

In proceeding to prohibit Circuit Court judge from entering judgment in divorce action petitioner could not contend that his constitutional rights had been violated on ground he was not represented by counsel in divorce action since this section applies to criminal prosecutions alone and has not been extended to suits of a civil nature. Parsley v. Knuckles, 346 S.W.2d 1, 1961 Ky. LEXIS 276 ( Ky. 1961 ).

The right of counsel throughout the trial is firmly rooted in our criminal jurisprudence and is cherished as one of the most important safeguards against an unfair trial. Powell v. Commonwealth, 346 S.W.2d 731, 1961 Ky. LEXIS 327 ( Ky. 1961 ).

Under circumstances, defendant was not deprived of fair trial or right to counsel by being permitted at own insistence to represent himself without counsel. Anderson v. Commonwealth, 353 S.W.2d 381, 1961 Ky. LEXIS 8 ( Ky. 1961 ), cert. denied, 369 U.S. 829, 82 S. Ct. 847, 7 L. Ed. 2d 795, 1962 U.S. LEXIS 1582 (U.S. 1962), cert. denied, 369 U.S. 863, 82 S. Ct. 953, 8 L. Ed. 2d 20, 1962 U.S. LEXIS 1418 (U.S. 1962).

The defendant must not be denied a reasonable opportunity to have counsel at every step in the progress of the trial. McIntosh v. Commonwealth, 368 S.W.2d 331, 1963 Ky. LEXIS 47 ( Ky. 1963 ).

The fact that due process compels the court affirmatively to advise a defendant of his right to counsel at the trial stage does not lead to a conclusion that he must also be thus advised at the appellate stage. McIntosh v. Commonwealth, 368 S.W.2d 331, 1963 Ky. LEXIS 47 ( Ky. 1963 ).

Defendant’s right to counsel was not denied where he had no counsel at arraignment. Maise v. Commonwealth, 380 S.W.2d 230, 1964 Ky. LEXIS 290 ( Ky. 1964 ).

Mere assertion by defendant that he was more capable of conducting his defense than was his attorney did not justify finding that trial court abused its discretion in refusing to dismiss such attorney. Ramsey v. Commonwealth, 399 S.W.2d 473, 1966 Ky. LEXIS 463 (Ky.), cert. denied, 385 U.S. 865, 87 S. Ct. 126, 17 L. Ed. 2d 93, 1966 U.S. LEXIS 889 (U.S. 1966).

An indigent person charged with the commission of a felony must be furnished with counsel. Sizemore v. Commonwealth, 450 S.W.2d 497, 1970 Ky. LEXIS 447 ( Ky. 1970 ).

Where the defendant admitted to his appointed counsel that he committed the crime he was charged with, the defendant’s claims that his counsel was ineffective because he advised him to waive the examining trial and did not advise him to plead not guilty, along with numerous like charges, did not entitle him to post-conviction relief. Stinnett v. Commonwealth, 468 S.W.2d 784, 1971 Ky. LEXIS 344 (Ky.), cert. denied, 404 U.S. 994, 92 S. Ct. 541, 30 L. Ed. 2d 546, 1971 U.S. LEXIS 286 (U.S. 1971).

Public defender’s obligation to defend an indigent may properly be considered to embrace the duty to furnish limited representation. Wake v. Barker, 514 S.W.2d 692, 1974 Ky. LEXIS 331 ( Ky. 1974 ).

An accused may make a limited waiver of the right to counsel, specifying the extent of services he desires of counsel and he is entitled to counsel whose services shall be confined to those reasonably encompassed in the scope of the waiver. Wake v. Barker, 514 S.W.2d 692, 1974 Ky. LEXIS 331 ( Ky. 1974 ).

An accused, who has made valid waiver of counsel has a right, if his waiver so indicates, to proceed to trial without counsel being in any way associated with him. Wake v. Barker, 514 S.W.2d 692, 1974 Ky. LEXIS 331 ( Ky. 1974 ).

The right to counsel guaranteed by this section is no greater than that guaranteed by U.S. Const., Amend. 6 and does not include the right of the defendant’s counsel to be present when witnesses are interviewed by attorneys for the Commonwealth, even though the interview takes place on the morning of the trial and includes an examination of photographs for purposes of identification. Cane v. Commonwealth, 556 S.W.2d 902, 1977 Ky. App. LEXIS 821 (Ky. Ct. App. 1977), cert. denied, 437 U.S. 906, 98 S. Ct. 3094, 57 L. Ed. 2d 1136, 1978 U.S. LEXIS 2299 (U.S. 1978).

The defendant in a criminal case is not entitled as a matter of constitutional right to be informed sua sponte that he could proceed pro se. Baker v. Commonwealth, 574 S.W.2d 325, 1978 Ky. App. LEXIS 618 (Ky. Ct. App. 1978).

There is no precedent in this jurisdiction requiring the trial court to hold a formal hearing to inquire into a defendant’s dissatisfaction with his appointed counsel and desire for a substitute, no hearing was required, and there was no error in failing to hold such a hearing, or in declining to remove appointed counsel and substitute another attorney. Baker v. Commonwealth, 574 S.W.2d 325, 1978 Ky. App. LEXIS 618 (Ky. Ct. App. 1978).

The test for whether an attorney complies with this section is whether he is reasonably likely to render and is rendering reasonably effective assistance to the accused; the defense attorney is required to perform at least as well as a lawyer with ordinary training and skill in criminal law, utilizing that degree of training to conscientiously protect his client’s interests. Ivey v. Commonwealth, 655 S.W.2d 506, 1983 Ky. App. LEXIS 345 (Ky. Ct. App. 1983).

To be afforded the protections provided under this section, a suspect who expressed a desire to deal with police only through counsel was not required to make such request during custodial interrogation, and where at arraignment the accused requested counsel, there could be no further interrogation by authorities, even on an unrelated charge, until counsel had been made available, unless the accused initiated further communications, exchanges or conversations with the police, or unless the accused intended to limit said request. United States v. Wolf, 879 F.2d 1320, 1989 U.S. App. LEXIS 9984 (6th Cir. Ky. 1989 ).

Neither KRS Chapter 31, nor the United States or Kentucky Constitutions, prohibit a Circuit Judge from appointing a volunteer pro bono member of the bar to represent a defendant in a capital case. Wilson v. Commonwealth, 836 S.W.2d 872, 1992 Ky. LEXIS 84 ( Ky. 1992 ), cert. denied, 507 U.S. 1034, 113 S. Ct. 1857, 123 L. Ed. 2d 479, 1993 U.S. LEXIS 2856 (U.S. 1993), overruled in part, St. Clair v. Roark, 10 S.W.3d 482, 1999 Ky. LEXIS 148 ( Ky. 1999 ).

Only an indigent criminal defendant in civil contempt proceedings where imprisonment is a potential punishment or a prisoner who fails to defend himself in a civil action brought against him have a constitutional right to counsel in a civil case. May v. Coleman, 945 S.W.2d 426, 1997 Ky. LEXIS 63 ( Ky. 1997 ).

Psychiatric evaluation, ordered by the court upon notice by a defendant of his intent to assert mental illness as a defense to the crimes he is charged with committing, is not a “critical stage” in the procedural system giving rise to a constitutional necessity for the presence of counsel under Ky. Const. § 11 or the Sixth Amendment. Cain v. Abramson, 220 S.W.3d 276, 2007 Ky. LEXIS 9 ( Ky. 2007 ).

Although under SCR. 3.130-1.6 and SCR 3.130-3.3 defense counsel properly revealed to a trial court that defendant was going to commit perjury by falsely testifying during his criminal trial, defendant’s right to counsel was violated when the counsel left the courtroom during defendant’s testimony, cross-examination, and closing argument. Brown v. Commonwealth, 226 S.W.3d 74, 2007 Ky. LEXIS 126 ( Ky. 2007 ).

Once a trial court is made aware of potential for perjury by defendant, it is appropriate under SCR. 3.130-3.3 for defendant to present contested testimony in narrative form, in his attorney’s presence, and with the attorney continuing to represent him by making appropriate objections on cross-examination regarding portions of the testimony the attorney does not believe to be perjured, and in this manner, defendant is always represented by counsel on matters for which he is entitled to be represented; otherwise, it is a denial of counsel to completely deprive defendant of representation on matters not involving the alleged perjury. Brown v. Commonwealth, 226 S.W.3d 74, 2007 Ky. LEXIS 126 ( Ky. 2007 ).

Notwithstanding a memo of understanding, the Government must have known that its jailhouse informant was deliberately questioning defendant about the murder for which defendant was in jail under an indictment; therefore, the Government was actively involved in inducing the informant to elicit information in violation of the Sixth Amendment and Ky. Const. § 11. McBeath v. Commonwealth, 244 S.W.3d 22, 2007 Ky. LEXIS 288 ( Ky. 2007 ).

A jailhouse informant’s initial, unsolicited approach did not prevent him from thereafter serving as an agent of the government under the Sixth Amendment analysis; similarly, a police officer’s instructions not to ask questions could not prevent the informant from becoming a government agent. Since the informant was questioning the accused, law enforcement “must have known” that their informant was deliberately eliciting incriminating information. McBeath v. Commonwealth, 244 S.W.3d 22, 2007 Ky. LEXIS 288 ( Ky. 2007 ).

Defendant through pro se motions and a letter to the trial court, as well as generally, never unequivocally invoked defendant’s right to proceed without counsel under the Sixth Amendment, U.S. Const. amend. VI, and Ky. Const. § 11 and, thus, not allowing defendant to proceed pro se in defendant’s case involving murder and first-degree robbery was permissible. Although defendant expressed dissatisfaction with counsel, that was not the same as unequivocally invoking the right to proceed pro se. Winstead v. State, 283 S.W.3d 678, 2009 Ky. LEXIS 84 ( Ky. 2009 ).

Defendant’s RCr P. 11.42 motion was reversed and remanded to the circuit court where the appellate court could not find that defendant suffered no prejudice as the fairness of his trial and the possibility of racism being injected into the jury selection process threatened the integrity of the system; defendant’s trial counsel failed to request a Batson hearing and such failure fell below an objective standard of reasonableness. Cobb v. Commonwealth, 2010 Ky. App. LEXIS 80 (Ky. Ct. App. Apr. 30, 2010), cert. denied, 565 U.S. 978, 132 S. Ct. 518, 181 L. Ed. 2d 350, 2011 U.S. LEXIS 7747 (U.S. 2011).

16.— —Adequacy.

Because there was no indication that defendant was prejudiced by trial counsel’s failure to cross-examine the victim about any supposed permission to enter her home, the trial court properly denied his RCr 11.42 motion alleging the ineffective assistance of counsel. Furthermore, even if defendant was permitted to enter the victim’s home, that permission certainly was revoked when he proceeded to steal from her, thereby making his continued presence in the home unlawful. Commonwealth v. Harris, 250 S.W.3d 637, 2008 Ky. LEXIS 96 ( Ky. 2008 ).

As appellant pled guilty to both murder and first-degree robbery, under KRS 532.025(2)(a)2, he was subject to the death penalty; therefore, his counsel did not coerce him to accept a sentence of life without the possibility of parole for 25 years merely by advising him of the risk of being sentenced to death if he went to trial. Roach v. Commonwealth, 384 S.W.3d 131, 2012 Ky. LEXIS 137 ( Ky. 2012 ).

Where the accused desires to have counsel available only for the purpose of consultation during the trial, such kinds of limitations should be recognized so that a record may be made to guard against future claims of ineffective assistance of counsel in regard to what advice was sought and what was given. Wake v. Barker, 514 S.W.2d 692, 1974 Ky. LEXIS 331 ( Ky. 1974 ).

Where no conflict in interest was shown between two (2) codefendants in a prosecution for robbery, neither was denied effective assistance of counsel although separate representation of defendants should generally be insisted upon by trial courts. Mishler v. Commonwealth, 556 S.W.2d 676, 1977 Ky. LEXIS 525 ( Ky. 1977 ).

The “effective assistance” test, and not the “farce and mockery of justice” test should be applied to cases of retained counsel as well as to cases of appointed counsel in determining whether the counsel provided effective assistance; whether an attorney fulfills this test is an issue of fact to be determined by the trial court, and its findings will not be set aside unless they are clearly erroneous. Ivey v. Commonwealth, 655 S.W.2d 506, 1983 Ky. App. LEXIS 345 (Ky. Ct. App. 1983).

It is ineffective assistance of counsel to fail, without a reasonable basis, to present a defense that would compel a dismissal of the charges. Ivey v. Commonwealth, 655 S.W.2d 506, 1983 Ky. App. LEXIS 345 (Ky. Ct. App. 1983).

Where trial court would have been compelled to dismiss charges if counsel had argued that defendant had complied with KRS 440.450 Art. III(1) by waiving extradition and requesting final disposition of the charges that formed the basis for the detainer, and that the Commonwealth had failed to bring him to trial within 180 days thereafter, counsel’s failure to properly raise such defense constituted ineffective assistance of counsel. Ivey v. Commonwealth, 655 S.W.2d 506, 1983 Ky. App. LEXIS 345 (Ky. Ct. App. 1983).

Where defense counsel did not make an opening statement, did not cross-examine the prosecuting witness, and did not present any evidence-in-chief, but counsel’s activities at trial were closely and conscientiously monitored by the judge and the record substantiated that counsel’s handling of the witnesses and closing argument followed a pattern that was reasonably calculated to be in the best interests of defendant, defendant was not denied effective assistance of counsel. Ivey v. Commonwealth, 655 S.W.2d 506, 1983 Ky. App. LEXIS 345 (Ky. Ct. App. 1983).

Statements made by defendant’s attorney during closing argument, to the effect that defendant had committed some of the offenses charged, did not amount to pleading defendant guilty without his consent so as to constitute ineffective assistance of counsel. Ivey v. Commonwealth, 655 S.W.2d 506, 1983 Ky. App. LEXIS 345 (Ky. Ct. App. 1983).

Where, on appeal, counsel argued that the authorities improperly delayed bringing defendant to trial, thus depriving him of an opportunity to be treated in the criminal proceedings as a juvenile, instead of arguing that the Circuit Court was without jurisdiction until a juvenile hearing had been held and a proper waiver order entered, the handling of this issue could not be characterized as ineffective assistance of counsel, because a Circuit Court does have jurisdiction over the subject matter and because a fair reading of the record suggested that had a waiver hearing been held, waiver would have been granted. Ivey v. Commonwealth, 655 S.W.2d 506, 1983 Ky. App. LEXIS 345 (Ky. Ct. App. 1983).

Where trial counsel failed to subpoena favorable alibi witnesses, defendant was denied effective assistance of counsel. Holland v. Commonwealth, 679 S.W.2d 832, 1984 Ky. App. LEXIS 577 (Ky. Ct. App. 1984).

Counsels’ allegedly deficient conduct in a capital case was not so serious as to have undermined the proper functioning of the adversarial process such that the trial could not be relied on as having produced a just result, since, considering the totality of the evidence, it could not be said that but for counsel’s “unprofessional errors” the result of the proceeding would have been different, where counsel presented a sound strategic defense and where the abundance of detrimental evidence, coupled with defendant’s independent decision to represent himself, made it unlikely that the result would have been favorable to defendant had counsel proceeded differently. Gall v. Commonwealth, 702 S.W.2d 37, 1985 Ky. LEXIS 286 ( Ky. 1985 ), cert. denied, 478 U.S. 1010, 106 S. Ct. 3311, 92 L. Ed. 2d 724, 1986 U.S. LEXIS 2668 (U.S. 1986).

Although the failure of trial counsel to properly investigate and discover the dismissal of the underlying felony charge used to support the persistent felony offender conviction was a deficient performance, no prejudice resulted from the deficiency where at the time the guilty plea was accepted, the defendant admitted commission of the qualifying felonies. Taylor v. Commonwealth, 724 S.W.2d 223, 1986 Ky. App. LEXIS 1475 (Ky. Ct. App. 1986).

Defendant must meet a two (2) part test in order to prove ineffective assistance of counsel; he must show (1) that counsel made errors so serious that counsel’s performance fell outside the wide range of professionally competent assistance as the counsel was not performing as counsel guaranteed by the Sixth Amendment and (2) that the deficient performance prejudiced the defense by so seriously affecting the process that there is a reasonable probability that the defendant would not have pled guilty, and the outcome would have been different. Centers v. Commonwealth, 799 S.W.2d 51, 1990 Ky. App. LEXIS 109 (Ky. Ct. App. 1990).

The defendant in a murder trial did not have ineffective assistance of counsel merely because his attorney was also counsel for a codefendant’s attorney on his federal indictments. Defendant failed to show how his counsel’s representation created a conflict of interest either actual or potential that affected the adequacy of his representation. Epperson v. Commonwealth, 809 S.W.2d 835, 1990 Ky. LEXIS 105 ( Ky. 1990 ), modified, 1991 Ky. LEXIS 89 (Ky. July 3, 1991), cert. denied, 502 U.S. 1037, 112 S. Ct. 885, 116 L. Ed. 2d 789, 1992 U.S. LEXIS 60 (U.S. 1992), cert. denied, 502 U.S. 1065, 112 S. Ct. 955, 117 L. Ed. 2d 122, 1992 U.S. LEXIS 393 (U.S. 1992), writ denied, 2013 Ky. Unpub. LEXIS 21 (Ky. Mar. 21, 2013).

Where defendant was indicted by a grand jury in July, 1992 and he pled guilty to the charges, and it was later determined by the courts that grand and petit juries selected between March, 1988 and July, 1992 were improperly empaneled, defendant’s post conviction relief motion on ground of inadequate counsel in that his counsel failed to discover or advise him of the fact that the jury that indicted him was improperly constituted failed where defendant did not show that counsel’s performance was deficient and that there was a prejudice resulting from the deficient performance, since his counsel and a great many other defendant’s counsel believed juries were being selected in accordance with applicable statutes and the fact that one attorney successfully raised the argument that ultimately struck down the procedure did not render the performance of defendant’s counsel either inadequate or ineffective; and Commonwealth would have probably reindicted defendant if counsel had raised the jury issue. Pierce v. Commonwealth, 902 S.W.2d 837, 1995 Ky. App. LEXIS 50 (Ky. Ct. App. 1995).

Trial court properly denied a prisoner’s motion to vacate the judgment in a case in which the prisoner had pleaded guilty and had been sentenced for first degree assault, a violation of KRS 508.010 , as the record refuted the prisoner’s claims that the prisoner’s trial attorneys rendered ineffective assistance given that the attorneys made proper motions, subpoenaed a witness to testify on the prisoner’s behalf, and ultimately secured for the prisoner a significantly lesser sentence under a plea bargain than the prisoner might have faced had the prisoner gone to trial, and where the trial court’s plea colloquy showed that the prisoner understood the nature of the charge, the ramifications of pleading guilty, and the rights which the prisoner was waiving. Kimbler v. Commonwealth, 2003 Ky. App. LEXIS 88 (Ky. Ct. App. 2003).

Advising a client to plead guilty in order to obtain a lesser sentence after investigating his case is not ineffective representation. Kimbler v. Commonwealth, 2003 Ky. App. LEXIS 88 (Ky. Ct. App. 2003).

Counsel’s advice that defendant plead guilty and the paucity of communication with defendant was not ineffective assistance of counsel and did not affect the voluntariness of his guilty plea. Defendant did not show counsel’s legal representation fell outside the wide range of acceptable legal representation where: (1) defendant did not allege that counsel told him he was unwilling or unprepared to proceed to trial; (2) counsel showed he was prepared to proceed to trial; (3) defendant did not identify what evidence he believed could have been excluded on a motion in limine; (4) defendant did not identify what witnesses counsel allegedly failed to investigate; and (5) defendant did not demonstrate a reasonable probability that, but for counsel’s alleged deficiencies, he would have insisted on going to trial since the sentence defendant received on his plea agreement was favorable to him. Rigdon v. Commonwealth, 144 S.W.3d 283, 2004 Ky. App. LEXIS 232 (Ky. Ct. App. 2004).

Record clearly refuted defendant’s allegations that his counsel rendered ineffective assistance by recommending that he enter pleas of guilty but mentally ill to charges of murder, attempted murder, and burglary; even if counsel should have known that the label of guilty but mentally ill would not have any bearing on the medical treatment defendant received in prison, the record showed that this information would not have changed defendant’s decision to enter the plea because he did not do so to obtain a more lenient penalty but in order to avoid a trial and to begin treatment as soon as possible. Carneal v. Commonwealth, 2006 Ky. App. LEXIS 157 (Ky. Ct. App. May 26, 2006), sub. op., 2006 Ky. App. Unpub. LEXIS 600 (Ky. Ct. App. May 26, 2006), aff'd in part and rev'd in part, 274 S.W.3d 420, 2008 Ky. LEXIS 294 ( Ky. 2008 ).

Defendant was not entitled to postconviction relief because his trial attorney’s failure to call an expert witness to rebut the testimony of a forensic expert was not prejudicial; additional expert testimony for defendant was not critical given the fact that two (2) local doctors testified substantially in favor of the defense’s theory of the case. Commonwealth v. York, 215 S.W.3d 44, 2007 Ky. LEXIS 18 ( Ky. 2007 ).

Defendant was not entitled to postconviction relief under RCr 11.42 and CR 59.05 because his trial counsel was not ineffective; the testimony of additional witnesses on the issues of extreme emotional disturbance and duress would have been cumulative because other witnesses had already testified that defendant had been depressed and had begun heavy drug usage after his divorce and that defendant had changed due to his friendship with and had possibly been frightened by the co-defendant. Halvorsen v. Commonwealth, 258 S.W.3d 1, 2007 Ky. LEXIS 177 ( Ky. 2007 ).

Because duress was not a defense to intentional murder under KRS 501.090 , it was reasonable trial strategy by defendant’s trial counsel to present such evidence at the penalty stage instead of the guilt/innocence phase. Halvorsen v. Commonwealth, 258 S.W.3d 1, 2007 Ky. LEXIS 177 ( Ky. 2007 ).

Because a juvenile’s right of appeal was lost solely due to the negligence of the juvenile’s prior counsel, the juvenile was entitled to a belated appeal. A.M. v. Commonwealth, 217 S.W.3d 271, 2007 Ky. App. LEXIS 51 (Ky. Ct. App. 2007).

Because defendant’s trial counsel was not required to advise him of the collateral consequences of a guilty plea, specifically, deportation, counsel’s failure to advise defendant of that issue, or his act of advising defendant incorrectly, could not support a postconviction ineffective assistance of counsel claim. Commonwealth v. Padilla, 253 S.W.3d 482, 2008 Ky. LEXIS 3 ( Ky. 2008 ), rev'd, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284, 2010 U.S. LEXIS 2928 (U.S. 2010).

Because the failure of counsel to advise a defendant about every possible consequence of a guilty plea was not grounds for setting aside said plea, and defendant failed to show that the Circuit Court’s order denying him relief was clearly erroneous, said denial was upheld on appeal. Caudill v. Commonwealth, 2008 Ky. App. LEXIS 71 (Ky. Ct. App. Mar. 14, 2008).

While RCr 11.42 did not require an evidentiary hearing, appellant inmate was entitled to a hearing on his claim that his trial counsel was ineffective for failing to ask the trial court for the correct number of peremptory challenges because appellant alleged identifiable prejudice at trial due to the alleged error; appellant identified a juror that he wished to strike and would have had two other peremptory strikes if the trial court had not erred in the amount allocated. Lawson v. Commonwealth, 2009 Ky. App. LEXIS 143 (Ky. Ct. App. Aug. 21, 2009).

Given the nature of defendant's claims and the fact that counsel spoke against those claims, counsel was burdened by an actual conflict of interest, and defendant was therefore constructively denied assistance of counsel altogether at the pre-sentencing plea-withdrawal motion, which was a “critical stage” of the criminal proceedings, resulting in a per se violation of defendant's right to counsel. Commonwealth v. Tigue, 459 S.W.3d 372, 2015 Ky. LEXIS 1621 ( Ky. 2015 ).

Counsel's outright refusal to consider pursuing any strategic goal other than avoidance of a possible death sentence through pleading guilty ran afoul of their duty to consult with the client regarding defense strategy. Commonwealth v. Tigue, 459 S.W.3d 372, 2015 Ky. LEXIS 1621 ( Ky. 2015 ).

Defendant was deprived of his right to counsel where although counsel prepared a motion for him to withdraw his guilty plea, she did not assist him during the hearing on the motion, and her statement that it was not prudent to offer responses to accusations in the motion implied that her responses would have been adverse to her client's interests, thereby creating an actual conflict of interest. Zapata v. Commonwealth, 516 S.W.3d 799, 2017 Ky. LEXIS 141 ( Ky. 2017 ).

17.— —Failure to Request.

Failure to have counsel appointed was not violation of defendant’s right thereof when he did not request it. Ward v. Hurst, 300 Ky. 464 , 189 S.W.2d 594, 1945 Ky. LEXIS 567 ( Ky. 1945 ).

If defendant was informed of his rights and did not request counsel, statements made were admissible. Carson v. Commonwealth, 382 S.W.2d 85, 1964 Ky. LEXIS 334 ( Ky. 1964 ), cert. denied, 380 U.S. 938, 85 S. Ct. 949, 13 L. Ed. 2d 825, 1965 U.S. LEXIS 1727 (U.S. 1965).

18.— — —Confession.

Defendants waived right to counsel by not requesting it before they confessed. Scamahorne v. Commonwealth, 394 S.W.2d 113, 1965 Ky. LEXIS 174 ( Ky. 1965 ).

Defendant’s confession was admissible when made without request for and denial of counsel. Smith v. Commonwealth, 402 S.W.2d 686, 1966 Ky. LEXIS 370 ( Ky. 1966 ).

Where, at the beginning of a murder suspect’s interview by the police she was advised of her Miranda rights and told that she had a right to a lawyer if she could not afford one, where she was not under arrest at the time she was so advised, and where she voluntarily went to the police headquarters and was not subject to custodial interrogation, it was not reversible error for the trial judge to refuse to suppress statements made by defendant before she requested an attorney. Brown v. Commonwealth, 780 S.W.2d 627, 1989 Ky. LEXIS 106 ( Ky. 1989 ), cert. denied, 494 U.S. 1087, 110 S. Ct. 1825, 108 L. Ed. 2d 954, 1990 U.S. LEXIS 1938 (U.S. 1990).

This section and the Fifth Amendment of the U.S. Constitution are coextensive and provide identical protections against self-incrimination; state action is indispensable. Thus, this section and common law doctrine do not require suppression of a confession coerced or improperly obtained by private parties. Commonwealth v. Cooper, 899 S.W.2d 75, 1995 Ky. LEXIS 77 ( Ky. 1995 ).

Although a police detective brusquely threatened to terminate an interview and seek an arrest warrant, defendant was not under arrest and was free to leave; thus, Miranda warnings were not necessary and defendant’s motion to suppress a confession to theft of controlled substances and possession of a controlled substance in violation of KRS 218A.1418(2)(b) and 218A.1416 , respectively, was properly denied. Minshall v. Commonwealth, 2003 Ky. App. Unpub. LEXIS 201 (Ky. Ct. App. Apr. 25, 2003).

Court of appeals erred in affirming the denial defendant's motion to suppress statements he made during a custodial interrogation in the absence of counsel on the ground that the Supreme Court of Kentucky would apply United States Supreme Court precedent; while the Supreme Court of Kentucky respects the United States Supreme Court's authority for the interpretation of federal law, it cannot tether the Kentucky Constitution to the Supreme Court's evolving standards of Sixth Amendment protections. Keysor v. Commonwealth, 486 S.W.3d 273, 2016 Ky. LEXIS 170 ( Ky. 2016 ).

Police and prosecutorial authorities are at liberty to question a willing suspect about new offenses without regard to whether there is prosecution pending on other charges, whether similar or different in nature, but they must be cognizant that the evidence thus obtained may not be used to incriminate him or her on pending charges wherein he or she is represented unless his or her counsel is present. Keysor v. Commonwealth, 486 S.W.3d 273, 2016 Ky. LEXIS 170 ( Ky. 2016 ).

19.— — Appointment by Court.

This section does not require a trial court to appoint counsel for one accused of committing a felony when he does not desire the aid of counsel, and the court can see that the person charged is a person of at least ordinary intelligence who can fully appreciate the position which he occupies, but it does make it the court’s duty to see that a defendant who is without education, and does not know, and who has not mind enough to know, when he is placed in jeopardy, is properly represented. Williams v. Commonwealth, 110 S.W. 339, 33 Ky. L. Rptr. 330 (1908).

Refusal to allow newly employed counsel to make argument to jury was not violative of this section where defendant had been competently represented throughout by court-appointed attorney. Spencer v. Commonwealth, 237 Ky. 283 , 35 S.W.2d 319, 1931 Ky. LEXIS 594 ( Ky. 1931 ), overruled, Harrell v. Commonwealth, 328 S.W.2d 531, 1959 Ky. LEXIS 124 ( Ky. 1959 ).

It is not the duty of the court to assign counsel to the accused unless he requests it, and shows that he is financially unable to employ counsel, or lacks mental capacity to conduct the defense, or understand its nature. Holland v. Commonwealth, 241 Ky. 813 , 45 S.W.2d 476, 1932 Ky. LEXIS 8 ( Ky. 1932 ).

Defendant was entitled to have counsel appointed in all cases where he was unable to procure counsel. Fugate v. Commonwealth, 254 Ky. 663 , 72 S.W.2d 47, 1934 Ky. LEXIS 133 ( Ky. 1934 ).

When on morning after return of indictment previously employed counsel for accused was absent without fault of accused and court appointed counsel to defend accused, refusal to grant accused a continuance was prejudicial error. Chenault v. Commonwealth, 282 Ky. 453 , 138 S.W.2d 969, 1940 Ky. LEXIS 189 ( Ky. 1940 ).

The fact that the person appointed by the court to represent the defendant in a criminal case as attorney was later found not to be a licensed attorney did not render the judgment of conviction void, and it could not be questioned by a writ of habeas corpus. It is probable that even intentional failure of court to appoint attorney to defend accused would not render judgment void. If defendant had any remedy in such case it was by application to the court in which he was tried for a writ of coram nobis. Smith v. Buchanan, 291 Ky. 44 , 163 S.W.2d 5, 1942 Ky. LEXIS 162 ( Ky. 1942 ).

Where defendant, convicted on habitual criminal charge, made no motion in the trial court for appointment of counsel to represent him, failure of court to appoint counsel was not grounds for reversal. Ward v. Hurst, 300 Ky. 464 , 189 S.W.2d 594, 1945 Ky. LEXIS 567 ( Ky. 1945 ).

This section required court to appoint attorney for one unable to employ counsel, but did not require Commonwealth to compensate such attorney. Calhoun v. Commonwealth, 301 Ky. 789 , 193 S.W.2d 420, 1946 Ky. LEXIS 574 ( Ky. 1946 ).

Court had to appoint counsel for defendant who did not request it unless he waived such right intelligently, understandingly and voluntarily. Gholson v. Commonwealth, 308 Ky. 82 , 212 S.W.2d 537, 1948 Ky. LEXIS 848 ( Ky. 1948 ).

Alleged error of court in not appointing counsel for defendant was not subject to review by Court of Appeals because defendant’s motion for new trial did not include alleged error. Philpot v. Commonwealth, 247 S.W.2d 499, 1952 Ky. LEXIS 704 ( Ky. 1952 ).

Failure of court to appoint counsel upon showing of necessity therefor constituted grounds for new trial, and showing that defendant could not produce sufficient financial resources to employ counsel constituted such necessity. Hart v. Commonwealth, 296 S.W.2d 212, 1956 Ky. LEXIS 187 ( Ky. 1956 ).

Defendant did not waive right to counsel by discharging his attorneys on day of trial, and court erred in not thereon informing defendant of such right or appointing counsel for him. Schneider v. Commonwealth, 332 S.W.2d 250, 1959 Ky. LEXIS 14 ( Ky. 1959 ).

That portion of this section recognizing a right to counsel does not require that the court appoint counsel for one making a request therefor prior to arrest and beyond that it is not necessary to fix the precise time when counsel must be appointed. Bivens v. Commonwealth, 330 S.W.2d 930, 1959 Ky. LEXIS 208 ( Ky. 1959 ).

Defendant’s insistence on choosing his own rather than court-appointed counsel was not waiver of counsel. Roberts v. Commonwealth, 339 S.W.2d 640, 1960 Ky. LEXIS 480 ( Ky. 1960 ).

Defendant had to make some attempt to select and obtain his own counsel, as right to counsel did not mean that court had to appoint counsel of defendant’s choice. Hargrove v. Commonwealth, 362 S.W.2d 37, 1962 Ky. LEXIS 254 ( Ky. 1962 ).

Where none of defendant’s court-appointed lawyers adequately prepared for trial, denial of right to effective counsel resulted and verdict and judgment were invalid, notwithstanding court had appointed entire county bar. Wedding v. Commonwealth, 394 S.W.2d 105, 1965 Ky. LEXIS 171 ( Ky. 1965 ).

Failure to appoint counsel for defendant at preliminary hearing was not denial of due process unless it was prejudicial. Turner v. Commonwealth, 404 S.W.2d 13, 1966 Ky. LEXIS 279 (Ky.), cert. denied, 385 U.S. 888, 87 S. Ct. 187, 17 L. Ed. 2d 116, 1966 U.S. LEXIS 1094 (U.S. 1966).

The elements of due process must be met in juvenile proceedings in state courts including the right to appointment of counsel. Workman v. Commonwealth, 429 S.W.2d 374, 1968 Ky. LEXIS 743 ( Ky. 1968 ).

The trial judge is vested with a broad discretion in the selection and appointment of counsel for indigent defendants. Stinnett v. Commonwealth, 468 S.W.2d 784, 1971 Ky. LEXIS 344 (Ky.), cert. denied, 404 U.S. 994, 92 S. Ct. 541, 30 L. Ed. 2d 546, 1971 U.S. LEXIS 286 (U.S. 1971).

Where the judge kept a list of the 15 attorneys most recently admitted to practice in the county from which he made all appointments to defend indigent defendants, the trial judge did not abuse his discretion in using this method of selection. Stinnett v. Commonwealth, 468 S.W.2d 784, 1971 Ky. LEXIS 344 (Ky.), cert. denied, 404 U.S. 994, 92 S. Ct. 541, 30 L. Ed. 2d 546, 1971 U.S. LEXIS 286 (U.S. 1971).

Trial court has the power to appoint standby counsel for the accused if it appears necessary for an orderly trial even though the accused has made a waiver of the right to counsel and indicated the desire to proceed with his own defense. Wake v. Barker, 514 S.W.2d 692, 1974 Ky. LEXIS 331 ( Ky. 1974 ).

Where an accused has entered upon the trial with assistance of counsel on a specified limited basis, that counsel may subsequently be required by trial court to take such charge of defense as may be required by reason of disorderly, disruptive or disrespectful conduct of accused. Wake v. Barker, 514 S.W.2d 692, 1974 Ky. LEXIS 331 ( Ky. 1974 ).

Where defendant requested the appointment of designated counsel, but did not demonstrate any good cause for having rejected the court-appointed counsel, and a review of the entire record unequivocally demonstrated that the defendant himself either was skilled in the law or, if not himself skilled in the law, had the assistance of skilled counsel in his pretrial and post trial procedures and in his courtroom demeanor, the trial court was not clearly erroneous in refusing to appoint counsel other than the one who was appointed. Dunn v. Commonwealth, 573 S.W.2d 651, 1978 Ky. LEXIS 414 ( Ky. 1978 ).

Where the defendant never made any request to proceed pro se, there was no denial of any right to which he was entitled when an attorney was appointed to defend him. Baker v. Commonwealth, 574 S.W.2d 325, 1978 Ky. App. LEXIS 618 (Ky. Ct. App. 1978).

Because the trial court improperly denied appointment of counsel based upon the mere fact that a property bond had been posted to secure defendant’s release following his indictment, the court failed to apply the factors to determine defendant’s indigency as provided in KRS 31.120 , and the court did not determine whether defendant was in fact indigent, defendant’s conviction for possession was reversed. Tinsley v. Commonwealth, 185 S.W.3d 668, 2006 Ky. App. LEXIS 61 (Ky. Ct. App. 2006).

If a defendant raises the issue of indigency, a hearing must be held thereon for a determination in accordance with the requirements set forth in KRS ch. 31, and the court must enter findings at the conclusion thereof. If the findings support indigency, counsel shall be appointed. If the findings do not support indigency, and the defendant persists in not employing counsel, he shall be deemed to have waived counsel, whereupon he is entitled to the protections of Faretta; should the trial court fail in the foregoing, the trial is defective. Tinsley v. Commonwealth, 185 S.W.3d 668, 2006 Ky. App. LEXIS 61 (Ky. Ct. App. 2006).

Although it was error to fail to hold a hearing for a determination in accordance with the requirements set forth in KRS ch. 31 as to whether defendant was entitled to appointed counsel, it was not reversible error as the error was subsequently corrected, and defendant was not unrepresented at any critical stage of the proceedings. Simmons v. Commonwealth, 2007 Ky. App. LEXIS 405 (Ky. Ct. App. Oct. 19, 2007).

20.— — — Refusal to Accept.

This section was not violated where counsel was not provided for defendant who specifically refused it. Neal v. Commonwealth, 303 S.W.2d 903, 1957 Ky. LEXIS 273 ( Ky. 1957 ).

Lack of counsel was not ground for reversal unless defendant’s refusal of representation was made involuntarily, incompetently, unintelligently, or without understanding. Blevins v. Tartar, 306 S.W.2d 297, 1957 Ky. LEXIS 44 ( Ky. 1957 ).

21.— —Hybrid Representation.

Where Ky. Const. § 11 entitled defendant to hybrid representation, the trial court erred when it presented only two (2) alternatives: either self-representation or acceptance of appointed counsel. Baucom v. Commonwealth, 134 S.W.3d 591, 2004 Ky. LEXIS 116 ( Ky. 2004 ).

Juvenile’s case was remanded for an evidentiary hearing on his ineffective assistance of counsel claims as, although counseled waiver of the juvenile’s right to a transfer hearing might have been a legitimate trial strategy, the record did not conclusively prove or disprove whether the juvenile’s waiver was counseled, and whether counsel rendered ineffective assistance in connection with his advice to waive the transfer hearing and plead guilty to two (2) counts of second-degree arson; the juvenile had the burden of proof in the evidentiary hearing to show that he was not adequately represented. Humphrey v. Commonwealth, 153 S.W.3d 854, 2004 Ky. App. LEXIS 147 (Ky. Ct. App. 2004).

Ky. Const. § 11 recognizes the ability of a defendant to proceed without counsel and serves as the basis of the right to hybrid counsel, or the right to be heard “by himself and counsel.” Thus, in Kentucky, unlike in federal courts, an accused may make a limited waiver of counsel, specifying the extent of services he desires, and he then is entitled to counsel whose duty will be confined to rendering the specified kind of services (within, of course, the normal scope of counsel services). Major v. Commonwealth, 275 S.W.3d 706, 2009 Ky. LEXIS 342 ( Ky. 2009 ).

Where trial court addressed the considerations raised in Edwards in several hearings on the issue of defendant’s competency and his interaction with his attorneys and finding defendant competent to stand trial with the assistance of counsel under the Dusky standard, defendant was entitled to assert the right to self-representation, thereby waiving the right to counsel, or, in the alternative, to assert his right to hybrid counsel, dictating the extent of counsel’s involvement pursuant to Ky. Const. § 11. After defendant’s assertion, however, because of his borderline competency, the trial court had the right to deny defendant the right to proceed pro se and to structure the role and scope of hybrid counsel employed in this instance. Major v. Commonwealth, 275 S.W.3d 706, 2009 Ky. LEXIS 342 ( Ky. 2009 ).

There were compelling reasons weighing against full dismissal of defendant’s counsel, namely to safeguard against defendant’s demonstrated mental limitations. Thus, defendant was properly precluded from appearing pro se during those phases of the trial as affected, but, nonetheless, was allowed to represent himself in those phases of the trial not so precluded, a right he left largely unexercised. Major v. Commonwealth, 275 S.W.3d 706, 2009 Ky. LEXIS 342 ( Ky. 2009 ).

Trial court did not err in failing to hold a Faretta hearing, and thus, defendant’s rights to counsel, to proceed pro se, and to proceed with hybrid representation were not violated because defendant stood silent as the special judge started the trial; by doing so, defendant abandoned his request to proceed as co-counsel, which removed the need to hold a Faretta hearing, since such a hearing was required only in the face of an active request to so proceed. Swan v. Commonwealth, 384 S.W.3d 77, 2012 Ky. LEXIS 111 ( Ky. 2012 ), sub. op., modified, 2012 Ky. LEXIS 498 (Ky. Aug. 23, 2012), modified, 2012 Ky. LEXIS 492 (Ky. Dec. 20, 2012).

Defendant’s right to proceed as co-counsel was not violated because the special judge had no knowledge of defendant’s prior oral request to be co-counsel, and defendant stood silent as the special judge started the trial; therefore, defendant abandoned his request to proceed as co-counsel, which removed the need to hold a Faretta hearing. Swan v. Commonwealth, 2012 Ky. LEXIS 498 (Ky. Aug. 23, 2012).

Defendant’s rights under U.S. Const. amend. VI and Ky. Const. § 11 were violated when, after defendant’s motion to represent himself was granted and, over his objection, standby counsel, not hybrid counsel, was appointed, defendant was excluded from bench conferences because (1) defendant’s flight risk and possible disruption of the proceedings did not justify such an exclusion, (2) the conferences were a critical stage of the proceedings at which defendant was unrepresented, since standby counsel was often silent or argued against defendant’s interests, (3) defendant’s prejudice was reasonably likely, and (4) harmless error analysis did not apply. Allen v. Commonwealth, 410 S.W.3d 125, 2013 Ky. LEXIS 395 ( Ky. 2013 ).

Trial court erred by informing defendant that he could not represent himself for his pro se motion yet retain hybrid counsel for the remainder of the proceedings. Because the trial court did not correct its misstatement of the law and defendant proceeded to trial under the belief that hybrid counsel was not an option, he was entitled to a new trial. Mitchell v. Commonwealth, 423 S.W.3d 152, 2014 Ky. LEXIS 16 ( Ky. 2014 ).

Although the trial court abused its discretion in requiring that defendant submit any questions he wanted to ask witnesses to hybrid counsel 30 days before trial and that he conduct the entire examination or cross-examination of any witness for whom defendant chose to ask a particular question against hybrid counsel's advice, the error was harmless, as failed to show he was prejudiced by the order. Nunn v. Commonwealth, 461 S.W.3d 741, 2015 Ky. LEXIS 88 ( Ky. 2015 ).

Court of Appeals of Kentucky finds that a defendant who exercises hybrid representation is entitled to assert a claim of ineffective assistance of counsel, but only with regard to those portions of representation which were explicitly undertaken by trial counsel. Wagner v. Commonwealth, 483 S.W.3d 381, 2015 Ky. App. LEXIS 100 (Ky. Ct. App. 2015).

Trial court did not err in granting defendant’s request for hybrid counsel because defendant’s only participation as hybrid counsel was to file pro se motions and consult with defense counsel. When it became apparent that defendant may have wanted to participate as hybrid counsel for purposes of rejecting a plea offer from the Commonwealth of Kentucky and at defendant’s trial, the court then held a full hearing on the request. Madden v. Commonwealth, 582 S.W.3d 54, 2019 Ky. App. LEXIS 4 (Ky. Ct. App. 2019).

22.— — Time to Prepare.

Where defendant’s newly appointed counsel was forced to proceed without continuance at time of appointment, right to counsel under this section was violated. Cass v. Commonwealth, 236 Ky. 462 , 33 S.W.2d 332, 1930 Ky. LEXIS 772 ( Ky. 1930 ).

The constitutional guaranty of the right to counsel imports the right to counsel who has reasonable opportunity to prepare defense. Johnston v. Commonwealth, 276 Ky. 615 , 124 S.W.2d 1035, 1939 Ky. LEXIS 566 ( Ky. 1939 ). See Shelton v. Commonwealth, 280 Ky. 733 , 134 S.W.2d 653, 1939 Ky. LEXIS 215 ( Ky. 1939 ); Wolfe v. Commonwealth, 281 Ky. 301 , 135 S.W.2d 896, 1940 Ky. LEXIS 17 ( Ky. 1940 ).

Continuance for convenience of counsel, employed by defendant on day before trial, was properly denied, since court-appointed attorney had already fully prepared case and then was rejected on such day, and since all necessary witnesses appeared and testified. Mixon v. Commonwealth, 282 Ky. 25 , 137 S.W.2d 710, 1940 Ky. LEXIS 118 ( Ky. 1940 ).

Defendant’s counsel must have time to adequately prepare for trial. Chenault v. Commonwealth, 282 Ky. 453 , 138 S.W.2d 969, 1940 Ky. LEXIS 189 ( Ky. 1940 ).

Where defendant’s attorney was absent without any fault of defendant, he was entitled to have reasonable time to have employed or appointed new counsel, with reasonable time for preparation thereof. Chenault v. Commonwealth, 282 Ky. 453 , 138 S.W.2d 969, 1940 Ky. LEXIS 189 ( Ky. 1940 ).

The right of the accused to be heard by himself and counsel carries with it the correlative right to have reasonable time in which to prepare and present defense. Caswell v. Commonwealth, 285 Ky. 394 , 147 S.W.2d 1045, 1941 Ky. LEXIS 391 ( Ky. 1941 ).

Where accused was brought to trial ten (10) days after the commission of the crime charged and only two (2) days after finding of the indictment, it was a violation of this section to refuse counsel’s motion for a continuance as it is the duty of the trial court to give counsel of accused reasonable time and opportunity to investigate and become acquainted with the facts, confer with accused, and to prepare and present his defense. Nelson v. Commonwealth, 295 Ky. 641 , 175 S.W.2d 132, 1943 Ky. LEXIS 316 ( Ky. 1943 ).

Court-appointed counsel was entitled to more time to prepare for trial than employed counsel. Davis v. Commonwealth, 310 Ky. 360 , 220 S.W.2d 844, 1949 Ky. LEXIS 919 ( Ky. 1949 ).

Right to counsel included right of reasonable time to prepare. Davis v. Commonwealth, 310 Ky. 360 , 220 S.W.2d 844, 1949 Ky. LEXIS 919 ( Ky. 1949 ).

Defendant had no right to complain that counsel he employed on day before trial had insufficient time to prepare, when he had dismissed earlier counsel in reliance on prosecution witness’ promise not to testify. Hunter v. Commonwealth, 259 S.W.2d 74, 1953 Ky. LEXIS 938 ( Ky. 1953 ).

Notwithstanding court’s erroneous impression from defendant that he had retained counsel, court erred in refusing to grant continuance to subsequently appointed counsel who had but four (4) hours to prepare for trial. Raisor v. Commonwealth, 278 S.W.2d 635, 1955 Ky. LEXIS 481 ( Ky. 1955 ).

This section’s right to counsel included right to time for trial preparation. Raisor v. Commonwealth, 278 S.W.2d 635, 1955 Ky. LEXIS 481 ( Ky. 1955 ). See Woosley v. Commonwealth, 282 S.W.2d 625, 1955 Ky. LEXIS 257 ( Ky. 1955 ).

Court erred in refusing continuance to defense counsel appointed on morning trial began. Mason v. Commonwealth, 294 S.W.2d 941, 1956 Ky. LEXIS 151 ( Ky. 1956 ).

Court abused its discretion in refusing continuance where indictment was returned on November 15, 1956, defendant was arrested and gave bond on November 28, 1956, and on that day defendant employed counsel who on the day of the trial withdrew and second counsel was employed, since the record discloses no reason for haste in trying the case, the nature of the offense did not warrant it and defendant had executed bail. Woods v. Commonwealth, 305 S.W.2d 935, 1957 Ky. LEXIS 355 ( Ky. 1957 ).

Right to counsel necessarily entitles accused and his counsel to a reasonable time for preparation of case. Woods v. Commonwealth, 305 S.W.2d 935, 1957 Ky. LEXIS 355 ( Ky. 1957 ).

Defendant’s right to counsel was violated where he mistakenly thought someone had supplied counsel, then was denied continuance for counsel finally obtained on morning trial began. Perkins v. Commonwealth, 305 S.W.2d 937, 1957 Ky. LEXIS 356 ( Ky. 1957 ).

There was no violation of this section such as would require reversal of conviction where defendant’s counsel was appointed two (2) days before trial, since one such attorney had been at arraignment four (4) weeks before and was thus somewhat familiar with case. Henson v. Commonwealth, 314 S.W.2d 197, 1958 Ky. LEXIS 285 ( Ky. 1958 ).

Right to counsel included right of reasonable preparation time. Roberts v. Commonwealth, 339 S.W.2d 640, 1960 Ky. LEXIS 480 ( Ky. 1960 ).

23.— —Waiver.

Once the right to counsel has attached by the commencement of formal criminal charges, any subsequent waiver of that right during a police-initiated custodial interview is ineffective. Keysor v. Commonwealth, 486 S.W.3d 273, 2016 Ky. LEXIS 170 ( Ky. 2016 ).

The Court of Appeals has repeatedly held that the accused’s right to counsel is an inviolable one, and may be waived only if done understandingly, intelligently, competently, and voluntarily. Carson v. Commonwealth, 382 S.W.2d 85, 1964 Ky. LEXIS 334 ( Ky. 1964 ), cert. denied, 380 U.S. 938, 85 S. Ct. 949, 13 L. Ed. 2d 825, 1965 U.S. LEXIS 1727 (U.S. 1965).

Defendant is not entitled to dismiss court appointed counsel and have other counsel appointed for him. Where defendant elected to represent himself after the court declined to appoint other counsel he had waived the right to counsel. Fultz v. Commonwealth, 398 S.W.2d 881, 1966 Ky. LEXIS 515 ( Ky. 1966 ).

Defendant waived right to counsel by withdrawing his request therefor. Hamilton v. Commonwealth, 401 S.W.2d 80, 1966 Ky. LEXIS 407 ( Ky. 1966 ), cert. denied, 385 U.S. 1014, 87 S. Ct. 728, 17 L. Ed. 2d 551, 1967 U.S. LEXIS 2683 (U.S. 1967).

Where the trial court discussed with the defendant the seriousness of the charge, repeatedly inquired whether the defendant had or wanted an attorney and offered to appoint a legal aid attorney, the defendant’s refusal of the assistance of counsel was a knowing and intelligent waiver of his right to counsel. Moore v. Commonwealth, 556 S.W.2d 161, 1977 Ky. App. LEXIS 809 (Ky. Ct. App. 1977).

Where defendant chose to represent himself and throughout the trial the appointed counsel sat with defendant and from time to time participated in the proceedings, the record disclosed that defendant’s waiver of counsel was intelligently, competently, understandingly and voluntarily made. Dunn v. Commonwealth, 573 S.W.2d 651, 1978 Ky. LEXIS 414 ( Ky. 1978 ).

Because the Kentucky Constitution, unlike the United States Constitution, explicitly guarantees a criminal defendant the right to be heard by himself and counsel, an accused may make a limited waiver of counsel, specifying the extent of services he desires, and he then is entitled to counsel whose duty will be confined to rendering the specified kind of services (within, of course, the normal scope of counsel services). Thus, a trial court is constitutionally required to grant a request by a criminal defendant to serve as co-counsel for himself. Hill v. Commonwealth, 125 S.W.3d 221, 2004 Ky. LEXIS 11 ( Ky. 2004 ).

When a criminal defendant waives the right to counsel, the trial judge has an affirmative duty to make the accused aware of the dangers and disadvantages of self-representation so that the record will establish that he knows what he is doing and his choice is made with his eyes open; a hearing called a “Faretta hearing” is required. The trial court’s Faretta hearing duties manifest themselves in three (3) concrete ways: (1) the trial court must hold a hearing in which the defendant testifies on the question of whether the waiver is voluntary, knowing, and intelligent; (2) during the hearing, the trial court must warn the defendant of the hazards arising from and the benefits relinquished by waiving counsel; and (3) the trial court must make a finding on the record that the waiver is knowing, intelligent, and voluntary; a waiver of counsel is ineffective unless all three (3) requirements are met. Hill v. Commonwealth, 125 S.W.3d 221, 2004 Ky. LEXIS 11 ( Ky. 2004 ).

Accused need not proceed completely pro se in order to trigger a trial court’s Faretta hearing duties; those duties are triggered even by a waiver of a defense when an accused person is proceeding as his own co-counsel. A limited waiver of the right to present a specific defense recommended by counsel triggers the trial court’s duty to hold a hearing and make findings that the waiver was voluntarily and intelligently made. Hill v. Commonwealth, 125 S.W.3d 221, 2004 Ky. LEXIS 11 ( Ky. 2004 ).

Trial court’s findings in denying defendant’s motion to suppress were supported by substantial evidence that the police stopped questioning defendant when he asked for counsel; defendant initiated the further communication with the police that led to his confession. Lickliter v. Commonwealth, 142 S.W.3d 65, 2004 Ky. LEXIS 173 ( Ky. 2004 ).

Trial court committed reversible error in failing to ensure that defendant knowingly, intelligently, and voluntarily waived his right to counsel, and the appellate court rejected the Commonwealth’s argument that the trial court implicitly found that, in light of defendant’s legal abilities, reflected in his filing of a federal lawsuit against his attorney and arguing preservation issues before a court, defendant knowingly, intelligently, and voluntarily waived his right to counsel. Before a defendant could be found to have knowingly and intelligently waived his right to counsel under U.S. Const. amend. VI and Ky. Const. § 11, the trial court was required to hold a Faretta hearing to warn defendant of the potential hazards of proceeding pro se, and the trial court failed to do so; the trial court’s advice to defendant that it was “game day” and that he should “get his cleats on, his jersey on, and get on the field,” was inadequate to satisfy the requirements of Faretta. Grady v. Commonwealth, 325 S.W.3d 333, 2010 Ky. LEXIS 279 ( Ky. 2010 ).

Court erred in denying defendant’s request to proceed pro se because he timely and unequivocally asserted his right to represent himself, and knowingly, intelligently, and voluntarily accepted the dangers inherent in self-representation. The trial court’s colloquy exceeded the constitutional minimum of making defendant sufficiently aware of his right to have counsel present and of the possible consequences of a decision to forgo the aid of counsel. King v. Commonwealth, 374 S.W.3d 281, 2012 Ky. LEXIS 114 ( Ky. 2012 ).

For purposes of U.S. Const. amend. VI and Ky. Const. § 11, there was nothing to indicate that the trial court engaged in a Faretta v. California inquiry or considered whether appellant had the capability to represent himself, and while the court presumed appellant was informed of his right to counsel, no one cited to where the trial court sought to ascertain if appellant understood that right or the consequences of declining to exercise the right to counsel, and certainly Faretta requires at least that. Ayers v. Commonwealth, 2012 Ky. App. LEXIS 54 (Ky. Ct. App. Mar. 30, 2012).

State claimed appellant was not entitled to a Faretta v. California hearing because he was an attorney and his practice involved the representation of criminal defendants; however, that fact was not dispositive of the issue and attorneys are not excluded from the protections of Faretta. Ayers v. Commonwealth, 2012 Ky. App. LEXIS 54 (Ky. Ct. App. Mar. 30, 2012).

Court’s inquiry must comport with common sense, and a Faretta v. California inquiry must be undertaken with any criminal defendant who chooses to represent himself, but the nature and depth of that inquiry will necessarily vary depending on the personal characteristics of each defendant; in light of a defendant-attorney’s individual characteristics, (including the defendant’s education, experiences, sophistication, the complex or easily grasped nature of the charge, and the stage of the proceeding), the court expects that a typical Faretta hearing will usually be much shorter for such a defendant, and it will likely be easier for the circuit court to conclude an attorney understands the risks he takes when he represents himself than it would be to reach the same conclusion for a lay defendant, and there will also likely be fewer warnings required, based upon the attorney’s professional experience and competence. Ayers v. Commonwealth, 2012 Ky. App. LEXIS 54 (Ky. Ct. App. Mar. 30, 2012).

If the issue were subject to harmless error analysis, the court might have affirmed, given that appellant practiced criminal law and likely understood his right to counsel, but Faretta v. California violations were not eligible for such a harmless error analysis, and because structural error occurred in that no Faretta hearing was conducted, the court had to reverse and remand. Ayers v. Commonwealth, 2012 Ky. App. LEXIS 54 (Ky. Ct. App. Mar. 30, 2012).

Although the trial court noted that appellant, an attorney, was more aware of the rules than a typical pro se defendant, such comments were not made in the context of appellant’s counsel request, and the State offered evidence of appellant’s attorney experience, which was not addressed in a Faretta v. California inquiry, and these matters could not satisfy Faretta requirements. Ayers v. Commonwealth, 2012 Ky. App. LEXIS 54 (Ky. Ct. App. Mar. 30, 2012).

Trial court noted that the subject matter was complex and appellant, an attorney, stated that he was incompetent to represent himself, and this weighed in favor of finding that he did not knowingly and intelligently waive his right to counsel, although this was not dispositive under the facts of this case. Ayers v. Commonwealth, 2012 Ky. App. LEXIS 54 (Ky. Ct. App. Mar. 30, 2012).

Criminal defendants who are experienced criminal trial attorneys are not entitled to a hearing or injury under Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562, 1975 U.S. LEXIS 83 (1975), prior to representing themselves. Therefore, a Faretta hearing was not required for an experienced criminal trial attorney who represented himself during criminal proceedings relating to failure to file state income taxes. Commonwealth v. Ayers, 435 S.W.3d 625, 2013 Ky. LEXIS 584 ( Ky. 2013 ), cert. denied, 574 U.S. 819, 135 S. Ct. 86, 190 L. Ed. 2d 38, 2014 U.S. LEXIS 5280 (U.S. 2014).

Kentucky Supreme Court dispenses with the charade of combing the record for some shred of evidence that Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562, 1975 U.S. LEXIS 83 (1975), was satisfied. Instead of reducing the standard for a Faretta inquiry to an unrecognizable level, the Kentucky Supreme Court expands this reasoning to its logical and more appropriate end. Commonwealth v. Ayers, 435 S.W.3d 625, 2013 Ky. LEXIS 584 ( Ky. 2013 ), cert. denied, 574 U.S. 819, 135 S. Ct. 86, 190 L. Ed. 2d 38, 2014 U.S. LEXIS 5280 (U.S. 2014).

Trial court did not err by allowing defendant to waive the right to counsel after alerting defendant to the difficulties of navigating the trial procedure pro se, as the trial judge was not required to impart specific knowledge or warnings before finding that defendant knowingly and intelligently waived that right. Lamb v. Commonwealth, 510 S.W.3d 316, 2017 Ky. LEXIS 92 ( Ky. 2017 ).

24.— Accusation.
25.— — Nature and Cause.

Indictment was sufficient if it gave defendant adequate knowledge of offense charged and acts committed thereunder. Morgan v. Commonwealth, 222 Ky. 742 , 2 S.W.2d 370, 1928 Ky. LEXIS 228 ( Ky. 1928 ).

26.—Witnesses.

Where the chief prosecution witness had been the sheriff to whom the defendant had voluntarily admitted shooting his wife, and where the said witness had become one of the three (3) jury commissioners who had selected the prospective jurors from whom the jury was drawn, reversal of a manslaughter conviction is not required by this section, since there was no basis for a conclusion that the witness had any personal or official disqualifying interest in the defendant’s trial. Rodgers v. Commonwealth, 470 S.W.2d 605, 1971 Ky. LEXIS 280 ( Ky. 1971 ).

Subsections (3) and (4) of KRS 421.350 do not unduly inhibit the right of cross-examination; the accused still has the right to hear and observe the witness testify and the jury has the opportunity to view the video and evaluate the demeanor and credibility of the witness. Commonwealth v. Willis, 716 S.W.2d 224, 1986 Ky. LEXIS 281 ( Ky. 1986 ).

Defendant’s right to call witnesses on his behalf was violated when he was given a risk assessment report, relevant to his sentencing for a sexual offense, the day before the risk assessment hearing, and was denied a continuance to obtain his own expert to challenge the report’s conclusions. Pendleton v. Commonwealth, 83 S.W.3d 522, 2002 Ky. LEXIS 113 ( Ky. 2002 ), limited, White v. Commonwealth, 178 S.W.3d 470, 2005 Ky. LEXIS 359 ( Ky. 2005 ).

27.— — Process for Obtaining.

Where a material witness for a defendant charged with a felony is confined in the penitentiary, and is not disqualified from testifying, the defendant is entitled, under the bill of rights, to compulsory process to enforce his attendance, and the court has power to make an order requiring the warden to produce the witness in court to testify. Hancock v. Parker, 100 Ky. 143 , 37 S.W. 594, 18 Ky. L. Rptr. 622 , 1896 Ky. LEXIS 155 ( Ky. 1896 ).

Trial of one accused of a crime can be forced on him provided the accused has been furnished the compulsory process of the court and allowed a reasonable opportunity to procure attendance of witnesses and if the affidavit for the continuance is permitted to be read as the evidence of the absent witnesses. Powers v. Commonwealth, 114 Ky. 237 , 70 S.W. 1050, 70 S.W. 644, 71 S.W. 494, 24 Ky. L. Rptr. 1007 , 24 Ky. L. Rptr. 1186 , 24 Ky. L. Rptr. 1350 , 1902 Ky. LEXIS 153 ( Ky. 1902 ).

One not being entitled to continuance for absence of a witness, except on a showing that the witness would testify to a material and relevant fact which could not be established by other accessible and equally convincing evidence, refusal thereof for absence of a doctor, who would testify that defendant was so feebleminded that he did not know right from wrong, was not error, especially where the affidavit for continuance was allowed to be read to the jury as the deposition of the doctor, idiocy, unlike lunacy, being a state of mind readily distinguishable. Webb v. Commonwealth, 110 S.W. 281, 33 Ky. L. Rptr. 316 (1908).

Right to compulsory process did not include requiring payment of expenses therefor by Commonwealth. Greene v. Ballard, 174 Ky. 808 , 192 S.W. 841, 1917 Ky. LEXIS 246 ( Ky. 1917 ). See Hoskins v. Commonwealth, 216 Ky. 358 , 287 S.W. 924, 1926 Ky. LEXIS 917 ( Ky. 1926 ).

Warranty for compulsory process must be given to officers, diligent attempt should be made to serve such process, and officer should make return before completion of evidence. Fugate v. Commonwealth, 202 Ky. 509 , 260 S.W. 338, 1924 Ky. LEXIS 748 ( Ky. 1924 ).

This section authorized order to produce material witness who was in confinement under federal court sentence. Wedding v. Commonwealth, 212 Ky. 571 , 279 S.W. 981, 1926 Ky. LEXIS 196 ( Ky. 1926 ).

Right to compulsory process included right to reasonable opportunity for trial preparation. Davis v. Commonwealth, 310 Ky. 360 , 220 S.W.2d 844, 1949 Ky. LEXIS 919 ( Ky. 1949 ).

A criminal defendant cannot be compelled to take a deposition of an incarcerated witness pursuant to CR 32.01 (c) and CR 45.05 as applied to criminal proceedings under RCr 7.04 (abolished) but rather is entitled to his physical presence, but a request for production of a witness must be timely. Ross v. Commonwealth, 577 S.W.2d 6, 1977 Ky. App. LEXIS 932 (Ky. Ct. App. 1977).

Where the criminal defendant had made no effort to procure attendance of a witness in his behalf, who was known to be incarcerated 270 miles away, until the day before his trial, it was not an abuse of discretion to deny the motion. Ross v. Commonwealth, 577 S.W.2d 6, 1977 Ky. App. LEXIS 932 (Ky. Ct. App. 1977).

28.— — — Time.

Court erred in refusing continuance where trial began only three (3) days after indictment, notwithstanding affidavits from absent witnesses, since thereby defendant was denied reasonable opportunity to obtain presence of such witnesses. Mitchell v. Commonwealth, 225 Ky. 83 , 7 S.W.2d 823, 1928 Ky. LEXIS 705 ( Ky. 1928 ).

Thirty (30) days to take depositions of witnesses named in affidavit for continuance was ample time under this section which means accused shall have sufficient time granted to procure witnesses. Browder v. Commonwealth, 232 Ky. 205 , 22 S.W.2d 615, 1929 Ky. LEXIS 424 ( Ky. 1929 ).

29.— —Confrontation.

Where accused in a felony case voluntarily absents himself after the trial begins, the trial may, under rule requiring presence of defendant during the trial, proceed to verdict, and defendant cannot complain that he has been deprived of his constitutional rights to be confronted by the witnesses for the prosecution. Collier v. Commonwealth, 110 Ky. 516 , 62 S.W. 4, 22 Ky. L. Rptr. 1929 , 1901 Ky. LEXIS 105 ( Ky. 1901 ).

Reading to jury affidavits of absent witnesses did not violate defendant’s right to confront witnesses. Davis v. Commonwealth, 77 S.W. 1101, 25 Ky. L. Rptr. 1426 (1904).

This section does not apply to a witness who is dead, and hence on a criminal prosecution it was proper to permit the stenographer who took down the testimony of a deceased witness on a former trial to read such testimony in evidence. Fuqua v. Commonwealth, 118 Ky. 578 , 81 S.W. 923, 26 Ky. L. Rptr. 420 , 1904 Ky. LEXIS 77 ( Ky. 1904 ).

The right of confrontation of witnesses, being a personal privilege, may be waived by defendant. Bonar v. Commonwealth, 180 Ky. 338 , 202 S.W. 676, 1918 Ky. LEXIS 62 ( Ky. 1918 ). See Edmonds v. Commonwealth, 204 Ky. 495 , 264 S.W. 1100, 1924 Ky. LEXIS 512 ( Ky. 1924 ); Adams v. Slavin, 225 Ky. 135 , 7 S.W.2d 836, 1928 Ky. LEXIS 711 ( Ky. 1928 ), overruled, Roberts v. Noel, 296 S.W.2d 745, 1956 Ky. LEXIS 238 ( Ky. 1956 ).

Defendant’s right to confront witnesses was not violated when trial proceeded after noon recess without defendant who was late. Yates v. Commonwealth, 215 Ky. 725 , 286 S.W. 1046, 1926 Ky. LEXIS 783 ( Ky. 1926 ).

Defendant was denied right to confront witnesses when affidavit for search warrant was read to jury. Foley v. Commonwealth, 228 Ky. 691 , 15 S.W.2d 444, 1929 Ky. LEXIS 600 ( Ky. 1929 ).

Where affidavit stated defendant possessed liquor, search warrant was issued thereunder and executed, and defendant was then indicted, introduction of such affidavit to prove defendant’s guilt was, in addition to hearsay, denial of his right to confront witnesses face to face. Vanmeter v. Commonwealth, 232 Ky. 404 , 23 S.W.2d 594, 1930 Ky. LEXIS 13 ( Ky. 1930 ).

Depositions of alleged absent witnesses could not be read at defendant’s trial, since Commonwealth could not take such depositions in criminal case and defendant had right to confront witnesses face to face. Harrison v. Commonwealth, 266 Ky. 840 , 100 S.W.2d 837, 1937 Ky. LEXIS 13 ( Ky. 1937 ).

Where a prosecution witness, whose testimony was largely cumulative, became ill just when his cross-examination seemingly was about to be completed, 51 questions having been asked as contrasted to 36 questions asked on direct examination, and was unable to continue his testimony, the court did not abuse its discretion in refusing to discharge the jury in the absence of a motion by defendant’s counsel to strike the witness’ testimony and in the absence of any indication as to what further information was sought to be produced by additional cross-examination. Banks v. Commonwealth, 312 Ky. 297 , 227 S.W.2d 426, 1950 Ky. LEXIS 648 ( Ky. 1950 ).

The provisions of law that authorized punishment in case of failure to comply with support orders, as for a contempt, were not invalid as denying right to confront witnesses, as the punishment was not for a crime but for the purpose of coercing compliance with the orders of the court. Duncan v. Smith, 262 S.W.2d 373, 1953 Ky. LEXIS 1090 ( Ky. 1953 ).

Main purpose of confrontation rule is to insure right of cross-examination and to protect defendant from conviction by means of ex parte testimony or affidavits given in his absence. Harris v. Commonwealth, 315 S.W.2d 630, 1958 Ky. LEXIS 333 ( Ky. 1958 ).

Where person purchased moonshine whiskey from defendant and paid with marked bills, failure of Commonwealth to produce such person at defendant’s trial was not denial of right to confront witnesses. Harris v. Commonwealth, 315 S.W.2d 630, 1958 Ky. LEXIS 333 ( Ky. 1958 ).

Witness confrontation is a rule concerned with the method by which evidence is produced during the trial. Harris v. Commonwealth, 315 S.W.2d 630, 1958 Ky. LEXIS 333 ( Ky. 1958 ).

Court erred in permitting affidavit and search warrant to be read to jury, as thereby defendant’s right to confront witnesses was violated, and it was hearsay as well. Henry v. Commonwealth, 316 S.W.2d 864, 1958 Ky. LEXIS 67 ( Ky. 1958 ).

Contradictory testimony involving statement of person who did not testify was inadmissible for impeachment purposes, not only because it was hearsay as substantive evidence, but also because it violated defendant’s right to confront witnesses against him. Caulder v. Commonwealth, 339 S.W.2d 644, 1960 Ky. LEXIS 481 ( Ky. 1960 ).

Right to confront witnesses and accusers did not exist at arrest stage, which is all extradition proceeding encompassed. Squadroni v. Smith, 349 S.W.2d 700, 1961 Ky. LEXIS 62 ( Ky. 1961 ).

Lunacy proceeding was subject to this section, so that affidavits could not be read to prove defendant therein incompetent, since such would be denial of his right to confront witnesses. Denton v. Commonwealth, 383 S.W.2d 681, 1964 Ky. LEXIS 52 ( Ky. 1964 ).

The right of confrontation is limited to witnesses and one who would be a witness in a criminal case must confront the accused. Flatt v. Commonwealth, 468 S.W.2d 793, 1971 Ky. LEXIS 347 ( Ky. 1971 ).

Where the accused was confronted by all persons who were witnesses at the trial, the fact that the Commonwealth failed to call a particular person to give evidence in the case was not a ground for reversal of the judgment. Flatt v. Commonwealth, 468 S.W.2d 793, 1971 Ky. LEXIS 347 ( Ky. 1971 ).

Where a witness in a prosecution for murder and robbery testified that she heard one of three (3) men make a statement indicating that criminal activity was planned, such evidence was properly admitted as a verbal act and did not deprive the defendants of their right to confrontation and cross-examination even though the witness could not identify the speaker and merely heard one of the men referred to by his first name. Darnell v. Commonwealth, 558 S.W.2d 590, 1977 Ky. LEXIS 537 ( Ky. 1977 ).

Where a prosecutor asked a witness whether she had made a prior inconsistent statement, but failed to introduce further evidence of such statement, the failure to prove the prior statement did not deprive the defendants of their right of confrontation. Darnell v. Commonwealth, 558 S.W.2d 590, 1977 Ky. LEXIS 537 ( Ky. 1977 ).

Remarks in the prosecutor’s closing argument to the effect that punishment would serve to deter other criminals and that armed robbery could easily escalate into murder under some circumstances did not constitute the giving of material testimony so as to violate the right to confrontation nor were they an appeal to prejudice. Lynem v. Commonwealth, 565 S.W.2d 141, 1978 Ky. LEXIS 349 ( Ky. 1978 ).

Defendant’s right to confrontation under this section and the Sixth Amendment of the United States Constitution were violated where defendant was precluded from testifying to the jury as to hostile relations between his family and the family of a prosecution witness, since evidence of a witness’s hostility or prejudice is material and goes to the weight of the testimony, subject to the discretion of the trial court as to the scope and extent of questioning for the purpose of showing prejudice. Barrett v. Commonwealth, 608 S.W.2d 374, 1980 Ky. LEXIS 268 ( Ky. 1980 ).

Any error in the admission of a tape recording of a conversation between a witness who testified at trial for the prosecution and another individual, who was not called as a witness by the prosecution was certainly rendered harmless when the defendant called the second witness as his own witness and the prosecution elicited from him that he had in fact made the statements as recorded on the tape. Lovell v. Commonwealth, 695 S.W.2d 429, 1985 Ky. App. LEXIS 593 (Ky. Ct. App. 1985).

The requirement in this section to “meet witnesses face-to-face” is basically the same as the Sixth Amendment to the federal Constitution which provides a right of confrontation. Commonwealth v. Willis, 716 S.W.2d 224, 1986 Ky. LEXIS 281 ( Ky. 1986 ).

The privilege of viewing a witness through a one-way mirror or a video monitor is a constitutionally acceptable substitute for face-to-face confrontation. Commonwealth v. Willis, 716 S.W.2d 224, 1986 Ky. LEXIS 281 ( Ky. 1986 ).

Generally the preference for face-to-face confrontation establishes a rule of necessity where the prosecution must demonstrate unavailability prior to introduction of a hearsay statement; its underlying purpose is to augment accuracy in the truth finding process by insuring the defendant an effective means to test adverse evidence. Commonwealth v. Willis, 716 S.W.2d 224, 1986 Ky. LEXIS 281 ( Ky. 1986 ).

The right of confrontation guaranteed by this section should not be construed more stringently than the same right in the Sixth Amendment to the United States Constitution.Commonwealth v. Willis, 716 S.W.2d 224, 1986 Ky. LEXIS 281 ( Ky. 1986 ).

Confrontation does not require live presentation of evidence to the trier of fact; a photographic or electronic presentation is not perfect as a substitute for live testimony but it will suffice. Commonwealth v. Willis, 716 S.W.2d 224, 1986 Ky. LEXIS 281 ( Ky. 1986 ).

The right to be present at trial and the right to confrontation must be applied in such a way as to produce a fair result and enhance the truth-determining process. Commonwealth v. Willis, 716 S.W.2d 224, 1986 Ky. LEXIS 281 ( Ky. 1986 ).

There is no constitutional right to eyeball to eyeball confrontation. Commonwealth v. Willis, 716 S.W.2d 224, 1986 Ky. LEXIS 281 ( Ky. 1986 ).

The limited provisions of subsections (3) and (4) of KRS 421.350 as they apply to child witnesses 12 years of age or younger who are the victims of sex abuse are constitutional, as they do not deny the right of confrontation by a defendant as protected by this section and the Sixth Amendment to the United States Constitution nor do they violate the separation of powers doctrine as provided by Const., §§ 28 and 109. Commonwealth v. Willis, 716 S.W.2d 224, 1986 Ky. LEXIS 281 ( Ky. 1986 ).

The defendant’s right of confrontation secured to him under the Sixth Amendment of the United States Constitution, as well as this section, was not violated by the trial court’s utilization of the procedure set forth in KRS 421.350 , governing the admission into evidence of the testimony of a child who is allegedly a victim of illegal sexual activity, where the defendant had an opportunity to cross-examine the victim and to determine whether such statements were reliable. Eastman v. Commonwealth, 720 S.W.2d 348, 1986 Ky. App. LEXIS 1478 (Ky. Ct. App. 1986).

In prosecution for first degree sodomy defendant’s rights under the confrontation clause of the 6th Amendment of the U.S. Constitution and his due process right to be present under the 14th Amendment were not violated by his exclusion from a hearing held to determine the competency of two (2) child witnesses to testify, where his counsel was present at such hearing and since there was ample opportunity for full and effective cross-examination at the trial. Kentucky v. Stincer, 482 U.S. 730, 107 S. Ct. 2658, 96 L. Ed. 2d 631, 1987 U.S. LEXIS 2727 (U.S. 1987).

The confrontation clauses of the Sixth Amendment to the United States Constitution and this section were designed to prevent situations where the defendant is convicted, in part at least, because of the statement of an unknown person without any showing of the reliability of the statement and without any opportunity to cross-examine the person who allegedly implicated him or her in the crime. Hughes v. Commonwealth, 730 S.W.2d 934, 1987 Ky. LEXIS 204 ( Ky. 1987 ).

The confession of a codefendant when utilized as evidence in a joint trial, is prejudicial hearsay as to the nonconfessing defendant to the extent that it incriminates him, and cannot be used unless the name of the nonconfessing defendant can be so redacted or deleted that its use is harmless beyond a reasonable doubt; otherwise, its use violates the accused’s fundamental right to be confronted by the witnesses against him and necessitates separate trials. Cosby v. Commonwealth, 776 S.W.2d 367, 1989 Ky. LEXIS 92 ( Ky. 1989 ), cert. denied, 493 U.S. 1063, 110 S. Ct. 880, 107 L. Ed. 2d 963, 1990 U.S. LEXIS 508 (U.S. 1990), overruled in part, St. Clair v. Roark, 10 S.W.3d 482, 1999 Ky. LEXIS 148 ( Ky. 1999 ).

A joint trial utilizing a properly redacted statement is appropriate where, given the totality of the circumstances, no substantial prejudice will result, and it is appropriate where the statement does not provide details that point unerringly to the nonconfessing defendant; in addition, where the utilization of such a statement is inappropriate, its use does not give rise to reversible error where the proof against the nonconfessing codefendant is so overwhelming that no possible prejudice resulted under the “harmless beyond a reasonable doubt” standard that applies to constitutional error. Cosby v. Commonwealth, 776 S.W.2d 367, 1989 Ky. LEXIS 92 ( Ky. 1989 ), cert. denied, 493 U.S. 1063, 110 S. Ct. 880, 107 L. Ed. 2d 963, 1990 U.S. LEXIS 508 (U.S. 1990), overruled in part, St. Clair v. Roark, 10 S.W.3d 482, 1999 Ky. LEXIS 148 ( Ky. 1999 ).

Defendant’s right to confrontation and to be present at all stages of trial was violated, as his absence during the depositions of two (2) key witnesses violated the rights guaranteed under this section, as well as under RCr 7.12 and RCr 8.28, and such violation was not harmless error. Dean v. Commonwealth, 777 S.W.2d 900, 1989 Ky. LEXIS 77 ( Ky. 1989 ), overruled in part, Caudill v. Commonwealth, 120 S.W.3d 635, 2003 Ky. LEXIS 140 ( Ky. 2003 ), limited, Quarels v. Commonwealth, 142 S.W.3d 73, 2004 Ky. LEXIS 186 ( Ky. 2004 ), overruled in part, Commonwealth v. McGorman, 489 S.W.3d 731, 2016 Ky. LEXIS 102 ( Ky. 2016 ).

Whereas the right to be present and to confront witnesses is personal to the accused under this section, and more particularly under RCr 7.12, only the defendant can waive this right; furthermore, the waiver must be sufficiently clear as to indicate a conscious intent on behalf of defendant to forego such an opportunity. Dean v. Commonwealth, 777 S.W.2d 900, 1989 Ky. LEXIS 77 ( Ky. 1989 ), overruled in part, Caudill v. Commonwealth, 120 S.W.3d 635, 2003 Ky. LEXIS 140 ( Ky. 2003 ), limited, Quarels v. Commonwealth, 142 S.W.3d 73, 2004 Ky. LEXIS 186 ( Ky. 2004 ), overruled in part, Commonwealth v. McGorman, 489 S.W.3d 731, 2016 Ky. LEXIS 102 ( Ky. 2016 ).

Defendant and his counsel effected a waiver of the right to confront deponent where ample notice of the deposition was provided to defendant’s counsel, who appeared at the deposition and announced that he was serving notice that he would withdraw as defendant’s counsel, and who made a conscious decision not to remain and cross-examine in his representative capacity, and where there was no evidence that defendant, personally, had a legal reason why he was unable to attend the deposition, and no proof that his presence would have made a difference. Carter v. Commonwealth, 782 S.W.2d 597, 1989 Ky. LEXIS 76 ( Ky. 1989 ), cert. denied, 497 U.S. 1029, 110 S. Ct. 3282, 111 L. Ed. 2d 791, 1990 U.S. LEXIS 3532 (U.S. 1990), overruled in part, Norton v. Commonwealth, 37 S.W.3d 750, 2001 Ky. LEXIS 20 ( Ky. 2001 ).

Merely deleting the name of the defendant from the statement of a nontestifying codefendant violates the defendant’s right of confrontation. Rogers v. Commonwealth, 992 S.W.2d 183, 1999 Ky. LEXIS 32 (Ky.), cert. denied, 528 U.S. 988, 120 S. Ct. 450, 145 L. Ed. 2d 366, 1999 U.S. LEXIS 7446 (U.S. 1999).

The trial court was required to either grant the defendant’s motion for a separate trial or to redact the confessions of two (2) codefendants so as to exclude any reference to the defendant; thus, the decision to permit the introduction of the confessions of the codefendants, albeit through the testimony of the sheriff, violated the defendant’s rights under the confrontation clause and warranted reversal of his conviction and a new trial. Murphy v. Commonwealth, 50 S.W.3d 173, 2001 Ky. LEXIS 81 ( Ky. 2001 ).

The trial court’s refusal to allow questions at a pre-trial hearing which were more designed to reveal the identity of an informant than to test the informant’s reliability did not violate defendant’s confrontation right. Thompkins v. Commonwealth, 54 S.W.3d 147, 2001 Ky. LEXIS 154 ( Ky. 2001 ).

Defendant failed in arguing that the taking of a deposition in defendant’s absence was a denial of his constitutional right to confrontation under Ky. Const. § 11; the failure to secure defendant’s presence was held to have been a harmless error and the depositions were not prejudicial. McKinney v. Commonwealth, 60 S.W.3d 499, 2001 Ky. LEXIS 156 ( Ky. 2001 ), modified, 2001 Ky. LEXIS 211 (Ky. Dec. 20, 2001).

In defendant’s trial for murder under KRS 507.020(1), the trial court erred in allowing a minor child to testify outside the courtroom via closed circuit TV because the minor was not a member of the class of minors authorized to testify under KRS 421.350 . However, that error was harmless under U.S. Const. amend. VI and Ky. Const. § 11 and did not require reversal under RCr 9.24 after defendant conceded that the minor’s testimony was redundant and therefore not critical to the Commonwealth’s case. Greene v. Commonwealth, 197 S.W.3d 76, 2006 Ky. LEXIS 140 ( Ky. 2006 ), cert. denied, 549 U.S. 1184, 127 S. Ct. 1157, 166 L. Ed. 2d 1001, 2007 U.S. LEXIS 1235 (U.S. 2007).

Violations of Confrontation Clause were subject to a harmless error analysis; while admission of DNA test results showing that defendant was the father of his victim’s child violated his right to confrontation, because defendant admitted paternity of the child in letters to the victim that were admitted at trial, and paternity was not a required element of either the rape or incest charge, the error was harmless. Wells v. Commonwealth, 206 S.W.3d 332, 2006 Ky. LEXIS 302 ( Ky. 2006 ).

Inmate’s Confrontation Clause rights were not violated when his allegedly sexually abused daughter, though age 15, testified against him via closed circuit per KRS 421.350 . The trial court’s compelling need determination was supported by its findings that her reliability was at stake, and that the inmate was the cause of her distress, which was not de minimis. Danner v. Motley, 448 F.3d 372, 2006 FED App. 0159P, 2006 U.S. App. LEXIS 11681 (6th Cir. Ky. 2006 ).

Even if there was error at trial under U.S. Const. amend. VI and Ky. Const. § 11 in the court obstructing the view of a child witness and defendant by the seating of defendant so that defendant and the witness could not see each other during the testimony, any error was harmless because the child witness testified in open court, and although the record did not confirm whether defendant and the witness could see each other’s faces during the testimony, it was established that each was nevertheless aware of the other’s presence at trial in the courtroom. Yell v. Commonwealth, 242 S.W.3d 331, 2007 Ky. LEXIS 286 ( Ky. 2007 ), cert. denied, 553 U.S. 1011, 128 S. Ct. 2068, 170 L. Ed. 2d 806, 2008 U.S. LEXIS 3540 (U.S. 2008).

The Confrontation Clause forbids the admission into evidence of all “testimonial” hearsay statements of a witness against a criminal defendant unless the witness is unavailable to testify at trial and the defendant has had a prior opportunity for cross-examination. Only statements that are testimonial cause the declarant to be a “witness” within the meaning of the Confrontation Clause. It is the testimonial character of the statement that separates it from other hearsay that, while subject to traditional limitations upon hearsay evidence, is not subject to the Confrontation Clause .Baker v. Commonwealth, 234 S.W.3d 389, 2007 Ky. App. LEXIS 340 (Ky. Ct. App. 2007).

Trial court’s granting of prosecutor’s request to stand between two children testifying about the attack on their mother and defendant violated KRS 421.350 because the trial court did not make a finding that there was a “compelling need” to impair defendant’s view of those witnesses. Even though the trial court’s decision also violated defendant’s Sixth Amendment and Ky. Const. § 11 confrontation clause right to view witnesses, the violation was harmless beyond a reasonable doubt because the two children were not key witnesses and other compelling evidence supported the mother’s version of defendant’s attack on her. Sparkman v. Commonwealth, 250 S.W.3d 667, 2008 Ky. LEXIS 106 ( Ky. 2008 ).

In a murder prosecution, as defendant and co-defendant had cross-examined their accomplice, who had accepted a plea deal in exchange for testifying, for nearly 20 minutes, the trial court reasonably limited co-defendant’s impeachment on grounds the subject had been thoroughly covered. King v. Commonwealth, 276 S.W.3d 270, 2009 Ky. LEXIS 20 ( Ky. 2009 ).

Even though the physical layout of the courtroom, which precluded defendant from being able to confront the witnesses face to face, violated the Confrontation Clause, the error was harmless because the record was clear that defendant admitted to shooting the three victims and the sole issue of contention was whether defendant was criminally responsible for his actions due to his mental illness. Star v. Commonwealth, 313 S.W.3d 30, 2010 Ky. LEXIS 115 ( Ky. 2010 ).

Trial court’s refusal to allow defendant to replay video-recorded testimony when a transcript of that testimony was available did not constitute an unreasonable limitation on cross-examination because the video-recorded testimony had content identical to that contained in the uncontested transcript; therefore, it did not significantly impact the jury’s impression of the witness’s credibility. Goncalves v. Commonwealth, 404 S.W.3d 180, 2013 Ky. LEXIS 2 (Ky.), cert. denied, 571 U.S. 1081, 134 S. Ct. 705, 187 L. Ed. 2d 567, 2013 U.S. LEXIS 8596 (U.S. 2013).

Witness testimony describing the contents of a destroyed surveillance videotape was not barred by the Confrontation Clause because the videotape did not memorialize the testimonial statement of a human being but rather recorded the crime itself and the unavailability of the videotape did not deprive defendant the opportunity to cross-examine the detective or anyone else who viewed the videotape. Commonwealth v. Newkirk, 2014 Ky. App. LEXIS 180 (Ky. Ct. App. Nov. 21, 2014, sub. op., 2014 Ky. App. Unpub. LEXIS 1048 (Ky. Ct. App. Nov. 21, 2014).

Defendant's right to confrontation of witnesses under the Sixth Amendment and this section was violated when the Commonwealth admitted a lab report into evidence through a hearsay exception, because the analyst who conducted the testing did not testify at trial and thus, defendant never had an opportunity to cross-examine him. Manery v. Commonwealth, 492 S.W.3d 140, 2016 Ky. LEXIS 248 ( Ky. 2016 ).

30.— — Bias or Prejudice.

If a trial court, after holding an evidentiary hearing, is shown that the Commonwealth did not seek or otherwise participate in the dismissal of a witness’ forgery charge in exchange for his testimony against the defendant, the dismissal would not be the source of any bias or prejudice to be explored on cross-examination; however, the only way to answer such questions concerning possible prejudice is to hold an evidentiary hearing. Commonwealth v. Gilpin, 777 S.W.2d 603, 1989 Ky. App. LEXIS 119 (Ky. Ct. App. 1989).

Defendant’s rights to confrontation were not violated when the trial judge sustained the prosecutor’s objection to defense counsel’s attempted inquiry as to whether a witness had cooperated with the police in another case absent a good faith belief that she had benefitted from that cooperation; the mere fact that a witness helped the police in an unrelated case was not evidence of bias in the instant case. Caudill v. Commonwealth, 120 S.W.3d 635, 2003 Ky. LEXIS 140 ( Ky. 2003 ).

Whether a jailhouse informant was rewarded for cooperation in other cases was relevant to show motivation for producing statements and other evidence to receive benefits or payment, and could have called into question the accuracy or veracity of testimony. There was no reason to refrain from giving the jury an accurate picture of why an informant might have come forward with information. McBeath v. Commonwealth, 244 S.W.3d 22, 2007 Ky. LEXIS 288 ( Ky. 2007 ).

Defense counsel was improperly precluded from exploring a jailhouse informant’s motivations before the jury where counsel was attempting to show, in addition to cooperation, that an expectation of monetary or prosecutorial rewards caused the informant to engage in a months-long interrogation of defendant; such information would have been relevant to show motivation and bias, and would have been essential to allow the jury to assess the informant’s credibility. McBeath v. Commonwealth, 244 S.W.3d 22, 2007 Ky. LEXIS 288 ( Ky. 2007 ).

It was error not to allow the defense to explore a jailhouse informant’s motivation for eliciting information from defendant regarding the charges beyond whether he had received payment; informants are not only rewarded in monetary terms. There was no reason to hold that only monetary benefits could be inquired into regarding bias; defendant should have been allowed to ask about prior cooperation and the informant’s expectation of future benefits. McBeath v. Commonwealth, 244 S.W.3d 22, 2007 Ky. LEXIS 288 ( Ky. 2007 ).

31.— — Number.

The court may fix a reasonable limit upon the number of character witnesses, and it was not error in manslaughter trial to limit the number to five (5) for each side. Commonwealth v. Thomas, 104 S.W. 326, 31 Ky. L. Rptr. 899 (1907).

32.— — Character Witnesses.

Defendant was not denied due process under this section where trial court refused to allow him to introduce character evidence by a psychologist and family members, since character evidence would not support or refute the status of a persistent felony offender under KRS 532.080 , but rather would, in effect, grant the defendant a retrial on past felony convictions. White v. Commonwealth, 611 S.W.2d 529, 1980 Ky. App. LEXIS 419 (Ky. Ct. App. 1980), cert. denied, 452 U.S. 966, 101 S. Ct. 3119, 69 L. Ed. 2d 978, 1981 U.S. LEXIS 2563 (U.S. 1981).

33.— — Prior Inconsistent Statement.

Where two (2) accomplices, who had confessed to participation in a burglary and murder, testified at a pretrial hearing that they would refuse to testify as to the defendant having committed the murder, based upon their privileges against self-incrimination under the Fifth Amendment to the United States Constitution and this section, the trial court properly ruled that the state could not call them as witnesses with knowledge that they would invoke their privileges, since a witness who remains silent has made no statement, so that there is no prior statement which the prosecution can attack as inconsistent; thus, the prosecution cannot invoke the settled rule that the effect of prior inconsistent statements, once admitted into evidence, is not limited to impeaching the credibility of witnesses, but rather allows such statements to be considered as substantive evidence when the witness is available and subject to cross-examination. Commonwealth v. Brown, 619 S.W.2d 699, 1981 Ky. LEXIS 263 ( Ky. 1981 ), overruled, Murphy v. Commonwealth, 652 S.W.2d 69, 1983 Ky. LEXIS 249 ( Ky. 1983 ).

34.—Self-incrimination.

It was harmless error to require defendant to produce evidence against himself where the offense was otherwise made out. Louisville & N. R. Co. v. Commonwealth, 51 S.W. 167, 21 Ky. L. Rptr. 239 (1899).

The defendant in a penal action should not be required to file an answer to the petition but should be allowed to plead merely “Not guilty” to the charge, as the defendant, under the Constitution, cannot be required to give evidence against himself. Louisville & N. R. Co. v. Commonwealth, 112 Ky. 635 , 66 S.W. 505, 23 Ky. L. Rptr. 1900 , 1902 Ky. LEXIS 205 ( Ky. 1902 ).

Under this section a person cannot be held for gaming disclosed by his testimony in a prosecution against another. Bentler v. Commonwealth, 143 Ky. 503 , 136 S.W. 896, 1911 Ky. LEXIS 435 ( Ky. 1911 ).

KRS 422.110 is neither unconstitutional nor oppressive, but is designed to protect the individual citizen in the right not to be compelled to give evidence against himself guaranteed by this section. Commonwealth v. McClanahan, 153 Ky. 412 , 155 S.W. 1131, 1913 Ky. LEXIS 853 ( Ky. 1913 ).

That defendant could not be compelled to testify against himself did not apply to non-criminal issues or to incrimination of others by defendant. Gordon v. Tracy, 194 Ky. 166 , 238 S.W. 395, 1922 Ky. LEXIS 128 ( Ky. 1922 ).

This section and United States Const., Amend. 5 protect only against compulsory self-incrimination, and not against voluntary self-incrimination. Gentry v. Commonwealth, 215 Ky. 728 , 286 S.W. 1040, 1926 Ky. LEXIS 779 ( Ky. 1926 ).

Answers of witnesses in election bribery case could not be used against them. Duff v. Salyers, 220 Ky. 546 , 295 S.W. 871, 1927 Ky. LEXIS 574 ( Ky. 1927 ).

This section is not applicable to a police officer’s admissions to chief of police of officer’s guilt of gaming, and such admissions are admissible in proceedings to dismiss officer from force for misconduct in office. Bromfield v. Board of Comm'rs, 233 Ky. 250 , 25 S.W.2d 393, 1930 Ky. LEXIS 537 ( Ky. 1930 ).

Provision that defendant could not be compelled to give self-incriminating testimony did not apply to civil trial. Cooper v. Keyes, 246 Ky. 268 , 54 S.W.2d 933, 1932 Ky. LEXIS 749 ( Ky. 1932 ).

Court properly refused to require one codefendant to testify at trial of other codefendant. Alder v. Commonwealth, 277 Ky. 136 , 125 S.W.2d 986, 1939 Ky. LEXIS 613 ( Ky. 1939 ).

The provision against self-incrimination is a limitation as to compelling the defendant himself to say or do something which has a tendency to incriminate himself. Elmore v. Commonwealth, 282 Ky. 443 , 138 S.W.2d 956, 1940 Ky. LEXIS 186 ( Ky. 1940 ).

The taking of shoes from one charged with a crime to show that tracks made by them were like tracks found near the scene of the crime does not violate the provision against self-incrimination. Elmore v. Commonwealth, 282 Ky. 443 , 138 S.W.2d 956, 1940 Ky. LEXIS 186 ( Ky. 1940 ).

Defendants could not refuse to appear in court under subpoena on ground they would be compelled to incriminate themselves, since proper time to assert such privilege was during questioning. Kindt v. Murphy, 312 Ky. 395 , 227 S.W.2d 895, 1950 Ky. LEXIS 653 ( Ky. 1950 ).

It was early declared, and has since been universally held, that the privilege against self-incrimination may be asserted as of right in any ordinary civil case, and, to bring a person within the exemption, it is not necessary that his examination as a witness should be had in the course of a penal or criminal prosecution or that such should have been commenced and be actually pending. Kindt v. Murphy, 312 Ky. 395 , 227 S.W.2d 895, 1950 Ky. LEXIS 653 ( Ky. 1950 ).

Protection from compulsory self-incrimination applied to defendants in gambling losses action. Kindt v. Murphy, 312 Ky. 395 , 227 S.W.2d 895, 1950 Ky. LEXIS 653 ( Ky. 1950 ). See Akers v. Fuller, 312 Ky. 502 , 228 S.W.2d 29, 1950 Ky. LEXIS 683 ( Ky. 1950 ).

A privilege of immunity is consistently recognized in our jurisprudence, which prohibits proof or extracting admission of anything reflecting infamy upon a defendant not pertinent to the particular case or any offense other than that with which the defendant stands accused by the indictment upon which he is being presently tried, with certain exceptions. Swanger v. Commonwealth, 255 S.W.2d 38, 1953 Ky. LEXIS 636 ( Ky. 1953 ).

This section should be liberally construed in favor of one asserting privilege against self-incrimination. Kinslow v. Carter, 282 S.W.2d 141, 1955 Ky. LEXIS 228 ( Ky. 1955 ).

In adjudicating right of immunity, court must be able to discern from character of question and other facts adduced in case some tangible and substantial probability that answer of witness may help to convict him of a crime. Young v. Knight, 329 S.W.2d 195, 1959 Ky. LEXIS 149 ( Ky. 1959 ).

If it appears to court that a responsive answer to a question propounded will furnish a necessary link in chain of evidence which might implicate or convict witness, he may properly claim his constitutional privilege. Young v. Knight, 329 S.W.2d 195, 1959 Ky. LEXIS 149 ( Ky. 1959 ).

If it appears to court that in setting in which question is asked, there is reasonable possibility of exposure of witness to prosecution or involvement in a crime by reason of a responsive answer, claim of privilege against self-incrimination must prevail, but danger of self-incrimination must be real and substantial in ordinary course of things, since the law does not permit a witness arbitrarily to hide behind an imaginary or unappreciable danger or risk. Young v. Knight, 329 S.W.2d 195, 1959 Ky. LEXIS 149 ( Ky. 1959 ).

In action in which witness invokes the privilege against self-incrimination, it is for court and not witness to say whether a refusal to answer is justified. Young v. Knight, 329 S.W.2d 195, 1959 Ky. LEXIS 149 ( Ky. 1959 ).

A court may not consider in isolation a particular question which witness refused to answer on ground of self-incrimination. Young v. Knight, 329 S.W.2d 195, 1959 Ky. LEXIS 149 ( Ky. 1959 ).

Constitutional privilege against self-incrimination is for protection of witness and not for protection of other persons. Young v. Knight, 329 S.W.2d 195, 1959 Ky. LEXIS 149 ( Ky. 1959 ).

Constitutional privilege against self-incrimination prevails where question on its face discloses that a responsive answer may incriminate witness, but where question on its face is innocent, serious difficulty of adjudication may be encountered. Young v. Knight, 329 S.W.2d 195, 1959 Ky. LEXIS 149 ( Ky. 1959 ).

Defendant who testified on motion to suppress, but left the stand and did not submit to cross-examination because he feared his testimony would be used against him at the trial on the issue of his guilt, could not complain that his rights against self-incrimination were violated. Shull v. Commonwealth, 475 S.W.2d 469, 1971 Ky. LEXIS 67 ( Ky. 1971 ).

Although worded differently, the protection against self-incrimination afforded a defendant by this section is identical with that afforded him by United States Const., Amend. 5, and applies only to evidence of a testimonial nature and not to the results of searches of his person including the taking of blood and breath samples. Newman v. Stinson, 489 S.W.2d 826, 1972 Ky. LEXIS 34 ( Ky. 1972 ).

Where a defendant did not remain silent after his arrest but denied participation in a robbery, the argument that he was telling his story for the first time at trial was not a means of using his silence to impeach an explanation subsequently offered at trial. Mishler v. Commonwealth, 556 S.W.2d 676, 1977 Ky. LEXIS 525 ( Ky. 1977 ).

Where a criminal defendant has received Miranda warnings following his arrest, his subsequent silence cannot be used to impeach his testimony at trial and where a Commonwealth’s Attorney commented on the defendant’s silence after arrest, by comparing it with the voluntary statement of the prosecution’s witness, such comment was objectionable. Salisbury v. Commonwealth, 556 S.W.2d 922, 1977 Ky. App. LEXIS 825 (Ky. Ct. App. 1977).

Where the prosecutor in a murder trial asked three (3) isolated questions relating to the defendants’ refusal to make a statement at the time of the arrest, the questions constituted only harmless error not requiring a reversal of the convictions since the prosecutor did not focus on their silence, since the defendants explained that such silence resulted from their desire for counsel and since the other evidence against them was overwhelming. Darnell v. Commonwealth, 558 S.W.2d 590, 1977 Ky. LEXIS 537 ( Ky. 1977 ).

Despite prosecutor’s improper comments during trial about defendant’s silence in regard to a bag of cocaine at the arrest scene before being Mirandized, Supreme Court found comments to be harmless error when other factors were considered including a police witness who saw the cocaine fall from defendant’s hand and two (2) post-Miranda statements made by defendant which clearly suggested he was guilty. Green v. Commonwealth, 815 S.W.2d 398, 1991 Ky. LEXIS 107 ( Ky. 1991 ).

An order authorizing the Commonwealth to collect blood, hair and saliva specimens from the defendant, for scientific comparison with physical evidence obtained upon examination of the alleged victim was not unconstitutional on the grounds that the procedure compelled the defendant to “give evidence against himself,” in violation of this section; this section was not intended to repeal the authority to seize physical evidence implied by Const. § 10. Mace v. Morris, 851 S.W.2d 457, 1993 Ky. LEXIS 10 ( Ky. 1993 ).

In a capital murder case, defendant’s privilege against self-incrimination was not violated by the introduction of various statements he made after committing the offense alleged because: (1) some of those statements were made to people who were not law enforcement officers, so they were not the product of a custodial interrogation; (2) statements that were made to law enforcement officers were made after defendant was warned of his Miranda rights and waived those rights, both orally and in writing; (3) defendant did not unequivocally invoke his privilege against self-incrimination; and (4) despite the presence of drugs in defendant’s body, there was no indication that he was intoxicated to the extent that any statements he made were not made voluntarily. Soto v. Commonwealth, 139 S.W.3d 827, 2004 Ky. LEXIS 93 ( Ky. 2004 ), cert. denied, 544 U.S. 931, 125 S. Ct. 1670, 161 L. Ed. 2d 495, 2005 U.S. LEXIS 2608 (U.S. 2005).

Kentucky recognizes a routine booking question exception to Miranda, including its application to inquiries about a defendant’s employment status per United States v. Gotchis. Dixon v. Commonwealth, 149 S.W.3d 426, 2004 Ky. LEXIS 272 ( Ky. 2004 ).

Trial court’s finding during a suppression hearing that a detective’s questioning of defendant during defendant’s booking was not geared to eliciting an incriminating response was supported by substantial evidence; thus, the questioning fell within the routine booking exception to Miranda and defendant’s right against self-incrimination was not violated. Dixon v. Commonwealth, 149 S.W.3d 426, 2004 Ky. LEXIS 272 ( Ky. 2004 ).

Where defendant was given Miranda warnings prior to questioning, but an audiotape failed to record part of the conversation, the suppression of statements given was not required because there was no recordation requirement. Ragland v. Commonwealth, 2004 Ky. LEXIS 284 (Ky. Nov. 18, 2004).

Portions of a statement given in a murder case were not suppressed at trial because defendant did not make a clear and unequivocal request for counsel during questioning; defendant stated “Do I need to get an attorney” and later said “I don’t think I need one but you know.” Ragland v. Commonwealth, 2004 Ky. LEXIS 284 (Ky. Nov. 18, 2004).

Privilege against self-incrimination did not justify the suppression of a pre-arrest adoptive admission by silence under KRE 801A(b)(2). There was no state action involved, as the witness who confronted defendant was a friend and colleague who was not acting on behalf of the Commonwealth. Commonwealth v. Buford, 197 S.W.3d 66, 2006 Ky. LEXIS 106 ( Ky. 2006 ).

Trial court erred in finding that the defendant was not in custody at the time he made his incriminating statement, as the surrounding circumstances showed that at the time said statement was made: (1) defendant was caught for shoplifting and being held in a small room where the door was always kept shut; (2) the questioning officer positioned himself between defendant and the door, the only means of leaving the office; (3) defendant was not advised of his Miranda rights; and (4) the officer thoroughly searched defendant, engaging in physical touching of defendant’s person. Bethel v. Commonwealth, 2007 Ky. App. LEXIS 105 (Ky. Ct. App. Apr. 13, 2007).

Suppression of evidence was not required where defendant made potentially incriminating statements, without Miranda warnings, in response to a police officer’s question about where defendant had hidden a handgun that defendant had discarded shortly before defendant was confronted by police. The “public safety exception” of Quarles applied under such circumstance both under the Fifth Amendment and Ky. Const. § 11 since the officer was concerned about a member of the public finding the gun that defendant had tossed in a nearby vacant lot. Henry v. Commonwealth, 275 S.W.3d 194, 2008 Ky. LEXIS 320 ( Ky. 2008 ), overruled in part, Rose v. Commonwealth, 322 S.W.3d 76, 2010 Ky. LEXIS 246 ( Ky. 2010 ).

Officer’s reference to defendant’s exercising his right to remain silent was isolated and brief and, apparently, not intentionally elicited by the prosecution; because defendant did not show that this reference compromised his right to a fair trial, the trial court did not abuse its discretion in denying his mistrial motion. Vincent v. Commonwealth, 281 S.W.3d 785, 2009 Ky. LEXIS 46 ( Ky. 2009 ).

Trial court abused its discretion when it permitted testimony concerning defendant’s pre-arrest, pre-Miranda silence that was the product of official compulsion; defendant was officially compelled to incriminate herself when an officer, suspecting that defendant had been drinking, asked defendant to submit to a breathalyzer test. Baumia v. Commonwealth, 2012 Ky. LEXIS 191 (Ky. Nov. 21, 2012), sub. op., 402 S.W.3d 530, 2012 Ky. LEXIS 503 ( Ky. 2012 ), modified, op. withdrawn, sub. op., 402 S.W.3d 530, 2013 Ky. LEXIS 247 ( Ky. 2013 ).

Official compulsion must be present in order for the privilege against self-incrimination to attach. Baumia v. Commonwealth, 402 S.W.3d 530, 2012 Ky. LEXIS 503 ( Ky. 2012 ).

Tampering with physical evidence under KRS 524.100 does not involve testimonial communications as defined under the Fifth Amendment to the United States Constitution and Ky. Const. § 11. Murray v. Commonwealth, 399 S.W.3d 398, 2013 Ky. LEXIS 230 ( Ky. 2013 ).

Defendant’s convictions for complicity to rape, and first-degree rape, sodomy, and sexual abuse were proper because, considering the totality of the circumstances, the interrogation did not appear to present a serious danger of coercion, one in which a reasonable person would have felt he was not at liberty to terminate the interrogation and leave or ask to be returned to his cell. Thus, he was not subjected to custodial interrogation for purposes of Miranda and the trial court properly denied the motion to suppress. Buster v. Commonwealth, 406 S.W.3d 437, 2013 Ky. LEXIS 363 ( Ky. 2013 ).

It was error to admit defendant's non-custodial police interview, in which defendant was selectively silent in the face of criminal accusations, after an unnecessary Miranda advisement, because defendant could rely on the advisement's implicit promise not to use the silence against defendant. Bartley v. Commonwealth, 445 S.W.3d 1, 2014 Ky. LEXIS 492 ( Ky. 2014 ).

Defendant's selective silence in a police interview could not be admitted against defendant because (1) defendant did not testify, so defendant did not try to use the silence to gain an advantage, and (2) the U.S. Supreme Court strongly suggested an accused's silence was inadmissible any time an accused was silent in police interrogations. Bartley v. Commonwealth, 445 S.W.3d 1, 2014 Ky. LEXIS 492 ( Ky. 2014 ).

In Kentucky, the giving of Miranda warnings generally bars the use of any ensuing silence because, when an accused receives the Miranda warnings' implicit promise that any silence will not be used against him or her, it is fundamentally unfair and a violation of due process to then use that silence against him or her, and this is true even where the Miranda warnings are given unnecessarily. Bartley v. Commonwealth, 445 S.W.3d 1, 2014 Ky. LEXIS 492 ( Ky. 2014 ).

35.— — Voluntary.

Testimony given by a person at a coroner’s inquest at time he was not under arrest was voluntary, even though he was under suspicion, and such testimony is admissible against him in a subsequent trial. Pruett v. Commonwealth, 199 Ky. 35 , 250 S.W. 131, 1923 Ky. LEXIS 747 ( Ky. 1923 ).

This section against self-incrimination does not cover evidence of voluntary admissions made by accused in or out of court. Turner v. Commonwealth, 227 Ky. 520 , 13 S.W.2d 533, 1929 Ky. LEXIS 913 ( Ky. 1929 ).

Defendant waived right to remain silent when he took stand in his own behalf. Pitts v. Commonwealth, 227 Ky. 792 , 13 S.W.2d 1053, 1929 Ky. LEXIS 960 ( Ky. 1929 ).

Defendant who voluntarily testified against himself at inquest could not later invoke this section, and where there was conflict in evidence as to such testimony being voluntary, court did not err in denying defendant’s motion for peremptory instruction in this regard. Frost v. Commonwealth, 258 Ky. 709 , 81 S.W.2d 583, 1935 Ky. LEXIS 239 ( Ky. 1935 ).

Defendant who voluntarily testified for himself waived his right to refuse to answer incriminating questions only to extent that such incrimination related to offense charged. Fitzgerald v. Commonwealth, 269 Ky. 800 , 108 S.W.2d 1041, 1937 Ky. LEXIS 685 ( Ky. 1937 ).

Highway patrolman, in requiring driver of truck to allow truck to be weighed to determine whether weight law was being violated, did not compel drive to give evidence against himself, where driver, though not expressly consenting, voluntarily complied with patrolman’s direction. Commonwealth v. Abell, 275 Ky. 802 , 122 S.W.2d 757, 1938 Ky. LEXIS 498 ( Ky. 1938 ).

Generally, this section does not require police judge to warn defendant about self-incrimination at examining trial, and where such defendant made possibly incriminating statement about dead body, warning was not required, since he was not compelled to give evidence. Neal v. Commonwealth, 302 S.W.2d 573, 1956 Ky. LEXIS 7 ( Ky. 1956 ).

Evidence that defendant was confronted and beaten by prosecuting witness and neighbors before trial and neither admitted nor denied accusations there made was admissible at trial without violation of defendant’s right against self-incrimination, since no objection was made and since defendant voluntarily testified as to these things himself. Hurt v. Commonwealth, 379 S.W.2d 726, 1964 Ky. LEXIS 254 ( Ky. 1964 ).

Statements indicative of guilt made by defendant voluntarily before he was placed in custody were admissible. Wilson v. Commonwealth, 411 S.W.2d 33, 1967 Ky. LEXIS 451 ( Ky. 1967 ).

A defendant’s right under this section not to be compelled to give evidence against himself was not violated where the defendant was fully aware of his right to counsel and right to remain silent, and where his waiver of counsel and his admissions were intelligently and voluntarily made. Jasper v. Commonwealth, 471 S.W.2d 7, 1971 Ky. LEXIS 220 ( Ky. 1971 ).

Where a 19-year-old defendant, who was mentally retarded, having the mentality of an 8 to 12-year-old child, and who was shown by breathalyzer test to have a blood-alcohol content of .015, after having been given the proper “Miranda warnings,” refused to sign a statement but orally admitted to the interrogating officer of knifing a robbery victim, his out-of-court confession was held to be voluntary, understandingly made, and admissible. Cox v. Commonwealth, 491 S.W.2d 834, 1973 Ky. LEXIS 607 (Ky.), cert. denied, 414 U.S. 862, 94 S. Ct. 81, 38 L. Ed. 2d 112, 1973 U.S. LEXIS 759 (U.S. 1973).

Trial court’s finding that defendant’s statement to deputies was voluntary under Miranda was supported by substantial evidence as a deputy testified at the suppression hearing that the confession was volunteered; defendant’s belated attempt to contradict the deputy after both the suppression hearing and the state’s case had been presented was inadequate to change the outcome of the ruling. Watkins v. Commonwealth, 105 S.W.3d 449, 2003 Ky. LEXIS 120 ( Ky. 2003 ).

Question-first technique used to obtain defendant’s confession did not violate the Fifth Amendment as the police told defendant that he was free to leave, that he did not have to answer questions, and that he could return home after the interview; defendant was not in custody at the time of the confession and Miranda did not apply. Callihan v. Commonwealth, 142 S.W.3d 123, 2004 Ky. LEXIS 179 ( Ky. 2004 ).

Kentucky Supreme Court rejects the “focus of the investigation” test regarding the necessity of Miranda warnings; Miranda is limited to custodial interrogation. Callihan v. Commonwealth, 142 S.W.3d 123, 2004 Ky. LEXIS 179 ( Ky. 2004 ).

Defendant’s motion to suppress statements made to the police on the ground that they were made without Miranda warnings was properly denied because defendant was not placed in custody, in that he was handcuffed merely to allow the officers to conduct an investigative stop in an area with multiple escape routes, and the statements were not made in response to any police statement reasonably calculated to elicit an incriminating response. The police officer was simply informing defendant of the reason for his stop when defendant interrupted him to tell him that he had cocaine and marijuana on his person. Taylor v. Commonwealth, 182 S.W.3d 521, 2006 Ky. LEXIS 15 ( Ky. 2006 ).

Defendant was not subjected to custodial interrogation or its functional equivalent when his mother asked to speak with him, thereby prompting his waiving of his Miranda rights and giving of the incriminating statement, because the officers testified that they gave her no promises and told her that she could not be asked to speak with defendant on behalf of the State. Defendant voluntarily, knowingly, and intelligently waived his right to have counsel present at his interrogation and his right to remain silent when he reinitiated communication with the police. Roberson v. Commonwealth, 185 S.W.3d 634, 2006 Ky. LEXIS 52 ( Ky. 2006 ).

As an officer began an interview assuming defendant was simply a witness with knowledge of three murders, and Mirandized him as soon as it became clear that defendant was involved, defendant was not “in custody” when the interview began, and the officer acted in good faith and did not engage in an improper “question first” technique. Therefore, defendant’s confession to participating in the murders did not have to be suppressed. Alkabala-Sanchez v. Commonwealth, 255 S.W.3d 916, 2008 Ky. LEXIS 162 ( Ky. 2008 ).

District Court properly denied appellant juvenile’s motion to suppress his incriminating statements made during the school interview; because appellant was told that he was free to leave and not required to discuss the sexual misconduct allegations, appellant was not in custody and no Miranda warnings were required. Appellant’s freedoms were not any more restricted than any other student at the school and there was nothing in the record that indicated that the trial court’s findings of fact were inaccurate or incomplete. C.W.C.S. v. Commonwealth, 282 S.W.3d 818, 2009 Ky. App. LEXIS 38 (Ky. Ct. App. 2009).

36.— — Compulsory.

Freedom from compulsory self-incrimination under this section was violated by admission of evidence obtained in search without valid warrant. Walters v. Commonwealth, 199 Ky. 182 , 250 S.W. 839, 1923 Ky. LEXIS 790 ( Ky. 1923 ), overruled in part, Henson v. Commonwealth, 347 S.W.2d 546, 1961 Ky. LEXIS 374 ( Ky. 1961 ).

Involuntary confession, while excluded under this section, could be used to discover weapons or other particulars thus revealed, and evidence thereby obtained was competent. Baughman v. Commonwealth, 206 Ky. 441 , 267 S.W. 231, 1924 Ky. LEXIS 366 ( Ky. 1924 ). But see McQueen v. Commonwealth, 196 Ky. 227 , 244 S.W. 681, 1922 Ky. LEXIS 493 ( Ky. 1922 ).

Protection from compulsory self-incrimination applied to civil cases and could be invoked if offense existed with which witness could be charged. Akers v. Fuller, 312 Ky. 502 , 228 S.W.2d 29, 1950 Ky. LEXIS 683 ( Ky. 1950 ).

Defendant can, under RCr 7.24, be required by prosecution to furnish list of names and addresses of all witnesses he intends to call at trial without violating his right against self-incrimination under this section and Fifth Amendment of the U.S. Constitution.Commonwealth v. Donovan, 610 S.W.2d 601, 1980 Ky. LEXIS 283 ( Ky. 1980 ).

It was reversible error for trial court not to suppress all oral statements made by defendant relating to murder-robbery following his first request for an attorney which was denied to him. Baril v. Commonwealth, 612 S.W.2d 739, 1981 Ky. LEXIS 217 ( Ky. 1981 ).

Supreme court affirmed defendant’s murder conviction; there was no Ky. Const. § 11 right against self-incrimination violation, state action, custodial interrogation, or Miranda violation that prevented defendant’s brother from testimony regarding the incriminating statement defendant made to the brother—even though the brother was a police officer. Adkins v. Commonwealth, 96 S.W.3d 779, 2003 Ky. LEXIS 13 ( Ky. 2003 ).

RCr 7.24(3)(A)(1) did not require defendant to produce expert reports that were not in existence for production to the Commonwealth as RCr 7.24(3)(A)(1)’s plain terms did not require defendant to generate such reports; to require defendant to generate such reports would result in overreaching discovery orders, from which defendant was protected by the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and Ky. Const. § 11, and would violate defendant’s right against self-incrimination. Commonwealth v. Nichols, 280 S.W.3d 39, 2009 Ky. LEXIS 75 ( Ky. 2009 ).

State supreme court did not need to apply the Fifth Amendment, U.S. Const. amend. V, which was made applicable to the states through the Fourteenth Amendment, Ky. Const. § 2 involving exercises of power, or Ky. Const. § 11 regarding the right against self-incrimination in answering the question about whether the trial court could hold a revocation of probation hearing on new, unresolved charges. Under its supervisory authority based on Ky. Const. § 110, Ky. Const. § 115, and Ky. Const. § 116, the state supreme court could craft a rule recognizing that it was not necessary that a conviction occur before a probation revocation hearing could be held, but the trial court had to make a probationer aware that while the testimony in such a hearing could not be used as substantive evidence in a criminal proceeding, such testimony could be used for other purposes, such as impeachment. Barker v. Commonwealth, 379 S.W.3d 116, 2012 Ky. LEXIS 132 ( Ky. 2012 ).

Because tampering with physical evidence under KRS 524.100 did not involve testimonial communications as defined under the Fifth Amendment to the United States Constitution and Ky. Const. § 11, and appellant was in no way compelled to produce evidence evincing his guilt, his right against self-incrimination was not violated, and the trial court did not err in refusing to dismiss the tampering charges. Murray v. Commonwealth, 399 S.W.3d 398, 2013 Ky. LEXIS 230 ( Ky. 2013 ).

37.— — Other Offenses.

Accused, by testifying for himself, does not give the Commonwealth the right to compel him to admit the commission of other offenses which would subject him to punishment, presentment, or infamy. Baker v. Commonwealth, 106 Ky. 212 , 50 S.W. 54, 20 Ky. L. Rptr. 1778 , 1899 Ky. LEXIS 33 ( Ky. 1899 ).

Where accused testifies as a witness, he stands as any other witness, and since a witness cannot be required to give evidence against himself, or to testify to facts showing his commission of a public offense, accused cannot be required to disclose the commission of public offenses other than that for which he is on trial. Welch v. Commonwealth, 108 S.W. 863, 33 Ky. L. Rptr. 51 (1908).

When accused becomes witness for himself, Commonwealth does not have right to compel him to admit commission of other offenses, nor to ask questions to excite in minds of jury a suspicion that he has been guilty of other offenses. Maiden v. Commonwealth, 225 Ky. 671 , 9 S.W.2d 1018, 1928 Ky. LEXIS 854 ( Ky. 1928 ).

Generally, defendant could not be compelled to admit to any offenses not pertinent to case at bar, or to offenses not charged. Grigsby v. Commonwealth, 299 Ky. 721 , 187 S.W.2d 259, 1945 Ky. LEXIS 786 ( Ky. 1945 ).

In trial on forged check charge, defendant could not be compelled to testify as to other allegedly forged checks. Jones v. Commonwealth, 303 Ky. 666 , 198 S.W.2d 969, 1947 Ky. LEXIS 531 ( Ky. 1947 ).

Questions by prosecution as to other offenses were erroneous. Swanger v. Commonwealth, 255 S.W.2d 38, 1953 Ky. LEXIS 636 ( Ky. 1953 ).

Defendant’s post-Miranda confession to sodomizing a five-year-old child and evidence procured from the confession should have been suppressed as it was obtained as a direct result of defendant’s confession to his counselor in a court-ordered treatment facility, which was a necessary part of his treatment, and as defendant did not receive a Miranda warning before confessing to his counselor. Welch v. Commonwealth, 149 S.W.3d 407, 2004 Ky. LEXIS 276 ( Ky. 2004 ).

Defendant’s confession to his counselor of sodomizing a five-year-old child should have been suppressed as defendant was in a court-ordered treatment facility, he was not given his Miranda warnings prior to the confession, the confession was a necessary part of his treatment, and the counselor notified law enforcement officers, making the counselor a state actor for purposes of the Fifth Amendment and Ky. Const., § 11. Welch v. Commonwealth, 149 S.W.3d 407, 2004 Ky. LEXIS 276 ( Ky. 2004 ).

38.— — Failure to Testify.

Where a defendant had testified on a former trial in his own behalf but did not do so on a subsequent trial, the admission of his testimony given on the former trial is not in violation of the Constitution, which protects one from being forced to give evidence against himself. Nor is such evidence in violation of the law which protects one from being prejudiced by having failed to testify for himself. Bess v. Commonwealth, 118 Ky. 858 , 82 S.W. 576, 26 Ky. L. Rptr. 839 , 1904 Ky. LEXIS 115 ( Ky. 1904 ).

Defendant cannot be compelled to testify, and his decision to remain silent may not be questioned. Bradley v. Commonwealth, 261 S.W.2d 642, 1953 Ky. LEXIS 1040 ( Ky. 1953 ).

Where defendant chose not to testify, prosecutor’s remark that if only person who could have explained crime had done so, he had not heard it was improper reference to defendant’s choice. Bradley v. Commonwealth, 261 S.W.2d 642, 1953 Ky. LEXIS 1040 ( Ky. 1953 ).

Unnecessary reference by prosecutor to defendant’s failure to testify was reversible error, notwithstanding court’s admonition to jury to disregard such reference. Adams v. Commonwealth, 264 S.W.2d 283, 1954 Ky. LEXIS 672 ( Ky. 1954 ).

Prosecutor’s reference to defendant’s failure to testify was not always reversible error, and such was true where no objection was made at time of such reference. Byrd v. Commonwealth, 283 S.W.2d 191, 1955 Ky. LEXIS 290 ( Ky. 1955 ).

While privilege against self-incrimination included right not to have prosecutor refer to defendant’s failure to testify, such right did not apply to codefendant who was indicted but not on trial. Neal v. Commonwealth, 302 S.W.2d 573, 1956 Ky. LEXIS 7 ( Ky. 1956 ).

Prosecutor did not prejudice defendant’s rights in commenting on his failure to testify where such comment was response to prior defense statements. Montgomery v. Commonwealth, 346 S.W.2d 479, 1961 Ky. LEXIS 308 ( Ky. 1961 ).

Indirect references to defendant’s failure to testify are not considered prejudicial unless they are reasonably certain to direct jury’s attention to failure. Anderson v. Commonwealth, 353 S.W.2d 381, 1961 Ky. LEXIS 8 ( Ky. 1961 ), cert. denied, 369 U.S. 829, 82 S. Ct. 847, 7 L. Ed. 2d 795, 1962 U.S. LEXIS 1582 (U.S. 1962), cert. denied, 369 U.S. 863, 82 S. Ct. 953, 8 L. Ed. 2d 20, 1962 U.S. LEXIS 1418 (U.S. 1962).

Where prosecution told jury that Commonwealth’s facts were uncontradicted, it was not reasonably probable that such remarks were calculated to call attention of jury to defendant’s failure to testify. Fanelli v. Commonwealth, 418 S.W.2d 740, 1967 Ky. LEXIS 229 ( Ky. 1967 ).

Though in summation to the jury the prosecutor at one point commented on defendant’s failure to testify, the other evidence was so overwhelming that any constitutional violation of the privilege against self-incrimination was not prejudicial. Caldwell v. Commonwealth, 503 S.W.2d 485, 1972 Ky. LEXIS 3 ( Ky. 1972 ).

Argument that a defendant has failed to contradict the prosecutor’s evidence has been upheld as a proper form of argument; accordingly, comments by a prosecutor which did not directly refer to the defendant’s failure to testify, but only referred to the fact that the defense did not put on any witnesses at all, were a proper form of argument. Haynes v. Commonwealth, 657 S.W.2d 948, 1983 Ky. LEXIS 283 ( Ky. 1983 ).

Where the internal inconsistencies and improbabilities of the defendant’s alibi coupled with the Commonwealth’s proof were overwhelming, the prosecutor’s error in questioning the defendant about his silence was not of such magnitude that it would be considered even though it was not preserved for appeal. Jackson v. Commonwealth, 717 S.W.2d 511, 1986 Ky. App. LEXIS 1449 (Ky. Ct. App. 1986).

The challenged questions of the prosecutor indirectly relating to the defendant’s silence were undeniably an intrusion of his protection under the Fifth Amendment to the United States Constitution and this section. Jackson v. Commonwealth, 717 S.W.2d 511, 1986 Ky. App. LEXIS 1449 (Ky. Ct. App. 1986).

Trial court had no obligation to ask a defendant whether he knowingly and voluntarily waived his right to testify. Riley v. Commonwealth, 91 S.W.3d 560, 2002 Ky. LEXIS 250 ( Ky. 2002 ).

Defendant was improperly denied a no adverse inference of guilt jury instruction under RCr 9.54(3) during the penalty phase of the trial as it was requested and as the jury was asked to determine whether defendant was a persistent felony offender (PFO) in a combined PFO/truth in sentencing phase; due to the error, the PFO determination and the enhanced sentences fixed as a result of the PFO finding were reversed. Watkins v. Commonwealth, 105 S.W.3d 449, 2003 Ky. LEXIS 120 ( Ky. 2003 ).

39.— — Cross-examination.

Upon a trial for murder, defendant, testifying for himself, was privileged from answering questions asked on cross-examination as to another murder with which he was charged. Howard v. Commonwealth, 110 Ky. 356 , 61 S.W. 756, 22 Ky. L. Rptr. 1845 , 1901 Ky. LEXIS 96 ( Ky. 1901 ).

On a trial for crime, the proof of the commission of other offenses to show motive must be made by others than accused, and he cannot be required, over his protest, to do so on his cross-examination. Welch v. Commonwealth, 108 S.W. 863, 33 Ky. L. Rptr. 51 (1908).

Defendant who testified voluntarily thereby waived self-incrimination rights on cross-examination, with respect to offense charged. Albritten v. Commonwealth, 226 Ky. 802 , 11 S.W.2d 959, 1928 Ky. LEXIS 182 ( Ky. 1928 ).

Defendant’s right not to incriminate himself was waived when he testified voluntarily and was cross-examined. Morris v. Commonwealth, 231 Ky. 838 , 22 S.W.2d 295, 1929 Ky. LEXIS 373 ( Ky. 1929 ).

Where lease provided for forfeiture if whiskey was sold on premises, permitting of lessee, in forcible detainer action, to be called as witness as if upon cross-examination, and to testify he had been and was then engaged in selling whiskey on leased premises, did not violate this section as requiring witness to testify against himself, since the occupied position of defendant in a civil proceeding. Pettitte v. Smith, 261 Ky. 411 , 87 S.W.2d 945, 1935 Ky. LEXIS 660 ( Ky. 1935 ).

It was prejudicial error to elicit on cross-examination of defendant that he had deserted from army, where purpose was not to impeach character and defendant wore uniform during trial. Grigsby v. Commonwealth, 299 Ky. 721 , 187 S.W.2d 259, 1945 Ky. LEXIS 786 ( Ky. 1945 ).

Right of defendant not to be compelled to incriminate himself extended to cross-examination. Grigsby v. Commonwealth, 299 Ky. 721 , 187 S.W.2d 259, 1945 Ky. LEXIS 786 ( Ky. 1945 ).

Larceny defendant could be cross-examined, when he testified on his own behalf, without violation of his privilege against self-incrimination. Bowling v. Commonwealth, 286 S.W.2d 884, 1955 Ky. LEXIS 107 ( Ky. 1955 ).

Even where trial court conducted sufficient inquiry into witness’ claim of privilege against self-incrimination, that privilege may still be withheld if the court finds that the possibility of incrimination with respect to a totally unrelated transaction is so remote as to render the danger imaginary or unappreciable. Commonwealth v. Gettys, 610 S.W.2d 899, 1980 Ky. App. LEXIS 403 (Ky. Ct. App. 1980).

Where prosecution stated that it would limit questions to witness to specifics of bribery transaction, the possibility that the witness would incriminate himself by revealing perjury in prior testimony to grand jury regarding campaign contributions to third party was so remote as to render the danger imaginary or unappreciable, since the trial judge had broad discretion in the limitation of irrelevant cross-examination. Commonwealth v. Gettys, 610 S.W.2d 899, 1980 Ky. App. LEXIS 403 (Ky. Ct. App. 1980).

Supreme court affirmed defendant’s murder conviction; defendant’s girlfriend’s incriminating direct testimony was not to be stricken (under an argument that defendant was effectively denied defendant’s U.S. Const. amend. VI and Ky. Const. § 11 right to confront the girlfriend just because the defendant might be precluded from attacking the girlfriend’s credibility because of the girlfriend’s invocation of Fifth Amendment; the defendant’s confrontation right could be restricted by the girlfriend’s invocation of the girlfriend’s right against self-incrimination guaranteed by the Fifth Amendment. Adkins v. Commonwealth, 96 S.W.3d 779, 2003 Ky. LEXIS 13 ( Ky. 2003 ).

40.— — Grand Juries.

Exemption from liability for gaming disclosed by a witness’ own testimony in a prosecution against another gives immunity to a witness testifying before a grand jury. Bentler v. Commonwealth, 143 Ky. 503 , 136 S.W. 896, 1911 Ky. LEXIS 435 ( Ky. 1911 ).

Under this section, an individual citizen cannot be required to exhibit to a grand jury his books and papers containing evidence incriminating him. Commonwealth v. Southern Express Co., 160 Ky. 1 , 169 S.W. 517, 1914 Ky. LEXIS 396 ( Ky. 1 914) ( Ky. 1914 ).

Constitutional protection against self-incrimination extends to investigations before grand juries. Frain v. Applegate, 239 Ky. 605 , 40 S.W.2d 274, 1931 Ky. LEXIS 832 ( Ky. 1931 ).

Accused taken from jail before a grand jury and questioned concerning a crime testified under compulsion and indictment was quashed, but another indictment could be brought against him on the same charge if indictment was not based on former testimony. Generally, privilege against self-incrimination may be waived, and failure to warn witness of his privilege is not a violation of it. Taylor v. Commonwealth, 274 Ky. 51 , 118 S.W.2d 140, 1938 Ky. LEXIS 227 ( Ky. 1938 ).

Motion to quash indictment, on ground defendant was compelled to testify against himself before grand jury, was properly denied where such motion was belated and where it was supported solely by unverified statement of counsel. Salyers v. Commonwealth, 274 Ky. 284 , 118 S.W.2d 208, 1938 Ky. LEXIS 242 ( Ky. 1938 ).

Although privilege against self-incrimination applied to grand jury proceedings, minor prosecuting witness therein could not assert privilege, since, where incest was alleged, even if she had consented she could not be prosecuted. Kinslow v. Carter, 282 S.W.2d 141, 1955 Ky. LEXIS 228 ( Ky. 1955 ).

Where privilege against self-incrimination was asserted by grand jury witness, trial judge was one to decide whether privilege was properly asserted, based on nature of questions and facts of particular situation. Kinslow v. Carter, 282 S.W.2d 141, 1955 Ky. LEXIS 228 ( Ky. 1955 ).

Privilege against self-incrimination applied to grand jury investigations, and to incrimination relative to state as well as federal offenses. Commonwealth v. Rhine, 303 S.W.2d 301, 1957 Ky. LEXIS 254 ( Ky. 1957 ).

Defendant’s daughter was properly held in contempt for refusing to answer grand jury questions as to whether she was in car with deceased when he was shot, and if so, who shot him, since mere presence is not evidence of participation in crime and her answers thus would not be self-incriminating. Young v. Knight, 329 S.W.2d 195, 1959 Ky. LEXIS 149 ( Ky. 1959 ).

This provision is a shield and protection, available to all persons summoned as witnesses, whether or not they have been accused of crime, including those called upon to testify at a grand jury inquiry. Young v. Knight, 329 S.W.2d 195, 1959 Ky. LEXIS 149 ( Ky. 1959 ).

Witness could assert self-incrimination privilege at defendant’s trial even though such witness had testified in grand jury appearance. Galloway v. Commonwealth, 374 S.W.2d 835, 1964 Ky. LEXIS 387 ( Ky. 1964 ).

Although defendant was advised of his rights before testifying to a grand jury under Ky. Const. § 11, there was no evidence that he voluntarily waived those rights. Thus, the admission of defendant’s grand jury testimony at trial for receiving stolen property under KRS 514.110(1) was improper because the testimony provided the only evidence of defendant’s intent and opened the door to challenge his credibility. Johnson v. Commonwealth, 2007 Ky. App. LEXIS 10 (Ky. Ct. App. Jan. 12, 2007, sub. op., 2007 Ky. App. Unpub. LEXIS 1217 (Ky. Ct. App. Jan. 12, 2007), review denied, ordered not published, 2007 Ky. LEXIS 157 (Ky. Aug. 15, 2007).

41.— — Blood Tests.

While this section provides that no person be compelled to give evidence against himself in a criminal prosecution, such protection extends only to evidence of a testimonial nature and the taking of blood samples and breath for analysis under KRS 186.565 (now repealed) are searches of the person for evidence and not compulsion of testimony and do not violate this section. Newman v. Stinson, 489 S.W.2d 826, 1972 Ky. LEXIS 34 ( Ky. 1972 ).

The provisions of KRS 189A.200 which provide for a summary pretrial suspension of a motor vehicle operator’s license for refusal of repeat offender to take a blood alcohol test do not violate the procedural or substantive due process requirements of the Fourteenth Amendment to the United States Constitution or of Sections 10 and 11 of the Kentucky Constitution. Commonwealth v. Raines, 847 S.W.2d 724, 1993 Ky. LEXIS 51 ( Ky. 1993 ), overruled in part, Commonwealth v. Howard, 969 S.W.2d 700, 1998 Ky. LEXIS 95 ( Ky. 1998 ), overruled in part, Commonwealth v. Carman, 455 S.W.3d 916, 2015 Ky. LEXIS 66 ( Ky. 2015 ).

42.— — Breath Analysis.

While this section provides that no person be compelled to give evidence against himself in a criminal prosecution, such protection extends only to evidence of a testimonial nature and the taking of blood samples and breath for analysis under KRS 186.565 (now repealed) are searches of the person for evidence and not compulsion of testimony and do not violate this section. Newman v. Stinson, 489 S.W.2d 826, 1972 Ky. LEXIS 34 ( Ky. 1972 ).

43.— —Waiver.

Since one who enters a guilty plea waives his privilege against self-incrimination, it must be shown that such waiver was voluntary and knowing and, where the record in a rape prosecution did not show that the court discussed the issue with the defendant to insure that the defendant had a full understanding of the consequences of his guilty plea, there was no valid waiver. Scott v. Commonwealth, 555 S.W.2d 623, 1977 Ky. App. LEXIS 797 (Ky. Ct. App. 1977).

The district court did not err in permitting the jury to hear testimony on the refusal of defendant to take a breathalyzer test; such testimony did not violate defendant’s privilege against self-incrimination or right to due process. Commonwealth v. Hager, 702 S.W.2d 431, 1986 Ky. LEXIS 225 ( Ky. 1986 ).

Although an audiotape failed to record an entire conversation between defendant and police during an interrogation where Miranda rights were read, the circumstances showed that defendant waived the rights; a videotape showed defendant nodding after the warnings were read, and defendant responded to questioning after the warnings were read. Ragland v. Commonwealth, 2004 Ky. LEXIS 284 (Ky. Nov. 18, 2004).

Since defendant came to the detective’s office voluntarily and was told he was free to leave at any time, there was nothing to indicate that he was in custody until the moment he admitted involvement in the murder, nor would a “reasonable person” have thought otherwise. Therefore, he had not been entitled to Miranda warnings. Emerson v. Commonwealth, 230 S.W.3d 563, 2007 Ky. LEXIS 166 ( Ky. 2007 ).

Defendant did not waive defendant's previously invoked right to remain silent in a police interview by mentioning matters an officer did not ask defendant about because this was not inconsistent with the exercise of the right. Bartley v. Commonwealth, 445 S.W.3d 1, 2014 Ky. LEXIS 492 ( Ky. 2014 ).

In a case in which a deputy advised defendant to tell the nurse what he had taken or he could die, defendant’s motion to suppress his statement that he swallowed methamphetamine was properly denied as the deputy did not interrogate defendant at the hospital because, although the deputy’s statements could be viewed as likely to elicit a statement that defendant might have overdosed on controlled substances, taking controlled substances would not necessarily subject him to criminal sanctions as Kentucky did not criminalize use of controlled substances, only possession of them; and the deputy was not acting in an investigative capacity, or should have known his statements would lead to an admission of tampering. Brank v. Commonwealth, 566 S.W.3d 560, 2018 Ky. App. LEXIS 206 (Ky. Ct. App. 2018).

44.—Trial.
45.— — Jurisdiction.

Concurrent criminal jurisdiction provided by KRS 224.99-010 (9) is violative of this section in situations where there is no valid connection between the criminal activity and Franklin County; judgments asserting defendant’s entitlement to venue in county where dumping violations of KRS 224.40-100 (2) and 224.40-305 occurred were affirmed. Commonwealth v. Crider & Rogers, 929 S.W.2d 179, 1996 Ky. LEXIS 77 ( Ky. 1996 ).

46.— — Public.

The requirement of this section guaranteeing a public trial does not mean that all of the public who desire to be present may do so, or that the trial judge may not, without favor or discrimination, limit the spectators to the capacity of the room in which the trial is had, and the court’s action in stationing policemen at convenient places and in limiting admission to the courtroom, to prevent overcrowding, without discriminating against accused or his friends, is not ground for reversal of a conviction. Wendling v. Commonwealth, 143 Ky. 587 , 137 S.W. 205, 1911 Ky. LEXIS 474 ( Ky. 1911 ).

In cases involving evidence of an unsavory, vulgar or revolting nature, the court may exclude so much of the public as is merely morbid, curious or sensation-seeking, but may not deprive the accused of the right to have his family and friends present as well as a reasonable portion of the public. Beauchamp v. Cahill, 297 Ky. 505 , 180 S.W.2d 423, 1944 Ky. LEXIS 766 ( Ky. 1944 ).

Courtrooms are kept open not so that members of the public can expose wrongdoings; rather, they are open to allow the citizens to see for themselves how their laws are impartially applied. Lexington Herald Leader Co. v. Tackett, 601 S.W.2d 905, 1980 Ky. LEXIS 229 ( Ky. 1980 ).

A trial judge has inherent authority to exclude spectators from the courtroom in order to protect witnesses where there has been a finding by the court of potential harm which will result from unrestricted public attendance. Lexington Herald Leader Co. v. Tackett, 601 S.W.2d 905, 1980 Ky. LEXIS 229 ( Ky. 1980 ).

The trial judge in a sodomy prosecution should not have ordered the courtroom closed to the entire public and press during the testimony of the ten (10) alleged juvenile victims, since the potential embarrassment and emotional trauma to witnesses simply do not permit a trial judge to close his courtroom to the entire public. Lexington Herald Leader Co. v. Tackett, 601 S.W.2d 905, 1980 Ky. LEXIS 229 ( Ky. 1980 ).

While the same policy which calls for openness in criminal trials also calls for openness in pretrial proceedings, sequestration of the jury would not be a remedy to prevent the circulation throughout the community or state of prejudicial information from a pretrial proceeding, thus closing pretrial proceedings to the press and public may be proper in preventing jurors from considering inadmissible prejudicial evidence. Ashland Publishing Co. v. Asbury, 612 S.W.2d 749, 1980 Ky. App. LEXIS 424 (Ky. Ct. App. 1980).

The guarantee in this section of “a speedy public trial,” like the guarantee of a “public trial” in U.S. Const., Amend. 6, is a right personal to the accused, not part of public access to criminal trials. Lexington Herald-Leader Co. v. Meigs, 660 S.W.2d 658, 1983 Ky. LEXIS 276 ( Ky. 1983 ).

The Sixth Amendment guarantee of public trial is a right personal to the accused, but the First Amendment gives the press and public a right of access to trial separate and apart from the accused’s Sixth Amendment right; it is only when necessary for protection of a defendant’s Sixth Amendment fair trial rights that a court may, after a proper hearing, bar members of the press and public. The right of press and public access is not absolute, but the accused has no exclusive right to either demand or deny the presence of the press and public. Lexington Herald-Leader Co. v. Meigs, 660 S.W.2d 658, 1983 Ky. LEXIS 276 ( Ky. 1983 ).

Whereas individual voir dire of prospective jurors on their views of the death penalty and their previous knowledge of the case, held out of the hearing of their fellow jurors, the public and press, is a traditional procedure, used in the trial court’s discretion, the trial court in a murder prosecution was not required to anticipate objection to his closure of the voir dire proceeding and give advance notice to the press. Notice and an opportunity to be heard meant only notice to those present when the voir dire commenced and an opportunity to be heard when objection to closure was made. Lexington Herald-Leader Co. v. Meigs, 660 S.W.2d 658, 1983 Ky. LEXIS 276 ( Ky. 1983 ).

47.— — Closure.

Where the trial court in a sodomy and sexual abuse trial closed the courtroom to the public and press during the testimony of the minor victims, but refused to do so during defendant’s testimony in the event the defendant testified, no rights guaranteed to him by the U.S. Const., Amends. 5, 6 and 14 or by this section, were denied by the action of the trial court. Payne v. Commonwealth, 623 S.W.2d 867, 1981 Ky. LEXIS 286 ( Ky. 1981 ), cert. denied, 456 U.S. 909, 102 S. Ct. 1758, 72 L. Ed. 2d 167, 1982 U.S. LEXIS 1573 (U.S. 1982).

Before ordering closure the trial judge should consider the utility of other reasonable methods available to protect the rights of the accused short of closure, and at the time the motion for closure is made or heard any member of the public or press who is then present and objects must be given an opportunity to be heard on the question and if closure is ordered specific findings should be made setting out the need for closure. Ashland Publishing Co. v. Asbury, 612 S.W.2d 749, 1980 Ky. App. LEXIS 424 (Ky. Ct. App. 1980).

Where trial judge ordered that transcripts of all closed hearings be made available to the public after the jury was empaneled and sequestered or after trial, the public’s acquisition of information is delayed but not frustrated and, although there is slight damage to the commercial interest of the news media, the competing societal interests of fair trial and public access are met. Ashland Publishing Co. v. Asbury, 612 S.W.2d 749, 1980 Ky. App. LEXIS 424 (Ky. Ct. App. 1980).

Before closing the courtroom to the public and news media in order to conduct individual voir dire of prospective jurors, the trial court must hold a hearing; at the hearing to decide the question of closure, the accused who seeks closure has the burden of persuasion. The burden of proof on the accused when he would infringe the public and press right of access is threefold: (a) he must show that the right or interest he wishes to protect is sufficiently important to warrant the extraordinary protection of the closed court; (b) he must show that the asserted right or interest probably cannot be adequately protected by less restrictive alternatives to closure; and (c) he must show that it is probable that the right or interest he seeks to protect will be protected by a closed proceeding. Lexington Herald-Leader Co. v. Meigs, 660 S.W.2d 658, 1983 Ky. LEXIS 276 ( Ky. 1983 ).

A proper standard of review of a trial court’s decision regarding closure of some portion of the criminal proceedings is to recognize that the decision is an exercise of a discretionary function by the trial court, that the Supreme Court should not impose a rigid format for the exercise or expression of that discretion, and that the Supreme Court should respect the decision of the trial court unless it appears from the record that the trial court has abused its discretion. Lexington Herald-Leader Co. v. Meigs, 660 S.W.2d 658, 1983 Ky. LEXIS 276 ( Ky. 1983 ).

The correct rule concerning the closure of criminal proceedings permits or denies closure on facts particular to the case after considering whether there is a reasonable alternative sufficient to adequately protect the accused’s right to a fair trial before an impartial jury; each case will differ depending upon the circumstances. Lexington Herald-Leader Co. v. Meigs, 660 S.W.2d 658, 1983 Ky. LEXIS 276 ( Ky. 1983 ).

48.— — — Pretrial Hearing.

A pretrial hearing should be closed to the public and press only after a determination is made that there is a substantial probability that the right of the accused to a fair trial or his other constitutional rights will be otherwise irreparably damaged, thus, if the evidence to be introduced at the pretrial hearing is found to be of a kind that would not be admissible at the trial itself, if this evidence is not otherwise already known generally to the press and public, and if the trial court reasonably believes that its dissemination to the public will probably irreparably damage the constitutional rights of the accused, then closure should be ordered. Ashland Publishing Co. v. Asbury, 612 S.W.2d 749, 1980 Ky. App. LEXIS 424 (Ky. Ct. App. 1980).

Where evidence presented only by one side in murder trial is evidence which jury would hear at trial along with countervailing evidence, an accused’s right to fair trial would not be irreparably damaged by permitting the evidence to be disseminated before trial, thus, trial judge’s order closing all pretrial hearings involving evidentiary matters presented by only one side was too broad. Ashland Publishing Co. v. Asbury, 612 S.W.2d 749, 1980 Ky. App. LEXIS 424 (Ky. Ct. App. 1980).

49.— —Speedy.

The practice of filing away indictments is not to be indulged where the accused has been served with process and objects to the order. Jones v. Commonwealth, 114 Ky. 599 , 71 S.W. 643, 24 Ky. L. Rptr. 1434 , 1903 Ky. LEXIS 21 ( Ky. 1903 ).

The defendant was not denied his constitutional right to a speedy trial, notwthstanding a 34 month delay between indictment and trial, where the trial was delayed for 19 months because of the interlocutory appeal of a codefendant and the defendant did not identify any prejudice with respect to his ability to present his defense at trial. Gabow v. Commonwealth, 34 S.W.3d 63, 2000 Ky. LEXIS 136 ( Ky. 2000 ), cert. denied, 534 U.S. 832, 122 S. Ct. 80, 151 L. Ed. 2d 43, 2001 U.S. LEXIS 5753 (U.S. 2001).

Lawful dismissal of charges against defendant did not violate his right to speedy trial. Slater v. Commonwealth, 239 Ky. 620 , 40 S.W.2d 389, 1931 Ky. LEXIS 875 ( Ky. 1931 ).

Defendant’s right to speedy trial was not denied so as to require setting aside of his conviction where he was in jail for year prior thereto, since Commonwealth was granted two (2) continuances and Circuit Court had only three (3) terms per year. Mahan v. Commonwealth, 286 S.W.2d 93, 1955 Ky. LEXIS 95 ( Ky. 1955 ).

Defendant’s right to speedy trial was not violated when he was indicted at May, 1954 term and tried in November, 1955. Clark v. Commonwealth, 293 S.W.2d 465, 1956 Ky. LEXIS 67 ( Ky. 1956 ), cert. denied, 353 U.S. 923, 77 S. Ct. 682, 1 L. Ed. 2d 720, 1957 U.S. LEXIS 1116 (U.S. 1957).

Speedy trial sometimes fails to meet requirement of justice because of trial court’s failure to allow accused and his counsel adequate time for preparation of case. Woods v. Commonwealth, 305 S.W.2d 935, 1957 Ky. LEXIS 355 ( Ky. 1957 ).

Filing away of criminal warrant or indictment over accused’s objection is in violation of his constitutional right to speedy trial. Van Arsdale v. Caswell, 311 S.W.2d 404, 1958 Ky. LEXIS 196 ( Ky. 1958 ).

On motion of defendant, felony indictments would be ordered docketed for speedy trial, and would be dismissed if Commonwealth was unprepared and had insufficient grounds for continuance. Hoskins v. Wright, 367 S.W.2d 838, 1963 Ky. LEXIS 31 ( Ky. 1963 ).

When defendant’s new trial had not been held after 17 months from reversal and remand of previous trial, he was denied right to speedy trial. Wagner v. Ardery, 378 S.W.2d 625, 1964 Ky. LEXIS 195 ( Ky. 1964 ).

Where prisoner in federal penitentiary had never been served with a warrant or process from a state court on a charge of armed robbery, he was not entitled to a trial under the provisions of the Constitution requiring a speedy trial. Ruip v. Knight, 385 S.W.2d 170, 1964 Ky. LEXIS 134 ( Ky. 1964 ). See Ruip v. Commonwealth, 415 S.W.2d 372, 1967 Ky. LEXIS 312 ( Ky. 1967 ).

Eight (8) month delay because of illness of key witness for prosecution did not deny defendant speedy trial, especially where he made no demand for trial. Barker v. Commonwealth, 385 S.W.2d 671, 1964 Ky. LEXIS 161 ( Ky. 1964 ).

Defendant was not denied speedy trial where offense was committed on September 8, 1961, indictment was returned October 11, 1962, and trial was held February 5, 1963. Wheeler v. Commonwealth, 395 S.W.2d 565, 1964 Ky. LEXIS 533 (Ky. Ct. App. 1964), cert. denied, 385 U.S. 826, 87 S. Ct. 58, 17 L. Ed. 2d 62, 1966 U.S. LEXIS 673 (U.S. 1966).

Defendant was not denied speedy trial where he was indicted in June of 1963 and tried in November of 1963. Runyon v. Commonwealth, 393 S.W.2d 877, 1965 Ky. LEXIS 248 ( Ky. 1965 ), cert. denied, 384 U.S. 906, 86 S. Ct. 1341, 16 L. Ed. 2d 359, 1966 U.S. LEXIS 1852 (U.S. 1966).

Where prosecution on indictment was continued for over three (3) years because the defendant was in prison on another charge and made no demand for immediate trial, his constitutional rights were not violated. La Vigne v. Commonwealth, 398 S.W.2d 691, 1966 Ky. LEXIS 501 ( Ky. 1966 ).

Prisoner in penitentiary against whom other charges are pending is entitled to a trial on the charges as soon as it is reasonably possible to arrange same. Augustus v. Simpson, 416 S.W.2d 349, 1967 Ky. LEXIS 266 ( Ky. 1967 ). See Hayes v. Ropke, 416 S.W.2d 349, 1967 Ky. LEXIS 267 ( Ky. 1967 ).

The defendant could not complain of a lack of speedy trial where the delay resulted from two (2) reassignments to which the defendant did not object. Blair v. Commonwealth, 458 S.W.2d 761, 1970 Ky. LEXIS 182 ( Ky. 1970 ).

Where, after the defendant’s demand for speedy trial, it was set for trial two and one-half (21/2) months later and then tried, there was no unreasonable delay. Blair v. Commonwealth, 458 S.W.2d 761, 1970 Ky. LEXIS 182 ( Ky. 1970 ).

Where there was approximately a seven and a half month (71/2) delay between the demand for a speedy trial and the trial itself, notwithstanding that there was a two (2) year period before such demand for a speedy trial, the delay in bringing defendant to trial, after his first demand for a speedy trial, was unreasonable, in view of the Commonwealth’s lack of a proper showing for the need to prepare itself. Mann v. Commonwealth, 561 S.W.2d 335, 1978 Ky. App. LEXIS 463 (Ky. Ct. App. 1978).

Where there was no attempt by defendant to secure a speedy trial, a 15-month delay between indictment and trial did not deny his right to such trial. Walker v. Commonwealth, 561 S.W.2d 656, 1977 Ky. LEXIS 578 ( Ky. 1977 ).

Four (4) factors must be balanced in determining whether the right to a speedy trial has been violated: the length of the delay, the reasons for the delay, the defendant’s assertion of the right to a speedy trial, and prejudice suffered by the defendant. Crawley v. Commonwealth, 568 S.W.2d 927, 1978 Ky. LEXIS 374 ( Ky. 1978 ), cert. denied, 439 U.S. 1119, 99 S. Ct. 1028, 59 L. Ed. 2d 79, 1979 U.S. LEXIS 531 (U.S. 1979), limited, Martin v. Commonwealth, 13 S.W.3d 232, 1999 Ky. LEXIS 143 ( Ky. 1999 ).

Where defendants were slow to assert their right to speedy trial and pretrial incarceration could not be said to be prejudicial in light of defendants’ status as parole violators, delay of 22 months between arrest and trial was not so prejudicial as to require dismissal of the complaint. Crawley v. Commonwealth, 568 S.W.2d 927, 1978 Ky. LEXIS 374 ( Ky. 1978 ), cert. denied, 439 U.S. 1119, 99 S. Ct. 1028, 59 L. Ed. 2d 79, 1979 U.S. LEXIS 531 (U.S. 1979), limited, Martin v. Commonwealth, 13 S.W.3d 232, 1999 Ky. LEXIS 143 ( Ky. 1999 ).

Defendant’s right to a speedy trial was not violated when the court weighed the time during which he was involuntarily hospitalized in its analysis, because the time between the dismissal of charges and any new indictment was not considered. Commonwealth v. Miles, 816 S.W.2d 657, 1991 Ky. App. LEXIS 18 (Ky. Ct. App. 1991).

A delay of 41 months from the time of defendant’s indictment to the time his case came to trial gave rise to a need for further scrutiny of the four (4) factors to be utilized in analyzing claims of denial of speedy trial: (1) the length of the delay; (2) whether the delay was more the fault of the defendant or the government; (3) the defendant’s assertion of his right to a speedy trial; and (4) whether the defendant suffered prejudice as a result of the delay. Preston v. Commonwealth, 898 S.W.2d 504, 1995 Ky. App. LEXIS 57 (Ky. Ct. App. 1995).

The nearly eight (8) year lapse between the time the crimes were committed and the time defendant was finally brought to trial did not violate defendant’s right to a speedy trial where first indictment was dismissed upon a finding that defendant was incompetent to stand trial, defendant was involuntarily hospitalized for over three (3) years, then reindicted and found competent to stand trial, and then following motions filed by both sides, jury selection occurred a year later. Determination of length of delay for speedy trial purposes does not include the time when a defendant was not under indictment. Brown v. Commonwealth, 934 S.W.2d 242, 1996 Ky. LEXIS 97 ( Ky. 1996 ).

Where the delay in holding defendant’s trial was attributable solely to defendant he is precluded from claiming unreasonable delay. Tabor v. Commonwealth, 948 S.W.2d 569, 1997 Ky. App. LEXIS 43 (Ky. Ct. App. 1997).

Four (4) factors are to be considered when determining whether a defendant’s right to a speedy trial has been violated: (1) length of the delay, (2) reason for the delay, (3) defendant’s assertion of the right to a speedy trial, and (4) prejudice to the defendant. Tamme v. Commonwealth, 973 S.W.2d 13, 1998 Ky. LEXIS 46 ( Ky. 1998 ), modified, 1998 Ky. LEXIS 110 (Ky. Sept. 3, 1998), cert. denied, 525 U.S. 1153, 119 S. Ct. 1056, 143 L. Ed. 2d 61, 1999 U.S. LEXIS 1229 (U.S. 1999).

Fact that defendant was prejudiced by being incarcerated prior to trial was not enough to establish that his right to a speedy trial had been violated, where the delays were for reasons beyond the Commonwealth’s control and where appellant filed a motion to dismiss but never filed a formal demand for a speedy trial. Tamme v. Commonwealth, 973 S.W.2d 13, 1998 Ky. LEXIS 46 ( Ky. 1998 ), modified, 1998 Ky. LEXIS 110 (Ky. Sept. 3, 1998), cert. denied, 525 U.S. 1153, 119 S. Ct. 1056, 143 L. Ed. 2d 61, 1999 U.S. LEXIS 1229 (U.S. 1999).

Although defendant asserted his right to a speedy trial and the length of delay was presumptively prejudicial, the reasons for delay were acceptable and the prejudice caused to defendant was minimal; thus, defendant’s rights to a speedy trial were not violated. Dunaway v. Commonwealth, 60 S.W.3d 563, 2001 Ky. LEXIS 201 ( Ky. 2001 ).

It is the filing of a detainer (not, for example, the issuance of an indictment) against a prisoner that triggers the application of KRS 500.110 , and a request for a final disposition is not premature under KRS 500.110 so long as the prisoner files it after a detainer has been lodged against the prisoner; otherwise, the request is treated as a motion for a speedy trial under the United States Constitution and the Kentucky Constitution. Rosen v. Watson, 103 S.W.3d 25, 2003 Ky. LEXIS 78 ( Ky. 2003 ).

In a capital murder case, defendant’s right to a speedy trial was not violated, when it was held slightly less than one year after his arrest, because (1) the reasons for the delay were not egregious; (2) the complex nature of the case justified a delay; (3) there was no indication that delays in completing discovery were deliberate attempts to delay the trial in order to hamper the defense; and (4) defendant was not entitled to a delay because the trial judge delayed the trial for one week to complete his continuing judicial education requirements. Soto v. Commonwealth, 139 S.W.3d 827, 2004 Ky. LEXIS 93 ( Ky. 2004 ), cert. denied, 544 U.S. 931, 125 S. Ct. 1670, 161 L. Ed. 2d 495, 2005 U.S. LEXIS 2608 (U.S. 2005).

Although the two-year delay between the time defendant was indicted and the trial was presumptively prejudicial, defendant’s right to a speedy trial was not violated, since the delay was not occasioned by the Commonwealth’s deliberate attempt to delay the trial, there was no evidence that defendant suffered anxiety that extended beyond the normal levels associated with criminal trials, and defendant’s ability to mount a defense was not impeded. Cross v. Commonwealth, 2007 Ky. App. Unpub. LEXIS 90 (Ky. Ct. App. Apr. 27, 2007), review denied, ordered not published, 2008 Ky. LEXIS 198 (Ky. Apr. 16, 2008).

Delay of two years and four months between defendant’s trial and his arrest for robbery and unauthorized use of a motor vehicle did not violate his right to a speedy trial in part because eight and one-half months of the delay lay squarely with defendant; his out-of-state incarceration was not a valid, justifiable reason for delay. Smith v. Commonwealth, 361 S.W.3d 908, 2012 Ky. LEXIS 29 ( Ky. 2012 ).

Defendant was not denied his right to a speedy trial because although the two-year period from defendant’s arrest to the third trial was presumptively prejudicial, and having asserted his right to a speedy trial early on in the proceedings, defendant was clearly concerned about bringing his case to trial, a great number of delays were of defendant’s own creation. The Commonwealth did not attempt to deliberately delay the trial, but instead brought the case to a jury trial three times in two years. Goncalves v. Commonwealth, 404 S.W.3d 180, 2013 Ky. LEXIS 2 (Ky.), cert. denied, 571 U.S. 1081, 134 S. Ct. 705, 187 L. Ed. 2d 567, 2013 U.S. LEXIS 8596 (U.S. 2013).

Although significantly delayed by the prosecution of earlier drug charges, the delay in defendant's trial for the instant charges was not unconstitutional where the five-year delay was due to the government's prosecution of the prior offenses, the delay caused by the government's actions following the conclusion of the prior case was brief, and because defendant was already incarcerated, the two-month delay caused by the government was not prejudicial. Goben v. Commonwealth, 503 S.W.3d 890, 2016 Ky. LEXIS 630 ( Ky. 2016 ).

Defendant’s right to a speedy trial were not violated where although a nearly 52-month delay was presumptively prejudicial, nearly all of the delays were attributable to defendant and his pretrial tactics, and thus, it was difficult to give credence to any prejudice he asserted. Lang v. Commonwealth, 556 S.W.3d 584, 2018 Ky. LEXIS 355 ( Ky. 2018 ).

Trial court did not abuse its discretion when it ordered the case dismissed due to violation of defendant’s right to a speedy trial, as the Commonwealth failed to obtain test results in time for trial, the Commonwealth knew of the backlog but failed to timely submit the evidence for testing, defendant timely asserted his right to a speedy trial, and the delay was prejudicial and there was concern about how it would disrupt defense counsel’s strategy. Commonwealth v. Hensley, 2020 Ky. App. LEXIS 120 (Ky. Ct. App. Oct. 23, 2020).

Defendant’s constitutional right to a speedy trial was not violated because, even though the 29-month delay was extraordinary, at most only a minimal delay could be blamed solely on the Commonwealth, defendant agreed to an order that resulted in his trial date being rescheduled for an unassigned future date, and defendant’s claims of prejudice were general and speculative. McLemore v. Commonwealth, 590 S.W.3d 229, 2019 Ky. LEXIS 540 ( Ky. 2019 ).

50.— — —Actual Prejudice.

While defendant may have complained in general terms that he suffered anxiety from not knowing the outcome of his case, such vague allegations of anxiety are insufficient to state a cognizable claim of actual prejudice resulting from his trial delay of 41 months. A defendant must show anxiety which extends beyond that which is inevitable in a criminal case, the requisite showing is one of “psychic injury.” Preston v. Commonwealth, 898 S.W.2d 504, 1995 Ky. App. LEXIS 57 (Ky. Ct. App. 1995).

Because defendant was unable to show with any level of certainty that the witness who died before his trial could have been a material witness on his behalf and it appears just as likely that the witness would have been hostile to the defense, defendant failed to show he suffered actual prejudice as the result of his trial delay of 41 months. Preston v. Commonwealth, 898 S.W.2d 504, 1995 Ky. App. LEXIS 57 (Ky. Ct. App. 1995).

Defendant was not deprived of his speedy trial rights because, although the 20-month delay was presumptively prejudicial, defendant was largely responsible, failed to vigorously assert his right to a speedy trial, and suffered little prejudice. Stacy v. Commonwealth, 396 S.W.3d 787, 2013 Ky. LEXIS 41 ( Ky. 2013 ).

Defendant did not establish a speedy trial violation, despite a presumptively prejudicial delay, because (1) an equal amount of delay was attributable to defendant and the Commonwealth, and, (2) while defendant timely asserted a right to a speedy trial, defendant did not articulate any concrete allegation of prejudice or bad faith on the part of the Commonwealth. Tackett v. Commonwealth, 445 S.W.3d 20, 2014 Ky. LEXIS 494 ( Ky. 2014 ), cert. denied, 575 U.S. 968, 135 S. Ct. 1852, 191 L. Ed. 2d 733, 2015 U.S. LEXIS 2793 (U.S. 2015).

Defendant’s constitutional right to a speedy trial was not violated because, even though the 29-month delay was extraordinary, at most only a minimal delay could be blamed solely on the Commonwealth, defendant agreed to an order that resulted in his trial date being rescheduled for an unassigned future date, and defendant’s claims of prejudice were general and speculative. McLemore v. Commonwealth, 590 S.W.3d 229, 2019 Ky. LEXIS 540 ( Ky. 2019 ).

52.— — Fair.

Where an affidavit states that the judge will not give the litigant a fair and impartial trial, and sets out as the basis of such belief facts such as would prevent an official of personal integrity from presiding in the case, for from affording a fair and impartial trial, it must be assumed that such facts are true, and the judge must accordingly vacate. Powers v. Commonwealth, 114 Ky. 237 , 70 S.W. 1050, 70 S.W. 644, 71 S.W. 494, 24 Ky. L. Rptr. 1007 , 24 Ky. L. Rptr. 1186 , 24 Ky. L. Rptr. 1350 , 1902 Ky. LEXIS 153 ( Ky. 1902 ).

Safest of all means for preserving fair trial under this section was disqualification of prejudiced judge. Stamp v. Commonwealth, 195 Ky. 404 , 243 S.W. 27, 1922 Ky. LEXIS 374 ( Ky. 1922 ).

Where affidavit of what absent witness would testify was read as deposition, after motion for continuance, in a murder prosecution, remark of prosecuting attorney that “here is the evidence of C., a mere affidavit” was prejudicial to defendant under this section. Barnett v. Commonwealth, 225 Ky. 585 , 9 S.W.2d 715, 1928 Ky. LEXIS 823 ( Ky. 1928 ).

Failure to read indictment or defendant’s plea to the jury under this section and criminal code will not authorize reversal in absence of objection and exception disclosed by bill of exceptions, substantial right not being prejudiced. Dabney v. Commonwealth, 226 Ky. 119 , 10 S.W.2d 612, 1928 Ky. LEXIS 35 ( Ky. 1928 ).

Denial of continuance, alleged bias of jurors, and denial of change of venue were insufficient to show denial of right to fair trial under this section. Cassell v. Commonwealth, 248 Ky. 579 , 59 S.W.2d 544, 1933 Ky. LEXIS 283 ( Ky. 1933 ).

Trial court’s rejection of evidence of misconduct of witness denied defendant’s right to fair trial. Abney v. Commonwealth, 251 Ky. 358 , 65 S.W.2d 71, 1933 Ky. LEXIS 877 ( Ky. 1933 ).

It is important that a trial of a criminal prosecution may be had as speedily as possible, but it is more important that the trial be fair than that it be speedy. Chenault v. Commonwealth, 282 Ky. 453 , 138 S.W.2d 969, 1940 Ky. LEXIS 189 ( Ky. 1940 ).

Fair and impartial trial was denied accused where spectators gave expressions of derisive laughter or snickering audible to jury and grinning visible to jury, and despite warning by judge that he would clear courtroom, he did not do so; misconduct of spectators was practically continuous and showed that spirit of revenge dominated the community from which jurors were drawn. Raney v. Commonwealth, 287 Ky. 492 , 153 S.W.2d 935, 1941 Ky. LEXIS 563 ( Ky. 1941 ).

Right of accused to fair and impartial trial is ingrained in Anglo-Saxon jurisprudence, and although not expressly commanded by federal or state Constitutions, is treated as axiomatic in many reported cases. Raney v. Commonwealth, 287 Ky. 492 , 153 S.W.2d 935, 1941 Ky. LEXIS 563 ( Ky. 1941 ).

Where defendant in murder trial voluntarily became drunk during trial, he could not complain of court’s failure to continue the case because of his mental and physical condition. Mullins v. Commonwealth, 291 Ky. 589 , 165 S.W.2d 147, 1942 Ky. LEXIS 279 ( Ky. 1942 ).

Adverse publicity concerning desertion from army did not deny defendant fair trial on charge of malicious shooting with intent to kill. Kelley v. Commonwealth, 300 Ky. 136 , 187 S.W.2d 796, 1945 Ky. LEXIS 804 ( Ky. 1945 ).

Defendant was not denied fair, impartial trial where private person, whose son had been previously killed in defendant’s presence, sought vengeance by helping prosecution with payment and procuring of witnesses. Wright v. Commonwealth, 308 Ky. 329 , 214 S.W.2d 409, 1948 Ky. LEXIS 936 ( Ky. 1948 ).

Conviction would not be reversed for denial of continuance unless such denial precluded fair trial. Davis v. Commonwealth, 310 Ky. 360 , 220 S.W.2d 844, 1949 Ky. LEXIS 919 ( Ky. 1949 ).

Affidavits to effect jury’s toilet facilities were unsatisfactory, and fact that judge sent jury back twice to reach verdict when jury was tired and wanted to go home, did not show unfair trial by reason of jury mistreatment. Young v. Commonwealth, 239 S.W.2d 971, 1951 Ky. LEXIS 922 ( Ky. 1951 ).

Record did not support contention that verdict resulted from passion and prejudice so as to deprive defendant of fair trial. Grant v. Commonwealth, 240 S.W.2d 572, 1951 Ky. LEXIS 977 ( Ky. 1951 ).

Defendant who was not given opportunity to obtain new counsel, when original counsel refused to proceed without guilty plea, was thereby deprived of right to fair trial. Roberts v. Commonwealth, 339 S.W.2d 640, 1960 Ky. LEXIS 480 ( Ky. 1960 ).

Effective representation by counsel in order to satisfy accused’s constitutional right to fair trial is a rule of law that has been strictly construed, and must mean representation so lacking in competence that it becomes duty of court to observe such condition and correct it. Rice v. Davis, 366 S.W.2d 153, 1963 Ky. LEXIS 4 ( Ky. 1963 ).

Fact that defense counsel and prosecuting witness were related by marriage did not show that defendant was denied fair trial. Nolan v. Thomas, 370 S.W.2d 825, 1963 Ky. LEXIS 82 ( Ky. 1963 ).

Where, in closing argument, the Commonwealth’s Attorney directed the jury’s attention to the boots worn by defendant which were similar to those stolen during a robbery but were different in color, the comment did not deny the constitutional right of confrontation, the right to present a defense or the right to a fair trial, but was simply an expression of the prosecutor’s opinion of the defendant’s guilt and was based on the evidence of record, and was proper. Sears v. Commonwealth, 561 S.W.2d 672, 1979 Ky. LEXIS 217 ( Ky. 1979 ).

The failure of a trial court to admit into evidence one question and answer that is designed to impeach a witness will not give rise to an error of constitutional magnitude, absent unusual circumstances. Scruggs v. Commonwealth, 566 S.W.2d 405, 1978 Ky. LEXIS 359 (Ky.), cert. denied, 439 U.S. 928, 99 S. Ct. 314, 58 L. Ed. 2d 321, 1978 U.S. LEXIS 3580 (U.S. 1978).

Where there was no evidence of actual bias on the part of a juror, who had approached the bench to express a belief that the defendant and another had robbed his father and was assured of his error, the trial judge did not abuse his discretion in refusing to declare a mistrial. Polk v. Commonwealth, 574 S.W.2d 335, 1978 Ky. App. LEXIS 621 (Ky. Ct. App. 1978).

Where, in prosecution for murder, the victim’s husband, son, mother, and two (2) daughters each were called to testify, and in the penalty phase closing argument, the prosecutor renewed his argument to consider the impact of this crime on the victim’s family and followed it by reciting a poem said to be the victim’s favorite, and there was nothing in the record to indicate the deceased was even aware of the poem’s existence, the prosecutorial misconduct was calculated to deny the accused’s right to a fair trial and due process of law as guaranteed by the Fifth and Fourteenth Amendments of the United States Constitution, and this section. Sanborn v. Commonwealth, 754 S.W.2d 534, 1988 Ky. LEXIS 35 ( Ky. 1988 ).

A prosecutor’s trial conduct, which included the impermissible glorification of the victim, combined with the sensationalization of that victim’s suffering, tended to pressure the jury to decide the issue of guilt or innocence on considerations apart from the evidence of the defendant’s culpability, and thus was improper. Dean v. Commonwealth, 777 S.W.2d 900, 1989 Ky. LEXIS 77 ( Ky. 1989 ), overruled in part, Caudill v. Commonwealth, 120 S.W.3d 635, 2003 Ky. LEXIS 140 ( Ky. 2003 ), limited, Quarels v. Commonwealth, 142 S.W.3d 73, 2004 Ky. LEXIS 186 ( Ky. 2004 ), overruled in part, Commonwealth v. McGorman, 489 S.W.3d 731, 2016 Ky. LEXIS 102 ( Ky. 2016 ).

In prosecution for burglary in the 3rd degree and PFO I since defendant’s prior felony conviction was inadmissible as evidence or for purposes of impeachment, it was prejudicial for the jury to learn of this conviction through the voir dire; thus statement of prospective juror who was excused by the court that she thought that she had met defendant at West Kentucky Correctional Center tainted the entire voir dire and thus violated the constitutional mandates for a fair and impartial trial. Tabor v. Commonwealth, 948 S.W.2d 569, 1997 Ky. App. LEXIS 43 (Ky. Ct. App. 1997).

Defendant’s right to a fair trial was not violated by consolidating the presumption of innocence instruction and the right to remain silent instruction as separate paragraphs under a single instruction number. Warfield v. Commonwealth, 2004 Ky. App. LEXIS 330 (Ky. Ct. App. Nov. 12, 2004, sub. op., 2004 Ky. App. Unpub. LEXIS 931 (Ky. Ct. App. Nov. 12, 2004), review denied, ordered not published, 2005 Ky. LEXIS 217 (Ky. Aug. 17, 2005).

Prosecutor’s closing argument did not deprive defendant of a fair trial by commenting on defendant’s failure to present a reasonable defense and did not shift the burden of proof to defendant; the prosecutor’s request that the jury punish senseless gun violence did not suggest unjust punishment for defendant in light of the evidence against him. Warfield v. Commonwealth, 2004 Ky. App. LEXIS 330 (Ky. Ct. App. Nov. 12, 2004, sub. op., 2004 Ky. App. Unpub. LEXIS 931 (Ky. Ct. App. Nov. 12, 2004), review denied, ordered not published, 2005 Ky. LEXIS 217 (Ky. Aug. 17, 2005).

Because it was agreed that defendant would not have received a fair trial in the county in which the alleged crimes were committed, venue was transferred to another county under KRS 452.210 . Furthermore, once a judge from another county was appointed special judge pursuant to SCR 1.040(1), the judge validly obtained jurisdiction over defendant’s case by virtue of the special appointment and did not exceed the bounds of the judge’s territorial jurisdiction by sua sponte transferring the trial to the judge’s home county. Baze v. Commonwealth, 276 S.W.3d 761, 2008 Ky. LEXIS 297 ( Ky. 2008 ).

Defendant was denied a fair trial due to prosecutor’s “send a message” remarks regarding the sentences the jury should impose on defendant’s drug related convictions; based on the facts of the case, it was doubtful the jury would have imposed maximum sentences if the improper remarks had not been made. Gaines v. Commonwealth, 283 S.W.3d 243, 2008 Ky. App. LEXIS 230 (Ky. Ct. App. 2008).

Detective’s references to defendant’s lack of cooperation or invocation of defendant’s right to silence under Ky. Const. § 11 was not palpable error under RCr 10.26 as the detective’s references to defendant’s silence responded to defense counsel’s persistent questions arguing that the detective had not performed a proper investigation; since defense counsel asked questions that led the detective to testify that the detective did not photograph or inquire about the scratches or swelling near defendant’s eyes because defendant refused to cooperate, it was not improper for the Commonwealth to ask the detective on redirect about the last question the detective had asked defendant before defendant ceased cooperating. Allen v. Commonwealth, 286 S.W.3d 221, 2009 Ky. LEXIS 159 ( Ky. 2009 ).

In a sexual abuse case, appellant received an unfair trial when a prosecutor made a statement during closing argument that if the jury knew that appellant committed the crime, then the case was proven. Proof of appellant’s guilt was not overwhelming where it was primarily based upon the testimony of a victim, an objection was made, and the trial court’s admonition relating to the proper standard of proof was insufficient to cure the error. Rodgers v. Commonwealth, 314 S.W.3d 745, 2010 Ky. App. LEXIS 70 (Ky. Ct. App. 2010).

53.— — Due Process.

Defendant who was taken into custody for parole violation by welfare department after arrest and acquittal on different charge was not denied due process as described under this section, Const., § 2, and also United States Const., Amend. 14, since he had been on parole and in legal custody of such department during total period in question. Mahan v. Buchanan, 310 Ky. 832 , 221 S.W.2d 945, 1949 Ky. LEXIS 1015 ( Ky. 1949 ).

Fact that legislature did not authorize appeal from $5.00 fine was not denial of due process under this section or under United States Const. Amend. 14. Walters v. Fowler, 280 S.W.2d 523, 1955 Ky. LEXIS 172 ( Ky. 1955 ).

A criminal, however shocking his crime, is not to answer for it with forfeiture of life or liberty until tried and convicted in conformity with law. Powell v. Commonwealth, 346 S.W.2d 731, 1961 Ky. LEXIS 327 ( Ky. 1961 ).

Fact that a person is tried and convicted the same day counsel is appointed to represent him does not necessarily constitute denial of due process. Collins v. Commonwealth, 392 S.W.2d 77, 1965 Ky. LEXIS 272 (Ky.), cert. denied, 382 U.S. 881, 86 S. Ct. 171, 15 L. Ed. 2d 121, 1965 U.S. LEXIS 482 (U.S. 1965).

Habitual criminal procedure which allowed reading to jury of indictment and conviction of another offense did not violate defendant’s rights to due process under this section. Pulliam v. Commonwealth, 406 S.W.2d 724, 1966 Ky. LEXIS 209 ( Ky. 1966 ).

Defendant was not denied due process under this section where trial court prevented him from informing the jury about the strict nonparole provision under subsection (7) of KRS 532.080 , since the persistent felony offender phase of the trial is not designed to provide a separate sentencing phase where mitigating or aggravating factors surrounding the charge can be presented and probation and parole are not constitutional rights, but rather legislative clemencies granted as a matter of grace. White v. Commonwealth, 611 S.W.2d 529, 1980 Ky. App. LEXIS 419 (Ky. Ct. App. 1980), cert. denied, 452 U.S. 966, 101 S. Ct. 3119, 69 L. Ed. 2d 978, 1981 U.S. LEXIS 2563 (U.S. 1981).

Defendant was not denied due process under this section where Commonwealth failed to inform him that the police officer involved had handwritten notes and that defendant had made oral statements to him, since RCr 7.24 specifically prohibits discovery of the notes of a police officer and does not cover oral statements and conversations. White v. Commonwealth, 611 S.W.2d 529, 1980 Ky. App. LEXIS 419 (Ky. Ct. App. 1980), cert. denied, 452 U.S. 966, 101 S. Ct. 3119, 69 L. Ed. 2d 978, 1981 U.S. LEXIS 2563 (U.S. 1981).

Where 12 members of regular jury were out deliberating another case when defendant’s reckless homicide trial began, defendant’s right to fair trial under this section, was not infringed upon where court utilized procedure of calling remaining members of regular 40-member panel and then calling 85 special jurors, since such procedure did not deviate from the specific requirements of KRS 29A.060 or RCr 9.30 and to do otherwise would have caused criminal trials to grind to a halt until earlier panel returned a verdict. Asher v. Commonwealth, 614 S.W.2d 249, 1980 Ky. App. LEXIS 431 (Ky. Ct. App. 1980), vacated, 613 S.W.2d 618, 1981 Ky. LEXIS 234 ( Ky. 1981 ).

The prohibition of the use of a minor in a sexual manner, pursuant to KRS 531.310 , as interpreted through its definitional counterpart in former subdivision (3)(b) of KRS 531.300 , is not vague and overbroad in violation of Const., § 8 and this section or U.S. Const., Amends. 1 and 14, since KRS 531.300 , when read as a whole and coupled with a reference to any standard dictionary, should provide the ordinary person of common sense a clear enough indication of the type of acts prohibited. Payne v. Commonwealth, 623 S.W.2d 867, 1981 Ky. LEXIS 286 ( Ky. 1981 ), cert. denied, 456 U.S. 909, 102 S. Ct. 1758, 72 L. Ed. 2d 167, 1982 U.S. LEXIS 1573 (U.S. 1982).

54.— — Evidence.

The admission into evidence of a videotape of boys under 16 years of age performing sexual acts and 20 photographs of nude boys, which were competent to show design and pattern in a prosecution for the use of a minor in a sexual performance, did not violate U.S. Const., Amends. 6 and 14 or this section. Payne v. Commonwealth, 623 S.W.2d 867, 1981 Ky. LEXIS 286 ( Ky. 1981 ), cert. denied, 456 U.S. 909, 102 S. Ct. 1758, 72 L. Ed. 2d 167, 1982 U.S. LEXIS 1573 (U.S. 1982).

Unnecessary (though unintentional) destruction of total drug sample, after defendant stands charged, renders test results inadmissible, unless defendant is provided a reasonable opportunity to participate in the testing, or is provided with notes and other information incidental to the testing sufficient to enable him to obtain his own expert evaluation. Green v. Commonwealth, 684 S.W.2d 13, 1984 Ky. App. LEXIS 558 (Ky. Ct. App. 1984).

If evidence of other crimes is admissible to show intent or identity or a common scheme or plan, the jury must weigh such evidence for what it is worth in establishing an element of the offense charged. The probative weight of that evidence is directly related to the degree of likelihood that the defendant actually committed the extrinsic acts alleged. Sanders v. Commonwealth, 801 S.W.2d 665, 1990 Ky. LEXIS 93 ( Ky. 1990 ), cert. denied, 502 U.S. 831, 112 S. Ct. 107, 116 L. Ed. 2d 76, 1991 U.S. LEXIS 4767 (U.S. 1991).

Under the circumstances of this case, the common scheme or plan attributed to the defendant was probative both as to the identity and as to the intent of the perpetrator of the crimes with which he was charged, and the evidence strongly indicated that both offenses were committed by the same person, making relevant to the present trial, evidence that the defendant had committed similar, but uncharged acts in another county. Sanders v. Commonwealth, 801 S.W.2d 665, 1990 Ky. LEXIS 93 ( Ky. 1990 ), cert. denied, 502 U.S. 831, 112 S. Ct. 107, 116 L. Ed. 2d 76, 1991 U.S. LEXIS 4767 (U.S. 1991).

Where it was defendant, not the Commonwealth, who injected into trial the entire matter of an unrelated shooting of a jogger, when defendant himself testified about the collateral shooting of the jogger by accomplice he opened the door for the Commonwealth to offer evidence in rebuttal. As such, the admission of accomplice’s out-of-court statement was for a non-hearsay purpose; i.e., to corroborate defendant’s later recanted confession, not to prove per se who actually shot the jogger. Moreover, the statement of accomplice was not introduced as substantive evidence against defendant for the murder of the liquor store clerk which was the only crime charged in the trial in progress. Crane v. Commonwealth, 833 S.W.2d 813, 1992 Ky. LEXIS 78 ( Ky. 1992 ), cert. denied, 506 U.S. 1069, 113 S. Ct. 1020, 122 L. Ed. 2d 167, 1993 U.S. LEXIS 351 (U.S. 1993).

Where tape recording made by officer during the course of undercover drug buy at defendant’s residence was transcribed by the prosecution for jury’s use, and was played for jury at trial, the tapes did not constitute hearsay, as truth of the matter asserted, under KRE 801, but were used as evidence of the event itself and, as such, were introduced for a non-hearsay purpose to prove that the drug buy occurred and the statements were made; defendant’s right to confrontation was not violated under this section, since the right which would permit defendant to confront hearsay witnesses was not at issue. Norton v. Commonwealth, 890 S.W.2d 632, 1994 Ky. App. LEXIS 92 (Ky. Ct. App. 1994).

Admission of hearsay testimony concerning telephone conversation in which anonymous caller told victim that defendant was his assailant, violated defendant’s right of confrontation and required reversal. Court’s admission of evidence, while admonishing jury that testimony was not being admitted for the truth of the matters asserted, but to show what was done in the course of the police investigation, was insufficient to cure its prejudicial impact. Brown v. Commonwealth, 892 S.W.2d 289, 1995 Ky. LEXIS 29 ( Ky. 1995 ).

While on trial for second-degree burglary and for theft by unlawful taking, the accused waived any objection to the taking of fingerprints during trial when he denied that the fingerprints found at the scene of the burglary were his. Frank v. Commonwealth, 907 S.W.2d 771, 1995 Ky. LEXIS 127 ( Ky. 1995 ).

Continuance was required when the Commonwealth delayed production of the police “pool” car log until moments before trial began because it was prejudicial to defendant not to be able to investigate the “pool” car’s use log for potentially presenting evidence that prior occupants of the “pool” car left the drugs inside; officer’s statement that he routinely checked his patrol or pool cars for any weapons or drugs was not conclusive evidence that the officer properly checked the pool car at issue in the instant case. Wilson v. Commonwealth, 388 S.W.3d 127, 2012 Ky. App. LEXIS 281 (Ky. Ct. App. 2012).

55.— — Presumptions.

The irrebuttable presumption that minors, male or female, less than 16 years of age are unable to give consent to sex acts does not violate U.S. Const., Amend. 14 or this section. Payne v. Commonwealth, 623 S.W.2d 867, 1981 Ky. LEXIS 286 ( Ky. 1981 ), cert. denied, 456 U.S. 909, 102 S. Ct. 1758, 72 L. Ed. 2d 167, 1982 U.S. LEXIS 1573 (U.S. 1982).

In a criminal prosecution, results from a DNA test establishing a likelihood of 99.74 percent that defendant was the father of the victim’s child was admissible, and it did not lessen the prosecution’s burden of proof in violation of Ky. Const. §§ 2, 11, although the test used a .5 prior probability statistic. Butcher v. Commonwealth, 96 S.W.3d 3, 2002 Ky. LEXIS 224 ( Ky. 2002 ), cert. denied, 540 U.S. 864, 124 S. Ct. 174, 157 L. Ed. 2d 116, 2003 U.S. LEXIS 6842 (U.S. 2003).

56.— — Waiver.

One may waive the right to be tried by an unprejudiced judge. Hargis v. Commonwealth, 135 Ky. 578 , 123 S.W. 239, 1909 Ky. LEXIS 323 ( Ky. 1909 ).

The failure of the accused to demand trial constitutes a waiver. Blair v. Commonwealth, 458 S.W.2d 761, 1970 Ky. LEXIS 182 ( Ky. 1970 ).

Where the defendant did not raise before the trial court his allegation that he was denied a speedy trial because he was not arrested within a reasonable time after charges were lodged against him, he had waived any such right. Blair v. Commonwealth, 458 S.W.2d 761, 1970 Ky. LEXIS 182 ( Ky. 1970 ).

57.— — Sentencing.

That portion of KRS 532.055(2)(a)1 giving the sole power to introduce evidence of minimum parole eligibility to the Commonwealth, for sentencing purposes, is unconstitutional, and the privilege of introducing said evidence shall be extended to both the defendant and the Commonwealth. Boone v. Commonwealth, 780 S.W.2d 615, 1989 Ky. LEXIS 107 ( Ky. 1989 ).

If “Truth-in-Sentencing” is the objective sought by KRS 532.055 , then either the defendant or the Commonwealth should be permitted to introduce evidence of minimum parole eligibility. Boone v. Commonwealth, 780 S.W.2d 615, 1989 Ky. LEXIS 107 ( Ky. 1989 ).

Where a parole officer testified, incorrectly, that good time credits would be figured into defendant’s parole eligibility, defendant’s due process rights were violated because the testimony was material and the court could not say that it did not influence the jury’s sentencing recommendation. Robinson v. Commonwealth, 181 S.W.3d 30, 2005 Ky. LEXIS 289 ( Ky. 2005 ).

Although defendant’s Boykin challenge survived a waiver of the right to appeal in a guilty plea, the fact that defendant was not specifically informed that defendant had a right to enter a blind plea and to have the jury sentence defendant for murder did not render defendant’s guilty plea invalid because Boykin did not require separate enumeration of each right waived. Grigsby v. Commonwealth, 302 S.W.3d 52, 2010 Ky. LEXIS 20 ( Ky. 2010 ).

Defendant’s challenge to the death penalty as imposed by the trial judge on constitutional grounds failed because Kentucky conferred no constitutional right to jury sentencing. The constitutional right to trial by jury extends to the trial of the issue of guilt or innocence where a plea of not guilty has been entered and does not extend to the fixing of the penalty. Windsor v. Commonwealth, 2010 Ky. LEXIS 210 (Ky. Aug. 26, 2010), sub. op., 413 S.W.3d 568, 2010 Ky. LEXIS 312 ( Ky. 2010 ), modified, 2011 Ky. LEXIS 99 (Ky. Mar. 24, 2011).

While Ky. Const. § 11 declares that no one can be deprived of his life, liberty or property, unless by the judgment of his peers or of the law of the land, Kentucky confers no constitutional right to jury sentencing. The constitutional right to trial by jury extends to the trial of the issue of guilt or innocence where a plea of not guilty has been entered and does not extend to the fixing of the penalty. Windsor v. Commonwealth, 2011 Ky. LEXIS 99 (Ky. Mar. 24, 2011), cert. denied, 565 U.S. 873, 132 S. Ct. 230, 181 L. Ed. 2d 128, 2011 U.S. LEXIS 7141 (U.S. 2011).

58.—Jury.

In order to establish a prima facie case of systematic exclusion, it must be proven, by evidence and not just by an affidavit, that distinctive groups, comprising a substantial percentage of the county population, have been excluded from jury service; ordinarily, professions or occupations are not distinctive groups in a community, absent a showing of numerosity and lack of community needs to establish a prima facie case of systematic exclusion. Commonwealth v. McFerron, 680 S.W.2d 924, 1984 Ky. LEXIS 274 ( Ky. 1984 ).

Affidavit based on personal belief of counsel for defendant, alleging a systematic exclusion of lawyers, doctors and schoolteachers from jury service, failed to make out a prima facie case shifting the burden to the Commonwealth to prove that constitutional standards had been met. Commonwealth v. McFerron, 680 S.W.2d 924, 1984 Ky. LEXIS 274 ( Ky. 1984 ).

The court’s polling of a deadlocked jury and charge to the jury that it had sufficient evidence to make up its mind one way or the other was impermissible under this section. McCampbell v. Commonwealth, 796 S.W.2d 596, 1990 Ky. App. LEXIS 136 (Ky. Ct. App. 1990).

Striking for cause of three (3) jurors because of their inability to set aside their views about the death penalty did not deprive murder defendant of his right to a fair trial. Mabe v. Commonwealth, 884 S.W.2d 668, 1994 Ky. LEXIS 98 ( Ky. 1994 ).

Verdict convicting defendant of drug trafficking was not unanimous in violation of Ky. Const. §§ 2, 7, 11 and RCr 9.82(1). Because the trial court erroneously instructed the jury regarding intent to manufacture or dispense drugs, where there was insufficient evidence to establish this, the instruction violated the defendant’s right to a unanimous verdict. Commonwealth v. Whitmore, 92 S.W.3d 76, 2002 Ky. LEXIS 231 ( Ky. 2002 ).

In a death penalty case, appellant’s argument that KRS 532.025(3) impinged on a constitutional right was rejected because there was no constitutional right to jury sentencing. Windsor v. Commonwealth, 413 S.W.3d 568, 2010 Ky. LEXIS 312 ( Ky. 2010 ).

Defendant’s trial was not held in an improper venue because a reasonable jury could infer defendant intended to kill the victim in the county in which trial was held. Brown v. Commonwealth, 553 S.W.3d 826, 2018 Ky. LEXIS 283 ( Ky. 2018 ).

59.— — Use of Peremptory Challenges.

A female defendant is not denied equal protection under the law when the Commonwealth peremptorily challenges female jurors, as the prohibitions concerning the utilization of peremptory challenges, as described in Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69, 1986 U.S. LEXIS 150 (1986) do not extend beyond racial discrimination. Hannan v. Commonwealth, 774 S.W.2d 462, 1989 Ky. App. LEXIS 92 (Ky. Ct. App. 1989).

Establishing a prima facie case for racial discrimination in jury selection requires more than merely stating that the prosecutor struck by peremptory challenge, a number of blacks from the jury panel; the trial judge should consider all the relevant circumstances. Commonwealth v. Hardy, 775 S.W.2d 919, 1989 Ky. LEXIS 66 ( Ky. 1989 ).

Where trial court failed to sustain challenges for cause presented on grounds so substantial that the failure to disqualify such jurors for cause must be viewed as an abuse of discretion, and where defendant exercised all of his peremptory challenges, the process deprived him of peremptory challenges; thus, his conviction must be reversed regardless of whether any juror proved to be disqualified on voir dire actually participated in the final decision. Thomas v. Commonwealth, 864 S.W.2d 252, 1993 Ky. LEXIS 77 ( Ky. 1993 ), cert. denied, 510 U.S. 1177, 114 S. Ct. 1218, 127 L. Ed. 2d 564, 1994 U.S. LEXIS 2067 (U.S. 1994), overruled in part, Morgan v. Commonwealth, 189 S.W.3d 99, 2006 Ky. LEXIS 12 ( Ky. 2006 ).

Where a trial court inquired into a prosecutor’s proffered reasons for excluding two of three African-Americans on a jury venire to determine if the reasons were race-neutral and not pretextual, the trial court’s factual findings were not clearly erroneous; as a result, defendant’s motion for a mistrial was properly denied. Peartree v. Commonwealth, 2003 Ky. App. LEXIS 111 (Ky. Ct. App. 2003).

Circuit Court did not err in rejecting defendant’s Batson challenge because it properly applied the three-step process for evaluating a Batson challenge and complied with its duty in evaluating the reasons offered; the Circuit Court concluded that the Commonwealth proffered race-neutral reasons for using two of its peremptory challenges against African-American jurors and noted that three (3) African-Americans were on the jury panel. Fugett v. Commonwealth, 250 S.W.3d 604, 2008 Ky. LEXIS 111 ( Ky. 2008 ).

60.— — Nature of Information Jury May Consider.

The constitutional right to a trial by jury is limited to a determination of a defendant’s guilt or innocence; the consideration of future consequences such as treatment, civil commitment, probation, shock probation and parole have no place in the jury’s finding of fact and may serve to distort it. Mitchell v. Commonwealth, 781 S.W.2d 510, 1989 Ky. LEXIS 86 ( Ky. 1989 ).

61.— — Voir Dire.

Where defendant was to be tried simultaneously on two (2) charges of murder, counsel’s question regarding whether prospective juror would lean toward imposition of the death penalty as opposed to other sentencing options if a person was found guilty of a double murder, was proper, and the juror should have been allowed to answer. Sanders v. Commonwealth, 801 S.W.2d 665, 1990 Ky. LEXIS 93 ( Ky. 1990 ), cert. denied, 502 U.S. 831, 112 S. Ct. 107, 116 L. Ed. 2d 76, 1991 U.S. LEXIS 4767 (U.S. 1991).

62.— —Impaneling.

Where the record indicated that defense counsel conducted a thorough examination of the jurors on voir dire and accepted the panel without challenging any of the jurors who had been previously impaneled in a codefendant’s trial, where voir dire did not produce any evidence which prompted the defense counsel to challenge any juror for cause, and where the trial judge properly admonished the jury, the trial court’s denial of the motion to impanel a new jury was not an abuse of discretion. Pelfrey v. Commonwealth, 842 S.W.2d 524, 1992 Ky. LEXIS 150 ( Ky. 1992 ).

Not having jurors who failed to respond to the summons personally served by the sheriff was not a substantial deviation from the proper administrative procedure set out in AP Part II, § 6 and did not cause any prejudice to defendant, as there was a sufficient number of jurors and the randomness of the jury pool was unaffected. Emerson v. Commonwealth, 230 S.W.3d 563, 2007 Ky. LEXIS 166 ( Ky. 2007 ).

That jurors were instructed to bring the juror qualification form with them on the day they were scheduled to report did not violate AP Part II, § 6. Emerson v. Commonwealth, 230 S.W.3d 563, 2007 Ky. LEXIS 166 ( Ky. 2007 ).

Defendant had no constitutional right to a petit jury that included an African-American or that reflected the racial or ethnic makeup of his community and that the trial court abused its discretion by discharging the entire jury panel because none of the jurors were the same race as defendant where there was no showing that the jurors were drawn from a panel that failed to represent a fair cross section of the community. Commonwealth v. Doss, 510 S.W.3d 830, 2016 Ky. LEXIS 560 ( Ky. 2016 ).

63.— —Impartial.

Under law that provided that if the judge is satisfied that impartial jury cannot be obtained in the county where the prosecution is pending, he may summon jurors from adjoining county in which he shall believe there is the greatest probability of obtaining an impartial jury, the fact that other jurors have been summoned from a certain county does not establish the fact that an impartial jury cannot be gotten from that county, or that the judge does not believe that there is the greatest probability of obtaining an impartial jury from that county. Massie v. Commonwealth, 36 S.W. 550, 18 Ky. L. Rptr. 367 (1896).

The party charged with a criminal offense is entitled to be tried by a fair and impartial jury composed of members who are disinterested and free from bias and prejudice, actual or implied or reasonably inferred. Tayloe v. Commonwealth, 335 S.W.2d 556, 1960 Ky. LEXIS 265 ( Ky. 1960 ).

Charges of prejudice and partiality against defendant will not be considered if supported by nothing more than juror’s conclusion of guilt made manifest after submission. Wright v. Commonwealth, 335 S.W.2d 930, 1960 Ky. LEXIS 302 ( Ky. 1960 ).

Fact that jury deliberated three (3) hours and reported “hung” on three (3) returns to courtroom before returning guilty verdict on fourth try did not constitute evidence of partiality in its deliberations. Wright v. Commonwealth, 335 S.W.2d 930, 1960 Ky. LEXIS 302 ( Ky. 1960 ).

Firmness of juror in his conviction after having heard evidence is not indicative of prejudice or partiality. Wright v. Commonwealth, 335 S.W.2d 930, 1960 Ky. LEXIS 302 ( Ky. 1960 ).

Where the court conducted the voir dire in a criminal trial and realized that two (2) jurors had sat on juries in previous cases where the same defendant was convicted of the same offense, and the court failed to call this fact to the attention of the attorneys, the failure was prejudicial error. Gossett v. Commonwealth, 426 S.W.2d 485, 1968 Ky. LEXIS 660 ( Ky. 1968 ).

Where one of the jurors was the brother of the sheriff who was a witness for and actively engaged in the prosecution, there were reasonable grounds to believe the juror could not be impartial. Hayes v. Commonwealth, 458 S.W.2d 3, 1970 Ky. LEXIS 159 ( Ky. 1970 ).

The trial judge did not abuse his discretion in refusing to grant a mistrial following the arrest of a juror between the guilt and penalty phases of defendant’s murder trial, as there did not appear in the record a manifest necessity for such action or an urgent and real necessity. Turpin v. Commonwealth, 780 S.W.2d 619, 1989 Ky. LEXIS 108 ( Ky. 1989 ), cert. denied, 494 U.S. 1058, 110 S. Ct. 1530, 108 L. Ed. 2d 769, 1990 U.S. LEXIS 1576 (U.S. 1990); Brown v. Commonwealth, 780 S.W.2d 627, 1989 Ky. LEXIS 106 ( Ky. 1989 ), cert. denied, 494 U.S. 1087, 110 S. Ct. 1825, 108 L. Ed. 2d 954, 1990 U.S. LEXIS 1938 (U.S. 1990).

A defendant’s right to be tried by an impartial jury is infringed if and only if an unqualified juror participates in the decision of the case. Sanders v. Commonwealth, 801 S.W.2d 665, 1990 Ky. LEXIS 93 ( Ky. 1990 ), cert. denied, 502 U.S. 831, 112 S. Ct. 107, 116 L. Ed. 2d 76, 1991 U.S. LEXIS 4767 (U.S. 1991).

The facts that a juror had a passing acquaintance with the victim and the victim’s wife, and a passing familiarity with the reported circumstances of the crime, were insufficient to demonstrate a probability of prejudice. Sanders v. Commonwealth, 801 S.W.2d 665, 1990 Ky. LEXIS 93 ( Ky. 1990 ), cert. denied, 502 U.S. 831, 112 S. Ct. 107, 116 L. Ed. 2d 76, 1991 U.S. LEXIS 4767 (U.S. 1991).

Of the jurors who actually sat in this case, at least four (4) answered questions acknowledging not only familiarity with the pretrial publicity surrounding the case, but also that they had formed opinions as to the defendant’s guilt, and these answers failed to meet the standard for a fair and impartial jury. Montgomery v. Commonwealth, 819 S.W.2d 713, 1991 Ky. LEXIS 154 ( Ky. 1991 ).

Where a juror who sat on the jury in a case of first-degree rape failed to disclose during voir dire a pretrial conversation she had about the case with a doctor who testified at trial as the examining doctor, the right to a trial by an impartial jury required a reversal of the judgment of conviction and remand for a new trial. Paenitz v. Commonwealth, 820 S.W.2d 480, 1991 Ky. LEXIS 86 ( Ky. 1991 ).

In a capital murder case, defendant was not denied the right to an impartial jury because: (1) the trial court was not required to, sua sponte, excuse jurors who stated that they had not formed an opinion as to defendant’s guilt or innocence and could consider the range of punishments and any mitigating factors that were presented; (2) a juror did not have to be excused for cause because she favored severe penalties, as long as she could consider the full range of penalties; (3) a juror’s acquaintance with members of the sheriff’s department was not the kind of “close relationship” giving rise to implied bias, and the fact that the juror and a victim worked for the same employer and that the juror’s wife worked at the same hospital as another victim did not establish implied bias; and (4) a juror’s statement that he might give slightly more weight to the testimony of a police officer than to that of a layperson, but could render a fair and impartial decision considering all the facts of the case, including the entire range of penalties and mitigating circumstances, did not show implied bias. Soto v. Commonwealth, 139 S.W.3d 827, 2004 Ky. LEXIS 93 ( Ky. 2004 ), cert. denied, 544 U.S. 931, 125 S. Ct. 1670, 161 L. Ed. 2d 495, 2005 U.S. LEXIS 2608 (U.S. 2005).

In a capital murder case, defendant was not denied the right to an impartial jury when a juror who had personal convictions against the death penalty was excused because the juror’s views on capital punishment would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath. Soto v. Commonwealth, 139 S.W.3d 827, 2004 Ky. LEXIS 93 ( Ky. 2004 ), cert. denied, 544 U.S. 931, 125 S. Ct. 1670, 161 L. Ed. 2d 495, 2005 U.S. LEXIS 2608 (U.S. 2005).

Defendant was not denied his right to a fair trial by the trial court’s refusal to exclude propaganda by the victim’s family from the courtroom. While his argument would possibly have had merit if he had been able to cite to any propaganda displayed in the courtroom during the trial or which was viewed by the trial jury at any time, his argument was based on the alleged presence of such propaganda at one time prior to trial and speculation as to whether cars outside the courthouse contained license plates with the victim’s license plate number on them. Coulthard v. Commonwealth, 230 S.W.3d 572, 2007 Ky. LEXIS 161 ( Ky. 2007 ).

In a child molestation case, where defendant argued the jury pool was tainted by some of the members’ contact with a reporter who had chastised them for returning a not guilty verdict in an earlier rape and sodomy case, and that he was thereby denied a fair and impartial jury as required by Ky. Const. § 11 and RCr 9.36(1), since defendant was afforded the opportunity to test the impartiality of the prospective jurors in voir dire and did so without striking any of the jurors for cause, he failed to show actual bias on the part of any juror. Clark v. Commonwealth, 267 S.W.3d 668, 2008 Ky. LEXIS 181 ( Ky. 2008 ).

Refusal to strike a prospective juror for cause was not error, because the juror could conform the juror’s views to requirements of law and render a fair and impartial verdict. The entirety of the juror’s responses and demeanor showed no bias; one of the statements upon which defendant premised his argument occurred in response to continued questioning under a hypothetical given to the juror and the juror qualified the juror’s response as pertaining only to that hypothetical situation. Walker v. Commonwealth, 288 S.W.3d 729, 2009 Ky. LEXIS 157 ( Ky. 2009 ).

Trial court did not abuse its discretion by permitting a married couple to serve on the jury because the jurors’ responses during voir dire included nothing that would have compelled a dismissal, and no presumption of undue influence or lack of independence arose from the fact of marriage alone. Harris v. Commonwealth, 313 S.W.3d 40, 2010 Ky. LEXIS 110 ( Ky. 2010 ).

In a capital case in which defendant was charged with burglary, robbery, and murder, the trial court did not err in refusing to strike for cause a prospective juror who had previously been the victim of a burglary because a year had passed since the juror’s relatively non-traumatic experience, lending credence to the juror’s unhesitating assertion that she could base her decision in defendant’s case on the evidence presented. Given those facts and the absence of any countervailing evidence, the trial court did not abuse its discretion in refusing to strike the prospective juror. Brown v. Commonwealth, 313 S.W.3d 577, 2010 Ky. LEXIS 148 ( Ky. 2010 ), cert. denied, 562 U.S. 1168, 131 S. Ct. 904, 178 L. Ed. 2d 803, 2011 U.S. LEXIS 152 (U.S. 2011).

In a capital case, the trial court did not err in refusing to strike for cause a juror who worked as a city police officer and whose work brought her into contact with the county prosecuting attorney’s office and the state police, who previously worked as a federal law enforcement officer and taught other agents investigation techniques as well as how to testify in court, and whose brother and father had both worked extensively in law enforcement because the juror’s personal and familial connections with law enforcement did not render her implicitly biased in favor of the Commonwealth. Because the prospective juror had no personal acquaintance or relationship with the Commonwealth attorneys who tried the case or with any of the police officers who investigated the crime or were to testify at trial and because the prospective juror betrayed no tendency to lend heightened credence to police testimony, the trial court did not abuse its discretion by ruling that the juror was not disqualified merely by the fact that she worked as a police officer and was related to other officers. Brown v. Commonwealth, 313 S.W.3d 577, 2010 Ky. LEXIS 148 ( Ky. 2010 ), cert. denied, 562 U.S. 1168, 131 S. Ct. 904, 178 L. Ed. 2d 803, 2011 U.S. LEXIS 152 (U.S. 2011).

Although a prospective juror was sexually abused as a child, she stated that she could consider defendant’s case, which involved physical abuse and murder of a child but no sexual abuse, dispassionately; thus, pursuant to the Sixth and Fourteenth Amendments, Ky. Const. § 11, and RCr P. 9.36, defendant’s right to an impartial jury was not violated by the trial court’s refusal to excuse the prospective juror. Rankin v. Commonwealth, 327 S.W.3d 492, 2010 Ky. LEXIS 287 ( Ky. 2010 ).

Court did not abuse its discretion in denying defendant’s motion to excuse the jury panel because the trial court sufficiently probed the possibility of a tainted venire and gave the veniremembers ample opportunity to come forward with any information that might call into question their impartiality. Indeed, the trial court probed all of defense counsel’s concerns in voir dire, and without more, the facts surrounding the bomb threat were simply not sufficiently suggestive of any wrongdoing on defendant’s part to automatically bias a jury panel. King v. Commonwealth, 374 S.W.3d 281, 2012 Ky. LEXIS 114 ( Ky. 2012 ).

Trial court committed reversible error by failing to remove a juror because the trial court failed to properly determine whether the juror was, in fact, impartial, when the juror’s responses to the trial court and counsels’ questions were tainted by the trial court’s implicit assertion (and corresponding pressure) that he was required to serve. Jackson v. Commonwealth, 392 S.W.3d 907, 2013 Ky. LEXIS 39 ( Ky. 2013 ).

Court did not abuse its discretion when it permitted a husband and wife to serve together on his jury because the jurors were both examined during individual voir dire by the Commonwealth, defense counsel, and the trial court. Defense counsel made no motion to strike either juror based upon their responses, and their responses included nothing that would have required a dismissal of them individually. Dunlap v. Commonwealth, 435 S.W.3d 537, 2013 Ky. LEXIS 292 ( Ky. 2013 ), cert. denied, 574 U.S. 838, 135 S. Ct. 87, 190 L. Ed. 2d 72, 2014 U.S. LEXIS 6466 (U.S. 2014).

Defendant parent murder convictions were reversed where the trial court failed to remove for cause two prospective jurors whose responses during voir dire raised sufficient doubts about their impartiality based on their relationship with the assistant prosecutor. Futrell v. Commonwealth, 471 S.W.3d 258, 2015 Ky. LEXIS 1861 ( Ky. 2015 ).

Trial court did not err by failing to remove a juror because, despite defendant’s argument to the contrary, the juror adamantly told the trial court that she did not know defendant and was not biased, and she denied the claim of the mother of defendant’s child that the two of them shared a half-sister. Torrence v. Commonwealth, 603 S.W.3d 214, 2020 Ky. LEXIS 12 (Ky.), cert. denied, 141 S. Ct. 956, 208 L. Ed. 2d 494, 2020 U.S. LEXIS 6071 (U.S. 2020).

Defendant was denied representation at a critical stage of his trial because the trial court engaged in an ex parte discussion with a juror who had been offered a bribe, and that amounted to structural error as it denied defendant his right to an impartial jury. Eversole v. Commonwealth, 600 S.W.3d 209, 2020 Ky. LEXIS 121 ( Ky. 2020 ).

64.— — Petty Offenses.

KRS 351.175 did not violate the provision in this section granting the defendant the right of trial by jury of the vicinage, since this right does not apply to petty offenses. Commonwealth v. Sizemore, 488 S.W.2d 685, 1972 Ky. LEXIS 49 ( Ky. 1972 ).

Because the maximum penalties for first-offense driving under the influence (DUI) are limited to a $500 fine or a 30-day term of imprisonment under KRS 189A.010(5)(a), first-offense DUI is a petty offense for which there is no common law or constitutional right to a jury trial when a defendant is not prosecuted by indictment or information under Ky. Const. § 11. Commonwealth v. Green, 194 S.W.3d 277, 2006 Ky. LEXIS 171 ( Ky. 2006 ).

Although defendant had no common law or constitutional right to a jury trial in his prosecution for first-offense DUI because first-offense DUI is a petty offense and he was not prosecuted by indictment or information under Ky. Const. § 11, the requirements of RCr 9.26(1), including the requirement for the consent of the Commonwealth of Kentucky to a bench trial, were triggered when his case was originally scheduled for jury trial; because the Commonwealth did not consent, the district court erred in granting defendant’s motion for a bench trial, and the Commonwealth was entitled to a writ of prohibition to prevent the bench trial from proceeding. Commonwealth v. Green, 194 S.W.3d 277, 2006 Ky. LEXIS 171 ( Ky. 2006 ).

65.— — Vicinage.

This section is not contravened by law authorizing the summoning of jurors from an adjoining county, if the judge be satisfied, after a fair effort, in good faith, that it will be impracticable to obtain a jury free from bias in the county where the prosecution is pending. Moseley v. Commonwealth, 84 S.W. 748, 27 Ky. L. Rptr. 214 (1905).

The provision of this section preserving the right to trial by a jury of the vicinage does not require that all members of the trial jury be residents of county in which the offense was committed. Baxter v. Commonwealth, 292 Ky. 204 , 166 S.W.2d 24, 1942 Ky. LEXIS 45 ( Ky. 1942 ).

Refusal of court to select jury from adjoining county did not violate defendant’s right to trial by jury of vicinage. Frasure v. Commonwealth, 180 Ky. 274 , 202 S.W. 653, 1918 Ky. LEXIS 56 ( Ky. 1918 ).

Statute authorizing prosecution for homicide in the county where death results from an injury inflicted in another county does not violate this section giving right to trial by jury of vicinage, which means neighborhood of place of commission of crime, or such part as occurs within the county. Spencer v. Commonwealth, 194 Ky. 699 , 240 S.W. 750, 1922 Ky. LEXIS 241 ( Ky. 1922 ).

The fact that one of jurors selected from a special venire to try a homicide case was not a resident of the county did not violate defendant’s constitutional rights. Baxter v. Commonwealth, 292 Ky. 204 , 166 S.W.2d 24, 1942 Ky. LEXIS 45 ( Ky. 1942 ).

Objection, by Negro defendant in murder prosecution, that Negroes were systematically excluded from the grand jury and petit jury lists came too late where objection was not raised until motion and grounds for new trial were filed. Titsworth v. Commonwealth, 298 Ky. 814 , 184 S.W.2d 228, 1944 Ky. LEXIS 1021 ( Ky. 1944 ).

Vicinage meant venue of original offense or part thereof. Woosley v. Commonwealth, 293 S.W.2d 625, 1956 Ky. LEXIS 76 ( Ky. 1956 ).

When Commonwealth accepted ten (11) jurors from the panel, court violated defendant’s right to jury of vicinage by ordering jury summoned from adjoining county before determining how many of such jurors defense was going to excuse, and such violation was reversible abuse of discretion. Bennett v. Commonwealth, 309 S.W.2d 183, 1958 Ky. LEXIS 340 ( Ky. 1958 ).

Application of technical rules of venue results in preservation of ancient right to be tried by impartial jury of vicinage, and so failure to prove venue was reversible error. Willis v. Commonwealth, 339 S.W.2d 174, 1960 Ky. LEXIS 437 ( Ky. 1960 ).

Fact that jury was composed of persons from nonadjoining counties did not violate defendant’s right to be tried by impartial jury of vicinage. Johnson v. Commonwealth, 391 S.W.2d 365, 1965 Ky. LEXIS 297 ( Ky. 1965 ), cert. denied, 383 U.S. 913, 86 S. Ct. 900, 15 L. Ed. 2d 667, 1966 U.S. LEXIS 2282 (U.S. 1966).

Trial court properly exercised its discretion in sua sponte granting the Commonwealth the opportunity to re-open its case in order to present evidence to establish venue of defendant’s criminal trial, pursuant to KRS 452.510 , as the Commonwealth had established the street address where the incident occurred, but had failed to establish further elements to satisfy venue; pursuant to Ky. Const., § 11, defendant was to be tried by an impartial jury of the “vicinage,” which required that venue be proper. Ebertshauser v. Commonwealth, 2005 Ky. App. Unpub. LEXIS 47 (Ky. Ct. App. Feb. 4, 2005).

66.— Change of Venue.

Where no request is made of the court upon an application for a change of venue to compel any person to testify as to the state of the public mind, the affidavits of two (2) citizens required by statute in support of the application cannot be dispensed with, upon the affidavit of counsel that the prejudice against accused is so great that the required affidavits cannot be obtained because good citizens, though expressing the belief that accused cannot have a fair trial in the county, refuse to make affidavit, on the ground that it will injure them to do so. Blanks v. Commonwealth, 105 Ky. 41 , 48 S.W. 161, 20 Ky. L. Rptr. 1037 , 1898 Ky. LEXIS 242 ( Ky. 1898 ).

Where, on an application of defendant for a change of venue, the petition and affidavits complied with the statutes and established a prima facie case, it was the duty of the court, in the absence of other evidence, to grant the change. Shipp v. Commonwealth, 124 Ky. 643 , 99 S.W. 945, 30 Ky. L. Rptr. 904 , 1907 Ky. LEXIS 228 ( Ky. 1907 ).

Since statute providing for change of venue does not require effort by the court to obtain a jury from the county where the prosecution is pending, the failure of the court to make such effort was not violative of this section. Fish v. Benton, 138 Ky. 644 , 128 S.W. 1067, 1910 Ky. LEXIS 114 ( Ky. 1910 ).

Where defendant arrested for homicide was removed to another place of imprisonment due to local excitement, but had attorneys who were unable to procure the necessary affidavits for change of venue, the refusal to grant change of venue under the statute did not violate this section. Graham v. Commonwealth, 164 Ky. 317 , 175 S.W. 981, 1915 Ky. LEXIS 395 ( Ky. 1915 ).

Court erred in refusing to grant change of venue on ground of local prejudice. Allen v. Commonwealth, 168 Ky. 325 , 182 S.W. 176, 1916 Ky. LEXIS 552 ( Ky. 1916 ).

Commonwealth could be granted change of venue without violation of this section. Commonwealth v. Caldwell, 236 Ky. 349 , 33 S.W.2d 1, 1930 Ky. LEXIS 737 ( Ky. 1930 ).

Change of venue to county not within judicial district of circuit judge should have been granted in prosecution for perjury allegedly committed in connection with election contest of judge, in view of prominence of judge, who was prosecuting witness, and of activities of sheriff and other county officials seeking to effect conviction of accused and other witnesses who had testified against judge on election contest. Williams v. Commonwealth, 287 Ky. 570 , 154 S.W.2d 563, 1941 Ky. LEXIS 592 ( Ky. 1941 ). See Sizemore v. Commonwealth, 287 Ky. 631 , 154 S.W.2d 732, 1941 Ky. LEXIS 605 ( Ky. 1941 ).

Prominence of the prosecuting witness in the community is a ground for a change of venue. Williams v. Commonwealth, 287 Ky. 570 , 154 S.W.2d 563, 1941 Ky. LEXIS 592 ( Ky. 1941 ).

Where, on an application by defendant for a change of venue for prejudice of the inhabitants of a county, the petition was in proper form, and it was supported by the affidavits of three (3) citizens of the county, who stated that they were well acquainted with the public opinion, and that they verily believed the statements of the petition to be true, and were of the opinion that defendant could not get a fair trial within the county, such petition and affidavits established a prima facie case. Williams v. Commonwealth, 287 Ky. 570 , 154 S.W.2d 563, 1941 Ky. LEXIS 592 ( Ky. 1941 ).

This section provides the necessity of proving venue in criminal cases. Parks v. Commonwealth, 288 Ky. 447 , 156 S.W.2d 468, 1941 Ky. LEXIS 122 ( Ky. 1941 ).

Court erred in denying change of venue where it was shown defendant probably could not get fair trial in original county. Keeton v. Commonwealth, 314 S.W.2d 204, 1958 Ky. LEXIS 289 ( Ky. 1958 ).

Court was not authorized to change venue on its own motion. Keeton v. Commonwealth, 314 S.W.2d 204, 1958 Ky. LEXIS 289 ( Ky. 1958 ).

Where the defense counsel in a criminal action did not within a reasonable time make known his objection to the court’s order transferring venue of the case to the Circuit Court of another county, the court to which the case was transferred did not err in proceeding with the trial. Sturgill v. Commonwealth, 516 S.W.2d 652, 1974 Ky. LEXIS 140 ( Ky. 1974 ).

Although venue in a criminal action is subject of constitutional concern under this section, the change of venue did not arise to the proportions of due process and fundamental fairness where such change did not directly touch the determination of innocence or guilt. Sturgill v. Commonwealth, 516 S.W.2d 652, 1974 Ky. LEXIS 140 ( Ky. 1974 ).

Where prejudice to criminal defendant was clearly implied from the totality of circumstances, including pretrial publicity, public opinion polls, and the voir dire examination of the jury, defendant was denied his constitutional right to a fair trial when his motion for change of venue was denied. Jacobs v. Commonwealth, 870 S.W.2d 412, 1994 Ky. LEXIS 2 ( Ky. 1994 ), limited, Quarels v. Commonwealth, 142 S.W.3d 73, 2004 Ky. LEXIS 186 ( Ky. 2004 ), overruled in part, St. Clair v. Commonwealth, 451 S.W.3d 597, 2014 Ky. LEXIS 341 ( Ky. 2014 ).

The Rules of Criminal Procedure give a mechanism to a defendant to change venue if it appears that the offense was committed in a county other than the one in which the indictment was returned. Rule 8.26 and KRS 452.210 allow a change of venue if either the defendant or the Commonwealth cannot obtain a fair trial in the county where the indictment was returned. None of these provisions allow a Circuit Court Judge to change venue as a matter of convenience or to try a defendant outside of the county in which the crime was committed. Wolfenbarger v. Commonwealth, 936 S.W.2d 770, 1996 Ky. App. LEXIS 100 (Ky. Ct. App. 1996), overruled in part, Winstead v. Commonwealth, 327 S.W.3d 386, 2010 Ky. LEXIS 102 ( Ky. 2010 ).

Venue relates to the forum that will hear the particular action. In plaintiff’s case the appropriate forum to try an indictment charging crimes committed in Boone County was Boone County Circuit Court. Venue in criminal prosecutions may be changed if it appears that the accused may not receive a fair and impartial trial in the county where the crime was committed. The Circuit Court had no authority to change venue based upon the convenience of the parties. Wolfenbarger v. Commonwealth, 936 S.W.2d 770, 1996 Ky. App. LEXIS 100 (Ky. Ct. App. 1996), overruled in part, Winstead v. Commonwealth, 327 S.W.3d 386, 2010 Ky. LEXIS 102 ( Ky. 2010 ).

Pursuant to Ky. Const. § 11, venue in defendant’s criminal case could be changed from the first county, where venue was determined to be improper, to the second county where venue was proper. Venue was not jurisdictional and no double jeopardy violation occurred regarding the conviction in the second county since the end of the trial in the first county was based on defendant’s own motion and defendant’s guilt in the first county had not been determined. Derry v. Commonwealth, 274 S.W.3d 439, 2008 Ky. LEXIS 316 ( Ky. 2008 ).

67.— — Limitation.

Statute providing that defendant be tried in the county in which he is first arrested, unless an indictment for the offense be pending in another county, is not in violation of this section. Commonwealth v. Jones, 118 Ky. 889 , 82 S.W. 643, 26 Ky. L. Rptr. 867 , 1904 Ky. LEXIS 126 ( Ky. 1904 ).

An accessory before the fact to a murder may be prosecuted in the county in which decedent died, though the mortal wound was inflicted in another. Hargis v. Parker, 85 S.W. 704, 27 Ky. L. Rptr. 441 (1905).

If an offense be committed partly in one county and partly in another, or if acts and their effects constituting an offense occur in different counties, the jurisdiction is in either, and is not in conflict with this section. Hargis v. Parker, 85 S.W. 704, 27 Ky. L. Rptr. 441 (1905).

Where offense was committed in one county, no other county could have jurisdiction without change of venue from original county. Commonwealth v. Ward, 185 Ky. 295 , 215 S.W. 31, 1919 Ky. LEXIS 288 ( Ky. 1919 ).

Change of venue to county not adjoining that in which defendant was indicted, without objection to adjoining counties, was erroneous as violative of this section and Const., § 7. Conley v. Commonwealth, 229 Ky. 358 , 17 S.W.2d 201, 1929 Ky. LEXIS 743 ( Ky. 1929 ).

Unless there has been a change of venue, a Circuit Court has no jurisdiction to try an offender unless the offense is proved to have been committed in the county where the court is held. Rounds v. Commonwealth, 282 Ky. 657 , 139 S.W.2d 736, 1940 Ky. LEXIS 230 ( Ky. 1940 ).

Only when objections were sustained to all adjoining counties could venue be changed to nearest unobjectionable county. Morris v. Commonwealth, 306 Ky. 349 , 208 S.W.2d 58, 1948 Ky. LEXIS 565 ( Ky. 1948 ).

Where all adjoining counties were objectionable, court could not change venue to remote county when there were other closer counties available. Morris v. Commonwealth, 306 Ky. 349 , 208 S.W.2d 58, 1948 Ky. LEXIS 565 ( Ky. 1948 ).

68.— — Discretion of Court.

Under statute relating to the removal of causes from a county in a state of lawlessness, court had authority to send the case to another county, which it designated as the most convenient county for the trial of the same in which lawlessness did not exist, though defendants and others made affidavits that they did not believe defendants could have a fair trial in such county. Adkins v. Commonwealth, 98 Ky. 539 , 33 S.W. 948, 17 Ky. L. Rptr. 1091 , 1896 Ky. LEXIS 11 ( Ky. 1896 ).

The Commonwealth’s right to a change of venue is not limited to instances where the change is necessary to enforce the Commonwealth’s authority, or where a state of lawlessness or intimidation exists in the county. Smith v. Commonwealth, 108 Ky. 53 , 55 S.W. 718, 21 Ky. L. Rptr. 1470 , 1900 Ky. LEXIS 10 ( Ky. 1900 ).

The court did not abuse its discretion in granting the Commonwealth a change of venue on the grounds that it could not obtain a fair trial in the county by reason of the almost universal relationship of accused to leading families of the county. Smith v. Commonwealth, 108 Ky. 53 , 55 S.W. 718, 21 Ky. L. Rptr. 1470 , 1900 Ky. LEXIS 10 ( Ky. 1900 ).

The Court of Appeals will not disturb the decision of the trial judge either in granting or refusing a change of venue in a criminal case, unless it was based on some ground not authorized by the statute or amounted on an abuse of discretion. Fish v. Benton, 138 Ky. 644 , 128 S.W. 1067, 1910 Ky. LEXIS 114 ( Ky. 1910 ).

Discretion of trial court in grant or refusal of change of venue was not arbitrary and was subject to appellate review. Bradley v. Commonwealth, 204 Ky. 635 , 265 S.W. 291, 1924 Ky. LEXIS 560 ( Ky. 1924 ).

In prosecution for murder of sheriff, universally liked, with popular clamor for death penalty, in which trial defendant was given death penalty, error in refusing change of venue was not cured by summoning jury from another county. Estes v. Commonwealth, 229 Ky. 617 , 17 S.W.2d 757, 1929 Ky. LEXIS 824 ( Ky. 1929 ).

Where Commonwealth opposed defendant’s request for change of venue, trial court had discretionary power to grant or deny such request, and denial would not be overturned on appeal unless abuse of discretion was affirmatively shown. Holmes v. Commonwealth, 241 Ky. 573 , 44 S.W.2d 592, 1931 Ky. LEXIS 143 ( Ky. 1931 ).

Court erred in denying defendant’s motion for change of venue filed with supporting affidavits where Commonwealth filed no affidavits to support denial, and such error was not cured by summoning jury from different county. Johnson v. Commonwealth, 268 Ky. 555 , 105 S.W.2d 641, 1937 Ky. LEXIS 507 ( Ky. 1937 ).

It is reversible error for a trial court in a criminal case to overrule a motion for a change of venue on account of the influence of friends of the slain deceased. Williams v. Commonwealth, 287 Ky. 570 , 154 S.W.2d 563, 1941 Ky. LEXIS 592 ( Ky. 1941 ).

It was error for court to deny change of venue for defendant where Commonwealth’s witnesses testified that fair trial was possible while admitting simultaneously that they believed defendant was guilty and should be convicted and punished accordingly. Patton v. Commonwealth, 289 Ky. 627 , 159 S.W.2d 1006, 1942 Ky. LEXIS 617 ( Ky. 1942 ).

Evidence was insufficient to place offense within county extending five (5) miles from county seat where offense was shown to have been committed eight (8) miles from county seat. Woosley v. Commonwealth, 293 S.W.2d 625, 1956 Ky. LEXIS 76 ( Ky. 1956 ).

Motion for change of venue should have been granted where affidavits and other proof showed widespread news coverage of details of alleged offenses and widespread prejudice of prospective jurors. Manning v. Commonwealth, 346 S.W.2d 755, 1960 Ky. LEXIS 12 ( Ky. 1960 ).

The trial court did not err in refusing a change of venue even though there was substantial pre-trial publicity involving a prison escape and all 29 potential jurors acknowledged they were aware to some extent of the news media reports. Montgomery v. Commonwealth, 819 S.W.2d 713, 1991 Ky. LEXIS 154 ( Ky. 1991 ).

69.— Appeal.

Technical violation of rights under this section did not entitle defendant to reversal on appeal unless such violation was prejudicial. Wireman v. Commonwealth, 212 Ky. 420 , 279 S.W. 633, 1926 Ky. LEXIS 161 ( Ky. 1926 ). See Davis v. Commonwealth, 215 Ky. 244 , 286 S.W. 790, 1926 Ky. LEXIS 765 ( Ky. 1926 ).

While defendant’s rights were violated when verdict was returned in absence of defense counsel, proper procedure for raising such error was on appeal and not in habeas corpus proceeding. Hamm v. Jones, 353 S.W.2d 544, 1962 Ky. LEXIS 19 ( Ky. 1962 ).

Appellant, who had been convicted of wilfully and maliciously shooting and wounding another with intent to kill and had been sentenced to 20 years’ imprisonment, filed petition for writ of habeas corpus and showed by affidavits that he requested that his attorney obtain a court reporter and when the attorney failed to do so, appellant requested the trial court to either provide a reporter or permit him to hire one and when court refused to do either and attorney did not have a bystander’s bill of exceptions prepared, appellant made out a prima facie case that he was not afforded effective assistance of counsel at his trial and Court of Appeals granted his petition. Rice v. Davis, 366 S.W.2d 153, 1963 Ky. LEXIS 4 ( Ky. 1963 ).

Equal protection gives to the indigent defendant a right to counsel and to a transcript of the record on appeal if he requests it but in absence of such request it does not oblige the court either to initiate an inquiry or to extend an invitation to appeal. McIntosh v. Commonwealth, 368 S.W.2d 331, 1963 Ky. LEXIS 47 ( Ky. 1963 ).

The right to a fair trial is primary and fundamental but right of review is secondary and exists only as an added safeguard against denial of the primary right and, while the obligation of the state to see that the defendant receives a fair trial is absolute, to provide him an appellate review is optional. McIntosh v. Commonwealth, 368 S.W.2d 331, 1963 Ky. LEXIS 47 ( Ky. 1963 ).

The right to counsel on appeal stands on a different footing, not only constitutionally but as practical matter, from the right to counsel during earlier stages of a criminal proceeding; an appeal is not a prerequisite to the execution of a sentence, whereas the proceedings leading up to and including a judgment are. McIntosh v. Commonwealth, 368 S.W.2d 331, 1963 Ky. LEXIS 47 ( Ky. 1963 ).

70.Due Process.

Although the chain of custody permitted reliance on a prison-mandated drug test, a courier gap in the chain of custody gave an inmate a legitimate ground for attacking the evidence; therefore, the petition for review of a disciplinary ruling was frivolous. Lucas v. Voirol, 136 S.W.3d 477, 2004 Ky. App. LEXIS 148 (Ky. Ct. App. 2004).

Parole hearing procedure, during which two (2) parole board members were present by video link rather than in person, did not violate an inmate’s rights to procedural due process as secured by U.S. Const. amend. XIV, and Ky. Const. §§ 2, 11; the inmate was entitled to an opportunity to be heard, and a decision which stated the reason for denial, and these requirements were met. Pappas v. Ky. Parole Bd., 156 S.W.3d 303, 2004 Ky. App. LEXIS 199 (Ky. Ct. App. 2004).

Where defendant’s newborn child testified positive for cocaine, trying her for first degree wanton endangerment of her unborn child under KRS 508.060(1) did not violate her due process and equal protection rights under Ky. Const. §§ 2, 3, and 11; abortion laws did not grant a woman the unfettered guarantee to an abortion at any time and certainly not to one on the day a woman gave birth. Commonwealth v. Cochran, 2008 Ky. App. LEXIS 8 (Ky. Ct. App. Jan. 11, 2008), sub. op., 2008 Ky. App. Unpub. LEXIS 733 (Ky. Ct. App. Jan. 11, 2008), rev'd, 315 S.W.3d 325, 2010 Ky. LEXIS 157 ( Ky. 2010 ).

Because Commonwealth v. Morris, 142 S.W.3d 654, 2004 Ky. LEXIS 153 ( Ky. 2004 ), which held that all viable fetuses were “persons” protected under the penal statutes, was decided a year and half before defendant ingested the cocaine that served as the basis for a wanton endangerment charge under KRS 508.060(1), she had fair notice that her conduct could result in criminal charges. Therefore, the rights afforded her by Ky. Const. §§ 2 and 11 were not violated. Commonwealth v. Cochran, 2008 Ky. App. LEXIS 8 (Ky. Ct. App. Jan. 11, 2008), sub. op., 2008 Ky. App. Unpub. LEXIS 733 (Ky. Ct. App. Jan. 11, 2008), rev'd, 315 S.W.3d 325, 2010 Ky. LEXIS 157 ( Ky. 2010 ).

In proceedings to revoke defendant’s conditional discharge for flagrant nonsupport under KRS 530.050 , while defendant argued that his due process rights under the 14th Amendment and Ky. Const. §§ 1, 2, and 11 were violated as the Circuit Court refused to consider possible alternative punishments, no legal authority existed that required the Circuit Court to consider alternative forms of punishment when revoking probation or conditional discharge for failure to pay child support. Marshall v. Commonwealth, 2008 Ky. App. LEXIS 253 (Ky. Ct. App. Aug. 8, 2008), aff'd, 345 S.W.3d 822, 2011 Ky. LEXIS 107 ( Ky. 2011 ).

Defendant’s due process rights under the 14th Amendment and Ky. Const. §§ 1, 2, and 11 were violated by the Circuit Court’s failure to make findings of fact specifying the evidence relied upon to support its decision to revoke defendant’s conditional discharge for flagrant nonsupport under KRS 530.050 . Marshall v. Commonwealth, 2008 Ky. App. LEXIS 253 (Ky. Ct. App. Aug. 8, 2008), aff'd, 345 S.W.3d 822, 2011 Ky. LEXIS 107 ( Ky. 2011 ).

Capital defendant was not entitled to postconviction DNA testing under the Due Process Clause or the Eighth Amendment. Wilson v. Commonwealth, 381 S.W.3d 180, 2012 Ky. LEXIS 64 ( Ky. 2012 ).

Circuit court properly granted an inmate summary judgment in his action for declaratory and injunctive relief and held that the statute at issue was unconstitutional because the statute failed to describe the conduct that would subject the inmate to a close or maximum classification subsequently subjecting him to post-incarceration supervision, he was denied counsel in a “critical stage” in the prosecution, a hearing was not held, the statute failed to provide reasonably clear guidelines for the Department of Corrections (DOC) to follow, and allowed the DOC, an executive agency, to encroach on powers expressly enumerated to the judicial branch by issuing a criminal sentence resulting in incarceration without judicial review. Ky. Dep't of Corr. v. Mitchem, 586 S.W.3d 256, 2019 Ky. App. LEXIS 168 (Ky. Ct. App. 2019).

71.— Confrontation.

In a case involving a borrowed vehicle with a methamphetamine laboratory in the back seat, the trial court erred in excluding evidence that tended to show the owner of the car might have been the perpetrator; although defendant was not entitled under the confrontation clause to offer such evidence merely to impeach the credibility of the car’s owner, defendant had a due process right to show that another person might have been the perpetrator. Beaty v. Commonwealth, 125 S.W.3d 196, 2003 Ky. LEXIS 232 ( Ky. 2003 ).

Motion to strike testimony of defendant’s federal probation officer on grounds that the limited scope permitted under federal law violated defendant’s confrontation rights was properly denied; there were no confrontation implications in rules that limited the scope of cross-examination to matters raised on direct. Moody v. Commonwealth, 170 S.W.3d 393, 2005 Ky. LEXIS 243 ( Ky. 2005 ).

72.— Investigative Stop.

Defendant’s conviction for criminal mischief and disorderly conduct was affirmed as: (1) the police officers had a legal right to be on the premises as they were there in response to a 911 call of domestic violence, (2) there was ample evidence to indicate that the potential for domestic violence existed, (3) after locating defendant, the police acted reasonably in asking him to step out of an abandoned vehicle so that they could determine whether he was a threat, (4) defendant’s repeated refusals to cooperate, his reaching under the seat, and his desire to let loose his dog caused the officers to remove him forcibly from the vehicle, and (5) defendant was handcuffed and placed in the police cruiser because he was prohibiting the officers from carrying out their duty under KRS 403.785 , not because the officers were attempting to place him under arrest. Poe v. Commonwealth, 201 S.W.3d 37, 2006 Ky. App. LEXIS 258 (Ky. Ct. App. 2006).

73.Voluntariness of Confession.

Defendant’s confession was properly suppressed as involuntary because his interrogation for alleged sexual abuse of a minor was psychologically coercive in light of his moderate mental retardation; substantial evidence, including evidence that persons of similar mental capacity had a compliant attitude toward authority figures, that defendant’s interrogators knew of his mental limitations, and that defendant had an IQ of 50, had dropped out of school after ninth grade, and had no prior experience with law enforcement, as well as his complete inability to understand his Miranda warnings and his repeated denials, showed that he confessed simply to satisfy his interrogators as authority figures. Bailey v. Commonwealth, 194 S.W.3d 296, 2006 Ky. LEXIS 173 ( Ky. 2006 ).

Although a district court advised a juvenile of the juvenile’s constitutional rights at a detention hearing on one charge, it did not apprise the juvenile of the rights under Boykin and KRS 610.080(1) when the juvenile entered a plea to additional charges; consequently, because the juvenile’s plea was not voluntary, a Circuit Court committed reversible error in affirming the District Court’s ruling. J.D. v. Commonwealth, 211 S.W.3d 60, 2006 Ky. App. LEXIS 387 (Ky. Ct. App. 2006).

The trial court did not wrongfully deny defendant’s motion to suppress his confession to first-degree robbery merely because the combination of his intoxication and mental defects rendered him unable to voluntarily waive his due process rights, as he failed to present any evidence of coercion on the part of the police to give said confession, and he failed to prove how his prior use of hallucinogenic drugs rendered him incapable of ever giving a voluntary statement to police. Shearer v. Commonwealth, 2007 Ky. App. LEXIS 369 (Ky. Ct. App. Oct. 5, 2007, sub. op., 2007 Ky. App. Unpub. LEXIS 1131 (Ky. Ct. App. Oct. 5, 2007).

74.DNA Database.

Collection of juveniles’ DNA samples pursuant to KRS 17.174 did not violate the juveniles constitutional rights to privacy under U.S. Const. amend. XIV and Ky. Const. §§ 1, 2, and 11; and to due process of law under U.S. Const. amend. VI and Ky. Const. §§ 2 and 11. Petitioner F v. Brown, 2008 Ky. App. LEXIS 42 (Ky. Ct. App. Feb. 22, 2008, sub. op., 2008 Ky. App. Unpub. LEXIS 532 (Ky. Ct. App. Feb. 22, 2008).

Requiring juveniles adjudicated public offenders for various sex offenses to submit DNA samples in accordance with Kentucky’s DNA sampling statutes, KRS 17.170 through 17.175 (KRS 17.171 through KRS 17.174 are now repealed), did not violate the Fourth Amendment or Ky. Const. §§ 1, 2, and 11 because the juveniles’ privacy interests did not outweigh law enforcement’s interest in solving crimes. Petitioner F v. Brown, 306 S.W.3d 80, 2010 Ky. LEXIS 70 (Ky.), cert. denied, 562 U.S. 985, 131 S. Ct. 422, 178 L. Ed. 2d 329, 2010 U.S. LEXIS 8178 (U.S. 2010).

75.Death Penalty.

Requiring a capital defendant to prove to a trial court by a preponderance of the evidence that he or she is mentally retarded, for purposes of a motion to prohibit execution of the death sentence, does not violate a defendant’s rights under the federal or state constitutions. Wilson v. Commonwealth, 381 S.W.3d 180, 2012 Ky. LEXIS 64 ( Ky. 2012 ).

Cited:

Betts v. Brady, 316 U.S. 455, 62 S. Ct. 1252, 86 L. Ed. 1595, 1942 U.S. LEXIS 489 (U.S. 1942); In re Oliver, 333 U.S. 257, 68 S. Ct. 499, 92 L. Ed. 682, 1948 U.S. LEXIS 2452 (U.S. 1948); Allison v. Gray, 256 F.2d 763, 1958 U.S. App. LEXIS 4409 (6th Cir. Ky. 1958 ); United States v. Plattner, 330 F.2d 271, 1964 U.S. App. LEXIS 5884 (2d Cir. N.Y. 1964); Jolly v. Commonwealth, 110 Ky. 190 , 61 S.W. 49, 22 Ky. L. Rptr. 1622 , 1901 Ky. LEXIS 76 ( Ky. 190 1); Abbott v. Commonwealth, 62 S.W. 715, 23 Ky. L. Rptr. 226 (1901); Shepherd v. Commonwealth, 119 Ky. 931 , 85 S.W. 191, 27 Ky. L. Rptr. 376 , 1905 Ky. LEXIS 59 ( Ky. 1905 ); Martin v. Commonwealth, 121 Ky. 332 , 89 S.W. 226, 28 Ky. L. Rptr. 295 , 1905 Ky. LEXIS 213 ( Ky. 1905 ); Commonwealth v. Hargis, 124 Ky. 356 , 99 S.W. 348, 30 Ky. L. Rptr. 510 , 1907 Ky. LEXIS 205 ( Ky. 1907 ); Risner v. Commonwealth, 133 Ky. 11 , 117 S.W. 318, 1909 Ky. LEXIS 162 ( Ky. 1909 ); Sergent v. Commonwealth, 133 Ky. 284 , 117 S.W. 362, 1909 Ky. LEXIS 166 ( Ky. 1909 ); Lenox Land Co. v. Oakdale, 137 Ky. 484 , 125 S.W. 1089, 1910 Ky. LEXIS 59 1 ( Ky. 1910 ); Commonwealth v. Prall, 146 Ky. 109 , 142 S.W. 202, 1912 Ky. LEXIS 12 ( Ky. 1912 ); Smith v. Commonwealth, 175 Ky. 286 , 194 S.W. 367, 1917 Ky. LEXIS 334 ( Ky. 1917 ); Board of Levee Comm'rs v. Johnson, 178 Ky. 287 , 199 S.W. 8, 1917 Ky. LEXIS 74 8 ( Ky. 1917 ) (Ky. 1917); Keeling v. Commonwealth, 178 Ky. 624 , 199 S.W. 789, 1918 Ky. LEXIS 437 ( Ky. 1918 ); Lawrence E. Tierney Coal Co. v. Smith's Guardian, 180 Ky. 815 , 203 S.W. 731, 1918 Ky. LEXIS 151 ( Ky. 1918 ); Grannison's Adm'r v. Bates & Rogers Const. Co., 187 Ky. 538 , 219 S.W. 806, 1920 Ky. LEXIS 161 ( Ky. 1920 ); McLaughlin v. Barr, 191 Ky. 346 , 230 S.W. 304, 1921 Ky. LEXIS 319 ( Ky. 1921 ); Fayette County v. Wells, 195 Ky. 608 , 243 S.W. 4, 1922 Ky. LEXIS 367 ( Ky. 1922 ); Miller v. Commonwealth, 197 Ky. 703 , 247 S.W. 956, 1923 Ky. LEXIS 706 ( Ky. 1923 ); Willis v. La Fayette-Phoenix Garage Co., 202 Ky. 554 , 260 S.W. 364, 1924 Ky. LEXIS 759 ( Ky. 1924 ); Emerson v. Commonwealth, 204 Ky. 455 , 264 S.W. 1063, 1924 Ky. LEXIS 483 ( Ky. 1924 ); Branham v. Commonwealth, 209 Ky. 734 , 273 S.W. 489, 1925 Ky. LEXIS 591 ( Ky. 1925 ); Goff v. Commonwealth, 241 Ky. 428 , 44 S.W.2d 306, 1931 Ky. LEXIS 104 ( Ky. 1931 ); Hamlin v. Commonwealth, 290 Ky. 669 , 162 S.W.2d 196, 1942 Ky. LEXIS 461 ( Ky. 1942 ); Raney v. Commonwealth, 292 Ky. 381 , 166 S.W.2d 844, 1942 Ky. LEXIS 95 ( Ky. 1942 ); Garner v. Shouse, 292 Ky. 798 , 168 S.W.2d 42, 1943 Ky. LEXIS 74 7 ( Ky. 1943 ); Toler v. Commonwealth, 295 Ky. 105 , 173 S.W.2d 822, 1943 Ky. LEXIS 200 ( Ky. 1943 ); Williams v. Pierson, 301 Ky. 302 , 191 S.W.2d 574, 1945 Ky. LEXIS 740 ( Ky. 1945 ); Keene v. Commonwealth, 307 Ky. 308 , 210 S.W.2d 926, 1948 Ky. LEXIS 721 ( Ky. 1948 ); Frankfort v. Jeffers, 311 Ky. 54 , 223 S.W.2d 165, 1949 Ky. LEXIS 1037 ( Ky. 1949 ); Andrews v. Commonwealth, 312 Ky. 677 , 229 S.W.2d 311, 1950 Ky. LEXIS 718 ( Ky. 1950 ); Lovings v. Commonwealth, 313 Ky. 102 , 230 S.W.2d 469, 1950 Ky. LEXIS 824 ( Ky. 1950 ); Hampton v. Whaley, 313 Ky. 611 , 233 S.W.2d 273, 1950 Ky. LEXIS 949 (Ky. 1950); Wiglesworth v. Wright, 269 S.W.2d 263, 1954 Ky. LEXIS 990 ( Ky. 1954 ); Allison v. Gray, 296 S.W.2d 735, 1956 Ky. LEXIS 233 ( Ky. 1956 ); Anderson v. Johnson, 314 S.W.2d 202, 1958 Ky. LEXIS 288 ( Ky. 1958 ); Pennington v. Commonwealth, 316 S.W.2d 221, 1958 Ky. LEXIS 37 (Ky. 1958); Moss v. Jones, 342 S.W.2d 522, 1961 Ky. LEXIS 385 ( Ky. 1961 ); Commonwealth v. Mitchell, 355 S.W.2d 686, 1962 Ky. LEXIS 83 ( Ky. 1962 ); Hines v. Commonwealth, 357 S.W.2d 843, 1962 Ky. LEXIS 143 ( Ky. 1962 ); Lawson v. Commonwealth, 386 S.W.2d 734, 1965 Ky. LEXIS 525 ( Ky. 1965 ); Martin v. Commonwealth, 397 S.W.2d 65, 1965 Ky. LEXIS 62 ( Ky. 1965 ); Shockley v. Commonwealth, 415 S.W.2d 866, 1967 Ky. LEXIS 347 ( Ky. 1967 ); Commonwealth v. Miller, 416 S.W.2d 358, 1967 Ky. LEXIS 272 ( Ky. 1967 ); Cole v. Commonwealth, 441 S.W.2d 160, 1969 Ky. LEXIS 306 ( Ky. 1969 ); Hord v. Commonwealth, 450 S.W.2d 530, 1970 Ky. LEXIS 456 ( Ky. 1970 ); North v. Russell, 427 U.S. 328, 96 S. Ct. 2709, 49 L. Ed. 2d 534, 1976 U.S. LEXIS 76 (U.S. 1976); Godsey v. Commonwealth, 661 S.W.2d 2, 1983 Ky. App. LEXIS 399 (Ky. Ct. App. 1983); Denny v. Commonwealth, 670 S.W.2d 847, 1984 Ky. LEXIS 226 ( Ky. 1984 ); Hayes v. Commonwealth, 698 S.W.2d 827, 1985 Ky. LEXIS 277 ( Ky. 1985 ); Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69, 1986 U.S. LEXIS 150 (U.S. 1986); Souder v. Commonwealth, 719 S.W.2d 730, 1986 Ky. LEXIS 303 ( Ky. 1986 ); Singleton v. Commonwealth, 740 S.W.2d 159, 1986 Ky. App. LEXIS 1484 (Ky. Ct. App. 1986); Yancey v. Carroll County, 876 F.2d 1238, 1989 U.S. App. LEXIS 4731 (6th Cir. Ky. 1989 ); Whitler v. Commonwealth, 810 S.W.2d 505, 1991 Ky. LEXIS 74 ( Ky. 1991 ); Eldred v. Commonwealth, 906 S.W.2d 694, 1994 Ky. LEXIS 12 2 ( Ky. 1994 ); Belt v. Commonwealth, 2 S.W.3d 790, 1999 Ky. App. LEXIS 136 (Ky. Ct. App. 1999); Lester v. Commonwealth, 132 S.W.3d 857, 2004 Ky. LEXIS 85 ( Ky. 2004 ); Kerr v. Commonwealth, 2012 Ky. App. LEXIS 21 (Ky. Ct. App. Jan. 27, 2012).

Notes to Unpublished Decisions

Analysis

1.Rights of Accused.

Unpublished decision: Because neither defendant’s double jeopardy nor speedy trial rights would be violated by the Commonwealth’s good faith interlocutory appeal of a suppression order, staying defendant’s trial while the order was reviewed under CR 76.33 did not violate KRS 22A.020(4). Commonwealth v. Lamberson, 201 S.W.3d 497, 2006 Ky. App. LEXIS 268 (Ky. Ct. App. 2006).

2.— Self-incrimination.

Unpublished decision: Defendant’s claim that the prosecutor improperly commented on defendant’s right to remain silent was without merit because there was no evidence that the prosecutor’s comment about defendant’s failure to report information came as a result of police-initiated interrogation, and during direct examination, defense counsel elicited from defendant that defendant did not report what defendant knew about the homicides to anyone. Caldwell v. Commonwealth, 133 S.W.3d 445, 2004 Ky. LEXIS 77 ( Ky. 2004 ).

3.— Trial.
4.— — Speedy.
5.— — — Extradition.

Unpublished decision: Where defendant was indicted in 1992, extradited from Oklahoma to Kentucky to stand trial under the indictment, and tried in 1998, the delay in bringing defendant to trial did not violate his rights to a speedy trial because: (1) the majority of the delay occurred while defendant was incarcerated in Oklahoma and prior to any assertion by defendant of his right to a speedy trial; (2) the lion’s share of the remaining delay was attributable to defense-requested continuances; and (3) defendant’s unwarranted assertions failed to demonstrate that he suffered prejudice as a result of the delay. St. Clair v. Commonwealth, 140 S.W.3d 510, 2004 Ky. LEXIS 44 ( Ky. 2004 ).

Opinions of Attorney General.

The fingerprinting and photographing of an arrested person for the purposes of identification is a lawful exercise of the police power because the constitutional provision against self-incrimination constitutes a limitation only as to testimonial compulsion directed against a witness. OAG 60-1181 .

The fact that the defendant is required to pay fee for serving a subpoena on a witness in a criminal case, provided the defendant is convicted and provided he is not found by the court to be indigent, in no way militates against the defendant’s right under the Constitution to have compulsory process for obtaining a witness for himself. OAG 83-311 .

Defendant is entitled to have his own witnesses in court, if they can be reached by the compulsory process of the law, and to coerce their attendance whenever they may reside in the state; in order to do this, it is not required that the defendant shall tender to his witnesses any compensation for expenses before resorting to process to compel them to attend. OAG 83-311 .

Research References and Practice Aids

Cross-References.

Change of venue, KRS 452.210 to 452.330 .

Confession obtained by “sweating” not admissible, KRS 422.110 .

Kentucky Bench & Bar.

Preston, Video Evidence in Child Sexual Abuse Cases, Vol. 52, No. 2, Spring 1988 Ky. Bench & B. 11.

Wiederstein, Firm Hearing and Trial Dates: A Partial Answer to Reducing Delay in the Courts, Vol. 70, No. 3, May 2006, Ky. Bench & Bar 18.

Alley, Kentucky Courts Have Blazed a Public Access Trail: An Examination of the Evolution of the Law with Respect to the Public’s Access to Court Proceedings, Vol. 76, No. 4, July 2012, Ky. Bench & Bar 24.

Stephens, Defining Reasonable Doubt: An Elusive Constitutional Dilemma, Vol 76, No. 5, September 2012, Ky. Bench & Bar 19.

Kentucky Law Journal.

Keen, Civil Commitment of the Mentally Ill in Kentucky, 62 Ky. L.J. 769 (1973-1974).

Notes, The Conundrum of Criminal Discovery: Constitutional Arguments, ABA Standards, Federal Rules, and Kentucky Law, 64 Ky. L.J. 800 (1975-76).

Comments, The Kentucky Rape Shield Law: One Step Too Far, 66 Ky. L.J. 426 (1977-1978).

Kentucky Law Survey, Fortune, Criminal Rules, 70 Ky. L.J. 395 (1981-82).

Kentucky Law Survey, Fortune, Criminal Procedure, 71 Ky. L.J. 367 (1982-83).

Note, Judicial v. Legislative Power in Kentucky: A “Comity” of Errors, 71 Ky. L.J. 829 (1982-83).

Kentucky Law Survey, Fortune and Welling, Criminal Procedure, 72 Ky. L.J. 381 (1983-84).

Comments, The Right to Independent Testing: Boon for Defendant — Burden for Prosecution?, 74 Ky. L.J. 231 (1985-86).

Comments, “Face — to Television Screen — to Face”: Testimony by Closed-Circuit Television in Cases of Alleged Child Abuse and the Confrontation Right, 76 Ky. L.J. 273 (1987-88).

Epps, Passing the Confrontation Clause Stop Sign: Is All Hearsay Constitutionally Admissible?, 77 Ky. L.J. 7 (1988-89).

Dunn, “Face to Face” with the Right of Confrontation: A Critique of the Supreme Court of Kentucky’s Approach to the Confrontation Clause of the Kentucky Constitution, 96 Ky. L.J. 301 (2007).

Article: Deferring Ineffectiveness Claims to Collateral Review: Ensuring Equal Access and a Right to Appointed Counsel, 98 Ky. L.J. 301 (2009/2010).

Note: Juror Incomprehension: Advocating for a Holistic Reform of Jury Instructions, 98 Ky. L.J. 355 (2009/2010).

Northern Kentucky State Law Forum (Now Northern Kentucky Law Review.) Sandell, Speedy Trial — The Search for Workable Criteria, 3 N. Ky. St. L.F. 42 (1975).

Gillig, Kentucky Post-Conviction Remedies and the Judicial Development of Kentucky Rule of Criminal Procedure 11.42, 83 Ky. L.J. 265 (1994-95).

Northern Kentucky Law Review.

Notes, School Law — Nonrenewal of Nontenured Teacher’s Contract — Procedural Due Process —Wells v. Board of Regents, 545 F.2d 15, 1976 U.S. App. LEXIS 6054 (6th Cir. 1976) andPlummer v. Board of Regents, 552 F.2d 716, 1977 U.S. App. LEXIS 13918 (6th Cir. 1977), 5 N. Ky. L. Rev. 141 (1978).

Armstrong & Gillig, Responding to Child Sexual Abuse and Exploitation: The Kentucky Approach, 16 N. Ky. L. Rev. 17 (1988).

Blakley, The Cost of Killing Criminals, 18 N. Ky. L. Rev. 61 (1990).

Wintersheimer, State Constitutional Law, 20 N. Ky. L. Rev. 591 (1993).

Wintersheimer, State Constitutional Law Survey, 21 N. Ky. L. Rev. 257 (1994).

Rankin and Muehlenkamp, 1993 Kentucky Criminal Law Update, 21 N. Ky. L. Rev. 311 (1994).

Treatises

Petrilli, Kentucky Family Law, Marriage in General, § 1.2.

ALR

Propriety of requiring accused to give handwriting exemplar. 43 A.L.R.3d 653.

Propriety, on voir dire in criminal case, of inquiries as to juror’s possible prejudice if informed of defendant’s prior convictions. 43 A.L.R.3d 1081.

Witness’ refusal to testify on ground of self-incrimination as justifying reception of evidence of prior statements or admissions. 43 A.L.R.3d 1413.

§ 12. Indictable offense not to be prosecuted by information — Exceptions.

No person, for an indictable offense, shall be proceeded against criminally by information, except in cases arising in the land or naval forces, or in the militia, when in actual service, in time of war or public danger, or by leave of court for oppression or misdemeanor in office.

NOTES TO DECISIONS

1.Application.

This section applies only to offenses which were indictable at common law. Law providing that when the Circuit Court is not in session, persons charged with misdemeanors and lodged in jail in default of bail shall be tried by the county judge is not in conflict with this section. Lowry v. Commonwealth, 36 S.W. 1117, 18 Ky. L. Rptr. 481 (1896).

The provision of this section that for an indictable offense no person shall be proceeded against by information has reference to common-law offenses or to statutory offenses the punishments of which are infamous, and does not refer to statutory misdemeanors, where the power to create has the power to prescribe punishment. Lakes v. Goodloe, 195 Ky. 240 , 242 S.W. 632, 1922 Ky. LEXIS 342 ( Ky. 1922 ). See Wackenthaler v. Commonwealth, 217 Ky. 316 , 289 S.W. 225, 1926 Ky. LEXIS 48 ( Ky. 1926 ).

2.Indictments.

Indictment issued by grand jury on basis only of affidavit and warrant was, even if defective, nonetheless indictment as required by this section. Rice v. Commonwealth, 288 S.W.2d 635, 1956 Ky. LEXIS 268 ( Ky. 1956 ).

Distinction between third degree burglary and complicity to third degree burglary was the sort which prohibited an amendment of the indictment at trial because it involved a modification at trial in the elements of the crime charged and was prejudicial per se; a trial court erred in giving a complicity instruction where defendant had been charged with third degree burglary, but not with complicity to that crime, since such an amendment improperly modified the elements of the crime charged at trial. McKenzie v. Commonwealth, 2004 Ky. App. LEXIS 276 (Ky. Ct. App. Sept. 17, 2004), op. withdrawn, 2005 Ky. App. LEXIS 53 (Ky. Ct. App. Mar. 4, 2005), sub. op., 2005 Ky. App. LEXIS 54 (Ky. Ct. App. Mar. 4, 2005).

Court did not err by overruling defendant’s motion to dismiss a murder indictment where defendant was not misled by any alleged defect in the indictment because of his previous trial; virtually all of the evidence from the first trial was presented again at retrial. The only significant difference in the evidence was the testimony of one witness, and defendant was not misled about the nature of the crimes or with the specific means in which those crimes were carried out and his participation therein. Epperson v. Commonwealth, 197 S.W.3d 46, 2006 Ky. LEXIS 49 ( Ky. 2006 ), cert. denied, 549 U.S. 1290, 127 S. Ct. 1840, 167 L. Ed. 2d 337, 2007 U.S. LEXIS 3185 (U.S. 2007).

3.— Waiver.

A Circuit Court has authority to adjudicate felony charges if the defendant waives his right to be prosecuted by indictment; that is, the constitutional requirement of an indictment by a grand jury in a prosecution for a felony does not invalidate the court rule which permits a prosecution upon information if the accused so elects. Malone v. Commonwealth, 30 S.W.3d 180, 2000 Ky. LEXIS 130 ( Ky. 2000 ).

4.Infamous Offenses.

Law which provided for loss of suffrage for two years after conviction thereby created infamous offense requiring indictment. King v. Pineville, 222 Ky. 73 , 299 S.W. 1082, 1927 Ky. LEXIS 853 ( Ky. 1927 ).

Operating motor vehicle without operator’s license was not infamous offense and thus did not require indictment for prosecution. Baldwin v. Commonwealth, 314 Ky. 369 , 235 S.W.2d 771, 1951 Ky. LEXIS 651 ( Ky. 1951 ).

Since the prescribed punishment under KRS 242.990 , consisting of a fine and imprisonment in the county jail, was not considered “infamous,” the prosecution could proceed by information rather than indictment. Commonwealth v. Hope, 492 S.W.2d 207, 1973 Ky. LEXIS 512 ( Ky. 1973 ).

5.Injunctions.

Since this section makes an indictment a prerequisite to prosecution under former law regarding treason and until an indictment is returned no proceeding is pending, court was not precluded, under 28 USCS § 2283, from enjoining defendants from proceeding against plaintiffs in state court under such former law. McSurely v. Ratliff, 282 F. Supp. 848, 1967 U.S. Dist. LEXIS 7817 (E.D. Ky. 1967 ).

6.Liquor Violations.

The Circuit Court has jurisdiction by information of the offense of selling liquor on a general election day. Ford v. Moss, 124 Ky. 288 , 98 S.W. 1015, 30 Ky. L. Rptr. 428 , 1907 Ky. LEXIS 178 ( Ky. 1907 ).

Possession of whiskey in violation of statutes is not an indictable offense in the meaning of this section, and can be prosecuted by warrant in courts inferior to Circuit Courts. Hubbard v. Dorr, 204 Ky. 222 , 263 S.W. 736, 1924 Ky. LEXIS 424 ( Ky. 1924 ).

Second violation of local option law required indictment for prosecution thereof. Crabtree v. Commonwealth, 278 S.W.2d 732, 1955 Ky. LEXIS 491 ( Ky. 1955 ).

7.Misdemeanors.

This section does not apply to misdemeanors punishable by fine, and therefore the legislature has power to provide for the prosecution of such offenses by penal action. Louisville & N. R. Co. v. Commonwealth, 112 Ky. 635 , 66 S.W. 505, 23 Ky. L. Rptr. 1900 , 1902 Ky. LEXIS 205 ( Ky. 1902 ). See Equitable Life Assurance Soc. v. Commonwealth, 113 Ky. 126 , 67 S.W. 388, 23 Ky. L. Rptr. 2359 , 1902 Ky. LEXIS 34 ( Ky. 1902 ).

An indictment is not necessary in the prosecution of a misdemeanor, which is not an indictable offense at the common law under this section. Ford v. Moss, 124 Ky. 288 , 98 S.W. 1015, 30 Ky. L. Rptr. 428 , 1907 Ky. LEXIS 178 ( Ky. 1907 ).

Prosecution by information was allowed where offense was statutory misdemeanor not indictable at common law. Louisville & N. R. Co. v. Commonwealth, 175 Ky. 372 , 194 S.W. 315, 1917 Ky. LEXIS 313 ( Ky. 1917 ).

Offense for which maximum punishment was $300 and 60 days in jail and $5,000 peace bond could be proceeded against by warrant. Cooke v. Commonwealth, 199 Ky. 111 , 250 S.W. 802, 1923 Ky. LEXIS 771 ( Ky. 1923 ).

Legislature could provide for prosecution by information of any statutorily created misdemeanor, since this section does not preclude such prosecution for offenses not indictable at common law. Commonwealth v. Lay, 202 Ky. 683 , 261 S.W. 7, 1924 Ky. LEXIS 774 ( Ky. 1924 ). See Ragland v. Commonwealth, 204 Ky. 598 , 265 S.W. 15, 1924 Ky. LEXIS 530 ( Ky. 1924 ).

Offense could be prosecuted by information where penalty was maximum of $100 and 50 days in jail. Commonwealth v. Williams, 230 Ky. 71 , 18 S.W.2d 881, 1929 Ky. LEXIS 21 ( Ky. 1929 ).

Prostitution was misdemeanor, not infamous offense, and indictment was therefore not required. Eisner v. Commonwealth, 375 S.W.2d 825, 1964 Ky. LEXIS 439 ( Ky. 1964 ).

8.Jurisdiction.

Quarterly court, which was vested only with such criminal jurisdiction as justices of peace had, was without jurisdiction to try indictable offenses. Perry v. Bingham, 265 Ky. 133 , 95 S.W.2d 1099, 1936 Ky. LEXIS 434 ( Ky. 1936 ).

9.Proof.

Defendant’s convictions for first-degree fleeing or evading police, KRS 520.095(1), and first-degree wanton endangerment, KRS 508.060(1), did not constitute double jeopardy because as with first-degree wanton endangerment, the three elements of operating a motor vehicle, having intent to elude or flee, and disobeying a police officer’s direction to stop were required of the fleeing or evading charge but not of the wanton endangerment charge; consequently, each provision required proof of a fact that the other did not. Brown v. Commonwealth, 297 S.W.3d 557, 2009 Ky. LEXIS 256 ( Ky. 2009 ).

Defendant’s convictions for first-degree fleeing or evading police, KRS 520.095(1), and second-degree wanton endangerment, KRS 508.070(1), constituted double jeopardy because once the Commonwealth proved the specific conduct required to convict defendant of first-degree fleeing or evading police, it necessarily proved the general conduct necessary to convict him of second-degree wanton endangerment; both statutes were satisfied by proof of wantonly engaging in certain conduct that creates a substantial danger of serious physical injury to another person, and for second-degree wanton endangerment, the conduct is general and open-ended, and for first-degree fleeing or evading police, the conduct is specified as intentionally fleeing from police while operating a motor vehicle. Brown v. Commonwealth, 297 S.W.3d 557, 2009 Ky. LEXIS 256 ( Ky. 2009 ).

Cited:

Covington & Lexington Turnpike Road Co. v. Sanford, 164 U.S. 578, 17 S. Ct. 198, 41 L. Ed. 560, 1896 U.S. LEXIS 1891 (1896); Commonwealth v. Carter, 152 Ky. 463 , 153 S.W. 735, 1913 Ky. LEXIS 677 ( Ky. 1913 ); Alexander’s Adm’r v. Kentucky Bankers’ Ass’n, 237 Ky. 232 , 35 S.W.2d 287, 1931 Ky. LEXIS 580 ( Ky. 1931 ); Hampton v. Whaley, 313 Ky. 611 , 233 S.W.2d 273, 1950 Ky. LEXIS 949 ( Ky. 1950 ); Harrod v. Commonwealth, 253 S.W.2d 574, 1952 Ky. LEXIS 1098 ( Ky. 1952 ); Beach v. Lady, 262 S.W.2d 837, 1953 Ky. LEXIS 1139 ( Ky. 1953 ); Brown v. Commonwealth, 498 S.W.2d 119, 1973 Ky. LEXIS 282 ( Ky. 1973 ); Holladay v. Peabody Coal Co., 560 S.W.2d 550, 1977 Ky. LEXIS 570 ( Ky. 1977 ); Hoskins v. Maricle, 150 S.W.3d 1, 2004 Ky. LEXIS 196 ( Ky. 2004 ).

Opinions of Attorney General.

An information may not be used for a common-law crime or for a statutory misdemeanor which “operates as an exclusion from the right of suffrage.” OAG 63-808 .

All infamous crimes or felonies must be charged by an indictment returned by the grand jury. OAG 76-127 .

Research References and Practice Aids

Kentucky Bench & Bar.

Schatteman, Changes in the Kentucky Rules of Criminal Procedure, Vol. 45, No. 4, July, 1981, Ky. Bench & Bar 20.

Kentucky Law Journal.

Kentucky Law Survey, Fortune, Criminal Rules, 70 Ky. L.J. 395 (1981-82).

§ 13. Double jeopardy — Property not to be taken for public use without compensation.

No person shall, for the same offense, be twice put in jeopardy of his life or limb, nor shall any man’s property be taken or applied to public use without the consent of his representatives, and without just compensation being previously made to him.

NOTES TO DECISIONS

Analysis

1.Double Jeopardy.

Commonwealth was barred from appealing the district court's ruling that there was not enough evidence to support a guilty verdict based on double jeopardy principles. Commonwealth v. Angus, 450 S.W.3d 719, 2014 Ky. App. LEXIS 185 (Ky. Ct. App. 2014).

Convicting and sentencing defendant on the two (2) offenses of burglary and theft which arose from the same transaction did not put him in double jeopardy, since the elements of these two (2) crimes are different. Tribbett v. Commonwealth, 561 S.W.2d 662, 1978 Ky. LEXIS 328 ( Ky. 1978 ).

There are two (2) prongs to the double jeopardy principle; namely, a person cannot be twice convicted or twice punished for the same offense, and where the additional element that aggravates kidnapping to a capital offense is the murder, the defendant can be convicted and punished for both offenses, but not sentenced to death for kidnapping if he is sentenced to death for murder. Cosby v. Commonwealth, 776 S.W.2d 367, 1989 Ky. LEXIS 92 ( Ky. 1989 ), cert. denied, 493 U.S. 1063, 110 S. Ct. 880, 107 L. Ed. 2d 963, 1990 U.S. LEXIS 508 (U.S. 1990), overruled in part, St. Clair v. Roark, 10 S.W.3d 482, 1999 Ky. LEXIS 148 ( Ky. 1999 ).

Driver’s contention, that Transportation Cabinet’s refusal to issue him a license until he obtained clearance letter from another state was in violation of the double jeopardy clause of this section, was rejected; the refusal to issue an operator’s license was an administrative act rather than a criminal punishment. Transportation Cabinet v. Feige, 889 S.W.2d 52, 1994 Ky. App. LEXIS 147 (Ky. Ct. App. 1994).

Although defendant claimed she committed only a single act, for purpose of prosecution under double jeopardy bar, the evidence showed otherwise, where the criminal episode, from the time the child was abducted from school to the time of his murder required a substantial period of time. The jury could have believed the act of kidnapping was complete when the defendant took child from school and delivered him to his stepmother who she knew or should have known desired to terrorize him or cause him bodily harm; likewise, when defendant began driving car with child and stepmother as passengers and particularly after stepmother had commenced attack on child, the jury could have believed defendant’s conduct amounted to reckless homicide. Baker v. Commonwealth, 922 S.W.2d 371, 1996 Ky. LEXIS 24 ( Ky. 1996 ), overruled in part, Dixon v. Commonwealth, 263 S.W.3d 583, 2008 Ky. LEXIS 138 ( Ky. 2008 ).

KRS 218A.992 , providing for enhanced penalty for violations of Chapter 218A while in possession of a firearm, is not unconstitutionally over broad and does not violate Kentucky’s double jeopardy provision. Adams v. Commonwealth, 931 S.W.2d 465, 1996 Ky. App. LEXIS 157 (Ky. Ct. App. 1996), overruled in part, Mills v. Dep't of Corr. Offender Info. Servs., 438 S.W.3d 328, 2014 Ky. LEXIS 328 ( Ky. 2014 ).

Double jeopardy does not occur when a person is charged with two (2) crimes arising from the same course of conduct, or where a civil contempt action follows a related criminal conviction, as long as each violation requires proof of an additional fact which the other does not. Commonwealth ex rel. Bailey v. Bailey, 970 S.W.2d 818, 1998 Ky. App. LEXIS 41 (Ky. Ct. App. 1998).

Where the trial court granted a directed verdict on the tampering with physical evidence charge, it violated defendant’s right to be free from double jeopardy under U.S. Const. amend. V and Ky. Const. § 13 in subsequently reinstating the charge. Because co-defendant admitted throwing away a gun and ski mask used in the robbery, co-defendant’s testimony provided corroboration for the essential elements of the charge of complicity to tampering with evidence against defendant; because defendant was acquitted of the charge via the directed verdict, reinstatement of and conviction on that same charge violated double jeopardy. Beaumont v. Commonwealth, 295 S.W.3d 60, 2009 Ky. LEXIS 325 ( Ky. 2009 ).

Defendant’s conviction for conspiracy to manufacture methamphetamine obtained in the second forum county had to be vacated, as defendant earlier had been convicted in the first forum county for attempted manufacturing of methamphetamine after being indicted under the same statutes, KRS 218A.1432 and KRS 502.020 . As a result, the second conviction violated double jeopardy principles not only under Ky. Const. § 13, but also the codification of double jeopardy principles, KRS 505.030 . Beeler v. Commonwealth, 2011 Ky. App. LEXIS 39 (Ky. Ct. App. Mar. 4, 2011, sub. op., 2011 Ky. App. Unpub. LEXIS 991 (Ky. Ct. App. Mar. 4, 2011).

2.—Second Prosecution.

KRS 505.030 , barring a second prosecution based on the same facts as a former prosecution if such former prosecution was improperly terminated after the first witness was sworn, is constitutional. Graham v. Commonwealth, 562 S.W.2d 625, 1978 Ky. LEXIS 331 ( Ky. 1978 ).

Reversal of a judgment of conviction on the ground that the only evidence sufficient to sustain the conviction was erroneously admitted did not prohibit a retrial on grounds of double jeopardy. Commonwealth v. Mattingly, 722 S.W.2d 288, 1986 Ky. LEXIS 319 ( Ky. 1986 ), cert. denied, 481 U.S. 1015, 107 S. Ct. 1891, 95 L. Ed. 2d 498, 1987 U.S. LEXIS 1661 (U.S. 1987).

A defendant could be retried for the murder of her husband without offending the principle of double jeopardy after she presented character evidence against the victim regarding his abuse of her and her children but then failed to present any evidence toward a self-defense theory, which would make such character evidence admissible, instead relying solely on the defense of accident. Grimes v. McAnulty, 957 S.W.2d 223, 1997 Ky. LEXIS 118 ( Ky. 1997 ), cert. denied, 525 U.S. 824, 119 S. Ct. 70, 142 L. Ed. 2d 55, 1998 U.S. LEXIS 4948 (U.S. 1998).

Although jeopardy attached during defendant’s first trial, because defendant requested dismissal of the indictment and failed to object to a finding of manifest necessity, pursuant KRS 505.030(4)(a), defendant could be re-prosecuted in another county on the same charges. Derry v. Commonwealth, 2005 Ky. App. LEXIS 287 (Ky. Ct. App. Oct. 7, 2005), aff'd, 274 S.W.3d 439, 2008 Ky. LEXIS 316 ( Ky. 2008 ).

Defendant’s conduct in fleeing from officers was a single event without any sufficient break in conduct and time, and could not have been parsed into separate and distinct offenses regardless of the facts that the chase began in one county and ended in another, and regardless of how many officers may have given an order to stop; therefore, an additional fleeing and evading charge in another county based on the same incident was a violation of double jeopardy protection. Foley v. Commonwealth, 233 S.W.3d 734, 2007 Ky. App. LEXIS 333 (Ky. Ct. App. 2007).

Where defendant pled guilty to illegal possession of a controlled substance in the first degree, and successfully completed probation, the conviction was voided pursuant to KRS 218A.275 . The bar against double jeopardy prohibited further prosecution of the voided conviction. Commonwealth v. Jones, 406 S.W.3d 857, 2013 Ky. LEXIS 377 ( Ky. 2013 ).

Commonwealth’s apparent abandonment of the wanton endangerment charge as to one victim and subsequent acquiescence in the instructions given precluded retrial of that offense under the Double Jeopardy Clause. Little v. Commonwealth, 422 S.W.3d 238, 2013 Ky. LEXIS 634 ( Ky. 2013 ).

Since the district court concluded that there was not enough evidence to prove defendant's guilt beyond a reasonable doubt, its ruling represented a direct verdict of acquittal and defendant was therefore not subject to retrial on the same charges. Commonwealth v. Angus, 450 S.W.3d 719, 2014 Ky. App. LEXIS 185 (Dec. 12, 2014).

3.— Acquittal.

Where one was indicted for betting on the result as between opposing candidates for the office of county judge, and the indictment alleged that the name of one of the candidates was H.E. Knox, but the evidence showed that his name was A.T. Knox, and the jury was peremptorily instructed to acquit defendant on account of the variance, the acquittal was a bar to a subsequent prosecution, as the variance was immaterial. Drake v. Commonwealth, 96 S.W. 580, 29 Ky. L. Rptr. 981 (1906).

Even if a mistrial in a criminal case caused by defendant could not be relied on as former jeopardy, an actual acquittal, though upon improper ground raised by defense, is a former jeopardy and a bar to further prosecution. Commonwealth v. Ball, 126 Ky. 542 , 104 S.W. 325, 31 Ky. L. Rptr. 887 , 1907 Ky. LEXIS 69 ( Ky. 1907 ).

Under law that declared that an acquittal by judgment on a verdict was a bar to another prosecution, the acquittal by the jury, though at direction of the court on a trial under a good indictment, the court considering the facts charged did not constitute an offense, was a bar to further prosecution. Commonwealth v. Goulet, 140 Ky. 843 , 132 S.W. 151, 1910 Ky. LEXIS 384 ( Ky. 1910 ).

In view of law that provided that a public offense, for which fine is the only punishment, could be prosecuted by a penal action, law authorizing the state to appeal from judgments of acquittal in misdemeanor cases where the only punishment was a fine, was not in conflict with this section. Commonwealth v. Prall, 146 Ky. 109 , 142 S.W. 202, 1912 Ky. LEXIS 12 ( Ky. 1912 ).

The recovery in bastardy is a mere money judgment, and the proceeding is a civil action, and a statute authorizing the Commonwealth to appeal from a judgment of acquittal did not violate this section. Commonwealth v. Smalling, 146 Ky. 197 , 142 S.W. 372, 1912 Ky. LEXIS 39 ( Ky. 1912 ).

Where Circuit Court and police court have the same jurisdiction of the offense, an appeal by the Commonwealth from a judgment of acquittal in the police court to Circuit Court having same jurisdiction could not abrogate this section’s prohibition against a second trial for same offense. Hardy v. Commonwealth, 200 Ky. 306 , 254 S.W. 900, 1923 Ky. LEXIS 70 ( Ky. 1923 ).

Jury discharge without necessity or consent of defendant results in acquittal. Commonwealth v. Gray, 249 Ky. 36 , 60 S.W.2d 133, 1933 Ky. LEXIS 474 ( Ky. 1933 ).

In misdemeanor cases, where the only punishment is a fine, the Commonwealth may appeal from a judgment of acquittal and obtain a new trial. Commonwealth v. Abell, 275 Ky. 802 , 122 S.W.2d 757, 1938 Ky. LEXIS 498 ( Ky. 1938 ).

Where defendant was acquitted of offense pursuant to a directed verdict, the acquittal barred further prosecution even though direction of the verdict may have been erroneous. Commonwealth v. Mullins, 405 S.W.2d 28, 1966 Ky. LEXIS 242 ( Ky. 1966 ).

In this case, the trial court’s dismissal of the indictment because in the trial court’s view the wrong offense was charged, was not the equivalent of an acquittal; therefore, a retrial would not be prohibited by the double jeopardy clause. Commonwealth v. Self, 802 S.W.2d 940, 1990 Ky. App. LEXIS 95 (Ky. Ct. App. 1990).

When it was determined on appeal that the evidence was insufficient to support defendant’s conviction for second-degree assault on the theory that his fists were a dangerous instrument, this was equivalent to an acquittal, and defendant could not be retried under this theory. Davidson v. Commonwealth, 2006 Ky. App. LEXIS 32 (Ky. Ct. App. Feb. 3, 2006, sub. op., 2006 Ky. App. Unpub. LEXIS 1224 (Ky. Ct. App. Feb. 3, 2006).

Because there was insufficient evidence to support a finding that defendant’s fists caused serious physical injury to the victim, reversal of defendant’s conviction for second-degree assault under KRS 508.020 was the equivalent of an acquittal; accordingly, the double jeopardy clauses in U.S. Const. amend. V, and Ky. Const. § 13 barred a retrial. Commonwealth v. Davidson, 277 S.W.3d 232, 2009 Ky. LEXIS 24 ( Ky. 2009 ).

Trial court’s grant of defendant’s motion for a directed verdict on the tampering with physical evidence charge was final and the subsequent reinstatement of that charge violated the Double Jeopardy Clause of U.S. Const. amend. V and XIV, and Ky. Const. § 13. Walker v. Commonwealth, 288 S.W.3d 729, 2009 Ky. LEXIS 157 ( Ky. 2009 ).

Once evidence was suppressed pursuant to RCr P. 9.78 regarding defendant in a DUI case because defendant was not read defendant’s Miranda rights, the district court’s finding that the remaining evidence was insufficient to convict defendant meant that defendant could not be tried again on that charge. The double jeopardy clause of the United States Constitution, U.S. Const. amend. V, as well as under the Ky. Const. § 13, barred retrial of defendant because the dismissal of that charge was a ruling on the merits, which also meant that the Commonwealth could not appeal that dismissal, pursuant to Ky. Const. § 115. Cozzolino v. Commonwealth, 395 S.W.3d 485, 2012 Ky. App. LEXIS 100 (Ky. Ct. App. 2012).

Commonwealth’s appeal was dismissed because a jury was unable to reach a unanimous verdict, the circuit court declared a mistrial and rendered a judgment of acquittal based on the insufficiency of the evidence, and double jeopardy constitutionally prohibited the Commonwealth from pursuing an appeal. Commonwealth v. Gilliam, 425 S.W.3d 918, 2014 Ky. App. LEXIS 39 (Ky. Ct. App. 2014).

4.— Burden of Proof.

To sustain plea of former jeopardy, burden is upon accused to show that charge previously tried is same charge, or some degree of it, now being tried, evidence heard on former trial was substantially the same, and same criminal act was involved upon each trial. Braswell v. Commonwealth, 339 S.W.2d 637, 1960 Ky. LEXIS 479 ( Ky. 1960 ).

The determinative question regarding a double jeopardy claim is whether in each offense there are additional acts of criminal misconduct which are unnecessary to the commission of the other offense. This test focuses on the proof necessary to prove the statutory elements of each offense, rather than on the actual evidence presented at trial. Wilson v. Commonwealth, 695 S.W.2d 854 ( Ky. 1985 ).

5.— Civil Cases.

The allowance of punitive damages for an aggravated assault and battery, though defendant had also been previously punished for the offense, was not a violation of this section. Doerhoefer v. Shewmaker, 123 Ky. 646 , 97 S.W. 7, 29 Ky. L. Rptr. 1193 , 1906 Ky. LEXIS 195 ( Ky. 1906 ).

A proceeding to revoke a beer license is a civil one before an independent tribunal. Even though the charge is the violation of a penal law, the evidence need not establish guilt beyond a reasonable doubt and a criminal prosecution is not a bar to such proceeding. Keller v. Kentucky Alcoholic Beverage Countrol Board, 279 Ky. 272 , 130 S.W.2d 821, 1939 Ky. LEXIS 293 ( Ky. 1939 ).

The double jeopardy provisions of this section and the Fifth Amendment to the United States Constitution do not imply that a parent’s prior criminal conviction for flagrant nonsupport bars a civil action to collect child support arrearages, even where imprisonment might result following the civil action. Commonwealth ex rel. Bailey v. Bailey, 970 S.W.2d 818, 1998 Ky. App. LEXIS 41 (Ky. Ct. App. 1998).

The prosecution of an insurance agent for theft by failure to make required disposition of property and theft by deception was not barred by an investigation and hearing conducted by the Department of Insurance which resulted in the revocation of the defendant’s insurance license and the assessment of a civil penalty. Burnett v. Commonwealth, 3 S.W.3d 359, 1999 Ky. App. LEXIS 134 (Ky. Ct. App. 1999).

6.— Dismissal at Preliminary Hearing.

Where charges against defendant were dropped at a preliminary hearing in a juvenile proceeding, which did not proceed to the merits of the case, subsequent indictment and trial did not violate the provision against double jeopardy. Locke v. Commonwealth, 503 S.W.2d 729, 1973 Ky. LEXIS 46 ( Ky. 1973 ).

Trial court’s dismissal of an indictment based on a finding that the defendant is incompetent to stand trial is not a dismissal “with prejudice” unless it is designated as such with the consent of the Commonwealth’s attorney. Therefore, double jeopardy principles did not bar a subsequent trial for murder and assault, after the charges were dismissed based on incompetence to stand trial, without a designation as with or without prejudice. Keeling v. Commonwealth, 381 S.W.3d 248, 2012 Ky. LEXIS 160 ( Ky. 2012 ).

7.— Habeas Corpus.

Former jeopardy did not void judgment and so was not grounds for habeas corpus relief. Barnett v. Commonwealth, 361 S.W.2d 284, 1962 Ky. LEXIS 236 ( Ky. 1962 ).

8.— Habitual Criminals.

Law providing that the punishment of one who is convicted a third time of felony shall be fixed at confinement in the penitentiary for life is not unconstitutional as inflicting punishment for an offense for which accused has already been punished. Herndon v. Commonwealth, 105 Ky. 197 , 48 S.W. 989, 20 Ky. L. Rptr. 1114 , 1899 Ky. LEXIS 195 ( Ky. 1899 ).

To constitute former jeopardy it must appear that in each prosecution the accused, the sovereignty whose law has been violated, and the offense, not only as to the act but as to the crime, were identical. The habitual criminal act is not unconstitutional as it merely imposes a more severe penalty for subsequent offenses. McIntyre v. Commonwealth, 154 Ky. 149 , 156 S.W. 1058, 1913 Ky. LEXIS 24 ( Ky. 1913 ).

The habitual criminal act (KRS 431.190 , now repealed) did not violate this section. Hampton v. Whaley, 313 Ky. 611 , 233 S.W.2d 273, 1950 Ky. LEXIS 949 ( Ky. 1950 ).

Where defendant was convicted as second degree persistent felony offender under KRS 532.080 on the basis of a prior felony which had been used in another second degree persistent felony offender conviction, there was no double jeopardy created since habitual criminality is a status under KRS 532.080 to which jeopardy does not attach as opposed to an independent crime. Smith v. Commonwealth, 610 S.W.2d 939, 1980 Ky. App. LEXIS 415 (Ky. Ct. App. 1980).

This section and KRS 505.040(1)(a) both relate to an offense before double jeopardy is activated. Retrial of a defendant, whose Persistent Felony Offender in the first degree conviction was reversed, as a second degree Persistent Felony Offender would not be prohibited by the constitutional provisions against double jeopardy. White v. Commonwealth, 770 S.W.2d 222, 1989 Ky. LEXIS 19 ( Ky. 1989 ).

Conviction as a Persistent Felony Offender is not a charge of an independent criminal offense but rather a particular criminal status; consequently double jeopardy does not attach. Persistent Felony Offender proceedings involve the status of the offender and the length of the punishment, not a separate or independent criminal offense. White v. Commonwealth, 770 S.W.2d 222, 1989 Ky. LEXIS 19 ( Ky. 1989 ).

9.—Identity of Offenses.

Test to determine identity of offenses on plea of former jeopardy is whether the evidence necessary to support the later indictment was admissible under the former, was related to the same crime and was sufficient to have warranted a conviction of that crime. Centers v. Commonwealth, 318 S.W.2d 57, 1958 Ky. LEXIS 129 ( Ky. 1958 ).

Offenses are not the same if, upon trial of one, proof of an additional fact is required which is not necessary to be proved in the trial of the other although some of the same acts may be necessary to be proved in the trial of each, and fact that some single element of offense charged may have a single element of some other offense as to which defendant has previously been in jeopardy is not sufficient to support a plea of former jeopardy. Hunt v. Commonwealth, 338 S.W.2d 912, 1960 Ky. LEXIS 424 ( Ky. 1960 ).

Where defendant’s double jeopardy claim rested upon analysis of jury instructions and on her contention that conviction for reckless homicide constitutionally precluded kidnapping conviction, as when elements of one offense are used to elevate another offense the former may not be separately prosecuted, although reckless homicide used term “kidnapping,” instruction also required finding that the victim died: under a kidnapping instruction, crime could be completed without the death of the victim; as such, the criminal events could be regarded as a continuing course of conduct for which defendant could properly be held accountable for each criminal act committed. Baker v. Commonwealth, 922 S.W.2d 371, 1996 Ky. LEXIS 24 ( Ky. 1996 ), overruled in part, Dixon v. Commonwealth, 263 S.W.3d 583, 2008 Ky. LEXIS 138 ( Ky. 2008 ).

Whether victim was released alive was not element of substantive offense of kidnapping, such determination is only used for purposes of determining range of punishments which may be imposed; and where jury’s deliberation as to whether victim was released alive could not have begun until defendant was found guilty of kidnapping, defendant’s subsequent conviction for reckless homicide was not barred by double jeopardy, regardless of any overlap between jury instructions on kidnapping and reckless homicide. Baker v. Commonwealth, 922 S.W.2d 371, 1996 Ky. LEXIS 24 ( Ky. 1996 ), overruled in part, Dixon v. Commonwealth, 263 S.W.3d 583, 2008 Ky. LEXIS 138 ( Ky. 2008 ).

Defendant’s convictions for first-degree burglary under KRS 511.020 and fourth-degree assault under KRS 508.030 did not violate double jeopardy principles under U.S. Const. amend. V. and Ky. Const. § 13 as assault required a specific finding of an intentional, wanton, or reckless mental state, and the physical injury element of burglary did not require such a finding; to the extent of a conflict, Butts v. Commonwealth, 953 S.W.2d 943, 1997 Ky. LEXIS 93 ( Ky. 1997 ), was overruled. Commonwealth v. McCombs, 304 S.W.3d 676, 2009 Ky. LEXIS 61 ( Ky. 2009 ), modified, 2010 Ky. LEXIS 139 (Ky. Mar. 18, 2010).

Given that a jury convicted defendant of both fourth-degree assault under KRS 508.030 and first-degree burglary under KRS 511.020 , and because the appellate court was unable to tell if the jury predicated both convictions on the same physical injury to the victim, a remand was necessary. If the same physical injury was the basis of both convictions, the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution and Ky. Const. § 13 were both violated. McCombs v. Commonwealth, 2006 Ky. App. LEXIS 180 (Ky. Ct. App. June 23, 2006, sub. op., 2006 Ky. App. LEXIS 3 97 (Ky. Ct. App. June 23, 2006), sub. op., 2006 Ky. App. Unpub. LEXIS 330 (Ky. Ct. App. June 23, 2006), modified, 2007 Ky. App. LEXIS 3 (Ky. Ct. App. Jan. 12, 2007).

Defendant’s conviction of both facilitation of the manufacture of methamphetamine pursuant to KRS 506.080(1) and of engaging in organized crime pursuant to KRS 506.120 did not violate the double jeopardy ban, as each offense clearly required proof of facts not required by the other. Layton v. Commonwealth, 2007 Ky. App. LEXIS 134 (Ky. Ct. App. May 4, 2007), review denied, ordered not published, 2008 Ky. LEXIS 45 (Ky. Jan. 16, 2008).

Defendant’s conviction for both the use of a minor in a sexual performance (KRS 531.310 ) and promotion of a sexual performance with a minor (KRS 531.320 ) violated double jeopardy as they failed the Blockburger test; the convictions arose out of a single course of conduct and one offense did not require proof of a fact which the other did not. Therefore, defendant’s conviction for promoting a sexual performance by a minor was vacated. Clark v. Commonwealth, 267 S.W.3d 668, 2008 Ky. LEXIS 181 ( Ky. 2008 ).

Defendant could not be convicted of two (2) possession of a firearm offenses where the second conviction was for illegal possession of the same gun involved in the first offense. Pursuant to the double jeopardy provision in Ky. Const. § 13, defendant could only be convicted of one firearm offense under that circumstance. Henry v. Commonwealth, 275 S.W.3d 194, 2008 Ky. LEXIS 320 ( Ky. 2008 ), overruled in part, Rose v. Commonwealth, 322 S.W.3d 76, 2010 Ky. LEXIS 246 ( Ky. 2010 ).

Defendant’s convictions for first-degree robbery under KRS 515.020 and first-degree unlawful access to a computer under KRS 434.845 did not violate the double jeopardy clause under either Ky. Const. § 13 or the Double Jeopardy Clause of the Fifth Amendment, U.S. Const. amend. V. Each offense had at least one element that the other offense did not and, indeed, the two offenses did not even share a common element, nor did the legislature indicate that it did not intend convictions could be obtained for both offenses in the same case. Day v. Commonwealth, 367 S.W.3d 616, 2012 Ky. App. LEXIS 74 (Ky. Ct. App. 2012).

Defendant’s convictions for wanton murder and driving under the influence did not violate double jeopardy because, to convict defendant of wanton murder, a jury had to find he operated a motor vehicle under conditions manifesting extreme indifference to human life and thereby caused a victim’s death, which the jury did not have to find to convict him of driving under the influence. Bowling v. Commonwealth, 553 S.W.3d 231, 2018 Ky. LEXIS 279 ( Ky. 2018 ).

Jury instructions sufficiently differentiated the culpable conduct required for a conviction of first-degree sexual abuse and first-degree sodomy, and therefore defendant’s convictions for both did not result in a double-jeopardy violation because the sexual-abuse instruction did not state with which body part the jury must find that the victim touched defendant for defendant to be guilty of sexual abuse, but the sodomy instruction explicitly required the jury to find the victim placed his penis in her mouth. Towe v. Commonwealth, 617 S.W.3d 355, 2021 Ky. LEXIS 16 ( Ky. 2021 ).

10.— Indictments.

Where an indictment is dismissed and the case again referred to the grand jury, after the jury has been sworn, the evidence heard, and a motion made to direct a verdict for defendant, the trial is a bar to a future prosecution for the same offense, jeopardy having attached. Huff v. Commonwealth, 42 S.W. 907, 19 Ky. L. Rptr. 1064 (1897).

The dismissal, after hearing testimony, of an indictment for false swearing alleged to have been committed by giving false evidence before a justice of the peace is not a bar to a prosecution for the same offense alleged to have been committed by giving the same false evidence before a county judge, as a conviction could not have been had under the first indictment upon evidence of false swearing before the county judge. Turner v. Commonwealth, 42 S.W. 1129, 19 Ky. L. Rptr. 1161 (1897).

This section was not violated when defendant was tried on second indictment after first indictment was quashed subsequent to swearing and empaneling of jury. Adams v. Commonwealth, 263 Ky. 143 , 92 S.W.2d 7, 1936 Ky. LEXIS 146 ( Ky. 1936 ).

Being indicted on the day after another indictment for the same offense was quashed is not jeopardy. Cross v. Commonwealth, 270 Ky. 537 , 109 S.W.2d 1214, 1937 Ky. LEXIS 104 ( Ky. 1937 ).

Even where all prior indictments against defendant were inserted into current indictment, defendant was not placed in double jeopardy, since such insertions were unnecessary surplusage. Ward v. Hurst, 300 Ky. 464 , 189 S.W.2d 594, 1945 Ky. LEXIS 567 ( Ky. 1945 ).

Indictment was dismissed for lack of evidence, and new indictment on same charge did not violate this section. Commonwealth v. Smith, 244 S.W.2d 724, 1951 Ky. LEXIS 1230 ( Ky. 1951 ).

Defendant’s reindictment was violation of this section where first valid indictment was thrown out when Commonwealth discovered defects therein after jury was empaneled and sworn. Commonwealth v. Payne, 245 S.W.2d 581, 1952 Ky. LEXIS 590 ( Ky. 1952 ).

The return of a new indictment charging the lesser offense of the old, dismissed indictment was simply a procedural move to restate a viable charge then pending for retrial and had no effect on jeopardy. Trowel v. Commonwealth, 550 S.W.2d 530, 1977 Ky. LEXIS 437 ( Ky. 1977 ).

Amendment of the indictment at the close of the evidence in a trial for robbery and assault so as to change the name of robbery victim did not prejudice the defendant or expose him to double jeopardy. Watkins v. Commonwealth, 565 S.W.2d 630, 1978 Ky. LEXIS 356 ( Ky. 1978 ).

Defendant’s double jeopardy claim with respect to drug possession charges arising from seizure of a liquid that tested positive for methamphetamine failed because (1) the indictment did not charge defendant with the offense of possession of methamphetamine, KRS 218A.1415(1), and (2) the product of the manufacturing process, e.g., the methamphetamine that was actually manufactured, was not within the definition of “drug paraphernalia under KRS 218A.500(1); thus defendant could not have been convicted of any crime except manufacturing methamphetamine premised upon his possession of the liquid that tested positive for methamphetamine; furthermore, because the trial court did not instruct the jury on the ”to use“ theory of KRS 218A.500(2), defendant could not have been convicted for possessing empty Prestone starting fluid cans seized on two (2) occasions when police searched his property. Fulcher v. Commonwealth, 149 S.W.3d 363, 2004 Ky. LEXIS 274 ( Ky. 2004 ), overruled in part, Ballinger v. Commonwealth, 459 S.W.3d 349, 2015 Ky. LEXIS 1611 ( Ky. 2015 ).

Where each count of the indictment and the instruction on that count was distinguished from the others by a statement of the type of injury caused by each assault, the specificity of the indictment and instructions were adequate to avoid double jeopardy. Schrimsher v. Commonwealth, 190 S.W.3d 318, 2006 Ky. LEXIS 104 ( Ky. 2006 ).

Indictment charging defendant with devising or engaging in a scheme to defraud the Kentucky Medical Assistance Program was properly dismissed because the Commonwealth had only charged defendant with obtaining payment for services that were not rendered, and those charges were very different from the failure to obtain pre-approval for dispensing a covered medication, which the Commonwealth stated was a significant component of its charges against defendant, and the defect in the indictment prejudiced the substantial rights of defendant; because the jury was impaneled and sworn, the circuit court properly dismissed the indictment with prejudice because defendant’s retrial was barred by the Double Jeopardy Clause. Commonwealth v. Grider, 390 S.W.3d 803, 2012 Ky. App. LEXIS 321 (Ky. Ct. App. 2012).

11.— Criminal Contempt.

The protections of this section attach in non-summary criminal contempt proceedings just as they do in other criminal proceedings. Commonwealth v. Burge, 1996 Ky. LEXIS 82 (Ky. Aug. 29, 1996), modified, sub. op., 1997 Ky. LEXIS 76 (Ky. June 19, 1997).

A sentence of imprisonment for criminal contempt did not bar prosecutions for burglary, assault, and retaliation against witness on double jeopardy grounds because in order to obtain a contempt conviction, it must be proven that a valid court order prohibiting the conduct was in effect; thus a contempt conviction requires proof of an element which the felony charge does not. Commonwealth v. Burge, 1996 Ky. LEXIS 82 (Ky. Aug. 29, 1996), modified, sub. op., 1997 Ky. LEXIS 76 (Ky. June 19, 1997).

Trial court erred in imposing a fine upon the contemnor for the contemnor’s direct criminal contempt in a court proceeding where the contemnor had been representing a defendant in a criminal proceeding; the trial court had already summarily jailed the contemnor for the direct criminal contempt and, thus, imposition of a second punishment following a hearing a few weeks later was an impermissible attempt to impose a second punishment based on the same conduct that led to the contemnor being summarily jailed weeks earlier. Schroering v. Hickman, 229 S.W.3d 591, 2007 Ky. App. LEXIS 59 (Ky. Ct. App. 2007).

12.— Jurisdiction.

Defendant could be tried by both state and federal authorities for same offense which violated law of both jurisdictions. Hall v. Commonwealth, 197 Ky. 179 , 246 S.W. 441, 1923 Ky. LEXIS 593 ( Ky. 1923 ).

Conviction in police court on drunken driving charge is a bar to prosecution in Circuit Court on same charge, since police court has jurisdiction to determine guilt even though it cannot revoke license, and revocation of license is not part of the punishment. Commonwealth v. Harris, 278 Ky. 218 , 128 S.W.2d 579, 1939 Ky. LEXIS 405 ( Ky. 1939 ).

Where defendants took money from bank customer when she entered the bank while they were in the process of robbing the bank, the money taken from such customer was not in the care, custody and control of the bank, and thus the robbery of the customer was not within the concurrent jurisdiction of the state and federal courts; thus, subsequent connection of defendants in state court after they had pled guilty to bank robbery in federal court did not violate their right against double jeopardy. Booth v. Commonwealth, 675 S.W.2d 856, 1984 Ky. LEXIS 266 ( Ky. 1984 ).

13.— — Transfer.

Where a juvenile court hearing under former law providing for proceedings against children suspected of a felony confined itself solely to the determination whether the case should be transferred to the Circuit Court, the defendant was not subjected to double jeopardy by the subsequent trial in the Circuit Court. Sharp v. Commonwealth, 559 S.W.2d 727, 1977 Ky. LEXIS 558 ( Ky. 1977 ).

14.— Jury.
15.— — Disqualification of Juror During Trial.

Where, after the prosecution had introduced evidence at a trial, the judge declared a mistrial after it was discovered that a juror was well acquainted with the defendant, a retrial before a new jury did not constitute double jeopardy. Stewart v. Commonwealth, 497 S.W.2d 226, 1973 Ky. LEXIS 305 ( Ky. 1973 ).

16.— — Discharged.

Where jury was sworn and then discharged without necessity and defendant’s consent, result was acquittal which precluded any further prosecution. Riley v. Commonwealth, 190 Ky. 204 , 227 S.W. 146, 1921 Ky. LEXIS 409 ( Ky. 1921 ).

Once jury is discharged without necessity or defendant’s consent, jeopardy has obtained, and judge therefore could not arbitrarily discharge juries and empanel new ones in hopes of finding one that would render desired verdict. Baker v. Commonwealth, 280 Ky. 165 , 132 S.W.2d 766, 1939 Ky. LEXIS 85 ( Ky. 1939 ).

Where a jury was empaneled and sworn to try defendant for crime and then discharged without real or urgent necessity, a second trial of the same defendant for the same crime constituted putting him in double jeopardy. Baker v. Commonwealth, 280 Ky. 165 , 132 S.W.2d 766, 1939 Ky. LEXIS 85 ( Ky. 1939 ).

Defendants double jeopardy rights under Ky. Const. § 13, and U.S. Const. Amends. V and XIV were violated when the trial court granted a mistrial after the first jury was sworn, because there was no showing of manifest necessity where the proffered newly discovered evidence, a witness who would testify a second defendant tried to sell the witness a gun on the day of the shooting, was cumulative; the Commonwealth already had two witnesses to testify that they had made earlier statements to police that the second defendant shot at them Cardine v. Commonwealth, 283 S.W.3d 641, 2009 Ky. LEXIS 7 ( Ky. 2009 ), cert. denied, 559 U.S. 1025, 130 S. Ct. 1879, 176 L. Ed. 2d 399, 2010 U.S. LEXIS 2451 (U.S. 2010).

17.— — Member Replaced.

After jury was sworn, one juror was disqualified on defense motion and replaced, but this was irrelevant to any issue of jeopardy. Johnson v. Commonwealth, 308 Ky. 709 , 215 S.W.2d 838, 1948 Ky. LEXIS 1028 ( Ky. 1948 ).

18.— — Hung Jury.

Where the defendant was tried for murder on three occasions and each trial resulted in a hung jury, and the defendant sought a writ of prohibition to prevent his being tried a fourth time for the same offense, the Court of Appeals did not err in denying the writ of prohibition since the defendant did not show that the right of appeal was not an adequate remedy against double jeopardy, and the three hung juries did not constitute a double jeopardy defense. Jones v. Hogg, 639 S.W.2d 543, 1982 Ky. LEXIS 296 ( Ky. 1982 ).

Where in a murder prosecution, the evidence presented by the Commonwealth would have been sufficient to sustain a verdict of guilty had the jury agreed upon such a verdict, the inability of the jury to agree, either as to guilt or innocence, necessitated a mistrial, and a retrial on the murder charge was not precluded by the defendant’s plea of former jeopardy. Nichols v. Commonwealth, 657 S.W.2d 932, 1983 Ky. LEXIS 312 ( Ky. 1983 ), cert. denied, 465 U.S. 1028, 104 S. Ct. 1289, 79 L. Ed. 2d 691, 1984 U.S. LEXIS 1129 (U.S. 1984).

The granting of a mistrial because the jury is unable to agree is a classic example of when a retrial can be had, although the jury originally empaneled was discharged without reaching a verdict and without the defendant’s consent. Nichols v. Commonwealth, 657 S.W.2d 932, 1983 Ky. LEXIS 312 ( Ky. 1983 ), cert. denied, 465 U.S. 1028, 104 S. Ct. 1289, 79 L. Ed. 2d 691, 1984 U.S. LEXIS 1129 (U.S. 1984).

The granting of a mistrial because the jury is unable to agree is a classic example of when a retrial can be had, although the jury originally empaneled was discharged without reaching a verdict and without the defendant’s consent. Nichols v. Commonwealth, 657 S.W.2d 932, 1983 Ky. LEXIS 312 ( Ky. 1983 ), cert. denied, 465 U.S. 1028, 104 S. Ct. 1289, 79 L. Ed. 2d 691, 1984 U.S. LEXIS 1129 (U.S. 1984).

19.— Lesser Offenses.

A person who has been put in jeopardy for an offense which includes others has been in jeopardy as to each of the included offenses, and this may be so where he has been put in jeopardy for the lowest of the offenses, and such jeopardy will bar a prosecution for the others. Commonwealth v. Browning, 146 Ky. 770 , 143 S.W. 407, 1912 Ky. LEXIS 161 ( Ky. 1912 ).

Acquittal of greater offense bars prosecution for lesser offense for which conviction could have been had in greater offense trial. Commonwealth v. Ladusaw, 226 Ky. 386 , 10 S.W.2d 1089, 1928 Ky. LEXIS 88 ( Ky. 1928 ).

Since possession of burglar’s tools was not lesser offense within attempted safe-opening, defendant prosecuted for the latter could not be convicted of the former. Burch v. Commonwealth, 240 Ky. 519 , 42 S.W.2d 714, 1931 Ky. LEXIS 436 ( Ky. 1931 ).

Conviction or acquittal on lesser included offense barred prosecution for greater offense. Burnett v. Commonwealth, 284 S.W.2d 654, 1955 Ky. LEXIS 30 ( Ky. 1955 ).

It is a violation of the double jeopardy provision of this section and KRS 505.020(2) regarding convictions for lesser-included offenses for a defendant to be charged with possession and sale of the same marijuana in the same transaction. Mangrum v. Commonwealth, 674 S.W.2d 957, 1984 Ky. LEXIS 244 ( Ky. 1984 ).

Where defendant was first tried on a charge of first-degree robbery, that trial ending in a mistrial because the jury could not agree on a verdict, and was retried on a charge of first-degree assault, resulting in a conviction of second-degree assault, no aspect of the double jeopardy doctrine precluded his retrial on the lesser-included offenses of assault, since he could have been retried on the greater crime of robbery in the first-degree. Commonwealth v. Varney, 690 S.W.2d 758, 1985 Ky. LEXIS 211 ( Ky. 1985 ), overruled, Goodman v. Commonwealth, 2015 Ky. Unpub. LEXIS 19 (Ky. Feb. 19, 2015).

Although the theft of the vehicle was, in reality, a part of the first degree robbery and not a separate offense as charged in the indictment, defendant’s plea of guilty to theft did not attach double jeopardy; therefore he could be convicted, at the same trial, of first degree robbery. Jordan v. Commonwealth, 703 S.W.2d 870, 1985 Ky. LEXIS 269 ( Ky. 1985 ).

Even if the crime of drunk driving contained in KRS 189A.010 is a lesser included offense to murder, as set forth in KRS 507.020 , and had the trial court accepted the defendant’s guilty plea to the drunk driving charge, the Commonwealth would not have been barred by the double jeopardy clause to prosecute the defendant’s on the greater offense of murder where the defendant did not request separate trials. Keller v. Commonwealth, 719 S.W.2d 5, 1986 Ky. App. LEXIS 1459 (Ky. Ct. App. 1986).

Because theft is a lesser included offense of robbery, receiving stolen property also is a lesser included offense of robbery, and conviction for both crimes is barred by the constitutional double jeopardy principle and by the limitations on prosecution for multiple offenses. Jones v. Commonwealth, 756 S.W.2d 462, 1988 Ky. LEXIS 49 ( Ky. 1988 ), limited, Moser v. Commonwealth, 799 S.W.2d 21, 1990 Ky. LEXIS 101 ( Ky. 1990 ), limited, Mhoney v. Kentucky (Ky. Ct. App. 1992), overruled, Commonwealth v. Burge, 947 S.W.2d 805, 1996 Ky. LEXIS 82 ( Ky. 1997 ).

Kentucky cases applying the Double Jeopardy Clause to multiple prosecutions in a single trial when there is in fact a single offense also recognize that the rule when applied to two (2) convictions in the same trial requires only that the lesser offense be vacated. Walden v. Commonwealth, 805 S.W.2d 102, 1991 Ky. LEXIS 3 ( Ky. 1991 ), overruled, Commonwealth v. Burge, 947 S.W.2d 805, 1996 Ky. LEXIS 82 ( Ky. 1997 ).

Where there is but a single trial, the Double Jeopardy Clause does not foreclose multiple convictions, per se, but only judgments imposing multiple punishments, meaning that the judgment punishing on the lesser charge should be set aside. Walden v. Commonwealth, 805 S.W.2d 102, 1991 Ky. LEXIS 3 ( Ky. 1991 ), overruled, Commonwealth v. Burge, 947 S.W.2d 805, 1996 Ky. LEXIS 82 ( Ky. 1997 ).

Conviction for DUI and wanton murder in the same trial violates the double jeopardy principle contained in this section, and its statutory counterpart, KRS 505.020 . Under Kentucky law, in such circumstances the DUI may be submitted to the jury as an alternative to the more serious offense, available in the event the jury does not convict of the greater offense, but not as a subject for additional punishment. Bush v. Commonwealth, 839 S.W.2d 550, 1992 Ky. LEXIS 146 ( Ky. 1992 ).

Where charges against juvenile for third-degree burglary and second-degree criminal mischief were raised to second-degree and first-degree, respectively, after commencement of the trial, but in both cases complaints clearly stated facts to support the raised charges, and where juvenile proceeding took place under the Unified Juvenile Code which makes no distinctions between felonies and misdemeanors, such defects were not tantamount to an additional or different offense, and did not mislead the defendant or cause him to suffer any prejudice. A.E. v. Commonwealth, 860 S.W.2d 790, 1993 Ky. App. LEXIS 98 (Ky. Ct. App. 1993).

Three (3) counts of cocaine trafficking were not “lesser included offenses” of the crime of criminal syndicate and there was no double jeopardy violation because the statutory crimes of trafficking in a controlled substance and criminal syndicate each require proof of facts which the other does not. Brooks v. Commonwealth, 905 S.W.2d 861, 1995 Ky. LEXIS 104 ( Ky. 1995 ); Smith v. Commonwealth, 905 S.W.2d 865, 1995 Ky. LEXIS 115 ( Ky. 1995 ); Dishman v. Commonwealth, 906 S.W.2d 335, 1995 Ky. LEXIS 114 (Ky. 1995); Edmonds v. Commonwealth, 906 S.W.2d 343, 1995 Ky. LEXIS 113 (Ky. 1995).

Conviction of possession of marijuana violated U.S. Const. amend. V and Ky. Const. § 13 because it was a lesser included offense of trafficking in marijuana; even though the jury could have found that roaches were personally used by appellant, the jury instructions did not require the jury to make a distinction between the offenses. As such, it was impossible to determine whether appellant was convicted of possession marijuana and trafficking marijuana based on the same quantity of marijuana. Massie v. Commonwealth, 2012 Ky. App. LEXIS 178 (Ky. Ct. App. Sept. 21, 2012).

20.— Mistrial.

Where mistrial was declared on motion of Commonwealth due to improper remarks by defendant in presence of jury, jeopardy attached and precluded subsequent trial. Lillard v. Commonwealth, 267 S.W.2d 712, 1954 Ky. LEXIS 847 ( Ky. 1954 ).

The circumstances under which a defendant, who has previously successfully moved for a mistrial, may invoke the bar of double jeopardy in a second effort to try him are limited to those cases in which the conduct giving rise to the successful motion for a mistrial was intended to provoke the defendant into moving for a mistrial. Stamps v. Commonwealth, 648 S.W.2d 868, 1983 Ky. LEXIS 239 ( Ky. 1983 ).

A party seeking a mistrial may not prevent his retrial on the same charge upon double jeopardy grounds unless he can show that the conduct giving rise to the order of mistrial was precipitated by bad faith, overreaching or some other fundamentally unfair action of the prosecutor or the court. Anderson v. Commonwealth, 902 S.W.2d 269, 1995 Ky. App. LEXIS 127 (Ky. Ct. App. 1995).

When defendant’s trial was continued because the prosecution had not provided evidence to the defense, after which the trial court ordered that all such evidence be provided, and a mistrial was granted in the second trial because the prosecution had not provided certain evidence to the defense, the trial court’s ruling that a third trial was not barred by double jeopardy because the prosecution was not guilty of bad faith was not clearly erroneous or an abuse of discretion. Clift v. Commonwealth, 105 S.W.3d 467, 2003 Ky. App. LEXIS 89 (Ky. Ct. App. 2003).

Retrial would violate double jeopardy because there was no manifest necessity for a mistrial, as phone calls to three witnesses by defendant’s sister-in-law in which she told them that they did not have to answer questions by the Commonwealth over the telephone, or could answer only “yes” or “no” to questions, had not injured the Commonwealth’s right to prepare, investigate, and present its case. The sister-in-law had not threatened the witnesses, encouraged them to lie, or told them not to come to the trial. Radford v. Lovelace, 212 S.W.3d 72, 2006 Ky. LEXIS 157 ( Ky. 2006 ).

It was not error for the trial court to deny defendants’ motions to bar a subsequent trial after the trial court was forced to declare a mistrial, because the trial court concluded that the mistrial was not made necessary by any intentional, overreaching, or fundamentally unfair conduct by the Commonwealth. Rather, the mistrial was required because the jury was inadvertently given evidence that implicated one defendant and the evidence had not been admitted into evidence at trial. Bennett v. Commonwealth, 217 S.W.3d 871, 2006 Ky. App. LEXIS 360 (Ky. Ct. App. 2006).

Defendant’s conviction obtained in second county after the prosecution of defendant in the first county ended in the middle of trial on defendant’s mistrial motion because the first county was the wrong venue was not barred by double jeopardy. The double jeopardy protections set forth in U.S. Const. amend. V and Ky. Const. § 13 did not apply because the prosecution in the first county ended on defendant’s own motion and defendant’s guilt was not determined in that proceeding. Derry v. Commonwealth, 274 S.W.3d 439, 2008 Ky. LEXIS 316 ( Ky. 2008 ).

Defendant impliedly consented to a mistrial under KRS 505.030(4), and defendant’s retrial was not barred on double jeopardy grounds under U.S. Const. amend. V or Ky. Const. § 13 as defendant did not object to the mistrial after a four-minute chambers conference, or offer an alternative course of action, and defendant gave implied consent to the mistrial by contemplating additional proceedings by discussing potential witnesses for the retrial with the trial court. Commonwealth v. Borders, 2009 Ky. App. LEXIS 20 (Ky. Ct. App. Feb. 13, 2009, sub. op., 2009 Ky. App. Unpub. LEXIS 1085 (Ky. Ct. App. Feb. 13, 2009), review denied, ordered not published, 2009 Ky. LEXIS 324 (Ky. Nov. 18, 2009).

21.— New Trial.

Where conviction was reversed due to insufficient indictment, new trial did not constitute double jeopardy. Foster v. Kentucky, 311 F.2d 212, 1962 U.S. App. LEXIS 3232 (6th Cir. Ky. 1962 ).

New trial upon reversal of conviction did not violate this section. Newton v. Commonwealth, 197 Ky. 496 , 247 S.W. 707, 1923 Ky. LEXIS 668 ( Ky. 1923 ).

New trial after mistrial is not double jeopardy if defendant caused mistrial, even where jury is sworn. Mullins v. Commonwealth, 258 Ky. 529 , 80 S.W.2d 606, 1935 Ky. LEXIS 213 ( Ky. 1935 ).

Granting new trial after conviction did not put defendant in double jeopardy. Terry v. Commowealth, 371 S.W.2d 862, 1963 Ky. LEXIS 120 ( Ky. 1963 ).

State supreme court did not need to decide whether the criminal defendant’s double jeopardy rights under the Fifth Amendment, U.S. Const. amend. V, and Ky. Const. § 13 would be violated after the trial court granted a mistrial while the criminal defendant was being tried on charge of capital kidnapping, attempted murder, and other offenses, and the criminal defendant feared being retried on them. Although the trial court determined that a mistrial was necessary but was not caused by prosecutorial misconduct, the criminal defendant was not entitled to the issuance of a writ of prohibition because an adequate remedy for the trial court’s alleged error existed on appeal. St. Clair v. Castlen, 381 S.W.3d 306, 2012 Ky. LEXIS 178 ( Ky. 2012 ).

22.— Pleading and Proof.

Double jeopardy must be pleaded in writing with supporting proof of second indictment for same offense of which there was prior conviction or acquittal. Middleton v. Commonwealth, 198 Ky. 626 , 249 S.W. 775, 1923 Ky. LEXIS 510 ( Ky. 1923 ). See Commonwealth v. Mathis, 203 Ky. 359 , 262 S.W. 288, 1924 Ky. LEXIS 909 ( Ky. 1924 ).

Former jeopardy can be raised by motion if all facts are in the record, though it is otherwise raised by special plea. Mullins v. Commonwealth, 258 Ky. 529 , 80 S.W.2d 606, 1935 Ky. LEXIS 213 ( Ky. 1935 ).

Double jeopardy was not sufficient plea to bar damages award under unfair trade practices act where such plea was based on possible upcoming criminal proceeding under same act, and proper time to raise plea was in such criminal proceeding. Jefferson Ice & Fuel Co. v. Grocers Ice & Gold Storage Co., 286 S.W.2d 80, 1955 Ky. LEXIS 91 ( Ky. 1955 ).

Scrutiny of court on plea of former jeopardy is directed at determination of same question as on plea of fatal variance, the only difference being the point from which it is viewed, one after the second trial and the other immediately after the first trial and before second. Braswell v. Commonwealth, 339 S.W.2d 637, 1960 Ky. LEXIS 479 ( Ky. 1960 ).

A party seeking to prevent his retrial upon double jeopardy grounds must show that the conduct giving rise to the order of mistrial was precipitated by bad faith, overreaching or some other fundamentally unfair action of the prosecutor or the court. Tinsley v. Jackson, 771 S.W.2d 331, 1989 Ky. LEXIS 50 ( Ky. 1989 ).

23.— Same Offense.

Where one began a quarrel and twice discharged his pistol in the street, then followed another into a store, pistol in hand, threatening to shoot, the whole affair occupying not more than ten (10) minutes, he could not, in view of this section, be convicted of flourishing and using a deadly weapon after conviction for shooting at random on the public highway. Carman v. Commonwealth, 76 S.W. 1078, 25 Ky. L. Rptr. 1048 (1903).

Prosecution of a father for desertion of child in one year did not authorize plea of former jeopardy for same offense in a subsequent year, as father’s duty is continuous one. Miller v. Commonwealth, 225 Ky. 576 , 9 S.W.2d 706, 1928 Ky. LEXIS 818 ( Ky. 1928 ).

Defendant acquitted of malicious assault with intent to rob could not be prosecuted for malicious shooting based on same shooting comprising first offense. Rogers v. Commonwealth, 257 Ky. 495 , 78 S.W.2d 340, 1935 Ky. LEXIS 43 ( Ky. 1935 ).

Where defendant, in course of commission of larceny, drew pistol on victim and searched him, only one continuous offense took place, and acquittal of defendant of larceny charge barred subsequent prosecution for included offense of assault with intent to rob. Arnett v. Commonwealth, 270 Ky. 335 , 109 S.W.2d 795, 1937 Ky. LEXIS 76 ( Ky. 1937 ).

Charges that defendant defrauded a wife of a certain sum by obtaining check drawn by her husband and subsequent charge that he defrauded husband by making same misrepresentation, thereby receiving such check, are both based on one and the same criminal act. Braswell v. Commonwealth, 339 S.W.2d 637, 1960 Ky. LEXIS 479 ( Ky. 1960 ).

Constitutional prohibition against putting accused in jeopardy twice for same offense does not signify same offense by name or designation, but the same criminal act or omission, and this is test on plea of former jeopardy. Braswell v. Commonwealth, 339 S.W.2d 637, 1960 Ky. LEXIS 479 ( Ky. 1960 ).

A defendant was not placed in double jeopardy by being brought to trial for the same offense a third time after the jury in the first two (2) trials was unable to reach a verdict. Cornwell v. Commonwealth, 523 S.W.2d 224, 1975 Ky. LEXIS 115 ( Ky. 1975 ).

Since all of the elements of theft as set forth in KRS 514.030 are incorporated into the robbery statute, KRS 515.020 , the defendant would be subject to double jeopardy if charged with, and convicted of both. McKee v. Commonwealth, 720 S.W.2d 343, 1986 Ky. App. LEXIS 1451 (Ky. Ct. App. 1986).

Where defendant who sold two (2) marijuana cigarettes to a minor was convicted of selling marijuana to a minor and trafficking within 1000 yards of a school, the facts presented a single impulse and single act, having no compound consequences and therefore, the defendant committed but one (1) offense, and dual convictions were constitutionally impermissible. Ingram v. Commonwealth, 801 S.W.2d 321, 1990 Ky. LEXIS 144 ( Ky. 1990 ), limited, Mhoney v. Kentucky (Ky. Ct. App. 1992), overruled, Commonwealth v. Burge, 947 S.W.2d 805, 1996 Ky. LEXIS 82 ( Ky. 1997 ).

Under Kentucky constitutional law the protection against multiple punishments for crimes which are factually a single offense does not depend for its existence upon prosecutorial discretion attaching to the decision to try multiple charges in the same trial rather than in successive trials. Walden v. Commonwealth, 805 S.W.2d 102, 1991 Ky. LEXIS 3 ( Ky. 1991 ), overruled, Commonwealth v. Burge, 947 S.W.2d 805, 1996 Ky. LEXIS 82 ( Ky. 1997 ).

The present interpretation of this section which prohibits an accused from being placed in double jeopardy for the same offense, prohibits the Commonwealth from carving out of one act or transaction two (2) or more offenses. The prohibition extended to indicting defendant both for robbery in the first degree of store employee, individually, and indicting defendant for the robbery of employee in his counterpart status as the store. Stark v. Commonwealth, 828 S.W.2d 603, 1991 Ky. LEXIS 177 ( Ky. 1991 ), overruled, Thomas v. Commonwealth, 931 S.W.2d 446, 1996 Ky. LEXIS 89 ( Ky. 1996 ).

When officers found a handgun on defendant’s person during a pat down search, he was arrested on an outstanding warrant and convicted of carrying a concealed deadly weapon and possession of marijuana; in a separate proceeding, he was acquitted of charges of rape and kidnapping but was convicted on another charge of possession of a handgun by a convicted felon. The Court of Appeals of Kentucky held that defendant’s conviction in case two for possession of a handgun by a convicted felon was barred by double jeopardy, as his possession was not a new, separate offense but was rather part and parcel of an ongoing, uninterrupted course of conduct. Akins v. Commonwealth, 2009 Ky. App. LEXIS 199 (Ky. Ct. App. Oct. 16, 2009), review denied, ordered not published, 2010 Ky. LEXIS 429 (Ky. Aug. 18, 2010).

Defendant was improperly convicted of both robbery and felony theft for stealing drugs from a drugstore because the legislature had specifically shown its intent that a person in defendant’s position could not be convicted of both theft by unlawful taking and robbery based upon the same underlying theft, so double jeopardy under Ky. Const. § 13 applied. Lloyd v. Commonwealth, 324 S.W.3d 384, 2010 Ky. LEXIS 253 ( Ky. 2010 ).

Defendant’s convictions for both attempted murder and first-degree assault for shooting the same alleged victim did not violate the protections against double jeopardy under U.S. Const. amend. V and Ky. Const. § 13 because each crime contained an element that the other did not; the convictions did result in a double jeopardy violation of KRS 505.020(1)(b) because there were inconsistent and mutually exclusive findings of fact regarding defendant’s mens rea at the moment he fired the shots when the jury had to conclude that defendant intended to kill the alleged victim and, at the same instant, intended not to kill him but only to injure him. Kiper v. Commonwealth, 2012 Ky. LEXIS 409 (Ky. Nov. 21, 2012).

24.— Continuing Offenses.

Defendant’s convictions on two (2) counts of criminal mischief, arising out of damage he inflicted on a mausoleum and a casket, did not violate KRS 505.020(1)(c) because the criminal mischief statute was not designed to prevent a continuing course of conduct. Rather, the offense of first-degree criminal mischief was completed once the defendant, without the authority to do so, intentionally or wantonly defaced, destroyed or damaged any property causing pecuniary loss of $ 1,000 or more. Terry v. Commonwealth, 253 S.W.3d 466, 2007 Ky. LEXIS 268 ( Ky. 2007 ).

25.—Separate Offenses.

A trial under an indictment for uttering a forged instrument is a bar to a prosecution upon the same facts for the offense of obtaining money and property by false pretenses. Huff v. Commonwealth, 42 S.W. 907, 19 Ky. L. Rptr. 1064 (1897).

The Commonwealth cannot divide an act constituting one offense into two (2) or more parts and prosecute for each of them, but where two (2) offenses occur out of an identical transaction and the Commonwealth elects to prosecute for the lesser offense, a conviction or acquittal will bar a prosecution for the greater. Hughes v. Commonwealth, 131 Ky. 502 , 115 S.W. 744, 1909 Ky. LEXIS 48 ( Ky. 1909 ).

When a criminal act is committed that constitutes more than one offense, the Commonwealth may elect the one for which it will prosecute and, having made the election, will be bound thereby and cannot thereafter prosecute for another. Hughes v. Commonwealth, 131 Ky. 502 , 115 S.W. 744, 1909 Ky. LEXIS 48 ( Ky. 1909 ).

The offense of breaking into a storehouse with intent to steal, under KRS 433.190 (repealed), was a distinct offense from breaking into a dwelling house under KRS 433.180 (repealed), and, as the evidence to support an indictment for one would not support the other, a person indicted under KRS 433.190 (repealed) was not in jeopardy so that he could not later be indicted and tried under KRS 433.180 (repealed). Thomas v. Commonwealth, 150 Ky. 374 , 150 S.W. 376, 1912 Ky. LEXIS 895 ( Ky. 1912 ).

Defendant who killed two (2) persons could be tried for murder of one after acquittal of murder of other. Commonwealth v. Anderson, 169 Ky. 372 , 183 S.W. 898, 1916 Ky. LEXIS 687 ( Ky. 1916 ).

When accused indorsed and deposited two (2) checks, and was given credit for amount of checks, knowing the maker had no funds in bank on which drawn to meet them, and then drew out all but a few dollars deposited, a conviction on account of indorsement and deposit of one check does not amount to former jeopardy precluding a conviction for indorsement and deposit of other check. Siegel v. Commonwealth, 177 Ky. 232 , 197 S.W. 809, 1917 Ky. LEXIS 589 ( Ky. 1917 ).

Defendant who raped victim, then aided and abetted rape of same victim by his companion, could be tried on aiding and abetting charge even after acquittal of rape charge. Wingfield v. Commonwealth, 197 Ky. 331 , 246 S.W. 822, 1923 Ky. LEXIS 624 ( Ky. 1923 ).

Where defendant was charged under separate indictments with separate but similar offenses and evidence in trial under first indictment covered all such offenses, conviction or acquittal thereunder barred prosecution of remaining offenses. Newton v. Commonwealth, 198 Ky. 707 , 249 S.W. 1017, 1923 Ky. LEXIS 535 ( Ky. 1923 ).

Defendant who shot one officer and then another in escape attempt could be prosecuted for each offense separately without violation of this section. Wallace v. Commonwealth, 207 Ky. 122 , 268 S.W. 809, 1925 Ky. LEXIS 30 ( Ky. 1925 ).

Where defendant became involved in fight and shot and killed two (2) persons, one of whom he was fighting with, acquittal of murder of one did not bar prosecution for murder of other. Slone v. Commonwealth, 266 Ky. 366 , 99 S.W.2d 207, 1936 Ky. LEXIS 683 ( Ky. 1936 ).

Where indictment charging defendant with larceny of property also charged him with receiving the stolen property, it was not necessary for the court, in the instructions, to require the jury to state in its verdict on which charge the defendant was found guilty, since a verdict of guilty would bar a subsequent prosecution on either charge. Jones v. Commonwealth, 305 Ky. 264 , 203 S.W.2d 72, 1947 Ky. LEXIS 802 ( Ky. 1947 ).

Defendant who committed several assaults thereby committed separate crimes, and could be indicted and tried for each. Helton v. Commonwealth, 244 S.W.2d 762, 1951 Ky. LEXIS 1248 ( Ky. 1951 ).

While one act could not be split into several offenses, if one act did constitute several offenses and prosecution elected to try one offense only, conviction or acquittal thereon barred prosecution of remaining offenses. Burnett v. Commonwealth, 284 S.W.2d 654, 1955 Ky. LEXIS 30 ( Ky. 1955 ).

Where defendant was prosecuted for offense against certain person, subsequent prosecution for separate offense against another person was not barred even though both offenses derived from same incident. Murray v. Commonwealth, 289 S.W.2d 203, 1956 Ky. LEXIS 280 ( Ky. 1956 ).

When victim died of wounds received from defendant during robbery after defendant was convicted therefor, subsequent prosecution of defendant for murder was not barred. Centers v. Commonwealth, 318 S.W.2d 57, 1958 Ky. LEXIS 129 ( Ky. 1958 ).

Since larceny and storehouse breaking were separate offenses, even though they might occur from a single criminal transaction, double jeopardy doctrine did not prevent a prosecution for both offenses. Hunt v. Commonwealth, 338 S.W.2d 912, 1960 Ky. LEXIS 424 ( Ky. 1960 ).

Individual on trial for receiving stolen property testified that he stole the property and indictment was dismissed. He was then charged with felonious theft of the same property. It was held the offenses were different and there was no double jeopardy. Lindsey v. Commonwealth, 383 S.W.2d 333, 1964 Ky. LEXIS 24 ( Ky. 1964 ).

Considering that a trial for the offense of carnal knowledge does not involve a relitigation of any issue necessarily presented by the charge of detaining a woman against her will, there is no sound reason for holding that one bars the other under the principle of double jeopardy and the separate offenses could be legally joined in one trial and result in consecutive sentences. Davis v. Commonwealth, 561 S.W.2d 91, 1978 Ky. LEXIS 317 ( Ky. 1978 ).

Defendant’s trial on the charge of detaining a woman against her will precluded a subsequent conviction for the greater offense of rape because it makes no difference whether it is the greater or the lesser charge that is the first tried. Davis v. Commonwealth, 561 S.W.2d 91, 1978 Ky. LEXIS 317 ( Ky. 1978 ).

It was not improper for state to prosecute defendant on both charges of possession of a handgun by a convicted felon under KRS 527.040 and on first-degree assault charge under KRS 508.010 even though a single course of conduct establishes the commission of both offenses because of KRS 505.020 ; and conviction for both crimes is not double jeopardy under this section because neither offense is necessarily included within the other and each requires proof of an element not required by the other. Boulder v. Commonwealth, 610 S.W.2d 615, 1980 Ky. LEXIS 288 ( Ky. 1980 ), overruled, Dale v. Commonwealth, 715 S.W.2d 227, 1986 Ky. LEXIS 284 ( Ky. 1986 ).

Where defendant was convicted of two (2) distinct offenses of burglary and receiving stolen property, his right against double jeopardy was not violated, because burglary was completed when he entered the apartment with intent to commit crime inside, and his stealing of a television set afterwards constituted a completely separate offense. Phillips v. Commonwealth, 679 S.W.2d 235, 1984 Ky. LEXIS 296 ( Ky. 1984 ).

Convictions for both conspiracy to commit first degree robbery and accomplice to second-degree assault did not violate defendant’s constitutional and statutory right against double jeopardy. Wilson v. Commonwealth, 695 S.W.2d 854 ( Ky. 1985 ).

Burglary is basically an offense against property inasmuch as it mandates unlawful entry into a building to obtain a conviction; however, such entry is not a part of the evidence necessary to convict of first degree robbery which is an offense against persons. Therefore, robbery and burglary are separate offenses and prosecution for both is not double jeopardy. Jordan v. Commonwealth, 703 S.W.2d 870, 1985 Ky. LEXIS 269 ( Ky. 1985 ).

Where all charges are contained in a single indictment and disposed of at a single trial, the entire factual history of the continuing course of conduct is presented to the jury and, if that chronicle contains the elements necessary for separate statutory crimes, the reality that many of the constituent parts which compose the severable wholes are the same does not destroy that severability under the label of double jeopardy. Jordan v. Commonwealth, 703 S.W.2d 870, 1985 Ky. LEXIS 269 ( Ky. 1985 ).

The single act of firing a shotgun into a building can be the basis of a conviction for both wanton murder and for wanton endangerment in the first degree where there was more than one (1) victim. Alexander v. Commonwealth, 766 S.W.2d 631, 1988 Ky. LEXIS 51 ( Ky. 1988 ).

The fact that two (2) murders were committed by defendant in the course of robbery, assigned to the defendant a particular status, placing him within the category of persons against whom the death penalty might be imposed according to statute, and the penalty imposed as a result of the murder convictions was not a second sentence resulting from the convictions for armed robbery and did not constitute double jeopardy. Sanders v. Commonwealth, 801 S.W.2d 665, 1990 Ky. LEXIS 93 ( Ky. 1990 ), cert. denied, 502 U.S. 831, 112 S. Ct. 107, 116 L. Ed. 2d 76, 1991 U.S. LEXIS 4767 (U.S. 1991).

Conviction for possession of a Schedule III controlled substance was barred by double jeopardy where the possession of the controlled substance was an element of the charge of receiving that substance as stolen property, and there was no additional element which would cause it to be a separate crime. Moser v. Commonwealth, 799 S.W.2d 21, 1990 Ky. LEXIS 101 ( Ky. 1990 ).

Where defendant was convicted of trafficking in cocaine and of transferring cocaine/crack, that the events occurred within fifteen (15) minutes of each other and during a continuous meeting between the defendant and an undercover officer does not negate the fact that two (2) separate offenses, their elements established by separate facts, were committed; it was not the meeting that was criminal, but rather certain transactions which occurred in the course of the meeting, and constitutional prohibitions against multiple jeopardy do not extend to prosecution and punishment of independent crimes committed during a single course of conduct. Grenke v. Commonwealth, 796 S.W.2d 858, 1990 Ky. LEXIS 99 ( Ky. 1990 ).

When a forged rental agreement or other instrument is used in order to obtain the property of another, this section prohibits on double jeopardy grounds, convictions for both forgery and theft by deception. Hellard v. Commonwealth, 829 S.W.2d 427, 1992 Ky. App. LEXIS 41 (Ky. Ct. App. 1992), overruled, Commonwealth v. Burge, 947 S.W.2d 805, 1996 Ky. LEXIS 82 ( Ky. 1997 ).

Conviction of defendant for murder and arson was not a violation of double jeopardy as there were distinct elements in each of the offenses not required for the other and defendant’s act of setting decedent’s car afire produced compound consequences, which provided an exception to the prohibition of multiple prosecutions for crimes which arise from only a single act or impulse. Eldred v. Commonwealth, 906 S.W.2d 694, 1994 Ky. LEXIS 122 ( Ky. 1994 ), cert. denied, 516 U.S. 1154, 116 S. Ct. 1034, 134 L. Ed. 2d 111, 1996 U.S. LEXIS 1528 (U.S. 1996).

The prosecution of the defendant for first degree assault following his conviction for driving under the influence (DUI) did not violate the prohibition against double jeopardy, even though both arose from the same automobile collision, as first degree assault does not require any proof of alcohol or intoxicate consumption and requires proof that the defendant caused serious physical injury either intentionally or wantonly, while DUI requires no proof of injury to another or proof of the defendant’s state of mind. Johnson v. Commonwealth, 36 S.W.3d 763, 2001 Ky. App. LEXIS 9 (Ky. Ct. App. 2001).

If defendant was twice convicted for possession of drug paraphernalia arising from the same aluminum foil “boat,” which was seized with other drug paraphernalia, the convictions did not constitute double jeopardy because pursuant to KRS 505.020(1)(c), defendant’s arrest for use of possession of drug paraphernalia one week prior to a subsequent arrest for the same crime was a legal process that interrupted his possession of the aluminum foil “boat” so that his subsequent possession of the same paraphernalia (if it was the same) would constitute a separate offense. Fulcher v. Commonwealth, 149 S.W.3d 363, 2004 Ky. LEXIS 274 ( Ky. 2004 ), overruled in part, Ballinger v. Commonwealth, 459 S.W.3d 349, 2015 Ky. LEXIS 1611 ( Ky. 2015 ).

Where one conviction was for the present or past use of the paraphernalia to manufacture methamphetamine, KRS 218A.1432(1)(a), and the other conviction was for an intent to use the paraphernalia in the future to manufacture additional methamphetamine, KRS 218A.500(2), each offense required proof of an element that the other did not and no double jeopardy violation occurred. Fulcher v. Commonwealth, 149 S.W.3d 363, 2004 Ky. LEXIS 274 ( Ky. 2004 ), overruled in part, Ballinger v. Commonwealth, 459 S.W.3d 349, 2015 Ky. LEXIS 1611 ( Ky. 2015 ).

Defendant’s sentences for both driving under the influence (DUI), KRS 189A.010(1)(a), and operating a motor vehicle while his license was suspended for DUI, KRS 189A.090(1), did not violate his double jeopardy rights under KRS 505.020(2)(a), since being under the influence was not an element of each offense. As each offense required the proof of different elements, sentencing on both convictions was not double jeopardy. Lay v. Commonwealth, 207 S.W.3d 18, 2006 Ky. App. LEXIS 163 (Ky. Ct. App. 2006).

Defendant’s convictions for manufacturing methamphetamine and trafficking in methamphetamine did not violate defendant’s double jeopardy rights pursuant to Ky. Const. § 13 and U.S. Const. amend. V; defendant’s double jeopardy rights were not violated because the crimes of manufacturing methamphetamine and trafficking in methamphetamine were separate offenses and, thus, there were not two convictions for the same offense. Brooks v. Commonwealth, 217 S.W.3d 219, 2007 Ky. LEXIS 65 ( Ky. 2007 ).

Actual infliction of physical injury to the victim by a dangerous instrument was not required to convict defendant of complicity to robbery in the first degree under KRS 515.020 , nor was the theft required for conviction of complicity to second degree assault under KRS 508.020 ; both of the statutes had different elements that had to be proved in finding guilt under the respective instructions. Thus, the double jeopardy rule was not violated. Fields v. Commonwealth, 219 S.W.3d 742, 2007 Ky. LEXIS 92 ( Ky. 2007 ).

Because the elements of possession of a controlled substance were not contained in possession of drug paraphernalia, and vice versa, as the elements of possession of drug paraphernalia are possession of an object that is drug paraphernalia with the intent to use it to consume drugs and possession of a controlled substance required knowing and unlawful possession of a controlled substance, there was no double jeopardy violation. Hampton v. Commonwealth, 231 S.W.3d 740, 2007 Ky. LEXIS 162 ( Ky. 2007 ).

Defendant’s convictions for both first-degree criminal mischief and violating a grave did not violate double jeopardy. The crimes required proof of different elements as first-degree criminal mischief required proof of a pecuniary loss of $1,000 or more while the crime of violating a grave did not include a monetary damage requirement. Terry v. Commonwealth, 253 S.W.3d 466, 2007 Ky. LEXIS 268 ( Ky. 2007 ).

Defendant’s convictions for both desecration of venerable objects and theft by unlawful taking did not violate double jeopardy because the crimes were separate crimes that required proof of different elements. Theft by taking required defendant to actually take control of the objects he took from a grave while the crime of desecration of venerable objects was complete upon his excavation or disinterment of human remains with the intent to exploit commercially the remains themselves or objects buried with them. Terry v. Commonwealth, 253 S.W.3d 466, 2007 Ky. LEXIS 268 ( Ky. 2007 ).

For purposes of double jeopardy, the crimes of violating a grave and first-degree desecration of venerable objects did not constitute the same offense because in order to violate a grave, defendant had to mutilate the grave or the shrubbery, grounds, etc., immediately surrounding the grave, and by contrast, no mutilation requirement existed in the first-degree desecration of venerated objects statute. Terry v. Commonwealth, 253 S.W.3d 466, 2007 Ky. LEXIS 268 ( Ky. 2007 ).

For purposes of double jeopardy, the crimes of first-degree criminal mischief and first-degree desecration of venerable objects did not constitute the same offense because there was a $1,000 threshold monetary property damage requirement for criminal mischief in the first degree, but no property damage requirement for desecration of venerated objects. Terry v. Commonwealth, 253 S.W.3d 466, 2007 Ky. LEXIS 268 ( Ky. 2007 ).

Because defendant’s act of touching the victim’s genitals was an entirely separate act and offense than his orally sodomizing the victim, there was no double jeopardy violation. Benet v. Commonwealth, 253 S.W.3d 528, 2008 Ky. LEXIS 132 ( Ky. 2008 ).

The prohibition against double jeopardy is not violated when a defendant is convicted of first-degree assault and first-degree rape involving a serious physical injury to the victim, even if the same serious physical injury to the victim is used to support each conviction. Dixon v. Commonwealth, 263 S.W.3d 583, 2008 Ky. LEXIS 138 ( Ky. 2008 ).

Defendants’ convictions for two (2) counts each of using a minor in a sexual performance and promoting a sexual performance by a minor did not violate prohibition against double jeopardy and KRS 505.020 , as the convictions did not arise from a single course of conduct, but rather, were based on distinct actions as to separate victims; the evidence showed that defendant used or employed a friend’s daughter in a sexual performance when defendant tossed the child in the air while the friend filmed the child’s bare buttocks and defendant promoted a sexual performance when defendant allowed defendant’s daughter to be filmed while naked in a bathtub. Little v. Commonwealth, 272 S.W.3d 180, 2008 Ky. LEXIS 241 ( Ky. 2008 ), modified, 2009 Ky. LEXIS 21 (Ky. Jan. 22, 2009).

Convictions on both first-degree fleeing or evading under KRS 520.095(1)(a)(4) and first-degree wanton endangerment under KRS 508.060 will not trigger double jeopardy, as fleeing and eluding requires operation of a motor vehicle and disobeying a direction to stop given by one recognized to be a police officer, while wanton endangerment does not; to prove wanton endangerment, the Commonwealth has to prove that a defendant manifested an extreme indifference to the value of human life, while fleeing or evading does not contain this element. Eberenz v. Commonwealth, 2008 Ky. App. LEXIS 184 (Ky. Ct. App. June 13, 2008).

In defendant’s prosecution for sexual abuse, the trial court did not abuse its discretion or deny defendant the protection against double jeopardy in denying defendant’s motion arguing that he was entitled to a directed verdict because he could not be convicted of multiple counts of sexual abuse arising out of touching of different protected body parts within the same encounter. Multiple offenses could occur when different body parts were touched within the same sexual assault. Allen v. Commonwealth, 278 S.W.3d 649, 2009 Ky. App. LEXIS 36 (Ky. Ct. App. 2009).

In defendant’s case, two unrelated acts occurred: the acts of rubbing and touching, which comprised the first-degree sexual abuse convictions, and the separate and unrelated acts of sodomy, which comprised the first-degree sodomy convictions; thus, defendant’s actions supporting the sexual abuse charges were not part of a single continuous act culminating in the acts of sodomy, and the acts did not merge. Banks v. Commonwealth, 313 S.W.3d 567, 2010 Ky. LEXIS 155 ( Ky. 2010 ).

Convictions for theft by unlawful taking over $10,000 and first-degree criminal mischief did not violate double jeopardy under U.S. Const. amend. V and Ky. Const. § 13 because they required different elements; theft by unlawful taking over $10,000 required intent to deprive the owner of the property, but first-degree criminal mischief did not. And first-degree criminal mischief requires the property be defaced, destroyed, or damaged, but theft by unlawful taking over $10,000 did not; in addition, the jury instructions required the jury to find different elements for each offense. Fagan v. Commonwealth, 374 S.W.3d 274, 2012 Ky. LEXIS 110 ( Ky. 2012 ).

Any error in instructing the jury on sexual abuse and sodomy without proper differentiation was not palpable error where the trial court made the differentiation orally while instructing the jury. Sheets v. Commonwealth, 495 S.W.3d 654, 2016 Ky. LEXIS 319 ( Ky. 2016 ).

Defendant’s sodomy conviction did not implicate double jeopardy concerns, because defendant committed two separate acts, sexual abuse by forcing the victim to touch his genitals and by forcibly touching hers, and sodomy though genital to oral contact between the two. King v. Commonwealth, 554 S.W.3d 343, 2018 Ky. LEXIS 293 ( Ky. 2018 ).

Because defendant’s convictions for first-degree assault and first-degree criminal abuse each required of proof that the other did not, with first-degree assault requiring a finding that defendant used a dangerous instrument to cause serious physical injury and criminal abuse requiring a finding that the victim was 12 years of age or less when the abuse occurred, defendant’s convictions did not violate his rights against double jeopardy. Breazeale v. Commonwealth, 600 S.W.3d 682, 2020 Ky. LEXIS 125 ( Ky. 2020 ).

26.— Penalty Phase.

A retrial of the penalty phase of a capital case following a deadlocked jury does not violate either the federal or state constitutional prohibitions against double jeopardy. Retrial under these circumstances does not constitute double jeopardy under KRS 505.030 , which permits retrial upon proper termination. Skaggs v. Commonwealth, 1985 Ky. LEXIS 304 (Ky. May 23, 1985).

Defendant was not denied her right against double jeopardy or her right to have the class of persons eligible for the death penalty narrowed when trial judge allowed the underlying felony of robbery to be used at the guilt phase to obtain a substantive first-degree robbery conviction and as an element of the felony kidnapping conviction and then allowed the same underlying felony to be used at the penalty phase as the sole aggravating factor to place her in the death-eligible class where victim was abducted, forced into car by codefendant, driven to an isolated area and forced by codefendant to lie face down on the grass while defendant went to obtain gas, and upon defendant’s return, again forcing victim into the back seat of the automobile with codefendant during which time, the victim was raped, robbed and murdered, for under this situation the double jeopardy theory did not apply. Humphrey v. Commonwealth, 836 S.W.2d 865, 1992 Ky. LEXIS 87 ( Ky. 1992 ).

Imposition of two (2) death penalty sentences by application of the same aggravating factor, i.e., multiple deaths, did not violate the proscription against double jeopardy. Tamme v. Commonwealth, 973 S.W.2d 13, 1998 Ky. LEXIS 46 ( Ky. 1998 ), modified, 1998 Ky. LEXIS 110 (Ky. Sept. 3, 1998), cert. denied, 525 U.S. 1153, 119 S. Ct. 1056, 143 L. Ed. 2d 61, 1999 U.S. LEXIS 1229 (U.S. 1999).

27.— Merger at Enhancement Stage.

Double jeopardy principles forbid the imposition of separate counts of the death penalty for murder and kidnapping, when the same act of murder provides the justification because kidnapping is only a capital offense under Kentucky law when the victim is not released alive, which refers to the victim’s death being caused by some aspect of the kidnapping, not to fortuitous and unrelated circumstances, and therefore murder and kidnapping merge at the enhancement stage. Taylor v. Commonwealth, 817 S.W.2d 891, 1990 Ky. LEXIS 81 ( Ky. 1990 ).

28.— Verdicts.

Where jury, following erroneous instruction as to statutory penalty, fixed punishment at imprisonment in excess of that authorized by law and court, on discovering error, entered judgment for highest penalty permitted by law, defendant was not placed in double jeopardy and judgment was valid, since the verdict was void only as to the excess. Manning v. Commonwealth, 281 Ky. 453 , 136 S.W.2d 28, 1939 Ky. LEXIS 36 ( Ky. 1939 ).

The trial court properly ruled in its judgment that the failure of the trial jury to reach a verdict by leaving the form blank constituted an acquittal and, if a new trial were ordered the defendant would be subject to being tried twice for the same offense, and therefore, the Commonwealth would be in violation of the double jeopardy clauses of the federal and state Constitutions. Whisman v. Commonwealth, 667 S.W.2d 394, 1984 Ky. App. LEXIS 454 (Ky. Ct. App. 1984).

Because there were three (3) independently targeted victims and three (3) independent acts of shooting and killing one (1) patron, shooting and wounding another, and struggling with other patrons, that occurred in the diner that gave rise to the three (3) charges against defendant for which he was convicted of intentional murder but mentally ill, attempted murder but mentally ill, and first-degree wanton endangerment but mentally ill, the verdict did not involve inconsistent mental states nor violate double jeopardy principles. Port v. Commonwealth, 906 S.W.2d 327, 1995 Ky. LEXIS 79 ( Ky. 1995 ).

Where defendant was indicted and tried for wanton murder and intentional murder and the jury was given one (1) verdict form for each offense and found him guilty of wanton murder and left blank the forms for intentional murder and on appeal the conviction for wanton murder was reversed on the holding that the trial court had erred in denying defendant’s motion for directed verdict on charge of wanton murder because there was not doubt from the evidence that the shooting was intentional, the jury had ample opportunity to convict defendant of the intentional murder charge at the first trial and did not and thus the jeopardy on the intentional murder charge ended with that trial and he cannot be tried again for the same charge. Terry v. Potter, 111 F.3d 454, 1997 FED App. 0132P, 1997 U.S. App. LEXIS 7118 (6th Cir. Ky. 1997 ).

29.— Evidence.

Where evidence in second prosecution could have been admitted in first prosecution with possible conviction resulting, such second prosecution was barred. Lewis v. Commonwealth, 201 Ky. 48 , 255 S.W. 818, 1923 Ky. LEXIS 208 ( Ky. 1923 ).

Defendant’s conviction for robbery and conspiracy to commit robbery did not constitute double jeopardy under Kentucky law or the federal Constitution where the evidence presented indicated a plan or conspiracy by both defendants to kidnap the victim and to rob her as well as to take any other illegal actions in order to achieve the successful completion of their criminal enterprise; where it was clear that the codefendants intended to kidnap the victim in order to commit the robbery and subsequently the rape and killing occurred, there clearly were multiple illegal actions in the kidnapping and robbery and KRS 506.110(2) applied. Wilson v. Commonwealth, 836 S.W.2d 872, 1992 Ky. LEXIS 84 ( Ky. 1992 ), cert. denied, 507 U.S. 1034, 113 S. Ct. 1857, 123 L. Ed. 2d 479, 1993 U.S. LEXIS 2856 (U.S. 1993), overruled in part, St. Clair v. Roark, 10 S.W.3d 482, 1999 Ky. LEXIS 148 ( Ky. 1999 ).

Double jeopardy issues arising out of multiple prosecutions will be analyzed in accordance with the principles set forth in Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306, 1932 U.S. LEXIS 875 (1932); double jeopardy does not occur when a person is charged with two (2) crimes arising from the same conduct, as long as each statute requires proof of an additional fact which the other does not. Commonwealth v. Burge, 947 S.W.2d 805, 1996 Ky. LEXIS 82 ( Ky. 1997 ).

30.—Sentence.

Where appellant was convicted of two (2) murders, the use of one (1) murder as a substantive crime and as an aggravating circumstance with regard to the second murder did not violate double jeopardy principles. Wheeler v. Commonwealth, 121 S.W.3d 173, 2003 Ky. LEXIS 179 ( Ky. 2003 ), modified, 2003 Ky. LEXIS 293 (Ky. Dec. 18, 2003), cert. denied, 541 U.S. 1051, 124 S. Ct. 2180, 158 L. Ed. 2d 746, 2004 U.S. LEXIS 3536 (U.S. 2004).

Concepts of the finality of judgments as well as the constitutional restraints of due process and double jeopardy required a determination that a district court exceeded its authority when more than ten days after imposition of defendant’s original sentence, a district court, with defendant’s consent, increased defendant’s underlying term of imprisonment in conjunction with a referral to a drug court program. Commonwealth v. Gaddie, 239 S.W.3d 59, 2007 Ky. LEXIS 243 ( Ky. 2007 ).

Defendant's sentence did not violate Ky. Const. § 13 or the Fifth Amendment given prior case law holding that multiple counts of trafficking in a controlled substance did not violate double jeopardy protections. Howard v. Commonwealth, 496 S.W.3d 471, 2016 Ky. LEXIS 333 ( Ky. 2016 ).

31.— — Enhancement.

Nothing in KRS 439.265 , the shock probation statute, leads one to the rational belief that a prisoner is privileged to negotiate his release by agreeing to an enhanced sentence. A longer sentence may not supply the quid pro quo for probationary release. A rule which would allow a prisoner to obtain probation in exchange for a longer sentence in the event of revocation would not only result in chaos, but invite intrusion of arbitrary power which is foreign to Kentucky’s system of government. Moreover, such practice would offend the due process clauses and double jeopardy clauses of both the state and federal constitutions. Galusha v. Commonwealth, 834 S.W.2d 696, 1992 Ky. App. LEXIS 168 (Ky. Ct. App. 1992).

32.— — Aggravating Circumstances.

KRS 532.025 does not mandate that the accused be punished for the same offense twice; it only requires that the aggravating circumstances be used to determine only whether the crime of kidnapping should carry the death penalty. Simply because the aggravating circumstance is duplicative to one (1) of the underlying offenses does not mean that the accused is being punished twice for the same offense. The underlying offenses were only factors to be considered as to whether the punishment for kidnapping should be death. Humphrey v. Commonwealth, 836 S.W.2d 865, 1992 Ky. LEXIS 87 ( Ky. 1992 ).

KRS 532.025 does not require that the defendant be punished for the same offense twice; it only requires that the aggravating circumstances be used only to determine whether the crime of murder should receive the death penalty. If the aggravating circumstance cannot be proved, then the penalty of death cannot be imposed. Simply because the aggravating circumstances duplicates one (1) of the underlying offenses does not mean that the defendant is being punished twice for the same offense. The underlying offenses were only factors to be considered as to whether the punishment for murder should be death and defendant was not subjected to double jeopardy or multiple punishment for the same offense. Wilson v. Commonwealth, 836 S.W.2d 872, 1992 Ky. LEXIS 84 ( Ky. 1992 ), cert. denied, 507 U.S. 1034, 113 S. Ct. 1857, 123 L. Ed. 2d 479, 1993 U.S. LEXIS 2856 (U.S. 1993), overruled in part, St. Clair v. Roark, 10 S.W.3d 482, 1999 Ky. LEXIS 148 ( Ky. 1999 ).

Defendant who was alleged to have killed his wife and children unsuccessfully claimed that the use of double murders as an aggravating circumstance constituted double jeopardy under Ky. Const. § 13; since the trial court’s use of aggravating circumstances only determined whether the crime of murder should carry the death penalty, it was not double jeopardy. McKinney v. Commonwealth, 60 S.W.3d 499, 2001 Ky. LEXIS 156 ( Ky. 2001 ), modified, 2001 Ky. LEXIS 211 (Ky. Dec. 20, 2001).

Because there was sufficient evidence for the jury to find the aggravating circumstance of murder committed during the course of a kidnapping, despite the fact that the penalty instruction did not require such finding, the Commonwealth was entitled to seek the full range of penalties under KRS 509.040(2), including death, on retrial without violating defendant’s double jeopardy rights; consequently, defendant was not entitled to a writ of prohibition. Salinas v. Payne, 169 S.W.3d 536, 2005 Ky. LEXIS 193 ( Ky. 2005 ), overruled in part, Brown v. Commonwealth, 313 S.W.3d 577, 2010 Ky. LEXIS 148 ( Ky. 2010 ).

33.—Probation.

There was no violation of the Double Jeopardy Clause due to both the revocation of probation and a sanction by a social services clinician because appellant was sanctioned for a separate violation than the violation for which his probation was revoked; moreover, the Double Jeopardy Clause did not apply to probation revocation proceedings. Kaletch v. Commonwealth, 396 S.W.3d 324, 2013 Ky. App. LEXIS 49 (Ky. Ct. App. 2013).

34.— Driver’s License Revocation.

Driver’s license revocation is noncriminal consequence of driving under the influence and is not a punishment but rather a precautionary measure to protect the safety of the public and thus a license suspension following conviction for DUI does not constitute double jeopardy. Kohler v. Transportation Cabinet, 944 S.W.2d 146, 1997 Ky. App. LEXIS 42 (Ky. Ct. App. 1997).

Suspension of appellants’ driver’s licenses, prior to their trials for DUI, did not constitute criminal punishment, per se, and consequently the double jeopardy clause did not apply to their subsequent trials. Hourigan v. Commonwealth, 962 S.W.2d 860, 1998 Ky. LEXIS 11 ( Ky. 1998 ).

The state double jeopardy clause is not violated by the institution of proceedings pursuant to the habitual violator provisions set out in KRS 186.641 et seq., whereby a convicted habitual violator is precluded from obtaining an operator’s license for a period of five (5) years even if his or her operator’s license has already been revoked for two (2) years based upon a third-offense conviction of driving while intoxicated (DUI) pursuant to KRS 189A.070(1)(c) as habitual violator proceedings involve civil rather than criminal sanctions. Pletcher v. Commonwealth, 992 S.W.2d 852, 1998 Ky. App. LEXIS 88 (Ky. Ct. App. 1998), cert. denied, 528 U.S. 931, 120 S. Ct. 330, 145 L. Ed. 2d 257, 1999 U.S. LEXIS 6623 (U.S. 1999).

35.— Property Forfeiture.

The forfeiture provisions, KRS 218A.405 et seq., while perhaps having certain punitive aspects, serve important nonpunitive goals, and while, in most cases, there is a close association between a criminal conviction and a forfeiture pursuant to KRS 218A.405 et seq., that did not mean that the forfeiture constituted an additional criminal punishment. Thus, there was no double jeopardy violation where the court ordered the forfeiture of defendant’s vehicle. Smith v. Commonwealth, 205 S.W.3d 217, 2006 Ky. App. LEXIS 39 (Ky. Ct. App. 2006).

36.Condemnation of Property.

Where more land was condemned than was actually needed or used by the highway department but where the department claimed it might be needed at some future time, absent a showing that there was such a clear and gross abuse of discretion as to offend the guaranty of Const., § 2 against the exercise of arbitrary power, the judicial power of government should not be invoked. Maze v. Commonwealth, Department of Highways, 461 S.W.2d 72, 1970 Ky. LEXIS 603 ( Ky. 1970 ).

In a condemnation case where the amount of compensation due was at issue, an owner made a prima facie showing that the taking caused it to suffer a permanent injury to its remaining property; in analyzing the unity of use/purpose question, it was error to consider only the present use of the property by a short-term tenant. A prior transfer between interrelated companies of a three parcel tract was not competent or reliable evidence of the present fair market value of a single parcel tract nine years later. Putnam & Sons, LLC v. Paducah Indep. Sch. Dist., 2015 Ky. App. LEXIS 162 (Ky. Ct. App. Nov. 20, 2015, sub. op., 2015 Ky. App. Unpub. LEXIS 876 (Ky. Ct. App. Nov. 20, 2015).

37.— Purpose.

This section prevents unlimited taking of private property for public purpose without compensation by legislature or its delegates. Barker v. Lannert, 310 Ky. 843 , 222 S.W.2d 659, 1949 Ky. LEXIS 1022 ( Ky. 1949 ).

38.— Construction.

This section is in nature of limitation rather than grant of right because it restricts sovereign to taking only where reimbursement is made. V. T. C. Lines, Inc. v. Harlan, 313 S.W.2d 573, 1957 Ky. LEXIS 15 ( Ky. 1957 ).

This section generally meant that person was entitled to fair compensation for property taken rather than damages for consequential injuries caused by exercise of right of eminent domain. Newport Municipal Housing Com. v. Turner Advertising, Inc., 334 S.W.2d 767, 1960 Ky. LEXIS 231 ( Ky. 1960 ).

The state Constitution protects against the confiscation of property, not against a mere reduction in revenue. Commonwealth ex rel. Stephens v. South Cent. Bell Tel. Co., 545 S.W.2d 927, 1976 Ky. LEXIS 142 ( Ky. 1976 ).

39.— Application.

This provision applies to taking of both real and personal property. Superior Coal & Builders' Supply Co. v. Board of Education, 260 Ky. 84 , 83 S.W.2d 875, 1935 Ky. LEXIS 412 ( Ky. 1935 ).

This section is self-executing and applies to both real and personal property. V. T. C. Lines, Inc. v. Harlan, 313 S.W.2d 573, 1957 Ky. LEXIS 15 ( Ky. 1957 ).

Imposition of costs on landowner in condemnation cases did not violate this section, since it did not have specific reference to judicial procedure employed in exercise of power of eminent domain. Commonwealth, Dep't of Highways v. Fister, 376 S.W.2d 543, 1964 Ky. LEXIS 460 ( Ky. 1964 ).

Where a strip of land was taken to widen and reconstruct a public highway, damage to the value of abutting property resulting from the change in grade constituted a taking within the meaning of this section and § 242 of the constitution, although the abutting owner could not have recovered damages for resulting loss of access unless he was left without reasonable access to the highway system. Commonwealth, Dep't of Highways v. Roberts, 496 S.W.2d 343, 1973 Ky. LEXIS 380 ( Ky. 1973 ).

40.— Adverse Possession.

After the running of the period of limitation provided by KRS 413.010 , the original owner of real estate is no longer in a position to assert title to the property, title has effectively vested in the adverse possessor, and the Commonwealth is not prohibited by either this section or Const., § 242 from taking advantage of this limitation. Commonwealth, Dep't of Parks v. Stephens, 407 S.W.2d 711, 1966 Ky. LEXIS 182 ( Ky. 1966 ).

State could take by adverse possession notwithstanding this section. Commonwealth, Dep't of Parks v. Stephens, 407 S.W.2d 711, 1966 Ky. LEXIS 182 ( Ky. 1966 ).

41.— Annexation.

Municipal benefits were compensation for taxation of one whose land was incorporated into municipal limits. Lebanon v. Bevill, 38 S.W. 872, 18 Ky. L. Rptr. 924 (1897).

The constitutional guaranty that no person shall be deprived of his property without due process of law and that property shall not be taken without compensation has no application to the annexation of territory to a municipality. Lenox Land Co. v. Oakdale, 137 Ky. 484 , 125 S.W. 1089, 1910 Ky. LEXIS 591 ( Ky. 1910 ), writ of error dismissed, 231 U.S. 739, 34 S. Ct. 317, 58 L. Ed. 461 (U.S. 1913).

Acts 1948, ch. 118 (amending KRS 220.530 ), requiring city of the first class, on annexation of sanitation district, to assume revenue bond obligations of the sanitation district to be paid out of the general funds of the city, which obligations would make the city’s debt exceed limitation set out in Const., § 157, was unconstitutional as a violation of Const., §§ 2, 3 and this section. Sanitation Dist. of Jefferson County v. Louisville, 308 Ky. 368 , 213 S.W.2d 995, 1948 Ky. LEXIS 879 ( Ky. 1948 ).

Where appellant in remonstrance alleged that inclusion of property within town boundaries was for the purpose of imposing taxation upon appellant for the benefit of the other residents of the town without any benefits to the appellant or the town except for additional revenue, inclusion of the property within the boundaries of the town under these conditions would deprive appellant of its property without just compensation in violation of this section and would constitute an exercise of arbitrary power over the property of appellant in violation of Const., § 2. Chesapeake & O. R. Co. v. Silver Grove, 249 S.W.2d 520, 1952 Ky. LEXIS 817 ( Ky. 1952 ).

City and county planning and zoning commission violated this section by effecting incorporation of private owner’s land into pond flood control area by amendment of unincorporated, area master plan. Hager v. Louisville & Jefferson County Planning & Zoning Com., 261 S.W.2d 619, 1953 Ky. LEXIS 1026 ( Ky. 1953 ).

42.— Appeal.

Provision of former law violated just compensation provision of this section in requiring payment by condemned landowner of appeal costs where award was not increased thereon. Barker v. Lannert, 310 Ky. 843 , 222 S.W.2d 659, 1949 Ky. LEXIS 1022 ( Ky. 1949 ).

43.— Assessments.

City could constitutionally assess street railway for oiling streets on which rails were laid. Henderson Traction Co. v. Henderson, 178 Ky. 124 , 198 S.W. 730, 1917 Ky. LEXIS 703 ( Ky. 1917 ).

When a proposed assessment for public improvement results in spoliation, or when the benefits are less than the burdens, court will forbid the improvement or enforcement of the assessments. Wells v. West, 228 Ky. 737 , 15 S.W.2d 531, 1928 Ky. LEXIS 8 ( Ky. 1928 ).

44.—Compensation.

The property owner does not lose the right to claim compensation after the property has been injured, taken or destroyed by failure to sue for an injunction until the damages to result therefrom have been estimated and paid. Henderson v. McClain, 102 Ky. 402 , 43 S.W. 700, 19 Ky. L. Rptr. 1450 , 1897 Ky. LEXIS 131 ( Ky. 1897 ).

The owner of land abutting on a turnpike road on which was constructed, at grade, a street-railway track was entitled to no compensation for such use of such turnpike road merely because his property was affected by the proximity thereto of such railway track without proof of special damage resulting therefrom. Ashland & C. S. R. Co. v. Faulkner, 106 Ky. 332 , 45 S.W. 235, 21 Ky. L. Rptr. 151 , 1899 Ky. LEXIS 7 ( Ky. 1899 ).

Where an owner of property permitted a railroad to lay a track along land which subsequently became a city street but neither such landowner nor her successors in title misled the company as to the true situation or induced them to believe that if they attempted to make the siding a permanent one, compensation would not be claimed for damages to abutting property, the fact that such owners permitted the track to be built did not estop them from thereafter claiming compensation for such damages. Koch v. Kentucky & I. R. & B. Co., 80 S.W. 1133, 26 Ky. L. Rptr. 216 (1904).

Even though owner had obtained judgment allowing compensation, his property could not be taken until he had actually received such compensation. Bushart v. Fulton County, 183 Ky. 471 , 209 S.W. 499, 1919 Ky. LEXIS 504 ( Ky. 1919 ). See Commissioners of Sewerage v. Reisert, 243 Ky. 494 , 49 S.W.2d 324, 1932 Ky. LEXIS 147 ( Ky. 1932 ).

Damages awarded when railroad took right of way were presumed to have included compensation therefor. Turner v. Louisville & N. R. Co., 189 Ky. 714 , 225 S.W. 1072, 1920 Ky. LEXIS 503 ( Ky. 1920 ).

County was liable to landowner for damages and market value of land taken by state without owner’s consent and used by county. Metcalf v. Lyttle, 219 Ky. 488 , 293 S.W. 979, 1927 Ky. LEXIS 370 ( Ky. 1927 ).

To cut the trees from the land was to take them, and to require the landowner to accept the cut timber and place on him the burden of taking care of it is not to give him just compensation for taking of his property, as required by this section. Saulsberry v. Kentucky & West Virginia Power Co., 226 Ky. 75 , 10 S.W.2d 451, 1928 Ky. LEXIS 14 ( Ky. 1928 ).

A right of action for compensation subsequent to the taking of property rests upon the same basis as if the proceeding had preceded the taking. Bader v. Jefferson County, 274 Ky. 486 , 119 S.W.2d 870, 1938 Ky. LEXIS 311 ( Ky. 1938 ).

Where private property is taken for public use, compensation must be made both for the property actually taken and for the damages done to adjacent property by physical invasion, weakening of support, diversion of water or flooding. Bader v. Jefferson County, 274 Ky. 486 , 119 S.W.2d 870, 1938 Ky. LEXIS 311 ( Ky. 1938 ).

“Just compensation” means compensation prior to judgment and not that ultimately awarded by jury, and applied to preliminary commissioner award to landowner. Barker v. Lannert, 310 Ky. 843 , 222 S.W.2d 659, 1949 Ky. LEXIS 1022 ( Ky. 1949 ).

Condemnation requires just compensation to all who have ownership interest in property taken or injured. Ashland v. Price, 318 S.W.2d 861, 1958 Ky. LEXIS 152 ( Ky. 1958 ).

Just compensation for taking of land beside road for four (4) lane highway was fair market value at time of taking, without regard to any benefits to owner created thereby. Frenel v. Commonwealth, 331 S.W.2d 710, 1959 Ky. LEXIS 4 ( Ky. 1959 ), overruled, Commonwealth, Dep't of Highways v. Sherrod, 367 S.W.2d 844, 1963 Ky. LEXIS 33 ( Ky. 1963 ).

Owners of condemned land should get compensation in form of money. Frenel v. Commonwealth, 331 S.W.2d 710, 1959 Ky. LEXIS 4 ( Ky. 1959 ), overruled, Commonwealth, Dep't of Highways v. Sherrod, 367 S.W.2d 844, 1963 Ky. LEXIS 33 ( Ky. 1963 ).

If marketable land is taken, just compensation is fair market value thereof, defined as price at which voluntary seller would sell to voluntary buyer. Newport Municipal Housing Com. v. Turner Advertising, Inc., 334 S.W.2d 767, 1960 Ky. LEXIS 231 ( Ky. 1960 ).

Injury to business or loss of profit is not a proper element of compensation for land taken in condemnation proceeding. Newport Municipal Housing Com. v. Turner Advertising, Inc., 334 S.W.2d 767, 1960 Ky. LEXIS 231 ( Ky. 1960 ).

Compensation under eminent domain is difference between market value of total tract taken immediately before and after taking. Birdsong v. Commonwealth, Dep't of Highways, 336 S.W.2d 42, 1960 Ky. LEXIS 315 ( Ky. 1960 ).

Option to buy condemned property was not compensable interest. Carroll v. Louisville, 354 S.W.2d 291, 1962 Ky. LEXIS 38 ( Ky. 1962 ).

This section and Const., § 242 require that benefits be taken into consideration in determining the total loss of value the owner has sustained in eminent domain proceedings. Commonwealth, Dep't of Highways v. Sherrod, 367 S.W.2d 844, 1963 Ky. LEXIS 33 ( Ky. 1963 ).

In determining just compensation under this section and Const., § 242, general standard is market value and, where evidence of replacement value is proper, it must relate to market value. Commonwealth, Dep't of Highways v. Congregation Anshei S'Fard, 390 S.W.2d 454, 1965 Ky. LEXIS 353 ( Ky. 1965 ).

Just compensation under this section and Const., § 242 was difference between fair market value of property before and after taking, and did not include removal and relocation costs. Chain Belt Co. v. Commonwealth, Dep't of Highways, 391 S.W.2d 357, 1965 Ky. LEXIS 294 ( Ky. 1965 ).

The Kentucky Wild Rivers Act is enabling legislation and, as such, the Commonwealth is required to pay for what it takes before the taking. Commonwealth ex rel. Department for Natural Resources & Environmental Protection v. Stephens, 539 S.W.2d 303, 1976 Ky. LEXIS 57 ( Ky. 1976 ).

The trial court held that private sanitation company must cease its sewerage treatment process and that the metropolitan sewer district may acquire the sewer collection system, but that the metropolitan sewer district must pay just compensation to private sanitation company. Louisville & Jefferson County Metro. Sewer Dist. v. Tarrytowne Sanitation Co., 818 S.W.2d 267, 1991 Ky. App. LEXIS 51 (Ky. Ct. App. 1991).

The requirement that privately owned sewage treatment facilities connect into comprehensive sewer system did not constitute a taking for which just compensation had to be paid; private sewage facilities had no reasonable expectation of continuing indefinitely to sell sewer services to certain customers. Monticello Co. v. Natural Resources & Envtl. Protection Cabinet, 864 S.W.2d 921, 1993 Ky. App. LEXIS 65 (Ky. Ct. App. 1993).

Landowners were not entitled to compensation for the loss in value of properties that neighbored their condemned parcels of land because the unity rule did not apply when, for condemnation purposes, the parcels taken were not united in use with the rest of the landowners’ property; therefore, the jury’s determination of the market value of the taken property, in isolation from the rest of the landowners’ property, was the proper measure of compensation. Bianchi v. City of Harlan, 274 S.W.3d 368, 2008 Ky. LEXIS 128 ( Ky. 2008 ).

In a condemnation case where the amount of compensation due was at issue, an owner made a prima facie showing that the taking caused it to suffer a permanent injury to its remaining property; in analyzing the unity of use/purpose question, it was error to consider only the present use of the property by a short-term tenant. A prior transfer between interrelated companies of a three parcel tract was not competent or reliable evidence of the present fair market value of a single parcel tract nine years later. Putnam & Sons, LLC v. Paducah Indep. Sch. Dist., 2015 Ky. App. LEXIS 162 (Ky. Ct. App. Nov. 20, 2015, sub. op., 2015 Ky. App. Unpub. LEXIS 876 (Ky. Ct. App. Nov. 20, 2015).

45.— Condemnation.

Law authorizing condemnation of land for rights of way for oil and gas pipelines does not violate the state and federal constitutions as authorizing the taking of private property for other than public use. Calor Oil & Gas Co. v. Wither's Adm'r, 141 Ky. 489 , 133 S.W. 210, 1911 Ky. LEXIS 27 ( Ky. 1911 ).

A private corporation seeking to condemn private property has the burden of establishing that the property is needed for a public use. Riley v. Louisville, H. & S. L. R. Co., 142 Ky. 67 , 133 S.W. 971, 1911 Ky. LEXIS 126 ( Ky. 1911 ).

This section does not authorize the taking of private property for a private use and a railroad cannot condemn land for a spur track to the premises of a distilling company. Riley v. Louisville, H. & S. L. R. Co., 142 Ky. 67 , 133 S.W. 971, 1911 Ky. LEXIS 126 ( Ky. 1911 ).

Taking of land before conclusion of condemnation proceedings constituted actionable trespass as violation of this section and Const., § 1. Terhune v. Gorham, 225 Ky. 249 , 8 S.W.2d 431, 1928 Ky. LEXIS 785 ( Ky. 1928 ).

Condemnation provisions of former law with the exception of the provisions that required payment by condemned landowner of appeal costs where award was not increased thereon did not contravene the provisions of either this section, Const., §§ 13 or 24. Barker v. Lannert, 310 Ky. 843 , 222 S.W.2d 659, 1949 Ky. LEXIS 1022 ( Ky. 1949 ).

Under Const., §§ 13 and 242, the state is not immune from suit if it fails to bring a condemnation proceeding. Keck v. Hafley, 237 S.W.2d 527, 1951 Ky. LEXIS 764 ( Ky. 1951 ).

Where a judgment was entered condemning a strip of land for a road through realty of landowners, a special commissioner executed a deed to the county, the landowners appealed to the Circuit Court and the Circuit Court increased the landowners’ compensation, members of the county fiscal court, at a subsequent meeting, passed a resolution purporting to abandon the building of the road but this property was not conveyed back to the original landowners, and the road was built on the strip by interested citizens, there was a taking of private property for public purposes within the meaning of the constitution and the members of the fiscal court would be compelled to provide money to satisfy the landowners’ judgment. Knox Fiscal Court v. Phipps, 261 S.W.2d 441, 1953 Ky. LEXIS 1021 ( Ky. 1953 ).

46.— — Reverse.

Condemnation in reverse exists only where there is a taking, destroying or injuring of property by the sovereign without any color of right and it does not apply to a case where a road is constructed in accordance with plans and specifications as specified in deeds. Commonwealth, Dep't of Highways v. Davidson, 383 S.W.2d 346, 1964 Ky. LEXIS 32 ( Ky. 1964 ).

Reverse condemnation theory was premised on just compensation guaranteed by this section and Const., § 242. Commonwealth, Dep't of Highways v. Widner, 388 S.W.2d 583, 1965 Ky. LEXIS 437 ( Ky. 1965 ).

The allegations that there had been a “taking,” albeit temporary, and that the damages were a direct result of planned construction in progress on the property originally condemned charged a reverse condemnation, thus giving the Circuit Court jurisdiction over the claim against Commonwealth. Commonwealth, Dep't of Highways v. Robbins, 421 S.W.2d 820, 1967 Ky. LEXIS 74 ( Ky. 1967 ); Commonwealth, Dep't of Highways v. Gilles, 516 S.W.2d 338, 1974 Ky. LEXIS 97 ( Ky. 1974 ).

47.— Contract Rights.

Taking of contract right was compensable where interest or estate thereunder was not too remote to be evaluated. Folger v. Commonwealth, 330 S.W.2d 106, 1959 Ky. LEXIS 182 ( Ky. 1959 ), overruled, Cumberland River Oil Co. v. Commonwealth, Dep’t of Highways, 350 S.W.2d 700, 1961 Ky. LEXIS 127 ( Ky. 1961 ), rev’d, Folger v. Commonwealth, Dep’t of Highways, 350 S.W.2d 703, 1961 Ky. LEXIS 128 ( Ky. 1961 ), overruled by Cumberland River Oil Co. v. Commonwealth, Dep’t of Highways, 350 S.W.2d 700, 1961 Ky. LEXIS 127 (Ky. 1961). See Folger v. Commonwealth, Dep't of Highways, 350 S.W.2d 703, 1961 Ky. LEXIS 128 (Ky. 1961).

Persons who had contract with owner of property acquired by state had no right to compensation from state, since their rights with respect to such property remained untaken, unviolated, and undestroyed. Folger v. Commonwealth, Dep't of Highways, 350 S.W.2d 703, 1961 Ky. LEXIS 128 ( Ky. 1961 ). See Cumberland River Oil Co. v. Commonwealth, Dep't of Highways, 350 S.W.2d 700, 1961 Ky. LEXIS 127 ( Ky. 1961 ).

Persons who had contract with owner of condemned property had no compensation claim against condemnor, since no contract rights were acquired and condemnor did not propose to do anything that could not lawfully have been done by owner himself. Cumberland River Oil Co. v. Commonwealth, Dep't of Highways, 350 S.W.2d 700, 1961 Ky. LEXIS 127 ( Ky. 1961 ). See Folger v. Commonwealth, Dep't of Highways, 350 S.W.2d 703, 1961 Ky. LEXIS 128 ( Ky. 1961 ).

48.— Corporations.

Whenever it is attempted in the interest of a private corporation to take private property for public use, it is for the courts to decide whether the use intended is a public one. Henderson v. Lexington, 132 Ky. 390 , 111 S.W. 318, 33 Ky. L. Rptr. 703 , 1908 Ky. LEXIS 123 ( Ky. 1908 ).

Where corporation elected to take land and deposited compensation damages adjudged therefor with court, and such corporation actually took such land, it was bound thereby and could not then re-elect to take different amount, and final judgment against it for damages in excess of deposit was thus proper. Long Fork R. Co. v. Sizemore, 184 Ky. 54 , 211 S.W. 193, 1919 Ky. LEXIS 12 ( Ky. 1919 ).

49.— Court Costs.

Requiring owners who lose on appeal to condemnor to pay court costs of such appeal did not violate this section. Commonwealth, Dep't of Highways v. Fister, 376 S.W.2d 543, 1964 Ky. LEXIS 460 ( Ky. 1964 ).

50.— Damages.

In condemnation proceeding, defendant property owner’s evidence as to present and potential profits and losses was irrelevant and incompetent. Newport Municipal Housing Com. v. Turner Advertising, Inc., 334 S.W.2d 767, 1960 Ky. LEXIS 231 ( Ky. 1960 ).

Statutory requirement in railroad condemnation law that Circuit Court jury shall separately fix taking and resulting damages was invalid as violative of this section and Const., § 242, since such requirement tended to produce verdicts awarding more than “just” compensation. Commonwealth, Dep't of Highways v. Sherrod, 367 S.W.2d 844, 1963 Ky. LEXIS 33 ( Ky. 1963 ). See Milby v. Louisville Gas & Electric Co., 375 S.W.2d 237, 1963 Ky. LEXIS 183 ( Ky. 1963 ).

51.— Depreciation.

Depreciation of owner’s property caused by removal of railway depot did not justify compensation. Watson v. Chesapeake & O. R. Co., 247 Ky. 135 , 56 S.W.2d 699, 1933 Ky. LEXIS 348 ( Ky. 1933 ).

52.—Drains and Ditches.

Where a city had a prescriptive right to maintain a ditch of a certain capacity over plaintiff’s land, it was not authorized to enter the land for the purpose of doubling the capacity of the ditch without compensation previously paid. City of Owensboro v. Brocking, 87 S.W. 1086, 27 Ky. L. Rptr. 1086 , 1905 Ky. LEXIS 265 (Ky. Ct. App. 1905).

KRS 267.010 to 267.570 (now repealed), requiring board of reviewers to assess damages claimed by anyone for land taken and for agreement in writing when damages are waived, requires assessment of all damages except where landowner, by agreement, waives damages and does not violate this section. Shaw v. Board of Drainage Comm'rs, 160 Ky. 422 , 169 S.W. 859, 1914 Ky. LEXIS 473 ( Ky. 1914 ). See Williams v. Wedding, 165 Ky. 361 , 176 S.W. 1176, 1915 Ky. LEXIS 531 ( Ky. 1915 ).

State agency was entitled to summary judgment on a property owner's claims of unconstitutional taking without compensation and inverse condemnation because the agency possessed a drainage easement on a sinkhole in the owner's land and its contractor's act of dumping inert debris in the sinkhole was reasonably associated with the maintenance of that easement. S. Cent. Ky. Props. v. DOT, 510 S.W.3d 850, 2017 Ky. App. LEXIS 20 (Ky. Ct. App. 2017).

58.—Government Agencies.

Transportation Cabinet was authorized to condemn property in a project partly funded by federal funds because any noncompliance with federal guidelines did not deny the right to condemn. Kuchle Realty Co., LLC v. Commonwealth, 571 S.W.3d 95, 2018 Ky. App. LEXIS 171 (Ky. Ct. App. 2018).

Transportation Cabinet (Cabinet) was authorized to condemn property in a project partly funded by federal funds because the Cabinet substantially complied with federal law. Kuchle Realty Co., LLC v. Commonwealth, 571 S.W.3d 95, 2018 Ky. App. LEXIS 171 (Ky. Ct. App. 2018).

Transportation Cabinet was authorized to condemn property in a project partly funded by federal funds because a property owner had actual notice of the project. Kuchle Realty Co., LLC v. Commonwealth, 571 S.W.3d 95, 2018 Ky. App. LEXIS 171 (Ky. Ct. App. 2018).

Transportation Cabinet (Cabinet) was authorized to condemn property in a project partly funded by federal funds because the Cabinet did not have to ensure a county transportation plan included the project. Kuchle Realty Co., LLC v. Commonwealth, 571 S.W.3d 95, 2018 Ky. App. LEXIS 171 (Ky. Ct. App. 2018).

Transportation Cabinet was authorized to condemn property in a project partly funded by federal funds because an appraisal was done before negotiations with an owner. Kuchle Realty Co., LLC v. Commonwealth, 571 S.W.3d 95, 2018 Ky. App. LEXIS 171 (Ky. Ct. App. 2018).

Transportation Cabinet (Cabinet) was authorized to condemn property in a project partly funded by federal funds because the Cabinet took no coercive action by stating the Cabinet would file condemnation proceedings if an owner did not accept the Cabinet’s offer. Kuchle Realty Co., LLC v. Commonwealth, 571 S.W.3d 95, 2018 Ky. App. LEXIS 171 (Ky. Ct. App. 2018).

53.— Eminent Domain.

Gas companies condemning gas fields were exercising their eminent domain power, not taking property in violation of this section. Cornwell v. Central Kentucky Natural Gas Co., 249 S.W.2d 531, 1952 Ky. LEXIS 821 ( Ky. 1952 ).

Legislative delegation of power of eminent domain to city university did not violate this section or Const., § 242. Craddock v. University of Louisville, 303 S.W.2d 548, 1957 Ky. LEXIS 267 ( Ky. 1957 ).

This section does not make specific reference to the judicial procedures to be employed in the exercise of the power of eminent domain. Commonwealth, Dep't of Highways v. Fister, 376 S.W.2d 543, 1964 Ky. LEXIS 460 ( Ky. 1964 ).

In an eminent domain case the trial court erred in not disposing of all the claims concerning the right to take before the jury aspect of the case and in allowing a claim for damages to go to the jury. Commonwealth v. Cooksey, 948 S.W.2d 122, 1997 Ky. App. LEXIS 60 (Ky. Ct. App. 1997).

The eminent domain statutes make no provisions for the jury to consider bad faith or fraud; any allegation of bad faith or fraud would necessarily have to come before the judge who would decide if it affects the state’s right to take. Commonwealth v. Cooksey, 948 S.W.2d 122, 1997 Ky. App. LEXIS 60 (Ky. Ct. App. 1997).

In eminent domain proceedings a court will deny the right to take only where there has been gross abuse or manifest fraud. Commonwealth v. Cooksey, 948 S.W.2d 122, 1997 Ky. App. LEXIS 60 (Ky. Ct. App. 1997).

In eminent domain proceedings there are no statutory provisions or other authority for allowing the taking but limiting damages to monetary sums, for bifurcation of the jury trial, or for deciding if fraud exists in the negotiations if the jury award exceeds the commissioners’ recommendation. Commonwealth v. Cooksey, 948 S.W.2d 122, 1997 Ky. App. LEXIS 60 (Ky. Ct. App. 1997).

54.— Estoppel.

Although city acquired easement through owner’s property without contract or condemnation, fact that owner stood by and acquiesced until long after work on his property was completed estopped him to claim violation of this section as defense to city’s assessment for sewers installed thereon, and any compensation which might have been due could not be set off or counterclaimed against such assessment. Fischer v. James A. Diskin Co., 247 Ky. 694 , 57 S.W.2d 538, 1933 Ky. LEXIS 436 ( Ky. 1933 ).

55.— Extraterritorial Condemnation.

This section did not prevent legislature from granting to a county the authority to acquire land extraterritorially. Wadsworth Electric Mfg. Co. v. Kenton County Airport Board, Inc., 509 S.W.2d 270, 1974 Ky. LEXIS 559 ( Ky. 1974 ).

56.— Fair Market Value.

Fair market value concept excludes both the value of property to the owner and the value of property to the taker. Newport Municipal Housing Com. v. Turner Advertising, Inc., 334 S.W.2d 767, 1960 Ky. LEXIS 231 ( Ky. 1960 ).

Productivity of agricultural land in the way of crops is a proper item to consider in deciding fair market value of such land. Newport Municipal Housing Com. v. Turner Advertising, Inc., 334 S.W.2d 767, 1960 Ky. LEXIS 231 ( Ky. 1960 ).

The fact that the owner may have bought subsequently condemned land at a price below its actual value, knowing of the proposed project and expecting to make a profit, was not a basis for limiting his recovery since the measure of recovery was the value of the land and not the particular owner’s investment. Commonwealth, Dep't of Highways v. Tackett, 498 S.W.2d 630, 1973 Ky. LEXIS 299 ( Ky. 1973 ).

57.— Franchise.

Street railroad could not be required to continue to operate at loss where franchise was only permissive. Potter Matlock Trust Co. v. Warren County, 182 Ky. 840 , 207 S.W. 709, 1919 Ky. LEXIS 420 ( Ky. 1919 ).

Ferry franchise could be revoked by law because of nonresidency without violating this section. Crittenden County v. McConnell, 237 Ky. 806 , 36 S.W.2d 627, 1931 Ky. LEXIS 697 ( Ky. 1931 ). See Muscovalley v. Horn, 246 Ky. 778 , 56 S.W.2d 354, 1932 Ky. LEXIS 826 ( Ky. 1932 ).

58.— Government Agencies.

Although state park commission was agency of Commonwealth, when such commission took land in violation of this section, it was liable therefor as against any liability of Commonwealth. Kentucky State Park Com. v. Wilder, 260 Ky. 190 , 84 S.W.2d 38, 1935 Ky. LEXIS 437 ( Ky. 1935 ).

Rates set by an agency charged with regulating a telephone utility are nonconfiscatory, just and reasonable so long as they enable the utility to operate successfully, to maintain its financial integrity, to attract capital and to compensate its investors for the risks assumed. Commonwealth ex rel. Stephens v. South Cent. Bell Tel. Co., 545 S.W.2d 927, 1976 Ky. LEXIS 142 ( Ky. 1976 ).

59.— Ingress and Egress.

Closing of a public highway abutting plaintiff’s property is not a taking of private property without compensation unless ingress or egress is unreasonably blocked and mere diversion of traffic is insufficient. De Rossette v. Jefferson County, 288 Ky. 407 , 156 S.W.2d 165, 1941 Ky. LEXIS 106 ( Ky. 1941 ).

Destruction of adjoining property access by highway department’s road construction was not compensable under this section, since there was no taking and no other resultant injury. Cantrell v. Pike County, 255 S.W.2d 988, 1953 Ky. LEXIS 690 ( Ky. 1953 ).

The limiting of the right of access by the Commonwealth in the exercise of its police power is not the taking of property for which the landowner is entitled to compensation. Flynn v. Commonwealth, Dep't of Highways, 428 S.W.2d 24, 1968 Ky. LEXIS 700 ( Ky. 1968 ).

Where a strip of land was taken to widen and reconstruct a public highway, damage to the value of abutting property resulting from the change in grade constituted a taking within the meaning of this section and Const., § 242, although the abutting owner could not have recovered damages for resulting loss of access unless he was left without reasonable access to the highway system. Commonwealth, Dep't of Highways v. Roberts, 496 S.W.2d 343, 1973 Ky. LEXIS 380 ( Ky. 1973 ).

60.— Inheritance.

Court erred in trying condemnation case before it was revived against heirs of deceased defendants, since any interest in property had by decedents descended to their heirs, and taking such property in action to which such heirs were not made parties would be violative of this section. Louisville & N. R. Co. v. Mayhew, 307 Ky. 793 , 211 S.W.2d 675, 1948 Ky. LEXIS 771 ( Ky. 1948 ).

61.— Judgments.

A judgment against a railroad company for damages to abutting property resulting from the construction of the road in a street so as to obstruct ingress and egress and to cause, necessarily, smoke, soot, and cinders to be thrown upon the property, being for the taking of private property for public use, is a lien upon the entire road in the nature of a vendor’s lien. Ball v. Maysville & B. S. R. Co., 102 Ky. 486 , 43 S.W. 731, 19 Ky. L. Rptr. 1540 , 1897 Ky. LEXIS 139 ( Ky. 1897 ).

Where county has taken plaintiff’s property for public use under an agreed judgment fixing amount of recovery and manner of satisfaction but makes no effort to perform the judgment, plaintiff has a right to mandamus to compel levy of tax to pay warrant in view of this section. Johnson v. Whitley County, 219 Ky. 275 , 292 S.W. 797, 1927 Ky. LEXIS 314 ( Ky. 1927 ).

Where a city and a corporation entered into an agreed judgment following a condemnation suit whereby the corporation deeded to the city, for construction of sewers, certain land, including a stream which was being used by the corporation for sewerage purposes, and, in part consideration thereof, the city agreed to allow free use of the sewers, a subsequently created metropolitan sewer district which took over city sewer system could not by exercise of police power abrogate the judgment and force successors of the corporation to pay for use of the sewers without just compensation, for to permit such abrogation and payment would be taking property without compensation and destroying vested rights. Bond Bros. v. Louisville & Jefferson County Metropolitan Sewer Dist., 307 Ky. 689 , 211 S.W.2d 867, 1948 Ky. LEXIS 805 ( Ky. 1948 ), cert. denied, 339 U.S. 943, 70 S. Ct. 796, 94 L. Ed. 1358, 1950 U.S. LEXIS 2086 (U.S. 1950).

Where landowners would lose the rental income from their property when the Commonwealth took possession thereof, but the interest on lien debts against the property would continue to accrue, it was mandatory in light of the magnitude of the sum involved, $976,145, that the award be placed at interest until the question of lien priorities could be resolved, and the failure of the trial court to do so constituted denial of due process and a clear abuse of discretion. Foster v. Sanders, 557 S.W.2d 205, 1977 Ky. App. LEXIS 827 (Ky. Ct. App. 1977).

62.— Jury.

Requirement in railroad condemnation law that the jury in Circuit Court shall separately fix the taking and resulting damages is improper procedure and violates this section and Const., § 242. Commonwealth, Dep't of Highways v. Sherrod, 367 S.W.2d 844, 1963 Ky. LEXIS 33 ( Ky. 1963 ).

In a condemnation action, the court of appeals usurped the jury’s role by presuming to weigh the evidence and concluding that, contrary to the jury’s determination, the evidence was insufficient to support a finding that the property owner’s property was physically adaptable for industrial uses. The owner’s engineer was duly qualified by training and long experience to form an opinion about the amenability of the road and its sharp turn to tractor-trailer traffic, and his testimony, though not supported by computer model representations, was supported by several real world examples and by the testimony of the owner that she was aware from living in the area for over forty years that it was possible for trucks to negotiate the road. Baston v. County of Kenton ex rel. Kenton County Airport Bd., 319 S.W.3d 401, 2010 Ky. LEXIS 211 ( Ky. 2010 ).

63.— Liability.

Commonwealth is liable in damages for private property taken for public purpose. Kentucky State Park Com. v. Wilder, 256 Ky. 313 , 76 S.W.2d 4, 1934 Ky. LEXIS 401 ( Ky. 1934 ).

64.— Navigable Waters.

City could not erect dam resulting in flooding and submersion of riparian owner’s property without compensation where purpose of such dam was benefit to city and not improvement or preservation of navigation. Natcher v. Bowling Green, 264 Ky. 584 , 95 S.W.2d 255, 1936 Ky. LEXIS 374 ( Ky. 1936 ).

65.— Nuisance.

A city may not, in its own right or under the authority of the board of health, create a nuisance to adjacent property by establishing a dumping ground for garbage and refuse matter without first making full compensation to the owner of the adjacent property. Georgetown v. Ammerman, 143 Ky. 209 , 136 S.W. 202, 1911 Ky. LEXIS 371 ( Ky. 1911 ).

66.— Loss of Lease.

Compensable loss from deprivation of lease must be proved by showing actual loss, not mere tenancy in condemned property. Ashland v. Price, 318 S.W.2d 861, 1958 Ky. LEXIS 152 ( Ky. 1958 ).

67.— Police Power.

This section does not limit the reasonable and proper exercise of the police power. Whitaker v. Green River Coal Co., 276 Ky. 43 , 122 S.W.2d 1012, 1938 Ky. LEXIS 529 ( Ky. 1938 ).

A valid exercise of police power by municipality resulting in expense or loss of property is not a taking of property without due process of law or without just compensation, nor does it abridge the equal protection of United States Const., Amend. 14. Louisville v. Thompson, 339 S.W.2d 869, 1960 Ky. LEXIS 487 ( Ky. 1960 ).

City ordinance requiring that each dwelling unit be equipped with inside bathroom and that each sink, lavatory basin, bathtub and shower be connected to hot and cold water lines with water heating facilities is within scope of police powers of city and not unconstitutional as unreasonable, arbitrary, or amounting to taking property without due process of law or just compensation. Louisville v. Thompson, 339 S.W.2d 869, 1960 Ky. LEXIS 487 ( Ky. 1960 ).

Where the denial of a coal company’s application for a strip mine permit is arbitrary and cannot stand as a valid exercise of the police power, the denial of the permit takes the property of the company without compensation and is a violation of both the federal and state constitutions. Department for Natural Resources & Environmental Protection v. Stearns Coal & Lumber Co., 563 S.W.2d 471, 1978 Ky. LEXIS 338 ( Ky. 1978 ).

Since the county ordinance banning pit bull terriers because of their “inherently vicious and dangerous propensities” was reasonable and a valid exercise of the county’s police power, no compensation was due to their owners for the forfeiture and destruction of such dogs. Bess v. Bracken County Fiscal Court, 210 S.W.3d 177, 2006 Ky. App. LEXIS 347 (Ky. Ct. App. 2006).

68.— Prior Payment.

This section requires prior payment such that owner must receive compensation for condemned property before passage of title to state. Goodwin v. Goodwin's Ex'r, 290 S.W.2d 458, 1956 Ky. LEXIS 313 ( Ky. 1956 ).

While a condemnor must pay or tender compensation to an owner prior to taking possession of property, the amount tendered or paid need be only the amount of the preliminary assessment of compensation, with either party having the right to secure a final assessment of the amount of compensation by a jury. Foster v. Sanders, 557 S.W.2d 205, 1977 Ky. App. LEXIS 827 (Ky. Ct. App. 1977).

69.— Property.

Right to require depot to be maintained at certain place was not “property” as referred to in this section. Beatty v. Louisville & N. R. Co., 176 Ky. 100 , 195 S.W. 487, 1917 Ky. LEXIS 47 ( Ky. 1917 ).

“Property,” under this section, included interest of lessee. Ashland v. Price, 318 S.W.2d 861, 1958 Ky. LEXIS 152 ( Ky. 1958 ).

70.— — Abutting.

The owner of property abutting on an alley is not entitled to compensation for injury to his business cause by vacating the alley. Henderson v. Lexington, 132 Ky. 390 , 111 S.W. 318, 33 Ky. L. Rptr. 703 , 1908 Ky. LEXIS 123 ( Ky. 1908 ).

Requirement that owners of property abutting highway remove brush and other obstructions therefrom was not violative of this section. Commonwealth v. Watson, 223 Ky. 427 , 3 S.W.2d 1077, 1928 Ky. LEXIS 362 ( Ky. 1928 ).

An abutting owner does not have a vested right to build a structure over a public highway. Commonwealth, Dep't of Highways v. Trimble, 451 S.W.2d 641, 1969 Ky. LEXIS 18 ( Ky. 1969 ).

Where a strip of land was taken to widen and reconstruct a public highway, damage to the value of the abutting property resulting from the change of grade constituted a taking within the meaning of this section and Const., § 242, although the abutting owner could not have recovered damages for resulting loss of access unless he was denied reasonable access to the highway system. Commonwealth, Dep't of Highways v. Roberts, 496 S.W.2d 343, 1973 Ky. LEXIS 380 ( Ky. 1973 ).

The taking of a property owner’s second strip of land contiguous to a first condemned strip for the purpose of restoring an easement to a second property owner was a taking of private property for a private use and was forbidden by this section and Const., § 242. Commonwealth, Dep't of Transp., Bureau of Highways v. Knieriem, 707 S.W.2d 340, 1986 Ky. LEXIS 238 ( Ky. 1986 ).

71.— Public Health.

A sheriff executing in good faith the orders of a board of health in closing for disinfection the store of an individual who had infected it with smallpox is not liable to the individual for any damages. Allison v. Cash, 143 Ky. 679 , 137 S.W. 245, 1911 Ky. LEXIS 497 ( Ky. 1911 ).

72.— Public Use.

That one or more persons will derive exceptional and special advantages from the construction of a spur track does not show that the track is not for a public use. This section is satisfied if all the public desiring to use it have the right to do so upon the same terms and conditions as those specially benefited. Riley v. Louisville, H. & S. L. R. Co., 142 Ky. 67 , 133 S.W. 971, 1911 Ky. LEXIS 126 ( Ky. 1911 ).

Taking lowlands or swamps for agricultural use constituted “public use” under this section. Carter v. Griffith, 179 Ky. 164 , 200 S.W. 369, 1918 Ky. LEXIS 192 ( Ky. 1918 ).

Even though compensation was made, privately owned land could not be condemned for nonpublic use. Howard Realty Co. v. Paducah & I. R. Co., 182 Ky. 494 , 206 S.W. 774, 1918 Ky. LEXIS 395 ( Ky. 1918 ). See Bushart v. Fulton County, 183 Ky. 471 , 209 S.W. 499, 1919 Ky. LEXIS 504 ( Ky. 1919 ).

Where property was taken for public use under eminent domain, status of user of eminent domain power was immaterial. Baxter v. Louisville, 224 Ky. 604 , 6 S.W.2d 1074, 1928 Ky. LEXIS 654 ( Ky. 1928 ).

This section and Const., § 242 clearly require that finding of “public purpose” does not satisfy the requirement of a finding of “public use.” Owensboro v. McCormick, 581 S.W.2d 3, 1979 Ky. LEXIS 252 ( Ky. 1979 ).

When the property being condemned will not be developed for use by the public, exercise of the power of eminent domain is not permissible under this section and § 242 of the Constitution unless the property lies within an area of land which is blighted as defined by statute. Owensboro v. McCormick, 581 S.W.2d 3, 1979 Ky. LEXIS 252 ( Ky. 1979 ).

The elimination of blight by developing the property according to a proper plan constitutes a “public use” of the property. Owensboro v. McCormick, 581 S.W.2d 3, 1979 Ky. LEXIS 252 ( Ky. 1979 ).

Abutting property owner did not have right of private railway access over property reacquired by city under operation of law; reasonable right of access did not encompass grant of private right of railway access as to do so would be in contravention of the right enjoyed by all other members of the public or other abutting property owners and would constitute use of public property for a private purpose prohibited by this section and Const. §§ 2, 179, and 242. City of Louisville v. Louisville Scrap Material Co., 932 S.W.2d 352, 1996 Ky. LEXIS 62 ( Ky. 1996 ).

73.— Schools.

School board must pay for property it takes. Superior Coal & Builders' Supply Co. v. Board of Education, 260 Ky. 84 , 83 S.W.2d 875, 1935 Ky. LEXIS 412 ( Ky. 1935 ).

School Board was not entitled to dismissal of a takings suit on immunity grounds because if the property owners successfully proved their homes were damaged or destroyed as a direct consequence of the blasting for construction of the new high school, the Board might be liable in damages; even if the injury or destruction did not rise to the level of a taking, just compensation must be paid. Stathers v. Garrard County Bd. of Educ., 405 S.W.3d 473, 2012 Ky. App. LEXIS 162 (Ky. Ct. App. 2012).

74.— Sovereign Immunity.

Where private property is taken for public use or where there is a trespass thereon which amounts to such taking, the state’s immunity from suit is waived through this section and Const., § 242. Kentucky Bell Corp. v. Commonwealth, 295 Ky. 21 , 172 S.W.2d 661, 1943 Ky. LEXIS 184 ( Ky. 1943 ).

Where private property was taken for public use or where there was trespass thereon which amounted to such taking, state’s immunity from suit was waived. Commonwealth v. Kelley, 314 Ky. 581 , 236 S.W.2d 695, 1951 Ky. LEXIS 698 ( Ky. 1951 ). See Keck v. Hafley, 237 S.W.2d 527, 1951 Ky. LEXIS 764 ( Ky. 1951 ); Department of Highways v. Corey, 247 S.W.2d 389, 1952 Ky. LEXIS 701 ( Ky. 1952 ).

In a suit brought by property owners against a sanitation district arising from sewage overflows, the owners could maintain claims of inverse condemnation, as to which sovereign immunity is no bar, and could also maintain claims of nuisance and trespass seeking to recover for an unconstitutional taking of private property without just compensation. Sanitation Dist. No. 1 v. McCord, 2013 Ky. App. LEXIS 15 (Ky. Ct. App. Jan. 25, 2013), review denied, ordered not published, 2014 Ky. LEXIS 130 (Ky. Mar. 12, 2014).

75.— Statutory Provisions.

Under this section and Const., § 242, it was within the power of state and city to enact laws and ordinances as had reasonably substantial tendency to further interest of public welfare. Illinois C. R. Co. v. Mayfield, 35 F.2d 808, 1929 U.S. App. LEXIS 3074 (6th Cir. Ky. 1929 ), cert. denied, 280 U.S. 608, 50 S. Ct. 158, 74 L. Ed. 651, 1930 U.S. LEXIS 803 (U.S. 1930).

The court will not refuse to enforce a law fixing the rates to be collected by tobacco warehousemen unless it presents such a flagrant attach upon the rights of property under guise of regulation as to compel the court to say that the rates prescribed will necessarily have the effect to deny just compensation for private property taken for public use. Pannell v. Louisville Tobacco Warehouse Co., 113 Ky. 630 , 68 S.W. 662, 23 Ky. L. Rptr. 2423 , 1902 Ky. LEXIS 87 (Ky.), modified, 113 Ky. 640 , 82 S.W. 1141, 1902 Ky. LEXIS 248 (Ky. Ct. App. 1902).

Where a city of the fifth class constructed a sidewalk on plaintiff’s property without compensation, its ordinances declaring the improvement necessary and directing that it be done, enacted under law authorizing city council to do work they deem necessary on sidewalks, curbing, sewers, streets, avenues and highways of the city, conferred no authority on the city’s agents to construct the sidewalk. Clinton v. Franklin, 119 Ky. 143 , 83 S.W. 140, 26 Ky. L. Rptr. 1056 , 1904 Ky. LEXIS 155 ( Ky. 1904 ).

Law providing that any railroad company may build such spurs as may be necessary and, for that purpose, shall have all the powers and be subject to the liabilities as in the construction of its main line is not an attempt to authorize a railroad to take private property for a private purpose. Riley v. Louisville, H. & S. L. R. Co., 142 Ky. 67 , 133 S.W. 971, 1911 Ky. LEXIS 126 ( Ky. 1911 ).

The legislature, in the exercise of its police power to regulate railroad crossings, may prohibit or require grade crossings, or bridges or viaducts at crossings, or authorize a municipal corporation to require them, and such an act is not violative of this section or Const., § 242. Louisville & N. R. Co. v. Hopkins County, 153 Ky. 718 , 156 S.W. 379, 1913 Ky. LEXIS 907 ( Ky. 1913 ).

Law by which railroad commission made rates award which was enforceable in court action did not violate this section, since making of such award did not include taking of any property without compensation to or consent of carrier. Louisville & N. R. Co. v. Greenbrier Distillery Co., 170 Ky. 775 , 187 S.W. 296, 1916 Ky. LEXIS 144 ( Ky. 1916 ).

A law governing the establishment of roads is not, as to one whose property is taken in change of a road, violative of this section where law provides for payment of compensation before the land is taken. Gratzer v. Gertisen, 181 Ky. 626 , 205 S.W. 782, 1918 Ky. LEXIS 599 ( Ky. 1918 ).

KRS 352.490 , relating to mining operations within twenty-five (25) feet of property line, does not violate this section. Whitaker v. Green River Coal Co., 276 Ky. 43 , 122 S.W.2d 1012, 1938 Ky. LEXIS 529 ( Ky. 1938 ).

Action could be maintained under KRS 177.060 for wrongful taking of property in connection with construction of state highway, but action would lie against county, which has duty to furnish right of way, rather than against state or its department of highways. Department of Highways v. Parker, 306 Ky. 14 , 206 S.W.2d 73, 1947 Ky. LEXIS 952 ( Ky. 1947 ).

Former law authorizing condemnor to take possession of property upon payment of compensation fixed by commissioners before final assessment of damages, did not violate prior payment requirement of this section. Linn v. Bryan, 312 Ky. 203 , 226 S.W.2d 959, 1950 Ky. LEXIS 626 ( Ky. 1950 ).

Limitation of recovery under KRS chapter 44 would offend this section if construed as limiting ultimate amount of “just compensation.” Commonwealth, Dep't of Highways v. Widner, 388 S.W.2d 583, 1965 Ky. LEXIS 437 ( Ky. 1965 ).

State is liable for acquisitions under KRS 177.021 , but there is no liability if property is not taken. Ganote v. Commonwealth, Dep't of Highways, 409 S.W.2d 165, 1966 Ky. LEXIS 48 ( Ky. 1966 ).

A statutory requirement (KRS 350.060 ) that private individuals who own interests in surface estates from which the mineral has been severed must grant their consent, for a consideration, to surface mining on their land was unconstitutional since its effect was to change the relative legal rights and economic bargaining positions of such private parties under their contracts rather than to achieve any public purpose and thus could not be justified as a legitimate exercise of police power. Department for Natural Resources & Environmental Protection v. No. 8 Limited of Virginia, 528 S.W.2d 684, 1975 Ky. LEXIS 73 ( Ky. 1975 ).

Section 100.324 , which exempts public utilities from receiving the approval of the planning unit for the location or relocation of service facilities, is not unconstitutionally arbitrary in its application in violation of Const., § 2, and it does not result in a taking of private property without consent or compensation in violation of this section. Oldham County Planning & Zoning Com. v. Courier Communications Corp., 722 S.W.2d 904, 1987 Ky. App. LEXIS 421 (Ky. Ct. App. 1987).

76.—Taking.

Court of Appeals holds that the statutory provisions set forth in Ky. Rev. Stat. Ann. ch. 134 do not constitute a taking under either the United States Constitution or the Kentucky Constitution. Farmers Nat'l Bank v. Commonwealth, 486 S.W.3d 872, 2015 Ky. App. LEXIS 76 (Ky. Ct. App. 2015).

The closing of a public street, alley or highway is a taking of property as provided in this section. Henderson v. Lexington, 132 Ky. 390 , 111 S.W. 318, 33 Ky. L. Rptr. 703 , 1908 Ky. LEXIS 123 ( Ky. 1908 ).

“Taking,” as used in this section, occurred when public right of way was closed or obstructed unreasonably. Illinois C. R. Co. v. Ward, 237 Ky. 478 , 35 S.W.2d 863, 1931 Ky. LEXIS 626 ( Ky. 1931 ), overruled, Department of Highways v. Jackson, 302 S.W.2d 373, 1957 Ky. LEXIS 189 ( Ky. 1957 ).

Allegation that owner’s residential property was rendered unfit for occupancy and that his buildings were severely damaged showed trespass amounting to taking. Commonwealth v. Kelley, 314 Ky. 581 , 236 S.W.2d 695, 1951 Ky. LEXIS 698 ( Ky. 1951 ).

An interference with the legally protected use to which land has been dedicated, which destroys that use or places a substantial and additional burden on the landowner to maintain that use, is “taking” of property. Commonwealth v. Kelley, 314 Ky. 581 , 236 S.W.2d 695, 1951 Ky. LEXIS 698 ( Ky. 1951 ). See Keck v. Hafley, 237 S.W.2d 527, 1951 Ky. LEXIS 764 ( Ky. 1951 ).

Court could not say as matter of law that there was not “taking” when residential property was damaged to such extent that to maintain its use required considerable expense on part of landowner. Commonwealth v. Kelley, 314 Ky. 581 , 236 S.W.2d 695, 1951 Ky. LEXIS 698 ( Ky. 1951 ).

Construction of highway so that stream channel changed, resulting in flooding of owner’s land which impaired its usability, constituted taking of such land. Keck v. Hafley, 237 S.W.2d 527, 1951 Ky. LEXIS 764 ( Ky. 1951 ).

City action to require railroad to establish suitable crossing on city street, possibly requiring removal of tracks, was not in nature of taking under this section or Const., § 242. Louisville & N. R. Co. v. Owensboro, 238 S.W.2d 148, 1951 Ky. LEXIS 806 ( Ky. 1951 ).

An interference with the legally protected use to which land has been dedicated which destroys that use or places a substantial and additional burden on the landowner to maintain that use is a “taking” of his property. Department of Highways v. Corey, 247 S.W.2d 389, 1952 Ky. LEXIS 701 ( Ky. 1952 ).

Location and construction of culvert by highway department directly damaged owner’s land so as to amount to “taking” thereof. Department of Highways v. Corey, 247 S.W.2d 389, 1952 Ky. LEXIS 701 ( Ky. 1952 ).

Where owners deeded some land to highway department and construction work thereon caused dust damage to remaining land, such damage was not new taking. Commonwealth v. Moore, 267 S.W.2d 531, 1954 Ky. LEXIS 841 ( Ky. 1954 ).

Fiscal court resolution for “establishment” of public road constituted designation of it, by way of identification, and was not “taking” of any property at that stage. Thompson v. Fayette County, 302 S.W.2d 550, 1957 Ky. LEXIS 195 ( Ky. 1957 ).

Sale of land for delinquent taxes did not constitute taking for public purpose. Richardson v. Brunner, 356 S.W.2d 252, 1962 Ky. LEXIS 93 (Ky.), cert. denied, 371 U.S. 815, 83 S. Ct. 27, 9 L. Ed. 2d 56, 1962 U.S. LEXIS 575 (U.S. 1962).

Under this section and Const., § 242, taking resulted whether property was condemned and appropriated for public use or was “injured or destroyed” for public purpose, and whether such taking was permanent or temporary did not matter. Commonwealth, Dep't of Highways v. Gisborne, 391 S.W.2d 714, 1965 Ky. LEXIS 329 ( Ky. 1965 ).

The evidence presented for the plaintiffs was enough to warrant the jury’s inference that the various construction and relocation activities of the department brought about such a change in the flow of water as to cause substantial damage to the plaintiff’s property which would constitute a “taking.” Commonwealth, Dep't of Highways v. Watson, 446 S.W.2d 294, 1969 Ky. LEXIS 119 ( Ky. 1969 ).

The requirements of former law that all physicians and hospitals be members of and contribute to the patient compensation fund did not amount to a taking of property without just compensation. McGuffey v. Hall, 557 S.W.2d 401, 1977 Ky. LEXIS 533 ( Ky. 1977 ).

Landowners were not entitled to compensation for the loss in value of properties that neighbored their condemned parcels of land because the unity rule did not apply when, for condemnation purposes, the parcels taken were not united in use with the rest of the landowners’ property; there was no permanent injury or substantial interference with the landowners’ nearby property, and potential inconvenience and business losses flowing from the condemnation were not the type of permanent injury or substantial interference with property use necessary to invoke the unity rule. Bianchi v. City of Harlan, 274 S.W.3d 368, 2008 Ky. LEXIS 128 ( Ky. 2008 ).

Appellant property owners’ action regarding a nomination to the National Register of Historic Places was improperly dismissed because the possibility was not foreclosed, based on existing judicial precedent, that the owners could present an unconstitutional takings claim by demonstrating that the recognition of landmark status more severely restricted development; the owners were entitled to adequate discovery on the issue. Norton v. Perry, 2012 Ky. App. LEXIS 208 (Ky. Ct. App. Oct. 12, 2012), op. withdrawn, sub. op., 2013 Ky. App. LEXIS 10 (Ky. Ct. App. Jan. 11, 2013).

Developer could recover damages for inverse condemnation after the Kentucky Uninsured Employer’s Fund filed an invalid lien under KRS 342.770 , which resulted in termination of financing for a subdivision project. A compensable taking occurred, even though there was no legislative or regulatory action limiting the property’s use. Commonwealth v. County of Hardin Planning & Dev. Comm'n, 390 S.W.3d 840, 2012 Ky. App. LEXIS 240 (Ky. Ct. App. 2012).

Case law did not foreclose the possibility of a successful unconstitutional takings claim and the property owners were entitled to adequate discovery on this issue; accordingly, the trial court erred in concluding otherwise. Norton v. Perry, 2013 Ky. App. LEXIS 10 (Ky. Ct. App. Jan. 11, 2013), review denied, ordered not published, 2013 Ky. LEXIS 667 (Ky. Dec. 11, 2013), review denied, ordered not published, 2013 Ky. LEXIS 660 (Ky. Dec. 11, 2013).

Fiscal court’s resolution acquiring a county road and the maintenance thereof resulted in an unauthorized taking because a proper acquisition complying with statutory requirements could not have occurred; however, owners who acquiesced to paving could obtain no recovery, even if they timely filed suit, and were properly directed to remove a gate. Cary v. Pulaski County Fiscal Court, 420 S.W.3d 500, 2013 Ky. App. LEXIS 85 (Ky. Ct. App. 2013).

Despite the landowners’ claims that the sewer district’s expansion of its plant constituted a taking, the area was still used as a site for various business, and three (3) of the properties continued to be used as the sites of single family residences; the landowners argued that the diminution in value of the property, as well as their alleged difficulty in renting a vacant residence, were sufficient to render the expansion of the plant a taking. However, the evidence showed that the landowners had been able to make substantial beneficial use of the property; thus, there had been no taking and inverse condemnation would be improper under Kentucky law. Druin v. Louisville & Jefferson County Metro. Sewer Dist., 2005 U.S. Dist. LEXIS 17331 (W.D. Ky. Aug. 16, 2005).

78.5.— —Fee Simple vs. Permanent Easement.

Circuit court erred ruling that a county had the right to condemn an owner's property under the state constitution and the Eminent Domain Act for a permanent easement for the construction of a large box culvert and drainage system because the interest that the county proposed to take was neither in proportion to the 95% utility it would take from the property nor consistent with the “pass through” function of an easement, the owner could make no physical use of the property if a permanent easement was taken, regardless of what the county stated was necessary for the project, and to take less than a fee simple interest in the property was arbitrary and in excess of the county's authority under the Act. Moore v. Lexington-Fayette Urban Cty. Gov't, 2017 Ky. App. LEXIS 515 (Ky. Ct. App. Sept. 15, 2017), rev'd, 559 S.W.3d 374, 2018 Ky. LEXIS 448 ( Ky. 2018 ).

77.— Taxation.

Gross sales tax law did not violate this section. Moore v. State Board of Charities & Corrections, 239 Ky. 729 , 40 S.W.2d 349, 1931 Ky. LEXIS 864 ( Ky. 1931 ).

Adjustment of the interest rate on tax refunds was not such an exertion of the legislative taxing power so as to constitute a “taking” of property for public use. Revenue Cabinet v. Asworth Corp., 2009 Ky. App. LEXIS 229 (Ky. Ct. App. Nov. 20, 2009), cert. denied, 562 U.S. 1200, 131 S. Ct. 1046, 178 L. Ed. 2d 865, 2011 U.S. LEXIS 1056 (U.S. 2011).

78.— Title Acquired.

Under this section and Const., § 242, title acquired by condemnation proceeding was derivative, standing in place of title as it was privately held, and clear, therefore, only insofar as private owners had their interests removed. Cumberland River Oil Co. v. Commonwealth, Dep't of Highways, 350 S.W.2d 700, 1961 Ky. LEXIS 127 ( Ky. 1961 ).

79.— Traffic Diversion.

Construction of a new highway with the result that traffic is diverted from an old highway running past the premises of a property owner does not affect the rights of that property owner under this section. De Rossette v. Jefferson County, 288 Ky. 407 , 156 S.W.2d 165, 1941 Ky. LEXIS 106 ( Ky. 1941 ).

The devaluation of property resulting from the diversion of traffic from an old highway to a new highway does not constitute a taking which entitles the property owner to compensation. Flynn v. Commonwealth, Dep't of Highways, 428 S.W.2d 24, 1968 Ky. LEXIS 700 ( Ky. 1968 ).

80.— Trespass.

Whereas Commonwealth tort liability only existed in certain cases, owner of damaged land could sue in what was in effect trespass action, with recovery based on violation of this section. Commonwealth v. Geary, 254 S.W.2d 477, 1953 Ky. LEXIS 587 ( Ky. 1953 ).

81.— Valuation.

If no exceptions are filed to viewers’ valuation, judgment is authorized on such valuation. If exceptions are filed by one party only, the burden is upon such party to produce evidence to sustain his exceptions. If both parties file exceptions, the burden if then on the condemnor. Commissioners of Sewerage v. Reisert, 243 Ky. 494 , 49 S.W.2d 324, 1932 Ky. LEXIS 147 ( Ky. 1932 ).

Condemnation proceedings testimony as to land value at time of trial was improper, and testimony should have been allowed as to value at time of taking only. Commonwealth Dep't of Highways v. Baldwin, 312 Ky. 782 , 229 S.W.2d 744, 1950 Ky. LEXIS 755 ( Ky. 1950 ), overruled in part, Commonwealth, Dep't of Highways v. Claypool, 405 S.W.2d 674, 1966 Ky. LEXIS 258 ( Ky. 1966 ).

Valuation standard for leased property to be taken under eminent domain is fair market value. Ashland v. Price, 318 S.W.2d 861, 1958 Ky. LEXIS 152 ( Ky. 1958 ).

82.— Voluntary Sale.

Prior payment requirement did not apply to voluntary sale to state, and sale by owner at price he proposed was such voluntary sale even though state had right of condemnation. Goodwin v. Goodwin's Ex'r, 290 S.W.2d 458, 1956 Ky. LEXIS 313 ( Ky. 1956 ).

83.— Workers’ Compensation.

A claimant was not denied his constitutional rights under Article I, § 10 of the United States Constitution or §§ 13, 19, or 242 of the Kentucky Constitution when he was not allowed to reopen an original workers’ compensation award within two (2) years of entry, notwithstanding that KRS 342.125 , as it existed on the date of his injury, would have allowed such reopening, since reopening is a remedy for an increase in disability that occurs after an award is entered and any right that a worker has to be compensated for a post-award increase in disability is inchoate until such time as he sustains a post-award change of occupational disability, at which point the right becomes vested. McCool v. Martin Nursery & Landscaping, Inc., 43 S.W.3d 256, 2001 Ky. LEXIS 60 ( Ky. 2001 ).

84.— Zoning.

Zoning ordinance of city of Louisville is constitutional and not violative of this section. Fowler v. Obier, 224 Ky. 742 , 7 S.W.2d 219, 1928 Ky. LEXIS 677 ( Ky. 1928 ).

85.— Change of Grade, Damage.

Where a strip of land was taken to widen and reconstruct a public highway, damage to the value of abutting property resulting from the change in grade constituted a taking of property within the meaning of this section and Const., § 242, although the abutting owner could not have recovered damages for resulting loss of access unless he was left without reasonable access to the highway system. Commonwealth, Dep't of Highways v. Roberts, 496 S.W.2d 343, 1973 Ky. LEXIS 380 ( Ky. 1973 ).

86.— Charitable Gaming Licenses.

The 1998 amendment to KRS 238.530(3), which prohibits the holding of multiple charitable gaming licenses by an entity, does not trigger the right to compensation guaranteed by the Constitution. Bobbie Preece Facility v. Commonwealth, 71 S.W.3d 99, 2001 Ky. App. LEXIS 54 (Ky. Ct. App. 2001).

Cited:

Hauns v. Central Kentucky Lunatic Asylum, 103 Ky. 562 , 45 S.W. 890, 20 Ky. L. Rptr. 246 , 1898 Ky. LEXIS 104 ( Ky. 1898 ); Hughes v. Carl, 106 Ky. 533 , 50 S.W. 852, 21 Ky. L. Rptr. 6 , 1899 Ky. LEXIS 65 ( Ky. 1899 ); Leavell v. Western Kentucky Asylum, 122 Ky. 213 , 91 S.W. 671, 28 Ky. L. Rptr. 1129 , 1906 Ky. LEXIS 3 8 ( Ky. 1906 ); Greenbaum v. Commonwealth, 147 Ky. 450 , 144 S.W. 45, 1912 Ky. LEXIS 245 ( Ky. 1912 ); Hazard Dean Coal Co. v. McIntosh, 183 Ky. 316 , 209 S.W. 364, 1919 Ky. LEXIS 496 ( Ky. 1919 ); Scalf v. Commonwealth, 195 Ky. 830 , 243 S.W. 1034 ( Ky. 1922 ); Wilson v. Eminence, 198 Ky. 32 , 247 S.W. 1106, 1923 Ky. LEXIS 3 66 ( Ky. 1923 ); Hoblitzel v. Jenkins, 204 Ky. 122 , 263 S.W. 764, 1924 Ky. LEXIS 436 ( Ky. 1924 ); Jewell Tabacco Warehouse Co. v. Kemper, 206 Ky. 667 , 268 S.W. 324, 1925 Ky. LEXIS 1023 ( Ky. 1925 ); Clem v. Commonwealth, 213 Ky. 265 , 280 S.W. 1104, 1926 Ky. LEXIS 494 ( Ky. 1926 ); Goose Creek Lumber Co. v. White, 219 Ky. 739 , 294 S.W. 494, 1927 Ky. LEXIS 450 ( Ky. 1927 ); Fallis v. Mercer County, 236 Ky. 315 , 33 S.W.2d 12, 1930 Ky. LEXIS 743 ( Ky. 1930 ); Snyder v. Shelby County, 261 Ky. 118 , 87 S.W.2d 90, 1935 Ky. LEXIS 594 ( Ky. 1935 ); Cranley v. Boyd County, 266 Ky. 569 , 99 S.W.2d 737, 1936 Ky. LEXIS 710 ( Ky. 1936 ); Bard v. Board of Drainage Comm'rs, 274 Ky. 491 , 118 S.W.2d 1013, 1938 Ky. LEXIS 292 ( Ky. 1938 ); Reynolds v. Walz, 278 Ky. 309 , 128 S.W.2d 734, 1939 Ky. LEXIS 427 ( Ky. 1939 ); Douthitt v. Covington, 284 Ky. 382 , 144 S.W.2d 1025, 1940 Ky. LEXIS 502 ( Ky. 1940 ); Burrow v. Kapfhammer, 284 Ky. 753 , 145 S.W.2d 1067, 1940 Ky. LEXIS 577 ( Ky. 1940 ); Commonwealth v. Tate, 297 Ky. 826 , 181 S.W.2d 418, 1944 Ky. LEXIS 820 ( Ky. 1944 ); Riedling v. Harrod, 298 Ky. 232 , 182 S.W.2d 770, 1944 Ky. LEXIS 882 ( Ky. 1944 ); Pursifull v. Pineville, 298 Ky. 453 , 183 S.W.2d 32, 1944 Ky. LEXIS 921 (Ky. 1944); Lehman v. Williams, 301 Ky. 729 , 193 S.W.2d 161, 1946 Ky. LEXIS 563 ( Ky. 1946 ); Wright v. Flood, 304 Ky. 122 , 200 S.W.2d 117, 1947 Ky. LEXIS 594 ( Ky. 1947 ); Hampton v. Whaley, 313 Ky. 611 , 233 S.W.2d 273, 1950 Ky. LEXIS 949 ( Ky. 1950 ); Tennessee Gas Transmission Co. v. Million, 314 Ky. 137 , 234 S.W.2d 152, 1950 Ky. LEXIS 1007 ( Ky. 1950 ); Louisville v. Milton, 247 S.W.2d 975, 1952 Ky. LEXIS 725 ( Ky. 1952 ); Stratton v. Commonwealth, 263 S.W.2d 99, 1953 Ky. LEXIS 1234 (Ky. Ct. App. 1953); Commonwealth ex rel. Tinder v. Werner, 280 S.W.2d 214, 1955 Ky. LEXIS 152 ( Ky. 1955 ); Casey County Board of Education v. Luster, 282 S.W.2d 333, 1955 Ky. LEXIS 238 ( Ky. 1955 ); Standiford Civic Club v. Commonwealth, 289 S.W.2d 498, 1956 Ky. LEXIS 285 ( Ky. 1956 ); Commonwealth v. Givens, 299 S.W.2d 799, 1957 Ky. LEXIS 428 ( Ky. 1957 ); Kroger Co. v. Louisville & Jefferson County Air Board, 308 S.W.2d 435, 1957 Ky. LEXIS 137 ( Ky. 1957 ); Commonwealth v. Collins, 344 S.W.2d 613, 1961 Ky. LEXIS 239 ( Ky. 1961 ); Commonwealth ex rel. Kentucky R. Com. v. Illinois C. R. Co., 358 S.W.2d 533, 1962 Ky. LEXIS 194 ( Ky. 1962 ); Hargrove v. Commonwealth, 362 S.W.2d 37, 1962 Ky. LEXIS 254 ( Ky. 1962 ); Jasper v. Commonwealth, 375 S.W.2d 709, 1964 Ky. LEXIS 431 ( Ky. 1964 ); Commonwealth, Dep't of Highways v. Thacker, 384 S.W.2d 79, 1964 Ky. LEXIS 75 ( Ky. 1964 ); Commonwealth v. Beasy, 386 S.W.2d 444, 1965 Ky. LEXIS 502 ( Ky. 1965 ); Epperson v. Briscoe Manor Sewer Constr. Dist., 420 S.W.2d 390, 1966 Ky. LEXIS 3 ( Ky. 1966 ); Adams, Inc. v. Louisville & Jefferson County Board of Health, 439 S.W.2d 586, 1969 Ky. LEXIS 374 ( Ky. 1969 ); Commonwealth v. Littrell, 677 S.W.2d 881, 1984 Ky. LEXIS 285 ( Ky. 1984 ); Yancey v. Carroll County, 876 F.2d 1238, 1989 U.S. App. LEXIS 4731 (6th Cir. Ky. 1989 ); Lake Village Water Ass'n v. Sorrell, 815 S.W.2d 418, 1991 Ky. App. LEXIS 105 (Ky. Ct. App. 1991); Commonwealth v. Grubb, 862 S.W.2d 883, 1993 Ky. LEXIS 129 ( Ky. 1993 ); Belt v. Commonwealth, 2 S.W.3d 790, 1999 Ky. App. LEXIS 136 (Ky. Ct. App. 1999); Rabourn v. Commonwealth, 2006 Ky. App. LEXIS 216 (Ky. Ct. App. 2006); Bounds v. Commonwealth, 630 S.W.3d 651, 2021 Ky. LEXIS 361 ( Ky. 2021 ).

Opinions of Attorney General.

There can be no question of double jeopardy involved in the meting out of disciplinary action by a state university for conduct which is also prosecuted in the courts as a violation of state and/or federal law. OAG 69-357 .

Inasmuch as the alleged economic loss occasioned by the building of an interstate bridge is not a “taking” and is not a trespass such as to be equivalent to a “taking,” the purchase of a ferry for the sole purpose of protecting the owner from financial loss would not be a proper implementation of the eminent domain concept. OAG 76-308 .

The destruction of an apartment door by police officers who used reasonable force in executing a valid search warrant would not constitute the taking of private property by the city for a public use, requiring compensation by the city to the property owner. OAG 76-743 .

A prosecution of driving under the influence of intoxicating liquor is not a bar to a prosecution of homicide arising out of the same incident. OAG 78-301 .

The preliminary hearing before a magistrate does not involve double jeopardy. OAG 80-97 .

A library district can qualify to issue revenue bonds under KRS Ch. 58, since it is a special taxing district under Const., § 157 and is a “governmental agency” under KRS 58.010(3). If it issues revenue bonds for a proposed project, the library district board can exercise the power to condemn real estate pursuant to KRS 58.140 . OAG 82-343 .

A library district which planned to use mortgage financing for library improvements had no power to condemn the real estate needed. OAG 82-343 .

The power of eminent domain requires an express statute. OAG 82-343 .

The fiscal court can “establish” a road or strip of land as a part of the county road system prior to obtaining easements or title from the owners. However, the fiscal court cannot start road work on the land in question until the owner has received or been tendered compensation; the fiscal court must either pay the owners for the land to be used for the county road or must tender the compensation prior to the county’s going on the land and beginning the road work. OAG 83-125 .

Research References and Practice Aids

Cross-References.

Double jeopardy under Penal Code, KRS 505.030 to 505.060 .

Eminent domain, Ky. Const., § 242; KRS ch. 416.

Kentucky Law Journal.

Schneider, Strip Mining in Kentucky, 59 Ky. L.J. 652 (1971).

Comments, Commonwealth v. Stephens: The Taking Doctrine at Work in Environmental Land Use Planning, 65 Ky. L.J. 729 (1976-77).

Kentucky Law Survey: Quick, Criminal Procedure, 66 Ky. L.J. 605 (1977-1978).

Note, Historic Preservation — An Individual’s Perspective, 67 Ky. L.J. 1018 (1978-1979).

Kentucky Law Survey, Bratt and Brown, Environmental Law, 70 Ky. L.J. 455 (1981-82).

Kentucky Law Survey, Fortune, Criminal Procedure, 73 Ky. L.J. 347 (1984-85).

Kentucky Law Survey, Bratt, Property, 73 Ky. L.J. 459 (1984-85).

Notes, Private Property and Environmental Regulatory Takings: A Forward Look into Rights and Remedies, as Illustrated by an Excursion into the Wild Rivers Act of Kentucky, 73 Ky. L.J. 999 (1984-85).

Northern Kentucky Law Review.

Comment, Kentucky’s Power of Eminent Domain, 7 N. Ky. L. Rev. 421 (1980).

Wintersheimer, State Constitutional Law, 20 N. Ky. L. Rev. 591 (1993).

Stinnett, A Breath of Fresh Air: A Smoking Ban’s Legal Invasion of Property Rights in Lexington Fayette County Food & Beverage Ass’n v. Lexington-Fayette Urban County Gov’t.,32 N. Ky. L. Rev. 239 (2005).

Ruh & Lockaby, Balancing Private Property Rights with “Public Use”: A Survey of Kentucky Courts’Interpretation of the Power of Eminent Domain., 32 N. Ky. L. Rev. 743 (2005).

§ 14. Right of judicial remedy for injury — Speedy trial.

All courts shall be open, and every person for an injury done him in his lands, goods, person or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay.

NOTES TO DECISIONS

Analysis

1.In General.

The courts are always open for redress against the exercise of arbitrary power by administrative officials which may result in injury to any person. Forrester v. Terry, 357 S.W.2d 308, 1962 Ky. LEXIS 114 ( Ky. 1962 ).

Construction of Const., § 54 and this section is and should be that which leaves to the policymaking arm of government the broadest discretion consistent with their language. Carney v. Moody, 646 S.W.2d 40, 1982 Ky. LEXIS 331 ( Ky. 1982 ), overruled, Perkins v. Northeastern Log Homes, 808 S.W.2d 809, 1991 Ky. LEXIS 44 ( Ky. 1991 ).

In encouraging dedication of land for recreational use by land owners, KRS 411.190 creates a class of users which by such dedication loses its label as trespassers but does not acquire the label of invitees; this is a reasonable classification and does not violate this section, Const., § 54, or any other pertinent section of the Kentucky Constitution. Sublett v. United States, 688 S.W.2d 328, 1985 Ky. LEXIS 215 ( Ky. 1985 ).

Fundamental fairness is part and parcel of the concept underlying the rights guaranteed by the Constitution; and, conversely, the various sections in it protecting individual rights from legislative interference cannot be understood or applied without reference to fundamental fairness. Perkins v. Northeastern Log Homes, 808 S.W.2d 809, 1991 Ky. LEXIS 44 ( Ky. 1991 ).

The jural right to sue for personal injury or death caused by negligence or other wrongful acts was well recognized in 1891 when the Constitution was adopted. In drafting the constitutional protections in this section and §§ 54 and 241, the founding fathers were protecting the jural rights of the individual citizens of Kentucky against the power of the government to abridge such rights, speaking to their rights as they would be commonly understood by those citizens in any year, not just in 1891. The protection afforded to jural rights is not limited definitively to fact situations existing in the year 1891. Perkins v. Northeastern Log Homes, 808 S.W.2d 809, 1991 Ky. LEXIS 44 ( Ky. 1991 ).

Based upon the plain text of Ky. Const. § 14, its history, and long-standing precedent interpreting its reach, § 14 acts as a restraint on the power of all departments of state government. Section 14 is a right of the people, and the people deserve to be protected against all departments of government infringing on their right to seek immediate redress for common-law personal-injury claims. Commonwealth v. Claycomb, 566 S.W.3d 202, 2018 Ky. LEXIS 504 ( Ky. 2018 ).

Proceeding through an alternative means of adjudication of a claim is not per se unconstitutional under Ky. Const. § 14. Whether through arbitration, mediation, administrative proceedings, or some other form of dispute-resolution process, if a claimant (1) has voluntarily agreed to seek redress of their common-law claims through that process and (2) has meaningfully waived access to the courts, then proceeding through a dispute-resolution process outside the court system that resulted in a delayed adjudication of a claim would, nevertheless, seem to pass constitutional muster under § 14. Commonwealth v. Claycomb, 566 S.W.3d 202, 2018 Ky. LEXIS 504 ( Ky. 2018 ).

2.Purpose.

Where a plaintiff sought medical care from a Kentucky physician, had plastic surgery and obstetrical procedures performed upon her in an Ohio hospital, which resulted in her electing to undergo an abortion after it was discovered she was pregnant when she received anesthetics prior to the surgical procedures, the fact that if the defendant’s theory prevailed the plaintiff would be subjected to the Ohio Medical Claim Act, which involved arbitration contrary to the Kentucky public policy that all persons should have an early day in court and the right to a trial in court in personal injury actions, caused Kentucky law to apply in the plaintiff’s suit since the application of a foreign statute which is contrary to Kentucky public policy to a Kentucky resident is a factor in choosing whether or not to apply Kentucky law. Kennedy v. Ziesmann, 522 F. Supp. 730, 1981 U.S. Dist. LEXIS 14699 (E.D. Ky. 1981 ).

3.Application.

This section applied to legislative as well as judicial branch of government and, when construed with Const., § 26, prohibited legislature from invading province of judiciary. Commonwealth ex rel. Tinder v. Werner, 280 S.W.2d 214, 1955 Ky. LEXIS 152 ( Ky. 1955 ).

This section applies to legislative as well as judicial actions and under this section and sections 54 and 241 of the constitution, subsection (14) of KRS 413.120 and KRS 413.135 could not constitutionally be applied to bar recovery by a third-party tenant from a builder for personal injuries or wrongful death resulting from the builder’s negligence since to do so would amount to destroying an existing common law right of action under the guise of limitation of actions, which is not permissible under these sections of the constitution. Saylor v. Hall, 497 S.W.2d 218, 1973 Ky. LEXIS 304 ( Ky. 1973 ). But see, Carney v. Moody, 646 S.W.2d 40, 1982 Ky. LEXIS 331 ( Ky. 1982 ), overruled, Perkins v. Northeastern Log Homes, 808 S.W.2d 809, 1991 Ky. LEXIS 44 ( Ky. 1991 ).

Aside from the mention of defamation in this section, this section and Const., § 54 expressly apply only to actions for death, personal injuries, and property damage. Fireman's Fund Ins. Co. v. Government Emples. Ins. Co., 635 S.W.2d 475, 1982 Ky. LEXIS 270 ( Ky. 1982 ), overruled, Perkins v. Northeastern Log Homes, 808 S.W.2d 809, 1991 Ky. LEXIS 44 ( Ky. 1991 ).

Aside from the mention of defamation in this section, Const., § 54 and this section expressly apply only to actions for death, personal injuries, and property damage. Fireman's Fund Ins. Co. v. Sherman & Fletcher, 705 S.W.2d 459, 1986 Ky. LEXIS 239 ( Ky. 1986 ).

This section applies to the legislative branch of government as well as to the judicial branch. McCollum v. Sisters of Charity of Nazareth Health Corp., 799 S.W.2d 15, 1990 Ky. LEXIS 98 ( Ky. 1990 ).

4.Administrative Decisions.

Provisions of KRS 66.310 (prior to 1942 amendment) that decision of state local finance officer or of county debt commission as to bond issue legality would be final was violative of this section as to rights of bondholders not represented. Morgan County v. Governor of Kentucky, 288 Ky. 532 , 156 S.W.2d 498, 1941 Ky. LEXIS 133 ( Ky. 1941 ).

This section gives inherent power to courts to scrutinize acts of administrative tribunals wherein the person or property rights of an individual have been adjudicated, and the determination as to whether a board has acted arbitrarily or capriciously is a question of law reviewable by the courts without restriction. Kendall v. Beiling, 295 Ky. 782 , 175 S.W.2d 489, 1943 Ky. LEXIS 337 ( Ky. 1943 ).

The appellate courts of Kentucky have the inherent power to oversee the actions of a county medical association in proceedings to expel one of its members; but in doing so the society is not bound to strict observance of its bylaws, nor to a trial-type hearing. Kirk v. Jefferson County Medical Soc., 577 S.W.2d 419, 1978 Ky. App. LEXIS 667 (Ky. Ct. App. 1978).

Where copy of ruling denying $20,000 consolidation race purse was delivered to horse’s groom instead of its owner or trainer, there may have been denial of due process, which, given the futility of appealing to the Harness Racing Commission, which only had authority to penalize the race track up to $5,000, must be remedied through resort to the courts under this section. Sobolewski v. Louisville Downs, Inc., 609 S.W.2d 943, 1980 Ky. App. LEXIS 401 (Ky. Ct. App. 1980).

Where the legislature has provided a procedure for appealing an administrative case to the Circuit Court, there is no difficulty in upholding its use; in the absence of that statutory grant, the right of an individual whose rights have been adjudicated by an administrative tribunal to resort to the courts is implicit in this section. Covington v. Tranter, 673 S.W.2d 744, 1984 Ky. App. LEXIS 527 (Ky. Ct. App. 1984).

A city, by ordinance, cannot limit the power of a court to review a decision made by an administrative agency of the city; thus, a section of a city ordinance, which purported to limit the time and scope of judicial review of a decision by the board of trustees of the city’s pension fund, was unconstitutional. Covington v. Tranter, 673 S.W.2d 744, 1984 Ky. App. LEXIS 527 (Ky. Ct. App. 1984).

5.Appeal.

Requirement that at least ten (10) persons complain before it became mandatory for public service commission to hear complaint did not deprive single subscriber of any right to due course of law, since he always had remedy of appeal. Smith v. Southern Bell Tel. & Tel. Co., 268 Ky. 421 , 104 S.W.2d 961, 1937 Ky. LEXIS 442 ( Ky. 1937 ).

Appeal to the quarterly court from an assessment or valuation of the county board of supervisors is a “remedy by due course of law” for injury done to the appellant in his lands or goods. McCracken Fiscal Court v. McFadden, 275 Ky. 819 , 122 S.W.2d 761, 1938 Ky. LEXIS 499 ( Ky. 1938 ).

Where Circuit Court ordered case filed away with leave to redocket, then overruled appellants’ motion to redocket, such order was intended as final disposition of case and thus reviewable on appeal, since otherwise appellants’ rights under this section would be denied. Campbell v. Hulett, 243 S.W.2d 608, 1951 Ky. LEXIS 1142 ( Ky. 1951 ).

Right of appeal is not incident of due process. Commonwealth, Dep't of Highways v. Fister, 376 S.W.2d 543, 1964 Ky. LEXIS 460 ( Ky. 1964 ).

6.Contracts.

Strength of every contract lay in right of promisee to rely upon security against its impairment under Const., § 19, and in right to resort to courts for redress of its violation under this section. Board of Education v. Louisville, 288 Ky. 656 , 157 S.W.2d 337, 1941 Ky. LEXIS 198 ( Ky. 1941 ).

7.Directed Verdicts.

When tenant’s lease expired, tenant refused to vacate, landlord brought forcible detainer action to gain possession, and directed verdict was entered for landlord after tenant’s opening statement, tenant was not thereby denied right under this section to access to courts and remedy by due course of law, having taken full advantage of such right. Tinsley v. Majorana, 240 S.W.2d 539, 1951 Ky. LEXIS 965 ( Ky. 1951 ).

Trial court properly considered the cost of labor in replacing a convertible top defendant damaged for purposes of establishing the amount of pecuniary loss necessary to convict defendant of criminal mischief under KRS 512.020 ; thus, denial of defendant’s motion for directed verdict of acquittal did not violate defendant’s due process rights. Brown v. Commonwealth, 250 S.W.3d 671, 2007 Ky. App. LEXIS 254 (Ky. Ct. App. 2007).

8.False Imprisonment.

Where plaintiff was unlawfully arrested and detained on charge of loitering, his action for false imprisonment could not be defended on ground he was suspected of other crimes, since under this section he was entitled to remedy for wrong he suffered notwithstanding he may have been wrongdoer in other respects. Wright & Taylor v. Leigh, 229 Ky. 32 , 16 S.W.2d 493, 1929 Ky. LEXIS 676 ( Ky. 1929 ).

9.Judges.

Adjudication of litigant’s rights by judge who was disqualified to hear and determine his case, due to blood relationship of such judge to party in interest, was violative of this section. Petrey v. Holliday, 178 Ky. 410 , 199 S.W. 67, 1917 Ky. LEXIS 768 ( Ky. 1917 ).

10.Judgments.

The mandatory requirement of “due process,” prescribed by both the federal and state constitutions, applies to divorce judgments as well as to all others. Wilburn v. Wilburn, 296 Ky. 781 , 178 S.W.2d 585, 1944 Ky. LEXIS 628 ( Ky. 1944 ).

Judgment entered against defendant enforcing foreign judgment on cognovit note executed to plaintiff did not deprive defendant of day in court under this section. Ellwanger v. Agostos, 255 S.W.2d 492, 1953 Ky. LEXIS 658 ( Ky. 1953 ).

11.Judicial Errors.

Action of trial court, in civil action, in rejecting competent evidence and admitting incompetent evidence, denying motion for subpoena duces tecum and making contemptuous remarks concerning plaintiff and her evidence, did not constitute denial of due process. O'Brien v. O'Brien, 294 Ky. 793 , 172 S.W.2d 595, 1942 Ky. LEXIS 3 ( Ky. 1942 ), cert. denied, 321 U.S. 767, 64 S. Ct. 518, 88 L. Ed. 1063, 1944 U.S. LEXIS 1104 (U.S. 1944).

Due process of law does not assure a litigant against a wrong interpretation of law, especially procedural, or against a judicial error in respect to the admission or exclusion of evidence. O'Brien v. O'Brien, 294 Ky. 793 , 172 S.W.2d 595, 1942 Ky. LEXIS 3 ( Ky. 1942 ), cert. denied, 321 U.S. 767, 64 S. Ct. 518, 88 L. Ed. 1063, 1944 U.S. LEXIS 1104 (U.S. 1944).

12.Jurisdiction.

State courts had jurisdiction of cases founded upon rights of action created by federal law, absent express denial thereof by United States congress or constitution, by virtue of this section. Harrison v. Herzig Bldg. & Supply Co., 290 Ky. 445 , 161 S.W.2d 908, 1942 Ky. LEXIS 422 ( Ky. 1942 ).

This section gave citizens privilege of access to state courts, subject to exercise of delegated powers of federal government, and individual employes could therefore bring common-law action in state court for recovery under agreement made pursuant to national labor relations act. Bridges v. F. H. McGraw & Co., 302 S.W.2d 109, 1957 Ky. LEXIS 173 ( Ky. 1957 ).

Because original jurisdiction of the Kentucky Supreme Court under Const., § 110(2)(a) should be sparingly exercised and generally only in cases where no other court has power to proceed, person bringing original action challenging District Court traffic division judge’s administrative order, which prohibited persons with outstanding arrest warrants or bench warrants from appearing before him until all previously ordered contempt fines had been paid, as violative of this section and SCR 1.040, should have sought relief in the trial court of general jurisdiction; claim was dismissed. Abernathy v. Nicholson, 899 S.W.2d 85, 1995 Ky. LEXIS 76 ( Ky. 1995 ).

Appellate court did not act sua sponte in regard to jurisdictional relief that was not requested by the parties in an appeal from the dismissal of a personal injury action in which a decedent’s attorney did not notify the trial court or the plaintiff of the decedent’s death until after the limitations period for revivor had passed, where due process was satisfied by the virtual representation provided by the decedent’s insurer, which acted as a real party in interest under CR 17.01, and the ethical issue presented was of great import to the Kentucky Bar. Harris v. Jackson, 192 S.W.3d 297, 2006 Ky. LEXIS 132 ( Ky. 2006 ).

Because a petition for declaratory judgment by the Board of Trustees of the Kentucky Retirement Systems presented an actual and serious controversy between the parties regarding whether former state university maintenance workers, who were employed by a private company that managed the university’s facilities, were still employees of the university and because the university was afforded no other avenue of relief, the petition was an appropriate means of settling the dispute, and the circuit court properly asserted jurisdiction over the matter. Ky. Ret. Sys. v. W. Ky. Univ., 2021 Ky. App. LEXIS 93 (Ky. Ct. App. Aug. 20, 2021).

13.Juvenile Proceedings.

The elements of due process must be met in juvenile proceedings in state courts, including the right to appointment of counsel. Workman v. Commonwealth, 429 S.W.2d 374, 1968 Ky. LEXIS 743 ( Ky. 1968 ).

14.Limitation of Actions.

Under this section and Ky. Const. §§ 54 and 241, subsection (14) of KRS 413.120 and KRS 413.135 could not be constitutionally applied to bar recovery by a third-party tenant from a negligent builder for personal injuries or wrongful death, since to do so would amount to destroying an existing common law right of action under the guise of limitation of actions. Saylor v. Hall, 497 S.W.2d 218, 1973 Ky. LEXIS 304 ( Ky. 1973 ). But see Carney v. Moody, 646 S.W.2d 40, 1982 Ky. LEXIS 331 ( Ky. 1982 ), overruled, Perkins v. Northeastern Log Homes, 808 S.W.2d 809, 1991 Ky. LEXIS 44 ( Ky. 1991 ).

In an action against materialmen who designed and furnished, in 1970, aluminum circuit wiring which allegedly caused a supper club fire in 1977, Const., §§ 14, 51 and 241 precluded application of the five-year statute of limitations of KRS 413.135 to bar suit against the defendants, as it would have extinguished a common-law right of action before the injury occurred and before the plaintiffs had any reasonable opportunity to seek redress in court. In re Beverly Hills Fire Litigation, 695 F.2d 207, 1982 U.S. App. LEXIS 17268 (6th Cir. Ky. 1982 ), cert. denied, 461 U.S. 929, 103 S. Ct. 2090, 77 L. Ed. 2d 300, 1983 U.S. LEXIS 4603 (U.S. 1983).

Where limitations statute of KRS 413.135 was enacted in 1966, and at that time the law of this state did not provide a cause of action by the vendee of real estate against the vendor on the basis of an implied warranty, there was no constitutional impediment to the application of the statute to damage sustained by vendee due to alleged breach of such warranty. Ball Homes, Inc. v. Volpert, 633 S.W.2d 63, 1982 Ky. LEXIS 247 ( Ky. 1982 ).

Since the law as it prevailed in 1891, when the state constitution was adopted, would not have afforded injured parties a remedy against a negligent builder or builders, Const., § 54 and this section prohibiting restrictions on personal injury or death recoveries, would not apply to bar operation of KRS 413.120 and 413.135 establishing a five-year statute of limitation on such actions. Although negligence was an established basis for a cause of action in 1891 it cannot be held that all rights of action based on negligence, especially of a type recognized at the time the limitations statutes were enacted in 1964 and 1966, are constitutionally protected since this would mean that every enlargement in the field of liability for negligent conduct, whether effected by statute or by court decision would assume constitutional status, beyond the power of either court or legislature to overrule or repeal it. Carney v. Moody, 646 S.W.2d 40, 1982 Ky. LEXIS 331 ( Ky. 1982 ), overruled, Perkins v. Northeastern Log Homes, 808 S.W.2d 809, 1991 Ky. LEXIS 44 ( Ky. 1991 ).

15.Malicious Prosecution.

Courts are open for enforcement of remedy of damages action in case of malicious prosecution. Newton v. French, 227 Ky. 686 , 13 S.W.2d 1016, 1929 Ky. LEXIS 947 ( Ky. 1929 ).

16.Mandamus.

This section could not be invoked for issuance of writ of mandamus compelling circuit judge to pass upon plaintiff’s demurrer, since there was no showing of such unreasonable or arbitrary failure or refusal of such judge as would amount to denial of justice. J. B. B. Coal Co. v. Halbert, 169 Ky. 687 , 184 S.W. 1116, 1916 Ky. LEXIS 741 ( Ky. 1916 ).

17.Personal Immunity.

Subsection (2) of KRS 95.830 , to extent it exempted from personal liability officers and employes of cities, was unconstitutional and void as denial of rights under this section and Ky. Const., § 54. Happy v. Erwin, 330 S.W.2d 412, 1959 Ky. LEXIS 195 ( Ky. 1959 ), overruled in part, Fireman's Fund Ins. Co. v. Government Emples. Ins. Co., 635 S.W.2d 475, 1982 Ky. LEXIS 270 ( Ky. 1982 ).

Although the equitable right to indemnity may have existed in 1891, an employer’s liability to indemnify a third party tortfeasor would not have existed; therefore, this section and Ky. Const., §§ 54 and 241 were not a bar to any attempt to limit indemnification. Capps v. Herman Schwabe, Inc., 628 F. Supp. 1353, 1986 U.S. Dist. LEXIS 29917 (W.D. Ky. 1986 ).

A statute which purports to extend immunity enjoyed by the governmental agency to the personal liability of its employees violates this section and Ky. Const., § 54 and would violate section 241, if a death were involved. The constitution prohibits the abolition or diminution of legal remedies for personal injuries. University of Louisville v. O'Bannon, 770 S.W.2d 215, 1989 Ky. LEXIS 12 ( Ky. 1989 ).

A statute which purports to extend sovereign immunity to the personal liability of its employees violates this section as well as Ky. Const., §§ 54 and 241. Blue v. Pursell, 793 S.W.2d 823, 1989 Ky. App. LEXIS 124 (Ky. Ct. App. 1989).

Adoption of KRS 411.148 is within the legislature’s police powers, and does not violate the jural rights doctrine under Ky. Const. §§ 14, 54, and 241, as the purpose of KRS 411.148 is to encourage the rendering of medical assistance to those in need by trained medical personnel by removing the fear of liability that accompanies rendering aid under the common law. Cook v. Taylor, 2008 Ky. App. LEXIS 264 (Ky. Ct. App. Aug. 22, 2008), review denied, ordered not published, 2009 Ky. LEXIS 212 (Ky. Aug. 19, 2009).

18.Personal Injuries.

If a nonresident motorist has been given the chance, pursuant to KRS 304.39-030 , to reject the limitations on his right to sue in tort, specified in KRS 304.39-060 , and has neglected to reject that limitation on his right to sue, this section and Ky. Const. § 54 are not violated by denying the motorist the right to sue to the same extent as that right is denied residents. Stinnett v. Mulquin, 579 S.W.2d 374, 1978 Ky. App. LEXIS 672 (Ky. Ct. App. 1978).

KRS 304.39-100 does not violate either this section or § 54 of the Constitution. Stinnett v. Mulquin, 579 S.W.2d 374, 1978 Ky. App. LEXIS 672 (Ky. Ct. App. 1978).

The construction of the Motor Vehicle Reparations Act, KRS 304.39-010 , so as to deny recovery by uninsured motorists of basic reparations benefits unless the damages exceed $10,000, does not violate Const., §§ 14 and 54. Stone v. Montgomery, 618 S.W.2d 595, 1981 Ky. App. LEXIS 262 (Ky. Ct. App. 1981).

This section and Const., § 54 are not violated by those provisions of the Motor Vehicle Reparations Act, specifically KRS 304.39-070 (3) and (4) and 304.39-140 (3), which limit a no-fault insurer’s right of recoupment against a third-party tort-feasor. Fireman's Fund Ins. Co. v. Government Emples. Ins. Co., 635 S.W.2d 475, 1982 Ky. LEXIS 270 ( Ky. 1982 ), overruled, Perkins v. Northeastern Log Homes, 808 S.W.2d 809, 1991 Ky. LEXIS 44 ( Ky. 1991 ).

Where the record supported an allegation of assault and battery, the injured police officer was entitled to have his day in court on those facts, and a directed verdict dismissing the police officer’s action as barred by KRS 304.39-060 , which partially abolishes certain tort actions, was in error. Griffin v. Thompson, 725 S.W.2d 27, 1987 Ky. App. LEXIS 442 (Ky. Ct. App. 1987).

The Fireman’s Rule, that as a general rule, the owner or occupant is not liable for having negligently created the fire but may be liable for failure to warn of unusual or hidden hazards or for actively negligent conduct, does not violate this section. Hawkins v. Sunmark Industries, Inc., 727 S.W.2d 397, 1986 Ky. LEXIS 323 ( Ky. 1986 ).

KRS 413.135 as amended in 1986 providing for limitations for actions for damages arising out of injury is constitutionally defective as special legislation and further attempts to amend it to overcome the constitutional defects fatally impale upon this section and Ky. Const., §§ 54 and 241. Perkins v. Northeastern Log Homes, 808 S.W.2d 809, 1991 Ky. LEXIS 44 ( Ky. 1991 ).

19.— Recovery for Occupational Disability.

Noncompensable injury should not be considered when determining the extent of a worker’s occupational disability for awarding benefits. The section’s limit on a worker’s claim to 425 weeks, rather than the duration of the injury, does not deprive the worker of constitutional rights of recovery for injury because, if the worker elects to proceed under it, the workers’ compensation system replaces all but intentional tort liability on the part of employers. Edwards v. Louisville Ladder, 957 S.W.2d 290, 1997 Ky. App. LEXIS 96 (Ky. Ct. App. 1997).

20.Prosecution.
21.— Under Void Law.

Notwithstanding a law providing that the validity of any city ordinance shall be tried by a writ of prohibition from the Circuit Court, an objection to an ordinance on ground of invalidity might be tried in prosecution to enforce it, since a judgment imposing a fine for violation of a void ordinance would deny a remedy in due course of law under this section. United Fuel & Gas Co. v. Commonwealth, 159 Ky. 34 , 166 S.W. 783, 1914 Ky. LEXIS 743 ( Ky. 1914 ).

22.Public Roads.

KRS 178.010 to 180.310 , concerning establishment of new roads, did not violate this section, since landowner had open court, ample remedy, and appellate review. Gratzer v. Gertisen, 181 Ky. 626 , 205 S.W. 782, 1918 Ky. LEXIS 599 ( Ky. 1918 ).

23.Remedies.

The provisions of KRS 267.010 to 267.570 (KRS 267.030 to 267.080 , 267.500 now repealed), 267.990 , denying remedies to landowner other than those provided therein, were invalid as violative of this section’s grant of remedy in due course of law. Williams v. Wedding, 165 Ky. 361 , 176 S.W. 1176, 1915 Ky. LEXIS 531 ( Ky. 1915 ).

24.— Punitive Damages.

KRS 411.184(1)(c), which changed the existing common law standard of gross negligence for awarding punitive damages and which conditions such an award on a finding that defendant acted “with a flagrant indifference to the rights of the plaintiff and with a subjective awareness that such conduct will result in human death or bodily harm,” violates the jural rights doctrine inherent in this section and Ky. Const., §§ 54 and 241. Williams v. Wilson, 972 S.W.2d 260, 1998 Ky. LEXIS 63 ( Ky. 1998 ).

25.Res Judicata.

Due process does not guarantee to a citizen more than one hearing in a court of competent jurisdiction for the protection of his rights growing out of the same facts. Black v. York, 300 Ky. 166 , 189 S.W.2d 599, 1945 Ky. LEXIS 568 ( Ky. 1945 ).

26.Rights of Actions.

This section, in conjunction with Const., §§ 54 and 241, inhibited legislature from abolishing rights of action for damages for death or injuries caused by negligence, and law attempting such abolition was thus unconstitutional and void. Ludwig v. Johnson, 243 Ky. 533 , 49 S.W.2d 347, 1932 Ky. LEXIS 159 ( Ky. 1932 ).

A driver or owner of an automobile does not preserve his constitutional right to sue for damages caused by another in an automobile accident where he does not have automobile liability insurance coverage at the time of the accident and where the provisions of the Motor Vehicle Reparations Act would otherwise apply. Probus v. Sirles, 569 S.W.2d 707, 1978 Ky. App. LEXIS 569 (Ky. Ct. App. 1978).

While the legislature clearly may not abolish a common-law right of action, by a statute of repose or otherwise, it is not constrained in fashioning new rights unknown at common law. Wright v. Oberle-Jordre Co., 910 S.W.2d 241, 1995 Ky. LEXIS 141 ( Ky. 1995 ).

Because the Medical Review Panel Act, Ky. Rev. Stat. Ann. § 216C.005 et seq., delays access to the courts of the Commonwealth for the adjudication of common-law claims, Ky. Rev. Stat. Ann. § 216C.005 et seq., violates Ky. Const. § 14. Commonwealth v. Claycomb, 566 S.W.3d 202, 2018 Ky. LEXIS 504 ( Ky. 2018 ).

27.Sale, Denial or Delay.

Statutory provision for payment in advance of fees allowed by law and incurred pending litigation did not violate this section’s guaranty of right and justice without sale, denial or delay. Harbison v. George, 228 Ky. 168 , 14 S.W.2d 405, 1929 Ky. LEXIS 497 ( Ky. 1929 ).

That portion of former law that provided for deferral of trial for two (2) years violated guarantee of this section to have justice administered without delay. Commonwealth ex rel. Tinder v. Werner, 280 S.W.2d 214, 1955 Ky. LEXIS 152 ( Ky. 1955 ).

Where the defendant in a prosecution for rape was arrested, indicted, convicted and sentenced within 11 days of the date of the crime, he was accorded his constitutional right to a speedy trial. Scott v. Commonwealth, 555 S.W.2d 623, 1977 Ky. App. LEXIS 797 (Ky. Ct. App. 1977).

28.Sanctions.

Where following verdict for defendant, defendant moved for award of attorney’s fees on ground that claim was meritless, motion was denied since to punish a litigant merely because a jury has found against him is to stifle the practice of law, the same as denying him access to the courts. Clark Equipment Co. v. Bowman, 762 S.W.2d 417, 1988 Ky. App. LEXIS 184 (Ky. Ct. App. 1988).

When sanctions were imposed against both clients and the attorney who represented them, there was no merit to their argument that they had been denied due process. The clients had been represented at every stage of the proceeding, and the attorney had been fully heard as to the propriety of the motions he filed. Hines v. Barnett Bank of Tampa, N.A., 2008 Ky. App. LEXIS 94 (Ky. Ct. App. Mar. 28, 2008), cert. denied, 557 U.S. 937, 129 S. Ct. 2867, 174 L. Ed. 2d 579, 2009 U.S. LEXIS 4839 (U.S. 2009).

29.Sovereign Immunity.

Sovereign immunity, as derived from Const., § 231, barred suit against school board for injury to pupil notwithstanding guarantee of remedy for injury by due course of law under this section. Wood v. Board of Education, 412 S.W.2d 877, 1967 Ky. LEXIS 445 ( Ky. 1967 ).

Sovereign immunity does not contradict this section, § 26 or any other parts of the State Constitution. Rooks v. University of Louisville, 574 S.W.2d 923, 1978 Ky. App. LEXIS 639 (Ky. Ct. App. 1978), overruled, Guffey v. Cann, 766 S.W.2d 55, 1989 Ky. LEXIS 4 ( Ky. 1989 ).

A statute which purports to extend sovereign immunity to the personal liability of its employees violates this section, and Ky. Const., §§ 54 and 241. Gould v. O'Bannon, 770 S.W.2d 220, 1989 Ky. LEXIS 15 ( Ky. 1989 ).

Three (3) physicians in a state university hospital had no special protection by means of sovereign immunity. Gould v. O'Bannon, 770 S.W.2d 220, 1989 Ky. LEXIS 15 ( Ky. 1989 ).

Decisions concerning when the sovereign immunity defense applies to a state entity have held that § 231, as a specific provision, overrides KY. Const. §§ 54, 241, and this section as general provisions, but only in suits which may be legitimately lassified as “brought against the Commonwealth.” Kentucky Center for Arts Corp. v. Berns, 801 S.W.2d 327, 1990 Ky. LEXIS 142 ( Ky. 1990 ).

Where sovereign immunity exists by reason of the Constitution under § 231, the General Assembly may extend or limit waiver as it sees fit, but where no constitutionally protected sovereign immunity exists the General Assembly cannot by statute create it or it is in violation of the rights preserved to citizens under Const. §§ 54, 241 and this section. Kentucky Center for Arts Corp. v. Berns, 801 S.W.2d 327, 1990 Ky. LEXIS 142 ( Ky. 1990 ).

KRS 67A.060 retention of sovereign immunity in urban county governments is not unconstitutional; sovereign immunity “trumps” jural rights because sovereign immunity predates the adoption of Kentucky’s first constitution. Lexington-Fayette Urban County Gov't v. Smolcic, 142 S.W.3d 128, 2004 Ky. LEXIS 182 ( Ky. 2004 ).

Property owners’ claims against a fire department and a city were dismissed because KRS 75.070 and 95.830(2) provided the fire department with sovereign immunity, the statutes were constitutional under Ky. Const. §§ 230 and 231, and the statutes did not violate the jural rights doctrine under Ky. Const. §§ 14, 54, and 241. Caneyville Volunteer Fire Dep't v. Green's Motorcycle Salvage, Inc., 286 S.W.3d 790, 2009 Ky. LEXIS 158 ( Ky. 2009 ).

30.Strict Liability.

An action for strict product liability was not established in Kentucky when its Constitution was adopted in 1891 and such an action is not preserved without limitation by this section and Ky. Const., §§ 26, 54, and 241. Therefore, KRS 139.125 , which is a bar to strict liability actions for blood and blood products transactions, does not violate these constitutional provisions. McKee v. Cutter Laboratories, Inc., 866 F.2d 219, 1989 U.S. App. LEXIS 722 (6th Cir. Ky. 1989 ).

31.Writs of Error.

Writ of coram nobis was part of due course of law insured by this section. Anderson v. Buchanan, 292 Ky. 810 , 168 S.W.2d 48, 1943 Ky. LEXIS 748 ( Ky. 1943 ). See Burch v. Lady, 249 S.W.2d 537, 1952 Ky. LEXIS 825 ( Ky. 1952 ).

32.Increase in Punishment.

A trial court may not impose a greater punishment in its order revoking probation than was fixed in the original judgment of conviction. Hord v. Commonwealth, 450 S.W.2d 530, 1970 Ky. LEXIS 456 ( Ky. 1970 ).

Due process does not contemplate that months or years later a defendant’s “trial” may be opened and a greater punishment imposed. Hord v. Commonwealth, 450 S.W.2d 530, 1970 Ky. LEXIS 456 ( Ky. 1970 ).

33.Open Trial.

While the same policy which calls for openness in criminal trials also calls for openness in pretrial proceedings, sequestration of the jury would not be a remedy to prevent the circulation throughout the community or state of prejudicial information from a pretrial proceeding, thus closing pretrial proceedings to the press and public may be proper in preventing jurors from considering inadmissible prejudicial evidence. Ashland Publishing Co. v. Asbury, 612 S.W.2d 749, 1980 Ky. App. LEXIS 424 (Ky. Ct. App. 1980).

News magazine was entitled to a writ of mandamus directing the Kentucky Court of Appeals to the provide appellate briefs in a confidential court proceeding under Casey’s Law, Ky. Rev. Stat. Ann. § 222.430 , because the individual anonymity protection embodied in Casey’s Law could be easily accommodated, and the Court of Appeals did not identify a compelling reason to justify non-disclosure of the legal arguments made before it. Cincinnati Enquirer v. Dixon, 638 S.W.3d 379, 2022 Ky. LEXIS 8 ( Ky. 2022 ).

34.Closure.

Before ordering closure the trial judge should consider the utility of other reasonable methods available to protect the rights of the accused short of closure, and at the time the motion for closure is made or heard any member of the public or press who is then present and objects must be given an opportunity to be heard on the question and if closure is ordered, specific findings should be made setting out the need for closure. Ashland Publishing Co. v. Asbury, 612 S.W.2d 749, 1980 Ky. App. LEXIS 424 (Ky. Ct. App. 1980).

Where evidence presented only by one side in murder trial is evidence which jury would hear at trial along with countervailing evidence, an accused’s right to fair trial would not be irreparably damaged by permitting the evidence to be disseminated before trial, thus, trial judge’s order closing all pretrial hearings involving evidentiary matters presented by only one side was too broad. Ashland Publishing Co. v. Asbury, 612 S.W.2d 749, 1980 Ky. App. LEXIS 424 (Ky. Ct. App. 1980).

Where trial judge ordered transcripts of all closed hearings be made available to the public after the jury was empaneled and sequestered or after trial, the public’s acquisition of information is delayed but not frustrated and, although there is slight damage to the commercial interest of the news media, the competing societal interests of fair trial and public access are met. Ashland Publishing Co. v. Asbury, 612 S.W.2d 749, 1980 Ky. App. LEXIS 424 (Ky. Ct. App. 1980).

35.— Pretrial Hearing.

A pretrial hearing should be closed to the public and press only after a determination is made that there is a substantial probability that the right of the accused to a fair trial or his other constitutional rights will be otherwise irreparably damaged; thus, if the evidence to be introduced at the pretrial hearing is found to be of a kind that would not be admissible at the trial itself, if this evidence is not otherwise already known generally to the press and public, and if the trial court reasonably believes that its dissemination to the public will probably irreparably damage the constitutional rights of the accused, then closure should be ordered. Ashland Publishing Co. v. Asbury, 612 S.W.2d 749, 1980 Ky. App. LEXIS 424 (Ky. Ct. App. 1980).

36.Speedy Trial.

There are four (4) factors to consider in a speedy trial challenge: the length of the delay, the reason for the delay, the timeliness of defendant’s assertion of the right, and the prejudice to the defendant. Pottinger v. Warden, Northpoint Training Center, 716 F. Supp. 1005, 1989 U.S. Dist. LEXIS 7965 (W.D. Ky. 1989 ), aff'd, 899 F.2d 1222 (6th Cir. Ky. 1990 ).

Although 21 months passed between the granting of persistent felony offender’s new trial and his retrial, under the circumstances of this case his speedy trial rights were not violated as, (1) since he was already serving an armed robbery sentence, there was no oppressive pretrial incarceration, (2) the delay did not impair his defense, and (3) the delay did not cause him undue anxiety or concern. Pottinger v. Warden, Northpoint Training Center, 716 F. Supp. 1005, 1989 U.S. Dist. LEXIS 7965 (W.D. Ky. 1989 ), aff'd, 899 F.2d 1222 (6th Cir. Ky. 1990 ).

Defendant’s right to a speedy trial was not violated when the court weighed the time during which he was involuntarily hospitalized in its analysis, because the time between the dismissal of charges and any new indictment was not considered. Commonwealth v. Miles, 816 S.W.2d 657, 1991 Ky. App. LEXIS 18 (Ky. Ct. App. 1991).

The period of time during which the defendant was not under indictment should not be considered in determining whether he has been denied a speedy trial where he has been confined to a mental hospital, not because of the criminal charges against him, but because he has been found to be mentally ill pursuant to KRS Chapter 202A. Commonwealth v. Miles, 816 S.W.2d 657, 1991 Ky. App. LEXIS 18 (Ky. Ct. App. 1991).

Where the delay in holding defendant’s trial was attributable solely to defendant he is precluded from claiming unreasonable delay. Tabor v. Commonwealth, 948 S.W.2d 569, 1997 Ky. App. LEXIS 43 (Ky. Ct. App. 1997).

37.Discharge of Employee.

Employer had the right to discharge an employee who brought a private negligence action on behalf of infant son against employer seeking damages from an incident which was not related to her employment. Boykins v. Housing Authority of Louisville, 842 S.W.2d 527, 1992 Ky. LEXIS 159 ( Ky. 1992 ).

Kentucky did not recognize a common law cause of action for retaliatory failure to hire; the public-policy-based exceptions to the at-will employment doctrine were narrow, no support for such a claim was provided by the First Amendment to the United States Constitution, Ky. Const., § 1, or Ky. Const., § 14, and a teacher’s proposed cause of action for an alleged retaliatory failure to hire did not meet the criteria for a judicial exception to the employment-at-will doctrine. Baker v. Campbell County Bd. of Educ., 180 S.W.3d 479, 2005 Ky. App. LEXIS 231 (Ky. Ct. App. 2005).

38.Liability for Damages.

Regardless of its purpose, KRS 411.155 , providing for the limiting of liability for damages resulting from criminal use of a firearm by another person, patently offends this section, as well as Const., § 54 which prevents the General Assembly from limiting the amount of damages recoverable. Waldon v. Housing Auth. of Paducah, 854 S.W.2d 777, 1991 Ky. App. LEXIS 146 (Ky. Ct. App. 1991).

39.Contractors.

Subcontractor’s argument that literal interpretation of KRS 45A.260 results in a violation of this section inasmuch as it cuts off its claim before it even arose was without merit as subcontractor had not been paid within a year after the formal completion date of the project had passed and familiarity with KRS 45A.260 would have informed subcontractor that time to file suit had commenced. Jasper Contracting Co. v. Commonwealth, 890 S.W.2d 296, 1994 Ky. App. LEXIS 149 (Ky. Ct. App. 1994).

40.Workers’ Compensation.

Since an employee’s right to occupational disease benefits is purely statutory in nature and does not fall under the ambit of this section, the General Assembly is free to limit the application of workers’ compensation benefits as it has in KRS 342.316(3)(b) to a legitimate state interest and require that an employee have a minimum exposure to the hazards of pneumoconiosis for a period of not less than two (2) years. Mullins v. Manning Coal Corp., 938 S.W.2d 260, 1997 Ky. LEXIS 1 (Ky.), cert. denied, 521 U.S. 1119, 117 S. Ct. 2511, 138 L. Ed. 2d 1014, 1997 U.S. LEXIS 4077 (U.S. 1997).

The 1996 amendment to KRS 342.320(2)(a), which limits the maximum attorney fee for representing an injured worker before an arbitrator to $2,000.00, is not arbitrary and capricious and, therefore, does not violate Sections 2, 14, 19, 28, 29, 109, and 116 of the Kentucky Constitution or Article 1, § 10 of the United States Constitution.Daub v. Baker Concrete, 25 S.W.3d 124, 2000 Ky. LEXIS 91 ( Ky. 2000 ).

Alternative dispute resolution (ADR) agreement did not violate KRS 342.277(3) by diminishing a workers’ compensation claimant’s rights or by denying her procedural due process and the same rights to income benefits and notice as provided in KRS ch. 342, because the claimant was aware of the ADR program and had ample time to obtain advice from counsel as to her rights, and she was deemed to have consented to it and was properly charged with knowledge of its terms. Spears v. Carhartt, Inc., 215 S.W.3d 1, 2006 Ky. LEXIS 126 ( Ky. 2006 ).

Dismissal of a motion to reopen a workers’ compensation claim arising from pneumoconiosis was proper because the worker had received no additional exposure to coal dust, and KRS 342.125(5)(a) required a worker seeking to reopen an award rendered under KRS 342.732 to make a preliminary showing that included a progression of pneumoconiosis, the development of respiratory impairment due the disease, and two (2) additional years of continuous exposure to the hazards of the disease in Kentucky; the additional-exposure requirement was not arbitrary or capricious, and did not violate the Kentucky Constitution. Bolin v. T & T Mining, 231 S.W.3d 130, 2007 Ky. LEXIS 171 ( Ky. 2007 ).

41.— Statute of Repose.

There is no constitutional impediment to repose provisions in the workers’ compensation scheme. Wright v. Oberle-Jordre Co., 910 S.W.2d 241, 1995 Ky. LEXIS 141 ( Ky. 1995 ).

42.Standing.

The concept of standing is implicit in Ky. Const. § 14, which contemplates access to the courts only for those litigants suffering an “injury,” and in Ky. Const. § 112(5), which limits the original jurisdiction of the Circuit Courts to “justiciable causes,” i.e., a controversy in which a present and fixed claim of right is asserted against one who has an interest in contesting it; thus, a Kentucky court does not have subject matter jurisdiction to decide a question unless there is a real or justiciable controversy. Garriga v. Sanitation Dist. No. 1, 2003 Ky. App. LEXIS 305 (Ky. Ct. App. Dec. 5, 2003).

43.Defamation.

Right to recover for injuries to reputation is embodied in Ky. Const., § 14, and the Court of Appeals of Kentucky expressly rejects the intra-corporate immunity rule as it applies to defamation actions; nevertheless, as the alleged defamatory statements were opinions and based on truthful facts, a trial court properly entered summary judgment dismissing defamation action. Biber v. Duplicator Sales & Serv., 155 S.W.3d 732, 2004 Ky. App. LEXIS 346 (Ky. Ct. App. 2004).

44.Issue Preclusion.

State due process claims relating to a former employee’s termination were not barred by issue preclusion because federal due process claims were not addressed by a federal court. However, due process only afforded prospective relief against the State. Miller v. Admin. Office of the Courts, 361 S.W.3d 867, 2011 Ky. LEXIS 171 ( Ky. 2011 ).

45.Waiver.

Trial court properly denied the nursing homes' motions for relief from judgments because, while arbitration was not only sanctioned, but indeed promoted, by the Kentucky Constitution, the arbitration agreements at issue were never validly formed where the powers vested in the attorneys-in-fact did not encompass the power to enter into an arbitration agreements regarding the claims of their decedents, the authority to waive the decedents' constitutional rights of access to the courts by court or jury and to appeal to a higher court were not explicitly set out in the power-of-attorney document, and the attorneys-in-fact were not authorized to enter into arbitration agreements on behalf of the wrongful death beneficiaries. Extendicare Homes, Inc. v. Whisman, 478 S.W.3d 306, 2015 Ky. LEXIS 1867 ( Ky. 2015 ), rev'd in part, vacated, 137 S. Ct. 1421, 197 L. Ed. 2d 806, 2017 U.S. LEXIS 2948 (U.S. 2017).

46.Recreational Use Statute.

Kentucky’s Recreational Use Statute was constitutional because it did not violate the jural rights doctrine. Poore v. 21st Century Parks, Inc., 619 S.W.3d 409, 2020 Ky. App. LEXIS 88 (Ky. Ct. App. 2020).

Cited:

Covington & Lexington Turnpike Road Co. v. Sanford, 164 U.S. 578, 17 S. Ct. 198, 41 L. Ed. 560, 1896 U.S. LEXIS 1891 (1896); McClurg v. Ingleheart, 17 Ky. L. Rptr. 913 , 33 S.W. 80 (1895); Spears v. Ray, 49 S.W. 535, 1899 Ky. LEXIS 428 , 20 Ky. L. Rptr. 1462 (1899); Beiser v. Scripps-McRae Pub. Co., 113 Ky. 383 , 24 Ky. L. Rptr. 259 , 68 S.W. 457, 1902 Ky. LEXIS 73 ( Ky. 1902 ); Louisville & N. R. Co. v. Greenbrier Distillery Co., 170 Ky. 775 , 187 S.W. 296, 1916 Ky. LEXIS 144 ( Ky. 1916 ); Yewell v. Board of Drainage Comm’rs, 187 Ky. 434 , 219 S.W. 1049, 1920 Ky. LEXIS 141 ( Ky. 1920 ); Stamp v. Commonwealth, 195 Ky. 404 , 243 S.W. 27, 1922 Ky. LEXIS 374 ( Ky. 1922 ); Workmen’s Compensation Board v. Abbott, 212 Ky. 123 , 278 S.W. 533, 1925 Ky. LEXIS 1088 , 47 A.L.R. 789 ( Ky. 1925 ); Hutcherson v. Louisville & N. R. Co., 247 Ky. 317 , 57 S.W.2d 12, 1933 Ky. LEXIS 394 ( Ky. 1933 ); Arbogast v. Weber, 249 Ky. 20 , 60 S.W.2d 144, 1933 Ky. LEXIS 477 ( Ky. 1933 ); Combs v. Combs, 249 Ky. 155 , 60 S.W.2d 368, 1933 Ky. LEXIS 491 , 89 A.L.R. 1095 (Ky. 1933); Sampson v. Morrison, 259 Ky. 555 , 82 S.W.2d 808, 1935 Ky. LEXIS 352 ( Ky. 1935 ); Bard v. Board of Drainage Comm’rs, 274 Ky. 491 , 118 S.W.2d 1013, 1938 Ky. LEXIS 292 ( Ky. 1938 ); Miller v. Price, 282 Ky. 611 , 139 S.W.2d 450, 1940 Ky. LEXIS 224 ( Ky. 1940 ); Fidelity & Columbia Trust Co. v. Reeves, 287 Ky. 522 , 154 S.W.2d 337, 1941 Ky. LEXIS 579 ( Ky. 1941 ); Runyon v. Smith, 308 Ky. 73 , 212 S.W.2d 521, 1948 Ky. LEXIS 843 ( Ky. 1948 ); Goodwin v. Louisville, 309 Ky. 11 , 215 S.W.2d 557, 1948 Ky. LEXIS 1013 ( Ky. 1948 ); Andrews v. Commonwealth, 312 Ky. 677 , 229 S.W.2d 311, 1950 Ky. LEXIS 718 ( Ky. 1950 ); Hampton v. Whaley, 313 Ky. 611 , 233 S.W.2d 273, 1950 Ky. LEXIS 949 ( Ky. 1950 ); Carter v. First American Nat’l Bank, 280 S.W.2d 519, 1955 Ky. LEXIS 170 ( Ky. 1955 ); Commercial Carriers, Inc. v. Kentucky Tax Com., 321 S.W.2d 42, 1959 Ky. LEXIS 256 ( Ky. 1959 ); Moss v. Jones, 342 S.W.2d 522, 1961 Ky. LEXIS 385 ( Ky. 1961 ); Idol v. Knuckles, 383 S.W.2d 910, 1964 Ky. LEXIS 64 ( Ky. 1964 ); McGuffey v. Hall, 557 S.W.2d 401, 1977 Ky. LEXIS 533 ( Ky. 1977 ); Abbott v. Southern Subaru Star, Inc., 574 S.W.2d 684, 1978 Ky. App. LEXIS 629 (Ky. Ct. App. 1978); Fireman’s Fund Ins. Co. v. Bennett, 635 S.W.2d 482, 1981 Ky. App. LEXIS 324 (Ky. Ct. App. 1981); Carr v. Cincinnati Bell, Inc., 651 S.W.2d 126, 1983 Ky. App. LEXIS 290 (Ky. Ct. App. 1983); In re Beverly Hills Fire Litigation, 583 F. Supp. 1163, 1984 U.S. Dist. LEXIS 20773 (E.D. Ky. 1984 ); M.J. Daly Co. v. Varney, 695 S.W.2d 400, 1985 Ky. LEXIS 226 ( Ky. 1985 ); Tabler v. Wallace, 704 S.W.2d 179, 1985 Ky. LEXIS 291 ( Ky. 1985 ); Massie v. Persson, 729 S.W.2d 448, 1987 Ky. App. LEXIS 444 (Ky. Ct. App. 1987); O’Brien v. Williamson Daily News, 735 F. Supp. 218, 1990 U.S. Dist. LEXIS 11395 (E.D. Ky. 1990 ); Wittmer v. Jones, 864 S.W.2d 885, 1993 Ky. LEXIS 138 ( Ky. 1993 ); Continental Ins. Co. v. Plummer, 904 S.W.2d 231, 1995 Ky. LEXIS 105 ( Ky. 1995 ); Horn by Horn v. Commonwealth, 916 S.W.2d 173, 1995 Ky. LEXIS 145 ( Ky. 1995 ); Garrison v. Leahy-Auer, 220 S.W.3d 693, 2006 Ky. App. LEXIS 151 (Ky. Ct. App. 2006).

Notes to Unpublished Decisions

1.Workers’ Compensation.

Unpublished decision: KRS 342.125(8), which limited the period in which an employee could reopen a claim after December 31, 1996, afforded the employee a reasonable four-year period after December 12, 1996 in which to assert a right to increased compensation, and did not violate Ky. Const. § 59(24), as the provision served a legitimate purpose. Thus, the employee was not deprived of a vested right to reopen her claim after more than four years had passed. Johnson v. Gans Furniture Indus., Inc., 114 S.W.3d 850, 2003 Ky. LEXIS 204 ( Ky. 2003 ).

Opinions of Attorney General.

Lewis, Jural Rights under Kentucky’s Constitution: Realities Grounded in Myth, 80 Ky. L.J. 953 (1992).

KRS 75.070 is unconstitutional as being in violation of Const., §§ 14, 54 and 241. OAG 71-82 .

KRS 95.830(2), in its attempt to exempt cities from liability, is unconstitutional. OAG 71-82 .

Assuming that the parties have agreed to a legislative scheme providing for the arbitration of a medical negligence case, this section would nonetheless subject the procedure to judicial review. OAG 75-543 .

Although a claimant can consent to a limitation of his rights under section 54 of the Const., proposed new legislation limiting malpractice judgments to $500,000, providing the claimant voluntarily accepts the provisions of the proposed act, raises constitutional questions under this section and sections 54 and 241 of the Const. since an agreement not to assert a medical negligence claim in court at all could be held void as against public policy and the courts probably would not apply, for constitutional reasons, any implied consent, implied acceptance or implied waiver doctrine in the area of medical negligence. OAG 75-633 .

Proposed new legislation requiring mandatory submission of malpractice claims to an administrative review board of experts as a prerequisite to filing suit would be unconstitutional under this section and possibly section 135 (repealed) of the Const. OAG 75-633 .

A proposed amendment to KRS 413.140 making the statute of limitations and discovery period for medical malpractice cases applicable to minors, with the statute commencing to run no later than a minor’s seventh birthday, would be unconstitutional in contravention of this section and sections 54 and 241 of the Const. OAG 75-633 .

Although this section requires that the courts be open and although the courts are included within the definition of public agency of subsection (1) of KRS 61.870 , any papers produced by judges or staff attorneys during the internal deliberative process of the appellate courts are of such a preliminary nature that they come within the exception of subsection (1)(g) and (h) of KRS 61.878 . OAG 78-262 .

To the extent KRS 411.148 relieves the persons named therein from liability arising from death or physical injury to persons caused by negligence, the statute is unconstitutional under Const., § 54 and, to the extent therefore, void. OAG 79-535 .

KRS 39.419 (now repealed) is unconstitutional under this section, Const., §§ 54 and 241, to the extent that it relieves the persons named therein of liability from negligently causing the death or injury to another person or the loss of or damage to the property of that other person. OAG 81-94 .

KRS 411.200 is unconstitutional and in violation of this section and §§ 54 and 241 of the Kentucky Constitution to the extent that it attempts to immunize from civil liability any act or omission resulting in damage or injury caused by a person who serves as a director, officer, volunteer or a trustee of a nonprofit organization. OAG 91-89 .

Research References and Practice Aids

Kentucky Bench & Bar.

Palmore, A Summary of Significant Decisions by the Supreme Court of Kentucky April 1982-April 1983, Vol. 47, No. 3, July 1983, Ky. Bench & Bar 14.

Stipanowich, Kentucky’s “No-Action” Statute: Recalled to Life?, Volume 51, No. 3, Summer 1987 Ky. Bench & B. 11.

Moore, Punitive Damages in Wrongful Death Actions: Is KRS 411.184 Constitutional?, Vol. 54, No. 3, Summer 1990, Ky. Bench & Bar 18.

Meier, State Board of Claims — Liability and Limitations, Vol. 58, No.1, Winter 1994, Ky. Bench & Bar 14.

Wiederstein, Firm Hearing and Trial Dates: A Partial Answer to Reducing Delay in the Courts, Vol. 70, No. 3, May 2006, Ky. Bench & Bar 18.

Alley, Kentucky Courts Have Blazed a Public Access Trail: An Examination of the Evolution of the Law with Respect to the Public’s Access to Court Proceedings, Vol. 76, No. 4, July 2012, Ky. Bench & Bar 24.

Kentucky Law Journal.

Comments, No-Fault Insurance in Kentucky — A Constitutional Analysis, 62 Ky. L.J. 590 (1973-74).

Comments, The Employee Defense Act: Wearing Down Sovereign Immunity, 66 Ky. L.J. 150 (1977-78).

Ausness, Water Use Permits in a Riparian State: Problems, 66 Ky. L.J. 191 (1977-1978).

Kentucky Law Survey, Ham, Corporations, 68 Ky. L.J. 495 (1979-1980).

Kentucky Law Survey, Grise, Torts, 71 Ky. L.J. 307 (1982-83).

Kentucky Law Survey, Fortune, Criminal Procedure, 71 Ky. L.J. 367 (1982-83).

Kentucky Law Survey, Harned, Workers’ Compensation, 72 Ky. L.J. 479 (1983-84).

Snell, A Plea for a Comprehensive Liability Statute, 74 Ky. L.J. 521 (1985-86).

Rogers, Apportionment in Kentucky After Comparative Negligence, 75 Ky. L.J. 103 (1986-87).

Lewis, Jural Rights under Kentucky’s Constitution: Realities Grounded in Myth, 80 Ky. L.J. 953 (1992).

Hamm, The Reemergence of the Sovereign Immunity Doctrine in Kentucky, 87 Ky. L.J. 439 (1998-99).

Note, Official Immunity in Kentucky: The New Standard Under Yanero v. Davis, 90 Ky. L.J. 635 (2001-02).

Article: Foreword: Restoring Luster to the Palladium of Freedom, 100 Ky. L.J. 729 (2011/2012).

Article: Symposium on State Court Funding: Keynote Address, 100 Ky. L.J. 743 (2011/2012).

Article: Judicial Independence and the State Court Funding Crisis, 100 Ky. L.J. 755 (2011/2012).

Article: No Exit: The Financial Crisis Facing State Courts, 100 Ky. L.J. 785 (2011/2012).

Article: Do We Have 18th Century Courts for the 21st Century?, 100 Ky. L.J. 833 (2011/2012).

Article: State Courts and Public Justice: New Challenges, New Choices, 100 Ky. L.J. 857 (2011/2012).

Northern Kentucky Law Review.

Ziegler, The Kentucky Open Records Act: A Preliminary Analysis, 7 N. Ky. L. Rev. 7 (1980).

Wintersheimer, State Constitutional Law, 20 N. Ky. L. Rev. 591 (1993).

Busald and Tankersley, Survey of Kentucky Tort Law: 1991-92, 20 N. Ky. L. Rev. 687 (1993).

Wintersheimer, State Constitutional Law Survey, 21 N. Ky. L. Rev. 257 (1994).

Hawkins and MacGillivray, A Summary of Kentucky Employment Law Decisions, 21 N. Ky. L. Rev. 357 (1994).

Elder, Kentucky Defamation and Privacy Law — The Last Decade, 23 N. Ky. L. Rev. 231 (1996).

Edmondson and Rylee, Termination of the Tenured Teacher in Kentucky: Does K.R.S. 161.790

Litigation Finance Issue: Article: David vs. Goliath Patent Cases: A Search for the Most Practical Mechanism of Third Party Litigation Financing for Small Plaintiffs, 38 N. Ky. L. Rev. 605 (2011).

Litigation Finance Issue: Article: Third-Party Financing of Litigation, 38 N. Ky. L. Rev. 673 (2011).

Litigation Finance Issue: Note: Litigation Financing in the U.S., the U.K., and Australia: How The Industry Has Evolved In Three Countries, 38 N. Ky. L. Rev. 687 (2011).

Treatises

Petrilli, Kentucky Family Law, Suits for Breach of Marriage Promise, § 3.6.

§ 15. Laws to be suspended only by General Assembly.

No power to suspend laws shall be exercised unless by the General Assembly or its authority.

NOTES TO DECISIONS

1.Application.

Because of the General Assembly’s exclusive authority with respect to public funds and the budget, this section applies to statutes which can be affected by the budget bill of the Commonwealth; provisions in the budget document which effectively suspend and modify existing statutes which carry financial implication certainly are consistent with the General Assembly’s duties and responsibilities. Commonwealth ex rel. Armstrong v. Collins, 709 S.W.2d 437, 1986 Ky. LEXIS 262 ( Ky. 1986 ).

Trial court did not err in the state employees’ lawsuit seeking declaratory and injunctive relief from the suspension of a statute that directed that they get at least a five percent annual raise in finding that the General Assembly could retroactively suspend that statute, KRS 18A.355 ; although the governor, the defendant in the lawsuit, did not have the power to suspend statutes, the General Assembly did have it and could exercise it because it had manifested an intent to do so. Baker v. Fletcher, 204 S.W.3d 589, 2006 Ky. LEXIS 153 ( Ky. 2006 ).

Transfers of millions of dollars from a workers’ compensation special fund to the general fund and to a mining budget were invalid transfers because public funds and private contributions were commingled, could not be differentiated, and could not be considered a valid suspension of the operation of a statute under Ky. Const. § 15 and Ky. Const. § 51, but the Kentucky Legislature could properly suspend an annual appropriation to the Kentucky Workers’ Compensation Funding Commission and the Workers’ Compensation Benefit Reserve Fund to the extent the funds had yet to be transferred to them. Beshear v. Haydon Bridge Co., 304 S.W.3d 682, 2010 Ky. LEXIS 8 ( Ky. 2010 ).

Because the Kentucky General Assembly lawfully passed legislation which amended the power of the Governor of the Commonwealth of Kentucky to respond to emergencies, the Governor’s complaint did not present a substantial legal question that necessitated staying the effectiveness of the legislation, and the equities favored implementation of the legislation pending an adjudication of the constitutionality of the legislation, the circuit court abused its discretion by issuing a temporary injunction against implementation of the legislation. Cameron v. Beshear, 2021 Ky. LEXIS 240 (Ky. Aug. 21, 2021).

2.Administrative Orders.

This section applies to valid administrative orders which have same legal force as laws. Gering v. Brown Hotel Corp., 396 S.W.2d 332, 1965 Ky. LEXIS 113 ( Ky. 1965 ).

Where injunction issued to postpone enforcement of minimum wage order, effective date of such order was left unchanged, since otherwise result would have been suspension of law in violation of this section. Gering v. Brown Hotel Corp., 396 S.W.2d 332, 1965 Ky. LEXIS 113 ( Ky. 1965 ).

3.Appropriation.

The General Assembly is permitted pursuant to KRS 446.085 (now repealed) to effectively eliminate the efficacy of existing statutes through the reduction or elimination of an appropriation, subject only to the finding of a financial emergency and further subject to the time limitation of the budgetary period, and this statutory scheme is clearly within the constitutional powers of the General Assembly, under this section and Const., § 230. Commonwealth ex rel. Armstrong v. Collins, 709 S.W.2d 437, 1986 Ky. LEXIS 262 ( Ky. 1986 ).

4.Ordinances.

Ordinance which prohibited for two (2) years erection, construction, alteration or use of property or buildings for business or industrial purposes in residential areas without safety board’s approval was not unconstitutional as suspending city’s building laws. Fowler v. Obier, 224 Ky. 742 , 7 S.W.2d 219, 1928 Ky. LEXIS 677 ( Ky. 1928 ).

5.Probation.

Former law under which Circuit Courts could postpone sentence and probate defendant, was constitutional under this section as logically implied affirmation of power of general assembly to authorize such courts to suspend law requiring judgment without unreasonable delay. Lovelace v. Commonwealth, 285 Ky. 326 , 147 S.W.2d 1029, 1941 Ky. LEXIS 386 ( Ky. 1941 ).

6.Executive Orders.

Governor of Kentucky properly issued an executive order, which made several temporary changes to various state education boards, because the boards fell within the ambit of the Governor’s statutory authority to temporarily reorganize boards outside of the legislative session. Furthermore, the Governor’s power did not violate the suspension provision of the Kentucky Constitution because the Governor possessed the Kentucky General Assembly’s authority to do so by virtue of the General Assembly having so stated. Commonwealth ex rel. Beshear v. Bevin, 575 S.W.3d 673, 2019 Ky. LEXIS 214 ( Ky. 2019 ).

Cited in:

Covington & Lexington Turnpike Road Co. v. Sanford, 164 U.S. 578, 17 S. Ct. 198, 41 L. Ed. 560, 1896 U.S. LEXIS 1891 (1896); In re Sparks, 267 Ky. 93 , 101 S.W.2d 194, 1936 Ky. LEXIS 757 ( Ky. 1936 ).

Research References and Practice Aids

Kentucky Law Journal.

Wendelsdorf, Constitutional Law — The Power of a Governor to Proclaim Martial Law and Use State Military Forces to Suppress Campus Demonstrations, 59 Ky. L.J. 547 (1970).

§ 16. Right to bail — Habeas corpus.

All prisoners shall be bailable by sufficient securities, unless for capital offenses when the proof is evident or the presumption great; and the privilege of the writ of habeas corpus shall not be suspended unless when, in case of rebellion or invasion, the public safety may require it.

NOTES TO DECISIONS

1.Construction.

Where a sufficient public interest requires that a person be confined under the police power for a cause other than a criminal charge, the right of bail is not guaranteed by this section and a juvenile held in custody pending the determination of proceedings against him in juvenile court is not a “prisoner” within the meaning of this section. Baker v. Smith, 477 S.W.2d 149, 1971 Ky. LEXIS 59 ( Ky. 1971 ).

2.Bail.
3.— Capital Offense.
4.— — Appeal.

Where, from a review of the record, it appears there is room for a difference of opinion among reasonable men as to whether “the proof is evident or the presumption great,” a finding of the trial court authorizing the denial of bail will not be disturbed. Finn v. McClard, 418 S.W.2d 764, 1967 Ky. LEXIS 239 ( Ky. 1967 ).

5.— — Burden of Proof.

On motion for bail in capital offense, presumption of innocence was with defendant at all times, and commonwealth had burden of showing proof of guilt to be evident or presumption of guilt to be great. Commonwealth v. Stahl, 237 Ky. 388 , 35 S.W.2d 563, 1931 Ky. LEXIS 618 ( Ky. 1931 ). See Burton v. Commonwealth, 307 Ky. 825 , 212 S.W.2d 310, 1948 Ky. LEXIS 834 ( Ky. 1948 ).

In capital case, commonwealth had burden of proving that defendant was not entitled to bail. Day v. Caudill, 300 S.W.2d 45, 1957 Ky. LEXIS 439 ( Ky. 1957 ). See Young ex rel. Boone v. Russell, 332 S.W.2d 629, 1960 Ky. LEXIS 165 ( Ky. 1960 ); Thacker v. Asher, 394 S.W.2d 588, 1965 Ky. LEXIS 191 ( Ky. 1965 ).

In establishing whether or not a defendant charged with the commission of a capital offense is bailable, the burden is on the commonwealth to show that the “proof is evident or the presumption is great,” and the judge who conducts the hearing is vested with a sound discretion in determining whether or not that burden has been sustained. Marcum v. Broughton, 442 S.W.2d 307, 1969 Ky. LEXIS 263 ( Ky. 1969 ).

6.— — Evidence.

When evidence discloses that a homicide is utterly without legal justification, bail may be denied on the ground that the offense is a nonbailable one. Hacker v. Commonwealth, 288 Ky. 222 , 155 S.W.2d 867, 1941 Ky. LEXIS 84 ( Ky. 1941 ).

The judge, on the hearings of both a motion for bail and in habeas corpus actions, is vested with a sound discretion in determining whether or not the evidence, under either constitutional or statutory law, developed a case where the proof is evident or the presumption great. Wells v. Commonwealth, 299 Ky. 51 , 184 S.W.2d 223, 1944 Ky. LEXIS 1018 ( Ky. 1944 ).

Where evidence indicated that person charged with murder was at most guilty of voluntary manslaughter, he should have been admitted to bail. Burton v. Commonwealth, 307 Ky. 825 , 212 S.W.2d 310, 1948 Ky. LEXIS 834 ( Ky. 1948 ).

Defendant who was present at time and place of murder, drank heavily most of day, and orally confessed to such murder before his arrest was not entitled to bail. Pool v. Commonwealth, 308 Ky. 107 , 213 S.W.2d 603, 1948 Ky. LEXIS 867 ( Ky. 1948 ).

Bail was properly denied where witness placed accused, an itinerant gambler, at the scene of the killing and testified to an argument between accused and the deceased persons. Duke v. Smith, 253 S.W.2d 242, 1952 Ky. LEXIS 1070 ( Ky. 1952 ).

In a habeas corpus proceeding brought by an accused who had been indicted for murder seeking to secure his release from jail upon reasonable bail, where the facts did not constituted evident proof of the accused’s guilt nor create a great presumption of his guilt, the accused was entitled to be released on reasonable bail. Damron v. Coleman, 270 S.W.2d 170, 1954 Ky. LEXIS 1024 ( Ky. 1954 ).

Proof was insufficient to show Circuit Court “acted illegally” or “without reason or upon reasons insufficient in law” in denying bail for rape defendant. Lewis v. Ball, 299 S.W.2d 810, 1957 Ky. LEXIS 431 ( Ky. 1957 ).

Where defendants and several other witnesses gave testimony indicating that defendants had shot deceased after being shot at and wounded by deceased, the defendant should have been granted bail. Day v. Caudill, 300 S.W.2d 45, 1957 Ky. LEXIS 439 ( Ky. 1957 ).

Eyewitness testimony of murder was given great weight and created presumption of guilt sufficiently strong to justify denial of bail. Holland v. Asher, 314 S.W.2d 947, 1958 Ky. LEXIS 322 ( Ky. 1958 ).

Where denial of bail was supported only by hearsay testimony given by official transcript of testimony given by eyewitness before grand jury, such denial was unsupported by competent evidence and was thus error. Young ex rel. Boone v. Russell, 332 S.W.2d 629, 1960 Ky. LEXIS 165 ( Ky. 1960 ).

Where there was testimony by a companion of deceased that defendant had shot deceased and testimony from police officers who were following defendants at the time of the shooting that defendant was alone, the evidence was sufficient to deny bail. Schirmer v. Commonwealth, 354 S.W.2d 748, 1962 Ky. LEXIS 49 ( Ky. 1962 ).

Where the defendants were identified by the victim of an armed robbery and two other persons, one of whom was with the defendants and heard them plan the robbery, the trial court was justified in refusing bail and denying their writs for habeas corpus. Lycans v. Burke, 453 S.W.2d 8, 1970 Ky. LEXIS 292 ( Ky. 1970 ).

7.— — Mistrial.

Denial of bail to defendant after mistrial was not violative of this section, since in capital case matter of bail was in discretion of court and court had transcript of first trial for murder before it. Poyner v. Commonwealth, 274 Ky. 813 , 120 S.W.2d 649, 1938 Ky. LEXIS 347 ( Ky. 1938 ).

8.— — Proof or Presumption.

This section was construed to mean proof of guilt was evident or presumption of guilt was great. Day v. Caudill, 300 S.W.2d 45, 1957 Ky. LEXIS 439 ( Ky. 1957 ). See Brooks v. Gaw, 346 S.W.2d 543, 1961 Ky. LEXIS 320 ( Ky. 1961 ).

Trial judge had sound discretion in deciding whether there existed sufficient proof or presumption of guilt of capital offense to deny bail. Brooks v. Gaw, 346 S.W.2d 543, 1961 Ky. LEXIS 320 ( Ky. 1961 ). See Schirmer v. Commonwealth, 354 S.W.2d 748, 1962 Ky. LEXIS 49 ( Ky. 1962 ); Nickell v. Kelly, 357 S.W.2d 856, 1962 Ky. LEXIS 149 ( Ky. 1962 ).

One charged with a capital offense is entitled to bail unless the proof of guilt is evident or the presumption of guilt is great. Marcum v. Broughton, 442 S.W.2d 307, 1969 Ky. LEXIS 263 ( Ky. 1969 ).

9.— Change of Venue.

Where the defendant had been released on bond but, after a change of venue, the judge of the court to which venue was changed, on his own motion, held a hearing and revoked the bond, although there was evidence that the offense might have been committed in self-defense, the defendant was entitled to bail in a reasonable amount not to exceed the amount originally fixed. Marcum v. Broughton, 442 S.W.2d 307, 1969 Ky. LEXIS 263 ( Ky. 1969 ).

10.— Extradition.

Defendant who was detained for hearing of guilt preliminary to extradition under federal law was entitled to bail under this section, since such hearing was proceeding under state law. Commonwealth ex rel. Jewell v. Roberts, 212 Ky. 351 , 279 S.W. 330, 1926 Ky. LEXIS 143 ( Ky. 1926 ).

11.— Fees for Bond.

Law that provided for fees of bond recorders was not violative of this section. Buechel v. Field, 202 Ky. 298 , 259 S.W. 353, 1924 Ky. LEXIS 701 ( Ky. 1924 ).

12.— Juvenile Court Proceedings.

The right of bail is not guaranteed by this section to juveniles in custody pending determination of proceedings against them in juvenile court, but this does not preclude their release pending hearing. Baker v. Smith, 477 S.W.2d 149, 1971 Ky. LEXIS 59 ( Ky. 1971 ).

13.— Post-Conviction.

This section and Const., § 17, referring to bail, relate to bail before trial and, after conviction, one has no constitutional right to bail as the matter is then controlled by law. Braden v. Lady, 276 S.W.2d 664, 1955 Ky. LEXIS 439 ( Ky. 1955 ).

14.— Revocation.

Bail previously allowed may not be revoked without reason for the revocation. Marcum v. Broughton, 442 S.W.2d 307, 1969 Ky. LEXIS 263 ( Ky. 1969 ).

15.Habeas Corpus.
16.—Process.

Writ of habeas corpus was not the correct procedure for defendants, convicted of rape and sentenced to life without parole, to utilize in attempt to achieve commutation of sentence based on amendment to applicable sentencing statute which eliminated requirement of no parole. Rather, to be entitled to writ, the petitioner must be seeking immediate relief from custody and appellants merely requested right to be allowed to apply for parole. Fryrear v. Parker, 920 S.W.2d 519, 1996 Ky. LEXIS 1 ( Ky. 1996 ).

RCr 11.42(10) is not a substantive law that restricted a petitioner’s access to habeas corpus relief pursuant to KRS 419.020 , in violation of Ky. Const. §§ 16, 26 and 27; rather, it exists simultaneously. Commonwealth v. Carneal, 274 S.W.3d 420, 2008 Ky. LEXIS 294 ( Ky. 2008 ), cert. denied, 558 U.S. 906, 130 S. Ct. 274, 175 L. Ed. 2d 184, 2009 U.S. LEXIS 5932 (U.S. 2009).

While persons incarcerated for crimes in Kentucky are generally required to challenge and seek review of the judgments against them by means of the direct and collateral procedures outlined in case law, an exception exists for prisoners who can show that those procedures are inadequate. They will be deemed inadequate where a summary proceeding will suffice to show that the Commonwealth's detention of the prisoner is unlawful because the judgment against him or her was void ab initio. Muhammad v. Ky. Parole Bd., 468 S.W.3d 331, 2015 Ky. LEXIS 1751 ( Ky. 2015 ).

17.— Statutes.

KRS 419.020 is a codification of the constitutional right of an individual to petition a court to determine the legality of his detention under U.S. Const. art. I § 9, and Ky. Const., § 16. M.M. v. Williams, 113 S.W.3d 82, 2003 Ky. LEXIS 145 ( Ky. 2003 ).

Cited in:

Long v. Hamilton, 467 S.W.2d 139, 1971 Ky. LEXIS 358 ( Ky. 1971 ); Gall v. Commonwealth, 607 S.W.2d 97, 1980 Ky. LEXIS 291 ( Ky. 1980 ); Yancey v. Carroll County, 876 F.2d 1238, 1989 U.S. App. LEXIS 4731 (6th Cir. 1989); Commonwealth v. Carman, 2015 Ky. LEXIS 66 (Feb. 19, 2015).

Opinions of Attorney General.

A court rule or order providing that any bail set by a juvenile court in a multi-district judicial district remain the same, or be a fixed amount, or the defendant remain in jail, if bound over to the Circuit Court would be invalid under this section which guarantees that the constitutional right to bail be afforded all defendants without delay, requiring a court hearing and determination in each individual case. OAG 72-703 .

Research References and Practice Aids

Cross-References.

Credit for time spent in custody, KRS 532.120 .

Habeas corpus, KRS ch. 419.

No bail in contempt cases, KRS 432.270 .

Kentucky Law Journal.

Pitt, Criminal Law — Bail — Right to Bail in Capital Cases After Prior Revocation, 58 Ky. L.J. 579 (1970).

Gillig, Kentucky Post-Conviction Remedies and the Judicial Development of Kentucky Rule of Criminal Procedure 11.42, 83 Ky. L.J. 265 (1994-95).

§ 17. Excessive bail or fine, or cruel punishment, prohibited.

Excessive bail shall not be required, nor excessive fines imposed, nor cruel punishment inflicted.

NOTES TO DECISIONS

Analysis

1.In General.

To violate this section, the penalties must be manifestly excessive and cruel. Harper v. Commonwealth, 93 Ky. 290 , 19 S.W. 737, 14 Ky. L. Rptr. 163 , 1892 Ky. LEXIS 78 ( Ky. 1892 ). See Fry v. Commonwealth, 166 Ky. 670 , 179 S.W. 604, 1915 Ky. LEXIS 750 ( Ky. 1915 ); Lakes v. Goodloe, 195 Ky. 240 , 242 S.W. 632, 1922 Ky. LEXIS 342 ( Ky. 1922 ).

Department’s failure to provide an individualized treatment plan to enable an inmate to qualify for the Sex Offender Treatment Program (SOTP) was not cruel and unusual punishment where the inmate was found to have been a “non-admitter” and for that reason denied admission to the full SOTP. Seymour v. Colebank, 179 S.W.3d 886, 2005 Ky. App. LEXIS 168 (Ky. Ct. App. 2005).

2.Application.

This section has reference to the law fixing the punishment, not to a sentence assessed within the statutory limits. Bradley v. Commonwealth, 288 Ky. 416 , 156 S.W.2d 469, 1941 Ky. LEXIS 123 ( Ky. 1941 ).

This section applied to amount and duration of punishment as well as form or means. Weber v. Commonwealth, 303 Ky. 56 , 196 S.W.2d 465, 1946 Ky. LEXIS 757 ( Ky. 1946 ).

This section applied to legislative as well as judicial action. Weber v. Commonwealth, 303 Ky. 56 , 196 S.W.2d 465, 1946 Ky. LEXIS 757 ( Ky. 1946 ).

Constitution, § 16 and this section, referring to bail, relate to bail before trial and, after conviction, one has no constitutional right to bail as the matter is then controlled by law. Braden v. Lady, 276 S.W.2d 664, 1955 Ky. LEXIS 439 ( Ky. 1955 ).

3.Bail.

Where the defendant had been released on bond but, after a change of venue, the judge of the court to which venue was changed, on his own motion, held a hearing and revoked the bond, although there was evidence that the offense might have been committed in self-defense, the defendant was entitled to bail in a reasonable amount not to exceed the amount originally fixed. Marcum v. Broughton, 442 S.W.2d 307, 1969 Ky. LEXIS 263 ( Ky. 1969 ).

4.— Excessive.

Where a man who had a long history of law violations and a reputation as the principal supplier of narcotics in city was charged with unlawful possession and sale of heroin, a conviction on which would result in severe penalties, and who was a married man and a father who had lived most of his lifetime in the same county, was unemployed, and did not have sufficient resources to post a large bail, bail set in the amount of $150,000 was excessive. Long v. Hamilton, 467 S.W.2d 139, 1971 Ky. LEXIS 358 ( Ky. 1971 ).

5.— Habeas Corpus.

Defendant who was held under excessive bail in violation of this section could properly petition for writ of habeas corpus. Adkins v. Regan, 313 Ky. 695 , 233 S.W.2d 402, 1950 Ky. LEXIS 961 ( Ky. 1950 ).

6.— Peace Bonds.

Peace bond of $5,000, required of husband on charge of wife beating, constituted excessive bail in violation of this section. Adkins v. Regan, 313 Ky. 695 , 233 S.W.2d 402, 1950 Ky. LEXIS 961 ( Ky. 1950 ).

7.Common Law.

In the case of common-law offenses, where the law does not prescribe any maximum penalty, the jury may not act arbitrarily but must be controlled by the nature and enormity of the offense, and an excessive verdict, apparently given under the influence of passion or prejudice, will be set aside; but the Court of Appeals has no right to say a penalty is cruel and unconstitutional unless it clearly and manifestly so appears. Weber v. Commonwealth, 303 Ky. 56 , 196 S.W.2d 465, 1946 Ky. LEXIS 757 ( Ky. 1946 ).

8.Fines.

Law providing for fine upon railroad company of not less than $100 nor more than $500 for the offense of failing to give certain signals at highway crossings was not unconstitutional as imposing an excessive fine. Louisville, H. & S. L. R. Co. v. Commonwealth, 104 Ky. 35 , 46 S.W. 207, 20 Ky. L. Rptr. 371 , 1898 Ky. LEXIS 127 ( Ky. 1898 ).

A fine of $5,000 imposed by a jury on finding a party to an action guilty of a criminal contempt arising from his having corruptly and with intent to obstruct the administration of justice procured, by bribes and threats, witnesses for the adverse party, who had been summoned to testify in the action, to leave the state pending the action is not excessive within this section. French v. Commonwealth, 97 S.W. 427, 30 Ky. L. Rptr. 98 , 1906 Ky. LEXIS 366 (Ky. Ct. App. 1906).

Excessive fines are forbidden by this section and a fine of $1,500 for obstructing travel over a ford in road is so excessive as to warrant granting a new trial. Louisville & N. R. Co. v. Commonwealth, 231 Ky. 554 , 21 S.W.2d 981, 1929 Ky. LEXIS 323 ( Ky. 1929 ).

Where city created public nuisance by allowing sewage backup into residential basements, $1,500 fine therefor was excessive. Ludlow v. Commonwealth, 247 Ky. 166 , 56 S.W.2d 958, 1933 Ky. LEXIS 367 ( Ky. 1933 ).

Criminal penalties of junkyard act (KRS 177.905 to 177.990 ) were not excessive in view of nature of offense and necessity for requiring compliance. Jasper v. Commonwealth, 375 S.W.2d 709, 1964 Ky. LEXIS 431 ( Ky. 1964 ).

When faced with a KRS 514.130(1) issue, concerning forfeiture of certain property, a finding of fact must first be made as to whether the property in question was used in commission of the offense or in the transportation of stolen property, and if the owner raises a constitutional defense to the forfeiture, then an additional finding must be made using the guidelines set out in Solem v. Helm, 463 U.S. 277, 103 S. Ct. 3001, 77 L. Ed. 2d 637, 1983 U.S. LEXIS 93 (1983) in order to conclude whether application of the forfeiture statute would violated the “excessive fines” clauses of this section and the 8th. Amendment of the U.S. Constitution and such findings will not be set aside on appeal unless clearly erroneous. Commonwealth v. Fint, 940 S.W.2d 896, 1997 Ky. LEXIS 28 ( Ky. 1997 ).

Where the trial court did not conduct any forfeiture proceedings where defendant was afforded proper notice and an opportunity to be heard, an analysis of the excessiveness of forfeiture was premature. Harbin v. Commonwealth, 121 S.W.3d 191, 2003 Ky. LEXIS 172 ( Ky. 2003 ), modified in part, 2003 Ky. LEXIS 296 (Ky. Dec. 18, 2003), modified in part, 2003 Ky. LEXIS 301 (Ky. Dec. 18, 2003).

9.—Not Excessive.

In prosecution for four (4) counts of felony theft, forfeiture of truck valued at $1,874, which was used in commission or furtherance of the offenses, was not greatly disproportionate to the offense of theft of property valued at $18,000, nor more punitive than penalties imposed upon other convicted criminals in Kentucky, nor more more punitive that penalties imposed for the commission of similar offenses in other jurisdictions, and thus such forfeiture did not violate the “excessive fines” clause of this section nor the 8th Amendment of the U.S. Constitution.Commonwealth v. Fint, 940 S.W.2d 896, 1997 Ky. LEXIS 28 ( Ky. 1997 ).

Since the damages awarded to the Commonwealth under Kentucky’s Loss Recovery Act was proportionate to the amount of money lost by Kentucky gamblers in five years on the illegal gambling website, the fine was not excessive under the Eighth Amendment or Ky. Const. § 17. Commonwealth ex rel. Brown v. Stars Interactive Holdings (IOM) Ltd., 617 S.W.3d 792, 2020 Ky. LEXIS 450 ( Ky. 2020 ), cert. dismissed, 142 S. Ct. 330, 211 L. Ed. 2d 1, 2021 U.S. LEXIS 4946 (U.S. 2021).

10.— Excessive.

A fine of $2,500 imposed upon conviction of assault and battery under KRS 431.075 (repealed) was not so obviously and flagrantly excessive as to violate this section. Sizemore v. Commonwealth, 485 S.W.2d 498, 1972 Ky. LEXIS 131 ( Ky. 1972 ).

11.— Imprisonment.

Law providing that one convicted of conducting a lottery shall be fined not less than $500 nor more than $1,000 and imprisoned in the penitentiary for not less than two (2) years and not more than five (5) years does not violate either state or federal constitution forbidding excessive fines or cruel punishments. Schroufe v. Commonwealth, 141 Ky. 554 , 133 S.W. 205, 1911 Ky. LEXIS 24 ( Ky. 1911 ).

Thirty days in jail and $100 fine for violation of liquor laws did not constitute violation of this section. Simpson v. Commonwealth, 196 Ky. 403 , 244 S.W. 912, 1922 Ky. LEXIS 543 ( Ky. 1922 ).

This section was not violated by six months in jail and $1,000 fine for unprovoked, unjustified assault and battery. Urban v. Commonwealth, 196 Ky. 770 , 245 S.W. 511, 1922 Ky. LEXIS 588 ( Ky. 1922 ).

Six months in jail and $500 fine was not cruel punishment for assault and battery upon female. Hill v. Commonwealth, 204 Ky. 440 , 264 S.W. 1045, 1924 Ky. LEXIS 466 ( Ky. 1924 ).

Four (4) years in prison and $5,000 fine for malicious, brutal assault and battery did not violate this section. Weber v. Commonwealth, 303 Ky. 56 , 196 S.W.2d 465, 1946 Ky. LEXIS 757 ( Ky. 1946 ).

That defendant would have to go to jail for 13 years if he could not pay $5,000 fine for assault and battery was not violative of this section, since he had indicated that be could pay such fine by executing supersedeas bond on appeal. Weber v. Commonwealth, 303 Ky. 56 , 196 S.W.2d 465, 1946 Ky. LEXIS 757 ( Ky. 1946 ).

12.Punishment.

Execution by electrocution is not unconstitutionally cruel punishment. McQueen v. Parker, 950 S.W.2d 226, 1997 Ky. LEXIS 82 ( Ky. 1997 ).

Defendant’s claim that execution by electrocution was unconstitutionally cruel punishment was not timely, where it was raised less than two (2) weeks prior to the date of his scheduled execution. McQueen v. Parker, 950 S.W.2d 226, 1997 Ky. LEXIS 82 ( Ky. 1997 ).

13.— Appeal.

Courts would not interfere with statutory penalty provisions unless they were so excessive or cruel as to contravene this section. Lakes v. Goodloe, 195 Ky. 240 , 242 S.W. 632, 1922 Ky. LEXIS 342 ( Ky. 1922 ).

14.— Death Penalty.

Infliction of death penalty for accrued robbery and certain other offenses was not violative of this section. Workman v. Commonwealth, 309 Ky. 117 , 216 S.W.2d 415, 1948 Ky. LEXIS 1075 ( Ky. 1948 ).

Imposition of the death penalty by electrocution does not violate the constitutional proscription against cruel and unusual punishment; nor is it arbitrarily imposed, given the guidelines provided by KRS 532.025 and 532.075 . Tamme v. Commonwealth, 973 S.W.2d 13, 1998 Ky. LEXIS 46 ( Ky. 1998 ), modified, 1998 Ky. LEXIS 110 (Ky. Sept. 3, 1998), cert. denied, 525 U.S. 1153, 119 S. Ct. 1056, 143 L. Ed. 2d 61, 1999 U.S. LEXIS 1229 (U.S. 1999).

As a 19-year delay in executing an inmate was mostly attributable to his own actions, carrying out the sentence would not be cruel and unusual punishment. Simmons v. Commonwealth, 191 S.W.3d 557, 2006 Ky. LEXIS 51 ( Ky. 2006 ), cert. denied, 549 U.S. 1176, 127 S. Ct. 1132, 166 L. Ed. 2d 908, 2007 U.S. LEXIS 1141 (U.S. 2007), overruled in part, Leonard v. Commonwealth, 279 S.W.3d 151, 2009 Ky. LEXIS 19 ( Ky. 2009 ).

Lethal injection method used in Kentucky is not a violation of ban on cruel and unusual punishment under the Eighth Amendment and Ky. Const. § 17. Furnish v. Commonwealth, 2006 Ky. LEXIS 233 (Ky. Sept. 21, 2006), sub. op., 267 S.W.3d 656, 2007 Ky. LEXIS 294 ( Ky. 2007 ).

Lethal injection method used in Kentucky was not a violation of constitutional bans on cruel and unusual punishment. Baze v. Rees, 217 S.W.3d 207, 2006 Ky. LEXIS 301 ( Ky. 2006 ), aff'd, 553 U.S. 35, 128 S. Ct. 1520, 170 L. Ed. 2d 420, 2008 U.S. LEXIS 3476 (U.S. 2008).

Denial of defendant’s motion for a new sentencing hearing after defendant’s guilty plea to murder and robbery was proper despite the fact that defendant, who was age 17 when indicted, entered into the plea to avoid the possibility of receiving the death penalty, and a later decision of the United States Supreme Court held that execution of persons who were under the age of 18 at the time of their offenses was unconstitutional; a guilty plea waived all defenses and did not become vulnerable based on later judicial decisions. Denton v. Commonwealth, 2007 Ky. App. LEXIS 245 (Ky. Ct. App. Aug. 3, 2007, sub. op., 2007 Ky. App. Unpub. LEXIS 1183 (Ky. Ct. App. Aug. 3, 2007), review denied, ordered not published, 2008 Ky. LEXIS 57 (Ky. Mar. 12, 2008).

15.— — Juvenile Status.

While defendant’s young age at the time of murder was an important factor that should have been given serious consideration at both the transfer hearing in juvenile court and as a mitigating circumstance at the sentencing phase in circuit court, it was not a constitutional distinction since the United States Supreme Court has not yet decided that juvenile status puts the death penalty in conflict with the Eighth Amendment. Ice v. Commonwealth, 667 S.W.2d 671, 1984 Ky. LEXIS 212 (Ky.), cert. denied, 469 U.S. 860, 105 S. Ct. 192, 83 L. Ed. 2d 125, 1984 U.S. LEXIS 3642 (U.S. 1984).

There is neither a historical nor a modern societal consensus forbidding the imposition of capital punishment on any person who murders at 16 or 17 years of age, and such punishment does not offend the constitutional prohibition against cruel and unusual punishment. Stanford v. Kentucky, 492 U.S. 361, 109 S. Ct. 2969, 106 L. Ed. 2d 306, 1989 U.S. LEXIS 3195 (U.S. 1989), overruled in part, Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1, 2005 U.S. LEXIS 2200 (U.S. 2005).

Since KRS 640.040 barred the execution of offenders under 16, the decision in Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1, 2005 U.S. LEXIS 2200 (2005), created no greater protection than KRS 640.040 . Bowling v. Commonwealth, 224 S.W.3d 577, 2006 Ky. LEXIS 159 ( Ky. 2006 ), cert. denied, 552 U.S. 1152, 128 S. Ct. 1090, 169 L. Ed. 2d 827, 2008 U.S. LEXIS 844 (U.S. 2008).

Appellant’s motion for new sentencing hearing was properly denied because, although a recent decision of the United States Supreme Court found death sentences for juveniles between ages 15 and 18 unconstitutional, that holding did not affect appellant’s sentence of life imprisonment without the possibility for parole for a minimum of 25 years. Gussler v. Commonwealth, 236 S.W.3d 22, 2007 Ky. App. LEXIS 225 (Ky. Ct. App. 2007).

16.— — Lethal Injection.

Lethal injection pursuant to KRS 431.220 is constitutional because death row inmates had not carried their burden of showing that the risk of pain from maladministration of a concededly humane lethal injection protocol, and the failure to adopt untried and untested alternatives, constitute cruel and unusual punishment under the Eighth Amendment. Baze v. Rees, 553 U.S. 35, 128 S. Ct. 1520, 170 L. Ed. 2d 420, 2008 U.S. LEXIS 3476 (U.S. 2008).

17.— Deterrence.

Deterrent function of penalty could be considered in decision as to whether certain punishment was violative of this section. Weber v. Commonwealth, 303 Ky. 56 , 196 S.W.2d 465, 1946 Ky. LEXIS 757 ( Ky. 1946 ).

18.— Disproportionate.

Where a sentence is so disproportionate to the offense committed as to shock the moral sense of the community, it constitutes cruel and unusual punishment. Workman v. Commonwealth, 429 S.W.2d 374, 1968 Ky. LEXIS 743 ( Ky. 1968 ).

19.— Not Disproportionate.

Sentence of ten (10) years was not manifestly unfair and did not constitute cruel and unusual punishment where the sentence for repeated property-related offenses, such as theft by deception, fit the gravity of the offense, was ten (10) years less than the 20 year maximum allowed, and the sentence was similar to sentences imposed on other persistent nonviolent, property-related felony offenders in Kentucky and in other jurisdictions. Brown v. Commonwealth, 818 S.W.2d 600, 1991 Ky. LEXIS 75 ( Ky. 1991 ).

Sentence of ten (10) years received by an inmate for assaulting a prison guard and being a persistent felony offender in the second degree (PFO II) was not so grossly disproportionate to the seriousness of the underlying crime and prior felonies as to constitute cruel and unusual punishment. Covington v. Commonwealth, 849 S.W.2d 560, 1992 Ky. App. LEXIS 218 (Ky. Ct. App. 1992).

Defendant’s sentence of 145 years was not disproportionate to his crime in violation of the Eighth Amendment of the United States Constitution and this section where defendant was an accomplice in three (3) burglaries and his status as a persistent felon provided the basis for his enhanced sentence. Harrison v. Commonwealth, 858 S.W.2d 172, 1993 Ky. LEXIS 82 ( Ky. 1993 ), cert. denied, 512 U.S. 1238, 114 S. Ct. 2746, 129 L. Ed. 2d 864, 1994 U.S. LEXIS 4948 (U.S. 1994).

Imposition of 20-year sentence for conviction for possession of marijuana and drug paraphernalia and enhanced by a finding that defendant was in possession of a firearm and was a persistent felony offender, did not constitute cruel punishment under Ky. Const. § 17, since the sentence did not exceed that allowed by statute and was not disproportionate to the nature of the offenses. Riley v. Commonwealth, 120 S.W.3d 622, 2003 Ky. LEXIS 119 ( Ky. 2003 ), overruled in part, Bratcher v. Commonwealth, 424 S.W.3d 411, 2014 Ky. LEXIS 85 ( Ky. 2014 ).

Defendant’s sentence of 20 years as a persistent felony offender was not constitutionally excessive in violation of Ky. Const. § 17 and U.S. Const. amend. VIII, as the sentence did not approach the upper limits of Kentucky’s sentencing structure and could not be deemed “grossly disproportionate” as the Supreme Court had employed that term. Turpin v. Commonwealth, 350 S.W.3d 444, 2011 Ky. LEXIS 130 ( Ky. 2011 ).

20.— Habitual Criminals.

Habitual criminal law did not violate this section. Ward v. Hurst, 300 Ky. 464 , 189 S.W.2d 594, 1945 Ky. LEXIS 567 ( Ky. 1945 ).

21.— Imprisonment.

The law providing from two (2) to ten (10) years’ imprisonment in the penitentiary for the unlawful taking and operating of motor vehicles without the owner’s knowledge or consent is not violative of this section as imposing a cruel and unusual punishment. Singleton v. Commonwealth, 164 Ky. 243 , 175 S.W. 372, 1915 Ky. LEXIS 364 ( Ky. 1915 ).

Law prescribing, for theft of poultry of value of $2.00 or more, imprisonment in penitentiary for not less than one nor more than five (5) years is not violative of this section which prohibits the infliction of cruel punishment. Fry v. Commonwealth, 166 Ky. 670 , 179 S.W. 604, 1915 Ky. LEXIS 750 ( Ky. 1915 ).

Provision for four (4) years’ imprisonment for horse theft was not violative of this section. Glisper v. Commonwealth, 186 Ky. 276 , 217 S.W. 348, 1919 Ky. LEXIS 216 ( Ky. 1919 ).

Provision for five (5) to 20 years’ imprisonment for assault with offensive weapon did not violate this section notwithstanding lesser penalty was provided for robbery. Crutchfield v. Commonwealth, 248 Ky. 704 , 59 S.W.2d 983, 1933 Ky. LEXIS 307 ( Ky. 1933 ).

Sentence of ten (10) years’ imprisonment for malicious shooting was not excessive. Crawford v. Commonwealth, 279 Ky. 224 , 130 S.W.2d 17, 1939 Ky. LEXIS 244 ( Ky. 1939 ).

Twenty (20) years in prison for rape did not violate this section. Walsh v. Commonwealth, 300 Ky. 545 , 189 S.W.2d 840, 1945 Ky. LEXIS 595 ( Ky. 1945 ).

Where defendant could have been sentenced to life imprisonment as habitual criminal upon conviction for voluntary manslaughter, sentence of ten (10) years’ imprisonment therefor was not excessive. Mills v. Commonwealth, 305 Ky. 44 , 202 S.W.2d 1005, 1947 Ky. LEXIS 762 ( Ky. 1947 ).

Sentence of 105 years imprisonment for multiple convictions of sodomy and sexual abuse did not constitute cruel and unusual punishment; whether to run the sentences concurrently or consecutively was within the trial court’s discretion. Hampton v. Commonwealth, 666 S.W.2d 737, 1984 Ky. LEXIS 219 ( Ky. 1984 ).

Imposition of a mandatory ten (10) year term without probation under KRS 532.080(6)(b) did not violate the Eighth or Fourteenth Amendments of the U.S. Constitution or this section, although defendant’s convictions all involved nonviolent property-related crimes, as other property-related felonies are considered by the legislature to be sufficient to support imposition of the penalties of KRS 532.080(6)(b). Collett v. Commonwealth, 686 S.W.2d 822, 1984 Ky. App. LEXIS 641 (Ky. Ct. App. 1984).

22.— Judgment.

Even though penalty may have been so excessive as to violate this section, such excess would not void judgment of conviction. Decker v. Russell, 357 S.W.2d 886, 1962 Ky. LEXIS 161 ( Ky. 1962 ).

23.— Jurisdiction.

Constitutional prohibitions, both state and federal, against cruel and unusual punishment are addressed to exercise of criminal jurisdiction in courts. Moss v. Jones, 352 S.W.2d 557, 1961 Ky. LEXIS 210 ( Ky. 1961 ), cert. denied, 369 U.S. 808, 82 S. Ct. 653, 7 L. Ed. 2d 611, 1962 U.S. LEXIS 1703 (U.S. 1962).

24.— Life Imprisonment.

Provision for increase of penalty upon second conviction and life imprisonment for third felony conviction was not excessive or cruel. Turner v. Commonwealth, 191 Ky. 825 , 231 S.W. 519, 1921 Ky. LEXIS 390 ( Ky. 1921 ).

Sentencing defendant to life imprisonment for robbing bank with pistol did not violate this section where such sentence came within statutory limits regarding such crime. Fry v. Commonwealth, 259 Ky. 337 , 82 S.W.2d 431, 1935 Ky. LEXIS 316 ( Ky. 1935 ).

25.— — Without Parole.

Life imprisonment without benefit of parole for juveniles constitutes cruel and unusual punishment. Workman v. Commonwealth, 429 S.W.2d 374, 1968 Ky. LEXIS 743 ( Ky. 1968 ).

In authorizing the penalty of life imprisonment without parole, KRS 435.090 (repealed) does not violate the prohibition of this section against cruel punishment. Martin v. Commonwealth, 493 S.W.2d 714, 1973 Ky. LEXIS 499 ( Ky. 1973 ).

Where a defendant was convicted of the rape of a 93-year-old woman, imposition of the sentence of life imprisonment without privilege of parole was not unconstitutional. Green v. Commonwealth, 556 S.W.2d 684, 1977 Ky. LEXIS 527 ( Ky. 1977 ).

Appellant’s motion for a new sentencing hearing was properly denied because, although a later United States Supreme Court determined that a person under age 18 when his crime was committed, like appellant, was not subject to the death penalty, the sentence appellant received, life imprisonment without parole, remained a permissible sentence; appellant did not claim that his plea was not knowing, voluntary, and intelligent when it was made. Sims v. Commonwealth, 233 S.W.3d 731, 2007 Ky. App. LEXIS 327 (Ky. Ct. App. 2007).

26.— Prisoners.

Fact that prisoner, under death penalty, was badly burned by gas shot into his cell by prison officials did not constitute cruel punishment under this section. Moss v. Jones, 352 S.W.2d 557, 1961 Ky. LEXIS 210 ( Ky. 1961 ), cert. denied, 369 U.S. 808, 82 S. Ct. 653, 7 L. Ed. 2d 611, 1962 U.S. LEXIS 1703 (U.S. 1962).

27.— Verdicts.

Where the verdict is within the limits fixed by the legislature for such an offense, it does not violate this section. McElwain v. Commonwealth, 289 Ky. 446 , 159 S.W.2d 11, 1942 Ky. LEXIS 577 ( Ky. 1942 ).

Verdict which was within lawful limits and not obviously disproportionate to offense was not excessive. Mills v. Commonwealth, 305 Ky. 44 , 202 S.W.2d 1005, 1947 Ky. LEXIS 762 ( Ky. 1947 ).

This section limited legislative prescription of punishment by law and did not apply to jury verdicts setting punishment within prescribed limits. Monson v. Commonwealth, 294 S.W.2d 78, 1956 Ky. LEXIS 110 ( Ky. 1956 ), overruled, Owens v. Commonwealth, 487 S.W.2d 897, 1972 Ky. LEXIS 77 ( Ky. 1972 ).

28.— License Revocations.

KRS 189A.070 , governing license revocations for operating a motor vehicle while under the influence of alcohol, does not fail the “rational basis test” of equal protection, it does not constitute special legislation in contravention of Const., § 59, it does not violate Const., § 3, and it does not contravene the prohibition against cruel and unusual punishment found in the Eighth Amendment to the United States Constitution and this section. Praete v. Commonwealth, 722 S.W.2d 602, 1987 Ky. App. LEXIS 416 (Ky. Ct. App. 1987).

29.— Mental Illness.

Although conviction of defendant who asserted that a GBMI verdict amounted to cruel and unusual punishment found guilty but mentally ill was affirmed because the record was devoid of any evidence with which to consider such issues, decision did not put to rest the issues of the constitutionality of the “guilty but mentally ill (GBMI)” statute and the content of the instructions, especially regarding treatment, to be given to the jury in a GBMI case. The fact that 1996 Kentucky House Concurrent Resolution No. 27 to create a task force to study the involuntary commitment and criminal responsibility laws in Kentucky did not emerge from committee, is evidence that the Legislature, with passage of KRS 504.120 through 504.150 , has put into place a system lacking in adequate funding and has taken no positive measures to correct this deficiency, thus falling clearly in contravention of its own mandate for treatment of individuals found to be GBMI. Brown v. Commonwealth, 934 S.W.2d 242, 1996 Ky. LEXIS 97 ( Ky. 1996 ).

30.Jury Instruction.

Where evidence in a capital murder case showed that appellant was a 19-year old man of limited mental capabilities involved in a five (5) week marriage with victim that suffered from numerous separations and regular infidelities on the victim’s part, appellant and victim fought constantly, and appellant was aware that victim had been with another man on the night of her death, trial court’s failure to provide the jury with an instruction to consider extreme mental or emotional disturbance as a mitigating factor violated appellant’s constitutional right to individualized sentencing and due process. Hunter v. Commonwealth, 869 S.W.2d 719, 1994 Ky. LEXIS 14 ( Ky. 1994 ).

31.— Voir dire.

Trial court committed reversible error by not allowing the defendants’ counsel during voir dire to ask jurors if they would be prejudiced if the defendants exercised their constitutional right not to testify in their own behalf to find out if jurors should be struck for cause by the court. The trial court’s “no adverse inference” instructions could not cure that type of juror prejudice. Hayes v. Commonwealth, 175 S.W.3d 574, 2005 Ky. LEXIS 332 ( Ky. 2005 ).

Cited:

Commonwealth ex rel. Lawton v. Gordon, 197 Ky. 367 , 247 S.W. 45, 1923 Ky. LEXIS 648 ( Ky. 1923 ); Waggoner v. Commonwealth, 254 Ky. 200 , 71 S.W.2d 421, 1934 Ky. LEXIS 55 ( Ky. 1934 ); Casey County Board of Education v. Luster, 282 S.W.2d 333, 1955 Ky. LEXIS 238 ( Ky. 1955 ); Day v. Caudill, 300 S.W.2d 45, 1957 Ky. LEXIS 439 ( Ky. 1957 ); Huff v. Commonwealth, 406 S.W.2d 831, 1966 Ky. LEXIS 219 ( Ky. 1966 ); Allsup v. Knox, 508 F. Supp. 57, 1980 U.S. Dist. LEXIS 16607 (E.D. Ky. 1980 ); Yancey v. Carroll County, 876 F.2d 1238, 1989 U.S. App. LEXIS 4731 (6th Cir. 1989); Wilson v. Commonwealth, 836 S.W.2d 872, 1992 Ky. LEXIS 84 ( Ky. 1992 ); Dunlap v. Commonwealth, — S.W.3d —, 2013 Ky. LEXIS 292 ( Ky. 2013 ).

Notes to Unpublished Decisions

1.Punishment.
2.— Habitual Criminals.

Unpublished decision: There was no cruel and unusual punishment, as consecutive 10-year sentences for felony theft and for being a persistent offender was not too severe of a penalty in light of defendant’s six prior convictions for receiving stolen property; the State was justified in punishing a recidivist more severely than a first offender. Edmondson v. Commonwealth, 2002 Ky. LEXIS 271 (Ky. Dec. 19, 2002).

Opinions of Attorney General.

Kentucky has no statutes which set a specific monetary amount for bonds where a warrant is issued in a traffic violation case. The particular monetary amount must be determined by the exercise of sound judicial discretion, relating to the type of offense, but in no case be so plainly excessive as to violate RCr 4.06 or this section. OAG 70-510 .

Research References and Practice Aids

Kentucky Law Journal.

Allen, Criminal Law — Cruel and Unusual Punishment — Court Adopts Federal Tests, 58 Ky. L.J. 93 (1969).

Gillig, Kentucky Post-Conviction Remedies and the Judicial Development of Kentucky Rule of Criminal Procedure 11.42, 83 Ky. L.J. 265 (1994-95).

Northern Kentucky Law Review.

2010 Death Penalty Issue: Article: Race, Death and Disproportionality, 37 N. Ky. L. Rev. 213 (2010).

2010 Death Penalty Issue: Article: The Continuing Role of Race in Capital Cases, Notwithstanding President Obama’s Election, 37 N. Ky. L. Rev. 243 (2010).

2010 Death Penalty Issue: Article: The Racial Justice Act in Kentucky, 37 N. Ky. L. Rev. 273 (2010).

§ 18. Imprisonment for debt restricted.

The person of a debtor, where there is not strong presumption of fraud, shall not be continued in prison after delivering up his estate for the benefit of his creditors in such manner as shall be prescribed by law.

NOTES TO DECISIONS

1.Fines.

Where defendant was fined for violation of misdemeanor and was jailed when he refused to pay, he was not “debtor” as contemplated by this section. Wilson v. Commonwealth, 240 S.W.2d 587, 1951 Ky. LEXIS 982 ( Ky. 1951 ).

2.Fraud.

Law providing for punishment for violation irrespective of fraudulent intent or knowledge of violator was invalid as contravening this section. Burnam v. Commonwealth, 228 Ky. 410 , 15 S.W.2d 256, 1929 Ky. LEXIS 560 ( Ky. 1929 ). See Ward v. Commonwealth, 228 Ky. 468 , 15 S.W.2d 276, 1929 Ky. LEXIS 568 ( Ky. 1929 ).

KRS 514.040 does not violate this section since it does not punish one for a debt but rather for a fraudulent act, intent to defraud being an essential element of the crime of theft by deception. Patterson v. Commonwealth, 556 S.W.2d 909, 1977 Ky. App. LEXIS 822 (Ky. Ct. App. 1977), cert. denied, 435 U.S. 970, 98 S. Ct. 1609, 56 L. Ed. 2d 61, 1978 U.S. LEXIS 1484 (U.S. 1978).

3.Imprisonment.

While the defendant was ineligible for probation, the order of the trial court directing the Corrections Cabinet or other custodian of the defendant or his records to notify the court of his date of release, and directing the defendant to report to the circuit court following his release from incarceration for the purpose of establishing a payment schedule for restitution was not imprisonment for debt in violation of this section, even though deferment is not specifically mentioned in KRS 431.200 . Commonwealth v. Bailey, 721 S.W.2d 706, 1986 Ky. LEXIS 310 ( Ky. 1986 ).

Circuit court erred in holding a judgment debtor in contempt for failing to attend a scheduled deposition regarding the amount owed to the judgment creditor because the court did not include a clear written finding as to the debtor’s ability to pay the judgment, the court’s order requiring the debtor to either pay a money judgment balance or be placed in jail violated the state constitution, the judgment debtor’s failure to appear was due to a scheduling conflict of which he made the judgment creditor aware, and the proper sanction would have been one authorized by the rules of civil procedure. Sidebottom v. Watershed Equine, LLC, 564 S.W.3d 331, 2018 Ky. App. LEXIS 255 (Ky. Ct. App. 2018).

4.— Method.

While imprisonment for debt was permitted under this section, such imprisonment was required to be made according to provisions of KRS 426.400 , 426.410 (both repealed) and KRS 426.420 . Rudd v. Rudd, 184 Ky. 400 , 214 S.W. 791, 1919 Ky. LEXIS 145 ( Ky. 1919 ).

5.Mortgages.

Mortgagor who sold mortgaged property without mortgagees’ permission was not threatened with imprisonment in violation of this section by court’s requiring him to replace such property, absent any showing that he could not comply therewith. Farmer v. Cassinelli, 303 S.W.2d 555, 1957 Ky. LEXIS 270 ( Ky. 1957 ).

6.Support.

Husband who was imprisoned for nonpayment of money for separation from wife and who then had such obligation discharged could not be again imprisoned for such nonpayment. Napier v. Napier, 198 Ky. 233 , 248 S.W. 529, 1923 Ky. LEXIS 415 ( Ky. 1923 ), overruled, Gibson v. Stiles, 240 S.W.2d 609, 1951 Ky. LEXIS 995 ( Ky. 1951 ).

7.Breach of Contract.

If KRS 376.070 and KRS 376.990 (2) were construed to impose absolute criminal liability upon a contractor acting in good faith for a simple breach of contract, the statute probably would violate this section of the Kentucky Constitution which restricts imprisonment for debt and accordingly the statutes must be construed to require a culpable mental state before a contractor can be guilty of even a misdemeanor. Blanton v. Commonwealth, 562 S.W.2d 90, 1978 Ky. App. LEXIS 466 (Ky. Ct. App. 1978).

8.Punishment for Debt.

KRS 530.050 does not offend this section for it does not seek to impose a punishment for a debt, but to redress the intentional financial abandonment of one’s legal responsibilities. Waddell v. Commonwealth, 893 S.W.2d 376, 1995 Ky. App. LEXIS 37 (Ky. Ct. App. 1995).

Cited:

Rebham v. Fuhrman, 139 Ky. 418 , 50 S.W. 976 (1899); Swope v. Commonwealth, 385 S.W.2d 57, 1964 Ky. LEXIS 114 ( Ky. 1964 ).

Research References and Practice Aids

Kentucky Law Journal.

Gillig, Kentucky Post-Conviction Remedies and the Judicial Development of Kentucky Rule of Criminal Procedure 11.42, 83 Ky. L.J. 265 (1994-95).

§ 19. Ex post facto law or law impairing contract forbidden — Rules of construction for mineral deeds relating to coal extraction.

  1. No ex post facto law, nor any law impairing the obligation of contracts, shall be enacted.
  2. In any instrument heretofore or hereafter executed purporting to sever the surface and mineral estates or to grant a mineral estate or to grant a right to extract minerals, which fails to state or describe in express and specific terms the method of coal extraction to be employed, or where said instrument contains language subordinating the surface estate to the mineral estate, it shall be held, in the absence of clear and convincing evidence to the contrary, that the intention of the parties to the instrument was that the coal be extracted only by the method or methods of commercial coal extraction commonly known to be in use in Kentucky in the area affected at the time the instrument was executed, and that the mineral estate be dominant to the surface estate for the purposes of coal extraction by only the method or methods of commercial coal extraction commonly known to be in use in Kentucky in the area affected at the time the instrument was executed.

History. Amendment proposed by Acts 1988, ch. 117, § 1, ratified November, 1988.

Compiler’s Notes.

The General Assembly in 1988 (Acts 1988, ch. 117, § 1) proposed an amendment to the Constitution which amendment was ratified by the voters at the regular election in November, 1988. Prior to the amendment the section read “§ 19. Ex post facto law or law impairing obligation of contract forbidden. — No ex post facto law, nor any law impairing the obligation of contracts, shall be enacted.”

NOTES TO DECISIONS

1.In General.

Ordinance was not ex post facto as to its violators where violation occurred after ordinance went into effect. City of Louisville v. Roberts & Krieger, 105 S.W. 431, 32 Ky. L. Rptr. 182 (1907), modified, 106 S.W. 1197, 32 Ky. L. Rptr. 823 (1908).

A state cannot, by either constitutional provisions or legislative enactment, impair the obligations of a contract. German Ins. Co. v. Commonwealth, 141 Ky. 606 , 133 S.W. 793, 1911 Ky. LEXIS 98 ( Ky. 1911 ).

To be invalid as impairing contract obligation, statute must have been enacted after making of contract, obligation of which was claimed to have been impaired. Hoskins Grocery Co. v. Creech Coal Co., 247 Ky. 8 , 56 S.W.2d 555, 1933 Ky. LEXIS 342 ( Ky. 1933 ).

The strength of every contract lies in the right of the promisee to rely upon constitutional security against impairment of its obligations by legislation. Board of Education v. Louisville, 288 Ky. 656 , 157 S.W.2d 337, 1941 Ky. LEXIS 198 ( Ky. 1941 ).

The rule concerning deadly weapons enunciated in Kennedy v. Commonwealth, 544 S.W.2d 219, 1976 Ky. LEXIS 18 ( Ky. 1977 ) was not an unforeseeable judicial enlargement of the statute and did not operate as an ex post facto law when applied to a case arising prior to that decision. Helpenstine v. Commonwealth, 566 S.W.2d 415, 1978 Ky. LEXIS 361 ( Ky. 1978 ), overruled in part, Wilburn v. Commonwealth, 312 S.W.3d 321, 2010 Ky. LEXIS 52 ( Ky. 2010 ).

Amendment to the statute was applicable because retroactive application of the statute would not impair an employer’s vested rights; by amending the statute, the legislature has simply specified the scope of the reasonableness inquiry. Croghan v. Norton Healthcare, Inc., 613 S.W.3d 37, 2020 Ky. App. LEXIS 18 (Ky. Ct. App. 2020).

2.Construction.

Federal decisions construing the contract clause of the United States constitution are not binding on Kentucky courts in construing this section. Anderson Nat'l Bank v. Reeves, 293 Ky. 735 , 170 S.W.2d 350, 1942 Ky. LEXIS 12 ( Ky. 1942 ).

The constitutional amendment to this section by Acts 1988, Ch. 117, § 1 does not violate the Contract Clause, the Fifth Amendment, or the Fourteenth Amendment to the Constitution of the United States.Ward v. Harding, 860 S.W.2d 280, 1993 Ky. LEXIS 101 ( Ky. 1993 ), cert. denied, 510 U.S. 1177, 114 S. Ct. 1218, 127 L. Ed. 2d 564, 1994 U.S. LEXIS 2064 (U.S. 1994).

Legislature intended for KRS 381.930 , 381.935 and 381.945 together with this section to collectively address a mine owner’s ability, under a broad form severance deed, to recover coal by strip mining techniques. Karst-Robbins Coal Co. v. Arch, Inc., 964 S.W.2d 419, 1997 Ky. App. LEXIS 112 (Ky. Ct. App. 1997).

3.Application.

The constitutional prohibition against ex post facto laws is applicable only to crimes and does not prevent the enactment of legislation curing defective acknowledgments to deeds previously executed and recorded. Eckles v. Wood, 143 Ky. 451 , 136 S.W. 907, 1911 Ky. LEXIS 441 ( Ky. 1911 ).

The protection of the contract clause of this section extends to contracts between a state or subdivision thereof and a private person, and to those between private persons. Covington v. Sanitation Dist. of Campbell & Kenton Counties, 301 S.W.2d 885, 1957 Ky. LEXIS 488 ( Ky. 1957 ).

It is clear that the “ex post facto” prohibition applies only to criminal matters. Nicholson v. Judicial Retirement & Removal Com., 562 S.W.2d 306, 1978 Ky. LEXIS 322 ( Ky. 1978 ).

Since defendant did not avail himself of the structure for attacking the judgment of conviction of a sex offense that led to defendant being sentenced to probation and that probation later being revoked, defendant was not entitled to relief from that revocation of probation. Although defendant wanted to attack application of KRS 17.520 that tolled the sex offender registration statute as an impermissible ex post facto violation under Ky. Const. § 19, defendant’s failure to use RCr P. 11.42 and CR 60.02 allowing for postconviction relief precluded defendant challenging the conviction. Lucas v. Commonwealth, 380 S.W.3d 554, 2012 Ky. App. LEXIS 183 (Ky. Ct. App. 2012).

4.Attorneys.

The Kentucky Supreme Court’s construction of SCR 3.130 in Kentucky State Bar Ass’n v. Vincent, 537 S.W.2d 171, 1976 Ky. LEXIS 67 ( Ky. 1976 ) did not create an ex post facto law by judicial enlargement. Kentucky Bar Asso. v. Kramer, 555 S.W.2d 245, 1977 Ky. LEXIS 498 ( Ky. 1977 ) (Decision prior to the 1978 amendment of SCR 3.130).

5.Banks.

Statutory reorganization of insolvent bank unable to perform its contract with depositors did not impair such contract. Dorman v. Dell, 245 Ky. 34 , 52 S.W.2d 892, 1932 Ky. LEXIS 523 ( Ky. 1932 ).

The provisions of KRS 393.110 requiring surrender of abandoned bank deposits to the state do not impair the obligation of depositors’ contracts made before the passage of that law, since there is no absolute escheat but merely a transfer of possession, and the state assumes responsibility for the return of the property if properly claimed. Anderson Nat'l Bank v. Reeves, 293 Ky. 735 , 170 S.W.2d 350, 1942 Ky. LEXIS 12 ( Ky. 1942 ).

6.Burial Associations.

Where existing contracts between burial association and its members provided for payment of benefits in merchandise and services, new legislation requiring all benefits to be paid in money was construed as not applying to existing contracts in order to avoid conflict with this section’s mandate against impairment of contract obligations. Kenton & Campbell Benevolent Burial Ass'n v. Quinn, 244 Ky. 260 , 50 S.W.2d 554, 1932 Ky. LEXIS 408 ( Ky. 1932 ).

7.Constitutional Provisions.

Section 192 of the constitution did not violate this section. Louisville Banking Co. v. Commonwealth, 142 Ky. 690 , 134 S.W. 1142, 1911 Ky. LEXIS 262 ( Ky. 1911 ).

8.Corporations.

A municipal corporation cannot defeat its creditors by dissolving, since to permit this would impair the obligation of the creditors’ contracts. Drane v. Weston, 276 Ky. 810 , 125 S.W.2d 722, 1939 Ky. LEXIS 592 ( Ky. 1939 ).

Since laws providing for consolidation became part of corporate charter and were thus consented to by stockholders when they purchased stock, and since right to be paid dividend arrearages was not vested right in any fund, fact that corporate consolidation effected elimination of preferred stockholders’ dividend arrearages pursuant to consolidation laws did not impair obligations of such stockholders’ contracts. Donohue v. Heuser, 239 S.W.2d 238, 1951 Ky. LEXIS 866 ( Ky. 1951 ).

Legislative proposal to permit directors to extend corporate life of corporation by amendment of articles without members’ vote would not constitute substantial impairment of contractual voting rights of such members. Ayers v. Burley Tobacco Growers Cooperative Asso., 344 S.W.2d 836, 1961 Ky. LEXIS 264 ( Ky. 1961 ).

Notwithstanding this section’s inapplicability to impairment of state-corporation charter contract, contracts between corporation and its members or other third persons were subject to impairment provision of this section. Ayers v. Burley Tobacco Growers Cooperative Asso., 344 S.W.2d 836, 1961 Ky. LEXIS 264 ( Ky. 1961 ).

Where incorporation occurred at time when Const., § 3 was in effect, right of state to revoke, alter or amend corporate charter was written into charter contract, so that this section, respecting contract impairment, did not apply to contract between state and corporation. Ayers v. Burley Tobacco Growers Cooperative Asso., 344 S.W.2d 836, 1961 Ky. LEXIS 264 ( Ky. 1961 ).

9.Drains and Ditches.

KRS 268.010 to 268.990 (drainage act of 1918), validating proceedings under KRS 267.010 to 267.990 (drainage act of 1912), which did not give landowners opportunity to object to assessments, was not open to attack as ex post facto legislation, it being merely curative. Yewell v. Board of Drainage Comm'rs, 187 Ky. 434 , 219 S.W. 1049, 1920 Ky. LEXIS 141 ( Ky. 1920 ).

10.Eminent Domain.

Alleged contract impairment must be substantial, and even then there are several exceptions, one of which is that contracts are subject to right of eminent domain. Covington v. Sanitation Dist. of Campbell & Kenton Counties, 301 S.W.2d 885, 1957 Ky. LEXIS 488 ( Ky. 1957 ).

11.Fiscal Courts.

Law that required local registrars’ fees to be paid by treasurers of their respective counties from county levy fund did not impair contract obligations of fiscal court in violation of this section. Darnaby v. Furlong, 216 Ky. 475 , 287 S.W. 913, 1926 Ky. LEXIS 910 ( Ky. 1926 ).

12.Franchises.

KRS 416.010 to 416.090 (KRS 416.015 to 416.080 now repealed) (1928 state highway toll bridge act) does not violate this section as impairing the obligation of contract in that it authorized condemnation of bridges then operated under franchises, as a franchise is similar to any other property which may be taken for public purposes upon paying just compensation. Bloxton v. State Highway Com., 225 Ky. 324 , 8 S.W.2d 392, 1928 Ky. LEXIS 762 ( Ky. 1928 ).

KRS 96.010 and 96.020 , requiring city to sell new franchise on expiration of old one, do not impair obligation of old franchise contract. Kentucky Utilities Co. v. Board of Comm'rs, 254 Ky. 527 , 71 S.W.2d 1024, 1933 Ky. LEXIS 4 ( Ky. 1933 ). See Paris v. Kentucky Utilities Co., 280 Ky. 492 , 133 S.W.2d 559, 1939 Ky. LEXIS 145 ( Ky. 1939 ).

Election to operate under KRS 96.550 to 96.900 (Tennessee Valley Authority act) does not require that municipality relinquish any of its contractual rights acquired under existing franchise. Kentucky Utilities Co. v. Paducah, 308 Ky. 305 , 214 S.W.2d 258, 1948 Ky. LEXIS 908 ( Ky. 1948 ).

KRS 96.550 to 96.900 (Tennessee Valley Authority act), providing new and exclusive procedure for electric plant acquirement by a municipality, does not abrogate existing contract right of city of Paducah, under franchise granted to electric company in 1910, to acquire privately owned electric plant by method of procedure set out in KRS 96.360 to 96.520 . Kentucky Utilities Co. v. Paducah, 308 Ky. 305 , 214 S.W.2d 258, 1948 Ky. LEXIS 908 ( Ky. 1948 ).

13.Grants of Power.

The legislature can repeal or modify at its pleasure a grant of power or authority to one of its citizens that does not involve interference with a vested contract right that he has secured under the grant. Commonwealth v. Ewald Iron Co., 153 Ky. 116 , 154 S.W. 931, 1913 Ky. LEXIS 794 ( Ky. 1913 ).

14.Impairment.

Under this section, “change” and “impairment” are equivalent terms. Adams v. Greene, 182 Ky. 504 , 206 S.W. 759, 1918 Ky. LEXIS 387 ( Ky. 1918 ).

To impair an obligation of contract within the meaning of this section, it is only necessary to impose on one of the parties a higher or greater duty than the one imposed by the instrument itself or by its implied conditions which the law will read into it. Union Gas & Oil Co. v. Diles, 200 Ky. 188 , 254 S.W. 205, 1923 Ky. LEXIS 31 ( Ky. 1923 ).

15.Medical Malpractice Insurance.

Neither the provision of former law that provided excess coverage by patient compensation fund nor the requirement of such former law that imposed on insurers the burden of reporting cancellations and nonrenewals impaired existing contracts in violation of this section. McGuffey v. Hall, 557 S.W.2d 401, 1977 Ky. LEXIS 533 ( Ky. 1977 ).

16.Minimum Building Standards.

“Hot bath” ordinances, amending minimum building standards ordinance, had no ex post facto effect, since only acts or omissions punishable were those occurring after enactment of such ordinances. Louisville v. Thompson, 339 S.W.2d 869, 1960 Ky. LEXIS 487 ( Ky. 1960 ).

17.Municipal Bonds.

City ordinance proposing issuance of water revenue bonds to be financed by water system revenues did not impair contract of obligation bondholders with such city, since, even if future surplus revenues of water system were to be paid into sinking fund or other agencies, such bondholders had no contract right to receive any such future earnings. Burkholder v. Louisville, 276 S.W.2d 29, 1955 Ky. LEXIS 411 ( Ky. 1955 ).

18.Obligation.

“Obligation” of contract was defined as the law which binds the parties thereto to the performance of their agreement. Covington v. Sanitation Dist. of Campbell & Kenton Counties, 301 S.W.2d 885, 1957 Ky. LEXIS 488 ( Ky. 1957 ).

19.Police Power.

Enactment of KRS 220.510 did not impair obligation of contract between city and its water customers, since any impairment was justified as falling within exception relating to a state’s police power to protect public health. Covington v. Sanitation Dist. of Campbell & Kenton Counties, 301 S.W.2d 885, 1957 Ky. LEXIS 488 ( Ky. 1957 ).

City had power to enact reasonable regulations for public health and safety and, since it did not exceed such power by regulating outside work of policemen, vested contract obligations of such policemen with city were not unconstitutionally impaired by such regulation. Hopwood v. Paducah, 424 S.W.2d 134, 1968 Ky. LEXIS 447 ( Ky. 1968 ).

A statutory requirement (KRS 350.060 ) that private individuals who own surface estates from which the mineral had been severed must grant their consent, for a consideration, to surface mining on their land was unconstitutional since its effect was to change the relative legal rights and economic bargaining positions of such private parties under their contracts rather than to achieve any public purpose and thus could not be justified as a legitimate exercise of police power. Department for Natural Resources & Environmental Protection v. No. 8 Limited of Virginia, 528 S.W.2d 684, 1975 Ky. LEXIS 73 ( Ky. 1975 ).

20.Prior Convictions.

A law is not objectionable as ex post facto which, in providing punishment of future offenses, authorizes the defendant’s conduct in the past to be taken into account and the punishment to be graduated accordingly, though a prior conviction authorized to be taken into account may have taken place before law was passed. Armstrong v. Commonwealth, 177 Ky. 690 , 198 S.W. 24, 1917 Ky. LEXIS 651 ( Ky. 1917 ).

Where defendant was to be put on probation for one crime after serving time for another but escaped and committed yet another crime, the revocation of probation did not amount to a sentence imposed for the crime of escape or the conviction of armed robbery committed prior to the commencement of the probationary period, but rather was an imposition of the sentence which appellant had already received for conviction of another crime, and accordingly, there was no violation of the prohibition of ex post facto law. Brown v. Commonwealth, 564 S.W.2d 21, 1977 Ky. App. LEXIS 908 (Ky. Ct. App. 1977).

Although KRS 197.045(4) was applied retrospectively in an inmate’s case, as the statute was passed after the inmate’s initial conviction and sentence, the statute’s requirement of the inmate successfully completing the Sex Offender Treatment Program for the inmate’s eligibility to earn discretionary good time credits towards his subsequent concurrently running sentences following two (2) later convictions for sexual offenses, was not an increase in punishment prohibited by the Ex Post Facto Clause. Martin v. Chandler, 122 S.W.3d 540, 2003 Ky. LEXIS 265 ( Ky. 2003 ).

21.Public Roads.

Legislation which provided for building of public roads by highway commission and which assumed role of collecting and expending donations made by private citizens to old agency did not alter obligation of contract of such citizen donors, since commission became beneficial obligee of all promised donations made to old agency. Brown v. Farmers' Deposit Bank, 223 Ky. 171 , 3 S.W.2d 215, 1928 Ky. LEXIS 306 ( Ky. 1928 ).

22.Punishment.

Defendant could not be given increased punishment for second conviction when first offense was committed before enactment of law prescribing such increase, as otherwise such law would be, in effect, ex post facto law and thus void as violative of this section. Thacker v. Commonwealth, 228 Ky. 819 , 16 S.W.2d 448, 1929 Ky. LEXIS 659 (Ky.), cert. denied, 280 U.S. 578, 50 S. Ct. 31, 74 L. Ed. 629, 1929 U.S. LEXIS 661 (U.S. 1929).

Using defendants’ previous convictions for driving under the influence to enhance the penalty upon conviction under the new per se subsection of KRS 189A.010 was not a violation of the constitutional prohibitions against ex post facto laws of this section, because the defendants received enhanced sentences for their crimes committed after the new subsection took effect, thus they were punished as the law provided at the time when their present offenses were committed. Botkin v. Commonwealth, 890 S.W.2d 292, 1994 Ky. LEXIS 141 ( Ky. 1994 ).

KRS 532.043 , which imposes an additional three (3) years conditional discharge for certain offenses, is an unconstitutional ex post facto law as applied to offenses committed before the effective date of the act. Purvis v. Commonwealth, 14 S.W.3d 21, 2000 Ky. LEXIS 34 ( Ky. 2000 ).

The application of KRS 532.043 to a defendant who committed third degree sodomy prior to the effective date of the statute was unconstitutional as an improper ex post facto application of the statute. Lozier v. Commonwealth, 32 S.W.3d 511, 2000 Ky. App. LEXIS 33 (Ky. Ct. App. 2000).

The application of the additional requirements imposed by KRS 197.045(4) for earning credit toward parole for good behavior to a defendant who committed third degree sodomy prior to the effective date of the statute was not unconstitutional as an improper ex post facto application of the statute. Lozier v. Commonwealth, 32 S.W.3d 511, 2000 Ky. App. LEXIS 33 (Ky. Ct. App. 2000).

Kentucky Parole Board’s imposition of a serve-out order on defendant, where he was denied parole and directed to serve out his life sentences, was not an ex post facto violation under U.S. Const. art. I, § 10 and Ky. Const. § 19, as parole was a privilege and not a right, the imposition of the serve-out order was not punishment, and defendant’s punishment was not enhanced or elongated. Simmons v. Commonwealth, 232 S.W.3d 531, 2007 Ky. App. LEXIS 292 (Ky. Ct. App. 2007).

Although the General Assembly did not intend KRS 17.545 to be punitive, the residency restrictions were so punitive as to negate any intention to deem them civil; therefore, the statute may not be applied to defendant, who committed his crime prior to the effective date, as to do so violated U.S. Const. art. I, § 10 and Ky. Const. § 19(1). Commonwealth v. Baker, 295 S.W.3d 437, 2009 Ky. LEXIS 233 ( Ky. 2009 ), cert. denied, 559 U.S. 992, 130 S. Ct. 1738, 176 L. Ed. 2d 213, 2010 U.S. LEXIS 2267 (U.S. 2010).

23.Real Estate Brokers.

Former law barring the right of a real estate broker to sue for a commission unless he had a license at the time his cause of action arose, did not violate this section. Lowther v. Peoples Bank, 293 Ky. 425 , 169 S.W.2d 35, 1943 Ky. LEXIS 634 ( Ky. 1943 ).

24.Remedies.

The parties to a contract have no right in the remedy existing at the time of entry into the contract, and the legislature may modify, enlarge or limit the existing method of procedure without impairing the obligation of the contract if a sufficient one is left or provided. Lowther v. Peoples Bank, 293 Ky. 425 , 169 S.W.2d 35, 1943 Ky. LEXIS 634 ( Ky. 1943 ).

25.Reserve Power.

Notwithstanding this section, state may affect certain prior contracts by subsequent legislation if power to do so was reserved by appropriate enactments at time such contracts were made, and such reserve power includes right to protect public health. Covington v. Sanitation Dist. of Campbell & Kenton Counties, 301 S.W.2d 885, 1957 Ky. LEXIS 488 ( Ky. 1957 ).

26.Retrospective Laws.

Retrospective legislation was not expressly unconstitutional, since what was forbidden were ex post facto laws retroactively making something criminal which was not so when acts constituting particular offense were committed. Durrett v. Davidson, 122 Ky. 851 , 93 S.W. 25, 29 Ky. L. Rptr. 401 , 1906 Ky. LEXIS 102 ( Ky. 1906 ).

Law which operated retrospectively was not forbidden as ex post facto which did not make criminal any act or conduct committed before its passage. Walker v. Commonwealth, 279 Ky. 198 , 130 S.W.2d 27, 1939 Ky. LEXIS 248 ( Ky. 1939 ).

Retroactive application of KRS 532.110(1)(d) is prohibited by the ex post facto clauses of the state and federal constitutions, Ky. Const. § 19 and U.S. Const. art. I, § 9. By removing the possibility of concurrent sentences, subsection (1)(d) creates a new standard of punishment that is more onerous than that under the former statute. Cecil v. Commonwealth, 297 S.W.3d 12, 2009 Ky. LEXIS 245 ( Ky. 2009 ).

27.Schools.

Where landowner conveyed land to graded school district trustees for school use subject to reversion if such use ceased and graded school district thereon was abolished and subdistrict common school created in lieu pursuant to law, landowner was not thereby deprived of any rights under this section by impairment of contract, since purpose of trust was not affected and no provisions of the conveyance were impaired. Breathitt County Board of Education v. Back, 214 Ky. 284 , 283 S.W. 99, 1926 Ky. LEXIS 328 ( Ky. 1926 ).

KRS 160.045 , providing for transfer of annexed county school district territory into city school district regardless of approval of county school board, did not impair obligations of contract, since voter approval of school building fund tax levy prior to such transfer did not create contractual indebtedness for amount of future levies on part of county school district property owners. Board of Education v. Board of Education, 250 S.W.2d 1017, 1952 Ky. LEXIS 897 ( Ky. 1952 ).

Contract right is not impaired by the requirement that declaration of intent to preserve possibility of reverter and right of entry be recorded since this requirement is reasonable in light of the inconvenience and expense caused by the existence of these interests for unlimited periods of time. Cline v. Johnson County Board of Education, 548 S.W.2d 507, 1977 Ky. LEXIS 399 ( Ky. 1977 ).

Retroactive imposition of the Kentucky Affordable Prepaid Tuition Fund (KAPT) amendments upon a parent unlawfully impaired her contract because the 2014 amendments did not address a broad and general social or economic problem; the fact that the KAPT program’s costs of performing its contractual obligations exceeded its own expectations did not justify altering the obligations so they more closely conformed to its faulty expectations. Maze v. Bd. of Dirs. for the Commonwealth Postsecondary Educ. Prepaid Tuition Trust Fund, 559 S.W.3d 354, 2018 Ky. LEXIS 447 ( Ky. 2018 ).

Retroactive imposition of the Kentucky Affordable Prepaid Tuition Fund (KAPT) amendments upon a parent unlawfully impaired her contract because the 2014 amendments were neither reasonable nor necessary; the State cannot escape an unfavorable contract with retroactive legislation that substantially impairs the State’s contractual obligations because this result is prohibited by the respective Contract Clauses of the United States and Kentucky Constitutions. Maze v. Bd. of Dirs. for the Commonwealth Postsecondary Educ. Prepaid Tuition Trust Fund, 559 S.W.3d 354, 2018 Ky. LEXIS 447 ( Ky. 2018 ).

Retroactive imposition of the Kentucky Affordable Prepaid Tuition Fund (KAPT) amendments upon a parent unlawfully impaired her contract because the amendments fundamentally altered her contractual right to use, for her children, her KAPT funds for graduate school and directly curtailed the financial value of the benefit by capping future growth so that the promised tuition might not be paid; those changes were imposed retroactively, significantly devaluing the benefit promised to the parent. Maze v. Bd. of Dirs. for the Commonwealth Postsecondary Educ. Prepaid Tuition Trust Fund, 559 S.W.3d 354, 2018 Ky. LEXIS 447 ( Ky. 2018 ).

28.Sheriffs’ Bonds.

Application of KRS 134.260 as to liability on a sheriff’s bond only for the year executed and providing for notice of default would be a violation of this section as to such bonds executed prior to the enactment of KRS 134.260 covering the entire term of the sheriff. Cotton v. Walton-Verona Independent Graded School Dist., 295 Ky. 478 , 174 S.W.2d 712, 1943 Ky. LEXIS 262 ( Ky. 1943 ).

29.Surveys.

If law were construed as requiring surveys made prior to its enactment to be returned within one (1) year thereafter in order to make them operative, it would be void as impairing the obligation of contracts, as the rights of the parties were fixed by the law as it existed when the surveys were made. American Ass'n v. Innis, 109 Ky. 595 , 60 S.W. 388, 22 Ky. L. Rptr. 1196 , 1901 Ky. LEXIS 22 ( Ky. 1901 ).

30.Taxation.

A city may tax its bonds in the hands of another, there being no express or implied provisions to the contrary and hence no impairment of the obligation of contract of sale. Bank of Russellville v. Russellville, 133 Ky. 637 , 118 S.W. 921, 1909 Ky. LEXIS 214 ( Ky. 1909 ).

Law providing for an increase of the tax for operating expenses of common schools did not impair vested rights and the obligations of contracts under this section, as varying an assessment voted by the electors, nor does this section apply to contracts and bonds of quasi-public corporations such as a school district. Larue v. Redmon, 168 Ky. 487 , 182 S.W. 622, 1916 Ky. LEXIS 583 ( Ky. 1916 ).

It is within the power of the General Assembly to levy taxes upon employers for the purpose of their contribution to the Unemployment Insurance Trust Fund and if a tax assessed by the state is within the taxing power of the state it does not unconstitutionally impair the obligation of a contract. Adams v. Associated General Contractors, Inc., 656 S.W.2d 729, 1983 Ky. LEXIS 299 ( Ky. 1983 ).

The amendments to KRS 341.030(6) and 341.270 made by Acts 1982, ch. 261, which increased the wage base and tax rate payable by employers for purposes of unemployment insurance contributions, in no way impaired the rights and obligations under any contract, and since those amendments did not invalidate, release, or extinguish any contract executed by contractors prior to April 1, 1982, they were not unconstitutional as applied to such contracts. Adams v. Associated General Contractors, Inc., 656 S.W.2d 729, 1983 Ky. LEXIS 299 ( Ky. 1983 ).

31.Trade Regulations.

KRS 365.020 to 365.070 (unfair trade act) cannot be applied to transactions under contracts entered into before its effective date, since to do so would violate contract impairment provision of this section. Kentucky Utilities Co. v. Carlisle Ice Co., 279 Ky. 585 , 131 S.W.2d 499, 1939 Ky. LEXIS 320 ( Ky. 1939 ).

32.Unemployment Compensation.

Since law regarding unemployment compensation expressly declared that there should be no vested private right against amendment or repeal, this section had no effect on the rights and privileges conferred by that law. Shelley v. National Carbon Co., 285 Ky. 502 , 148 S.W.2d 686, 1941 Ky. LEXIS 420 ( Ky. 1941 ).

33.Workers’ Compensation.

Application of amendment of KRS 342.316 to pending workmen’s compensation case, which amendment abolished committee which had made initial finding in such case and modified procedure therein, did not impair any of employer’s contractual rights as to employee. General Refractories Co. v. Henderson, 313 Ky. 613 , 232 S.W.2d 846, 1950 Ky. LEXIS 910 ( Ky. 1950 ).

KRS 342.395 , requiring rejection of workers’ compensation coverage to be voluntary does not impair an obligation of a contract, within the meaning of this section, since all contracts must be entered voluntarily to be binding. Tri-Gem Coal Co. v. Whitaker, 661 S.W.2d 785, 1983 Ky. App. LEXIS 373 (Ky. Ct. App. 1983).

The 1996 amendment to KRS 342.320(2)(a), which limits the maximum attorney fee for representing an injured worker before an arbitrator to $2,000.00, is not arbitrary and capricious and, therefore, does not violate Sections 2, 14, 19, 28, 29, 109, and 116 of the Kentucky Constitution or Article 1, § 10 of the United States Constitution.Daub v. Baker Concrete, 25 S.W.3d 124, 2000 Ky. LEXIS 91 ( Ky. 2000 ).

42A claimant was not denied his constitutional rights under Article I, § 10 of the United States Constitution or §§ 13, 19, or 242 of the Kentucky Constitution when he was not allowed to reopen an original workers’ compensation award within two (2) years of entry, notwithstanding that KRS 342.125, as it existed on the date of his injury, would have allowed such reopening, since reopening is a remedy for an increase in disability that occurs after an award is entered and any right that a worker has to be compensated for a post-award increase in disability is inchoate until such time as he sustains a post-award change of occupational disability, at which point the right becomes vested. McCool v. Martin Nursery & Landscaping, Inc., 43 S.W.3d 256, 2001 Ky. LEXIS 60 (Ky. 2001).

Court of appeals properly held that the 2018 amendment to the Workers’ Compensation Act did not violate either the state or federal contracts clauses because the Act did not constitute a contract between Kentucky workers and their employers or the State since the claimants were not asking for relief under an employment contract, but for benefits granted to them by statute and through their enrollment in the workers’ compensation system, and, while the claimants had a vested, substantive right to litigate their benefits, their right to a certain duration or amount of benefits had not vested and would not do so until they received a final decision of their claims. Dowell v. Matthews Contr., 2021 Ky. LEXIS 312 (Ky. Aug. 26, 2021).

34.Ordinances.

Where the constitutionality of ordinance was not submitted to the trial court, the award of permanent injunction and writ of prohibition on the ground that the enforcement of the ordinance would be in violation of §§ 2 and 19 of constitution, was error. Bowling Green v. Gasoline Marketers, Inc., 514 S.W.2d 685, 1974 Ky. LEXIS 326 ( Ky. 1974 ).

35.Censure of Judge.

The action of the commission in censuring a judge, for conduct occurring after enactment of Const., § 121 but before implementation of that section by RAP (now SCR) 4.000 et seq., did not constitute a violation of the “ex post facto” prohibitions of the federal and state constitutions. Nicholson v. Judicial Retirement & Removal Com., 562 S.W.2d 306, 1978 Ky. LEXIS 322 ( Ky. 1978 ).

36.Interest Rates.

Written obligations containing their own interest rates are contracts, and the stated rates of interest within them are obligations of the contracts; therefore, it is constitutionally beyond the general power of government to mandate a particular rate of interest for them or for judgments derived from them. Union Trust, Inc. v. Brown, 757 S.W.2d 218, 1988 Ky. App. LEXIS 133 (Ky. Ct. App. 1988).

37.Mining Methods.

In the absence of clear and convincing evidence to the contrary, coal extraction may be made only by the known methods used in the area at the time the broad form deed conveying the land was executed; therefore, mineral owner could not, by virtue of broad form deed alone, engage in surface mining. Ward v. Harding, 860 S.W.2d 280, 1993 Ky. LEXIS 101 ( Ky. 1993 ), cert. denied, 510 U.S. 1177, 114 S. Ct. 1218, 127 L. Ed. 2d 564, 1994 U.S. LEXIS 2064 (U.S. 1994).

This section does not prohibit modern underground mining techniques such as longwall mining. Karst-Robbins Coal Co. v. Arch, Inc., 964 S.W.2d 419, 1997 Ky. App. LEXIS 112 (Ky. Ct. App. 1997).

Subsection (2) was intended to prohibit strip mining operations conducted pursuant to broad form deeds in the absence of the surface owner’s consent. Karst-Robbins Coal Co. v. Arch, Inc., 964 S.W.2d 419, 1997 Ky. App. LEXIS 112 (Ky. Ct. App. 1997).

38.Broad Form Deed.

Since attempted reservation of certain mining rights in 1971 deed whereby surface rights were sold to present owners was of no effect because of 1903 deed giving mineral rights in property to third parties and subsequent ratification of broad form deed by the 1988 amendment to this section, parties owning land when amendment took effect were entitled to limit the method of extracting minerals from the land. Taylor v. Coal-Mac, Inc., 864 S.W.2d 302, 1992 Ky. App. LEXIS 143 (Ky. Ct. App. 1992).

39.Employment Retirement System.

Governor and General Assembly were not immune and were properly before the court in a declaratory judgment action to determine whether the 1992 Budget Bill usurped the authority of the Board of Trustees of the Kentucky Employees Retirement System to act independently to set employer contribution rates under KRS 61.692 and this section. Jones v. Board of Trustees, 910 S.W.2d 710, 1995 Ky. LEXIS 131 ( Ky. 1995 ).

Passage of the 1992 Budget Bill maintaining the rate of state contribution to the Kentucky Employment Retirement System (KERS) and suspending KRS 61.565 which allows the Board of Trustees of KERS to set the contribution rate, and the Governor’s failure to follow the board’s recommendations and his recommendation that KERS assets be modified to reflect market value and not book value as used by the board did not violate Kentucky statutes or the constitutionally protected contractual rights of KERS members as such modifications of the board’s recommendations were within the discretion of the Governor and General Assembly and the board could show no substantial infringement of promised benefits to KERS members. Jones v. Board of Trustees, 910 S.W.2d 710, 1995 Ky. LEXIS 131 ( Ky. 1995 ).

Ky. Rev. Stat. Ann. § 61.598 is not unconstitutional as an ex post facto law, because, although the statute operates retroactively, the assessment is not a punishment for a criminal act, and ex post facto laws apply only to criminal or penal matters, not generally to civil or private matters; the assessment is a civil assessment incurred for non-criminal actions. City of Villa Hills v. Ky. Ret. Sys., 2021 Ky. LEXIS 301 (Ky. Aug. 26, 2021).

Assessment of actuarial costs against a city following the retirement of one of its employees did not violate the prohibition against ex post facto laws because the assessment was a civil assessment incurred for non-criminal actions; the assessment was to redistribute actuarial costs according to statute, not to punish the city for a lawful employment decision. City of Villa Hills v. Ky. Ret. Sys., 2021 Ky. LEXIS 301 (Ky. Aug. 26, 2021).

40.Criminal Liability for Conduct of Another.

At the time the defendant committed the offense of wanton murder by complicity, she had fair warning that her failure to make a proper effort to protect her child from her husband’s assaults violated her legal duty to do so and, therefore, her conviction did not result in an ex post facto violation. Tharp v. Commonwealth, 40 S.W.3d 356, 2000 Ky. LEXIS 200 ( Ky. 2000 ), cert. denied, 534 U.S. 928, 122 S. Ct. 289, 151 L. Ed. 2d 213, 2001 U.S. LEXIS 7122 (U.S. 2001).

41.Criminal Liability Generally.

As the court’s holding that the McClellan definition of extreme mental or emotional disturbance (EED) did not apply to EED as a mitigator was an ameliorative, as opposed to a more onerous, interpretation than in prior case law, the decision had no ex post facto ramifications. Caudill v. Commonwealth, 120 S.W.3d 635, 2003 Ky. LEXIS 140 ( Ky. 2003 ).

Although the supreme court overruled the “born alive” rule and concluded that the felonious killing of a viable fetus, a “human being” for purposes of KRS 500.080(12), could be prosecuted as a homicide, the supreme court affirmed the court of appeals’ judgment because applying the new rule to defendant’s case would have been a retrospective application and a violation of due process. Commonwealth v. Morris, 142 S.W.3d 654, 2004 Ky. LEXIS 153 ( Ky. 2004 ).

2006 amendment to Ky. Rev. Stat. Ann. § 439.3401(1) was not an ex post facto law because increasing the time one had to serve prior to becoming parole eligible did not have a very real and direct effect on the actual time the prisoner remained behind bars, and since the amendment was textual in nature and did not change the violent offender definition, it was not retrospective. Pate v. Dep't of Corr., 466 S.W.3d 480, 2015 Ky. LEXIS 1747 ( Ky. 2015 ), overruled in part, Lee v. Ky. Dep't of Corr., 610 S.W.3d 254, 2020 Ky. LEXIS 399 ( Ky. 2020 ).

42.Parole.

Kentucky Parole Board’s application of sex offender statutes, KRS 439.340(11) and KRS 197.400 to 197.440 , which had not been in effect when an inmate committed rape, did not violate the Ex Post Facto Clause as there was no enhancement of punishment or elongation of a sentence. Stewart v. Commonwealth, 153 S.W.3d 789, 2005 Ky. LEXIS 12 ( Ky. 2005 ).

43.Sex Offender Registration.

Amendments to Kentucky Sex Offender Registration Act (SORA), KRS 17.510 , did not violate the Ex Post Facto Clause of the United States Constitution or the Kentucky Constitution because any potential punishment arising from violation of SORA was totally prospective and was not punishment for defendant’s past criminal behavior. Buck v. Commonwealth, 308 S.W.3d 661, 2010 Ky. LEXIS 95 ( Ky. 2010 ).

44.Post-incarceration Supervision.

Requiring five years’ post-incarceration supervision pursuant to KRS 532.043 was not an ex post facto violation under U.S. Const. art. I, § 9 and Ky. Const. § 19, absent proof that the events giving rise to the guilty plea occurred before the revised sentencing provisions of § 532.043 took effect. Brady v. Commonwealth, 396 S.W.3d 315, 2013 Ky. App. LEXIS 46 (Ky. Ct. App. 2013).

45.Deed Obligations.

In a case involving a deed to a city for a park, there was no violation of the constitutional prohibition against the impairment of contracts because the city did not create a law by seeking relief from a circuit court, and the circuit court's judgment did not invalidate, release, or extinguish the city's obligations under the deed. Williams v. City of Kuttawa, 466 S.W.3d 505, 2015 Ky. App. LEXIS 82 (Ky. Ct. App. 2015).

Cited:

Petroleum Exploration, Inc. v. Public Service Com., 304 U.S. 209, 58 S. Ct. 834, 82 L. Ed. 1294, 1938 U.S. LEXIS 1077 (1938); Owensboro v. Owensboro Waterworks Co., 115 F. 318, 1902 U.S. App. LEXIS 4218 (6th Cir. 1902); Lyon v. Union Gas & Oil Co., 274 F. 957, 1921 U.S. Dist. LEXIS 1230 (D. Ky. 1921 ); Sunbeam Corp. v. Richardson, 144 F. Supp. 583, 1956 U.S. Dist. LEXIS 2806 (D. Ky. 1956 ); Kenton Water Co. v. Covington, 156 Ky. 569 , 161 S.W. 988, 1913 Ky. LEXIS 489 ( Ky. 1913 ); Hughes v. Marvin, 216 Ky. 190 , 287 S.W. 561, 1926 Ky. LEXIS 872 ( Ky. 1926 ); Montgomery County Fiscal Court v. Duff, 227 Ky. 508 , 13 S.W.2d 515, 1929 Ky. LEXIS 909 ( Ky. 1929 ); State Highway Com. v. County Board of Education, 264 Ky. 95 , 94 S.W.2d 302, 1936 Ky. LEXIS 279 ( Ky. 1936 ); Holt v. Clements, 265 Ky. 546 , 97 S.W.2d 397, 1936 Ky. LEXIS 531 ( Ky. 1936 ); Middlesboro v. Kentucky Utilities Co., 284 Ky. 833 , 146 S.W.2d 48, 1940 Ky. LEXIS 587 ( Ky. 1940 ); Pickard v. Cross, 292 Ky. 70 , 165 S.W.2d 986, 1942 Ky. LEXIS 35 ( Ky. 1942 ); Rice v. Marcum, 294 Ky. 486 , 172 S.W.2d 75, 1943 Ky. LEXIS 483 ( Ky. 1943 ); Mutual Life Ins. Co. v. Bryant, 296 Ky. 815 , 177 S.W.2d 588, 1943 Ky. LEXIS 169 , 153 A.L.R. 422 ( Ky. 1943 ); Bowling Green v. Davis, 313 Ky. 203 , 230 S.W.2d 909, 1950 Ky. LEXIS 853 ( Ky. 1950 ); Donohue v. Heuser, 239 S.W.2d 238, 1951 Ky. LEXIS 866 ( Ky. 1951 ); Miller v. Kentucky State Real Estate Com., 251 S.W.2d 845, 1952 Ky. LEXIS 933 ( Ky. 1952 ); Corbin Deposit Bank v. King, 384 S.W.2d 302, 1964 Ky. LEXIS 83 ( Ky. 1964 ); Arciero v. Hager, 397 S.W.2d 50, 1965 Ky. LEXIS 57 ( Ky. 1965 ); Morris v. Wingo, 428 S.W.2d 765, 1968 Ky. LEXIS 724 ( Ky. 1968 ); Maggard v. International Harvester Co., 508 S.W.2d 777, 1974 Ky. LEXIS 632 ( Ky. 1974 ); Morse v. Alley, 638 S.W.2d 284, 1982 Ky. App. LEXIS 238 (Ky. Ct. App. 1982); Knox v. Commonwealth, 735 S.W.2d 711, 1987 Ky. LEXIS 229 ( Ky. 1987 ); Manns v. Commonwealth, 80 S.W.3d 439, 2002 Ky. LEXIS 114 ( Ky. 2002 ).

Opinions of Attorney General.

A city ordinance outlawing existing broad form deeds which in effect would provide damages for surface owners in strip and auger mining operations would be an unconstitutional impairment of existing contract obligations. OAG 72-851 .

Contracts entered into between a new community district and the office of new communities development (ONCD) would be binding upon the successor city when the district is incorporated in view of KRS 108A.130 (now repealed) and this section which prohibits the impairment of valid contracts between a public body and third parties. OAG 73-318 .

Elections cannot be held without affirmative constitutional or statutory authority and there is no such authorization for placing upon county or statewide ballots in a general election, such questions as the abolition of strip mining or the abrogation of the broad form deed providing that where strip and auger mining is conducted no damages to the surface owners are required except for arbitrary, wanton or malicious acts and as pointed out in OAG 72-851 , such abrogation of the existing broad form deeds would be unconstitutional as an impairment of the existing contract obligations under this section of the constitution. OAG 73-518 .

The provisions of a city bond ordinance, relating to keeping a combined project intact and under city ownership and operation while any revenue bonds are outstanding, are contractual in nature and if the city were to lease or sell part of the project while any bonds were outstanding, would constitute an unconstitutional impairment of its contractual obligations. OAG 74-80 .

The Commonwealth has created a contractual obligation with the members of the various public employe retirement systems as a consequence of which the General Assembly cannot limit retirement benefits to certain maximum percentages of final annual salary since such a limitation would be in direct violation with this section and with United States Constitution, Article 1, § 10; however, a percentage limit could be applied prospectively to present non-retired members and future members of the systems but could not be applied retroactively. OAG 78-4 (modified by OAG 81-416 to the extent of conflict).

Subsection (3) of KRS 292.380 , as amended in 1978, is unconstitutional, since it mandates the release of escrowed securities involved in pre-existing escrow agreements without any regard whatsoever for the original conditions of the escrow agreements, and this statute of disregard and alteration, if applied, would constitute an impairment, under these federal and state constitutional sections, of the obligations of contract, since it would destroy the relative or derivative rights of public purchasers of securities, and would concomitantly nullify the historical purpose underlying the imposing of conditions in the escrow agreements. OAG 78-669 .

The General Assembly is prohibited by KRS 161.714 , Ky. Const., § 19 and U.S. Const., art. 1, § 10, from enacting any law which would impair or reduce the expected retirement benefit of any present or new teacher, or those benefits received by retired members; however, any amendment which would not reduce or impair benefits is not prohibited and the retirement system statutes may also be amended to affect those individuals who will become members of the system at a future date. OAG 81-416 (modifying OAG 78-4 to the extent of conflict).

Even though the contracts entered into between local boards and their teachers fail to reference the minimum 185 day school term, these contracts cannot be construed to cover any period less than the 185 school days established by statute since all full-time teachers in the public common schools have, by operation of law, a contract that entitles them to be paid for 185 school days, four (4) of which are to be utilized for in-service and professional development and planning activities; accordingly, the teachers employed by the local school boards for the 1981-82 school year had a vested right to employment and salary for at least 185 school days and the possible reduction in state funds for teachers’ salaries for two (2) mandated in-service days in no way could be used to divorce the local school districts from their preexisting obligation of contract for a minimum school term of 185 days. OAG 82-106 .

Acts 1982, Ch. 99, amending KRS 198A.010 et seq. governing low-cost housing, did not apply retroactively, only prospectively, and had no retroactive application where the Kentucky Housing Corporation had engaged in contractual commitment and where the originators and/or servicers had engaged in contractual commitment with persons furnished housing under the 1981-Series A Bond Issue or furnished housing under prior bond issues where new loan commitments were made; the key is prior contractual commitment on the part of KHC, its originators and/or servicers and persons furnished housing under those programs and, in any event, the prohibition of this section must be strictly observed. OAG 82-195 .

The phrase “obligation of contract” in the federal and state prohibitions against impairment extends to contracts between a state or political subdivision and private persons, as well as to contracts between private persons; thus the sweeping prohibition of this section applies to Kentucky Housing Corporation (KHC) business, regardless of KRS 198A.070 , relating to the specific nature of the obligations of KHC. OAG 82-195 .

KRS 74.361 and 74.363 , concerning mergers of water districts, are in conformity with the spirit of this section, which prohibits any law impairing the obligation of contracts. OAG 82-259 .

Since the statute on tampering with odometers, KRS 190.260 et seq., is civil in nature, the provision of KRS 190.270(4) which provides that the revocation and suspension schedule shall be retroactive to offenses committed as of July 1, 1976, is not violative of the ex post facto prohibitions of the Kentucky and United States Constitutions. OAG 83-22 .

The transfer of funds from the Kentucky Retirement System’s Retirement Allowance Account to the General Fund by the 1988 General Assembly by Acts 1988, Chapter 437, Part VIII, Fund Transfer was unconstitutional, regardless of the accounting process used. Since the legislature made no provision for replacing these transferred funds in the future, the transfer of funds was not reasonable under the legislature’s reserved power to make reasonable modification in the pension plan. Moreover, since the inviolable contract statute (KRS 61.692 ) was left in effect, as it had to be, the fund transfer constituted an unlawful impairment of the state’s obligation to its employees under the Kentucky Employees Retirement System (KERS) retirement statutes to ensure that the contribution rates are sufficient to maintain the pension fund on an actuarial sound basis. OAG 90-6 .

Retroactive amendment to KRS 61.637(7)(a) would “impair the obligations” of the “inviolable contract” of the Commonwealth created by KRS 61.510 to 61.705 thereby interfering with the vested rights of current members of the Kentucky Retirement Systems in violation of both the Contract Clause of the United States Constitution and this section. OAG 04-001 .

Research References and Practice Aids

Cross-References.

Statutes not to be construed as retroactive, KRS 446.080 .

Journal of Mineral Law & Policy.

Articles, Kentucky’s Broad Form Deed Amendment: Constitutional Considerations, 5 J.M.L. & P. 9 (1989-90).

Journal of Natural Resources & Environmental Law.

Articles, The Broad Form Deed Amendment: Does it Still Have a Purpose? An Analysis of the Broad Form Deed Amendment in Light of Ward v. Harding, 12 J. Nat. Resources & Envtl. L. 101 (1996-97).

Northern Kentucky Law Review.

Wintersheimer, State Constitutional Law, 20 N. Ky. L. Rev. 591 (1993).

Brandt, Kentucky Real Estate Law Survey: 1990 Through 1993, 21 N. Ky. L. Rev. 435 (1994).

Note, Ward v. Harding: Kentucky Strips Miners of Dominate Rights, Burying a Century of Litigation, 21 N. Ky. L. Rev. 649 (1994).

§ 20. Attainder, operation of restricted.

No person shall be attainted of treason or felony by the General Assembly, and no attainder shall work corruption of blood, nor, except during the life of the offender, forfeiture of estate to the Commonwealth.

NOTES TO DECISIONS

1.Application.

This section related only to punishment for crime. Arciero v. Hager, 397 S.W.2d 50, 1965 Ky. LEXIS 57 ( Ky. 1965 ), overruled, Hicks v. Enlow, 764 S.W.2d 68, 1989 Ky. LEXIS 8 ( Ky. 1989 ).

2.Forfeiture of Estate.

This section did not permit forfeiture to state of fee in realty by way of punishment for even greatest of crimes. Louisville School Board v. King, 127 Ky. 824 , 107 S.W. 247, 32 Ky. L. Rptr. 687 , 1908 Ky. LEXIS 25 ( Ky. 1908 ).

3.Liquor Laws.

KRS 242.310 , providing for forfeiture of property used in illegal liquor traffic, does not violate this section. Moore v. Commonwealth, 293 Ky. 55 , 168 S.W.2d 342, 1943 Ky. LEXIS 558 ( Ky. 1943 ).

4.Nuisance.

The prohibition against bills of attainder applies only to legislative punishment for crime and not to forfeitures imposed for operating a nuisance. Moore v. Commonwealth, 293 Ky. 55 , 168 S.W.2d 342, 1943 Ky. LEXIS 558 ( Ky. 1943 ).

Cited:

Proffitt v. Louisville & Jefferson County Metro. Sewer Dist., 850 S.W.2d 852, 1993 Ky. LEXIS 66 ( Ky. 1993 ).

Research References and Practice Aids

Kentucky Law Journal.

Bratt, A Primer on Kentucky Intestacy Laws, 82 Ky. L.J. 29 (1993-94).

§ 21. Descent in case of suicide or casualty.

The estate of such persons as shall destroy their own lives shall descend or vest as in cases of natural death; and if any person shall be killed by casualty, there shall be no forfeiture by reason thereof.

Research References and Practice Aids

Cross-References.

Murderer may not inherit from victim, KRS 381.280 .

Kentucky Law Journal.

Bratt, A Primer on Kentucky Intestacy Laws, 82 Ky. L.J. 29 (1993-94).

§ 22. Standing armies restricted — Military subordinate to civil — Quartering soldiers restricted.

No standing army shall, in time of peace, be maintained without the consent of the General Assembly; and the military shall, in all cases and at all times, be in strict subordination to the civil power; nor shall any soldier, in time of peace, be quartered in any house without the consent of the owner, nor in time of war, except in a manner prescribed by law.

NOTES TO DECISIONS

1.Construction.

The militia, in active service and in every emergency that arises in such service, is subordinate to the civil power. Franks v. Smith, 142 Ky. 232 , 134 S.W. 484, 1911 Ky. LEXIS 217 ( Ky. 1911 ) ( Ky. 1911 ).

Research References and Practice Aids

Cross-References.

Militia, Const., §§ 219 to 223; KRS chs. 36 to 38.

Kentucky Law Journal.

Wendelsdorf, Constitutional Law — The Power of a Governor to Proclaim Martial Law and Use State Military Forces to Suppress Campus Demonstrations, 59 Ky. L.J. 547 (1970).

§ 23. No office of nobility or hereditary distinction, or for longer than a term of years.

The General Assembly shall not grant any title of nobility or hereditary distinction, nor create any office the appointment of which shall be for a longer time than a term of years.

NOTES TO DECISIONS

1.County Officials.

County examiner could be appointed and hold office at pleasure of court without violation of this section, since his actual term of office was for four (4) years even though he could hold office longer than that if allowed. Kratzer v. Commonwealth, 228 Ky. 684 , 15 S.W.2d 473, 1929 Ky. LEXIS 616 ( Ky. 1929 ).

Refusal of fiscal court to reappoint plaintiff at the end of his term as county treasurer, an office which has the indicia of a policy making government position which vests its holder with discretionary power, considerable responsibility, and confidence and supervisory authority, and instead to make a patronage appointment of another person to the position was consistent with KRS 67.080 , 67.083 and 68.010 and Const., § 107 and this section and such action of the court did not violate the First or Fourteenth Amendments to the United States Constitution and was consistent with federal precedent. Garrard County Fiscal Court v. Layton, 840 S.W.2d 208, 1992 Ky. App. LEXIS 97 (Ky. Ct. App. 1992), cert. denied, 507 U.S. 1032, 113 S. Ct. 1851, 123 L. Ed. 2d 474, 1993 U.S. LEXIS 2825 (U.S. 1993).

2.Municipal Officers.

This section did not apply to appointed municipal officers. Louisville v. Ross, 138 Ky. 764 , 129 S.W. 101, 1910 Ky. LEXIS 131 ( Ky. 1910 ). See Neumeyer v. Krakel, 110 Ky. 624 , 62 S.W. 518, 23 Ky. L. Rptr. 190 , 1901 Ky. LEXIS 124 ( Ky. 1901 ).

This section did not apply to appointive municipal officers. Kerr v. Louisville, 271 Ky. 335 , 111 S.W.2d 1046, 1937 Ky. LEXIS 241 ( Ky. 1937 ).

3.Term of Years.

The word “term” refers to office itself and not to tenure of incumbent, and means fixed period of time during which officer or appointee is entitled to hold office, perform its functions, and enjoy its privileges and emoluments, and does not apply to appointive office held at pleasure of appointing power. Owensboro v. Hazel, 229 Ky. 752 , 17 S.W.2d 1031, 1929 Ky. LEXIS 843 ( Ky. 1929 ). See Kratzer v. Commonwealth, 228 Ky. 684 , 15 S.W.2d 473, 1929 Ky. LEXIS 616 ( Ky. 1929 ).

Under this section, “term” meant certain and fixed period of years which, once fixed, could not be changed, so that school superintendent appointed for term of four (4) years under KRS 160.350 could not be reappointed for another or different term before expiration of such four (4) year period. Board of Education v. Gulick, 398 S.W.2d 483, 1966 Ky. LEXIS 489 ( Ky. 1966 ).

4.Unlimited Term.

Law under which private detective agency was incorporated, with no limit on time of service of its members, was violative of this section. Swincher v. Commonwealth, 72 S.W. 306, 24 Ky. L. Rptr. 1897 , 1903 Ky. LEXIS 301 (Ky. Ct. App. 1903).

Cited:

Hoke v. Richie, 100 Ky. 66 , 18 Ky. L. Rptr. 546 , 37 S.W. 266, 1896 Ky. LEXIS 140 ( Ky. 1896 ); Fullerton v. Mann, 214 Ky. 764 , 284 S.W. 113, 1926 Ky. LEXIS 433 ( Ky. 1926 ); Petty v. Talbott, 256 Ky. 688 , 76 S.W.2d 940, 1934 Ky. LEXIS 475 ( Ky. 1934 ).

Research References and Practice Aids

Cross-References.

Term of office of county and district officers, Const., § 107; inferior state officers, Const., § 93.

Kentucky Bench & Bar.

Lear and Fleenor, Board and Commission Appointments: Executive Power — With Limits, Vol. 72, No. 4, July 2008, Ky. Bench & Bar 23.

§ 24. Emigration to be free.

Emigration from the State shall not be prohibited.

NOTES TO DECISIONS

1.Residency Requirements.

Trial court did not err in granting the Commonwealth’s motion to dismiss a petition or a declaration of rights filed by a school district, board of education, and superintendent, contesting the constitutionality of KRS 160.350(2) because requiring the superintendent to reside in Kentucky after he was appointed was not an improper restraint upon his right to travel and migrate under Ky. Const. § 24 and the United States Constitution; KRS 160.350(2) imposed a permissible residency requirement because there was no requirement that a candidate for superintendent had to have been a Kentucky resident for a certain number of years, but instead, Kentucky residency was imposed as a condition of employment that could occur after hiring. Newport Indep. Sch. District/Newport Bd. of Educ. v. Commonwealth, 300 S.W.3d 216, 2009 Ky. App. LEXIS 118 (Ky. Ct. App. 2009).

§ 25. Slavery and involuntary servitude forbidden.

Slavery and involuntary servitude in this State are forbidden, except as a punishment for crime, whereof the party shall have been duly convicted.

NOTES TO DECISIONS

1.Injunctions.

It is the general rule that an injunction is not permissible to restrain criminal prosecution, and a claim that the requirement to work roads under a law violated this section cannot give equity jurisdiction to enjoin a prosecution under the law. Johnson v. Tartar, 199 Ky. 45 , 250 S.W. 498, 1923 Ky. LEXIS 758 ( Ky. 1923 ).

An injunction preventing a teachers’ strike does not constitute involuntary servitude in violation of this section. Jefferson County Teachers Asso. v. Board of Education, 463 S.W.2d 627, 1970 Ky. LEXIS 661 ( Ky. 1970 ), cert. denied, 404 U.S. 865, 92 S. Ct. 75, 30 L. Ed. 2d 109, 1971 U.S. LEXIS 3701 (U.S. 1971).

2.Nonpenal Labor.

Former law that provided that all persons maintained by city in jail, including those jailed for default of surety for good behavior or to keep the peace, be compelled to labor to offset boarding costs, was violative of this section in its application to those so maintained for other than criminal punishment purposes. Stone v. Paducah, 120 Ky. 322 , 86 S.W. 531, 27 Ky. L. Rptr. 717 , 1905 Ky. LEXIS 102 ( Ky. 1905 ).

3.Penal Labor.

Defendant could be put to work on streets, until he paid his police court fine thereby, without judgment ordering such work in view of mandatory work provision of city ordinance, and thus this section was not violated. Bartlett v. Paducah, 91 S.W. 264, 28 Ky. L. Rptr. 1174 , 1906 Ky. LEXIS 360 (Ky. Ct. App. 1906). See Murray v. Paducah, 91 S.W. 265, 28 Ky. L. Rptr. 1135 (1906).

Cited:

Burnam v. Commonwealth, 228 Ky. 410 , 15 S.W.2d 256, 1929 Ky. LEXIS 560 ( Ky. 1929 ); Bard v. Board of Drainage Comm’rs, 274 Ky. 491 , 118 S.W.2d 1013, 1938 Ky. LEXIS 292 ( Ky. 1938 ); Commonwealth v. Beasy, 386 S.W.2d 444, 1965 Ky. LEXIS 502 ( Ky. 1965 ).

§ 26. General powers subordinate to Bill of Rights — Laws contrary thereto are void.

To guard against transgression of the high powers which we have delegated, We Declare that everything in this Bill of Rights is excepted out of the general powers of government, and shall forever remain inviolate; and all laws contrary thereto, or contrary to this Constitution, shall be void.

NOTES TO DECISIONS

1.Construction.

If a law does not violate any other section of the Constitution, it is not unconstitutional by reason of anything contained in this section. Nichols v. Henry, 301 Ky. 434 , 191 S.W.2d 930, 1945 Ky. LEXIS 746 ( Ky. 1945 ).

2.Courts.

Pursuant to this section, it was within power of courts to hold enactments in violation of bill of rights illegal and void. Louisville of Kuhn, 284 Ky. 684 , 145 S.W.2d 851, 1940 Ky. LEXIS 563 ( Ky. 1940 ).

Function of courts under this section was to determine constitutional validity of legislation, not wisdom, need or appropriateness of it or purposes motivating it, and in this respect one who questioned validity of such legislation had burden of sustaining his contentions. Johnson v. Commonwealth, 291 Ky. 829 , 165 S.W.2d 820, 1942 Ky. LEXIS 329 ( Ky. 1942 ).

3.Delay of Trial.

This section limited power of legislature to enact laws in contravention of Const., § 14, such that KRS 177.087 (now repealed) was therefore unconstitutional insofar as it provided for unusual and unnatural delay of trial. Commonwealth ex rel. Tinder v. Werner, 280 S.W.2d 214, 1955 Ky. LEXIS 152 ( Ky. 1955 ).

4.Police Power.

Even though under this section courts could declare void any enactments violative of bill of rights, such enactments would still be valid if made pursuant to proper exercise of police power; yet courts could nevertheless hold such enactments void if they were shown to be unreasonable and arbitrary with respect to supposed evils sought to be suppressed. Louisville of Kuhn, 284 Ky. 684 , 145 S.W.2d 851, 1940 Ky. LEXIS 563 ( Ky. 1940 ).

5.Sovereign Immunity.

Notwithstanding any other intent of this section and Const., §§ 2 and 14, it was not intent thereof to in any way impinge on right of commonwealth to sovereign immunity under Const., § 231. Wood v. Board of Education, 412 S.W.2d 877, 1967 Ky. LEXIS 445 ( Ky. 1967 ).

Sovereign immunity does not contradict § 14 or this section or any other parts of the State Constitution. Rooks v. University of Louisville, 574 S.W.2d 923, 1978 Ky. App. LEXIS 639 (Ky. Ct. App. 1978), overruled, Guffey v. Cann, 766 S.W.2d 55, 1989 Ky. LEXIS 4 ( Ky. 1989 ).

6.Extrinsic Evidence Rule.

The so-called enrolled bill doctrine, which says that a court may not look behind a bill enrolled and certified by the appropriate officers to determine if there are any defects, is rejected, and the Supreme Court hereby adopts the extrinsic evidence rule, which says that there is a prima facie presumption that an enrolled bill is valid, but such presumption may be overcome by clear, satisfactory and convincing evidence establishing that constitutional requirements have not been met. D & W Auto Supply v. Department of Revenue, 602 S.W.2d 420, 1980 Ky. LEXIS 243 ( Ky. 1980 ).

7.Habeas Corpus Review.

RCr 11.42(10) is not a substantive law that restricted a petitioner’s access to habeas corpus relief pursuant to KRS 419.020 , in violation of Ky. Const. §§ 16, 26 and 27; rather, it exists simultaneously. Commonwealth v. Carneal, 274 S.W.3d 420, 2008 Ky. LEXIS 294 ( Ky. 2008 ), cert. denied, 558 U.S. 906, 130 S. Ct. 274, 175 L. Ed. 2d 184, 2009 U.S. LEXIS 5932 (U.S. 2009).

Cited:

Berea College v. Commonwealth, 123 Ky. 209 , 94 S.W. 623, 29 Ky. L. Rptr. 284 , 1906 Ky. LEXIS 139 ( Ky. 1906 ); Columbia Trust Co. v. Lincoln Institute of Kentucky, 138 Ky. 804 , 129 S.W. 113, 1910 Ky. LEXIS 138 ( Ky. 1910 ); Williams v. Wedding, 165 Ky. 361 , 176 S.W. 1176, 1915 Ky. LEXIS 53 1 ( Ky. 1915 ); Harris v. Louisville, 165 Ky. 559 , 177 S.W. 472, 1915 Ky. LEXIS 578 ( Ky. 1915 ); Burton v. Ott, 226 Ky. 647 , 11 S.W.2d 700, 1928 Ky. LEXIS 148 ( Ky. 1928 ); McCown v. Gose, 244 Ky. 402 , 51 S.W.2d 251, 1932 Ky. LEXIS 441 ( Ky. 1932 ); Kerr v. Louisville, 271 Ky. 335 , 111 S.W.2d 1046, 1937 Ky. LEXIS 241 ( Ky. 1937 ); Fischer v. Grieb, 272 Ky. 166 , 113 S.W.2d 1139, 1938 Ky. LEXIS 93 ( Ky. 1938 ); Bard v. Board of Drainage Comm'rs, 274 Ky. 491 , 118 S.W.2d 1013, 1938 Ky. LEXIS 292 ( Ky. 1938 ); Great Atlantic & Pacific Tea Co. v. Kentucky Tax Com., 278 Ky. 367 , 128 S.W.2d 581, 1939 Ky. LEXIS 406 ( Ky. 1939 ); Burrow v. Kapfhammer, 284 Ky. 753 , 145 S.W.2d 1067, 1940 Ky. LEXIS 577 ( Ky. 1940 ); Talbott v. Thomas, 286 Ky. 786 , 151 S.W.2d 1, 1941 Ky. LEXIS 277 ( Ky. 1941 ); Masonic Widows & Orphans Home & Infirmary v. Louisville, 309 Ky. 532 , 217 S.W.2d 815, 1948 Ky. LEXIS 1081 ( Ky. 1948 ); Commonwealth v. St. Matthews Gas & Electric Shop, Inc., 252 S.W.2d 673, 1952 Ky. LEXIS 1011 ( Ky. 1952 ); Commonwealth v. Beasy, 386 S.W.2d 444, 1965 Ky. LEXIS 502 ( Ky. 1965 ); Singleton v. Commonwealth, 740 S.W.2d 159, 1986 Ky. App. LEXIS 1484 (Ky. Ct. App. 1986); Union Trust, Inc. v. Brown, 757 S.W.2d 218, 1988 Ky. App. LEXIS 133 (Ky. Ct. App. 1988); Steelvest, Inc. v. Scansteel Serv. Ctr., 908 S.W.2d 104, 1995 Ky. LEXIS 97 ( Ky. 1995 ); Posey v. Commonwealth, 185 S.W.3d 170, 2006 Ky. LEXIS 53 ( Ky. 2006 ); Zuckerman v. Bevin, 565 S.W.3d 580, 2018 Ky. LEXIS 502 ( Ky. 2018 ).

Opinions of Attorney General.

A state agency lacks authority to enforce an unconstitutional law. OAG 90-137 .

Constitution, §§ 157, 158, 162, 179 and this section do not impose a general ban upon a county agreeing to joint and several liability with other counties or political entities; furthermore, these constitutional sections do not prohibit payment of obligations incurred in a prior year, from moneys of a subsequent year. OAG 93-54 .

University policy prohibiting possession or storage of deadly weapons or destructive devices on any university campus or in any facility owned, leased or operated by the University does not violate Const., § 1, Seventh. The policy therefore is not void pursuant to this section. OAG 96-40 .

Research References and Practice Aids

Kentucky Law Journal.

Snyder and Irland, The Separation of Governmental Powers Under the Constitution of Kentucky: A Legal and Historical Analysis of L.R.C. v. Brown, 73 Ky. L.J. 165 (1984-85).

Northern Kentucky Law Review.

Comments, Separation of Church and State: Education and Religion in Kentucky, 6 N. Ky. L. Rev. 125 (1979).

RIGHTS OF VICTIMS OF CRIME

§ 26A. Rights of victims of crime.

To secure for victims of criminal acts or public offenses justice and due process and to ensure crime victims a meaningful role throughout the criminal and juvenile justice systems, a victim, as defined by law which takes effect upon the enactment of this section and which may be expanded by the General Assembly, shall have the following rights, which shall be respected and protected by law in a manner no less vigorous than the protections afforded to the accused in the criminal and juvenile justice systems: victims shall have the reasonable right, upon request, to timely notice of all proceedings and to be heard in any proceeding involving a release, plea, sentencing, or in the consideration of any pardon, commutation of sentence, granting of a reprieve, or other matter involving the right of a victim other than grand jury proceedings; the right to be present at the trial and all other proceedings, other than grand jury proceedings, on the same basis as the accused; the right to proceedings free from unreasonable delay; the right to consult with the attorney for the Commonwealth or the attorney’s designee; the right to reasonable protection from the accused and those acting on behalf of the accused throughout the criminal and juvenile justice process; the right to timely notice, upon request, of release or escape of the accused; the right to have the safety of the victim and the victim’s family considered in setting bail, determining whether to release the defendant, and setting conditions of release after arrest and conviction; the right to full restitution to be paid by the convicted or adjudicated party in a manner to be determined by the court, except that in the case of a juvenile offender the court shall determine the amount and manner of paying the restitution taking into consideration the best interests of the juvenile offender and the victim; the right to fairness and due consideration of the crime victim’s safety, dignity, and privacy; and the right to be informed of these enumerated rights, and shall have standing to assert these rights. The victim, the victim’s attorney or other lawful representative, or the attorney for the Commonwealth upon request of the victim may seek enforcement of the rights enumerated in this section and any other right afforded to the victim by law in any trial or appellate court with jurisdiction over the case. The court shall act promptly on such a request and afford a remedy for the violation of any right. Nothing in this section shall afford the victim party status, or be construed as altering the presumption of innocence in the criminal justice system. The accused shall not have standing to assert the rights of a victim. Nothing in this section shall be construed to alter the powers, duties, and responsibilities of the prosecuting attorney. Nothing in this section or any law enacted under this section creates a cause of action for compensation, attorney’s fees, or damages against the Commonwealth, a county, city, municipal corporation, or other political subdivision of the Commonwealth, an officer, employee, or agent of the Commonwealth, a county, city, municipal corporation, or any political subdivision of the Commonwealth, or an officer or employee of the court. Nothing in this section or any law enacted under this section shall be construed as creating:

  1. A basis for vacating a conviction; or
  2. A ground for any relief requested by the defendant.

History. Amendment proposed by Acts 2020 ch. 85, § 2 and ratified by November 3, 2020.

§ 26A. Rights of victims of crime. [Contingently enacted]

To protect human life, nothing in this Constitution shall be construed to secure or protect a right to abortion or require the funding of abortion.

DISTRIBUTION OF THE POWERS OF GOVERNMENT

§ 27. Powers of government divided among legislative, executive, and judicial departments.

The powers of the government of the Commonwealth of Kentucky shall be divided into three distinct departments, and each of them be confined to a separate body of magistracy, to wit: Those which are legislative, to one; those which are executive, to another; and those which are judicial, to another.

NOTES TO DECISIONS

1.Purpose.

This section intends to divide the sovereign power, which at one time existed in one person under the divine right of a king, into three (3) separate and distinct departments. Commonwealth v. Associated Industries of Kentucky, 370 S.W.2d 584, 1963 Ky. LEXIS 76 ( Ky. 1963 ).

2.Construction.

Any statute subject to the scrutiny of the separation of powers doctrine enunciated in Const., § 28 and this section should be judged by a strict construction of those provisions. Legislative Research Com. by Prather v. Brown, 664 S.W.2d 907, 1984 Ky. LEXIS 300 ( Ky. 1984 ).

This section does not apply to municipal governments. Hyman v. City of Louisville, 132 F. Supp. 2d 528, 2001 U.S. Dist. LEXIS 4016 (W.D. Ky. 2001 ).

3.Invalid Fourth Branch.

KRS 7.090(1), which declares the Legislative Research Commission (LRC) to be an independent agency of state government is constitutionally invalid, because the LRC is an “oversight” and service organization for and on behalf of the General Assembly, and as such, it is a part of the General Assembly, the legislative branch of government; the LRC is not a fourth branch of the government. Legislative Research Com. by Prather v. Brown, 664 S.W.2d 907, 1984 Ky. LEXIS 300 ( Ky. 1984 ).

4.Delegation of Power.

KRS 337.510 and 337.520 , fixing minimum wages for public laborers, are not an unconstitutional delegation of legislative power to private persons, associations, or corporations in contravention of Const., §§ 27 to 29. Baughn v. Gorrell & Riley, 311 Ky. 537 , 224 S.W.2d 436, 1949 Ky. LEXIS 1155 ( Ky. 1949 ).

Ordinance requiring mayor’s approval of junkyard location for licensing was, absent any guidelines for such official to follow pursuant to such approval, unconstitutional delegation of authority. Turner v. Peters, 327 S.W.2d 958, 1959 Ky. LEXIS 88 ( Ky. 1959 ).

Former law that authorized public aid to private institutions for education of exceptional children, while failing to prescribe very definite standards by which board of education was to proceed thereunder, nevertheless did not constitute invalid delegation of legislative authority under this section and Const., § 28. Butler v. United Cerebral Palsy, Inc., 352 S.W.2d 203, 1961 Ky. LEXIS 200 ( Ky. 1961 ).

The legislature fixed adequate standards by which the state board of health must be guided in carrying out the functions committed to it by subsection (14) of KRS 218.010 (repealed). Hohnke v. Commonwealth, 451 S.W.2d 162, 1970 Ky. LEXIS 379 ( Ky. 1970 ).

Legislation (KRS 337.295 ) giving the commissioner of labor the power to issue regulations defining and governing provisions for minimum wages and overtime payments did not constitute an invalid delegation of legislative authority. Kentucky Municipal League v. Commonwealth, 530 S.W.2d 198, 1975 Ky. LEXIS 48 ( Ky. 1975 ).

The provisions of former law, authorizing the commissioner to exempt certain physicians from the patient compensation fund and to fix the rate of surcharges, were not unconstitutional on their faces and, if properly implemented, would not have violated this section. McGuffey v. Hall, 557 S.W.2d 401, 1977 Ky. LEXIS 533 ( Ky. 1977 ).

KRS 7.100(8) which attempts to grant all authority constitutional and otherwise, express and inherent, save only the power to pass legislation to the General Assembly’s agent, the Legislative Research Commission (LRC), while the General Assembly is not in session, is an impermissible grant of power to the LRC under the separation of powers doctrine of Const., § 28 and this section; it also violates Const., § 42, in that such a provision brings new life to the General Assembly (through the LRC) following adjournment. Legislative Research Com. by Prather v. Brown, 664 S.W.2d 907, 1984 Ky. LEXIS 300 ( Ky. 1984 ).

Subsection (3) of KRS 189A.010 , which directs that the minimum sentences for repeat offenders established in the earlier portions of that statute, shall not be subject to suspension, probation, or any other form of conditional release or early discharge, is not a violation of the concept of separation of powers of this section and Const., § 28. Ratliff v. Commonwealth, 719 S.W.2d 445, 1986 Ky. App. LEXIS 1203 (Ky. Ct. App. 1986), limited, Osborne v. Commonwealth, 867 S.W.2d 484, 1993 Ky. App. LEXIS 151 (Ky. Ct. App. 1993), overruled, Commonwealth v. Ramsey, 920 S.W.2d 526, 1996 Ky. LEXIS 38 ( Ky. 1996 ).

The Cabinet for Natural Resources and Environmental Protection has the authority to enforce reclamation and there is no violation of separation of powers thereby. Payne v. Commonwealth, Natural Resources & Environmental Protection Cabinet, 746 S.W.2d 90, 1988 Ky. App. LEXIS 29 (Ky. Ct. App. 1988).

Subsection (2) of KRS 177.841 is unconstitutionally vague and overbroad in failing to define “located outside an urban area” with sufficient precision to put the public on notice as to the areas to which it will apply. Further, this defect has not been constitutionally relieved by the General Assembly delegating to the Secretary of Transportation the responsibility of defining the term “urban,” because this becomes a constitutionally impermissible delegation of the legislative function. Diemer v. Commonwealth, Transp. Cabinet, Dep't of Highways, 786 S.W.2d 861, 1990 Ky. LEXIS 8 ( Ky. 1990 ) (decision prior to 1990 amendment of KRS 177.830 ).

KRS 324.281 gives the General Assembly no voice in the selection of committee members; its reach extends solely to providing a method of selection with reasonable criteria to generate commission members qualified for the position through participation of an organization, the Kentucky Association of Realtors, which is independent of legislative control; therefore, it does not transgress the mandate in this section of the Kentucky Constitution providing for separation of powers between the branches of government. Kentucky Ass'n of Realtors, Inc. v. Musselman, 817 S.W.2d 213, 1991 Ky. LEXIS 109 ( Ky. 1991 ).

The provisions of KRS 189A.200 which allow for the pretrial suspension of drivers’ licenses, do not unlawfully delegate executive power to the judiciary or violate, in any way, the doctrine of separation of powers provided for in Ky. Const., §§ 27 and 28. Commonwealth v. Raines, 847 S.W.2d 724, 1993 Ky. LEXIS 51 ( Ky. 1993 ), overruled in part, Commonwealth v. Howard, 969 S.W.2d 700, 1998 Ky. LEXIS 95 ( Ky. 1998 ), overruled in part, Commonwealth v. Carman, 455 S.W.3d 916, 2015 Ky. LEXIS 66 ( Ky. 2015 ).

KRS 411.188 , which specifies that collateral source payments shall be an admissible fact in any civil trial, was unconstitutional as it violated this section and Const., §§ 28 and 116, intruded on the responsibility exclusively assigned to the judicial branch of government, and served, in this case, to confuse the jury regarding the factual issue rather than assist them in deciding the damages incurred by the plaintiff. O'Bryan v. Hedgespeth, 892 S.W.2d 571, 1995 Ky. LEXIS 10 ( Ky. 1995 ).

KRS 64.345 , which mandates that a judicial officer approve the sheriff’s budget in certain counties, was a clear cut violation of this section and Const., § 28 because it mandates that a judicial officer perform what is clearly a function of the executive branch of government and so violated the separation of powers. Vaughn v. Knopf, 895 S.W.2d 566, 1995 Ky. LEXIS 49 ( Ky. 1995 ).

The investigations and hearings of the Cabinet for Human Resources, Department for Health Services, conducted pursuant to statutory and regulatory authority in administering the Special Supplemental Food for Women, Infant and Children (WIC) Program and resulting in sanctions imposed on vendors, were not violative of the separation of powers under this Ky. Const., § 28. Cabinet for Human Resources, Dep't of Health Servs. v. Kanter, 898 S.W.2d 508, 1995 Ky. App. LEXIS 62 (Ky. Ct. App. 1995).

Failure of legislature to define the words “public service information” and “similar information” appearing in KRS 177.863(4)(a) provided no guidance to the Transportation Cabinet, which omitted the words from their regulations, and amounted to an unconstitutional delegation of the legislative power to the Cabinet in violation of this section and Ky. Const., § 28. Flying J Travel Plaza v. Transportation Cabinet, Dep't of Highways, 928 S.W.2d 344, 1996 Ky. LEXIS 41 ( Ky. 1996 ).

The delegation of power to a private foundation does not violate the separation of powers doctrine as such doctrine only pertains to the distribution of power among the three (3) branches of government. Yeoman v. Commonwealth Health Policy Bd., 983 S.W.2d 459, 1998 Ky. LEXIS 140 ( Ky. 1998 ).

Under Kentucky Supreme Court precedents, H.B. 389(4) 2000 Reg. Sess. ( Ky. 2000 ), which amended a provision of the Judicial Retirement Act, KRS 21.450(3) was clearly an unconstitutional delegation, as the unintelligible statute had neither “an intelligible principle,” nor standards controlling the exercise of administrative discretion, and the Kentucky Supreme Court concluded that Ky. H.B. 389(4), subsequently codified at KRS 21.450(3), was unconstitutional because it violated the nondelegation doctrine embodied in Ky. Const. §§ 27, 28, 29 and 60. Bd. of Trs. of the Judicial Form Ret. Sys. v. AG, 132 S.W.3d 770, 2003 Ky. LEXIS 238 ( Ky. 2003 ).

Where KRS 67C.135(3) contained sufficient criteria for drawing new legislative districts and the fiscal court had no power or discretion as to the creation of the initial districts, the statute did not violate the prohibition against arbitrary power or the doctrine of separation of powers in Ky. Const. §§ 2, 27, 28, 29 when it required fiscal court approval of the plan without permitting it to make further refinements after-the-fact. Owens v. Jefferson County Fiscal Court, 128 S.W.3d 834, 2004 Ky. App. LEXIS 37 (Ky. Ct. App. 2004).

Because the Kentucky Legislature conferred sole and exclusive authority upon the Cabinet for Health and Family Services to determine the appropriate placement of a child committed to its care in KRS 610.010(11), pursuant to Ky. Const., §§ 27, 28, the trial court erred in restricting where the Cabinet could place two (2) children. Cabinet for Health & Family Servs. ex rel. A.W. v. Huddleston, 185 S.W.3d 222, 2006 Ky. App. LEXIS 47 (Ky. Ct. App. 2006).

Because KRS 177.081 did not violate the separation-of-powers doctrine under Ky. Const. §§ 27 and 28 as it neither improperly delegated legislative authority or encroached on the court’s authority to determine public use and necessity, and the fact that the Department of Highways could have applied a lower speed design or chosen a different route did not imply that the road design was arbitrary or an abuse of discretion, the condemnation action was affirmed. Rabourn v. Commonwealth, 2006 Ky. App. Unpub. LEXIS 137 (Ky. Ct. App. July 14, 2006).

Kentucky Parole Board acted within its authority and within the bounds of its discretionary powers when it denied defendant’s request for parole and ordered him to serve out the remainder of his sentence, as the Board’s actions did not violate the Separation of Powers under Ky. Const. §§ 27 and 28 because the power to grant parole was a purely executive function pursuant to KRS 13A.130 . Simmons v. Commonwealth, 232 S.W.3d 531, 2007 Ky. App. LEXIS 292 (Ky. Ct. App. 2007).

Nothing in the language of House Bill (HB) 406, 2008 Ky. Acts 127, altered, amended, or affected the sentences imposed upon criminal defendants in the courts of the Commonwealth, as all HB 406 did, relative to these appeals, was amend eligibility for a final discharge from parole from a prisoner or parolee’s maximum expiration date to the minimum expiration date and provided that a prisoner or parolee shall get credit against the sentence for time served on parole; since those were not judicial functions, HB 406 simply did not unconstitutionally interfere with any function of the judicial branch. Commonwealth ex rel. Conway v. Thompson, 300 S.W.3d 152, 2009 Ky. LEXIS 290 ( Ky. 2009 ).

Because the Kentucky Labor Cabinet’s (Cabinet) actions were not judicial in nature, the prevailing wage law did not improperly delegate judicial authority; there were statutory safeguards against an abuse of discretion by the Cabinet and there was sufficient guidance to prevent the Cabinet from exercising unfettered discretion. TECO Mech. Contr., Inc. v. Commonwealth, 366 S.W.3d 386, 2012 Ky. LEXIS 23 ( Ky. 2012 ).

Legislature had the authority and power to establish the Kentucky State Board of Licensure for Professional Engineers and Land Surveyors (Board) and to vest it with the discretionary authority to oversee a regulatory scheme governing the licensing and oversight of land surveyors in Kentucky; it was not a violation of the separation of powers doctrine for the Board to act in accordance with that grant of authority. Ky. State Bd. of Licensure for Prof'l Eng'rs & Land Surveyors v. Curd, 2012 Ky. App. LEXIS 33 (Ky. Ct. App. Feb. 17, 2012, sub. op., 2012 Ky. App. Unpub. LEXIS 1026 (Ky. Ct. App. Feb. 17, 2012).

Circuit court erred in concluding that the University of Kentucky was not in the executive branch of state government for purposes of Ky. Rev. Stat. § 45.237 et seq.; Ky. Rev. Stat. Ann. § 164.225 plainly provides that the University is an independent agency and instrumentality of the Commonwealth, and it is attached to the executive branch. Univ. of Ky. v. Moore, 599 S.W.3d 798, 2019 Ky. LEXIS 437 ( Ky. 2019 ).

University of Kentucky is in the executive branch of state government; the University of Kentucky may be included or excluded from the definition of “agency” in regard to particular statutes, i.e., being an agency for purposes of one statute but not necessarily others, and the fact that the University maintains a level of statutorily granted autonomy, which may not be enjoyed by other executive branch entities, does not exclude it from the executive branch. Univ. of Ky. v. Moore, 599 S.W.3d 798, 2019 Ky. LEXIS 437 ( Ky. 2019 ).

5.Infringement of Powers.

Under this section and Const., § 28, it was for Court of Appeals to appoint replacement for its deceased clerk, and appointment thereof by Governor was infringement by executive branch upon judicial branch. In re Appointment of Clerk of Court of Appeals, 297 S.W.2d 764, 1957 Ky. LEXIS 357 ( Ky. 1957 ).

Administrative regulation of board of chiropractic examiners permitting chiropractors to utilize the services of persons authorized by law to perform analyses of patients by use of radiographs, blood analysis or other methods of examination in an attempt to grant authority which had previously been withheld and goes beyond the powers granted the board and the statutory definition of chiropractic, and, as such, is legislative in nature and in violation of the state Constitution. Kentucky Asso. of Chiropractors, Inc. v. Jefferson County Medical Soc., 549 S.W.2d 817, 1977 Ky. LEXIS 414 ( Ky. 1977 ).

Where KRS 67.045 delegated to the district court judge the power to dispose of exceptions to propose redistricting and establish the boundaries of voting districts, it was a void statute since this section prohibits one branch of government from exercising the powers of another branch. Fawbush v. Bond, 613 S.W.2d 414, 1981 Ky. LEXIS 222 ( Ky. 1981 ).

Former law that provided for limitation on prayer for damages in malpractice action was clearly unconstitutional as an invasion of rule-making power of the courts, and in violation of this section and Const., §§ 28 and 109. McCoy v. Western Baptist Hospital, 628 S.W.2d 634, 1981 Ky. App. LEXIS 314 (Ky. Ct. App. 1981).

The adoption of administrative regulations necessary to implement and carry out the purpose of legislative enactments is executive in nature and is ordinarily within the constitutional purview of the executive branch of government; therefore, former KRS 13.085(1)(d) and (1)(e), 13.087(4) to (9), 13.088(2) and (3), and 13.092(1) and (2), which set out the plan and the rules for providing legislative or Legislative Research Commission review of proposed regulations, were violative of Const., § 28 and this section and were a legislative encroachment into the power of the executive branch, in that they had the effect of creating a legislative veto of the administrative policy of the executive branch of government. Legislative Research Com. by Prather v. Brown, 664 S.W.2d 907, 1984 Ky. LEXIS 300 ( Ky. 1984 ).

This section and § 28 of the Kentucky Constitution preclude the district court’s exercise of executive powers; the district court had no power under provisions of former law to order placement of children committed to the Cabinet for Human Resources. Commonwealth v. Partin, 702 S.W.2d 51, 1985 Ky. App. LEXIS 689 (Ky. Ct. App. 1985).

KRS 421.350 , which permits testimony from a child who has not been declared by the trial court competent to testify as a witness, is an unconstitutional infringement on the inherent powers of the judiciary, as declared in this section and Const., § 28, and since KRS 421.350 authorizes a child to be a witness without first having undertaken a solemn obligation to tell the truth, it is a legislative interference with the orderly administration of justice. Gaines v. Commonwealth, 728 S.W.2d 525, 1987 Ky. LEXIS 196 ( Ky. 1987 ).

By enacting KRS 381.940 , the General Assembly has arbitrarily determined the rights of the parties and their successors to past transactions; therefore, that section is unconstitutional as clear intrusion into judicial power. Akers v. Baldwin, 736 S.W.2d 294, 1987 Ky. LEXIS 230 ( Ky. 1987 ).

RCr 11.42(10) is not a substantive law that restricted a petitioner’s access to habeas corpus relief pursuant to KRS 419.020 , in violation of Ky. Const. §§ 16, 26 and 27; rather, it exists simultaneously. Commonwealth v. Carneal, 274 S.W.3d 420, 2008 Ky. LEXIS 294 ( Ky. 2008 ), cert. denied, 558 U.S. 906, 130 S. Ct. 274, 175 L. Ed. 2d 184, 2009 U.S. LEXIS 5932 (U.S. 2009).

KRS 218A.202(6), which precludes the release of Kentucky All-Schedule Prescription Electronic Reporting (KASPER) records for discovery purposes, directly conflicts with CR 26.02(1); that portion of KRS 218A.202(6) that prohibits disclosure in discovery in civil litigation is an unconstitutional violation of the separation of powers doctrine as it articulates a rule of practice that purports to control a responsibility assigned by the Kentucky Constitution to the Kentucky Judicial Branch. Commonwealth v. Chauvin, 2008 Ky. App. LEXIS 190 (Ky. Ct. App. June 13, 2008), rev'd, 316 S.W.3d 279, 2010 Ky. LEXIS 146 ( Ky. 2010 ).

The Office of Financial Institutions (OFI) acted outside of the scope of its authority by allowing community-based charters under KRS 286.6-107 because the legislature rejected the option of allowing community based fields of membership for credit unions; OFI cannot expand its power to approve community fields of membership without violating the restrictions of Ky. Const. §§ 27 and 28. Commonwealth Ex Rel. Office of Fin. Insts. v. Home Fed. Savs. & Loan Ass'n, 2008 Ky. App. LEXIS 343 (Ky. Ct. App. 2008).

Defendant was not entitled to amend the dismissal without prejudice of the charge against defendant to a dismissal with prejudice of the charge because it was not within the province of the circuit court, under Ky. Const. §§ 27 and 28 as it would have violated the separation of powers doctrine. Gibson v. Commonwealth, 291 S.W.3d 686, 2009 Ky. LEXIS 155 ( Ky. 2009 ).

Constitutional and policy justifications for the sovereign immunity doctrine are rooted in notions of separation of power, the principle being that courts should not be in the position to impose civil liability on government entities engaged in official functions, as this would disrupt the business of the government governing. Caneyville Volunteer Fire Dep't v. Green's Motorcycle Salvage, Inc., 286 S.W.3d 790, 2009 Ky. LEXIS 158 ( Ky. 2009 ).

Because KRS 532.043(5) violated the separation of powers doctrine of Ky. Const. §§ 27 and 28 by impermissibly conferring an executive power to revoke a post-incarceration or post-parole conditional release upon the judiciary, the revocation of appellants’ post-incarceration conditional discharge was improper. Jones v. Commonwealth, 319 S.W.3d 295, 2010 Ky. LEXIS 99 ( Ky. 2010 ), modified, 2010 Ky. LEXIS 250 (Ky. Sept. 23, 2010).

When (1) defendant pled guilty to criminal attempt to commit first-degree unlawful transaction with a minor, under KRS 530.064(2)(a) and 506.010 (4)(d) and was placed on probation, on the condition that defendant participate in any recommended treatment, (2) it was recommended that defendant participate in a sex offender treatment program that lasted three years, and (3) the Court of Appeals reversed the trial court’s extension of defendant’s term of probation, the trial court could not revoke defendant’s probation on remand and had to deem defendant finally discharged because (1) the probation period could not exceed two years, under KRS 533.020(4), (2) defendant was not convicted of a sex crime, as criminal attempt was a separate, inchoate offense under KRS 506.010 , and only felony attempts at offenses listed in KRS 17.500(8)(a) were sex crimes under KRS 17.500(8)(b), so defendant was not statutorily required to complete sex offender treatment as a condition of probation, (3) defendant did not request or agree to an extension of defendant’s probation when accepting a plea bargain, as defendant only had to complete recommended counseling, was not told treatment would take more than two years, and, when treatment lasted more than two years, this did not trump the statutory length of misdemeanor probation in violation of the separation of powers in Ky. Const. §§ 27 and 28, (4) probation was unlawfully extended after probation expired, and (5) defendant did not violate probation. Miller v. Commonwealth, 391 S.W.3d 801, 2013 Ky. LEXIS 6 ( Ky. 2013 ).

Where defendant pled guilty to illegal possession of a controlled substance in the first degree, a Class D felony, and successfully completed probation, the trial court lacked statutory authority under KRS 431.076 to expunge her voided conviction. The trial court erred by using the catch-all provision in RCr P. 60.02(f) as a vehicle to expunge defendant’s criminal records, where the statute did not allow expungement, as this runs afoul of the separation of powers doctrine. Commonwealth v. Jones, 406 S.W.3d 857, 2013 Ky. LEXIS 377 ( Ky. 2013 ).

Defendant charged with drug and drug-related offenses for which KRS 218A.1415(2)(b) deferred prosecution was possible could not use the trial court to order the Commonwealth to place defendant in that program, as KRS 218A.14151 gave the Commonwealth the discretion to decide who would be placed in that program and allowed the Commonwealth to consider KRS 218A.010 probation instead. For the trial court to order it would present a Ky. Const. § 27 separation of powers problem. Reilly v. Commonwealth, 2013 Ky. App. LEXIS 63 (Ky. Ct. App. Apr. 19, 2013, sub. op., 2013 Ky. App. Unpub. LEXIS 964 (Ky. Ct. App. Apr. 19, 2013).

Prospective-only application of Ky. Rev. Stat. Ann. § 173.790 did not violate the separation of powers doctrine as no legal authority supported the theory that a prospective-only application of the holding of the opinion harmonizing statutes relating to public library ad valorem taxes violated the doctrine of separation of powers by nullifying the effect of § 173.790 for the period preceding the opinion. Coleman v. Campbell Cty. Library Bd. of Trs., 547 S.W.3d 526, 2018 Ky. App. LEXIS 17 (Ky. Ct. App.), cert. denied, 139 S. Ct. 482, 202 L. Ed. 2d 388, 2018 U.S. LEXIS 6681 (U.S. 2018).

Circuit court properly granted an inmate summary judgment in his action for declaratory and injunctive relief and held that the statute at issue was unconstitutional because the statute failed to describe the conduct that would subject the inmate to a close or maximum classification subsequently subjecting him to post-incarceration supervision, he was denied counsel in a “critical stage” in the prosecution, a hearing was not held, the statute failed to provide reasonably clear guidelines for the Department of Corrections (DOC) to follow, and allowed the DOC, an executive agency, to encroach on powers expressly enumerated to the judicial branch by issuing a criminal sentence resulting in incarceration without judicial review. Ky. Dep't of Corr. v. Mitchem, 586 S.W.3d 256, 2019 Ky. App. LEXIS 168 (Ky. Ct. App. 2019).

Ky. Rev. Stat. Ann. ch. 39A with its provisions regarding the Governor’s powers in the event of an emergency was not an unconstitutional delegation of legislative authority in violation of the separation of powers provisions of this section. Beshear v. Acree, 615 S.W.3d 780, 2020 Ky. LEXIS 405 ( Ky. 2020 ).

Because the executive branch retained final say as to administrative regulations, legislation passed by the Kentucky General Assembly lawfully which amended the power of the Governor of the Commonwealth of Kentucky to respond to emergencies did not violate the Kentucky Constitution. Cameron v. Beshear, 2021 Ky. LEXIS 240 (Ky. Aug. 21, 2021).

6.Pardon and Commutation.

Although the legislative branch is responsible for the enactment of criminal penalties and has set the penalty for first degree murder at death or life imprisonment with parole, the Governor had the power to commute a death sentence to a life term without parole, since a federal court had decided that the Governor possessed the power of commutation as well as that of pardon, the commuted sentence was a lesser punishment than the death penalty, and the defendant was collaterally estopped from relitigating this issue. Hamilton v. Ford, 362 F. Supp. 739, 1973 U.S. Dist. LEXIS 12418 (E.D. Ky. 1973 ).

The power to grant parole is vested exclusively in the executive branch of the government, and thus KRS 439.177 , which authorizes judges to exercise such power, violates this section and Const., §§ 28 and 77 and is void. Commonwealth v. Cornelius, 606 S.W.2d 172, 1980 Ky. App. LEXIS 360 (Ky. Ct. App. 1980).

7.Powers of Court.

Subsections (2) and (3) of KRS 243.580 (now repealed), which, in effect, prohibit all courts from interfering with an order of revocation of an alcoholic beverage license during an appeal are unconstitutional because their prohibitions against injunctive relief pending appeal are legislative encroachments upon the powers of the judicial branch of the government. Smothers v. Lewis, 672 S.W.2d 62, 1984 Ky. LEXIS 256 ( Ky. 1984 ).

The language of KRS 243.580(3) (now repealed) which prohibits courts from enjoining the operation of an order of revocation or suspension of a liquor license pending an appeal directly locks horns with the constitutionally inherent injunction power of the courts; such language is a classic example of the very type of legislative encroachment onto the power of the judicial branch of the government which is constitutionally impermissible. Smothers v. Lewis, 672 S.W.2d 62, 1984 Ky. LEXIS 256 ( Ky. 1984 ).

The power to make rules and to determine substantive issues of law is solely within the power of the judiciary. Akers v. Baldwin, 736 S.W.2d 294, 1987 Ky. LEXIS 230 ( Ky. 1987 ).

The Governor’s policy of providing defense counsel up to three (3) days from the date of receipt of a death warrant request to respond in writing is not affected by RCr 11.42 (10), which serves as an outer time limit on the bringing of such actions and in no way affects the prerogatives of the Governor with respect to enforcement of criminal judgments. Bowling v. Commonwealth, 926 S.W.2d 667, 1996 Ky. LEXIS 17 (Ky.), cert. denied, 517 U.S. 1223, 116 S. Ct. 1855, 134 L. Ed. 2d 955, 1996 U.S. LEXIS 3486 (U.S. 1996).

KRS 189A.010 , KRS 189A.103 , and KRS 189A.105 do not violate the separation of powers doctrine contained in this section and Ky. Const. § 28, because they do not involve any “ultimate power” of the judiciary, but simply impose conditions on the issuance of warrants. Combs v. Commonwealth, 965 S.W.2d 161, 1998 Ky. LEXIS 33 ( Ky. 1998 ), limited, Commonwealth v. Lopez, 3 S.W.3d 351, 1999 Ky. LEXIS 136 ( Ky. 1999 ).

Former KRS 342.320(9), which authorized non-attorneys in the Department of Workers’ Claims to act as legal representatives in workers’ compensation cases, is unconstitutional as it violates the principle of separation of powers. Turner v. Kentucky Bar Ass'n, 980 S.W.2d 560, 1998 Ky. LEXIS 166 ( Ky. 1998 ).

The proof requirement of KRS 391.105 , which pertains to intestate succession of persons born out of wedlock, does not violate the separation of powers doctrine emanating from the state constitution. Harris v. Stewart, 981 S.W.2d 122, 1998 Ky. App. LEXIS 14 (Ky. Ct. App. 1998).

Kentucky Court of Justice is an independent branch of state government and is not subject to interference in the management and use of its budget by the General Assembly under Ky. Const., §§ 27 and 28; the authority and responsibility of determining the necessity and propriety of expenditures rests solely with the judicial branch and is not subject to executive or legislative regulations. Martin v. Admin. Office of the Courts, 107 S.W.3d 212, 2003 Ky. LEXIS 142 ( Ky. 2003 ).

To interpret the Unfair Claims Settlement Practices Act, KRS 304.12-230 , to extend to post-litigation conduct would violate the separation of powers scheme in Ky. Const. §§ 27, 28 because it would have meant that the General Assembly was attempting to regulate the conduct of attorneys, something that was expressly reserved to the Supreme Court of Kentucky in Ky. Const. § 116. Knotts v. Zurich Ins. Co., 2004 Ky. App. LEXIS 22 (Ky. Ct. App. Feb. 6, 2004), rev'd, 197 S.W.3d 512, 2006 Ky. LEXIS 136 ( Ky. 2006 ).

Trial court erred in ordering the cabinet for health and family services to pay for opiate hair follicle drug screen testing performed on the parents of a neglected child because there was no specific statute authorizing assessment of such payment and there was no significant potential infringement of the parents’ due process rights which would serve to bring the issue within the purview of the court’s inherent powers to administer justice. Commonwealth v. G.W.F., 229 S.W.3d 596, 2007 Ky. App. LEXIS 364 (Ky. Ct. App. 2007).

KRS 532.043(5) does not violate the separation of powers clause by giving the power of revocation of conditional discharge to the courts, and thus was constitutional because service of a defendant’s conditional discharge sentence remained under the control of the judicial branch, and not, as parole, under the executive branch. Henley v. Commonwealth, 2007 Ky. App. LEXIS 427 (Ky. Ct. App. Nov. 9, 2007), rev'd, 319 S.W.3d 295, 2010 Ky. LEXIS 99 ( Ky. 2010 ).

Applying CR 41.02(3) (dismissals not designated otherwise are with prejudice by default) to criminal cases by virtue of RCr P. 13.04 is unconstitutional as a violation of separation of powers principles. Keeling v. Commonwealth, 381 S.W.3d 248, 2012 Ky. LEXIS 160 ( Ky. 2012 ).

Declaratory action was properly brought under KRS 418.020 by racing associations that sought to determine the validity of a new regulation pertaining to gambling. A justiciable controversy existed because the associations were concerned about possible criminal violations; and with regard to separation of powers, such determinations of validity fall within the judiciary’s role. Family Trust Found., Inc. v. Ky. Horse Racing Comm'n, 2012 Ky. App. LEXIS 93 (Ky. Ct. App. June 15, 2012, sub. op., 2012 Ky. App. Unpub. LEXIS 1009 (Ky. Ct. App. June 15, 2012).

When it was held that the legislature violated Ky. Const. § 51 by transferring funds from workers’ compensation accounts to the general fund, separation of powers barred a court from ordering the governor to restore funds previously transferred because the legislature solely controlled the state treasury. Beshear v. Haydon Bridge Co., 416 S.W.3d 280, 2013 Ky. LEXIS 582 ( Ky. 2013 ).

Lower court did not abuse its discretion in issuing a writ of prohibition to bar enforcement of a circuit court's restraining order that prohibited the Kentucky Horse Racing Commission from considering an application for a license to operate a quarter-horse racetrack where the authority to approve such licenses was vested in the Commission, and to allow the circuit court's order to stand would have invaded that authority. Appalachian Racing, LLC v. Commonwealth, 504 S.W.3d 1, 2016 Ky. LEXIS 565 ( Ky. 2016 ).

Separation of powers doctrine did not bar a trial court’s jurisdiction to review the decision of the Kentucky Legislative Research Commission regarding a newspaper’s request for legislative records by allowing the judicial branch to encroach on the legislative branch because interpreting a statute detailing review of a legislative records request did not encroach on the legislative function but was a quintessentially judicial function. Harilson v. Shepherd, 585 S.W.3d 748, 2019 Ky. LEXIS 380 ( Ky. 2019 ).

8.Venue.

Venue is purely a legislative matter and for the judiciary to attempt to rewrite the statute would be an unconstitutional usurpation of power and violative of this section and Const., §§ 28 and 29. Blankenship v. Watson, 672 S.W.2d 941, 1984 Ky. App. LEXIS 535 (Ky. Ct. App. 1984), overruled, Department of Education v. Blevins, 707 S.W.2d 782, 1986 Ky. LEXIS 257 ( Ky. 1986 ).

9.Order Upheld.

Former law which expressly authorized the juvenile session to commit children to the custody of the Cabinet of Human Resources, necessarily implied that the court might order the Cabinet for Human Resources to pick up committed children; orders of this nature did not violate this section or § 28 of the Kentucky Constitution. Commonwealth v. Partin, 702 S.W.2d 51, 1985 Ky. App. LEXIS 689 (Ky. Ct. App. 1985).

Appellate court properly denied the writ of prohibition since the order could be appealed and did not violate the constitutional separation of powers provisions. Jefferson County Fiscal Court v. Shake, 82 S.W.3d 917, 2002 Ky. LEXIS 152 ( Ky. 2002 ).

Smoking regulation promulgated by the Bullitt County, Kentucky, Board of Health was improperly declared to be invalid because the Board had the authority to regulate under KRS 212.230(1)(c), and there was no violation of Ky. Const. §§ 27, 28. Protecting the public from exposure to environmental tobacco smoke was the proper object of the police power of local government. Bullitt County Bd. of Health v. Bullitt County Fiscal Court, 2012 Ky. App. LEXIS 273 (Ky. Ct. App. Dec. 7, 2012, sub. op., 2012 Ky. App. Unpub. LEXIS 1067 (Ky. Ct. App. Dec. 7, 2012).

10.Powers of Legislature.

The procedure for advice and consent of subsection (3) of KRS 342.230 is constitutional; there is no violation of the separation of powers doctrine because the statute does not permit the Senate to make appointments of administrative law judges but only to accept or reject the decision of the Workers' Compensation Board. Kraus v. Kentucky State Senate, 872 S.W.2d 433, 1993 Ky. LEXIS 169 ( Ky. 1993 ), limited, Fox v. Grayson, 317 S.W.3d 1, 2010 Ky. LEXIS 88 ( Ky. 2010 ).

Commonwealth representatives did not have a right under Ky. Const., § 230 to be called into an extraordinary session of the Kentucky General Assembly to end the Kentucky Governor’s allegedly unlawful expenditure of unappropriated state funds under Ky. Const., § 80; whether to call an extraordinary session and what matters were to be addressed in such a session were within the discretion of the Governor. Ky. Const., § 230 did not provide an exception to the separation-of-powers doctrine created by Ky. Const., §§ 27 and 28. Geveden v. Commonwealth ex rel. Fletcher, 142 S.W.3d 170, 2004 Ky. App. LEXIS 251 (Ky. Ct. App. 2004).

KRS 532.043 did not violate the separation of powers doctrine by infringing upon the judiciary’s duty to administer justice and by removing all discretion from the trial court by imposing a three-year mandatory conditional discharge, as the Legislature, and not the judiciary, designated the elements of criminal conduct and the corresponding penalties; further, the Legislature did not unconstitutionally usurp the court’s functions by eliminating the exercise of discretion by the trial court in fixing a sentence, as it had the plenary power to set criminal penalties. Wilfong v. Commonwealth, 175 S.W.3d 84, 2004 Ky. App. LEXIS 353 (Ky. Ct. App. 2004).

Retroactive application of an amendment to KRS 68.197 did not amount to a legislative encroachment upon judicial power in violation of the separation of powers of Ky. Const. §§ 27 and 28; a taxpayer’s right to a tax refund under an occupational license fee ordinance had not vested through a final judgment, and thus the General Assembly’s retroactive amendment of a law applicable to his pending case did not encroach upon judicial power in violation of the separation of powers provision. King v. Campbell County, 217 S.W.3d 862, 2006 Ky. App. LEXIS 331 (Ky. Ct. App. 2006).

11.— Power to Levy Taxes.

A metropolitan sewer district, as custodian of certain drainage facilities, can establish and impose charges for services rendered, however, it has no power to levy taxes, as taxation is a legislative function which if delegated to such a sewer district would violate this section and Const. § 28. Long Run Baptist Asso. v. Louisville & Jefferson County Metropolitan Sewer Dist., 775 S.W.2d 520, 1989 Ky. App. LEXIS 106 (Ky. Ct. App. 1989).

Because the preservation of the Kentucky River basin is a benefit which obviously accrues to all within it boundaries, fees collected by the Kentucky River Authority from city were not a tax collected in violation of the state Constitution. Kentucky River Auth. v. City of Danville, 932 S.W.2d 374, 1996 Ky. App. LEXIS 112 (Ky. Ct. App. 1996), cert. denied, 520 U.S. 1186, 117 S. Ct. 1469, 137 L. Ed. 2d 682, 1997 U.S. LEXIS 2550 (U.S. 1997).

12.— Public Policy.

This section provides that the powers of government be divided into three (3) distinct units: Executive, Legislative and Judicial. The establishment of public policy is granted to the Legislature alone. It is beyond the power of a court to vitiate an act of the Legislature on the grounds that public policy promulgated therein is contrary to what the court considers to be in the public interest. It is the prerogative of the Legislature to declare that acts constitute a violation of public policy. Commonwealth v. Wilkinson, 828 S.W.2d 610, 1992 Ky. LEXIS 111 ( Ky. 1992 ), overruled in part, Commonwealth ex rel. Conway v. Thompson, 300 S.W.3d 152, 2009 Ky. LEXIS 290 ( Ky. 2009 ).

13.— Executive Branch Appointments.

The Kentucky State Senate has the inherent power to advise and consent on executive branch appointments of inferior state officers. Kraus v. Kentucky State Senate, 872 S.W.2d 433, 1993 Ky. LEXIS 169 ( Ky. 1993 ), limited, Fox v. Grayson, 317 S.W.3d 1, 2010 Ky. LEXIS 88 ( Ky. 2010 ).

14.— Arbitration.

Home buyers did not demonstrate that KRS 417.045 et seq., regarding arbitration, violated the separation of powers doctrine in Ky. Const. §§ 27 and 28 because Ky. Const. § 250 specifically vested the legislature with the authority to create an arbitration system in Kentucky. Dutschke v. Jim Russell Realtors, Inc., 281 S.W.3d 817, 2008 Ky. App. LEXIS 248 (Ky. Ct. App. 2008).

Cited in:

Louisville & N. R. Co. v. Garrett, 231 U.S. 298, 34 S. Ct. 48, 58 L. Ed. 229, 1913 U.S. LEXIS 2567 (U.S. 1913); Fleming v. Trowsdale, 85 F. 189, 1898 U.S. App. LEXIS 2147 (6th Cir. Ky. 1 898 ); Tucker v. Hubbert, 196 F. 849, 1912 U.S. App. LEXIS 1552 (6th Cir. Ky. 1 912); Lynch v. Johnson, 291 F. Supp. 906, 1968 U.S. Dist. LEXIS 9306 (E.D. Ky. 1968 ); Taylor v. Commonwealth, 26 Ky. 401 , 1830 Ky. LEXIS 79 ( Ky. 1830 ); Taylor v. Beckham, 108 Ky. 278 , 56 S.W. 177, 21 Ky. L. Rptr. 1735 , 1900 Ky. LEXIS 3 9 ( Ky. 1900 ); Pratt v. Breckinridge, 112 Ky. 1, 65 S.W. 136, 23 Ky. L. Rptr. 1356 , 1901 Ky. LEXIS 286 ( Ky. 1901 ); Bullitt v. Sturgeon, 127 Ky. 332 , 105 S.W. 468, 32 Ky. L. Rptr. 215 , 1907 Ky. LEXIS 139 ( Ky. 1907 ); Greene v. Caldwell, 170 Ky. 571 , 186 S.W. 648, 1916 Ky. LEXIS 126 ( Ky. 1916 ); Dunlap v. Littell, 200 Ky. 595 , 255 S.W. 280, 1923 Ky. LEXIS 162 ( Ky. 1923 ); Mercer v. Coleman, 227 Ky. 797 , 14 S.W.2d 144, 1929 Ky. LEXIS 975 ( Ky. 1929 ); Campbell v. Commonwealth, 229 Ky. 264 , 17 S.W.2d 227, 1929 Ky. LEXIS 756 ( Ky. 1929 ); Adkins v. Commonwealth, 232 Ky. 312 , 23 S.W.2d 277, 1929 Ky. LEXIS 444 (Ky. 1929); Rouse v. Johnson, 234 Ky. 473 , 28 S.W.2d 745, 1930 Ky. LEXIS 220 ( Ky. 1930 ); Estes v. State Highway Com., 235 Ky. 86 , 29 S.W.2d 583, 1930 Ky. LEXIS 292 ( Ky. 1930 ); Arbogast v. Weber, 249 Ky. 20 , 60 S.W.2d 144, 1933 Ky. LEXIS 47 7 ( Ky. 1933 ); Lyttle v. Wilson, 252 Ky. 392 , 67 S.W.2d 498, 1934 Ky. LEXIS 79 1 ( Ky. 1934 ); Meade County Board of Education v. Powell, 254 Ky. 352 , 71 S.W.2d 638, 1934 Ky. LEXIS 76 ( Ky. 1934 ); Royster v. Brock, 258 Ky. 146 , 79 S.W.2d 707, 1935 Ky. LEXIS 134 ( Ky. 1935 ); Rentz v. Campbell County, 260 Ky. 242 , 84 S.W.2d 44, 1935 Ky. LEXIS 440 ( Ky. 1935 ); County Board of Education v. Goodpaster, 260 Ky. 198 , 84 S.W.2d 55, 1935 Ky. LEXIS 444 (Ky. 1935); In re Constitutionality of House Bill No. 222, 262 Ky. 437 , 90 S.W.2d 692, 1936 Ky. LEXIS 47 ( Ky. 1936 ); Grieb v. National Bond & Inv. Co., 264 Ky. 289 , 94 S.W.2d 612, 1936 Ky. LEXIS 3 00 ( Ky. 1936 ); Commonwealth ex rel. Ward v. Harrington, 266 Ky. 41 , 98 S.W.2d 53, 1936 Ky. LEXIS 604 (Ky. 1936); In re Sparks, 267 Ky. 93 , 101 S.W.2d 194, 1936 Ky. LEXIS 757 (Ky. 1936); Louisville Bar Ass'n ex rel. Drane v. Yonts, 270 Ky. 503 , 109 S.W.2d 1186, 1937 Ky. LEXIS 96 ( Ky. 1937 ); Kerr v. Louisville, 271 Ky. 335 , 111 S.W.2d 1046, 1937 Ky. LEXIS 241 ( Ky. 1937 ); Burton v. Mayer, 274 Ky. 245 , 118 S.W.2d 161, 1938 Ky. LEXIS 233 ( Ky. 1938 ); Bard v. Board of Drainage Comm'rs, 274 Ky. 491 , 118 S.W.2d 1013, 1938 Ky. LEXIS 292 ( Ky. 1938 ); Bloemer v. Turner, 281 Ky. 832 , 137 S.W.2d 387, 1939 Ky. LEXIS 43 ( Ky. 1939 ); Morgan County v. Governor of Kentucky, 288 Ky. 532 , 156 S.W.2d 498, 1941 Ky. LEXIS 133 ( Ky. 1941 ); Crook v. Schumann, 292 Ky. 750 , 167 S.W.2d 836, 1942 Ky. LEXIS 150 ( Ky. 1942 ); Goodpaster v. Foster, 296 Ky. 614 , 178 S.W.2d 29, 1944 Ky. LEXIS 597 ( Ky. 1944 ); Kentucky Alcoholic Beverage Control Board v. Klein, 301 Ky. 757 , 192 S.W.2d 735, 1946 Ky. LEXIS 531 ( Ky. 1946 ); Hobson v. Kentucky Trust Co., 303 Ky. 493 , 197 S.W.2d 454, 1946 Ky. LEXIS 843 ( Ky. 1946 ); Dicken v. Kentucky State Board of Education, 304 Ky. 343 , 199 S.W.2d 977, 1947 Ky. LEXIS 579 ( Ky. 1947 ); Dieruf v. Louisville & Jefferson County Bd. of Health, 304 Ky. 20 7 , 200 S.W.2d 300, 1947 Ky. LEXIS 613 ( Ky. 1947 ); Fraysure v. Kentucky Unemployment Compensation Com., 305 Ky. 164 , 202 S.W.2d 377, 1947 Ky. LEXIS 709 (Ky. 1947); Elrod v. Willis, 305 Ky. 225 , 203 S.W.2d 18, 1947 Ky. LEXIS 778 (Ky. 1947); Williams v. Board for Louisville & Jefferson County Children's Home, 305 Ky. 440 , 204 S.W.2d 490, 1947 Ky. LEXIS 825 (Ky. 1947); Robertson v. Schein, 305 Ky. 528 , 204 S.W.2d 954, 1947 Ky. LEXIS 1051 (Ky. 1947); Henry v. Parrish, 307 Ky. 559 , 211 S.W.2d 418, 1948 Ky. LEXIS 76 4 ( Ky. 1948 ); Manning v. Sims, 308 Ky. 587 , 213 S.W.2d 577, 1948 Ky. LEXIS 86 4 ( Ky. 1948 ); Masonic Widows & Orphans Home & Infirmary v. Louisville, 309 Ky. 532 , 217 S.W.2d 815, 1948 Ky. LEXIS 1081 (Ky. 1948); Kentucky State Fair Board v. Fowler, 310 Ky. 607 , 221 S.W.2d 435, 1949 Ky. LEXIS 973 ( Ky. 1949 ); Preston v. Clements, 313 Ky. 479 , 232 S.W.2d 85, 1950 Ky. LEXIS 902 ( Ky. 1950 ); In re May, 249 S.W.2d 798, 1952 Ky. LEXIS 871 ( Ky. 1952 ); Borders v. Cain, 252 S.W.2d 903, 1952 Ky. LEXIS 1042 ( Ky. 1952 ); Guthrie v. Curlin, 263 S.W.2d 240, 1953 Ky. LEXIS 1238 (Ky. Ct. App. 1953); Jackson v. Randolph, 311 S.W.2d 541, 1958 Ky. LEXIS 199 ( Ky. 1958 ); Frankfort v. Triplett, 365 S.W.2d 328, 1963 Ky. LEXIS 219 ( Ky. 1963 ); Stovall v. Eastern Baptist Institute, 375 S.W.2d 273, 1964 Ky. LEXIS 406 ( Ky. 1964 ); Board of Education v. Chattin, 376 S.W.2d 693, 1964 Ky. LEXIS 471 ( Ky. 1964 ); Freeman v. Danville Tobacco Board of Trade, Inc., 380 S.W.2d 215, 1964 Ky. LEXIS 284 (Ky. 1964); Louisville & Jefferson County Planning & Zoning Com. v. Coin, 382 S.W.2d 861, 1964 Ky. LEXIS 360 (Ky. 1964); Lovern v. Brown, 390 S.W.2d 448, 1965 Ky. LEXIS 350 ( Ky. 1965 ); Fiscal Court of Jefferson County v. Anchorage, 393 S.W.2d 608, 1965 Ky. LEXIS 243 ( Ky. 1965 ); Gering v. Brown Hotel Corp., 396 S.W.2d 332, 1965 Ky. LEXIS 113 (Ky. 1965); Southeastern Displays, Inc. v. Ward, 414 S.W.2d 573, 1967 Ky. LEXIS 358 ( Ky. 1967 ); Murphy v. Cranfill, 416 S.W.2d 363, 1967 Ky. LEXIS 274 ( Ky. 1967 ); Holsclaw v. Stephens, 507 S.W.2d 462, 1973 Ky. LEXIS 3 ( Ky. 1973 ); Ex parte Farley, 570 S.W.2d 617, 1978 Ky. LEXIS 39 0 ( Ky. 1978 ); Ex parte Auditor of Public Accounts, 609 S.W.2d 682, 1980 Ky. LEXIS 274 ( Ky. 198 0 ); Louisville v. Miller, 697 S.W.2d 164, 1985 Ky. App. LEXIS 646 (Ky. Ct. App. 1985); Surrogate Parenting Associates, Inc. v. Commonwealth, 704 S.W.2d 209, 1986 Ky. LEXIS 237 ( Ky. 1986 ); McKee v. Cutter Laboratories, Inc., 866 F.2d 219, 1989 U.S. App. LEXIS 722 (6th Cir. Ky. 1989 ); Rose v. Council for Better Educ., 790 S.W.2d 186, 1989 Ky. LEXIS 55 ( Ky. 1989 ); Philpot v. Patton, 837 S.W.2d 491, 1992 Ky. LEXIS 142 ( Ky. 1992 ); Combs v. Huff, 858 S.W.2d 160, 1993 Ky. LEXIS 86 ( Ky. 1993 ); Kuprion v. Fitzgerald, 888 S.W.2d 679, 1994 Ky. LEXIS 135 ( Ky. 1994 ); Kenton County Pub. Parks Corp. v. Modlin, 901 S.W.2d 876, 1995 Ky. App. LEXIS 70 (Ky. Ct. App. 1995); Horn by Horn v. Commonwealth, 916 S.W.2d 173, 1995 Ky. LEXIS 145 ( Ky. 1995 ); St. Ledger v. Revenue Cabinet, 942 S.W.2d 893, 1997 Ky. LEXIS 17 ( Ky. 1997 ); Dannheiser v. City of Henderson, 4 S.W.3d 542, 1999 Ky. LEXIS 114 ( Ky. 1999 ); Manns v. Commonwealth, 80 S.W.3d 439, 2002 Ky. LEXIS 114 ( Ky. 2002 ); Hoskins v. Maricle, 150 S.W.3d 1, 2004 Ky. LEXIS 196 ( Ky. 2004 ); Emberton v. GMRI, Inc., 299 S.W.3d 565, 2009 Ky. LEXIS 250 ( Ky. 2009 ); Delahanty v. Commonwealth ex rel. Maze, 295 S.W.3d 136, 2009 Ky. App. LEXIS 124 (Ky. Ct. App. 2009); McClanahan v. Commonwealth, 308 S.W.3d 694, 2010 Ky. LEXIS 98 ( Ky. 2010 ); Commonwealth v. Chauvin, 316 S.W.3d 279, 2010 Ky. LEXIS 146 ( Ky. 2010 ); Grider v. Commonwealth, 404 S.W.3d 859, 2013 Ky. LEXIS 229 ( Ky. 2013 ); Rider v. Commonwealth, 460 S.W.3d 909, 2014 Ky. App. LEXIS 196 (Ky. Ct. App. 2014); Kuhnhein v. N. Ky. Area Planning Comm'n, 495 S.W.3d 152, 2015 Ky. App. LEXIS 136 (Ky. Ct. App. 2015); Greene v. Boyd, 603 S.W.3d 231, 2020 Ky. LEXIS 224 ( Ky. 2020 ).

Opinions of Attorney General.

It is a violation of KRS 61.096 and Const., §§ 27 and 28 for a person to serve as a member of the general assembly and the Kentucky real estate board at the same time. OAG 68-43 .

An incompatibility exists between the office of state representative and the position of county district library trustee. OAG 69-163 .

In view of this section and of sections 28 and 44 of the constitution, a member of the general assembly during whose term the per diem compensation of members of the board of trustees of the Kentucky retirement system was increased could not, while serving in the general assembly or for one (1) year thereafter, be appointed to that board under KRS 61.645 . OAG 72-458 .

An employee of the Legislative Research Commission is not prevented by the constitution from serving as a trustee for the Kentucky retirement system because he is not an employee of the legislative branch of the government under this section and sections 28 and 249 of the constitution. OAG 73-817 .

An attorney-client agreement between a senator and a city, acting through its mayor, is not in violation of KRS 61.080 or Const., §§ 27, 28 and 165, since the senator would not be an officer or employee of the city but merely an independent contractor in an attorney-client relationship. OAG 74-315 .

Sections 12 and 13 of part six of the 1974-76 appropriations act, appropriating the excess general fund revenue above a stated amount to the general contingency fund which may be allocated upon the orders of the Governor to state agencies for enumerated purposes, are within the confines of Const., §§ 27, 28, 29 and 230. OAG 74-600 .

The Legislature cannot, under the Constitution, confer the executive power of parole upon judges of the Court of Justice. OAG 78-150 .

Since when a person has been convicted of a crime and has begun to serve his sentence the function and authority of the trial court is finished and what then happens to the prisoner is in the hands of the executive branch of government, KRS 439.177 in vesting the parole function in the sentencing district (now the sentencing court) is unconstitutional. OAG 78-281 .

Although neither KRS 61.080 nor Const., § 165 would prevent a state representative from also serving on a local city-county human rights commission, the separation of powers doctrine under this section and Const., § 28 prevents a person serving in one branch of government from exercising powers in another. OAG 79-483 .

A statute which would control the appointments of certain members to a county drafting commission studying methods to make local government more efficient, by requiring the appointing authority to appoint such members solely from lists submitted by each representative and senator of the districts involved, which would in effect appear to give the legislature or a representative portion thereof, the indirect power of appointment amounting to the exercise of an administrative power outside of its own jurisdiction, would be in violation of the separation of powers doctrine expressed in this section and Const., § 28. OAG 82-37 .

The employment of a staff by a county board of election pursuant to subsection (5) of KRS 117.035 must be interpreted as discretionary with the board; an interpretation that the subsection is mandatory would violate the separate powers doctrine contained in this section and Const., § 28 because the legislature would have statutorily predetermined the necessity for a staff, which determination is an administrative function which is normally delegated to the agency in question. OAG 82-102 .

Each branch of government may exercise only that power which is properly vested in it by the Constitution and, moreover, the legislative power is further limited to being exercised only when the General Assembly is formally in session; there is and can be no room for role reversal or for the quasi-exercise by one branch of state government of the powers limited to another of the three (3) branches of state government. OAG 82-154 .

The provision of Acts 1982, ch. 447, giving the Legislative Research Commission authority to approve or disapprove a temporary reorganization by the Governor (KRS 12.028 ) is unconstitutional since the General Assembly’s granting of reorganization authority to the Governor may not be subject to the approval of the Legislative Research Commission; the Legislative Research Commission’s exercise of such veto/approval authority would be tantamount to the General Assembly’s acting when not in session, which is prohibited by the separation of powers doctrine, this section, Const., § 28 and also § 36; and, even if an attempt were made to establish the Legislative Research Commission as an executive agency, the General Assembly is prohibited by Const., § 69 from granting reorganization authority to such agency or any other created state executive agency if that authority is superior to that of the Governor. OAG 82-154 .

Under the Kentucky constitutional separation of powers provisions, the General Assembly cannot act outside the confines of formal enactment procedures, and it is legally unable to create an entity to approve, on its behalf and in between General Assembly sessions, an act done by the Executive Branch of state government. OAG 82-154 .

While the legislature cannot delegate its legislative function to another branch, the legislature may declare the policy of the law and fix a principle which is to control, and an administrative body may be invested with the power to ascertain the facts and conditions to which the policy and principle apply. OAG 82-195 .

The legislative intent of KRS 83A.130 is to prescribe the same type of separation of powers in city government as this section provides for state government, that is, that the legislative, executive and judicial departments are confined to separate bodies of magistry. Under those terms, the mayor is confined to administration and the city council is confined to legislation. OAG 82-331 .

The activities of the Office of Education Accountability do not violate the separation of powers sections of the Kentucky Constitution set forth in this section and § 28. OAG 91-222 .

This section and § 28 of the Kentucky Constitution would preclude a member of the General Assembly from serving at the same time as a member of the Board of Directors of an Area Development District. OAG 93-70 .

This section and § 28 of the Kentucky Constitution would prohibit a member of the General Assembly from serving at the same time as a member of a Tourist and Convention Commission. OAG 93-70 .

This section and § 28 of the Kentucky Constitution preclude a member of the General Assembly from serving at the same time as a member of the Board of Commissioners of a Community Improvement District. OAG 93-70 .

This section and § 28 of the Kentucky Constitution prohibit a member of the General Assembly from serving concurrently as a member of the governing body of a joint city-county housing authority. OAG 93-70 .

This section and § 28 of the Kentucky Constitution would prohibit a member of the General Assembly from serving on a board which involves the exercise of power or decision making outside of the legislative branch of government. OAG 93-70 .

Portion of KRS 146.560 requiring the appointment of two (2) members of the General Assembly to the Kentucky Heritage Land Conservation Fund Board, whose duties pertain to the executive branch of government, is unconstitutional. OAG 93-70 .

Where a legislator is also the executive director of the Waterfront Development Corporation, a government created corporation, and is not in a policy making position but follows the policies and directives established and enacted by the corporate board, and functions in the role of an employee of the corporation and not as a corporate officer or director, the legislator is not in violation of the separation of powers doctrine. OAG 95-24 .

The Attorney General’s review of the Legislative Research Commission’s denial of a request to inspect telephone records for calls originating from specific numbers in the Senate offices does not violate the separation of powers; the General Assembly, having crafted the Open Records Act to include its own records, is bound by the terms of the Act, including the mechanisms for administrative review by the Attorney General which it enacted into law. OAG 98-ORD-92.

Section 4 of House Bill 389, which amended KRS 21.450 , was an unconstitutional delegation of legislative power to the Judicial Form Retirement System, as it was impossible to determine from the plain language of the amendment or its legislative history the meaning of the words in the section. OAG 00-5 .

Research References and Practice Aids

Cross-References.

Executive branch, KRS chs. 11 to 18A.

Judicial branch, KRS chs. 21, 21A, 22A, 23A, 24A, 26A, 27A, 29A, 30A to 34.

Legislative branch, KRS chs. 6 to 8.

Kentucky Bench & Bar.

Preston, Video Evidence in Child Sexual Abuse Cases, Vol. 52, No. 2, Spring 1988 Ky. Bench & B. 11.

Toner and Call, Three Cases That Shaped Kentucky’s History, 56 Ky. Bench & B. 11.

Lear and Fleenor, Board and Commission Appointments: Executive Power — With Limits, Vol. 72, No. 4, July 2008, Ky. Bench & Bar 23.

Kentucky Law Journal.

Ziegler, A Primer on Administrative Rules and Rule-Making in Kentucky, 67 Ky. L.J. 103 (1978-79).

Kentucky Law Survey, Fritz, Criminal Procedure, 67 Ky. L.J. 599 (1978-1979).

Kentucky Law Survey, Griffin and Becker, Zoning, 67 Ky. L.J. 627 (1978-1979).

Kentucky Law Survey, Rogers and Sims, Administrative Law, 69 Ky. L.J. 489 (1980-81).

Snyder and Irland, The Separation of Governmental Powers Under the Constitution of Kentucky: A Legal and Historical Analysis of L.R.C. v. Brown, 73 Ky. L.J. 165 (1984-85).

Reynolds, Education Finance Reform Litigation and Separation of Powers: Kentucky Makes Its Contribution, 80 Ky. L.J. 309 (1990-91).

Jones, Mansion or Fortress? The Legal Merits of Temporary Immunity from Criminal Prosecution for Kentucky’s Chief Executive, 96 Ky. L.J. 669 (2007).

Northern Kentucky Law Review.

Ziegler, Legitimizing the Administrative State: The Judicial Development of the Nondelegation Doctrine in Kentucky, 4 N. Ky. L. Rev. 87 (1977).

Comments, Separation of Church and State: Education and Religion in Kentucky, 6 N. Ky. L. Rev. 125 (1979).

Armstrong & Gillig, Responding to Child Sexual Abuse and Exploitation: The Kentucky Approach, 16 N. Ky. L. Rev. 17 (1988).

Wintersheimer, State Constitutional Law, 20 N. Ky. L. Rev. 591 (1993).

Wintersheimer, State Constitutional Law Survey, 21 N. Ky. L. Rev. 257 (1994).

Notes, Restoration of the Collateral Source Rule in Kentucky: A Review of O’Bryan v. Hedgespeth, 23 N. Ky. L. Rev. 357 (1996).

Treatises

Petrilli, Kentucky Family Law, Termination of Parental Rights and Adoption, § 29.2.

§ 28. One department not to exercise power belonging to another.

No person or collection of persons, being of one of those departments, shall exercise any power properly belonging to either of the others, except in the instances hereinafter expressly directed or permitted.

Compiler’s Notes.

The following amendment was proposed by the 1990 General Assembly (Acts 1990, ch. 148, § 1), was submitted to the voters for ratification or rejection at the regular election in November, 1990 and was defeated:

§ 28. One department not to exercise power belonging to another. — No person or collection of persons, being of one of those departments, shall exercise any power properly belonging to either of the others, except in the instances hereinafter expressly directed or permitted. The General Assembly shall have the authority to establish by general law a process permitting it, or an agency or committee it designates, to review, approve, or reject any administrative regulation of an officer or agency of the executive department during or between regular sessions of the General Assembly.”

NOTES TO DECISIONS

1.Purpose.

This section seems merely to prohibit one department from grabbing power that properly belongs to another. Commonwealth v. Associated Industries of Kentucky, 370 S.W.2d 584, 1963 Ky. LEXIS 76 ( Ky. 1963 ).

2.Construction.

Any statute subject to the scrutiny of the separation of powers doctrine enunciated in Const., § 27 and this section should be judged by a strict construction of those provisions. Legislative Research Com. by Prather v. Brown, 664 S.W.2d 907, 1984 Ky. LEXIS 300 ( Ky. 1984 ).

This section does not apply to municipal governments. Hyman v. City of Louisville, 132 F. Supp. 2d 528, 2001 U.S. Dist. LEXIS 4016 (W.D. Ky. 2001 ).

Former Ky. Rev. Stat. Ann. § 61.870 (1(h) was not unconstitutional for being vague because the statute was not void-as-unintelligible, as (1) the people the statute affected could understand the statute, and (2) courts could deduce the legislature's will, as undefined terms found to render the statute unintelligible were commonly defined. Util. Mgmt. Grp., LLC v. Pike Cty. Fiscal Court, 531 S.W.3d 3, 2017 Ky. LEXIS 441 ( Ky. 2017 ).

3.Invalid Fourth Branch.

KRS 7.090(1), which declares the Legislative Research Commission (LRC) to be an independent agency of state government is constitutionally invalid, because the LRC is an “oversight” and service organization for and on behalf of the General Assembly, and as such, it is a part of the General Assembly, the legislative branch of government; the LRC is not a fourth branch of the government. Legislative Research Com. by Prather v. Brown, 664 S.W.2d 907, 1984 Ky. LEXIS 300 ( Ky. 1984 ).

4.Delegation of Power.

Provisions of former law which authorized the commissioner to exempt certain physicians from the patient compensation fund and to fix the rate of surcharges, were not unconstitutional on their faces and, if properly implemented, would not have violated this section. McGuffey v. Hall, 557 S.W.2d 401, 1977 Ky. LEXIS 533 ( Ky. 1977 ).

Subsection (3) of KRS 189A.010 , which directs that the minimum sentences for repeat offenders established in the earlier portions of that statute, shall not be subject to suspension, probation, or any other form of conditional release or early discharge, is not a violation of the concept of separation of powers of this section and Ky. Const., § 27. Ratliff v. Commonwealth, 719 S.W.2d 445, 1986 Ky. App. LEXIS 1203 (Ky. Ct. App. 1986), limited, Osborne v. Commonwealth, 867 S.W.2d 484, 1993 Ky. App. LEXIS 151 (Ky. Ct. App. 1993), overruled, Commonwealth v. Ramsey, 920 S.W.2d 526, 1996 Ky. LEXIS 38 ( Ky. 1996 ).

KRS 421.350 , which permits testimony from a child who has not been declared by the trial court competent to testify as a witness, is an unconstitutional infringement on the inherent powers of the judiciary, as declared in Ky. Const., § 27 and this section, and since KRS 421.350 authorizes a child to be a witness without first having undertaken a solemn obligation to tell the truth, it is a legislative interference with the orderly administration of justice. Gaines v. Commonwealth, 728 S.W.2d 525, 1987 Ky. LEXIS 196 ( Ky. 1987 ).

Subsection (2) of KRS 177.841 is unconstitutionally vague and overbroad in failing to define “located outside an urban area” with sufficient precision to put the public on notice as to the areas to which it will apply. Further, this defect has not been constitutionally relieved by the General Assembly delegating to the Secretary of Transportation the responsibility of defining the term “urban,” because this becomes a constitutionally impermissible delegation of the legislative function. Diemer v. Commonwealth, Transp. Cabinet, Dep't of Highways, 786 S.W.2d 861, 1990 Ky. LEXIS 8 ( Ky. 1990 ) (Decision prior to 1990 amendment of KRS 177.830 ).

The provisions of KRS 189A.200 which allow for the pretrial suspension of drivers’ licenses, do not unlawfully delegate executive power to the judiciary or violate, in any way, the doctrine of separation of powers provided for in Ky. Const., §§ 27 and 28. Commonwealth v. Raines, 847 S.W.2d 724, 1993 Ky. LEXIS 51 ( Ky. 1993 ), overruled in part, Commonwealth v. Howard, 969 S.W.2d 700, 1998 Ky. LEXIS 95 ( Ky. 1998 ), overruled in part, Commonwealth v. Carman, 455 S.W.3d 916, 2015 Ky. LEXIS 66 ( Ky. 2015 ).

The delegation of power to a private foundation does not violate the separation of powers doctrine as such doctrine only pertains to the distribution of power among the three (3) branches of government. Yeoman v. Commonwealth Health Policy Bd., 983 S.W.2d 459, 1998 Ky. LEXIS 140 ( Ky. 1998 ).

Nothing in the language of House Bill (HB) 406, 2008 Ky. Acts 127, altered, amended, or affected the sentences imposed upon criminal defendants in the courts of the Commonwealth, as all HB 406 did, relative to these appeals, was amend eligibility for a final discharge from parole from a prisoner or parolee’s maximum expiration date to the minimum expiration date and provided that a prisoner or parolee shall get credit against the sentence for time served on parole; since those were not judicial functions, HB 406 simply did not unconstitutionally interfere with any function of the judicial branch. Commonwealth ex rel. Conway v. Thompson, 300 S.W.3d 152, 2009 Ky. LEXIS 290 ( Ky. 2009 ).

5.— Administrative.

KRS 431.240 , authorizing governor to name day for execution of sentence when it is not carried out on day fixed in judgment, does not violate this section since fixing time of execution in capital case is ministerial and not judicial act. Bullitt v. Sturgeon, 127 Ky. 332 , 105 S.W. 468, 32 Ky. L. Rptr. 215 , 1907 Ky. LEXIS 139 ( Ky. 1907 ).

Toll bridge law that conferred administrative powers upon highway commission was not violative of this section, since no legislative powers were conferred. Bloxton v. State Highway Com., 225 Ky. 324 , 8 S.W.2d 392, 1928 Ky. LEXIS 762 ( Ky. 1928 ).

The provisions of the distilled spirits and wine fair trade law that permitted the state alcoholic control board to ascertain the facts and administer the law were constitutional for, although the board acted in a quasi-judicial capacity, it was not exercising judicial power within this section of the Constitution. Reeves v. Simons, 289 Ky. 793 , 160 S.W.2d 149, 1942 Ky. LEXIS 637 ( Ky. 1942 ).

Where powers granted to sewer district board under metropolitan sewer district law were purely administrative, and not legislative, the law did not violate this section. Veail v. Louisville & Jefferson County Metropolitan Sewer Dist., 303 Ky. 248 , 197 S.W.2d 413, 1946 Ky. LEXIS 830 ( Ky. 1946 ).

Legislative requirement that appealed zoning case be given de novo trial in Circuit Court was unconstitutional imposition on such court of nonjudicial administrative function. American Beauty Homes Corp. v. Louisville & Jefferson County Planning & Zoning Com., 379 S.W.2d 450, 1964 Ky. LEXIS 240 ( Ky. 1964 ), limited, Osborne v. Bullitt County Bd. of Educ., 415 S.W.2d 607, 1967 Ky. LEXIS 325 ( Ky. 1967 ), limited, Brady v. Pettit, 586 S.W.2d 29, 1979 Ky. LEXIS 280 ( Ky. 1979 ).

The investigations and hearings of the Cabinet for Human Resources, Department for Health Services, conducted pursuant to statutory and regulatory authority in administering the Special Supplemental Food for Women, Infant and Children (WIC) Program and resulting in sanctions imposed on vendors, were not violative of the separation of powers under Const., § 27 and this section. Cabinet for Human Resources, Dep't of Health Servs. v. Kanter, 898 S.W.2d 508, 1995 Ky. App. LEXIS 62 (Ky. Ct. App. 1995).

Under Kentucky Supreme Court precedents, H.B. 389(4) 2000 Reg. Sess. ( Ky. 2000 ), which amended a provision of the Judicial Retirement Act, KRS 21.450(3) was clearly an unconstitutional delegation, as the unintelligible statute had neither “an intelligible principle,” nor standards controlling the exercise of administrative discretion, and the Kentucky Supreme Court concluded that Ky. H.B. 389(4), subsequently codified at KRS 21.450(3), was unconstitutional because it violated the nondelegation doctrine embodied in Ky. Const. §§ 27, 28, 29 and 60. Bd. of Trs. of the Judicial Form Ret. Sys. v. AG, 132 S.W.3d 770, 2003 Ky. LEXIS 238 ( Ky. 2003 ).

Because the Kentucky Legislature conferred sole and exclusive authority upon the Cabinet for Health and Family Services to determine the appropriate placement of a child committed to its care in KRS 610.010(11), pursuant to Ky. Const., §§ 27, 28, the trial court erred in restricting where the Cabinet could place two (2) children. Cabinet for Health & Family Servs. ex rel. A.W. v. Huddleston, 185 S.W.3d 222, 2006 Ky. App. LEXIS 47 (Ky. Ct. App. 2006).

Legislature had the authority and power to establish the Kentucky State Board of Licensure for Professional Engineers and Land Surveyors (Board) and to vest it with the discretionary authority to oversee a regulatory scheme governing the licensing and oversight of land surveyors in Kentucky; it was not a violation of the separation of powers doctrine for the Board to act in accordance with that grant of authority. Ky. State Bd. of Licensure for Prof'l Eng'rs & Land Surveyors v. Curd, 2012 Ky. App. LEXIS 33 (Ky. Ct. App. Feb. 17, 2012, sub. op., 2012 Ky. App. Unpub. LEXIS 1026 (Ky. Ct. App. Feb. 17, 2012).

Smoking regulation promulgated by the Bullitt County, Kentucky, Board of Health was improperly declared to be invalid because the Board had the authority to regulate under KRS 212.230(1)(c), and there was no violation of Ky. Const. §§ 27, 28. Protecting the public from exposure to environmental tobacco smoke was the proper object of the police power of local government. Bullitt County Bd. of Health v. Bullitt County Fiscal Court, 2012 Ky. App. LEXIS 273 (Ky. Ct. App. Dec. 7, 2012, sub. op., 2012 Ky. App. Unpub. LEXIS 1067 (Ky. Ct. App. Dec. 7, 2012).

6.—Administrative and Executive.

KRS 177.390 to 177.570 gave highway commissioner executive and administrative powers only, and thus was not unconstitutional. Guthrie v. Curlin, 263 S.W.2d 240, 1953 Ky. LEXIS 1238 (Ky. Ct. App. 1953).

7.— Executive.

Provision of act attempting to impose on Circuit Court or circuit judge duty of tax collecting and levying was unconstitutional under this section and Const., § 27. Muhlenburg County v. Morehead, 46 S.W. 484, 20 Ky. L. Rptr. 376 (1898). See Fleming v. Dyer, 47 S.W. 444, 20 Ky. L. Rptr. 689 (1898).

An act regulating elections which provided for appointment of election commissioners by legislature was invasion of powers of the executive and therefore unconstitutional. Pratt v. Breckinridge, 112 Ky. 1 , 65 S.W. 136, 23 Ky. L. Rptr. 1356 , 1901 Ky. LEXIS 286 ( Ky. 1 901).

Statute attempting to confer on circuit judge authority to parole convicted prisoners violated this section. Huggins v. Caldwell, 223 Ky. 468 , 3 S.W.2d 1101, 1928 Ky. LEXIS 373 ( Ky. 1928 ).

Legislative provision for appointment of highway commission by board which included lieutenant governor was not unconstitutional conferring of executive authority on him, since his office was essentially executive as opposed to legislative. Rouse v. Johnson, 234 Ky. 473 , 28 S.W.2d 745, 1930 Ky. LEXIS 220 ( Ky. 1930 ).

By permitting the judiciary to exercise the purely executive function of granting parole, KRS 439.575 violates Ky. Const. § 28, and the executive branch’s participation in the judiciary’s exercise of its power does not alter that fact. Prater v. Commonwealth, 82 S.W.3d 898, 2002 Ky. LEXIS 166 ( Ky. 2002 ).

Kentucky Parole Board acted within its authority and within the bounds of its discretionary powers when it denied defendant’s request for parole and ordered him to serve out the remainder of his sentence, as the Board’s actions did not violate the Separation of Powers under Ky. Const. §§ 27 and 28 because the power to grant parole was a purely executive function pursuant to KRS 13A.130 . Simmons v. Commonwealth, 232 S.W.3d 531, 2007 Ky. App. LEXIS 292 (Ky. Ct. App. 2007).

8.— Executive and Legislative.

Law permitting second-class cities to adopt a commission form of government did not violate this section by vesting both legislative and executive duties in commission. Bryan v. Voss, 143 Ky. 422 , 136 S.W. 884, 1911 Ky. LEXIS 429 ( Ky. 1911 ).

9.— Judicial.

Legislation presuming to give railroad commission judicial powers to hear and determine extortion complaints against railroad was violative of this section and Const., § 27 as granting such judicial powers to nonjudicial body. Louisville & N. R. Co. v. McChord, 103 F. 216, 1900 U.S. App. LEXIS 4800 (6th Cir. 1900), rev’d, 183 U.S. 483, 22 S. Ct. 165, 46 L. Ed. 289, 1902 U.S. LEXIS 726 (1902). See Louisville & N. R. Co. v. Siler, 186 F. 176, 1911 U.S. App. LEXIS 5131 (C.C.D. Ky. 1911 ), aff'd, 231 U.S. 298, 34 S. Ct. 48, 58 L. Ed. 229, 1913 U.S. LEXIS 2567 (U.S. 1913).

Law enacted to prevent railroads from charging extortionate freight and passenger rates pursuant to which railroad commission set rates did not violate this section or Const., § 27 by unconstitutionally vesting such commission with judicial powers. Louisville & N. R. Co. v. Siler, 186 F. 176, 1911 U.S. App. LEXIS 5131 (C.C.D. Ky. 1911 ), aff'd, 231 U.S. 298, 34 S. Ct. 48, 58 L. Ed. 229, 1913 U.S. LEXIS 2567 (U.S. 1913).

Act empowering railroad commission to award reparation by a carrier to shipper does not violate this section by conferring upon commission judicial powers, since Const., § 209 continued in force the powers possessed by the commission theretofore, among which powers was that of rendering such an award. Illinois C. R. Co. v. Paducah Brewery Co., 157 Ky. 357 , 163 S.W. 239, 1914 Ky. LEXIS 300 ( Ky. 1914 ).

Statute providing that railroad commission shall hear complaints against carriers and make awards does not invest commission with judicial powers in contravention of this section, the commission being a permanent governmental agency established by Const., § 209. Louisville & N. R. Co. v. Greenbrier Distillery Co., 170 Ky. 775 , 187 S.W. 296, 1916 Ky. LEXIS 144 ( Ky. 1916 ).

Legislative provision for court decision as to validity of municipal bond proposal did not unconstitutionally vest court with nonjudicial authority. Rohde v. Newport, 246 Ky. 476 , 55 S.W.2d 368, 1932 Ky. LEXIS 793 ( Ky. 1932 ).

Even though governor is required to hold a hearing and investigate the facts upon which removal is based, such does not vest him with judicial functions contrary to Constitution. Johnson v. Laffoon, 257 Ky. 156 , 77 S.W.2d 345, 1934 Ky. LEXIS 505 ( Ky. 1934 ).

KRS 66.310 confers no judicial power on the county debt commission in allowing it to pass upon the validity of bond issues and providing that its findings of fact shall be final if supported by substantial evidence. County Debt Com. v. Morgan County, 279 Ky. 476 , 130 S.W.2d 779, 1939 Ky. LEXIS 279 ( Ky. 1939 ), overruled, Fiscal Court of Estill County v. Debt Com. of Kentucky, 286 Ky. 114 , 149 S.W.2d 735, 1941 Ky. LEXIS 209 ( Ky. 1941 ).

Former law that authorized Court of Appeals to make rules respecting the practice of law was not in conflict with Const., § 28, since this authority pertained to matters affecting the function of administering the law, which was properly embraced within the judicial department of the government. Hobson v. Kentucky Trust Co., 303 Ky. 493 , 197 S.W.2d 454, 1946 Ky. LEXIS 843 ( Ky. 1946 ), overruled, Frazee v. Citizens Fidelity Bank & Trust Co., 393 S.W.2d 778, 1964 Ky. LEXIS 547 (Ky. Ct. App. 1964).

Provision of adoption law requiring consent of state department head to the filing of petition for adoption of child was not invasion of judicial power. Commonwealth, Dep't of Child Welfare v. Lorenz, 407 S.W.2d 699, 1966 Ky. LEXIS 174 ( Ky. 1966 ).

While subsection (4) of KRS 15.725 specifically provides that a county clerk can issue a criminal warrant prepared by a county attorney when no district judge, circuit judge or trial commissioner is available, the authority to sign the judge’s name to an arrest warrant cannot be delegated to the county attorney since this section prohibits anyone in one branch of government from exercising the power in another branch of government, the county attorney being in the executive branch under Const., § 99 and the judicial branch being under Const., § 109. Dugger v. Off 2nd, Inc., 612 S.W.2d 756, 1980 Ky. App. LEXIS 425 (Ky. Ct. App. 1980).

The Jefferson Family Court Project is a concurrent session of the already existing District and Circuit Court Divisions convened in response to 1988 Ky. Acts Ch. 128, HCR 30; it is based on the temporary assignment of district and circuit judges as special judges and neither creates an impermissible new division of the courts nor usurps the power of the legislature to assign jurisdiction of subject matter to the Circuit Court. Kuprion v. Fitzgerald, 888 S.W.2d 679, 1994 Ky. LEXIS 135 ( Ky. 1994 ).

KRS 189A.010 , KRS 189A.103 , and KRS 189A.105 do not violate the separation of powers doctrine contained in this section and KY Const. § 27, because they do not involve any “ultimate power” of the judiciary, but simply impose conditions on the issuance of warrants. Combs v. Commonwealth, 965 S.W.2d 161, 1998 Ky. LEXIS 33 ( Ky. 1998 ), limited, Commonwealth v. Lopez, 3 S.W.3d 351, 1999 Ky. LEXIS 136 ( Ky. 1999 ).

Where defendant pled guilty to illegal possession of a controlled substance in the first degree, a Class D felony, and successfully completed probation, the trial court lacked statutory authority under KRS 431.076 to expunge her voided conviction. The trial court erred by using the catch-all provision in RCr P. 60.02(f) as a vehicle to expunge defendant’s criminal records, where the statute did not allow expungement, as this runs afoul of the separation of powers doctrine. Commonwealth v. Jones, 406 S.W.3d 857, 2013 Ky. LEXIS 377 ( Ky. 2013 ).

10.— Legislative.

Statute conferring on Circuit Courts the power to establish towns is not legislative in character. Morton v. Woodford, 99 Ky. 367 , 35 S.W. 1112, 18 Ky. L. Rptr. 271 , 1896 Ky. LEXIS 91 ( Ky. 1896 ).

The power to elect officers to fill office created by statute does not necessarily belong to executive department, and may therefore be conferred by statute upon the legislature. Commissioners of Sinking Fund v. George, 104 Ky. 260 , 47 S.W. 779, 20 Ky. L. Rptr. 938 , 1898 Ky. LEXIS 211 ( Ky. 1898 ).

A statute allowing Circuit Court to dissolve municipality of sixth class upon filing of proper petition was not delegation of legislative power to judiciary in violation of this section. Boone County v. Verona, 190 Ky. 430 , 227 S.W. 804, 1921 Ky. LEXIS 468 ( Ky. 1921 ).

The General Assembly is without authority to authorize courts to exercise legislative functions except where the Constitution especially directs or permits it. Boone County v. Verona, 190 Ky. 430 , 227 S.W. 804, 1921 Ky. LEXIS 468 ( Ky. 1921 ).

Statute may confer upon courts the right to administrate but not to legislate. Campbell v. Commonwealth, 229 Ky. 264 , 17 S.W.2d 227, 1929 Ky. LEXIS 756 ( Ky. 1929 ).

Legislative provision for determination by tax commission of amount of bond or insurance to be required of taxi operators was not unconstitutional delegation of legislative authority to such commission. Gross v. Commonwealth, 256 Ky. 19 , 75 S.W.2d 558, 1934 Ky. LEXIS 349 ( Ky. 19 34).

The General Assembly is without authority to authorize courts to exercise legislative functions except where the Constitution especially directs or permits it. Beacon Liquors v. Martin, 279 Ky. 468 , 131 S.W.2d 446, 1939 Ky. LEXIS 304 ( Ky. 1939 ).

Legislative delegation to governor of authority to determine existence of emergency and to thereupon expend emergency funds was not violative of this section for Const., § 27 as unconstitutional delegation of legislative authority. Commonwealth ex rel. Meredith v. Johnson, 292 Ky. 288 , 166 S.W.2d 409, 1942 Ky. LEXIS 73 ( Ky. 1942 ).

The section of the alcoholic beverage control law authorizing alcoholic beverage control board to limit the number of retail liquor licenses to be issued in the state and in any particular locality does not constitute an unconstitutional delegation of legislative power, since the law outlines the general legislative policies and necessarily leaves the details to the administrative agency. Kentucky Alcoholic Beverage Control Board v. Klein, 301 Ky. 757 , 192 S.W.2d 735, 1946 Ky. LEXIS 531 ( Ky. 1946 ).

Power to appoint a receiver on behalf of bondholders in case of default of bonds by sewer district provided for in KRS 76.160 did not constitute an unconstitutional delegation of legislative power to the courts since courts have inherent power to appoint receivers in all cases of mismanagement, but in any event taxpayer could not question validity of such provision in advance of an attempt by a court to exercise the power. Veail v. Louisville & Jefferson County Metropolitan Sewer Dist., 303 Ky. 248 , 197 S.W.2d 413, 1946 Ky. LEXIS 830 ( Ky. 1946 ).

City-county health board established under KRS 212.350 to 212.625 would not have power to exact, by regulation, a permit fee from food establishments to help defray cost of inspection and regulation, even if general statutory authority of board to make regulations should be construed to grant such power, since, in the absence of a legislative guide or standard, the granting of such power would be an unconstitutional delegation of legislative authority. Henry v. Parrish, 307 Ky. 559 , 211 S.W.2d 418, 1948 Ky. LEXIS 764 ( Ky. 1948 ).

KRS 337.510 and 337.520 , fixing minimum wages for public laborers, are not an unconstitutional delegation of legislative power to private persons, associations, or corporations in contravention of Const., §§ 27 to 29. Baughn v. Gorrell & Riley, 311 Ky. 537 , 224 S.W.2d 436, 1949 Ky. LEXIS 1155 ( Ky. 1949 ).

While this section would not allow legislative authority to be delegated to administrative agencies within executive branch, administrative discretion could be granted. Kesselring v. Wakefield Realty Co., 312 Ky. 334 , 227 S.W.2d 416, 1949 Ky. LEXIS 1263 ( Ky. 1949 ).

KRS 56.440 to 56.550 , creating state property and buildings commission with authority to acquire and sell realty for state, was not unconstitutional delegation of legislative authority. Preston v. Clements, 313 Ky. 479 , 232 S.W.2d 85, 1950 Ky. LEXIS 902 ( Ky. 1950 ).

KRS 177.480 does not improperly delegate legislative power to the commissioner of highways because it gives him the absolute power to grant or refuse licenses or privileges for the operation of garages, filling stations and motels upon the right of way along the toll roads, since in regulating the use and occupancy of state property a state officer is not exercising a legislative function, but an administrative one. Guthrie v. Curlin, 263 S.W.2d 240, 1953 Ky. LEXIS 1238 (Ky. Ct. App. 1953).

Legislative delegation to courts of authority to decide whether or not city should annex territory was unconstitutional. Prestonsburg v. Conn, 317 S.W.2d 484, 1958 Ky. LEXIS 90 ( Ky. 1958 ).

Ordinance requiring mayor’s approval of junkyard location for licensing was, absent any guidelines for such official to follow pursuant to such approval, unconstitutional delegation of authority. Turner v. Peters, 327 S.W.2d 958, 1959 Ky. LEXIS 88 ( Ky. 1959 ).

Former law that authorized public aid to private institutions for education of exceptional children, while failing to prescribe very definite standards by which board of education was to proceed thereunder, nevertheless did not constitute invalid delegation of legislative authority under this section and Const., § 27. Butler v. United Cerebral Palsy, Inc., 352 S.W.2d 203, 1961 Ky. LEXIS 200 ( Ky. 1961 ).

Highway department regulations which permitted maintenance of billboards in commercially or industrially developed areas as defined therein were valid as against challenge on ground of invalid delegation of legislative power. Southeastern Displays, Inc. v. Ward, 414 S.W.2d 573, 1967 Ky. LEXIS 358 ( Ky. 1967 ).

The legislature fixed adequate standards by which the state board of health must be guided in carrying out the functions committed to it by subsection (14) of KRS 218.010 (repealed). Hohnke v. Commonwealth, 451 S.W.2d 162, 1970 Ky. LEXIS 379 ( Ky. 1970 ).

As part of the executive department, the department of labor has no power to legislate and it was beyond the power of the industrial safety board in promulgating safety standards for the construction industry to change the settled law of Kentucky by making the owner of premises liable to an employee of an independent contractor for injuries suffered while working on the premises, and a regulation making the owner of the premises equally liable with the independent contractor for enforcing safety standards exceeded the permissible bounds of administrative implementation. Courtney v. Island Creek Coal Co., 474 F.2d 468, 1973 U.S. App. LEXIS 11381 (6th Cir. Ky. 1973 ).

Legislation (KRS 337.295 ) giving the commissioner of labor the power to issue regulations defining and governing provisions for minimum wages and overtime payments did not constitute an invalid delegation of legislative authority. Kentucky Municipal League v. Commonwealth, 530 S.W.2d 198, 1975 Ky. LEXIS 48 ( Ky. 1975 ).

KRS 7.100(8) which attempts to grant all authority constitutional and otherwise, express and inherent, save only the power to pass legislation to the General Assembly’s agent, the Legislative Research Commission (LRC), while the General Assembly is not in session, is an impermissible grant of power to the LRC under the separation of powers doctrine of Const., § 27 and this section; it also violates Const., § 42, in that such a provision brings new life to the General Assembly (through the LRC) following adjournment. Legislative Research Com. by Prather v. Brown, 664 S.W.2d 907, 1984 Ky. LEXIS 300 ( Ky. 1984 ).

A metropolitan sewer district, as custodian of certain drainage facilities, can establish and impose charges for services rendered, however, it has no power to levy taxes, as taxation is a legislative function which if delegated to such a sewer district would violate Const. § 27 and this section. Long Run Baptist Asso. v. Louisville & Jefferson County Metropolitan Sewer Dist., 775 S.W.2d 520, 1989 Ky. App. LEXIS 106 (Ky. Ct. App. 1989).

The Kentucky State Senate has the inherent power to advise and consent on executive branch appointments of inferior state officers. Kraus v. Kentucky State Senate, 872 S.W.2d 433, 1993 Ky. LEXIS 169 ( Ky. 1993 ), limited, Fox v. Grayson, 317 S.W.3d 1, 2010 Ky. LEXIS 88 ( Ky. 2010 ).

Failure of legislature to define the words “public service information” and “similar information” appearing in KRS 177.863(4)(a) provided no guidance to the Transportation Cabinet, which omitted the words from their regulations, and amounted to an unconstitutional delegation of the legislative power to the Cabinet in violation of Const., § 27 and this section. Flying J Travel Plaza v. Transportation Cabinet, Dep't of Highways, 928 S.W.2d 344, 1996 Ky. LEXIS 41 ( Ky. 1996 ).

Because the preservation of the Kentucky River basin is a benefit which obviously accrues to all within it boundaries, fees collected by the Kentucky River Authority from city were not a tax collected in violation of the state Constitution. Kentucky River Auth. v. City of Danville, 932 S.W.2d 374, 1996 Ky. App. LEXIS 112 (Ky. Ct. App. 1996), cert. denied, 520 U.S. 1186, 117 S. Ct. 1469, 137 L. Ed. 2d 682, 1997 U.S. LEXIS 2550 (U.S. 1997).

Legislature may permissibly delegate zoning authority to local legislative bodies, where such delegation is for a limited period of time, such as the 90-day period in KRS 100.211 . Evangelical Lutheran Good Samaritan Soc'y v. Albert Oil Co., 969 S.W.2d 691, 1998 Ky. LEXIS 62 ( Ky. 1998 ).

Where KRS 67C.135(3) contained sufficient criteria for drawing new legislative districts and the fiscal court had no power or discretion as to the creation of the initial districts, the statute did not violate the prohibition against arbitrary power or the doctrine of separation of powers in Ky. Const. §§ 2, 27, 28, 29 when it required fiscal court approval of the plan without permitting it to make further refinements after-the-fact. Owens v. Jefferson County Fiscal Court, 128 S.W.3d 834, 2004 Ky. App. LEXIS 37 (Ky. Ct. App. 2004).

Because KRS 177.081 did not violate the separation-of-powers doctrine under Ky. Const. §§ 27 and 28 as it neither improperly delegated legislative authority or encroached on the court’s authority to determine public use and necessity, and the fact that the Department of Highways could have applied a lower speed design or chosen a different route did not imply that the road design was arbitrary or an abuse of discretion, the condemnation action was affirmed. Rabourn v. Commonwealth, 2006 Ky. App. Unpub. LEXIS 137 (Ky. Ct. App. July 14, 2006).

Where defendant was convicted of second-degree assault and tampering with physical evidence, the trial court did not commit plain error in permitting each party nine peremptory challenges. Because the Kentucky General Assembly did not improperly delegate its legislative duty to the Kentucky Supreme Court in the area of peremptory challenges, there were no constitutional infirmities in either KRS 29A.290 or RCr P. 9.40. Spencer v. Commonwealth, 2013 Ky. App. LEXIS 123 (Ky. Ct. App. Aug. 9, 2013), review denied, ordered not published, 2014 Ky. LEXIS 268 (Ky. June 19, 2014).

7.—Executive.

Circuit court erred in concluding that the University of Kentucky was not in the executive branch of state government for purposes of Ky. Rev. Stat. § 45.237 et seq.; Ky. Rev. Stat. Ann. § 164.225 plainly provides that the University is an independent agency and instrumentality of the Commonwealth, and it is attached to the executive branch. Univ. of Ky. v. Moore, 599 S.W.3d 798, 2019 Ky. LEXIS 437 ( Ky. 2019 ).

University of Kentucky is in the executive branch of state government; the University of Kentucky may be included or excluded from the definition of “agency” in regard to particular statutes, i.e., being an agency for purposes of one statute but not necessarily others, and the fact that the University maintains a level of statutorily granted autonomy, which may not be enjoyed by other executive branch entities, does not exclude it from the executive branch. Univ. of Ky. v. Moore, 599 S.W.3d 798, 2019 Ky. LEXIS 437 ( Ky. 2019 ).

11.Exercise of Power.

When (1) defendant pled guilty to criminal attempt to commit first-degree unlawful transaction with a minor, under KRS 530.064(2)(a) and 506.010 (4)(d) and was placed on probation, on the condition that defendant participate in any recommended treatment, (2) it was recommended that defendant participate in a sex offender treatment program that lasted three years, and (3) the Court of Appeals reversed the trial court’s extension of defendant’s term of probation, the trial court could not revoke defendant’s probation on remand and had to deem defendant finally discharged because (1) the probation period could not exceed two years, under KRS 533.020(4), (2) defendant was not convicted of a sex crime, as criminal attempt was a separate, inchoate offense under KRS 506.010 , and only felony attempts at offenses listed in KRS 17.500(8)(a) were sex crimes under KRS 17.500(8)(b), so defendant was not statutorily required to complete sex offender treatment as a condition of probation, (3) defendant did not request or agree to an extension of defendant’s probation when accepting a plea bargain, as defendant only had to complete recommended counseling, was not told treatment would take more than two years, and, when treatment lasted more than two years, this did not trump the statutory length of misdemeanor probation in violation of the separation of powers in Ky. Const. §§ 27 and 28, (4) probation was unlawfully extended after probation expired, and (5) defendant did not violate probation. Miller v. Commonwealth, 391 S.W.3d 801, 2013 Ky. LEXIS 6 ( Ky. 2013 ).

12.—Administrative and Executive.

Removal of public official from office by governor pursuant to statute vesting him with such power is exercise of an administrative or executive function and is neither legislative nor judicial in character. Johnson v. Laffoon, 257 Ky. 156 , 77 S.W.2d 345, 1934 Ky. LEXIS 505 ( Ky. 1934 ).

Notwithstanding Const., §§ 93 and 107, legislative provisions naming initial highway commission members and providing for legislative election of future members was violative of this section and Const., § 27. Sibert v. Garrett, 197 Ky. 17 , 246 S.W. 455, 1922 Ky. LEXIS 639 ( Ky. 1922 ).

Rule that appointment to office is executive function which cannot be exercised by legislature applied solely to appointment of officers and not to mere temporary agents. Craig v. O'Rear, 199 Ky. 553 , 251 S.W. 828, 1923 Ky. LEXIS 894 ( Ky. 1923 ).

Judicial review of pardon granted by governor would be usurpation of executive power by judiciary. Jackson v. Rose, 223 Ky. 285 , 3 S.W.2d 641, 1928 Ky. LEXIS 331 ( Ky. 1928 ).

Exercise of lawful authority by one within executive branch was not subject to interference by judiciary even in case of gross abuse. Adkins v. Commonwealth, 232 Ky. 312 , 23 S.W.2d 277, 1929 Ky. LEXIS 444 ( Ky. 1929 ).

Statute providing for appointment of disabled ex-servicemen’s board by governor from lists submitted by the American Legion did not place an unconstitutional restriction on governor’s power of appointment in violation of Const., §§ 27 and 28, since the statute neither attempted to appoint administrative officers nor denied the executive’s appointive function, but merely limited governor’s selection to lists submitted by a nominating agency. Elrod v. Willis, 305 Ky. 225 , 203 S.W.2d 18, 1947 Ky. LEXIS 778 ( Ky. 1947 ).

The adoption of administrative regulations necessary to implement and carry out the purpose of legislative enactments is executive in nature and is ordinarily within the constitutional purview of the executive branch of government; therefore, former KRS 13.085(1)(d) and (1)(e), 13.087(4) to (9), 13.088(2) and (3), and 13.092(1) and (2), which set out the plan and the rules for providing legislative or Legislative Research Commission review of proposed regulations, were violative of Const., § 27 and this section and were a legislative encroachment into the power of the executive branch, in that they had the effect of creating a legislative veto of the administrative policy of the executive branch of government. Legislative Research Com. by Prather v. Brown, 664 S.W.2d 907, 1984 Ky. LEXIS 300 ( Ky. 1984 ).

Section 27 and this section of the Kentucky Constitution preclude the district court’s exercise of executive powers; the district court had no power under former law to order placement of children committed to the Cabinet for Human Resources. Commonwealth v. Partin, 702 S.W.2d 51, 1985 Ky. App. LEXIS 689 (Ky. Ct. App. 1985).

The Governor’s policy of providing defense counsel up to three (3) days from the date of receipt of a death warrant request to respond in writing is not affected by RCr 11.42 (10), which serves as an outer time limit on the bringing of such actions and in no way affects the prerogatives of the Governor with respect to enforcement of criminal judgments. Bowling v. Commonwealth, 926 S.W.2d 667, 1996 Ky. LEXIS 17 (Ky.), cert. denied, 517 U.S. 1223, 116 S. Ct. 1855, 134 L. Ed. 2d 955, 1996 U.S. LEXIS 3486 (U.S. 1996).

The Office of Financial Institutions (OFI) acted outside of the scope of its authority by allowing community-based charters under KRS 286.6-107 because the legislature rejected the option of allowing community based fields of membership for credit unions; OFI cannot expand its power to approve community fields of membership without violating the restrictions of Ky. Const. §§ 27 and 28. Commonwealth Ex Rel. Office of Fin. Insts. v. Home Fed. Savs. & Loan Ass'n, 2008 Ky. App. LEXIS 343 (Ky. Ct. App. 2008).

KRS 243.230(7) did not violate separation of powers, Ky. Const. §§ 28-29, as it granted limited discretion to the administrative board and limited the board’s authority to define the terms of the statute; Maxwell's Pic-Pac, Inc. v. Dehner, 739 F.3d 936, 2014 FED App. 0015P, 2014 U.S. App. LEXIS 761 (6th Cir. Ky. 2014 ).

Lower court did not abuse its discretion in issuing a writ of prohibition to bar enforcement of a circuit court's restraining order that prohibited the Kentucky Horse Racing Commission from considering an application for a license to operate a quarter-horse racetrack where the authority to approve such licenses was vested in the Commission, and to allow the circuit court's order to stand would have invaded that authority. Appalachian Racing, LLC v. Commonwealth, 504 S.W.3d 1, 2016 Ky. LEXIS 565 ( Ky. 2016 ).

13.— Executive.

The governor, supreme civil authority in state and commander-in-chief of militia, may call latter into active service at his discretion; the exercise of this discretion is not subject to restraint or control by the courts since this would be interference by judiciary with executive department. Franks v. Smith, 142 Ky. 232 , 134 S.W. 484, 1911 Ky. LEXIS 217 ( Ky. 1911 ) ( Ky. 1911 ).

Commonwealth representatives did not have a right under Ky. Const., § 230 to be called into an extraordinary session of the Kentucky General Assembly to end the Kentucky Governor’s allegedly unlawful expenditure of unappropriated state funds under Ky. Const., § 80; whether to call an extraordinary session and what matters were to be addressed in such a session were within the discretion of the Governor. Ky. Const., § 230 did not provide an exception to the separation-of-powers doctrine created by Ky. Const., §§ 27 and 28. Geveden v. Commonwealth ex rel. Fletcher, 142 S.W.3d 170, 2004 Ky. App. LEXIS 251 (Ky. Ct. App. 2004).

Where the court dismissed the DUI charges without prejudice after the officer failed to appear for two pretrial conferences, the trial court erred, because under RCr 9.64, only the Commonwealth had the authority to dismiss a criminal complaint before trial; the trial court could only dismiss via a directed verdict following a trial; by evaluating and dismissing the case, the trial court improperly assumed the function of the executive branch in violation of the separation of powers provision. Commonwealth v. Gonzalez, 237 S.W.3d 575, 2007 Ky. App. LEXIS 373 (Ky. Ct. App. 2007).

14.— — Pardon and Commutation.

Although the legislative branch is responsible for the enactment of criminal penalties and has set the penalty for first degree murder at death or life imprisonment with parole, the governor had the power to commute a death sentence to a life term without parole, since a federal court had decided that the governor possessed the power of commutation as well as that of pardon, the commuted sentence was a lesser punishment than the death penalty, and the defendant was collaterally estopped from relitigating this issue. Hamilton v. Ford, 362 F. Supp. 739, 1973 U.S. Dist. LEXIS 12418 (E.D. Ky. 1973 ).

The power to grant parole is vested exclusively in the executive branch of the government, and thus KRS 439.177 , which authorizes judges to exercise such power, violates this section and Const., §§ 27 and 77 and is void. Commonwealth v. Cornelius, 606 S.W.2d 172, 1980 Ky. App. LEXIS 360 (Ky. Ct. App. 1980).

The Kentucky Supreme Court was without authority to review the wisdom of the actions of the Governor of Kentucky in issuing a blanket pardon to persons under investigation by a grand jury for alleged criminal violations of a state merit system hiring scheme; such an action would have been a brazen violation of separation of powers given the Governor’s broad and unfettered discretion to pardon, and the court’s sole concern was the constitutionality and not the prudence of the Governor’s actions. Fletcher v. Graham, 192 S.W.3d 350, 2006 Ky. LEXIS 123 ( Ky. 2006 ).

Great and irreparable injury supporting the issuance of a writ of mandamus sought by the Governor of Kentucky was shown when a circuit court refused to instruct a grand jury investigating alleged criminal violations of a state hiring system scheme on the effect of the Governor’s blanket pardon of indicted and unindicted persons for related offenses; the refusal potentially violated the separation of powers and the Governor’s pardoning power under Ky. Const. § 77, and correction of the possible error was necessary and appropriate in the interest of orderly judicial administration. Fletcher v. Graham, 192 S.W.3d 350, 2006 Ky. LEXIS 123 ( Ky. 2006 ).

15.— Judicial.

Courts are interpreters and not makers of the law. It is not the province of courts to usurp functions of the legislature or of general council of a city by questioning the wisdom of their authorized acts. Gathright v. H. M. Byllesby & Co., 154 Ky. 106 , 157 S.W. 45, 1913 Ky. LEXIS 59 ( Ky. 1913 ).

The judiciary is not at liberty to interfere with authority of legislative branch to enact laws unless the legislation violates directly or by necessary implication some provision of state or federal Constitution. Commonwealth v. Goldburg, 167 Ky. 96 , 180 S.W. 68, 1915 Ky. LEXIS 818 ( Ky. 1915 ). See Lawrence E. Tierney Coal Co. v. Smith's Guardian, 180 Ky. 815 , 203 S.W. 731, 1918 Ky. LEXIS 151 (Ky.), modified, 181 Ky. 764 , 205 S.W. 951, 1918 Ky. LEXIS 623 ( Ky. 1918 ).

Legislature could provide for giving of bond by convicted defendant against future violations without exercising judicial function in violation of this section. Lakes v. Goodloe, 195 Ky. 240 , 242 S.W. 632, 1922 Ky. LEXIS 342 ( Ky. 1922 ).

Fraudulently obtained pardon could be set aside by court without infringing upon executive powers. Adkins v. Commonwealth, 232 Ky. 312 , 23 S.W.2d 277, 1929 Ky. LEXIS 444 ( Ky. 1929 ).

Statute which vests in board of city commissioners right to hear against a fellow commissioner charges of misconduct, inability or wilful neglect in performance of his duties and to remove him if found guilty is not an unlawful exercise of judicial function. Arbogast v. Weber, 249 Ky. 20 , 60 S.W.2d 144, 1933 Ky. LEXIS 477 ( Ky. 1933 ).

The county board of education being an administrative body organized under the executive department, courts should not interfere with its acts so long as they are lawful and within the scope of its authority. Meade County Board of Education v. Powell, 254 Ky. 352 , 71 S.W.2d 638, 1934 Ky. LEXIS 76 ( Ky. 1934 ).

Court had plenary power concerning restoration or disbarment of attorneys, absent any statutory restraint not constituting invasion of judiciary. In re Stump, 272 Ky. 593 , 114 S.W.2d 1094, 1938 Ky. LEXIS 164 ( Ky. 1938 ).

The exercise of such discretionary power as finding facts and administering the law, by the alcoholic beverage control board, is a quasi-judicial act, but not exercise of judicial power within the meaning of Const., §§ 27, 28 and 109. Keller v. Kentucky Alcoholic Beverage Countrol Board, 279 Ky. 272 , 130 S.W.2d 821, 1939 Ky. LEXIS 293 ( Ky. 1939 ).

Court of Appeals follows court rules embodied in codes, just as if court itself had made them, except in cases where rigid adherence to those rules would violate constitutional provision and deprive court of its judicial power. Ag v. Furste, 288 Ky. 631 , 157 S.W.2d 59, 1941 Ky. LEXIS 157 (Ky. Ct. App. 1941).

Legislature may not prescribe mandatory rules of court. Ag v. Furste, 288 Ky. 631 , 157 S.W.2d 59, 1941 Ky. LEXIS 157 (Ky. Ct. App. 1941).

Court of Appeals had plenary power under Const., § 27 and this section to grant license to practice law to one convicted of felony while statute forbidding one convicted of felony to practice law was in effect. In re May, 249 S.W.2d 798, 1952 Ky. LEXIS 871 ( Ky. 1952 ).

It was invasion of judicial power for legislature to attempt to nullify court-ordered probation period by application of subsequent probation law retroactively to reduce such period. Taylor v. Asher, 317 S.W.2d 895, 1958 Ky. LEXIS 117 ( Ky. 1958 ).

Decision of county clerk that one of signers of election candidate’s declaration was ineligible as not being registered voter was not exercise of judicial power by member of executive branch, since such clerk was thereby merely performing his administrative duty pursuant to provisions of KRS 119.160 (repealed). Bach v. Keith, 324 S.W.2d 393, 1959 Ky. LEXIS 363 ( Ky. 1959 ).

Where act providing for submission to voters of bond issue question was erroneously identified as “House Bill No. _________ ” rather than “Senate Bill No. 251,” Circuit Court did not infringe upon legislative powers in directing such error corrected for voter submission. Walton v. Carter, 337 S.W.2d 674, 1960 Ky. LEXIS 363 ( Ky. 1960 ). See Hatchett v. Glasgow, 340 S.W.2d 248, 1960 Ky. LEXIS 30 ( Ky. 1960 ).

Where county attorney issued arrest warrant and signed district judge’s name thereon, he was acting outside the scope of his power under KRS 15.725 and exercising judicial rather than executive branch powers which is prohibited under this section and he was not immune under a theory of judicial immunity, since he is at most entitled to a quasi-judicial immunity and then only when he acts within the scope of his prosecutorial duties. Dugger v. Off 2nd, Inc., 612 S.W.2d 756, 1980 Ky. App. LEXIS 425 (Ky. Ct. App. 1980).

KRS 304.40-270 (repealed) was clearly unconstitutional as an invasion of rule-making power of the courts, and in violation of Ky. Const., §§ 27, 28 and 109. McCoy v. Western Baptist Hospital, 628 S.W.2d 634, 1981 Ky. App. LEXIS 314 (Ky. Ct. App. 1981).

The language of KRS 243.580(3) (now repealed) which prohibits courts from enjoining the operation of an order of revocation or suspension of a liquor license pending an appeal directly locks horns with the constitutionally inherent injunction power of the courts; such language is a classic example of the very type of legislative encroachment onto the power of the judicial branch of the government which is constitutionally impermissible. Smothers v. Lewis, 672 S.W.2d 62, 1984 Ky. LEXIS 256 ( Ky. 1984 ).

Subsections (2) and (3) of KRS 243.580 (now repealed), which, in effect, prohibit all courts from interfering with an order of revocation of an alcoholic beverage license during an appeal are unconstitutional because their prohibitions against injunctive relief pending appeal are legislative encroachments upon the powers of the judicial branch of the government. Smothers v. Lewis, 672 S.W.2d 62, 1984 Ky. LEXIS 256 ( Ky. 1984 ).

Former law which expressly authorized the juvenile session to commit children to the custody of the Cabinet for Human Resources, necessarily implied that the court may order the Cabinet for Human Resources to pick up committed children; orders of this nature do not violate this section or § 27 of the Kentucky Constitution. Commonwealth v. Partin, 702 S.W.2d 51, 1985 Ky. App. LEXIS 689 (Ky. Ct. App. 1985).

By enacting KRS 381.940 , the General Assembly has arbitrarily determined the rights of the parties and their successors to past transactions; therefore, that section is unconstitutional as clear intrusion into judicial power. Akers v. Baldwin, 736 S.W.2d 294, 1987 Ky. LEXIS 230 ( Ky. 1987 ).

The power to make rules and to determine substantive issues of law is solely within the power of the judiciary. Akers v. Baldwin, 736 S.W.2d 294, 1987 Ky. LEXIS 230 ( Ky. 1987 ).

KRS 26A.020(1) represents an encroachment by the legislature on the power of the judiciary to make rules and is therefore unconstitutional; the Supreme Court extends comity to the legislature and upholds the statute. Foster v. Overstreet, 905 S.W.2d 504, 1995 Ky. LEXIS 98 ( Ky. 1995 ).

Former KRS 342.320(9), which authorized non-attorneys in the Department of Workers’ Claims to act as legal representatives in workers’ compensation cases, is unconstitutional as it violates the principle of separation of powers. Turner v. Kentucky Bar Ass'n, 980 S.W.2d 560, 1998 Ky. LEXIS 166 ( Ky. 1998 ).

The proof requirement of KRS 391.105 , which pertains to intestate succession of persons born out of wedlock, does not violate the separation of powers doctrine emanating from the state Constitution. Harris v. Stewart, 981 S.W.2d 122, 1998 Ky. App. LEXIS 14 (Ky. Ct. App. 1998).

The 1996 amendment to KRS 342.320(2)(a), which limits the maximum attorney fee for representing an injured worker before an arbitrator to $2,000.00, does not represent an unconstitutional attempt by the legislature to encroach upon the Supreme Court’s exclusive authority to regulate the practice of law. Daub v. Baker Concrete, 25 S.W.3d 124, 2000 Ky. LEXIS 91 ( Ky. 2000 ).

The 1996 amendment to KRS 342.320(2)(a), which limits the maximum attorney fee for representing an injured worker before an arbitrator to $2,000.00, is not arbitrary and capricious and, therefore, does not violate Sections 2, 14, 19, 28, 29, 109, and 116 of the Kentucky Constitution or Article 1, § 10 of the United States Constitution.Daub v. Baker Concrete, 25 S.W.3d 124, 2000 Ky. LEXIS 91 ( Ky. 2000 ).

Kentucky Court of Justice is an independent branch of state government and is not subject to interference in the management and use of its budget by the General Assembly under Ky. Const., §§ 27 and 28; the authority and responsibility of determining the necessity and propriety of expenditures rests solely with the judicial branch and is not subject to executive or legislative regulations. Martin v. Admin. Office of the Courts, 107 S.W.3d 212, 2003 Ky. LEXIS 142 ( Ky. 2003 ).

Trial court erred in ordering the cabinet for health and family services to pay for opiate hair follicle drug screen testing performed on the parents of a neglected child because there was no specific statute authorizing assessment of such payment and there was no significant potential infringement of the parents’ due process rights which would serve to bring the issue within the purview of the court’s inherent powers to administer justice. Commonwealth v. G.W.F., 229 S.W.3d 596, 2007 Ky. App. LEXIS 364 (Ky. Ct. App. 2007).

KRS 532.043(5) does not violate the separation of powers clause by giving the power of revocation of conditional discharge to the courts, and thus was constitutional because service of a defendant’s conditional discharge sentence remained under the control of the judicial branch, and not, as parole, under the executive branch. Henley v. Commonwealth, 2007 Ky. App. LEXIS 427 (Ky. Ct. App. Nov. 9, 2007), rev'd, 319 S.W.3d 295, 2010 Ky. LEXIS 99 ( Ky. 2010 ).

Defendant was not entitled to amend the dismissal without prejudice of the charge against defendant to a dismissal with prejudice of the charge because it was not within the province of the circuit court, under Ky. Const. §§ 27 and 28 as it would have violated the separation of powers doctrine. Gibson v. Commonwealth, 291 S.W.3d 686, 2009 Ky. LEXIS 155 ( Ky. 2009 ).

Applying CR 41.02(3) (dismissals not designated otherwise are with prejudice by default) to criminal cases by virtue of RCr P. 13.04 is unconstitutional as a violation of separation of powers principles. Keeling v. Commonwealth, 381 S.W.3d 248, 2012 Ky. LEXIS 160 ( Ky. 2012 ).

When it was held that the legislature violated Ky. Const. § 51 by transferring funds from workers’ compensation accounts to the general fund, separation of powers barred a court from ordering the governor to restore funds previously transferred because the legislature solely controlled the state treasury. Beshear v. Haydon Bridge Co., 416 S.W.3d 280, 2013 Ky. LEXIS 582 ( Ky. 2013 ).

16.— — Appointment.

A circuit judge is a conservator of the peace and may properly exercise power of appointing guards to protect property without violating this section. Cahill v. Perrine, 105 Ky. 531 , 49 S.W. 344, 1899 Ky. LEXIS 241 ( Ky. 1899 ).

Under this section and Const., § 27, it was for Court of Appeals to appoint replacement for its deceased clerk, and appointment thereof by governor was infringement by executive branch upon judicial branch. In re Appointment of Clerk of Court of Appeals, 297 S.W.2d 764, 1957 Ky. LEXIS 357 ( Ky. 1957 ).

17.—Legislative.

Act authorizing board of penitentiary commissioners to parole convicts did not interfere with courts’ constitutional functions by taking away their power to fix and enforce punishment, since act was simply exercise of state’s power of discipline which it may exercise through legislative department. Board of Prison Comm'rs v. De Moss, 157 Ky. 289 , 163 S.W. 183, 1914 Ky. LEXIS 277 ( Ky. 1914 ).

Rail carrier’s intrastate rates could properly be fixed by legislature. Louisville & N. R. Co. v. Greenbrier Distillery Co., 170 Ky. 775 , 187 S.W. 296, 1916 Ky. LEXIS 144 ( Ky. 1916 ).

It was not within province of court to make laws. Adams Express Co. v. Young, 184 Ky. 49 , 211 S.W. 407, 1919 Ky. LEXIS 21 ( Ky. 1919 ).

Under the exception contained in this section, Const., § 83 provides that the lieutenant governor, though an executive officer, shall have certain contingent and conditional duties of a legislative nature. Rouse v. Johnson, 234 Ky. 473 , 28 S.W.2d 745, 1930 Ky. LEXIS 220 ( Ky. 1930 ).

Statute providing that Court of Appeals shall adopt rules establishing practice and procedure for disciplining, suspending and disbarring attorneys is not an invalid exercise of legislative power by judiciary. In re Sparks, 267 Ky. 93 , 101 S.W.2d 194, 1936 Ky. LEXIS 757 ( Ky. 1936 ).

The right of disbarment of an attorney for proper cause is universally upheld as a legislative exercise of power inherent in courts. Louisville Bar Ass'n ex rel. Drane v. Yonts, 270 Ky. 503 , 109 S.W.2d 1186, 1937 Ky. LEXIS 96 ( Ky. 1937 ).

The governor’s veto power is inherently legislative, but comes within the “instances hereinafter expressly directed or permitted” in Const., § 28. Arnett v. Meredith, 275 Ky. 223 , 121 S.W.2d 36, 1938 Ky. LEXIS 404 ( Ky. 1938 ).

Authority of legislature under former law to pass on election of its members was sufficiently legislative in character not to violate this section. Jackson v. Randolph, 311 S.W.2d 541, 1958 Ky. LEXIS 199 ( Ky. 1958 ).

Courts may supply clerical or grammatical omissions in obscure phrases or language of a statute in order to give effect to intention of legislature, presumed or ascertainable from context, or to rescue act from an absurdity but where a statute on its face is intelligible, courts are not at liberty to supply words or insert something or to make additions or to cure an omission, however just or desirable it might be to supply an omission. Hatchett v. Glasgow, 340 S.W.2d 248, 1960 Ky. LEXIS 30 ( Ky. 1960 ). See Walton v. Carter, 337 S.W.2d 674, 1960 Ky. LEXIS 363 ( Ky. 1960 ).

As part of the executive department, the department of labor has no power to legislate and it was beyond the power of the industrial safety board in promulgating safety standards for the construction industry to change the settled law of Kentucky by making the owner of the premises liable to an employee of an independent contractor for injuries suffered while working on the premises, and a regulation making the owner of the premises equally liable with the contractor for enforcing safety standards exceeded the permissible bounds of administrative implementation. Courtney v. Island Creek Coal Co., 474 F.2d 468, 1973 U.S. App. LEXIS 11381 (6th Cir. Ky. 1973 ).

Administrative regulation of board of chiropractic examiners permitting chiropractors to utilize the services of persons authorized by law to perform analyses of patients by use of radiographs, blood analysis or other methods of examination is an attempt to grant authority which had previously been withheld and goes beyond the powers granted the board and the statutory definition of chiropractic, and, as such, is legislative in nature and in violation of the state Constitution. Kentucky Asso. of Chiropractors, Inc. v. Jefferson County Medical Soc., 549 S.W.2d 817, 1977 Ky. LEXIS 414 ( Ky. 1977 ).

Venue is purely a legislative matter and for the judiciary to attempt to rewrite the statute would be an unconstitutional usurpation of power and violative of this section and Const., §§ 27 and 29. Blankenship v. Watson, 672 S.W.2d 941, 1984 Ky. App. LEXIS 535 (Ky. Ct. App. 1984), overruled, Department of Education v. Blevins, 707 S.W.2d 782, 1986 Ky. LEXIS 257 ( Ky. 1986 ).

Retroactive application of an amendment to KRS 68.197 did not amount to a legislative encroachment upon judicial power in violation of the separation of powers of Ky. Const. §§ 27 and 28; a taxpayer’s right to a tax refund under an occupational license fee ordinance had not vested through a final judgment, and thus the General Assembly’s retroactive amendment of a law applicable to his pending case did not encroach upon judicial power in violation of the separation of powers provision. King v. Campbell County, 217 S.W.3d 862, 2006 Ky. App. LEXIS 331 (Ky. Ct. App. 2006).

Because the executive branch retained final say as to administrative regulations, legislation passed by the Kentucky General Assembly lawfully which amended the power of the Governor of the Commonwealth of Kentucky to respond to emergencies did not violate the Kentucky Constitution. Cameron v. Beshear, 628 S.W.3d 61, 2021 Ky. LEXIS 240 ( Ky. 2021 ).

15.—Judicial.

Circuit court properly granted an inmate summary judgment in his action for declaratory and injunctive relief and held that the statute at issue was unconstitutional because the statute failed to describe the conduct that would subject the inmate to a close or maximum classification subsequently subjecting him to post-incarceration supervision, he was denied counsel in a “critical stage” in the prosecution, a hearing was not held, the statute failed to provide reasonably clear guidelines for the Department of Corrections (DOC) to follow, and allowed the DOC, an executive agency, to encroach on powers expressly enumerated to the judicial branch by issuing a criminal sentence resulting in incarceration without judicial review. Ky. Dep't of Corr. v. Mitchem, 586 S.W.3d 256, 2019 Ky. App. LEXIS 168 (Ky. Ct. App. 2019).

Separation of powers doctrine did not bar a trial court’s jurisdiction to review the decision of the Kentucky Legislative Research Commission regarding a newspaper’s request for legislative records by allowing the judicial branch to encroach on the legislative branch because interpreting a statute detailing review of a legislative records request did not encroach on the legislative function but was a quintessentially judicial function. Harilson v. Shepherd, 585 S.W.3d 748, 2019 Ky. LEXIS 380 ( Ky. 2019 ).

When a district court ordered the Department for Community Based Services of the Kentucky Cabinet for Health and Family Services—which investigated and found no substantiation for a parent’s claims that the other abused their child—to open a case and further assess the family needs, it violated the separation of powers doctrine. The district court usurped the Cabinet’s authority to the benefit of the complaining parent who presented nothing in the case except two unsworn petitions in two different emergency protective order cases. T.C. v. M.E., 603 S.W.3d 663, 2020 Ky. App. LEXIS 54 (Ky. Ct. App. 2020).

18.Separate Powers.

The statutory adoption of a discretionary method for the admission of evidence is not a violation of the separation of powers doctrine as enunciated in this section and Const., § 109. Commonwealth v. Willis, 716 S.W.2d 224, 1986 Ky. LEXIS 281 ( Ky. 1986 ).

The limited provisions of subsections (3) and (4) of KRS 421.350 as they apply to child witnesses 12 years of age or younger who are the victims of sex abuse are constitutional, as they do not deny the right of confrontation by a defendant as protected by Const., § 11 and the Sixth Amendment to the United States Constitution nor do they violate the separation of powers doctrine as provided by this section and Const., § 109. Commonwealth v. Willis, 716 S.W.2d 224, 1986 Ky. LEXIS 281 ( Ky. 1986 ).

Because KRS 532.055 is a legislative attempt to invade the rule-making prerogative of the Supreme Court by legislatively prescribing rules of practice and procedure, it violates the separation of powers doctrine enunciated in this section. Commonwealth v. Reneer, 734 S.W.2d 794, 1987 Ky. LEXIS 232 ( Ky. 1987 ).

The procedure for advice and consent of subsection (3) of KRS 342.230 is constitutional; there is no violation of the separation of powers doctrine because the statute does not permit the Senate to make appointments of administrative law judges but only to accept or reject the decision of the Workers' Compensation Board. Kraus v. Kentucky State Senate, 872 S.W.2d 433, 1993 Ky. LEXIS 169 ( Ky. 1993 ), limited, Fox v. Grayson, 317 S.W.3d 1, 2010 Ky. LEXIS 88 ( Ky. 2010 ).

KRS 64.345 , which mandates that a judicial officer approve the sheriff’s budget in certain counties, was a clear cut violation of this section and Const., § 27 because it mandates that a judicial officer perform what is clearly a function of the executive branch of government and so violates the separation of powers. Vaughn v. Knopf, 895 S.W.2d 566, 1995 Ky. LEXIS 49 ( Ky. 1995 ).

KRS 411.188 , which specifies that collateral source payments shall be an admissible fact in any civil trial, was unconstitutional as it violated this section and Const., §§ 27 and 116, intruded on the responsibility exclusively assigned to the judicial branch of government, and served, in this case, to confuse the jury regarding the factual issue rather than assist them in deciding the damages incurred by the plaintiff. O'Bryan v. Hedgespeth, 892 S.W.2d 571, 1995 Ky. LEXIS 10 ( Ky. 1995 ).

Appellate court properly denied the writ of prohibition since the order could be appealed and did not violate the constitutional separation of powers provisions. Jefferson County Fiscal Court v. Shake, 82 S.W.3d 917, 2002 Ky. LEXIS 152 ( Ky. 2002 ).

KRS 532.043 did not violate the separation of powers doctrine by infringing upon the judiciary’s duty to administer justice and by removing all discretion from the trial court by imposing a three-year mandatory conditional discharge, as the Legislature, and not the judiciary, designated the elements of criminal conduct and the corresponding penalties; further, the Legislature did not unconstitutionally usurp the court’s functions by eliminating the exercise of discretion by the trial court in fixing a sentence, as it had the plenary power to set criminal penalties. Wilfong v. Commonwealth, 175 S.W.3d 84, 2004 Ky. App. LEXIS 353 (Ky. Ct. App. 2004).

Constitutional and policy justifications for the sovereign immunity doctrine are rooted in notions of separation of power, the principle being that courts should not be in the position to impose civil liability on government entities engaged in official functions, as this would disrupt the business of the government governing. Caneyville Volunteer Fire Dep't v. Green's Motorcycle Salvage, Inc., 286 S.W.3d 790, 2009 Ky. LEXIS 158 ( Ky. 2009 ).

Because KRS 532.043(5) violated the separation of powers doctrine of Ky. Const. §§ 27 and 28 by impermissibly conferring an executive power to revoke a post-incarceration or post-parole conditional release upon the judiciary, the revocation of appellants’ post-incarceration conditional discharge was improper. Jones v. Commonwealth, 319 S.W.3d 295, 2010 Ky. LEXIS 99 ( Ky. 2010 ), modified, 2010 Ky. LEXIS 250 (Ky. Sept. 23, 2010).

Because the Kentucky Labor Cabinet’s (Cabinet) actions were not judicial in nature, the prevailing wage law did not improperly delegate judicial authority; there were statutory safeguards against an abuse of discretion by the Cabinet and there was sufficient guidance to prevent the Cabinet from exercising unfettered discretion. TECO Mech. Contr., Inc. v. Commonwealth, 366 S.W.3d 386, 2012 Ky. LEXIS 23 ( Ky. 2012 ).

Prospective-only application of Ky. Rev. Stat. Ann. § 173.790 did not violate the separation of powers doctrine as no legal authority supported the theory that a prospective-only application of the holding of the opinion harmonizing statutes relating to public library ad valorem taxes violated the doctrine of separation of powers by nullifying the effect of § 173.790 for the period preceding the opinion. Coleman v. Campbell Cty. Library Bd. of Trs., 547 S.W.3d 526, 2018 Ky. App. LEXIS 17 (Ky. Ct. App.), cert. denied, 139 S. Ct. 482, 202 L. Ed. 2d 388, 2018 U.S. LEXIS 6681 (U.S. 2018).

19.— City Government.

It has not been the policy of the state to separate legislative and executive functions in the government of cities. Bryan v. Voss, 143 Ky. 422 , 136 S.W. 884, 1911 Ky. LEXIS 429 ( Ky. 1911 ).

20.— County Government.

The provision of KRS 70.150 authorizing the sheriff to administer oaths does not violate this section. Milliken v. Harrod, 275 Ky. 597 , 122 S.W.2d 148, 1938 Ky. LEXIS 471 ( Ky. 1938 ).

21.—State Government.

Offices of banking commissioner and state senator were incompatible. Meagher v. Howell, 171 Ky. 238 , 188 S.W. 373, 1916 Ky. LEXIS 341 ( Ky. 1916 ).

The clerk of the Court of Appeals is not disqualified from holding an office in the executive department since he is not a judicial officer. Burton v. Mayer, 274 Ky. 245 , 118 S.W.2d 161, 1938 Ky. LEXIS 233 ( Ky. 1938 ).

The Cabinet for Natural Resources and Environmental Protection has the authority to enforce reclamation and there is no violation of separation of powers thereby. Payne v. Commonwealth, Natural Resources & Environmental Protection Cabinet, 746 S.W.2d 90, 1988 Ky. App. LEXIS 29 (Ky. Ct. App. 1988).

Ky. Rev. Stat. Ann. ch. 39A with its provisions regarding the Governor’s powers in the event of an emergency was not an unconstitutional delegation of legislative authority in violation of the separation of powers provisions of this section. Beshear v. Acree, 615 S.W.3d 780, 2020 Ky. LEXIS 405 ( Ky. 2020 ).

22.Arbitration.

Home buyers did not demonstrate that KRS 417.045 et seq., regarding arbitration, violated the separation of powers doctrine in Ky. Const. §§ 27 and 28 because Ky. Const. § 250 specifically vested the legislature with the authority to create an arbitration system in Kentucky. Dutschke v. Jim Russell Realtors, Inc., 281 S.W.3d 817, 2008 Ky. App. LEXIS 248 (Ky. Ct. App. 2008).

Cited in:

Louisville & N. R. Co. v. Garrett, 231 U.S. 298, 34 S. Ct. 48, 58 L. Ed. 229, 1913 U.S. LEXIS 2567 (U.S. 1913); Fleming v. Trowsdale, 85 F. 189, 1898 U.S. App. LEXIS 2147 (6th Cir. Ky. 1898 ); Tucker v. Hubbert, 196 F. 849, 1912 U.S. App. LEXIS 1552 (6th Cir. Ky. 1912 ); Lynch v. Johnson, 291 F. Supp. 906, 1968 U.S. Dist. LEXIS 9306 (E.D. Ky. 1968 ); Purnell v. Mann, 105 Ky. 87 , 48 S.W. 407, 1898 Ky. LEXIS 244 ( Ky. 1898 ); Taylor v. Beckham, 108 Ky. 278 , 56 S.W. 177, 21 Ky. L. Rptr. 1735 , 1900 Ky. LEXIS 39 ( Ky. 1900 ); Greene v. Caldwell, 170 Ky. 571 , 186 S.W. 648, 1916 Ky. LEXIS 1 26 ( Ky. 1916 ); Dunlap v. Littell, 200 Ky. 595 , 255 S.W. 280, 1923 Ky. LEXIS 1 62 ( Ky. 1923 ); Estes v. State Highway Com., 235 Ky. 86 , 29 S.W.2d 583, 1930 Ky. LEXIS 292 ( Ky. 1930 ); Royster v. Brock, 258 Ky. 146 , 79 S.W.2d 707, 1935 Ky. LEXIS 134 ( Ky. 1935 ); Rentz v. Campbell County, 260 Ky. 242 , 84 S.W.2d 44, 1935 Ky. LEXIS 440 ( Ky. 1935 ); County Board of Education v. Goodpaster, 260 Ky. 198 , 84 S.W.2d 55, 1935 Ky. LEXIS 444 (Ky. 1935); In re Constitutionality of House Bill No. 222, 262 Ky. 437 , 90 S.W.2d 692, 1936 Ky. LEXIS 47 ( Ky. 1936 ); Grieb v. National Bond & Inv. Co., 264 Ky. 289 , 94 S.W.2d 612, 1936 Ky. LEXIS 300 ( Ky. 1936 ); Commonwealth ex rel. Ward v. Harrington, 266 Ky. 41 , 98 S.W.2d 53, 1936 Ky. LEXIS 604 (Ky. 1936); Kerr v. Louisville, 271 Ky. 335 , 111 S.W.2d 1046, 1937 Ky. LEXIS 241 ( Ky. 1937 ); Bard v. Board of Drainage Comm'rs, 274 Ky. 491 , 118 S.W.2d 1013, 1938 Ky. LEXIS 292 ( Ky. 1938 ); Commonwealth v. Kroger, 276 Ky. 20 , 122 S.W.2d 1006, 1938 Ky. LEXIS 527 ( Ky. 1938 ); Morgan County v. Governor of Kentucky, 288 Ky. 532 , 156 S.W.2d 498, 1941 Ky. LEXIS 133 ( Ky. 1941 ); Elliott v. Commonwealth, 290 Ky. 502 , 161 S.W.2d 633, 1941 Ky. LEXIS 7 ( Ky. 1941 ); Carolene Products Co. v. Hanrahan, 291 Ky. 41 7 , 164 S.W.2d 597, 1941 Ky. LEXIS 1 (Ky. 1941); Dicken v. Kentucky State Board of Education, 304 Ky. 343 , 199 S.W.2d 977, 1947 Ky. LEXIS 579 ( Ky. 1947 ); Dieruf v. Louisville & Jefferson County Bd. of Health, 304 Ky. 20 7 , 200 S.W.2d 300, 1947 Ky. LEXIS 613 ( Ky. 1947 ); Fraysure v. Kentucky Unemployment Compensation Com., 305 Ky. 164 , 202 S.W.2d 377, 1947 Ky. LEXIS 7 09 (Ky. 1947); Williams v. Board for Louisville & Jefferson County Children's Home, 305 Ky. 440 , 204 S.W.2d 490, 1947 Ky. LEXIS 8 25 (Ky. 1947); Robertson v. Schein, 305 Ky. 528 , 204 S.W.2d 954, 1947 Ky. LEXIS 1051 (Ky. 1947); Borders v. Cain, 252 S.W.2d 903, 1952 Ky. LEXIS 1042 ( Ky. 1952 ); Perkins v. Frankfort, 276 S.W.2d 449, 1955 Ky. LEXIS 422 ( Ky. 1955 ); Dalton v. State Property & Bldgs. Com., 304 S.W.2d 342, 1957 Ky. LEXIS 276 ( Ky. 1957 ); Frankfort v. Triplett, 365 S.W.2d 328, 1963 Ky. LEXIS 219 ( Ky. 1963 ); Lovern v. Brown, 390 S.W.2d 448, 1965 Ky. LEXIS 350 ( Ky. 1965 ); Fiscal Court of Jefferson County v. Anchorage, 393 S.W.2d 608, 1965 Ky. LEXIS 243 ( Ky. 1965 ); Ex parte Farley, 570 S.W.2d 617, 1978 Ky. LEXIS 39 0 ( Ky. 1978 ); Ex parte Auditor of Public Accounts, 609 S.W.2d 682, 1980 Ky. LEXIS 274 ( Ky. 198 0 ); Guenthner v. Brown, 671 S.W.2d 260, 1984 Ky. App. LEXIS 512 (Ky. Ct. App. 1984); Louisville v. Miller, 697 S.W.2d 164, 1985 Ky. App. LEXIS 646 (Ky. Ct. App. 1985); Surrogate Parenting Associates, Inc. v. Commonwealth, 704 S.W.2d 209, 1986 Ky. LEXIS 237 ( Ky. 1986 ); McKee v. Cutter Laboratories, Inc., 866 F.2d 219, 1989 U.S. App. LEXIS 722 (6th Cir. Ky. 1989 ); Mash v. Commonwealth, 769 S.W.2d 42, 1989 Ky. LEXIS 34 ( Ky. 1989 ); Rose v. Council for Better Educ., 790 S.W.2d 186, 1989 Ky. LEXIS 55 (Ky. 1989); Philpot v. Patton, 837 S.W.2d 491, 1992 Ky. LEXIS 142 ( Ky. 1992 ); Combs v. Huff, 858 S.W.2d 160, 1993 Ky. LEXIS 8 6 ( Ky. 1993 ); Horn by Horn v. Commonwealth, 916 S.W.2d 173, 1995 Ky. LEXIS 145 ( Ky. 1995 ); St. Ledger v. Revenue Cabinet, 942 S.W.2d 893, 1997 Ky. LEXIS 17 ( Ky. 1997 ); Whittaker v. Wright, 969 S.W.2d 209, 1998 Ky. LEXIS 80 ( Ky. 1998 ); Dannheiser v. City of Henderson, 4 S.W.3d 542, 1999 Ky. LEXIS 114 ( Ky. 1999 ); Manns v. Commonwealth, 80 S.W.3d 439, 2002 Ky. LEXIS 114 ( Ky. 2002 ); Hoskins v. Maricle, 150 S.W.3d 1, 2004 Ky. LEXIS 196 ( Ky. 2004 ); Emberton v. GMRI, Inc., 299 S.W.3d 565, 2009 Ky. LEXIS 250 ( Ky. 2009 ); Delahanty v. Commonwealth ex rel. Maze, 295 S.W.3d 136, 2009 Ky. App. LEXIS 124 (Ky. Ct. App. 2009); Beshear v. Haydon Bridge Co., 304 S.W.3d 682, 2010 Ky. LEXIS 8 ( Ky. 2010 ); McClanahan v. Commonwealth, 308 S.W.3d 694, 2010 Ky. LEXIS 98 ( Ky. 2010 ); Commonwealth v. Chauvin, 316 S.W.3d 279, 2010 Ky. LEXIS 146 (Ky. 2010); Ballard v. Commonwealth, 320 S.W.3d 69, 2010 Ky. LEXIS 206 (Ky. 2010); Grider v. Commonwealth, 404 S.W.3d 859, 2013 Ky. LEXIS 229 ( Ky. 2013 ); Rider v. Commonwealth, 460 S.W.3d 909, 2014 Ky. App. LEXIS 196 (Ky. Ct. App. 2014); Kuhnhein v. N. Ky. Area Planning Comm'n, 495 S.W.3d 152, 2015 Ky. App. LEXIS 136 (Ky. Ct. App. 2015); Greene v. Boyd, 603 S.W.3d 231, 2020 Ky. LEXIS 224 ( Ky. 2020 ).

Opinions of Attorney General.

It is a violation of KRS 61.096 (now KRS 45A.340 ) and Const., §§ 27 and 28 for a person to serve as a member of the General Assembly and the Kentucky Real Estate Board at the same time. OAG 68-43 .

An incompatibility exists between the office of state representative and the position of county district library trustee. OAG 69-163 .

Under this section the legislature would have no constitutional authority to reserve to itself the power to appoint members of the various state boards and commissions whose duties pertain to the executive branch of the government. OAG 70-64 .

Since the position of “Special Master,” an appointive position made by the federal district court whose duties are to hear the evidence in a particular case and file a report with the circuit judge who then renders a decision, is neither a federal office nor a judicial office, there is no constitutional objection, either under this section or under Const., § 237, to the position being held by a member of the General Assembly. OAG 70-163 .

The offices of assistant Commonwealth Attorney and state representative are incompatible. OAG 71-24 .

In view of this section and sections 27 and 44 of the Constitution, a member of the General Assembly during whose term the per diem compensation of the members of the board of trustees of the Kentucky retirement system was increased could not, while serving in the General Assembly or for one (1) year thereafter, be appointed to that board under KRS 61.645 . OAG 72-458 .

An employee of the Legislative Research Commission is not prevented by the Constitution from serving as a trustee for the Kentucky retirement system because he is not an employee of the legislative branch of the government under this section and sections 27 and 249 of the Constitution. OAG 73-817 .

An attorney-client agreement between a senator and a city, acting through its mayor, is not in violation of KRS 61.080 or Const., §§ 27, 28 and 165, since the senator would not be an officer or employee of the city but merely an independent contractor in an attorney-client relationship. OAG 74-315 .

Sections 12 and 13 of part six of the 1974-76 appropriations act, appropriating the excess general fund revenue above a stated amount to the general contingency fund which may be allocated upon the orders of the governor to state agencies for enumerated purposes, are within the confines of Const., §§ 27, 28, 29 and 230. OAG 74-600 .

A legislative attempt to give the union or the majority of miners at a given mine the authority to appoint or elect mine safety committee members who are required to be paid by the mine employer would clearly be prohibited as an unlawful delegation of legislative authority. OAG 76-337 .

The Legislature cannot, under the Constitution, confer the executive power of parole upon judges of the Court of Justice. OAG 78-150 .

The application of the contempt power provisions of KRS 67.040 (2), relating to the county judge/executive or pro tem or justice presiding in his place, would be unconstitutional since the county judge/executive, his pro tem, and justice of the peace are not judicial officers and the fiscal court is not a judicial body. OAG 78-242 .

Since when a person has been convicted of a crime and has begun to serve his sentence the function and authority of the trial court is finished and what then happens to the prisoner is in the hands of the executive branch of government, KRS 439.177 in vesting the parole function in the sentencing district (now the sentencing court) is unconstitutional. OAG 78-281 .

Although neither KRS 61.080 nor Const., § 165 would prevent a state representative from also serving on a local city-county human rights commission, the separation of powers doctrine under Const., § 27 and this section prevents a person serving in one branch of government from exercising powers in another. OAG 79-483 .

The vesting of an executive or administrative function in the county judge/executive is in harmony with the Kentucky Constitution, which prohibits persons of one branch of government from exercising powers of another branch. OAG 80-56 .

In order to promote greater economy, efficiency and improved administration, the governor may, by an executive order clearly designating the order as being one relating to reorganization, merge the energy regulatory commission and the utility regulatory commission into one commission. OAG 80-567 .

A statute which would control the appointments of certain members to a county drafting commission studying methods to make local government more efficient, by requiring the appointing authority to appoint such members solely from lists submitted by each representative and senator of the districts involved, which would in effect appear to give the legislature or a representative portion thereof, the indirect power of appointment amounting to the exercise of an administrative power outside of its own jurisdiction, would be in violation of the separation of powers doctrine expressed in this section and Const., § 27. OAG 82-37 .

The employment of a staff by a county board of election pursuant to subsection (5) of KRS 117.035 must be interpreted as discretionary with the board; an interpretation that the subsection is mandatory would violate the separate powers doctrine contained in this section and Const., § 27 because the legislature would have statutorily predetermined the necessity for a staff, which determination is an administrative function which is normally delegated to the agency in question. OAG 82-102 .

Each branch of government may exercise only that power which is properly vested in it by the Constitution and, moreover, the legislative power is further limited to being exercised only when the General Assembly is formally in session; there is and can be no room for role reversal or for the quasi-exercise by one branch of state government of the powers limited to another of the three (3) branches of state government. OAG 82-154 .

The provision of Acts 1982, ch. 447, giving the Legislative Research Commission authority to approve or disapprove a temporary reorganization by the Governor (KRS 12.028 ) is unconstitutional since the General Assembly’s granting of reorganization authority to the Governor may not be subject to the approval of the Legislative Research Commission; the Legislative Research Commission’s exercise of such veto/approval authority would be tantamount to the General Assembly’s acting when not in session, which is prohibited by the separation of powers doctrine, this section, Const., § 27 and also § 36; and, even if an attempt were made to establish the Legislative Research Commission as an executive agency, the General Assembly is prohibited by Const., § 69 from granting reorganization authority to such agency or any other created state executive agency if that authority is superior to that of the Governor. OAG 82-154 .

Under the Kentucky constitutional separation of powers provisions, the General Assembly cannot act outside the confines of formal enactment procedures, and it is legally unable to create an entity to approve, on its behalf and in between General Assembly sessions, an act done by the Executive Branch of state government. OAG 82-154 .

While the legislature cannot delegate its legislative function to another branch, the legislature may declare the policy of the law and fix a principle which is to control, and an administrative body may be invested with the power to ascertain the facts and conditions to which the policy and principle apply. OAG 82-195 .

There is nothing in KRS 64.345(5) to suggest that the Circuit Court has the authority to legislate on the “leave with pay” concept. If the court did have such legislative power, it would be unconstitutional under this section. OAG 82-221 .

The activities of the Office of Education Accountability do not violate the separation of powers sections of the Kentucky Constitution set forth in § 27 and this section. OAG 91-222 .

This section and Const., § 27 would preclude a member of the General Assembly from serving at the same time as a member of the Board of Directors of an Area Development District. OAG 93-70 .

This section and Const., § 27 would prohibit a member of the General Assembly from serving at the same time as a member of a Tourist and Convention Commission. OAG 93-70 .

This section and Const., § 27 preclude a member of the General Assembly from serving at the same time as a member of the Board of Commissioners of a Community Improvement District. OAG 93-70 .

This section and Const., § 27 prohibit a member of the General Assembly from serving concurrently as a member of the governing body of a joint city-county housing authority. OAG 93-70 .

This section and § 27 of the Kentucky Constitution would prohibit a member of the General Assembly from serving on a board which involves the exercise of power or decision making outside of the legislative branch of government. OAG 93-70 .

Portion of KRS 146.560 requiring the appointment of two (2) members of the General Assembly to the Kentucky Heritage Land Conservation Fund Board, whose duties pertain to the executive branch of government, is unconstitutional. OAG 93-70 .

Since this section prohibits a person from exercising power in more than one (1) of the three (3) governmental departments, it would be a violation of this section for a judge or justice to sit on the board of regents of a state university. OAG 94-5 .

The Kentucky Supreme Court cannot appoint members of the Public Advocacy Commission, as provided in subdivision (1) (d) of KRS 31.015 . OAG 94-5 .

Since retired justices or judges of the Court of Justice who serve as special judges, pursuant KRS 26A.020 are temporary agents rather than officers, they may serve on executive boards and agencies, provided of course that they comply with the Code of Judicial Conduct. OAG 94-5 .

Since the Child Support Enforcement Commission is an advisory body, both legislators and judges, including the director of the Administrative Office of the Courts, may serve on such commission. OAG 94-5 .

Where a legislator is also the executive director of the Waterfront Development Corporation, a government created corporation, and is not in a policy making position but follows the policies and directives established and enacted by the corporate board, and functions in the role of an employee of the corporation and not as a corporate officer or director, the legislator is not in violation of the separation of powers doctrine. OAG 95-24 .

While the Governor may issue executive orders pursuant to the powers granted in Const., §§ 76 to 81 or specifically delegated by the General Assembly, no known grant of power to the Governor authorizes him to declare public policy in contravention of policy established by the General Assembly; therefore, since KRS 64.527 makes a plain expression of public policy declaring that county clerks are subject to salary maximum applicable to “all other public officers” rather than the salary maximum applicable to “officers whose jurisdiction or duties are coextensive with the Commonwealth”, executive order that declared that county clerks are officials whose duties are coextensive with the Commonwealth for the purposes of constitutional salary computations was of no effect. OAG 96-32 .

The Attorney General’s review of the Legislative Research Commission’s denial of a request to inspect telephone records for calls originating from specific numbers in the Senate offices does not violate the separation of powers; the General Assembly, having crafted the Open Records Act to include its own records, is bound by the terms of the Act, including the mechanisms for administrative review by the Attorney General which it enacted into law. OAG 98-ORD-92.

Section 4 of House Bill 389, which amended KRS 21.450 , was an unconstitutional delegation of legislative power to the Judicial Form Retirement System, as it was impossible to determine from the plain language of the amendment or its legislative history the meaning of the words in the section. OAG 00-5 .

Research References and Practice Aids

Kentucky Bench & Bar.

Preston, Video Evidence in Child Sexual Abuse Cases, Vol. 52, No. 2, Spring 1988 Ky. Bench & B. 11.

Toner and Call, Three Cases That Shaped Kentucky’s History, 56 Ky. Bench & B. 11.

Lear and Fleenor, Board and Commission Appointments: Executive Power — With Limits, Vol. 72, No. 4, July 2008, Ky. Bench & Bar 23.

Kentucky Law Journal.

Ziegler, A Primer on Administrative Rules and Rule-Making in Kentucky, 67 Ky. L.J. 103 (1978-79).

Kentucky Law Survey, Fritz, Criminal Procedure, 67 Ky. L.J. 599 (1978-1979).

Kentucky Law Survey, Rogers and Sims, Administrative Law, 69 Ky. L.J. 489 (1980-81).

Snyder and Irland, The Separation of Governmental Powers Under the Constitution of Kentucky: A Legal and Historical Analysis of L.R.C. v. Brown, 73 Ky. L.J. 165 (1984-85).

Reynolds, Education Finance Reform Litigation and Separation of Powers: Kentucky Makes Its Contribution, 80 Ky. L.J. 309 (1990-91).

Jones, Mansion or Fortress? The Legal Merits of Temporary Immunity from Criminal Prosecution for Kentucky’s Chief Executive, 96 Ky. L.J. 669 (2007).

Northern Kentucky Law Review.

Ziegler, Legitimizing the Administrative State: The Judicial Development of the Nondelegation Doctrine in Kentucky, 4 N. Ky. L. Rev. 87 (1977).

Comments, Separation of Church and State: Education and Religion in Kentucky, 6 N. Ky. L. Rev. 125 (1979).

Armstrong & Gillig, Responding to Child Sexual Abuse and Exploitation: The Kentucky Approach, 16 N. Ky. L. Rev. 17 (1988).

Wintersheimer, State Constitutional Law, 20 N. Ky. L. Rev. 591 (1993).

Wintersheimer, State Constitutional Law Survey, 21 N. Ky. L. Rev. 257 (1994).

Notes, Restoration of the Collateral Source Rule in Kentucky: A Review of O’Bryan v. Hedgespeth, 23 N. Ky. L. Rev. 357 (1996).

Treatises

Petrilli, Kentucky Family Law, Termination of Parental Rights and Adoption, § 29.2.

THE LEGISLATIVE DEPARTMENT

§ 29. Legislative power vested in General Assembly.

The legislative power shall be vested in a House of Representatives and a Senate, which, together, shall be styled the “General Assembly of the Commonwealth of Kentucky.”

NOTES TO DECISIONS

1.Administrative Powers.

Delegation of administrative powers to highway commission was not violative of this section. Estes v. State Highway Com., 235 Ky. 86 , 29 S.W.2d 583, 1930 Ky. LEXIS 292 ( Ky. 1930 ).

The provisions of the distilled spirits and wine fair trade law that permitted the state alcoholic control board to ascertain facts and administer the law were constitutional. Reeves v. Simons, 289 Ky. 793 , 160 S.W.2d 149, 1942 Ky. LEXIS 637 ( Ky. 1942 ).

2.County Powers.

County which acted in accordance with statutory provisions thereby accepted legislative benefits and did not exercise legislative authority. Borders v. Cain, 252 S.W.2d 903, 1952 Ky. LEXIS 1042 ( Ky. 1952 ).

The establishment of urban county government in Fayette County pursuant to KRS 67A.010 to 67A.040 (KRS 67A.040 now repealed), which led to the creation of new offices, different terms and methods of elections and many structural changes was not an unconstitutional delegation of legislative authority because these sections established the powers that an urban county government can possess and delegated only the authority to provide the structure of government. Holsclaw v. Stephens, 507 S.W.2d 462, 1973 Ky. LEXIS 3 ( Ky. 1973 ).

Insofar as a county charter purported to modify the criteria of KRS 100.211(1), it represented an attempted usurpation of the legislative power of the General Assembly, offending this section. Hacker v. Baesler, 812 S.W.2d 706, 1991 Ky. LEXIS 45 ( Ky. 1991 ), modified, 1991 Ky. LEXIS 130 (Ky. Aug. 29, 1991).

3.Legislative Powers.

The Legislature, by virtue of this section, is vested with all power Legislative and in addition thereto may do everything that by the Constitution it is expressly directed or permitted to do. Purnell v. Mann, 105 Ky. 87 , 48 S.W. 407, 1898 Ky. LEXIS 244 ( Ky. 1 898 ), overruled, Pratt v. Breckinridge, 112 Ky. 1 , 23 Ky. L. Rptr. 1356 , 65 S.W. 136, 1901 Ky. LEXIS 286 ( Ky. 1901 ), overruled in part, Pratt v. Breckinridge, 112 Ky. 1, 23 Ky. L. Rptr. 1356 , 65 S.W. 136, 1901 Ky. LEXIS 286 ( Ky. 1901 ). See Pratt v. Breckinridge, 112 Ky. 1, 65 S.W. 136, 23 Ky. L. Rptr. 1356, 1901 Ky. LEXIS 286 (Ky. 1901).

The phrase “legislative power,” as used in this section, means all powers that appertain to or are usually exercised by a legislative body. Booth's Ex'r v. Commonwealth, 130 Ky. 88 , 113 S.W. 61, 1908 Ky. LEXIS 247 ( Ky. 1908 ).

Where KRS 67C.135(3) contained sufficient criteria for drawing new legislative districts and the fiscal court had no power or discretion as to the creation of the initial districts, the statute did not violate the prohibition against arbitrary power or the doctrine of separation of powers in Ky. Const. §§ 2, 27, 28, 29 when it required fiscal court approval of the plan without permitting it to make further refinements after-the-fact. Owens v. Jefferson County Fiscal Court, 128 S.W.3d 834, 2004 Ky. App. LEXIS 37 (Ky. Ct. App. 2004).

4.— Appeals.

Denial of appeals was within power of Legislature. Yount v. Frankfort, 255 S.W.2d 632, 1953 Ky. LEXIS 676 ( Ky. 1953 ).

5.— City Boundaries.

Legislative power extended to control over boundaries. Yount v. Frankfort, 255 S.W.2d 632, 1953 Ky. LEXIS 676 ( Ky. 1953 ).

6.— Debts.

General assembly had no authority to decrease constitutionally authorized debt. Rivers v. Owensboro, 287 S.W.2d 151, 1956 Ky. LEXIS 443 ( Ky. 1956 ).

Propriety of debt imposition was prerogative of Legislature, subject to constitutional limitations. Dalton v. State Property & Bldgs. Com., 304 S.W.2d 342, 1957 Ky. LEXIS 276 ( Ky. 1957 ).

7.— Delegation.

Legislative authorization for war memorial construction commission to create and enforce its own rules and regulations was not violative of this section. Hunter v. Louisville, 204 Ky. 562 , 265 S.W. 277, 1924 Ky. LEXIS 552 ( Ky. 1924 ).

Legislative provision for appointment of highway commission by board which included Lieutenant Governor was not unconstitutional conferring of executive authority on him, since his office was essentially executive as opposed to legislative. Rouse v. Johnson, 234 Ky. 473 , 28 S.W.2d 745, 1930 Ky. LEXIS 220 ( Ky. 1930 ).

Where Legislature could properly prohibit certain acts entirely, it may provide that the acts cannot be done without the consent of named individuals or classes, and the fact that the acts may be done in one case and not in another, depending upon the whim of the individual or class having the consent power, does not render the law void as an unlawful delegation of legislative power. Whitaker v. Green River Coal Co., 276 Ky. 43 , 122 S.W.2d 1012, 1938 Ky. LEXIS 529 ( Ky. 1938 ).

Although the Legislature may delegate details of administration and execution, it must lay down policies and establish standards. Bloemer v. Turner, 281 Ky. 832 , 137 S.W.2d 387, 1939 Ky. LEXIS 43 ( Ky. 1939 ).

Since the Kentucky Constitution is more restrictive than the federal Constitution with respect to delegation of legislative power, federal decisions do not have the usual persuasive force of legal precedent in that respect. Bloemer v. Turner, 281 Ky. 832 , 137 S.W.2d 387, 1939 Ky. LEXIS 43 ( Ky. 1939 ).

The Legislature cannot delegate its power to make a law, but it can make a law to delegate a power to determine some fact or state of things upon which the law makes its action depend. Bloemer v. Turner, 281 Ky. 832 , 137 S.W.2d 387, 1939 Ky. LEXIS 43 ( Ky. 1939 ).

The Legislature cannot delegate to an individual or board the power to create a crime. Bloemer v. Turner, 281 Ky. 832 , 137 S.W.2d 387, 1939 Ky. LEXIS 43 ( Ky. 1939 ).

The Legislature may not make the effectiveness of a specific act dependent upon the will of another, nor delegate to another the power to enact a law, whether in form or effect. Bloemer v. Turner, 281 Ky. 832 , 137 S.W.2d 387, 1939 Ky. LEXIS 43 ( Ky. 1939 ).

An act that authorized state departments to employ attorneys when the departments “deemed it necessary” was not an unconstitutional delegation of legislative power, nor did it confer absolute and arbitrary power, nor was it an act whose taking effect depended upon the approval of any other authority than the General Assembly. Johnson v. Commonwealth, 291 Ky. 829 , 165 S.W.2d 820, 1942 Ky. LEXIS 329 ( Ky. 1942 ).

Legislative delegation to Governor of authority to determine existence of emergency and to thereupon expend emergency funds was not violative of this section for Const., § 27 as unconstitutional delegation of legislative authority. Commonwealth ex rel. Meredith v. Johnson, 292 Ky. 288 , 166 S.W.2d 409, 1942 Ky. LEXIS 73 ( Ky. 1942 ).

KRS 231.100 , giving county judges the power to fix hours of operation of place of entertainment, is not an unlawful delegation of legislative power. Ratliff v. Hill, 293 Ky. 36 , 168 S.W.2d 336, 1943 Ky. LEXIS 556 ( Ky. 1943 ).

Power to appoint a receiver on behalf of bondholders in case of default of bonds by sewer district provided for in KRS 76.160 did not constitute an unconstitutional delegation of legislative power to the courts since courts have inherent power to appoint receivers in all cases of mismanagement, but in any event taxpayer could not question validity of such provision in advance of an attempt by a court to exercise the power. Veail v. Louisville & Jefferson County Metropolitan Sewer Dist., 303 Ky. 248 , 197 S.W.2d 413, 1946 Ky. LEXIS 830 ( Ky. 1946 ).

KRS 337.510 and 337.520 , fixing minimum wages for public laborers, are not an unconstitutional delegation of legislative power to private persons, associations, or corporations in contravention of Const., §§ 27 to 29. Baughn v. Gorrell & Riley, 311 Ky. 537 , 224 S.W.2d 436, 1949 Ky. LEXIS 1155 ( Ky. 1949 ).

KRS 56.440 to 56.550 , creating state property and buildings commission with authority to acquire and sell realty for state, was not unconstitutional delegation of legislative authority. Preston v. Clements, 313 Ky. 479 , 232 S.W.2d 85, 1950 Ky. LEXIS 902 ( Ky. 1950 ).

KRS 177.480 does not improperly delegate legislative power to the commissioner of highways because it gives him the absolute power to grant or refuse licenses or privileges for the operation of garages, filling stations and motels upon the right of way along the toll roads, since in regulating the use and occupancy of state property a state officer is not exercising a legislative function, but an administrative one. Guthrie v. Curlin, 263 S.W.2d 240, 1953 Ky. LEXIS 1238 (Ky. Ct. App. 1953).

Legislative power was to remain in General Assembly, and delegation of it elsewhere was abdication of such power. Dawson v. Hamilton, 314 S.W.2d 532, 1958 Ky. LEXIS 300 ( Ky. 1958 ).

The authorization to the school board to adopt an occupational tax under KRS 160.603 does not violate the Kentucky Constitution. Turrell v. Board of Education, 441 S.W.2d 767, 1969 Ky. LEXIS 327 ( Ky. 1969 ).

The establishment of urban county government in Fayette County pursuant to KRS 67A.010 to 67A.040 (KRS 67A.040 now repealed), which led to the creation of new offices, different terms and methods of elections and many structural changes was not an unconstitutional delegation of legislative authority because these sections established the powers that an urban county government can possess and delegated only the authority to provide the structure of government. Holsclaw v. Stephens, 507 S.W.2d 462, 1973 Ky. LEXIS 3 ( Ky. 1973 ).

The General Assembly’s delegation of legislative power, to be lawful, must not include the exercise of discretion as to what the law shall be; in addition, such delegation must have standards controlling the exercise of administrative discretion, and the General Assembly must have the right to withdraw the delegation. Legislative Research Com. by Prather v. Brown, 664 S.W.2d 907, 1984 Ky. LEXIS 300 ( Ky. 1984 ).

The General Assembly cannot delegate its power to make a law; it can, however, establish standards for administration and delegate authority to implement a law. Legislative Research Com. by Prather v. Brown, 664 S.W.2d 907, 1984 Ky. LEXIS 300 ( Ky. 1984 ).

The General Assembly, which constitutionally holds legislative power, cannot delegate that power to the Legislative Research Commission (LRC), and it follows therefore, that while in adjournment, the General Assembly cannot legislate through its agent, the LRC. Legislative Research Com. by Prather v. Brown, 664 S.W.2d 907, 1984 Ky. LEXIS 300 ( Ky. 1984 ).

Under Kentucky Supreme Court precedents, H.B. 389(4) 2000 Reg. Sess. ( Ky. 2000 ), which amended a provision of the Judicial Retirement Act, KRS 21.450(3), was clearly an unconstitutional delegation, as the unintelligible statute had neither “an intelligible principle,” nor standards controlling the exercise of administrative discretion, and the Kentucky Supreme Court concluded that Ky. H.B. 389(4), subsequently codified at KRS 21.450(3), was unconstitutional because it violated the nondelegation doctrine embodied in Ky. Const. §§ 27, 28, 29 and 60. Bd. of Trs. of the Judicial Form Ret. Sys. v. AG, 132 S.W.3d 770, 2003 Ky. LEXIS 238 ( Ky. 2003 ).

8.— Enactments.

Act of Legislature must be construed so as to carry into effect the intention of the makers. Grinstead v. Kirby, 110 S.W. 247, 33 Ky. L. Rptr. 287 (1908).

The Constitution confers upon the General Assembly alone the power to enact the statutes. Bryan v. Yungblut, 136 Ky. 810 , 125 S.W. 251, 1910 Ky. LEXIS 546 ( Ky. 1910 ).

Where act does not lay down a standard or guide for regulations but clearly indicates that certain requirements are the only ones of that type intended, specific power granted to administrative authority to make regulations does not include power to make by regulation other requirements than those specifically made by Legislature. Bloemer v. Turner, 281 Ky. 832 , 137 S.W.2d 387, 1939 Ky. LEXIS 43 ( Ky. 1939 ).

Where an act clearly does not permit the administrator to subtract from its provisions, he may not by regulation add thereto. Bloemer v. Turner, 281 Ky. 832 , 137 S.W.2d 387, 1939 Ky. LEXIS 43 ( Ky. 1939 ).

The General Assembly may pass any act not forbidden expressly or by necessary implication by the Constitution. Batesville Casket Co. v. Fields, 288 Ky. 104 , 155 S.W.2d 743, 1941 Ky. LEXIS 63 ( Ky. 1941 ).

It was province of Legislature only, and not courts, to determine wisdom and policy of its enactments. Tipton v. Tipton, 309 Ky. 338 , 217 S.W.2d 799, 1949 Ky. LEXIS 707 ( Ky. 1949 ). See Kentucky Tax Com. v. Lincoln Bank & Trust Co., 245 S.W.2d 950, 1952 Ky. LEXIS 615 ( Ky. 1952 ); Sims v. Board of Education, 290 S.W.2d 491, 1956 Ky. LEXIS 329 ( Ky. 1956 ).

Legislative power exerted through enactments was subject to judicial interference only where such enactments were in direct conflict with Constitution. Sims v. Board of Education, 290 S.W.2d 491, 1956 Ky. LEXIS 329 ( Ky. 1956 ).

Legislative enactments were presumed to be constitutional. Dalton v. State Property & Bldgs. Com., 304 S.W.2d 342, 1957 Ky. LEXIS 276 ( Ky. 1957 ).

Motives behind legislation are not subject to judicial inquiry. Adams v. Richmond, 340 S.W.2d 204, 1960 Ky. LEXIS 13 ( Ky. 1960 ).

The general rule, where the constitutionality of legislation is to be ascertained by the courts, is that any reasonable doubt must be resolved in favor of the legislative action, and the act sustained. Harrod v. Meigs, 340 S.W.2d 601, 1960 Ky. LEXIS 58 ( Ky. 1960 ).

Where it is not clear that the Constitution has been invaded, the courts will rarely, if ever, interfere to arrest the operation of legislative enactments. Harrod v. Meigs, 340 S.W.2d 601, 1960 Ky. LEXIS 58 ( Ky. 1960 ).

9.— Joint Resolutions.

Joint resolutions of Legislature, while not regarded as laws as such, were given force and effect of laws. Commonwealth v. McCoun, 313 S.W.2d 585, 1958 Ky. LEXIS 272 ( Ky. 1958 ).

10.— Liens.

Generally a statutory lien does not take precedence over a prior contractual lien, but the Legislature has power to give a statutory lien priority over all other liens, and if the statute clearly shows such an intention, the courts must give effect to it. Adkins v. Carol Mining Co., 281 Ky. 328 , 136 S.W.2d 32, 1940 Ky. LEXIS 40 ( Ky. 1940 ).

11.— Liquor Control.

State Legislature had exclusive control over alcoholic beverages, subject to constitutional restrictions. Fuson v. Howard, 305 Ky. 843 , 205 S.W.2d 1018, 1947 Ky. LEXIS 936 ( Ky. 1947 ).

KRS 243.230(7) did not violate separation of powers, Ky. Const. §§ 28-29, as it granted limited discretion to the administrative board and limited the board’s authority to define the terms of the statute; Maxwell's Pic-Pac, Inc. v. Dehner, 739 F.3d 936, 2014 FED App. 0015P, 2014 U.S. App. LEXIS 761 (6th Cir. Ky. 2014 ).

12.— Municipal Corporations.

Pursuant to Legislature’s power to create municipal corporations, Legislature could impose restrictions thereon within its discretion. Louisville v. Milton, 247 S.W.2d 975, 1952 Ky. LEXIS 725 ( Ky. 1952 ).

13.— Public Policy.

In absence of applicable constitutional provision, Legislature alone determined state’s public policy through its enactments. Kentucky State Fair Board v. Fowler, 310 Ky. 607 , 221 S.W.2d 435, 1949 Ky. LEXIS 973 ( Ky. 1949 ).

14.— Restrictions.

Legislative power of General Assembly was total except where subject to state or federal constitutional restrictions. Gaines v. O'Connell, 305 Ky. 397 , 204 S.W.2d 425, 1947 Ky. LEXIS 820 ( Ky. 1947 ). See Wilson v. Bates, 313 Ky. 333 , 231 S.W.2d 39, 1950 Ky. LEXIS 873 ( Ky. 1950 ); Dalton v. State Property & Bldgs. Com., 304 S.W.2d 342, 1957 Ky. LEXIS 276 ( Ky. 1957 ).

15.— Sovereign Immunity.

Legislature had power to grant or deny permission for state or agency thereof to be sued or held liable for negligence. Commonwealth v. McCoun, 313 S.W.2d 585, 1958 Ky. LEXIS 272 ( Ky. 1958 ).

16.— Treasury.

It necessarily follows from a reading of this section in connection with Const., § 230 that no money can be paid out of the state treasury except in pursuance of laws passed by the General Assembly. James v. Walker, 147 Ky. 646 , 144 S.W. 744, 1912 Ky. LEXIS 286 ( Ky. 1912 ).

17.— Venue.

Venue is purely a legislative matter and for the judiciary to attempt to rewrite the statute would be an unconstitutional usurpation of power and violative of this section and Const., §§ 27 and 28. Blankenship v. Watson, 672 S.W.2d 941, 1984 Ky. App. LEXIS 535 (Ky. Ct. App. 1984), overruled, Department of Education v. Blevins, 707 S.W.2d 782, 1986 Ky. LEXIS 257 ( Ky. 1986 ).

18.— Veterans.

Legislative power extended to granting of veteran’s bonus. Stovall v. Gartrell, 332 S.W.2d 256, 1960 Ky. LEXIS 141 ( Ky. 1960 ).

19.— Welfare.

Power and discretion of Legislature to promote general welfare is very great but both power and discretion must be exercised so as not to impair the fundamental rights of life, liberty and property. Sanders v. Commonwealth, 117 Ky. 1 , 77 S.W. 358, 25 Ky. L. Rptr. 1165 , 1903 Ky. LEXIS 270 ( Ky. 1 903).

20.Workers’ Compensation.

The 1996 amendment to KRS 342.320(2)(a), which limits the maximum attorney fee for representing an injured worker before an arbitrator to $2,000.00, is not arbitrary and capricious and, therefore, does not violate Sections 2, 14, 19, 28, 29, 109, and 116 of the Kentucky Constitution or Article 1, § 10 of the United States Constitution.Daub v. Baker Concrete, 25 S.W.3d 124, 2000 Ky. LEXIS 91 ( Ky. 2000 ).

21.— Zoning.

Legislature may permissibly delegate zoning authority to local legislative bodies, where such delegation is for a limited period of time, such as the 90-day period in KRS 100.211 . Evangelical Lutheran Good Samaritan Soc'y v. Albert Oil Co., 969 S.W.2d 691, 1998 Ky. LEXIS 62 ( Ky. 1998 ).

22.Miscellaneous Statutes.

KRS 352.490 , relating to mining operations within twenty-five (25) feet of property line, does not violate this section. Whitaker v. Green River Coal Co., 276 Ky. 43 , 122 S.W.2d 1012, 1938 Ky. LEXIS 529 ( Ky. 1938 ).

The provisions of former law, authorizing the commissioner to exempt certain physicians from the patient compensation fund and to fix the rate of surcharges, were not unconstitutional on their faces and, if properly implemented, would not have violated this section. McGuffey v. Hall, 557 S.W.2d 401, 1977 Ky. LEXIS 533 ( Ky. 1977 ).

KRS 67.083 to the extent that it grants powers to the fiscal court not enumerated in Const., § 181 is in a vacuum and is a nullity. Fiscal Court of Jefferson County v. Louisville, 559 S.W.2d 478, 1977 Ky. LEXIS 554 ( Ky. 1977 ).

23.Municipal Powers.

The fact that election to operate under civil service law (KRS 90.300 to 90.990 ) is optional with city legislative body does not make the law violative of this section. Henderson v. Thomy, 307 Ky. 783 , 212 S.W.2d 303, 1948 Ky. LEXIS 831 ( Ky. 1948 ).

KRS 82.105 to 82.180 , authorizing cities to appropriate public funds to use as inducement to governmental agencies to locate in such cities, did not violate this section by delegating legislative power beyond expressed or implied municipal powers, since this section only related to separation of legislative power from executive powers. Grimm v. Moloney, 358 S.W.2d 496, 1962 Ky. LEXIS 180 ( Ky. 1962 ).

24.Police Powers.

Legislature could exercise wide discretion in its police powers, including grant of such powers to local divisions. Fuson v. Howard, 305 Ky. 843 , 205 S.W.2d 1018, 1947 Ky. LEXIS 936 ( Ky. 1947 ).

25.Pardon and Commutation.

Although the legislative branch is responsible for the enactment of criminal penalties and has set the penalty for first degree murder at death or life imprisonment with parole, the Governor had the power to commute a death sentence to a life term without parole, since a federal court had decided that the Governor possessed the power of commutation as well as that of pardon, the commuted sentence was a lesser punishment than the death penalty, and the defendant was collaterally estopped from relitigating this issue. Hamilton v. Ford, 362 F. Supp. 739, 1973 U.S. Dist. LEXIS 12418 (E.D. Ky. 1973 ).

26.Court Review of Statutes.

Courts may supply clerical or grammatical omissions in obscure phrases or language of a statute in order to give effect to intention of Legislature, presumed or ascertainable from context, or to rescue act from an absurdity but where a statute on its face is intelligible, courts are not at liberty to supply words or insert something or to make additions or to cure an omission, however just or desirable it might be to supply an omission. Hatchett v. Glasgow, 340 S.W.2d 248, 1960 Ky. LEXIS 30 ( Ky. 1960 ). See Walton v. Carter, 337 S.W.2d 674, 1960 Ky. LEXIS 363 ( Ky. 1960 ).

Former Ky. Rev. Stat. Ann. § 61.870 (1(h) was not unconstitutional for being vague because the statute was not void-as-unintelligible, as (1) the people the statute affected could understand the statute, and (2) courts could deduce the legislature's will, as undefined terms found to render the statute unintelligible were commonly defined. Util. Mgmt. Grp., LLC v. Pike Cty. Fiscal Court, 531 S.W.3d 3, 2017 Ky. LEXIS 441 ( Ky. 2017 ).

Cited:

Middendorf v. Goodale, 202 Ky. 118 , 259 S.W. 59, 1923 Ky. LEXIS 360 ( Ky. 1923 ); Mercer v. Coleman, 227 Ky. 797 , 14 S.W.2d 144, 1929 Ky. LEXIS 975 ( Ky. 1929 ); Smith v. Southern Bell Tel. & Tel. Co., 268 Ky. 421 , 104 S.W.2d 961, 1937 Ky. LEXIS 442 ( Ky. 1937 ); Coke v. Dowell, 281 Ky. 362 , 136 S.W.2d 3, 1940 Ky. LEXIS 31 ( Ky. 1940 ); Goodpaster v. Foster, 296 Ky. 614 , 178 S.W.2d 29, 1944 Ky. LEXIS 597 ( Ky. 1944 ); Dieruf v. Louisville & Jefferson County Bd. of Health, 304 Ky. 207 , 200 S.W.2d 300, 1947 Ky. LEXIS 613 ( Ky. 1947 ); Barker v. Lannert, 310 Ky. 843 , 222 S.W.2d 659, 1949 Ky. LEXIS 1022 ( Ky. 1949 ); Faulconer v. Danville, 313 Ky. 468 , 232 S.W.2d 80, 1950 Ky. LEXIS 901 ( Ky. 1950 ); General Refractories Co. v. Henderson, 313 Ky. 613 , 232 S.W.2d 846, 1950 Ky. LEXIS 910 ( Ky. 1950 ); Ream v. Department of Revenue, 314 Ky. 539 , 236 S.W.2d 462, 1951 Ky. LEXIS 688 ( Ky. 1951 ); Borders v. Cain, 252 S.W.2d 903, 1952 Ky. LEXIS 1042 ( Ky. 1952 ); Burns v. Shepherd, 264 S.W.2d 685, 1953 Ky. App. LEXIS 141 (Ky. Ct. App. 1953); Turnpike Authority of Kentucky v. Wall, 336 S.W.2d 551, 1960 Ky. LEXIS 331 ( Ky. 1960 ); State Property & Bldg. Com. v. Hays, 346 S.W.2d 3, 1961 Ky. LEXIS 277 ( Ky. 1961 ); Kerth v. Hopkins County Board of Education, 346 S.W.2d 737, 1961 Ky. LEXIS 328 ( Ky. 1961 ); Commonwealth v. Associated Industries of Kentucky, 370 S.W.2d 584, 1963 Ky. LEXIS 76 ( Ky. 1963 ); Lovern v. Brown, 390 S.W.2d 448, 1965 Ky. LEXIS 350 ( Ky. 1965 ); Ex parte Auditor of Public Accounts, 609 S.W.2d 682, 1980 Ky. LEXIS 274 ( Ky. 1980 ); Brown v. Barkley, 628 S.W.2d 616, 1982 Ky. LEXIS 232 ( Ky. 1982 ); Mash v. Commonwealth, 769 S.W.2d 42, 1989 Ky. LEXIS 34 ( Ky. 1989 ); Rose v. Council for Better Educ., 790 S.W.2d 186, 1989 Ky. LEXIS 55 ( Ky. 1989 ); Kenton County Pub. Parks Corp. v. Modlin, 901 S.W.2d 876, 1995 Ky. App. LEXIS 70 (Ky. Ct. App. 1995); Posey v. Commonwealth, 185 S.W.3d 170, 2006 Ky. LEXIS 53 ( Ky. 2006 ); Caneyville Volunteer Fire Dep’t v. Green’s Motorcycle Salvage, Inc., 286 S.W.3d 790, 2009 Ky. LEXIS 158 ( Ky. 2009 ); Commonwealth v. Chauvin, 316 S.W.3d 279, 2010 Ky. LEXIS 146 ( Ky. 2010 ).

Opinions of Attorney General.

Any attempt on the part of the commission to establish by regulation marketing practices in addition to those set out in KRS 260.705 would be unreasonable, unlawful and unconstitutional in violation of Const., § 29. OAG 61-230 .

Sections 12 and 13 of part six of the 1974-76 appropriations act, appropriating the excess general fund revenue above a stated amount to the general contingency fund which may be allocated upon the orders of the Governor to state agencies for enumerated purposes, are within the confines of Const., §§ 27, 28, 29 and 230. OAG 74-600 .

An ordinance adopted by the fiscal court which stated that it was mandatory for all coal trucks to be covered on any public highway would be unconstitutional. OAG 77-584 .

While the Legislature cannot delegate its legislative function to another branch, the Legislature may declare the policy of the law and fix a principle which is to control, and an administrative body may be invested with the power to ascertain the facts and conditions to which the policy and principle apply. OAG 82-195 .

The General Assembly is a body created by the Constitution of this state in the legislative branch of government as defined in KRS 61.870(1)(g) of the Open Records Act, and as there is no reasonable basis for excluding it from the definition of a public agency, its records are subject to public inspection unless otherwise exempt pursuant to KRS 61.878(1)(a) through (l). OAG 980-ORD-92.

Research References and Practice Aids

Cross-References.

General assembly, KRS ch. 6.

Power of pardon for treason vested in General Assembly, Const., § 77.

Kentucky Law Journal.

Comments, The Employee Defense Act: Wearing Down Sovereign Immunity, 66 Ky. L.J. 150 (1977-78).

Ziegler, A Primer on Administrative Rules and Rule-Making in Kentucky, 67 Ky. L.J. 103 (1978-79).

Kentucky Law Survey, Rogers and Sims, Administrative Law, 69 Ky. L.J. 489 (1980-81).

Snyder and Irland, The Separation of Governmental Powers Under the Constitution of Kentucky: A Legal and Historical Analysis of L.R.C. v. Brown, 73 Ky. L.J. 165 (1984-85).

Northern Kentucky Law Review.

Ziegler, Legitimizing the Administrative State: The Judicial Development of the Nondelegation Doctrine in Kentucky, 4 N. Ky. L. Rev. 87 (1977).

Notes, County Government — Home Rule —The General Assembly Must Grant Governmental Powers to Fiscal Courts “With the Precision of a Rifle Shot and Not with the Casualness of Shotgun Blast” — Fiscal Court v. City of Louisville, 559 S.W.2d 478, 1977 Ky. LEXIS 554 ( Ky. 1977 ), 5 N. Ky. L. Rev. 107 (1978).

§ 30. Term of office of Senators and Representatives.

Members of the House of Representatives and Senators shall be elected at the general election in even-numbered years for terms of four years for Senators and two years for members of the House of Representatives. The term of office of Representatives and Senators shall begin upon the first day of January of the year succeeding their election.

History. Proposed Acts 1978, ch. 440, § 1, ratified November, 1979.

Compiler’s Notes.

Acts 1978, ch. 440, § 1 proposed that this section be amended by repealing former § 30 and adopting the present section in lieu thereof. Such proposed amendment was ratified by the voters at the regular election in November, 1979. Prior to amendment, the section read:

Ҥ 30. Term of office of senators and representatives begins January 1.

Members of the House of Representatives and Senators elected at the August election in one thousand eight hundred and ninety-one, and Senators then holding over, shall continue in office until and including the last day of December, one thousand eight hundred and ninety-three. Thereafter the term of office of Representatives and Senators shall begin upon the first day of January of the year succeeding their election.”

Section 4 of Acts 1978, ch. 440, which was proposed and ratified as part of the amendment of this section, stated, in pertinent part:

“3. Representatives elected to office in November, 1979, shall serve a two-year term, and their terms of office shall expire December 31, 1981.

“4. Representatives elected to office in November, 1981, shall serve a three-year term, and their terms of office shall expire December 31, 1984.

“5. Senators elected to office in November, 1979, shall serve a four-year term, and their terms of office shall expire December 31, 1983.

“6. Senators elected to office in November, 1983, shall serve five years, and their terms of office shall expire December 31, 1988.

“7. Senators elected to office in November, 1981, shall serve a five-year term, and their terms of office shall expire December 31, 1986.”

NOTES TO DECISIONS

Cited:

Eldred v. Commonwealth, 906 S.W.2d 694, 1994 Ky. LEXIS 122 ( Ky. 1994 ); Stephenson v. Woodward, 182 S.W.3d 162, 2005 Ky. LEXIS 391 ( Ky. 2005 ).

Opinions of Attorney General.

Where the death of a state representative following his reelection at the November general election creates an immediate vacancy when his present term expires on January 1, pursuant to Const., § 30, and where the legislature does not convene until January 5, under Const., § 36, the proper procedure for filling the vacancy affecting the new term would be to have the governor call a special election by issuing a writ pursuant to KRS 118.730 . OAG 81-388 .

Research References and Practice Aids

Kentucky Law Journal.

Snyder and Irland, The Separation of Governmental Powers Under the Constitution of Kentucky: A Legal and Historical Analysis of L.R.C. v. Brown, 73 Ky. L.J. 165 (1984-85).

§ 31. Time of election and term of office of Senators and Representatives.

At the general election to be held in November, 1984, and every two years thereafter, there shall be elected for four years one Senator in each Senatorial District in which the term of his predecessor in office will then expire and in every Representative District one Representative for two years.

History. Proposed by Acts 1978, ch. 440, ratified November, 1979.

Compiler’s Notes.

Acts 1978, ch. 440, § 1 proposed that this section be amended by repealing former § 31 and adopting the present section in lieu thereof. Such proposed amendment was ratified by the voters at the regular election in November, 1979. Prior to amendment, the section read:

Ҥ 31. Time of election and term of office of senators and representatives.

At the general election in the year one thousand eight hundred and ninety-three one Senator shall be elected in each Senatorial District, and one Representative in each Representative District. The Senators then elected shall hold their offices, one-half for two years and one-half for four years, as shall be determined by lot at the first session of the General Assembly after their election, and the Representatives shall hold their offices for two years. Every two years thereafter there shall be elected for four years one Senator in each Senatorial District in which the term of his predecessor in office will then expire, and in every Representative District one Representative for two years.”

Based on action of the 1894 Senate, which allotted “short” and “long” terms to the various senate districts when the “staggered term” concept was first implemented, and the 1979 amendments to Constitution sections 30 and 31, senate elections for odd-numbered senate districts were held in 1983 and will be held in 1988 and every four years thereafter, while senate elections for even-numbered senate districts were held in 1981 and will be held in 1986 and every four years thereafter.

Decisions Under Prior § 31

  1. Representatives.
  2. — Residence.
  3. Senators.
  4. — Election.
  5. Terms of Office.

This section and Const., §§ 32 and 33 were construed to mean that a representative must reside in the district for which he is elected, especially in light of language in former Constitution. Grantz v. Grauman, 302 S.W.2d 364, 1957 Ky. LEXIS 185 ( Ky. 1957 ).

Where twelfth-district boundaries were changed by redistricting act so that its senator no longer lived therein, new senator could not be elected in 1963, year of redistricting, since redistricting law only changed the boundaries of the districts and did not abolish the office nor shorten term of present senator of the district, and under this section only odd-numbered districts expired in such year. Anggelis v. Land, 371 S.W.2d 857, 1963 Ky. LEXIS 117 ( Ky. 1963 ).

The Constitution does not contemplate the holding over of members of the general assembly after their fixed terms has expired and until their successors are elected and qualified, or for any length of time beyond the fixed terms for which they are elected. Byrne & Speed Coal Co. v. Louisville, 189 Ky. 346 , 224 S.W. 883, 1920 Ky. LEXIS 429 ( Ky. 1920 ). See Booth v. Board of Education, 191 Ky. 147 , 229 S.W. 84, 1921 Ky. LEXIS 267 ( Ky. 1921 ).

Research References and Practice Aids

Kentucky Law Journal.

Snyder and Irland, The Separation of Governmental Powers Under the Constitution of Kentucky: A Legal and Historical Analysis of L.R.C. v. Brown, 73 Ky. L.J. 165 (1984-85).

§ 32. Qualifications of Senators and Representatives.

No person shall be a Representative who, at the time of his election, is not a citizen of Kentucky, has not attained the age of twenty-four years, and who has not resided in this State two years next preceding his election, and the last year thereof in the county, town or city for which he may be chosen. No person shall be a Senator who, at the time of his election, is not a citizen of Kentucky, has not attained the age of thirty years, and has not resided in this State six years next preceding his election, and the last year thereof in the district for which he may be chosen.

Compiler’s Notes.

The following amendment was proposed by the 1972 general assembly (Acts 1972, ch. 375, § 1), was submitted to the voters for ratification or rejection at the regular election in November 1973 and was defeated:

“Section 32 No person shall be a Representative who, at the time of his election, is not a citizen of Kentucky, has not attained the age of twenty-four years, and who has not resided in this State two years next preceding his election, and the last two years thereof in the district for which he may be chosen. No person shall be a Senator who, at the time of his election, is not a citizen of Kentucky, has not attained the age of thirty years, and has not resided in this State six years next preceding his election, and the last two years thereof in the district for which he may be chosen.”

NOTES TO DECISIONS

1.In General.

Right of senate to pass upon qualifications of its members was not restricted to qualifications specified in this section. Raney v. Stovall, 361 S.W.2d 518, 1962 Ky. LEXIS 246 ( Ky. 1962 ).

2.Residency.

Under this section senators were required to be residents of districts from which they were elected. Anggelis v. Land, 371 S.W.2d 857, 1963 Ky. LEXIS 117 ( Ky. 1963 ).

Former Const., § 31, this section and Const., § 33 were construed to mean that a representative must reside in the district for which he is elected in light of the language in former Constitution. Grantz v. Grauman, 302 S.W.2d 364, 1957 Ky. LEXIS 185 ( Ky. 1957 ).

3.— New District.

The fact that a district for state representative was newly created and would not have been in existence for one year at the time of the election did not relieve the candidates from the requirement that they must have resided in the area to be represented for one year at the date of the election, and that requirement meant the exact area, not just the county. McConnell v. Marshall, 467 S.W.2d 318, 1971 Ky. LEXIS 360 ( Ky. 1971 ).

Decisions Under Prior Constitution

1.Residence.

People who had lived two (2) years in the territory which became the state of Kentucky were deemed eligible as representatives within the meaning of first Constitution. Gibson v. Wood, 105 Ky. 740 , 49 S.W. 768, 20 Ky. L. Rptr. 1547 , 1899 Ky. LEXIS 269 ( Ky. 1899 ).

Opinions of Attorney General.

Since a representative is not chosen from a county, town or city but from a legislative district, his length of residence in the district must be the same as that required in the other divisions mentioned in this section and, consequently, a candidate for the house of representatives must be a resident of his district for one year next preceding his election. OAG 67-125 .

Since a candidate for the house of representatives must be a resident of his district for one year next preceding his election, a candidate for the house of representatives would disqualify himself by moving to another district before the primary. OAG 69-115 .

The fact that a state senator moves his legal residence from one precinct to the other within his county or for that matter to a precinct in any one of the other counties comprising his district, would in no way affect his right to continue to serve as senator from said district. OAG 78-237 .

The creation of a new General Assembly district by enactment of redistricting legislation would not disqualify candidates living in the new district from meeting the residential requirements of this section, since KRS 61.015 provides that a person shall be deemed to meet the residency requirements if he resided within the geographic area encompassed by the district boundaries for the required length of time. OAG 81-424 .

Where a redistricting act has created a new district bearing the same number as an abolished district and an incumbent member of the General Assembly resigns or vacates his office after the legislative change his successor must be elected from the new district, not the old district, to fill the unexpired term of the incumbent in order to meet the residential requirements of this section. OAG 81-424 .

A legislator cannot be legislated out of office by virtue of a redistricting act changing boundary lines that place him in a district other than the one from which he was elected; in spite of the fact that the legislator no longer lives within the boundary of the district as newly constituted and as a consequence was not elected by the people who do live within the said district, nevertheless, once elected, he represents all of the people of the state and specifically all of the people of his district as it exists during his tenure of office. OAG 82-18 .

A redistricting plan that creates a five-year hiatus rather than a two (2) year hiatus between the effective date of a redistricting bill and the remainder of a senator’s term who has been placed in another district, does not contravene the residential requirements in this section since a senator placed in a district other than that from which he was elected for the remainder of his term does in fact represent all of the people of the state, those who elected him and those who did not. OAG 82-55 .

§ 33. Senatorial and Representative districts.

The first General Assembly after the adoption of this Constitution shall divide the State into thirty-eight Senatorial Districts, and one hundred Representative Districts, as nearly equal in population as may be without dividing any county, except where a county may include more than one district, which districts shall constitute the Senatorial and Representative Districts for ten years. Not more than two counties shall be joined together to form a Representative District: Provided, In doing so the principle requiring every district to be as nearly equal in population as may be shall not be violated. At the expiration of that time, the General Assembly shall then, and every ten years thereafter, redistrict the State according to this rule, and for the purposes expressed in this section. If, in making said districts, inequality of populations should be unavoidable, any advantage resulting therefrom shall be given to districts having the largest territory. No part of a county shall be added to another county to make a district, and the counties forming a district shall be contiguous.

NOTES TO DECISIONS

1.In General.

Where redistricting laws violated this section because of their inequality, prior redistricting law was restored. Stiglitz v. Schardien, 239 Ky. 799 , 40 S.W.2d 315, 1931 Ky. LEXIS 849 ( Ky. 1931 ).

2.Construction.

Approximation in districting, and not mathematical precision, is required. Stiglitz v. Schardien, 239 Ky. 799 , 40 S.W.2d 315, 1931 Ky. LEXIS 849 ( Ky. 1931 ). See Ragland v. Anderson, 125 Ky. 141 , 100 S.W. 865, 30 Ky. L. Rptr. 1199 , 1907 Ky. LEXIS 273 ( Ky. 1907 ).

Requirements of this section could not be satisfied with less than such equality of representation as common justice and ordinary knowledge of territory and population would suggest. Stiglitz v. Schardien, 239 Ky. 799 , 40 S.W.2d 315, 1931 Ky. LEXIS 849 ( Ky. 1931 ).

3.Actions.

Citizen, taxpayer and voter could maintain action to question validity of redistricting acts under this section. Stiglitz v. Schardien, 239 Ky. 799 , 40 S.W.2d 315, 1931 Ky. LEXIS 849 ( Ky. 1931 ).

The secretary of state, the state board of election commissioners, and the attorney general are not the proper officials against whom the assailant of a redistricting act should file an action. Stiglitz v. Schardien, 239 Ky. 799 , 40 S.W.2d 315, 1931 Ky. LEXIS 849 ( Ky. 1931 ).

4.— Venue.

The proper venue for challenging the constitutionality of legislative district reapportionment was in the county in which the alleged injury occurred, rather than the county where the redistricting statute was adopted. Fischer v. State Bd. of Elections, 847 S.W.2d 718, 1993 Ky. LEXIS 52 ( Ky. 1993 ), overruled in part, Hoskins v. Maricle, 150 S.W.3d 1, 2004 Ky. LEXIS 196 ( Ky. 2004 ).

5.Annexation.

Where territory of a county outside a city has been designated as a legislative district, annexation of part of territory to city is not change of a legislative district forbidden by this section as district remains the same notwithstanding the annexation. Kentucky Wagon Mfg. Co. v. Louisville, 46 S.W. 499, 20 Ky. L. Rptr. 408 (1898).

6.City Wards.

A legislative district described as “the territory of the tenth ward of the city of Louisville” was not changed by the city changing the boundaries of the ward. Mullen v. McDonald, 101 Ky. 87 , 39 S.W. 698, 19 Ky. L. Rptr. 224 , 1897 Ky. LEXIS 152 ( Ky. 1897 ).

7.Congressional Districts.

Neither the federal nor the state constitution contains any direction regarding the apportionment of the state into congressional districts. Richardson v. McChesney, 128 Ky. 363 , 108 S.W. 322, 32 Ky. L. Rptr. 1237 , 1908 Ky. LEXIS 63 ( Ky. 1908 ), writ of error dismissed, 218 U.S. 487, 31 S. Ct. 43, 54 L. Ed. 1121, 1910 U.S. LEXIS 2043 (U.S. 1910).

8.Counties.

Act redividing state into representative districts and placing Ohio, Butler and Edmonson Counties with population of 53,263 and combined area of 1,241 square miles into one district, while Spencer County with only 7,407 population and 204 square miles was made district by itself, constituted such unequal division as to violate this section. Ragland v. Anderson, 125 Ky. 141 , 100 S.W. 865, 30 Ky. L. Rptr. 1199 , 1907 Ky. LEXIS 273 ( Ky. 1907 ).

Joining of more than two counties to form representative district is not absolutely prohibited by this section provided it is necessary to effectuate the equality of representation demanded by entire section. Ragland v. Anderson, 125 Ky. 141 , 100 S.W. 865, 30 Ky. L. Rptr. 1199 , 1907 Ky. LEXIS 273 ( Ky. 1907 ).

A redistricting plan may include more than two counties in a representative district if the general assembly deems that it is necessary in order to effect a reasonable equality of representation among districts. Combs v. Matthews, 364 S.W.2d 647, 1963 Ky. LEXIS 206 ( Ky. 1963 ).

A legislative redistricting plan which made full use of the maximum allowable constitutional population variation and divided the fewest possible number of counties was constitutional, notwithstanding the fact that its provisions made it more difficult for a particular group in a given district to elect a local representative. Jensen v. Kentucky State Bd. of Elections, 959 S.W.2d 771, 1997 Ky. LEXIS 106 ( Ky. 1997 ).

9.Judicial Review.

Whether statute redistricting state into representative districts makes division so unequal as to violate this section is not so purely a political question as to be beyond jurisdiction of courts. Ragland v. Anderson, 125 Ky. 141 , 100 S.W. 865, 30 Ky. L. Rptr. 1199 , 1907 Ky. LEXIS 273 ( Ky. 1907 ).

Apportionment of the state into certain senatorial districts having stood unchallenged for 13 years, court will not declare such apportionment invalid under this section when the result might be to throw the government into chaos. Adams v. Bosworth, 126 Ky. 61 , 102 S.W. 861, 31 Ky. L. Rptr. 518 , 1907 Ky. LEXIS 20 ( Ky. 1907 ).

Legislative apportionment of the state into congressional districts cannot be judicially reviewed in absence of constitutional provision controlling apportionment. Richardson v. McChesney, 128 Ky. 363 , 108 S.W. 322, 32 Ky. L. Rptr. 1237 , 1908 Ky. LEXIS 63 ( Ky. 1908 ), writ of error dismissed, 218 U.S. 487, 31 S. Ct. 43, 54 L. Ed. 1121, 1910 U.S. LEXIS 2043 (U.S. 1910).

Court substituted the words “tenth ward” for words “eleventh and twelfth wards” in act redistricting the state in order to make act conform with legislative intent and this section. Neutzel v. Ryans, 184 Ky. 292 , 211 S.W. 852, 1919 Ky. LEXIS 65 ( Ky. 1919 ).

10.Redistricting Time.

The general assembly could enact a redistricting plan at an extraordinary session held in 1963 which was called for the specific purpose of enacting such a plan. Combs v. Matthews, 364 S.W.2d 647, 1963 Ky. LEXIS 206 ( Ky. 1963 ).

11.Invalid Redistricting.

The redistricting act passed by Acts 1971 (1st Ex. Sess.), ch. 2, was unconstitutional because the divisions reflected an attitude that political sentiments and traditional subdivisions were more important than mathematical purity and, as a consequence, the law violated the principle of “one man one vote” and did not measure up to the “as nearly as practicable” standard. Hensley v. Wood, 329 F. Supp. 787, 1971 U.S. Dist. LEXIS 12293 (E.D. Ky. 1971 ).

Redistricting plans for the Kentucky House of Representatives and the Kentucky Senate were unconstitutional by reason of failing to divide the fewest number of counties possible and failing to achieve sufficient population equality; as such, the plans were void and could not be implemented. Each of the redistricting plans contained one district with a population deviation greater than 5 percent from the ideal district as determined by reference to census data, and alternative plans had been proposed in both chambers that divided fewer counties and that had a population variance within plus-or-minus 5 percent of the ideal districts. Legislative Research Comm'n v. Fischer, 366 S.W.3d 905, 2012 Ky. LEXIS 55 ( Ky. 2012 ).

12.Representation.

Fact that redistricting as provided for in this section resulted in some persons in state not being represented by senator of their own choosing for two years thereafter was offset by desirability of maintaining senate in which at least half of members were always experienced. Anggelis v. Land, 371 S.W.2d 857, 1963 Ky. LEXIS 117 ( Ky. 1963 ).

13.1991 Reapportionment Act.

The Supreme Court of Kentucky declared the 1991 Reapportionment Act (KRS Chapter 5) invalid, effective January 3, 1995. Fischer v. State Bd. of Elections, 879 S.W.2d 475, 1994 Ky. LEXIS 65 ( Ky. 1994 ); see also, State Bd. of Elections v. Fischer, 910 S.W.2d 245, 1995 Ky. LEXIS 135 ( Ky. 1995 ).

Cited:

Watts v. O’Connell, 247 S.W.2d 531, 1952 Ky. LEXIS 718 ( Ky. 1952 ); Grantz v. Grauman, 302 S.W.2d 364, 1957 Ky. LEXIS 185 ( Ky. 1957 ).

Opinions of Attorney General.

Where a county court in rearranging several of the city precincts extended one of the precincts into the thirteenth legislative district, the action was void for deviating from the legislative district line and the precinct boundary remained coextensive with the district line. OAG 69-116 .

Where a city in one legislative district annexed territory in another legislative district, the people in the annexed area would have to continue to vote with their former legislative district although they could vote in all municipal elections. OAG 71-373 .

The fact that an incumbent state representative plans to move from one precinct to another within the district which he represents would in no way affect his qualifications under § 31 and this section of the constitution to be reelected in November to the office of state representative since he will remain a resident of that district. OAG 75-456 .

A legislator cannot be legislated out of office by virtue of a redistricting act changing boundary lines that place him in a district other than the one from which he was elected; in spite of the fact that the legislator no longer lives within the boundary of the district as newly constituted and as a consequence was not elected by the people who do live within the said district, nevertheless, once elected, he represents all of the people of the state and specifically all of the people of his district as it exists during his tenure of office. OAG 82-18 .

Research References and Practice Aids

Cross-References.

Legislative districts, KRS 5.100 to 5.138 and 5.200 to 5.300 .

Kentucky Bench & Bar.

Heyburn, Redistricting: Drawing The Fine Lines of Political Representation, Volume 55, No. 4, Fall 1991 Ky. Bench & B. 28.

Kentucky Law Journal.

Jewell, 1962 Congressional Redistricting in Kentucky, 51 Ky. L.J. 16 (1962).

Legislative Reapportionment — The Kentucky Legal Context, 51 Ky. L.J. 722 (1963).

Williamson, Post-Census Redistricting — A Primer for State Legislators, 59 Ky. L.J. 386 (1970).

§ 34. Officers of houses of General Assembly.

The House of Representatives shall choose its Speaker and other officers, and the Senate shall have power to choose its officers biennially.

NOTES TO DECISIONS

1.Construction.

The legislature is expressly directed and permitted by this section to perform the executive act of electing its own officers. Commissioners of Sinking Fund v. George, 104 Ky. 260 , 20 Ky. L. Rptr. 938 , 47 S.W. 779, 1898 Ky. LEXIS 211 ( Ky. 1 898 ), overruled in part, Pratt v. Breckinridge, 112 Ky. 1 , 23 Ky. L. Rptr. 1356 , 65 S.W. 136, 1901 Ky. LEXIS 286 ( Ky. 1901 ). See Purnell v. Mann, 105 Ky. 87 , 48 S.W. 407, 1898 Ky. LEXIS 244 ( Ky. 1898 ), overruled, Pratt v. Breckinridge, 112 Ky. 1, 65 S.W. 136, 23 Ky. L. Rptr. 1356 , 1901 Ky. LEXIS 286 ( Ky. 1901 ); Pratt v. Breckinridge, 112 Ky. 1, 65 S.W. 136, 23 Ky. L. Rptr. 1356, 1901 Ky. LEXIS 286 (Ky. 1901).

2.Appointment.

The power of appointment may not be exercised in any cases other than those specified in this section and Const., § 249. Pratt v. Breckinridge, 112 Ky. 1 , 65 S.W. 136, 23 Ky. L. Rptr. 1356 , 1901 Ky. LEXIS 286 ( Ky. 1 901).

3.House Speaker.

The presiding officer over the house is its speaker and he is to be elected from the membership of the body over which he presides. Kirchdorfer v. Tincher, 204 Ky. 366 , 264 S.W. 766, 1924 Ky. LEXIS 458 ( Ky. 1924 ).

Cited:

Shanks v. Julian, 213 Ky. 291 , 280 S.W. 1081, 1926 Ky. LEXIS 502 ( Ky. 1926 ).

Research References and Practice Aids

Cross-References.

Employees of general assembly, number and compensation, Const., § 249.

Speaker is member of Legislative Research Commission, KRS 7.090 .

§ 35. Number of Senators and Representatives.

The number of Representatives shall be one hundred, and the number of Senators thirty-eight.

NOTES TO DECISIONS

1.Lieutenant Governor.

The view that the office of lieutenant governor is primarily executive as opposed to legislative is strengthened by the fact that this section designates number of members of General Assembly without reference to that officer. Rouse v. Johnson, 234 Ky. 473 , 28 S.W.2d 745, 1930 Ky. LEXIS 220 ( Ky. 1930 ).

2.Senators.

One would not be allowed to run for senate where result would be to increase number of senators over number allowed by this section. Anggelis v. Land, 371 S.W.2d 857, 1963 Ky. LEXIS 117 ( Ky. 1963 ).

Cited:

Kirchdorfer v. Tincher, 204 Ky. 366 , 264 S.W. 766, 1924 Ky. LEXIS 458 , 40 A.L.R. 801 ( Ky. 1924 ).

Opinions of Attorney General.

This section enumerating the number of senators, is mandatory and prohibits the existence of any number in excess thereof. OAG 63-362 .

§ 36. Time and place of meetings of General Assembly.

  1. The General Assembly, in odd-numbered years, shall meet in regular session for a period not to exceed a total of thirty (30) legislative days divided as follows: The General Assembly shall convene for the first part of the session on the first Tuesday after the first Monday in January in odd-numbered years for the purposes of electing legislative leaders, adopting rules of procedure, organizing committees, and introducing and considering legislation. The General Assembly shall then adjourn. The General Assembly shall convene for the second part of the session on the first Tuesday in February of that year. Any legislation introduced but not enacted in the first part of the session shall be carried over into the second part of the session. In any part of the session in an odd-numbered year, no bill raising revenue or appropriating funds shall become a law unless it shall be agreed to by three-fifths of all the members elected to each House.
  2. The General Assembly shall then adjourn until the first Tuesday after the first Monday in January of the following even-numbered years, at which time the General Assembly shall convene in regular session.
  3. All sessions shall be held at the seat of government, except in case of war, insurrection or pestilence, when it may, by proclamation of the Governor, assemble, for the time being, elsewhere.

History. Amendment proposed by Acts 2000, ch. 407, § 1, ratified November, 2000; repeal, proposed by Acts 2021, ch. 27, § 1 and is contingent upon ratification.

Compiler’s Notes.

1979 amendment was proposed by 1978 Ky. Acts ch. 440, § 2, and ratified on November 6, 1979.

The General Assembly in 2000 (Acts 2000, ch. 407, § 1) proposed an amendment to the Constitution which amendment was ratified by the voters at the regular election in November, 2000. Prior to the amendment the section read: “ § 36. Time and place of meetings of General Assembly. — The General Assembly shall meet on the first Tuesday after the first Monday in January in odd-numbered years for a period not to exceed ten legislative days for the purposes of electing legislative leaders, adopting rules of procedure and the organizing of committees. The General Assembly shall then adjourn until the first Tuesday after the first Monday in January of the following even-numbered years, at which time the General Assembly shall convene in regular session, and its sessions shall be held at the seat of government, except in case of war, insurrection or pestilence, when it may, by proclamation of the Governor, assemble, for the time being, elsewhere.”

The following amendment was proposed by the 1990 General Assembly (Acts 1990, ch. 152, § 1), was submitted to the voters for ratification or rejection at the regular election in November, 1990 and was defeated:

§ 36. Time and place of meetings of General Assembly — Extraordinary sessions called by President Pro Tempore of the Senate and Speaker of the House of Representatives. — The General Assembly shall meet on the first Tuesday after the first Monday in January in odd-numbered years for a period not to exceed ten legislative days for the purposes of electing legislative leaders, adopting rules of procedure and the organizing of committees. The General Assembly shall then adjourn until the first Tuesday after the first Monday in January of the following even-numbered years, at which time the General Assembly shall convene in regular session, and its sessions shall be held at the seat of government, except in case of war, insurrection or pestilence, when it may, by proclamation of the Governor, assemble, for the time being, elsewhere. The President Pro Tempore of the Senate and the Speaker of the House of Representatives shall jointly convene the General Assembly for an extraordinary session upon receipt of a written petition for such purposes signed by two-thirds of the members of each house of the General Assembly. When they shall convene the General Assembly for an extraordinary session, it shall be by joint proclamation, stating the subjects to be considered, and no others shall be considered.”

The General Assembly in 1978 (Acts 1978, ch. 440, § 2) proposed an amendment to this section of the Constitution which amendment was ratified by the voters at the regular election in November, 1979. Prior to the amendment this section read:

“§ 36. Time and place of meetings of General Assembly. — The first General Assembly, the members of which shall be elected under this Constitution, shall meet on the first Tuesday after the first Monday in January, eighteen hundred and ninety-four, and thereafter the General Assembly shall meet on the same day every second year, and its sessions shall be held at the seat of government, except in case of war, insurrection or pestilence, when it may, by proclamation of the Governor, assemble, for the time being, elsewhere.”

Section 4 of Acts 1978, ch. 440 which was proposed and ratified as part of the amendment to this section, stated, in pertinent part:

“1. The General Assembly shall convene in a regular session of 60 legislative days on the first Tuesday after the first Monday of January, 1980, and every two years thereafter.

“2. The General Assembly shall convene as directed by this amendment for odd-numbered years on the first Tuesday after the first Monday of January, 1983, and every two years thereafter.”

The following amendment was proposed by the 1972 general assembly (Acts 1972, ch. 375, § 1), was submitted to the voters for ratification or rejection at the regular election in November 1973 and was defeated:

“Section 36. The General Assembly shall convene each year on the first Tuesday after the first Monday in January, except in the year following a gubernatorial election, it shall convene on the first Tuesday after the first Monday in March. Its sessions shall be held at the seat of government, except in case of war, insurrection or pestilence, when it may, by proclamation of the Governor, assemble, for the time being, elsewhere.”

NOTES TO DECISIONS

Cited:

Rose v. Council for Better Educ., 790 S.W.2d 186, 1989 Ky. LEXIS 55 ( Ky. 1989 ).

Decisions Under Prior § 36

1.Place of Assembly.

It was in violation of former section for the Governor to adjourn the General Assembly to some other place after it had assembled at the seat of government. Taylor v. Beckham, 108 Ky. 278 , 56 S.W. 177, 21 Ky. L. Rptr. 1735 , 1900 Ky. LEXIS 39 (Ky.), writ of error dismissed, 178 U.S. 548, 20 S. Ct. 890, 44 L. Ed. 1187, 1900 U.S. LEXIS 1702 (U.S. 1900).

2.Adjournment Date.

By changing the call date of the extraordinary session, the Governor did not usurp the power of the Legislature to set the time for adjournment as provided in this section. Guenthner v. Brown, 671 S.W.2d 260, 1984 Ky. App. LEXIS 512 (Ky. Ct. App. 1984).

Opinions of Attorney General.

Where the death of a state representative following his reelection at the November general election creates an immediate vacancy when his present term expires on January 1, pursuant to Const., § 30, and where the legislature does not convene until January 5, under this section, the proper procedure for filling the vacancy affecting the new term would be to have the Governor call a special election by issuing a writ pursuant to KRS 118.730 . OAG 81-388 .

Each branch of government may exercise only that power which is properly vested in it by the Constitution and, moreover, the legislative power is further limited to being exercised only when the General Assembly is formally in session; there is and can be no room for role reversal or for the quasi-exercise by one branch of state government of the powers limited to another of the three branches of state government. OAG 82-154 .

The provision of Acts 1982, ch. 447, giving the Legislative Research Commission authority to approve or disapprove a temporary reorganization by the Governor (KRS 12.028 ) is unconstitutional since the General Assembly’s granting of reorganization authority to the Governor may not be subject to the approval of the Legislative Research Commission; the Legislative Research Commission’s exercise of such veto/approval authority would be tantamount to the General Assembly’s acting when not in session, which is prohibited by the separation of powers doctrine, this section, Const., §§ 27 and 28; and, even if an attempt were made to establish the Legislative Research Commission as an executive agency, the General Assembly is prohibited by Const., § 69 from granting reorganization authority to such agency or any other created state executive agency if that authority is superior to that of the Governor. OAG 82-154 .

Under the Kentucky constitutional separation of powers provisions, the General Assembly cannot act outside the confines of formal enactment procedures, and it is legally unable to create an entity to approve, on its behalf and in between General Assembly sessions, an act done by the Executive Branch of state government. OAG 82-154 .

Under the Constitution, the General Assembly and the Legislative Research Commission have no authority to carry out a legislative function except when the General Assembly is in regular or special session; the Kentucky General Assembly is not a continuing body. OAG 82-154 .

Research References and Practice Aids

Cross-References.

Extraordinary sessions, Governor may call, Const., § 80.

Kentucky Bench & Bar.

Toner and Call, Three Cases That Shaped Kentucky’s History, 56 Ky. Bench & B. 11.

Kentucky Law Journal.

Snyder and Irland, The Separation of Governmental Powers Under the Constitution of Kentucky: A Legal and Historical Analysis of L.R.C. v. Brown, 73 Ky. L.J. 165 (1984-85).

Comments, Living Will Statutes: A Proposal for Kentucky, 75 Ky. L.J. 395 (1986-87).

Northern Kentucky Law Review.

Notes, County Government — Home Rule —The General Assembly Must Grant Governmental Powers to Fiscal Courts “With the Precision of a Rifle Shot and Not with the Casualness of a Shotgun Blast” — Fiscal Court v. City of Louisville, 559 S.W.2d 478, 1977 Ky. LEXIS 554 ( Ky. 1977 ), 5 N. Ky. L. Rev. 107 (1978).

§ 36. Time and place of meetings of General Assembly. [Contingently enacted]

  1. The General Assembly, in odd-numbered years, shall convene in regular session on the first Tuesday following the first Monday in January for the purpose of electing legislative leaders, adopting rules of procedure, organizing committees, and introducing and considering legislation.
  2. No regular session of the General Assembly occurring in odd-numbered years shall continue beyond thirty legislative days.
  3. No bill raising revenue or appropriating funds shall be passed by the General Assembly in a regular session in an odd-numbered year unless it shall be agreed upon by three-fifths of all the members elected to each House.
  4. The General Assembly, in even-numbered years, shall convene in regular session on the first Tuesday following the first Monday in January, and no regular session of the General Assembly in even-numbered years shall extend beyond sixty legislative days.
  5. Except as otherwise provided in this Constitution, the General Assembly shall establish by general law or joint resolution the date the regular session shall end. No bill establishing a later date shall be passed by the General Assembly unless it shall be agreed upon by three-fifths of all the members elected to each House. No session of the General Assembly shall extend beyond December 31.
  6. In addition to a regular session, the General Assembly may be convened by Joint Proclamation of the President of the Senate and the Speaker of the House of Representatives for no more than twelve legislative days annually, during which the General Assembly may recess from time to time as it determines necessary. Should a vacancy occur in the office of the President of the Senate or the Speaker of the House of Representatives, the Joint Proclamation for the House with the vacancy may be issued by the Senate President Pro Tempore or the Speaker Pro Tempore of the House of Representatives.
  7. All sessions of the General Assembly shall be held at the seat of government, except in the case of war, insurrection, or pestilence, when it may, by Joint Proclamation of the President of the Senate and the Speaker of the House of Representatives, assemble, for the time being, elsewhere. Should a vacancy occur in the office of the President of the Senate or the Speaker of the House of Representatives, the Joint Proclamation for the House with the vacancy may be issued by the Senate President Pro Tempore or the Speaker Pro Tempore of the House of Representatives.
  8. Limitations as to the length of any session of the General Assembly shall not apply to any extraordinary session under Section 80 of this Constitution or in the Senate when sitting as a court of impeachment.
  9. A legislative day shall be construed to mean a calendar day, exclusive of Sundays, legal holidays, or any day on which neither House meets.

History. Repeal and reenactment, proposed by Acts 2021, ch. 27, § 2, and is contingent upon ratification.

§ 37. Majority constitutes quorum — Powers of less than a quorum.

Not less than a majority of the members of each House of the General Assembly shall constitute a quorum to do business, but a smaller number may adjourn from day to day, and shall be authorized by law to compel the attendance of absent members in such manner and under such penalties as may be prescribed by law.

NOTES TO DECISIONS

1.Purpose.

Purpose of this section, when read in relation with Const., § 46, is to prevent enactment of a law by a majority of a bare quorum. Kirchdorfer v. Tincher, 204 Ky. 366 , 264 S.W. 766, 1924 Ky. LEXIS 458 ( Ky. 1924 ).

Opinions of Attorney General.

A majority of members of both houses of the General Assembly would have to be present in Frankfort at the seat of government in order to properly be “convened” in response to a call for a special session. OAG 83-8 .

§ 38. Each House to judge qualifications, elections, and returns of its members — Contests.

Each House of the General Assembly shall judge of the qualifications, elections and returns of its members, but a contested election shall be determined in such manner as shall be directed by law.

NOTES TO DECISIONS

1.Construction.

Each house is empowered to judge of the qualifications, elections and returns of its members, which are judicial acts. Commissioners of Sinking Fund v. George, 104 Ky. 260 , 20 Ky. L. Rptr. 938 , 47 S.W. 779, 1898 Ky. LEXIS 211 ( Ky. 1 898 ), overruled in part, Pratt v. Breckinridge, 112 Ky. 1 , 23 Ky. L. Rptr. 1356 , 65 S.W. 136, 1901 Ky. LEXIS 286 ( Ky. 1901 ). See Purnell v. Mann, 105 Ky. 87 , 48 S.W. 407, 1898 Ky. LEXIS 244 ( Ky. 1898 ), overruled, Pratt v. Breckinridge, 112 Ky. 1, 65 S.W. 136, 23 Ky. L. Rptr. 1356 , 1901 Ky. LEXIS 286 ( Ky. 1901 ); Pratt v. Breckinridge, 112 Ky. 1, 65 S.W. 136, 23 Ky. L. Rptr. 1356, 1901 Ky. LEXIS 286 (Ky. 1901).

Any time, and at all times during the terms of office, each house is empowered to pass upon the present qualifications of its own members. Raney v. Stovall, 361 S.W.2d 518, 1962 Ky. LEXIS 246 ( Ky. 1962 ).

2.Candidates.

Law providing defeated primary election candidate could not have his name printed on ballot in November election as candidate for office for which he was defeated did not relate to qualifications of members of house or to contests of elections of such members and thus did not violate this section. Rosenberg v. Queenan, 261 S.W.2d 617, 1953 Ky. LEXIS 1025 ( Ky. 1953 ).

3.Contested Elections.

House, being sole judge of election and qualification of its members under this section, has implied power to take such proof and incur such expenses as may be reasonably necessary for it to decide election contest intelligently. Mercer v. Coleman, 227 Ky. 797 , 14 S.W.2d 144, 1929 Ky. LEXIS 975 ( Ky. 1929 ).

Votes cast for an unqualified candidate are not in and of themselves void. Where the disqualified candidate did in fact receive the most votes in this election, the fact that she has been disqualified does not render the other candidate the winner nor grant her a right to the office. Rather, the effect of the disqualification of a candidate subsequent to the election is that no election has occurred and the true and legitimate will of the people has not yet been expressed. Stephenson v. Woodward, 182 S.W.3d 162, 2005 Ky. LEXIS 391 ( Ky. 2005 ).

4.Judicial Review.

Courts have no power to inquire as to sufficiency of notice of contest or of evidence to support decision of legislature, or to inquire if contest board was fairly drawn by lot, or whether certain members of board were disqualified, the legislature having full power to finally determine such matters. Taylor v. Beckham, 108 Ky. 278 , 56 S.W. 177, 21 Ky. L. Rptr. 1735 , 1900 Ky. LEXIS 39 (Ky.), writ of error dismissed, 178 U.S. 548, 20 S. Ct. 890, 44 L. Ed. 1187, 1900 U.S. LEXIS 1702 (U.S. 1900).

KRS 118.176 permits a Circuit Court to consider and adjudicate challenges to a candidate’s bona fides that are commenced prior to the general election, and had jurisdiction to determine that due to that candidate’s failure to meet the residency requirements of Ky. Const., § 32, she was disqualified. Stephenson v. Woodward, 182 S.W.3d 162, 2005 Ky. LEXIS 391 ( Ky. 2005 ).

Cited:

In re Appointment of Clerk of Court of Appeals, 297 S.W.2d 764, 1957 Ky. LEXIS 357 ( Ky. 1957 ); Jackson v. Randolph, 311 S.W.2d 541, 1958 Ky. LEXIS 199 ( Ky. 1958 ).

Opinions of Attorney General.

Where a man was reelected state representative in the November 1971 election but in a special election in December 1971 was elected to congress and on December 7, 1971 sent a letter to the governor renouncing his intention of assuming office as state representative when the legislature convened on January 4, 1972 and the governor issued a writ of election for the office of state representative, such writ could cover only the unexpired term ending January 1, 1972 because one who has been elected to an office cannot resign the office until the time has arrived when he is entitled by law to possess it and has qualified and entered on its duties. However under this section, the final determination of whether the person elected at the special election held on December 28, 1971, in accordance with the governor’s writ, is entitled to serve in the regular term of the legislature beginning January 1, 1972 or for only the short time ending on January 1, 1972 would be in the hands of the house of representatives. OAG 72-3 .

Research References and Practice Aids

Cross-References.

Contest of election for general assembly, KRS 120.195 , 120.215 .

Kentucky Law Journal.

Salamanca & Keller, The Legislative Privilege to Judge the Qualifications, Elections, and Returns of Members., 95 Ky. L.J. 241 (2006/2007).

§ 39. Powers of each House as to rules and conduct of members — Contempt — Bribery.

Each House of the General Assembly may determine the rules of its proceedings, punish a member for disorderly behavior, and, with the concurrence of two-thirds, expel a member, but not a second time for the same cause, and may punish for contempt any person who refuses to attend as a witness, or to bring any paper proper to be used as evidence before the General Assembly, or either House thereof, or a Committee of either, or to testify concerning any matter which may be a proper subject of inquiry by the General Assembly, or offers or gives a bribe to a member of the General Assembly, or attempts by other corrupt means or device to control or influence a member to cast his vote or withhold the same. The punishment and mode of proceeding for contempt in such cases shall be prescribed by law, but the term of imprisonment in any such case shall not extend beyond the session of the General Assembly.

NOTES TO DECISIONS

1.Construction.

Legislature may perform judicial act of expelling members and punishing them for disorderly conduct. Commissioners of Sinking Fund v. George, 104 Ky. 260 , 20 Ky. L. Rptr. 938 , 47 S.W. 779, 1898 Ky. LEXIS 211 ( Ky. 1 898 ), overruled in part, Pratt v. Breckinridge, 112 Ky. 1 , 23 Ky. L. Rptr. 1356 , 65 S.W. 136, 1901 Ky. LEXIS 286 ( Ky. 1901 ). See Purnell v. Mann, 105 Ky. 87 , 48 S.W. 407, 1898 Ky. LEXIS 244 ( Ky. 1898 ), overruled, Pratt v. Breckinridge, 112 Ky. 1, 65 S.W. 136, 23 Ky. L. Rptr. 1356 , 1901 Ky. LEXIS 286 ( Ky. 1901 ); Pratt v. Breckinridge, 112 Ky. 1, 65 S.W. 136, 23 Ky. L. Rptr. 1356, 1901 Ky. LEXIS 286 (Ky. 1901).

Legislative Research Commission (LRC) erred in denying an open records request regarding a complaint made by an LRC staffer against a representative because provision did not shield disclosure of the documents. Hartz v. McClatchy Co., LLC, 2022 Ky. App. LEXIS 10 (Ky. Ct. App. Feb. 4, 2022).

2.Right to Punish.

This section granted permissive, not exclusive, right to legislature to try and punish offenders against its authority, such that action by legislature in this respect did not bar proceedings against such offenders in courts of law. Campbell v. Commonwealth, 229 Ky. 264 , 17 S.W.2d 227, 1929 Ky. LEXIS 756 ( Ky. 1929 ).

3.Rules of Proceedings.
4.— Political Question.

Determination of what is a “reasonable time” for a committee to retain proposed legislation under Senate Rule 48 is a political question, most appropriate for the Kentucky State Senate to determine. Philpot v. Haviland, 880 S.W.2d 550, 1994 Ky. LEXIS 57 ( Ky. 1994 ).

Cited:

In re Appointment of Clerk of Court of Appeals, 297 S.W.2d 764, 1957 Ky. LEXIS 357 ( Ky. 1957 ); Brown v. Barkley, 628 S.W.2d 616, 1982 Ky. LEXIS 232 ( Ky. 1982 ); Legislative Research Com. by Prather v. Brown, 664 S.W.2d 907, 1984 Ky. LEXIS 300 ( Ky. 1984 ); Philpot v. Patton, 837 S.W.2d 491, 1992 Ky. LEXIS 142 ( Ky. 1992 ).

Opinions of Attorney General.

The immunity from arrest and civil action afforded members of the General Assembly by section 43 of the constitution and KRS 6.050 does not bar the General Assembly, or a committee or subcommittee thereof, from issuing a subpoena against one of its members requiring his testimony at a legislative hearing, since a subpoena is not an arrest and the immunities granted do not operate as against the legislature. OAG 72-170 .

This section does not give the Senate the authority to adopt a rule of procedure that establishes any condition, restriction or limitation not contained in Const., § 46 that materially affects the right of an individual member, on his own initiative, to call out a bill. OAG 78-38 .

This section authorizes the Senate to adopt rules establishing procedures for the determination as to when a “reasonable time” has elapsed. OAG 78-65 .

Research References and Practice Aids

Cross-References.

Bribery, KRS 432.350 , 521.020 .

Contempt or breach of privilege, disobedient witnesses, attempt to corrupt member, KRS 6.070 to 6.131 .

§ 40. Journals — When vote to be entered.

Each House of the General Assembly shall keep and publish daily a journal of its proceedings; and the yeas and nays of the members on any question shall, at the desire of any two of the members elected, be entered on the journal.

NOTES TO DECISIONS

1.In General.

Journal of each house, when approved by the house itself, is entitled to same respect as any other of its official acts. Taylor v. Beckham, 108 Ky. 278 , 56 S.W. 177, 21 Ky. L. Rptr. 1735 , 1900 Ky. LEXIS 39 (Ky.), writ of error dismissed, 178 U.S. 548, 20 S. Ct. 890, 44 L. Ed. 1187, 1900 U.S. LEXIS 1702 (U.S. 1900).

2.Fraud.

Legislative journals purporting to contain record of proceedings of Legislature on trial of contested election for Governor and Lieutenant Governor cannot be impeached in courts for fraud since courts cannot invade a coordinate and independent department of government. Taylor v. Beckham, 108 Ky. 278 , 56 S.W. 177, 21 Ky. L. Rptr. 1735 , 1900 Ky. LEXIS 39 (Ky.), writ of error dismissed, 178 U.S. 548, 20 S. Ct. 890, 44 L. Ed. 1187, 1900 U.S. LEXIS 1702 (U.S. 1900).

3.Impeachment of Bills.

Bill properly enrolled and signed by presiding officer of both houses and signed and approved by Governor cannot be impeached by reference to journals of either house to show that enactment was not in conformity to all constitutional requirements. Lafferty v. Huffman, 99 Ky. 80 , 35 S.W. 123, 18 Ky. L. Rptr. 17 , 1896 Ky. LEXIS 56 ( Ky. 1896 ), overruled, D & W Auto Supply v. Department of Revenue, 602 S.W.2d 420, 1980 Ky. LEXIS 243 ( Ky. 1980 ). See Owensboro & N. R. Co. v. Barclay's Adm'r, 102 Ky. 16 , 43 S.W. 177, 19 Ky. L. Rptr. 997 , 1897 Ky. LEXIS 81 ( Ky. 1897 ); Taylor v. Beckham, 108 Ky. 278 , 56 S.W. 177, 21 Ky. L. Rptr. 17 35 , 1900 Ky. LEXIS 39 (Ky.), writ of error dismissed, 178 U.S. 548, 20 S. Ct. 890, 44 L. Ed. 1187, 1900 U.S. LEXIS 1702 (U.S. 1900).

4.Journals Silent.

Where journals are silent on the subject, it must be presumed that legislature heard evidence on trial of contested election. Taylor v. Beckham, 108 Ky. 278 , 56 S.W. 177, 21 Ky. L. Rptr. 1735 , 1900 Ky. LEXIS 39 (Ky.), writ of error dismissed, 178 U.S. 548, 20 S. Ct. 890, 44 L. Ed. 1187, 1900 U.S. LEXIS 1702 (U.S. 1900).

Cited:

Shanks v. Howes, 214 Ky. 613 , 283 S.W. 966, 1926 Ky. LEXIS 383 ( Ky. 1926 ); Eldred v. Commonwealth, 906 S.W.2d 694, 1994 Ky. LEXIS 122 ( Ky. 1994 ).

Research References and Practice Aids

Cross-References.

Duties of clerks as to journals, KRS 6.160 .

Persons entitled to copies of journals, KRS 57.310 .

Record of votes on bills, Const., § 46.

Kentucky Bench & Bar.

Toner and Call, Three Cases That Shaped Kentucky’s History, 56 Ky. Bench & B. 11.

§ 41. Adjournment during session.

Neither House, during the session of the General Assembly, shall, without the consent of the other, adjourn for more than three days, nor to any other place than that in which it may be sitting.

NOTES TO DECISIONS

1.Construction.

Either house, by virtue of this section, may, with consent of the other, adjourn for more than three (3) days, or to any other place than that in which it is sitting. Taylor v. Beckham, 108 Ky. 278 , 56 S.W. 177, 21 Ky. L. Rptr. 1735 , 1900 Ky. LEXIS 39 (Ky.), writ of error dismissed, 178 U.S. 548, 20 S. Ct. 890, 44 L. Ed. 1187, 1900 U.S. LEXIS 1702 (U.S. 1900).

Cited:

Chenault v. Carter, 332 S.W.2d 623, 1960 Ky. LEXIS 162 ( Ky. 1960 ).

Research References and Practice Aids

Cross-References.

Power of governor to adjourn, Const., § 80.

Kentucky Bench & Bar.

Toner and Call, Three Cases That Shaped Kentucky’s History, 56 Ky. Bench & B. 11.

§ 42. Compensation of members — Length of sessions — Legislative day.

The members of the General Assembly shall severally receive from the State Treasury compensation for their services: Provided, No change shall take effect during the session at which it is made; nor shall a session occurring in odd-numbered years extend beyond March 30; nor shall a session of the General Assembly occurring in even-numbered years continue beyond sixty legislative days, nor shall it extend beyond April 15. These limitations as to length of sessions shall not apply to the Senate when sitting as a court of impeachment. A legislative day shall be construed to mean a calendar day, exclusive of Sundays, legal holidays, or any day on which neither House meets.

History. Amendment proposed by Acts 2000, ch. 407, § 1, ratified November, 2000; repeal, proposed by Acts 2021, ch. 27, § 1, and is contingent upon ratification.

Compiler’s Notes.

1979 amendment was proposed by 1978 Ky. Acts ch. 440, § 3, and ratified on November 6, 1979.

The General Assembly in 2000 (Acts 2000, ch. 407, § 1) proposed an amendment to the Constitution which amendment was ratified by the voters at the regular election in November, 2000. Prior to the amendment the section read:

“§ 42. Compensation of members — Length of sessions — Legislative day.

The members of the General Assembly shall severally receive from the State Treasury compensation for their services: Provided, No change shall take effect during the session at which it is made; nor shall a session of the General Assembly continue beyond sixty legislative days, exclusive of Sundays, legal holidays or any day on which neither House meets, except that no regular session shall extend beyond April 15 of even-numbered years; but this limitation as to length of session shall not apply to the Senate when sitting as a court of impeachment. A legislative day shall be construed to mean a calendar day.”

The General Assembly in 1978 (Acts 1978, ch. 440, § 3) proposed an amendment to the Constitution which amendment was ratified by the voters at the regular election in November, 1979. Prior to the amendment this section read:

“§ 42. Compensation of members — Length of sessions — Legislative day.

The members of the General Assembly shall severally receive from the State Treasury compensation for their services, which shall be five dollars a day during their attendance on, and fifteen cents per mile for the necessary travel in going to and returning from, the sessions of their respective Houses: Provided, The same may be changed by law; but no change shall take effect during the session at which it is made; nor shall a session of the General Assembly continue beyond sixty legislative days, exclusive of Sundays and legal holidays; but this limitation as to length of session shall not apply to the first session held under this Constitution, nor to the Senate when sitting as a court of impeachment. A legislative day shall be construed to mean a calendar day.”

The following amendment was proposed by the 1972 general assembly (Acts 1972, ch. 375, § 1), was submitted to the voters for ratification or rejection at the regular election in November 1973 and was defeated:

“Section 42 The members of the General Assembly shall severally receive from the State Treasury compensation for their services, which shall be five dollars a day during their attendance on, and fifteen cents per mile for the necessary travel in going to and returning from, the sessions of their respective Houses: Provided, The same may be changed by law; but no change shall take effect during the session at which it is made; nor shall a session of the General Assembly continue beyond forty-five legislative days, which need not be consecutive; nor shall a session extend longer than six months after convening; but this limitation as to length of session shall not apply to the first session held under this Constitution, nor to the Senate when sitting as a court of impeachment. A legislative day shall be construed to mean a calendar day. Committees of the General Assembly may meet on any day which is not a Sunday or a legal holiday from the time a session is convened.”

NOTES TO DECISIONS

Cited:

Rhoads v. Miller, 298 Ky. 346 , 182 S.W.2d 248, 1944 Ky. LEXIS 855 ( Ky. 1944 ); Chenault v. Carter, 332 S.W.2d 623, 1960 Ky. LEXIS 162 ( Ky. 1960 ).

Decisions Under Prior § 42

1.Construction.

The regular sessions of the General Assembly are limited to 60 legislative days. Taylor v. Beckham, 108 Ky. 278 , 56 S.W. 177, 21 Ky. L. Rptr. 1735 , 1900 Ky. LEXIS 39 (Ky.), writ of error dismissed, 178 U.S. 548, 20 S. Ct. 890, 44 L. Ed. 1187, 1900 U.S. LEXIS 1702 (U.S. 1900). See Geneva Cooperage Co. v. Brown, 124 Ky. 16 , 98 S.W. 279, 30 Ky. L. Rptr. 272 , 1906 Ky. LEXIS 235 ( Ky. 1906 ).

2.Absence from Office.

No officer, including commonwealth’s attorney, is entitled to receive emoluments of office while absent therefrom during army service, in view of Const., §§ 42, 97, 98, 106, 108 and 235, together with KRS 61.120 and 64.410 . Whitworth v. Miller, 302 Ky. 24 , 193 S.W.2d 470, 1946 Ky. LEXIS 592 ( Ky. 1946 ) (decision prior to enactment of KRS 69.065 ).

3.Common Law.

Common-law rule that right of compensation is incidental to title to public office and not to performing functions of same, thereby entitling officer to receive emoluments under the office even though he performs no duties or services providing he does not abandon the office, was discarded upon adoption of the present constitution and the enactment of KRS 61.120 and 64.410 . Whitworth v. Miller, 302 Ky. 24 , 193 S.W.2d 470, 1946 Ky. LEXIS 592 ( Ky. 1946 ).

4.Impermissible Grant of Power.

KRS 7.100(8) which attempts to grant all authority constitutional and otherwise, express and inherent, save only the power to pass legislation to the General Assembly’s agent, the Legislative Research Commission (LRC), while the General Assembly is not in session, is an impermissible grant of power to the LRC under the separation of powers doctrine of Const., §§ 27 and 28; it also violates this section, in that such a provision brings new life to the General Assembly (through the LRC) following adjournment. Legislative Research Com. by Prather v. Brown, 664 S.W.2d 907, 1984 Ky. LEXIS 300 ( Ky. 1984 ).

Opinions of Attorney General.

Since an expense allowance is neither salary nor compensation, this section would not be applicable to prohibit the members of the general assembly from voting themselves an increased expense allowance to be effective in the same term. OAG 68-207 .

A statute properly drawn creating interim legislative committees of the General Assembly with powers to conduct research and inquire into and investigate matters leading to legislation is constitutionally permissible and committees so created could be given subpoena power to assist in performing their functions. OAG 75-391 .

Research References and Practice Aids

Cross-References.

Compensation of members, KRS 6.190 to 6.220 .

Deduction of compensation for failure to attend, KRS 61.150 .

Extraordinary sessions, governor may call, Const., § 80.

Speaker of house of representatives, office, compensation, expense, KRS 6.225 .

Kentucky Law Journal.

Snyder and Irland, The Separation of Governmental Powers Under the Constitution of Kentucky: A Legal and Historical Analysis of L.R.C. v. Brown, 73 Ky. L.J. 165 (1984-85).

Comments, Living Will Statutes: A Proposal for Kentucky, 75 Ky. L.J. 395 (1986-87).

§ 43. Privileges from arrest and from questioning as to speech or debate.

The members of the General Assembly shall, in all cases except treason, felony, breach or surety of the peace, be privileged from arrest during their attendance on the sessions of their respective Houses, and in going to and returning from the same; and for any speech or debate in either House they shall not be questioned in any other place.

NOTES TO DECISIONS

1.Immunity in General.

No Kentucky statute or court rule will override the immunity provided in this section. Wiggins v. Stuart, 671 S.W.2d 262, 1984 Ky. App. LEXIS 513 (Ky. Ct. App. 1984).

State and federal legislators are generally immune from civil or criminal actions for acts committed or statements made in their official capacities. Wiggins v. Stuart, 671 S.W.2d 262, 1984 Ky. App. LEXIS 513 (Ky. Ct. App. 1984).

2.Public Offense.

The language of the exception “treason, felony, breach or surety of the peace” was intended to exclude from legislative immunity, prosecution of all public offenses including a prosecution for breach of the peace. Swope v. Commonwealth, 385 S.W.2d 57, 1964 Ky. LEXIS 114 ( Ky. 1964 ).

3.Questioned in Another Place.

When legislators are sued in their official capacity on the basis of legislation which they acted upon, they are being “questioned in another place,” contrary to this section, for their legislative actions; the immunity of this section not only applies to speech and debate, but to voting, reporting, and every act in the execution of their legislative duties while in either house. Wiggins v. Stuart, 671 S.W.2d 262, 1984 Ky. App. LEXIS 513 (Ky. Ct. App. 1984).

4.Declaratory Judgment Suit.

Members of the Kentucky legislature are immune from a declaratory judgment suit, which is brought against them in their official capacity, when they are the beneficiaries of the subject matter of the suit. Wiggins v. Stuart, 671 S.W.2d 262, 1984 Ky. App. LEXIS 513 (Ky. Ct. App. 1984).

While the General Assembly, and not the governor, would be the logical party for the state employees to attack in their declaratory judgment suit for the General Assembly’s conduct in retroactively suspending a statute that would have given the state employees a five percent annual raise, no member of the General Assembly could be held liable for suspension of the statute because Ky. Const. § 43 prevented the state employees from seeking redress from the General Assembly members based on that section’s privileges and immunities clause. Baker v. Fletcher, 204 S.W.3d 589, 2006 Ky. LEXIS 153 ( Ky. 2006 ).

5.Voting on Executive Appointments.

Legislative immunity extends to the voting on executive appointments and that members of the Kentucky Senate cannot be sued for damages on the basis of their vote to confirm or reject such an appointee sent to them for confirmation. Kraus v. Kentucky State Senate, 872 S.W.2d 433, 1993 Ky. LEXIS 169 ( Ky. 1993 ), limited, Fox v. Grayson, 317 S.W.3d 1, 2010 Ky. LEXIS 88 ( Ky. 2010 ).

6.Legislative Immunity.

For the limited purpose of the Legislative Research Commission’s motion to dismiss, legislative immunity did not deprive the circuit court of jurisdiction to consider the complaint seeking messages from third parties maintained on the Legislative Message Line and Email Your Legislator services where the request sought communications made by third parties to a state representative, not records prepared by or communicated by the representative, and those messages were unconnected with the deliberative process of considering, passing, or rejecting legislation. The General Assembly had waived legislative immunity by establishing a mechanism for seeking open records and providing for judicial review. Legislative Research Comm'n v. Leightty, 2021 Ky. App. LEXIS 69 (Ky. Ct. App. May 21, 2021).

Legislative Research Commission (LRC) erred in denying an open records request regarding a complaint made by an LRC staffer against a representative because provision did not shield disclosure of the documents. Hartz v. McClatchy Co., LLC, 2022 Ky. App. LEXIS 10 (Ky. Ct. App. Feb. 4, 2022).

Cited:

Jacobs v. Underwood, 484 S.W.2d 855, 1972 Ky. LEXIS 158 ( Ky. 1972 ); D.F. Bailey, Inc. v. Grw Eng’rs, Inc., 350 S.W.3d 818, 2011 Ky. App. LEXIS 119 (Ky. Ct. App. 2011).

Opinions of Attorney General.

The immunity from arrest and civil action afforded members of the General Assembly by this section and KRS 6.050 does not bar the General Assembly, or a committee or subcommittee thereof, under Section 39 of the Constitution, from issuing a subpoena against one of its members requiring his testimony, since a subpoena is not an arrest and the immunities granted do not operate against the Legislature. OAG 72-170 .

Research References and Practice Aids

Cross-References.

Privilege from arrest or civil suit, KRS 6.050 .

Kentucky Law Journal.

Kentucky Law Survey, Grise, Torts, 71 Ky. L.J. 307 (1982-83).

§ 44. Ineligibility of members to civil office created or given increased compensation during term.

No Senator or Representative shall, during the term for which he was elected, nor for one year thereafter, be appointed or elected to any civil office of profit in this Commonwealth, which shall have been created, or the emoluments of which shall have been increased, during the said term, except to such offices as may be filled by the election of the people.

NOTES TO DECISIONS

1.Construction.

“Created” refers to the time of passage of an act, and not to its effective date. Meredith v. Kauffman, 293 Ky. 395 , 169 S.W.2d 37, 1943 Ky. LEXIS 635 ( Ky. 1943 ).

“During the term for which he was elected” means during the time he was in office. Meredith v. Kauffman, 293 Ky. 395 , 169 S.W.2d 37, 1943 Ky. LEXIS 635 ( Ky. 1943 ).

2.County Officials.

Where act creating office of assistant county attorney was passed, enrolled and signed by the presiding officers of the General Assembly before the date of a special election to fill a vacancy in the house, and was signed by the Governor before the member elected at such election was sworn in, such member was not barred by this section from being appointed to the office of assistant county attorney. Meredith v. Kauffman, 293 Ky. 395 , 169 S.W.2d 37, 1943 Ky. LEXIS 635 ( Ky. 1943 ).

3.School Officials.

Principal employed by trustees of graded common school district was not disqualified to contract with trustees, though he was at same time member of general assembly. Board of Trustees v. Renfroe, 259 Ky. 644 , 83 S.W.2d 27, 1935 Ky. LEXIS 370 ( Ky. 1935 ).

4.State Officials.

State fair board manager was public office within contemplation of this section. Taylor v. Commonwealth, 305 Ky. 75 , 202 S.W.2d 992, 1947 Ky. LEXIS 758 ( Ky. 1947 ).

Cited:

Rash v. Louisville & Jefferson County Metropolitan Sewer Dist., 309 Ky. 442 , 217 S.W.2d 232, 1949 Ky. LEXIS 670 ( Ky. 1949 ).

Opinions of Attorney General.

There is no constitutional or statutory conflict to prevent a state representative, as a major stockholder or an agent for a corporation which runs a rest home, to operate that rest home and accept indigent patients under contract from the county fiscal court. OAG 71-463 .

In view of this section and Sections 27 and 28 of the Constitution, a member of the General Assembly, during whose term the per diem compensation of members of the board of trustees of the Kentucky retirement system was increased, could not, while serving in the General Assembly, nor for one year thereafter, be appointed to that board under KRS 61.645 . OAG 72-458 .

Research References and Practice Aids

Cross-References.

Incompatible offices, Const., §§ 165, 237; KRS 61.080 .

§ 45. Collector of public money ineligible unless he has quietus.

No person who may have been a collector of taxes or public moneys for the Commonwealth, or for any county, city, town or district, or the assistant or deputy of such collector, shall be eligible to the General Assembly, unless he shall have obtained a quietus six months before the election for the amount of such collection, and for all public moneys for which he may have been responsible.

Research References and Practice Aids

Cross-References.

Quietus of tax collector, KRS 134.310 to 134.330 .

§ 46. Bills must be reported by committee, printed, and read — How bill called from committee — Votes required for passage.

No bill shall be considered for final passage unless the same has been reported by a committee and printed for the use of the members. Every bill shall be read at length on three different days in each House, but the second and third readings may be dispensed with by a majority of all the members elected to the House in which the bill is pending. But whenever a committee refuses or fails to report a bill submitted to it in a reasonable time, the same may be called up by any member, and be considered in the same manner it would have been considered if it had been reported. No bill shall become a law unless, on its final passage, it receives the votes of at least two-fifths of the members elected to each House, and a majority of the members voting, the vote to be taken by yeas and nays and entered in the journal: Provided, Any act or resolution for the appropriation of money or the creation of debt shall, on its final passage, receive the votes of a majority of all the members elected to each House.

NOTES TO DECISIONS

1.In General.

Act in question must be taken to have been passed in conformity to all the requirements of the constitution with reference to the enactment of laws. Wilson v. Hines, 99 Ky. 221 , 35 S.W. 627, 18 Ky. L. Rptr. 233 , 1896 Ky. LEXIS 77 ( Ky. 1896 ).

Ky. Const. § 46 is not a procedural rule or policy written and adopted by the legislature to perform its constitutional function; it is an explicit provision of the Kentucky Constitution. Bevin v. Commonwealth ex rel. Beshear, 563 S.W.3d 74, 2018 Ky. LEXIS 531 ( Ky. 2018 ).

Ky. Const. § 46 is not a rule of the General Assembly to be defined, interpreted, and applied exclusively by the General Assembly. Bevin v. Commonwealth ex rel. Beshear, 563 S.W.3d 74, 2018 Ky. LEXIS 531 ( Ky. 2018 ).

2.Purpose.

The purpose of this section, when read in relation with Const., § 37, is to prevent the enactment of a law by a majority of a bare quorum. Kirchdorfer v. Tincher, 204 Ky. 366 , 264 S.W. 766, 1924 Ky. LEXIS 458 ( Ky. 1924 ).

3.Construction.

Before a bill can become a law on its final passage, it must receive the votes of at least two-fifths (2/5) of the members elected to each house, and a majority of the members voting. Commissioners of Sinking Fund v. George, 104 Ky. 260 , 47 S.W. 779, 20 Ky. L. Rptr. 938 , 1898 Ky. LEXIS 211 ( Ky. 1898 ).

4.Appropriations.

In view of part of this section providing that appropriations must receive vote of majority of all members of each house, adherence to requirements of Const., § 51, providing that no law shall relate to more than one subject and that be expressed in its title, is of utmost importance in order that general assembly be fully informed when voting on act carrying appropriations. Bosworth v. State University, 166 Ky. 436 , 179 S.W. 403, 1915 Ky. LEXIS 705 ( Ky. 1915 ) ( Ky. 1915 ).

Law which created road commission and provided for salary of commissioner was not appropriation within contemplation of this section, since earlier law had already provided for appropriation and current law merely distributed it. Sibert v. Garrett, 197 Ky. 17 , 246 S.W. 455, 1922 Ky. LEXIS 639 ( Ky. 1922 ).

Since the former Litter Control Act, KRS 224.905 to 224.970 (repealed), placed an assessment of three cents per $100 on the gross proceeds of designated items by certain industries pursuant to KRS 224.955 (repealed) and directed the department of revenue to collect and disburse the moneys from a fund “within the state treasury” pursuant to KRS 224.965 (repealed), the act was clearly an appropriation act, and therefore was unconstitutional as violative of this section since it was passed by a vote of only 48 “yeas” in the House of Representatives, and did not receive the votes of a majority of the 100 members elected to the House. D & W Auto Supply v. Department of Revenue, 602 S.W.2d 420, 1980 Ky. LEXIS 243 ( Ky. 1980 ).

5.Impeachment of Bills.

A bill properly enrolled and signed by the presiding officer of each house and signed and approved by the governor cannot be impeached by reference to journals of either house to show that vote was not taken by yeas and nays as required by this section. Lafferty v. Huffman, 99 Ky. 80 , 35 S.W. 123, 18 Ky. L. Rptr. 17 , 1896 Ky. LEXIS 56 ( Ky. 1896 ), overruled, D & W Auto Supply v. Department of Revenue, 602 S.W.2d 420, 1980 Ky. LEXIS 243 ( Ky. 1980 ). See Commonwealth v. Hardin County Court, 99 Ky. 188 , 35 S.W. 275, 18 Ky. L. Rptr. 113 , 1896 Ky. LEXIS 67 ( Ky. 1896 ); Waller v. Murray, 53 S.W. 25, 21 Ky. L. Rptr. 783 , 1899 Ky. LEXIS 546 (Ky. Ct. App. 1899); Stone v. Dispatch Pub. Co., 55 S.W. 725, 21 Ky. L. Rptr. 1473 , 1900 Ky. LEXIS 536 (Ky. Ct. App. 1900); State Board of Charities & Corrections v. Hays, 190 Ky. 147 , 227 S.W. 282, 1920 Ky. LEXIS 554 ( Ky. 1920 ); McIntyre v. Commonwealth, 221 Ky. 16 , 297 S.W. 931, 1927 Ky. LEXIS 655 ( Ky. 1927 ), limited, Hill v. Taylor, 264 Ky. 708 , 95 S.W.2d 566, 1936 Ky. LEXIS 388 ( Ky. 1936 ).

6.Municipal Bodies.

The provisions of this section do not apply to proceedings in municipal legislative bodies. Cumberland Tel. & Tel. Co. v. Hickman, 129 Ky. 220 , 111 S.W. 311, 33 Ky. L. Rptr. 730 , 1908 Ky. LEXIS 156 ( Ky. 1908 ).

7.Presumptions.

That a bill which has been enrolled and properly signed was reported by a committee, and printed for use of members, before considered for final passage, as required by this section, cannot be questioned. Stone v. Dispatch Pub. Co., 55 S.W. 725, 21 Ky. L. Rptr. 1473 , 1900 Ky. LEXIS 536 (Ky. Ct. App. 1900).

8.Reading of Bills.

Three-day reading requirement in this section did not bar first reading of bill in one house on same day such bill passed other house. Kavanaugh v. Chandler, 255 Ky. 182 , 72 S.W.2d 1003, 1934 Ky. LEXIS 187 ( Ky. 1934 ).

Supreme Court of Kentucky does not purport to state all the ways by which a bill may be read in compliance with Ky. Const. § 46, nor does it conclude that there is only one way that a bill can be read in compliance with § 46. The Court is satisfied that the common legislative practice of reading only the title of the bill and electronically publishing simultaneously the full text of the bill to the electronic legislative journal available on every legislator’s desk satisfies the constitutional mandate of § 46. Bevin v. Commonwealth ex rel. Beshear, 563 S.W.3d 74, 2018 Ky. LEXIS 531 ( Ky. 2018 ).

Ky. Const. § 51 requires that every law enacted by the General Assembly shall relate to only one subject and that subject shall be expressed in the title. A fundamental premise underlying the holding that reading a bill by title only is an appropriate mode of compliance with Ky. Const. § 46’s mandate to read a bill at length is the assumption that the title so read is germane to the law being enacted. Bevin v. Commonwealth ex rel. Beshear, 563 S.W.3d 74, 2018 Ky. LEXIS 531 ( Ky. 2018 ).

Requiring every bill to be read aloud in its entirety in each legislative chamber would be an absurd construction of Ky. Const. § 46; reading the bill by title only is sufficient. But, it is equally absurd to suggest that § 46 is satisfied by reading the title of a bill that has absolutely nothing to do with the subject matter of the bill. Bevin v. Commonwealth ex rel. Beshear, 563 S.W.3d 74, 2018 Ky. LEXIS 531 ( Ky. 2018 ).

Supreme Court of Kentucky has no quarrel with the use of a committee substitute to change the language of legislation as it navigates the legislative process. The procedure itself is a matter beyond the Supreme Court’s sphere of authority. The Court’s opinion is directed to the question of whether the reading of a bill by title only can satisfy the constitutional requirement of Ky. Const. § 46 when the title so read has absolutely nothing to do with the substance of the bill. The Court can accept the argument of practicality that the reading of a bill by title only would achieve the framers’ purpose for § 46. But, essential to the validity of that argument is the premise that the title of the bill is germane to the subject of the bill so that the reading by title only triggers some recognition of the bill’s contents. Bevin v. Commonwealth ex rel. Beshear, 563 S.W.3d 74, 2018 Ky. LEXIS 531 ( Ky. 2018 ).

Purpose of Ky. Const. § 46 was not simply to ensure that legislators knew what they were voting on. Rather, the purpose was to ensure that every legislator had a fair opportunity to fully consider each piece of legislation that would be brought to a vote. That purpose cannot be achieved by reading a bill only by its title which has no rational relationship to the subject of the law being enacted. The “reading” of Senate Bill 151 (2018) failed to comply even with this minimal requirement of § 46. Consequently, the enactment of Senate Bill 151 was contradictory to the Kentucky Constitution and is hereby declared void and of no effect. Bevin v. Commonwealth ex rel. Beshear, 563 S.W.3d 74, 2018 Ky. LEXIS 531 ( Ky. 2018 ).

9.Evidence.

Courts will not look at journals of the general assembly to ascertain if a bill was read at length on three different days in each house. Lafferty v. Huffman, 99 Ky. 80 , 35 S.W. 123, 18 Ky. L. Rptr. 17 , 1896 Ky. LEXIS 56 ( Ky. 1896 ), overruled, D & W Auto Supply v. Department of Revenue, 602 S.W.2d 420, 1980 Ky. LEXIS 243 ( Ky. 1980 ).

Legislative journals are not admissible to show that statute was not passed in conformity to constitutional requirements, the enrolled bill, when properly attested by presiding officers of both houses, being conclusive. Owensboro & N. R. Co. v. Barclay's Adm'r, 102 Ky. 16 , 43 S.W. 177, 19 Ky. L. Rptr. 997 , 1897 Ky. LEXIS 81 ( Ky. 1897 ).

10.Report of Bill.
11.— Reasonable Time.

Senate Rule 48 did not violate this section for the reason that the rule leaves to majority vote of the entire Senate the resolution of the question as to whether a committee has failed to report a bill “in a reasonable time.” Philpot v. Haviland, 880 S.W.2d 550, 1994 Ky. LEXIS 57 ( Ky. 1994 ).

Cited:

Shanks v. Howes, 214 Ky. 613 , 283 S.W. 966, 1926 Ky. LEXIS 383 ( Ky. 1926 ); Philpot v. Patton, 837 S.W.2d 491, 1992 Ky. LEXIS 142 ( Ky. 1992 ).

Opinions of Attorney General.

Although Const., § 39 gives each house the power to enact rules of procedure, it does not give the Senate the authority to adopt a rule of procedure that establishes any condition, restriction or limitation not contained in this section that materially affects the right of an individual member, on his own initiative, to call out a bill. OAG 78-38 .

Notwithstanding the fact that KRS 164.475 apparently failed to pass by virtue of a 40-40 vote in the Kentucky house, an enrolled bill, properly attested by the presiding officer of each house of the General Assembly, is conclusive of the regularity of the steps taken in its passage, and cannot be impeached by the journal of either house or in any other manner. OAG 78-576 .

Since Acts 1990, chapter 476, does not contain a provision for the appropriation of money or the creation of debt, it would not come within the purview of this section. OAG 90-29 .

Research References and Practice Aids

Cross-References.

Printing of bills, KRS 57.011 .

When vote to be entered in journal, Const., § 40.

Kentucky Law Journal.

Snyder and Irland, The Separation of Governmental Powers Under the Constitution of Kentucky: A Legal and Historical Analysis of L.R.C. v. Brown, 73 Ky. L.J. 165 (1984-85).

§ 47. Bills to raise revenue must originate in House of Representatives.

All bills for raising revenue shall originate in the House of Representatives, but the Senate may propose amendments thereto: Provided, No new matter shall be introduced, under color of amendment, which does not relate to raising revenue.

NOTES TO DECISIONS

1.Construction.

The words “bills for raising revenue” are confined to bills to levy taxes in the strict sense of the word, and do not embrace bills for other purposes which incidentally create revenue, unless so framed as to draw money from the people, with no other advantage or benefit to them except general protection which belongs to citizen as a matter of right. Central Const. Co. v. Lexington, 162 Ky. 286 , 172 S.W. 648, 1915 Ky. LEXIS 62 ( Ky. 1915 ).

2.Applicability.

A bill which includes a taxation scheme as an incidental part of its overall purpose is outside the realm of § 47. Yeoman v. Commonwealth Health Policy Bd., 983 S.W.2d 459, 1998 Ky. LEXIS 140 ( Ky. 1998 ).

3.Local Taxation.

It was not violative of this section for senate to originate bill concerning sheriff’s school tax collection duty. Livingston County v. Dunn, 244 Ky. 460 , 51 S.W.2d 450, 1932 Ky. LEXIS 453 ( Ky. 1932 ).

Act conferring power upon county boards of education and fiscal courts to levy school tax within prescribed limits, none of which money ever finds its way into state treasury, but is used solely for benefit of local schools, is not revenue measure which must originate in house of representatives. Cassady v. Oldham County, 246 Ky. 772 , 246 Ky. 773 , 56 S.W.2d 368, 1933 Ky. LEXIS 25 ( Ky. 1933 ).

An act bringing into existence a local government, with power to impose tax for municipal purposes, together with all machinery necessary to run it, being local in nature and in aid of local interests, may originate in either house. Cassady v. Oldham County, 246 Ky. 772 , 246 Ky. 773 , 56 S.W.2d 368, 1933 Ky. LEXIS 25 ( Ky. 1933 ).

4.Occupational License Tax.

Bill originating in senate providing that everyone engaged in compounding or blending distilled spirits should pay license tax of so much per barrel sold, and that a report should be delivered to auditor of public accounts by anyone so engaged showing amount of such spirits sold, who should “at same time pay the amount of taxes due the state as imposed by this act,” was void under this section as bill for raising revenue, rather than police regulation with revenue as an incidental feature. H. A. Thierman Co. v. Commonwealth, 123 Ky. 740 , 97 S.W. 366, 30 Ky. L. Rptr. 72 , 1906 Ky. LEXIS 208 (Ky. Ct. App. 1906).

Act requiring real estate agents in cities to pay license tax is a revenue measure, the occupation being essentially a harmless one and not within police power of state. Hager v. Walker, 128 Ky. 1 , 107 S.W. 254, 32 Ky. L. Rptr. 748 , 1908 Ky. LEXIS 29 ( Ky. 1 908 ).

5.Raising Revenue.

Act to regulate admission of inmates to house of reform, which required county to pay into state treasury $100 for maintenance of each child, though originating in senate, did not violate this section since the term “bills for raising revenue” is confined to bills for levy of taxes in strict sense of the word. Lang v. Commonwealth, 190 Ky. 29 , 226 S.W. 379, 1920 Ky. LEXIS 543 ( Ky. 1920 ).

A bill, to be a revenue measure within the meaning of this section, must be a revenue measure in the strictest sense of the word and not only incidentally such a bill. Livingston County v. Dunn, 244 Ky. 460 , 51 S.W.2d 450, 1932 Ky. LEXIS 453 ( Ky. 1932 ).

Raising revenue meant levying tax in order to collect revenue. Dalton v. State Property & Bldgs. Com., 304 S.W.2d 342, 1957 Ky. LEXIS 276 ( Ky. 1957 ).

Use of license, excise taxes and fees to pay bond issue debt was not raising revenue under this section. Dalton v. State Property & Bldgs. Com., 304 S.W.2d 342, 1957 Ky. LEXIS 276 ( Ky. 1957 ).

Senate could originate bill concerning bond issue submission to voters without violating revenue-raising provision of this section. Walton v. Carter, 337 S.W.2d 674, 1960 Ky. LEXIS 363 ( Ky. 1960 ).

6.Introduction of Budget.

The former provisions of KRS 48.310 , which required the budget to be introduced as a joint resolution, rather than as a bill, flew directly in the face of the provisions of Const., § 88 and this section, and were therefore, unconstitutional to that extent. Legislative Research Com. by Prather v. Brown, 664 S.W.2d 907, 1984 Ky. LEXIS 300 ( Ky. 1984 ) (Decision prior to 1984 amendment of KRS 48.310 ).

7.Amendments Not Relating to Raising Revenue.

Since KRS 243.892 , which was enacted by Chapter 390 of 1982 and was entitled “An Act Relating to Revenue and Taxation,” does not relate to the subject matter of revenue and taxation, it is unconstitutional for violating this section, which deals specifically with revenue raising bills and prohibits the Senate from attaching amendments which do not relate to that subject matter. Farris v. Shoppers Village Liquors, Inc., 669 S.W.2d 213, 1984 Ky. LEXIS 236 ( Ky. 1984 ).

8.Powers to Tax.
9.— Exercise.

The Legislature’s power to tax cannot be exercised by either the executive or judicial branches. St. Ledger v. Revenue Cabinet, 942 S.W.2d 893, 1997 Ky. LEXIS 17 ( Ky. 1997 ), modified, 1997 Ky. LEXIS 45 (Ky. Apr. 24, 1997), reprinted, 942 S.W.2d 893 ( Ky. 1997 ), limited, Dawson v. Birenbaum, 968 S.W.2d 663, 1998 Ky. LEXIS 56 ( Ky. 1998 ).

Cited:

Louisville v. Miller, 697 S.W.2d 164, 1985 Ky. App. LEXIS 646 (Ky. Ct. App. 1985).

Opinions of Attorney General.

Any bill which can appropriately be considered a revenue measure must be introduced in the House of Representatives, irrespective of whether such bill increases or reduces the tax rate. OAG 79-26 .

The primary purpose of Acts 1990, chapter 476, is the reform of the system of common schools and the revenue produced by the bill is incidental and integral thereto. Consequently, it would appear that Acts 1990, chapter 476 is not “a bill for raising revenue” as that term is used in this section. Therefore, the Senate may offer amendments to the bill which do not relate to raising revenue. OAG 90-29 .

§ 48. Resources of Sinking Fund not to be diminished — Preservation of fund.

The General Assembly shall have no power to enact laws to diminish the resources of the Sinking Fund as now established by law until the debt of the Commonwealth be paid, but may enact laws to increase them; and the whole resources of said fund, from year to year, shall be sacredly set apart and applied to the payment of the interest and principal of the State debt, and to no other use or purpose, until the whole debt of the State is fully satisfied.

NOTES TO DECISIONS

1.Reconstruction of State Buildings.

Under this section sinking fund commissioners could not diminish sinking fund to reconstruct burned college dormitory, even in emergency, and neither could they authorize college trustees to reconstruct such dormitory at state’s expense. Rhoads v. Fields, 219 Ky. 303 , 292 S.W. 809, 1927 Ky. LEXIS 321 ( Ky. 1927 ).

§ 49. Power to contract debts — Limit.

The General Assembly may contract debts to meet casual deficits or failures in the revenue; but such debts, direct or contingent, singly or in the aggregate, shall not at any time exceed five hundred thousand dollars, and the moneys arising from loans creating such debts shall be applied only to the purpose or purposes for which they were obtained, or to repay such debts: Provided, The General Assembly may contract debts to repel invasion, suppress insurrection, or, if hostilities are threatened, provide for the public defense.

NOTES TO DECISIONS

1.In General.

The Constitution does not restrict the debt-creating power of state, but at most merely regulates the power by this section and by Const., § 50. Rhea v. Newman, 153 Ky. 604 , 156 S.W. 154, 1913 Ky. LEXIS 900 ( Ky. 1913 ).

Legislature was limited to raising money by either taxation under Const., § 171 or borrowing pursuant to this section and Const., § 50. Stanley v. Townsend, 170 Ky. 833 , 186 S.W. 941, 1916 Ky. LEXIS 143 ( Ky. 1916 ).

Neither this section nor Const., § 50 was repealed by implication by Const., § 157a. Crick v. Rash, 190 Ky. 820 , 229 S.W. 63, 1921 Ky. LEXIS 516 ( Ky. 1921 ).

This section and Const., § 50 strictly limit the power of the General Assembly to financially obligate future General Assemblies without the permission of the people by means of a direct vote. Hayes v. State Property & Bldgs. Com., 731 S.W.2d 797, 1987 Ky. LEXIS 217 ( Ky. 1987 ).

2.Application.

This section is limitation upon power of General Assembly to provide for future deficits, and has no reference to debts created prior to adoption of Constitution, as they already exceeded that limit; therefore an act providing for issuing of bonds to amount of $500,000 to meet deficit was valid without regard to indebtedness existing at time of adoption of Constitution, being first exercise of authority under this section. Eastern Kentucky Asylum for Insane v. Bradley, 101 Ky. 551 , 41 S.W. 556, 19 Ky. L. Rptr. 750 , 1897 Ky. LEXIS 217 ( Ky. 1897 ).

Prohibition in this section does not apply to debts existing at time Constitution was adopted, and former floating indebtedness in excess of $500,000 may be bonded by legislature without vote of the people. Rhea v. Newman, 153 Ky. 604 , 156 S.W. 154, 1913 Ky. LEXIS 900 ( Ky. 1913 ).

It was general rule that obligation for which appropriation was made at time of its creation from funds already in existence, or prospective and subject to appropriation, was not within operation of limitation of indebtedness. Estill County v. Noland, 295 Ky. 753 , 175 S.W.2d 341, 1943 Ky. LEXIS 324 ( Ky. 1943 ).

3.Annual Payments.

Validity of appropriation beyond $500,000 depends on character of appropriation or manner of its payment and where its payment runs over a period of years and part payable in any one year does not exceed $500,000, the appropriation does not violate this section regardless of its character, and where the appropriation when added to prior like appropriation exceeds the limit, its character must be considered to determine whether it is within the prohibition. Rhea v. Newman, 153 Ky. 604 , 156 S.W. 154, 1913 Ky. LEXIS 900 ( Ky. 1913 ).

4.Bond Issuance.

Proposal for issuance of bridge construction bonds, to be paid from bridge tolls, was not violative of this section as obligation of Commonwealth. Estes v. State Highway Com., 235 Ky. 86 , 29 S.W.2d 583, 1930 Ky. LEXIS 292 ( Ky. 1930 ).

Where highway commission contracted to issue and sell bonds for bridge revenue, obligating its general fund, and including obligation for deficiency appropriation in next budget as well as for setting up of fund for future deficiencies, such contract was violative of this section as exceeding debt limitation. State Highway Com. v. King, 259 Ky. 414 , 82 S.W.2d 443, 1935 Ky. LEXIS 317 ( Ky. 1935 ).

Where legislature provided for erection and financing of state university buildings, bonds issued pursuant thereto by university trustees did not create state indebtedness contrary to this section. J. D. Van Hooser & Co. v. University of Kentucky, 262 Ky. 581 , 90 S.W.2d 1029, 1936 Ky. LEXIS 76 ( Ky. 1936 ).

Since law relating to state unemployment compensation commission expressly provided that issuance of bonds by commission to defray cost of acquiring building and site should not constitute indebtedness of such commission or Commonwealth, such bonds did not constitute state debt within meaning of this section or Const., § 50. Meagher v. Commonwealth, 305 Ky. 289 , 203 S.W.2d 35, 1947 Ky. LEXIS 784 ( Ky. 1947 ).

Debt as contemplated by this section would arise from contract under which there was unconditional entitlement to receive and obligation to pay on part of creditor and debtor respectively, and revenue bond issuance by state agency for erection of building for state use, payable solely from building income, was not such debt. Preston v. Clements, 313 Ky. 479 , 232 S.W.2d 85, 1950 Ky. LEXIS 902 ( Ky. 1950 ).

Neither KRS 177.480 , which authorized the Department of Highways to covenant, in an agreement securing revenue bonds, to pay the cost of maintaining, repairing and operating any project constructed under the provisions of KRS 177.390 to 177.570 , nor the contract for the issuance of the bonds for a particular toll road project which provided the tolls and other revenue should first be used for the retirement of the bonds and then for the cost of maintenance and cost of operation, and that if the tolls were insufficient, maintenance and cost of operation would be paid out of the state road fund, created an unconstitutional debt of the Commonwealth. Guthrie v. Curlin, 263 S.W.2d 240, 1953 Ky. LEXIS 1238 (Ky. Ct. App. 1953).

Resolution of state agency authorizing 3.5 million dollar revenue bond issue for maintenance, repair, and insurance costs of state park system did not constitute creation of debt in violation of limitation in this section, since procurement and maintenance of public parks were governmental functions. Kentucky Lake Vacation Land, Inc. v. State Property & Bldgs. Com., 333 S.W.2d 779, 1960 Ky. LEXIS 212 ( Ky. 1960 ).

Since the law creating the bond authority declared the bonds not to be obligations of the Commonwealth and that each bond should state on its face that it did not constitute a debt of the Commonwealth, the bonds were revenue bonds, and thus the issuance of such bonds by the bond authority, not being a general obligation of the Commonwealth, did not violate the constitutional provision. Pardue v. Kentucky Sav. Bond Authority, 515 S.W.2d 89, 1974 Ky. LEXIS 193 ( Ky. 1974 ).

5.Borrowing.

Money could be borrowed under this section to meet deficits pursuant to Const., § 171. Stanley v. Townsend, 170 Ky. 833 , 186 S.W. 941, 1916 Ky. LEXIS 143 ( Ky. 1916 ).

When highway commission borrowed money from county, debt of state thereby created was valid under this section if state treasury contained sufficient funds not otherwise appropriated out of which such debt could be paid, or if treasury would contain such funds during year of debt contract. Crick v. Rash, 190 Ky. 820 , 229 S.W. 63, 1921 Ky. LEXIS 516 ( Ky. 1921 ).

6.Casual Deficits.

If Legislature overestimated revenue available and failed to provide for sufficient funds to carry out appropriations, warrants issued against them by auditor were valid assignments of such appropriations and valid evidence of casual deficits within meaning of this section and Const., § 50. State Budget Com. v. Lebus, 244 Ky. 700 , 51 S.W.2d 965, 1932 Ky. LEXIS 502 ( Ky. 1932 ).

Terms “casual deficits” and “failures in the revenue,” as used in this section and Const., § 50, were synonymous and meant deficits happening by chance or accident and without any intent to avoid constitutional inhibitions of state against incurring unauthorized expenditures of funds over certain amount. State Budget Com. v. Lebus, 244 Ky. 700 , 51 S.W.2d 965, 1932 Ky. LEXIS 502 ( Ky. 1932 ).

Terms “casual deficits” and “failures in the revenue” used in this section were made part of Const., § 50 by its reference to this section. State Budget Com. v. Lebus, 244 Ky. 700 , 51 S.W.2d 965, 1932 Ky. LEXIS 502 ( Ky. 1932 ).

The term “casual deficit” is synonymous with “failures in the revenue.” Swinburne v. Newport, 297 Ky. 820 , 181 S.W.2d 421, 1944 Ky. LEXIS 821 ( Ky. 1944 ).

7.Condemnation.

Legislative provision for condemnation by highway commission with compensation for property or privileges thus taken was not violative of this section as authorizing or creating debt on part of state. Bloxton v. State Highway Com., 225 Ky. 324 , 8 S.W.2d 392, 1928 Ky. LEXIS 762 ( Ky. 1928 ).

8.Debt.

Whether an appropriation is a debt within this section depends on the character of the appropriation and the manner of its payment. James v. State University, 131 Ky. 156 , 114 S.W. 767, 1908 Ky. LEXIS 118 ( Ky. 1908 ).

Appropriation which merely authorizes payment of a gratuity, or which is made in support of one of state institutions, or to create or maintain part of state government, or to defray ordinary or current expenses of state, is not a debt within meaning of this section. Rhea v. Newman, 153 Ky. 604 , 156 S.W. 154, 1913 Ky. LEXIS 900 ( Ky. 1913 ).

Prohibition in this section against contracting state debts exceeding $500,000 does not embrace ordinary expenses of government, and executive and judicial offices of state, penal and charitable institutions, public schools and other public institutions must be maintained regardless of condition of treasury. Rhea v. Newman, 153 Ky. 604 , 156 S.W. 154, 1913 Ky. LEXIS 900 ( Ky. 1913 ).

Fact that auditor issued warrant for legislative appropriation did not per se create debt in contravention of this section. Stanley v. Townsend, 170 Ky. 833 , 186 S.W. 941, 1916 Ky. LEXIS 143 ( Ky. 1916 ).

Legislative provision for exceeding debt limitation pursuant to this section could not become effective until ratification by majority of voters in general election. Stanley v. Townsend, 170 Ky. 833 , 186 S.W. 941, 1916 Ky. LEXIS 143 ( Ky. 1916 ).

Ordinary state government expenses as shown by auditor’s warrants were not debts within contemplation of this section. Stanley v. Townsend, 170 Ky. 833 , 186 S.W. 941, 1916 Ky. LEXIS 143 ( Ky. 1916 ).

Appropriations and obligations other than government expenses constituted indebtedness under this section to extent that they exceeded revenue in same fiscal year. Billeter & Wiley v. State Highway Com., 203 Ky. 15 , 261 S.W. 855, 1924 Ky. LEXIS 847 ( Ky. 1924 ).

Provision of KRS 175.410 to 175.990 , authorizing covenant by highway department to make up any deficiency of revenues of turnpike project from funds or tax revenues available for its general purposes and not required by law to be devoted to some other purpose, created debt in violation of this section. Turnpike Authority of Kentucky v. Wall, 336 S.W.2d 551, 1960 Ky. LEXIS 331 ( Ky. 1960 ).

Economic Development Road Revenue Bonds (Revitalization Projects) Series 1990, as authorized by KRS 175.750 through 175.810 , which provide for the construction and reconstruction of roads through a lease arrangement between the Turnpike Authority of Kentucky and the Kentucky Transportation Cabinet were not unconstitutional; the issuance of such bonds paid for by lease rental payments did not represent a debt of the Commonwealth because neither the full faith and credit, nor the taxing authority of the Commonwealth was pledged to the payment of the principal or interests of the bonds. Wilson v. Kentucky Transp. Cabinet, 884 S.W.2d 641, 1994 Ky. LEXIS 108 ( Ky. 1994 ).

9.Federal Loans.

Where Commonwealth transferred tuberculosis sanatorium to board of health, such board’s pledge of property as security for loan from federal government did not constitute debt against Commonwealth as contemplated by this section. Hughes v. State Board of Health, 260 Ky. 228 , 84 S.W.2d 52, 1935 Ky. LEXIS 443 ( Ky. 1935 ).

Where state agency obtained federal loan, requirement that state treasurer pay interest thereon was valid if interest was not in excess of $500,000. Hughes v. State Board of Health, 260 Ky. 228 , 84 S.W.2d 52, 1935 Ky. LEXIS 443 ( Ky. 1935 ).

10.Interest.

Statutes providing that unpaid warrants on state treasurer shall bear interest do not violate this section. Rhea v. Newman, 153 Ky. 604 , 156 S.W. 154, 1913 Ky. LEXIS 900 ( Ky. 1913 ).

Interest did not constitute debt within this section where it would not become due until some future time. Dalton v. State Property & Bldgs. Com., 304 S.W.2d 342, 1957 Ky. LEXIS 276 ( Ky. 1957 ).

11.Lease to State Agency.

Law by which state agency was required to enter into lease for period of years with absolute obligation to pay rental out of its resources as they became available was violative of this section and Const., § 50 in creating state debt. Curlin v. Wetherby, 275 S.W.2d 934, 1955 Ky. LEXIS 401 ( Ky. 1955 ).

Fact that highway department’s lease renewal was automatic absent affirmative termination action did not make such lease long-term obligation so as to violate this section or Const., § 50. Turnpike Authority of Kentucky v. Wall, 336 S.W.2d 551, 1960 Ky. LEXIS 331 ( Ky. 1960 ).

To extent that highway department was authorized by KRS 175.410 to 175.990 to obligate all or any part of its previous unencumbered revenues anticipated for two (2) year periods, there was no question of validity, but if renewal or lease, however effected, committed general revenues of department for more funds than could be properly anticipated during period of extension, it would be a void renewal, since it would attempt more than Legislature itself had right to do. Turnpike Authority of Kentucky v. Wall, 336 S.W.2d 551, 1960 Ky. LEXIS 331 ( Ky. 1960 ).

12.Real Estate.

Act providing that when any public improvement ordered to be constructed in city of first class is such as may be lawfully constructed at cost of owners of adjacent land, the cost shall be apportioned against real estate owned by state in like manner as against other land does not violate this section. Hager v. Gast, 119 Ky. 502 , 84 S.W. 556, 27 Ky. L. Rptr. 129 , 1905 Ky. LEXIS 25 ( Ky. 1905 ).

13.Revenue.

Revenues of state, assessed and in process of collection, may be considered as constructively in treasury, and may be appropriated and treated as though actually and physically there, and an appropriation of them is not incurring of indebtedness within this section. Rhea v. Newman, 153 Ky. 604 , 156 S.W. 154, 1913 Ky. LEXIS 900 ( Ky. 1913 ).

14.Schools.

Act appropriating $200,000 for buildings for state educational institutions, to be paid in three equal sums in three successive years, and $70,000 for their current expenses of the year and for each succeeding year, did not violate this section, it not appearing that when payments were to be made there would be such a deficit. James v. State University, 131 Ky. 156 , 114 S.W. 767, 1908 Ky. LEXIS 118 ( Ky. 1908 ).

Law which provided for purchase of common school textbooks did not unconstitutionally exceed debt limitation in this section. State Board of Education v. Kenney, 230 Ky. 287 , 18 S.W.2d 1114, 1929 Ky. LEXIS 71 ( Ky. 1929 ).

15.Sinking Fund.

Legislative provision for borrowing of money by commissioners of sinking fund to pay warrants issued by auditor, anticipatory of current fiscal year revenues, to be paid by issuance of warrants or negotiable certificates was violation of this section and Const., § 50. Stanley v. Townsend, 170 Ky. 833 , 186 S.W. 941, 1916 Ky. LEXIS 143 ( Ky. 1916 ).

16.State Institutions.

Act appropriating $30,000 for paying off indebtedness of state fair is not within this section, since appropriation is for state institution. Rhea v. Newman, 153 Ky. 604 , 156 S.W. 154, 1913 Ky. LEXIS 900 ( Ky. 1913 ).

Act making appropriation for agricultural experiment station of state university is not within the prohibition of this section limiting amount of indebtedness which assembly may contract. Bosworth v. State University, 154 Ky. 370 , 157 S.W. 913, 1913 Ky. LEXIS 97 ( Ky. 1913 ).

17.Taxation.

This section, when read in connection with Const., §§ 50 and 171, constitutes a rule for conduct of state’s finances, and the Legislature should levy additional taxes to meet additional appropriations. Rhea v. Newman, 153 Ky. 604 , 156 S.W. 154, 1913 Ky. LEXIS 900 ( Ky. 1913 ).

Only limitation on Legislature in tax levies or expenditures was debt limitation in this section. Billeter & Wiley v. State Highway Com., 203 Ky. 15 , 261 S.W. 855, 1924 Ky. LEXIS 847 ( Ky. 1924 ).

This section and Const., § 50 in no way limited authority of Legislature to provide by general law for levy and collection of taxes under Const., § 171 for purpose of meeting appropriations. State Budget Com. v. Lebus, 244 Ky. 700 , 51 S.W.2d 965, 1932 Ky. LEXIS 502 ( Ky. 1932 ).

Gasoline tax and other motor vehicle taxes were considered as sources of public revenue and not special private funds, since they were collected from public generally, and thus were subject to debt prohibitions in this section and Const., § 50. Curlin v. Wetherby, 275 S.W.2d 934, 1955 Ky. LEXIS 401 ( Ky. 1955 ).

To extend the special fund theory to include funds derived from taxes would result in sanctioning an evasion of the spirit and purpose of the constitutional prohibition against debt. Curlin v. Wetherby, 275 S.W.2d 934, 1955 Ky. LEXIS 401 ( Ky. 1955 ).

Pledge of that portion of future gasoline taxes reasonably identified as derived from vehicular use of particular turnpikes being financed would neither constitute charge against general revenues and resources of highway department nor prevent Legislature from discontinuing fuel tax as a source of revenue and, therefore, would not create a debt in constitutional sense. Turnpike Authority of Kentucky v. Wall, 336 S.W.2d 551, 1960 Ky. LEXIS 331 ( Ky. 1960 ).

18.Statutory Provisions.

Since the legislative intent enunciated in KRS 293.010 limits the bond authority to investment in bonds of Commonwealth or its agencies, the language of KRS 293.130 “that it will not limit or restrict the rights hereby vested in the authority to purchase, acquire, hold, sell or dispose of bonds deemed by the authority to be convenient or necessary to produce sufficient revenues to meet the expenses of operation of the authority, or to fulfill the terms of any agreement made with the holders of its savings bonds, and it further pledges not to impair in any way the rights or remedies of the holders of those savings bonds until the obligations set out therein are fully met, paid and discharged,” is a covenant prohibiting the General Assembly from removing the security for savings bonds already issued, and is clearly permissible under constitutional obligation. Pardue v. Kentucky Sav. Bond Authority, 515 S.W.2d 89, 1974 Ky. LEXIS 193 ( Ky. 1974 ).

Cited:

Allen v. Cromwell, 203 Ky. 836 , 263 S.W. 356, 1924 Ky. LEXIS 1017 ( Ky. 1924 ); Conrad v. Pendleton County, 209 Ky. 526 , 273 S.W. 57, 1925 Ky. LEXIS 535 ( Ky. 1925 ); Talbott v. Kentucky State Board of Education, 244 Ky. 826 , 52 S.W.2d 727, 1932 Ky. LEXIS 516 ( Ky. 1932 ); State Highway Com. v. Board of Councilmen, 245 Ky. 799 , 54 S.W.2d 315, 1932 Ky. LEXIS 675 ( Ky. 1932 ); Speer v. Kentucky Children’s Home, 278 Ky. 225 , 128 S.W.2d 558, 1939 Ky. LEXIS 398 ( Ky. 1939 ); Estill County v. Noland, 295 Ky. 753 , 175 S.W.2d 341, 1943 Ky. LEXIS 324 ( Ky. 1943 ); Franklin County v. State Highway Com., 304 Ky. 328 , 200 S.W.2d 751, 1947 Ky. LEXIS 638 ( Ky. 1947 ); Rivers v. Owensboro, 287 S.W.2d 151, 1956 Ky. LEXIS 443 ( Ky. 1956 ); Stovall v. Gartrell, 332 S.W.2d 256, 1960 Ky. LEXIS 141 ( Ky. 1960 ); Watkins v. State Property & Bldgs. Com., 342 S.W.2d 511, 1960 Ky. LEXIS 94 ( Ky. 1960 ); State Property & Bldg. Com. v. Hays, 346 S.W.2d 3, 1961 Ky. LEXIS 277 ( Ky. 1961 ); Grimm v. Moloney, 358 S.W.2d 496, 1962 Ky. LEXIS 180 ( Ky. 1962 ); Ward v. Louisville & N. R. Co., 402 S.W.2d 98, 1966 Ky. LEXIS 356 ( Ky. 1966 ); Brown v. Barkley, 628 S.W.2d 616, 1982 Ky. LEXIS 232 ( Ky. 1982 ); Blythe v. Transportation Cabinet of Commonwealth, 660 S.W.2d 668, 1983 Ky. LEXIS 278 ( Ky. 1983 ); Legislative Research Com. by Prather v. Brown, 664 S.W.2d 907, 1984 Ky. LEXIS 300 ( Ky. 1984 ).

Opinions of Attorney General.

The Commonwealth may legally incur the obligation to pay the required interest on Title XII advancements to the state’s unemployment insurance fund since such interest can be paid from funds in the “Penalty and Interest Account,” a nonappropriations dollars account. However, should the “P and I account” become insufficient there would be no problems created under Const., § 50 or this section since the mere possibility of a liability against general revenues does not offend the Constitution. OAG 82-541 .

Research References and Practice Aids

Cross-References.

Credit of state not to be loaned, exceptions, Const., §§ 157a, 177.

Debt created, subject to the approval of the people of the Commonwealth, for the construction and reconstruction of highways, and for park purposes, KRS 177.580 to 177.630 , 177.700 to 177.820 .

Kentucky Bench & Bar.

Tobergate, The Impact of Kentucky’s Present Constitution Upon Business Growth & Development, Volume 51, No. 3, Summer 1987 Ky. Bench & B. 21.

Northern Kentucky Law Review.

Note, Facing the Economic Challenges of the Eighties — The Kentucky Constitution and Hayes v. The State Property and Buildings Commission of Kentucky, 15 N. Ky. L. Rev. 645 (1988).

Wintersheimer, State Constitutional Law, 20 N. Ky. L. Rev. 591 (1993).

§ 50. Purposes for which debt may be contracted — Tax to discharge — Public vote.

No act of the General Assembly shall authorize any debt to be contracted on behalf of the Commonwealth except for the purposes mentioned in Section 49, unless provision be made therein to levy and collect an annual tax sufficient to pay the interest stipulated, and to discharge the debt within thirty years; nor shall such act take effect until it shall have been submitted to the people at a general election, and shall have received a majority of all the votes cast for and against it: Provided, The General Assembly may contract debts by borrowing money to pay any part of the debt of the State, without submission to the people, and without making provision in the act authorizing the same for a tax to discharge the debt so contracted, or the interest thereon.

NOTES TO DECISIONS

1.In General.

This section, Const., §§ 49 and 171, when read together, constitute a rule for the conduct of the state’s finances. Rhea v. Newman, 153 Ky. 604 , 156 S.W. 154, 1913 Ky. LEXIS 900 ( Ky. 1913 ).

Legislature was limited to raising money by either taxation under Const., § 171 or borrowing pursuant to this section and Const., § 49. Stanley v. Townsend, 170 Ky. 833 , 186 S.W. 941, 1916 Ky. LEXIS 143 ( Ky. 1916 ).

This section and Const., § 49 strictly limit the power of the General Assembly to financially obligate future General Assemblies without the permission of the people by means of a direct vote. Hayes v. State Property & Bldgs. Com., 731 S.W.2d 797, 1987 Ky. LEXIS 217 ( Ky. 1987 ).

2.Construction.

The Constitution does not restrict debt-creating power of state, but at most merely regulates the power by this section and Const., § 49. Rhea v. Newman, 153 Ky. 604 , 156 S.W. 154, 1913 Ky. LEXIS 900 ( Ky. 1913 ).

Neither this section nor Const., § 49 was repealed by implication by Const., § 157a. Crick v. Rash, 190 Ky. 820 , 229 S.W. 63, 1921 Ky. LEXIS 516 ( Ky. 1921 ).

This section and Const., § 49 in no way limited authority of legislature to provide by general law for levy and collection of taxes under Const., § 171 for purpose of meeting appropriations. State Budget Com. v. Lebus, 244 Ky. 700 , 51 S.W.2d 965, 1932 Ky. LEXIS 502 ( Ky. 1932 ).

3.Annual Tax.

Legislature and political subdivisions in creating public debt are required not only to raise by annual taxation money sufficient to discharge interest on bond issue, but also to annually and from inception of creation of debt raise by taxation amount sufficient to amortize bond issue when it becomes due. McDonald v. Lexington, 253 Ky. 585 , 69 S.W.2d 1065, 1934 Ky. LEXIS 713 ( Ky. 1934 ). See Herd v. Middlesboro, 266 Ky. 488 , 99 S.W.2d 458, 1936 Ky. LEXIS 692 ( Ky. 1936 ).

Annual tax ordinarily meant tax which was direct, ad valorem, and levied every year. Dalton v. State Property & Bldgs. Com., 304 S.W.2d 342, 1957 Ky. LEXIS 276 ( Ky. 1957 ).

Bond issue for debt payment by means of license excise taxes and fees was annual tax under this section. Dalton v. State Property & Bldgs. Com., 304 S.W.2d 342, 1957 Ky. LEXIS 276 ( Ky. 1957 ).

Motor fuel taxes and vehicle sale excise taxes were not annual taxes. Dalton v. State Property & Bldgs. Com., 304 S.W.2d 342, 1957 Ky. LEXIS 276 ( Ky. 1957 ).

4.Debt.

Whether appropriation is a debt within this section and Const., § 49 depends upon the character of the appropriation and the manner of its payment. James v. State University, 131 Ky. 156 , 114 S.W. 767, 1908 Ky. LEXIS 118 ( Ky. 1908 ).

When state highway commission borrowed money from counties for road construction, state thereby incurred debt under this section. Crick v. Rash, 190 Ky. 820 , 229 S.W. 63, 1921 Ky. LEXIS 516 ( Ky. 1921 ).

Proposal for issuance of bridge construction bonds, to be paid from bridge tolls, was not violative of Const., § 49 as obligation of Commonwealth. Estes v. State Highway Com., 235 Ky. 86 , 29 S.W.2d 583, 1930 Ky. LEXIS 292 ( Ky. 1930 ).

Debt, as used in this section, means obligation entered in strict accordance with provisions of this section, binding Commonwealth to pay it by levy and collection of general taxes. State Budget Com. v. Lebus, 244 Ky. 700 , 51 S.W.2d 965, 1932 Ky. LEXIS 502 ( Ky. 1932 ).

Where highway commission contracted to issue and sell bonds for bridge revenue, obligating its general fund, and including obligation for deficiency appropriation in next budget as well as for setting up of fund for future deficiencies, such contract was violative of Const., § 49 as exceeding debt limitation. State Highway Com. v. King, 259 Ky. 414 , 82 S.W.2d 443, 1935 Ky. LEXIS 317 ( Ky. 1935 ).

Where legislature provided for erection and financing of state university buildings, bonds issued pursuant thereto by university trustees did not create state indebtedness contrary to Const., § 49. J. D. Van Hooser & Co. v. University of Kentucky, 262 Ky. 581 , 90 S.W.2d 1029, 1936 Ky. LEXIS 76 ( Ky. 1936 ).

Since law relating to state unemployment compensation commission expressly provided that issuance of bonds by commission to defray cost of acquiring building and site should not constitute indebtedness of such commission or Commonwealth, such bonds did not constitute state debt within meaning of this section or Const., § 49. Meagher v. Commonwealth, 305 Ky. 289 , 203 S.W.2d 35, 1947 Ky. LEXIS 784 ( Ky. 1947 ).

Debt as contemplated by Const., § 49 would arise from contract under which there was unconditional entitlement to receive and obligation to pay on part of creditor and debtor respectively, and revenue bond issuance by state agency for erection of building for state use, payable solely from building income, was not such debt. Preston v. Clements, 313 Ky. 479 , 232 S.W.2d 85, 1950 Ky. LEXIS 902 ( Ky. 1950 ).

Neither KRS 177.480 , which authorized the department of highways to covenant, in an agreement securing revenue bonds, to pay the cost of maintaining, repairing and operating any project constructed under the provisions of KRS 177.390 to 177.570 , nor the contract for the issuance of the bonds for a particular toll road project which provided the tolls and other revenue should first be used for the retirement of the bonds and then for the cost of maintenance and cost of operation, and that if the tolls were insufficient, maintenance and cost of operation would be paid out of the state road fund, created an unconstitutional debt of the Commonwealth. Guthrie v. Curlin, 263 S.W.2d 240, 1953 Ky. LEXIS 1238 (Ky. Ct. App. 1953).

Gasoline tax and other motor vehicle taxes were considered as sources of public revenue and not special private funds, since they were collected from public generally, and thus were subject to debt prohibitions in this section and Const., § 49. Curlin v. Wetherby, 275 S.W.2d 934, 1955 Ky. LEXIS 401 ( Ky. 1955 ).

Resolution of state agency authorizing 3.5 million dollar revenue bond issue for maintenance, repair, and insurance costs of state park system did not constitute creation of debt in violation of limitation in Const., § 50, since procurement and maintenance of public parks were governmental functions. Kentucky Lake Vacation Land, Inc. v. State Property & Bldgs. Com., 333 S.W.2d 779, 1960 Ky. LEXIS 212 ( Ky. 1960 ).

Provision of KRS 175.410 to 175.990 , authorizing covenant by highway department to make up any deficiency of revenues of turnpike project from funds or tax revenues available for its general purposes and not required by law to be devoted to some other purpose, created debt in violation of Const., § 49. Turnpike Authority of Kentucky v. Wall, 336 S.W.2d 551, 1960 Ky. LEXIS 331 ( Ky. 1960 ).

By attempting to underwrite the patients’ compensation fund through recourse to the general fund of the State, KRS 304.40-330 (repealed) created a debt in violation of this section. McGuffey v. Hall, 557 S.W.2d 401, 1977 Ky. LEXIS 533 ( Ky. 1977 ).

No agency of the State, including its legislature, can place an obligation against the general funds otherwise available for appropriation and expenditure by a future legislature, and this restriction is not satisfied by substituting other assets equal in value to the forbidden encroachment, as by trading present receivables for access to future general revenues. McGuffey v. Hall, 557 S.W.2d 401, 1977 Ky. LEXIS 533 ( Ky. 1977 ).

Under this section, KRS 45.321 (repealed) could not validly be taken to mean that presently-existing receivables could be traded for access to future general revenues. McGuffey v. Hall, 557 S.W.2d 401, 1977 Ky. LEXIS 533 ( Ky. 1977 ).

The provisions extending malpractice coverage to the University of Kentucky Medical Center, KRS 164.939 to KRS 164.944 , create, at most, a contingent liability against the Commonwealth; accordingly, they do not create a debt within the concept of debt as used in this section, nor an encumbrance of future general revenues as prohibited by Const., § 177. Board of Trustees v. Commonwealth, 625 S.W.2d 867, 1981 Ky. App. LEXIS 306 (Ky. Ct. App. 1981).

If the contract did contain any assurances involving perpetual duty of the Department of Fish and Wildlife Resources to keep the dam in existence or could be construed to give such assurance, or had the Department made any such representations, then this section and Const., § 177 would be violated; these provisions prohibit any transactions which might result in future liabilities against the general resources of the state. Shelbyville ex rel. Shelbyville Municipal Water & Sewer Com. v. Commonwealth, Natural Resources & Environmental Protection Cabinet, 706 S.W.2d 426, 1986 Ky. App. LEXIS 1070 (Ky. Ct. App. 1986).

Economic Development Road Revenue Bonds (Revitalization Projects) Series 1990, as authorized by KRS 175.750 through 175.810 , which provide for the construction and reconstruction of roads through a lease arrangement between the Turnpike Authority of Kentucky and the Kentucky Transportation Cabinet were not unconstitutional; the issuance of such bonds paid for by lease rental payments did not represent a debt of the Commonwealth because neither the full faith and credit, nor the taxing authority of the Commonwealth was pledged to the payment of the principal or interests of the bonds. Wilson v. Kentucky Transp. Cabinet, 884 S.W.2d 641, 1994 Ky. LEXIS 108 ( Ky. 1994 ).

5.— Condemnation.

Legislative provision for condemnation by highway commission with compensation for property or privileges thus taken was not violative of Const., § 49 as authorizing or creating debt on part of state. Bloxton v. State Highway Com., 225 Ky. 324 , 8 S.W.2d 392, 1928 Ky. LEXIS 762 ( Ky. 1928 ).

6.Casual Deficits.

Terms “casual deficits” and “failures in the revenue” used in Const., § 49 were made part of this section by its reference to Const., § 49. State Budget Com. v. Lebus, 244 Ky. 700 , 51 S.W.2d 965, 1932 Ky. LEXIS 502 ( Ky. 1932 ).

Terms “casual deficits” and “failures in the revenue,” as used in this section and Const., § 49, were synonymous and meant deficits happening by chance or accident and without any intent to avoid constitutional inhibitions of state against incurring unauthorized expenditures of funds over certain amount. State Budget Com. v. Lebus, 244 Ky. 700 , 51 S.W.2d 965, 1932 Ky. LEXIS 502 ( Ky. 1932 ).

If legislature overestimated revenue available and failed to provide for sufficient funds to carry out appropriations, warrants issued against them by auditor were valid assignments of such appropriations and valid evidence of casual deficits within meaning of this section and Const., § 49. State Budget Com. v. Lebus, 244 Ky. 700 , 51 S.W.2d 965, 1932 Ky. LEXIS 502 ( Ky. 1932 ).

7.Enactments.

Enactment which violated 30-year debt discharge provision of this section was invalid only as to section in violation thereof. Stovall v. Gartrell, 332 S.W.2d 256, 1960 Ky. LEXIS 141 ( Ky. 1960 ).

It is proper for legislature to frame question in act passed under Const., § 50. Stovall v. Gartrell, 332 S.W.2d 256, 1960 Ky. LEXIS 141 ( Ky. 1960 ).

To be valid, enactment had only to substantially comply with this section and Const., § 49. Stovall v. Gartrell, 332 S.W.2d 256, 1960 Ky. LEXIS 141 ( Ky. 1960 ).

8.Indebtedness.

This section and Const., § 49 provide for three classes of indebtedness: (1) to meet casual deficits or failures in revenue; (2) new indebtedness, which must be submitted to vote of people and for payment of which, with interest, within 30 years, an annual tax must be provided in act authorizing creation of debt; (3) for purpose of funding debt existing at adoption of Constitution, or thereafter created in accordance with its provisions. Eastern Kentucky Asylum for Insane v. Bradley, 101 Ky. 551 , 41 S.W. 556, 19 Ky. L. Rptr. 750 , 1897 Ky. LEXIS 217 ( Ky. 1897 ).

9.Levy.

This section merely required provision for levy, not levy itself. Allen v. Cromwell, 203 Ky. 836 , 263 S.W. 356, 1924 Ky. LEXIS 1017 ( Ky. 1924 ).

Statute which initiated annual tax levy was not required to make such levy itself. Dalton v. State Property & Bldgs. Com., 304 S.W.2d 342, 1957 Ky. LEXIS 276 ( Ky. 1957 ).

10.Public Improvements.

Act providing that when any public improvement ordered to be constructed in city of first class is such that it may be lawfully constructed at cost of owners of adjacent land the cost thereof shall be apportioned against real estate owned by state in same manner as against other land is not repugnant to this section. Hager v. Gast, 119 Ky. 502 , 84 S.W. 556, 27 Ky. L. Rptr. 129 , 1905 Ky. LEXIS 25 ( Ky. 1905 ).

11.Special Funds.

Special road fund from which state was to repay advances from county was not such special fund as would create exception to debt limitations of this section and Const., § 49. Crick v. Rash, 190 Ky. 820 , 229 S.W. 63, 1921 Ky. LEXIS 516 ( Ky. 1921 ).

12.State Institutions.

Act appropriating $200,000 for buildings for state educational institutions, to be paid in three equal sums, in three successive years, and $70,000 for current expenses of the year and for each succeeding year did not violate this section or Const., § 49. James v. State University, 131 Ky. 156 , 114 S.W. 767, 1908 Ky. LEXIS 118 ( Ky. 1908 ).

13.Submission to Voters.

State indebtedness resulting from casual deficits or failure in revenue could validly exceed $500,000 only if authorized by popular vote. Billeter & Wiley v. State Highway Com., 203 Ky. 15 , 261 S.W. 855, 1924 Ky. LEXIS 847 ( Ky. 1924 ).

Insofar as excerpts from prior cases tend to hold that only indebtedness of state in existence at time of adoption of Constitution could be cared for by issuance and sale of bonds without submission to popular vote, they should be regarded as obiter dictum. State Budget Com. v. Lebus, 244 Ky. 700 , 51 S.W.2d 965, 1932 Ky. LEXIS 502 ( Ky. 1932 ).

Popular vote which approved enactment was superior to and superseded executive approval. Stovall v. Gartrell, 332 S.W.2d 256, 1960 Ky. LEXIS 141 ( Ky. 1960 ).

14.Revenue Bonds.

Since the law creating the bond authority declared the bonds not to be obligations of the Commonwealth and that each bond should state on its face that it did not constitute a debt of the Commonwealth, the bonds were revenue bonds, and thus the issuance of such bonds by the bond authority, not being a general obligation of the Commonwealth, did not violate the constitutional provision. Pardue v. Kentucky Sav. Bond Authority, 515 S.W.2d 89, 1974 Ky. LEXIS 193 ( Ky. 1974 ).

15.Statutory Provisions.

Since the legislative intent enunciated in KRS 293.010 limits the bond authority to investment in bonds of Commonwealth or its agencies, the language of KRS 293.130 “that it will not limit or restrict the rights hereby vested in the authority to purchase, acquire, hold, sell or dispose of bonds deemed by the authority to be convenient or necessary to produce sufficient revenues to meet the expenses of operation of the authority, or to fulfill the terms of any agreement made with the holders of its savings bonds, and it further pledges not to impair in any way the rights or remedies of the holders of those savings bonds until the obligations set out therein are fully met, paid and discharged,” is a covenant prohibiting the general assembly from removing the security for savings bonds already issued, and is clearly permissible under constitutional obligation. Pardue v. Kentucky Sav. Bond Authority, 515 S.W.2d 89, 1974 Ky. LEXIS 193 ( Ky. 1974 ).

16.Medical Malpractice Fund.

The creation of the excess medical malpractice coverage fund in subsection (5) of KRS 164.940 and the expenditure of the fund under KRS 164.941(8) do not violate this section, since the General Assembly is not obligated to appropriate future general revenues to the fund and, thus, future legislatures are not prevented from exercising their discretion in making appropriations. Board of Trustees v. Commonwealth, 625 S.W.2d 867, 1981 Ky. App. LEXIS 306 (Ky. Ct. App. 1981).

17.Borrowing.

Legislative provision for borrowing of money by commissioners of sinking fund to pay warrants issued by auditor, anticipatory of current fiscal year revenues, to be paid by issuance of warrants or negotiable certificates was violation of this section and Const., § 49. Stanley v. Townsend, 170 Ky. 833 , 186 S.W. 941, 1916 Ky. LEXIS 143 ( Ky. 1916 ).

18.Lease to State Agency.

Law by which state agency was required to enter into lease for period of years with absolute obligation to pay rental out of its resources as they became available was violative of this section and Const., § 49 in creating state debt. Curlin v. Wetherby, 275 S.W.2d 934, 1955 Ky. LEXIS 401 ( Ky. 1955 ).

Fact that highway department’s lease renewal was automatic absent affirmative termination action did not make such lease long-term obligation so as to violate this section or Const., § 49. Turnpike Authority of Kentucky v. Wall, 336 S.W.2d 551, 1960 Ky. LEXIS 331 ( Ky. 1960 ).

To extent that highway department was authorized by KRS 175.410 to 175.990 to obligate all or any part of its previous unencumbered revenues anticipated for two (2) year periods, there was no question of validity, but if renewal or lease, however effected, committed general revenues of department for more funds than could be properly anticipated during period of extension, it would be a void renewal, since it would attempt more than legislature itself had right to do. Turnpike Authority of Kentucky v. Wall, 336 S.W.2d 551, 1960 Ky. LEXIS 331 ( Ky. 1960 ).

19.Federal Loans.

Where Commonwealth transferred tuberculosis sanatorium to board of health, such board’s pledge of property as security for loan from federal government did not constitute debt against Commonwealth as contemplated by Const., § 49. Hughes v. State Board of Health, 260 Ky. 228 , 84 S.W.2d 52, 1935 Ky. LEXIS 443 ( Ky. 1935 ).

Where state agency obtained federal loan, requirement that state treasurer pay interest thereon was valid if interest was not in excess of $500,000. Hughes v. State Board of Health, 260 Ky. 228 , 84 S.W.2d 52, 1935 Ky. LEXIS 443 ( Ky. 1935 ).

Cited:

Conrad v. Pendleton County, 209 Ky. 526 , 273 S.W. 57, 1925 Ky. LEXIS 535 ( Ky. 1925 ); Talbott v. Kentucky State Board of Education, 244 Ky. 826 , 52 S.W.2d 727, 1932 Ky. LEXIS 516 ( Ky. 1932 ); Estill County v. Noland, 295 Ky. 753 , 175 S.W.2d 341, 1943 Ky. LEXIS 324 ( Ky. 1943 ); Franklin County v. State Highway Com., 304 Ky. 328 , 200 S.W.2d 751, 1947 Ky. LEXIS 638 ( Ky. 1947 ); Rivers v. Owensboro, 287 S.W.2d 151, 1956 Ky. LEXIS 443 ( Ky. 1956 ); Watkins v. State Property & Bldgs. Com., 342 S.W.2d 511, 1960 Ky. LEXIS 94 ( Ky. 1960 ); Grimm v. Moloney, 358 S.W.2d 496, 1962 Ky. LEXIS 180 ( Ky. 1962 ); Ward v. Louisville & N. R. Co., 402 S.W.2d 98, 1966 Ky. LEXIS 356 ( Ky. 1966 ); Blythe v. Transportation Cabinet of Commonwealth, 660 S.W.2d 668, 1983 Ky. LEXIS 278 ( Ky. 1983 ); Legislative Research Com. by Prather v. Brown, 664 S.W.2d 907, 1984 Ky. LEXIS 300 ( Ky. 1984 ); Eldred v. Commonwealth, 906 S.W.2d 694, 1994 Ky. LEXIS 122 ( Ky. 1994 ).

Opinions of Attorney General.

While the demonstration projects and trust fund legislation established by KRS 152.755 is not unconstitutional, since it does not authorize expenditures beyond a biennium, the administrator must be scrupulously careful to see that actual contract financial commitments do not go beyond available appropriations of a biennium. OAG 78-102 .

The Commonwealth may legally incur the obligation to pay the required interest on Title XII advancements to the state’s unemployment insurance fund since such interest can be paid from funds in the “Penalty and Interest Account,” a nonappropriations dollars account. However, should the “P and I account” become insufficient there would be no problems created under Const., § 49 or this section since the mere possibility of a liability against general revenues does not offend the Constitution. OAG 82-541 .

The state could not indemnify a public, nonprofit organization against libel suits arising from the publication of final disciplinary actions received from a licensing board; assuming the General Assembly approved the expenditure of funds for this purpose, the enactment of legislation would be unconstitutional as creating an obligation against future revenues without voter approval in contravention of this section, as using public funds for nonpublic purposes in contravention of Const., § 171, and as lending the credit of the state in contravention of Const., § 177. OAG 84-55 .

The Commonwealth is prohibited from entering into an indemnity or “hold harmless” clause under this section and Const., §§ 171 and 177. OAG 86-18 .

The waiver by the Commonwealth of any right to sue the contractor violated this section and Const., §§ 171 and 177. OAG 86-18 .

Research References and Practice Aids

Cross-References.

Debt created, subject to the approval of the people of the Commonwealth, for the construction and reconstruction of highways, and for park purposes, KRS 177.580 to 177.630 , 177.700 to 177.820 .

Kentucky Bench & Bar.

Tobergte, The Impact of Kentucky’s Present Constitution Upon Business Growth & Development, Volume 51, No. 3, Summer 1987 Ky. Bench & B. 21.

Kentucky Law Journal.

Kentucky Law Survey: Savage, Insurance, 66 Ky. L.J. 631 (1977-1978).

Northern Kentucky Law Review.

Notes, Insurance — Medical Malpractice — Uncoupling the Freight Train: The Kentucky Medical Malpractice Act — McGuffey v. Hall, 557 S.W.2d 401, 1977 Ky. LEXIS 533 ( Ky. 1977 ), 5 N. Ky. L. Rev. 123 (1978).

Note, Facing the Economic Challenges of the Eighties — The Kentucky Constitution and Hayes v. The State Property and Buildings Commission of Kentucky, 15 N. Ky. L. Rev. 645 (1988).

Wintersheimer, State Constitutional Law, 20 N. Ky. L. Rev. 591 (1993).

§ 51. Law may not relate to more than one subject, to be expressed in title — Amendments must be at length.

No law enacted by the General Assembly shall relate to more than one subject, and that shall be expressed in the title, and no law shall be revised, amended, or the provisions thereof extended or conferred by reference to its title only, but so much thereof as is revised, amended, extended or conferred, shall be reenacted and published at length.

NOTES TO DECISIONS

Analysis

1.In General.

The requirements of this section relate only to the face of the act. If the act on its face is good, and all its provisions have a natural connection with the subject expressed in the title, it cannot be held bad. Rumbley v. Hall, 107 Ky. 349 , 54 S.W. 4, 21 Ky. L. Rptr. 1071 , 1899 Ky. LEXIS 177 ( Ky. 1899 ).

If all the provisions of an act relate to the same subject, are naturally connected, and are not foreign to the subject expressed in the title, it is sufficient. Williams v. Wedding, 165 Ky. 361 , 176 S.W. 1176, 1915 Ky. LEXIS 531 ( Ky. 1915 ). See Larue v. Redmon, 168 Ky. 487 , 182 S.W. 622, 1916 Ky. LEXIS 583 ( Ky. 1916 ); Smith v. Commonwealth, 175 Ky. 286 , 194 S.W. 367, 1917 Ky. LEXIS 334 ( Ky. 1917 ); Lang v. Commonwealth, 190 Ky. 29 , 226 S.W. 379, 1920 Ky. LEXIS 543 ( Ky. 1920 ); Stone v. Lexington, 192 Ky. 60 , 232 S.W. 50, 1921 Ky. LEXIS 6 ( Ky. 1921 ); Charles v. Flanary, 192 Ky. 511 , 233 S.W. 904, 1921 Ky. LEXIS 88 ( Ky. 1921 ); State Board of Charities & Correction v. Combs, 193 Ky. 548 , 237 S.W. 32, 1922 Ky. LEXIS 46 ( Ky. 1922 ); Fiscal Court of Jefferson County v. Jefferson County Board of Education, 196 Ky. 212 , 244 S.W. 764, 1922 Ky. LEXIS 511 ( Ky. 1922 ); Ravenna v. Boyer Fire Apparatus Co., 218 Ky. 429 , 291 S.W. 782, 1927 Ky. LEXIS 200 ( Ky. 1927 ); Duke v. Boyd County, 225 Ky. 112 , 7 S.W.2d 839, 1928 Ky. LEXIS 712 ( Ky. 1928 ); Fox v. Head, 231 Ky. 490 , 21 S.W.2d 804, 1929 Ky. LEXIS 298 ( Ky. 1929 ); Estes v. State Highway Com., 235 Ky. 86 , 29 S.W.2d 583, 1930 Ky. LEXIS 292 ( Ky. 1930 ).

This section was mandatory and required substantial compliance. Hazelrigg v. Hazelrigg, 169 Ky. 345 , 183 S.W. 933, 1916 Ky. LEXIS 700 ( Ky. 1916 ).

Provisions of this section were mandatory. South v. Fish, 181 Ky. 349 , 205 S.W. 329, 1918 Ky. LEXIS 530 ( Ky. 1918 ).

Act was valid which related to only one subject, which was expressed in title, and where all its provisions were germane to title. Jefferson County v. Cole, 204 Ky. 27 , 263 S.W. 1114, 1924 Ky. LEXIS 441 ( Ky. 1924 ).

Legislature could revise, amend or extend existing law in new act notwithstanding absence of such fact being expressed in either title or body. Link v. Commonwealth, 205 Ky. 243 , 265 S.W. 804, 1924 Ky. LEXIS 105 ( Ky. 1924 ).

Where all provisions of act related to same subject, as stated in title, were naturally connected therewith, and were not foreign to subject expressed in title, act complied with this section. Shaw v. Fox, 246 Ky. 342 , 55 S.W.2d 11, 1932 Ky. LEXIS 761 ( Ky. 1932 ).

Where at time of enactment of act there was no law on statutes relative to subject of act, such act did not extend, revise, or amend any existing law. Spahn v. Stewart, 268 Ky. 97 , 103 S.W.2d 651, 1937 Ky. LEXIS 405 ( Ky. 1937 ).

Act which was new legislation, complete in itself without reference to other laws, did not need to re-enact or publish at length prior law which may have been changed or repealed by such act. Manning v. Sims, 308 Ky. 587 , 213 S.W.2d 577, 1948 Ky. LEXIS 864 ( Ky. 1948 ).

2.Purpose.

This section has always been liberally construed, all doubts being resolved in favor of the validity of the legislative action; the purpose of this section is the prevention of surreptitious legislation. Bowman v. Hamlett, 159 Ky. 184 , 166 S.W. 1008, 1914 Ky. LEXIS 778 ( Ky. 1914 ). See Lakes v. Goodloe, 195 Ky. 240 , 242 S.W. 632, 1922 Ky. LEXIS 342 ( Ky. 1922 ); Fox v. Head, 231 Ky. 490 , 21 S.W.2d 804, 1929 Ky. LEXIS 298 ( Ky. 1929 ); Talbott v. Laffoon, 257 Ky. 773 , 79 S.W.2d 244, 1934 Ky. LEXIS 573 ( Ky. 1934 ); Commonwealth ex rel. Armstrong v. Collins, 709 S.W.2d 437, 1986 Ky. LEXIS 262 ( Ky. 1986 ).

The purpose of this section is to enable persons reading title to act to obtain general idea of what act will contain, and legislators and public may assume that act contains no legislation not embraced in subject expressed in title. Thompson v. Commonwealth, 159 Ky. 8 , 166 S.W. 623, 1914 Ky. LEXIS 731 ( Ky. 1914 ). See Larue v. Redmon, 168 Ky. 487 , 182 S.W. 622, 1916 Ky. LEXIS 583 ( Ky. 1916 ); State Athletic Board of Control v. Blake Amusement Co., 249 Ky. 358 , 60 S.W.2d 950, 1933 Ky. LEXIS 526 ( Ky. 1933 ); State Budget Com. v. Adams, 249 Ky. 680 , 61 S.W.2d 314, 1933 Ky. LEXIS 584 ( Ky. 1933 ); Frost v. Johnston, 262 Ky. 592 , 90 S.W.2d 1045, 1936 Ky. LEXIS 82 ( Ky. 1936 ).

Purpose of this section was to eliminate earlier practice of inclusion by reference only of prior statutes in various kinds of private acts, creating uncertainty and difficulty. Lynn v. Bullock, 189 Ky. 604 , 225 S.W. 733, 1920 Ky. LEXIS 482 ( Ky. 1920 ).

The purpose of this section is to require that titles should give fair and reasonable notice of the nature of provisions of the act. Burton v. Mayer, 274 Ky. 245 , 118 S.W.2d 161, 1938 Ky. LEXIS 233 ( Ky. 1938 ).

Purpose of provisions in this section was to enable those reading title of act to get general idea of what it treated or contained. Carrigan v. Fiscal Court of Fulton County, 289 Ky. 562 , 159 S.W.2d 420, 1942 Ky. LEXIS 603 ( Ky. 1942 ).

The purpose of the requirement that the subject of the act be expressed in the title is to enable persons reading the title to get a general idea of what subject is treated or what the bill contains and the title must give fair and reasonable notice of its nature and provisions. Johnson v. Commonwealth, 291 Ky. 829 , 165 S.W.2d 820, 1942 Ky. LEXIS 329 ( Ky. 1942 ).

The purpose of this section was to prevent surprise and fraud upon the legislature and other interested parties, thus preventing log-rolling legislation. Commonwealth ex rel. Meredith v. Johnson, 292 Ky. 288 , 166 S.W.2d 409, 1942 Ky. LEXIS 73 ( Ky. 1942 ).

One of the most important purposes of the provision of this section, that the subject of a bill shall be expressed in the title is to prevent surprise or fraud and the enactment of vicious legislation under an innocent and misleading title. Engle v. Bonnie, 305 Ky. 850 , 204 S.W.2d 963, 1947 Ky. LEXIS 865 ( Ky. 1947 ). See Board of Education v. Mescher, 310 Ky. 453 , 220 S.W.2d 1016, 1949 Ky. LEXIS 954 ( Ky. 1949 ).

The so-called “Junkyard Act,” KRS 177.905 et seq., which as enacted was entitled “an act relating to auto and truck recyclers” applies to all material recyclers, not just auto and truck recyclers, and such interpretation does not violate this section, which has the purpose of preventing “surreptitious” legislation, since all that is required of the title of an act is to give a general idea of the contents rather than specifically referring to every provision. Dawson v. Commonwealth, Dep't of Transp., Bureau of Highways, 622 S.W.2d 212, 1981 Ky. LEXIS 270 ( Ky. 1981 ).

The purpose of this section is to prevent surreptitious legislation. Lewis v. Captain's Quarters, Inc., 655 S.W.2d 26, 1983 Ky. App. LEXIS 331 (Ky. Ct. App. 1983).

The purpose of this provision is to enable those reading the title of an act to get a general idea of what it contains. Farris v. Shoppers Village Liquors, Inc., 669 S.W.2d 213, 1984 Ky. LEXIS 236 ( Ky. 1984 ).

The purpose of the re-enactment and publication requirement of this section is to prevent deceitful practices and provide full and easily accessible information to legislators and the public when the General Assembly is so affecting existing law. Commonwealth ex rel. Armstrong v. Collins, 709 S.W.2d 437, 1986 Ky. LEXIS 262 ( Ky. 1986 ).

The purpose of this section is said to be to prevent the enactment of surreptitious legislation; the framers of the Constitution intended to prevent surprise and fraud upon the members of the General Assembly and other interested parties. Commonwealth ex rel. Armstrong v. Collins, 709 S.W.2d 437, 1986 Ky. LEXIS 262 ( Ky. 1986 ).

3.Construction.

This section should be liberally construed, so as not to hinder or embarrass the legislature, but not given so loose a construction as virtually to nullify the section. Board of Penitentiary Comm'rs v. Spencer, 159 Ky. 255 , 166 S.W. 1017, 1914 Ky. LEXIS 781 ( Ky. 1914 ). See Bowman v. Hamlett, 159 Ky. 184 , 166 S.W. 1008, 1914 Ky. LEXIS 778 ( Ky. 1914 ).

The prohibition contained in this section should receive a reasonable and not a technical construction. It should not be so construed as to restrict legislation to such an extent as to render different acts necessary where the whole subject matter is connected and may be properly embraced in the same act. Commonwealth v. Starr, 160 Ky. 260 , 169 S.W. 743, 1914 Ky. LEXIS 450 ( Ky. 1914 ).

Court would not construe this section narrowly, technically, or in manner which would make it difficult for legislature to comply therewith; yet, court would not allow legislature to defeat this section’s purpose. Ogden v. Cronan, 171 Ky. 254 , 188 S.W. 357, 1916 Ky. LEXIS 332 ( Ky. 1916 ). See Fiscal Court of Pendleton County v. Pendleton County Board of Education, 240 Ky. 589 , 42 S.W.2d 885, 1931 Ky. LEXIS 457 ( Ky. 1931 ).

This section required act to give, in its title, fair and reasonable notice of substance and scope of act, so as to prevent surreptitious legislation, and such title was to be construed in light of its language alone, not in light of language embodied in act. Kentucky State Fair Board v. Fowler, 310 Ky. 607 , 221 S.W.2d 435, 1949 Ky. LEXIS 973 ( Ky. 1949 ).

4.Application.

This section does not apply to municipal ordinances. Swann v. Murray, 146 Ky. 148 , 142 S.W. 244, 1912 Ky. LEXIS 36 ( Ky. 1912 ). See Tuggles v. Commonwealth, 100 S.W. 235, 30 Ky. L. Rptr. 1071 , 1907 Ky. LEXIS 401 ( Ky. 1907 ); Kentucky Light & Power Co. v. James H. Williams & Co., 124 S.W. 840, 1910 Ky. LEXIS 696 ( Ky. 1910 ); Owensboro v. Evans, 172 Ky. 831 , 189 S.W. 1153, 1916 Ky. LEXIS 275 ( Ky. 1916 ); Pikeville v. Stratton, 257 Ky. 320 , 78 S.W.2d 12, 1935 Ky. LEXIS 17 ( Ky. 1935 ).

This section applied to amendments and revisions of statutes as well as to original acts. Tompkinsville Graded Common School v. Jackson, 189 Ky. 251 , 224 S.W. 876, 1920 Ky. LEXIS 410 ( Ky. 1920 ).

Where adopting act referred generally to body of law relative to certain subject, reference included current as well as future laws on such subject. Lyman v. Ramey, 195 Ky. 223 , 242 S.W. 21, 1922 Ky. LEXIS 306 ( Ky. 1922 ).

Prior law was not required to be set out and republished in act which made substitution for, as opposed to amending, such prior law. Price v. Fox, 220 Ky. 373 , 295 S.W. 433, 1926 Ky. LEXIS 132 ( Ky. 1926 ).

Reference statutes, which refer to and by reference adopt pre-existing statutes, are not strictly amendatory and are not obnoxious to this section. Bloxton v. State Highway Com., 225 Ky. 324 , 8 S.W.2d 392, 1928 Ky. LEXIS 762 ( Ky. 1928 ).

This section does not apply to enactment of ordinances of fourth-class cities. Kern v. Mt. Sterling, 233 Ky. 156 , 25 S.W.2d 41, 1930 Ky. LEXIS 506 ( Ky. 1930 ).

Heading of act was separate and distinct from title, and was not subject to provisions of this section relating to title. Arciero v. Hager, 397 S.W.2d 50, 1965 Ky. LEXIS 57 ( Ky. 1965 ), overruled, Hicks v. Enlow, 764 S.W.2d 68, 1989 Ky. LEXIS 8 ( Ky. 1989 ).

Under Kentucky Supreme Court precedents, H.B. 389(4) 2000 Reg. Sess. ( Ky. 2000 ), which amended a provision of the Judicial Retirement Act, KRS 21.450(3), was clearly an unconstitutional delegation, as the unintelligible statute had neither “an intelligible principle,” nor standards controlling the exercise of administrative discretion, and the Kentucky Supreme Court concluded that Ky. H.B. 389(4), subsequently codified at KRS 21.450(3), was unconstitutional because it violated the nondelegation doctrine embodied in Ky. Const. §§ 27, 28, 29 and 60. Bd. of Trs. of the Judicial Form Ret. Sys. v. AG, 132 S.W.3d 770, 2003 Ky. LEXIS 238 ( Ky. 2003 ).

5.Repeal.

Mere reprinting of section in act as amended was due to requirement of this section of Constitution, and did not show any intent on part of legislature to repeal previous act passed at same legislative session. Willson v. Hahn, 131 Ky. 439 , 115 S.W. 231, 1909 Ky. LEXIS 31 ( Ky. 1909 ).

Act entitled “An act to amend (certain) section of the Kentucky Statutes, it being a portion of (certain) article, of the Kentucky Statutes, entitled ‘Liquors, Intoxicating’” was not objectionable in that the title indicated an amendment of a prior section, while the act, in fact, repealed the old section and enacted a new one. Board of Trustees v. Scott, 125 Ky. 545 , 101 S.W. 944, 30 Ky. L. Rptr. 894 , 1907 Ky. LEXIS 313 ( Ky. 1907 ).

An amendment should contain the section or sections as they will read when revised or amended, if any part of the section or sections remains in force, but if one or more sections are to be repealed, they need not be set forth in the repealing act. Board of Penitentiary Comm'rs v. Spencer, 159 Ky. 255 , 166 S.W. 1017, 1914 Ky. LEXIS 781 ( Ky. 1914 ).

Statute which expressly repealed another was void as to such repeal where it was not set out as purpose of statute in its title, especially where subject of act proposed to be repealed was not naturally connected with subject expressed in title of repealing statute. Exall v. Holland, 166 Ky. 315 , 179 S.W. 241, 1915 Ky. LEXIS 692 ( Ky. 1915 ).

Where purpose to repeal former statute was not expressed in title of later statute, later statute violated this section. Houston v. Boltz, 169 Ky. 640 , 185 S.W. 76, 1916 Ky. LEXIS 754 ( Ky. 1916 ).

Statute repealing certain specified clauses and sections of laws by reference to titles thereof did not violate this section by extending or conferring statute by reference to title. Lynn v. Bullock, 189 Ky. 604 , 225 S.W. 733, 1920 Ky. LEXIS 482 ( Ky. 1920 ).

New independent act repealing prior laws did not have to specify such laws in its title or body and, if title did make reference to such laws, validity of act was not affected thereby unless such title was thus rendered overly restrictive or misleading. Commonwealth v. Florence, 192 Ky. 236 , 232 S.W. 369, 1921 Ky. LEXIS 15 ( Ky. 1921 ).

Even though title purported to amend and re-enact certain law while in fact portion of such law was repealed, subject of amending act was sufficiently expressed in such title, since definition of amendment would include repeal or taking away. Aldridge v. Commonwealth, 192 Ky. 215 , 232 S.W. 619, 1921 Ky. LEXIS 37 ( Ky. 1921 ).

While amendment only altered or changed bill or law, repeal abrogated or destroyed law. Aldridge v. Commonwealth, 192 Ky. 215 , 232 S.W. 619, 1921 Ky. LEXIS 37 ( Ky. 1921 ).

The repealing clause of an act, insofar as it affects the provisions of a prior act relating to the same subject, is germane to the title of the act of which it is a part, and does not violate this section, although the title contains no reference to such repeal. Burton v. Bryant, 199 Ky. 447 , 251 S.W. 192, 1923 Ky. LEXIS 848 ( Ky. 1923 ).

In order for statute to be repealed, reference to such repeal in title was not essential. Graham v. Jewell, 204 Ky. 260 , 263 S.W. 693, 1924 Ky. LEXIS 405 ( Ky. 1924 ), overruled, Letcher v. Commonwealth, 414 S.W.2d 402, 1966 Ky. LEXIS 12 ( Ky. 1966 ).

Notwithstanding body of act provided for repeal of inconsistent acts, such provision was not required to be in title of such act. Link v. Commonwealth, 205 Ky. 243 , 265 S.W. 804, 1924 Ky. LEXIS 105 ( Ky. 1924 ).

Act could repeal all prior laws conflicting with it without specifically mentioning particular laws repealed. Owensboro v. Board of Trustees, 210 Ky. 482 , 276 S.W. 143, 1925 Ky. LEXIS 714 ( Ky. 1925 ).

Prior law specifically stated to be repealed to extent of conflict with new act was not required to be set out and republished, since effect was repeal and not amendment. Price v. Fox, 220 Ky. 373 , 295 S.W. 433, 1926 Ky. LEXIS 132 ( Ky. 1926 ).

Act which repealed all existing laws in conflict therewith was valid even though such laws were not set out. Gross v. Fiscal Court of Jefferson County, 225 Ky. 641 , 9 S.W.2d 1006, 1928 Ky. LEXIS 849 ( Ky. 1928 ).

Where repealed act was not mentioned in title of repealing act and its subject matter was wholly foreign to subject expressed in title of repealing act, repealing act was invalid. Vick v. Commonwealth, 236 Ky. 436 , 33 S.W.2d 297, 1930 Ky. LEXIS 757 ( Ky. 1930 ).

Act purporting to amend certain law, and which in fact repealed and re-enacted such law, was valid, since act related to only one subject as expressed in title and title was fairly expressive of context of act. Kash v. Smith, 250 Ky. 490 , 63 S.W.2d 617, 1933 Ky. LEXIS 737 ( Ky. 1933 ).

The title need not state that inconsistent laws are being repealed. Johnson v. Commonwealth, 291 Ky. 829 , 165 S.W.2d 820, 1942 Ky. LEXIS 329 ( Ky. 1942 ).

6.— Implied.

Court refused to hold that an amendment which by its terms purports only to add certain words to a statute can be construed to repeal a prior amendment whose provisions are not in the least inconsistent with those added words. Lewis v. Brandenburg, 105 Ky. 14 , 47 S.W. 862, 20 Ky. L. Rptr. 1011 , 1898 Ky. LEXIS 238 ( Ky. 1898 ).

Only statute with subject matter sufficiently expressed in its title could modify or repeal by implication statutes not mentioned in such title. Commonwealth v. Moore, 187 Ky. 494 , 219 S.W. 786, 1920 Ky. LEXIS 152 ( Ky. 1920 ).

Where amending act contained irreconcilable inconsistency with prior statute, and such act and its title were valid although prior statute was not referred to in title, prior inconsistent statute was repealed by implication. State Board of Charities & Correction v. Combs, 193 Ky. 548 , 237 S.W. 32, 1922 Ky. LEXIS 46 ( Ky. 1922 ). See Lakes v. Goodloe, 195 Ky. 240 , 242 S.W. 632, 1922 Ky. LEXIS 342 ( Ky. 1922 ).

Repealing act effected no valid repeal where no reference was made in title thereto of intention to make such repeal, and nothing in body of act could be construed to effect such repeal by implication. Mills v. Dawson, 197 Ky. 518 , 247 S.W. 764, 1923 Ky. LEXIS 693 ( Ky. 1923 ).

Where act by its title purported to amend certain prior laws but in fact repealed them by implication and amended none, subject of such act was nevertheless sufficiently expressed and did not work surprise or fraud upon legislature. Price v. Fox, 220 Ky. 373 , 295 S.W. 433, 1926 Ky. LEXIS 132 ( Ky. 1926 ).

Title of act did not need to indicate intention of effecting implied repeal of any other section of any other statute that might have been irreconcilably in conflict with provisions of new act. Russell v. County Board of Education, 247 Ky. 703 , 57 S.W.2d 681, 1933 Ky. LEXIS 452 ( Ky. 1933 ).

7.Publication.

Act entitled “An act to amend (certain) section,” relative to examinations and certificates of teachers, substituted for satisfaction required of examiners an affidavit of applicant as to his qualifications; as amendatory act did not re-enact or publish former section at length, it was not an addition thereto, and such amendatory at constituted whole of former section which was no longer in force. Flynn v. Barnes, 156 Ky. 498 , 161 S.W. 523, 1913 Ky. LEXIS 468 ( Ky. 1913 ).

A new act which purports to amend an existing act, and not a particular section or part thereof, must set forth whole of existing act as it will appear when extended, revised or amended, but if only a particular section or sections are amended, it is necessary to specify or republish only the section or section affected. Board of Penitentiary Comm'rs v. Spencer, 159 Ky. 255 , 166 S.W. 1017, 1914 Ky. LEXIS 781 ( Ky. 1914 ).

Where enactment was new, original act with no attempt at amendment of current law, any law changed or repealed thereby was not required to be set out or republished. Allen v. Cromwell, 203 Ky. 836 , 263 S.W. 356, 1924 Ky. LEXIS 1017 ( Ky. 1924 ).

When act does not purport to be amendment to existing law but new act, it is unnecessary to set out or republish any part of old law that may be changed or repealed by new law. Smith v. State Highway Com., 247 Ky. 816 , 57 S.W.2d 1014, 1933 Ky. LEXIS 460 ( Ky. 1933 ). See Johnson v. Commonwealth, 291 Ky. 829 , 165 S.W.2d 820, 1942 Ky. LEXIS 329 ( Ky. 1942 ).

When an act is not a specific amendment or revision of an existing law, it is not necessary to republish any part of an old law which is changed, repealed or becomes inoperative by it. Johnson v. Commonwealth, 291 Ky. 829 , 165 S.W.2d 820, 1942 Ky. LEXIS 329 ( Ky. 1942 ).

New act which did not purport to amend existing law did not need to set out or republish any part of any old law that might have been changed or repealed by such new law. Wilson v. Bates, 313 Ky. 333 , 231 S.W.2d 39, 1950 Ky. LEXIS 873 ( Ky. 1950 ).

8.— At Length.

An act amending an earlier act with reference to payment of employees of persons and corporations engaged in mining, providing that subsection (1) of the former act be repealed and certain provision enacted in lieu thereof, the act as amended being published in full, was in compliance with this section. Commonwealth v. Reinecke Coal Min. Co., 117 Ky. 885 , 79 S.W. 287, 25 Ky. L. Rptr. 2027 , 1904 Ky. LEXIS 258 ( Ky. 1904 ).

Act appropriating money for an agricultural experiment station was not an amendment of an earlier act making appropriation for preparation of hog serum so as to require earlier act to be published at length as amended. Bosworth v. State University, 154 Ky. 370 , 157 S.W. 913, 1913 Ky. LEXIS 97 ( Ky. 1913 ).

When it is desired to confer or carry into a new law provisions of old law, so much of old law as is thus carried into new law must be published at length. Board of Penitentiary Comm'rs v. Spencer, 159 Ky. 255 , 166 S.W. 1017, 1914 Ky. LEXIS 781 ( Ky. 1914 ).

Act was invalid which amended several sections and only republished one such section, and could not be made valid by omitting that part of its title which referred to unpublished sections since to do so would result in act with no title. Hazelrigg v. Hazelrigg, 169 Ky. 345 , 183 S.W. 933, 1916 Ky. LEXIS 700 ( Ky. 1916 ).

Failure to republish sections amended violates this section. Hazelrigg v. Hazelrigg, 169 Ky. 345 , 183 S.W. 933, 1916 Ky. LEXIS 700 ( Ky. 1916 ).

Where an entire act was to be amended, amending act had to set out complete new act as it would appear when amended. Walker v. Commonwealth, 192 Ky. 257 , 232 S.W. 617, 1921 Ky. LEXIS 36 ( Ky. 1921 ).

This section is fully complied with in letter and spirit if the act or section revised or amended is set forth and published as revised or amended, and anything more only tends to render the section unnecessarily cumbrous. Millius v. Brann, 205 Ky. 171 , 265 S.W. 509, 1924 Ky. LEXIS 69 ( Ky. 1924 ).

Amendment of act relating to cities of first class to make such act apply instead to cities of second class could not be accomplished merely by substitution of word “second” for “first” without setting out amended portions at length. Paducah v. Jordan, 208 Ky. 140 , 270 S.W. 720, 1925 Ky. LEXIS 231 ( Ky. 1925 ).

Where prior act was amended by addition of another section, failure to set out that portion of such act as was amended voided such amendment. Board of Regents v. Engle, 224 Ky. 184 , 5 S.W.2d 1062, 1928 Ky. LEXIS 566 ( Ky. 1928 ).

In order to comply with this section, a statute which was amended had to be republished in full. Kirkman v. Williams' Ex'r, 246 Ky. 481 , 55 S.W.2d 365, 1932 Ky. LEXIS 790 ( Ky. 1932 ).

Amending act was void which did not set forth whole of existing act as it would appear when extended, revised, or amended. In re Graham, 22 F. Supp. 233, 1938 U.S. Dist. LEXIS 2392 (D. Ky. 1938 ).

An ordinance of a second-class city, amending a section of an earlier ordinance, was valid as an amendment if the portion of the earlier ordinance amended was set out in full, even though the entire earlier ordinance was not set out in full as amended. Pure Milk Producers & Distributors Ass'ns v. Morton, 276 Ky. 736 , 125 S.W.2d 216, 1939 Ky. LEXIS 575 ( Ky. 1939 ).

Amending act violated this section where portion of amendment was omitted, forcing legislators to resort to statutes to ascertain its meaning. Rash v. Louisville & Jefferson County Metropolitan Sewer Dist., 309 Ky. 442 , 217 S.W.2d 232, 1949 Ky. LEXIS 670 ( Ky. 1949 ).

Where amending act was complete within itself and would stand alone as new law without reference to act being amended, only amendment and not new law being amended needed to be published. Commonwealth v. Scott, 310 Ky. 537 , 221 S.W.2d 64, 1949 Ky. LEXIS 956 ( Ky. 1949 ).

Statute could not be considered as having been amended or revised where it had not been re-enacted or published at length. Holcomb v. Mayes, 290 S.W.2d 486, 1956 Ky. LEXIS 326 ( Ky. 1956 ).

Where each amended subsection constituted law in and of itself, republication of such subsection constituted publication of law within meaning of this section. Allphin v. Ohio River Co., 306 S.W.2d 94, 1957 Ky. LEXIS 17 ( Ky. 1957 ).

9.Amendment.

Section of statutes which was general law and not amendatory act did not violate this section. Mullins v. Andrews, 45 S.W. 231, 20 Ky. L. Rptr. 20 , 1898 Ky. LEXIS 336 (Ky. Ct. App. 1898).

Act entitled “An act to amend and re-enact an act approved March 20, 1898 entitled ‘An act concerning the assessment for taxation of corporate franchises by cities of the first and second classes’” did not warrant provision extending the provisions of the earlier act to cities of third class. Henderson Bridge Co. v. Alves, 122 Ky. 46 , 90 S.W. 995, 28 Ky. L. Rptr. 994 , 1906 Ky. LEXIS 18 ( Ky. 1906 ).

Where act purported to amend certain section of statutes by addition of specific clause designated as “a,” fact that such act also added additional subsection “2” did not violate this section, since whole amendment applied to same subject; moreover, even if such additional subsection should be invalid, remainder of statute as amended would stand. Louisville & N. R. Co. v. Herndon's Adm'r, 126 Ky. 589 , 104 S.W. 732, 31 Ky. L. Rptr. 1059 , 1907 Ky. LEXIS 89 ( Ky. 1907 ).

In amending act, existence of discrepancy between opening clause, designating words to be added, and clause actually setting out section as amended, was immaterial, since amendment as actually set out complied with this section. Commonwealth v. McNutt, 133 Ky. 702 , 118 S.W. 978, 1909 Ky. LEXIS 223 ( Ky. 1909 ).

Amendment meant to alter by addition, taking away or modification. Aldridge v. Commonwealth, 192 Ky. 215 , 232 S.W. 619, 1921 Ky. LEXIS 37 ( Ky. 1921 ).

Act which merely provides manner in which liability set out in earlier statute may be enforced is not amendatory of earlier statute. Hughes v. Marvin, 216 Ky. 190 , 287 S.W. 561, 1926 Ky. LEXIS 872 ( Ky. 1926 ).

Title purporting to amend certain statutory section relating to jurisdiction and powers generally of fiscal courts was naturally connected with provision in act authorizing employment of auditor. Fox v. Head, 231 Ky. 490 , 21 S.W.2d 804, 1929 Ky. LEXIS 298 ( Ky. 1929 ).

An act relating to planning and zoning did not contain two subjects where it amended a section relating to the incorporation of cities by adding a subsection thereto providing for planning and zoning and it was pointed out that the added subsection was quoted within the title and was in fact an independent act. Fiscal Court of Jefferson County v. Anchorage, 393 S.W.2d 608, 1965 Ky. LEXIS 243 ( Ky. 1965 ).

The purpose of the 1968 amendment to KRS 147.660 was to make changes in that section with respect to matters other than the rate of tax and it did not give the tax rate provision new vitality so as to impliedly repeal intervening other legislation such as the “Roll-Back” law. Northern Kentucky Area Planning Com. v. Hensley, 468 S.W.2d 293, 1971 Ky. LEXIS 331 ( Ky. 1971 ).

10.— Implied.

Act entitled “An act conferring additional powers . . . . . ” did not purport to amend any prior statute and, although it in effect amended some other statute, it was nevertheless valid without setting out in full statute it impliedly amended. Hardin County Kentucky Tel. Co. v. Elizabethtown, 227 Ky. 778 , 14 S.W.2d 162, 1929 Ky. LEXIS 981 ( Ky. 1929 ).

No section was amended or repealed by provisions of act except those specifically referred to in title. Barnett v. Caldwell, 231 Ky. 514 , 21 S.W.2d 838, 1929 Ky. LEXIS 318 ( Ky. 1929 ).

Where title expresses subject of act, it is not necessary that it state what former legislation is impliedly repealed or amended thereby. Game & Fish Com. v. Talbott, 251 Ky. 268 , 64 S.W.2d 889, 1933 Ky. LEXIS 850 ( Ky. 1933 ).

Act did not revise, restrict, or modify any provisions of any statutes except those designated therein. Petty v. Talbott, 256 Ky. 688 , 76 S.W.2d 940, 1934 Ky. LEXIS 475 ( Ky. 1934 ).

The provision of act for appeal from the action of the school board in dividing the county into school divisions was only incidental to the operation of the statute, and it was not necessary for the title to specify that KRS 25.110 (repealed) was being impliedly amended and that the appeal was being provided. Snelling v. Franklin County Board of Education, 283 Ky. 572 , 142 S.W.2d 147, 1940 Ky. LEXIS 375 ( Ky. 1940 ).

Where title indicates that sole purpose of act is to amend specific sections of a named law, the act cannot constitutionally amend by implication another law. Wilson v. Goodin, 291 Ky. 144 , 163 S.W.2d 309, 1942 Ky. LEXIS 196 ( Ky. 1942 ).

This section did not require that statutes which were amended or repealed merely by implication, or by superseding effect of later act, be republished and set forth at length. Board of Trustees v. Paducah, 333 S.W.2d 515, 1960 Ky. LEXIS 196 ( Ky. 1960 ).

The fact that the act which enacted law relating to planning and zoning repealed, superseded and amended a former provision relating to a similar area and other sections by implication did not constitute an amendment to an existing law so as to be required to be set forth in full. Fiscal Court of Jefferson County v. Anchorage, 393 S.W.2d 608, 1965 Ky. LEXIS 243 ( Ky. 1965 ).

11.— Re-enactment.

Act entitled “An act to amend an act entitled ‘An act to create a board of penitentiary commissioners and to regulate the penal institutions of this commonwealth,’” which provided that act referred to in title be amended by adding a section providing for division of convicts into two classes, violated this section since it was apparent from both title of act and body that it was intention of legislature to amend former act and not to enact new law under separate title relating to same subject. Board of Penitentiary Comm'rs v. Spencer, 159 Ky. 255 , 166 S.W. 1017, 1914 Ky. LEXIS 781 ( Ky. 1914 ).

Act entitled “An act to amend the charter of cities of the third class,” which stated that it amended a certain statute by adding a new section thereto, in fact amended other statute, and since it did not refer to that statute or reenact it as amended, it violated this section providing that no law shall be amended by reference to its title only, but so much as is amended shall be reenacted and published at length. Hickman v. Kimbley, 161 Ky. 652 , 171 S.W. 176, 1914 Ky. LEXIS 118 ( Ky. 1914 ).

Statute provided for deposit of certain sum with state treasurer before insurance company could begin business, and later statute increased amount of deposit required without referring to earlier statute. The later statute amended earlier statute and was invalid, not re-enacting or republishing the provisions amended, as required by this section. Hall v. Clay, 162 Ky. 197 , 172 S.W. 513, 1915 Ky. LEXIS 49 ( Ky. 1915 ).

Where act amended prior statute by adding subsection which was complete in itself without reference to any other law or other subsections, re-enactment and publication of all other subsections of statute thus amended was unnecessary. Henderson Traction Co. v. Henderson, 178 Ky. 124 , 198 S.W. 730, 1917 Ky. LEXIS 703 ( Ky. 1917 ).

Amendment was valid which was contained in act setting out such amendment and re-enactment at length. Kokas v. Commonwealth, 194 Ky. 44 , 237 S.W. 1090, 1922 Ky. LEXIS 99 ( Ky. 1922 ).

Act could require any company writing surety bonds or insurance to comply with other applicable insurance laws without re-enacting and publishing at length such other laws. Lyman v. Ramey, 195 Ky. 223 , 242 S.W. 21, 1922 Ky. LEXIS 306 ( Ky. 1922 ).

Where old statute provided penalties for burglary and robbery, attempt at amending such statute by setting out penalty for burglary with provision that robbery penalty was not thus affected was invalid under this section, as such attempt purported to preserve old robbery penalty without actually setting it out. Gibson v. Commonwealth, 209 Ky. 101 , 272 S.W. 43, 1925 Ky. LEXIS 436 ( Ky. 1925 ).

Act which made certain vehicle offense grand larceny did not constitute extension or amendment of grand larceny statute without re-enactment in violation of this section. Clark v. Commonwealth, 209 Ky. 184 , 272 S.W. 430, 1925 Ky. LEXIS 458 ( Ky. 1925 ).

Amending act which added new subsection (36) to such act was not violative of this section in not embodying already existing 35 subsections. Central Kentucky Natural Gas Co. v. Mt. Sterling, 32 F.2d 338, 1928 U.S. Dist. LEXIS 1747 (D. Ky. 1928 ).

An act which had been once amended and re-enacted could be again amended and re-enacted if new act was complete, independent act and if no constitutional provision was violated. Elizabethtown v. Lanz, 209 Ky. 815 , 273 S.W. 500, 1925 Ky. LEXIS 609 ( Ky. 1925 ).

Omission of section in amending act left such section in full force as originally enacted. Taylor v. Landrum, 241 Ky. 79 , 43 S.W.2d 347, 1931 Ky. LEXIS 21 ( Ky. 1931 ).

General act did not require any reference in title to prior acts which it might affect, and was not violative of this section in not re-enacting and publishing prior acts thus affected. Burton v. Mayer, 274 Ky. 245 , 118 S.W.2d 161, 1938 Ky. LEXIS 233 ( Ky. 1938 ).

The 1948 act amending subsections (7) and (10) of KRS 76.080 was unconstitutional on grounds that the provisions of this section were not complied with in that the subsections, being dependent upon an introductory clause to make them complete and meaningful, now do not make complete sense standing alone because the necessary introductory clause was not re-enacted in the amendment. Rash v. Louisville & Jefferson County Metropolitan Sewer Dist., 309 Ky. 442 , 217 S.W.2d 232, 1949 Ky. LEXIS 670 ( Ky. 1949 ).

The 1946 act which amended KRS 435.240 (repealed) by adding thereto a new subsection, designated as subsection (3), was unconstitutional because it violated this section in that subsections (1) and (2) of KRS 435.240 (repealed), upon which the new subsection must depend in order to make complete sense, were not republished and re-enacted in the act. Commonwealth v. Scott, 310 Ky. 537 , 221 S.W.2d 64, 1949 Ky. LEXIS 956 ( Ky. 1949 ).

12.— Reference to Section.

An amendatory statute need not make direct reference to any particular section of the law amended or repealed, or set out that part of the former law which is repealed. Purnell v. Mann, 105 Ky. 87 , 48 S.W. 407, 1898 Ky. LEXIS 244 ( Ky. 1 898 ), overruled, Pratt v. Breckinridge, 112 Ky. 1 , 65 S.W. 136, 23 Ky. L. Rptr. 1356 , 1901 Ky. LEXIS 286 ( Ky. 1901 ).

Under statute providing that any chapter or section of Kentucky Statutes might be amended or repealed by reference to number of the chapter or section without giving the date or title of the act from which the chapter or section was taken, act entitled “An act to amend and re-enact (certain) section of the Kentucky Statutes” was not defective. Paducah v. Petitioner, 125 Ky. 510 , 101 S.W. 898, 31 Ky. L. Rptr. 170 , 1907 Ky. LEXIS 307 (Ky. Ct. App. 1907).

An act amending one subsection and referring to another in the title would be invalid. In re Barker, 132 Ky. 220 , 116 S.W. 686, 1909 Ky. LEXIS 109 ( Ky. 1909 ).

Where only subject mentioned in title of act in question was amendment of certain sections of particular statute, so much of act as related to section not expressed in title was void. Walters v. Brown, 215 Ky. 196 , 284 S.W. 1017, 1926 Ky. LEXIS 676 ( Ky. 1926 ).

Reference to particular section to be amended, giving section number, was sufficient compliance with this section, and naming of chapter in title was unnecessary. Guess v. Linton, 236 Ky. 87 , 32 S.W.2d 718, 1930 Ky. LEXIS 691 ( Ky. 1930 ).

Section of statutes could be amended by referring to it alone in title of amending act, and other sections not so referred to would remain in force and unaffected unless plainly in conflict with such amended section. Wheeler v. Board of Comm'rs, 245 Ky. 388 , 53 S.W.2d 740, 1932 Ky. LEXIS 614 ( Ky. 1932 ).

Intent of this section was fully carried out when title of act called attention to section or chapter of statutes to be repealed or amended, especially since section so amended and re-enacted was set forth at length. Frost v. Johnston, 262 Ky. 592 , 90 S.W.2d 1045, 1936 Ky. LEXIS 82 ( Ky. 1936 ).

One section of an act may properly be amended by reference in title to the section, provided the amending act sets out in full the section as it will read after amendment. Board of Aldermen v. Hunt, 284 Ky. 720 , 145 S.W.2d 814, 1940 Ky. LEXIS 551 ( Ky. 1940 ).

Rule that where title of amendatory act refers to particular section there is no violation of this section provided act is set out in full as it will read after amendment should apply where two or more particular sections are correctly identified. Board of Aldermen v. Hunt, 284 Ky. 720 , 145 S.W.2d 814, 1940 Ky. LEXIS 551 ( Ky. 1940 ).

If the title of an act sets out the number of a section to be amended, the act sufficiently accords with Const., § 51. Hatcher v. Meredith, 295 Ky. 194 , 173 S.W.2d 665, 1943 Ky. LEXIS 191 ( Ky. 194 3).

Where title of act set out number of section to be amended, act sufficiently accorded with requirement that subject of act be expressed in title. Perkins v. Frankfort, 276 S.W.2d 449, 1955 Ky. LEXIS 422 ( Ky. 1955 ).

Amendment by reference to the pertinent section of Kentucky Statutes or Kentucky Revised Statutes does not appear to have been included in the purview of this section. Cook v. Ward, 381 S.W.2d 168, 1964 Ky. LEXIS 318 ( Ky. 1964 ).

13.— Reference to Title.

Statute could be amended by its title. Commonwealth v. McNutt, 133 Ky. 702 , 118 S.W. 978, 1909 Ky. LEXIS 223 ( Ky. 1909 ).

Act entitled “An act to amend an act entitled ‘An act to regulate . . . . . ’” was not violative or requirement that no law shall be amended by reference to its title only. Commonwealth v. Burk's Springs Distilling Co., 137 Ky. 224 , 125 S.W. 306, 1910 Ky. LEXIS 561 ( Ky. 1910 ).

Act authorizing second-class cities to adopt the commission form of government, which was phrased as an amendment to the city charter law, did not violate provision that no law shall be revised or extended by reference to title only, since act did not revise or extend earlier act but merely left it inoperative in cities adopting commission form of government. Bryan v. Voss, 143 Ky. 422 , 136 S.W. 884, 1911 Ky. LEXIS 429 ( Ky. 1911 ).

Act which according to its title purported to amend certain section of prior enactment was invalid under this section where no such section existed concerning stated subject matter. Tompkinsville Graded Common School v. Jackson, 189 Ky. 251 , 224 S.W. 876, 1920 Ky. LEXIS 410 ( Ky. 1920 ).

Where title of act purported to amend statutory section concerning concealed weapons and body of act merely stated that all judges would have jurisdiction of first offense “herein described,” fact that no such offense was described therein invalidated such act as amendment by reference to title only. Commonwealth v. Bowman, 191 Ky. 647 , 231 S.W. 35, 1921 Ky. LEXIS 356 ( Ky. 1921 ).

Act which expressly stated that it was enacted in accord with prior act did not violate this section by revising, amending, extending or conferring such prior act by reference. Hunter v. Louisville, 199 Ky. 834 , 252 S.W. 119, 1923 Ky. LEXIS 946 ( Ky. 1923 ).

The manner of procedure for accomplishment of certain purposes may be prescribed by reference to other sections of the statute without violating provision of this section against incorporation by reference to title only. Hart v. Commonwealth, 207 Ky. 343 , 269 S.W. 300, 1924 Ky. LEXIS 9 ( Ky. 1924 ).

Where condemnation act provided that all proceedings had thereunder would be in same manner used in condemning land for railroads, provisions of other laws were not included by reference to title only in violation of this section. Hart v. Commonwealth, 207 Ky. 343 , 269 S.W. 300, 1924 Ky. LEXIS 9 ( Ky. 1924 ).

Act did not violate this section which amended prior statute by reference to its title, where first paragraph of such statute was set out. Edrington v. Payne, 225 Ky. 86 , 7 S.W.2d 827, 1928 Ky. LEXIS 708 ( Ky. 1928 ).

Act could provide manner of procedure by reference to other sections of statutes without violating this section’s inhibition against extending or conferring provisions of law by reference to its title only. Reeves v. Simons, 289 Ky. 793 , 160 S.W.2d 149, 1942 Ky. LEXIS 637 ( Ky. 1942 ).

Act which created one new section of local option law, repealed one section, and amended two other sections by setting them forth at length in amended form was not subject to the criticism that it amended the local option law by reference to its title only. May v. Drake, 309 Ky. 819 , 219 S.W.2d 31, 1949 Ky. LEXIS 816 ( Ky. 1949 ).

14.Subject.

Act entitled “An act for the better enforcement of” a local option law of certain date “and to amend” a certain section thereof, and which defines essentials of indictment, describes violations of law, and requires good behavior bond in certain instances, relates to only one subject which is expressed in its title. Huyser v. Commonwealth, 116 Ky. 410 , 76 S.W. 174, 25 Ky. L. Rptr. 608 , 1903 Ky. LEXIS 204 ( Ky. 1903 ).

Act entitled “An act to regulate the holding of circuit courts in counties in which there are towns over seventeen miles from the county seat, and having a larger population than the county seat,” which provided that in counties of the type mentioned in the title the circuit court should be held alternately in the county seat and in the larger town and provided that larger town should bear certain expenses, was not violative of rule that act shall relate to only one subject. Johnson v. Fulton, 121 Ky. 594 , 89 S.W. 672, 28 Ky. L. Rptr. 569 , 1905 Ky. LEXIS 243 ( Ky. 1905 ).

Act entitled “An act relating to revenue and taxation . . . . . ” and providing for regular reports to auditor of public accounts had as its purpose raising of revenue, notwithstanding it purported to do other things as well. H. A. Thierman Co. v. Commonwealth, 123 Ky. 740 , 97 S.W. 366, 30 Ky. L. Rptr. 72 , 1906 Ky. LEXIS 208 (Ky. Ct. App. 1906).

It is permissible that various features of the single subject may be legislated upon in an act, so long as they are cognate and logically pertain to the subject. Commonwealth v. Patrick, 127 Ky. 473 , 105 S.W. 981, 32 Ky. L. Rptr. 343 , 1907 Ky. LEXIS 157 ( Ky. 1907 ).

Act entitled “An act to amend the school laws and create boards of education and define their duties in cities of the first class” did not violate requirement that no law shall relate to more than one subject and that shall be expressed in the title. Mark v. Bloom, 141 Ky. 474 , 133 S.W. 203, 1911 Ky. LEXIS 23 ( Ky. 1911 ).

Title of act “defining powers of the several county courts within this commonwealth,” and act itself pursuant thereto, did not result in creation of any new court, since such result would be inconsistent with requirements of this section that acts relate to only one subject as expressed in title. Marlow v. Commonwealth, 142 Ky. 106 , 133 S.W. 1137, 1911 Ky. LEXIS 135 ( Ky. 1911 ).

Act entitled “An act permitting C.C. to sue the state for a fee for legal services performed” was not invalid though it provided not only for maintenance of suit but validated contract between plaintiff and attorney general providing fee for such services. Carroll v. Bosworth, 151 Ky. 337 , 151 S.W. 916, 1912 Ky. LEXIS 803 ( Ky. 1912 ).

The inhibition of this section is leveled against inclusion in one act of unrelated matters, and does not prevent enactment under one title of several remedies which all apply to same subject matter. Carroll v. Bosworth, 151 Ky. 337 , 151 S.W. 916, 1912 Ky. LEXIS 803 ( Ky. 1912 ).

Where act amended various statutes and title of such act related to only one subject as did body of act, this section was not violated. London v. Brown, 183 Ky. 63 , 208 S.W. 317, 1919 Ky. LEXIS 436 ( Ky. 1919 ).

Act related only to subject of employment of convicts, even though provisions included various places of employment and payment therefor. State Board of Charities & Corrections v. Hays, 190 Ky. 147 , 227 S.W. 282, 1920 Ky. LEXIS 554 ( Ky. 1920 ).

Statute could contain provisions relating to both police and fire departments as one subject, since such departments were part of one branch of city administration. Stone v. Lexington, 192 Ky. 60 , 232 S.W. 50, 1921 Ky. LEXIS 6 ( Ky. 1921 ).

Where act prohibited liquor manufacture, regulated liquor manufacturing equipment, regulated nonbeverage alcohol, imposed penalties for violation, and specified certain duties to be had by various attorneys and courts, such act did not violate this section as relating to more than one subject to be expressed in title thereof. Lakes v. Goodloe, 195 Ky. 240 , 242 S.W. 632, 1922 Ky. LEXIS 342 ( Ky. 1922 ).

Act whose title did not relate to more than one subject was valid even where such title was overly elaborate. Allen v. Cromwell, 203 Ky. 836 , 263 S.W. 356, 1924 Ky. LEXIS 1017 ( Ky. 1924 ). See Kentucky & West Virginia Power Co. v. Holliday, 216 Ky. 78 , 287 S.W. 212, 1926 Ky. LEXIS 832 ( Ky. 1926 ); Earhart v. Middendorf, 234 Ky. 78 , 27 S.W.2d 657, 1929 Ky. LEXIS 455 ( Ky. 1929 ); Estes v. State Highway Com., 235 Ky. 86 , 29 S.W.2d 583, 1930 Ky. LEXIS 2 92 ( Ky. 1930 ); State Board of Health v. Willman, 241 Ky. 835 , 45 S.W.2d 458, 1932 Ky. LEXIS 2 ( Ky. 1932 ); State Budget Com. v. Adams, 249 Ky. 680 , 61 S.W.2d 314, 1933 Ky. LEXIS 584 ( Ky. 1933 ); Goodwin v. Anderson, 269 Ky. 11 , 106 S.W.2d 152, 1937 Ky. LEXIS 566 ( Ky. 1937 ), overruled, Barger v. Ward, 407 S.W.2d 397, 1966 Ky. LEXIS 152 ( Ky. 1966 ).

Act whose title related to prescription of powers of railroad commission referred to one subject of jurisdiction of such commission, and such subject was sufficiently expressed in title. United Fuel Gas Co. v. Railroad Com. of Kentucky, 13 F.2d 510, 1925 U.S. Dist. LEXIS 1505 (D. Ky. 1925 ), aff'd, 278 U.S. 300, 49 S. Ct. 150, 73 L. Ed. 390, 1929 U.S. LEXIS 335 (U.S. 1929).

Act authorizing cities of first class to construct bridges across navigable streams, providing for commission to operate such bridges and providing for issuance of revenue bonds did not deal with more than one subject or contain provisions not contained in title. Klein v. Louisville, 224 Ky. 624 , 6 S.W.2d 1104, 1928 Ky. LEXIS 663 ( Ky. 1928 ).

Fees and costs constituted one subject which was embraced by term “fees” used in title. Harbison v. George, 228 Ky. 168 , 14 S.W.2d 405, 1929 Ky. LEXIS 497 ( Ky. 1929 ).

Act which prohibited corrupt lobbying and required that legislative counsel and agents be registered did not violate this section by relating to more than one subject. Campbell v. Commonwealth, 229 Ky. 264 , 17 S.W.2d 227, 1929 Ky. LEXIS 756 ( Ky. 1929 ).

So long as details of an act all have some relation to the subject, there is no limit on the number of details allowed. Owensboro v. Hazel, 229 Ky. 752 , 17 S.W.2d 1031, 1929 Ky. LEXIS 843 ( Ky. 1929 ). See Lewis v. Coleman, 233 Ky. 266 , 25 S.W.2d 390, 1930 Ky. LEXIS 536 ( Ky. 1930 ).

Comprehensive act relating to malicious and intentional burning of all kinds of property, real or personal, did not relate to more than one subject, since one general subject of burning of property was expressed therein. Commonwealth v. Miller, 234 Ky. 147 , 27 S.W.2d 689, 1930 Ky. LEXIS 135 ( Ky. 1930 ).

Title which declared that act was for benefit of state tuberculosis sanatorium, and which described method, manner and means whereby proposed benefit should be accomplished, related to one subject only and constituted fair notification of general subject to be considered. Hughes v. State Board of Health, 260 Ky. 228 , 84 S.W.2d 52, 1935 Ky. LEXIS 443 ( Ky. 1935 ).

Title of local option law contained only one subject and thus was constitutional. Wilson v. Lawrence, 268 Ky. 179 , 103 S.W.2d 955, 1937 Ky. LEXIS 427 ( Ky. 1937 ). See Goodwin v. Anderson, 269 Ky. 11 , 106 S.W.2d 152, 1937 Ky. LEXIS 566 ( Ky. 1937 ), overruled, Barger v. Ward, 407 S.W.2d 397, 1966 Ky. LEXIS 152 ( Ky. 1966 ); Glidewell v. Pace, 269 Ky. 512 , 107 S.W.2d 325, 1937 Ky. LEXIS 627 (Ky. 1937).

Where only subject dealt with by appropriation bills was the appropriation of money, the bills did not violate the prohibition of this section against laws relating to more than one subject. Commonwealth ex rel. Meredith v. Johnson, 292 Ky. 288 , 166 S.W.2d 409, 1942 Ky. LEXIS 73 ( Ky. 1942 ).

If all of the provisions of the body of an act relate to the same subject and are naturally connected with it, it is within the legislative right to include them in one act under a general title. Fidelity & Columbia Trust Co. v. Meek, 294 Ky. 122 , 171 S.W.2d 41, 1943 Ky. LEXIS 404 ( Ky. 1943 ).

Incorporation of entire body of law in revision by single act, under comprehensive title, instead of dividing it into separate acts did not violate prohibition against any act embracing more than one subject. Fidelity & Columbia Trust Co. v. Meek, 294 Ky. 122 , 171 S.W.2d 41, 1943 Ky. LEXIS 404 ( Ky. 1943 ).

Act purporting to regulate practice of optometry, and to prevent such practice by anyone except in accordance with act, did not relate to more than one subject. Economy Optical Co. v. Kentucky Board of Optometric Examiners, 310 S.W.2d 783, 1958 Ky. LEXIS 408 ( Ky. 1958 ).

Act providing for payment of park bonds and highway bonds dealt with single subject of bond issuance and was thus valid. Walton v. Carter, 337 S.W.2d 674, 1960 Ky. LEXIS 363 ( Ky. 1960 ).

Where the issuance of bonds is the subject of an act, even though the money is to be devoted to several distinct and unrelated purposes, neither this section nor Const., § 6 is violated. Walton v. Carter, 337 S.W.2d 674, 1960 Ky. LEXIS 363 ( Ky. 1960 ).

KRS 136.120 does not violate this section of the Kentucky Constitution; it is not necessary under this section that the title of a statute agree with the body of the statute, only that the title of the act agree with the body of the act. Cooksey Bros. Disposal Co. v. Boyd County, 973 S.W.2d 64, 1997 Ky. App. LEXIS 132 (Ky. Ct. App. 1997), cert. denied, 525 U.S. 930, 119 S. Ct. 338, 142 L. Ed. 2d 279, 1998 U.S. LEXIS 6495 (U.S. 1998).

15.— More Than One.

Act purporting to amend charter of turnpike road company could also provide for levy of tax to be paid to such company without unconstitutionally relating to more than one subject. Bierley v. Quick Run & O. R. Turnpike Road Co., 29 S.W. 874, 17 Ky. L. Rptr. 36 (1895).

Act entitled “An act concerning the assessment and valuation for taxation of corporate franchises and intangible property by cities of the first and second class” was not invalid for containing more than one subject since it applied to cities of different classes. Murphy v. Louisville, 114 Ky. 762 , 71 S.W. 934, 24 Ky. L. Rptr. 1574 , 1903 Ky. LEXIS 46 ( Ky. 1903 ).

Act entitled “An act to prevent lynching and injury and destruction of real and personal property . . . . . and to prevent the posting and circulating of threatening letters” did not violate this section, the general subject of the act being the better preservation of the public peace and the suppression of mobs and other unlawful confederations. Weber v. Commonwealth, 72 S.W. 30, 24 Ky. L. Rptr. 1726 (1903).

Even though act contained nine different sections relating to separate things, relationship of all of these to general topic expressed in title of act saved such act and title from violation of this section. Weber v. Commonwealth, 72 S.W. 30, 24 Ky. L. Rptr. 1726 (1903).

Where title recited that act defined public roads, provided for their establishment, regulation, construction, use, maintenance and created office of road engineer and prescribed his duties and also specified tolls to be charged on turnpikes privately owned and prohibited collection of tolls unless roads were constructed in certain manner, such act was invalid, since it related to more than one subject and was not expressed in title. Burton v. Monticello & Burnside Turnpike Co., 162 Ky. 787 , 173 S.W. 144, 1915 Ky. LEXIS 163 ( Ky. 1915 ).

Act which embraced more than one subject was totally invalid if each subject was set out fully in title, although if only one subject was so set out, such act was void as to other subjects only. State Board of Charities & Corrections v. Hays, 190 Ky. 147 , 227 S.W. 282, 1920 Ky. LEXIS 554 ( Ky. 1920 ).

Act was void which contained provisions relating to more than one subject, where the invalid portions could not reasonably be severed from the rest of the act. Owensboro v. Hazel, 229 Ky. 752 , 17 S.W.2d 1031, 1929 Ky. LEXIS 843 ( Ky. 1929 ).

Where act violated this section as having more than one subject, subjects could be separated and void portions thereof eliminated if remaining portion could stand consistently with intent of legislature. Owensboro v. Hazel, 229 Ky. 752 , 17 S.W.2d 1031, 1929 Ky. LEXIS 843 ( Ky. 1929 ). See Lewis v. Coleman, 233 Ky. 266 , 25 S.W.2d 390, 1930 Ky. LEXIS 536 ( Ky. 1930 ); State Board of Health v. Willman, 241 Ky. 835 , 45 S.W.2d 458, 1932 Ky. LEXIS 2 ( Ky. 1932 ).

The subject of minimum wages, even though limited to a certain group of businesses which sell alcoholic beverages, is clearly beyond the “general idea” of a bill pertaining to alcoholic beverage control; accordingly, 1982 amendment to KRS 244.290(5) to include minimum wage provisions in act primarily concerned with alcoholic beverage control violated this section prohibiting legislation dealing with more than one subject. Lewis v. Captain's Quarters, Inc., 655 S.W.2d 26, 1983 Ky. App. LEXIS 331 (Ky. Ct. App. 1983).

The Unfair Claims Settlement Practices Act, KRS 304.12-230 , pertains only to insurance and not to persons or entities who are not insured since it would otherwise relate to more than one subject and would, therefore, be unconstitutional. Davidson v. American Freightways, Inc., 25 S.W.3d 94, 2000 Ky. LEXIS 101 ( Ky. 2000 ).

16.—Title.

An act purporting by its title to regulate the sale of spirituous, vinous, or malt liquors, or any intoxicating beverage, all the provisions of which act are directly pertinent to that purpose, does not violate this section. White v. Commonwealth, 50 S.W. 678, 20 Ky. L. Rptr. 1942 (1899).

Act entitled “An act concerning the employees and servants in mining work or industry in this commonwealth” and amending a prior act relating to the same subject so as to require that persons engaging in mining pay their employees on certain dates, forbidding blacklisting and declaring that any violation of the act should be a misdemeanor did not violate requirement that subject be expressed in title. Commonwealth v. Reinecke Coal Min. Co., 117 Ky. 885 , 79 S.W. 287, 25 Ky. L. Rptr. 2027 , 1904 Ky. LEXIS 258 ( Ky. 1904 ).

Act entitled “An act to amend and reenact an act entitled ‘An act concerning conveyances,’” which statute made it unlawful for clerk to admit to record any deed unless it specified the immediate source from which grantor derived title, was not unconstitutional on ground that subject was not embraced in title. McPherson v. Gordon, 96 S.W. 791, 29 Ky. L. Rptr. 1073 , 29 Ky. L. Rptr. 826 , 1906 Ky. LEXIS 287 ( Ky. 1906 ).

Title of act, in order to meet requirements of this section, need not contain all details of body of act, but title should be so related to body as to naturally embrace in it the terms of the title. Wiemer v. Commissioners of Sinking Fund, 124 Ky. 377 , 99 S.W. 242, 30 Ky. L. Rptr. 523 , 1907 Ky. LEXIS 188 ( Ky. 1907 ).

Act entitled “An act relating to revenue and taxation” which provided, among other things, for forfeiture of land upon failure to pay taxes did not violate this section. Eastern Kentucky Coal Lands Corp. v. Commonwealth, 127 Ky. 667 , 106 S.W. 260 ( Ky. 1907 ), aff'd, 219 U.S. 140, 31 S. Ct. 171, 55 L. Ed. 137, 1911 U.S. LEXIS 1626 (U.S. 1911).

Where it was clear from title that act related to certain items, fact that certain section of act did not enumerate such items would not eliminate them from act if it could be clearly shown by other sections of act that legislature intended their inclusion. Tyson v. Board of Trustees, 139 Ky. 256 , 129 S.W. 820, 1910 Ky. LEXIS 29 ( Ky. 1910 ).

It should be made to appear and the court should be satisfied that the variance between title of act and body thereof is such as to bring it within range of evils sought to be guarded against, and such as to justify its condemnation upon that ground alone. Bowman v. Hamlett, 159 Ky. 184 , 166 S.W. 1008, 1914 Ky. LEXIS 778 ( Ky. 1914 ). See Stone v. Lexington, 192 Ky. 60 , 232 S.W. 50, 1921 Ky. LEXIS 6 ( Ky. 1921 ).

If all the provisions of an act relate to the same subject, are naturally connected, and are not foreign to the subject expressed in the title, it is sufficient. Williams v. Wedding, 165 Ky. 361 , 176 S.W. 1176, 1915 Ky. LEXIS 531 ( Ky. 1915 ). See Conley v. Commonwealth, 98 Ky. 125 , 32 S.W. 285, 17 Ky. L. Rptr. 678 , 1895 Ky. LEXIS 20 ( Ky. 1895 ); Nunn v. Citizens' Bank, 107 Ky. 262 , 53 S.W. 665, 21 Ky. L. Rptr. 961 , 1899 Ky. LEXIS 168 ( Ky. 1899 ); McGlone v. Womack, 129 Ky. 274 , 111 S.W. 688, 33 Ky. L. Rptr. 811 , 33 Ky. L. Rptr. 864 , 1908 Ky. LEXIS 166 (Kan. Ct. App. 1908); Commonwealth v. Starr, 160 Ky. 260 , 169 S.W. 743, 1914 Ky. LEXIS 450 ( Ky. 1914 ); Lakes v. Goodloe, 195 Ky. 240 , 242 S.W. 632, 1922 Ky. LEXIS 342 ( Ky. 1922 ).

Act entitled “An act relating to the drainage of lands, establishment and construction of levees, ditches and drains, and straightening, widening and deepening of levees, ditches, creeks” did not violate this section, although act in providing general scheme for reclamation of swamps went into minute detail. Williams v. Wedding, 165 Ky. 361 , 176 S.W. 1176, 1915 Ky. LEXIS 531 ( Ky. 1915 ).

When subject in body of act foreign to title thereof is capable of separation from act without affecting the otherwise valid portions, such invalid subject will be condemned and the remainder allowed to stand. Bosworth v. State University, 166 Ky. 436 , 179 S.W. 403, 1915 Ky. LEXIS 705 ( Ky. 1915 ) ( Ky. 1915 ).

Where title of act recited it was to prevent manufacture and sale of adulterated and misbranded products and certain section provided that agricultural experiment station should receive certain sum for analysis of foods and drugs and limited total expenses from all sources, such act was void, since subject of such section was not expressed in title. Bosworth v. State University, 166 Ky. 436 , 179 S.W. 403, 1915 Ky. LEXIS 705 ( Ky. 1915 ) ( Ky. 1915 ).

Court, in its determination of validity of title of act pursuant to this section, had no authority to add to or subtract from such title. South v. Fish, 181 Ky. 349 , 205 S.W. 329, 1918 Ky. LEXIS 530 ( Ky. 1918 ).

Statute did not violate this section because its title was general if there was necessary connection between it and subject matter of such statute. South v. Fish, 181 Ky. 349 , 205 S.W. 329, 1918 Ky. LEXIS 530 ( Ky. 1918 ).

Fact that title of act was unnecessarily elaborate did not constitute violation of this section where such title was not deceptive or misleading. Carman v. Hickman County, 185 Ky. 630 , 215 S.W. 408, 1919 Ky. LEXIS 351 ( Ky. 1919 ).

Statutory title could be as general as legislature chose to make it as long as provisions of statute had natural connection with subject expressed in such title. District Board, etc. v. Bradley, 188 Ky. 426 , 222 S.W. 518, 1920 Ky. LEXIS 298 ( Ky. 1920 ).

This section, with respect to subject and title, was mandatory. Commonwealth v. Florence, 192 Ky. 236 , 232 S.W. 369, 1921 Ky. LEXIS 15 ( Ky. 1921 ). See Commonwealth v. Robinson, 192 Ky. 374 , 233 S.W. 791, 1921 Ky. LEXIS 71 ( Ky. 1921 ).

In title of act, neither statement of method of carrying out act’s subject nor statement of act’s subject in more than needed detail would affect validity of act. Lakes v. Goodloe, 195 Ky. 240 , 242 S.W. 632, 1922 Ky. LEXIS 342 ( Ky. 1922 ).

Where body of act was more broad than title, part of body referred to in title remained valid, unless such remaining portion could not be reasonably presumed to have been passed by legislature without invalidated portion. Hunter v. Louisville, 199 Ky. 834 , 252 S.W. 119, 1923 Ky. LEXIS 946 ( Ky. 1923 ).

Where title indicated joint action by city and county, and body of act referred to county action as dependent upon prior action by city, there was no unconstitutional difference between such title and body. Hunter v. Louisville, 199 Ky. 834 , 252 S.W. 119, 1923 Ky. LEXIS 946 ( Ky. 1923 ).

Act increasing fees of jailers in all counties for keeping and dieting prisoners did not violate this section, though first part of act indicated purpose to charge fee only in counties having first class cities, since title was broad enough to permit construction that statute applied to all counties. Rogers v. Madison County Fiscal Court, 202 Ky. 213 , 259 S.W. 38, 1924 Ky. LEXIS 679 ( Ky. 1924 ). See Winchester v. Azbill, 225 Ky. 389 , 9 S.W.2d 51, 1928 Ky. LEXIS 791 ( Ky. 1928 ).

Act embracing administration of county public schools did not violate this section by failing to refer in title to removal of county superintendent from office. Graham v. Jewell, 204 Ky. 260 , 263 S.W. 693, 1924 Ky. LEXIS 405 ( Ky. 1924 ), overruled, Letcher v. Commonwealth, 414 S.W.2d 402, 1966 Ky. LEXIS 12 ( Ky. 1966 ).

Title reading “Act to provide for more adequate punishment for bank robbery” did not purport to amend prior or existing law, and subject matter could set out elements of crime referred to in title as well as provision for punishment. McPherson v. Commonwealth, 234 Ky. 523 , 28 S.W.2d 768, 1930 Ky. LEXIS 223 ( Ky. 1930 ).

It was not required that title state general manner in which object of act was to be accomplished. Estes v. State Highway Com., 235 Ky. 86 , 29 S.W.2d 583, 1930 Ky. LEXIS 292 ( Ky. 1930 ).

Where title stated subject to be provision for registration of changes in location of residences of city inhabitants, body could designate means and agencies by which such registration would be effected without violation of this section. Dowdy v. Covington, 237 Ky. 274 , 35 S.W.2d 304, 1931 Ky. LEXIS 588 ( Ky. 1931 ).

Act whose title read “An act concerning gaming” necessarily covered all matters concerning gaming, including that embraced as well as that excluded from terms of law. Commonwealth v. Kentucky Jockey Club, 238 Ky. 739 , 38 S.W.2d 987, 1931 Ky. LEXIS 321 ( Ky. 1931 ).

It was not form, but subject, which was required to be embraced by title. Commonwealth v. Kentucky Jockey Club, 238 Ky. 739 , 38 S.W.2d 987, 1931 Ky. LEXIS 321 ( Ky. 1931 ).

Law known as “gross sales tax law” was not unconstitutional because of alleged defect in title. Moore v. State Board of Charities & Corrections, 239 Ky. 729 , 40 S.W.2d 349, 1931 Ky. LEXIS 864 ( Ky. 1931 ).

Act violated this section where title did not embrace subject matter. Roberts v. Commonwealth, 241 Ky. 591 , 44 S.W.2d 577, 1931 Ky. LEXIS 134 ( Ky. 1931 ).

Where certain sections of act were wholly foreign to title and thus void, rest of act would stand if unaffected by elimination of void portions. State Board of Health v. Willman, 241 Ky. 835 , 45 S.W.2d 458, 1932 Ky. LEXIS 2 ( Ky. 1932 ).

Title of act which fairly expressed its context and did not embrace more than one subject was valid under this section. Fields v. Nickell, 248 Ky. 526 , 58 S.W.2d 912, 1933 Ky. LEXIS 264 ( Ky. 1933 ).

Title of act was not required to contain all details of body, only requirement being that body should be so related to title as to be easily and naturally embraced within its terms. State Budget Com. v. Adams, 249 Ky. 680 , 61 S.W.2d 314, 1933 Ky. LEXIS 584 ( Ky. 1933 ).

Provision which was appropriate or relevant to subject of act, as expressed by its title, constituted necessary incident to object of such act. Ravitz v. Steurele, 257 Ky. 108 , 77 S.W.2d 360, 1934 Ky. LEXIS 511 ( Ky. 1934 ).

Acts, purpose of which was consolidation of existing laws, with rearrangement of supervision in execution of governmental functions to be performed, together with enactment of new measures incidental thereto, were not violative of this section if title was sufficiently broad to indicate purpose to be accomplished and body did not depart therefrom. Talbott v. Laffoon, 257 Ky. 773 , 79 S.W.2d 244, 1934 Ky. LEXIS 573 ( Ky. 1934 ).

Title of act must be construed with reference to language used in it alone, and not in light of what body of act contains. Talbott v. Laffoon, 257 Ky. 773 , 79 S.W.2d 244, 1934 Ky. LEXIS 573 ( Ky. 1934 ).

Where title of act begins with generally designated subject, followed by restrictive language curtailing scope of general designation, and in such form as to confine title to legislation within restrictions only, body of act may go no further than what is authorized by restrictions. Talbott v. Laffoon, 257 Ky. 773 , 79 S.W.2d 244, 1934 Ky. LEXIS 573 ( Ky. 1934 ).

Act entitled “An act to amend and re-enact certain sections of Kentucky Statutes prescribing punishment for robbery or burglary” did not violate this section. Fry v. Commonwealth, 259 Ky. 337 , 82 S.W.2d 431, 1935 Ky. LEXIS 316 ( Ky. 1935 ).

Section of act giving bridge commissioners authority and defining their powers was embraced within act’s title, as such title was sufficiently broad and furnished more than clue to contents of such section. Rentz v. Campbell County, 260 Ky. 242 , 84 S.W.2d 44, 1935 Ky. LEXIS 440 ( Ky. 1935 ).

It is not required that act split up general subject into subdivisions and recite each detail, only prerequisite being that title must furnish fair notification of general subject to be considered by law-making body. Hughes v. State Board of Health, 260 Ky. 228 , 84 S.W.2d 52, 1935 Ky. LEXIS 443 ( Ky. 1935 ).

Act did not violate this section where all its provisions were naturally related to and reasonably connected with subject expressed in title, and body contained nothing foreign to title. J. D. Van Hooser & Co. v. University of Kentucky, 262 Ky. 581 , 90 S.W.2d 1029, 1936 Ky. LEXIS 76 ( Ky. 1936 ).

Time at which enactment would become operative was not part of subject matter, and thus did not need to be referred to in title. Hill v. Taylor, 264 Ky. 708 , 95 S.W.2d 566, 1936 Ky. LEXIS 388 ( Ky. 1936 ).

This section only required that contents of act be so related to title as to be clearly embraced within its terms. Spahn v. Stewart, 268 Ky. 97 , 103 S.W.2d 651, 1937 Ky. LEXIS 405 ( Ky. 1937 ).

Title reading “An act relating to crimes and punishments” was fit, pat and proper title for habitual criminal act. Allen v. Commonwealth, 272 Ky. 533 , 114 S.W.2d 757, 1938 Ky. LEXIS 155 ( Ky. 1938 ).

Title did not need to contain details if general terms were broad enough to embrace subject matter of act. Burton v. Mayer, 274 Ky. 245 , 118 S.W.2d 161, 1938 Ky. LEXIS 233 ( Ky. 1938 ).

The body of an act may not go beyond the restrictions in the title. Ingram's Adm'r v. Advance Motor Co., 283 Ky. 87 , 140 S.W.2d 840, 1940 Ky. LEXIS 300 ( Ky. 1940 ).

This section does not require an act title to mention all the statutes that the act incidentally affects. Russell County Board of Education v. Leach, 288 Ky. 769 , 157 S.W.2d 70, 1941 Ky. LEXIS 160 ( Ky. 1941 ).

Failure of appropriation bill to detail the uses to which the money appropriated is to be devoted does not violate the provision of this section requiring that the subject be expressed in title. Commonwealth ex rel. Meredith v. Johnson, 292 Ky. 288 , 166 S.W.2d 409, 1942 Ky. LEXIS 73 ( Ky. 1942 ).

The title need not state the manner in which the object of the act is to be accomplished. Commonwealth ex rel. Meredith v. Johnson, 292 Ky. 288 , 166 S.W.2d 409, 1942 Ky. LEXIS 73 ( Ky. 1942 ).

As the title of law that provided for creation of children’s bureaus in each county defined and prescribed their duties and functions, the provision that counties should provide funds for children’s bureaus, when established, was within the purview of the title. Estill County v. Noland, 295 Ky. 753 , 175 S.W.2d 341, 1943 Ky. LEXIS 324 ( Ky. 1943 ).

The title of an act must give fair and reasonable notice of the nature and provisions of the act so that a member of the legislature or any other interested person reading the title may obtain a general notice or knowledge of its contents or what it proposes to do. Engle v. Bonnie, 305 Ky. 850 , 204 S.W.2d 963, 1947 Ky. LEXIS 865 ( Ky. 1947 ).

The title should fairly describe the subject matter in such a way as to apprise the legislature and the public of the purpose and content so as to give opportunity to objectors to be heard in opposition to vicious legislation. Reed v. Commonwealth, 306 Ky. 295 , 206 S.W.2d 949, 1947 Ky. LEXIS 998 ( Ky. 1947 ).

Title to Act 1948, ch. 180, which read: “An act relating to adequate sewer drainage facilities in cities of the first class and in counties containing such cities amending section 76.060 , subsection (7) of section 76.080 , subsection (10) of section 76.080 of the Kentucky Revised Statutes, subsection (5) of section 76.030 of Kentucky Revised Statutes and creating a new section relating to such facilities to wit: Number 76.091 Kentucky Revised Statutes” was a good title. Rash v. Louisville & Jefferson County Metropolitan Sewer Dist., 309 Ky. 442 , 217 S.W.2d 232, 1949 Ky. LEXIS 670 ( Ky. 1949 ).

A title which gives fair and reasonable notice of the nature of the legislation is adequate. May v. Drake, 309 Ky. 819 , 219 S.W.2d 31, 1949 Ky. LEXIS 816 ( Ky. 1949 ).

Where latter part of title made statement which might have resulted in possibility of misleading someone in relation to statement in first part of title, such possibility would not invalidate act where title taken as whole was not found to be misleading. Guthrie v. Curlin, 263 S.W.2d 240, 1953 Ky. LEXIS 1238 (Ky. Ct. App. 1953).

Acts 1963 (3rd Ex. Sess.), ch. 2, § 1, did not violate this section since subject matter in body was sufficiently embraced by title. Mann v. Cornett, 445 S.W.2d 853, 1969 Ky. LEXIS 185 ( Ky. 1969 ).

An act entitled “An act relating to education and the financing thereof” which contained provision authorizing taxes for schools met the constitutional requirements that it relate to one subject and that that subject be expressed in the title. Lamar v. Board Education, 467 S.W.2d 143, 1971 Ky. LEXIS 359 ( Ky. 1971 ).

The title of an act must give a general idea of its contents, but it need not refer specifically to every provision. Lewis v. Captain's Quarters, Inc., 655 S.W.2d 26, 1983 Ky. App. LEXIS 331 (Ky. Ct. App. 1983).

KRS 243.892 , which was enacted by Chapter 390 of 1982, is not germane to the subject matter suggested by the title of Chapter 390, “An Act Relating to Revenue and Taxation,” and does not satisfy the notice requirement of this section; therefore, the statute is unconstitutional. Farris v. Shoppers Village Liquors, Inc., 669 S.W.2d 213, 1984 Ky. LEXIS 236 ( Ky. 1984 ).

Where House Bill 286 (Ky. Acts 1986, ch. 485) introducing the enactment of KRS 371.065 was titled “An Act relating to commercial paper,” the legislature did not intend to render KRS 371.065 unconstitutional under this section by placing it in the KRS contract law chapter, KRS Chapter 371. The statute retained its exclusive applicability to guaranties of commercial paper irrespective of its particular situs in the Kentucky Revised Statutes. APL, Inc. v. Ohio Valley Aluminum, Inc., 839 S.W.2d 571, 1992 Ky. App. LEXIS 212 (Ky. Ct. App. 1992) (decided prior to the 1990 amendment).

KRS 278.509 , relating to gas pipelines, is not an unconstitutional violation of the title and single-subject provisions of Ky. Const. § 51; KRS 278.509 is sufficiently embraced within the term “gas delivery systems” to comply with Ky. Const., § 51, and although no other provision in the bill containing the present version § 278.509, HB 440, related to utility rates, a fraud was not committed, and the General Assembly did not title the Act to deceive the public. Ky. PSC v. Commonwealth ex rel. Stumbo, 2008 Ky. App. LEXIS 348 (Ky. Ct. App. Nov. 7, 2008), aff'd in part and rev'd in part, 324 S.W.3d 373, 2010 Ky. LEXIS 257 ( Ky. 2010 ).

17.— — Sufficiency.

Fact that title of act amending city charter did not refer to bond issuance provided for in such act did not constitute fatal defect under this section. Board of Trustees v. Maysville & B. S. R. Co., 97 Ky. 145 , 30 S.W. 1, 16 Ky. L. Rptr. 890 , 1895 Ky. LEXIS 154 ( Ky. 1895 ).

Act making interference with or obstruction of railroad track a felony and prescribing penalty, which was part of chapter entitled “Corporations — Private,” article entitled “Railroads” and subdivision entitled “General provisions concerning” was not unconstitutional as embracing a subject not embraced in title. Conley v. Commonwealth, 98 Ky. 125 , 32 S.W. 285, 17 Ky. L. Rptr. 678 , 1895 Ky. LEXIS 20 ( Ky. 1895 ).

In act entitled “An act relating to revenue and taxation,” subsection of said act entitled “Peddlers” and requiring that every note given for articles or rights sold by peddler should have written across face “peddler’s note” was sufficiently covered by title. Nunn v. Citizens' Bank, 107 Ky. 262 , 53 S.W. 665, 21 Ky. L. Rptr. 961 , 1899 Ky. LEXIS 168 ( Ky. 1899 ). See Rumbley v. Hall, 107 Ky. 349 , 54 S.W. 4, 21 Ky. L. Rptr. 1071 , 1899 Ky. LEXIS 177 ( Ky. 1899 ).

Act entitled “An act to make it unlawful for a person to fraudulently dispose of the property of another, and to provide a punishment,” which provided that any person who shall sell, dispose of or convert any money, property, or other thing of value without consent of owner, shall be punished, did not violate this section. Commonwealth v. Barney, 115 Ky. 475 , 74 S.W. 181, 24 Ky. L. Rptr. 2352 , 1903 Ky. LEXIS 116 ( Ky. 1903 ).

Act entitled “An act to provide for the registration of marriages, births and deaths” is sufficient to authorize provision in act requiring physicians to keep registry of births and deaths at which they have professionally attended and to deposit copy in county clerk’s office. Commonwealth v. McConnell, 116 Ky. 358 , 76 S.W. 41, 25 Ky. L. Rptr. 552 , 1903 Ky. LEXIS 193 ( Ky. 1903 ).

Provision that no mortgage or other instrument constituting lien or other security for any evidence of indebtedness shall be received by county clerk for record unless it contains post-office address of person owning evidence of indebtedness and provision that unless assignment of security for indebtedness is of record original holder shall be liable for taxes, contained in act entitled “An act relating to revenue and taxation,” did not violate this section. Shrader v. Semonin, 123 Ky. 605 , 96 S.W. 904, 29 Ky. L. Rptr. 1089 , 1906 Ky. LEXIS 190 ( Ky. 1906 ).

It is not essential to validity of act creating felony that title shall describe conditions under which it shall become effective; thus act entitled “An act to regulate crime and fix the punishment therefor” which provided that person stealing fowl worth $2.00 shall be confined in penitentiary did not violate this section. Diamond v. Commonwealth, 124 Ky. 418 , 99 S.W. 232, 30 Ky. L. Rptr. 655 , 1907 Ky. LEXIS 186 ( Ky. 1907 ). See Fry v. Commonwealth, 166 Ky. 670 , 179 S.W. 604, 1915 Ky. LEXIS 750 ( Ky. 1915 ).

Act entitled “An act relating to revenue and taxation, providing for license taxes on compounded, rectified, adulterated or blended distilled spirits . . . . . and providing penalties for violations of its provisions” and providing that every corporation engaged in rectifying, adulterating or blending distilled spirits shall pay a license tax on every gallon was not invalid under this section. Brown-Foreman Co. v. Commonwealth, 125 Ky. 402 , 101 S.W. 321, 30 Ky. L. Rptr. 793 , 1907 Ky. LEXIS 285 ( Ky. 1907 ), aff'd, 217 U.S. 563, 30 S. Ct. 578, 54 L. Ed. 883, 1910 U.S. LEXIS 1984 (U.S. 1910).

Act entitled “An act to promote the sheep industry and to provide a tax on dogs” was not invalid where it was apparent that subject matter of act was promotion of sheep industry, and that this is accomplished by imposition of tax on dogs for purpose of creating fund to compensate owners of sheep killed by dogs. McGlone v. Womack, 129 Ky. 274 , 111 S.W. 688, 33 Ky. L. Rptr. 811 , 33 Ky. L. Rptr. 864 , 1908 Ky. LEXIS 166 (Kan. Ct. App. 1908).

Act entitled “An act to amend an act entitled ‘An act to regulate the sale of intoxicating liquors by wholesale in this commonwealth,’” which made it unlawful to sell liquor at wholesale, with certain exceptions, to dealers in districts where the sale had been forbidden by the legislature or vote of the people, and that violation thereof should be violation of local option law with punishment thereunder, did not violate requirement that subject of each act should be expressed in its title. Commonwealth v. Burk's Springs Distilling Co., 137 Ky. 224 , 125 S.W. 306, 1910 Ky. LEXIS 561 ( Ky. 1910 ).

Title which read “An act to amend and re-enact sections 3094, 3096, 3097, 3098, 3099, 3100, 3101 and 3102, of the Kentucky Statutes, relating to the control and improvement of streets, public ways, landings, wharves, grounds and sidewalks in cities of the second class” was broad enough to cover subject matter contained in such act, and sufficiently complied with this section. Mulligan v. McGregor, 165 Ky. 222 , 176 S.W. 1129, 1915 Ky. LEXIS 509 ( Ky. 1915 ).

Title of act was not in violation of this section where it was more elaborate than required and covered every substantial feature of law. Greene v. Caldwell, 170 Ky. 571 , 186 S.W. 648, 1916 Ky. LEXIS 126 ( Ky. 1916 ).

Where subject of statute was transaction of business “under an assumed name or under any designation, name or style,” title of such statute relating to transaction “under an assumed or fictitious name” was sufficiently expressive of such subject. Commonwealth v. Bassett, 171 Ky. 385 , 188 S.W. 459, 1916 Ky. LEXIS 365 ( Ky. 1916 ).

Act providing for regulation and licensing of motor vehicles, title of which read “An act to regulate, license, and govern the use of motor vehicles,” was not violative of this section notwithstanding such act also provided for disposition of license fees. Smith v. Commonwealth, 175 Ky. 286 , 194 S.W. 367, 1917 Ky. LEXIS 334 ( Ky. 1917 ).

Act which provided that school districts be separated on basis of white and Negro schools was not violative of this section, where title read “An act to empower cities of fourth class to separate the management and control of their schools where the same are now under the control of a board of education.” Miller v. Feather, 176 Ky. 268 , 195 S.W. 449, 1917 Ky. LEXIS 37 ( Ky. 1917 ).

Where title of act was “An act to secure the registration of plumbers, and the supervision and inspection of plumbing and drainage in cities of the first class,” fact that such act provided for board of examiners’ appointment, plumbers’ examinations, and certification of successful applicants did not render act invalid under this section. Louisville v. Coulter, 177 Ky. 242 , 197 S.W. 819, 1917 Ky. LEXIS 592 ( Ky. 1917 ) ( Ky. 1917 ).

Act providing for change or alteration of public roads did not violate this section where title thereof read “An act defining public roads and providing for their establishment.” Gratzer v. Gertisen, 181 Ky. 626 , 205 S.W. 782, 1918 Ky. LEXIS 599 ( Ky. 1918 ).

Where act provided for payment by counties of expense of transporting children to house of reform and maintenance of such children, title reading “An act to further regulate the admission of inmates to the house of reform” was sufficiently expressive of act’s subject matter to be valid under this section. Lang v. Commonwealth, 190 Ky. 29 , 226 S.W. 379, 1920 Ky. LEXIS 543 ( Ky. 1920 ).

Where title of act referred to prohibition of manufacture, sale, transportation, or other disposition of alcoholic beverages, with certain exceptions, such act could validly prohibit act of being intoxicated on road. Commonwealth v. Robinson, 192 Ky. 374 , 233 S.W. 791, 1921 Ky. LEXIS 71 ( Ky. 1921 ).

Where title of act stated that one purpose was provision for tax levy for county common schools, provision for school support capitation tax was sufficiently embraced thereby. Fiscal Court of Jefferson County v. Jefferson County Board of Education, 196 Ky. 212 , 244 S.W. 764, 1922 Ky. LEXIS 511 ( Ky. 1922 ).

Title reading “An act to amend section 1155, Kentucky Statutes” was sufficiently definite, certain, and explicit relative to provisions thereunder to comply with this section. Morrison v. Commonwealth, 197 Ky. 107 , 246 S.W. 128, 1922 Ky. LEXIS 629 ( Ky. 1922 ).

Title purporting to repeal and re-enact certain section of statutes was not rendered defective by addition of words “relating to and fixing the compensation of the official stenographic reporters in the courts of this commonwealth,” such words being general and not restrictive as to subject matter of act. Jefferson County v. Cole, 204 Ky. 27 , 263 S.W. 1114, 1924 Ky. LEXIS 441 ( Ky. 1924 ).

Title was sufficient under this section if it purported to repeal or amend particular section of Kentucky Statutes. Jefferson County v. Cole, 204 Ky. 27 , 263 S.W. 1114, 1924 Ky. LEXIS 441 ( Ky. 1924 ).

Act which related to county commissioners’ deadlocks on election questions did not violate this section where title included statement that it was “An act relating to fiscal courts.” Kirchdorfer v. Tincher, 204 Ky. 366 , 264 S.W. 766, 1924 Ky. LEXIS 458 ( Ky. 1924 ).

Where title of act read “An act regulating the weight of load,” such act did not violate this section by providing fines to be paid to highway fund for unlawful hauling of loads over highway. Ex parte Lawrence, 204 Ky. 568 , 265 S.W. 287, 1924 Ky. LEXIS 557 ( Ky. 1924 ).

Title of act, prescribing duties and powers of railroad commission with respect to gas companies, was comprehensive and clearly inclusive of subject matter notwithstanding each duty imposed was not separately mentioned. United Fuel Gas Co. v. Railroad Com. of Kentucky, 13 F.2d 510, 1925 U.S. Dist. LEXIS 1505 (D. Ky. 1925 ), aff'd, 278 U.S. 300, 49 S. Ct. 150, 73 L. Ed. 390, 1929 U.S. LEXIS 335 (U.S. 1929).

Act whose title read “An act regulating the sale of leaf tobacco at public auction in this commonwealth” did not violate this section, since such title, while concise, comprehended all matters provided for in such act. Jewell Tabacco Warehouse Co. v. Kemper, 206 Ky. 667 , 268 S.W. 324, 1925 Ky. LEXIS 1023 ( Ky. 1925 ).

Act whose title related to prevention of fraud, deceit, or imposition in sale of securities, as well as authority to regulate securities business, could validly include in its body provision giving power and authority to securities commissioner to prevent unsound securities registration. Hampton Relaty Co. v. Middleton, 220 Ky. 603 , 295 S.W. 904, 1927 Ky. LEXIS 583 ( Ky. 1927 ).

Act purporting to prohibit manufacture and sale of intoxicating liquor was not invalid even though provision therein for fee payment to arresting officer was not referred to in title. Duke v. Boyd County, 225 Ky. 112 , 7 S.W.2d 839, 1928 Ky. LEXIS 712 ( Ky. 1928 ).

Fact that title was unnecessarily detailed did not violate this section. McDonald v. University of Kentucky, 225 Ky. 205 , 7 S.W.2d 1046, 1928 Ky. LEXIS 734 ( Ky. 1928 ).

Since salaries of members of judicial council were expenses of such council, authorization for payment thereof could be provided in statute whose title read “An act to establish the judicial council of the commonwealth of Kentucky, to provide for its duties and expenses.” Coleman v. Hurst, 226 Ky. 501 , 11 S.W.2d 133, 1928 Ky. LEXIS 121 ( Ky. 1928 ).

Where act compelled payment by certain date to continue lease, fact that title purported to enforce leases did not constitute variance, since “enforce” meant compel. Kelley v. Hardwick, 228 Ky. 349 , 14 S.W.2d 1098, 1929 Ky. LEXIS 545 ( Ky. 1929 ).

Where title provided for city manager type of municipal government, subject matter concerning putting into operation such government was sufficiently related to title. Owensboro v. Hazel, 229 Ky. 752 , 17 S.W.2d 1031, 1929 Ky. LEXIS 843 ( Ky. 1929 ).

Title purporting to amend act was not deficient because act was extended, such extension being embraced by term “amend.” Fitzpatrick v. Costigan, 230 Ky. 365 , 19 S.W.2d 983, 1929 Ky. LEXIS 84 ( Ky. 1929 ).

Title reading “Relating to the crime and punishment of arson” did not restrict act to common-law arson, since it was descriptive of prior section of law entitled “Arson” which related to general offenses of burning all property, real and personal, just as though such title had actually specified such prior section. Commonwealth v. Miller, 234 Ky. 147 , 27 S.W.2d 689, 1930 Ky. LEXIS 135 ( Ky. 1930 ).

Where first part of title stated sections to be repealed, then went on to say that act was to provide more adequately for establishment of consolidated school districts, such title clearly advanced idea that new provisions were to be inserted for those being repealed, as was done in body of act, and thus title was not violative of this section. Whalen v. County Board of Education, 239 Ky. 341 , 39 S.W.2d 475, 1931 Ky. LEXIS 768 ( Ky. 1931 ).

Where act purported to repeal and re-enact law concerning right of possession, title of such act was not defective in not containing word “possession,” since title need only indicate general contents and scope of act, not details. Russell v. County Board of Education, 247 Ky. 703 , 57 S.W.2d 681, 1933 Ky. LEXIS 452 ( Ky. 1933 ).

The title of a statute indicating that it concerned fiscal administration of counties and created a uniform budget system for the counties was sufficient under this section to cover the provisions empowering a state agency to implement and oversee the system. State Budget Com. v. Adams, 249 Ky. 680 , 61 S.W.2d 314, 1933 Ky. LEXIS 584 ( Ky. 1933 ).

Title “relating to the office of stenographer” sufficiently embraced provision in body creating “office of stenographer or clerk” such that act was valid under this section. Taxpayers' League of Bell County v. Vanbeber, 252 Ky. 282 , 66 S.W.2d 516, 1933 Ky. LEXIS 1013 ( Ky. 1933 ).

Act did not violate this section where its title was fairly indicative of its contents. Kentucky Utilities Co. v. Board of Comm'rs, 254 Ky. 527 , 71 S.W.2d 1024, 1933 Ky. LEXIS 4 ( Ky. 1933 ).

Act which, according to its title, related to appointment and removal of officers, and repealed, amended, and re-enacted certain law, aptly described contents of such act in its title, and such title was not required to refer to all various acts creating offices within purview of repealed law as it existed prior to such act. Johnson v. Laffoon, 257 Ky. 156 , 77 S.W.2d 345, 1934 Ky. LEXIS 505 ( Ky. 1934 ).

Where title specifically expressed that purpose of amending act was to add additional subsection and such addition was made, such title conformed to provisions of this section. Muffett v. Black, 263 Ky. 199 , 92 S.W.2d 74, 1936 Ky. LEXIS 160 ( Ky. 1936 ).

Act which repealed and re-enacted prior law by reference to its title was valid as against contention that title was not clearly descriptive of act, where re-enacted portion was republished at length in such act. Caldwell v. Commonwealth, 265 Ky. 402 , 96 S.W.2d 1041, 1936 Ky. LEXIS 496 ( Ky. 1936 ).

In act concerning local option elections on question of sale of “spirituous, vinous or malt liquors,” reference to such liquors in title was sufficiently descriptive of specifically intoxicating liquors provided for in body. Rodgers v. Campbell, 267 Ky. 261 , 101 S.W.2d 937, 1937 Ky. LEXIS 301 ( Ky. 1937 ).

Title needed only indicate general contents and scope of act, and was sufficient if it gave reasonable notice thereof. Spahn v. Stewart, 268 Ky. 97 , 103 S.W.2d 651, 1937 Ky. LEXIS 405 ( Ky. 1937 ).

Title was sufficiently broad in its scope to embrace diversity of details in act relative to carrying out its purpose and intent. Spahn v. Stewart, 268 Ky. 97 , 103 S.W.2d 651, 1937 Ky. LEXIS 405 ( Ky. 1937 ).

Where title stated that ordinance was to adjust controversies between city and street railroad regarding streetcar, bus, and fare regulations, such title was broad enough to cover details of ordinance. Scott v. Cincinnati, N. & C. R. Co., 268 Ky. 383 , 105 S.W.2d 169, 1937 Ky. LEXIS 482 ( Ky. 1937 ).

The act revising the school code did not violate this section on the ground that the act was broader than the title. Stallins v. Caldwell County Board of Education, 274 Ky. 824 , 120 S.W.2d 656, 1938 Ky. LEXIS 350 ( Ky. 1938 ).

Construction of this section should be a strained construction, and title was sufficient thereunder which could be regarded as fulfilling purpose thereof. Booth v. Owensboro, 275 Ky. 491 , 122 S.W.2d 118, 1938 Ky. LEXIS 462 ( Ky. 1938 ).

Court would uphold statute where language of title was reasonably sufficient to give general idea of what act was to contain. Jefferson County Fiscal Court v. Thomas, 279 Ky. 458 , 130 S.W.2d 60, 1939 Ky. LEXIS 258 ( Ky. 1939 ).

Statutory provision was not violative of this section where it was naturally connected with and directly or indirectly related to subject referred to in title. Jefferson County Fiscal Court v. Thomas, 279 Ky. 458 , 130 S.W.2d 60, 1939 Ky. LEXIS 258 ( Ky. 1939 ).

Title of act was sufficient if it purported to repeal or amend particular section of statutes, unless such title was followed by restrictive language, in which case body of act could go no further than authorized by such language. Jefferson County Fiscal Court v. Thomas, 279 Ky. 458 , 130 S.W.2d 60, 1939 Ky. LEXIS 258 ( Ky. 1939 ).

Fact that body of act was not as broad as title would not render such act void. Markendorf v. Friedman, 280 Ky. 484 , 133 S.W.2d 516, 1939 Ky. LEXIS 130 ( Ky. 1939 ).

If title of act was general, any provision in body of act which had natural connection with subject expressed in title, and not foreign to it, satisfied this section. Board of Education v. Louisville, 288 Ky. 656 , 157 S.W.2d 337, 1941 Ky. LEXIS 198 ( Ky. 1941 ).

The title “An act relating to attorneys for administrative departments, agencies, divisions and independent agencies of the commonwealth” was sufficient to indicate that the provisions of the act might affect the powers and duties of the attorney general, insofar as those powers and duties involved legal services for state departments and agencies. Johnson v. Commonwealth, 291 Ky. 829 , 165 S.W.2d 820, 1942 Ky. LEXIS 329 ( Ky. 1942 ).

A title is never insufficient because it is in general terms, so long as it is inclusive of all the subjects dealt with in the act. Commonwealth ex rel. Meredith v. Johnson, 292 Ky. 288 , 166 S.W.2d 409, 1942 Ky. LEXIS 73 ( Ky. 1942 ).

The title of law that enacted the revised statutes was sufficient in scope to give full force and effect to all matters contained in the revised statutes, and therefore the scope of KRS 186.590 is not limited by the title as it was when adopted in the first instance. Falender v. Hankins, 296 Ky. 396 , 177 S.W.2d 382, 1944 Ky. LEXIS 553 ( Ky. 1944 ). See Fidelity & Columbia Trust Co. v. Meek, 294 Ky. 122 , 171 S.W.2d 41, 1943 Ky. LEXIS 404 ( Ky. 1943 ).

It is not ordinarily objectionable that the title of an act does not embrace or dispose of everything to which the act relates, provided it is not entirely misleading and is fairly, reasonably and logically related to the scope and purpose of the act. Miller v. Commonwealth, 300 Ky. 215 , 187 S.W.2d 837, 1945 Ky. LEXIS 812 ( Ky. 1945 ).

The fact that a section of the alcoholic beverage control law was placed, in the revised statutes, under a chapter entitled “Alcoholic Beverages — Licenses and Taxes,” while the local option law was placed under a chapter entitled “Alcoholic Beverages — Local Option,” did not, by reason of this section, prevent the section from applying in local option territory. Miller v. Commonwealth, 300 Ky. 215 , 187 S.W.2d 837, 1945 Ky. LEXIS 812 ( Ky. 1945 ).

The title “An act relating to motor carriers,” for act regulating operators of motor vehicles for hire, was sufficient to give notice that the act might relate to any person hiring or leasing any motor vehicle to carry persons or property on the highways, so that provisions of act applying to “U-drive-it” companies were embraced within the title. Louisville Taxicab & Transfer Co. v. Blanton, 305 Ky. 179 , 202 S.W.2d 433, 1947 Ky. LEXIS 725 ( Ky. 1947 ).

“An act relating to deadly weapons” was a sufficient title for an act which amended the statute relating to the carrying of concealed deadly weapons, so as to change the offense from a misdemeanor to a felony. Reed v. Commonwealth, 306 Ky. 295 , 206 S.W.2d 949, 1947 Ky. LEXIS 998 ( Ky. 1947 ).

The title “An act to regulate the practice of veterinary medicine, surgery and dentistry,” for a law which completely revised laws relating to veterinary profession, was sufficient to embrace provision of act authorizing issuance of license, without examination, to persons who had practiced prior to 1916. Doller v. Reid, 308 Ky. 348 , 214 S.W.2d 584, 1948 Ky. LEXIS 939 ( Ky. 1948 ).

The title “An act relating to local option with respect to the sale, barter or loan of alcoholic beverages” sufficiently expressed subject of act, which provided for separate local option elections in cities of the first four classes. It was not necessary for title to indicate that a change was being made in existing local option laws, nor was it necessary for title to make reference to specific existing statutes that were amended or repealed by the act. May v. Drake, 309 Ky. 819 , 219 S.W.2d 31, 1949 Ky. LEXIS 816 ( Ky. 1949 ).

Title gave fair and reasonable notice of nature and purpose of act, was true index of contents, no part of which was deceptive or would afford grounds for surprise or fraud, and thus such act was constitutional. Board of Education v. Mescher, 310 Ky. 453 , 220 S.W.2d 1016, 1949 Ky. LEXIS 954 ( Ky. 1949 ).

Title of act must give fair and reasonable notice of the nature and provisions of the act so that a member of the legislature or any other interested person reading the title may obtain a general notice or knowledge of the contents of the act or what it proposes to do. Board of Education v. Mescher, 310 Ky. 453 , 220 S.W.2d 1016, 1949 Ky. LEXIS 954 ( Ky. 1949 ).

In act relating to establishment of building fund by taxes, provision requiring approval of people was matter not so foreign to title as to be misleading, and did not come within inhibition of this section. Folks v. Barren County, 313 Ky. 515 , 232 S.W.2d 1010, 1950 Ky. LEXIS 919 ( Ky. 1950 ).

The title of the law that enacted the Kentucky Revised Statutes did not contravene this section. Hampton v. Whaley, 313 Ky. 611 , 233 S.W.2d 273, 1950 Ky. LEXIS 949 ( Ky. 1950 ).

Where the title to an act stated that the act provided for the levy of assessments against abutting property owners, the creation of a lien upon such property for such assessments, and for suit to be brought against delinquent property owners, the fact that the title did not mention that delinquents must pay the cost of the action, including attorneys’ fees, was not fatal, since costs and fees are related to the subject of enforcing liens against the property of delinquents. Daly v. Look, 267 S.W.2d 77, 1954 Ky. LEXIS 827 ( Ky. 1954 ).

Title was valid which gave notice of provisions contained in act and adequately embraced act’s subject matter. Hopson v. Board of Education, 280 S.W.2d 489, 1955 Ky. LEXIS 154 ( Ky. 1955 ).

Titles purporting to relate to “urban renewal projects and planning, and declaring an emergency,” and to “urban renewal,” adequately apprised general assembly of tenor of their copious contents as required by this section. Miller v. Louisville, 321 S.W.2d 237, 1959 Ky. LEXIS 269 ( Ky. 1959 ).

“Compensation,” as used in title relating to compensation of circuit judges, was broad enough to include expense allowance referred to in body of act. Tierney v. Van Arsdale, 332 S.W.2d 546, 1960 Ky. LEXIS 158 ( Ky. 1960 ).

Title reading “An act establishing retirement and benefit funds for members of the police and fire departments in cities of the second class” gave sufficient notice that act contained provisions for contributions from city funds and for investment of pension funds including provisions for making up of deficiencies arising from investment losses. Board of Trustees v. Paducah, 333 S.W.2d 515, 1960 Ky. LEXIS 196 ( Ky. 1960 ).

Act relating to voting machines could include provisions for financing acquisition of such machines without exceeding scope of its title. State Property & Bldg. Com. v. Hays, 346 S.W.2d 3, 1961 Ky. LEXIS 277 ( Ky. 1961 ).

Title of act entitled “An act relating to the establishment of a Kentucky Health and Geriatric Authority, providing for the issue of bonds thereby” sufficiently expresses the one subject with which it is concerned. Greer v. Kentucky Health & Geriatric Authority, 467 S.W.2d 340, 1971 Ky. LEXIS 366 ( Ky. 1971 ).

Since overtime pay is generally considered an adjunct of minimum wages, Acts 1974, ch. 391 (KRS 337.010 , 337.275 to 337.405 , 337.990 ) which established minimum wages and provided for overtime payments did not violate this section, even though the title of the act made no reference to provisions concerning overtime pay. Kentucky Municipal League v. Commonwealth, 530 S.W.2d 198, 1975 Ky. LEXIS 48 ( Ky. 1975 ).

The title of Acts 1984, ch. 418 (Biennial Budget Act), which referred to “appropriation” for the operation, maintenance, support, etc., of state government, sufficiently described the subject matter of the act to comply with this section even though the title did not tell the reader that the General Assembly had authorized the reduction of salary increases and the transfer of trust and agency funds. The fact that the title told the reader that the act was an appropriation for the funding of state government clearly alerted one to the fact that the act dealt with “appropriations,” including possible changes in the allocation of moneys. Commonwealth ex rel. Armstrong v. Collins, 709 S.W.2d 437, 1986 Ky. LEXIS 262 ( Ky. 1986 ).

The title of Acts 1984, ch. 410 (compiled as KRS 446.085 (now repealed)), which stated “an act relating to the relationship of the budget bill to the Kentucky Revised Statutes, and declaring an emergency,” properly described the subject matter of the act, which limited the General Assembly’s right to repeal or amend in the budget bill but permitted the suspension or modification of such existing statutes, but only in the event that the financial conditions of the state mandated emergency action. The act expressed the relationship of a budget bill to all existing statutory law — which is primarily what the title says it did. Commonwealth ex rel. Armstrong v. Collins, 709 S.W.2d 437, 1986 Ky. LEXIS 262 ( Ky. 1986 ).

The title of an act need only furnish general notification of the general subject in the act; if the title furnishes a “clue” to the act’s contents, it passes constitutional muster. Commonwealth ex rel. Armstrong v. Collins, 709 S.W.2d 437, 1986 Ky. LEXIS 262 ( Ky. 1986 ).

Title of House Bill 1 [Enact. Acts 1993 (2nd Ex. Sess.), ch. 2], “An Act relating to health and safety, providing for revenues to finance health care, making appropriations, and declaring an emergency” did not violate Const., § 51 as a party reading the title might conclude that a tax was being imposed to finance health care. Revenue Cabinet v. Smith, 875 S.W.2d 873, 1994 Ky. LEXIS 34 (Ky.), cert. denied, 513 U.S. 1000, 115 S. Ct. 509, 130 L. Ed. 2d 417, 1994 U.S. LEXIS 8026 (U.S. 1994).

The title and subject matter included in a bill which extended a provider tax to hospitals were sufficient where the title was “An Act relating to health care reform and providing funding therefor.” Children's Psychiatric Hosp., Inc. v. Revenue Cabinet, 989 S.W.2d 583, 1999 Ky. LEXIS 43 ( Ky. 1999 ).

Corporations did not contend that the Bills contained surreptitious legislation; however, under a liberal construction historically afforded to Ky. Const. § 51, the portions of the Bills at issue herein, relating to tax refunds, properly fell within the category of “fiscal matters” and thus, the title of the Bills sufficiently expressed the subject matter contained therein. Revenue Cabinet v. Asworth Corp., 2009 Ky. App. LEXIS 229 (Ky. Ct. App. Nov. 20, 2009), cert. denied, 562 U.S. 1200, 131 S. Ct. 1046, 178 L. Ed. 2d 865, 2011 U.S. LEXIS 1056 (U.S. 2011).

18.— — Insufficiency.

Act entitled “An act to appropriate money for the benefit of the houses of reform, to provide funds to pay the existing deficit, and to make improvements at the houses of reform” was not sufficiently broad to justify provisions in act for confinement of juvenile offenders in houses of reform, and subjecting them to provisions governing parole of penitentiary inmates, and such provisions were void. Thompson v. Commonwealth, 159 Ky. 8 , 166 S.W. 623, 1914 Ky. LEXIS 731 ( Ky. 1914 ).

Act entitled “Registration in certain cities and towns” was void, since body of act attempted to provide for registration outside corporate limits of certain cities. Ogden v. Cronan, 171 Ky. 254 , 188 S.W. 357, 1916 Ky. LEXIS 332 ( Ky. 1916 ).

Act which created office of county road engineer was violative of this section where title read “An act defining public roads.” Fitzpatrick v. McGinnis, 174 Ky. 600 , 192 S.W. 651, 1917 Ky. LEXIS 223 ( Ky. 1917 ). See Wolfe v. Bailey, 184 Ky. 481 , 212 S.W. 579, 1919 Ky. LEXIS 106 ( Ky. 1919 ).

Where act by its title purported to amend and re-enact particular section of statutes concerning petit larceny, such title was insufficient under this section to cover provisions in body of such act concerning jurisdiction of certain courts over such offense. Commonwealth v. Moore, 187 Ky. 494 , 219 S.W. 786, 1920 Ky. LEXIS 152 ( Ky. 1920 ).

Act entitled “An act relating to public health, by repealing, amending and re-enacting certain sections relating to the state board of health, creating bureaus within said board to perform the functions of the existing state tuberculosis commission” was not broad enough to give notice of increasing power of certain bureaus, creation of districts for erection and maintenance of sanitariums, or power given to trustees of sanitariums to require second-class cities to levy and collect taxes for benefit of sanitarium. District Board, etc. v. Bradley, 188 Ky. 426 , 222 S.W. 518, 1920 Ky. LEXIS 298 ( Ky. 1920 ).

Where statutory title was restrictive, any provisions in statute not within limits of such title were invalid under this section. District Board, etc. v. Bradley, 188 Ky. 426 , 222 S.W. 518, 1920 Ky. LEXIS 298 ( Ky. 1920 ).

Where act repealed parts of prior statutes giving county judges exclusive jurisdiction under juvenile laws while providing that such jurisdiction would be retained in certain cases, such act was invalid since its title did not include reference to such retention. Lynn v. Bullock, 189 Ky. 604 , 225 S.W. 733, 1920 Ky. LEXIS 482 ( Ky. 1920 ).

Act which included certain provision which was not mentioned in title was void. Neutzel v. Williams, 191 Ky. 351 , 230 S.W. 942, 1921 Ky. LEXIS 343 ( Ky. 1921 ).

Act was void under this section where title was so restrictive that it could not cover or embrace any provision in body of act. Bingham v. Johnson, 193 Ky. 753 , 237 S.W. 1077, 1922 Ky. LEXIS 90 ( Ky. 1922 ).

Where title stated that act related only to cities and towns with population of 5,000 or more, provisions in act purporting to apply to cities with population of less than 5,000 were inoperative. Hewlett v. Springfield, 210 Ky. 199 , 275 S.W. 385, 1925 Ky. LEXIS 646 ( Ky. 1925 ).

Since title must accurately reflect contents of statute, any portion of statute not thus reflected is void. Wood v. Commonwealth, 225 Ky. 294 , 8 S.W.2d 428, 1928 Ky. LEXIS 784 ( Ky. 1928 ).

Where body of statute referred to objects and subjects that were excluded in its title, entire statute was invalid. Fidelity & Deposit Co. v. Logan, 230 Ky. 776 , 20 S.W.2d 753, 1929 Ky. LEXIS 174 ( Ky. 1929 ).

Where act was entitled “An act to provide for organization of eleemosynary and educational institutions,” to construe such act as conferring authority to organize farm bureau would render title violative of this section. Federal Chemical Co. v. Paddock, 264 Ky. 338 , 94 S.W.2d 645, 1936 Ky. LEXIS 309 ( Ky. 1936 ).

Insofar as act purported to impose an inheritance tax on the proceeds of a life insurance policy taken out by a corporation upon the life of its officer, it was unconstitutional, because such tax would not be an inheritance tax and would therefore be foreign to the title of the inheritance tax act. Department of Revenue v. Lanham's Adm'rs, 278 Ky. 419 , 128 S.W.2d 936, 1939 Ky. LEXIS 447 ( Ky. 1939 ).

An act, the title of which stated that it was to authorize administrators de bonis non to maintain actions against certain persons, could not be extended to authorize actions against other persons not included in the classes named in the title. Gibbs v. Peoples Nat'l Bank, 278 Ky. 415 , 128 S.W.2d 958, 1939 Ky. LEXIS 457 ( Ky. 1939 ).

Where title does not give fair and reasonable notice to legislators or to public of nature of provisions contained in the act, the act is unconstitutional. Jefferson County Fiscal Court v. Thomas, 279 Ky. 458 , 130 S.W.2d 60, 1939 Ky. LEXIS 258 ( Ky. 1939 ).

That portion of act which was not expressed in its title was void. Jones v. Benton, 285 Ky. 523 , 148 S.W.2d 683, 1941 Ky. LEXIS 418 ( Ky. 1941 ). See Booth v. Owensboro, 275 Ky. 491 , 122 S.W.2d 118, 1938 Ky. LEXIS 462 ( Ky. 1938 ).

Where section of act began “For the purpose of this act, and all other matter,” words “and all other matter” had no force or effect, since otherwise section would apply to situations outside scope and title of act and would thus violate this section. Boyd v. Wynn, 286 Ky. 173 , 150 S.W.2d 648, 1941 Ky. LEXIS 235 ( Ky. 1941 ).

Title to KRS 67.140 (now repealed) and 67.150 , referring merely to care and custody of courthouses and adjacent public grounds, was insufficient to support section 3 of said act directing fiscal court to provide quarters for certain courts and officers, to acquire land, construct courthouses, or to rent or lease premises suitable for those purposes; therefore, section 3 of act was unconstitutional and void. Kenton County v. Covington, 287 Ky. 511 , 154 S.W.2d 540, 1941 Ky. LEXIS 581 ( Ky. 1941 ).

If title was specific as to act’s provisions and led to reasonable supposition that its object was to restrict scope of act, then any provisions outside of such specifications were void. Board of Education v. Louisville, 288 Ky. 656 , 157 S.W.2d 337, 1941 Ky. LEXIS 198 ( Ky. 1941 ).

That portion of KRS 161.710 which required a special levy by the local board of education violated this section. Board of Education v. Louisville, 288 Ky. 656 , 157 S.W.2d 337, 1941 Ky. LEXIS 198 ( Ky. 1941 ).

Where title of act stated that it was an act repealing, amending and re-enacting certain sections of the alcoholic beverage control law, and no mention was made of the local option law, a provision inserted in one of the sections amended by the act to the effect that offenses against the local option law could be tried under the alcoholic beverage control law was not covered by the title and was void. Wilson v. Goodin, 291 Ky. 144 , 163 S.W.2d 309, 1942 Ky. LEXIS 196 ( Ky. 1942 ).

Preamble of act, even if it should be considered part of the title, would offend this section as being misleading, where it stated the act was a police measure, while the body of the act contained no regulation, and merely imposed a tax and raised revenue. Reeves v. Adam Hat Stores, Inc., 303 Ky. 633 , 198 S.W.2d 789, 1946 Ky. LEXIS 918 ( Ky. 1946 ).

Where act was entitled “An act relating to cities,” but did not relate to existing cities but to the incorporation of unincorporated communities or the creation of new cities, the title was deceptive and violated this section requiring the subject of an act to be expressed in the title and thus the act was unconstitutional. Engle v. Bonnie, 305 Ky. 850 , 204 S.W.2d 963, 1947 Ky. LEXIS 865 ( Ky. 1947 ).

Statute entitled “An act relating to operation of games of chance and gambling devices at the state fair” was construed to prohibit gambling on the state fairgrounds only at such times as the state fair was in progress, as against the contention that the prohibition applied to the state fairgrounds at all times, as the latter construction would violate this section. Kentucky State Fair Board v. Fowler, 310 Ky. 607 , 221 S.W.2d 435, 1949 Ky. LEXIS 973 ( Ky. 1949 ).

Where the title of an act purporting to amend KRS 26.440 (now repealed) was entitled “An act relating to the disposition of persons convicted of crime in police courts in cities of the first and fourth classes,” while the body of the act affected police courts in all classes of cities in that it withdrew authority to require a peace bond from all courts of fourth-class cities except those located in a county which had both cities of the first and fourth classes and at the same time gave authority to all police courts in such counties without regard to the class of city in which the court sits, the title of the act was deceptive and did not conform to the requirements of this section. Pineville v. Farrow, 273 S.W.2d 56, 1954 Ky. LEXIS 1153 ( Ky. 1954 ).

The portion of KRS 123.071 (repealed) that provided that the candidate shall not be qualified, and the officer with whom his papers are to be filed shall not accept the papers, until he has designated a campaign treasurer was not germane to the title of chapter 81, Acts of 1970, “an act relating to campaign contributions and expenditures in elections” and was void under this section. Stovall v. Cook, 512 S.W.2d 487, 1974 Ky. LEXIS 392 ( Ky. 1974 ).

19.— —Germane.

If the various provisions of the act all relate to, and are germane to, the subject expressed in the title, the requirements of this section are satisfied. Louisville v. Wehmhoff, 116 Ky. 812 , 76 S.W. 876, 79 S.W. 201, 25 Ky. L. Rptr. 1924 , 25 Ky. L. Rptr. 995 , 1903 Ky. LEXIS 250 ( Ky. 1903 ).

Where act entitled “An act to amend the revenue laws of cities of the first class so as to carry into effect the amendment of section 181 of the present constitution,” by section 2, repealed statute providing for licensing of trades and professions and the keeping of vehicles enumerated in addition to taxation under the ad valorem system, such section 2 was not germane to title of act and therefore violated this section. Wiemer v. Commissioners of Sinking Fund, 124 Ky. 377 , 99 S.W. 242, 30 Ky. L. Rptr. 523 , 1907 Ky. LEXIS 188 ( Ky. 1907 ).

Where act was entitled “An act to create the thirty-third judicial district of Kentucky and to change the twenty-sixth, twenty-seventh and twenty-eighth circuit court judicial districts and to provide for holding of court in said districts and to provide for judges and commonwealth attorneys for same,” all provisions of act related to establishment of thirty-third judicial district, recited changes in other districts being necessary to such establishment and such act contained but one subject, and its provisions, other than those for appointment of commonwealth’s attorney, were germane to title. Brown v. Moss, 126 Ky. 833 , 105 S.W. 139, 31 Ky. L. Rptr. 1288 , 1907 Ky. LEXIS 106 ( Ky. 1907 ).

An act entitled “An act to amend an act entitled ‘An act permitting persons to pool their farm products and making contracts in pursuance thereof valid’” did not relate to more than one subject by virtue of provision making it offense for one who has pooled his products to sell them without consent of agent of pooling parties, or for one to buy them from him, knowing he is so selling them, this being germane to the subject expressed in the title. Commonwealth v. Hodges, 137 Ky. 233 , 125 S.W. 689, 1910 Ky. LEXIS 562 ( Ky. 1910 ).

Where act entitled “An act to empower the board of trustees of graded schools operating under special charters, known as special act schools, to levy tax for maintenances” empowered boards of trustees of graded schools not organized under special acts to impose the tax, this part related to subject not germane to or expressed in title and therefore was void. Board of Trustees v. Tate, 155 Ky. 296 , 159 S.W. 777, 1913 Ky. LEXIS 229 ( Ky. 1913 ).

So much of act as related to subject not germane to or expressed in title was void under this section. Board of Trustees v. Tate, 155 Ky. 296 , 159 S.W. 777, 1913 Ky. LEXIS 229 ( Ky. 1913 ). See Smith v. Board of Trustees, 171 Ky. 39 , 186 S.W. 927, 1916 Ky. LEXIS 300 ( Ky. 1916 ).

Subject of act as expressed in title may restrict act’s body so that nothing in it is germane to title, except legislation upon same subject or branch of subject which is dealt with in original act, or which is naturally connected with that subject or that branch of it, because such title does not give notice as to anything else. State Board of Charities & Correction v. Combs, 193 Ky. 548 , 237 S.W. 32, 1922 Ky. LEXIS 46 ( Ky. 1922 ).

Act known as “Seventy Five Million Dollar Bond Bill,” title to which also provided for maintenance of roads, did not violate this section since provision for road maintenance was germane to issuance of the bonds. Allen v. Cromwell, 203 Ky. 836 , 263 S.W. 356, 1924 Ky. LEXIS 1017 ( Ky. 1924 ).

Act was unconstitutional whose subject matter was neither included in nor germane to its title. State Board of Education v. Brown, 232 Ky. 434 , 23 S.W.2d 948, 1929 Ky. LEXIS 446 ( Ky. 1929 ).

It was declared to be universal rule that if contents of ordinance were germane to accomplishment of purpose of subject stated in title, then requirements of this section were not violated. Dowdy v. Covington, 237 Ky. 274 , 35 S.W.2d 304, 1931 Ky. LEXIS 588 ( Ky. 1931 ).

Where title gave no notice that act proposed to deal with any subject other than boxing and sparring match regulation, fact that body of act introduced subject which was entirely new and not germane to title rendered such act unconstitutional. State Athletic Board of Control v. Blake Amusement Co., 249 Ky. 358 , 60 S.W.2d 950, 1933 Ky. LEXIS 526 ( Ky. 1933 ).

Where title stated that act related to fiscal administration of counties and provided for uniform budget system therefor, provision in body for duties of state budget commission, state examiner, and inspector were germane to and embraced by such title. State Budget Com. v. Adams, 249 Ky. 680 , 61 S.W.2d 314, 1933 Ky. LEXIS 584 ( Ky. 1933 ).

Act providing that income of outgoing sheriff arising from tax collection commissions would be treated as part of sheriff’s income for preceding year related to one subject, revenue and taxation, and was germane to title reading “An act repealing and re-enacting certain sections which sections relate to revenue and taxation.” Petty v. Talbott, 256 Ky. 688 , 76 S.W.2d 940, 1934 Ky. LEXIS 475 ( Ky. 1934 ).

Act entitled “Criminal syndicalism and sedition,” which provided, among other things, that it should be unlawful to obstruct or intimidate officer while discharging his duty, was violative of this section, body of act not being germane to or expressed in title. Steepe v. Commonwealth, 259 Ky. 585 , 82 S.W.2d 816, 1935 Ky. LEXIS 355 ( Ky. 1935 ).

Provision in ordinance for transfer of certain duties from safety department to public works department was germane to title which read “An ordinance prescribing the organization of the department of public works, creating new divisions, bureaus, sections and positions thereof.” Bower v. Louisville, 269 Ky. 350 , 107 S.W.2d 238, 1937 Ky. LEXIS 600 ( Ky. 1937 ).

While general title would embrace any subject germane or related thereto, specific title demanded that text of act be confined to subjects of which such title gave reasonable notice. Booth v. Owensboro, 275 Ky. 491 , 122 S.W.2d 118, 1938 Ky. LEXIS 462 ( Ky. 1938 ).

Title of act which read “An act to repeal, amend and re-enact sections 3049, 3118, 3119, 3126, 3131, 3143, 3144, 3144a and 3166 of the Kentucky Statutes . . . . . all of which sections are a part of the charter of municipalities of the second class relating to the councilmanic form of government . . . . . ” was not violative of this section, since it clearly indicated various sections to be amended, and body of act did those things and nothing else, matters contained were germane to each other and to title which was sufficient to give legislators and public notice of purpose and extent of act. Board of Aldermen v. Hunt, 284 Ky. 720 , 145 S.W.2d 814, 1940 Ky. LEXIS 551 ( Ky. 1940 ).

The sections of an act that are germane to its title will be upheld and those that are not will be declared void. Carrigan v. Fiscal Court of Fulton County, 289 Ky. 562 , 159 S.W.2d 420, 1942 Ky. LEXIS 603 ( Ky. 1942 ).

Provisions relating to the qualifications of county tax commissioners, in an act entitled “An act relating to revenue and taxation,” were sufficiently germane to the subject expressed in the title. Burke v. Department of Revenue, 293 Ky. 281 , 168 S.W.2d 997, 1943 Ky. LEXIS 607 ( Ky. 1943 ).

The General Assembly may in its discretion select a general or a restrictive title and any provisions in the body of the act that are so related to the title as to be reasonably embraced within its terms and germane thereto are valid, and whatever is materially connected with and not foreign to the subject of the act is germane thereto. Burke v. Department of Revenue, 293 Ky. 281 , 168 S.W.2d 997, 1943 Ky. LEXIS 607 ( Ky. 1943 ).

In order to constitute a plurality of subjects, an act must embrace two or more dissimilar and discordant subjects and if a subdivision or section is germane to the general subject, it should be held to be included in the general. Miller v. Commonwealth, 300 Ky. 215 , 187 S.W.2d 837, 1945 Ky. LEXIS 812 ( Ky. 1945 ).

The title of an act may be broad and all-embracing, provided the matters dealt with are germane to the subject expressed in the title, and the title need not go into details if it is broad enough to cover the subject matter dealt with in the body. Reed v. Commonwealth, 306 Ky. 295 , 206 S.W.2d 949, 1947 Ky. LEXIS 998 ( Ky. 1947 ).

If the title is restrictive, then the act must not exceed the specification or include what is not reasonably and properly connected with or germane to it. Board of Education v. Mescher, 310 Ky. 453 , 220 S.W.2d 1016, 1949 Ky. LEXIS 954 ( Ky. 1949 ).

Where the title adequately expresses a general subject, any provision in the act that is germane to or reasonably embraced within that general subject must be considered to be within the scope of the notice of the subject given by the title. Board of Trustees v. Paducah, 333 S.W.2d 515, 1960 Ky. LEXIS 196 ( Ky. 1960 ).

Act was valid whose subject matter was germane to, naturally related to, reasonably connected with, and not foreign to subject expressed in its title. Turnpike Authority of Kentucky v. Wall, 336 S.W.2d 551, 1960 Ky. LEXIS 331 ( Ky. 1960 ).

Provisions dealing with expense allowance and creating such allowance were both germane to title of act relating to elections. State Property & Bldg. Com. v. Hays, 346 S.W.2d 3, 1961 Ky. LEXIS 277 ( Ky. 1961 ).

Where title read “An act relating to absentee voting,” matter of absentee registration was sufficiently germane and related to such title to be within its scope for purposes of this section. Hallahan v. Cranfill, 383 S.W.2d 374, 1964 Ky. LEXIS 45 ( Ky. 1964 ).

An amendment prohibiting unauthorized changes in school system grade level structures, made to a section concerning the transportation of pupils, violated this section. Carroll v. Board of Education, 561 F.2d 1, 1977 U.S. App. LEXIS 11870 (6th Cir. Ky. 1977 ), cert. denied, 435 U.S. 904, 98 S. Ct. 1449, 55 L. Ed. 2d 494, 1978 U.S. LEXIS 945 (U.S. 1978).

KRS 311.377 is unconstitutional under this section in that its subject matter is not sufficiently related to malpractice claims or insurance, which are the subjects of the act of which it is a part. McGuffey v. Hall, 557 S.W.2d 401, 1977 Ky. LEXIS 533 ( Ky. 1977 ).

KRS 532.045 , concerning persons prohibited from probation, parole, or conditional discharge, as it pertains to persons convicted of violating first degree sexual abuse, does not violate this section. Owsley v. Commonwealth, 743 S.W.2d 408, 1987 Ky. App. LEXIS 589 (Ky. Ct. App. 1987).

Ky. Const. § 51 requires that every law enacted by the General Assembly shall relate to only one subject and that subject shall be expressed in the title. A fundamental premise underlying the holding that reading a bill by title only is an appropriate mode of compliance with Ky. Const. § 46’s mandate to read a bill at length is the assumption that the title so read is germane to the law being enacted. Bevin v. Commonwealth ex rel. Beshear, 563 S.W.3d 74, 2018 Ky. LEXIS 531 ( Ky. 2018 ).

20.— — Index of Contents.

Failure to index by title statute providing for combination of school districts did not invalidate such statute. Fiscal Court of Pendleton County v. Pendleton County Board of Education, 240 Ky. 589 , 42 S.W.2d 885, 1931 Ky. LEXIS 457 ( Ky. 1931 ).

The title of an act must be a true, although not detailed, index of the contents. Engle v. Bonnie, 305 Ky. 850 , 204 S.W.2d 963, 1947 Ky. LEXIS 865 ( Ky. 1947 ).

The title to a city ordinance need not be a complete index of the ordinance and if the contents of the ordinance are related to and germane to the subject expressed in the title, and if the title is sufficiently broad to inform the casual reader of the subject and the purposes covered, it is a valid title. Paducah Automotive Trades Ass'n v. Paducah, 307 Ky. 524 , 211 S.W.2d 660, 1948 Ky. LEXIS 769 ( Ky. 1948 ).

The title must be a true although not a detailed index of the contents. Board of Education v. Mescher, 310 Ky. 453 , 220 S.W.2d 1016, 1949 Ky. LEXIS 954 ( Ky. 1949 ).

The title is not defective because it does not mention certain of the details dealt with in the act, because a title need not be an index or table of contents for the act. Guthrie v. Curlin, 263 S.W.2d 240, 1953 Ky. LEXIS 1238 (Ky. Ct. App. 1953).

A title need not be an index or table of contents for an act. Board of Trustees v. Paducah, 333 S.W.2d 515, 1960 Ky. LEXIS 196 ( Ky. 1960 ).

21.Incorporation by Reference.

KRS 84.050(5) (repealed) did not violate this section by adopting by reference, in connection with officials under the city manager form of government, the immunities granted members of the General Assembly by section 43 of the Constitution. Jacobs v. Underwood, 484 S.W.2d 855, 1972 Ky. LEXIS 158 ( Ky. 1972 ).

22.Suspension or Modification.

Acts 1984, ch. 418 (Biennial Budget Act), which directed that the Secretary of the Transportation Cabinet use road fund resources to meet lease rental payments to the Kentucky Turnpike Authority and that the capital construction and equipment purchase contingency fund could be used to advance funds to projects authorized to be financed by bonds and could further be used to finance feasibility studies for future projects, did not repeal or amend existing statutes, despite conflicts with KRS 143.090 and KRS 45.770 , and therefore was not violative of this section and KRS 446.085 (now repealed). Commonwealth ex rel. Armstrong v. Collins, 709 S.W.2d 437, 1986 Ky. LEXIS 262 ( Ky. 1986 ).

Acts 1984, ch. 418 (Biennial Budget Act), which permitted local school districts to rent textbooks and further imposed a minimum six year period on the use of textbooks selected by the Textbook Commission, was valid as a suspension or modification of KRS 156.400 and subsection (4) of KRS 156.435 and therefore did not violate this section and KRS 446.085 (now repealed). Commonwealth ex rel. Armstrong v. Collins, 709 S.W.2d 437, 1986 Ky. LEXIS 262 ( Ky. 1986 ).

The application of the reenactment and publication requirement of this section is limited by its own wording to amendment, revisions, extension, or conferring of existing statutes; if a challenged statutory enactment is merely a suspension or modification of an existing statute, it is not violative thereof. Commonwealth ex rel. Armstrong v. Collins, 709 S.W.2d 437, 1986 Ky. LEXIS 262 ( Ky. 1986 ).

The transfers of funds which are merely temporary, determinable suspensions of the operation of the statutes relating to appropriations of public funds are within the legislative authority as set out in KRS 446.085 (now repealed) and this section; however, the transfers of funds which relate to appropriations of private contributions cannot be termed suspensions or modifications of the operation of the statutes. Because the General Assembly has no authority to transfer private funds to the general fund, the transfer of money from agencies in which public funds and private employee contributions are commingled and cannot be differentiated is unconstitutional. Commonwealth ex rel. Armstrong v. Collins, 709 S.W.2d 437, 1986 Ky. LEXIS 262 ( Ky. 1986 ).

Where Acts 1984, ch. 418 (Biennial Budget Act) provided that if the financial condition of the state deteriorated certain salary increases of specific state officers were to be reduced and then provided for annual increases which were less than were provided for in the existing statutes, but such reduction was temporary only, expiring at the end of the biennium, the act merely temporarily suspended the existing salary statutes, and thus did not violate this section and KRS 446.085 (now repealed). Commonwealth ex rel. Armstrong v. Collins, 709 S.W.2d 437, 1986 Ky. LEXIS 262 ( Ky. 1986 ).

Transfers of millions of dollars from a workers’ compensation special fund to the general fund and to a mining budget were invalid transfers because public funds and private contributions were commingled, could not be differentiated, and could not be considered a valid suspension of the operation of a statute under Ky. Const. § 15 and Ky. Const. § 51, but the Kentucky Legislature could properly suspend an annual appropriation to the Kentucky Workers’ Compensation Funding Commission and the Workers’ Compensation Benefit Reserve Fund to the extent the funds had yet to be transferred to them. Beshear v. Haydon Bridge Co., 304 S.W.3d 682, 2010 Ky. LEXIS 8 ( Ky. 2010 ).

When it was held that the legislature violated Ky. Const. § 51 by transferring funds from workers’ compensation accounts to the general fund, the governor could not be ordered to restore funds that were previously transferred because this violated sovereign immunity, as provided in Ky. Const. §§ 230 and 231. Beshear v. Haydon Bridge Co., 416 S.W.3d 280, 2013 Ky. LEXIS 582 ( Ky. 2013 ).

23.Appropriation.

Where Acts 1984, ch. 418 (Biennial Budget Act) provided a $900,000 fund for medical service contracts for county jails, and it also provided a condition, that the fund be maintained in an individual account specifically for medical contracts, and furthermore that a county must be “certified” before it received its share of the funding, the bill was an appropriation, not a repeal of KRS 441.045 , and therefore did not violate this section and KRS 446.085 (now repealed). Commonwealth ex rel. Armstrong v. Collins, 709 S.W.2d 437, 1986 Ky. LEXIS 262 ( Ky. 1986 ).

Cited:

Bryan v. Board of Education, 151 U.S. 639, 14 S. Ct. 465, 38 L. Ed. 297, 1894 U.S. LEXIS 2087 (1894); United Fuel Gas Co. v. Railroad Com. of Kentucky, 278 U.S. 300, 49 S. Ct. 150, 73 L. Ed. 390, 1929 U.S. LEXIS 335 (1929); Craig v. Western & S. Indem. Co., 119 F.2d 591, 1941 U.S. App. LEXIS 3791 (6th Cir. 1941); Clerk of Whitley County Court v. Lester, 104 Ky. 191 , 46 S.W. 694, 1898 Ky. LEXIS 149 ( Ky. 1898 ); Herndon v. Farmer, 114 Ky. 200 , 24 Ky. L. Rptr. 1045 , 70 S.W. 632, 1902 Ky. LEXIS 149 ( Ky. 190 2); Kentucky Electric Co. v. Barrett, 132 Ky. 717 , 116 S.W. 1186, 1909 Ky. LEXIS 140 ( Ky. 190 9); Cohen v. Henderson, 182 Ky. 658 , 207 S.W. 4, 1918 Ky. LEXIS 418 ( Ky. 191 8); State Ins. Board v. Greene, 185 Ky. 190, 213 S.W. 218, 1919 Ky. LEXIS 2 66 ( Ky. 1919 ); Henderson v. Redman, 185 Ky. 146 , 214 S.W. 809, 1919 Ky. LEXIS 2 58, 7 A.L.R. 346 ( Ky. 1919 ); Black v. Spillman, 185 Ky. 201 , 215 S.W. 28, 1919 Ky. LEXIS 269 (Ky. 1919); Henderson v. Winstead, 185 Ky. 693 , 215 S.W. 527, 1919 Ky. LEXIS 360 (Ky. 1919); Hatchell v. Board of Drainage Comm’rs, 191 Ky. 246 , 229 S.W. 1036, 1921 Ky. LEXIS 297 ( Ky. 1921 ); Harris v. Morganfield, 201 Ky. 588 , 257 S.W. 1032, 1924 Ky. LEXIS 603 ( Ky. 1924 ); Ross v. Cundiff, 206 Ky. 352 , 267 S.W. 169, 1924 Ky. LEXIS 335 ( Ky. 1924 ); Swiss Oil Corp. v. Shanks, 208 Ky. 64 , 270 S.W. 478, 1925 Ky. LEXIS 216 ( Ky. 1925 ); Rush v. Childers, 209 Ky. 11 9, 272 S.W. 404, 1925 Ky. LEXIS 441 ( Ky. 1925 ); McKinney v. Holt, 211 Ky. 512 , 277 S.W. 851, 1925 Ky. LEXIS 910 (Ky. 1925); Andrews Bros. v. McClanahan, 220 Ky. 504 , 295 S.W. 457, 1927 Ky. LEXIS 560 ( Ky. 1927 ); Crenshaw v. Commonwealth, 227 Ky. 223 , 12 S.W.2d 336, 1928 Ky. LEXIS 496 ( Ky. 1928 ); Richardson v. Mason Const. Co., 235 Ky. 17 , 29 S.W.2d 615, 1930 Ky. LEXIS 302 ( Ky. 1930 ); Patterson v. Glover, 235 Ky. 755 , 32 S.W.2d 338, 1930 Ky. LEXIS 464 ( Ky. 1930 ); Sullivan v. Brawner, 237 Ky. 730 , 36 S.W.2d 364, 1931 Ky. LEXIS 683 ( Ky. 1931 ); Lawrence Oil Corp. v. Metcalfe, 241 Ky. 353 , 43 S.W.2d 986, 1931 Ky. LEXIS 66 ( Ky. 1931 ); Commonwealth v. Miller, 246 Ky. 83 , 54 S.W.2d 632, 1932 Ky. LEXIS 717 ( Ky. 1932 ); Caudill v. Stidham, 246 Ky. 17 4 , 54 S.W.2d 654, 1932 Ky. LEXIS 726 ( Ky. 1932 ); Robertson v. Hopkins County, 247 Ky. 129 , 56 S.W.2d 700, 1933 Ky. LEXIS 349 ( Ky. 1933 ); Horn v. Wells, 253 Ky. 494 , 69 S.W.2d 1011, 1934 Ky. LEXIS 695 ( Ky. 1934 ); Richmond v. Lay, 261 Ky. 138 , 87 S.W.2d 134, 1935 Ky. LEXIS 608 ( Ky. 1935 ); Lewis v. Furste, 261 Ky. 763 , 88 S.W.2d 939, 1935 Ky. LEXIS 735 ( Ky. 1935 ); Laurel County v. Hubbard, 263 Ky. 381 , 92 S.W.2d 359, 1936 Ky. LEXIS 181 ( Ky. 1936 ); Martin v. High Splint Coal Co., 268 Ky. 11 , 103 S.W.2d 711, 1937 Ky. LEXIS 421 ( Ky. 1937 ); Murphy v. Cundiff, 269 Ky. 64 5, 108 S.W.2d 644, 1937 Ky. LEXIS 651 ( Ky. 1937 ); Bard v. Board of Drainage Comm’rs, 274 Ky. 491 , 118 S.W.2d 1013, 1938 Ky. LEXIS 292 ( Ky. 1938 ); Vanceburg v. Plummer, 275 Ky. 713 , 122 S.W.2d 772, 1938 Ky. LEXIS 502 ( Ky. 1938 ); Eagle v. Corbin, 275 Ky. 808 , 122 S.W.2d 798, 1938 Ky. LEXIS 507 (Ky. 1938); Trenton Graded School Dist. v. Board of Education, 278 Ky. 607 , 129 S.W.2d 143, 1939 Ky. LEXIS 474 ( Ky. 1939 ); Burrow v. Kapfhammer, 284 Ky. 753 , 145 S.W.2d 1067, 1940 Ky. LEXIS 577 ( Ky. 1940 ); Mullins v. Commonwealth, 285 Ky. 282 , 147 S.W.2d 704, 1941 Ky. LEXIS 376 ( Ky. 1941 ); Schott v. Schott’s Ex’r, 286 Ky. 208 , 149 S.W.2d 782, 1940 Ky. LEXIS 2 ( Ky. 1941 ); Meagher v. Commonwealth, 305 Ky. 289 , 203 S.W.2d 35, 1947 Ky. LEXIS 784 ( Ky. 1947 ); Anderson v. Wayne County, 310 Ky. 597 , 221 S.W.2d 429, 1949 Ky. LEXIS 970 ( Ky. 1949 ); Preston v. Clements, 313 Ky. 479 , 232 S.W.2d 85, 1950 Ky. LEXIS 902 ( Ky. 1950 ); Hampton v. Whaley, 313 Ky. 611 , 233 S.W.2d 273, 1950 Ky. LEXIS 949 ( Ky. 1950 ); Board of Education v. Board of Education, 250 S.W.2d 1017, 1952 Ky. LEXIS 897 ( Ky. 1952 ); Dawson v. Hamilton, 314 S.W.2d 532, 1958 Ky. LEXIS 300 ( Ky. 1958 ); Murphy v. Cranfill, 416 S.W.2d 363, 1967 Ky. LEXIS 274 ( Ky. 1967 ); Tabler v. Wallace, 704 S.W.2d 179, 1985 Ky. LEXIS 291 ( Ky. 1985 ); Hayes v. State Property & Bldgs. Com., 731 S.W.2d 797, 1987 Ky. LEXIS 217 ( Ky. 1987 ); Manns v. Commonwealth, 80 S.W.3d 439, 2002 Ky. LEXIS 114 ( Ky. 200 2 ); Wheeler & Clevenger Oil Co. v. Washburn, 127 S.W.3d 609, 2004 Ky. LEXIS 45 ( Ky. 2004 ).

DECISIONS UNDER PRIOR LAW

1.Sufficiency of Title.

Where title clearly and distinctly expressed whole object of act, and subject matter was in every way germane thereto, act was valid under this section, especially where subject could not have been more clearly stated without making title of act detailed statement or index of contents of act. Carter County v. Sinton, 120 U.S. 517, 7 S. Ct. 650, 30 L. Ed. 701, 1887 U.S. LEXIS 1997 (U.S. 1887).

All provisions of an act that are naturally connected with the subject expressed in the title are valid. Burnside v. Lincoln County Court, 86 Ky. 423 , 6 S.W. 276, 9 Ky. L. Rptr. 635 , 1887 Ky. LEXIS 152 (Ky. Ct. App. 1887).

Notes to Unpublished Decisions

1.Subject.
2.— Title.

Unpublished decision: Election law under which the candidate sought to replace a running mate who had been disqualified to hold the office sought because the running mate did not meet a residency requirement, KRS 121A.080(11), did not violate the Kentucky Constitution’s single-subject law, Ky. Const. § 51, where that statute, as enacted, was titled, “An ACT relating to the regulation of the conduct and financing of elections,” as conduct and financing were both germane to the general subject of elections, and were not multiple subjects. Heleringer v. Brown, 104 S.W.3d 397, 2003 Ky. LEXIS 97 ( Ky. 2003 ).

Opinions of Attorney General.

The provisions of law, now repealed, concerning the costs of elections, requiring the acquisition of voting machines by each county and prohibiting the county from receiving the state’s share of election costs for the failure to acquire voting machines all relate to elections so that it does not violate this section by relating to more than one subject. OAG 60-833 .

This section is not violated by KRS 186.990 (6), embodying the penalty in the same section as the violation. OAG 72-90 .

Even assuming that a general assembly resolution to ratify the equal rights amendment to the United States Constitution could properly be handled as regular legislation, which is doubtful, appending this resolution to a proposed house bill which amended KRS chapters 117, 120 and 128 (now repealed) by changing the residency requirements for voters in general and special elections, as an amendment to that bill, would invalidate the legislation under this section. OAG 72-382 .

The coal severance tax imposed by KRS 143.010 to 143.990 , as distributed to the counties pursuant to KRS 42.300 (repealed) was not unconstitutional in violation of this section or Const., §§ 3, 59, 177 or 181. OAG 75-76 .

The final element to be considered in judging an act under this section is whether its title is general or restrictive; if the title is too restrictive, a provision contained in the body of the act could be invalid if not specifically considered in the title but, if the title can be said to be general, anything related to the subject contemplated by the title would be valid. OAG 78-762 .

Where an act does not fall within those practices sought to be precluded by this section, the section should be given a liberal construction. OAG 78-762 .

Subsection (5) of section 1 of Acts 1982, ch. 340, which amends KRS 244.290 by adding subsection (5) mandating the payment of minimum wages in certain industries, violates this section because KRS Ch. 340 is entitled “an act relating to alcoholic beverage control,” while subsection (5) deals with an entirely different subject not contained in the title. OAG 82-212 .

The apparent raison d’etre of this constitutional provision is to apprise a legislator of what generally is contained in a bill and is meant to prevent the inclusion of “sleepers” or two or more nonrelated subjects within the same piece of legislation. OAG 82-212 .

When KRS 311.377 was amended in 1980, the title of the act was “An Act relating to medical review organizations” and such title precisely fit the subject matter of KRS 311.377 (2). Therefore, the only constitutional defect which the Supreme Court formerly found with the statute has now been corrected. OAG 82-269 .

The title of Senate Bill 77 (1978 Ky. Acts, Ch. 38), which in part amended KRS 61.396 , was sufficient to comply with the requirements of this section as the provisions of the bill were all reasonably embraced within the title’s general subject matter. OAG 82-305 .

A statement in the 1982 budget bill, Ch. 395, that payment should be provided only for emergency medical services for indigents which cannot be postponed until after the period of confinement without hazard to the needy person, and the phrase “extensive medical care,” should be disregarded as not being a constitutional part of the budget bill, as they were in no way necessary or germane to the budget or appropriations concept, but merely attempted to deal with legislative intent in connection with qualifying applications of the money appropriated for indigent prisoners in county jails. OAG 82-322 .

The purpose of this section is to require that the title to an act should give to an interested person fair and reasonable notice of the nature of the provisions contained in the act. OAG 82-322 .

If the General Assembly desires to change the average daily attendance (ADA) formula used for allotment of classroom units for Foundation Program Fund purposes from the previous school year figure as required by KRS 157.360 , it would have to amend that provision and not attempt to reach that result with language in an appropriations bill; even if such language did appear in the biennial budget bill, the language would have to be disregarded as not being a constitutional part of the appropriations act, since the budget bill to the extent that it relates to a subject other than the budget must be deemed in violation of this section. OAG 83-383 .

The General Assembly may not constitutionally revise, restrict or modify the provisions of existing substantive statutory law or create new substantive law by language contained in the appropriations act; thus, even if the biennial budget bill had not inadvertently omitted the desired change in the average daily attendance (ADA) formula, the Department of Education could not have legally implemented it. OAG 83-383 .

The central purpose of this section is the prevention of surreptitious legislation and to provide a general barrier against duplicitous legislation. OAG 84-184 .

This section applies to all laws enacted by the General Assembly, which includes budget bills; a budget bill is not, because of its biennial and special nature, the proper vehicle for complying with this section by way of reenacting and publishing at length preexisting statutory law. OAG 84-184 .

A budget bill is a legislative act, but it is not permitted, because of its nature and biennial life, to create, establish, or modify statutory law. OAG 84-184 .

If a budget bill were to be used in the dual role of passing budget legislation and amending or revising preexisting statutory law, the title of the act, if it were to state the dual role, would violate this section, since the section requires that a law shall relate to only one subject. OAG 84-184 .

The practical effect of KRS 48.316 is to permit a budget bill to suspend or modify statutory law in any of the designated KRS Chapters and such section is unconstitutional. OAG 84-184 .

KRS 446.085 is unconstitutional since the legislature cannot authorize itself to engage in unconstitutional legislation by way of the budget bill. OAG 84-184 .

The 1984 state budget bill, in containing language not a reasonable part of the appropriations act but which was calculated to modify or suspend the operative effect of existing statutes, violated this section on two grounds: (1) it did not in its title describe the full contents of the legislation and, even if it had so described, it would have involved two subjects (appropriations and statutory changes) as prohibited by this section; and (2) the requirement of reenactment and publication of affected statutes was not met. OAG 84-184 .

The 1984 state budget bill, containing language designed to amend, modify or suspend existing statutory law, is unconstitutional, as relates only to such language of modification, suspension, etc., and such unconstitutional remarks should be disregarded, since they are not a constitutional part of the state budget bill. OAG 84-184 .

Under the principle of severability, as expressed in KRS 446.090 , the 1984 appropriations act, minus the offending language of statutory modification, is constitutional; the strictly appropriations part of the act is readily severable. OAG 84-184 .

The service fee, described in KRS 189A.050 (1) and (3), is constitutional, since it in no way violates this section; the 1984 Act (Chapter 165) enacting KRS 189A.050 has only one subject, “An Act relating to crimes and punishments.” The service fee is not an appropriation, as envisioned in Const., § 230 and KRS 41.110 , and there is no intent expressed in KRS 189A.050 that such fees are to go into the state treasury prior to disbursement. OAG 84-327 .

Those provisions of 1986, ch. 475 (KRS 17.165 and 17.990 ) relating to the state board of education and local boards of education and their employees are unconstitutional under Const., § 51; therefore, references to the state board of education and any local board of education of either an independent or county school district in KRS 17.165 , former subdivision (3)(b) of KRS 17.990 , and the reference to any board of education in subdivision (3)(c) of KRS 17.990 are void. OAG 86-70 .

This section was added to prevent an evil that had grown up in the past where the legislature would include in one act many distinct and wholly disconnected subjects which were neither remotely germane to or in any way connected with the title. OAG 90-29 .

The title to Acts 1990, chapter 476, which reads “An act relating to the reform of the Commonwealth’s system of common schools, raising revenues incidental thereto, and responding to the Supreme Court’s mandate in Rose v. Council for Better Educ., Inc. and declaring an emergency” does not relate to more than one subject, and that subject is expressed in the title; thus, Acts 1990, chapter 476, does not violate this section. OAG 90-29 .

Acts 1994, ch. 87 (KRS 42.700 (now repealed) and amendments to KRS 21A.140 and 311.610 ) is unconstitutional as it is violative of this section because the subject of the bill is not expressed in its title. OAG 95-21 .

Research References and Practice Aids

Cross-References.

Bracketed material in legislative bills, KRS 446.145 .

Statutes may be amended or repealed by reference to section numbers of Kentucky Revised Statutes, KRS 7.138 .

Kentucky Bench & Bar.

Stipanowich, Kentucky’s “No-Action” Statute: Recalled to Life?, Volume 51, No. 3, Summer 1987 Ky. Bench & B. 11.

Kentucky Law Journal.

Kentucky Law Survey: Savage, Insurance, 66 Ky. L.J. 631 (1977-1978).

Snyder and Irland, The Separation of Governmental Powers Under the Constitution of Kentucky: A Legal and Historical Analysis of L.R.C. v. Brown, 73 Ky. L.J. 165 (1984-85).

Northern Kentucky Law Review.

Notes, Insurance — Medical Malpractice — Uncoupling the Freight Train: The Kentucky Medical Malpractice Act — McGuffey v. Hall, 557 S.W.2d 401, 1977 Ky. LEXIS 533 ( Ky. 1977 ), 5 N. Ky. L. Rev. 123 (1978).

Note, Facing the Economic Challenges of the Eighties — The Kentucky Constitution and Hayes v. The State Property and Buildings Commission of Kentucky, 15 N. Ky. L. Rev. 645 (1988).

Notes, University of Louisville v. O’Bannon: Retroactive Application of Board of Claims Act Amendments, 18 N. Ky. L. Rev. 121 (1990).

Wintersheimer, State Constitutional Law, 20 N. Ky. L. Rev. 591 (1993).

Bartlett, Civil Procedure, 21 N. Ky. L. Rev. 269 (1994).

Bloemer, Kentucky’s Approach to the Discoverability of Peer Review, 23 N. Ky. L. Rev. 275 (1996).

Notes, Restoration of the Collateral Source Rule in Kentucky: A Review of O’Bryan v. Hedgespeth, 23 N. Ky. L. Rev. 357 (1996).

§ 52. General Assembly may not release debt to State or to county or city.

The General Assembly shall have no power to release, extinguish or authorize the releasing or extinguishing, in whole or in part, the indebtedness or liability of any corporation or individual to this Commonwealth, or to any county or municipality thereof.

NOTES TO DECISIONS

1.Franchises.

The relation between city and owner of existing telephone franchise being quasi-contractual for the performance of a service, an ordinance modifying the terms of the franchise for purpose of securing more effective service in competition with owner of another franchise is not invalid as releasing an indebtedness or liability to the municipality in violation of this section. Louisville Home Tel. Co. v. Louisville, 130 Ky. 611 , 113 S.W. 855, 1908 Ky. LEXIS 309 ( Ky. 1908 ).

Statute granting the public service commission exclusive jurisdiction to regulate the rates and services of a telephone company does not extinguish any indebtedness or liability to the commonwealth or a political subdivision thereof within the meaning of this section and is not by virtue thereof unconstitutional. Southern Bell Tel. & Tel. Co. v. Louisville, 265 Ky. 286 , 96 S.W.2d 695, 1936 Ky. LEXIS 468 ( Ky. 1936 ).

2.Miscellaneous Statutes.

KRS 160.045 does not violate Const., §§ 2, 19, 183 or this section. Board of Education v. Board of Education, 250 S.W.2d 1017, 1952 Ky. LEXIS 897 ( Ky. 1952 ).

3.Municipal Debts.
4.— Adjustment.

This section does not limit power of legislature to adjust burden of taxation between two municipalities, and so was not contravened by act placing such burden as to turnpikes already built entirely on a district created for the construction thereof, whereas theretofore it was partly on such general district and partly on road districts within it. Covington & C. Bridge Co. v. Davison, 102 S.W. 339, 31 Ky. L. Rptr. 425 (1907).

5.— Assessment.

Neither the city assessor nor the city attorney, nor any employee of the city, may agree to omit from assessment, or postpone the assessment of property, or take any step looking toward the ultimate defeat of the city in the collection of a tax or penalty due thereon. Louisville Car Wheel & R. Supply Co. v. Louisville, 146 Ky. 573 , 142 S.W. 1043, 1912 Ky. LEXIS 102 ( Ky. 1912 ).

6.— Compromise.

City council has no power to compromise a claim for taxes after assessment has been regularly made and claim has come into hands of collecting officer, especially after city attorney has brought suit on unpaid tax bill as provided by statute. Louisville v. Louisville R. Co., 111 Ky. 1 , 63 S.W. 14, 23 Ky. L. Rptr. 390 , 1901 Ky. LEXIS 174 ( Ky. 1 901).

The county court has no power, by way of compromise, to release any part of the indebtedness of a sheriff to the county. Commonwealth v. Tilton, 111 Ky. 341 , 63 S.W. 602, 23 Ky. L. Rptr. 753 , 1901 Ky. LEXIS 198 (Ky. Ct. App. 1901).

An agreement between a bank and the fiscal court whereby the former was to pay certain sums in lieu of all claims of the latter for taxes against the shares of its stockholders was void, but sums paid thereunder should be credited on whatever was due to county. Citizens' Nat'l Bank v. Commonwealth, 118 Ky. 51 , 80 S.W. 479, 81 S.W. 686, 25 Ky. L. Rptr. 2254 , 26 Ky. L. Rptr. 62 , 1904 Ky. LEXIS 13 ( Ky. 1904 ).

Where there was a genuine dispute concerning the indebtedness and the amount thereof owed by a sheriff to the county from tax collections, the compromise of the disputed amount between the sheriff and the fiscal court is not prohibited by this section. Roberts v. Fiscal Court of McLean County, 244 Ky. 596 , 51 S.W.2d 897, 1932 Ky. LEXIS 472 ( Ky. 1932 ).

This section denied power to make compromise settlement where liability was fixed and certain, but did not forbid settlement of unliquidated claims or compromise of pending litigation to recover on unliquidated claims at any time before final judgment. Steele v. Taylor, 272 Ky. 11 , 113 S.W.2d 423, 1937 Ky. LEXIS 691 ( Ky. 1937 ).

Where suit was brought to collect debt, final judgment was rendered and affirmed on appeal, rehearing was denied, and subsequent suits brought to set aside judgment were dismissed, appeal of such dismissal did not render claim unliquidated such as to allow compromise under this section. Steele v. Taylor, 272 Ky. 11 , 113 S.W.2d 423, 1937 Ky. LEXIS 691 ( Ky. 1937 ).

This section did not preclude compromise of unliquidated demands for taxes. Commonwealth v. Wood, 289 Ky. 649 , 159 S.W.2d 403, 1942 Ky. LEXIS 595 ( Ky. 1942 ).

Where appeal from judgment awarding city $4,000 from mayor and city clerk, who had erroneously authorized payment of that amount for special attorneys’ fees, was pending in Court of Appeals, the claim of the city was not a liquidated one within the meaning of this section; thus the constitutional prohibition contained in this section was not applicable to prohibit city from compromising claim for $800. Cole v. Burton, 313 Ky. 557 , 232 S.W.2d 838, 1950 Ky. LEXIS 907 ( Ky. 1950 ).

Where a determination was made by the revenue commissioner that certain river barge companies were subject to franchise taxes, a settlement in good faith of unliquidated claims for such taxes was not a violation of this section. Commonwealth ex rel. Reeves v. American Barge Line Co., 253 S.W.2d 622, 1952 Ky. LEXIS 1118 ( Ky. 1952 ).

7.— Credits.

Action by city council to credit taxpayer with the amount of taxes due for a prior year on the basis that taxpayer by mistake listed property not legally subject to taxes, where the taxes in question were fixed and ascertained, violated this section. Clark County Nat'l Bank v. Winchester, 177 Ky. 532 , 197 S.W. 1077, 1917 Ky. LEXIS 635 ( Ky. 1917 ).

8.— Inheritance.

Statute which provides that no inheritance tax shall be imposed more than once on the same property within any two-year period does not violate this section, since such legislation does not deprive the state of accrual taxes. Commonwealth by Board v. Paynter's Adm'r, 222 Ky. 766 , 2 S.W.2d 664, 1927 Ky. LEXIS 957 ( Ky. 1927 ).

Where right of state to inheritance tax on charitable bequest already had vested but had not been paid, subsequent legislation exempting such bequests from tax did not divest the state of its right to collect the tax. State Tax Com. v. Nettleton's Ex'r, 226 Ky. 393 , 11 S.W.2d 84, 1928 Ky. LEXIS 102 ( Ky. 1928 ).

9.— Taxes.

Neither the legislature nor the general council of a city may release, in whole or in part, the liability of any corporation or individual for municipal taxes. Ludlow v. Ludlow, 152 Ky. 545 , 153 S.W. 783, 1913 Ky. LEXIS 697 ( Ky. 1913 ).

10.— Sales.

Statutory extension of redemption period and reduction of rate of interest and penalties concerning sales of land for taxes prior to the statute do not violate this section. Grieb v. National Bank of Kentucky's Receiver, 252 Ky. 753 , 68 S.W.2d 21, 1933 Ky. LEXIS 1030 ( Ky. 1933 ).

11.— Sureties.

County attorney and fiscal court could not give receipt in full settlement of all demands of whatsoever character to the surety on bond of county clerk, on its payment of delinquent taxes collected and wrongfully retained by the clerk, so that such receipt could not be pleaded as an accord and satisfaction in later action against the surety for money fraudulently obtained on forged warrants. Title Guaranty & Surety Co. v. Commonwealth, 146 Ky. 702 , 143 S.W. 401, 1912 Ky. LEXIS 159 ( Ky. 1912 ).

Cited:

Long v. Louisville, 97 Ky. 364 , 17 Ky. L. Rptr. 253 , 30 S.W. 987, 1895 Ky. LEXIS 201 ( Ky. 1895 ); Holt v. Clements, 265 Ky. 546 , 97 S.W.2d 397, 1936 Ky. LEXIS 531 ( Ky. 1936 ); Brown v. Barkley, 628 S.W.2d 616, 1982 Ky. LEXIS 232 ( Ky. 1982 ).

Opinions of Attorney General.

This section was not intended to prevent the assignment of a chose in action, e.g., a right to collect money due and owing to the Commonwealth, where that assignment is for valuable consideration. OAG 79-338 .

Where the University of Kentucky agreed to assign over $500,000 in student loans to the Department of Health, Education, and Welfare, to be able to continue to participate in a federal loan program, this would not violate this section since the debt would not be extinguished, but rather assigned for valuable consideration. OAG 79-338 .

Neither the school nor the tax collector can abate past due interest or penalty on local school taxes paid prior to or after filing suit for collection of the unpaid taxes, penalty, and interest. OAG 88-46 .

Research References and Practice Aids

Kentucky Bench & Bar.

Tobergte, The Impact of Kentucky’s Present Constitution Upon Business Growth & Development, Volume 51, No. 3, Summer 1987 Ky. Bench & B. 21.

§ 53. Investigation of accounts of Treasurer and Auditor — Report, publication, submission to Governor and General Assembly.

The General Assembly shall provide by law for monthly investigations into the accounts of the Treasurer and Auditor of Public Accounts, and the result of these investigations shall be reported to the Governor, and these reports shall be semiannually published in two newspapers of general circulation in the State. The reports received by the Governor shall, at the beginning of each session, be transmitted by him to the General Assembly for scrutiny and appropriate action.

NOTES TO DECISIONS

1.Purpose.

Purpose of this section was to provide general assembly and governor with statistical facts when considering acts providing for appropriations, carrying provisions for levy, and collection of taxes with which to meet them. State Budget Com. v. Lebus, 244 Ky. 700 , 51 S.W.2d 965, 1932 Ky. LEXIS 502 ( Ky. 1932 ).

Cited:

Legislative Research Com. by Prather v. Brown, 664 S.W.2d 907, 1984 Ky. LEXIS 300 ( Ky. 1984 ).

Research References and Practice Aids

Cross-References.

Investigation of accounts of auditor, treasurer and finance and administration cabinet, KRS 43.050 , 43.060 , 43.090 , 45.301 .

Statement of receipts and disbursements of public money to be published, Const., § 230.

§ 54. No restriction on recovery for injury or death.

The General Assembly shall have no power to limit the amount to be recovered for injuries resulting in death, or for injuries to person or property.

NOTES TO DECISIONS

Analysis

1.In General.

In encouraging dedication of land for recreational use by land owners, KRS 411.190 creates a class of users which by such dedication loses its label as trespassers but does not acquire the label of invitees; this is a reasonable classification and there is no violation of this section, § 14, or any other pertinent section of the Kentucky Constitution. Sublett v. United States, 688 S.W.2d 328, 1985 Ky. LEXIS 215 ( Ky. 1985 ).

Fundamental fairness is part and parcel of the concept underlying the rights guaranteed by the Constitution; and, conversely, the various sections in it protecting individual rights from legislative interference cannot be understood or applied without reference to fundamental fairness. Perkins v. Northeastern Log Homes, 808 S.W.2d 809, 1991 Ky. LEXIS 44 ( Ky. 1991 ).

KRS 67A.060 retention of sovereign immunity in urban county governments is not unconstitutional; sovereign immunity “trumps” jural rights because sovereign immunity predates the adoption of Kentucky’s first constitution. Lexington-Fayette Urban County Gov't v. Smolcic, 142 S.W.3d 128, 2004 Ky. LEXIS 182 ( Ky. 2004 ).

2.Purpose.

A reading of Const., § 241 in conjunction with this section indicates that it was intention of framers of Constitution to extend the common-law right of action of recovery for both compensatory and exemplary damages for injuries not resulting in death to cases in which death ensued. Louisville & N. R. Co. v. Kelly's Adm'x, 100 Ky. 421 , 38 S.W. 852, 19 Ky. L. Rptr. 69 , 1897 Ky. LEXIS 20 ( Ky. 1897 ).

3.Application.

Since the restriction of KRS 304.40-330 (8) (b) (now repealed) on the amount payable from a patient compensation fund in one (1) year was not a limitation on the claimant’s right of recovery, this section would not apply. McGuffey v. Hall, 557 S.W.2d 401, 1977 Ky. LEXIS 533 ( Ky. 1977 ).

Aside from the mention of defamation in Const., § 14, such section and this section expressly apply only to actions for death, personal injuries, and property damage. Fireman's Fund Ins. Co. v. Government Emples. Ins. Co., 635 S.W.2d 475, 1982 Ky. LEXIS 270 ( Ky. 1982 ), overruled, Perkins v. Northeastern Log Homes, 808 S.W.2d 809, 1991 Ky. LEXIS 44 ( Ky. 1991 ); Fireman's Fund Ins. Co. v. Sherman & Fletcher, 705 S.W.2d 459, 1986 Ky. LEXIS 239 ( Ky. 1986 ).

The General Assembly had no power to limit the amount to be recovered for injuries resulting in death, or for injuries to person or property. Yanero v. Davis, 65 S.W.3d 510, 2001 Ky. LEXIS 203 ( Ky. 2001 ).

Dismissal of a hospital in a medical malpractice case was error because the non-resident hospital was not entitled to the protection afforded by Indiana’s Medical Malpractice Act (MMA), IC 34-18-1-1 et seq., since application of Indiana’s MMA would have violated Kentucky public policy; in light of the caps on damages mandated by Indiana’s MMA, the remedy was inadequate under Kentucky law in which no such caps existed and where Ky. Const., § 54 clearly articulated that Kentucky public policy tolerated no such limits on an injury resulting in death. Elder v. Perry County Hosp., 2007 Ky. App. LEXIS 342 (Ky. Ct. App. Sept. 14, 2007).

4.Construction.

Where indemnity implied from contract which arose when payments were made as a result of wrongdoing of another did not exist at common law before the existence of the Constitution, it can be abolished by the legislature without violation of Const., § 14 or this section. Fireman's Fund Ins. Co. v. Bennett, 635 S.W.2d 482, 1981 Ky. App. LEXIS 324 (Ky. Ct. App. 1981), aff'd, 635 S.W.2d 475, 1982 Ky. LEXIS 270 ( Ky. 1982 ).

Construction of Const., § 14 and this section is and should be that which leaves to the policymaking arm of government the broadest discretion consistent with their language. Carney v. Moody, 646 S.W.2d 40, 1982 Ky. LEXIS 331 ( Ky. 1982 ), overruled, Perkins v. Northeastern Log Homes, 808 S.W.2d 809, 1991 Ky. LEXIS 44 ( Ky. 1991 ).

The jural right to sue for personal injury or death caused by negligence or other wrongful acts was well recognized in 1891 when the Constitution was adopted. In drafting the constitutional protections in this section and §§ 14 and 241, the founding fathers were protecting the jural rights of the individual citizens of Kentucky against the power of the government to abridge such rights, speaking to their rights as they would be commonly understood by those citizens in any year, not just in 1891. The protection afforded to jural rights is not limited definitively to fact situations existing in the year 1891. Perkins v. Northeastern Log Homes, 808 S.W.2d 809, 1991 Ky. LEXIS 44 ( Ky. 1991 ).

The Product’s Liability Act (PLA) does not attempt to abolish a right of recovery, be it jural or otherwise but merely codifies long established Kentucky law that a manufacturer, under whatever legal theory, is not liable for injuries following the alteration, destruction, or mutilation of its product, or by its misuse which was not reasonably foreseeable and as they are no more than a codification of existing principles or a modification of those principles well within legislative authority they do not violate any viable concept of jural rights. Monsanto Co. v. Reed, 950 S.W.2d 811, 1997 Ky. LEXIS 50 ( Ky. 1997 ).

5.Actions.
6.— Against Commonwealth.

Statute limiting to $6,000 the amount a motorist can recover in a suit for collision against the state highway department (now department of highways) does not violate this section. Commonwealth v. Daniel, 266 Ky. 285 , 98 S.W.2d 897, 1936 Ky. LEXIS 643 ( Ky. 1936 ).

Decisions concerning when the sovereign immunity defense applies to a state entity have held that § 231, as a specific provision, overrides §§ 14 and 241, and this section as general provisions, but only in suits which may be legitimately classified as “brought against the Commonwealth.” Kentucky Center for Arts Corp. v. Berns, 801 S.W.2d 327, 1990 Ky. LEXIS 142 ( Ky. 1990 ).

Where sovereign immunity exists by reason of the Constitution under § 231, the General Assembly may extend or limit waiver as it sees fit, but where no constitutionally protected sovereign immunity exists the General Assembly cannot by statute create it or it is in violation of the rights preserved to citizens under Const. §§ 14, 241, and this section. Kentucky Center for Arts Corp. v. Berns, 801 S.W.2d 327, 1990 Ky. LEXIS 142 ( Ky. 1990 ).

Property owners’ claims against a fire department and a city were dismissed because KRS 75.070 and 95.830(2) provided the fire department with sovereign immunity, the statutes were constitutional under Ky. Const. §§ 230 and 231, and the statutes did not violate the jural rights doctrine under Ky. Const. §§ 14, 54, and 241. Caneyville Volunteer Fire Dep't v. Green's Motorcycle Salvage, Inc., 286 S.W.3d 790, 2009 Ky. LEXIS 158 ( Ky. 2009 ).

7.— — Employees.

A statute which purports to extend immunity enjoyed by the governmental agency to the personal liability of its employees violates this section and Const., § 14 and would violate Const., § 241, if a death were involved. The Constitution prohibits the abolition or diminution of legal remedies for personal injuries. University of Louisville v. O'Bannon, 770 S.W.2d 215, 1989 Ky. LEXIS 12 ( Ky. 1989 ).

Three (3) physicians in a state university hospital had no special protection by means of sovereign immunity. Gould v. O'Bannon, 770 S.W.2d 220, 1989 Ky. LEXIS 15 ( Ky. 1989 ).

A statute which purports to extend sovereign immunity to the personal liability of its employees violates this section as well as Const., §§ 14 and 241. Blue v. Pursell, 793 S.W.2d 823, 1989 Ky. App. LEXIS 124 (Ky. Ct. App. 1989).

8.— Breach of Contract.

Fixed statutory penalty to be recovered by tobacco growers cooperative association for warehouseman’s inducing breach of marketing agreement between growers and the association does not violate this section as an unconstitutional limitation on the amount to be recovered for injuries to property. Liberty Warehouse Co. v. Burley Tobacco Growers' Co-op. Ass'n, 208 Ky. 643 , 271 S.W. 695, 1925 Ky. LEXIS 358 ( Ky. 1925 ), aff'd, 276 U.S. 71, 48 S. Ct. 291, 72 L. Ed. 473, 1928 U.S. LEXIS 62 (U.S. 1928).

9.—Tort.

This section covers the right of action for a tort and not contracts. Kentucky Hotel, Inc. v. Cinotti, 298 Ky. 88 , 182 S.W.2d 27, 1944 Ky. LEXIS 843 ( Ky. 1944 ), overruled, Zurich Fire Ins. Co. v. Weil, 259 S.W.2d 54, 1953 Ky. LEXIS 928 ( Ky. 1953 ).

The restriction in this section relates to liability of a wrongdoer and applies to actions in tort and not to contract liability. Milner Hotels, Inc. v. Lyon, 302 Ky. 717 , 196 S.W.2d 364, 1946 Ky. LEXIS 747 ( Ky. 1946 ).

This section does not invalidate KRS 306.020 which absolves innkeepers from liability for the loss of valuables by a guest who fails to deposit them in a safe provided therefor. Milner Hotels, Inc. v. Lyon, 302 Ky. 717 , 196 S.W.2d 364, 1946 Ky. LEXIS 747 ( Ky. 1946 ).

Because of this section, limitation of recovery to $200 in KRS 306.030(1)(c) would not limit liability in action of tort for injury to property in sole custody of hotel. Zurich Fire Ins. Co. v. Weil, 259 S.W.2d 54, 1953 Ky. LEXIS 928 ( Ky. 1953 ).

KRS 95.830 exempting an officer or employee of a city from liability for injuries suffered as a result of his tortious acts while in the exercise of his official duties is unconstitutional under Const., § 14 and this section, and if death is involved, under Const., § 214. Happy v. Erwin, 330 S.W.2d 412, 1959 Ky. LEXIS 195 ( Ky. 1959 ), overruled in part, Fireman's Fund Ins. Co. v. Government Emples. Ins. Co., 635 S.W.2d 475, 1982 Ky. LEXIS 270 ( Ky. 1982 ).

KRS 411.188 , which specifies that collateral source payments shall be an admissible fact in any civil trial, was not so written as to express a substantive law change denying damages for medical expenses and wage loss in a civil action to those plaintiffs who have access to collateral source benefits, as to do so would violate this section. O'Bryan v. Hedgespeth, 892 S.W.2d 571, 1995 Ky. LEXIS 10 ( Ky. 1995 ).

10.— — Defamation of Character.

KRS 84.050(5) (repealed) and KRS 89.400 (repealed), in adopting by reference the immunities granted members of the general assembly and applying them to officials under the city manager form of government, did not violate this section which was intended to apply to physical injuries to the person and damage to property and not to such actions as defamation of character. Jacobs v. Underwood, 484 S.W.2d 855, 1972 Ky. LEXIS 158 ( Ky. 1972 ).

11.— —Personal Injuries.

If nonresident motorist has been given the chance, pursuant to KRS 304.39-030 , to reject the limitations on his right to sue in tort, specified in KRS 304.39-060 , and has neglected to reject that limitation on his right to sue, § 14 of the Constitution and this section are not violated by denying the motorist the right to sue to the same extent as that right is denied residents. Stinnett v. Mulquin, 579 S.W.2d 374, 1978 Ky. App. LEXIS 672 (Ky. Ct. App. 1978).

KRS 304.39-100 does not violate either § 14 of the Constitution or this section. Stinnett v. Mulquin, 579 S.W.2d 374, 1978 Ky. App. LEXIS 672 (Ky. Ct. App. 1978).

The construction of the Motor Vehicle Reparations Act, KRS 304.39-010 , so as to deny recovery by uninsured motorists of basic reparations benefits unless the damages exceed $10,000, does not violate Const., § 14, and this section. Stone v. Montgomery, 618 S.W.2d 595, 1981 Ky. App. LEXIS 262 (Ky. Ct. App. 1981).

Sections 14 and 54 of the Constitution are not violated by those provisions of the Motor Vehicle Reparations Act, specifically KRS 304.39-070 (3) and (4) and 304.39-140 (3), which limit a no-fault insurer’s right of recoupment against a third-party tort-feasor. Fireman's Fund Ins. Co. v. Government Emples. Ins. Co., 635 S.W.2d 475, 1982 Ky. LEXIS 270 ( Ky. 1982 ), overruled, Perkins v. Northeastern Log Homes, 808 S.W.2d 809, 1991 Ky. LEXIS 44 ( Ky. 1991 ).

KRS 381.232 does not violate this section because it eliminates a cause of action existing at the time of the adoption of the present Constitution in 1891 or is more restrictive than a cause of action embodied in the common law in 1891. Kirschner v. Louisville Gas & Electric Co., 743 S.W.2d 840, 1988 Ky. LEXIS 10 ( Ky. 1988 ).

Kentucky’s Recreational Use Statute was constitutional because it did not violate the jural rights doctrine. Poore v. 21st Century Parks, Inc., 619 S.W.3d 409, 2020 Ky. App. LEXIS 88 (Ky. Ct. App. 2020).

12.— — Strict Liability.

An action for strict product liability was not established in Kentucky when its Constitution was adopted in 1891 and such an action is not preserved without limitation by this section and §§ 14, 26, and 241 of the Kentucky Constitution. Therefore, KRS 139.125 , which is a bar to strict liability actions for blood and blood products transactions, does not violate these constitutional provisions. McKee v. Cutter Laboratories, Inc., 866 F.2d 219, 1989 U.S. App. LEXIS 722 (6th Cir. Ky. 1989 ).

13.— — Malpractice.

The protection against malpractice liability extended by subsection (1) of KRS 311.377 does not violate this section. McGuffey v. Hall, 557 S.W.2d 401, 1977 Ky. LEXIS 533 ( Ky. 1977 ).

14.Damages.

A driver or owner of an automobile does not preserve his constitutional right to sue for damages caused by another in an automobile accident where he does not have automobile liability insurance coverage at the time of the accident and where the provisions of the Motor Vehicle Reparations Act would otherwise apply. Probus v. Sirles, 569 S.W.2d 707, 1978 Ky. App. LEXIS 569 (Ky. Ct. App. 1978).

Where limitations statute of KRS 413.135 was enacted in 1966, and at that time the law of this state did not provide a cause of action by the vendee of real estate against the vendor on the basis of an implied warranty, there was no constitutional impediment to the application of the statute to damage sustained by vendee due to alleged breach of such warranty. Ball Homes, Inc. v. Volpert, 633 S.W.2d 63, 1982 Ky. LEXIS 247 ( Ky. 1982 ).

KRS 413.135 as amended in 1986 providing for limitations for actions for damages arising out of injury is constitutionally defective as special legislation and further attempts to amend it to overcome the constitutional defects fatally impale upon this section and Ky. Const., §§ 14 and 241. Perkins v. Northeastern Log Homes, 808 S.W.2d 809, 1991 Ky. LEXIS 44 ( Ky. 1991 ).

Regardless of its purpose, KRS 411.155 , providing for the limiting of liability for damages resulting from the use of a firearm by another person, patently offends Const., § 14, as well as this section which prevents the General Assembly from limiting the amount of damages recoverable. Waldon v. Housing Auth. of Paducah, 854 S.W.2d 777, 1991 Ky. App. LEXIS 146 (Ky. Ct. App. 1991).

15.— Punitive Damages.

KRS 411.184(1)(c), which changed the existing common law standard of gross negligence for awarding punitive damages and which conditions such an award on a finding that defendant acted “with a flagrant indifference to the rights of the plaintiff and with a subjective awareness that such conduct will result in human death or bodily harm,” violates the jural rights doctrine inherent in this section and Ky. Const., § 14 and 241. Williams v. Wilson, 972 S.W.2d 260, 1998 Ky. LEXIS 63 ( Ky. 1998 ).

16.— Reduction of Judgment.

Since an uninsured resident is deemed to have waived any right to tort recovery for medical and hospital expenses to the extent basic reparation benefits would have been payable under the Motor Vehicle Reparation Act, an uninsured nonresident constitutionally may receive the same treatment under such act, and thus reduction of the judgment in suit by nonresident uninsured motorist for damages arising from accident which occurred in Kentucky to exclude medical and hospital expenses did not violate this section. Russell v. Proffitt, 765 F.2d 72, 1985 U.S. App. LEXIS 19805 (6th Cir. Ky. 1985 ).

17.— New Trial.

Provisions of this section prohibiting limitations on the amount to be recovered for injuries to person or property do not render unconstitutional a statute barring a new trial for paucity of damages in actions where the damages awarded equal the pecuniary loss suffered. Drury v. Franke, 247 Ky. 758 , 57 S.W.2d 969, 1933 Ky. LEXIS 453 ( Ky. 1933 ).

18.Guest Statutes.

The automobile guest statute which bars recovery of damages for injuries unless intentional wrong is established on the part of the driver or owner is a clear limitation on the amount of damages for injuries to person or property and is unconstitutional under this section and Const., §§ 14 and 241. Ludwig v. Johnson, 243 Ky. 533 , 49 S.W.2d 347, 1932 Ky. LEXIS 159 ( Ky. 1932 ).

19.Limitation of Actions.

Under this section and §§ 14 and 241 of the Constitution, KRS 413.120(14) and KRS 413.135 could not be applied constitutionally to bar recovery by a third-party tenant from a negligent builder for personal injuries or wrongful death, since to do so would destroy an existing right of action under the guise of limitation of actions. Saylor v. Hall, 497 S.W.2d 218, 1973 Ky. LEXIS 304 ( Ky. 1973 ). But see Carney v. Moody, 646 S.W.2d 40, 1982 Ky. LEXIS 331 ( Ky. 1982 ), overruled, Perkins v. Northeastern Log Homes, 808 S.W.2d 809, 1991 Ky. LEXIS 44 ( Ky. 1991 ).

In an action against materialmen who designed and furnished, in 1970, aluminum circuit wiring that allegedly caused a supper club fire in 1977, Const., §§ 14, 51 and 241 precluded application of the five-year statute of limitations of KRS 413.135 to bar suit against the defendants, as it would have extinguished a common-law right of action before the injury occurred and before the plaintiffs had any reasonable opportunity to seek redress in court. In re Beverly Hills Fire Litigation, 695 F.2d 207, 1982 U.S. App. LEXIS 17268 (6th Cir. Ky. 1982 ), cert. denied, 461 U.S. 929, 103 S. Ct. 2090, 77 L. Ed. 2d 300, 1983 U.S. LEXIS 4603 (U.S. 1983).

Since the law as it prevailed in 1891, when the state Constitution was adopted, would not have afforded injured parties a remedy against a negligent builder or builders, Const., § 14 and this section prohibiting restrictions on personal injury or death recoveries, would not apply to bar operation of KRS 413.120 and 413.135 establishing a five-year statute of limitation on such actions. Although negligence was an established basis for a cause of action in 1891 it cannot be held that all rights of action based on negligence, especially of a type recognized at the time the limitations statutes were enacted in 1964 and 1966, are constitutionally protected since this would mean that every enlargement in the field of liability for negligent conduct, whether effected by statute or by court decision would assume constitutional status, beyond the power of either court or legislature to overrule or repeal it. Carney v. Moody, 646 S.W.2d 40, 1982 Ky. LEXIS 331 ( Ky. 1982 ), overruled, Perkins v. Northeastern Log Homes, 808 S.W.2d 809, 1991 Ky. LEXIS 44 ( Ky. 1991 ).

19.5.Personal Immunity.

Adoption of KRS 411.148 is within the legislature’s police powers, and does not violate the jural rights doctrine under Ky. Const. §§ 14, 54, and 241, as the purpose of KRS 411.148 is to encourage the rendering of medical assistance to those in need by trained medical personnel by removing the fear of liability that accompanies rendering aid under the common law. Cook v. Taylor, 2008 Ky. App. LEXIS 264 (Ky. Ct. App. Aug. 22, 2008), review denied, ordered not published, 2009 Ky. LEXIS 212 (Ky. Aug. 19, 2009).

20.Sureties.

Statutory fixing of definite penal sum for official and fiduciary bonds and limitation on surety’s liability to that fixed amount does not violate this section as a limitation on the amount which may be recovered for injuries to persons or property. Fidelity & Deposit Co. v. Commonwealth, 231 Ky. 346 , 21 S.W.2d 452, 1929 Ky. LEXIS 271 ( Ky. 1929 ).

21.Waiver of Right.

An employee may, by contract freely and voluntarily made, waive this section. Kentucky State Journal Co. v. Workmen’s Compensation Board, 161 Ky. 562 , 170 S.W. 1166, 1914 Ky. LEXIS 88 , L.R.A. (n.s.) 1916B389 ( Ky. 1914 ), overruled, Wells v. Jefferson County, 255 S.W.2d 462, 1953 Ky. LEXIS 646 ( Ky. 1953 ).

22.Workers’ Compensation.

The provisions of workers’ compensation act, being compulsory on both employer and employee, were, insofar as they affected the employee, in violation of this section. Kentucky State Journal Co. v. Workmen’s Compensation Board, 161 Ky. 562 , 170 S.W. 1166, 1914 Ky. LEXIS 88 , L.R.A. (n.s.) 1916B389 ( Ky. 1914 ), overruled, Wells v. Jefferson County, 255 S.W.2d 462, 1953 Ky. LEXIS 646 ( Ky. 1953 ). See Greene v. Caldwell, 170 Ky. 571 , 186 S.W. 648, 1916 Ky. LEXIS 126 ( Ky. 1916 ).

The workers’ compensation act did not violate this section as being compulsory on employees, since it provided for their election to accept the act, even though employer might use against nonaccepting employee the defenses of contributory negligence, fellow servant and assumed risk. Greene v. Caldwell, 170 Ky. 571 , 186 S.W. 648, 1916 Ky. LEXIS 126 ( Ky. 1916 ). See Kentucky State Journal Co. v. Workmen’s Compensation Board, 161 Ky. 562 , 170 S.W. 1166, 1914 Ky. LEXIS 88 , L.R.A. (n.s.) 1916B389 ( Ky. 1914 ), overruled, Wells v. Jefferson County, 255 S.W.2d 462, 1953 Ky. LEXIS 646 ( Ky. 1953 ).

Workers’ compensation act construed not to establish testimony of subscribing witness as conclusive evidence of deceased’s signature, since to do so would violate both this section and Const., § 241. Pioneer Coal Co. v. Polly, 208 Ky. 548 , 271 S.W. 592, 1925 Ky. LEXIS 328 ( Ky. 1925 ).

Voluntary settlement for wrongful death by personal representative of deceased employee with the employer for an amount less than that fixed under the workers’ compensation act is no bar to a claim of the dependents against the employer under the act, since such a bar would violate this section by reducing the amount to be recovered for injuries resulting in death. Napier v. John P. Gorman Coal Co., 242 Ky. 127 , 45 S.W.2d 1064, 1931 Ky. LEXIS 714 ( Ky. 1931 ).

KRS 342.295 , which provides that an employee is deemed to waive his right to sue his employer in the courts for personal injury or wrongful death unless he files with the employer a written rejection of the workers’ compensation act procedure, is not in violation of this section. Wells v. Jefferson County, 255 S.W.2d 462, 1953 Ky. LEXIS 646 ( Ky. 1953 ).

This section does not prohibit the application of the immunity provisions of the workers’ compensation act to an employer. Simmons v. Clark Constr. Co., 426 S.W.2d 930, 1968 Ky. LEXIS 663 ( Ky. 1968 ).

Statute which provided that where both employer and employee elect to proceed under the workers’ compensation act and that employer should be released from all other liability cannot be construed as a grant of immunity under the workers’ compensation act to an employer for his tortious acts resulting in damage to a third party, since the right of indemnity is a jural right which existed in common law prior to the Constitution and any legislative abolition of it is unconstitutional under this section. Kentucky Utilities Co. v. Jackson County Rural Electric Cooperative Corp., 438 S.W.2d 788, 1968 Ky. LEXIS 157 ( Ky. 1968 ).

Although the equitable right to indemnity may have existed in 1891, an employer’s liability to indemnify a third party tortfeasor would not have existed; therefore, this section and Const., §§ 14 and 241 were not a bar to any attempt to limit indemnification. Capps v. Herman Schwabe, Inc., 628 F. Supp. 1353, 1986 U.S. Dist. LEXIS 29917 (W.D. Ky. 1986 ).

There is no constitutional impediment to repose provisions in the workers’ compensation scheme. Wright v. Oberle-Jordre Co., 910 S.W.2d 241, 1995 Ky. LEXIS 141 ( Ky. 1995 ).

Dismissal of a motion to reopen a workers’ compensation claim arising from pneumoconiosis was proper because the worker had received no additional exposure to coal dust, and KRS 342.125(5)(a) required a worker seeking to reopen an award rendered under KRS 342.732 to make a preliminary showing that included a progression of pneumoconiosis, the development of respiratory impairment due the disease, and two additional years of continuous exposure to the hazards of the disease in Kentucky; the additional-exposure requirement was not arbitrary or capricious, and did not violate the Kentucky Constitution. Bolin v. T & T Mining, 231 S.W.3d 130, 2007 Ky. LEXIS 171 ( Ky. 2007 ).

23.— Recovery for Occupational Disability.

Noncompensable injury should not be considered when determining the extent of a worker’s occupational disability for awarding benefits. The section’s limit on a worker’s claim to 425 weeks, rather than the duration of the injury, does not deprive the worker of constitutional rights of recovery for injury because, if the worker elects to proceed under it, the worker’s compensation system replaces all but intentional tort liability on the part of employers. Edwards v. Louisville Ladder, 957 S.W.2d 290, 1997 Ky. App. LEXIS 96 (Ky. Ct. App. 1997).

Cited:

Linss v. Chesapeake & O. R. Co., 91 F. 964, 1899 U.S. App. LEXIS 2944 (6th Cir. 1899); Duff v. Louisville & N. R. Co., 219 Ky. 238 , 292 S.W. 814, 1927 Ky. LEXIS 324 ( Ky. 1927 ); Commonwealth v. Bowman, 267 Ky. 50 , 100 S.W.2d 801, 1936 Ky. LEXIS 751 ( Ky. 1936 ); Whitney Transfer Co. v. McFarland, 283 Ky. 200 , 138 S.W.2d 972, 1940 Ky. LEXIS 270 ( Ky. 1940 ); Cottengim’s Adm’r v. Adams’ Adm’x, 255 S.W.2d 637, 1953 Ky. LEXIS 678 , 36 A.L.R.2d 1142 ( Ky. 1953 ); Commonwealth v. McCoun, 313 S.W.2d 585, 1958 Ky. LEXIS 272 ( Ky. 1958 ); Johnson v. Lohre, 508 S.W.2d 785, 1974 Ky. LEXIS 633 ( Ky. 1974 ); Brooks v. Burkeen, 549 S.W.2d 91, 1977 Ky. LEXIS 407 ( Ky. 1977 ); Kennedy v. Ziesmann, 522 F. Supp. 730, 1981 U.S. Dist. LEXIS 14699 (E.D. Ky. 1981 ); Brown v. Barkley, 628 S.W.2d 616, 1982 Ky. LEXIS 232 ( Ky. 1982 ); In re Beverly Hills Fire Litigation, 583 F. Supp. 1163, 1984 U.S. Dist. LEXIS 20773 (E.D. Ky. 1984 ); Horton v. Union Light, Heat & Power Co., 690 S.W.2d 382, 1985 Ky. LEXIS 220 ( Ky. 1985 ); M.J. Daly Co. v. Varney, 695 S.W.2d 400, 1985 Ky. LEXIS 226 ( Ky. 1985 ); Tabler v. Wallace, 704 S.W.2d 179, 1985 Ky. LEXIS 291 (Ky. 1985); Hurley v. Downing, 717 S.W.2d 225, 1986 Ky. LEXIS 294 ( Ky. 1986 ); Massie v. Persson, 729 S.W.2d 448, 1987 Ky. App. LEXIS 444 (Ky. Ct. App. 1987); McCollum v. Sisters of Charity of Nazareth Health Corp., 799 S.W.2d 15, 1990 Ky. LEXIS 98 ( Ky. 1990 ); Birkenshaw v. Union Light, Heat & Power Co., 987 F.2d 383, 1993 U.S. App. LEXIS 4293 (6th Cir. 1993); Wittmer v. Jones, 864 S.W.2d 885, 1993 Ky. LEXIS 138 ( Ky. 1993 ); Garrison v. Leahy-Auer, 220 S.W.3d 693, 2006 Ky. App. LEXIS 151 (Ky. Ct. App. 2006).

Notes to Unpublished Decisions

Analysis

1.Damages.
2.— Reduction of Judgment.

Unpublished decision: Since Ky. Const. § 54 prohibited legislative encroachment on compensatory damages due to tort victims, a trial court’s interpretation of KRS 304.39-320 as authorizing a credit or setoff of underinsured motorist (UIM) payments received by an injured person from his own insurers against the damages that were recoverable from a negligent driver was a violation of Ky. Const. § 54. The court reversed an order of satisfaction that was premised on a credit against the amount the injured person could recover from the negligent driver and the court remanded for a recalculation of the amount recoverable without crediting the driver with the UIM benefits that the injured person received. Schwartz v. Hasty, 175 S.W.3d 621, 2005 Ky. App. LEXIS 43 (Ky. Ct. App. 2005).

3.Workers’ Compensation.

Unpublished decision: KRS 342.125(8), which limited the period in which an employee could reopen a claim after December 31, 1996, afforded the employee a reasonable four-year period after December 12, 1996 in which to assert a right to increased compensation, and did not violate Ky. Const. § 59(24), as the provision served a legitimate purpose. Thus, the employee was not deprived of a vested right to reopen her claim after more than four years had passed. Johnson v. Gans Furniture Indus., Inc., 114 S.W.3d 850, 2003 Ky. LEXIS 204 ( Ky. 2003 ).

Opinions of Attorney General.

Since the individual fireman could have been held liable for his negligent actions when the Kentucky Constitution was adopted in 1891, that remedy may not now be abolished by statute and any provision of KRS 75.070 that purports to provide this individual immunity is unconstitutional. OAG 69-213 .

KRS 75.070 is unconstitutional as being in violation of Const., §§ 14, 54 and 241. OAG 71-82 .

Subsection (2) of KRS 95.830 , in its attempt to exempt cities from liability, is unconstitutional. OAG 71-82 .

A proposed amendment to KRS 413.140 making the statute of limitations and discovery period for medical malpractice cases applicable to minors, with the statute commencing to run not later than a minor’s seventh birthday, would be unconstitutional in contravention of this section and sections 14 and 241 of the Const. OAG 75-633 .

Although a claimant can consent to a limitation of his rights under this section, proposed new legislation limiting malpractice judgments to $500,000, providing the claimant voluntarily accepts the provisions of the proposed act, raises constitutional questions under this section and sections 14 and 241 of the Const., since an agreement not to assert a medical negligence claim in court at all could be held void as against public policy and the courts probably would not apply, for constitutional reasons, any implied consent, implied acceptance or implied waiver doctrine in the area of medical negligence. OAG 75-633 .

The interest of a next of kin in the body of a decedent is not a property or personal interest which is within the protection of this section; accordingly, it does not prohibit the legislature from limiting the amount of recovery when this interest is violated; and, therefore, a proposed bill eliminating liability of medical examiners, coroners, etc., from civil or criminal liability for failure to obtain consent of next of kin before performing autopsies, would not violate this section. OAG 79-405 .

To the extent KRS 411.148 relieves the persons named therein from liability arising from death or physical injury to persons caused by negligence, the statute is unconstitutional under this section and, to the extent therefore, void. OAG 79-535 .

Since the Workers’ Compensation Act limits the right to recover to certain sums and in a certain manner, any law which did not give the employee the right to choose not to accept the act might be in violation of this section. OAG 79-584 .

KRS 39.419 (now repealed) is unconstitutional under Const., § 14, this section and Const., § 241, to the extent that it relieves the persons named therein of liability from negligently causing the death or injury to another person or the loss of or damage to the property of that other person. OAG 81-94 .

KRS 411.200 is unconstitutional and in violation of this section and Ky. Const., §§ 14 and 241 to the extent that it attempts to immunize from civil liability any act or omission resulting in damage or injury caused by a person who serves as a director, officer, volunteer or a trustee of a nonprofit organization. OAG 91-89 .

Research References and Practice Aids

Cross-References.

Actions for wrongful death, KRS 411.130 .

Workmen’s compensation, KRS ch. 342.

Kentucky Bench & Bar.

Palmore, A Summary of Significant Decisions by the Supreme Court of Kentucky April 1982-April 1983, Vol. 47, No. 3, July 1983, Ky. Bench & Bar 14.

Stipanowich, Kentucky’s “No-Action” Statute: Recalled to Life?, Volume 51, No. 3, Summer 1987 Ky. Bench & B. 11.

Moore, Punitive Damages in Wrongful Death Actions: Is KRS 411.184 Constitutional?, Vol. 54, No. 3, Summer 1990, Ky. Bench & Bar 18.

Rankin, Punitive Damages Under KRS 411.184 and 411.186 : A View from the Defense Bar, 56 Ky. Bench & B. 29.

Schabell, 1994 Workers’ Compensation Changes — A Plaintiff’s Perspective, Vol. 58, No. 4, Fall 1994, Ky. Bench & Bar 17.

Toner & Asseff, Do Appellate Court Decisions Affect Health Care Costs?, Volume 75, No. 3, May 2011, Ky. Bench & Bar 23.

Kentucky Law Journal.

Comments, No-Fault Insurance in Kentucky — A Constitutional Analysis, 62 Ky. L.J. 590 (1973-74).

Kentucky Law Survey: Clark, Medical Malpractice, 65 Ky. L.J. 337 (1976-77).

Ausness, Water Use Permits in a Riparian State: Problems, 66 Ky. L.J. 191 (1977-1978).

Braden, An Insurer’s Liability to Third Parties for Negligent Inspection, 66 Ky. L.J. 910 (1977-1978).

Kentucky Law Survey, Harned and Hopgood, Worker’s Compensation, 70 Ky. L.J. 499 (1981-82).

Kentucky Law Survey, Grise, Torts, 71 Ky. L.J. 307 (1982-83).

Kentucky Law Survey, Harned, Workers’ Compensation, 72 Ky. L.J. 479 (1983-84).

Notes, Statutes Establishing a Duty to Report Crimes or Render Assistance to Strangers: Making Apathy Criminal, 72 Ky. L.J. 827 (1983-84).

Rogers, Apportionment in Kentucky After Comparative Negligence, 75 Ky. L.J. 103 (1986-87).

Lewis, Jural Rights under Kentucky’s Constitution: Realities Grounded in Myth, 80 Ky. L.J. 953 (1992).

Hamm, The Reemergence of the Sovereign Immunity Doctrine in Kentucky, 87 Ky. L.J. 439 (1998-99).

Note, Official Immunity in Kentucky: The New Standard Under Yanero v. Davis, 90 Ky. L.J. 635 (2001-02).

Northern Kentucky Law Review.

Wintersheimer, State Constitutional Law, 20 N. Ky. L. Rev. 591 (1993).

Busald and Tankersley, Survey of Kentucky Tort Law: 1991-92, 20 N. Ky. L. Rev. 687 (1993).

Wintersheimer, State Constitutional Law Survey, 21 N. Ky. L. Rev. 257 (1994).

Notes, Restoration of the Collateral Source Rule in Kentucky: A Review of O’Bryan v. Hedgespeth, 23 N. Ky. L. Rev. 357 (1996).

2012 Kentucky Survey Issue: Article: Determining Who Gets the Windfall: Recent Developments of the Collateral Source Rule in Kentucky, 39 N. Ky. L. Rev. 63 (2012).

§ 55. When laws to take effect — Emergency legislation.

No act, except general appropriation bills, shall become a law until ninety days after the adjournment of the session at which it was passed, except in cases of emergency, when, by the concurrence of a majority of the members elected to each House of the General Assembly, by a yea and nay vote entered upon their journals, an act may become a law when approved by the Governor; but the reasons for the emergency that justifies this action must be set out at length in the journal of each House.

History. Repeal, proposed by Acts 2021, ch. 27, § 1, and is contingent upon ratification.

NOTES TO DECISIONS

1.Construction.

Under this section and Const., § 58, the legislature is empowered to provide that a particular thing may or may not be done after a given date which is subsequent to the time the act so providing becomes a law. Commonwealth by Byars v. Hemingray's Ex'r, 185 Ky. 393 , 215 S.W. 69, 1919 Ky. LEXIS 308 ( Ky. 1919 ).

This section, insofar as it conflicts with referendum clause, Const., § 171, must be controlled by latter. State Nat'l Bank v. Board of Councilmen, 207 Ky. 543 , 269 S.W. 726, 1925 Ky. LEXIS 134 ( Ky. 1925 ).

2.Application.

Statute providing that no appeal should be taken from judgment for recovery of money or personal property if value in controversy be less than $200 was passed at session of legislature which adjourned March 15, 1898, took effect 90 days thereafter and therefore applied to an appeal granted June 15, 1898. Piper v. Spencer, 58 S.W. 815, 22 Ky. L. Rptr. 780 , 1900 Ky. LEXIS 275 (Ky. Ct. App. 1900).

Act approved March 10, 1908, relating to violation of local option law did not apply to a transaction made in March of that year. Boggs v. Commonwealth, 134 Ky. 500 , 121 S.W. 433, 1909 Ky. LEXIS 405 ( Ky. 1909 ).

Act of March 17, 1914, fixing minimum jurisdiction of Court of Appeals at $500, which, under this section, did not become effective until 90 days thereafter did not govern an appeal granted by circuit court June 9, 1914. Ockerman v. Woodward, 162 Ky. 134 , 172 S.W. 92, 1915 Ky. LEXIS 18 ( Ky. 1915 ).

Legislature did not impermissibly designate 2017 Ky. Acts 1 as emergency legislation because its proffered reason for an emergency had a rational basis. Zuckerman v. Bevin, 565 S.W.3d 580, 2018 Ky. LEXIS 502 ( Ky. 2018 ).

3.Emergency Clause.
4.— Approval of Governor.

Under this section an act embracing an emergency clause, when passed over the Governor’s veto, as provided by Const., § 88, becomes a law at once, though never approved by the Governor. Commissioners of Sinking Fund v. George, 104 Ky. 260 , 47 S.W. 779, 20 Ky. L. Rptr. 938 , 1898 Ky. LEXIS 211 ( Ky. 1898 ).

Statute containing an emergency clause which is neither approved nor disapproved by the Governor takes effect from the time the governor returns it to the secretary of state. Ficke v. Board of Trustees, 262 Ky. 312 , 90 S.W.2d 66, 1936 Ky. LEXIS 25 ( Ky. 1936 ).

5.— Judicial Review.

The legislature has the power to decide what are sufficient grounds for existence of an emergency, as it is a legislative and not a judicial question. Lakes v. Goodloe, 195 Ky. 240 , 242 S.W. 632, 1922 Ky. LEXIS 342 ( Ky. 1922 ).

In the case of a statute changing the existing method of breaking deadlocks in fiscal courts, the Court of Appeals would not review the legislature’s determination that an emergency existed requiring the statute to take effect under an emergency clause. Hill v. Taylor, 264 Ky. 708 , 95 S.W.2d 566, 1936 Ky. LEXIS 388 ( Ky. 1936 ).

Since it is conclusively presumed that the legislative journals of the General Assembly set forth sufficient reasons for the insertion of an emergency clause in a statute, the reviewing court in a proceeding to test the statute is not bound by the allegations in the petition to the contrary. Hill v. Taylor, 264 Ky. 708 , 95 S.W.2d 566, 1936 Ky. LEXIS 388 ( Ky. 1936 ).

If there is any rational basis for concluding that the circumstances cited as constituting an emergency justified more expeditious action than would ordinarily be true, the courts should not interfere with the legislative discretion. American Ins. Asso. v. Geary, 635 S.W.2d 306, 1982 Ky. LEXIS 265 ( Ky. 1982 ).

Although the court must have the ultimate authority of determining whether an emergency actually existed, the legislative judgment in that respect must be accorded the same presumption of validity that it enjoys in other instances of constitutional inquiry. American Ins. Asso. v. Geary, 635 S.W.2d 306, 1982 Ky. LEXIS 265 ( Ky. 1982 ).

6.— Legislative Intent.

Statutes enacted at the same session of the legislature are presumed imbued with the same spirit and policy and must be construed if possible to effectuate both acts; however, if one of the acts, inconsistent with another, contains an emergency clause and the other does not, the act containing the emergency clause must prevail on the presumption that this was the intent of the legislature. Campbell County Election Com. v. Weber, 240 Ky. 373 , 42 S.W.2d 511, 1931 Ky. LEXIS 407 ( Ky. 1931 ).

7.— Signature of Governor.

Governor’s signature to bill containing emergency clause is not necessary to give effect to emergency clause for, upon his failure to return bill within ten (10) days, it takes effect at once as if signed by him; retaining of bill by Governor is, for legislative purposes, the same as signing it and signing it, as used in Const., § 88, is synonymous with approving it, as used in this section. Boggs v. Commonwealth, 15 Ky. L. Rptr. 653 (1894).

8.— Entry in Journal.

When the reason for declaring an emergency is sufficiently expressed in the legislation itself, the requirement that it be cited in the journal is satisfied. American Ins. Asso. v. Geary, 635 S.W.2d 306, 1982 Ky. LEXIS 265 ( Ky. 1982 ).

9.— Validity.

The validity of an “emergency clause” may be determined in the same way and upon the same evidence that the validity of the other parts or sections of the act is determined; bill that has been properly enrolled, signed by presiding officer of both houses, and approved by governor will be presumed to have been enacted into a law in the manner prescribed by the constitution, and cannot be impeached by reference to the journals of either house. Commonwealth v. Hardin County Court, 99 Ky. 188 , 35 S.W. 275, 18 Ky. L. Rptr. 113 , 1896 Ky. LEXIS 67 ( Ky. 1896 ).

An emergency clause is invalid if the act shows on its face that no emergency exists. McIntyre v. Commonwealth, 221 Ky. 16 , 297 S.W. 931, 1927 Ky. LEXIS 655 ( Ky. 1927 ), limited, Hill v. Taylor, 264 Ky. 708 , 95 S.W.2d 566, 1936 Ky. LEXIS 388 ( Ky. 1936 ).

Where no emergency actually existed, the emergency provision of an act declaring that due to the congested condition of the docket in a certain judicial district an emergency existed and that the act should be effective upon its passage, thus eliminating the April term of the Perry Circuit Court, was invalid under this section. McIntyre v. Commonwealth, 221 Ky. 16 , 297 S.W. 931, 1927 Ky. LEXIS 655 ( Ky. 1927 ), limited, Hill v. Taylor, 264 Ky. 708 , 95 S.W.2d 566, 1936 Ky. LEXIS 388 ( Ky. 1936 ).

Where emergency clause was invalid on its face, act took effect 90 days after adjournment of legislature. Combs v. Commonwealth, 224 Ky. 653 , 6 S.W.2d 1082, 1928 Ky. LEXIS 657 ( Ky. 1928 ).

Where statute already had taken effect under the general rule of this section, an appeal from a judgment attacking the validity of an emergency clause in the act will be dismissed as moot. Lyttle v. Keith, 264 Ky. 652 , 95 S.W.2d 299, 1936 Ky. LEXIS 384 ( Ky. 1936 ).

The reason stated in the emergency clause of Acts 1982, Ch. 246 which act deals generally with a surcharge upon certain insurance premiums collected in the state which is intended to fund a trust for the payment of incentives to the fire fighters and policemen of the various municipalities, to the effect that the general fund appropriations for fiscal year 1981-82 for the professional fire fighters foundation program fund as provided by KRS 95A.200 through 95A.990 , and the law enforcement foundation program fund as provided by KRS 15.410 through 15.510 would lapse on June 30, 1982, sufficiently supported the legislative declaration of emergency. American Ins. Asso. v. Geary, 635 S.W.2d 306, 1982 Ky. LEXIS 265 ( Ky. 1982 ).

10.Retroactivity.

Since Court of Appeals’ decision, holding that a wife had a cause of action for loss of consortium resulting from negligence of a third party in Kotsiris v. Ling, 451 S.W.2d 411, 1970 Ky. LEXIS 390 (Ky. Ct. App. 1970), applied retroactively whereas the prior statute did not, wife’s cause of action claiming for loss of consortium resulting from negligence of defendants which was filed prior to the effective date of KRS 411.145 stated the claim, and hence defendant’s motion to dismiss the complaint on the ground of failure to state a claim was denied. Thomas v. Deason, 317 F. Supp. 1098, 1970 U.S. Dist. LEXIS 9915 (W.D. Ky. 1970 ).

Cited:

Kentucky Union Co. v. Kentucky, 219 U.S. 140, 31 S. Ct. 171, 55 L. Ed. 137, 1911 U.S. LEXIS 1626 (1911); Hawkins v. Commonwealth, 70 S.W. 640, 24 Ky. L. Rptr. 1034 (1902); Louisville Car Wheel & R. Supply Co. v. Louisville, 146 Ky. 573 , 142 S.W. 1043, 1912 Ky. LEXIS 102 ( Ky. 1912 ); Lambert v. Board of Trustees, 151 Ky. 725 , 152 S.W. 802, 1913 Ky. LEXIS 562 ( Ky. 1913 ); State Board of Charities & Corrections v. Hays, 190 Ky. 147 , 227 S.W. 282, 1920 Ky. LEXIS 554 ( Ky. 1920 ); Breeding v. Commonwealth, 190 Ky. 207 , 227 S.W. 151, 1921 Ky. LEXIS 411 ( Ky. 1921 ); State Board of Election Comm’rs v. Coleman, 235 Ky. 24 , 29 S.W.2d 619, 1930 Ky. LEXIS 305 ( Ky. 1930 ); Ward v. Lester, 235 Ky. 595 , 31 S.W.2d 924, 1930 Ky. LEXIS 413 ( Ky. 1930 ); Kirkman v. Williams’ Ex’r, 246 Ky. 481 , 55 S.W.2d 365, 1932 Ky. LEXIS 790 ( Ky. 1932 ); Green v. Moore, 281 Ky. 305 , 135 S.W.2d 682, 1939 Ky. LEXIS 33 ( Ky. 1939 ); Board of Aldermen v. Hunt, 284 Ky. 720 , 145 S.W.2d 814, 1940 Ky. LEXIS 551 ( Ky. 1940 ); Reid v. Robertson, 304 Ky. 509 , 200 S.W.2d 900, 1947 Ky. LEXIS 643 ( Ky. 1947 ); Taylor v. Commonwealth, 305 Ky. 75 , 202 S.W.2d 992, 1947 Ky. LEXIS 758 ( Ky. 1947 ); Wiggins v. Stuart, 671 S.W.2d 262, 1984 Ky. App. LEXIS 513 (Ky. Ct. App. 1984); Spurlin v. Adkins, 940 S.W.2d 900, 1997 Ky. LEXIS 34 ( Ky. 1997 ); Benson’s Inc. v. Fields, 941 S.W.2d 473, 1997 Ky. LEXIS 32 ( Ky. 1997 ); Johnson v. Wells Fargo Bank, N.A. (In re Neal), — B.R. —, 2006 Bankr. LEXIS 885 (Bankr. E.D. Ky. 2006 ).

Opinions of Attorney General.

Bills are not required to provide in their title a statement to the effect that they are emergency legislation, nor is it necessary to provide in the body of the bills themselves reasons or justification for the emergency as this section simply requires that the reasons for the emergency are to be set out in the journal of each house. OAG 60-274 .

Where a regulation is adopted by an existing state agency and such regulation is required to give meaning and effect to the statute but it is not to be enforced prior to the effective date of the act, such regulations should be accepted by the Legislative Research Commission for filing notwithstanding the fact that they may have been adopted by an existing agency prior to the effective date of enabling legislation. OAG 64-391 .

Ordinary legislation passed at the 1970 regular session of the Kentucky general assembly became effective on June 18, 1970. OAG 70-145 .

The failure to include § 26 (which removes the circuit clerks from KRS 64.010 (now repealed)) of S.B. 15 (Acts 1976 (Ex. Sess.), ch. 14) in § 492 (providing an effective date of January 2, 1978) of said bill was obviously a clerical or grammatical error and was not intended to deprive the clerks of the circuit court of their fees during the period from March 19, 1977 to January 2, 1978 and thus the circuit clerks should have continued to apply the fee statute, KRS 64.010 (now repealed), until January 2, 1978. OAG 77-109 .

The General Assembly may condition the effectiveness of the Kentucky coal legislation and implementing regulations upon the approval of the secretary of interior without violating any Kentucky constitutional section because of the supremacy clause of the United States Constitution and the necessity for enacting state strip mining legislation that will be in accord with the Federal Strip Mining Law of 1977. OAG 80-99 .

The emergency clause of Acts 1982, Ch. 282 related solely to § 3 of the act which amended KRS 45A.335 to exclude members of state boards and commissions from the term “officer or employee,” as used in the conflict of interest statute, KRS 45A.340(5); it not only did not relate to the other sections of the bill, which were separable, but it gave no reason to justify that an emergency existed with respect to these sections. In view of the fact that this section requires an act to express in plain language what the emergency is in order for it to be effective, only § 3 became effective on April 2, 1982, upon the passage of the act and approval of the Governor, and the remaining sections of the act became effective as ordinary legislation on July 15, 1982. OAG 82-308 .

The day of adjournment must be excluded in determining the effective date of ordinary legislation. OAG 86-6 .

The effective date of ordinary legislation enacted during the 1987 special session of the General Assembly that adjourned sine die Thursday, October 22, 1987 is January 21, 1988. OAG 87-74 .

In determining the effective date of ordinary legislation adopted at the 1988 Special Session of the General Assembly, December 14, 1988, the day of adjournment, must be excluded, which means that March 14, 1989, would be the 90th day following adjournment which day must be included in computing the 90-day period of time provided in this section, thereby making all ordinary legislation effective March 15, 1989. OAG 89-1 .

Where the Regular Session of the General Assembly adjourns sine die on April 13, the effective date of ordinary legislation passed at that session would be July 13. OAG 89-56 .

If the Regular Session of the General Assembly adjourns sine die on April 15, the effective date of ordinary legislation passed at that session would be July 15. OAG 92-12 .

Where the Regular Session of the General Assembly adjourns sine die on April 14, 1992, the effective date of ordinary legislation passed at the session would be July 14, 1992. OAG 92-72 .

For an opinion indicating the effective date of Senate Bill 7 (1993 [1st Extra. Sess.] Ky. Acts ch. 4), passed during the session with an emergency provision, as well as certain dates in a “transition schedule” contained in that legislation, see OAG 93-25 .

The “normal” effective date for legislation enacted during the 1993 First Extraordinary Session of the Kentucky General Assembly, that is, the effective date for legislation which does not contain an emergency provision or a delayed effective date, is May 18, 1993. OAG 93-25 .

The language “ninety days after adjournment,” as used in Ky. Const., § 55, indicates that the day of adjournment (meaning day of final adjournment for the session, termed “adjournment sine die”) is to be excluded in computing the 90 day period set forth in the above cited Constitutional provision, and that the 90th day shall be included in the period, in order that 90 full days shall pass after enactment of certain legislation, before the legislation becomes effective. OAG 94-17 .

The “normal” effective date of legislation enacted during the 1994 Regular Session of the Kentucky General Assembly is Friday, July 15, 1994, final adjournment having been on April 15, 1994. OAG 94-30 .

“Until ninety days after the adjournment”, as used in this section indicates that the day of adjournment (meaning the day of final adjournment for the session, termed “adjournment sine die”) is to be excluded in computing the 90-day period set forth in this constitutional provision, and that the 90th day shall be included in the period, so that 90 full days shall pass after enactment of certain legislation, before the legislation becomes effective. OAG 95-32 .

The effective date of legislation, other than general appropriation bills and acts containing emergency or delayed effective date provisions, passed during the 1996 Regular Session of the Kentucky General Assembly, is the first moment of Monday, July 15, 1996, where the first day of the 90-day period after the session was Tuesday, April 16, 1996, and the 90th day of that period was Sunday, July 14, 1996, then when the last moment of that 90th day has expired, 90 full days will have passed after the adjournment “sine die” of the 1996 Regular Session of the Kentucky General Assembly. OAG 96-19 .

Legislation (except for general appropriation measures and those containing emergency or delayed effective date provisions) passed during the 2000 Regular Session of the Kentucky General Assembly will be effective on the first moment of Friday, July 14, 2000. OAG 00-4 .

Legislation (except for general appropriation measures and those containing emergency or delayed effective date provisions) passed during the 2001 Regular Session of the Kentucky General Assembly, which was adjourned sine die on Thursday, March 22, 2001, became effective on the first moment of Thursday, June 21, 2001. OAG 01-4 .

The effective date of legislation, other than general appropriation bills and acts containing emergency or delayed effective date provisions, passed during the 2002 Regular Session of the Kentucky General Assembly, is the first moment of Monday, July 15, 2002. OAG 02-3 .

Legislation (except for general appropriation measures and those containing emergency or delayed effective date provisions) passed during the 2003 Regular Session of the Kentucky General Assembly were effective on the first moment of Tuesday, June 24, 2003. OAG 03-002 .

The effective date of legislation passed by the 2004 Regular Session of the Kentucky General Assembly, except for general appropriation measures and those containing emergency or delayed effective date provisions, is the first moment of Tuesday July 13, 2004. OAG 04-002 .

The effective date of legislation passed by the 2005 Regular Session of the Kentucky General Assembly, except for general appropriation measures and those containing emergency or delayed effective date provisions, is the first moment of Monday, June 20, 2005, since 90 full days will then have passed after final adjournment on March 21, 2005. OAG 2005-04 .

The effective date of legislation passed by the 2006 Regular Session of the Kentucky General Assembly, except for general appropriation measures and those containing emergency or delayed effective date provisions, is the first moment of Wednesday, July 12, 2006, since 90 full days will then have passed after final adjournment on April 12, 2006. OAG 2006-01 .

The effective date of legislation passed by the 2007 Regular Session of the Kentucky General Assembly, except for general appropriation measures and those containing emergency or delayed effective date provisions, is the first moment of Tuesday, June 26, 2007, since 90 full days will then have passed after final adjournment on March 27, 2007. OAG 2007-02 .

Since the General Assembly adjourned sine die on April 15, 2008, legislation except for general appropriation measures and those containing emergency or delayed effective date provisions passed during the 2008 Regular Session of the Kentucky General Assembly will be effective on the first moment of Tuesday July 15, 2008. OAG 2008-01 .

In accordance with Section 55 of the Constitution of Kentucky, the effective date of legislation passed by the 2009 Regular Session of the Kentucky General Assembly, except for general appropriation measures and those containing emergency or delayed effective date provisions, is the first moment of Thursday, June 25, 2009, since 90 full days will then have passed after final adjournment on March 26, 2009. OAG 2009-03 .

In accordance with Section 55 of the Constitution of Kentucky, the effective date of legislation passed by the 2010 Regular Session of the Kentucky General Assembly, except for general appropriation measures and those containing emergency or delayed effective date provisions, is the first moment of Thursday, July 15, 2010, since 90 full days will then have passed after final adjournment on April 15, 2010. OAG 10-002 .

In accordance with Section 55 of the Constitution of Kentucky, the effective date of legislation passed by the 2010 Extraordinary Session of the Kentucky General Assembly, except for general appropriation measures and those containing emergency or delayed effective date provisions, is the first moment of Saturday, August 28, 2010, since 90 full days will then have passed after final adjournment on May 29, 2010. OAG 10-004 .

In accordance with Section 55 of the Constitution of Kentucky, the effective date of legislation passed by the 2011 Regular Session of the Kentucky General Assembly, except for general appropriation measures and those containing emergency or delayed effective date provisions, is the first moment of Wednesday, June 8, 2011, since 90 full days will then have passed after final adjournment on March 9, 2011. OAG 11-002 , 2011 Ky. AG LEXIS 37.

In accordance with Section 55 of the Constitution of Kentucky, the effective date of legislation passed by the 2012 Regular Session of the Kentucky General Assembly, except for general appropriation measures and those containing emergency or delayed effective date provisions, is the first moment of Thursday, July 12, 2012, since 90 full days will then have passed after final adjournment on April 12, 2012. OAG 12-006 , 2012 Ky. AG LEXIS 93.

In accordance with Section 55 of the Constitution of Kentucky, the effective date of legislation passed by the 2012 Extraordinary Session of the Kentucky General Assembly, except for general appropriation measures and those containing emergency or delayed effective date provisions, is the first moment of Friday, July 20, 2012, since 90 full days will then have passed after final adjournment on April 20, 2012. 12-007, 2012 Ky. AG LEXIS 82.

In accordance with Section 55 of the Constitution of Kentucky, the effective date of legislation passed by the 2013 Regular Session of the Kentucky General Assembly, except for general appropriation measures and those containing emergency or delayed effective date provisions, is the first moment of Tuesday, June 25, 2013, since 90 full days will then have passed after final adjournment on March 26, 2013. OAG 13-005 , 2013 Ky. AG LEXIS 35.

Research References and Practice Aids

Cross-References.

Date of approval or passage to be stated at end of act, KRS 6.240 .

Kentucky Bench & Bar.

Palmore, A Summary of Significant Decisions by the Supreme Court of Kentucky April 1982 — April 1983, Vol. 47, No. 3, July 1983, Ky. Bench & Bar 14.

Kentucky Law Journal.

Snyder and Irland, The Separation of Governmental Powers Under the Constitution of Kentucky: A Legal and Historical Analysis of L.R.C. v. Brown, 73 Ky. L.J. 165 (1984-85).

Treatises

Petrilli, Kentucky Family Law, Court Procedure, § 23.2.

§ 55. When laws to take effect — Emergency legislation. [Contingently enacted]

No act, except general appropriation bills, shall become a law until July 1 of the year in which it was passed, or until ninety days after it becomes law under Section 88 of this Constitution, whichever occurs later, except in cases of emergency, when, by the concurrence of a majority of the members elected to each House of the General Assembly, by a yea and nay vote entered upon their journals, an act may become a law when approved by the Governor or when it otherwise becomes a law under Section 88; but the reasons for the emergency that justifies this action must be set out at length in the journal of each House.

History. Repeal and reenactment, proposed by Acts 2021, ch. 27, § 4, and is contingent upon ratification.

§ 56. Signing of bills — Enrollment — Presentation to Governor.

No bill shall become a law until the same shall have been signed by the presiding officer of each of the two Houses in open session; and before such officer shall have affixed his signature to any bill, he shall suspend all other business, declare that such bill will now be read, and that he will sign the same to the end that it may become a law. The bill shall then be read at length and compared; and, if correctly enrolled, he shall, in the presence of the House in open session, and before any other business is entertained, affix his signature, which fact shall be noted in the journal, and the bill immediately sent to the other House. When it reaches the other House, the presiding officer thereof shall immediately suspend all other business, announce the reception of the bill, and the same proceeding shall thereupon be observed in every respect as in the House in which it was first signed. And thereupon the Clerk of the latter House shall immediately present the same to the Governor for his signature and approval.

NOTES TO DECISIONS

1.Enrollment.

The constitution does not require that bills or resolutions be enrolled in long-hand as any fair, plain and legible mode of writing or printing is sufficient. Anderson v. Commonwealth, 275 Ky. 232 , 121 S.W.2d 46, 1938 Ky. LEXIS 407 ( Ky. 1938 ).

There is a prima facie presumption that an enrolled bill is valid, but such presumption may be overcome by clear, satisfactory and convincing evidence establishing that constitutional requirements have not been met. D & W Auto Supply v. Department of Revenue, 602 S.W.2d 420, 1980 Ky. LEXIS 243 ( Ky. 1980 ).

2.Judicial Review.

The court will accept an enrolled bill properly attested by the presiding officer of each house of the legislature as a bill actually passed without inquiring concerning compliance with the constitutional requirements for passage. Perkins v. Lucas, 197 Ky. 1 , 246 S.W. 150, 1922 Ky. LEXIS 633 ( Ky. 1 922).

3.Popular Vote.

Where the electorate voted in favor of an enactment before them on a question presented by a bill of the legislature, the failure of the governor to approve the enactment is at most a procedural defect which is cured by the vote of the people. Stovall v. Gartrell, 332 S.W.2d 256, 1960 Ky. LEXIS 141 ( Ky. 1960 ).

4.Signature of Presiding Officer.
5.— Absence.

Governor’s failure to veto or return bill to house in which it originated within ten (10) days, as required by Const., § 88, will not validate bill which was invalid because not signed by president of senate as required by this section. Hamlett v. McCreary, 153 Ky. 755 , 156 S.W. 410, 1913 Ky. LEXIS 920 ( Ky. 1913 ).

This section is mandatory, so that a bill did not become a law where it was not signed by president of senate. Hamlett v. McCreary, 153 Ky. 755 , 156 S.W. 410, 1913 Ky. LEXIS 920 ( Ky. 1913 ).

Bills lacking the signature of the lieutenant governor as a presiding officer of the legislature do not become law by virtue of the approval of the governor. Kavanaugh v. Chandler, 255 Ky. 182 , 72 S.W.2d 1003, 1934 Ky. LEXIS 187 ( Ky. 1934 ).

6.Evidence.
7.— House Journals.

An enrolled bill, attested by presiding officers of two (2) houses of general assembly, as required by law, cannot be impeached by journals but must be accepted by courts as conclusive of the regularity of the steps taken in its passage. Vogt v. Beauchamp, 153 Ky. 64 , 154 S.W. 393, 1913 Ky. LEXIS 771 ( Ky. 1913 ).

An enrolled bill, duly attested by the presiding officer of each house, is the law, the journals of the legislature to the contrary notwithstanding. Shannon v. Dean, 279 Ky. 279 , 130 S.W.2d 812, 1939 Ky. LEXIS 290 ( Ky. 1939 ).

Cited:

Sibert v. Garrett, 197 Ky. 17 , 246 S.W. 455, 1922 Ky. LEXIS 639 ( Ky. 1922 ).

Opinions of Attorney General.

A properly enrolled bill is the law. OAG 82-174 .

Research References and Practice Aids

Cross-References.

Approval or veto of bills by governor, Const., § 88.

Duties of clerks as to enrollment, KRS 6.160 .

Fraudulent alteration of enrolled bill, KRS 7.990 .

Kentucky Law Journal.

Snyder and Irland, The Separation of Governmental Powers Under the Constitution of Kentucky: A Legal and Historical Analysis of L.R.C. v. Brown, 73 Ky. L.J. 165 (1984-85).

§ 57. Member having personal interest to make disclosure and not vote.

A member who has a personal or private interest in any measure or bill proposed or pending before the General Assembly, shall disclose the fact to the House of which he is a member, and shall not vote thereon upon pain of expulsion.

NOTES TO DECISIONS

1.Construction.

This section must be construed as restricting the right to vote only to those members who have a peculiar special interest in legislation which will affect them in a manner differently from the public or a proper classification of members of the public. Stovall v. Gartrell, 332 S.W.2d 256, 1960 Ky. LEXIS 141 ( Ky. 1960 ).

2.Veterans’ Bonus.

Veteran members of legislature had no disqualifying personal or private interest in enabling legislation which sought popular vote on propriety of incurring indebtedness to pay veterans’ bonus. Stovall v. Gartrell, 332 S.W.2d 256, 1960 Ky. LEXIS 141 ( Ky. 1960 ).

Cited:

Sims v. Bradley, 309 Ky. 626 , 218 S.W.2d 641, 1949 Ky. LEXIS 771 ( Ky. 1949 ); Wiggins v. Stuart, 671 S.W.2d 262, 1984 Ky. App. LEXIS 513 (Ky. Ct. App. 1984).

Opinions of Attorney General.

No conflict of interest in violation of this section would be involved if members of the legislature who are also members of the legal profession voted on bills involving their profession. OAG 80-26 .

§ 58. General Assembly not to audit nor allow private claim — Exception — Appropriations.

The General Assembly shall neither audit nor allow any private claim against the Commonwealth, except for expenses incurred during the session at which the same was allowed; but may appropriate money to pay such claim as shall have been audited and allowed according to law.

NOTES TO DECISIONS

1.Appropriations.

Under this section and Const., §§ 59 and 230, a contention that an act appropriating money for benefit of destitute children of state to particular, private, charitable institution, organized under laws of the state, is special legislation is untenable, as the selection of one agency to apply to money so appropriated, from the nature of the case, calls for an act of appropriation applicable to it alone. Hager v. Kentucky Children's Home Soc., 119 Ky. 235 , 83 S.W. 605, 26 Ky. L. Rptr. 1133 , 1904 Ky. LEXIS 166 ( Ky. 1904 ).

Neither this section nor Const., § 59 invalidates a joint resolution of the legislature appropriating funds to repay a sheriff for expenses incurred by lien in returning a fugitive from outside the state. Pennington v. Shannon, 270 Ky. 142 , 109 S.W.2d 389, 1937 Ky. LEXIS 37 ( Ky. 1937 ).

2.Claims Against Commonwealth.
3.— State Auditor.

A special act validating a contract made by plaintiff with certain state officers and giving him permission to sue state auditor did not fall within inhibitions of this section, since it showed on its face that the claim must be audited by auditor himself. Carroll v. Bosworth, 151 Ky. 337 , 151 S.W. 916, 1912 Ky. LEXIS 803 ( Ky. 1912 ).

4.Compensation Fund.

The payment of private claims out of a compensation fund, authorized by KRS 304.40-330 (now repealed), did not violate this section since the fund was drawn from private sources and contains no public money. McGuffey v. Hall, 557 S.W.2d 401, 1977 Ky. LEXIS 533 ( Ky. 1977 ).

Cited:

Walker v. Coulter, 113 Ky. 814 , 24 Ky. L. Rptr. 530 , 68 S.W. 1108, 1902 Ky. LEXIS 106 ( Ky. 1902 ); Department of Finance v. Dishman, 298 Ky. 545 , 183 S.W.2d 540, 1944 Ky. LEXIS 948 , 155 A.L.R. 1429 ( Ky. 1944 ); Manning v. Sims, 308 Ky. 587 , 213 S.W.2d 577, 1948 Ky. LEXIS 864 , 5 A.L.R.2d 1154 ( Ky. 1948 ); Legislative Research Com. by Prather v. Brown, 664 S.W.2d 907, 1984 Ky. LEXIS 300 ( Ky. 1984 ); Dunlap v. University of Kentucky Student Health Servs. Clinic, 716 S.W.2d 219, 1986 Ky. LEXIS 300 ( Ky. 1986 ).

§ 59. Local and special legislation.

The General Assembly shall not pass local or special acts concerning any of the following subjects, or for any of the following purposes, namely:

First: To regulate the jurisdiction, or the practice, or the circuits of the courts of justice, or the rights, powers, duties or compensation of the officers thereof; but the practice in circuit courts in continuous session may, by a general law, be made different from the practice of circuit courts held in terms.

Second: To regulate the summoning, impaneling or compensation of grand or petit jurors.

Third: To provide for changes of venue in civil or criminal causes.

Fourth: To regulate the punishment of crimes and misdemeanors, or to remit fines, penalties or forfeitures.

Fifth: To regulate the limitation of civil or criminal causes.

Sixth: To affect the estate of cestuis que trust, decedents, infants or other persons under disabilities, or to authorize any such persons to sell, lease, encumber or dispose of their property.

Seventh: To declare any person of age, or to relieve an infant or feme covert of disability, or to enable him to do acts allowed only to adults not under disabilities.

Eighth: To change the law of descent, distribution or succession.

Ninth: To authorize the adoption or legitimation of children.

Tenth: To grant divorces.

Eleventh: To change the names of persons.

Twelfth: To give effect to invalid deeds, wills or other instruments.

Thirteenth: To legalize, except as against the Commonwealth, the unauthorized or invalid act of any officer or public agent of the Commonwealth, or of any city, county or municipality thereof.

Fourteenth: To refund money legally paid into the State Treasury.

Fifteenth: To authorize or to regulate the levy, the assessment or the collection of taxes, or to give any indulgence or discharge to any assessor or collector of taxes, or to his sureties.

Sixteenth: To authorize the opening, altering, maintaining or vacating of roads, highways, streets, alleys, town plats, cemeteries, graveyards, or public grounds not owned by the Commonwealth.

Seventeenth: To grant a charter to any corporation, or to amend the charter of any existing corporation; to license companies or persons to own or operate ferries, bridges, roads or turnpikes; to declare streams navigable, or to authorize the construction of booms or dams therein, or to remove obstructions therefrom; to affect toll gates or to regulate tolls; to regulate fencing or the running at large of stock.

Eighteenth: To create, increase or decrease fees, percentages or allowances to public officers, or to extend the time for the collection thereof, or to authorize officers to appoint deputies.

Nineteenth: To give any person or corporation the right to lay a railroad track or tramway, or to amend existing charters for such purposes.

Twentieth: To provide for conducting elections, or for designating the places of voting, or changing the boundaries of wards, precincts or districts, except when new counties may be created.

Twenty-first: To regulate the rate of interest.

Twenty-second: To authorize the creation, extension, enforcement, impairment or release of liens.

Twenty-third: To provide for the protection of game and fish.

Twenty-fourth: To regulate labor, trade, mining or manufacturing.

Twenty-fifth: To provide for the management of common schools.

Twenty-sixth: To locate or change a county seat.

Twenty-seventh: To provide a means of taking the sense of the people of any city, town, district, precinct or county, whether they wish to authorize, regulate or prohibit therein the sale of vinous, spirituous or malt liquors, or alter the liquor laws.

Twenty-eighth: Restoring to citizenship persons convicted of infamous crimes.

Twenty-ninth: In all other cases where a general law can be made applicable, no special law shall be enacted.

NOTES TO DECISIONS

Analysis

1.In General.

The general law, consisting of fragmentary and incomplete enactments, on subject of turnpikes, passed since adoption of Constitution, did not affect local act providing for free turnpike roads in Mason County, the alleged general law showing an absence of legislative intent to affect the local act, though policy of Constitution demands the substitution of general laws for all local ones. Pearce v. Mason County, 99 Ky. 357 , 35 S.W. 1122, 18 Ky. L. Rptr. 266 , 1896 Ky. LEXIS 94 ( Ky. 1896 ).

Changes in the organic law of the Commonwealth have been in the direction of more strictly limiting the legislative power. This section is an indication that there existed in the minds of the people a deep-seated distrust of legislative methods and a fear of legislative usurpation of power. Pratt v. Breckinridge, 112 Ky. 1 , 65 S.W. 136, 23 Ky. L. Rptr. 1356 , 1901 Ky. LEXIS 286 ( Ky. 1 901).

Workers’ compensation act did not violate this section since classifications made therein were reasonable. Greene v. Caldwell, 170 Ky. 571 , 186 S.W. 648, 1916 Ky. LEXIS 126 ( Ky. 1916 ).

Law permitting counties to dispose of unappropriated land consisting of a portion of the bed of the Ohio River lying within the county is not unconstitutional as special legislation. Willis v. Boyd, 224 Ky. 732 , 7 S.W.2d 216, 1928 Ky. LEXIS 676 ( Ky. 1928 ).

Act prohibiting operation on highway of any motor truck or semi-trailer truck exceeding 18,000 pounds in gross weight was not violative of this section or Ky. Const., § 60 as being class legislation. Whitney v. Johnson, 37 F. Supp. 65, 1941 U.S. Dist. LEXIS 3654 (D. Ky.), aff'd, 314 U.S. 574, 62 S. Ct. 117, 86 L. Ed. 465, 1941 U.S. LEXIS 262 (U.S. 1941).

The portion of law which required that excess fees in counties containing a city of the first class be paid into the state treasury was not subject to the criticism that it was local legislation inhibited by this section and Ky. Const., § 60. Jefferson County Fiscal Court v. Trager, 302 Ky. 361 , 194 S.W.2d 851, 1946 Ky. LEXIS 686 ( Ky. 1946 ).

Statutory provision authorizing issuance of veterinary license, without examination, to persons who had practiced for one (1) year prior to effective date of original licensing law, which provision was contained in an act revising the veterinary law, was not unconstitutional as being special or class legislation or as granting special privileges or emoluments. Doller v. Reid, 308 Ky. 348 , 214 S.W.2d 584, 1948 Ky. LEXIS 939 ( Ky. 1948 ).

Act of the General Assembly granting a named individual the right to practice dentistry and directing the state board of dental examiners to issue a license was void as constituting special legislation in violation of this section. Bentley v. Commonwealth, 239 S.W.2d 991, 1951 Ky. LEXIS 931 ( Ky. 1951 ).

A law is not local or special merely because it does not relate to the whole state or to the general public. Commonwealth v. Moyers, 272 S.W.2d 670, 1954 Ky. LEXIS 1125 ( Ky. 1954 ).

KRS 67.320 (now repealed), did not violate this constitutional provision since it was a general statute authorizing any county to have a fire department and directing that a duplication of services should be avoided in those instances in which a municipally maintained fire department existed. Johnson v. Peak, 407 S.W.2d 692, 1966 Ky. LEXIS 171 ( Ky. 1966 ).

The standard to which all legislation must conform to avoid unconstitutionality under this section is that the legislation must (1) apply equally to all in a class, and (2) there must be distinctive and natural reasons inducing and supporting the classification. Kling v. Geary, 667 S.W.2d 379, 1984 Ky. LEXIS 216 ( Ky. 1984 ).

A general law relates to persons or things as a class, while a special law relates to particular persons or things of a class. Waggoner v. Waggoner, 846 S.W.2d 704, 1992 Ky. LEXIS 189 ( Ky. 1992 ), cert. denied, 510 U.S. 932, 114 S. Ct. 346, 126 L. Ed. 2d 310, 1993 U.S. LEXIS 6585 (U.S. 1993).

The fact that the General Assembly deals with a special subject does not per se make it special legislation. Waggoner v. Waggoner, 846 S.W.2d 704, 1992 Ky. LEXIS 189 ( Ky. 1992 ), cert. denied, 510 U.S. 932, 114 S. Ct. 346, 126 L. Ed. 2d 310, 1993 U.S. LEXIS 6585 (U.S. 1993).

Classifications based upon reasonable and natural distinctions that relate logically to the purpose of the act do not violate this section. Waggoner v. Waggoner, 846 S.W.2d 704, 1992 Ky. LEXIS 189 ( Ky. 1992 ), cert. denied, 510 U.S. 932, 114 S. Ct. 346, 126 L. Ed. 2d 310, 1993 U.S. LEXIS 6585 (U.S. 1993).

2.Purpose.

The aim and purpose of this section is to prevent special privileges to bar favoritism and discrimination and to insure equality under law. Department of Finance v. Dishman, 298 Ky. 545 , 183 S.W.2d 540, 1944 Ky. LEXIS 948 ( Ky. 1944 ).

The purpose of the constitutional inhibition in this section and Const., § 60 is to require that all laws upon a subject shall operate alike upon all individuals and corporations. Jefferson County Police Merit Bd. v. Bilyeu, 634 S.W.2d 414, 1982 Ky. LEXIS 260 ( Ky. 1982 ).

The express purpose of the fifth clause of this section is to prevent those who have sufficient political power or who can afford a persuasive lobbyist from achieving immunity from accountability to the law that governs others. Tabler v. Wallace, 704 S.W.2d 179, 1985 Ky. LEXIS 291 ( Ky. 1985 ), cert. denied, 479 U.S. 822, 107 S. Ct. 89, 93 L. Ed. 2d 41, 1986 U.S. LEXIS 3436 (U.S. 1986).

This section is more than simply another way of restating the generalized language of the equal protection clause of the Fourteenth Amendment to the United States Constitution; Ky. Const., §§ 1, 2 and 3 which provide that the General Assembly is denied arbitrary power and shall treat all persons equally, suffice to embrace the equal protection clause to the Fourteenth Amendment. Tabler v. Wallace, 704 S.W.2d 179, 1985 Ky. LEXIS 291 ( Ky. 1985 ), cert. denied, 479 U.S. 822, 107 S. Ct. 89, 93 L. Ed. 2d 41, 1986 U.S. LEXIS 3436 (U.S. 1986).

3.Construction.

The true test of whether a law is a general one is not alone that it applies equally to all in a class but in addition there must be distinctive and natural reasons inducing and supporting the classification. Safety Bldg. & Loan Co. v. Ecklar, 106 Ky. 115 , 50 S.W. 50, 20 Ky. L. Rptr. 1770 , 1899 Ky. LEXIS 31 ( Ky. 1899 ), overruled, Linton v. Fulton Bldg. & Loan Ass'n, 262 Ky. 198 , 90 S.W.2d 22, 1936 Ky. LEXIS 22 ( Ky. 1936 ).

This section was restriction upon future legislation and in no way impaired validity of former laws or rights secured under them. Guthrie v. Sparks, 131 F. 443, 1904 U.S. App. LEXIS 4299 (6th Cir. Ky.), cert. denied, 195 U.S. 633, 25 S. Ct. 790, 49 L. Ed. 353, 1904 U.S. LEXIS 741 (U.S. 1904).

In determining whether an act relating to a particular class of city is local and special legislation, Ky. Const., § 156 must be considered in connection with this section and Ky. Const., § 60. Mannini v. McFarland, 294 Ky. 837 , 172 S.W.2d 631, 1943 Ky. LEXIS 539 ( Ky. 1943 ).

For a special law to be constitutional, there must be a substantial reason why a particular law is made to operate upon a class of citizens and not generally upon all. Walters v. Bindner, 435 S.W.2d 464, 1968 Ky. LEXIS 210 ( Ky. 1968 ).

The usual test applied to determine whether a particular law is general or special is: Does it embrace all of the class to which it relates? Walters v. Bindner, 435 S.W.2d 464, 1968 Ky. LEXIS 210 ( Ky. 1968 ).

There must be a substantial and justifiable reason apparent from legislative history, from the statute’s title, preamble or subject matter, or from some other authoritative source to uphold discriminatory legislation. Tabler v. Wallace, 704 S.W.2d 179, 1985 Ky. LEXIS 291 ( Ky. 1985 ), cert. denied, 479 U.S. 822, 107 S. Ct. 89, 93 L. Ed. 2d 41, 1986 U.S. LEXIS 3436 (U.S. 1986).

4.Application.

The same rules relative to classification and uniformity in application apply as well to police measures as to other acts. Chandler v. Louisville, 277 Ky. 79 , 125 S.W.2d 1026, 1939 Ky. LEXIS 624 ( Ky. 1939 ).

The “cost of production” includes the cost of raw materials as well as the cost of processing; thus, a vegetable oil refining and distribution company was required to include the cost of the crude oil itself in its cost of production for the purposes of the revenue statute. Also, the fact that the cost-of-energy computation must be made on the basis of plant facilities at one (1) location does not serve to limit taxpayer’s production costs. Further, the statute does not violate the equal protection provisions of the Kentucky Constitution because a processor of bought materials is not similarly situated to a processor of materials owned by others or a processor of its own materials. Louisville Edible Oil Prods. v. Revenue Cabinet Commonwealth, 957 S.W.2d 272, 1997 Ky. App. LEXIS 81 (Ky. Ct. App. 1997).

This section applies only to laws passed by the General Assembly and, therefore, does not apply to city and county ordinances. Hyman v. City of Louisville, 132 F. Supp. 2d 528, 2001 U.S. Dist. LEXIS 4016 (W.D. Ky. 2001 ).

Since city ordinances which sought to reduce the deer population by prohibiting residents from feeding them, by permitting residents to use a bow or crossbow to assist in culling the deer population, and by imposing field dressing requirements for deer kills within city limits were enacted by the city council, and not Kentucky’s General Assembly, the prohibition of Ky. Const. § 59 did not affect those ordinances. Kelly v. City of Fort Thomas, 610 F. Supp. 2d 759, 2009 U.S. Dist. LEXIS 1146 (E.D. Ky. 2009 ), aff'd in part and rev'd in part, 620 F.3d 596, 2010 FED App. 0285P, 2010 U.S. App. LEXIS 18437 (6th Cir. Ky. 2010 ).

Legislation passed by the Kentucky General Assembly lawfully which amended the power of the Governor of the Commonwealth of Kentucky to respond to emergencies did not violate the Kentucky Constitution because the Kentucky Legislature did not identify or single out any particular person, business, school, locality or entity to which the legislation was to apply. Instead, the legislation applied statewide. Cameron v. Beshear, 2021 Ky. LEXIS 240 (Ky. Aug. 21, 2021).

5.Classification.

Fact that certain levee district was the only one that had ever been formed under levee law did not make such law local or special in violation of this section, since it was applicable to every county in state with less than 200,000 population where levee might be needed and since population specification was not unreasonable and arbitrary with reference to purpose of such law. Board of Drainage Comm'rs v. Board of Levee Comm'rs, 191 Ky. 470 , 230 S.W. 959, 1921 Ky. LEXIS 348 ( Ky. 1921 ).

Prohibition by statute of street trades by boys in cities of the first, second or third class is based on a reasonable classification and is not special or local legislation. Commonwealth v. Lipginski, 212 Ky. 366 , 279 S.W. 339, 1926 Ky. LEXIS 147 ( Ky. 1926 ). See Commonwealth v. Jarrett, 213 Ky. 618 , 281 S.W. 805, 1926 Ky. LEXIS 581 ( Ky. 1926 ).

Classification by the General Assembly for legislative purposes will not be disturbed by the courts under the above section unless it is so unjust or arbitrary as to exclude one (1) or more of a class. Middendorf v. Jameson, 265 Ky. 111 , 95 S.W.2d 1057, 1936 Ky. LEXIS 417 ( Ky. 1936 ). See Louisville v. Coulter, 177 Ky. 242 , 197 S.W. 819, 1917 Ky. LEXIS 592 ( Ky. 1917 ) ( Ky. 1917 ); Jones v. Russell, 224 Ky. 390 , 6 S.W.2d 460, 1928 Ky. LEXIS 606 ( Ky. 1928 ); Mansbach Scrap Iron Co. v. Ashland, 235 Ky. 265 , 30 S.W.2d 968, 1930 Ky. LEXIS 338 ( Ky. 1930 ); Shannon v. Wheeler, 268 Ky. 25 , 103 S.W.2d 718, 1937 Ky. LEXIS 422 ( Ky. 1937 ).

Legislation based on a classification which is so manifestly unreasonable and arbitrary that it imposes a burden on or excludes one (1) or more of a class without reasonable basis in fact is forbidden, but legislation based on reasonable and natural destruction of fact is not. Withers v. Board of Drainage Comm'rs, 270 Ky. 732 , 110 S.W.2d 664, 1937 Ky. LEXIS 150 ( Ky. 1937 ).

An act applying only to a particular class of cities or counties, if based on a legal classification, will supersede general laws on the same subject as far as that class is concerned. Jefferson County Fiscal Court v. Thomas, 279 Ky. 458 , 130 S.W.2d 60, 1939 Ky. LEXIS 258 ( Ky. 1939 ).

Former decision that act which concerned salaries of constables and deputies in counties over 250,000 was based on reasonable classification and that act was not special or local was conclusive of question of classification both in original act and amendment, which merely broadened purposes of original act. Jefferson County Fiscal Court v. Thomas, 279 Ky. 458 , 130 S.W.2d 60, 1939 Ky. LEXIS 258 ( Ky. 1939 ).

Law requiring that certain appliances be sold only by registered pharmacists where it was reasonable to assume that pharmacists were especially qualified to determine whether the appliances complied with the specifications required by the act constituted a classification based on reasonable and natural distinctions and is constitutional under this section. Markendorf v. Friedman, 280 Ky. 484 , 133 S.W.2d 516, 1939 Ky. LEXIS 130 ( Ky. 1939 ).

In making a classification of persons to whom a law applies, it is not necessary that the legislature state its reasons and if any possible reasonable basis can be conceived to justify the classification, it should be upheld. Meredith v. Ray, 292 Ky. 326 , 166 S.W.2d 437, 1942 Ky. LEXIS 81 ( Ky. 1942 ).

Mathematical exactness in classification is impossible, and an act will not be declared unconstitutional merely because in practice it results in some inequality provided there is some general basis for the division. Meredith v. Ray, 292 Ky. 326 , 166 S.W.2d 437, 1942 Ky. LEXIS 81 ( Ky. 1942 ).

References in subsection (3) of KRS 76.080 to “Louisville” and “Jefferson County” did not render metropolitan sewer district law unconstitutional as local or special legislation where other sections properly referred to “city of first class and county containing such city” and it was apparent that the one reference to Louisville and Jefferson County by name was inadvertent. Veail v. Louisville & Jefferson County Metropolitan Sewer Dist., 303 Ky. 248 , 197 S.W.2d 413, 1946 Ky. LEXIS 830 ( Ky. 1946 ).

Law was not special or local solely because it did not relate to general public; it could relate to special class or special locality if facts reasonably differentiated such class or locality from general public or state at large. Young v. Willis, 305 Ky. 201 , 203 S.W.2d 5, 1947 Ky. LEXIS 773 ( Ky. 1947 ).

Legislation establishing a classification, the wisdom of which is a legislative function, is not in violation of the Constitution prohibition against special legislation where the classification is based on natural and reasonable distinction. Board of Education v. Mescher, 310 Ky. 453 , 220 S.W.2d 1016, 1949 Ky. LEXIS 954 ( Ky. 1949 ).

Law authorizing board of education in any county containing a city of the first class to impose occupational license fees is not special legislation prohibited by this section, although at present the statute applies in fact only to one (1) county. Sims v. Board of Education, 290 S.W.2d 491, 1956 Ky. LEXIS 329 ( Ky. 1956 ).

Under this section and United States Const., Amend. 14, KRS 277.330 , providing that the mere fact of injury to livestock by a train constitutes prima facie evidence of the negligence of the railroad, is unconstitutional as class legislation. Louisville & N. R. Co. v. Faulkner, 307 S.W.2d 196, 1957 Ky. LEXIS 83 ( Ky. 1957 ).

Former prohibition of KRS 436.160 against allowing poolroom operators to open for business on Sunday was not unconstitutional, even though amateur sports were allowed. Walters v. Bindner, 435 S.W.2d 464, 1968 Ky. LEXIS 210 ( Ky. 1968 ).

The fact that a statute discriminates in favor of a certain class does not render it unconstitutional if the discrimination is founded upon a reasonable distinction, or if any state of facts reasonably can be conceived to sustain it. Kentucky Milk Marketing & Anti-Monopoly Com. v. Borden Co., 456 S.W.2d 831, 1969 Ky. LEXIS 5 ( Ky. 1969 ).

Classification of cities and counties on the basis of size and population alone for any purpose other than their organization or government is permissible only if size and population has an appreciable relevancy to the subject matter of the legislation. Board of Education v. Board of Education, 522 S.W.2d 854, 1975 Ky. LEXIS 143 ( Ky. 1975 ).

Since KRS 132.487(3), which excludes motor vehicles from the calculation of the compensating and maximum possible tax rates, applies equally to all vehicles which are to be operated on the highways of the state and since there are distinctive and natural reasons inducing and supporting the classification of motor vehicles because of their mobility, rapid depreciation and frequency of transfer and because they stand virtually alone in licensing requirements, the classification of motor vehicles was valid and did not contravene this section prohibiting special legislation. Kling v. Geary, 667 S.W.2d 379, 1984 Ky. LEXIS 216 ( Ky. 1984 ).

Where legislation establishes a classification made upon a reasonable and natural distinction which relates logically to the purpose of the act, there is no violation of this section. Kling v. Geary, 667 S.W.2d 379, 1984 Ky. LEXIS 216 ( Ky. 1984 ).

Since motor vehicles are a separate, distinct and reasonable classification, the mere fact that the dates of assessment and collection vary from real property or other personalty does not offend the provisions of this section prohibiting special legislation. Kling v. Geary, 667 S.W.2d 379, 1984 Ky. LEXIS 216 ( Ky. 1984 ).

The fact that ad valorem taxes on motor vehicles are collected by the county clerk rather than the sheriff does not render the legislation unconstitutional; as long as the taxes are uniform, within a valid classification, it is not a “local or special” act. Kling v. Geary, 667 S.W.2d 379, 1984 Ky. LEXIS 216 ( Ky. 1984 ).

Act 264 of 1982, governing motor vehicle taxation was not special legislation for failure to provide for a two percent (2%) discount which is granted to real property and other personal property under KRS 134.020 since motor vehicles are a classification based upon distinctive and natural reasons, and under this act no motor vehicles are subjected to a discount within the classification; the mere fact that all taxes are not paid in a short period of time, as envisioned in KRS 134.020 , et seq., does not render the legislation unconstitutional. Kling v. Geary, 667 S.W.2d 379, 1984 Ky. LEXIS 216 ( Ky. 1984 ).

The fact that a legislative act deals with a special subject does not make it special legislation where the Legislature establishes a classification based on reasonable and natural distinctions. Graham v. Mills, 694 S.W.2d 698, 1985 Ky. LEXIS 236 ( Ky. 1985 ).

Although classifications according to population are allowable, where the subject is one of general application throughout the state and has been so treated in the general scheme of legislation, distinctions favorable or unfavorable to particular localities resting alone upon numbers and density of population would be violative of this section and Ky. Const., § 60. Tri-City Turf Club, Inc. v. Public Protection & Regulation Cabinet, 806 S.W.2d 394, 1991 Ky. App. LEXIS 2 (Ky. Ct. App. 1991).

The Supreme Court will not permit a statute to survive by simply defining a class in a narrow fashion, which will yield, ipso facto, a self-sustaining classification. Yeoman v. Commonwealth Health Policy Bd., 983 S.W.2d 459, 1998 Ky. LEXIS 140 ( Ky. 1998 ).

A State Health Plan issued by the Cabinet for Health and Family Services which established criteria for a pilot project to study the risks and benefits of allowing angioplasty at hospitals without immediate access to an open-heart surgery facility, was limited to one hospital in eastern Kentucky and one hospital in western Kentucky, and required the hospitals to be located thirty (30) minutes from an on-site open-heart surgery center, was not unconstitutional, as: (1) such did not constitute special or local legislation, in violation of Ky. Const. §§ 59 and 60; (2) the classification was reasonable, natural, and consistent with the legitimate purpose of the government; and (3) it passed the rational basis test. St. Luke Hosps., Inc. v. Commonwealth, 254 S.W.3d 830, 2008 Ky. App. LEXIS 146 (Ky. Ct. App. 2008).

6.— Population.

Where subject of classification is one reasonably depending upon or affecting the number or density of population as a correlative fact in the scheme of the particular legislation, classification according to population is allowable, but where subject is one of general application throughout state and has been so treated in general scheme of legislation, distinctions favorable or unfavorable to particular localities rested alone upon numbers and density of population would be violative of subsections Eighteenth and Twenty-ninth of this section and Const., § 60. James v. Barry, 138 Ky. 656 , 128 S.W. 1070, 1910 Ky. LEXIS 117 ( Ky. 1910 ).

Legislation operating in like manner on all persons in like circumstances is not special or local. While an act making arbitrary and unreasonable classification of political subdivisions for the purpose of making laws applicable to them alone will not be upheld, cities and counties may be classified according to population for the purpose of making laws applicable to them. Connors v. Jefferson County Fiscal Court, 277 Ky. 23 , 125 S.W.2d 206, 1938 Ky. LEXIS 564 ( Ky. 1938 ).

Classification of political subdivisions based on population did not offend this section if such classification was rested upon some reasonable basis and not upon mere arbitrary division without any real or substantial distinction. Chandler v. Louisville, 277 Ky. 79 , 125 S.W.2d 1026, 1939 Ky. LEXIS 624 ( Ky. 1939 ).

Classification on the basis of population must have a reasonable relation to purposes and objects of the legislation and must be based upon a rational difference in the necessities or conditions found in the groups subjected to different laws. Chandler v. Louisville, 277 Ky. 79 , 125 S.W.2d 1026, 1939 Ky. LEXIS 624 ( Ky. 1939 ).

Act relating to compensation and expenses of sheriff, in county having an assessed valuation of more than $100,000,000, containing a population of less than 75,000, comprising a separate judicial district, and containing a second-class city, did not violate this section, the elements of the classification having a logical and reasonable relation to the purpose of the act. Thompson v. Shipp, 298 Ky. 805 , 184 S.W.2d 245, 1944 Ky. LEXIS 1028 ( Ky. 1944 ).

Where an act relates to local county government, the amount of population and its density, the wealth of the community, and the size of the cities in the county are proper and logical elements upon which to base a classification. Thompson v. Shipp, 298 Ky. 805 , 184 S.W.2d 245, 1944 Ky. LEXIS 1028 ( Ky. 1944 ).

Density of population of a county is not alone a sufficient basis for classification of counties in a law, although density of population may be a proper foundation if there exists some natural, logical, or reasonable basis of support to take the act out of the category of arbitrary selection. Wehrman v. Steltenkamp, 304 Ky. 409 , 200 S.W.2d 949, 1947 Ky. LEXIS 660 ( Ky. 1947 ).

The merger of city and county governments under KRS 67A.010 to 67A.040 (KRS 67A.040 now repealed) does not violate this section by confining its application to counties other than one containing a city of the first class, as an act classifying counties or cities upon the basis of size alone has always been permissible under this section if the subject of the act was the organization or government of the classified governmental units. Pinchback v. Stephens, 484 S.W.2d 327, 1972 Ky. LEXIS 148 ( Ky. 1972 ).

A classification according to population and its density, and according to the division of cities into classes, is not a natural and logical classification and cannot be sustained unless the act pertains to the organization or government of cities and towns or is incident thereto, or unless the classification has a reasonable relation to the purpose of the act. Jefferson County Police Merit Bd. v. Bilyeu, 634 S.W.2d 414, 1982 Ky. LEXIS 260 ( Ky. 1982 ).

The subject matter of KRS 78.428 , which removes certain officers from the protection of a merit system in counties having a population of 600,000 or more, is governmental in nature and is constitutional under this section and Ky. Const., § 60. Jefferson County Police Merit Bd. v. Bilyeu, 634 S.W.2d 414, 1982 Ky. LEXIS 260 ( Ky. 1982 ).

Although classifications according to population are allowable, where the subject is one of general application throughout the state and has been so treated in the general scheme of legislation, distinctions favorable or unfavorable to particular localities resting alone upon numbers and density of population would be violative of Ky. Const., § 60 and this section; an act based upon a classification merely according to classes of cities cannot be upheld unless it pertains to the organizations or government of the classified cities or unless the classification has a reasonable relation to the purpose of the act. Miles v. Shauntee, 664 S.W.2d 512, 1983 Ky. LEXIS 282 ( Ky. 1983 ).

7.— Cities.

Law providing that when any public improvement ordered to be constructed in a city of the first class is such that it may be lawfully constructed at cost of owners of adjacent land the cost thereof shall be apportioned against real estate owned by state in like manner as against any other land does not violate prohibition against local or special legislation, although act applies only to cities of first class and there is only one (1) first-class city within the Commonwealth. Hager v. Gast, 119 Ky. 502 , 84 S.W. 556, 27 Ky. L. Rptr. 129 , 1905 Ky. LEXIS 25 ( Ky. 1905 ).

Law providing that use of escheats in cities of first class shall be for public schools in such cities and authorizing school board to sue for same is not special legislation within the meaning of this section notwithstanding that same privilege is not allowed to school boards of other cities. Commonwealth use of Louisville School Board v. Chicago, S. L. & N. O. R. Co., 124 Ky. 497 , 99 S.W. 596, 30 Ky. L. Rptr. 673 , 1907 Ky. LEXIS 207 ( Ky. 1907 ).

Since the Constitution provides that cities of Commonwealth shall be divided into classes, the fact that Louisville is only city of first class does not invalidate legislation pertaining to that city alone. Kirch v. Louisville, 125 Ky. 391 , 101 S.W. 373, 30 Ky. L. Rptr. 1356 , 1907 Ky. LEXIS 294 ( Ky. 1907 ).

Act permitting all second-class cities to adopt commission form of government as provided therein was not special legislation contrary to this section. Bryan v. Voss, 143 Ky. 422 , 136 S.W. 884, 1911 Ky. LEXIS 429 ( Ky. 1911 ).

Law which requires proper construction scaffolding only in cities of the first and second classes does not constitute special legislation. Jones v. Russell, 224 Ky. 390 , 6 S.W.2d 460, 1928 Ky. LEXIS 606 ( Ky. 1928 ).

So much of law regarding appointment of city administrators that provided that the city administrator of each city of the first class shall be appointed by the commissioner of revenue (now secretary of revenue), with the approval of the governor, contravened this section and Ky. Const., §§ 60 and 160 and was void, since the attempted separate classification of cities of the first class was not based on natural or distinctive reasons. Chandler v. Louisville, 277 Ky. 79 , 125 S.W.2d 1026, 1939 Ky. LEXIS 624 ( Ky. 1939 ).

An act based on a classification merely according to classes of cities cannot be upheld unless it pertains to the organization or government of the classified cities, or unless the classification has a reasonable relation to the purpose of the act. Mannini v. McFarland, 294 Ky. 837 , 172 S.W.2d 631, 1943 Ky. LEXIS 539 ( Ky. 1943 ).

KRS 81.195 (repealed) is not constitutional because it does not provide for the same treatment for all cities of the third class. Corbin v. Roaden, 453 S.W.2d 603, 1970 Ky. LEXIS 329 ( Ky. 1970 ).

KRS 64.510 (repealed) and KRS 69.010 providing that only Commonwealth Attorneys whose districts contained a first- or second-class city or an urban county government shall receive an increase in compensation did not deny equal protection to those districts which did not qualify but had a population as large as those districts which did qualify since the problem of crime being greater in the former districts was a reasonable basis for classification. Commonwealth ex rel. Hancock v. Davis, 521 S.W.2d 823, 1975 Ky. LEXIS 162 ( Ky. 1975 ).

Section 156 of the Constitution is an exception to this section that prohibits special legislation. Hall v. Miller, 584 S.W.2d 51, 1979 Ky. App. LEXIS 433 (Ky. Ct. App. 1979).

An act, based on a classification merely according to classes of cities cannot be upheld unless it pertains to the organizations or government of the classified cities or unless the classification has a reasonable relation to the purpose of the act. Hall v. Miller, 584 S.W.2d 51, 1979 Ky. App. LEXIS 433 (Ky. Ct. App. 1979).

The 1968 Act (Acts 1968, ch. 5) reclassifying the city of Edgewood from a sixth to a fourth-class city did not vitiate the 1962 annexation ordinance of city attempting to annex Edgewood nor prevent the annexing city from going forward with the proposed annexation, for the legislative intent of said act was to do nothing more than carry out the mandate of Ky. Const., § 156 to make changes in classification as the population of the cities and towns increases or decreases and was not indicative of an intent to legislate the corporate limits of Edgewood, and even if it had been the intent of the legislature to set corporate limits of said city such intent would have been frustrated by this section and Ky. Const., § 159 prohibiting establishment of city boundaries by special and local laws. Covington v. Beck, 586 S.W.2d 284, 1979 Ky. App. LEXIS 453 (Ky. Ct. App. 1979).

8.— Reasonable.

Law regulating the appearance of lobbyists before the legislature is not class legislation prohibited by this section, although it does not apply to those appearing without compensation or on behalf of themselves or the public. Campbell v. Commonwealth, 229 Ky. 264 , 17 S.W.2d 227, 1929 Ky. LEXIS 756 ( Ky. 1929 ).

KRS 231.020 does not violate this section, although it regulates only places of entertainment located outside of cities, since there is a reasonable basis for such classification arising from the fact that cities have their own police protection. Ratliff v. Hill, 293 Ky. 36 , 168 S.W.2d 336, 1943 Ky. LEXIS 556 ( Ky. 1943 ).

The sanitation district law is not unconstitutional as class or special legislation because it applies only to counties having cities of the first three (3) classes, in view of the more serious sanitation and sewerage problems facing dwellers in the larger cities and suburban areas. Somsen v. Sanitation Dist. of Jefferson County, 303 Ky. 284 , 197 S.W.2d 410, 1946 Ky. LEXIS 828 ( Ky. 1946 ).

Where Department of Welfare filed claim for maintenance and board of patient in state hospital, provision of subsection (2) of KRS 203.110 (now KRS 210.330 ) was applicable and not unconstitutional and five (5) year statute of limitations would not begin to run against the department until acquisition by patient of an estate which could be subject to debt, since the classification by KRS 203.110 (now KRS 210.330 ) is not arbitrary but has a sound and reasonable basis. Department of Welfare v. Fox, 240 S.W.2d 65, 1951 Ky. LEXIS 944 ( Ky. 1951 ).

The requirement of law that real estate brokers and salesmen need be licensed only in cities of the first three (3) classes and within five (5) miles thereof is not unconstitutional as special legislation, since the classification therein is reasonable and germane to the purpose of the law. Sims v. Reeves, 261 S.W.2d 812, 1953 Ky. LEXIS 1063 ( Ky. 1953 ).

Veterans’ bonus statute restricting payments to residents of the state and providing larger bonus for veterans having service overseas established reasonable classification and was not unconstitutional as special legislation. Watkins v. State Property & Bldgs. Com., 342 S.W.2d 511, 1960 Ky. LEXIS 94 ( Ky. 1960 ).

Antidiscrimination ordinance of first-class city which prohibits the refusal of restaurant owner to serve food to Negroes was not a special law and did not provide a reasonable classification. Commonwealth v. Beasy, 386 S.W.2d 444, 1965 Ky. LEXIS 502 ( Ky. 1965 ).

The legislature is not prohibited from making reasonable classifications. Kentucky Milk Marketing & Anti-Monopoly Com. v. Borden Co., 456 S.W.2d 831, 1969 Ky. LEXIS 5 ( Ky. 1969 ).

Statutory provisions (KRS 160.040-160.210) that allowed special structuring of a new school board upon the merger of the school district of a city of the first class with the county school district did not constitute forbidden local or special legislation where the reasons for treatment different from other mergers were justified by the factors of urbanization which differentiate school problems in cities of the first class. Board of Education v. Board of Education, 522 S.W.2d 854, 1975 Ky. LEXIS 143 ( Ky. 1975 ).

A city ordinance which made a permanent, continuing increase of 35% in the pensions of police officers who retired prior to a certain date and other beneficiaries who were receiving benefits attributable to such a police officer’s service had a reasonable basis in that its purpose was to correct inequities in the retirement benefits for policemen who retired before the specified date, and therefore the law did not constitute special or local legislation. Hyde v. Haunost, 530 S.W.2d 374, 1975 Ky. LEXIS 52 ( Ky. 1975 ).

There is a reasonable basis in the General Assembly’s contrasting sexual offenders who are strangers or mere acquaintances of the abused child from those who abuse not only the child, but their advantageous position as a person who society teaches the child to regard as an adult role model; therefore, subdivision (2) of KRS 532.045 , prohibiting probation, parole, or conditional discharge for persons convicted of certain crimes, does not violate this section as being class legislation. Owsley v. Commonwealth, 743 S.W.2d 408, 1987 Ky. App. LEXIS 589 (Ky. Ct. App. 1987).

For a law to be constitutionally general and not special legislation, the classification must be based upon a reasonable and natural distinction which relates to the purpose of the act and the legislation must apply equally to all in a class. St. Luke Hosp. v. Health Policy Bd., 913 S.W.2d 1, 1996 Ky. App. LEXIS 4 (Ky. Ct. App. 1996).

“Zero tolerance” provisions of KRS 189A.010 , pertaining to underage drinking and driving, are rationally related to a legitimate state purpose and are based on a valid distinction; therefore, such provisions are valid under the equal protection clauses of the United States and Kentucky Constitutions and do not constitute special legislation in violation of Ky. Const., § 59. Commonwealth v. Howard, 969 S.W.2d 700, 1998 Ky. LEXIS 95 ( Ky. 1998 ).

When asserting the validity of a classification, the burden is on the party claiming the validity of the classification to show that there is a valid nexus between the classification and the purpose for which the statute in question was drafted; there must be substantially more than merely a theoretical basis for a distinction; rather, there must be a firm basis in reality. Yeoman v. Commonwealth Health Policy Bd., 983 S.W.2d 459, 1998 Ky. LEXIS 140 ( Ky. 1998 ).

Amendments to KRS 68.197 retroactively restoring a provision that two (2) counties were not required to give taxpayers credit for city occupational license fees paid did not violate Ky. Const. § 59 as a local or special act because there were distinctive and natural reasons setting those two (2) counties apart from other counties such that a legitimate legislative purpose to relieve threatened fiscal hardship was served by requiring the latter counties to credit the fees but relieving the former counties from the requirement. The fees were authorized for the two (2) counties pursuant to a public question ballot approved by the voters and thus was a legitimate and unique classification. King v. Campbell County, 217 S.W.3d 862, 2006 Ky. App. LEXIS 331 (Ky. Ct. App. 2006).

9.— — Pensioners.

There are real and substantial distinctions between public and private employment sufficient to justify the separate classification of governmental pensioners and private industry pensioners under Ky. Const., § 59(15) for purposes of Kentucky income taxation of their pension benefits. Commonwealth Revenue Cabinet v. Cope, 875 S.W.2d 87, 1994 Ky. LEXIS 15 (Ky.), cert. denied, 513 U.S. 931, 115 S. Ct. 324, 130 L. Ed. 2d 284, 1994 U.S. LEXIS 7146 (U.S. 1994).

10.— Rural Road Fund Allocation.

Although the allocation of the rural secondary road fund among all counties on the basis of rural population and rural road use, regardless of the amount of tax collected in each county, did not consider the over-all population of each county or the number of vehicles per mile of rural roads in accordance with the formulae for distribution of road funds prescribed by KRS 177.360 and KRS 179.410 , the allocation was not unconstitutionally arbitrary under § 2 of the Constitution nor did it constitute special or local legislation as prohibited by this section or § 60, since those formulae were not so directly related to the public purpose of improving and maintaining rural roads as to require their inclusion in the basis used for allocation, the basis used was reasonably related to the public purpose, and the resulting classification was reasonable. Jefferson County v. King, 479 S.W.2d 880, 1972 Ky. LEXIS 320 ( Ky. 1972 ).

11.— Unreasonable.

Spot zoning of property for the construction of a doctor’s office building is a discriminatory classification of property and, as such, unconstitutional under this section, although it might result in some contribution to the public welfare. Parker v. Rash, 314 Ky. 609 , 236 S.W.2d 687, 1951 Ky. LEXIS 696 ( Ky. 1951 ).

Law making the right to operate a motor vehicle dependent upon payment by the owner of his personal property taxes and exempting from this requirement carriers for hire of vehicles designed to carry more than nine persons is in violation of this section as special legislation. Schoo v. Rose, 270 S.W.2d 940, 1954 Ky. LEXIS 1027 ( Ky. 1954 ).

Law that provides that uniform time observance will apply to certain categories of activity (i.e., business and government) but not to others is unconstitutional under this section, since the classification established is unreasonable and arbitrary. Dawson v. Hamilton, 314 S.W.2d 532, 1958 Ky. LEXIS 300 ( Ky. 1958 ).

An act violates this section if it contains no justification for the requirement that a county containing a city of the first class that also contains a city of some other class with an independent school district that would be required under such an act to use an entirely different procedure to annex adjacent areas to its independent school district from the procedure used by independent school districts in cities of the same class in all the remaining counties in the state. Board of Education v. Board of Education, 472 S.W.2d 496, 1971 Ky. LEXIS 200 ( Ky. 1971 ).

Since a review of the legislation that enacted present subsection (5) of KRS 230.377 in 1988 as subsection (3) discloses no legislative history concerning intertrack wagering in Kentucky and the title of the statute does not reflect a substantial justification for the distinction which affects Henderson County alone, subsection (5) of KRS 230.377 is determined to be unconstitutional as special or local law. Tri-City Turf Club, Inc. v. Public Protection & Regulation Cabinet, 806 S.W.2d 394, 1991 Ky. App. LEXIS 2 (Ky. Ct. App. 1991).

Subdivision (1)(b) of KRS 189A.200 which mandates pretrial suspension of an operator’s license when the accused individual is under the age of twenty-one (21) is an arbitrary classification based on age and is manifestly unreasonable; therefore, it is violative of the Fourteenth Amendment of the United States Constitution and Ky. Const., § 59. Commonwealth v. Raines, 847 S.W.2d 724, 1993 Ky. LEXIS 51 ( Ky. 1993 ), overruled in part, Commonwealth v. Howard, 969 S.W.2d 700, 1998 Ky. LEXIS 95 ( Ky. 1998 ), overruled in part, Commonwealth v. Carman, 455 S.W.3d 916, 2015 Ky. LEXIS 66 ( Ky. 2015 ).

12.Courts.

Special act regulating practice in a discontinued Circuit Court held in terms, passed before adoption of present Constitution, was not in violation of this section, since such provision is prospective in its operation and, under it, the special act remained in force until passage of a general law regulating practice in Circuit Courts held in terms. Piper v. Guenther, 95 Ky. 115 , 23 S.W. 872, 15 Ky. L. Rptr. 462 , 1893 Ky. LEXIS 131 ( Ky. 1893 ).

A local act passed prior to present Constitution regulating practice in a court not of continuous session ceased to be operative after expiration of six (6) years from adoption of Constitution. Morgan v. Wickliffe, 110 Ky. 215 , 61 S.W. 13, 22 Ky. L. Rptr. 1648 , 1901 Ky. LEXIS 66 ( Ky. 1901 ).

Provision that practice in Circuit Courts of continuous session may by general law be made different from practice of Circuit Courts held in terms is, by implication, a restriction on power of legislature to make the practice different in the several Circuit Courts held in terms, for the one exception is necessarily an exclusion of others. Morgan v. Wickliffe, 110 Ky. 215 , 61 S.W. 13, 22 Ky. L. Rptr. 1648 , 1901 Ky. LEXIS 66 ( Ky. 1901 ).

This section is not violated by a joint resolution authorizing certain claimants to sue the Commonwealth in a named court. Commonwealth v. Lyon, 72 S.W. 323, 24 Ky. L. Rptr. 1747 , 1903 Ky. LEXIS 435 (Ky. Ct. App. 1903).

Law providing that legality of ordinance of first-class city may be tested by city by appeal to Jefferson Circuit Court and then to Court of Appeals, as other cases in Circuit Court are appealed, is not invalid local law regulating jurisdiction of courts. Louisville v. Wehmhoff, 116 Ky. 812 , 76 S.W. 876, 79 S.W. 201, 25 Ky. L. Rptr. 1924 , 25 Ky. L. Rptr. 995 , 1903 Ky. LEXIS 250 ( Ky. 1903 ).

Law providing that in all counties having town not larger than the fourth class and containing population larger than county seat and over 17 miles therefrom the Circuit Court should be held alternately in county seat and in larger town was not violative of this section. Johnson v. Fulton, 121 Ky. 594 , 89 S.W. 672, 28 Ky. L. Rptr. 569 , 1905 Ky. LEXIS 243 ( Ky. 1905 ).

Statute, insofar as it undertook to divide the terms of McCracken Circuit Court into civil terms and criminal terms, was unconstitutional. Smedley v. Commonwealth, 138 Ky. 12 , 129 S.W. 547 ( Ky. 1910 ).

Act providing that in case railroad company does not comply with award of railroad commission within ten (10) days a copy of such award and the evidence shall be filed with clerk of proper Circuit Court, on which action may be maintained, and in which no other testimony than that introduced before commission shall be heard, was not unconstitutional. Illinois C. R. Co. v. Paducah Brewery Co., 157 Ky. 357 , 163 S.W. 239, 1914 Ky. LEXIS 300 ( Ky. 1914 ).

Law creating three (3) magisterial districts in counties having over 250,000 population and that fees therefrom be paid to general fund of the county is not unconstitutional as special legislation applying to particular persons or places as distinguished from classes of places or persons. Greene v. Caldwell, 170 Ky. 571 , 186 S.W. 648, 1916 Ky. LEXIS 126 ( Ky. 1916 ). See Shaw v. Fox, 246 Ky. 342 , 55 S.W.2d 11, 1932 Ky. LEXIS 761 ( Ky. 1932 ).

Law providing that railroad commission shall hear complaints against carriers for correction of extortionate rates and, if its award be not satisfied within ten (10) days, file copy of evidence and award in a Circuit Court, whereupon summons shall issue as in other cases, and trial be had as in ordinary action, is not unconstitutional in that an award of commission may be proceeded upon and judgment rendered without complainant filing a petition, since law applies to all Circuit Courts in state in which designated cause of action may arise. Louisville & N. R. Co. v. Greenbrier Distillery Co., 170 Ky. 775 , 187 S.W. 296, 1916 Ky. LEXIS 144 ( Ky. 1916 ).

Act conferring juvenile jurisdiction on Circuit Courts having seven (7) judges and relieving respective county courts of such jurisdiction was violative of this section and former section of Constitution regarding jurisdiction of county courts, since act was applicable to Jefferson County only and took from Jefferson County Court jurisdiction that would remain in county court of other counties. Neutzel v. Williams, 191 Ky. 351 , 230 S.W. 942, 1921 Ky. LEXIS 343 ( Ky. 1921 ).

Law authorizing appeal by a taxpayer from a decision of the state tax commission equalizing assessments only to the Franklin Circuit Court and thence to the Court of Appeals is a regulation of venue and is not special or local legislation which would be prohibited under this section. Johnson v. Fordson Coal Co., 213 Ky. 445 , 281 S.W. 472, 1926 Ky. LEXIS 535 ( Ky. 1926 ), writ of error dismissed, 275 U.S. 494, 48 S. Ct. 82, 72 L. Ed. 391, 1927 U.S. LEXIS 310 (U.S. 1927).

Law changing specified judicial district without creating a new one was not based on any general division of the state into judicial districts with due regard to territory, business and population and is unconstitutional as to local or special act. Fields v. Nickell, 248 Ky. 526 , 58 S.W.2d 912, 1933 Ky. LEXIS 264 ( Ky. 1933 ).

Law that created a special juvenile court in cities of the third class located more than ten (10) miles from the county seat, in counties not having a Circuit Court of continuous session, violated this section, since there was no discernible reason for separately classifying such cities. Barry v. Giles, 300 Ky. 22 , 187 S.W.2d 827, 1945 Ky. LEXIS 800 ( Ky. 1945 ).

Law exempting candidates for the position of circuit or appellate judge from the provision that no candidate who has been defeated in a primary election shall have his name placed on the ballot in the succeeding general election, is based on a reasonable classification and thus is not special legislation unconstitutional under this section. Rosenberg v. Queenan, 261 S.W.2d 617, 1953 Ky. LEXIS 1025 ( Ky. 1953 ).

Since this section, providing that the practice in courts of continuous session may by general law be made different from the practice of Circuit Courts held in terms, implies the right of the legislature to designate certain courts as being courts of continuous session and which right is not qualified elsewhere in the Constitution, the Legislature thus has the right to say whether the courts of a particular district shall be of continuous session or of terms and the mere fact that legislature at one time passed a law, fixing a standard of population alone as the basis for determining whether a court should be in continuous session was of no significance, because the matter was not one required to be dealt with by general law. Harrod v. Meigs, 340 S.W.2d 601, 1960 Ky. LEXIS 58 ( Ky. 1960 ).

13.Jurors.

Law that provided for longer grand jury sessions in counties containing cities of the first class than in other counties, established a classification based upon reasonable and natural distinction and was not unconstitutional as local or special legislation. Miller v. Hoblitzell, 271 S.W.2d 899, 1954 Ky. LEXIS 1064 ( Ky. 1954 ).

14.Prosecutions.

KRS 15.715(4), relating to intervention in certain prosecutions by the Attorney General, is not local and special legislation contrary to this section. Graham v. Mills, 694 S.W.2d 698, 1985 Ky. LEXIS 236 ( Ky. 1985 ).

15.Punishment.

Defendant cannot complain that penalty of a local law instead of that of a general law has been inflicted where the penalty imposed is less than the minimum amount prescribed in the general law. Stamper v. Commonwealth, 102 Ky. 33 , 42 S.W. 915, 19 Ky. L. Rptr. 1014 , 1897 Ky. LEXIS 64 ( Ky. 1897 ).

This section, in conjunction with law providing for punishment of offense of embezzlement by officer or agent of any bank, operated to repeal a bank charter granted by special act of the legislature prior to adoption of Constitution to the extent that it provided for the punishment of the offense of embezzlement of the bank’s funds by any of its officers or agents. Commonwealth v. Porter, 113 Ky. 575 , 68 S.W. 621, 24 Ky. L. Rptr. 364 , 1902 Ky. LEXIS 81 ( Ky. 1902 ).

This section does not prohibit legislature from repealing an existing statute and giving to the repeal its common-law effect of taking away from courts the power to enforce penalties incurred thereunder, as the legislature, unlike the congress, has all power that is not expressly taken away from it. Pannell v. Louisville Tobacco Warehouse Co., 113 Ky. 630 , 68 S.W. 662, 23 Ky. L. Rptr. 2423 , 1902 Ky. LEXIS 87 (Ky.), modified, 113 Ky. 640 , 82 S.W. 1141, 1902 Ky. LEXIS 248 (Ky. Ct. App. 1902).

Law declaring that any person who shall unlawfully take, drive or operate a motor vehicle without knowledge or consent of owner shall be guilty of an offense punished by imprisonment in the penitentiary was not unconstitutional, since purpose of Constitution was to prevent passing of acts applicable only to special localities. Singleton v. Commonwealth, 164 Ky. 243 , 175 S.W. 372, 1915 Ky. LEXIS 364 ( Ky. 1915 ).

16.Limitation of Civil or Criminal Causes.

KRS 413.135 is not applicable in an action against manufacturers of products used in the design or construction of a permanent improvement to real estate; if KRS 413.135 did include such manufacturers within its protected class, it would be unconstitutional as special legislation in violation of this section. In re Beverly Hills Fire Litigation, 672 S.W.2d 922, 1984 Ky. LEXIS 239 ( Ky. 1984 ).

KRS 413.135 as amended in 1986 providing for limitations for actions for damages arising out of injury is constitutionally defective as special legislation and further attempts to amend it to overcome the constitutional defects fatally impale upon Ky. Const., §§ 14, 54 and 241. Perkins v. Northeastern Log Homes, 808 S.W.2d 809, 1991 Ky. LEXIS 44 ( Ky. 1991 ).

17.Actions.

Law providing a special limitation of six (6) months as to actions against cities of first class by members of police force to recover any salary withheld for any cause, or for reinstatement to the force or department, was both a local and special act. Gorley v. Louisville, 104 Ky. 372 , 47 S.W. 263, 20 Ky. L. Rptr. 602 , 1898 Ky. LEXIS 175 ( Ky. 1898 ).

The special limitation of six (6) months provided by charter of cities of first class as to actions against such cities for damages violated provision against General Assembly passing local or special acts to regulate limitation of civil or criminal causes. Louisville v. Kuntz, 104 Ky. 584 , 47 S.W. 592, 20 Ky. L. Rptr. 805 , 1898 Ky. LEXIS 198 ( Ky. 1898 ).

Subsection Twenty-nine (29) of this section does not prohibit Commonwealth from giving its consent, by joint resolution of the General Assembly, to the bringing of a particular suit against it in the Franklin Circuit Court, though Ky. Const., § 231 empowers the General Assembly to direct, by general law, in what manner and in what courts suit may be brought against the Commonwealth. Commonwealth v. Haly, 106 Ky. 716 , 51 S.W. 430, 21 Ky. L. Rptr. 666 , 1899 Ky. LEXIS 93 ( Ky. 1899 ), limited, Carr v. Jefferson County, 275 Ky. 685 , 122 S.W.2d 482, 1938 Ky. LEXIS 475 ( Ky. 1938 ), limited, Wright's Adm'r v. Carroll County, 275 Ky. 690 , 122 S.W.2d 485, 1938 Ky. LEXIS 476 ( Ky. 1938 ).

Charter of city of Louisville fixing six (6) months as limitation within which actions for damages against the city may be instituted was unconstitutional. City of Louisville v. Hegan, 49 S.W. 532, 20 Ky. L. Rptr. 1532 , 1899 Ky. LEXIS 438 (Ky. Ct. App. 1899).

Law providing that in actions by city of first class to enforce liens for cost of street improvements copies of ordinance, contract and apportionment shall be prima facie evidence of every fact necessary to enable plaintiff to recover relates to matter affecting municipal government and is valid through special legislation, since Ky. Const., § 156 authorizes special legislation for purposes of municipal government. Richardson v. Mehler, 111 Ky. 408 , 63 S.W. 957, 23 Ky. L. Rptr. 917 , 1901 Ky. LEXIS 214 ( Ky. 1901 ).

Act of General Assembly permitting motorist to bring tort action against the Commonwealth based on alleged negligence of the State Highway Department is not unconstitutional as special legislation under this section, since a general law creating such causes of action would be impractical and does not exist. Commonwealth v. Bowman, 267 Ky. 50 , 100 S.W.2d 801, 1936 Ky. LEXIS 751 ( Ky. 1936 ). See Commonwealth v. Daniel, 266 Ky. 285 , 98 S.W.2d 897, 1936 Ky. LEXIS 643 ( Ky. 1936 ).

An act of the General Assembly authorizing an individual to sue a particular county on a subject to which a general law could be made applicable is unconstitutional as special and local legislation. Carr v. Jefferson County, 275 Ky. 685 , 122 S.W.2d 482, 1938 Ky. LEXIS 475 ( Ky. 1938 ). See Wright's Adm'r v. Carroll County, 275 Ky. 690 , 122 S.W.2d 485, 1938 Ky. LEXIS 476 ( Ky. 1938 ).

So long as parties are dealing at arms length they may fix a period of limitations shorter than the statutory period, provided such period is not unreasonably short; if the period fixed is a reasonable one, it will be enforced. Burlew v. Fidelity & Casualty Co., 276 Ky. 132 , 122 S.W.2d 990, 1938 Ky. LEXIS 521 ( Ky. 1938 ).

Resolution authorizing individual to sue state, although special in being for sole benefit of individual, has not been regarded as within meaning and spirit of subsection Twenty-ninth of this section, providing that where general law can be made applicable to special law shall be enacted, and under doctrine of stare decisis that construction should be adhered to. Daniel's Adm'r v. Hoofnel, 287 Ky. 834 , 155 S.W.2d 469, 1941 Ky. LEXIS 654 ( Ky. 1941 ).

KRS 411.100 , requiring the giving of notice to city authorities within 90 days as a condition precedent to the bringing of an action against city for personal injuries resulting from defect in street, was not a statute of limitations giving cities special rights not given to other tortfeasors and was not unconstitutional as class or special legislation. Galloway v. Winchester, 299 Ky. 87 , 184 S.W.2d 890, 1945 Ky. LEXIS 388 ( Ky. 1945 ).

Law providing that all actions against only cities of the first class for taxes and assessments illegally paid or collected shall be commenced within six (6) months, is unconstitutional under this section’s prohibition against local or special legislation. Louisville v. Louisville Taxicab & Transfer Co., 238 S.W.2d 121, 1951 Ky. LEXIS 795 ( Ky. 1951 ).

KRS 44.070 to 44.110 , 44.120 to 44.160 , authorizing individuals to maintain claims against the Commonwealth for damages resulting from negligence but limiting any award thereunder to $5,000 (now $10,000), is a general statute under this section and a legislative resolution authorizing two (2) individuals to sue the Commonwealth in the amount of $15,000 for personal injuries is unconstitutional under the provision of this section that prohibits the passing of a local or special law where a general law could be made applicable. Commonwealth v. McCoun, 313 S.W.2d 585, 1958 Ky. LEXIS 272 ( Ky. 1958 ).

The three (3) year statute of limitations for stock frauds provided by subsection (3) of KRS 292.480 is not unconstitutional under this section and Ky. Const., § 60 as a local law. Hutto v. Bockweg, 579 S.W.2d 382, 1979 Ky. App. LEXIS 389 (Ky. Ct. App. 1979).

18.Disabled Persons.

Legislature has no power to fix one rate for any pay patients who are admitted into a state asylum as such and to fix another rate one-third greater for patients who are admitted as paupers but subsequently become able to pay, though the latter pay only at the end of a suit, the discrimination being an arbitrary one without any proper or reasonable relation to the object sought to be accomplished, and such a law is void as fixing an arbitrary penalty. Schroer v. Central Kentucky Asylum for Insane, 113 Ky. 288 , 68 S.W. 150, 24 Ky. L. Rptr. 150 , 1902 Ky. LEXIS 57 ( Ky. 1902 ).

Law requiring that children provide necessaries to a destitute parent, which law applied only to adult children residing within the state and possessing the necessary means and ability, did not involve an arbitrary classification and was not, therefore, special legislation prohibited by this section. Wood v. Wheat, 226 Ky. 762 , 11 S.W.2d 916, 1928 Ky. LEXIS 164 ( Ky. 1928 ).

19.Relief of Disability.
20.— Feme Covert.

A special act of the legislature empowering a married women to trade as a feme sole and hold by purchase real and personal property free from her husband’s debts is constitutional since passed before the adoption of the present Constitution. Eskridge v. Carter, 29 S.W. 748, 16 Ky. L. Rptr. 760 (1895).

21.— Minors.

The workmen’s compensation act does not fall within the constitutional prohibition against local or special legislation by empowering a minor to accept the provisions of the act for compensation in lieu of the right to sue for damages in cases where he is not employed in wilful violation of any law. D. E. Hewitt Lumber Co. v. Brumfield, 196 Ky. 723 , 245 S.W. 858, 1922 Ky. LEXIS 596 ( Ky. 1922 ).

22.Descent.

Law declaring child of a mother divorced on the ground of pregnancy before marriage a bastard is not unconstitutional as special legislation. Richardson's Adm'r v. Borders, 246 Ky. 303 , 54 S.W.2d 676, 1932 Ky. LEXIS 733 ( Ky. 1932 ).

KRS 381.280 , providing that any heir or beneficiary under a will who takes the life of another and is convicted of a felony therefor forfeits any interest as an heir, legatee, or devisee in the property of the decedent, is not special legislation unconstitutional under this section, since the law operates uniformly throughout the state upon all members of the classes named. Wilson v. Bates, 313 Ky. 333 , 231 S.W.2d 39, 1950 Ky. LEXIS 873 ( Ky. 1950 ).

23.Divorce.

Under the present Constitution, the legislature is prohibited from granting divorces. Iring v. Iring, 188 Ky. 65 , 221 S.W. 219, 1920 Ky. LEXIS 232 ( Ky. 1920 ).

24.Compensation for Services.

A special act in favor of an attorney, validating a contract made between him and the state for rendition of services, is not invalid under this section, the legislature inferentially being given the power to enact a local law to legalize the contract. Carroll v. Bosworth, 151 Ky. 337 , 151 S.W. 916, 1912 Ky. LEXIS 803 ( Ky. 1912 ).

Joint resolution of the General Assembly ordering repayment to a sheriff of his personal expenses incurred in returning a fugitive from out of state, which reimbursement had not previously been authorized by law, did not violate this section as special legislation. Pennington v. Shannon, 270 Ky. 142 , 109 S.W.2d 389, 1937 Ky. LEXIS 37 ( Ky. 1937 ).

25.Taxation.

Act authorizing city of Louisville to levy taxes on property within its limits and enforce its lien thereon by an equitable action remained in full force after adoption of present Constitution and after passage of act incorporating cities of first class, as to taxes levied prior to passage of last act, since both of the latter enactments were prospective only and moreover expressly declared that their provisions should not affect former taxes lawfully levied and assessed. Long v. Louisville, 97 Ky. 364 , 30 S.W. 987, 17 Ky. L. Rptr. 253 , 1895 Ky. LEXIS 201 ( Ky. 1895 ).

Law requiring the taxation of the same property in the possession of and owned by one who owes taxes thereon to the United States in a different manner or mode than required on the same character of property in the hands of and owned by those citizens who have paid taxes to the United States is special legislation and unconstitutional. Commonwealth ex rel. Armstrong v. Taylor, 38 S.W. 10 ( Ky. 1896 ).

Act providing that distilled spirits in bonded warehouses should be assessed by state board of valuation and assessment, instead of by the county assessor, as other property is assessed was not unconstitutional. Commonwealth ex rel. Armstrong v. E. H. Taylor Jr. Co., 101 Ky. 325 , 41 S.W. 11 ( Ky. 1897 ).

Law relating to salaries of officers and their deputies in counties of 75,000 inhabitants or more and requiring monthly reports to auditor was not unconstitutional, although having application to Jefferson County alone. Winston v. Stone, 102 Ky. 423 , 43 S.W. 397, 19 Ky. L. Rptr. 1483 , 1897 Ky. LEXIS 95 ( Ky. 1897 ), overruled, Vaughn v. Knopf, 895 S.W.2d 566, 1995 Ky. LEXIS 49 ( Ky. 1995 ).

Fact that law imposes upon corporations, for failure to report, a penalty different from that imposed upon an individual who fails to list his property for taxation does not render it objectionable as special legislation. Louisville & J. Ferry Co. v. Commonwealth, 104 Ky. 726 , 47 S.W. 877, 20 Ky. L. Rptr. 927 , 1898 Ky. LEXIS 216 ( Ky. 1898 ).

A city ordinance fixing a certain fee for license to sell liquor on any street other than Main Street and fixing a larger fee for license to sell on that street is invalid to the extent that it discriminates against business conducted on Main Street, being to that extent special legislation. Board of Council of Harrodsburg v. Renfro, 58 S.W. 795, 22 Ky. L. Rptr. 806 , 1900 Ky. LEXIS 290 (Ky. Ct. App. 1900).

Provision of charter of first-class cities requiring payment of interest on taxes past due is not void as special legislation, though the statutes do not provide for payment of interest on taxes due to cities of other classes, or to state or county. Walston v. Louisville, 66 S.W. 385, 23 Ky. L. Rptr. 1852 (1902).

Special act of legislature incorporating taxing district with many of the governmental powers of towns and cities was not repealed by Constitution, though that instrument prohibits legislature from passing such special laws in the future and provides for the repeal of all laws inconsistent with its provisions. Covington v. District of Highlands, 113 Ky. 612 , 68 S.W. 669, 24 Ky. L. Rptr. 433 , 1902 Ky. LEXIS 89 ( Ky. 1902 ).

This provision looked altogether to future legislation and did not affect directly or indirectly the laws already in force at the time of the adoption of the present Constitution. Covington v. District of Highlands, 113 Ky. 612 , 68 S.W. 669, 24 Ky. L. Rptr. 433 , 1902 Ky. LEXIS 89 ( Ky. 1902 ).

Law was not unconstitutional as special or local legislation insofar as it allowed taxes to be collected by suit in cities of first class, similar provisions being made for suits in other classes of cities. Woolley v. Louisville, 114 Ky. 556 , 71 S.W. 893, 24 Ky. L. Rptr. 1357 , 1903 Ky. LEXIS 36 ( Ky. 1903 ).

Where the subject of classification was land which had been omitted from taxation for a great many years, the act did not violate this section though it did not apply to every county in the state. Eastern Kentucky Coal Lands Corp. v. Commonwealth, 127 Ky. 667 , 106 S.W. 260 ( Ky. 1907 ), aff'd, 219 U.S. 140, 31 S. Ct. 171, 55 L. Ed. 137, 1911 U.S. LEXIS 1626 (U.S. 1911).

If a few, or any number of persons less than all, who follow a designated trade, occupation, or profession may be exempt, while others are taxed, the law imposing the tax would not be general, but special or local, and forbidden by this section and Ky. Const., § 60. Hager v. Walker, 128 Ky. 1 , 107 S.W. 254, 32 Ky. L. Rptr. 748 , 1908 Ky. LEXIS 29 ( Ky. 1 908 ).

The provisions of the Constitution prohibiting special legislation and providing that taxation must be levied by general laws did not repeal or make inoperative special laws passed before its adoption, but it was contemplated that such laws should remain in force until changed by legislature unless in conflict with some constitutional provision. Smith v. Simmons, 129 Ky. 93 , 110 S.W. 336, 33 Ky. L. Rptr. 503 , 1908 Ky. LEXIS 134 ( Ky. 1908 ).

Law providing a minimum school tax rate of 36 mills for cities of second class was not unconstitutional as local or special legislation. Louisville v. Commonwealth, 134 Ky. 488 , 121 S.W. 411, 1909 Ky. LEXIS 399 ( Ky. 1909 ).

Act that added to list of fourth-class cities a taxing district incorporated by a special act existed only as a taxing district under such special act and amendment until adoption of Constitution, consisted of considerable territory not used for urban purposes, and which should not be included within the boundaries of a city was violative of subsection Twenty-nine of this section and of Ky. Const., § 156. Albershart v. Donaldson, 149 Ky. 510 , 149 S.W. 873, 1912 Ky. LEXIS 647 ( Ky. 1912 ).

Since Const., § 182 permits legislature to provide how railroad property shall be assessed, law providing that where lines of domestic railroad corporation are outside state the board of valuation and assessment shall fix the value of the capital stock in manner provided and apportion to state the proper proportion was not in violation of this section. Commonwealth by Anderson v. Southern Pac. Co., 150 Ky. 97 , 149 S.W. 1105, 1912 Ky. LEXIS 821 ( Ky. 1912 ), overruled, Commonwealth v. Kentucky Heating Co., 176 Ky. 35 , 195 S.W. 459, 1917 Ky. LEXIS 40 ( Ky. 1917 ).

Law authorizing the valuation and assessment of franchises by cities was not unconstitutional but rather is a legitimate exercise of the legislative power to confer on the assessing authorities of cities the right to assess for taxation for municipal purposes franchises of corporations doing business in the city. Kentucky Heating Co. v. Louisville, 174 Ky. 142 , 192 S.W. 4, 1917 Ky. LEXIS 165 ( Ky. 1917 ), writ of error dismissed, 250 U.S. 653, 40 S. Ct. 53, 63 L. Ed. 1191, 1919 U.S. LEXIS 1804 (U.S. 1919).

Exemption of mortgages to building and loan associations when the debt does not mature within five (5) years from general tax on recording of mortgages is not prohibited by this section as local or special legislation. Middendorf v. Goodale, 202 Ky. 118 , 259 S.W. 59, 1923 Ky. LEXIS 360 ( Ky. 1923 ).

To permit application of tax rate prevailing at time of actual assessment or levy, although made subsequent to time directed by law, would result in legislative establishment of different rate in different counties, dependent upon the time assessments or levies were actually made, and would thus violate subsection Fifteenth of this section by making possible application of different law to different counties for same fiscal year for same class of property. Ross v. First Nat'l Bank, 213 Ky. 453 , 281 S.W. 517, 1926 Ky. LEXIS 536 ( Ky. 1926 ).

Law providing that in counties containing cities of the first class the tax commissioner (now secretary of revenue) should be paid monthly advances for the expenses of his office is not in violation of this section as local or special legislation even though only one (1) county in the state contains a city of the first class. Shannon v. Wheeler, 268 Ky. 25 , 103 S.W.2d 718, 1937 Ky. LEXIS 422 ( Ky. 1937 ).

Law providing differing rates of assessments between counties with 75 or more drainage districts and all other counties is unconstitutional as special legislation, since it is based on an arbitrary classification. Withers v. Board of Drainage Comm'rs, 270 Ky. 732 , 110 S.W.2d 664, 1937 Ky. LEXIS 150 ( Ky. 1937 ).

Law permitting only cities of the first and third classes to make assessments against state property for internal improvements is based on a reasonable classification, since the bulk of the state’s property is located within Louisville and Frankfort, cities of these classes, and thus is not in violation of this section. Logan v. Louisville, 283 Ky. 518 , 142 S.W.2d 161, 1940 Ky. LEXIS 379 ( Ky. 1940 ).

Act which imposed license tax upon “each peddler with a vehicle” but exempted from such tax all other peddlers was void as unreasonably discriminatory and as being special or local in application contrary to this section. Denton v. Potter, 284 Ky. 114 , 143 S.W.2d 1056, 1940 Ky. LEXIS 450 ( Ky. 1940 ).

Law authorizing establishment of libraries only by cities and counties having a minimum assessed valuation of $5,000,000 did not violate this section, since public libraries are matters of statewide rather than local concern, and therefore the classification of cities made by Const., § 156 was not applicable, and since assessed valuation had a direct bearing on ability to support a library, and therefore furnished a reasonable basis for classification. Board of Trustees v. Newport, 300 Ky. 125 , 187 S.W.2d 806, 1945 Ky. LEXIS 801 ( Ky. 1945 ).

Provisions of KRS 160.475 and 160.476 , leaving it optional with county boards of education as to amount of tax necessary to operate district schools and to request county fiscal court to make levy accordingly, did not violate subsection Fifteenth of this section, since such act was general statute applicable to all fiscal courts and county public school districts equally throughout state. Harlan-Wallins Coal Corp. v. Cawood, 303 Ky. 544 , 198 S.W.2d 218, 1946 Ky. LEXIS 891 ( Ky. 1946 ).

KRS 132.380 , in exempting incumbent tax commissioners from taking further examinations in order to succeed themselves, establishes a reasonable classification and is not unconstitutional as special legislation or in violation of Const., § 3. Department of Revenue ex rel. Allphin v. Turner, 260 S.W.2d 658, 1953 Ky. LEXIS 983 ( Ky. 1953 ).

Provision of KRS 96.182 authorizing board of first-class cities to use surplus revenues for purpose of purchasing, paying, retiring, guaranteeing the payment of, or underwriting revenue bonds issued by any third-class city was not special legislation. Perkins v. Frankfort, 276 S.W.2d 449, 1955 Ky. LEXIS 422 ( Ky. 1955 ).

Provisions of KRS 68.180 to 68.195 , permitting fiscal court of county having population of at least 300,000 to impose occupational license tax and allowing credits against such tax for fees paid to first-class cities within such counties, did not constitute special legislation in contravention of this section or Const., § 60. Kupper v. Fiscal Court of Jefferson County, 346 S.W.2d 766, 1961 Ky. LEXIS 337 ( Ky. 1961 ).

There was no unconstitutional distinction in the use of tax revenue as between counties containing a city of the first class and all other counties, since the legislature had reason to provide an additional function for tourist and convention commissions in counties other than those containing a city of the first class. Second Street Properties, Inc. v. Fiscal Court of Jefferson County, 445 S.W.2d 709, 1969 Ky. LEXIS 179 ( Ky. 1969 ).

The “Roll-Back” law is not special or local legislation within the prohibition of this section. Miller v. Nunnelley, 468 S.W.2d 298, 1971 Ky. LEXIS 334 (Ky.), cert. denied, 404 U.S. 941, 92 S. Ct. 286, 30 L. Ed. 2d 255, 1971 U.S. LEXIS 564 (U.S. 1971).

As a consequence of the disparity between the numbers of eligible producers voting in successive referenda required to adopt and to terminate or discontinue the assessment program for tobacco promotion (KRS 247.780 (1)), the votes of those producers who favor the assessment program is accorded substantially greater weight than votes of those persons in the same class of producers who are opposed to the program; thus the terms and conditions of subsection (1) of KRS 247.780 effectively operate to deny the producers of burley tobacco who are opposed to an assessment program the equal protection of the law required by the Fourteenth Amendment to the Constitution of the United States, and the same contravenes Const., § 3 and this section and, therefore said subsection (1) is discriminatory and void. Tabor v. Council for Burley Tobacco, Inc., 599 S.W.2d 466, 1980 Ky. App. LEXIS 319 (Ky. Ct. App. 1980).

Law which authorized the fiscal court to levy tax for purpose of constructing and maintaining Campbell County courthouse, violated this section and Const., § 60, which prohibit local and special legislative authorization of tax levies. Whitford v. Hehl, 612 S.W.2d 759, 1980 Ky. App. LEXIS 426 (Ky. Ct. App. 1980).

While KRS 186A.120(3)(b), 186A.220 and 186A.230 exempt dealers who hold vehicles for resale from payment of the ad valorem tax, this is not a “halving” of a classification, but is only a method of fixing the time and the person responsible for payment of the ad valorem tax on all motor vehicles — to-wit, the purchaser of the vehicle at the time the vehicle is registered for use upon the highway, and the tax is payable by all persons, including an individual or a dealer, who intend to operate the vehicle on the highways of the state; these sections, read in conjunction with KRS 134.810(4), do not violate subsection (15) of this section or Const., § 171. Kling v. Geary, 667 S.W.2d 379, 1984 Ky. LEXIS 216 ( Ky. 1984 ).

Legislation which extended a provider tax to hospitals did not constitute invalid special legislation. Children's Psychiatric Hosp., Inc. v. Revenue Cabinet, 989 S.W.2d 583, 1999 Ky. LEXIS 43 ( Ky. 1999 ).

A county ordinance, which levied an occupational license fee on the gross compensation of all persons employed or self-employed within the county, did not constitute local or special legislation in violation of the Kentucky Constitution as the occupational license fee applied to every employed or self-employed entity in that county. Preston v. Johnson County Fiscal Court, 27 S.W.3d 790, 2000 Ky. LEXIS 119 ( Ky. 2000 ).

Challenged portions of the amendments to certain taxation statutes were not impermissible special legislation in violation of Ky. Const. § 59 with respect to regulating the rate of interest. Revenue Cabinet v. Asworth Corp., 2009 Ky. App. LEXIS 229 (Ky. Ct. App. Nov. 20, 2009), cert. denied, 562 U.S. 1200, 131 S. Ct. 1046, 178 L. Ed. 2d 865, 2011 U.S. LEXIS 1056 (U.S. 2011).

26.Public Property.

Law permitting cities of the second class to condemn land for proper public purposes does not constitute special or local legislation prohibited by this section. Shipp v. Lexington, 212 Ky. 702 , 279 S.W. 1094, 1926 Ky. LEXIS 221 ( Ky. 1926 ).

Law designating a short stretch of county road as part of the state highway system is not purely local in nature, since it deals with a statewide system as distinguished from merely local county roads and does not constitute unconstitutional local or special legislation. Smith v. State Highway Com., 247 Ky. 816 , 57 S.W.2d 1014, 1933 Ky. LEXIS 460 ( Ky. 1933 ).

27.Corporations.

Act providing for establishment and maintenance of state fair to be under management and control of specified livestock breeders’ association, an existing corporation, was not a local or special act to grant a charter to any corporation or amend the charter of any existing corporation. Kentucky Live Stock Breeders' Ass'n v. Hager, 120 Ky. 125 , 85 S.W. 738, 27 Ky. L. Rptr. 518 , 1905 Ky. LEXIS 83 ( Ky. 1905 ).

Act empowering cities of first class to construct system of sewerage and providing that mayor of first-class cities may appoint four (4) persons who, with mayor, shall constitute sewerage commission which shall constitute a body corporate with capacity to contract, to be contracted with and to sue and be sued was not in conflict with this section, though there is only one (1) city of the first class. Miller v. Louisville, 99 S.W. 284, 30 Ky. L. Rptr. 664 (1907).

Act creating board of waterworks for cities of first class with authority to own all stock in waterworks corporations and to take possession of property and franchises of water companies and operate them for benefit of city did not create corporation to carry on private business contrary to this section. Kirch v. Louisville, 125 Ky. 391 , 101 S.W. 373, 30 Ky. L. Rptr. 1356 , 1907 Ky. LEXIS 294 ( Ky. 1907 ).

There being no right at common law to incorporate trading or manufacturing corporations, and the Constitution providing against their creation by special law, when incorporated under general law by articles placing limit on corporation’s indebtedness, the incurring of indebtedness in excess of the limit is express violation of law. Randolph v. Ballard County Bank, 142 Ky. 145 , 134 S.W. 165, 1911 Ky. LEXIS 171 ( Ky. 1911 ).

Although the legislature is empowered to create corporations, it is prohibited from doing so by the passage of local or special acts. Handley v. Graham, 187 Ky. 316 , 219 S.W. 417, 1920 Ky. LEXIS 121 ( Ky. 1920 ).

Legislation which exempts vehicles owned by the United States, the state, counties, or municipal corporations from the statutory limitations on weight, dimensions, speed, operation and use of motor trucks and semi-trailers involves a classification based on distinctive and natural reasons and is not unconstitutional as special legislation. Whitney v. Fife, 270 Ky. 434 , 109 S.W.2d 832, 1937 Ky. LEXIS 87 ( Ky. 1937 ).

28.Highways.

Prohibition of this section against local or special legislation does not prevent legislature prescribing different standards for highway use between use by individuals for private gain and use by the state for public purposes. Whitney v. Fife, 270 Ky. 434 , 109 S.W.2d 832, 1937 Ky. LEXIS 87 ( Ky. 1937 ).

29.Bridges.

Laws authorizing cities of the first class to construct and operate bridges across any navigable stream forming state boundary property comes within Const., § 156, dividing cities for purpose of organization and government, and is not special legislation prohibited under this section. Klein v. Louisville, 224 Ky. 624 , 6 S.W.2d 1104, 1928 Ky. LEXIS 663 ( Ky. 1928 ).

State highway toll bridge act that empowered the state highway commission to build or cause to be built bridges over streams that were the boundary line between Kentucky and another state was not special legislation but was a general act and was simply a supplement to previous acts that looked to construction of adequate state highways. Bloxton v. State Highway Com., 225 Ky. 324 , 8 S.W.2d 392, 1928 Ky. LEXIS 762 ( Ky. 1928 ).

30.Livestock.

Statutory provision that all suits against a railroad or corporation for injury to livestock must be brought within one (1) year is not unconstitutional as special legislation, since it classifies reasonably and operates equally upon all falling within the class. Carr v. Texas Eastern Transmission Corp., 344 S.W.2d 619, 1961 Ky. LEXIS 243 ( Ky. 1961 ).

31.Public Officers.

An act authorizing state departments to employ attorneys did not violate subsection Eighteenth or Twenty-ninth of this section. Johnson v. Commonwealth, 291 Ky. 829 , 165 S.W.2d 820, 1942 Ky. LEXIS 329 ( Ky. 1942 ).

32.— Compensation.

Law fixing compensation of officers in counties having population of over 40,000 and under 75,000 in manner different from similar officers in other counties was not special or local legislation, since classification was reasonable. Stone v. Wilson, 39 S.W. 49, 19 Ky. L. Rptr. 126 (1897), overruled, Vaughn v. Knopf, 895 S.W.2d 566, 1995 Ky. LEXIS 49 ( Ky. 1995 ).

Law providing differing methods of compensation for court reporters in chancery and common pleas courts is a classification based on natural and reasonable distinction and does not constitute local or special legislation. Jefferson County v. Cole, 204 Ky. 27 , 263 S.W. 1114, 1924 Ky. LEXIS 441 ( Ky. 1924 ).

Act doubling pensions of policemen in first-class cities was not unconstitutional, since, although there is only one (1) first-class city, the legislature must provide by general law for the government of cities of that class. Board of Trustees v. Schupp, 223 Ky. 269 , 3 S.W.2d 606, 1928 Ky. LEXIS 315 ( Ky. 1928 ).

Law fixing salaries of constables and deputy constables in counties containing 250,000 people was based on reasonable classification and was not special or local legislation. Jefferson County Fiscal Court v. Thomas, 279 Ky. 458 , 130 S.W.2d 60, 1939 Ky. LEXIS 258 ( Ky. 1939 ).

33.— Fees.

Section 106 of the Constitution, requiring that the fees of county officers shall be regulated by law, means a general law applicable alike to every officer of the class. Alexander v. Owen County, 136 Ky. 420 , 124 S.W. 386, 1910 Ky. LEXIS 500 ( Ky. 1910 ). See Madison County Fiscal Court v. McChord, 145 Ky. 727 , 141 S.W. 377, 1911 Ky. LEXIS 945 ( Ky. 1911 ).

Law regulating fees for county officers in counties having a population of 75,000 or more is a valid exercise of the power delegated to the legislature by Const., § 106 and does not constitute special or local legislation prohibited by this section. Herold v. Talbott, 261 Ky. 634 , 88 S.W.2d 303, 1935 Ky. LEXIS 703 ( Ky. 1935 ).

Act that authorized civil service and pensions for county employees in counties containing a city of the second class and having a population in excess of 80,000 was unconstitutional as local or special legislation prohibited by this section. Wehrman v. Steltenkamp, 304 Ky. 409 , 200 S.W.2d 949, 1947 Ky. LEXIS 660 ( Ky. 1947 ).

Act that authorized civil service and pensions for county employees in counties containing a city of the second class and having a population of more than 80,000 could not be upheld on claim that density of population in such counties required more employees and made it difficult for fiscal court to investigate, classify and fix compensation of its employees, in view of fact that same condition existed in several slightly smaller counties with similar density of population. Wehrman v. Steltenkamp, 304 Ky. 409 , 200 S.W.2d 949, 1947 Ky. LEXIS 660 ( Ky. 1947 ).

Law which fixed maximum compensation of county police officers at $25.00 per year in counties of less than 25,000 and $2,400 and up per year in counties over 70,000, was not unconstitutional as special or discriminatory legislation against the lesser populated counties which in effect would prevent the establishment of police forces in these counties, since the Legislature obviously believed that in small counties such a police force would only be needed in emergencies to supplement sheriff’s force and there being no requirement that such officers devote full time to their office. Metcalf v. Howard, 304 Ky. 498 , 201 S.W.2d 197, 1947 Ky. LEXIS 666 ( Ky. 1947 ).

34.— Income.

Law requiring that tax collection commissions of outgoing sheriff be included in sheriff’s income for the preceding year but not affecting some outgoing sheriffs was not special legislation prohibited by this section. Petty v. Talbott, 256 Ky. 688 , 76 S.W.2d 940, 1934 Ky. LEXIS 475 ( Ky. 1934 ).

35.Elections.

Law providing for holding of local option elections, regulating time for holding such elections in towns, cities, districts, or precincts, differentiating between counties having cities of fourth class or larger and those not having cities within fourth class was constitutional, since such classification was proper. Board of Trustees v. Scott, 125 Ky. 545 , 101 S.W. 944, 30 Ky. L. Rptr. 894 , 1907 Ky. LEXIS 313 ( Ky. 1907 ).

Primary election law providing that all officers, with certain exceptions, should be nominated at the primaries was not unconstitutional as class legislation, since class legislation is repugnant to the Constitution only when it is special and the classification is not reasonable, and the Legislature, in its discretion, might properly exempt certain officers, because the small salary or the nominal position prevented them from being the object of political corruption. Hodge v. Bryan, 149 Ky. 110 , 148 S.W. 21, 1912 Ky. LEXIS 595 ( Ky. 1912 ).

Provision in act that when it shall be made to appear, by affidavit filed in Circuit Court, that an error or omission has occurred, or is about to occur, in the placing of any name on an official primary ballot the court shall order the correction of the error, that order of the court shall be final and not appealable, and that only candidates may institute proceedings thereunder is not special legislation, since, while it confers upon candidates as a class a right not conferred upon any other class, it applies to all candidates and, there being no constitutional right of appeal, the disallowance of appeal does not render it class or special legislation. Hager v. Robinson, 154 Ky. 489 , 157 S.W. 1138, 1913 Ky. LEXIS 129 ( Ky. 1913 ).

Exemption by law of nominations by political parties for certain offices from compulsory provisions of general primary election law does not violate this section prohibiting special legislation. Stevenson v. Hardin, 238 Ky. 600 , 38 S.W.2d 462, 1931 Ky. LEXIS 288 ( Ky. 1931 ).

Law providing for pay to members of the county board of registration and purgation in Jefferson County only did not violate this section, since duties may be more arduous in Jefferson County, but did violate this section insofar as it provided for compensation of purgation officers in Jefferson County only, since duties of officers would be no different than in other counties. Burton v. Mayer, 274 Ky. 245 , 118 S.W.2d 161, 1938 Ky. LEXIS 233 ( Ky. 1938 ).

Law classifying counties for purposes of state’s contribution to election expenses upon whether county had acquired voting machines is not discriminatory, is based on reasonable classification, and is not unconstitutional as special legislation. State Property & Bldg. Com. v. Hays, 346 S.W.2d 3, 1961 Ky. LEXIS 277 ( Ky. 1961 ).

Law specifying time for filing of candidates for office in fourth-class cities was not violative of this section or Const., § 6 or § 60. Hallahan v. Moody, 419 S.W.2d 770, 1967 Ky. LEXIS 196 ( Ky. 1967 ).

So much of KRS 121.045 as prohibits donations to the election campaigns of candidates for the office of property valuation administrator by persons whose property he may assess is unconstitutional. Lee v. Commonwealth, 565 S.W.2d 634, 1978 Ky. App. LEXIS 511 (Ky. Ct. App. 1978).

36.— Voting.

Law regulating voter’s registration in counties containing cities of the first class is unconstitutional as special legislation, since it is applicable only to one (1) county which contains other cities and rural areas. Atherton v. Fox, 245 Ky. 718 , 54 S.W.2d 11, 1932 Ky. LEXIS 647 ( Ky. 1932 ).

Provisions of law establishing federal employees and full-time students as two (2) general classes eligible to vote by absentee ballot did not constitute special legislation under this section, since such classification was reasonable. Hallahan v. Mittlebeeler, 373 S.W.2d 726, 1963 Ky. LEXIS 171 ( Ky. 1963 ).

37.Interest Rates.

Law providing system for licensing and regulation of those in business of making loans of $300 or less but exempting those engaged in automobile financing business was not unconstitutional as local or special law to regulate rate of interest or as class legislation, though including as an incident of such regulation provisions regulating the charging and collection of interest by those within the act. Ravitz v. Steurele, 257 Ky. 108 , 77 S.W.2d 360, 1934 Ky. LEXIS 511 ( Ky. 1934 ).

Building and loan associations authorized by law to assess dues and premiums against their members in addition to six percent (6%) interest on their loans are a proper subject of classification and independent legislation regulating them is not unconstitutional as special legislation. Linton v. Fulton Bldg. & Loan Ass'n, 262 Ky. 198 , 90 S.W.2d 22, 1936 Ky. LEXIS 22 ( Ky. 1936 ).

Because KRS 360.040 , which permits accrual of interest in accordance with a written obligation, applies equally to all persons who entered into written obligations containing interest accrual rates, and the reasons that support excepting those interest rates from the general 12% per annum rate are constitutional reasons, KRS 360.040 is not unconstitutional special legislation relating to regulation of the rate of interest. Union Trust, Inc. v. Brown, 757 S.W.2d 218, 1988 Ky. App. LEXIS 133 (Ky. Ct. App. 1988).

38.Liens.

Lien law in favor of mechanics is founded on a reasonable and natural classification. Safety Bldg. & Loan Co. v. Ecklar, 106 Ky. 115 , 50 S.W. 50, 20 Ky. L. Rptr. 1770 , 1899 Ky. LEXIS 31 ( Ky. 1899 ), overruled, Linton v. Fulton Bldg. & Loan Ass'n, 262 Ky. 198 , 90 S.W.2d 22, 1936 Ky. LEXIS 22 ( Ky. 1936 ).

Law providing that in actions by first-class city to enforce liens for cost of street improvements copies of the ordinance, contract and apportionment shall be prima facie evidence of every fact necessary to enable plaintiff to recover is valid, though special legislation, since Const., § 156, providing for classification of towns and cities, authorizes special legislation for purposes of municipal government. Richardson v. Mehler, 111 Ky. 408 , 63 S.W. 957, 23 Ky. L. Rptr. 917 , 1901 Ky. LEXIS 214 ( Ky. 1901 ).

Law giving a garage keeper or repairman a lien for repairs, service, or accessories and the right to sell an automobile in satisfaction thereof without personal notice to the owner does not constitute special legislation which is prohibited by the Constitution. Willis v. La Fayette-Phoenix Garage Co., 202 Ky. 554 , 260 S.W. 364, 1924 Ky. LEXIS 759 ( Ky. 1924 ).

39.Fish and Game.

Law providing that a certain per cent of fines imposed for catching fish with seine shall be paid to officer securing apprehension and conviction of offender and giving Circuit Courts exclusive jurisdiction to indict and punish was constitutional. Commonwealth v. Drain, 99 Ky. 162 , 35 S.W. 269, 18 Ky. L. Rptr. 50 , 1896 Ky. LEXIS 63 ( Ky. 1896 ).

Department of Fish and Wildlife resources forbidding the use of hoop nets, seines and other types of commercial fishing gear except trot lines and snag lines in the Tennessee River from its mouth upstream to the Kentucky Dam is based on reasonable classification and is not unconstitutional as local or special legislation. Commonwealth v. Moyers, 272 S.W.2d 670, 1954 Ky. LEXIS 1125 ( Ky. 1954 ).

40.Manufacturing.

Law prohibiting use of milk bottles and other containers by others than those whose names are branded thereon was constitutional, since law does not create arbitrary class but class created is reasonable one, based upon consideration of public policy. Commonwealth v. Goldburg, 167 Ky. 96 , 180 S.W. 68, 1915 Ky. LEXIS 818 ( Ky. 1915 ).

41.Mining.

Fact that law relating to issuance of due bills by certain companies engaged in mining applied only to companies employing ten (10) or more persons did not render it unconstitutional as special legislation, since the classification was natural and reasonable. Commonwealth v. Hillside Coal Co., 109 Ky. 47 , 58 S.W. 441, 22 Ky. L. Rptr. 559 , 1900 Ky. LEXIS 166 ( Ky. 1900 ).

KRS 352.540 , relating to payment of wages to miners, although partaking of special legislation inhibited by this section, is valid as consistent with end sought by Const., § 244 respecting payment to wage earners in lawful money. Barker v. Stearns Coal & Lumber Co., 287 Ky. 340 , 152 S.W.2d 953, 1941 Ky. LEXIS 534 ( Ky. 1941 ).

42.Schools.

Special acts concerning school districts in towns and cities were repealed by the general law relating to common schools to extent that they were inconsistent with the general law. Hickman College v. Colored Common School Dist., 111 Ky. 944 , 65 S.W. 20, 23 Ky. L. Rptr. 1271 , 1901 Ky. LEXIS 278 (Ky. Ct. App. 1901).

Act providing that any graded school district created by special act and having school fund other than that provided by general law shall have power to issue bonds with coupons attached not to exceed certain amount was not unconstitutional, since terms of act were applicable to all of separate class of schools to which it related. Smith v. Board of Trustees, 171 Ky. 39 , 186 S.W. 927, 1916 Ky. LEXIS 300 ( Ky. 1916 ).

Since act providing for a visitor for Negro but not white schools did not give the Negro race the benefit of a Negro visitor in addition to a trustee but only in place of a trustee, it is not unconstitutional under this section. Daviess County Board of Education v. Johnson, 179 Ky. 34 , 200 S.W. 313, 1918 Ky. LEXIS 171 ( Ky. 1918 ).

Law requiring a county to pay the tuition of pupils authorized to attend the most convenient high school in their county of residence is not unconstitutional as special or local legislation. Madison County Board of Education v. Smith, 250 Ky. 495 , 63 S.W.2d 620, 1933 Ky. LEXIS 738 ( Ky. 1933 ).

Law which exempts fifth and sixth-class city school districts from the obligation imposed on other districts to provide educational facilities for Negroes is unconstitutional as special legislation. Board of Education v. Board of Education, 264 Ky. 245 , 94 S.W.2d 687, 1936 Ky. LEXIS 324 ( Ky. 1936 ).

Exemption of incumbent members of board of education from meeting new educational qualifications does not make law local or special legislation. Commonwealth v. Griffen, 268 Ky. 830 , 105 S.W.2d 1063, 1937 Ky. LEXIS 536 ( Ky. 1937 ).

The fundamental mandate of the Constitution and statutes is that there shall be equality and that all public schools shall be nonpartisan and nonsectarian. Wooley v. Spalding, 293 S.W.2d 563, 1956 Ky. LEXIS 73 ( Ky. 1956 ).

The phrase “standards promulgated by the state board of education” in subsection (3) of KRS 157.305 (now repealed) was a mandate to formulate and establish such reasonable and uniform regulations as were necessary to a just and proper administration of the act and thus this section was not violated. Butler v. United Cerebral Palsy, Inc., 352 S.W.2d 203, 1961 Ky. LEXIS 200 ( Ky. 1961 ).

Under KRS 157.305 (now repealed), exceptional children, for whose education the common schools were not adequate, were proper subjects of classification. Butler v. United Cerebral Palsy, Inc., 352 S.W.2d 203, 1961 Ky. LEXIS 200 ( Ky. 1961 ).

The ordinary duties of a school principal differ greatly from those of a school teacher, as administrative personnel have either fiscal management duties and educational supervisory duties, or both, with responsibilities which are quite different from those of classroom teachers; the role of an administrator in carrying out policy and in formulating overall policy is also quite different from that of a teacher, and it is certainly not beyond reason that the Legislature would deem it advisable not to give one whose supervisory and policy role is so different, the same kind of job protection given to a classroom teacher. Hooks v. Smith, 781 S.W.2d 522, 1989 Ky. App. LEXIS 151 (Ky. Ct. App. 1989).

The proper test to be applied under the equal protection clause and this section of the Kentucky Constitution is whether there is a rational basis for the different treatment of school administrators from that of school teachers. Hooks v. Smith, 781 S.W.2d 522, 1989 Ky. App. LEXIS 151 (Ky. Ct. App. 1989).

Statutory grant of authority under KRS 156.160 and KRS 189.540 to Department of Transportation to adopt regulations to govern the design and operation of school buses was not unconstitutional special legislation because it applied only to public and not to private or parochial school bus drivers; the statutes apply equally to a class and further a legitimate state interest in safe transportation of public school children. Cornette v. Commonwealth, 899 S.W.2d 502, 1995 Ky. App. LEXIS 108 (Ky. Ct. App. 1995).

43.Liquor Laws.

Act making it unlawful to sell liquor in certain magisterial district of Pendleton County or to obtain license for such sale and providing for punishment of persons who violated the act was not repealed by the subsequent adoption of this section. Brann v. Hart, 97 Ky. 735 , 31 S.W. 736, 17 Ky. L. Rptr. 462 , 1895 Ky. LEXIS 236 ( Ky. 1895 ).

Act which left no discretion in board of trustees to refuse to issue liquor license where majority of townspeople voted in favor of sale of liquor changed the general law, under which the licensing authorities had discretion, and therefore violated prohibition against enactment of any special law to regulate or prohibit the sale of liquor or alter the liquor laws. Riley v. Rowe, 112 Ky. 817 , 66 S.W. 999, 23 Ky. L. Rptr. 2168 , 1902 Ky. LEXIS 228 ( Ky. 1902 ).

Under this section and Const., §§ 61 and 154, the Legislature is without authority to prohibit a citizen from having in his possession intoxicating liquors for his own use, though it has power to regulate the sale of liquor or any other use of it which, in itself, is inimical to the public health, morals, or safety. Commonwealth v. Campbell, 133 Ky. 50 , 117 S.W. 383, 1909 Ky. LEXIS 169 ( Ky. 1909 ).

Act prohibiting the possession of intoxicating liquors unlawfully acquired did not constitute local or special legislation under this section, since the act applied equally to all persons and places within the state. Lakes v. Goodloe, 195 Ky. 240 , 242 S.W. 632, 1922 Ky. LEXIS 342 ( Ky. 1922 ).

Law that prohibited the keeping of pool tables in a room in a city of the fourth class where alcoholic beverages were sold was invalid local and special legislation. Mannini v. McFarland, 294 Ky. 837 , 172 S.W.2d 631, 1943 Ky. LEXIS 539 ( Ky. 1943 ).

The special character of the alcoholic beverage business is such that it may be treated as a special category for purposes of regulation and license taxation and a law limiting license fees on brewers is not special legislation in violation of this section. George Wiedemann Brewing Co. v. Newport, 321 S.W.2d 404, 1959 Ky. LEXIS 282 ( Ky. 1959 ).

Although the Court of Appeals correctly upheld the Alcoholic Beverage Control Board’s reading of KRS 241.075(3), because the Board’s decision was premised on requiring that a measurement be taken along a route that was both lawful and safe, its distance measurement was proper, irrespective of legal pedestrian laws in KRS 189.570 ; accordingly, the constitutionality of KRS 241.075(3) under Ky. Const. §§ 59 and 60 should not have been addressed. Louisville/Jefferson County Metro Gov't v. TDC Group, LLC, 2009 Ky. LEXIS 35 ( Ky. 2009 ).

KRS 241.075(2) is unconstitutional as local or special legislation in violation of Ky. Const. §§ 59 and 60. Therefore, it was improper to deny an applicant’s request for a retail liquor by the drink license merely because the license would have been located within 700 feet of another similarly situated establishment. O'Shea's-Baxter, LLC v. Commonwealth, 2013 Ky. App. LEXIS 1 (Ky. Ct. App. Jan. 4, 2013, sub. op., 2013 Ky. App. Unpub. LEXIS 983 (Ky. Ct. App. Jan. 4, 2013).

44.— Local Option.

Where question submitted to voters was adoption of special local option law for certain precinct, election was void, since such special legislation was violation of this section. Reynolds v. Commonwealth, 106 Ky. 37 , 49 S.W. 969, 20 Ky. L. Rptr. 1681 , 1899 Ky. LEXIS 10 ( Ky. 1899 ).

Where the sale of liquor was prohibited by special act of the General Assembly prohibiting the sale in a special locality, the local law remained in full force until repealed or until the sale of liquor was permitted by an election held under the general local option law. Buskirk v. Commonwealth, 162 Ky. 118 , 172 S.W. 99, 1915 Ky. LEXIS 21 ( Ky. 1915 ).

Under this section the Legislature cannot constitutionally prohibit a person from bringing liquor into local option territory for his own use. Barber v. Commonwealth, 182 Ky. 200 , 206 S.W. 290, 1918 Ky. LEXIS 342 ( Ky. 1918 ).

Law which provides for separate local option elections for cities of the first four (4) classes located in counties which either have voted dry or hold a countywide election on the question of local option in counties that are wet is not unconstitutional as special legislation. May v. Drake, 309 Ky. 819 , 219 S.W.2d 31, 1949 Ky. LEXIS 816 ( Ky. 1949 ).

KRS 242.125 , permitting cities of first four (4) classes to decide for themselves whether or not to adopt prohibition, was not violative of this section as being special legislation, since such classification was reasonable in relation to subject matter and no discrimination had been made between members of same class. McMullin v. Richmond City Council, 312 Ky. 430 , 227 S.W.2d 975, 1950 Ky. LEXIS 663 ( Ky. 1950 ).

Subdivision (10)(a) of KRS 242.1292 , which allows the city governing body of second-class cities to designate precincts as limited sale (“wet”) precincts, is clearly premised on a finding by the governing body that the economy of a certain precinct has been adversely affected by the prohibition against the sale of alcoholic beverages; accordingly, the subdivision bears a reasonable relationship to the purpose of the act, which is to help the precinct’s economy, and is constitutional. United Dry Forces v. Lewis, 619 S.W.2d 489, 1981 Ky. LEXIS 260 ( Ky. 1981 ).

Subdivision (10)(b) of KRS 242.1292 providing that the city governing body in second-class cities should order a local option election in a dry precinct upon petition of 33% of the voters bears no relationship to the statutory purpose of helping the precinct’s economy and is unconstitutional as special and local legislation, and elections held pursuant to that subdivision were void; however, because of the implied severability clause in KRS 446.090 , the remainder of KRS 242.1292 is constitutional. United Dry Forces v. Lewis, 619 S.W.2d 489, 1981 Ky. LEXIS 260 ( Ky. 1981 ).

Classifications in KRS 242.185(6) were reasonably related to the statute’s purpose and the statute did not violate the Kentucky Constitution. Temperance League of Ky. v. Perry, 74 S.W.3d 730, 2002 Ky. LEXIS 95 ( Ky. 2002 ).

Although the Alcoholic Beverage Control Board incorrectly measured the 700-foot distance between licensees required by KRS 241.075 , because there was no rational basis to presume that the evils associated with a concentration of liquor licensees in a mixed-use area were any different in large or small cities, KRS 241.075 (2) did not satisfy the reasonable-relation element under either the Schoo or the United Dry Forces test; consequently, the statute is unconstitutional as local or special legislation in violation of Ky. Const. §§ 59 and 60. Louisville/Jefferson County Metro Gov't v. TDC Group, LLC, 2007 Ky. App. LEXIS 102 (Ky. Ct. App. Apr. 6, 2007), aff'd on other grounds, 283 S.W.3d 657, 2009 Ky. LEXIS 28 ( Ky. 2009 ).

45.Medical Malpractice.

The provisions of subsections (2) and (5) of KRS 304.40-330 (now repealed), authorizing the commissioner to exempt certain physicians from the patient compensation fund and to fix the rate of surcharges, were not unconstitutional on their faces and, if properly implemented, would not violate this section. McGuffey v. Hall, 557 S.W.2d 401, 1977 Ky. LEXIS 533 ( Ky. 1977 ).

The provision of KRS 304.40-330 (6) (now repealed) limiting the number of members insured in the patient compensation fund did not constitute special legislation in violation of this section. McGuffey v. Hall, 557 S.W.2d 401, 1977 Ky. LEXIS 533 ( Ky. 1977 ).

The “University of Kentucky Medical Malpractice Insurance” Act, KRS 164.939 to 164.944 , is not arbitrary and discriminatory in violation of this section. Dunlap v. University of Kentucky Student Health Servs. Clinic, 716 S.W.2d 219, 1986 Ky. LEXIS 300 ( Ky. 1986 ).

46.General Laws.

Under subsection Twenty-ninth of this section and under Const., §§ 58 and 230, a contention that act appropriating money for benefit of destitute children of state to a particular, private, charitable institution, organized under laws of this state, is special legislation within the prohibition of this section is untenable, as the selection of one agency to apply money so appropriated, from the nature of the case, calls for an act of appropriation applicable to it alone. Hager v. Kentucky Children's Home Soc., 119 Ky. 235 , 83 S.W. 605, 26 Ky. L. Rptr. 1133 , 1904 Ky. LEXIS 166 ( Ky. 1904 ).

Law vesting escheated property within cities of first class in board of education for use of schools was not unconstitutional as local or special legislation. Ky. v. Thomas' Admr, 140 Ky. 789 , 131 S.W. 797, 1910 Ky. LEXIS 362 (Ky. Ct. App. 1910).

This section recognizes that there may be subjects of legislation to which a law which may be enacted may apply alone and expressly allows legislation local in its application, and does not forbid any legislation of local application where every similar locality in the state is embraced by the act. Ky. v. Thomas' Admr, 140 Ky. 789 , 131 S.W. 797, 1910 Ky. LEXIS 362 (Ky. Ct. App. 1910).

Act that granted pensions to indigent Confederate soldiers was not a special law, since they were placed upon a different basis from other indigent persons because of public services rendered by them to state. Bosworth v. Harp, 154 Ky. 559 , 157 S.W. 1084, 1913 Ky. LEXIS 114 ( Ky. 1913 ).

Under subsection Twenty-ninth of this section, there had to be created in general act some method of ascertaining when law was accepted, and this could be properly ascertained by court judgment. Boone County v. Verona, 190 Ky. 430 , 227 S.W. 804, 1921 Ky. LEXIS 468 ( Ky. 1921 ).

An act providing for the abatement of a disorderly house as a nuisance is not local or special legislation and thus unconstitutional under this section. King v. Commonwealth, 194 Ky. 143 , 238 S.W. 373, 1922 Ky. LEXIS 119 ( Ky. 1922 ).

Act relating to sheriff’s commissions for collecting school taxes in counties of certain population did not violate subsection Twenty-ninth of this section. Ross v. Board of Education, 196 Ky. 366 , 244 S.W. 793, 1922 Ky. LEXIS 520 ( Ky. 1922 ).

Act dealing with “all valid existing or future contracts and leases for oil and gas rights upon and under the lands of this Commonwealth” was not special legislation within inhibition of subsection Twenty-ninth of this section, since such act applied to all persons and contracts of class described and such classification was justifiable. Roberts v. Atlantic Oil Producing Co., 295 F. 16, 1924 U.S. App. LEXIS 3144 (6th Cir. Ky.), cert. denied, 265 U.S. 582, 44 S. Ct. 465, 68 L. Ed. 1190, 1924 U.S. LEXIS 3185 (U.S. 1924).

Law providing lesser compensation to nonresident alien dependents of a deceased workman is based on a reasonable classification of persons and is not special legislation prohibited by this section. Maryland Casualty Co. v. Chamos, 203 Ky. 820 , 263 S.W. 370, 1924 Ky. LEXIS 1022 ( Ky. 1924 ).

Law providing for resolution of deadlock in vote of county fiscal court by action of county judge is not local or special legislation. Kirchdorfer v. Tincher, 204 Ky. 366 , 264 S.W. 766, 1924 Ky. LEXIS 458 ( Ky. 1924 ).

Statutory regulation of public auction sales of leaf tobacco classifying all warehouses the same and making them subject to the same requirements is not special legislation. Jewell Tabacco Warehouse Co. v. Kemper, 206 Ky. 667 , 268 S.W. 324, 1925 Ky. LEXIS 1023 ( Ky. 1925 ).

Legislation providing for the organization of cooperative tobacco marketing associations is not violative of this section as special legislation. Liberty Warehouse Co. v. Burley Tobacco Growers' Co-op. Ass'n, 208 Ky. 643 , 271 S.W. 695, 1925 Ky. LEXIS 358 ( Ky. 1925 ), aff'd, 276 U.S. 71, 48 S. Ct. 291, 72 L. Ed. 473, 1928 U.S. LEXIS 62 (U.S. 1928).

Law providing for escheat of property to a board of education does not violate this section as special legislation. Shanks v. Board of Education, 221 Ky. 470 , 298 S.W. 1111, 1927 Ky. LEXIS 754 ( Ky. 1927 ).

Law providing that probation officers in counties having cities of the first class shall be appointed under the merit system is not in violation of this section as local or special legislation. Beauchamp v. Silk, 275 Ky. 91 , 120 S.W.2d 765, 1938 Ky. LEXIS 370 ( Ky. 1938 ).

KRS 92.280 is general in its application in that any or all cities of the third class are granted the same power and privilege; therefore it does not violate subsection Twenty-ninth of this section. Planters Bank & Trust Co. v. Hopkinsville, 289 Ky. 451 , 159 S.W.2d 25, 1942 Ky. LEXIS 584 ( Ky. 1942 ).

A law which relates to persons or things as a class is a general law, while a law which relates to particular persons or things of a class is a special law. Johnson v. Commonwealth, 291 Ky. 829 , 165 S.W.2d 820, 1942 Ky. LEXIS 329 ( Ky. 1942 ).

The laws providing state aid for dependent children do not violate this section and the fact that aid is provided only for children living with certain relatives does not constitute an unreasonable classification. Meredith v. Ray, 292 Ky. 326 , 166 S.W.2d 437, 1942 Ky. LEXIS 81 ( Ky. 1942 ).

Provision in former law regarding right to collect fair wage allowing attorney’s fees to successful female or minor claimant was not violative of subsection Twenty-ninth of this section, since the general assembly was justified in prescribing special conditions and protective provisions for class of workers involved. W. W. Mac Co. v. Teague, 297 Ky. 475 , 180 S.W.2d 387, 1944 Ky. LEXIS 752 ( Ky. 1944 ).

KRS 184.010 to 184.300 , which provide for public road districts in counties containing cities of the first class, are not special legislation in violation of this section. Allison v. Borders, 299 Ky. 806 , 187 S.W.2d 728, 1945 Ky. LEXIS 796 ( Ky. 1945 ).

Section 156 of the Constitution, classifying cities according to population for purposes of organization and government, constitutes an exception to this section and Const., § 60; therefore, an act of the Legislature limited to a city of a certain class and pertaining to municipal affairs is valid as being general rather than special legislation. Dieruf v. Louisville & Jefferson County Bd. of Health, 304 Ky. 207 , 200 S.W.2d 300, 1947 Ky. LEXIS 613 ( Ky. 1947 ).

Act in which cost of living was made element in determination of fair minimum wage was not violative of subsection Twenty-ninth of this section, since it was common knowledge that wide discrepancy existed between cost of living in different localities in the Commonwealth. Young v. Willis, 305 Ky. 201 , 203 S.W.2d 5, 1947 Ky. LEXIS 773 ( Ky. 1947 ).

As KRS 96.171 to 96.188 apply to all cities of a certain class, they do not violate this section even if, at the time of passage, there was only one (1) city in that class in a position to take advantage of the provisions of these sections. Settle v. Jones, 306 Ky. 9 , 206 S.W.2d 59, 1947 Ky. LEXIS 946 ( Ky. 1947 ).

KRS 160.045 , granting owners of realty in territory which may become incorporated in any municipality and is located in county school district the right to demand that property be placed in school district in which greater part of municipality is located, does not violate the Constitution prohibiting special legislation where a general law can be made applicable. Board of Education v. Mescher, 310 Ky. 453 , 220 S.W.2d 1016, 1949 Ky. LEXIS 954 ( Ky. 1949 ).

KRS 160.045 was not special legislation and did not violate subsection Twenty-ninth of this section. Board of Education v. Mescher, 310 Ky. 453 , 220 S.W.2d 1016, 1949 Ky. LEXIS 954 ( Ky. 1949 ).

The mere fact that a legislative enactment works to the benefit of some and is sponsored by persons interested by no means makes that act special legislation. Board of Education v. Mescher, 310 Ky. 453 , 220 S.W.2d 1016, 1949 Ky. LEXIS 954 ( Ky. 1949 ).

KRS 132.670 , providing the Department of Revenue (now Revenue Cabinet) authority to provide personnel and other assistance to aid county tax commissioner in tax reappraisal on petition by county on order of the fiscal court, is not unconstitutional under this section on the ground that there is no assurance that such action will be taken by all counties. Borders v. Cain, 252 S.W.2d 903, 1952 Ky. LEXIS 1042 ( Ky. 1952 ).

Law providing termination of water service to customers not paying sanitation district service charges is not unconstitutional under this section as special legislation. Covington v. Sanitation Dist. of Campbell & Kenton Counties, 301 S.W.2d 885, 1957 Ky. LEXIS 488 ( Ky. 1957 ).

The milk marketing act is not unconstitutional as being prohibited special legislation. Kentucky Milk Marketing & Anti-Monopoly Com. v. Borden Co., 456 S.W.2d 831, 1969 Ky. LEXIS 5 ( Ky. 1969 ).

An ordinance that authorizes all vehicles engaged in a funeral procession to proceed through or against red traffic lights is not class legislation which is forbidden by this section. Newman v. Lee, 471 S.W.2d 293, 1971 Ky. LEXIS 229 ( Ky. 1971 ).

KRS 427.010(4), which denies to debtors bankruptcy exemptions in property subject to consensual liens, clearly lies beyond any of the 29 enumerated types of “special legislation” specifically prohibited by this section and is therefore “general legislation” well within the province of the Legislature to enact. In re Bennett, 36 B.R. 893, 1984 Bankr. LEXIS 6282 (Bankr. W.D. Ky. 1984 ).

47.Special Laws.

Act amending law which made sheriff ex officio member of county board of election commissioners, so as to provide that in counties containing second-class cities the Circuit Court clerk, instead of the sheriff, shall be a member of the board, was unconstitutional as providing special law where general law can be made applicable. Droege v. McInerney, 120 Ky. 796 , 87 S.W. 1085, 27 Ky. L. Rptr. 1137 , 1905 Ky. LEXIS 153 ( Ky. 1905 ).

Barbering is not such a business as warranted a law putting it into a class by itself and visiting on barbers a penalty more severe and different than those imposed by another section of the act on others following their usual occupations on Sunday. The law violated subsection Twenty-ninth of this section. Stratman v. Commonwealth, 137 Ky. 500 , 125 S.W. 1094, 1910 Ky. LEXIS 594 ( Ky. 1910 ).

Law providing for different authorities to administer motor vehicle registration in different counties depending on county population is in violation of this section as special or local legislation. Nuetzel v. State Tax Com., 205 Ky. 124 , 265 S.W. 606, 1924 Ky. LEXIS 74 ( Ky. 1924 ).

Law creating a county budget system but exempting counties having a commission form of government is violative of this section as special legislation, since it is based on a classification for which there is no natural or distinctive reason, all county-governing bodies discharging identical duties. Felts v. Linton, 217 Ky. 305 , 289 S.W. 312, 1926 Ky. LEXIS 90 ( Ky. 1926 ).

Requirement of law that counties containing a city of the fifth class support and maintain a community hospital is special legislation and unconstitutional, since it is based on a classification of counties, which is without distinctive or natural reason. Community Hospital v. Barren County Fiscal Court, 244 Ky. 672 , 52 S.W.2d 896, 1932 Ky. LEXIS 518 ( Ky. 1932 ).

Law which established office of district detective in all judicial districts composed of two (2) counties having a population of 100,000 or more according to the 1930 United States census is unconstitutional as special legislation, since only one (1) district had such a population in 1930 and no other district could ever qualify, the operation of the law being limited by the population as of a specific date. Harlan County v. Brock, 246 Ky. 372 , 55 S.W.2d 49, 1932 Ky. LEXIS 775 ( Ky. 1932 ).

Act that provided for the reimbursement of property owners of the city of Grayson for street improvement assessments paid by them in the construction of a street by the city to connect with a primary state highway was special legislation and violated subsection Twenty-ninth of this section. Commonwealth v. Grayson, 278 Ky. 450 , 128 S.W.2d 770, 1939 Ky. LEXIS 436 ( Ky. 1939 ).

An act providing for issuance of a veterinarian’s license to a named individual without examination violated this section as being a special law, within the meaning of subsection Twenty-ninth of this section, where a general law could be made applicable to all other persons similarly situated. Reid v. Robertson, 304 Ky. 509 , 200 S.W.2d 900, 1947 Ky. LEXIS 643 ( Ky. 1947 ).

The failure of the division of forestry of the Department of Conservation to place itself and its employees within the application of the compensation act does not, on the theory of granting redress to a claimant against the state, justify the action of the General Assembly in attempting to apply retroactively to a particular person and to no other the substantive provisions of an existing general law and contravenes the letter and spirit of subsection Twenty-ninth of this section. Department of Conservation v. Sowders, 244 S.W.2d 464, 1951 Ky. LEXIS 1220 ( Ky. 1951 ).

Law that applied only to cities of the first class and imposed on an abutting property owner liability for injuries resulting from failure to repair defects in a sidewalk was special legislation and, as such, unconstitutional under this section, since there was no reasonable or proper distinction between cities of different sizes which in this instance justified the arbitrary classification imposed and a general law could readily apply. Louisville v. Klusmeyer, 324 S.W.2d 831, 1959 Ky. LEXIS 396 ( Ky. 1959 ).

Law that required proof of payments of ad valorem before registration receipts for motor vehicles could be issued, as it pertained to vehicles required to be licensed by county clerks, was special legislation in violation of subsection Twenty-ninth of this section, since three (3) classifications of motor vehicles were specifically excluded from operation of such law. Department of Revenue ex rel. Scent v. Williams, 351 S.W.2d 875, 1961 Ky. LEXIS 186 ( Ky. 1961 ).

KRS 242.1292 , providing for special precinct elections in second-class cities on the question of prohibition, does not deal with government organizations or structure; accordingly, it does not fall within the exception provided by Const., § 156 to the prohibitions against local and special legislation contained in this section and Const., § 60. United Dry Forces v. Lewis, 619 S.W.2d 489, 1981 Ky. LEXIS 260 ( Ky. 1981 ).

The Uniform Residential Landlord and Tenant Act (KRS 383.505 to 383.715 ), which was limited by KRS 383.715 to apply only to counties containing cities of the first class and urban-county governments, was special legislation within the prohibition of the Kentucky Constitution and was therefore invalid since the act only applied in two (2) of the 120 counties in the state and the problems of public health, economic waste and substandard dwelling dealt with by the act were no less important in the other 118 counties in the Commonwealth. Miles v. Shauntee, 664 S.W.2d 512, 1983 Ky. LEXIS 282 ( Ky. 1983 ).

Where the only apparent basis for KRS 413.135 is that a special class faced with a growing exposure to litigation, lobbied for a statute limiting their liability, there is no social or economic basis presented to justify a special class, and other groups similarly situated do not share in their legislative windfall. Therefore, KRS 413.135 is in fundamental conflict with the fifth clause of this section and its historical development. Tabler v. Wallace, 704 S.W.2d 179, 1985 Ky. LEXIS 291 ( Ky. 1985 ), cert. denied, 479 U.S. 822, 107 S. Ct. 89, 93 L. Ed. 2d 41, 1986 U.S. LEXIS 3436 (U.S. 1986).

KRS 189A.070 , governing license revocations for operating a motor vehicle while under the influence of alcohol, does not fail the “rational basis test” of equal protection, it does not constitute special legislation in contravention of this section, it does not violate Const., § 3, and it does not contravene the prohibition against cruel and unusual punishment found in the Eighth Amendment to the United States Constitution and Const., § 17. Praete v. Commonwealth, 722 S.W.2d 602, 1987 Ky. App. LEXIS 416 (Ky. Ct. App. 1987).

Special legislation is that which favors a special interest to the detriment of the rest of society; it is not legislation which is merely designed to further a specific purpose. Yeoman v. Commonwealth Health Policy Bd., 983 S.W.2d 459, 1998 Ky. LEXIS 140 ( Ky. 1998 ).

Individual counties and cities were authorized to adopt the provisions of the Uniform Residential Landlord Tenant Act (URLTA), KRS 383.500 et seq., and such a limited and local adoption did not lend itself to a conclusion that the Legislature intended a sweeping modification of the common law; to the contrary, such a piecemeal abrogation of the common law would have violated the constitutional provisions against local or special legislation. Miller v. Cundiff, 245 S.W.3d 786, 2007 Ky. App. LEXIS 143 (Ky. Ct. App. 2007).

KRS 164.7901 , which provided scholarship money to individual students who attended the university’s pharmacy school, was a special legislation in contravention of Ky. Const. § 59 because in restricting scholarships to those attending the university’s pharmacy school, the Kentucky General Assembly failed to treat equally all members of the pharmacy student class, precisely the type of special privilege and favoritism that § 59 condemned. Univ. of the Cumberlands v. Pennybacker, 308 S.W.3d 668, 2010 Ky. LEXIS 97 ( Ky. 2010 ).

48.Workers’ Compensation.

The interpretation of KRS 342.740 and KRS 342.730 , prior to the 1976 amendment of the latter, to allow minimum weekly benefits for permanent, partial disability was not unconstitutional. Yocum v. Gantley, 566 S.W.2d 176, 1978 Ky. App. LEXIS 517 (Ky. Ct. App. 1978).

The pre-1994 version of KRS 342.732 does not constitute special legislation in violation of this section. Leeco, Inc. v. Asher, 919 S.W.2d 227, 1996 Ky. App. LEXIS 36 (Ky. Ct. App. 1996); Leeco, Inc. v. Brock, 919 S.W.2d 229, 1996 Ky. App. LEXIS 32 (Ky. Ct. App. 1996); Leeco, Inc. v. Asher, 919 S.W.2d 232, 1996 Ky. App. LEXIS 31 (Ky. Ct. App. 1996); Leeco, Inc. v. Caldwell, 919 S.W.2d 234, 1996 Ky. App. LEXIS 41 (Ky. Ct. App. 1996); Leeco, Inc. v. Sizemore, 919 S.W.2d 237, 1996 Ky. App. LEXIS 54 (Ky. Ct. App. 1996).

Legislature’s purpose for enacting KRS 342.732 was to encourage coal workers who have contracted occupational pneumoconiosis but who have not as yet sustained a significant respiratory impairment to leave the industry before they become disabled and the means by which the Legislature sought to accomplish this was by providing for retraining incentive benefits, therefore KRS 342.732 does not amount to special legislation in violation of this section. Kem Coal Co. v. Baker, 918 S.W.2d 236, 1996 Ky. App. LEXIS 37 (Ky. Ct. App. 1996).

The two (2) year limitation period provided for by the 1996 amendment to KRS 342.125(3) applied to an injury which occurred before the effective date of the amendment and did not constitute special legislation with regard to the regulation of labor, trade, mining, or manufacturing. Brooks v. University of Louisville Hosp., 33 S.W.3d 526, 2000 Ky. LEXIS 198 ( Ky. 2000 ).

Ky. Rev. Stat. Ann. § 342.750(6) did not violate Ky. Const. §§ 59 and 60 because it did not apply to a particular individual, object or locale, but applied statewide to all employers and employees. Calloway Cty. Sheriff's Dep't v. Woodall, 607 S.W.3d 557, 2020 Ky. LEXIS 300 ( Ky. 2020 ).

Statutory amendment, which terminated workers’ compensation income benefits when the recipient reached the age of 70 or four years from the date of injury or last injurious exposure, whichever event occurred last, was not unconstitutional because the amendment was not special legislation as it did not identify an individual, object, or locale. Cates v. Kroger, 2021 Ky. LEXIS 311 (Ky. Aug. 26, 2021).

49.Special Legislation.

Former KRS 65.115 is unconstitutional as special legislation in violation of this section and Const., § 60. Monticello Co. v. Natural Resources & Envtl. Protection Cabinet, 864 S.W.2d 921, 1993 Ky. App. LEXIS 65 (Ky. Ct. App. 1993).

The mere fact that the legislative treatment of coal workers’ pneumoconiosis is different from that of other occupational pneumoconiosis does not make it arbitrary or unfair to either group where the legislative history provides distinctive and natural reasons for classifying them separately; therefore, KRS 342.732 is not unconstitutional as special legislation. Kentucky Harlan Coal Co. v. Holmes, 872 S.W.2d 446, 1994 Ky. LEXIS 6 ( Ky. 1994 ), overruled in part, Vision Mining, Inc. v. Gardner, 364 S.W.3d 455, 2011 Ky. LEXIS 177 ( Ky. 2011 ).

KRS 216B.020 , which grants a limited exemption from the Certificate of Need (CON) requirement of KRS 216B.061 does not violate this section and Const., § 60 as a “special act” since the legislation treats all members within the class of existing health facilities equally and provides them all with the same opportunity to take advantage of the CON exemption at the same cost with the same time constraints. St. Luke Hosp. v. Health Policy Bd., 913 S.W.2d 1, 1996 Ky. App. LEXIS 4 (Ky. Ct. App. 1996).

Under Ky. Const. § 59, S.B. 86 was not unconstitutional special or retroactive legislation, as KRS 304.50-005 defined the class and provided it was applicable to all members; there were distinctive and natural reasons supporting the classification, which was met by the nature of self-insured groups, the similarity of such groups and the legitimate legislative interest in regulating the risks and liabilities of injured employees and their members. There was nothing indicating that S.B. 86 would apply only to the plaintiff group if there were other workers’ compensation self-insured groups. Curtis Green & Clay Green, Inc. v. Clark, 318 S.W.3d 98, 2010 Ky. App. LEXIS 89 (Ky. Ct. App. 2010).

2017 Ky. Acts 1 applies to all collective bargaining agreements entered into on or after January 9, 2017, with the exception of certain employees covered or exempted by federal law; with the exceptions required by federal law, it applies to all employers and all employees, both public and private, it does not single out any particular union, industry or employer, and it applies statewide. Zuckerman v. Bevin, 565 S.W.3d 580, 2018 Ky. LEXIS 502 ( Ky. 2018 ).

2017 Ky. Acts 1 does not violate the constitution because the legislature clearly established a rational basis for the Act, to promote economic development, to promote job growth, and to remove Kentucky’s economic disadvantages in competing with neighboring states. Zuckerman v. Bevin, 565 S.W.3d 580, 2018 Ky. LEXIS 502 ( Ky. 2018 ).

Purpose of the section is not to prevent the legislature from enacting any laws concerning labor, trade, mining or manufacturing. That would be absurd; rather, the intent is for any acts touching these subjects be general acts. Zuckerman v. Bevin, 565 S.W.3d 580, 2018 Ky. LEXIS 502 ( Ky. 2018 ).

50.Tax on Physicians’ Gross Revenues.

Two percent (2%) tax on physicians’ gross revenues utilized to obtain federal matching money to support Kentucky Medicaid provided for in House Bill 1 [Enact. Act 1993 (2nd Ex. Sess.), ch. 2], did not violate Const., § 59. Revenue Cabinet v. Smith, 875 S.W.2d 873, 1994 Ky. LEXIS 34 (Ky.), cert. denied, 513 U.S. 1000, 115 S. Ct. 509, 130 L. Ed. 2d 417, 1994 U.S. LEXIS 8026 (U.S. 1994).

51.Justification.

Justification under Const., § 59 equates to reasonable justification under Const., §§ 2 and 3. Revenue Cabinet v. Smith, 875 S.W.2d 873, 1994 Ky. LEXIS 34 (Ky.), cert. denied, 513 U.S. 1000, 115 S. Ct. 509, 130 L. Ed. 2d 417, 1994 U.S. LEXIS 8026 (U.S. 1994).

52.Health Care Legislation.

Health care legislation which provided for wide-ranging health care reforms, including, but not limited to, creation of a Health Policy Board, provider arbitration, certificate of need procedures, insurance reform, medical education and medical taxation, was not special legislation, notwithstanding that a private foundation was actively involved in the drafting and passage of the bill and that it was granted special privileges and emoluments, since there were clear social and economic goals which the bill was designed to further. Yeoman v. Commonwealth Health Policy Bd., 983 S.W.2d 459, 1998 Ky. LEXIS 140 ( Ky. 1998 ).

53.Utilities.

KRS 278.183 is not invalid special legislation since it is uniform upon the class to which it applies, the class in question is that of electric utilities and not utility costs, and the statute does not single out any utility for special treatment. Kentucky Indus. Util. Customers, Inc. v. Kentucky Utils. Co., 983 S.W.2d 493, 1998 Ky. LEXIS 165 ( Ky. 1998 ).

54.Insurance.

The Unfair Claims Settlement Practices Act is not contrary to this section and Section 60 of the Constitution of Kentucky, which prohibit the enactment of special legislation. Farmland Mut. Ins. Co. v. Johnson, 36 S.W.3d 368, 2000 Ky. LEXIS 122 ( Ky. 2000 ).

55.Liquidated Damages.

KRS 382.365 is not unconstitutional under the Due Process Clause and Ky. Const. § 2 in providing a severe penalty as a mortgagor has a duty to act reasonably and in good faith and the mortgagor’s rights flow from a contract, in which there is an implied covenant of good faith and fair dealing; further, the exclusion of line of credit and revolving credit plan mortgages from KRS 382.365 does not violate Ky. Const. § 59. Union Planters Bank, N.A. v. Hutson, 210 S.W.3d 163, 2006 Ky. App. LEXIS 170 (Ky. Ct. App. 2006).

Cited:

Paramino Lumber Co. v. Marshall, 309 U.S. 370, 60 S. Ct. 600, 84 L. Ed. 814, 1940 U.S. LEXIS 1056 (U.S. 1940); Louisville & N. R. Co. v. Siler, 186 F. 176, 1911 U.S. App. LEXIS 5131 (C.C.D. Ky. 1911 ); Louisville v. Louisville R. Co., 281 F. 353, 1922 U.S. App. LEXIS 2083, 1922 U.S. App. LEXIS 2084 (6th Cir. Ky. 1922 ); National Accounting Co. v. Dorman, 11 F. Supp. 872, 1935 U.S. Dist. LEXIS 1484 (D. Ky. 1935 ); Lawrence v. Louisville, 96 Ky. 595 , 29 S.W. 450, 16 Ky. L. Rptr. 672 , 1895 Ky. LEXIS 131 ( Ky. 1895 ); Lewis v. Brandenburg, 105 Ky. 14 , 47 S.W. 862, 20 Ky. L. Rptr. 1011 , 1898 Ky. LEXIS 2 38 ( Ky. 1898 ); Gastenau v. Commonwealth, 108 Ky. 473 , 56 S.W. 705, 22 Ky. L. Rptr. 157 , 1900 Ky. LEXIS 61 ( Ky. 1900 ); Lawson v. Commonwealth, 66 S.W. 1010, 23 Ky. L. Rptr. 1983 , 1902 Ky. LEXIS 54 6 (Ky. Ct. App. 1902); Kirk v. Roberson, 76 S.W. 183, 25 Ky. L. Rptr. 633 (1903); Hancock v. Bingham, 102 S.W. 341, 31 Ky. L. Rptr. 427 (1907); Carrithers v. Shelbyville, 126 Ky. 769 , 104 S.W. 744, 31 Ky. L. Rptr. 1166 , 1907 Ky. LEXIS 92 ( Ky. 1907 ); Earle v. Latonia Agricultural Ass'n, 127 Ky. 578 , 106 S.W. 312, 32 Ky. L. Rptr. 469 , 32 Ky. L. Rptr. 586 , 1907 Ky. LEXIS 171 ( Ky. 1907 ); Grinstead v. Kirby, 110 S.W. 247, 33 Ky. L. Rptr. 287 (1908); Brady v. Brannon, 134 Ky. 769 , 121 S.W. 679, 1909 Ky. LEXIS 438 ( Ky. 1909 ); Board of Council v. Raum, 141 Ky. 198 , 132 S.W. 1019, 1910 Ky. LEXIS 466 ( Ky. 1910 ); Madden v. Meehan, 151 Ky. 220 , 151 S.W. 681, 1912 Ky. LEXIS 798 ( Ky. 1912 ); Kenton Water Co. v. Covington, 156 Ky. 569 , 161 S.W. 988, 1913 Ky. LEXIS 489 ( Ky. 1913 ); Board of Levee Comm'rs v. Johnson, 178 Ky. 287 , 199 S.W. 8, 1917 Ky. LEXIS 748 ( Ky. 1917 ) ( Ky. 1917 ); Shipp v. Rodes, 196 Ky. 523 , 245 S.W. 157, 1922 Ky. LEXIS 565 ( Ky. 1922 ); Coleman v. Hurst, 226 Ky. 501 , 11 S.W.2d 133, 1928 Ky. LEXIS 121 ( Ky. 1928 ); Richardson v. Mason Const. Co., 235 Ky. 17 , 29 S.W.2d 615, 1930 Ky. LEXIS 3 02 ( Ky. 1930 ); Fox v. Petty, 244 Ky. 385 , 51 S.W.2d 260, 1932 Ky. LEXIS 446 ( Ky. 1932 ); Talbott v. Kentucky State Board of Education, 244 Ky. 826 , 52 S.W.2d 727, 1932 Ky. LEXIS 516 ( Ky. 1932 ); Robertson v. Hopkins County, 247 Ky. 129 , 56 S.W.2d 700, 1933 Ky. LEXIS 3 49 ( Ky. 1933 ); Great Atlantic & Pacific Tea Co. v. Kentucky Tax Com., 278 Ky. 367 , 128 S.W.2d 581, 1939 Ky. LEXIS 406 ( Ky. 1939 ); Keller v. Kentucky Alcoholic Beverage Countrol Board, 279 Ky. 272 , 130 S.W.2d 821, 1939 Ky. LEXIS 2 93 ( Ky. 1939 ); Dumesnil v. Reeves, 283 Ky. 563 , 142 S.W.2d 132, 1940 Ky. LEXIS 370 ( Ky. 1940 ); Burrow v. Kapfhammer, 284 Ky. 753 , 145 S.W.2d 1067, 1940 Ky. LEXIS 577 ( Ky. 1940 ); Talbott v. Thomas, 286 Ky. 786 , 151 S.W.2d 1, 1941 Ky. LEXIS 277 ( Ky. 1941 ); Beauchamp v. Henning, 292 Ky. 557 , 166 S.W.2d 427, 1942 Ky. LEXIS 78 ( Ky. 1942 ); Sherrard v. Jefferson County Board of Education, 294 Ky. 469 , 171 S.W.2d 963, 1942 Ky. LEXIS 2 ( Ky. 1942 ); Inter-County Rural Electric Co-operative Corp. v. Reeves, 294 Ky. 458 , 171 S.W.2d 978, 1943 Ky. LEXIS 446 ( Ky. 1943 ); Cotton v. Walton-Verona Independent Graded School Dist., 295 Ky. 478 , 174 S.W.2d 712, 1943 Ky. LEXIS 262 ( Ky. 1943 ); Commonwealth v. Tate, 297 Ky. 826 , 181 S.W.2d 418, 1944 Ky. LEXIS 820 ( Ky. 1944 ); Louisville v. Presbyterian Orphans Home Soc., 299 Ky. 566 , 186 S.W.2d 194, 1945 Ky. LEXIS 469 ( Ky. 1945 ); Fraysure v. Kentucky Unemployment Compensation Com., 305 Ky. 164 , 202 S.W.2d 377, 1947 Ky. LEXIS 709 ( Ky. 1947 ); Williams v. Board for Louisville & Jefferson County Children's Home, 305 Ky. 440 , 204 S.W.2d 490, 1947 Ky. LEXIS 825 ( Ky. 1947 ); Manning v. Sims, 308 Ky. 587 , 213 S.W.2d 577, 1948 Ky. LEXIS 864 ( Ky. 1948 ); Cornett v. Clements, 309 Ky. 80 , 216 S.W.2d 417, 1948 Ky. LEXIS 1076 ( Ky. 1948 ); Keck v. Manning, 313 Ky. 433 , 231 S.W.2d 604, 1950 Ky. LEXIS 897 ( Ky. 1950 ); Board of Education v. Board of Education, 250 S.W.2d 1017, 1952 Ky. LEXIS 897 ( Ky. 1952 ); Daly v. Look, 267 S.W.2d 77, 1954 Ky. LEXIS 827 ( Ky. 1954 ); Wooley v. Spalding, 293 S.W.2d 563, 1956 Ky. LEXIS 73 ( Ky. 1956 ); Blackburn v. Maxwell Co., 305 S.W.2d 112, 1957 Ky. LEXIS 297 ( Ky. 1957 ); Commonwealth, Dep't of Highways v. Meyers, 307 S.W.2d 179, 1957 Ky. LEXIS 75 ( Ky. 1957 ); Dearing v. McCormack, 352 S.W.2d 197, 1961 Ky. LEXIS 196 ( Ky. 1961 ); Riddle v. Howard, 357 S.W.2d 705, 1962 Ky. LEXIS 139 ( Ky. 1962 ); Freeman v. Danville Tobacco Board of Trade, Inc., 380 S.W.2d 215, 1964 Ky. LEXIS 284 ( Ky. 1964 ); Hobbs v. Markey, 398 S.W.2d 54, 1965 Ky. LEXIS 39 ( Ky. 1965 ); Otto v. Kosofsky, 476 S.W.2d 626, 1971 Ky. LEXIS 64 ( Ky. 1971 ); Gay v. Board of Registration Comm'rs, 466 F.2d 879, 1972 U.S. App. LEXIS 7729 (6th Cir. Ky. 1972 ); Holsclaw v. Stephens, 507 S.W.2d 462, 1973 Ky. LEXIS 3 ( Ky. 1973 ); United Dry Forces v. Citizens for Progressive Community, 635 S.W.2d 478, 1982 Ky. LEXIS 272 ( Ky. 198 2 ); Clay v. Terrill, 670 S.W.2d 492, 1984 Ky. App. LEXIS 507 (Ky. Ct. App. 1984); Louisville v. Miller, 697 S.W.2d 164, 1985 Ky. App. LEXIS 646 (Ky. Ct. App. 1985); Howard v. Salyer, 695 S.W.2d 420, 1985 Ky. LEXIS 247 ( Ky. 1985 ); Massie v. Persson, 729 S.W.2d 448, 1987 Ky. App. LEXIS 444 (Ky. Ct. App. 1987); Hayes v. State Property & Bldgs. Com., 731 S.W.2d 797, 1987 Ky. LEXIS 217 ( Ky. 1987 ); McKee v. Cutter Laboratories, Inc., 866 F.2d 219, 1989 U.S. App. LEXIS 722 (6th Cir. Ky. 1989 ); Nucor Corp. v. General Electric Co., 812 S.W.2d 136, 1991 Ky. LEXIS 54 ( Ky. 1991 ).

Notes to Unpublished Decisions

1.Workers’ Compensation.

Unpublished decision: KRS 342.125(8), which limited the period in which an employee could reopen a claim after December 31, 1996, afforded the employee a reasonable four-year period after December 12, 1996 in which to assert a right to increased compensation, and did not violate Ky. Const. § 59(24), as the provision served a legitimate purpose. Johnson v. Gans Furniture Indus., Inc., 114 S.W.3d 850, 2003 Ky. LEXIS 204 ( Ky. 2003 ).

Opinions of Attorney General.

Where the general assembly passed a joint resolution authorizing an individual to sue the Commonwealth and the Department of Highways but the resolution became lost and failed to get enrolled and sent to the Governor’s office, there is no way the individual involved can pursue his claim because the resolution violated this section and, even if the resolution had been properly enrolled and sent to the Governor’s office, the individual involved could not have recovered in the courts. OAG 61-629 .

A system of tax collection whereby an automobile on which the motor vehicle license is to be renewed, and which has an outstanding personal property tax bill against it will not be registered or renewed by the county until such time as the taxes are satisfied, would not be legal. OAG 70-700 .

The water pollution control commission cannot arbitrarily set standards which provide a greater burden or provide greater benefits for citizens of one part of the state and not the other, but if facts reasonably differentiate a class or locality from the general public or the state at large, the regulation will not run afoul of the constitutional provision. OAG 71-110 .

The provisions of KRS 61.710 requiring financial disclosure by any employee of a daily newspaper with a circulation of 50,000 or more published in Kentucky who either orally or in writing contributes to the editorial policy of the newspaper and by any employee of a radio or television station that is owned in common with such a newspaper who directly or indirectly contributes to the editorial policy of the station are unconstitutional under this section and sections 3 and 60 of the Constitution as establishing an arbitrary classification and as special legislation. OAG 72-289 .

The fiscal court can, by appropriate ordinance, establish a merit system for county employees if the ordinance is not in conflict with the county police force merit system or the fire department merit system and providing that said ordinance is not otherwise in conflict with constitutional or statutory provisions. OAG 73-829 .

The county clerk has no statutory or constitutional authority to impose the condition of showing a tax receipt to prove payment of property taxes before issuing a vehicle registration license plate since KRS 186.035 (repealed) was found to be unconstitutional as special legislation. OAG 74-3 ; 74-34.

The coal severance tax imposed by KRS 143.010 to 143.990 , as distributed to the counties pursuant to KRS 42.300 (repealed), is not unconstitutional in violation of this section or Ky. Const., §§ 3, 51, 177 or 181. OAG 75-76 .

The Department of Fish and Wildlife Resources cannot require a person to be a member of a nonprofit corporation as a prerequisite to using the shooting ranges at a certain wildlife area since such requirement would be an unlawful endorsement of such nonprofit corporation to the exclusion of other private corporations, commercial or nonprofit, and would be illegal and in violation of the Constitution, and since there is no basis for such a classification, the requirement would violate §§ 59 and 60 of the Kentucky Constitution. OAG 76-617 .

The provisions of House Bill 514, enacted by the regular session of the 1978 Kentucky General Assembly, (Chapter 372, KRS 81.015 ) are applicable only to the Fairdale area of Jefferson County and purport to designate that specific area as an “unincorporated urban place” within the meaning of KRS 177.365 to 177.368 (KRS 177.367 and 177.368 repealed), thereby by-passing the statutory procedure set forth in those provisions which are applicable to all other areas seeking such designation, and is probably unconstitutional as being in violation of subsection (29) of this section and § 60 of the Kentucky Constitution. OAG 78-394 .

KRS 186.230(9) is unconstitutional because the classification set out therein is arbitrary and, consequently, is in violation of Ky. Const., § 2 and this section. OAG 79-445 .

It is not lawful to pay group insurance for part of the county employees and not all of them since, for purposes of hospitalization insurance, all county employees would be in the same class and discrimination cannot be made against persons in the same class. OAG 81-188 .

KRS 290.295 (now repealed) did not violate any constitutional provisions, even though the effect of the section was to permit credit unions consisting of state employees to merge under the provisions of KRS Chapter 271A (now repealed or renumbered in KRS Chapter 271B), which only requires the affirmative vote of a majority of the shareholders of each such credit union desiring to merge, while the only manner in which the members of other types of credit unions could effectively unite their credit unions was by dissolution under KRS 290.290 (now repealed), a prerequisite of which was a four-fifths (4/5) affirmative vote of the shareholders. OAG 82-467 .

Neither KRS 186.193 nor 186.232 support an arbitrary classification in violation of this section and § 2 of the Constitution; these statutes apply equally to all vehicles and trailers which are to be operated on the highways of this state. OAG 84-339 .

Where the state has occupied the field of prohibitory legislation on a particular subject, local government lacks authority to legislate with respect thereto; thus, a county may not enact an ordinance requiring all mopeds operated within the county to display a sticker showing that the vehicle may only be operated by a person having a valid motor vehicle operator’s license. OAG 84-380 .

There is a reasonable distinction which justifies the separate treatment given to the salaries of beginning teachers in the state-supported vocational schools, the state school for the deaf, and the state school for the blind, and therefore KRS 163.032 is not “special” legislation in violation of either this section or § 60 of the Kentucky Constitution. OAG 85-86 .

KRS 17.165 , which exempts church-sponsored day care centers from its requirement that child care centers request a sex crime records check as to their applicants for employment, is unconstitutional as special legislation in violation of this section and Ky. Const. § 60. OAG 87-13 .

The classifications contained in subsections (2) to (4) of KRS 230.377 , which are based upon population of counties, constitute an exception for one county without any rational basis for doing so. Such an arbitrary classification is special and local legislation and violates this section and Ky. Const., § 60. OAG 88-51 .

House Bill 89 (Acts 1992, ch. 105) contains objective standards for the Economic Development Finance Authority to use in certifying qualified counties and eligible companies involved in an economic job development program, which provides a reasonable classification that supports the application of the Act to the particular counties and companies that are certified; therefore the attorney general opined that House Bill 89 (Acts 1992, ch. 105) does not violate sections 59 and 60 of the state Constitution as to the enactment of local or special legislation. OAG 92-55 .

Limitation of the benefits under the enterprise zones program to ten (10) areas selected by the enterprise zone authority does in fact confer a special status on these areas, denying benefits they receive to other areas similarly situated; since unique benefits are provided to designated areas having no natural and reasonable basis to distinguish them from other similarly situated areas, and since the legislation in question exempts certain districts from the operation of general laws, the legislation is both local and special in character, and thus violative of this section and Ky. Const., § 60; therefore, the following sections are unconstitutional local or special legislation in contravention of this section and Ky. Const., § 60: KRS 154.45-001 , 154.45-020 , 154.45-030 , 154.45-040 , 154.45-050 , 154.45-070 , and 154.45-090 ; furthermore, although House Bill 66, [Acts 1992, ch. 35] enacted by the 1992 General Assembly, makes numerous changes to various provisions in the enterprise zone statutes, it did not affect the conclusion of unconstitutionality. OAG 92-86 .

Acts 1994, ch. 87 (KRS 42.700 (now repealed) and amendments to KRS 21A.140 and 311.610 ) is unconstitutional as it is violative of subdivision (15) of this section, as special legislation, in that there is no rational basis for the singling out of physicians and attorneys to pay for medical malpractice insurance for charitable health care facilities and certain of those volunteering at such facilities. OAG 95-21 .

The General Assembly may permit referenda on local school curriculum; however, in doing so, the General Assembly must not violate equal protection provisions and special and local legislation provisions of the Kentucky Constitution. OAG 00-3 .

Research References and Practice Aids

Cross-References.

Practice in courts of continuous session, KRS ch. 451.

Kentucky Bench & Bar.

Palmore, A Summary of Significant Decisions by the Supreme Court of Kentucky April 1982-April 1983, Vol. 47, No. 3, July 1983, Ky. Bench & Bar 14.

Stipanowich, Kentucky’s “No-Action” Statute: Recalled to Life?, Volume 51, No. 3, Summer 1987 Ky. Bench & B. 11.

Tobergte, The Impact of Kentucky’s Present Constitution Upon Business Growth & Development, Volume 51, No. 3, Summer 1987 Ky. Bench & B. 21.

Kentucky Law Journal.

Ziegler, A Primer on Administrative Rules and Rule-Making in Kentucky, 67 Ky. L.J. 103 (1978-79).

Kentucky Law Survey, Morris, Municipal Law, 70 Ky. L.J. 287 (1981-82).

Kentucky Law Survey, Grise, Torts, 71 Ky. L.J. 307 (1982-83).

Snyder and Irland, The Separation of Governmental Powers Under the Constitution of Kentucky: A Legal and Historical Analysis of L.R.C. v. Brown, 73 Ky. L.J. 165 (1984-85).

Comments, Design for Challenge: The Kentucky Statute of Repose for Improvements to Real Property, 73 Ky. L.J. 1143 (1984-85).

Lewis, Jural Rights under Kentucky’s Constitution: Realities Grounded in Myth, 80 Ky. L.J. 953 (1992).

Weigand and Farr, Part of the Moving Stream: State Constitutional Law, Sodomy, and Beyond, 81 Ky. L.J. 449 (1992-93).

Bratt, A Primer on Kentucky Intestacy Laws, 82 Ky. L.J. 29 (1993-94).

Northern Kentucky Law Review.

Comments, Separation of Church and State: Education and Religion in Kentucky, 6 N. Ky. L. Rev. 125 (1979).

Comments, Reda Pump, a Division of TRW, Inc. v. Finck: An Update on Kentucky Product Liability Law, 14 N. Ky. L. Rev. 395 (1988).

Note, Facing the Economic Challenges of the Eighties — The Kentucky Constitution and Hayes v. The State Property and Buildings Commission of Kentucky, 15 N. Ky. L. Rev. 645 (1988).

Wintersheimer, State Constitutional Law, 20 N. Ky. L. Rev. 591 (1993).

Schechter, Survey of Kentucky Family Law Cases, 20 N. Ky. L. Rev. 645 (1993).

Busald and Tankersley, Survey of Kentucky Tort Law: 1991-92, 20 N. Ky. L. Rev. 687 (1993).

Wintersheimer, State Constitutional Law Survey, 21 N. Ky. L. Rev. 257 (1994).

Notes, Restoration of the Collateral Source Rule in Kentucky: A Review of O’Bryan v. Hedgespeth, 23 N. Ky. L. Rev. 357 (1996).

Treatises

Petrilli, Kentucky Family Law, Court Procedure, § 23.1.

§ 60. General law not to be made special or local by amendment — No special powers or privileges — Law not to take effect on approval of other authority than General Assembly — Exceptions.

The General Assembly shall not indirectly enact any special or local act by the repeal in part of a general act, or by exempting from the operation of a general act any city, town, district or county; but laws repealing local or special acts may be enacted. No law shall be enacted granting powers or privileges in any case where the granting of such powers or privileges shall have been provided for by a general law, nor where the courts have jurisdiction to grant the same or to give the relief asked for. No law, except such as relates to the sale, loan or gift of vinous, spirituous or malt liquors, bridges, turnpikes or other public roads, public buildings or improvements, fencing, running at large of stock, matters pertaining to common schools, paupers, and the regulation by counties, cities, towns or other municipalities of their local affairs, shall be enacted to take effect upon the approval of any other authority than the General Assembly, unless otherwise expressly provided in this Constitution.

NOTES TO DECISIONS

See note to Const., § 59 under heading 10. â”Unreasonable, Board of Education of Jefferson County v. Board of Education of Louisville, 472 S.W.2d 496, 1971 Ky. LEXIS 200 (1971).

See notes to Const., § 59 under headings of 4. Application, 5. Classification, 6. —Population, 7. —Cities, 25. Taxation, 32. —Compensation, 33. —Fees, 35. Elections.

1.Purpose.

The purpose of the constitutional inhibition in Const., § 59 and this section is to require that all laws upon a subject shall operate alike upon all individuals and corporations. Jefferson County Police Merit Bd. v. Bilyeu, 634 S.W.2d 414, 1982 Ky. LEXIS 260 ( Ky. 1982 ).

2.Legislative Authority.

Law making it unlawful to maintain industrial school without consent of majority of voters in precinct where school is to be maintained made establishment of industrial school by corporation organized to maintain schools for colored people depend upon votes of citizens of precinct where school was to be established and violated prohibition against enactment of laws to take effect on approval of any other authority than legislature. Columbia Trust Co. v. Lincoln Institute of Kentucky, 138 Ky. 804 , 129 S.W. 113, 1910 Ky. LEXIS 138 ( Ky. 1910 ).

Act providing that compensation for commissioned officers of militia shall be same as that of corresponding ranks in United States army when they are in active service with troops was valid, since the law does not delegate to the congress of the United States authority to fix the compensation of state militia officers but merely adopts such compensation as a scale. James v. Walker, 141 Ky. 88 , 132 S.W. 149, 1910 Ky. LEXIS 404 ( Ky. 1910 ).

Law providing for punishment for use of milk bottles and other containers by persons other than those by whom they are branded and making the act apply only to those brands which are registered does not violate provision that no law shall be made to take effect upon approval of any other authority than General Assembly for, while act does not operate until persons file their trademarks under it, it is effective from time of the enactment. Commonwealth v. Goldburg, 167 Ky. 96 , 180 S.W. 68, 1915 Ky. LEXIS 818 ( Ky. 1915 ).

Law imposing upon foreign insurance companies the same license tax which shall be imposed by the laws of their domicile on Kentucky insurance companies doing business in the state of such insurer’s domicile does not violate this section, for law goes into effect on approval by the General Assembly, though the conditions under which it shall apply depend upon the legislatures of the foreign states. Clay v. Dixie Fire Ins. Co., 168 Ky. 315 , 181 S.W. 1123, 1916 Ky. LEXIS 543 ( Ky. 1916 ).

Since establishment of bathrooms in connection with private industries was not within exceptions to rule in this section that legislature could not delegate its powers of legislation, act by which certain industrial employers were to provide bathrooms for their employees, upon affirmative vote of 30 per cent or more of such employees, was violative of this section. Commonwealth v. Beaver Dam Coal Co., 194 Ky. 34 , 237 S.W. 1086, 1922 Ky. LEXIS 98 ( Ky. 1922 ).

Act providing for the construction of a war memorial is not in conflict with this section because its taking effect is conditioned on the approval of the electorate and donors. Hunter v. Louisville, 204 Ky. 562 , 265 S.W. 277, 1924 Ky. LEXIS 552 ( Ky. 1924 ).

Law making violation of rules adopted by mine owners and approved by the chief mine inspector effective upon such approval and their violation punishable as a misdemeanor is an unconstitutional delegation of legislative power. Anderson's Adm'r v. Granville Coal Co., 205 Ky. 111 , 265 S.W. 472, 1924 Ky. LEXIS 47 ( Ky. 1924 ).

Where act does not lay down a standard or guide for regulations but clearly indicates that certain requirements are the only ones of that type intended, specific power granted to administrative authority to make regulations does not include power to make by regulation other requirements than those specifically made by legislature. Bloemer v. Turner, 281 Ky. 832 , 137 S.W.2d 387, 1939 Ky. LEXIS 43 ( Ky. 1939 ).

An act which merely grants discretion to an administrative authority as to whether or not the act will be used does not delegate legislative power, nor does its taking effect depend upon the approval of any authority other than the General Assembly. Johnson v. Commonwealth, 291 Ky. 829 , 165 S.W.2d 820, 1942 Ky. LEXIS 329 ( Ky. 1942 ).

Law that authorized state departments to employ attorneys when the departments deemed it necessary was not an unconstitutional delegation of legislative power, nor did it confer absolute and arbitrary power, nor was it an act whose taking effect depended upon the approval of any other authority than the General Assembly. Johnson v. Commonwealth, 291 Ky. 829 , 165 S.W.2d 820, 1942 Ky. LEXIS 329 ( Ky. 1942 ).

Provision of appropriation bill giving governor and other officials power to determine existence of emergency and to expend moneys appropriated for emergency use does not violate this section. Commonwealth ex rel. Meredith v. Johnson, 292 Ky. 288 , 166 S.W.2d 409, 1942 Ky. LEXIS 73 ( Ky. 1942 ).

Safety regulation prohibiting operation of a motion picture theater in a building the main floor of which was more than four (4) feet above the adjoining grade level was the result of an unconstitutional delegation of legislative power by the legislature to the division or director of insurance. Goodpaster v. Foster, 296 Ky. 614 , 178 S.W.2d 29, 1944 Ky. LEXIS 597 ( Ky. 1944 ).

In establishment of administrative boards and agencies, legislature was required by this section to establish principles and policies and leave to such agencies only details of administration. Young v. Willis, 305 Ky. 201 , 203 S.W.2d 5, 1947 Ky. LEXIS 773 ( Ky. 1947 ).

This section prohibited acts whose effect and operation depended not upon discretion of legislature but upon discretion of another. Young v. Willis, 305 Ky. 201 , 203 S.W.2d 5, 1947 Ky. LEXIS 773 ( Ky. 1947 ).

Wage and hour law relative to women and minors laid down policies and established standards by which commissioner and wage board had to abide, notwithstanding granting of certain discretion to commissioner, and thus did not delegate legislative powers contrary to this section. Young v. Willis, 305 Ky. 201 , 203 S.W.2d 5, 1947 Ky. LEXIS 773 ( Ky. 1947 ).

Law making the levy of a special school building fund tax dependent upon approval at an election by voters of the school district is not an unconstitutional delegation of legislative authority. Folks v. Barren County, 313 Ky. 515 , 232 S.W.2d 1010, 1950 Ky. LEXIS 919 ( Ky. 1950 ).

Law empowering the state department of revenue (now revenue cabinet) to furnish personnel and assistance in tax reappraisal by the county tax commissioner whenever the county, by order of its fiscal court, petitions for such a reappraisal is not an unconstitutional delegation of legislative authority. Borders v. Cain, 252 S.W.2d 903, 1952 Ky. LEXIS 1042 ( Ky. 1952 ).

The General Assembly has authority under this section to permit municipalities to change the organization and form of their government. Payne v. Davis, 254 S.W.2d 710, 1953 Ky. LEXIS 606 ( Ky. 1953 ).

The uniform support of dependents act does not violate this section, which prohibits a law being enacted to take effect upon the approval of any authority other than the general assembly, as by the act the legislature prescribes the conditions upon which the act applies. Duncan v. Smith, 262 S.W.2d 373, 1953 Ky. LEXIS 1090 ( Ky. 1953 ).

This section, in prohibiting the enactment of legislation to become effective upon any other authority than the general assembly, clearly does not exclude as acceptable other authority the voting public in those instances where, by express constitutional provision, legislation is permitted or required to be submitted to the voters for approval. Walton v. Carter, 337 S.W.2d 674, 1960 Ky. LEXIS 363 ( Ky. 1960 ).

This section does not prohibit some power being vested in bodies other than legislature so long as delegating authority retains right to revoke such power. Commonwealth v. Associated Industries of Kentucky, 370 S.W.2d 584, 1963 Ky. LEXIS 76 ( Ky. 1963 ). See Lovern v. Brown, 390 S.W.2d 448, 1965 Ky. LEXIS 350 ( Ky. 1965 ).

Division of boating (division of water patrol) regulation providing that vessels should not operate, moor, or be used within 100 feet of certain dam generator water exhaust chutes, was not invalid as depending for its effectiveness upon approval by authority other than General Assembly. Lovern v. Brown, 390 S.W.2d 448, 1965 Ky. LEXIS 350 ( Ky. 1965 ).

The provisions of former law authorizing the commissioner to exempt certain physicians from the patient compensation fund and to fix the rate of surcharges, were not unconstitutional on their faces and, if properly implemented, would not violate this section. McGuffey v. Hall, 557 S.W.2d 401, 1977 Ky. LEXIS 533 ( Ky. 1977 ).

The provision of former law regarding limiting the number of members insured in the patient compensation fund did not constitute an enactment becoming effective at the discretion of persons other than the legislature. McGuffey v. Hall, 557 S.W.2d 401, 1977 Ky. LEXIS 533 ( Ky. 1977 ).

Under Kentucky Supreme Court precedents, H.B. 389(4) 2000 Reg. Sess. ( Ky. 2000 ), which amended a provision of the Judicial Retirement Act, KRS 21.450(3), was clearly an unconstitutional delegation, as the unintelligible statute had neither “an intelligible principle,” nor standards controlling the exercise of administrative discretion, and the Kentucky Supreme Court concluded that Ky. H.B. 389(4), subsequently codified at KRS 21.450(3), was unconstitutional because it violated the nondelegation doctrine embodied in Ky. Const. §§ 27, 28, 29 and 60. Bd. of Trs. of the Judicial Form Ret. Sys. v. AG, 132 S.W.3d 770, 2003 Ky. LEXIS 238 ( Ky. 2003 ).

Legislation passed by the Kentucky General Assembly lawfully which amended the power of the Governor of the Commonwealth of Kentucky to respond to emergencies did not violate the Kentucky Constitution because localities, schools, businesses were permitted to make choices that conformed to local conditions or individual choice. Cameron v. Beshear, 2021 Ky. LEXIS 240 (Ky. Aug. 21, 2021).

3.Powers or Privileges.

Law passed pursuant to Const., § 156, granting cities of the second class the power to condemn land for public purposes, does not conflict with the prohibition in this section against grants of special rights or privileges where such shall have been provided for by a general law. Shipp v. Lexington, 212 Ky. 702 , 279 S.W. 1094, 1926 Ky. LEXIS 221 ( Ky. 1926 ).

Where attorney general had filed suit against secretary of state contesting constitutionality of absent voters’ law and, at time suit was filed, there was no law providing for the employment of special counsel by a state officer or agency in a case in which the attorney general had an adverse interest, secretary of state had authority to employ special counsel and a legislative resolution providing for payment of fee to such counsel therefore did not violate this section, as being a law granting special powers and privileges in a case where general powers and privileges were provided for by a general law. Miller v. O'Connell, 304 Ky. 720 , 202 S.W.2d 406, 1947 Ky. LEXIS 716 ( Ky. 1947 ).

4.Special or Local Laws.

Since a review of the legislation that enacted present subsection (5) of KRS 230.377 in 1988 as subsection (3) discloses no legislative history concerning intertrack wagering in Kentucky and the title of the statute does not reflect a substantial justification for the distinction which affects Henderson County alone, subsection (5) of KRS 230.377 is determined to be unconstitutional as special or local law. Tri-City Turf Club, Inc. v. Public Protection & Regulation Cabinet, 806 S.W.2d 394, 1991 Ky. App. LEXIS 2 (Ky. Ct. App. 1991).

KRS 216B.020 , which grants a limited exemption from the Certificate of Need (CON) requirement of KRS 216B.061 does not violate Const., § 59 or this section as a “special act” since the legislation treats all members within the class of existing health facilities equally and provides them all with the same opportunity to take advantage of the CON exemption at the same cost with the same time constraints. St. Luke Hosp. v. Health Policy Bd., 913 S.W.2d 1, 1996 Ky. App. LEXIS 4 (Ky. Ct. App. 1996).

The Unfair Claims Settlement Practices Act is not contrary to Section 59 and this section of the Constitution of Kentucky, which prohibit the enactment of special legislation. Farmland Mut. Ins. Co. v. Johnson, 36 S.W.3d 368, 2000 Ky. LEXIS 122 ( Ky. 2000 ).

Although the Alcoholic Beverage Control Board incorrectly measured the 700-foot distance between licensees required by KRS 241.075 , because there was no rational basis to presume that the evils associated with a concentration of liquor licensees in a mixed-use area were any different in large or small cities, KRS 241.075 (2) did not satisfy the reasonable-relation element under either the Schoo or the United Dry Forces test; consequently, the statute is unconstitutional as local or special legislation in violation of Ky. Const. §§ 59 and 60. Louisville/Jefferson County Metro Gov't v. TDC Group, LLC, 2007 Ky. App. LEXIS 102 (Ky. Ct. App. Apr. 6, 2007), aff'd on other grounds, 283 S.W.3d 657, 2009 Ky. LEXIS 28 ( Ky. 2009 ).

Individual counties and cities were authorized to adopt the provisions of the Uniform Residential Landlord Tenant Act (URLTA), KRS 383.500 et seq., and such a limited and local adoption did not lend itself to a conclusion that the Legislature intended a sweeping modification of the common law; to the contrary, such a piecemeal abrogation of the common law would have violated the constitutional provisions against local or special legislation. Miller v. Cundiff, 245 S.W.3d 786, 2007 Ky. App. LEXIS 143 (Ky. Ct. App. 2007).

A State Health Plan issued by the Cabinet for Health and Family Services which established criteria for a pilot project to study the risks and benefits of allowing angioplasty at hospitals without immediate access to an open-heart surgery facility, was limited to one hospital in eastern Kentucky and one hospital in western Kentucky, and required the hospitals to be located thirty minutes from an on-site open-heart surgery center, was not unconstitutional, as: (1) such did not constitute special or local legislation, in violation of Ky. Const. §§ 59 and 60; (2) the classification was reasonable, natural, and consistent with the legitimate purpose of the government; and (3) it passed the rational basis test. St. Luke Hosps., Inc. v. Commonwealth, 254 S.W.3d 830, 2008 Ky. App. LEXIS 146 (Ky. Ct. App. 2008).

Although the Court of Appeals correctly upheld the Alcoholic Beverage Control Board’s reading of KRS 241.075(3), because the Board’s decision was premised on requiring that a measurement be taken along a route that was both lawful and safe, its distance measurement was proper, irrespective of legal pedestrian laws in KRS 189.570 ; accordingly, the constitutionality of KRS 241.075(3) under Ky. Const. §§ 59 and 60 should not have been addressed. Louisville/Jefferson County Metro Gov't v. TDC Group, LLC, 2009 Ky. LEXIS 35 ( Ky. 2009 ).

2017 Ky. Acts 1 applies to all collective bargaining agreements entered into on or after January 9, 2017, with the exception of certain employees covered or exempted by federal law; with the exceptions required by federal law, it applies to all employers and all employees, both public and private, it does not single out any particular union, industry or employer, and it applies statewide. Zuckerman v. Bevin, 565 S.W.3d 580, 2018 Ky. LEXIS 502 ( Ky. 2018 ).

2017 Ky. Acts 1 does not violate the constitution because the legislature clearly established a rational basis for the Act, to promote economic development, to promote job growth, and to remove Kentucky’s economic disadvantages in competing with neighboring states. Zuckerman v. Bevin, 565 S.W.3d 580, 2018 Ky. LEXIS 502 ( Ky. 2018 ).

Ky. Rev. Stat. Ann. § 342.750(6) did not violate Ky. Const. §§ 59 and 60 because it did not apply to a particular individual, object or locale, but applied statewide to all employers and employees. Calloway Cty. Sheriff's Dep't v. Woodall, 607 S.W.3d 557, 2020 Ky. LEXIS 300 ( Ky. 2020 ).

5.— Classifications.

A classification according to population and its density, and according to the division of cities into classes, is not a natural and logical classification and cannot be sustained unless the act pertains to the organization or government of cities and towns or is incident thereto, or unless the classification has a reasonable relation to the purpose of the act. Jefferson County Police Merit Bd. v. Bilyeu, 634 S.W.2d 414, 1982 Ky. LEXIS 260 ( Ky. 1982 ).

Although classifications according to population are allowable, where the subject is one of general application throughout the state and has been so treated in the general scheme of legislation, distinctions favorable or unfavorable to particular localities resting alone upon numbers and density of population would be violative of § 59 and this section of the Kentucky Constitution. Tri-City Turf Club, Inc. v. Public Protection & Regulation Cabinet, 806 S.W.2d 394, 1991 Ky. App. LEXIS 2 (Ky. Ct. App. 1991).

Former KRS 65.115 which excludes urban county governments, of which Lexington is the only one in Kentucky, and deprives them of the power of eminent domain that all other cities, counties and special districts enjoy is unconstitutional as special legislation in violation of Const., § 59 and this section. Monticello Co. v. Natural Resources & Envtl. Protection Cabinet, 864 S.W.2d 921, 1993 Ky. App. LEXIS 65 (Ky. Ct. App. 1993).

For a law to be constitutionally general and not special legislation, the classification must be based upon a reasonable and natural distinction which relates to the purpose of the act and the legislation must apply equally to all in a class. St. Luke Hosp. v. Health Policy Bd., 913 S.W.2d 1, 1996 Ky. App. LEXIS 4 (Ky. Ct. App. 1996).

KRS 241.075(2) is unconstitutional as local or special legislation in violation of Ky. Const. §§ 59 and 60. Therefore, it was improper to deny an applicant’s request for a retail liquor by the drink license merely because the license would have been located within 700 feet of another similarly situated establishment. O'Shea's-Baxter, LLC v. Commonwealth, 2013 Ky. App. LEXIS 1 (Ky. Ct. App. Jan. 4, 2013, sub. op., 2013 Ky. App. Unpub. LEXIS 983 (Ky. Ct. App. Jan. 4, 2013).

6.— Cities and Towns.

Law providing that in actions by city of first class to enforce liens for cost of street improvements copies of the ordinance, contract and apportionment shall be prima facie evidence of every fact necessary to enable plaintiff to recover relates to matter affecting municipal government and is therefore valid, though special legislation, since Const., § 156 provides for classification of towns and cities and authorizes special legislation for purposes of municipal government. Richardson v. Mehler, 111 Ky. 408 , 63 S.W. 957, 23 Ky. L. Rptr. 917 , 1901 Ky. LEXIS 214 ( Ky. 1901 ).

This section did not mean that general law could not be passed in reference alone to cities of two (2) classes. Murphy v. Louisville, 114 Ky. 762 , 71 S.W. 934, 24 Ky. L. Rptr. 1574 , 1903 Ky. LEXIS 46 ( Ky. 1903 ).

Law providing that when any public improvement ordered to be constructed in city of first class is such that it may be lawfully constructed at cost of owners of adjacent land the cost thereof shall be apportioned against real estate owned by state in like manner as against any other land does not violate this section or Const., § 59, although there is only one city of first class within the state. Hager v. Gast, 119 Ky. 502 , 84 S.W. 556, 27 Ky. L. Rptr. 129 , 1905 Ky. LEXIS 25 ( Ky. 1905 ).

Cities of state having been divided by constitution into six classes each governed by special set of laws and such cities being authorized to impose occupation taxes, it is not necessary that same fees be imposed on persons engaged in same occupation in cities of different classes provided that fees imposed on particular trade, occupation, or profession in any class of cities are uniform. Hager v. Walker, 128 Ky. 1 , 107 S.W. 254, 32 Ky. L. Rptr. 748 , 1908 Ky. LEXIS 29 ( Ky. 1 908 ).

Act vesting escheated property within cities of first class in their boards of education for use of schools is not invalid as local or special legislation in violation of prohibition in this section against special or local act, though law relating to escheats provides that escheated property shall vest in commonwealth. Ky. v. Thomas' Admr, 140 Ky. 789 , 131 S.W. 797, 1910 Ky. LEXIS 362 (Ky. Ct. App. 1910).

This section, when construed with Const., § 156, authorized the enactment of law permitting any second-class city to adopt the commission form of government as provided therein to become effective upon its adoption by a particular city. Bryan v. Voss, 143 Ky. 422 , 136 S.W. 884, 1911 Ky. LEXIS 429 ( Ky. 1911 ).

Act providing that in every county where there is a third-class city not the county seat, which is more than ten miles distant, the circuit courts shall be held alternately between the county seat and such city, that any city coming within the act shall be entitled to its benefits and that when it appears to circuit judge that a city has made the necessary provisions for holding court terms shall be held therein was not violative of this section, the act being mandatory on its face and applying to cities similarly situated. Patterson v. Davis, 152 Ky. 530 , 153 S.W. 780, 1913 Ky. LEXIS 696 ( Ky. 1913 ).

Statutory transfer of a city from the fourth to the third class and continuance of the old city council in office until the election of their successors is not contrary to this section as special legislation. Tandy & Fairleigh Tobacco Co. v. Hopkinsville, 174 Ky. 189 , 192 S.W. 46, 1917 Ky. LEXIS 183 ( Ky. 1917 ).

Law requiring only in cities of the first or second class proper scaffolding in construction work is not unconstitutional under this section or Const., § 59. Jones v. Russell, 224 Ky. 390 , 6 S.W.2d 460, 1928 Ky. LEXIS 606 ( Ky. 1928 ).

Under this section and Const., § 59, law requiring support by counties containing a city of the fifth class of a community hospital is unconstitutional as a local or special law. Community Hospital v. Barren County Fiscal Court, 244 Ky. 672 , 52 S.W.2d 896, 1932 Ky. LEXIS 518 ( Ky. 1932 ).

Exemption by law of school districts containing fifth or sixth-class cities from the obligation of other school districts to furnish educational facilities for black pupils is unconstitutional as local or special legislation. Board of Education v. Board of Education, 264 Ky. 245 , 94 S.W.2d 687, 1936 Ky. LEXIS 324 ( Ky. 1936 ).

Where, in counties containing a city of the first class, the complexities of the tax commissioner’s office are such as to differentiate it from such offices in other counties, an amendment to the existing law providing for monthly advances to such tax commissioner for the expenses of his office is not a local or special law unconstitutional under this section. Shannon v. Wheeler, 268 Ky. 25 , 103 S.W.2d 718, 1937 Ky. LEXIS 422 ( Ky. 1937 ).

Law authorizing only cities of the first and third classes to assess state property for internal improvements is not unconstitutional under this section, since the bulk of the state’s property is situated within cities of these classes. Logan v. Louisville, 283 Ky. 518 , 142 S.W.2d 161, 1940 Ky. LEXIS 379 ( Ky. 1940 ).

In determining whether an act relating to a particular class of city is local and special legislation, this section must be considered in connection with Const., §§ 59 and 156. Mannini v. McFarland, 294 Ky. 837 , 172 S.W.2d 631, 1943 Ky. LEXIS 539 ( Ky. 1943 ).

Library law authorizing establishment of libraries only by cities and counties having a minimum assessed valuation of $5,000,000 did not violate this section, since public libraries are matters of statewide rather than local concern and therefore the classification of cities made by Const., § 156 was not applicable, and since assessed valuation had a direct bearing on ability to support a library and therefore furnished a reasonable basis for classification. Board of Trustees v. Newport, 300 Ky. 125 , 187 S.W.2d 806, 1945 Ky. LEXIS 801 ( Ky. 1945 ).

Act that created a special juvenile court in cities of the third class located more than ten miles from the county seat, in counties not having a circuit court of continuous session, violated this section, since there was no discernible reason for separately classifying such cities. Barry v. Giles, 300 Ky. 22 , 187 S.W.2d 827, 1945 Ky. LEXIS 800 ( Ky. 1945 ).

As KRS 96.171 to 96.188 apply to all cities of a certain class, they do not violate this section even if, at the time of passage, there was only one city in that class in a position to take advantage of the provision of these sections. Settle v. Jones, 306 Ky. 9 , 206 S.W.2d 59, 1947 Ky. LEXIS 946 ( Ky. 1947 ).

When this section and Const., § 160 are read together, the provision in the latter relating to terms of office of legislative boards is subject to the condition that the municipal form of government might be changed and the office abolished. Payne v. Davis, 254 S.W.2d 710, 1953 Ky. LEXIS 606 ( Ky. 1953 ).

KRS 96.182 , relating to city utilities, did not constitute special legislation. Perkins v. Frankfort, 276 S.W.2d 449, 1955 Ky. LEXIS 422 ( Ky. 1955 ).

The merger of city and county governments under KRS 67A.010 to 67A.040 (KRS 67A.040 now repealed) does not violate this section by delegation of legislative authority, as this section expressly exempts laws for the regulation by counties, cities and towns or other municipalities of their local affairs. Pinchback v. Stephens, 484 S.W.2d 327, 1972 Ky. LEXIS 148 ( Ky. 1972 ).

KRS 64.510 (repealed) and KRS 69.010 providing that only commonwealth’s attorneys whose districts contained a first- or second-class city or an urban county government shall receive an increase in compensation did not deny equal protection to those districts which did not contain either a first- or second-class city or an urban county government but had a population as large as some districts which did qualify since the problem of crime being greater in the former districts was a reasonable basis for classification. Commonwealth ex rel. Hancock v. Davis, 521 S.W.2d 823, 1975 Ky. LEXIS 162 ( Ky. 1975 ).

Although classifications according to population are allowable, where the subject is one of general application throughout the state and has been so treated in the general scheme of legislation, distinctions favorable or unfavorable to particular localities resting alone upon numbers and density of population would be violative of Const., § 59 and this section; an act based upon a classification merely according to classes of cities cannot be upheld unless it pertains to the organizations or government of the classified cities or unless the classification has a reasonable relation to the purpose of the act. Miles v. Shauntee, 664 S.W.2d 512, 1983 Ky. LEXIS 282 ( Ky. 1983 ).

7.— Counties.

Requirement under Const., § 106 that fees of county officers be regulated by law meant, under this section and Const., § 59, regulation by general law applicable alike to every officer of particular class. Alexander v. Owen County, 136 Ky. 420 , 124 S.W. 386, 1910 Ky. LEXIS 500 ( Ky. 1910 ). See Madison County Fiscal Court v. McChord, 145 Ky. 727 , 141 S.W. 377, 1911 Ky. LEXIS 945 ( Ky. 1911 ).

Act providing that in counties of over 250,000 population there shall be three magisterial districts, the fees from which shall go to the county general fund and the justices be paid a salary, is not unconstitutional as local or special legislation under this section or Const., § 59. Shaw v. Fox, 246 Ky. 342 , 55 S.W.2d 11, 1932 Ky. LEXIS 761 ( Ky. 1932 ).

Act providing that in counties with 75 or more drainage districts having construction cost of certain amount assessment for maintenance purposes should not exceed ten per cent of original investment but in all other counties assessment should not exceed certain lower percentage was unconstitutional as based on arbitrary classification. Withers v. Board of Drainage Comm'rs, 270 Ky. 732 , 110 S.W.2d 664, 1937 Ky. LEXIS 150 ( Ky. 1937 ).

Act relating to compensation and expenses of sheriff in county having an assessed valuation of more than $100,000,000, containing a population of less than 75,000, comprising a separate judicial district, and containing a second-class city did not violate this section, the elements of the classification having a logical and reasonable relation to the purpose of the act. Thompson v. Shipp, 298 Ky. 805 , 184 S.W.2d 245, 1944 Ky. LEXIS 1028 ( Ky. 1944 ).

Where an act relates to local county government, the amount of population and its density, the wealth of the community and the size of the cities in the county are proper and logical elements upon which to base a classification. Thompson v. Shipp, 298 Ky. 805 , 184 S.W.2d 245, 1944 Ky. LEXIS 1028 ( Ky. 1944 ).

The portion of former law regarding compensation of property value administrator’s office which required excess fees in counties containing a city of the first class to be paid into the state treasury was not subject to the criticism that it was local legislation inhibited by this section and Const., § 59. Jefferson County Fiscal Court v. Trager, 302 Ky. 361 , 194 S.W.2d 851, 1946 Ky. LEXIS 686 ( Ky. 1946 ).

The sanitation district law is not unconstitutional as class or special legislation, because it applies only to counties having cities of the first three classes, in view of the more serious sanitation and sewerage problems facing dwellers in the larger cities and suburban areas. Somsen v. Sanitation Dist. of Jefferson County, 303 Ky. 284 , 197 S.W.2d 410, 1946 Ky. LEXIS 828 ( Ky. 1946 ).

Section 156 of the constitution, classifying cities according to population for purposes of organization and government, constitutes an exception to Const., § 59 and this section; therefore, an act of the legislature limited to a city of a certain class and pertaining to municipal affairs is valid as being general rather than special legislation. Dieruf v. Louisville & Jefferson County Bd. of Health, 304 Ky. 207 , 200 S.W.2d 300, 1947 Ky. LEXIS 613 ( Ky. 1947 ).

Former law that fixed maximum compensation of county police officers at $25.00 per year in counties of less than 25,000 and $2,400 and up per year in counties over 70,000, was not unconstitutional as special or discriminatory legislation against the lesser populated counties which in effect would prevent the establishment of police forces in these counties, since the legislature obviously believed that in small counties such police force would only be needed in emergencies to supplement sheriff’s force and there being no requirement that such officers devote full time to their office. Metcalf v. Howard, 304 Ky. 498 , 201 S.W.2d 197, 1947 Ky. LEXIS 666 ( Ky. 1947 ).

Under this section and Const., § 144, act which provided for the composition of the fiscal court in all counties having a population of more than 75,000 was unconstitutional since it deprived the counties of their option as to the form of their county government. Billiter v. Nelson, 300 S.W.2d 790, 1957 Ky. LEXIS 473 ( Ky. 1957 ), overruled, Lackey v. Garner, 367 S.W.2d 257, 1963 Ky. LEXIS 17 ( Ky. 1963 ).

Law differentiating between counties on the basis of whether or not they had acquired voting machines in determining the state’s contribution to elections in such counties is not invalid under this section. State Property & Bldg. Com. v. Hays, 346 S.W.2d 3, 1961 Ky. LEXIS 277 ( Ky. 1961 ).

Provisions of KRS 68.180 to 68.195 , permitting fiscal court of county having population of at least 300,000 to impose occupational license tax and allowing credits against such tax for fees paid to first-class cities within such counties, did not constitute special legislation in contravention of this section or Const., § 59. Kupper v. Fiscal Court of Jefferson County, 346 S.W.2d 766, 1961 Ky. LEXIS 337 ( Ky. 1961 ).

Former law that permitted counties to maintain fire protection program did not violate this constitutional provision, since it was a general law authorizing any county to have a fire department and directing that a duplication of services shall be avoided in those instances in which a municipally maintained fire department exists within the county. Johnson v. Peak, 407 S.W.2d 692, 1966 Ky. LEXIS 171 ( Ky. 1966 ).

Since the plaintiffs were located in a county containing a city of the first class, they had no standing to raise the issue of the constitutionality of the possibility of a possible additional tax being imposed in counties other than those containing a city of the first class. Second Street Properties, Inc. v. Fiscal Court of Jefferson County, 445 S.W.2d 709, 1969 Ky. LEXIS 179 ( Ky. 1969 ).

There was no unconstitutional distinction in the use of tax revenue as between counties containing a city of the first class and all other counties, since the legislature had reason to provide an additional function for tourist and convention commissions in counties other than those containing a city of the first class. Second Street Properties, Inc. v. Fiscal Court of Jefferson County, 445 S.W.2d 709, 1969 Ky. LEXIS 179 ( Ky. 1969 ).

The subject matter of KRS 78.428 , removing certain officers from the protection of a merit system in only one county, is governmental in nature and is constitutional under Const., § 59 and this section. Jefferson County Police Merit Bd. v. Bilyeu, 634 S.W.2d 414, 1982 Ky. LEXIS 260 ( Ky. 1982 ).

The Uniform Residential Landlord and Tenant Act (KRS 383.505 to 383.715 ), which was limited by KRS 383.715 to apply only to counties containing cities of the first class and urban-county governments, was special legislation within the prohibition of the Kentucky Constitution and was therefore invalid since the act only applied in two (2) of the 120 counties in the state and the problems of public health, economic waste and substandard dwelling dealt with by the act were no less important in the other 118 counties in the commonwealth. Miles v. Shauntee, 664 S.W.2d 512, 1983 Ky. LEXIS 282 ( Ky. 1983 ).

8.— Elections.

Exemption by law of party nominations for certain offices from the compulsory features of the existing general primary election law is not unconstitutional as a local or special act. Stevenson v. Hardin, 238 Ky. 600 , 38 S.W.2d 462, 1931 Ky. LEXIS 288 ( Ky. 1931 ).

9.— — Local Option.

Act authorizing vote by people of any county on question of free turnpikes is not unconstitutional as special or local law, being expressly authorized by this section. Maysville & L. Turnpike Road Co. v. Wiggins, 104 Ky. 540 , 47 S.W. 434, 20 Ky. L. Rptr. 724 , 1898 Ky. LEXIS 189 ( Ky. 1898 ).

Act regulating time for holding local option elections in several units and differentiating between counties having cities of fourth class or larger and those not having cities as large as fourth class was not unconstitutional. Board of Trustees v. Scott, 125 Ky. 545 , 101 S.W. 944, 30 Ky. L. Rptr. 894 , 1907 Ky. LEXIS 313 ( Ky. 1907 ).

Law providing for separate local option elections in cities of first four (4) classes, either in a dry county or at time of countywide election in a wet county, did not violate this section. May v. Drake, 309 Ky. 819 , 219 S.W.2d 31, 1949 Ky. LEXIS 816 ( Ky. 1949 ).

KRS 242.125 , amending KRS 242.030 and 242.050 and permitting cities of first four (4) classes to decide for themselves whether or not to adopt prohibition, was not violative of this section as being special legislation, since such classification was reasonable in relation to subject matter and no discrimination was made between members of same class. McMullin v. Richmond City Council, 312 Ky. 430 , 227 S.W.2d 975, 1950 Ky. LEXIS 663 ( Ky. 1950 ).

KRS 242.1292 , providing for special precinct elections in second-class cities on the question of prohibition, does not deal with government organizations or structure; accordingly, it does not fall within the exception provided by Const., § 156 to the prohibitions against local and special legislation contained in Const., § 59 and this section. United Dry Forces v. Lewis, 619 S.W.2d 489, 1981 Ky. LEXIS 260 ( Ky. 1981 ).

Subdivision (10)(a) of KRS 242.1292 , which allows the city governing body of second-class cities to designate precincts as limited sale (“wet”) precincts, is clearly premised on a finding by the governing body that the economy of a certain precinct has been adversely affected by the prohibition against the sale of alcoholic beverages; accordingly, the subdivision bears a reasonable relationship to the purpose of the act, which is to help the precinct’s economy, and is constitutional. United Dry Forces v. Lewis, 619 S.W.2d 489, 1981 Ky. LEXIS 260 ( Ky. 1981 ).

Subdivision (10)(b) of KRS 242.1292 providing that the city governing body in second-class cities should order a local option election in a dry precinct upon petition of 33% of the voters bears no relationship to the statutory purpose of helping the precinct’s economy and is unconstitutional as special and local legislation, and elections held pursuant to that subdivision were void; however, because of the implied severability clause in KRS 446.090 , the remainder of KRS 242.1292 is constitutional. United Dry Forces v. Lewis, 619 S.W.2d 489, 1981 Ky. LEXIS 260 ( Ky. 1981 ).

10.— Escheatment.

Neither this section nor Const., § 59 invalidate the law providing that escheated property shall vest in a board of education for use and benefit of the public schools. Shanks v. Board of Education, 221 Ky. 470 , 298 S.W. 1111, 1927 Ky. LEXIS 754 ( Ky. 1927 ).

11.— Motor Vehicles.

Act prohibiting operation on highway of any motor truck or semi-trailer truck exceeding 18,000 pounds in gross weight was not violative of this section or Const., § 59 as being class legislation. Whitney v. Johnson, 37 F. Supp. 65, 1941 U.S. Dist. LEXIS 3654 (D. Ky.), aff'd, 314 U.S. 574, 62 S. Ct. 117, 86 L. Ed. 465, 1941 U.S. LEXIS 262 (U.S. 1941).

Motor vehicle law exempting nonresidents from registration and payment of license tax as provided therein, where they have already complied with similar laws of their own state, did not discriminate against citizens of this state. Newport v. Merkel Bros. Co., 156 Ky. 580 , 161 S.W. 549, 1913 Ky. LEXIS 478 ( Ky. 1913 ).

Exemption by law of vehicles owned by the United States or the commonwealth or political subdivisions thereof from a law limiting the weight, dimensions, speed and operation of motor trucks and semi-trailers is not prohibited by this section as local or special legislation. Whitney v. Fife, 270 Ky. 434 , 109 S.W.2d 832, 1937 Ky. LEXIS 87 ( Ky. 1937 ).

12.— Repeal.

While the constitution did not, by its own force, repeal any local option law in existence at the time of its adoption, it does not forbid the repeal of such laws by the general assembly, but on the contrary, it expressly authorizes the repeal of local or special acts. Commonwealth v. Hardin County Court, 99 Ky. 188 , 35 S.W. 275, 18 Ky. L. Rptr. 113 , 1896 Ky. LEXIS 67 ( Ky. 1896 ).

Act regarding assessment and valuation for taxes of corporate franchises and intangible property by cities of first and second classes expressly conferring upon city assessor authority to make such assessments did not violate this section by amending prior general revenue law, since such act directly repealed part of such prior law. Murphy v. Louisville, 114 Ky. 762 , 71 S.W. 934, 24 Ky. L. Rptr. 1574 , 1903 Ky. LEXIS 46 ( Ky. 1903 ).

Law authorizing pari-mutuel betting on horse races within the race course inclosure while races are being run is not unconstitutional as an indirect enactment by repeal of a portion of an existing act of local or special legislation. Commonwealth v. Kentucky Jockey Club, 238 Ky. 739 , 38 S.W.2d 987, 1931 Ky. LEXIS 321 ( Ky. 1931 ).

KRS 160.045 did not conflict with former law that provided for annexation of part of independent district by county district but was an additional or alternative method of transfer and therefore did not violate this section, which prohibits indirect enactment of special legislation by repeal of a general law. Board of Education v. Mescher, 310 Ky. 453 , 220 S.W.2d 1016, 1949 Ky. LEXIS 954 ( Ky. 1949 ).

13.— Rural Road Fund Allocation.

Although the allocation of the rural secondary road fund among all counties on the basis of rural population and rural road use, regardless of the amount of tax collected in each county, did not consider the over-all population of each county or the number of vehicles per mile of rural roads in accordance with the formulae for distribution of road funds prescribed by KRS 177.360 and KRS 179.410 , the allocation was not unconstitutionally arbitrary under § 2 of the constitution nor did it constitute special or local legislation as prohibited by this section or § 60, since those formulae were not so directly related to the public purpose of improving and maintaining rural roads as to require their inclusion in the basis used for allocation, the basis used was reasonably related to the public purpose, and the resulting classification was reasonable. Jefferson County v. King, 479 S.W.2d 880, 1972 Ky. LEXIS 320 ( Ky. 1972 ).

14.— Taxation.

Law which authorizes a municipality to assess corporate franchise for tax purposes is a legitimate exercise of the legislative power and does not violate the limitation in this section against special or local acts. Kentucky Heating Co. v. Louisville, 174 Ky. 142 , 192 S.W. 4, 1917 Ky. LEXIS 165 ( Ky. 1917 ), writ of error dismissed, 250 U.S. 653, 40 S. Ct. 53, 63 L. Ed. 1191, 1919 U.S. LEXIS 1804 (U.S. 1919).

Former law which authorized the fiscal court to levy tax for purpose of constructing and maintaining Campbell County courthouse violated Const., § 59 and this section which prohibit local and special legislative authorization of tax levies. Whitford v. Hehl, 612 S.W.2d 759, 1980 Ky. App. LEXIS 426 (Ky. Ct. App. 1980).

15.— Public Buildings.

KRS 107.360 is not invalid as requiring a vote of the people to take effect since this section expressly excluded from its prohibition laws relating to public buildings or improvements and the regulation by counties of their local affairs. Lowery v. Jefferson, 458 S.W.2d 168, 1970 Ky. LEXIS 167 ( Ky. 1970 ).

16.Statute of Limitations.

The three year statute of limitations for stock frauds provided by subsection (3) of KRS 292.480 is not unconstitutional under Const., § 59 and this section as a local law. Hutto v. Bockweg, 579 S.W.2d 382, 1979 Ky. App. LEXIS 389 (Ky. Ct. App. 1979).

Cited:

Pratt v. Breckinridge, 112 Ky. 1 , 23 Ky. L. Rptr. 1356 , 65 S.W. 136, 1901 Ky. LEXIS 286 ( Ky. 1 901 ); Hancock v. Bingham, 102 S.W. 341, 31 Ky. L. Rptr. 427 (1907); Madden v. Meehan, 151 Ky. 220 , 151 S.W. 681, 1912 Ky. LEXIS 798 ( Ky. 1912 ); Nuetzel v. State Tax Com., 205 Ky. 124 , 265 S.W. 606, 1924 Ky. LEXIS 74 ( Ky. 1924 ); McCown v. Gose, 244 Ky. 402 , 51 S.W.2d 251, 1932 Ky. LEXIS 441 ( Ky. 1932 ); Fox v. Petty, 244 Ky. 385 , 51 S.W.2d 260, 1932 Ky. LEXIS 446 ( Ky. 1932 ); Robertson v. Hopkins County, 247 Ky. 129 , 56 S.W.2d 700, 1933 Ky. LEXIS 3 49 ( Ky. 1933 ); Holt v. Clements, 265 Ky. 546 , 97 S.W.2d 397, 1936 Ky. LEXIS 531 ( Ky. 1936 ); Burrow v. Kapfhammer, 284 Ky. 753 , 145 S.W.2d 1067, 1940 Ky. LEXIS 577 ( Ky. 1940 ); Kenton County v. Covington, 287 Ky. 511 , 154 S.W.2d 540, 1941 Ky. LEXIS 58 1 ( Ky. 1941 ); Beauchamp v. Henning, 292 Ky. 557 , 166 S.W.2d 427, 1942 Ky. LEXIS 78 ( Ky. 1942 ); Webster v. Frankfort Housing Com., 293 Ky. 114 , 168 S.W.2d 344, 1943 Ky. LEXIS 559 ( Ky. 1943 ); Fraysure v. Kentucky Unemployment Compensation Com., 305 Ky. 164 , 202 S.W.2d 377, 1947 Ky. LEXIS 709 ( Ky. 1947 ); Henderson v. Thomy, 307 Ky. 783 , 212 S.W.2d 303, 1948 Ky. LEXIS 831 ( Ky. 1948 ); Manning v. Sims, 308 Ky. 587 , 213 S.W.2d 577, 1948 Ky. LEXIS 864 , 5 A.L.R.2d 1154 ( Ky. 1948 ); Cornett v. Clements, 309 Ky. 80 , 216 S.W.2d 417, 1948 Ky. LEXIS 1076 (Ky. 1948); Keck v. Manning, 313 Ky. 433 , 231 S.W.2d 604, 1950 Ky. LEXIS 897 ( Ky. 1950 ); Board of Education v. Board of Education, 250 S.W.2d 1017, 1952 Ky. LEXIS 897 ( Ky. 1952 ); Commonwealth v. McCoun, 313 S.W.2d 585, 1958 Ky. LEXIS 272 ( Ky. 1958 ); Dawson v. Hamilton, 314 S.W.2d 532, 1958 Ky. LEXIS 3 00 ( Ky. 1958 ); Harrod v. Meigs, 340 S.W.2d 601, 1960 Ky. LEXIS 58 ( Ky. 1960 ); Dearing v. McCormack, 352 S.W.2d 197, 1961 Ky. LEXIS 196 ( Ky. 1961 ); Riddle v. Howard, 357 S.W.2d 705, 1962 Ky. LEXIS 139 ( Ky. 1962 ); Hobbs v. Markey, 398 S.W.2d 54, 1965 Ky. LEXIS 39 ( Ky. 1965 ); Otto v. Kosofsky, 476 S.W.2d 626, 1971 Ky. LEXIS 64 ( Ky. 1971 ); Holsclaw v. Stephens, 507 S.W.2d 462, 1973 Ky. LEXIS 3 ( Ky. 1973 ); United Dry Forces v. Citizens for Progressive Community, 635 S.W.2d 478, 1982 Ky. LEXIS 272 ( Ky. 1982 ); Legislative Research Com. by Prather v. Brown, 664 S.W.2d 907, 1984 Ky. LEXIS 300 ( Ky. 1984 ); Clay v. Terrill, 670 S.W.2d 492, 1984 Ky. App. LEXIS 507 (Ky. Ct. App. 1984); Howard v. Salyer, 695 S.W.2d 420, 1985 Ky. LEXIS 247 ( Ky. 1985 ); Hayes v. State Property & Bldgs. Com., 731 S.W.2d 797, 1987 Ky. LEXIS 217 ( Ky. 1987 ); Lexington-Fayette Urban County Gov’t v. Smolcic, 142 S.W.3d 128, 2004 Ky. LEXIS 182 ( Ky. 2004 ).

Opinions of Attorney General.

The provisions of KRS 61.710 requiring financial disclosure by any employee of a daily newspaper with a circulation of 50,000 or more published in Kentucky who either orally or in writing contributes to the editorial policy of the newspaper and by any employee of a radio or television station that is owned in common with such a newspaper who directly or indirectly contributes to the editorial policy of the station are unconstitutional under this section and sections 3 and 59 of the constitution as establishing an arbitrary classification and as special legislation. OAG 72-289 .

There is a constitutional question as to passing an act whose effective date is subject to the vote of the people (where the act is not a tax act), but the legislature may pass an act authorizing a referendum and if the vote is favorable, the legislature could subsequently enact a statute that would carry out the mandate of the people’s vote, but the legislature could enact such a law even if the vote is unfavorable. OAG 75-599 .

A legislative attempt to give the union or the majority of miners at a given mine the authority to appoint or elect mine safety committee members who are required to be paid by the mine employer would clearly be prohibited as an unlawful delegation of legislative authority. OAG 76-337 .

The Department of Fish and Wildlife Resources cannot require a person to be a member of a nonprofit corporation as a prerequisite to using the shooting ranges at a certain wildlife area since such requirement would be an unlawful endorsement of such nonprofit corporation to the exclusion of other private corporations, commercial or nonprofit, and would be illegal and in violation of the Constitution, and since there is no basis for such a classification, the requirement would violate §§ 59 and 60 of the Kentucky Constitution. OAG 76-617 .

The provisions of House Bill 514, enacted by the regular session of the 1978 Kentucky General Assembly, (Ch. 372, KRS 81.015 ) are applicable only to the Fairdale area of Jefferson County and purport to designate that specific area as an “unincorporated urban place” within the meaning of KRS 177.365 and 177.366 , thereby by-passing the statutory procedure set forth in those provisions which are applicable to all other areas seeking such designation, and is probably unconstitutional as being in violation of § 59 (29) and this section of the Kentucky Constitution. OAG 78-394 .

The General Assembly may condition the effectiveness of the Kentucky coal legislation and implementing regulations upon the approval of the secretary of interior without violating any Kentucky constitutional section because of the supremacy clause of the United States Constitution and the necessity for enacting state strip mining legislation that will be in accord with the Federal Strip Mining Law of 1977. OAG 80-99 .

Former law regarding merger of credit unions did not violate any constitutional provisions, even though the effect of the law was to permit credit unions consisting of state employees to merge under the provisions of KRS Chapter 271A, which only requires the affirmative vote of a majority of the shareholders of each such credit union desiring to merge, while the only manner in which the members of other types of credit unions could effectively unite their credit unions is by dissolution under law regarding voluntary dissolution, a prerequisite of which is a four-fifths affirmative vote of the shareholders. OAG 82-467 .

There is a reasonable distinction which justifies the separate treatment given to the salaries of beginning teachers in the state-supported vocational schools, the state school for the deaf, and the state school for the blind, and therefore, KRS 163.032 is not “special” legislation in violation of either this section or § 59 of the Kentucky Constitution. OAG 85-86 .

KRS 17.165 , which exempts church-sponsored day care centers from its requirements that child care centers request a sex crime records check as to their applicants for employment, is unconstitutional as special legislation in violation of Const. § 59 and this section. OAG 87-13 .

The classifications contained in subsections (2) to (4) of KRS 230.377 , which are based upon population of counties, constitute an exception for one county without any rational basis for doing so. Such an arbitrary classification is special and local legislation and violates Const., § 59 and this section. OAG 88-51 .

House Bill 89 (Acts 1992, ch. 105) contains objective standards for the Economic Development Finance Authority to use in certifying qualified counties and eligible companies involved in an economic job development program, which provides a reasonable classification that supports the application of the Act to the particular counties and companies that are certified; therefore the Attorney General opined that House Bill 89 (Acts 1992, ch. 105) does not violate sections 59 and 60 of the state constitution as to the enactment of local or special legislation. OAG 92-55 .

Limitation of the benefits under the enterprise zones program to ten (10) areas selected by the enterprise zone authority does in fact confer a special status on these areas, denying benefits they receive to other areas similarly situated; since unique benefits are provided to designated areas having no natural and reasonable basis to distinguish them from other similarly situated areas, and since the legislation in question exempts certain districts from the operation of general laws, the legislation is both local and special in character, and thus violative of Const., § 59 and this section; therefore, the following sections are unconstitutional local or special legislation in contravention of Const., § 59 and this section: KRS 154.45-001 , 154.45-020 , 154.45-030 , 154.45-040 , 154.45-050 , 154.45-070 , and 154.45-090 ; furthermore, although House Bill 66 [Acts 1992, ch. 35], enacted by the 1992 General Assembly, makes numerous changes to various provisions in the enterprise zone statutes, it did not affect the conclusion of unconstitutionality. OAG 92-86 .

The General Assembly may permit referenda on local school curriculum; however, in doing so, the General Assembly must not violate equal protection provisions and special and local legislation provisions of the Kentucky Constitution. OAG 00-3 .

Research References and Practice Aids

Cross-References.

Local option on sale of liquor, KRS ch. 242.

Local option on stock running at large, KRS ch. 259.

Kentucky Bench & Bar.

Palmore, A Summary of Significant Decisions by the Supreme Court of Kentucky April 1982-April 1983, Vol. 47, No. 3, July 1983, Ky. Bench & Bar 14.

Kentucky Law Journal.

Schneider, Strip Mining in Kentucky, 59 Ky. L.J. 652 (1971).

Comments, The Urban County: Kentucky’s New Structure for Local Government, 62 Ky. L.J. 568 (1973-1974).

Kentucky Law Survey, Rogers and Sims, Administrative Law, 69 Ky. L.J. 489 (1980-81).

Kentucky Law Survey, Morris, Municipal Law, 70 Ky. L.J. 287 (1981-82).

Snyder and Irland, The Separation of Governmental Powers Under the Constitution of Kentucky: A Legal and Historical Analysis of L.R.C. v. Brown, 73 Ky. L.J. 165 (1984-85).

Lewis, Jural Rights under Kentucky’s Constitution: Realities Grounded in Myth, 80 Ky. L.J. 953 (1992).

Weigand and Farr, Part of the Moving Stream: State Constitutional Law, Sodomy, and Beyond, 81 Ky. L.J. 449 (1992-93).

Northern Kentucky Law Review.

Ziegler, Legitimizing the Administrative State: The Judicial Development of the Nondelegation Doctrine in Kentucky, 4 N. Ky. L. Rev. 87 (1977).

Note, Facing the Economic Challenges of the Eighties — The Kentucky Constitution and Hayes v. The State Property and Buildings Commission of Kentucky, 15 N. Ky. L. Rev. 645 (1988).

Wintersheimer, State Constitutional Law Survey, 21 N. Ky. L. Rev. 257 (1994).

Notes, Restoration of the Collateral Source Rule in Kentucky: A Review of O’Bryan v. Hedgespeth, 23 N. Ky. L. Rev. 357 (1996).

§ 61. Provision to be made for local option on sale of liquor — Time of elections.

The General Assembly shall, by general law, provide a means whereby the sense of the people of any county, city, town, district or precinct may be taken, as to whether or not spirituous, vinous or malt liquors shall be sold, bartered or loaned therein, or the sale thereof regulated. But nothing herein shall be construed to interfere with or to repeal any law in force relating to the sale or gift of such liquors. All elections on this question may be held on a day other than the regular election days.

Compiler’s Notes.

This section was impliedly repealed by the enactment in November 1919 of Const., § 226a, which prohibited the manufacture, sale, or transportation of intoxicating liquors. However, in November 1935, a proposal for the repeal of Const., § 226a and the re-enactment of this section was adopted.

NOTES TO DECISIONS

1.In General.

It is the function of the legislature to prepare the details of laws to be enacted to carry this section into effect. Board of Trustees v. Scott, 125 Ky. 545 , 101 S.W. 944, 30 Ky. L. Rptr. 894 , 1907 Ky. LEXIS 313 ( Ky. 1907 ).

This section, adopted in 1935, is the same as the original Const., § 61, which was repealed by implication by Const., § 226a which prohibited the manufacture, sale, or transportation of intoxicating liquors, which itself was repealed in 1935. Long v. Smith, 281 Ky. 512 , 136 S.W.2d 789, 1940 Ky. LEXIS 74 ( Ky. 1940 ).

2.Purpose.

The essential purpose of this section and the acts of the Legislature pursuant to the constitutional mandate is to give a means to the voters to impose prohibition. Howard v. Salyer, 695 S.W.2d 420, 1985 Ky. LEXIS 247 ( Ky. 1985 ).

3.Construction.

This section did not retain special laws conferring on justices of the peace jurisdiction over liquor offenses in particular counties. McTigue v. Commonwealth, 99 Ky. 66 , 35 S.W. 121, 17 Ky. L. Rptr. 1418 , 1896 Ky. LEXIS 55 ( Ky. 1896 ).

4.Elections.

In this section the word “election” was used in the sense provided in Const., § 147, which provision indicated clearly that such word was used in Const., § 148 to include questions submitted to the people, as otherwise there would be no need for permission given by this section. Belknap v. Louisville, 99 Ky. 474 , 36 S.W. 1118, 18 Ky. L. Rptr. 313 , 1896 Ky. LEXIS 122 ( Ky. 1896 ), overruled, Montgomery County Fiscal Court v. Trimble, 104 Ky. 629 , 47 S.W. 773, 20 Ky. L. Rptr. 827 , 1898 Ky. LEXIS 210 ( Ky. 1898 ), overruled, Board of Education v. Winchester, 120 Ky. 591 , 87 S.W. 768, 27 Ky. L. Rptr. 994 , 1905 Ky. LEXIS 139 ( Ky. 1905 ); Board of Education v. Winchester, 120 Ky. 591 , 87 S.W. 768, 27 Ky. L. Rptr. 994 , 1905 Ky. LEXIS 139 ( Ky. 1905 ).

This section did not nullify elections held prior to the adoption of the constitution under local laws then in force resulting in a vote against the sale of liquor and the sale of liquor remained unlawful in such counties until another election might be held. Stamper v. Commonwealth, 102 Ky. 33 , 42 S.W. 915, 19 Ky. L. Rptr. 1014 , 1897 Ky. LEXIS 64 ( Ky. 1897 ).

Law providing that elections for purpose specified in this section should not be held for any county, city, town, district, or precinct more often than once in every three years is valid. Commonwealth v. Bottoms, 57 S.W. 493, 22 Ky. L. Rptr. 410 , 1900 Ky. LEXIS 629 (Ky. Ct. App. 1900).

Under law providing that election for taking sense of people of any county, city, town, district, or precinct as to sale of liquor therein should not be held more often than once every three years, where an election in a county resulted in the ban on the sale of liquor, an election to take the sense of the voters of other subdivision of county cannot be held until expiration of three years from that time. Commonwealth v. Bottoms, 57 S.W. 493, 22 Ky. L. Rptr. 410 , 1900 Ky. LEXIS 629 (Ky. Ct. App. 1900).

Where local option law had been put in force in county, including defendant city, an election at which majority of voters in city voted that local option law should become inoperative in certain precincts thereof was equivalent to vote that liquors might be sold therein. C. B. George & Bro. v. Winchester, 118 Ky. 429 , 80 S.W. 1158, 26 Ky. L. Rptr. 170 , 1904 Ky. LEXIS 47 ( Ky. 1904 ).

Under this section and under law providing that on petition of voters equal to 25 per cent of votes cast in last general election in territory proposed to be affected county court should order election in territory specified in the petition, where petition was made for such an election in town lying in two counties, the county court of county in which greater part of town lay had jurisdiction to order it. Early v. Rains, 121 Ky. 439 , 106 Mo. App. 684, 89 S.W. 289, 28 Ky. L. Rptr. 415 , 1905 Ky. LEXIS 224 ( Ky. 1905 ).

This section leaves to legislature large measure of discretion and to guard against minority of voters calling for election for frivolous or improper reasons, it may provide that petitioner shall pay cost of proceeding in county court, including giving of notice of the election. Butler v. Fiscal Court of Jefferson County, 126 Ky. 146 , 103 S.W. 251, 31 Ky. L. Rptr. 597 , 1907 Ky. LEXIS 33 ( Ky. 1907 ).

The definition of the word “election” contained in Const., § 147, as including the submission of questions as well as the election of officers, applies wherever that word appears in the constitution. Morgan v. Goode, 151 Ky. 284 , 152 S.W. 584, 1912 Ky. LEXIS 820 ( Ky. 1912 ).

All elections, whether concerning decisions on questions submitted to the voters or the choice of officers by them, are controlled by the constitutional requirement for election by secret ballot. Ginsburg v. Giles, 254 Ky. 720 , 72 S.W.2d 438, 1934 Ky. LEXIS 146 ( Ky. 1934 ).

Since this section contained only provision authorizing holding of local option election on other than regular election day, and this section was repealed by adoption of Const., § 226a, then, notwithstanding constitutionality of local option law, such election could not be held on other than regular election day. Renfro v. Hamlin, 256 Ky. 192 , 75 S.W.2d 1067, 1934 Ky. LEXIS 381 ( Ky. 1934 ) (decision prior to repeal of Const., § 226a and re-enactment of this section).

Where, in local option election, question submitted to voters was phrased exactly as it was set out in statute, question was proper even though not phrased in words of this section. Laswell v. Cooper, 266 Ky. 524 , 99 S.W.2d 709, 1936 Ky. LEXIS 701 ( Ky. 1936 ).

Cost of local option election was necessary governmental expense. Cassady v. Jewell, 268 Ky. 643 , 105 S.W.2d 810, 1937 Ky. LEXIS 511 ( Ky. 1937 ). See McCrocklin v. Nelson County Fiscal Court, 174 Ky. 308 , 192 S.W. 494, 1917 Ky. LEXIS 197 ( Ky. 1917 ); Livingston County v. Crossland, 229 Ky. 733 , 17 S.W.2d 1018, 1929 Ky. LEXIS 836 ( Ky. 1929 ); Russell County Fiscal Court v. Russell County, 246 Ky. 529 , 55 S.W.2d 337, 1932 Ky. LEXIS 779 ( Ky. 1932 ); Breathitt County v. Cockrell, 250 Ky. 743 , 63 S.W.2d 920, 1933 Ky. LEXIS 764 ( Ky. 1933 ).

Local option election was not invalid where county budget provided no funds for it, since the law provided that the election should be held in accordance with general election laws with the costs borne by the county and it became the duty of the county to provide such costs as a necessary governmental expense. Cassady v. Jewell, 268 Ky. 643 , 105 S.W.2d 810, 1937 Ky. LEXIS 511 ( Ky. 1937 ).

Law providing for separate local option elections in cities of first four classes, either in a dry county or at time of countywide election in a wet county, did not violate this section. May v. Drake, 309 Ky. 819 , 219 S.W.2d 31, 1949 Ky. LEXIS 816 ( Ky. 1949 ).

KRS 242.125 , by permitting city of first four classes to annul vote of entire county in favor of prohibition, did not violate this section, since legislation had specific authority under this section to provide means for determining prohibition question. McMullin v. Richmond City Council, 312 Ky. 430 , 227 S.W.2d 975, 1950 Ky. LEXIS 663 ( Ky. 1950 ).

Where teetotallers asserted that results of any and all elections held pursuant to KRS 242.185(6) on a general election day were void under Ky. Const. § 61, they were wrong as Ky. Const. § 61 allowed local option elections to be held on regular election days as well as non-election days. Temperance League of Ky. v. Perry, 74 S.W.3d 730, 2002 Ky. LEXIS 95 ( Ky. 2002 ).

Under Ky. Const. § 61, the General Assembly was given the authority to determine policy and draft laws regulating alcohol, and to that end, the General Assembly drafted KRS 242.030 setting forth the requirements for a local option election about whether the sale of alcohol would be permitted and dictating that no local option election could be held in the same territory more than once in every three years. Accordingly, the precinct could not hold a local option election approximately five weeks after one had just been held, as KRS 242.010 barred counties within which the precincts were located from holding a local option election so soon after the last local option election. Grow Trigg, Inc. v. Trigg County, 344 S.W.3d 704, 2011 Ky. App. LEXIS 87 (Ky. Ct. App. 2011).

5.Law in Force.

A local prohibitory law in force when constitution was adopted, whether it took effect by legislative will or by submission to popular vote, continued in force except as modified by the general law until there was a vote under the general law in favor of the sale of liquor in the district or county. Thompson v. Commonwealth, 103 Ky. 685 , 45 S.W. 1039, 20 Ky. L. Rptr. 397 , 1898 Ky. LEXIS 106 (Ky.), different results reached on reh'g, 103 Ky. 693 , 46 S.W. 492 ( Ky. 1898 ).

When there was no local law in force prohibiting the sale of liquor in a city and general local option law had not been voted into operation therein, a general law prescribing penalty for selling liquor without license applied, and therefore an ordinance of the city which prohibited the sale of liquor therein and fixed the penalty for selling at a fine which was not less than that imposed by general law for selling without license was valid. Mullins v. Lancaster, 63 S.W. 475, 23 Ky. L. Rptr. 436 (1901).

Law punishing any person who should on Sunday keep open a bar for the sale of liquors or who should sell liquors, which law was in force at time of adoption of constitution, was not in violation of this section, since this section did not take away from legislature the police power which it had over the liquor traffic. Commonwealth ex rel. Barth v. McCann, 123 Ky. 247 , 94 S.W. 645, 29 Ky. L. Rptr. 707 , 1906 Ky. LEXIS 143 ( Ky. 1906 ).

6.— Repeal.

An act giving cities of fourth class power, by ordinance, to license, regulate, or restrain sale of liquors therein repeals a prohibitory law in force in any such cities. Brown v. Commonwealth, 98 Ky. 652 , 34 S.W. 12, 17 Ky. L. Rptr. 1216 , 1896 Ky. LEXIS 20 ( Ky. 1896 ).

Legislature is not barred by this section from repealing a law prohibiting the sale of liquor before an election shall be had on the question. Brown v. Commonwealth, 98 Ky. 652 , 34 S.W. 12, 17 Ky. L. Rptr. 1216 , 1896 Ky. LEXIS 20 ( Ky. 1896 ).

Part of this section providing that nothing therein shall be construed to repeal any law in force relating to the sale or gift of liquors applied to local law prohibiting the sale of liquor to be drunk in the district created by the act. Raubold v. Commonwealth, 54 S.W. 17, 21 Ky. L. Rptr. 1125 (1899).

Provision of town charter forbidding sale of liquor in the town, or within one mile thereof, was not repealed by constitution or by general local option law of 1894 except as to procedure and penalty and, with that exception, it remained in force until it became inoperative by vote of the people under the general local option law, especially as charter of towns of sixth class, to which town in question was since assigned, provided that no license to sell liquor should be granted in any town where sale of liquor was forbidden by law until such law be changed. Edmonson v. Commonwealth, 110 Ky. 510 , 62 S.W. 1018, 22 Ky. L. Rptr. 1902 , 1901 Ky. LEXIS 147 ( Ky. 1901 ).

This section did not repeal local laws prohibiting sale of liquor, but all such laws were modified by general local option laws as to procedure, amount of liquor permitted to be sold and penalty. Farris v. Commonwealth, 111 Ky. 236 , 63 S.W. 615, 23 Ky. L. Rptr. 580 , 1901 Ky. LEXIS 202 ( Ky. 1901 ). See McTigue v. Commonwealth, 99 Ky. 66 , 35 S.W. 121, 17 Ky. L. Rptr. 1418 , 1896 Ky. LEXIS 55 ( Ky. 1896 ); Eastham v. Commonwealth, 49 S.W. 795, 20 Ky. L. Rptr. 1639 , 1899 Ky. LEXIS 451 (Ky. Ct. App. 1899); Commonwealth v. Hurst, 62 S.W. 1024, 23 Ky. L. Rptr. 365 , 1901 Ky. LEXIS 437 (Ky. Ct. App. 1901); Mullins v. Lancaster, 63 S.W. 475, 23 Ky. L. Rptr. 436 (1901); Locke v. Commonwealth, 74 S.W. 654, 25 Ky. L. Rptr. 76 , 1903 Ky. LEXIS 372 (Ky. Ct. App. 1903); Commonwealth v. Yokeley, 96 S.W. 524, 29 Ky. L. Rptr. 799 (1906); Riley v. Commonwealth, 175 Ky. 33 , 193 S.W. 657, 1917 Ky. LEXIS 271 ( Ky. 1917 ).

A municipal charter granted to a municipality within boundaries of a local option precinct, prior to adoption of this section, and which vested in the municipal trustees the power to grant licenses to sell liquor, repealed the local option law, which previously existed in the precinct, within the limits of the city. Commonwealth v. Lemon, 76 S.W. 40, 25 Ky. L. Rptr. 522 (1903).

It was competent, under this section, for the legislature to provide by general law for repealing or modifying the existing local laws continued in force by the constitution and to allow this to be done by vote of such locality as the legislature elected to adopt. Board of Trustees v. Scott, 125 Ky. 545 , 101 S.W. 944, 30 Ky. L. Rptr. 894 , 1907 Ky. LEXIS 313 ( Ky. 1907 ).

Local prohibition laws were not repealed but were expressly continued in force by this section. Stamper v. Commonwealth, 103 S.W. 286, 31 Ky. L. Rptr. 707 (1907).

Vote in particular community in favor of local option under law then in force will not deprive legislature of right at any time to alter, amend, change, or repeal the law. Commonwealth v. Burk's Springs Distilling Co., 137 Ky. 224 , 125 S.W. 306, 1910 Ky. LEXIS 561 ( Ky. 1910 ).

The legislature may repeal or amend the local option act or any local prohibitory law. Board of Council v. Raum, 141 Ky. 198 , 132 S.W. 1019, 1910 Ky. LEXIS 466 ( Ky. 1910 ).

Local law adopted prior to constitution prohibited sale of liquor in Pike County, but provided that vote might be taken whether any prohibition law in force in any county or precinct, by virtue of special act, should become inoperative and such an election was held in certain precinct in Pike County, at which majority voted in favor of sale of liquors. The court held that such election repealed special act, insofar as it applied to that precinct, and legalized sale of liquor therein. Buskirk v. Commonwealth, 162 Ky. 118 , 172 S.W. 99, 1915 Ky. LEXIS 21 ( Ky. 1915 ).

By virtue of the saving clause of this section, act which prohibited the sale of liquor within a school district adopting the act remained in full force and effect, since it had not been repealed by the General Assembly. Ingram v. Commonwealth, 176 Ky. 706 , 197 S.W. 411, 1917 Ky. LEXIS 112 ( Ky. 1917 ).

7.Liquors.

Act making it unlawful, after local option election resulting in vote against sale of spirituous, vinous, or malt liquors, to sell any such liquors was not, in view of prior judicial construction of the words in prior laws on the subject, violated by sale of malt liquor containing less than two per cent of alcohol and nonintoxicating in largest quantity in which it may be drunk. Bowling Green v. McMullen, 134 Ky. 742 , 122 S.W. 823, 1909 Ky. LEXIS 446 ( Ky. 1909 ).

A city ordinance that prohibited nude or nearly nude dancing in local establishments licensed to sell liquor for consumption on the premises was within the Commonwealth’s broad power under the Twenty-first Amendment of the United States Constitution to regulate the sale of liquor within its boundaries. Newport v. Iacobucci, 479 U.S. 92, 107 S. Ct. 383, 93 L. Ed. 2d 334, 1986 U.S. LEXIS 20 (U.S. 1986), overruled in part, 44 Liquormart v. Rhode Island, 517 U.S. 484, 116 S. Ct. 1495, 134 L. Ed. 2d 711, 1996 U.S. LEXIS 3020 (U.S. 1996).

8.Local Divisions.

This section expressly required that matter of local option should be provided for by general law, under which people of state should have right to regulate and settle such matter for themselves in their local divisions and subdivisions. Commonwealth v. Hardin County Court, 99 Ky. 188 , 35 S.W. 275, 18 Ky. L. Rptr. 113 , 1896 Ky. LEXIS 67 ( Ky. 1896 ).

A vote in one of the subdivisions of the county does not deprive the whole of the county of the right given by the constitution to take a vote on the question. Smith v. Patton, 103 Ky. 444 , 45 S.W. 459, 20 Ky. L. Rptr. 165 , 1898 Ky. LEXIS 82 ( Ky. 1898 ).

This section should be construed to mean that the local units named should control within their own territory the question of prohibition and that each should have the privilege of saying conclusively that prohibition should prevail but not conclusively that it should not. Board of Trustees v. Scott, 125 Ky. 545 , 101 S.W. 944, 30 Ky. L. Rptr. 894 , 1907 Ky. LEXIS 313 ( Ky. 1907 ). See Brown & Proctor v. Hughes, 141 Ky. 695 , 133 S.W. 770, 1911 Ky. LEXIS 84 ( Ky. 1911 ).

Law provided that under this section elections should not be held for any county, town, district, or precinct more often than once every three years. It was held that the municipal divisions referred to were to be regarded as units and that a county election favoring the sale of liquor in the county did not bar for three years such election in a magisterial district within the county. Eggen v. Offutt, 128 Ky. 314 , 108 S.W. 333, 32 Ky. L. Rptr. 1350 , 1908 Ky. LEXIS 66 ( Ky. 1908 ).

County unit law, depriving units named in this section of the independent right to determine for themselves whether liquor should be sold within their respective territories and submitting that question to voters of entire county, was not unconstitutional. McAuliffe v. Helm, 157 Ky. 626 , 163 S.W. 1091, 1914 Ky. LEXIS 349 ( Ky. 1914 ).

The county unit law providing that when election is held in entire county and a majority of votes cast are against sale of intoxicants it shall not be lawful to sell liquor in any part of county did not violate this section. Welch v. Irvine, 158 Ky. 798 , 166 S.W. 611, 1914 Ky. LEXIS 721 ( Ky. 1914 ).

Under this section the city, town, district and precinct are each an independent unit with the right to control and regulate for itself the liquor traffic within its territory free from the dominion of any larger unit in the territory of which the smaller unit is a part. Herron v. McMurray, 303 Ky. 190 , 197 S.W.2d 55, 1946 Ky. LEXIS 803 ( Ky. 1946 ).

This section did not guarantee to any particular local unit the final say in matter of liquor sales, but rather left to legislative determinations the method to be used in reconciling conflicting decisions. McMullin v. Richmond City Council, 312 Ky. 430 , 227 S.W.2d 975, 1950 Ky. LEXIS 663 ( Ky. 1950 ).

Former subsection (4) of KRS 242.125 , that provided for local option election by one part of city (prior to 1966 amendment), violated this section, since such part was not one of local units designated by this section. Halcomb v. Faulkner, 238 S.W.2d 162, 1951 Ky. LEXIS 810 ( Ky. 1951 ).

9.Regulation.

The legislature is without authority, under this section and under Const., §§ 59 and 154, to prohibit citizen from having in his possession liquor for his own use, though it has power to regulate the sale of liquor or any other use of it which in itself is inimical to public health, morals, or safety. Commonwealth v. Campbell, 133 Ky. 50 , 117 S.W. 383, 1909 Ky. LEXIS 169 ( Ky. 1909 ).

Municipal ordinance barring issue of liquor license to person or for premises against which taxes or assessments were delinquent, where the liquor control act authorized even more stringent standards and conditions, was not invalid. Somerset v. Newton, 259 Ky. 195 , 82 S.W.2d 306, 1935 Ky. LEXIS 292 ( Ky. 1935 ).

Legislature has constitutional power to enact local option laws and, incident thereto, to prohibit the sale, barter, or loan of intoxicating liquors in dry territory, and a local option law is not unconstitutional because it may inconsistently permit wholesale liquor dealers to have warehouses in dry territory and ship liquor into wet territory but prohibit them from shipping liquor into dry territory. Meeks Motor Freight, Inc. v. Falls City Brewing Co., 268 Ky. 213 , 104 S.W.2d 421, 1937 Ky. LEXIS 433 ( Ky. 1937 ).

County ordinance provision prohibiting the sale of alcohol at adult entertainment establishments did not violate Ky. Const. § 61 because the ban was not more lenient than any of the statutes regulating alcohol and therefore the ordinance was a proper exercise of the county’s police power to regulate the sale of alcohol, as well as the conduct in adult entertainment businesses. Blue Movies, Inc. v. Louisville/Jefferson County Metro Gov't, 317 S.W.3d 23, 2010 Ky. LEXIS 101 ( Ky. 2010 ), cert. denied, 562 U.S. 1272, 131 S. Ct. 1617, 179 L. Ed. 2d 502, 2011 U.S. LEXIS 1991 (U.S. 2011).

10.Sale.

This section reveals a public policy that no restriction should be placed on intoxicating liquors except such as have necessary relation to their sale, barter, or loan and precludes a power to make an offense out of mere possession of liquor unattended by an intention to sell. Commonwealth v. Campbell, 133 Ky. 50 , 117 S.W. 383, 1909 Ky. LEXIS 169 ( Ky. 1909 ). See Commonwealth v. Smith, 163 Ky. 227 , 173 S.W. 340, 1915 Ky. LEXIS 192 ( Ky. 1915 ) ( Ky. 1915 ); Lakes v. Goodloe, 195 Ky. 240 , 242 S.W. 632, 1922 Ky. LEXIS 342 ( Ky. 1922 ).

Under this section licenses to engage in liquor business were not contracts vesting rights but were at all times subject to revocation by proper authorities or will of the people. Harris v. Cannon, 304 Ky. 3 , 199 S.W.2d 429, 1946 Ky. LEXIS 927 ( Ky. 1946 ).

There are no constitutional limitations on the police power of the state to forbid or regulate the liquor traffic and no inalienable right exists for the sale of liquor. Fuson v. Howard, 305 Ky. 843 , 205 S.W.2d 1018, 1947 Ky. LEXIS 936 ( Ky. 1947 ).

11.Territory Affected.

Three (3) year moratorium on local option elections provided for in KRS 242.030(5) did not apply to a precinct located within a fourth class city which had voted to abolish prohibition; a precinct within a fourth class city is not the same territory as the city. Parrott v. Belcher, 884 S.W.2d 634, 1994 Ky. LEXIS 25 ( Ky. 1994 ).

Voters of individual precincts of a county not containing a city of the first four (4) classes which had abolished prohibition had the right to separately vote, without regard to the three (3) year moratorium, whether it should reinstate prohibition. Campbell v. Brewer, 884 S.W.2d 638, 1994 Ky. LEXIS 23 ( Ky. 1994 ).

Cited:

Baker v. Commonwealth, 64 S.W. 657, 23 Ky. L. Rptr. 898 (1901); Lawson v. Commonwealth, 66 S.W. 1010, 1902 Ky. LEXIS 546 , 23 Ky. L. Rptr. 1983 (1902); O’Neal v. Minary, 125 Ky. 571 , 30 Ky. L. Rptr. 888 , 101 S.W. 951, 1907 Ky. LEXIS 314 ( Ky. 1907 ); Hancock v. Bingham, 102 S.W. 341, 31 Ky. L. Rptr. 427 (1907); Seelbach Hotel Co. v. Commonwealth, 135 Ky. 376 , 122 S.W. 190, 1909 Ky. LEXIS 297 ( Ky. 1909 ); Barber v. Commonwealth, 182 Ky. 200 , 206 S.W. 290, 1918 Ky. LEXIS 342 ( Ky. 1918 ); Jefferson County Distillery Co. v. Clifton, 249 Ky. 815 , 61 S.W.2d 645, 1933 Ky. LEXIS 607 , 88 A.L.R. 1361 ( Ky. 1933 ); Renfro v. Hamlin, 256 Ky. 192 , 75 S.W.2d 1067, 1934 Ky. LEXIS 381 ( Ky. 1934 ); Curry v. Laffoon, 261 Ky. 575 , 88 S.W.2d 307, 1935 Ky. LEXIS 704 ( Ky. 1935 ); Keller v. Kentucky Alcoholic Beverage Countrol Board, 279 Ky. 272 , 130 S.W.2d 821, 1939 Ky. LEXIS 293 ( Ky. 1939 ); Ray v. Spiers, 281 Ky. 549 , 136 S.W.2d 750, 1940 Ky. LEXIS 65 ( Ky. 194 0); Hatcher v. Meredith, 295 Ky. 194 , 173 S.W.2d 665, 1943 Ky. LEXIS 191 ( Ky. 1943 ); Neff v. Moberly, 296 Ky. 319 , 177 S.W.2d 7, 1943 Ky. LEXIS 158 ( Ky. 1943 ); Cantrell v. Adams, 298 Ky. 845 , 183 S.W.2d 492, 1944 Ky. LEXIS 935 ( Ky. 1944 ); Fuson v. Howard, 305 Ky. 843 , 205 S.W.2d 1018, 1947 Ky. LEXIS 936 ( Ky. 1947 ); Halcomb v. Faulkner, 238 S.W.2d 162, 1951 Ky. LEXIS 810 ( Ky. 1951 ); Funk v. Fielder, 243 S.W.2d 474, 1951 Ky. LEXIS 1128 ( Ky. 1951 ); Simms v. Farris, 657 F. Supp. 119, 1987 U.S. Dist. LEXIS 2949 (E.D. Ky. 1987 ).

Opinions of Attorney General.

This section prohibits the General Assembly from amending that portion of KRS chapter 242 which relates to the manner in which local option presently is exercised. OAG 72-371 .

Under this section, a legislative enactment providing that an annexed territory automatically assumes the status of the territory to which it becomes annexed would be unconstitutional. OAG 77-173 .

The election authorized pursuant to subsection (3) of KRS 244.295 , concerning the question of allowing limited Sunday sales of distilled spirits and wine by the drink beginning at 1:00 p.m., can be held on general election day. OAG 82-226 .

This section does not prohibit the holding of local option elections on a regular election day. By the use of the word “may” it simply authorizes such elections to be held on days other than a regular election day as determined by the state legislature. OAG 82-226 .

Research References and Practice Aids

Cross-References.

Local option on sale of liquor, KRS ch. 242.

§ 62. Style of laws.

The style of the laws of this Commonwealth shall be as follows: “Be it enacted by the General Assembly of the Commonwealth of Kentucky.”

NOTES TO DECISIONS

1.Deviation.

Substitution of “legislature of the state of Kentucky” for “general assembly of the commonwealth of Kentucky” is a defect of form only and does not render the act invalid. Louisville Trust Co. v. Morgan, 180 Ky. 609 , 203 S.W. 555, 1918 Ky. LEXIS 132 ( Ky. 1918 ).

2.Enacting Clause.

Since this section was mandatory, law enacted without enacting clause was void. Commonwealth v. Illinois C. R. Co., 160 Ky. 745 , 170 S.W. 171, 1914 Ky. LEXIS 537 ( Ky. 1914 ) ( Ky. 1914 ).

COUNTIES AND COUNTY SEATS

§ 63. Area of counties — Boundaries — Creation and abolishment of counties.

No new county shall be created by the General Assembly which will reduce the county or counties, or either of them, from which it shall be taken, to less area than four hundred square miles; nor shall any county be formed of less area; nor shall any boundary line thereof pass within less than ten miles of any county seat of the county or counties proposed to be divided. Nothing contained herein shall prevent the General Assembly from abolishing any county.

NOTES TO DECISIONS

1.In General.

Section 65.150 is not an express or implied waiver of the sovereign immunity of a county sued in tort. Franklin County v. Malone, 957 S.W.2d 195, 1997 Ky. LEXIS 105 ( Ky. 1997 ), overruled in part, Commonwealth Bd. of Claims v. Harris, 59 S.W.3d 896, 2001 Ky. LEXIS 198 ( Ky. 2001 ), overruled in part, Yanero v. Davis, 65 S.W.3d 510, 2001 Ky. LEXIS 203 ( Ky. 2001 ).

2.Construction.

If any of the conditions of this section are wanting, the act is in violation of the Constitution and void. Zimmerman v. Brooks, 118 Ky. 85 , 80 S.W. 443, 25 Ky. L. Rptr. 2284 , 1904 Ky. LEXIS 7 ( Ky. 1904 ).

3.Boundaries.

Where county purchased land located outside its boundaries under statutory provision authorizing such purchase for airport purposes, the purchased land remained a part of county in which it was situated for governmental purposes and purchase did not violate this section. Kenton County Fiscal Court v. Richards, 291 Ky. 132 , 163 S.W.2d 302, 1942 Ky. LEXIS 193 ( Ky. 1942 ).

4.Creation.

Act attempting to create county of Beckham violated this section and Const., § 64. Zimmerman v. Brooks, 118 Ky. 85 , 80 S.W. 443, 25 Ky. L. Rptr. 2284 , 1904 Ky. LEXIS 7 ( Ky. 1904 ).

It is a judicial question for the courts to determine whether the general assembly, in creating new county, has violated this section and Const., § 65. Zimmerman v. Brooks, 118 Ky. 85 , 80 S.W. 443, 25 Ky. L. Rptr. 2284 , 1904 Ky. LEXIS 7 ( Ky. 1904 ).

Legislative act creating a new county by metes and bounds will be treated like a patent and, though one of the calls is inaccurate, yet where another section of the act gives the boundaries of the five magisterial districts composing the county and, by putting those districts together, the mistake in the call can be discovered and corrected, the act will not be held invalid. Zimmerman v. Brooks, 118 Ky. 85 , 80 S.W. 443, 25 Ky. L. Rptr. 2284 , 1904 Ky. LEXIS 7 ( Ky. 1904 ).

The courts are not required, as in case of legislature assigning city to particular class, to presume that that body acted upon sufficient evidence but may hear evidence and determine from it whether, in establishing the county, the legislative enactment violated the constitutional provisions, or any of them, as to area, boundary, distance, or population. Powell v. Baer, 143 Ky. 282 , 136 S.W. 629, 1911 Ky. LEXIS 403 ( Ky. 1911 ).

5.Popular Vote.

It is provided by law that action under this section may be submitted to the vote of the people for adoption or rejection. Allen v. Hollingsworth, 246 Ky. 812 , 56 S.W.2d 530, 1933 Ky. LEXIS 32 ( Ky. 1933 ).

Cited:

Pratt v. Breckinridge, 112 Ky. 1 , 23 Ky. L. Rptr. 1356 , 65 S.W. 136, 1901 Ky. LEXIS 286 ( Ky. 1 901 ); Scott v. McCreary, 148 Ky. 791 , 147 S.W. 903, 1912 Ky. LEXIS 544 ( Ky. 1912 ); Thomas v. Parsley, 283 Ky. 393 , 141 S.W.2d 302, 1940 Ky. LEXIS 3 37 ( Ky. 1940 ); Holsclaw v. Stephens, 507 S.W.2d 462, 1973 Ky. LEXIS 3 ( Ky. 1973 ); Calvert Invest., Inc. v. Louisville & Jefferson County Metro. Sewer Dist., 805 S.W.2d 133, 1991 Ky. LEXIS 17 ( Ky. 1991 ); Lexington-Fayette Urban County Gov’t v. Smolcic, 142 S.W.3d 128, 2004 Ky. LEXIS 182 ( Ky. 2004 ).

Opinions of Attorney General.

When a county or counties make provision for a public defender, a county is a political subdivision but two counties acting jointly do not make a single political subdivision and when the fiscal court acts legally for the county it means that the county, which is a political subdivision, is so acting and the fiscal court in such situation is an instrumentality of a political subdivision or county of a state. OAG 73-638 .

There are no provisions in the Constitution comparable to this section and Const., §§ 64 and 65 relating to the creation or dissolution of special districts. OAG 79-456 .

While special districts may be given some powers exercised by cities and counties, and while special districts, municipalities, and counties are creatures of the legislature, special districts cannot be equated with counties in the matter of dissolution. OAG 79-456 .

Research References and Practice Aids

Cross-References.

Consolidation of counties, KRS 67.190 to 67.310 .

Kentucky Bench & Bar.

Toner and Call, Three Cases That Shaped Kentucky’s History, 56 Ky. Bench & B. 11.

Kentucky Law Journal.

Snyder and Irland, The Separation of Governmental Powers Under the Constitution of Kentucky: A Legal and Historical Analysis of L.R.C. v. Brown, 73 Ky. L.J. 165 (1984-85).

§ 64. Division of county or removal of county seat, election required — Minimum population of county.

No county shall be divided, or have any part stricken therefrom, except in the formation of new counties, without submitting the question to a vote of the people of the county, nor unless the majority of all the legal voters of the county voting on the question shall vote for the same. The county seat of no county as now located, or as may hereafter be located, shall be moved, except upon a vote of two-thirds of those voting; nor shall any new county be established which will reduce any county to less than twelve thousand inhabitants, nor shall any county be created containing a less population.

NOTES TO DECISIONS

1.County.

Section 65.150 is not an express or implied waiver of the sovereign immunity of a county sued in tort. Franklin County v. Malone, 957 S.W.2d 195, 1997 Ky. LEXIS 105 ( Ky. 1997 ), overruled in part, Commonwealth Bd. of Claims v. Harris, 59 S.W.3d 896, 2001 Ky. LEXIS 198 ( Ky. 2001 ), overruled in part, Yanero v. Davis, 65 S.W.3d 510, 2001 Ky. LEXIS 203 ( Ky. 2001 ).

2.— Division.

Where judicial determination had been made that certain property was in one county, a law defining a previously disputed county boundary line in such a way as to place the property in an adjoining county is unconstitutional as a violation of this section. Commonwealth v. Thomas, 282 S.W.2d 44, 1955 Ky. LEXIS 217 ( Ky. 1955 ).

3.County Seat.

The words “county seat,” as used in this section, are intended to designate the courthouse, jail and other public buildings belonging to the county. Middlesborough v. Pineville, 98 S.W. 298, 30 Ky. L. Rptr. 331 , 1906 Ky. LEXIS 300 (Ky. Ct. App. 1906).

Campbell County, Kentucky, Fiscal Court must continue to conduct county activities in Newport, a Campbell County seat of government, as required by the Kentucky Courthouse Acts, 1881-82 Ky. Acts 1881-82 p. 569, c. 1107, and 1885-86 Ky. Acts p. 667, c. 232; those acts, passed at a time when the Kentucky Legislature had the authority to move the county seat, evince the intention to create an additional county seat in Campbell County. Should the citizens of Campbell County be dissatisfied with this result, they now have the authority to vote on the issue and decide the matter for themselves, pursuant to Ky. Const. § 64; therefore, a trial court erred by finding that there was only one county seat in Campbell County, Kentucky, but claims alleging that county business could not have been conducted in Newport were rejected. Nolan v. Campbell County Fiscal Court, 2010 Ky. App. LEXIS 217 (Ky. Ct. App. Nov. 24, 2010).

4.— Removal.

Law providing that in all counties having a town not larger than the fourth class and containing a population larger than the county seat and over 17 miles therefrom the circuit court shall be held alternately in the county seat and the larger town did not violate provision that county seat of county shall not be moved except on a certain vote. Johnson v. Fulton, 121 Ky. 594 , 89 S.W. 672, 28 Ky. L. Rptr. 569 , 1905 Ky. LEXIS 243 ( Ky. 1905 ).

5.— Two-Thirds Vote.

Where 352 votes were for and 120 against removal of a county seat, at a general election for county officers at which 990 votes were cast, the vote for removal was insufficient. Hogg v. Baker, 31 S.W. 726, 17 Ky. L. Rptr. 577 (1895).

Cited:

Belknap v. Louisville, 99 Ky. 474 , 36 S.W. 1118, 18 Ky. L. Rptr. 313 , 1896 Ky. LEXIS 122 ( Ky. 1 896 ); Pratt v. Breckinridge, 112 Ky. 1 , 65 S.W. 136, 23 Ky. L. Rptr. 1356 , 1901 Ky. LEXIS 286 ( Ky. 1901 ); Thomas v. Parsley, 283 Ky. 393 , 141 S.W.2d 302, 1940 Ky. LEXIS 337 ( Ky. 1940 ); Calvert Invest., Inc. v. Louisville & Jefferson County Metro. Sewer Dist., 805 S.W.2d 133, 1991 Ky. LEXIS 17 ( Ky. 1991 ); Lexington-Fayette Urban County Gov't v. Smolcic, 142 S.W.3d 128, 2004 Ky. LEXIS 182 ( Ky. 2004 ).

Opinions of Attorney General.

Since the county seat of Jefferson County is the entire city of Louisville, juvenile court sessions may be held at a regular site anywhere within the boundaries of the county seat of Jefferson County, which is the city of Louisville. OAG 62-418 .

There are no provisions in the Constitution comparable to this section and Const., §§ 63 and 65 relating to the creation or dissolution of special districts. OAG 79-456 .

While special districts may be given some powers exercised by cities and counties, and while special districts, municipalities, and counties are creatures of the legislature, special districts cannot be equated with counties in the matter of dissolution. OAG 79-456 .

Before the legislature can divide or strike territory from one (1) county, and attach it to another, a majority of the voters living in that territory must petition for the division, and, thereafter, a majority of the voters of a county voting upon such question must vote for the same; however, this section and Const., § 65 were not intended to empower the voters of one (1) county to override the authority of the legislature to fix the boundaries of a county, or to impose their will upon an adjoining county. OAG 95-35 .

Research References and Practice Aids

Cross-References.

Consolidation of counties, KRS 67.190 to 67.310 .

Dividing county or striking off territory, KRS 67.030 .

Removal of county seat, KRS 67.020 .

§ 65. Striking territory from county — Liability for indebtedness.

There shall be no territory stricken from any county unless a majority of the voters living in such territory shall petition for such division. But the portion so stricken off and added to another county, or formed in whole or in part into a new county, shall be bound for its proportion of the indebtedness of the county from which it has been taken.

NOTES TO DECISIONS

1.Construction.

Since this section was mandatory and self-executing, failure of legislature to provide for payment of indebtedness of new county by new county did not affect right of old county to such payment. Whitley County v. Wood, 161 Ky. 234 , 170 S.W. 622, 1914 Ky. LEXIS 44 ( Ky. 1914 ).

Where territory was annexed by one county from another before this section was adopted, the annexing county is not liable for any portion of the debt of the other county in the absence of further express constitutional or statutory provision to that effect. Estill County v. Powell County, 198 Ky. 19 , 247 S.W. 1110, 1923 Ky. LEXIS 369 ( Ky. 19 23).

2.Partial Addition.
3.— Invalid.

Invalid law attaching property of one county to another does not give the county from which the territory purportedly was detached any right to pro rata reimbursement from the other county for its bonded indebtedness at the time of the law, since the territory in question legally remained a part of the original county. Estill County v. Powell County, 198 Ky. 19 , 247 S.W. 1110, 1923 Ky. LEXIS 369 ( Ky. 19 23).

4.Proportion of Indebtedness.

Under this section new county was not liable, as whole county, for any part of old county’s indebtedness; only such part of new county as was taken from old county was required to pay its proportion of old county’s indebtedness. Whitley County v. Wood, 161 Ky. 234 , 170 S.W. 622, 1914 Ky. LEXIS 44 ( Ky. 1914 ).

5.Voting.

Where judicial determination had been made that certain property was in one county, act defining previously disputed county boundary line in such a way as to place such property in adjoining county was unconstitutional as violative of this section, since there was no vote. Commonwealth v. Thomas, 282 S.W.2d 44, 1955 Ky. LEXIS 217 ( Ky. 1955 ).

In determining if majority of voters of area had signed petition seeking detachment of area from one county and attachment to another, the term “voters” included only registered voters. Coffey v. Anderson, 371 S.W.2d 624, 1963 Ky. LEXIS 103 ( Ky. 1963 ).

“Voters,” as used in this section, meant registered voters. Howell v. Wilson, 371 S.W.2d 627, 1963 Ky. LEXIS 104 ( Ky. 1963 ).

Cited:

Lexington-Fayette Urban County Gov’t v. Smolcic, 142 S.W.3d 128, 2004 Ky. LEXIS 182 ( Ky. 2004 ).

Opinions of Attorney General.

There are no provisions in the Constitution comparable to this section and Const., §§ 63 and 64 relating to the creation or dissolution of special districts. OAG 79-456 .

While special districts may be given some powers exercised by cities and counties, and while special districts, municipalities, and counties are creatures of the legislature, special districts cannot be equated with counties in the matter of dissolution. OAG 79-456 .

Before the legislature can divide or strike territory from one (1) county, and attach it to another, a majority of the voters living in such territory must petition for such division, and, thereafter, a majority of the voters of a county voting upon such question must vote for the same; however, Const., § 64 and this section were not intended to empower the voters of one (1) county to override the authority of the legislature to fix the boundaries of a county, or to impose their will upon an adjoining county. OAG 95-35 .

Research References and Practice Aids

Cross-References.

Dividing county or striking off territory, KRS 67.030 .

Liability for debts on consolidation of counties, KRS 67.270 .

IMPEACHMENTS

§ 66. Power of impeachment vested in House.

The House of Representatives shall have the sole power of impeachment.

Opinions of Attorney General.

The only method for removing a police judge for malfeasance, even though he was appointed rather than elected, would be by impeachment under the terms of this section and Const., §§ 67 and 68 and by the procedure prescribed in KRS 63.020 to 63.075 . OAG 64-66 .

Since cities of the fourth class have no provision in their charters for the removal of city officers with the exception of councilmen, the only method of removing a police judge for failure to perform his duties would be by impeachment under this section, Const., §§ 67 and 68, and KRS 63.020 before the house of representatives. OAG 70-153 .

The legislature has not provided any statutory method for the removal from office of a police judge in a city of the fourth class for failure to perform his official duties and the only method whereby he may be removed from office is by impeachment under KRS 63.020 and this section and § 68 of the Constitution. OAG 75-352 .

An ordinance that would call for the office of councilman to be vacated if a consecutive, fixed number of regular meetings were missed would not be in contravention of this section since such ordinance deals with the precise conditions under which the council member can be deemed to have vacated his office, i.e., by way of missing meetings, and not with a misdemeanor, as such. OAG 76-615 .

Where members of a city council have allowed city funds to be spent unconstitutionally, they are subject to prosecution under KRS 522.020 and/or 522.030 , taxpayer’s suits for the recovery of the misused funds, and impeachment under this section and Const., §§ 67 and 68 and KRS 63.020 to 63.070 . OAG 79-509 .

Research References and Practice Aids

Cross-References.

Impeachments, KRS 63.020 to 63.070 .

§ 67. Trial of impeachments by Senate.

All impeachments shall be tried by the Senate. When sitting for that purpose, the Senators shall be upon oath or affirmation. No person shall be convicted without the concurrence of two-thirds of the Senators present.

§ 68. Civil officers liable to impeachment — Judgment — Criminal liability.

The Governor and all civil officers shall be liable to impeachment for any misdemeanors in office; but judgment in such cases shall not extend further than removal from office, and disqualification to hold any office of honor, trust or profit under this Commonwealth; but the party convicted shall, nevertheless, be subject and liable to indictment, trial and punishment by law.

NOTES TO DECISIONS

1.Purpose.

The only purpose intended to be accomplished by that part of this section which reads: “but the party convicted [under impeachment proceedings] shall, nevertheless, be subject and liable to indictment, trial and punishment by law” was to prevent judgment in impeachment prosecution from becoming a bar to a criminal prosecution based upon the same acts of omission or commission that were investigated and determined in the impeachment proceedings. Commonwealth ex rel. Pike County Bar Ass'n v. Stump, 247 Ky. 589 , 57 S.W.2d 524, 1933 Ky. LEXIS 434 ( Ky. 1933 ).

2.Administrative Proceedings.

Law which vested in board of commissioners the right to hear against a fellow commissioner charges of misconduct, inability, or wilful neglect in performance of his duties and to remove him if found guilty did not violate this section. Arbogast v. Weber, 249 Ky. 20 , 60 S.W.2d 144, 1933 Ky. LEXIS 477 ( Ky. 1933 ).

3.Circuit Judges.

Lacking other constitutional or statutory provisions, this section and KRS 63.030 must be held to provide an exclusive remedy, and a Circuit Judge cannot be properly indicted for malfeasance in office where he improperly certifies an irregular grand jury list. Commonwealth v. Tartar, 239 S.W.2d 265, 1951 Ky. LEXIS 877 ( Ky. 1951 ).

4.Commonwealth’s Attorneys.

Impeachment of a Commonwealth’s Attorney is not a condition precedent to his indictment for malfeasance in office and punishment thereunder. Commonwealth v. Rowe, 112 Ky. 482 , 66 S.W. 29, 23 Ky. L. Rptr. 1718 , 1902 Ky. LEXIS 183 ( Ky. 1902 ).

The legislature does not have the power to prescribe any mode of removal of a Commonwealth’s Attorney other than that prescribed by this section. Commonwealth ex rel. Attorney Gen. v. Howard, 297 Ky. 488 , 180 S.W.2d 415, 1944 Ky. LEXIS 763 ( Ky. 1944 ).

This section applies to Commonwealth's Attorneys. Commonwealth ex rel. Attorney Gen. v. Howard, 297 Ky. 488 , 180 S.W.2d 415, 1944 Ky. LEXIS 763 ( Ky. 1944 ).

5.Political Appointees.

Where law requires political appointment be confirmed by Senate and there has been no confirmation, the legislature, in special session, may summarily reject the appointment, no formal impeachment proceeding being necessary. McChesney v. Sampson, 232 Ky. 395 , 23 S.W.2d 584, 1930 Ky. LEXIS 12 ( Ky. 1930 ).

Cited:

Commonwealth ex rel. Funk v. Huntsman, 237 S.W.2d 876, 1951 Ky. LEXIS 793 ( Ky. 1951 ).

Opinions of Attorney General.

Mayor of city of fifth class may be impeached under this section, especially since the legislature has failed to provide a method for removing officers in fifth-class cities under the authority given it by section 160 of the Constitution. OAG 72-26 .

The provisions of KRS 61.770 as to vacation of public office, insofar as they relate to officers named in the Constitution, are invalid under this section and sections 124 and 227 of the Constitution, since constitutionally named officers are removable only by the method prescribed in the Constitution. OAG 72-289 .

The legislature has not provided any statutory method for the removal from office of a police judge in a city of the fourth class for failure to perform his official duties and the only method whereby he may be removed from office is by impeachment under KRS 63.020 and this section and § 66 of the Constitution. OAG 75-352 .

Since the laws pertaining to cities of the fifth class contain no provision for removal of elected city officers, the only method to remove members of the city council and the mayor is by impeachment before the General Assembly pursuant to this section and KRS 63.020 . OAG 76-631 .

The only method of removing a member of the city council is by impeachment before the General Assembly pursuant to this section of the Constitution and KRS 63.020 . OAG 78-155 .

Research References and Practice Aids

Cross-References.

Misfeasance or malfeasance, punishment for, KRS 61.170 .

Kentucky Bench & Bar.

Savage and Lawson, The Judicial Retirement and Removal Commission: Myth and Reality, Vol. 53, No. 2, Spring 1989, Ky. Bench & Bar 26.

Kentucky Law Journal.

Jones, Mansion or Fortress? The Legal Merits of Temporary Immunity from Criminal Prosecution for Kentucky’s Chief Executive, 96 Ky. L.J. 669 (2007).

THE EXECUTIVE DEPARTMENT

Officers for the State at Large

§ 69. Executive power vested in Governor.

The supreme executive power of the Commonwealth shall be vested in a Chief Magistrate, who shall be styled the “Governor of the Commonwealth of Kentucky.”

NOTES TO DECISIONS

1.General Assembly.

The right to convene the General Assembly in extraordinary session is not exclusively inherent in the executive power vested in the Governor by this section and, in his absence, the Lieutenant Governor, as acting Governor, has the right to so convene the General Assembly and the Governor has no authority subsequently to revoke the Lieutenant Governor’s order. Royster v. Brock, 258 Ky. 146 , 79 S.W.2d 707, 1935 Ky. LEXIS 134 ( Ky. 1935 ).

2.Militia.

Under this section and Const., §§ 75 and 81, read together with state militia law, Governor had authority, on his own initiative and without request from civil officers, to call out, order into active service and control state militia. Franks v. Smith, 142 Ky. 232 , 134 S.W. 484, 1911 Ky. LEXIS 217 ( Ky. 1911 ) ( Ky. 1911 ).

3.Constitutional State Officers.

As the Governor is the supreme executive power, it is not possible for the General Assembly to create another executive officer or officers who will not be subject to that supremacy, but it definitely has the prerogative of withholding executive powers from him by assigning them to constitutional officers who are not amenable to his supervision and control. Brown v. Barkley, 628 S.W.2d 616, 1982 Ky. LEXIS 232 ( Ky. 1982 ).

Except for the informational duty specified in Const., § 78, the officers named in Const., § 91 are not and cannot be placed under the control or supervision of the Governor. Brown v. Barkley, 628 S.W.2d 616, 1982 Ky. LEXIS 232 ( Ky. 1982 ).

4.Transfer of Legislatively-Created Functions.

Though the transfer of an existing, legislatively-created function from one executive agency or department to another is essentially an executive action, and is not an exercise of legislative power by the chief executive, the chief executive does not have the power to do it without legislative sanction unless it is necessary in order for him to carry out a law or laws that the legislature has created without prescribing in sufficient detail how they are to be executed. Brown v. Barkley, 628 S.W.2d 616, 1982 Ky. LEXIS 232 ( Ky. 1982 ).

5.Invalid Restriction on Powers.

The restriction placed on the executive by former law which in essence provided that if the Legislative Research Commission or its subcommittee could not constitutionally veto proposed regulations then the executive department could not issue any more regulations, effectively and unconstitutionally limited and interfered with the Governor’s mandated duties; therefore, former law was void as being in contravention of the Governor’s constitutional duty to faithfully execute the laws of the commonwealth under Const., § 81 and this section. Legislative Research Com. by Prather v. Brown, 664 S.W.2d 907, 1984 Ky. LEXIS 300 ( Ky. 1984 ).

6.Delegation of Powers.

If a law grants executive branch authority to either the judicial branch, legislative branch or a non-governmental person, natural or otherwise, it is in clear violation of this section. Yeoman v. Commonwealth Health Policy Bd., 983 S.W.2d 459, 1998 Ky. LEXIS 140 ( Ky. 1998 ).

Because the Kentucky General Assembly lawfully passed legislation which amended the power of the Governor of the Commonwealth of Kentucky to respond to emergencies, the Governor’s complaint did not present a substantial legal question that necessitated staying the effectiveness of the legislation, and the equities favored implementation of the legislation pending an adjudication of the constitutionality of the legislation, the circuit court abused its discretion by issuing a temporary injunction against implementation of the legislation. Cameron v. Beshear, 2021 Ky. LEXIS 240 (Ky. Aug. 21, 2021).

Cited:

Reynolds v. Board of Education, 311 Ky. 458 , 224 S.W.2d 442, 1949 Ky. LEXIS 1156 ( Ky. 1949 ); Ex parte Auditor of Public Accounts, 609 S.W.2d 682, 1980 Ky. LEXIS 274 ( Ky. 1980 ).

Opinions of Attorney General.

The prime responsibility for the existence of the proper and adequate enforcement of the laws of the Commonwealth throughout the state is that of the Governor. OAG 70-522 .

The Governor has no constitutional or statutory power to extend negotiation rights of any kind to public school teachers by an executive order. OAG 75-126 .

The provision of Acts 1982, ch. 447, giving the Legislative Research Commission authority to approve or disapprove a temporary reorganization by the Governor (KRS 12.028 ) is unconstitutional since the General Assembly’s granting of reorganization authority to the Governor may not be subject to the approval of the Legislative Research Commission; the Legislative Research Commission’s exercise of such veto/approval authority would be tantamount to the General Assembly’s acting when not in session, which is prohibited by the separation of powers doctrine, Const., §§ 27, 28 and also § 36; and, even if an attempt were made to establish the Legislative Research Commission as an executive agency, the General Assembly is prohibited by this section from granting reorganization authority to such agency or any other created state executive agency if that authority is superior to that of the Governor. OAG 82-154 .

The reorganization authority must be granted to the Executive Branch of state government and to the Chief Executive Officer, the Governor; under this section the General Assembly cannot create a state executive agency and grant executive reorganization authority to such an agency because supreme executive power must be vested in the Governor. OAG 82-154 .

The maintaining of an executive branch free of deficits is the responsibility of the Governor, which, when properly exercised, cannot be curtailed by even explicit statutory provisions. OAG 84-60 .

Research References and Practice Aids

Kentucky Law Journal.

Wendelsdorf, Constitutional Law — The Power of a Governor to Proclaim Martial Law and Use State Military Forces to Suppress Campus Demonstrations, 59 Ky. L.J. 547 (1970).

Snyder and Irland, The Separation of Governmental Powers Under the Constitution of Kentucky: A Legal and Historical Analysis of L.R.C. v. Brown, 73 Ky. L.J. 165 (1984-85).

Jones, Mansion or Fortress? The Legal Merits of Temporary Immunity from Criminal Prosecution for Kentucky’s Chief Executive, 96 Ky. L.J. 669 (2007).

§ 70. Election of Governor and Lieutenant Governor — Term — Tie vote.

The Governor and Lieutenant Governor shall be elected for the term of four years by the qualified voters of the State. They shall be elected jointly by the casting by each voter of a single vote applicable to both offices, as shall be provided by law. The slate of candidates having the highest number of votes cast jointly for them for Governor and Lieutenant Governor shall be elected; but if two or more slates of candidates shall be equal and highest in votes, the election shall be determined by lot in such manner as the General Assembly may direct.

History. Amendment, proposed Acts 1992, ch. 168, § 1, ratified November 3, 1992.

Compiler’s Notes.

The General Assembly in 1992 (Acts 1992, ch. 168, § 1) proposed an amendment to the Constitution which amendment was ratified by the voters at the regular election November 3, 1992. Prior to the amendment this section read:

“§ 70. Election of governor — Term — Tie vote. — He shall be elected for the term of four years by the qualified voters of the State. The person having the highest number of votes shall be Governor; but if two or more shall be equal and highest in votes, the election shall be determined by lot in such manner as the General Assembly may direct.”

Section 19 of Acts 1992, ch. 168 provided: “It is further proposed as a part of this amendment and as a schedule of transitional provisions, for the purposes of this amendment, and any other provision of the Constitution of Kentucky notwithstanding:

“(1) The Governor; Lieutenant Governor; Treasurer; Auditor of Public Accounts; Attorney General; Secretary of State; Commissioner of Agriculture, Labor and Statistics; Superintendent of Public Instruction; and Railroad Commissioners elected in 1991 shall be ineligible for election to the same office for the succeeding term. Those officers elected in 1995 shall be eligible for election to the next succeeding term.

“(2) The term of office of Commonwealth’s Attorneys and Circuit Clerks elected in 1993 shall be for a single term of seven years. The regular election for those offices shall then be held in 2000 and every six years thereafter.

“(3) The term of office of District Judges, Mayors, County Judges/Executive, and local officers who regularly serve a four-year term and who are scheduled to be elected in 1993 shall be for a single term of five years. The regular election for those offices shall then be held in 1998 and every four years thereafter.

“(4) The term of office for local officers who regularly serve a two-year term and who are scheduled to be elected in 1993 shall be for a single term of three years. The regular election for those offices shall then be held in 1996 and every two years thereafter.

“(5) The term of office for Circuit Judges and Judges of the Court of Appeals elected in 1999 shall be for a single term of seven years. The regular election for those offices shall then be held in 2006 and every eight years thereafter.

“(6) The term of office for mayor, magistrate, or other officer not specifically provided for in subsection (4) of this section elected in 1995 shall be extended for one year and subsequent elections for offices subject to the provisions of this subsection shall be held in even-numbered years.

“(7) No person holding elective office upon the effective date of this amendment shall have the duration of his current term extended. However, if the next election of any officer not specifically provided for in this section is scheduled to appear on the ballot in an odd-numbered year, the duration of that term of the officer elected shall be extended for one year. The election for any office subject to the provisions of this subsection shall subsequently be held in even-numbered years.”

NOTES TO DECISIONS

1.In General.

The office of governor is created by the constitution of this state and the instrument creating it might properly provide how such officer should be elected and how the result of the election should be determined, and the state had the right to provide such agencies and such mode of procedure as it saw fit. Taylor v. Beckham, 108 Ky. 278 , 56 S.W. 177, 21 Ky. L. Rptr. 1735 , 1900 Ky. LEXIS 39 (Ky.), writ of error dismissed, 178 U.S. 548, 20 S. Ct. 890, 44 L. Ed. 1187, 1900 U.S. LEXIS 1702 (U.S. 1900).

Cited:

Schardein v. Harrison, 230 Ky. 1 , 18 S.W.2d 316, 1929 Ky. LEXIS 5 ( Ky. 1 929).

Research References and Practice Aids

Cross-References.

Contest of election, KRS 120.195 , 120.205 .

Time of election, Const., § 95.

§ 71. Gubernatorial succession.

The Governor shall be ineligible for the succeeding four years after the expiration of any second consecutive term for which he shall have been elected.

History. Amendment, proposed Acts 1992, ch. 168, § 2, ratified November 3, 1992.

Compiler’s Notes.

The General Assembly in 1992 (Acts 1992, ch. 168, § 2) proposed an amendment to the Constitution which amendment was ratified by the voters at the regular election November 3, 1992. Prior to the amendment this section read:

“§ 71. Governor may not succeed himself. — He shall be ineligible for the succeeding four years after the expiration of the term for which he shall have been elected.”

Section 19 of Acts 1992, ch. 168 provided: “It is further proposed as a part of this amendment and as a schedule of transitional provisions, for the purposes of this amendment, and any other provision of the Constitution of Kentucky notwithstanding:

“(1) The Governor; Lieutenant Governor; Treasurer; Auditor of Public Accounts; Attorney General; Secretary of State; Commissioner of Agriculture, Labor and Statistics; Superintendent of Public Instruction; and Railroad Commissioners elected in 1991 shall be ineligible for election to the same office for the succeeding term. Those officers elected in 1995 shall be eligible for election to the next succeeding term.

“(2) The term of office of Commonwealth’s Attorneys and Circuit Clerks elected in 1993 shall be for a single term of seven years. The regular election for those offices shall then be held in 2000 and every six years thereafter.

“(3) The term of office of District Judges, Mayors, County Judges/Executive, and local officers who regularly serve a four-year term and who are scheduled to be elected in 1993 shall be for a single term of five years. The regular election for those offices shall then be held in 1998 and every four years thereafter.

“(4) The term of office for local officers who regularly serve a two-year term and who are scheduled to be elected in 1993 shall be for a single term of three years. The regular election for those offices shall then be held in 1996 and every two years thereafter.

“(5) The term of office for Circuit Judges and Judges of the Court of Appeals elected in 1999 shall be for a single term of seven years. The regular election for those offices shall then be held in 2006 and every eight years thereafter.

“(6) The term of office for mayor, magistrate, or other officer not specifically provided for in subsection (4) of this section elected in 1995 shall be extended for one year and subsequent elections for offices subject to the provisions of this subsection shall be held in even-numbered years.

“(7) No person holding elective office upon the effective date of this amendment shall have the duration of his current term extended. However, if the next election of any officer not specifically provided for in this section is scheduled to appear on the ballot in an odd-numbered year, the duration of that term of the officer elected shall be extended for one year. The election for any office subject to the provisions of this subsection shall subsequently be held in even-numbered years.”

The following amendment was proposed by the 1980 General Assembly (Acts 1980, ch. 112, § 1), was submitted to the voters for ratification or rejection at the regular election in November, 1981, and was defeated:

“§ 71. Governor eligible to election for two successive terms — The governor shall be eligible to election for two (2) successive terms. He shall be ineligible for the succeeding four (4) years after the expiration of the second term for which he shall have been elected.”

NOTES TO DECISIONS

Cited:

Schardein v. Harrison, 230 Ky. 1 , 18 S.W.2d 316, 1929 Ky. LEXIS 5 ( Ky. 1 929).

Opinions of Attorney General.

A county road department is prohibited from providing at public expense, labor necessary to install a culvert to enhance access to private property from a county road. OAG 93-24 .

§ 72. Qualifications of Governor and Lieutenant Governor — Duties of Lieutenant Governor.

The Governor and the Lieutenant Governor shall be at least thirty years of age, and have been citizens and residents of Kentucky for at least six years next preceding their election. The duties of the Lieutenant Governor shall be prescribed by law, and he shall have such other duties as delegated by the Governor.

History. Amendment, proposed by Acts 1992, ch. 168, § 3, ratified November 3, 1992.

Compiler’s Notes.

The General Assembly in 1992 (Acts 1992, ch. 168, § 3) proposed an amendment to the Constitution which amendment was ratified by the voters at the regular election November 3, 1992. Prior to the amendment this section read:

“§ 72. Qualifications of Governor. — He shall be at least thirty years of age, and have been a citizen and a resident of Kentucky for at least six years next preceding his election.”

Section 19 of Acts 1992, ch. 168 provided: “It is further proposed as a part of this amendment and as a schedule of transitional provisions, for the purposes of this amendment, and any other provision of the Constitution of Kentucky notwithstanding:

“(1) The Governor; Lieutenant Governor; Treasurer; Auditor of Public Accounts; Attorney General; Secretary of State; Commissioner of Agriculture, Labor and Statistics; Superintendent of Public Instruction; and Railroad Commissioners elected in 1991 shall be ineligible for election to the same office for the succeeding term. Those officers elected in 1995 shall be eligible for election to the next succeeding term.

“(2) The term of office of Commonwealth’s Attorneys and Circuit Clerks elected in 1993 shall be for a single term of seven years. The regular election for those offices shall then be held in 2000 and every six years thereafter.

“(3) The term of office of District Judges, Mayors, County Judges/Executive, and local officers who regularly serve a four-year term and who are scheduled to be elected in 1993 shall be for a single term of five years. The regular election for those offices shall then be held in 1998 and every four years thereafter.

“(4) The term of office for local officers who regularly serve a two-year term and who are scheduled to be elected in 1993 shall be for a single term of three years. The regular election for those offices shall then be held in 1996 and every two years thereafter.

“(5) The term of office for Circuit Judges and Judges of the Court of Appeals elected in 1999 shall be for a single term of seven years. The regular election for those offices shall then be held in 2006 and every eight years thereafter.

“(6) The term of office for mayor, magistrate, or other officer not specifically provided for in subsection (4) of this section elected in 1995 shall be extended for one year and subsequent elections for offices subject to the provisions of this subsection shall be held in even-numbered years.

“(7) No person holding elective office upon the effective date of this amendment shall have the duration of his current term extended. However, if the next election of any officer not specifically provided for in this section is scheduled to appear on the ballot in an odd-numbered year, the duration of that term of the officer elected shall be extended for one year. The election for any office subject to the provisions of this subsection shall subsequently be held in even-numbered years.”

Opinions of Attorney General.

Where a regular army officer has not been an actual resident of Kentucky for the preceding six (6) years but Kentucky has always been his official home of record and during his entire military service he annually paid Kentucky income tax and voted by absentee ballot in local, state and national elections, the question of whether his residence in Kentucky qualifies him to run for lieutenant-governor would have to be decided by the courts under the legal guidelines governing domicile and residence and the only practical method of settling this question is for the officer to file for the office and await any possible challenge. OAG 75-89 .

The phrase “next preceding his election,” as used in this section, means, that any candidate for the office of governor must have resided in this state continually for six (6) years immediately preceding the election. It is true the word “immediately” is not used. However, the phrase “next preceding,” has the same meaning as the term “immediately.” OAG 83-116 .

Research References and Practice Aids

Kentucky Law Journal.

Meredith, Look Homeward Candidate: Evaluating and Reforming Kentucky’s Residency Definition and Bona Fides Challenges in Order to Avoid a Potential Crisis in Gubernatorial Elections., 95 Ky. L.J. 211 (2006/2007).

§ 73. When terms of Governor and Lieutenant Governor begin.

The Governor and the Lieutenant Governor shall commence the execution of the duties of their offices on the fifth Tuesday succeeding their election, and shall continue in the execution thereof until a successor shall have qualified.

History. Amendment, proposed by Acts 1992, ch. 168, § 4, ratified November 3, 1992.

Compiler’s Notes.

The General Assembly in 1992 (Acts 1992, ch. 168, § 4) proposed an amendment to the Constitution which amendment was ratified by the voters at the regular election November 3, 1992. Prior to the amendment this section read:

“§ 73. When term of governor begins. — He shall commence the execution of the duties of his office on the fifth Tuesday succeeding his election, and shall continue in the execution thereof until his successor shall have qualified.”

Section 19 of Acts 1992, ch. 168 provided: “It is further proposed as a part of this amendment and as a schedule of transitional provisions, for the purposes of this amendment, and any other provision of the Constitution of Kentucky notwithstanding:

“(1) The Governor; Lieutenant Governor; Treasurer; Auditor of Public Accounts; Attorney General; Secretary of State; Commissioner of Agriculture, Labor and Statistics; Superintendent of Public Instruction; and Railroad Commissioners elected in 1991 shall be ineligible for election to the same office for the succeeding term. Those officers elected in 1995 shall be eligible for election to the next succeeding term.

“(2) The term of office of Commonwealth’s Attorneys and Circuit Clerks elected in 1993 shall be for a single term of seven years. The regular election for those offices shall then be held in 2000 and every six years thereafter.

“(3) The term of office of District Judges, Mayors, County Judges/Executive, and local officers who regularly serve a four-year term and who are scheduled to be elected in 1993 shall be for a single term of five years. The regular election for those offices shall then be held in 1998 and every four years thereafter.

“(4) The term of office for local officers who regularly serve a two-year term and who are scheduled to be elected in 1993 shall be for a single term of three years. The regular election for those offices shall then be held in 1996 and every two years thereafter.

“(5) The term of office for Circuit Judges and Judges of the Court of Appeals elected in 1999 shall be for a single term of seven years. The regular election for those offices shall then be held in 2006 and every eight years thereafter.

“(6) The term of office for mayor, magistrate, or other officer not specifically provided for in subsection (4) of this section elected in 1995 shall be extended for one year and subsequent elections for offices subject to the provisions of this subsection shall be held in even-numbered years.

“(7) No person holding elective office upon the effective date of this amendment shall have the duration of his current term extended. However, if the next election of any officer not specifically provided for in this section is scheduled to appear on the ballot in an odd-numbered year, the duration of that term of the officer elected shall be extended for one year. The election for any office subject to the provisions of this subsection shall subsequently be held in even-numbered years.”

NOTES TO DECISIONS

Cited:

Campbell v. Dotson, 111 Ky. 125 , 23 Ky. L. Rptr. 510 , 63 S.W. 480, 1901 Ky. LEXIS 193 ( Ky. 1901 ); Byrne & Speed Coal Co. v. Louisville, 189 Ky. 346 , 224 S.W. 883, 1920 Ky. LEXIS 429 ( Ky. 1920 ); Booth v. Board of Education, 191 Ky. 147 , 229 S.W. 84, 1921 Ky. LEXIS 267 ( Ky. 1921 ).

§ 74. Compensation of Governor and Lieutenant Governor.

The Governor and Lieutenant Governor shall at stated times receive for the performance of the duties of their respective offices compensation to be fixed by law.

History. Amendment, proposed by Acts 1992, ch. 168, § 5, ratified November 3, 1992.

Compiler’s Notes.

The General Assembly in 1992 (Acts 1992, ch. 168, § 5) proposed an amendment to the Constitution which amendment was ratified by the voters at the regular election November 3, 1992. Prior to the amendment this section read:

“§ 74. Compensation of Governor. — He shall at stated times receive for his service a compensation to be fixed by law.”

Section 19 of Acts 1992, ch. 168 provided: “It is further proposed as a part of this amendment and as a schedule of transitional provisions, for the purposes of this amendment, and any other provision of the Constitution of Kentucky notwithstanding:

“(1) The Governor; Lieutenant Governor; Treasurer; Auditor of Public Accounts; Attorney General; Secretary of State; Commissioner of Agriculture, Labor and Statistics; Superintendent of Public Instruction; and Railroad Commissioners elected in 1991 shall be ineligible for election to the same office for the succeeding term. Those officers elected in 1995 shall be eligible for election to the next succeeding term.

“(2) The term of office of Commonwealth’s Attorneys and Circuit Clerks elected in 1993 shall be for a single term of seven years. The regular election for those offices shall then be held in 2000 and every six years thereafter.

“(3) The term of office of District Judges, Mayors, County Judges/Executive, and local officers who regularly serve a four-year term and who are scheduled to be elected in 1993 shall be for a single term of five years. The regular election for those offices shall then be held in 1998 and every four years thereafter.

“(4) The term of office for local officers who regularly serve a two-year term and who are scheduled to be elected in 1993 shall be for a single term of three years. The regular election for those offices shall then be held in 1996 and every two years thereafter.

“(5) The term of office for Circuit Judges and Judges of the Court of Appeals elected in 1999 shall be for a single term of seven years. The regular election for those offices shall then be held in 2006 and every eight years thereafter.

“(6) The term of office for mayor, magistrate, or other officer not specifically provided for in subsection (4) of this section elected in 1995 shall be extended for one year and subsequent elections for offices subject to the provisions of this subsection shall be held in even-numbered years.

“(7) No person holding elective office upon the effective date of this amendment shall have the duration of his current term extended. However, if the next election of any officer not specifically provided for in this section is scheduled to appear on the ballot in an odd-numbered year, the duration of that term of the officer elected shall be extended for one year. The election for any office subject to the provisions of this subsection shall subsequently be held in even-numbered years.”

Research References and Practice Aids

Cross-References.

Salary, KRS 64.480 .

§ 75. Governor is Commander-in-Chief of army, navy and militia.

He shall be Commander-in-Chief of the army and navy of this Commonwealth, and of the militia thereof, except when they shall be called into the service of the United States; but he shall not command personally in the field, unless advised so to do by a resolution of the General Assembly.

NOTES TO DECISIONS

1.In General.

The Governor is charged by the Constitution and law with the duty of preserving the peace and quiet of the state and protecting the life and property of its citizens and to accomplish this end, he may use all the military forces of the state. Franks v. Smith, 142 Ky. 232 , 134 S.W. 484, 1911 Ky. LEXIS 217 ( Ky. 1911 ) ( Ky. 1911 ).

2.Judicial Review.

The Governor’s power to send troops into a county to inquire into alleged lawlessness prevailing there is clear under this section, and his reasons or motives for doing so may not be questioned by the Court of Appeals. Begley v. Louisville Times Co., 272 Ky. 805 , 115 S.W.2d 345, 1938 Ky. LEXIS 206 ( Ky. 1938 ).

Cited:

Brown v. Barkley, 628 S.W.2d 616, 1982 Ky. LEXIS 232 ( Ky. 1982 ); Cameron v. Beshear, 628 S.W.3d 61, 2021 Ky. LEXIS 240 ( Ky. 2021 ).

Research References and Practice Aids

Cross-References.

Governor is commander-in-chief of active militia, KRS 37.180 .

Militia, KRS chs. 36 to 38.

Kentucky Law Journal.

Wendelsdorf, Constitutional Law — The Power of a Governor to Proclaim Martial Law and Use State Military Forces to Suppress Campus Demonstrations, 59 Ky. L.J. 547 (1970).

§ 76. Power of Governor to fill vacancies.

He shall have the power, except as otherwise provided in this Constitution, to fill vacancies by granting commissions, which shall expire when such vacancies shall have been filled according to the provisions of this Constitution.

NOTES TO DECISIONS

1.Circuit Judges.

Governor had authority to fill vacancy in office of Circuit Judge. Hancock v. Queenan, 294 S.W.2d 92, 1956 Ky. LEXIS 117 ( Ky. 1956 ).

2.Court Appointment.

Law authorizing fiscal court of county to fill vacancies in office of county judge is not unconstitutional, the Governor, after the appointment, commissioning the appointee as provided in Const., § 140. Frost v. Johnston, 262 Ky. 592 , 90 S.W.2d 1045, 1936 Ky. LEXIS 82 ( Ky. 1936 ).

The procedure for advice and consent of subsection (3) of KRS 342.230 is constitutional; there is no violation of the separation of powers doctrine because the statute does not permit the Senate to make appointments of administrative law judges but only to accept or reject the decision of the Worker's Compensation Board. Kraus v. Kentucky State Senate, 872 S.W.2d 433, 1993 Ky. LEXIS 169 ( Ky. 1993 ), limited, Fox v. Grayson, 317 S.W.3d 1, 2010 Ky. LEXIS 88 ( Ky. 2010 ).

3.Court of Appeals.

No commission was required from Governor for clerk appointed by Court of Appeals as was required when Governor had power to appoint. In re Appointment of Clerk of Court of Appeals, 297 S.W.2d 764, 1957 Ky. LEXIS 357 ( Ky. 1957 ).

4.Inferior Officers.

The power of the Governor to fill vacancies under this section is limited by the provisions of Const., § 152. Rouse v. Johnson, 234 Ky. 473 , 28 S.W.2d 745, 1930 Ky. LEXIS 220 ( Ky. 1930 ).

Under this section and Const., § 152, the Legislature may prescribe by law the method of filling vacancies in county or district offices. Barton v. Brafford, 264 Ky. 480 , 95 S.W.2d 6, 1936 Ky. LEXIS 354 ( Ky. 1936 ), overruled, Gearhart v. Kentucky State Board of Education, 355 S.W.2d 667, 1962 Ky. LEXIS 76 ( Ky. 1962 ).

The Kentucky State Senate has the inherent power to advise and consent on executive branch appointments of inferior state officers. Kraus v. Kentucky State Senate, 872 S.W.2d 433, 1993 Ky. LEXIS 169 ( Ky. 1993 ), limited, Fox v. Grayson, 317 S.W.3d 1, 2010 Ky. LEXIS 88 ( Ky. 2010 ).

5.Legislative Appointment.

Appointment to office is an executive power and therefore a power which can be exercised by the Legislature only where the duties of the office pertain to the legislative department. Pratt v. Breckinridge, 112 Ky. 1 , 65 S.W. 136, 23 Ky. L. Rptr. 1356 , 1901 Ky. LEXIS 286 ( Ky. 1 901).

The Legislature had no right to designate or to itself elect members of the State Highway Commission and a law by which the Legislature attempted to do so was invalid. Sibert v. Garrett, 197 Ky. 17 , 246 S.W. 455, 1922 Ky. LEXIS 639 ( Ky. 1922 ).

6.State Officers.

Only the Governor may fill a vacancy in a state office. Pratt v. Breckinridge, 112 Ky. 1 , 65 S.W. 136, 23 Ky. L. Rptr. 1356 , 1901 Ky. LEXIS 286 ( Ky. 1 901).

7.Appointment by Governor.

KRS 164.130 (now repealed) as enacted by the Legislature permitted the Governor to make appointments to the Board of Trustees. There was no limitation in that statute which prohibited the Governor from being a Board member or from appointing himself; the Legislature made no exception to the qualified persons whom the Governor could appoint to the at large seats on the Board. It would seem apparent that the General Assembly did not intend any such exception to be applicable to the Governor because the Legislature had enacted other statutes to prohibit certain holders from holding a second office. Commonwealth v. Wilkinson, 828 S.W.2d 610, 1992 Ky. LEXIS 111 ( Ky. 1992 ), overruled in part, Commonwealth ex rel. Conway v. Thompson, 300 S.W.3d 152, 2009 Ky. LEXIS 290 ( Ky. 2009 ).

Cited:

Brown v. Barkley, 628 S.W.2d 616, 1982 Ky. LEXIS 232 ( Ky. 1982 ); Cameron v. Beshear, 628 S.W.3d 61, 2021 Ky. LEXIS 240 ( Ky. 2021 ).

Opinions of Attorney General.

While the Governor may issue executive orders pursuant to the powers granted in Const., §§ 76 to 81 or specifically delegated by the General Assembly, no known grant of power to the Governor authorizes him to declare public policy in contravention of policy established by the General Assembly; therefore, since KRS 64.527 makes a plain expression of public policy declaring that county clerks are subject to salary maximum applicable to “all other public officers” rather than the salary maximum applicable to “officers whose jurisdiction or duties are coextensive with the Commonwealth”, executive order that declared that county clerks are officials whose duties are coextensive with the Commonwealth for the purposes of constitutional salary computations was of no effect. OAG 96-32 .

Research References and Practice Aids

Cross-References.

Vacancies to be filled by Governor, Const., § 152; KRS 63.190 .

Kentucky Bench & Bar.

Lear and Fleenor, Board and Commission Appointments: Executive Power — With Limits, Vol. 72, No. 4, July 2008, Ky. Bench & Bar 23.

§ 77. Power of Governor to remit fines and forfeitures, grant reprieves and pardons — No power to remit fees.

He shall have power to remit fines and forfeitures, commute sentences, grant reprieves and pardons, except in case of impeachment, and he shall file with each application therefor a statement of the reasons for his decision thereon, which application and statement shall always be open to public inspection. In cases of treason, he shall have power to grant reprieves until the end of the next session of the General Assembly, in which the power of pardoning shall be vested; but he shall have no power to remit the fees of the Clerk, Sheriff or Commonwealth’s Attorney in penal or criminal cases.

NOTES TO DECISIONS

1.In General.

Only provision of law for modification of sentence was power conferred on Governor by this section to commute, reprieve, or pardon. Wooden v. Goheen, 255 S.W.2d 1000, 1953 Ky. LEXIS 698 ( Ky. 1953 ).

2.Commutation.

Since in Kentucky clemency is left to the Governor’s unfettered discretion and the state has not made the clemency process an integral part of the state’s overall adjudicative process, convicted murderer who had been sentenced to death was not denied due process when Governor announced a general policy of not granting clemency in capital cases. McQueen v. Patton (In re Sapp), 118 F.3d 460, 1997 U.S. App. LEXIS 17871 (6th Cir. Ky.), cert. denied, 521 U.S. 1130, 117 S. Ct. 2536, 138 L. Ed. 2d 1035, 1997 U.S. LEXIS 4256 (U.S. 1997), cert. denied, 521 U.S. 1130, 117 S. Ct. 2536, 138 L. Ed. 2d 1035, 1997 U.S. LEXIS 4259 (U.S. 1997).

Where defendant convicted of murder and sentenced to death did not file any application for clemency with the Governor on ground Governor’s “official policy” of refusing to grant clemency to any death row inmate violates his right pursuant to this section, his complaint failed to state a claim on which relief could be granted. McQueen v. Patton, 948 S.W.2d 418, 1997 Ky. LEXIS 80 ( Ky. 1997 ).

Capital defendant was not entitled to postconviction DNA testing to support his request for clemency under Ky. Const. § 77. Wilson v. Commonwealth, 381 S.W.3d 180, 2012 Ky. LEXIS 64 ( Ky. 2012 ).

Appellant’s postconviction relief motions were properly denied. His argument that the Kentucky constitution did not authorize the Governor to impose a sentence greater than the maximum sentence authorized by the legislature at the time of the underlying offense was rejected because life without the possibility of parole was not a statutorily authorized sentence for a capital offense in 1981 when he committed the underlying crimes (murder, sodomy, first-degree robbery, and receipt of stolen property) at the age of 17. Stanford v. Commonwealth, 2021 Ky. App. LEXIS 107 (Ky. Ct. App. Oct. 15, 2021).

3.— Effect.
4.— — Parole.

A prisoner convicted under the indeterminate sentence law and given from ten to 20 years’ confinement in penitentiary, which was commuted by the Governor to eight (8) to 20 years, after eight years is not entitled to parole, as under the parole act he must serve the minimum term provided by law for the crime before he is eligible to parole. Alford v. Hines, 189 Ky. 203 , 224 S.W. 752, 1920 Ky. LEXIS 402 ( Ky. 1920 ).

Although the legislative branch is responsible for the enactment of criminal penalties and has set the punishment for first degree murder as death or life with parole, the Governor has the power to commute a death sentence to a life term without parole. Hamilton v. Ford, 362 F. Supp. 739, 1973 U.S. Dist. LEXIS 12418 (E.D. Ky. 1973 ).

5.Fines.
6.— Remission.
7.— — By Circuit Court.

Action of Circuit Court in remitting fine imposed by jury on verdict of guilty to misdemeanor charge was improper assumption of authority vested in Governor by this section. Commonwealth v. Ballinger, 412 S.W.2d 576, 1967 Ky. LEXIS 431 ( Ky. 1967 ).

8.Forfeiture.
9.— Bond.

This section does not prevent the Governor from depriving the clerk, sheriff, or Commonwealth’s Attorney of their fees in penal and criminal cases if the remission of the forfeiture of a bond is exercised before judgment on the forfeiture is rendered. Williams v. Shelbourne, 102 Ky. 579 , 44 S.W. 110, 19 Ky. L. Rptr. 1924 , 1898 Ky. LEXIS 11 ( Ky. 1898 ). See Commonwealth v. French, 130 Ky. 744 , 114 S.W. 255, 1908 Ky. LEXIS 319 ( Ky. 1908 ).

10.Pardon.

Where defendant’s civil rights were restored by the Governor in a partial pardon pursuant to Ky. Const. §§ 145, 150 after defendant successfully completed probation on a felony offense, the restoration of rights did not restore defendant’s right to possess a firearm, as the pardon was not a full pardon under Ky. Const. § 77; thus, defendant was properly convicted of two (2) counts of possession of a firearm by a convicted felon in violation of KRS 527.040 . Cheatham v. Commonwealth, 131 S.W.3d 349, 2004 Ky. App. LEXIS 48 (Ky. Ct. App. 2004).

Although a Governor’s authority to pardon under Ky. Const., § 77 extended to pre-indictment, amnesty-like pardons, it did not preclude indictment for pardoned offenses, and did not oblige a Circuit Court to instruct a grand jury concerning the effect of such pardons. Fletcher v. Graham, 2005 Ky. App. LEXIS 264 (Ky. Ct. App. Dec. 16, 2005), aff'd in part and rev'd in part, 192 S.W.3d 350, 2006 Ky. LEXIS 123 ( Ky. 2006 ).

Delivery or acceptance of a pardon is required under Ky. Const. § 77, but such acceptance need not be formal and may be inferred from circumstances; where the circumstances of a case evidence the clear intent of the Governor of Kentucky to issue the pardon, and there is no evidence or circumstances from which to infer that it was rejected, acceptance must be assumed. Fletcher v. Graham, 192 S.W.3d 350, 2006 Ky. LEXIS 123 ( Ky. 2006 ).

10.5.— Blanket Pardons.

The Governor of Kentucky has the authority under Ky. Const. § 77 to issue general or blanket pardons; the clear and unambiguous language of § 77 imposes no restrictions on his power to issue pardons, and its legislative history shows that, if the framers intended to prohibit general pardons, they would have so stated in the language of § 77. Fletcher v. Graham, 192 S.W.3d 350, 2006 Ky. LEXIS 123 ( Ky. 2006 ).

Blanket pardon of indicted and unindicted persons issued to persons under investigation by a grand jury in connection with alleged criminal violations of a state merit system hiring scheme were valid because the Governor had the authority under Ky. Const. § 77 to issue a blanket pardon and to pardon unindicted persons, valid acceptance of the pardon could be presumed. Fletcher v. Graham, 192 S.W.3d 350, 2006 Ky. LEXIS 123 ( Ky. 2006 ).

Although a Governor’s blanket pardon for individuals involved in a merit system investigation was valid under Ky. Const. § 77 and there was no evidence that defendant rejected the pardon, the order dismissing the indictment was vacated because the Circuit Court lacked jurisdiction and the District Court had exclusive jurisdiction over the misdemeanor charges under KRS 24A.110 . Commonwealth v. Groves, 209 S.W.3d 492, 2006 Ky. App. LEXIS 345 (Ky. Ct. App. 2006).

11.— Conditional.

The Governor, in granting a pardon, may attach to it any condition, precedent or subsequent, which is not illegal, immoral, or impossible of performance. Commonwealth ex rel. Meredith v. Hall, 277 Ky. 612 , 126 S.W.2d 1056, 1939 Ky. LEXIS 685 ( Ky. 1939 ).

The granting of conditional pardons is governed by the common law. Commonwealth ex rel. Meredith v. Hall, 277 Ky. 612 , 126 S.W.2d 1056, 1939 Ky. LEXIS 685 ( Ky. 1939 ).

12.— — Failure to Comply.

The Governor may expressly reserve the right to revoke a conditional pardon without notice to the convict, but, in the absence of such a reservation, the convict is entitled to a judicial determination of the question whether the conditions of the pardon have been violated. Commonwealth ex rel. Meredith v. Hall, 277 Ky. 612 , 126 S.W.2d 1056, 1939 Ky. LEXIS 685 ( Ky. 1939 ).

Where conditional pardon provided that the convict could “by executive order be rearrested and reconfined” for failure to comply with terms of pardon, such rearrest and reconfinement, though without hearing or notice, was not a denial of due process. Commonwealth ex rel. Meredith v. Hall, 277 Ky. 612 , 126 S.W.2d 1056, 1939 Ky. LEXIS 685 ( Ky. 1939 ).

13.— Effect.
14.— — Bail Bond Sureties.

A full pardon for contempt for which a judgment of fine and imprisonment had been imposed relieved the sureties on the offender’s bail bond from liability on their covenant to surrender him or pay to commonwealth $2.00 for each day of imprisonment adjudged. Commonwealth v. Hargis, 137 Ky. 1 , 120 S.W. 294, 1909 Ky. LEXIS 470 ( Ky. 1 909).

15.— — Fines.

When the Governor pardons a person sentenced to pay a fine, the pardon does not afford any relief as to the damages, commissions, costs and taxed fees but only the fine or forfeiture. Commonwealth v. French, 130 Ky. 744 , 114 S.W. 255, 1908 Ky. LEXIS 319 ( Ky. 1908 ).

16.— Erroneous.

Governor may, by a second pardon, correct a pardon previously granted. Jackson v. Rose, 223 Ky. 285 , 3 S.W.2d 641, 1928 Ky. LEXIS 331 ( Ky. 1928 ).

17.— Judicial Review.

No court has power to review action of the Governor in granting pardon and, when pardon, regular on its face and purporting to be signed by Governor then in office, is brought to the attention of the court, it is the duty of the court to discharge defendant and dismiss proceedings against him. Jackson v. Rose, 223 Ky. 285 , 3 S.W.2d 641, 1928 Ky. LEXIS 331 ( Ky. 1928 ).

A federal District Court cannot review an act of the Governor in the exercise or nonexercise of the pardoning power conferred upon him by the Constitution. Elliott v. Kentucky, 45 F. Supp. 902, 1942 U.S. Dist. LEXIS 2668 (D. Ky. 1942 ).

18.— — Fraud.

A pardon secured by deception and fraud may be set aside by the courts, although they have no authority to interfere with the Governor’s exercise of his constitutional authority to grant pardons even in cases of the grossest abuse in his exercise of the pardoning power. Adkins v. Commonwealth, 232 Ky. 312 , 23 S.W.2d 277, 1929 Ky. LEXIS 444 ( Ky. 1929 ).

19.— Offenses.

The Governor may pardon only for offenses against the state. Arnett v. Stumbo, 287 Ky. 433 , 153 S.W.2d 889, 1941 Ky. LEXIS 549 ( Ky. 1941 ).

20.— — City Ordinance Violations.

The Governor has no authority to pardon one convicted of a violation of a city ordinance. Paris v. Hinton, 132 Ky. 684 , 116 S.W. 1197, 1909 Ky. LEXIS 144 ( Ky. 1909 ).

20.5.— Pre-Indictment.

Ky. Const. § 77 does not prohibit the Governor of Kentucky from issuing pardons prior to formal indictment for the pardoned offenses; no language in § 77 identifies a step in criminal proceedings after which a pardon is permissible, and its legislative history shows that its framers considered a pre-indictment pardon as a valid possibility. Fletcher v. Graham, 192 S.W.3d 350, 2006 Ky. LEXIS 123 ( Ky. 2006 ).

21.— Restoration of Privileges.

In addition to the strict pardoning power conferred on the Governor by the Constitution, he also is authorized thereby to restore suffrage and office-holding privileges to a convicted felon. Arnett v. Stumbo, 287 Ky. 433 , 153 S.W.2d 889, 1941 Ky. LEXIS 549 ( Ky. 1941 ).

The defendant was not entitled to have an habitual criminal charge dismissed on the grounds that he had been restored to his civil rights by executive order. Stewart v. Commonwealth, 479 S.W.2d 23, 1972 Ky. LEXIS 289 ( Ky. 1972 ).

Where Governor gave a convicted felon a pardon which restored all of his civil rights, such pardon was only partial and did not remove the finding of guilt or the imposition of penalty. United States v. Barrett, 504 F.2d 629, 1974 U.S. App. LEXIS 6444 (6th Cir. Ky. 1974 ), aff'd, 423 U.S. 212, 96 S. Ct. 498, 46 L. Ed. 2d 450, 1976 U.S. LEXIS 37 (U.S. 1976).

The Legislature has spoken and directed that people (black, white, etc.) who are convicted of felonies involving moral terpitude may not be appointed peace officers. While a Governor’s pardon under this section would at least open the door for former felon’s consideration by the Corrections Cabinet (now Department), his restoration of rights under Const., §§ 145 and 150 does not. Leonard v. Corrections Cabinet, 828 S.W.2d 668, 1992 Ky. App. LEXIS 75 (Ky. Ct. App. 1992).

Trial court properly found that the juror was disqualified from serving on a criminal jury under the pre-2002 version of KRS 29A.080 as a convicted felon, despite the fact that the Governor had restored the juror’s right to vote and to hold public office; the Governor expressly restored the juror’s rights under Ky. Const., §§ 145, 150, both of which dealt with restoration of the right to vote and to hold office, and the Governor had the power under Ky. Const., § 77 to issue the partial pardon excluding the right to serve on a jury. Anderson v. Commonwealth, 107 S.W.3d 193, 2003 Ky. LEXIS 139 ( Ky. 2003 ).

Because a pardon does not erase the fact that the individual was convicted, a pardon does not entitle an individual to expungement of his criminal record. Harscher v. Commonwealth, 327 S.W.3d 519, 2010 Ky. App. LEXIS 235 (Ky. Ct. App. 2010).

22.— Separation of Powers.

Pardon or restoration of citizenship was exercise of power granted specifically to executive branch and was not attempt to transcend or interfere with prerogatives of any other constitutional branch. In re Rudd, 310 Ky. 630 , 221 S.W.2d 688, 1949 Ky. LEXIS 1012 ( Ky. 1949 ).

Great and irreparable injury supporting the issuance of a writ of mandamus sought by the Governor of Kentucky was shown when a circuit court refused to instruct a grand jury investigating alleged criminal violations of a state hiring system scheme on the effect of the Governor’s blanket pardon of indicted and unindicted persons for related offenses; the refusal potentially violated the separation of powers and the Governor’s pardoning power under Ky. Const. § 77, and correction of the possible error was necessary and appropriate in the interest of orderly judicial administration. Fletcher v. Graham, 192 S.W.3d 350, 2006 Ky. LEXIS 123 ( Ky. 2006 ).

Because a pardon is an absolute exemption from all further legal proceedings, a grand jury has no authority to indict a pardoned person; a circuit court therefore abused its authority when it refused to instruct a grand jury investigating alleged criminal violations of a state hiring scheme that a blanket pardon issued by the Governor of Kentucky deprived the grand jury of the authority to issue indictments against persons named in the pardon or falling within the class specified in the pardon. Fletcher v. Graham, 192 S.W.3d 350, 2006 Ky. LEXIS 123 ( Ky. 2006 ).

The Kentucky Supreme Court was without authority to review the wisdom of the actions of the Governor of Kentucky in issuing a blanket pardon to persons under investigation by a grand jury for alleged criminal violations of a state merit system hiring scheme; such an action would have been a brazen violation of separation of powers given the Governor’s broad and unfettered discretion to pardon, and the court’s sole concern was the constitutionality and not the prudence of the Governor’s actions. Fletcher v. Graham, 192 S.W.3d 350, 2006 Ky. LEXIS 123 ( Ky. 2006 ).

23.Parole.

Parole act which conferred on commissioners of the sinking fund the power under certain conditions to parole convicts was not unconstitutional as an infringement of the executive prerogative of granting reprieves and pardons. George v. Lillard, 106 Ky. 820 , 51 S.W. 793, 21 Ky. L. Rptr. 483 , 1899 Ky. LEXIS 115 ( Ky. 1899 ).

The authority to parole conferred upon the board of penitentiary commissioners by the indeterminate sentence law was not violative of this section as there is a difference between a pardon and a parole. Board of Prison Comm'rs v. De Moss, 157 Ky. 289 , 163 S.W. 183, 1914 Ky. LEXIS 277 ( Ky. 1914 ). See Commonwealth ex rel. Attorney Gen. v. Minor, 195 Ky. 103 , 241 S.W. 856, 1922 Ky. LEXIS 295 ( Ky. 1922 ).

Statutory attempt to confer on judge of circuit court the power to parole convicted prisoners is unconstitutional under this section. Huggins v. Caldwell, 223 Ky. 468 , 3 S.W.2d 1101, 1928 Ky. LEXIS 373 ( Ky. 1928 ).

Law authorizing parole of misdemeanants “under the same terms and conditions as paroles” in felony cases was so vague and indefinite in prescribing “terms and conditions” of parole as to be inoperative. Murphy v. Cranfill, 416 S.W.2d 363, 1967 Ky. LEXIS 274 ( Ky. 1967 ).

The power to grant parole is vested exclusively in the executive branch of the government, and thus KRS 439.177 , which authorizes judges to exercise such power, violates Const., §§ 27, 28 and this section and is void. Commonwealth v. Cornelius, 606 S.W.2d 172, 1980 Ky. App. LEXIS 360 (Ky. Ct. App. 1980).

24.Prisoners.
25.— Compensation.

The provision in a law for the payment to prisoners of a small per diem for their labors is not an encroachment upon the powers of the Governor under this section. State Board of Charities & Corrections v. Hays, 190 Ky. 147 , 227 S.W. 282, 1920 Ky. LEXIS 554 ( Ky. 1920 ).

26.— Transfer.

Where competent state authorities released prisoner from confinement in state penitentiary over his objection before the expiration of his sentence to federal authorities for transfer to a federal prison, the state waived any right to subject the prisoner to further imprisonment on the same sentence even though his transfer was not ordered by the Governor. Jones v. Rayborn, 346 S.W.2d 743, 1961 Ky. LEXIS 329 ( Ky. 1961 ), limited, Baker v. Commonwealth, 378 S.W.2d 616, 1964 Ky. LEXIS 191 ( Ky. 1964 ), overruled, Commonwealth v. Hale, 96 S.W.3d 24, 2003 Ky. LEXIS 15 ( Ky. 2003 ).

27.Probation.

Law authorizing court-ordered probation of the sentence of a convicted person is not invalid under this section. Lovelace v. Commonwealth, 285 Ky. 326 , 147 S.W.2d 1029, 1941 Ky. LEXIS 386 ( Ky. 1941 ).

Since KRS 439.265 seems to have the worthy purpose of providing for a 30-to-60-day observation period to be served before the sentencing court is required to reach a final decision as to the granting of probation, such limited control by the courts over their judgments does not violate this section. Commonwealth v. Williamson, 492 S.W.2d 874, 1973 Ky. LEXIS 534 ( Ky. 1973 ).

73.Due Process.

Circuit court properly dismissed two death-row inmates' declaratory judgment complaint because their strong interest in being considered for clemency created an actual controversy as to whether the state officials' alleged failure to adopt clemency standards and procedures violated the federal Due Process Clause, they did not state a claim for relief where the near complete reliance on the Governor for clemency determinations was not at odds with the minimal procedural safeguards, and they did not advance a reason to suppose that the Governor could not or would not provide procedures and decisions to avoid the sort of arbitrariness that might taint a clemency determination. Foley v. Beshear, 462 S.W.3d 389, 2015 Ky. LEXIS 1636 ( Ky. 2015 ), cert. denied, 577 U.S. 1069, 136 S. Ct. 797, 193 L. Ed. 2d 723, 2016 U.S. LEXIS 29 (U.S. 2016).

Cited:

Peck v. Conder, 540 S.W.2d 10, 1976 Ky. LEXIS 32 ( Ky. 1976 ); Brown v. Barkley, 628 S.W.2d 616, 1982 Ky. LEXIS 232 ( Ky. 1982 ); McQueen v. Patton, 948 S.W.2d 121, 1997 Ky. LEXIS 79 ( Ky. 1997 ); McQueen v. Commonwealth, 948 S.W.2d 415, 1997 Ky. LEXIS 77 ( Ky. 1997 ); Baze v. Thompson, 302 S.W.3d 57, 2010 Ky. LEXIS 16 ( Ky. 2010 ); Cameron v. Beshear, 628 S.W.3d 61, 2021 Ky. LEXIS 240 ( Ky. 2021 ).

Opinions of Attorney General.

The Governor has power to pardon infractions of state law but he does not have the power to remit fines inflicted for infractions of municipal ordinances. OAG 61-742 .

Fines can be probated but not costs. OAG 66-225 .

A person on parole or probation for conviction of a felony is not eligible to run for or hold public office under the terms of Section 150 of the Constitution until he has served out his sentence or is pardoned by the Governor and his civil rights are thereafter restored, pursuant to this section. OAG 73-294 .

A Governor’s pardon or other type of rehabilitative action or law is not conclusive proof of rehabilitation of a convicted felon and does not automatically qualify that person for a motor vehicle dealer’s license since it is for the licensing authority to decide whether the applicant has been rehabilitated. OAG 80-388 .

A county judge executive has no authority to commute the sentence of any defendant, including a misdemeanant or felon. OAG 84-352 .

While the Governor may issue executive orders pursuant to the powers granted in Const., §§ 76 to 81 or specifically delegated by the General Assembly, no known grant of power to the Governor authorizes him to declare public policy in contravention of policy established by the General Assembly; therefore, since KRS 64.527 makes a plain expression of public policy declaring that county clerks are subject to salary maximum applicable to “all other public officers” rather than the salary maximum applicable to “officers whose jurisdiction or duties are coextensive with the Commonwealth”, executive order that declared that county clerks are officials whose duties are coextensive with the Commonwealth for the purposes of constitutional salary computations was of no effect. OAG 96-32 .

The language of Ky. Const. § 77, coupled with the ultimate ends of justice, require the Governor to make application materials available for public inspection upon receipt in his office, and the statement of reasons thereon available for inspection immediately upon execution of the written instrument granting or denying pardon. OAG 01-ORD-29.

Research References and Practice Aids

Cross-References.

Pardon of person convicted of dueling, Ky. Const., § 240.

Parole of prisoners, KRS ch. 439.

Kentucky Law Journal.

Snyder and Irland, The Separation of Governmental Powers Under the Constitution of Kentucky: A Legal and Historical Analysis of L.R.C. v. Brown, 73 Ky. L.J. 165 (1984-85).

§ 78. Governor may require information from state officers.

He may require information in writing from the officers of the Executive Department upon any subject relating to the duties of their respective offices.

NOTES TO DECISIONS

Cited:

Brown v. Barkley, 628 S.W.2d 616, 1982 Ky. LEXIS 232 ( Ky. 1982 ); Cameron v. Beshear, 628 S.W.3d 61, 2021 Ky. LEXIS 240 ( Ky. 2021 ).

Opinions of Attorney General.

While the Governor may issue executive orders pursuant to the powers granted in Const., §§ 76 to 81 or specifically delegated by the General Assembly, no known grant of power to the Governor authorizes him to declare public policy in contravention of policy established by the General Assembly; therefore, since KRS 64.527 makes a plain expression of public policy declaring that county clerks are subject to salary maximum applicable to “all other public officers” rather than the salary maximum applicable to “officers whose jurisdiction or duties are coextensive with the Commonwealth”, executive order that declared that county clerks are officials whose duties are coextensive with the Commonwealth for the purposes of constitutional salary computations was of no effect. OAG 96-32 .

Research References and Practice Aids

Cross-References.

Audit, study or survey of state agencies, KRS 11.090 .

Reports to Governor, KRS 12.110 (see also cross-references to KRS ch. 11).

§ 79. Reports and recommendations to General Assembly.

He shall, from time to time, give to the General Assembly information of the state of the Commonwealth, and recommend to their consideration such measures as he may deem expedient.

NOTES TO DECISIONS

1.Recommendations.

Under this section the governor’s recommendations to the legislature are not required to be by proclamation. These recommendations might be made verbally in either of the legislative assembly halls, or in any other manner that the governor might see proper, and they are not required to be made a public record. Stickler v. Higgins, 269 Ky. 260 , 106 S.W.2d 1008, 1937 Ky. LEXIS 592 ( Ky. 1937 ).

Cited:

Brown v. Barkley, 628 S.W.2d 616, 1982 Ky. LEXIS 232 ( Ky. 1982 ); Legislative Research Com. by Prather v. Brown, 664 S.W.2d 907, 1984 Ky. LEXIS 300 ( Ky. 1984 ); Cameron v. Beshear, 628 S.W.3d 61, 2021 Ky. LEXIS 240 ( Ky. 2021 ).

Opinions of Attorney General.

While the Governor may issue executive orders pursuant to the powers granted in Const., §§ 76 to 81 or specifically delegated by the General Assembly, no known grant of power to the Governor authorizes him to declare public policy in contravention of policy established by the General Assembly; therefore, since KRS 64.527 makes a plain expression of public policy declaring that county clerks are subject to salary maximum applicable to “all other public officers” rather than the salary maximum applicable to “officers whose jurisdiction or duties are coextensive with the Commonwealth”, executive order that declared that county clerks are officials whose duties are coextensive with the Commonwealth for the purposes of constitutional salary computations was of no effect. OAG 96-32 .

Research References and Practice Aids

Cross-References.

Budget, KRS 48.010 to 48.800 .

Reports to General Assembly, KRS 12.110 .

§ 80. Governor may call extraordinary session of General Assembly, adjourn General Assembly.

He may, on extraordinary occasions, convene the General Assembly at the seat of government, or at a different place, if that should have become dangerous from an enemy or from contagious diseases. In case of disagreement between the two Houses with respect to the time of adjournment, he may adjourn them to such time as he shall think proper, not exceeding four months. When he shall convene the General Assembly it shall be by proclamation, stating the subjects to be considered, and no others shall be considered.

NOTES TO DECISIONS

1.Purpose.

The purpose of this provision is to inform the public of the nature of matters which may be the subject of legislative action at extraordinary sessions of the General Assembly. Trenton Graded School Dist. v. Board of Education, 278 Ky. 607 , 129 S.W.2d 143, 1939 Ky. LEXIS 474 ( Ky. 1939 ).

2.Adjournment.

The Governor has no power over the time of adjournment of the two (2) houses of the Legislature except in case of disagreement between them. Taylor v. Beckham, 108 Ky. 278 , 56 S.W. 177, 21 Ky. L. Rptr. 1735 , 1900 Ky. LEXIS 39 (Ky.), writ of error dismissed, 178 U.S. 548, 20 S. Ct. 890, 44 L. Ed. 1187, 1900 U.S. LEXIS 1702 (U.S. 1900).

3.Extraordinary Session.

By changing the call date of the extraordinary session, the Governor did not usurp the power of the Legislature to set the time for adjournment as provided in Const., § 36. Guenthner v. Brown, 671 S.W.2d 260, 1984 Ky. App. LEXIS 512 (Ky. Ct. App. 1984).

4.— Right to Convene.

Commonwealth representatives did not have a right under Ky. Const., § 230 to be called into an extraordinary session of the Kentucky General Assembly to end the Kentucky Governor’s allegedly unlawful expenditure of unappropriated state funds under Ky. Const., § 80; whether to call an extraordinary session and what matters were to be addressed in such a session were within the discretion of the Governor. Ky. Const., § 230 did not provide an exception to the separation-of-powers doctrine created by Ky. Const., §§ 27 and 28. Geveden v. Commonwealth ex rel. Fletcher, 142 S.W.3d 170, 2004 Ky. App. LEXIS 251 (Ky. Ct. App. 2004).

5.— — Lieutenant Governor.

Right to convene General Assembly in extraordinary session is not inherent in the power of the Governor, and Lieutenant Governor, while acting as Governor during Governor’s absence from state, has a right to call General Assembly in extraordinary session, the Governor, upon his return to the state, being powerless to revoke such call. Royster v. Brock, 258 Ky. 146 , 79 S.W.2d 707, 1935 Ky. LEXIS 134 ( Ky. 1935 ).

6.— Change of Date.

This section gives the Governor the power to make the call for an extraordinary session and there is nothing in writing or reason to conclude that the Governor lacks the power to change a time and date for an extraordinary session; the Governor has the authority to amend the subject matter of his original proclamation, and there is no reason why his power to change a date should be prohibited. Guenthner v. Brown, 671 S.W.2d 260, 1984 Ky. App. LEXIS 512 (Ky. Ct. App. 1984).

7.— Subjects Considered.

Provision of law authorizing issuance of life certificate to teachers who had taught more than 20 years was invalid as not within the scope of Governor’s call for special session of legislature to enact a revenue measure or make appropriation. Richmond v. Lay, 261 Ky. 138 , 87 S.W.2d 134, 1935 Ky. LEXIS 608 ( Ky. 1935 ).

Governor may add subjects to his proclamation after the General Assembly has convened thereunder, and an act passed is not invalid because it concerned a subject not included in the original proclamation but added thereafter. Stickler v. Higgins, 269 Ky. 260 , 106 S.W.2d 1008, 1937 Ky. LEXIS 592 ( Ky. 1937 ). See Kerr v. Louisville, 271 Ky. 335 , 111 S.W.2d 1046, 1937 Ky. LEXIS 241 ( Ky. 1937 ).

This section is mandatory and limits the power of the General Assembly to the enactment of such laws as relate to the subjects stated in the Governor’s proclamation, and a law relating to another subject is void even though approved by the Governor. Trenton Graded School Dist. v. Board of Education, 278 Ky. 607 , 129 S.W.2d 143, 1939 Ky. LEXIS 474 ( Ky. 1939 ).

Where law specifically excluded straight-party voting, excluded the use of party emblems, and limited the candidate’s designation to the name of the political party by which he was nominated or, if an independent, by the designation specified in his nominating petition, it was within the scope of the special session called for legislative determination of whether to provide for the nonpartisan election of judges of the Court of Appeals and the circuit courts. Mann v. Cornett, 445 S.W.2d 853, 1969 Ky. LEXIS 185 ( Ky. 1969 ).

If legislative action taken at an extraordinary session is not within the subjects specified in the proclamation calling the session, such legislation is void. Jones v. County of Laurel, 600 S.W.2d 489, 1980 Ky. App. LEXIS 330 (Ky. Ct. App. 1980).

The action of the 1979 Extraordinary Session of the General Assembly in amending subsection (3)(j) of KRS 67.083 by deleting the phrase “facilitating the construction of new housing” was beyond the subject matter of the proclamation for the session and was void. Jones v. County of Laurel, 600 S.W.2d 489, 1980 Ky. App. LEXIS 330 (Ky. Ct. App. 1980).

8.— — Acts.

The legislature, in considering a subject named in the proclamation calling an extra session, is not required to include all its legislation thereon in a single act. Trenton Graded School Dist. v. Board of Education, 278 Ky. 607 , 129 S.W.2d 143, 1939 Ky. LEXIS 474 ( Ky. 1939 ).

9.Proclamation.
10.— Clerical Errors.

An obvious clerical error in designating a statute section number in the proclamation will be treated as such and the correct number used in interpreting the call. Trenton Graded School Dist. v. Board of Education, 278 Ky. 607 , 129 S.W.2d 143, 1939 Ky. LEXIS 474 ( Ky. 1939 ).

Cited:

Pen-Ken Gas & Oil Corp. v. Warfield Natural Gas Co., 137 F.2d 871, 1943 U.S. App. LEXIS 2912 (6th Cir. 1943); Wise v. Chandler, 270 Ky. 1 , 108 S.W.2d 1024, 1937 Ky. LEXIS 16 ( Ky. 1 937); Combs v. Matthews, 364 S.W.2d 647, 1963 Ky. LEXIS 206 ( Ky. 1963 ); Brown v. Barkley, 628 S.W.2d 616, 1982 Ky. LEXIS 232 ( Ky. 1982 ); Cameron v. Beshear, 628 S.W.3d 61, 2021 Ky. LEXIS 240 ( Ky. 2021 ).

Opinions of Attorney General.

A proposed amendment to legislation cannot be considered by the General Assembly at an extraordinary session unless the subject matter was specifically included in the Governor’s convening proclamation. OAG 72-377 .

A statute properly drawn, creating interim legislative committees of the General Assembly with powers to conduct research and inquire into and investigate matters leading to legislation would be constitutionally permissible and committees so created could be given subpoena power to assist in performing their functions. OAG 75-391 .

Where the Governor’s proclamation calling a special session stated that the purpose of the session would be the enactment of legislation to implement the Judicial Reform Constitutional Amendment, the proposed call was sufficiently broad to cover the passage of legislation designed to spell out any needed changes in the State Auditor’s role and officer accountability as applied to the judicial reform matter and affected county government. OAG 76-679 .

A proposal that would have the effect of permitting the General Assembly to recess for an unspecified number of days without pay, prior to sine die adjournment, for the purpose of returning to vote to override vetoes of the Governor would be unconstitutional since it is not germane to the proclamation calling the General Assembly into extraordinary session. OAG 79-87 .

For an opinion indicating the effective date of Senate Bill 7 (1993 [1st Extra. Sess.] Ky. Acts ch. 4), passed during the session with an emergency provision, as well as certain dates in a “transition schedule” contained in that legislation, see OAG 93-25 .

The “normal” effective date for legislation enacted during the 1993 First Extraordinary Session of the Kentucky General Assembly, that is, the effective date for legislation which does not contain an emergency provision or a delayed effective date, is May 18, 1993. OAG 93-25 .

While the Governor may issue executive orders pursuant to the powers granted in Const., §§ 76 to 81 or specifically delegated by the General Assembly, no known grant of power to the Governor authorizes him to declare public policy in contravention of policy established by the General Assembly; therefore, since KRS 64.527 makes a plain expression of public policy declaring that county clerks are subject to salary maximum applicable to “all other public officers” rather than the salary maximum applicable to “officers whose jurisdiction or duties are coextensive with the Commonwealth”, executive order that declared that county clerks are officials whose duties are coextensive with the Commonwealth for the purposes of constitutional salary computations was of no effect. OAG 96-32 .

Research References and Practice Aids

Cross-References.

Regular sessions, time and place of, length, Const., §§ 36, 42.

Kentucky Bench & Bar.

Toner and Call, Three Cases That Shaped Kentucky’s History, 56 Ky. Bench & B. 11.

Kentucky Law Journal.

Snyder and Irland, The Separation of Governmental Powers Under the Constitution of Kentucky: A Legal and Historical Analysis of L.R.C. v. Brown, 73 Ky. L.J. 165 (1984-85).

§ 81. Governor to enforce laws.

He shall take care that the laws be faithfully executed.

NOTES TO DECISIONS

1.In General.

The Governor of Kentucky’s policy concerning the signing of death warrants is strictly an executive function. Bowling v. Commonwealth, 926 S.W.2d 667, 1996 Ky. LEXIS 17 (Ky.), cert. denied, 517 U.S. 1223, 116 S. Ct. 1855, 134 L. Ed. 2d 955, 1996 U.S. LEXIS 3486 (U.S. 1996).

Trial court did not err in the state employees’ lawsuit seeking declaratory and injunctive relief from the suspension of a statute that directed that they get at least a five percent annual raise in finding that the General Assembly could retroactively suspend that statute, KRS 18A.355 ; although the governor, the defendant in the lawsuit, did not have the power to suspend statutes, the General Assembly did have it and could exercise it because it had manifested an intent to do so. Baker v. Fletcher, 204 S.W.3d 589, 2006 Ky. LEXIS 153 ( Ky. 2006 ).

2.Pardon.

Under this section and Const., §§ 77 and 79, the Governor had no authority to pardon one convicted of violation of city ordinance. Paris v. Hinton, 132 Ky. 684 , 116 S.W. 1197, 1909 Ky. LEXIS 144 ( Ky. 1909 ).

3.Military Forces.

The Governor is charged by the Constitution and law with the duty of preserving the peace and quiet of the state and to protect the life and property of its citizens, and, to accomplish this end, may use all the military forces of the state. Franks v. Smith, 142 Ky. 232 , 134 S.W. 484, 1911 Ky. LEXIS 217 ( Ky. 1911 ) ( Ky. 1911 ).

The Court of Appeals cannot inquire into motives and reasons which may underlie the governor’s dispatch of troops into a county to inquire into reports of lawlessness therein. Begley v. Louisville Times Co., 272 Ky. 805 , 115 S.W.2d 345, 1938 Ky. LEXIS 206 ( Ky. 1938 ).

4.Invalid Restriction on Powers.

The restriction placed on the executive by former law, which in essence provided that if the Legislative Research Commission or its subcommittee could not constitutionally veto proposed regulations then the executive department could not issue any more regulations, effectively and unconstitutionally limited and interfered with the Governor’s mandated duties; therefore, former law was void as being in contravention of the Governor’s constitutional duty to faithfully execute the laws of the Commonwealth under Const., § 69 and this section. Legislative Research Com. by Prather v. Brown, 664 S.W.2d 907, 1984 Ky. LEXIS 300 ( Ky. 1984 ).

5.Authority.

The Governor’s policy of providing defense counsel up to three (3) days from the date of receipt of a death warrant request to respond in writing is not affected by RCr 11.42 (10), which serves as an outer time limit on the bringing of such actions and in no way affects the prerogatives of the Governor with respect to enforcement of criminal judgments. Bowling v. Commonwealth, 926 S.W.2d 667, 1996 Ky. LEXIS 17 (Ky.), cert. denied, 517 U.S. 1223, 116 S. Ct. 1855, 134 L. Ed. 2d 955, 1996 U.S. LEXIS 3486 (U.S. 1996).

6.Immunity.

When a nursing home owner moved to file an amended complaint against the Governor to assert claims of official misconduct under KRS 522.020 and KRS 522.030 , pursuant to KRS 446.070 allowing actions for statutory violations, the owner’s motion was properly denied because under Ky. Const. § 81 the governor was absolutely immune for official acts taken while in office, and the owner was claiming that state agencies harassed the owner’s nursing home after the owner terminated an affair with the Conner v. Patton, 2007 Ky. App. Unpub. LEXIS 213 (Ky. Ct. App. Oct. 26, 2007), review denied, ordered not published, 2008 Ky. LEXIS 246 (Ky. Oct. 15, 2008).

Cited:

Brown v. Barkley, 628 S.W.2d 616, 1982 Ky. LEXIS 232 ( Ky. 1982 ); Hoskins v. Maricle, 150 S.W.3d 1, 2004 Ky. LEXIS 196 ( Ky. 2004 ); Cameron v. Beshear, 628 S.W.3d 61, 2021 Ky. LEXIS 240 ( Ky. 2021 ).

Opinions of Attorney General.

While the Governor may issue executive orders pursuant to the powers granted in Const., §§ 76 to 81 or specifically delegated by the General Assembly, no known grant of power to the Governor authorizes him to declare public policy in contravention of policy established by the General Assembly; therefore, since KRS 64.527 makes a plain expression of public policy declaring that county clerks are subject to salary maximum applicable to “all other public officers” rather than the salary maximum applicable to “officers whose jurisdiction or duties are coextensive with the Commonwealth”, executive order that declared that county clerks are officials whose duties are coextensive with the Commonwealth for the purposes of constitutional salary computations was of no effect. OAG 96-32 .

Research References and Practice Aids

Kentucky Law Journal.

Jones, Mansion or Fortress? The Legal Merits of Temporary Immunity from Criminal Prosecution for Kentucky’s Chief Executive, 96 Ky. L.J. 669 (2007).

§ 82. Succession of Lieutenant Governor.

The Lieutenant Governor shall be ineligible to the office of Lieutenant Governor for the succeeding four (4) years after the expiration of any second consecutive term for which he shall have been elected.

History. Amendment, proposed by Acts 1992, ch. 168, § 6, ratified November 3, 1992.

Compiler’s Notes.

The General Assembly in 1992 (Acts 1992, ch. 168, § 6) proposed an amendment to the Constitution which amendment was ratified by the voters at the regular election November 3, 1992. Prior to the amendment this section read:

“§ 82. Lieutenant Governor — Election, term, qualifications — Not to succeed himself. — A Lieutenant Governor shall be chosen at every regular election for Governor, in the same manner, to continue in office for the same time, and possess the same qualifications as the Governor. He shall be ineligible to the office of Lieutenant Governor for the succeeding four years after the expiration of the term for which he shall have been elected.”

Section 19 of Acts 1992, ch. 168 provided: “It is further proposed as a part of this amendment and as a schedule of transitional provisions, for the purposes of this amendment, and any other provision of the Constitution of Kentucky notwithstanding:

“(1) The Governor; Lieutenant Governor; Treasurer; Auditor of Public Accounts; Attorney General; Secretary of State; Commissioner of Agriculture, Labor and Statistics; Superintendent of Public Instruction; and Railroad Commissioners elected in 1991 shall be ineligible for election to the same office for the succeeding term. Those officers elected in 1995 shall be eligible for election to the next succeeding term.

“(2) The term of office of Commonwealth’s Attorneys and Circuit Clerks elected in 1993 shall be for a single term of seven years. The regular election for those offices shall then be held in 2000 and every six years thereafter.

“(3) The term of office of District Judges, Mayors, County Judges/Executive, and local officers who regularly serve a four-year term and who are scheduled to be elected in 1993 shall be for a single term of five years. The regular election for those offices shall then be held in 1998 and every four years thereafter.

“(4) The term of office for local officers who regularly serve a two-year term and who are scheduled to be elected in 1993 shall be for a single term of three years. The regular election for those offices shall then be held in 1996 and every two years thereafter.

“(5) The term of office for Circuit Judges and Judges of the Court of Appeals elected in 1999 shall be for a single term of seven years. The regular election for those offices shall then be held in 2006 and every eight years thereafter.

“(6) The term of office for mayor, magistrate, or other officer not specifically provided for in subsection (4) of this section elected in 1995 shall be extended for one year and subsequent elections for offices subject to the provisions of this subsection shall be held in even-numbered years.

“(7) No person holding elective office upon the effective date of this amendment shall have the duration of his current term extended. However, if the next election of any officer not specifically provided for in this section is scheduled to appear on the ballot in an odd-numbered year, the duration of that term of the officer elected shall be extended for one year. The election for any office subject to the provisions of this subsection shall subsequently be held in even-numbered years.”

NOTES TO DECISIONS

Cited:

Schardein v. Harrison, 230 Ky. 1 , 18 S.W.2d 316, 1929 Ky. LEXIS 5 ( Ky. 1 929).

Opinions of Attorney General.

Where a regular army officer has not been an actual resident of Kentucky for the preceding six years but Kentucky has always been his official home of record and during his entire military service he annually paid Kentucky income tax and voted by absentee ballot in local, state and national elections, the question of whether his residence in Kentucky qualifies him to run for lieutenant-governor would have to be decided by courts under the legal guidelines governing domicile and residence and the only practical method of settling this question is for the officer to file for the office and await any possible challenge. OAG 75-89 .

§ 83. Lieutenant Governor is President of Senate — Right to vote. [Repealed.]

Compiler’s Notes.

This section was repealed by the 1992 proposal of the General Assembly (Acts 1992, ch. 168, § 18) which was ratified by the voters at the regular election on November 3, 1992. Prior to its repeal, this section read:

“§ 83. Lieutenant Governor is President of Senate — Right to vote. — He shall, by virtue of his office, be President of the Senate, have a right, when in Committee of the Whole, to debate and vote on all subjects, and when the Senate is equally divided, to give the casting vote. ”

Section 19 of Acts 1992, ch. 168 provided: “It is further proposed as a part of this amendment and as a schedule of transitional provisions, for the purposes of this amendment, and any other provision of the Constitution of Kentucky notwithstanding:

“(1) The Governor; Lieutenant Governor; Treasurer; Auditor of Public Accounts; Attorney General; Secretary of State; Commissioner of Agriculture, Labor and Statistics; Superintendent of Public Instruction; and Railroad Commissioners elected in 1991 shall be ineligible for election to the same office for the succeeding term. Those officers elected in 1995 shall be eligible for election to the next succeeding term.

“(2) The term of office of Commonwealth’s Attorneys and Circuit Clerks elected in 1993 shall be for a single term of seven years. The regular election for those offices shall then be held in 2000 and every six years thereafter.

“(3) The term of office of District Judges, Mayors, County Judges/Executive, and local officers who regularly serve a four-year term and who are scheduled to be elected in 1993 shall be for a single term of five years. The regular election for those offices shall then be held in 1998 and every four years thereafter.

“(4) The term of office for local officers who regularly serve a two-year term and who are scheduled to be elected in 1993 shall be for a single term of three years. The regular election for those offices shall then be held in 1996 and every two years thereafter.

“(5) The term of office for Circuit Judges and Judges of the Court of Appeals elected in 1999 shall be for a single term of seven years. The regular election for those offices shall then be held in 2006 and every eight years thereafter.

“(6) The term of office for mayor, magistrate, or other officer not specifically provided for in subsection (4) of this section elected in 1995 shall be extended for one year and subsequent elections for offices subject to the provisions of this subsection shall be held in even-numbered years.

“(7) No person holding elective office upon the effective date of this amendment shall have the duration of his current term extended. However, if the next election of any officer not specifically provided for in this section is scheduled to appear on the ballot in an odd-numbered year, the duration of that term of the officer elected shall be extended for one year. The election for any office subject to the provisions of this subsection shall subsequently be held in even-numbered years.”

§ 84. When Lieutenant Governor to act as Governor — President of the Senate not to preside at impeachment of Governor — Certification of disability of Governor.

Should the Governor be impeached and removed from office, die, refuse to qualify, resign, certify by entry on his Journal that he is unable to discharge the duties of his office, or be, from any cause, unable to discharge the duties of his office, the Lieutenant Governor shall exercise all the power and authority appertaining to the office of Governor until another be duly elected and qualified, or the Governor shall be able to discharge the duties of his office. On the trial of the Governor, the President of the Senate shall not preside over the proceedings, but the Chief Justice of the Supreme Court shall preside during the trial.

If the Governor, due to physical or mental incapacitation, is unable to discharge the duties of his office, the Attorney General may petition the Supreme Court to have the Governor declared disabled. If the Supreme Court determines in a unanimous decision that the Governor is unable to discharge the duties of his office, the Chief Justice shall certify such disability to the Secretary of State who shall enter same on the Journal of the Acts of the Governor, and the Lieutenant Governor shall assume the duties of the Governor, and shall act as Governor until the Supreme Court determines that the disability of the Governor has ceased to exist. Before the Governor resumes his duties, the finding of the Court that the disability has ceased shall be certified by the Chief Justice to the Secretary of State who shall enter such finding on the Journal of the Acts of the Governor.

History. Amendment, proposed by Acts 1992, ch. 168, § 7, ratified November 3, 1992.

Compiler’s Notes.

The General Assembly in 1992 (Acts 1992, ch. 168, § 7) proposed an amendment to the Constitution which amendment was ratified by the voters at the regular election November 3, 1992. Prior to the amendment this section read:

“§ 84. When Lieutenant Governor to act as Governor — Not to preside at impeachment of Governor. — Should the Governor be impeached and removed from office, die, refuse to qualify, resign, be absent from the State, or be, from any cause, unable to discharge the duties of his office, the Lieutenant Governor shall exercise all the power and authority appertaining to the Office of Governor until another be duly elected and qualified, or the Governor shall return or be able to discharge the duties of his office. On the trial of the Governor, the Lieutenant Governor shall not act as President of the Senate or take part in the proceedings, but the Chief Justice of the Court of Appeals shall preside during the trial.”

Section 19 of Acts 1992, ch. 168, provided: “It is further proposed as a part of this amendment and as a schedule of transitional provisions, for the purposes of this amendment, and any other provision of the Constitution of Kentucky notwithstanding:

“(1) The Governor; Lieutenant Governor; Treasurer; Auditor of Public Accounts; Attorney General; Secretary of State; Commissioner of Agriculture, Labor and Statistics; Superintendent of Public Instruction; and Railroad Commissioners elected in 1991 shall be ineligible for election to the same office for the succeeding term. Those officers elected in 1995 shall be eligible for election to the next succeeding term.

“(2) The term of office of Commonwealth’s Attorneys and Circuit Clerks elected in 1993 shall be for a single term of seven years. The regular election for those offices shall then be held in 2000 and every six years thereafter.

“(3) The term of office of District Judges, Mayors, County Judges/Executive, and local officers who regularly serve a four-year term and who are scheduled to be elected in 1993 shall be for a single term of five years. The regular election for those offices shall then be held in 1998 and every four years thereafter.

“(4) The term of office for local officers who regularly serve a two-year term and who are scheduled to be elected in 1993 shall be for a single term of three years. The regular election for those offices shall then be held in 1996 and every two years thereafter.

“(5) The term of office for Circuit Judges and Judges of the Court of Appeals elected in 1999 shall be for a single term of seven years. The regular election for those offices shall then be held in 2006 and every eight years thereafter.

“(6) The term of office for mayor, magistrate, or other officer not specifically provided for in subsection (4) of this section elected in 1995 shall be extended for one year and subsequent elections for offices subject to the provisions of this subsection shall be held in even-numbered years.

“(7) No person holding elective office upon the effective date of this amendment shall have the duration of his current term extended. However, if the next election of any officer not specifically provided for in this section is scheduled to appear on the ballot in an odd-numbered year, the duration of that term of the officer elected shall be extended for one year. The election for any office subject to the provisions of this subsection shall subsequently be held in even-numbered years.”

NOTES TO DECISIONS

Cited:

Schardein v. Harrison, 230 Ky. 1 , 18 S.W.2d 316, 1929 Ky. LEXIS 5 ( Ky. 1 929 ); Rouse v. Johnson, 234 Ky. 473 , 28 S.W.2d 745, 1930 Ky. LEXIS 220 , 70 A.L.R. 1077 ( Ky. 1930 ).

Opinions of Attorney General.

For a governor to be “absent from the state” it is not necessarily sufficient that he merely be physically absent, but rather, a more likely test is where there is no immediate need for a particular action to be taken, the governor remains such even though temporarily out of state. OAG 75-681 .

§ 85. President of Senate — Election — Powers.

A President of the Senate shall be elected by each Senate as soon after its organization as possible and as often as there is a vacancy in the office of President, another President of the Senate shall be elected by the Senate, if in session. And if, during the vacancy of the office of Governor, the Lieutenant Governor shall be impeached and removed from office, refuse to qualify, resign, or die, the President of the Senate shall in like manner administer the government.

History. Amendment, proposed by Acts 1992, ch. 168, § 8, ratified November 3, 1992.

Compiler’s Notes.

The General Assembly in 1992 (Acts 1992, ch. 168, § 8) proposed an amendment to the Constitution which amendment was ratified by the voters at the regular election November 3, 1992. Prior to the amendment this section read:

“§ 85. President Pro Tem of Senate — Election, powers — Election to fill vacancy in office of Governor. — A President Pro Tempore of the Senate shall be elected by each Senate as soon after its organization as possible, the Lieutenant Governor vacating his seat as President of the Senate until such election shall be made; and as often as there is a vacancy in the office of President Pro Tempore, another President Pro Tempore of the Senate shall be elected by the Senate, if in session. And if, during the vacancy of the office of Governor, the Lieutenant Governor shall be impeached and removed from office, refuse to qualify, resign, die or be absent from the Senate, the President Pro Tempore of the Senate shall in like manner administer the government: Provided, whenever a vacancy shall occur in the office of Governor before the first two years of the term shall have expired, a new election for Governor shall take place to fill such vacancy.”

Section 19 of Acts 1992, ch. 168 provided: “It is further proposed as a part of this amendment and as a schedule of transitional provisions, for the purposes of this amendment, and any other provision of the Constitution of Kentucky notwithstanding:

“(1) The Governor; Lieutenant Governor; Treasurer; Auditor of Public Accounts; Attorney General; Secretary of State; Commissioner of Agriculture, Labor and Statistics; Superintendent of Public Instruction; and Railroad Commissioners elected in 1991 shall be ineligible for election to the same office for the succeeding term. Those officers elected in 1995 shall be eligible for election to the next succeeding term.

“(2) The term of office of Commonwealth’s Attorneys and Circuit Clerks elected in 1993 shall be for a single term of seven years. The regular election for those offices shall then be held in 2000 and every six years thereafter.

“(3) The term of office of District Judges, Mayors, County Judges/Executive, and local officers who regularly serve a four-year term and who are scheduled to be elected in 1993 shall be for a single term of five years. The regular election for those offices shall then be held in 1998 and every four years thereafter.

“(4) The term of office for local officers who regularly serve a two-year term and who are scheduled to be elected in 1993 shall be for a single term of three years. The regular election for those offices shall then be held in 1996 and every two years thereafter.

“(5) The term of office for Circuit Judges and Judges of the Court of Appeals elected in 1999 shall be for a single term of seven years. The regular election for those offices shall then be held in 2006 and every eight years thereafter.

“(6) The term of office for mayor, magistrate, or other officer not specifically provided for in subsection (4) of this section elected in 1995 shall be extended for one year and subsequent elections for offices subject to the provisions of this subsection shall be held in even-numbered years.

“(7) No person holding elective office upon the effective date of this amendment shall have the duration of his current term extended. However, if the next election of any officer not specifically provided for in this section is scheduled to appear on the ballot in an odd-numbered year, the duration of that term of the officer elected shall be extended for one year. The election for any office subject to the provisions of this subsection shall subsequently be held in even-numbered years.”

NOTES TO DECISIONS

Cited:

Schardein v. Harrison, 230 Ky. 1 , 18 S.W.2d 316, 1929 Ky. LEXIS 5 ( Ky. 1 929 ); Furste v. Gray, 240 Ky. 604 , 42 S.W.2d 889, 1931 Ky. LEXIS 458 ( Ky. 1931 ).

Opinions of Attorney General.

For a governor to be “absent from the state” it is not necessarily sufficient that he merely be physically absent, but rather, a more likely test is where there is no immediate need for a particular action to be taken, the governor remains such even though temporarily out of state. OAG 75-681 .

Research References and Practice Aids

Cross-References.

President pro tem is member of Legislative Research Commission, KRS 7.090 .

Special election for governor, KRS 118.710 .

§ 86. Compensation of President of the Senate.

The President of the Senate shall receive for his services the same compensation which shall, for the same period, be allowed to the Speaker of the House of Representatives, and during the time he administers the government as Governor, he shall receive the same compensation which the Governor would have received had he been employed in the duties of his office.

History. Amendment, proposed by Acts 1992, ch. 168, § 9, ratified November 3, 1992.

Compiler’s Notes.

The General Assembly in 1992 (Acts 1992, ch. 168, § 9) proposed an amendment to the Constitution which amendment was ratified by the voters at the regular election November 3, 1992. Prior to the amendment this section read:

“§ 86. Compensation of Lieutenant Governor and President Pro Tempore of the Senate. — The Lieutenant Governor, or President Pro Tempore of the Senate, while he as President of the Senate, shall receive for his services the same compensation which shall, for the same period, be allowed to the Speaker of the House of Respresentatives, and during the time he administers the government as Governor, he shall receive the same compensation which the Governor would have received had he been employed in the duties of his office.”

Section 19 of Acts 1992, ch. 168 provided: “It is further proposed as a part of this amendment and as a schedule of transitional provisions, for the purposes of this amendment, and any other provision of the Constitution of Kentucky notwithstanding:

“(1) The Governor; Lieutenant Governor; Treasurer; Auditor of Public Accounts; Attorney General; Secretary of State; Commissioner of Agriculture, Labor and Statistics; Superintendent of Public Instruction; and Railroad Commissioners elected in 1991 shall be ineligible for election to the same office for the succeeding term. Those officers elected in 1995 shall be eligible for election to the next succeeding term.

“(2) The term of office of Commonwealth’s Attorneys and Circuit Clerks elected in 1993 shall be for a single term of seven years. The regular election for those offices shall then be held in 2000 and every six years thereafter.

“(3) The term of office of District Judges, Mayors, County Judges/Executive, and local officers who regularly serve a four-year term and who are scheduled to be elected in 1993 shall be for a single term of five years. The regular election for those offices shall then be held in 1998 and every four years thereafter.

“(4) The term of office for local officers who regularly serve a two-year term and who are scheduled to be elected in 1993 shall be for a single term of three years. The regular election for those offices shall then be held in 1996 and every two years thereafter.

“(5) The term of office for Circuit Judges and Judges of the Court of Appeals elected in 1999 shall be for a single term of seven years. The regular election for those offices shall then be held in 2006 and every eight years thereafter.

“(6) The term of office for mayor, magistrate, or other officer not specifically provided for in subsection (4) of this section elected in 1995 shall be extended for one year and subsequent elections for offices subject to the provisions of this subsection shall be held in even-numbered years.

“(7) No person holding elective office upon the effective date of this amendment shall have the duration of his current term extended. However, if the next election of any officer not specifically provided for in this section is scheduled to appear on the ballot in an odd-numbered year, the duration of that term of the officer elected shall be extended for one year. The election for any office subject to the provisions of this subsection shall subsequently be held in even-numbered years.”

Opinions of Attorney General.

This section authorizes both the Lieutenant-Governor and the President Pro Tempore of the senate to be compensated while acting as Governor. OAG 75-681 .

Research References and Practice Aids

Cross-References.

Annual salary of lieutenant governor, KRS 64.480 .

Compensation of governor, KRS 64.480 .

Compensation of speaker of house and president of senate, KRS 6.190 .

§ 87. Who to act as Governor in absence of Lieutenant Governor and President of the Senate.

If the Lieutenant Governor shall be called upon to administer the government in place of the Governor, and shall, while in such administration, resign, or die during the recess of the General Assembly, if there be no President of the Senate, it shall be the duty of the Attorney General, for the time being, to convene the Senate for the purpose of choosing a President; and until a President is chosen, the Attorney General shall administer the government. If there be no Attorney General to perform the duties devolved upon him by this section, then the Auditor, for the time being, shall convene the Senate for the purpose of choosing a President, and shall administer the government until a President is chosen.

History. Amendment, proposed by Acts 1992, ch. 168, § 10, ratified November 3, 1992.

Compiler’s Notes.

The General Assembly in 1992 (Acts 1992, ch. 168, § 10) proposed an amendment to the Constitution which amendment was ratified by the voters at the regular election on November 3, 1992. Prior to the amendment this section read:

“§ 87. Who to act as Governor in absence of Lieutenant Governor and President Pro Tem of the Senate. — If the Lieutenant Governor shall be called upon to administer the government, and shall, while in such administration, resign, die, or be absent from the State during the recess of the General Assembly, if there be no President Pro Tempore of the Senate, it shall be the duty of the Secretary of State, for the time being, to convene the Senate for the purpose of choosing a President; and until a President is chosen, the Secretary of State shall administer the government. If there be no Secretary of State to perform the duties devolved upon him by this section, or in case that officer be absent from the State, then the Attorney General, for the time being, shall convene the Senate for the purpose of choosing a President, and shall administer the government until a President is chosen.”

Section 19 of Acts 1992, ch. 168 provided: “It is further proposed as a part of this amendment and as a schedule of transitional provisions, for the purposes of this amendment, and any other provision of the Constitution of Kentucky notwithstanding:

“(1) The Governor; Lieutenant Governor; Treasurer; Auditor of Public Accounts; Attorney General; Secretary of State; Commissioner of Agriculture, Labor and Statistics; Superintendent of Public Instruction; and Railroad Commissioners elected in 1991 shall be ineligible for election to the same office for the succeeding term. Those officers elected in 1995 shall be eligible for election to the next succeeding term.

“(2) The term of office of Commonwealth’s Attorneys and Circuit Clerks elected in 1993 shall be for a single term of seven years. The regular election for those offices shall then be held in 2000 and every six years thereafter.

“(3) The term of office of District Judges, Mayors, County Judges/Executive, and local officers who regularly serve a four-year term and who are scheduled to be elected in 1993 shall be for a single term of five years. The regular election for those offices shall then be held in 1998 and every four years thereafter.

“(4) The term of office for local officers who regularly serve a two-year term and who are scheduled to be elected in 1993 shall be for a single term of three years. The regular election for those offices shall then be held in 1996 and every two years thereafter.

“(5) The term of office for Circuit Judges and Judges of the Court of Appeals elected in 1999 shall be for a single term of seven years. The regular election for those offices shall then be held in 2006 and every eight years thereafter.

“(6) The term of office for mayor, magistrate, or other officer not specifically provided for in subsection (4) of this section elected in 1995 shall be extended for one year and subsequent elections for offices subject to the provisions of this subsection shall be held in even-numbered years.

“(7) No person holding elective office upon the effective date of this amendment shall have the duration of his current term extended. However, if the next election of any officer not specifically provided for in this section is scheduled to appear on the ballot in an odd-numbered year, the duration of that term of the officer elected shall be extended for one year. The election for any office subject to the provisions of this subsection shall subsequently be held in even-numbered years.”

§ 88. Signature of bills by Governor — Veto — Passage over veto — Partial veto.

Every bill which shall have passed the two Houses shall be presented to the Governor. If he approve, he shall sign it; but if not, he shall return it, with his objections, to the House in which it originated, which shall enter the objections in full upon its journal, and proceed to reconsider it. If, after such reconsideration, a majority of all the members elected to that House shall agree to pass the bill, it shall be sent, with the objections, to the other House, by which it shall likewise be considered, and if approved by a majority of all the members elected to that House, it shall be a law; but in such case the votes of both Houses shall be determined by yeas and nays, and the names of the members voting for and against the bill shall be entered upon the journal of each House respectively. If any bill shall not be returned by the Governor within ten days (Sundays excepted) after it shall have been presented to him, it shall be a law in like manner as if he had signed it, unless the General Assembly, by their adjournment, prevent its return, in which case it shall be a law, unless disapproved by him within ten days after the adjournment, in which case his veto message shall be spread upon the register kept by the Secretary of State. The Governor shall have the power to disapprove any part or parts of appropriation bills embracing distinct items, and the part or parts disapproved shall not become a law unless reconsidered and passed, as in case of a bill.

NOTES TO DECISIONS

1.Emergency Clause.

A bill containing an emergency clause becomes a law immediately upon its passage over the governor’s veto. Commissioners of Sinking Fund v. George, 104 Ky. 260 , 47 S.W. 779, 20 Ky. L. Rptr. 938 , 1898 Ky. LEXIS 211 ( Ky. 1898 ).

A bill containing an emergency clause became a law without the signature of the Governor ten (10) days after it was received by him. Louisville Car Wheel & R. Supply Co. v. Louisville, 146 Ky. 573 , 142 S.W. 1043, 1912 Ky. LEXIS 102 ( Ky. 1912 ). See Ficke v. Board of Trustees, 262 Ky. 312 , 90 S.W.2d 66, 1936 Ky. LEXIS 25 ( Ky. 1936 ).

2.Governor’s Approval.
3.— Absence.

The vote of the electorate on a proper question presented to it by legislative enactment cures any defect involved in the omission of the required approval by the Governor. Stovall v. Gartrell, 332 S.W.2d 256, 1960 Ky. LEXIS 141 ( Ky. 1960 ).

4.Governor’s Discretion.

As long as a bill remains in the custody of the Governor and under his control, he may reconsider or retract any approval or disapproval previously made, for the final act in the exercise of his discretion has not been consummated; but when he returns the bill to the house in which it originated with a veto message, or signs and delivers it to the secretary of state, he exhausts his power in the matter and the time allotted to him for deliberation and his discretion has expired. Royster v. Brock, 258 Ky. 146 , 79 S.W.2d 707, 1935 Ky. LEXIS 134 ( Ky. 1935 ).

5.Invalid Bills.

Failure of the Governor to veto or return bill to originating house, as required by this section, could not operate to validate bill which was invalid by express terms of Const., § 56. Hamlett v. McCreary, 153 Ky. 755 , 156 S.W. 410, 1913 Ky. LEXIS 920 ( Ky. 1913 ).

The Governor cannot, by his approval, validate a bill which lacks the required signatures of the presiding officers of the two (2) houses of the General Assembly. Kavanaugh v. Chandler, 255 Ky. 182 , 72 S.W.2d 1003, 1934 Ky. LEXIS 187 ( Ky. 1934 ).

6.Return of Bills.
7.— Ten Days.

The meaning of the words “within ten days,” as they appear in the latter part of this section, is ten (10) days following adjournment exclusive of Sundays. Watkins v. Waterfield, 297 S.W.2d 761, 1956 Ky. LEXIS 23 ( Ky. 1956 ).

8.Veto.

Where the State Constitution gives the veto power to the Governor, it includes the power to veto an act of the State Legislature prescribing the time, place and manner of holding elections for representatives in congress. Smiley v. Holm, 285 U.S. 355, 52 S. Ct. 397, 76 L. Ed. 795, 1932 U.S. LEXIS 440 (U.S. 1932).

When a bill vetoed by the Governor is repassed by each house over his veto, it is not necessary for the bill to be recertified by the presiding officers. Perkins v. Lucas, 197 Ky. 1 , 246 S.W. 150, 1922 Ky. LEXIS 633 ( Ky. 1 922).

In computing the ten (10) day period within which the Governor must veto a bill to prevent its becoming law, the day of presentment is excluded but the last day is included. Lewis v. Cozine, 234 Ky. 781 , 29 S.W.2d 34, 1930 Ky. LEXIS 271 ( Ky. 1930 ). See Cammack v. Harris, 234 Ky. 846 , 29 S.W.2d 567, 1930 Ky. LEXIS 283 ( Ky. 1930 ).

The Governor, in exercising his power to veto legislation, is acting primarily as a part of the legislative process and his veto must receive the same presumption of validity and constitutionality as is afforded the Legislature’s action in passing legislation. Cammack v. Harris, 234 Ky. 846 , 29 S.W.2d 567, 1930 Ky. LEXIS 283 ( Ky. 1930 ).

Where the Governor’s veto message does not contain the reasons for his veto, the veto is invalid whether issued by him during the legislative session at which the bill was passed or after the session has been adjourned. Arnett v. Meredith, 275 Ky. 223 , 121 S.W.2d 36, 1938 Ky. LEXIS 404 ( Ky. 1938 ).

9.Introduction of Budget.

The former provisions of KRS 48.310 , which required the budget to be introduced as a joint resolution, rather than as a bill, flew directly in the face of the provisions of Const., § 47 and this section, and were therefore, unconstitutional to that extent. Legislative Research Com. by Prather v. Brown, 664 S.W.2d 907, 1984 Ky. LEXIS 300 ( Ky. 1984 ) (decision prior to the 1984 amendment of KRS 48.310 ).

Cited:

Geneva Cooperage Co. v. Brown, 124 Ky. 16 , 30 Ky. L. Rptr. 272 , 98 S.W. 279, 1906 Ky. LEXIS 235 ( Ky. 1906 ); State Budget Com. v. Lebus, 244 Ky. 700 , 51 S.W.2d 965, 1932 Ky. LEXIS 502 ( Ky. 1932 ); Hacker v. Baesler, 812 S.W.2d 706, 1991 Ky. LEXIS 45 ( Ky. 1991 ).

Opinions of Attorney General.

The Governor has ten (10) full days, beginning the day after the day of adjournment and excluding Sundays, to review legislation submitted to him. OAG 76-155 .

Under this section the Governor is entitled to 10 full days after the day of adjournment, excluding Sundays, to review legislation submitted to him. OAG 78-149 .

Any bill presented to the Governor on or after April 4, 1980, would permit him to consider such bill for an additional full ten (10) days after the 1980 session adjourns on April 15, since the ten (10) day period that he may review legislation during the session and prior to adjournment (excluding the day presented and intervening Sundays) under the terms of this section would not end until April 16, 1980, the day after adjournment. OAG 80-204 .

If the General Assembly does not adjourn until April 15 as permitted by Const., § 42, the Governor has, pursuant to this section, ten (10) full days after adjournment (excluding Sundays) to review legislation submitted to him within the last ten (10) days (excluding Sundays) immediately prior to adjournment; therefore, assuming that April 15, 1980, will be the day of adjournment for the 1980 Legislature, that day must be excluded as well as Sunday, April 20, and the ten (10) day period would extend through Saturday, April 26 (the tenth day); thus, the Governor would have until 12:00 midnight Saturday, April 26, to act on legislation presented to him within the last ten (10) days (excluding Sundays) prior to adjournment. OAG 80-204 .

The Governor’s reasons or objections for vetoing a particular bill must accompany his veto to be effective and must be filed with the proper officers and within the time frame prescribed in this section; thus, since a veto is not consummated until it, together with the Governor’s objection, is delivered to the clerk of the senate when it is still in session, if the veto message concerning Acts 1982, ch. 458 was not received until 12:04 a.m. on the eleventh day after enactment, then the veto was not consummated within the ten (10) day time period prescribed by the Constitution, in spite of the fact that the vetoed bill was received at 11:56 p.m. on the tenth day which was within the required time frame. OAG 82-194 .

Research References and Practice Aids

Cross-References.

Bill proposing constitutional amendment or submitting classification of property to referendum not subject to veto, Const., §§ 171, 256.

Date of approval to be shown at end of bill, KRS 6.240 .

Kentucky Law Journal.

Snyder and Irland, The Separation of Governmental Powers Under the Constitution of Kentucky: A Legal and Historical Analysis of L.R.C. v. Brown, 73 Ky. L.J. 165 (1984-85).

§ 89. Concurrent orders and resolutions on same footing as bill.

Every order, resolution or vote, in which the concurrence of both Houses may be necessary, except on a question of adjournment, or as otherwise provided in this Constitution, shall be presented to the Governor, and, before it shall take effect, be approved by him; or, being disapproved, shall be repassed by a majority of the members elected to both Houses, according to the rules and limitations prescribed in case of a bill.

NOTES TO DECISIONS

Cross-References

Cross-References

See note to Const., § 88 under the heading “3. —Absence”, Stovall v. Gartrell, 332 S.W.2d 256, 1960 Ky. LEXIS 141 ( Ky. 1960 ).

1.Joint Resolutions.
2.— Approval Not Required.

A joint resolution authorizing a meeting of the joint assembly for the purpose of electing penitentiary commissioners was not required to be presented to the Governor for his approval. Commissioners of Sinking Fund v. George, 104 Ky. 260 , 47 S.W. 779, 20 Ky. L. Rptr. 938 , 1898 Ky. LEXIS 211 ( Ky. 1898 ).

3.— Effect.

A joint resolution of the legislature authorizing a suit against the Commonwealth for injuries resulting from negligence must be regarded as having the force and effect of a law, although joint resolutions are not always or necessarily so regarded. Commonwealth v. McCoun, 313 S.W.2d 585, 1958 Ky. LEXIS 272 ( Ky. 1958 ).

Cited:

Legislative Research Com. by Prather v. Brown, 664 S.W.2d 907, 1984 Ky. LEXIS 300 ( Ky. 1984 ).

§ 90. Contest of election for Governor or Lieutenant Governor.

Contested elections for Governor and Lieutenant Governor shall be determined by both Houses of the General Assembly, according to such regulations as may be established by law.

NOTES TO DECISIONS

1.Judicial Review.

The courts have no power to inquire into the sufficiency of the notice of contest or the fact as to whether the election contest board was or was not fairly drawn. Such board was only a preliminary agency to take evidence and report it and the General Assembly itself determined the contest. Taylor v. Beckham, 108 Ky. 278 , 56 S.W. 177, 21 Ky. L. Rptr. 1735 , 1900 Ky. LEXIS 39 (Ky.), writ of error dismissed, 178 U.S. 548, 20 S. Ct. 890, 44 L. Ed. 1187, 1900 U.S. LEXIS 1702 (U.S. 1900).

Research References and Practice Aids

Cross-References.

Contest, how tried, KRS 120.195 , 120.205 .

Tie vote, how determined, Const., § 70.

Kentucky Bench & Bar.

Toner and Call, Three Cases That Shaped Kentucky’s History, 56 Ky. Bench & B. 11.

§ 91. Constitutional State officers — Election — Qualifications — Term of office — Duties — Secretary of State to record acts of Governor and report them to General Assembly.

A Treasurer, Auditor of Public Accounts, Commissioner of Agriculture, Labor and Statistics, Secretary of State, and Attorney-General, shall be elected by the qualified voters of the State at the same time the Governor and Lieutenant Governor are elected, for the term of four years, each of whom shall be at least thirty years of age at the time of his election, and shall have been a resident citizen of the State at least two years next before his election. The duties of all these officers shall be such as may be prescribed by law, and the Secretary of State shall keep a fair register of and attest all the official acts of the Governor, and shall, when required, lay the same and all papers, minutes and vouchers relative thereto before either House of the General Assembly. The officers named in this section shall enter upon the discharge of their duties the first Monday in January after their election, and shall hold their offices until their successors are elected and qualified.

History. Amendment, proposed by Acts 1992, ch. 168, § 11, and ratified November 3, 1992.

Compiler’s Notes.

The General Assembly in 1992 (Acts 1992, ch. 168, § 11) proposed an amendment to the Constitution which amendment was ratified by the voters at the regular election November 3, 1992. Prior to the amendment this section read:

“§ 91. Constitutional state officers — Election, qualification, term of office — Duties — Secretary of State to record acts of Governor and report them to General Assembly. — A Treasurer, Auditor of Public Accounts, Register of the Land Office, Commissioner of Agriculture, Labor and Statistics, Secretary of State, Attorney General and Superintendent of Public Instruction, shall be be elected by the qualified voters of the State at the same time the Governor is elected, for the term of four years, each of whom shall be at least thirty years of age at the time of his election, and shall have been a resident citizen of the State at least two years next before his election. The duties of all these officers shall be such as may be prescribed by law, and the Secretary of State shall keep a fair register of and attest all the official acts of the Governor, and shall, when required, lay the same and all papers, minutes and vouchers relative thereto before either House of the General Assembly. The officers named in this section shall enter upon the discharge of their duties the first Monday in January after their election, and shall hold their offices until their successors are elected and qualified.”

Section 19 of Acts 1992, ch. 168 provided: “It is further proposed as a part of this amendment and as a schedule of transitional provisions, for the purposes of this amendment, and any other provision of the Constitution of Kentucky notwithstanding:

“(1) The Governor; Lieutenant Governor; Treasurer; Auditor of Public Accounts; Attorney General; Secretary of State; Commissioner of Agriculture, Labor and Statistics; Superintendent of Public Instruction; and Railroad Commissioners elected in 1991 shall be ineligible for election to the same office for the succeeding term. Those officers elected in 1995 shall be eligible for election to the next succeeding term.

“(2) The term of office of Commonwealth’s Attorneys and Circuit Clerks elected in 1993 shall be for a single term of seven years. The regular election for those offices shall then be held in 2000 and every six years thereafter.

“(3) The term of office of District Judges, Mayors, County Judges/Executive, and local officers who regularly serve a four-year term and who are scheduled to be elected in 1993 shall be for a single term of five years. The regular election for those offices shall then be held in 1998 and every four years thereafter.

“(4) The term of office for local officers who regularly serve a two-year term and who are scheduled to be elected in 1993 shall be for a single term of three years. The regular election for those offices shall then be held in 1996 and every two years thereafter.

“(5) The term of office for Circuit Judges and Judges of the Court of Appeals elected in 1999 shall be for a single term of seven years. The regular election for those offices shall then be held in 2006 and every eight years thereafter.

“(6) The term of office for mayor, magistrate, or other officer not specifically provided for in subsection (4) of this section elected in 1995 shall be extended for one year and subsequent elections for offices subject to the provisions of this subsection shall be held in even-numbered years.

“(7) No person holding elective office upon the effective date of this amendment shall have the duration of his current term extended. However, if the next election of any officer not specifically provided for in this section is scheduled to appear on the ballot in an odd-numbered year, the duration of that term of the officer elected shall be extended for one year. The election for any office subject to the provisions of this subsection shall subsequently be held in even-numbered years.”

NOTES TO DECISIONS

1.Attorney General.

Legislature was to prescribe duties of Attorney General. Commonwealth v. Southern Pac. Co., 127 Ky. 358 , 105 S.W. 466, 32 Ky. L. Rptr. 259 , 32 Ky. L. Rptr. 285 , 1907 Ky. LEXIS 138 ( Ky. 1907 ).

Although the Attorney General possesses duties and rights deriving from the common law, the Legislature, under the mandate of this section, may restrict his powers as well as add to them, providing such action does not strip his office of such duties as to leave it ineffective or unable to fulfill its necessary functions. Johnson v. Commonwealth, 291 Ky. 829 , 165 S.W.2d 820, 1942 Ky. LEXIS 329 ( Ky. 1942 ).

Unless authorized by law or decision of the Court of Appeals, the Attorney General has no authority to intervene in will contests which may involve a charitable trust absent a showing that such intervention would have been permitted under the established and recognized common law of England before 1607. Commonwealth ex rel. Ferguson v. Gardner, 327 S.W.2d 947, 1959 Ky. LEXIS 82 ( Ky. 1959 ).

In addition to duties prescribed by law pursuant to this section, the Attorney General had certain common-law duties. Matthews v. Pound, 403 S.W.2d 7, 1966 Ky. LEXIS 310 ( Ky. 1966 ).

2.Commissioner of Agriculture.

The specific powers and duties of the State Commissioner of Agriculture must be ascertained from the specific legislation passed by the General Assembly pursuant to this section and provided for therein. Ferguson v. Chandler, 266 Ky. 694 , 99 S.W.2d 732, 1936 Ky. LEXIS 709 ( Ky. 1936 ).

3.Secretary of State.
4.— Register.

The General Assembly was charged with notice of appointments by the Governor to the State Textbook Commission, since these appointments were duly recorded in the register kept by the Secretary of State in accordance with this section. Bell v. Sampson, 232 Ky. 376 , 23 S.W.2d 575, 1930 Ky. LEXIS 11 ( Ky. 1930 ). See McChesney v. Sampson, 232 Ky. 395 , 23 S.W.2d 584, 1930 Ky. LEXIS 12 ( Ky. 1930 ).

Pursuant to this section which requires the Secretary of State to maintain a register of the official acts of the Governor, gubernatorial appointments to the State Highway Commission must be made in writing. Johnson v. Sampson, 232 Ky. 648 , 24 S.W.2d 306, 1930 Ky. LEXIS 57 ( Ky. 1930 ).

5.Auditor of Public Accounts.

Where this section and Ky. Const., § 93, provide that the duties and responsibilities of the Auditor of Public Accounts shall be prescribed by law, the Auditor cannot, with respect to the judicial branch of the government, constitutionally be given any authority that the legislative body has no right to confer. Ex parte Auditor of Public Accounts, 609 S.W.2d 682, 1980 Ky. LEXIS 274 ( Ky. 1980 ).

6.Control of Governor.

As the Governor is the supreme executive power, it is not possible for the General Assembly to create another executive officer or officers who will not be subject to that supremacy, but it definitely has the prerogative of withholding executive powers from him by assigning them to the constitutional officers named in this section who are not amenable to his supervision and control. Brown v. Barkley, 628 S.W.2d 616, 1982 Ky. LEXIS 232 ( Ky. 1982 ).

Except for the informational duty specified in Const., § 78, the officers named in this section are not and cannot be placed under the control or supervision of the Governor. Brown v. Barkley, 628 S.W.2d 616, 1982 Ky. LEXIS 232 ( Ky. 1982 ).

7.Powers and Duties.

The officers named in this section have no powers or duties not assigned to them by statute, except for the clerical duties placed on the Secretary of State by the Constitution and the common-law prerogatives of the Attorney General that have not been removed or diminished by statute. Brown v. Barkley, 628 S.W.2d 616, 1982 Ky. LEXIS 232 ( Ky. 1982 ).

Whatever powers, duties, personnel, funds or property are given by statute to an officer named in this section, they may be removed by statute and may be transferred by executive order if, and only if, such a transfer is authorized by statute. Brown v. Barkley, 628 S.W.2d 616, 1982 Ky. LEXIS 232 ( Ky. 1982 ).

Because the Kentucky General Assembly lawfully passed legislation which amended the power of the Governor of the Commonwealth of Kentucky to respond to emergencies, the Governor’s complaint did not present a substantial legal question that necessitated staying the effectiveness of the legislation, and the equities favored implementation of the legislation pending an adjudication of the constitutionality of the legislation, the circuit court abused its discretion by issuing a temporary injunction against implementation of the legislation. Cameron v. Beshear, 2021 Ky. LEXIS 240 (Ky. Aug. 21, 2021).

8.— Transfer by Governor.

The Governor has no constitutional or statutory power to transfer powers, duties, personnel, funds or property that have been assigned by the General Assembly to a department headed by an officer named in this section. Brown v. Barkley, 628 S.W.2d 616, 1982 Ky. LEXIS 232 ( Ky. 1982 ).

Cited:

Campbell v. Dotson, 111 Ky. 1 25 , 23 Ky. L. Rptr. 510 , 63 S.W. 480, 1901 Ky. LEXIS 193 ( Ky. 1 901 ); Olmstead v. Augustus, 112 Ky. 365 , 23 Ky. L. Rptr. 1772 , 65 S.W. 817, 1901 Ky. LEXIS 318 ( Ky. 1901 ); Smith v. Coulter, 113 Ky. 74 , 23 Ky. L. Rptr. 2384 , 67 S.W. 1, 1902 Ky. LEXIS 11 ( Ky. 1902 ); Byrne & Speed Coal Co. v. Louisville, 189 Ky. 346 , 224 S.W. 883, 1920 Ky. LEXIS 429 ( Ky. 1920 ); Booth v. Board of Education, 191 Ky. 147 , 229 S.W. 84, 1921 Ky. LEXIS 267 ( Ky. 1921 ); Schardein v. Harrison, 230 Ky. 1, 18 S.W.2d 316, 1929 Ky. LEXIS 5 ( Ky. 1929 ); Royster v. Brock, 258 Ky. 146 , 79 S.W.2d 707, 1935 Ky. LEXIS 134 ( Ky. 1935 ); Ferguson v. Redding, 304 S.W.2d 927, 1957 Ky. LEXIS 291 ( Ky. 1957 ); Commonwealth ex rel. Hancock v. Paxton, 516 S.W.2d 865, 1974 Ky. LEXIS 181 ( Ky. 1974 ); Graham v. Mills, 694 S.W.2d 698, 1985 Ky. LEXIS 236 ( Ky. 1985 ); Commonwealth v. Johnson, 423 S.W.3d 718, 2014 Ky. LEXIS 87 ( Ky. 2014 ).

Opinions of Attorney General.

An executive order relating to reorganization becomes effective when properly filed with the secretary of state. OAG 69-51 .

The Attorney General is charged with the duty of serving as chief law officer and adviser, but he has no law enforcement power or authority. OAG 70-522 .

The Governor may under KRS 12.025 (repealed) reorganize by executive order the Department of Agriculture, which is administered by a constitutional officer, until the General Assembly reconvenes since the Department of Agriculture is clearly a department for Chapter 12 purposes under KRS 12.020 , since the General Assembly has not specifically exempted a department headed by an elected official from the KRS 12.025 (repealed) reorganization powers of the Governor, as was done with certain other departments, and since the Governor in the absence of the General Assembly can prescribe through executive order the duties and responsibilities of the Commissioner of Agriculture under this section and Const., § 93; however, the Governor cannot strip a constitutional officer of all duties under KRS 12.025 (repealed) and leave an empty shell for him to administer since the General Assembly could not do this while it was in session. OAG 81-3 .

Since the auditor is required to audit the accounts of Circuit Court clerks, the Legislature is required to appropriate moneys to fund the audit activity. OAG 81-41 .

The Auditor of Public Accounts has no right to conduct audits of Circuit Court clerks, as a permissive mandatory matter, if he is not statutorily required or permitted to conduct such audits; however in view of the direct involvement of the Circuit Court clerks in putting money into the State Treasury and expending money coming out of the State Treasury, and in view of the express language of KRS 43.050(2)(a) and 43.010 , the Auditor of Public Accounts is required to audit the Circuit Court clerks of Kentucky in the areas of state treasury involvement, within the practical capabilities of his staff and budget, and considering other mandatory audits. OAG 81-41 .

Research References and Practice Aids

Cross-References.

Attorney general, KRS ch. 15.

Auditor of public accounts, KRS ch. 43.

Commissioner of agriculture, KRS ch. 246.

Official acts to be attested by secretary of state, KRS 14.040 .

Register of land office, secretary of state to perform duties of, KRS 56.230 to 56.320 .

Secretary of state, KRS ch. 14.

Superintendent of public instruction, KRS ch. 156.

Treasurer, KRS ch. 41.

Kentucky Law Journal.

Snyder and Irland, The Separation of Governmental Powers Under the Constitution of Kentucky: A Legal and Historical Analysis of L.R.C. v. Brown, 73 Ky. L.J. 165 (1984-85).

§ 92. Qualifications of Attorney General.

The Attorney-General shall have been a practicing lawyer eight years before his election.

§ 93. Succession of elected Constitutional State Officers — Duties — Inferior officers and members of boards and commissions.

The Treasurer, Auditor of Public Accounts, Secretary of State, Commissioner of Agriculture, Labor and Statistics, and Attorney General shall be ineligible to reelection for the succeeding four years after the expiration of any second consecutive term for which they shall have been elected. The duties and responsibilities of these officers shall be prescribed by law, and all fees collected by any of said officers shall be covered into the treasury. Inferior State officers and members of boards and commissions, not specifically provided for in this Constitution, may be appointed or elected, in such manner as may be prescribed by law, which may include a requirement of consent by the Senate, for a term not exceeding four years, and until their successors are appointed or elected and qualified.

History. Amendment, proposed by Acts 1992, ch. 168, § 12, and ratified November 3, 1992.

Compiler’s Notes.

The General Assembly in 1992 (Acts 1992, ch. 168, § 12) proposed an amendment to the Constitution which amendment was ratified by the voters at the regular election November 3, 1992. Prior to the amendment this section read:

“§ 93. Constitutional state officers not to succeed themselves — Duties — Fees — Inferior state officers — Term. — The Treasurer, Auditor of Public Accounts, Secretary of State, Commissioner of Agriculture, Labor and Statistics, Attorney General, Superintendent of Public Instruction and Register of the Land Office shall be ineligible to re-election for the succeeding four years after the expiration of the term for which they shall have been elected. The duties and responsibilities of these officers shall be prescribed by law, and all fees collected by any of said officers shall be covered into the treasury. Inferior state officers, not specifically provided for in this Constitution, may be appointed or elected, in such manner as may be prescribed by law, for a term not exceeding four years, and until their successors are appointed or elected and qualified.”

Section 19 of Acts 1992, ch. 168 provided: “It is further proposed as a part of this amendment and as a schedule of transitional provisions, for the purposes of this amendment, and any other provision of the Constitution of Kentucky notwithstanding:

“(1) The Governor; Lieutenant Governor; Treasurer; Auditor of Public Accounts; Attorney General; Secretary of State; Commissioner of Agriculture, Labor and Statistics; Superintendent of Public Instruction; and Railroad Commissioners elected in 1991 shall be ineligible for election to the same office for the succeeding term. Those officers elected in 1995 shall be eligible for election to the next succeeding term.

“(2) The term of office of Commonwealth’s Attorneys and Circuit Clerks elected in 1993 shall be for a single term of seven years. The regular election for those offices shall then be held in 2000 and every six years thereafter.

“(3) The term of office of District Judges, Mayors, County Judges/Executive, and local officers who regularly serve a four year term and who are scheduled to be elected in 1993 shall be for a single term of five years. The regular election for those offices shall then be held in 1998 and every four years thereafter.

“(4) The term of office for local officers who regularly serve a two-year term and who are scheduled to be elected in 1993 shall be for a single term of three years. The regular election for those offices shall then be held in 1996 and every two years thereafter.

“(5) The term of office for Circuit Judges and Judges of the Court of Appeals elected in 1999 shall be for a single term of seven years. The regular election for those offices shall then be held in 2006 and every eight years thereafter.

“(6) The term of office for mayor, magistrate, or other officer not specifically provided for in subsection (4) of this section elected in 1995 shall be extended for one year and subsequent elections for offices subject to the provisions of this subsection shall be held in even-numbered years.

“(7) No person holding elective office upon the effective date of this amendment shall have the duration of his current term extended. However, if the next election of any officer not specifically provided for in this section is scheduled to appear on the ballot in an odd-numbered year, the duration of that term of the officer elected shall be extended for one year. The election for any office subject to the provisions of this subsection shall subsequently be held in even-numbered years.”

NOTES TO DECISIONS

1.Creation of Officers.

Under this section only inferior state officers could be created. Pratt v. Breckinridge, 66 S.W. 405, 23 Ky. L. Rptr. 1858 , 1902 Ky. LEXIS 463 ( Ky. 1902 ).

2.— Appointment.

The act known as the “Goebel Election Law,” to the extent that it provided for the appointment of election commissioners by the Legislature, was an invasion of the powers of the executive and therefore unconstitutional. Pratt v. Breckinridge, 112 Ky. 1 , 65 S.W. 136, 23 Ky. L. Rptr. 1356 , 1901 Ky. LEXIS 286 ( Ky. 1 901).

Law in which the General Assembly specifically named the first members of a State Highway Commission created thereby is not authorized by this section and is unconstitutional as a violation of the separation of powers under Const., §§ 27 and 28. Sibert v. Garrett, 197 Ky. 17 , 246 S.W. 455, 1922 Ky. LEXIS 639 ( Ky. 1922 ). See Sewell v. Bennett, 187 Ky. 626 , 220 S.W. 517, 1920 Ky. LEXIS 179 ( Ky. 1920 ).

The General Assembly may, under this section, authorize the Speaker of the House and the President of the Senate to appoint a commission to establish normal schools. Craig v. O'Rear, 199 Ky. 553 , 251 S.W. 828, 1923 Ky. LEXIS 894 ( Ky. 1923 ).

The appointment of an examiner to hold office at the pleasure of the court does not conflict with this section. Kratzer v. Commonwealth, 228 Ky. 684 , 15 S.W.2d 473, 1929 Ky. LEXIS 616 ( Ky. 1929 ).

This section constitutes a limitation on the Governor’s constitutional power to fill vacancies and, under this section, a law providing that members of the State Highway Commission be appointed by a board created by that law is valid. Rouse v. Johnson, 234 Ky. 473 , 28 S.W.2d 745, 1930 Ky. LEXIS 220 ( Ky. 1930 ).

This section does not invalidate law creating a city personnel commission and empowering it to appoint a personnel director to hold office during good behavior. Kerr v. Louisville, 271 Ky. 335 , 111 S.W.2d 1046, 1937 Ky. LEXIS 241 ( Ky. 1937 ).

Trial court erred in dismissing an appointed education council member’s declaratory action that claimed appointment of a nominee when the general assembly was not in session was invalid, because Ky. Const. § 93 was ambiguous and language permitting the senate to confirm nominees led to a strong presumption that the house was intentionally excluded from the confirmation process. Fox v. Grayson, 317 S.W.3d 1, 2010 Ky. LEXIS 88 ( Ky. 2010 ).

3.— — Senate Approval.

The General Assembly, in providing for the method of appointment by the Governor of members of the Workers’ Compensation Board, was fully empowered by this section to condition such appointments on the approval or rejection of the senate. Sewell v. Bennett, 187 Ky. 626 , 220 S.W. 517, 1920 Ky. LEXIS 179 ( Ky. 1920 ).

The Kentucky State Senate has the inherent power to advise and consent on executive branch appointments of inferior state officers. Kraus v. Kentucky State Senate, 872 S.W.2d 433, 1993 Ky. LEXIS 169 ( Ky. 1993 ), limited, Fox v. Grayson, 317 S.W.3d 1, 2010 Ky. LEXIS 88 ( Ky. 2010 ).

The procedure for advice and consent of subsection (3) of KRS 342.230 is constitutional; there is no violation of the separation of powers doctrine because the statute does not permit the Senate to make appointments of administrative law judges but only to accept or reject the decision of the Worker's Compensation Board. Kraus v. Kentucky State Senate, 872 S.W.2d 433, 1993 Ky. LEXIS 169 ( Ky. 1993 ), limited, Fox v. Grayson, 317 S.W.3d 1, 2010 Ky. LEXIS 88 ( Ky. 2010 ).

4.— Election.

Under this section and Const., § 107, the Legislature had power to pass an act creating Board of Penitentiary Commissioners and providing for their election by the Legislature. Commissioners of Sinking Fund v. George, 104 Ky. 260 , 20 Ky. L. Rptr. 938 , 47 S.W. 779, 1898 Ky. LEXIS 211 ( Ky. 1 898 ), overruled in part, Pratt v. Breckinridge, 112 Ky. 1 , 23 Ky. L. Rptr. 1356 , 65 S.W. 136, 1901 Ky. LEXIS 286 ( Ky. 1901 ). See Pratt v. Breckinridge, 112 Ky. 1, 65 S.W. 136, 23 Ky. L. Rptr. 1356 , 1901 Ky. LEXIS 286 ( Ky. 1901 ).

5.Duties.

Although the Attorney General possesses duties and rights deriving from the common law, the Legislature, under the mandate of Const., § 91, may restrict his powers as well as add to them, providing such action does not strip his office of such duties as to leave it ineffective or unable to fulfill its necessary functions. Johnson v. Commonwealth, 291 Ky. 829 , 165 S.W.2d 820, 1942 Ky. LEXIS 329 ( Ky. 1942 ).

Legislative designation of specific duties and responsibilities of treasurer under this section did not extinguish implied obligations of his office, and thus treasurer could raise good faith constitutional question concerning legality of claim upon treasury. Raney v. Stovall, 361 S.W.2d 518, 1962 Ky. LEXIS 246 ( Ky. 1962 ).

Where Const., § 91, and this section provide that the duties and responsibilities of the auditor of public accounts shall be prescribed by law, the auditor cannot, with respect to the judicial branch of the government, constitutionally be given any authority that the legislative body has no right to confer. Ex parte Auditor of Public Accounts, 609 S.W.2d 682, 1980 Ky. LEXIS 274 ( Ky. 1980 ).

6.Term.

Where an act creating the office of prison commissioners provided a term of six (6) years for one of the commissioners, the excess of the term over four (4) years was void. Commissioners of Sinking Fund v. George, 104 Ky. 260 , 47 S.W. 779, 20 Ky. L. Rptr. 938 , 1898 Ky. LEXIS 211 ( Ky. 1898 ).

A law providing that policemen shall not be removed by the board of safety during good behavior would seem, to the extent that it attempted to give a term of more than four (4) years, to be violative of this section. Fiscal Court of Franklin County v. Commonwealth, 139 Ky. 307 , 117 S.W. 301, 1909 Ky. LEXIS 3 ( Ky. 1909 ). See Louisville v. Ross, 138 Ky. 764 , 129 S.W. 101, 1910 Ky. LEXIS 131 ( Ky. 1910 ).

The metropolitan police bill providing for the appointment of policemen to hold office either during good behavior or at the pleasure of the appointing power was not unconstitutional as authorizing an appointment for a longer term than a term of years. Louisville v. Ross, 138 Ky. 764 , 129 S.W. 101, 1910 Ky. LEXIS 131 ( Ky. 1910 ).

An act creating the office of railroad policeman is not violative of this section in failing to limit the term of office for a time not exceeding four (4) years, but the term of office is limited to four (4) years. Cincinnati, N. O. & T. P. R. Co. v. Cundiff, 166 Ky. 594 , 179 S.W. 615, 1915 Ky. LEXIS 755 ( Ky. 1915 ).

Where the university trustee’s six (6) year term had expired, and the 1988 General Assembly repealed the provisions in KRS 164.130 (now repealed), 164.320 (now repealed), and 164.820 (now repealed) providing for six (6) year terms for trustees and regents at various state universities, the trustee’s appeal from judgments declaring the six (6) year term unconstitutional was moot, even though the action was transferred to the Supreme Court under subsection (2) of CR 76.18 (deleted by Supreme Court Order) because it was of great and immediate public interest. Jones v. Forgy, 750 S.W.2d 434, 1988 Ky. LEXIS 28 ( Ky. 1988 ).

7.— Hold Over After Expiration.

This section, with others of constitution, make it plain that the constitution makers intended that all public officers, except members of the General Assembly and members of municipal legislative boards, should hold over after the expiration of their fixed terms and until their successors are elected and qualified. Byrne & Speed Coal Co. v. Louisville, 189 Ky. 346 , 224 S.W. 883, 1920 Ky. LEXIS 429 ( Ky. 1920 ). See Booth v. Board of Education, 191 Ky. 147 , 229 S.W. 84, 1921 Ky. LEXIS 267 ( Ky. 1921 ).

8.— Separate.

Law providing for the sheriff to act as delinquent tax collector after his term does not extend his term as sheriff but creates an entirely separate and distinct office and term, and is not violative of this section. Petty v. Talbott, 256 Ky. 688 , 76 S.W.2d 940, 1934 Ky. LEXIS 475 ( Ky. 1934 ).

Cited:

Kirkpatrick v. Brownfield, 97 Ky. 558 , 31 S.W. 137, 17 Ky. L. Rptr. 376 , 1895 Ky. LEXIS 222 ( Ky. 1 895 ); Campbell v. Dotson, 111 Ky. 1 25 , 63 S.W. 480, 23 Ky. L. Rptr. 510 , 1901 Ky. LEXIS 193 ( Ky. 1901 ); Olmstead v. Augustus, 112 Ky. 365 , 65 S.W. 817, 23 Ky. L. Rptr. 1772 , 1901 Ky. LEXIS 318 (Ky. Ct. App. 1901); Schardein v. Harrison, 230 Ky. 1, 18 S.W.2d 316, 1929 Ky. LEXIS 5 ( Ky. 1929 ); Ferguson v. Redding, 304 S.W.2d 927, 1957 Ky. LEXIS 291 ( Ky. 1957 ); Commonwealth ex rel. Hancock v. Paxton, 516 S.W.2d 865, 1974 Ky. LEXIS 181 ( Ky. 1974 ); Brown v. Barkley, 628 S.W.2d 616, 1982 Ky. LEXIS 232 ( Ky. 1982 ); Legislative Research Com. by Prather v. Brown, 664 S.W.2d 907, 1984 Ky. LEXIS 300 ( Ky. 1984 ); Graham v. Mills, 694 S.W.2d 698, 1985 Ky. LEXIS 236 ( Ky. 1985 ); Commonwealth v. Johnson, 423 S.W.3d 718, 2014 Ky. LEXIS 87 ( Ky. 2014 ).

Opinions of Attorney General.

Acts 1966, ch. 93 (KRS 164.740 to 164.764 ) is unconstitutional insofar as it attempts to authorize terms of office of eight (8) years for the board of directors of the Kentucky Higher Education Assistance Authority, but the unconstitutional portion is severable from the remainder of the act. OAG 66-447 .

Two (2) members of the State Labor Relations Board whose terms have expired without their reappointment or the appointment of new members by the Governor could continue to serve in their positions until they were either reappointed or until their successors were appointed and qualified. OAG 76-309 .

The Governor may under KRS 12.025 (repealed) reorganize by executive order the Department of Agriculture, which is administered by a constitutional officer, until the General Assembly reconvenes since the Department of Agriculture is clearly a department for Chapter 12 purposes under KRS 12.020 , since the General Assembly has not specifically exempted a department headed by an elected official from the KRS 12.025 (repealed) reorganization powers of the governor, as was done with certain other departments, and since the governor in the absence of the General Assembly can prescribe through executive order the duties and responsibilities of the commissioner of agriculture under Const., § 91 and this section; however, the governor cannot strip a constitutional officer of all duties under KRS 12.025 (repealed) and leave an empty shell for him to administer since the General Assembly could not do this while it was in session. OAG 81-3 .

The State Legislature cannot establish a six (6) year term for the office of property valuation administrator in view of the fact that this office is a minor state office, the term of which is limited to four (4) years pursuant to this section. OAG 82-38 .

The position of member of a state university board of trustees or board of regents meets the criteria of a state office, the term of which is limited to four (4) years pursuant to this section; therefore, the State Legislature cannot establish a six (6) year term for the office of state university board of regents or board of trustees member. OAG 85-141 .

Research References and Practice Aids

Cross-References.

Fees to be paid into treasury, KRS 41.070 .

When officers to enter upon duties, KRS 61.030 (see cross-references under Const., § 91).

Kentucky Bench & Bar.

Lear and Fleenor, Board and Commission Appointments: Executive Power — With Limits, Vol. 72, No. 4, July 2008, Ky. Bench & Bar 23.

Kentucky Law Journal.

Snyder and Irland, The Separation of Governmental Powers Under the Constitution of Kentucky: A Legal and Historical Analysis of L.R.C. v. Brown, 73 Ky. L.J. 165 (1984-85).

§ 94. Register of Land Office may be abolished. [Repealed.]

Compiler’s Notes.

This section was repealed by the proposal of the General Assembly (Acts 1992, ch. 168, § 18) which was ratified by the voters at the regular election on November 3, 1992. Prior to its repeal, the section read:

“§ 94. Register of Land Office may be abolished. — The General Assembly may provide for the abolishment of the office of Register of Land Office, to take effect at the end of any term, and shall provide by law for the custody and preservation of the papers and records of said office, if the same be abolished.”

Section 19 of Acts 1992, ch. 168 provided: “It is further proposed as a part of this amendment and as a schedule of transitional provisions, for the purposes of this amendment, and any other provision of the Constitution of Kentucky notwithstanding:

“(1) The Governor; Lieutenant Governor; Treasurer; Auditor of Public Accounts; Attorney General; Secretary of State; Commissioner of Agriculture, Labor and Statistics; Superintendent of Public Instruction; and Railroad Commissioners elected in 1991 shall be ineligible for election to the same office for the succeeding term. Those officers elected in 1995 shall be eligible for election to the next succeeding term.

“(2) The term of office of Commonwealth’s Attorneys and Circuit Clerks elected in 1993 shall be for a single term of seven years. The regular election for those offices shall then be held in 2000 and every six years thereafter.

“(3) The term of office of District Judges, Mayors, County Judges/Executive, and local officers who regularly serve a four-year term and who are scheduled to be elected in 1993 shall be for a single term of five years. The regular election for those offices shall then be held in 1998 and every four years thereafter.

“(4) The term of office for local officers who regularly serve a two-year term and who are scheduled to be elected in 1993 shall be for a single term of three years. The regular election for those offices shall then be held in 1996 and every two years thereafter.

“(5) The term of office for Circuit Judges and Judges of the Court of Appeals elected in 1999 shall be for a single term of seven years. The regular election for those offices shall then be held in 2006 and every eight years thereafter.

“(6) The term of office for mayor, magistrate, or other officer not specifically provided for in subsection (4) of this section elected in 1995 shall be extended for one year and subsequent elections for offices subject to the provisions of this subsection shall be held in even-numbered years.

“(7) No person holding elective office upon the effective date of this amendment shall have the duration of his current term extended. However, if the next election of any officer not specifically provided for in this section is scheduled to appear on the ballot in an odd-numbered year, the duration of that term of the officer elected shall be extended for one year. The election for any office subject to the provisions of this subsection shall subsequently be held in even-numbered years.”

§ 95. Time of election of elected Constitutional State officers.

The election under this Constitution for Governor, Lieutenant Governor, Treasurer, Auditor of Public Accounts, Attorney General, Secretary of State, and Commissioner of Agriculture, Labor and Statistics, shall be held on the first Tuesday after the first Monday in November, eighteen hundred and ninety-five, and the same day every four years thereafter.

History. Amendment, proposed by Acts 1992, ch. 168, § 13, and ratified November 3, 1992.

Compiler’s Notes.

The General Assembly in 1992 (Acts 1992, ch. 168, § 13) proposed an amendment to the Constitution which amendment was ratified by the voters at the regular election November 3, 1992. Prior to the amendment this section read:

“§ 95. Time of election of constitutional state officers. — The election under this Constitution for Governor, Lieutenant Governor, Treasurer, Auditor of Public Accounts, Register of the Land Office, Attorney General, Secretary of State, Superintendent of Public Instruction, and Commissioner of Agriculture, Labor and Statistics, shall be held on the first Tuesday after the first Monday in November, eighteen hundred and ninety-five, and the same day every four years thereafter.”

Section 19 of Acts 1992, ch. 168 provided: “It is further proposed as a part of this amendment and as a schedule of transitional provisions, for the purposes of this amendment, and any other provision of the Constitution of Kentucky notwithstanding:

“(1) The Governor; Lieutenant Governor; Treasurer; Auditor of Public Accounts; Attorney General; Secretary of State; Commissioner of Agriculture, Labor and Statistics; Superintendent of Public Instruction; and Railroad Commissioners elected in 1991 shall be ineligible for election to the same office for the succeeding term. Those officers elected in 1995 shall be eligible for election to the next succeeding term.

“(2) The term of office of Commonwealth’s Attorneys and Circuit Clerks elected in 1993 shall be for a single term of seven years. The regular election for those offices shall then be held in 2000 and every six years thereafter.

“(3) The term of office of District Judges, Mayors, County Judges/Executive, and local officers who regularly serve a four-year term and who are scheduled to be elected in 1993 shall be for a single term of five years. The regular election for those offices shall then be held in 1998 and every four years thereafter.

“(4) The term of office for local officers who regularly serve a two-year term and who are scheduled to be elected in 1993 shall be for a single term of three years. The regular election for those offices shall then be held in 1996 and every two years thereafter.

“(5) The term of office for Circuit Judges and Judges of the Court of Appeals elected in 1999 shall be for a single term of seven years. The regular election for those offices shall then be held in 2006 and every eight years thereafter.

“(6) The term of office for mayor, magistrate, or other officer not specifically provided for in subsection (4) of this section elected in 1995 shall be extended for one year and subsequent elections for offices subject to the provisions of this subsection shall be held in even-numbered years.

“(7) No person holding elective office upon the effective date of this amendment shall have the duration of his current term extended. However, if the next election of any officer not specifically provided for in this section is scheduled to appear on the ballot in an odd-numbered year, the duration of that term of the officer elected shall be extended for one year. The election for any office subject to the provisions of this subsection shall subsequently be held in even-numbered years.”

NOTES TO DECISIONS

1.County Officers.

This section and Const., §§ 97, 99 and 234 notwithstanding, social security contributions for county court clerk, county Circuit Court clerk and county sheriff were to be paid from State Treasury, not county fiscal court. Shamburger v. Commonwealth, 240 S.W.2d 636, 1951 Ky. LEXIS 1014 ( Ky. 1951 ).

Cited:

Smith v. Coulter, 113 Ky. 74 , 23 Ky. L. Rptr. 2384 , 67 S.W. 1, 1902 Ky. LEXIS 11 ( Ky. 1902 ); Ferguson v. Redding, 304 S.W.2d 927, 1957 Ky. LEXIS 291 ( Ky. 1957 ); Brown v. Barkley, 628 S.W.2d 616, 1982 Ky. LEXIS 232 ( Ky. 1982 ).

Research References and Practice Aids

Cross-References.

Time of election of public officers generally, Const., § 148.

§ 96. Compensation of Constitutional State officers.

All officers mentioned in Section 95 shall be paid for their services by salary, and not otherwise.

NOTES TO DECISIONS

1.Estoppel.

When the salary of a public officer is illegally reduced, he is not estopped from claiming the full amount by having accepted a lesser sum. Altes' Ex'x v. Beauchamp, 277 Ky. 491 , 126 S.W.2d 867, 1939 Ky. LEXIS 679 ( Ky. 1939 ).

Cited:

Louisville v. Louisville R. Co., 111 Ky. 1 , 23 Ky. L. Rptr. 390 , 63 S.W. 14, 1901 Ky. LEXIS 174 ( Ky. 1 901 ); Ferguson v. Redding, 304 S.W.2d 927, 1957 Ky. LEXIS 291 ( Ky. 1957 ).

Research References and Practice Aids

Cross-References.

Compensation of constitutional state officers, KRS 64.480 .

Maximum limit on salaries, Const., § 246.

Officers for Districts and Counties

§ 97. Commonwealth’s Attorney and Circuit Court Clerk — Election — Term.

In the year two thousand, and every six years thereafter, there shall be an election in each county for a Circuit Court Clerk, and, until the year two thousand thirty, for a Commonwealth’s Attorney, in each circuit court district, unless that office be abolished, who shall hold their respective offices for six years from the first Monday in January after their election, and until the election and qualification of their successors. Beginning in the year two thousand thirty, and every eight years thereafter, there shall be an election for a Commonwealth’s Attorney in each circuit court district, unless that office be abolished, who shall hold his or her office for eight years from the first Monday in January after his or her election, and until the election and qualification of his or her successor.

History. Amendment, proposed by Acts 1992, ch. 168, § 14, and ratified November 3, 1992; amendment, proposed by Acts 2020, ch. 95, § 2, and is contingent upon ratification on November 3, 2020.

Compiler’s Notes.

The General Assembly in 1992 (Acts 1992, ch. 168, § 14) proposed an amendment to the Constitution which amendment was ratified by the voters at the regular election November 3, 1992. Prior to the amendment this section read:

“§ 97. Commonwealth’s Attorney and Circuit Court Clerk — Election — Term. — At the general election in eighteen hundred and ninety-two there shall be elected in each Circuit Court district a Commonwealth’s Attorney, and in each county a Clerk of Circuit Court, who shall enter upon the discharge of the duties of their respective offices on the first Monday in January after their election, and shall hold their offices five years, and until their successors are elected and qualified. In the year eighteen hundred and ninety-seven, and every six years thereafter, there shall be an election in each county for a Circuit Court Clerk, and for a Commonwealth’s Attorney, in each Circuit Court district, unless that office be abolished, who shall hold their respective offices for six years from the first Monday in January after their election, and until the election and qualification of their successors.”

Section 19 of Acts 1992, ch. 168 provided: “It is further proposed as a part of this amendment and as a schedule of transitional provisions, for the purposes of this amendment, and any other provision of the Constitution of Kentucky notwithstanding:

“(1) The Governor; Lieutenant Governor; Treasurer; Auditor of Public Accounts; Attorney General; Secretary of State; Commissioner of Agriculture, Labor and Statistics; Superintendent of Public Instruction; and Railroad Commissioners elected in 1991 shall be ineligible for election to the same office for the succeeding term. Those officers elected in 1995 shall be eligible for election to the next succeeding term.

“(2) The term of office of Commonwealth’s Attorneys and Circuit Clerks elected in 1993 shall be for a single term of seven years. The regular election for those offices shall then be held in 2000 and every six years thereafter.

“(3) The term of office of District Judges, Mayors, County Judges/Executive, and local officers who regularly serve a four-year term and who are scheduled to be elected in 1993 shall be for a single term of five years. The regular election for those offices shall then be held in 1998 and every four years thereafter.

“(4) The term of office for local officers who regularly serve a two-year term and who are scheduled to be elected in 1993 shall be for a single term of three years. The regular election for those offices shall then be held in 1996 and every two years thereafter.

“(5) The term of office for Circuit Judges and Judges of the Court of Appeals elected in 1999 shall be for a single term of seven years. The regular election for those offices shall then be held in 2006 and every eight years thereafter.

“(6) The term of office for mayor, magistrate, or other officer not specifically provided for in subsection (4) of this section elected in 1995 shall be extended for one year and subsequent elections for offices subject to the provisions of this subsection shall be held in even-numbered years.

“(7) No person holding elective office upon the effective date of this amendment shall have the duration of his current term extended. However, if the next election of any officer not specifically provided for in this section is scheduled to appear on the ballot in an odd-numbered year, the duration of that term of the officer elected shall be extended for one year. The election for any office subject to the provisions of this subsection shall subsequently be held in even-numbered years.”

Effective Date.

November 3, 2020, contingent upon its ratification at the November 3, 2020 election. If not ratified, this proposed constitutional amendment shall be void.

NOTES TO DECISIONS

1.Commonwealth's Attorney.

A Commonwealth’s Attorney is a constitutional officer. Commonwealth ex rel. Attorney Gen. v. Howard, 297 Ky. 488 , 180 S.W.2d 415, 1944 Ky. LEXIS 763 ( Ky. 1944 ).

2.— Absence from Office.

No officer, including a Commonwealth’s Attorney, is entitled to receive emoluments of office while absent therefrom during army service, in view of this section and Const., §§ 42, 98, 106, 108 and 235, together with KRS 61.120 and 64.410 . Whitworth v. Miller, 302 Ky. 24 , 193 S.W.2d 470, 1946 Ky. LEXIS 592 ( Ky. 1946 ).

3.— Vacancy in Office.

Under this section and Const., § 152, vacancy in Commonwealth’s Attorney’s office, created by death of such attorney prior to expiration of term and more than three (3) months before next regular election, was to be filled by appointment, then by election at next regular election. Robinson v. McCandless, 123 Ky. 602 , 96 S.W. 877, 29 Ky. L. Rptr. 1088 , 1906 Ky. LEXIS 187 ( Ky. 1906 ).

4.Compensation.

Common-law rule that right of compensation is incidental to title to public office and not to performing functions of same, thereby entitling officer to receive emoluments under the office even though he performs no duties or services providing he does not abandon the office, was discarded upon adoption of the present Constitution and the enactment of KRS 61.120 and 64.410 . Whitworth v. Miller, 302 Ky. 24 , 193 S.W.2d 470, 1946 Ky. LEXIS 592 ( Ky. 1946 ).

5.County Officers.

This section and Const., §§ 95, 99, and 234 notwithstanding, social security contributions for county court clerk, county Circuit Court clerk, and county sheriff were to be paid from State Treasury, not county fiscal court. Shamburger v. Commonwealth, 240 S.W.2d 636, 1951 Ky. LEXIS 1014 ( Ky. 1951 ).

While there has been no plan yet proposed under KRS 67A.010 to 67A.040 (KRS 67A.040 now repealed) for the merger of city and county governments, it is not inevitable that any plan proposed would violate section 156 dealing with the powers of cities, §§ 97 to 108 designating various constitutional county officers, or § 144 which provides for a fiscal court. Pinchback v. Stephens, 484 S.W.2d 327, 1972 Ky. LEXIS 148 ( Ky. 1972 ).

Cited in:

Norman v. Cain, 31 S.W. 860, 17 Ky. L. Rptr. 492 (1895); Campbell v. Dotson, 111 Ky. 125 , 23 Ky. L. Rptr. 510 , 63 S.W. 480, 1901 Ky. LEXIS 193 ( Ky. 1901 ); Butler v. Stephens, 119 Ky. 616 , 27 Ky. L. Rptr. 241 , 84 S.W. 745, 1905 Ky. LEXIS 36 ( Ky. 1905 ); Byrne & Speed Coal Co. v. Louisville, 189 Ky. 346 , 224 S.W. 883, 1920 Ky. LEXIS 429 ( Ky. 1920 ); Booth v. Board of Education, 191 Ky. 147 , 229 S.W. 84, 1921 Ky. LEXIS 267 ( Ky. 1921 ); Broughton v. Pursifull, 245 Ky. 137 , 53 S.W.2d 200, 1932 Ky. LEXIS 542 ( Ky. 1932 ); Miller v. Robertson, 306 Ky. 653 , 208 S.W.2d 977, 1948 Ky. LEXIS 631 ( Ky. 1948 ); Barnes v. Barnes, 241 S.W.2d 993, 1951 Ky. LEXIS 1034 ( Ky. 1951 ).

Opinions of Attorney General.

A candidate for circuit court clerk who was born and resided in Kentucky for her first 22 years, then lived in another state for 20 years, returning to Kentucky and taking up residence 16 months before the general election, satisfied the residence requirement of Const. § 100 since the two-years’ residence need not be consecutive and only the one-year residence specified needs to be immediately preceding the election. OAG 75-96 .

Research References and Practice Aids

Cross-References.

Circuit clerks, KRS 30A.010 to 30A.250 , 64.005 , 64.055-64.058.

Circuit court clerk, removal, Const., § 114.

Commonwealth’s attorneys, KRS 69.010 to 69.130 .

§ 98. Compensation of Commonwealth’s Attorney.

The compensation of the Commonwealth’s Attorney shall be by salary and such percentage of fines and forfeitures as may be fixed by law, and such salary shall be uniform in so far as the same shall be paid out of the State Treasury, and not to exceed the sum of five hundred dollars per annum; but any county may make additional compensation, to be paid by said county. Should any percentage of fines and forfeitures be allowed by law, it shall not be paid except upon such proportion of fines and forfeitures as have been collected and paid into the State Treasury, and not until so collected and paid.

NOTES TO DECISIONS

1.Fines and Forfeitures.

Where, during the first term of the Commonwealth’s Attorney, he was paid $4,000 and judgments were rendered imposing fines on certain corporations, which fines were paid into the state treasury after the commencement of his second term but in early months thereof, he was entitled to 50 per cent of such fines, though such per cent amounted to about $2,000. Hager v. Franklin, 119 Ky. 542 , 81 S.W. 926, 84 S.W. 541, 26 Ky. L. Rptr. 94 , 27 Ky. L. Rptr. 189 , 1904 Ky. LEXIS 131 ( Ky. 1904 ).

Commonwealth’s Attorney had vested interest in judgments for fines which he obtained during his term, up to maximum lawful amount, extending even to judgments not collected in year in question or during such term. Hager v. Franklin, 119 Ky. 542 , 81 S.W. 926, 84 S.W. 541, 26 Ky. L. Rptr. 94 , 27 Ky. L. Rptr. 189 , 1904 Ky. LEXIS 131 ( Ky. 1904 ).

The right of the Commonwealth’s Attorney to the statutory percentage of fines and forfeitures must be measured by each year of his incumbency in office as a unit and, if the fines and forfeitures of which he claims his percentage were neither assessed nor collected during that year, he may not appropriate any part of them to supplement a deficiency for any other year. Gilliam v. Greene, 185 Ky. 238 , 214 S.W. 889, 1919 Ky. LEXIS 277 ( Ky. 1919 ).

2.Redistricting.

An act creating an additional judicial district the effect of which was to withdraw one of the counties from the district, in which complainant was Commonwealth’s Attorney during his term of office, and lessen the amount of fines and penalties he would otherwise receive, but did not diminish his salary of $500 nor the percentage of fines and forfeitures to which he was entitled, did not violate this section. Butler v. Stephens, 119 Ky. 616 , 84 S.W. 745, 27 Ky. L. Rptr. 241 , 1905 Ky. LEXIS 36 ( Ky. 1905 ).

3.County Officers.

While there has been no plan yet proposed under KRS 67A.010 to 67A.040 (KRS 67A.040 now repealed) for the merger of city and county governments, it is not inevitable that any plan proposed would violate § 156 dealing with the powers of cities, §§ 97 to 108 designating various constitutional county officers, or § 144 which provides for a fiscal court. Pinchback v. Stephens, 484 S.W.2d 327, 1972 Ky. LEXIS 148 ( Ky. 1972 ).

4.Adjustment of $500 Maximum.

The $500 maximum stated in this section may be adjusted upward based on the dollar valuation principle of Matthews v. Allen, 360 S.W.2d 135, 1962 Ky. LEXIS 211 (Ky. Ct. App. 1962).Commonwealth ex rel. Hancock v. Davis, 521 S.W.2d 823, 1975 Ky. LEXIS 162 ( Ky. 1975 ).

5.Commonwealth Attorneys.

The provision in KRS 64.510(1) (repealed) providing for a minimum annual salary of $1200 for all Commonwealth Attorneys satisfies the constitutional requirement of uniformity in compensation notwithstanding KRS 64.510(2) (repealed) providing that all Commonwealth Attorneys in Circuit Court districts containing a first- or second-class city or an urban county government shall receive maximum annual compensation of $26,000. Commonwealth ex rel. Hancock v. Davis, 521 S.W.2d 823, 1975 Ky. LEXIS 162 ( Ky. 1975 ).

Common-law rule that right of compensation is indicental title to public office and not to performing functions of same, therey entitling officer to receive emoluments under the office even though he performs no duties or services providing he does not abandon the office was discarded upon adoption of present Constitution and enactment of KRS 61.120 and 64.410 . Whitworth v. Miller, 302 Ky. 24 , 193 S.W.2d 470, 1946 Ky. LEXIS 592 ( Ky. 1946 ).

No officer, including a Commonwealth’s Attorney, is entitled to receive emoluments of office while he is absent therefrom during Army service in view of this section and Const., §§ 42, 97, 106, 108, and 235, together with KRS 61.120 and 64.410 . Whitworth v. Miller, 302 Ky. 24 , 193 S.W.2d 470, 1946 Ky. LEXIS 592 ( Ky. 1946 ).

Cited:

McCracken County v. Thompson’s Ex’x, 268 Ky. 253 , 104 S.W.2d 968, 1937 Ky. LEXIS 444 ( Ky. 1937 ); Miller v. Robertson, 306 Ky. 653 , 208 S.W.2d 977, 1948 Ky. LEXIS 631 ( Ky. 1948 ).

Research References and Practice Aids

Cross-References.

Compensation of Commonwealth’s Attorneys, KRS 61.130 , 64.528 .

Maximum limit on compensation, Const., § 246.

§ 99. County officers, justices of the peace, and constables — Election — Term.

At the regular election in nineteen hundred and ninety-eight and every four years thereafter, there shall be elected in each county a Judge of the County Court, a County Court Clerk, a County Attorney, Sheriff, Jailer, Coroner, Surveyor and Assessor, and in each Justice’s District one Justice of the Peace and one Constable, who shall enter upon the discharge of the duties of their offices on the first Monday in January after their election, and who shall hold their offices four years until the election and qualification of their successors.

History. Amendment, proposed by Acts 1984, ch. 35, § 1, and ratified, November, 1984; amendment, proposed by Acts 1992, ch. 168, § 15, and ratified November 3, 1992.

Compiler’s Notes.

The General Assembly in 1992 (Acts 1992, ch. 168, § 14) proposed an amendment to the Constitution which amendment was ratified by the voters at the regular election November 3, 1992. Prior to the amendment this section read:

“§ 99. County officers, justices of the peace and constables — Election — Term. — There shall be elected in each county a Judge of the County Court, a County Court Clerk, a County Attorney, Sheriff, Jailer, Coroner, Surveyor and Assessor, and in each Justice’s District one Justice of the Peace and one Constable, who shall enter upon the discharge of the duties of their offices on the first Monday in January after their election, and who shall hold their offices four years until the election and qualification of their successors.”

Section 19 of Acts 1992, ch. 168 provided: “It is further proposed as a part of this amendment and as a schedule of transitional provisions, for the purposes of this amendment, and any other provision of the Constitution of Kentucky notwithstanding:

“(1) The Governor; Lieutenant Governor; Treasurer; Auditor of Public Accounts; Attorney General; Secretary of State; Commissioner of Agriculture, Labor and Statistics; Superintendent of Public Instruction; and Railroad Commissioners elected in 1991 shall be ineligible for election to the same office for the succeeding term. Those officers elected in 1995 shall be eligible for election to the next succeeding term.

“(2) The term of office of Commonwealth’s Attorneys and Circuit Clerks elected in 1993 shall be for a single term of seven years. The regular election for those offices shall then be held in 2000 and every six years thereafter.

“(3) The term of office of District Judges, Mayors, County Judges/Executive, and local officers who regularly serve a four-year term and who are scheduled to be elected in 1993 shall be for a single term of five years. The regular election for those offices shall then be held in 1998 and every four years thereafter.

“(4) The term of office for local officers who regularly serve a two-year term and who are scheduled to be elected in 1993 shall be for a single term of three years. The regular election for those offices shall then be held in 1996 and every two years thereafter.

“(5) The term of office for Circuit Judges and Judges of the Court of Appeals elected in 1999 shall be for a single term of seven years. The regular election for those offices shall then be held in 2006 and every eight years thereafter.

“(6) The term of office for mayor, magistrate, or other officer not specifically provided for in subsection (4) of this section elected in 1995 shall be extended for one year and subsequent elections for offices subject to the provisions of this subsection shall be held in even-numbered years.

“(7) No person holding elective office upon the effective date of this amendment shall have the duration of his current term extended. However, if the next election of any officer not specifically provided for in this section is scheduled to appear on the ballot in an odd-numbered year, the duration of that term of the officer elected shall be extended for one year. The election for any office subject to the provisions of this subsection shall subsequently be held in even-numbered years.”

Acts 1984, ch. 35, proposed that this section be amended, such amendment to be submitted to the voters for ratification or rejection at the time and in the manner provided in Sections 256 and 257 of the Constitution and in KRS 118.415 . This amendment was ratified by the voters at the regular election in November, 1984.

Prior to the 1984 amendment the section read:

“§ 99. County officers, justices of the peace and constables — Election — Term — Sheriff not to succeed himself as sheriff or deputy. — There shall be elected in eighteen hundred and ninety-four in each county a Judge of the County Court, a County Court Clerk, a County Attorney, Sheriff, Jailer, Coroner, Surveyor and Assessor, and in each Justice’s District one Justice of the Peace and one Constable, who shall enter upon the discharge of the duties of their offices on the first Monday in January after their election, and continue in office three years, and until the election and qualification of their successors; and in eighteen hundred and ninety-seven, and every four years thereafter, there shall be an election in each county of the officers mentioned, who shall hold their offices four years (from the first Monday in January after their election), and until the election and qualification of their successors. The first election of Sheriffs under this Constitution shall be held in eighteen hundred and ninety-two, and the Sheriffs then elected shall hold their offices two years, and until the election and qualification of their successors. The Sheriffs now in office for their first term shall be eligible to re-election in eighteen hundred and ninety-two, and those elected in eighteen hundred and ninety-two for the first term shall be eligible to re-election in eighteen hundred and ninety-fourt, but thereafter no Sheriff shall be eligible to re-election or to act as deputy for the succeeding term.”

Two previously proposed amendments to this section, by Acts 1972, ch. 129, § 1 and by Acts 1980, ch. 112, § 4, were defeated by the voters at regular elections in 1973 and 1981.

NOTES TO DECISIONS

1.Purpose.

This section, along with Const., §§ 100, 161 and 235, clearly indicate purpose to prohibit any change in salary or compensation of public or municipal officer during his term of office. Marion County Fiscal Court v. Kelly, 112 Ky. 831 , 56 S.W. 815, 22 Ky. L. Rptr. 174 , 1900 Ky. LEXIS 240 ( Ky. 1900 ).

Where an inmate working as part of a work program was injured and sued the county and the jailers, since the record established that the acts of the defendants complained of were performed within the scope of their discretionary authority, and there being no evidence offered from which reasonable jurors could conclude that any of the acts complained of were performed in “bad faith,” the defendants are entitled to the protection of qualified official immunity. Rowan County v. Sloas, 201 S.W.3d 469, 2006 Ky. LEXIS 237 ( Ky. 2006 ).

2.Bond.

County surveyor who failed to execute bond as required by law was not legally in possession of office and had no right to make entries in county surveyor’s book. Wheeler v. Collins, 222 Ky. 801 , 2 S.W.2d 646, 1928 Ky. LEXIS 251 ( Ky. 1928 ).

3.County Officers.

Since county tax commissioners fulfill functions for the commonwealth, they are state as well as county officers. Talbott v. Burke, 287 Ky. 187 , 152 S.W.2d 586, 1941 Ky. LEXIS 515 ( Ky. 1941 ).

This section and Const., §§ 95, 97, and 234 notwithstanding, social security contributions for county clerk, county Circuit Court clerk, and county sheriff were to be paid from State Treasury, not county fiscal court. Shamburger v. Commonwealth, 240 S.W.2d 636, 1951 Ky. LEXIS 1014 ( Ky. 1951 ).

Since this section designates a coroner as a county officer, a law requiring cities to pay a supplemental salary to county coroners is unconstitutional under Const., § 171, which requires that taxes shall be levied and collected only for the public purposes of the taxing unit. Lexington v. Hager, 337 S.W.2d 27, 1960 Ky. LEXIS 358 ( Ky. 1960 ).

While there has been no plan yet proposed under KRS 67A.010 to 67A.040 (KRS 67A.040 now repealed) for the merger of city and county governments, it is not inevitable that any plan proposed would violate § 156 dealing with the powers of cities, §§ 97 to 108 designating various constitutional county officers, or § 144 which provides for a fiscal court. Pinchback v. Stephens, 484 S.W.2d 327, 1972 Ky. LEXIS 148 ( Ky. 1972 ).

While subsection (4) of KRS 15.725 specifically provides that a county clerk can issue a criminal warrant prepared by a county attorney when no District Judge, Circuit Judge or trial commissioner is available, the authority to sign the judge’s name to an arrest warrant cannot be delegated to the county attorney since Const., § 28, prohibits anyone in one branch of government from exercising the power in another branch of government, the county attorney being in the executive branch under this section and the judicial branch being under Ky. Const., § 109. Dugger v. Off 2nd, Inc., 612 S.W.2d 756, 1980 Ky. App. LEXIS 425 (Ky. Ct. App. 1980).

Ky. Const., § 99 merely created the office of sheriff; it was silent as to the power to employ or remove deputies; that power was created by the General Assembly in KRS 70.030 , which took common-law powers away from executive officers and assigned them to different executive officers or agencies without violating the constitution. McClure v. Augustus, 85 S.W.3d 584, 2002 Ky. LEXIS 185 ( Ky. 2002 ).

4.Justice of the Peace.

The justices’ court for a magisterial district must be held within the limits of the district and if the justice of the peace for that district would hold his court, he must do so within the district because he is not the judge of any other court. Wheeler v. Schulman, 165 Ky. 185 , 176 S.W. 1017, 1915 Ky. LEXIS 508 ( Ky. 1915 ).

5.Sheriff.
6.— Succession.

A sheriff elected to fill an unexpired, not a full term, may succeed himself. McGinnis v. Cossar, 230 Ky. 213 , 18 S.W.2d 988, 1929 Ky. LEXIS 53 ( Ky. 1929 ).

Law providing that a sheriff, upon the expiration of his term, shall vacate his office but continue to collect delinquent taxes is valid, since the power to collect taxes is not by Constitution necessarily a duty of the office of sheriff. Madison County v. Hamilton, 243 Ky. 29 , 47 S.W.2d 938, 1932 Ky. LEXIS 33 ( Ky. 1932 ).

The provision of this section prohibiting a sheriff from seeking reelection is not an irrational exclusionary classification, nor is it invidiously selective and discriminatory so as to violate the provisions of the United States Constitution in any respect. English v. English, 539 S.W.2d 279, 1976 Ky. LEXIS 45 ( Ky. 1976 ).

7.Term.
8.— Expiration.

One who holds over after his term has expired which, under our law, would mean after his successor has been elected and qualified, virtually usurps the office, for without color of title he ousts the incumbent and presumes without legal warrant to discharge the duties of the office. Commonwealth v. Bush, 131 Ky. 384 , 115 S.W. 249, 1909 Ky. LEXIS 37 ( Ky. 1909 ).

All public officers except members of the general assembly and members of municipal legislative boards should hold over after the expiration of their fixed terms and until their successors are elected and qualified. Byrne & Speed Coal Co. v. Louisville, 189 Ky. 346 , 224 S.W. 883, 1920 Ky. LEXIS 429 ( Ky. 1920 ). See Booth v. Board of Education, 191 Ky. 147 , 229 S.W. 84, 1921 Ky. LEXIS 267 ( Ky. 1921 ).

9.Vacancy.
10.— Death of Successor.

Under this section, where successor was elected and then died prior to taking office, vacancy was created which was to be filled pursuant to Const., § 152, at which time incumbent’s right to office ceased. Campbell v. Dotson, 111 Ky. 125 , 63 S.W. 480, 23 Ky. L. Rptr. 510 , 1901 Ky. LEXIS 193 ( Ky. 1901 ). See Terry v. Hargis, 74 S.W. 271, 24 Ky. L. Rptr. 2498 , 1903 Ky. LEXIS 474 (Ky. Ct. App. 1903).

Where a person elected justice of the peace died before qualifying, the incumbent had no right to hold for another term, but there was a vacancy in the office to be filled by appointment of the governor. Olmstead v. Augustus, 112 Ky. 365 , 65 S.W. 817, 23 Ky. L. Rptr. 1772 , 1901 Ky. LEXIS 318 (Ky. Ct. App. 1901). See Terry v. Hargis, 74 S.W. 271, 24 Ky. L. Rptr. 2498 , 1903 Ky. LEXIS 474 (Ky. Ct. App. 1903).

11.— Failure to Qualify.

Where a justice of the peace fails to qualify in the manner required by law on or before the day on which the term of office to which he was elected begins, the office becomes vacant and mandamus does not lie to compel the county judge to accept the official bond not tendered until after the term of office began. Barnett v. Hart, 112 Ky. 728 , 66 S.W. 726, 23 Ky. L. Rptr. 2116 , 1902 Ky. LEXIS 217 ( Ky. 1902 ).

Law providing that office is vacant if an official bond is not given and the oath of office taken on or before the day the term of office begins applies only to offices which are to be filled for the full term and not to appointments to fill vacancies. Jones v. Sizemore, 117 Ky. 810 , 79 S.W. 229, 25 Ky. L. Rptr. 1957 , 1904 Ky. LEXIS 248 ( Ky. 1904 ).

By advising county clerk he would approve her bond on a subsequent day, the judge waived tender of bond by the clerk within the time stipulated by law and the office of county clerk could not be declared vacant for failure to give bond. Commonwealth v. Flatt, 219 Ky. 185 , 292 S.W. 785, 1927 Ky. LEXIS 309 ( Ky. 1927 ).

12.— Special Elections.

It is the intent of this section to dispense with the necessity of holding a special election to fill vacancies in elective offices when the unexpired term is limited to the period between the annual November election and January 1 of the succeeding year. Hester v. Robbins, 292 Ky. 12 , 165 S.W.2d 817, 1942 Ky. LEXIS 15 ( Ky. 1942 ).

13.Sovereign Immunity.

Fire protection district’s suit against tax collection officials, including a county court clerk, a sheriff, and a county assessor or property valuation administrator, based on the officials’ failure to collect personal property tax pursuant to KRS 75.015 , was properly dismissed because sovereign immunity shielded the officials from liability; Ky. Const. § 99 provided for the election of a County Court Clerk, a County Sheriff, and a County Assessor (or Property Valuation Administrator), and, thus, the officials, having been sued only in their official capacities, were afforded the same immunity as that to which the county was itself entitled. St. Matthews Fire Prot. Dist. v. Aubrey, 304 S.W.3d 56, 2009 Ky. App. LEXIS 47 (Ky. Ct. App. 2009).

Cited:

Schuff v. Pflanz, 99 Ky. 97 , 35 S.W. 132, 18 Ky. L. Rptr. 25 , 1896 Ky. LEXIS 59 ( Ky. 1896 ); Keating v. Covington, 35 S.W. 1026, 18 Ky. L. Rptr. 245 (1896); Pulaski County v. Watson, 106 Ky. 500 , 50 S.W. 861, 21 Ky. L. Rptr. 61 , 1899 Ky. LEXIS 69 ( Ky. 1899 ); Young v. Jefferson County, 100 S.W. 335, 30 Ky. L. Rptr. 1209 (1907); Parrish v. Powers, 127 Ky. 164 , 105 S.W. 391, 32 Ky. L. Rptr. 125 , 1907 Ky. LEXIS 127 ( Ky. 1907 ); McKinney v. Barker, 180 Ky. 526 , 203 S.W. 303, 1918 Ky. LEXIS 102 ( Ky. 1918 ) ( Ky. 1918 ); Broughton v. Pursifull, 245 Ky. 137 , 53 S.W.2d 200, 1932 Ky. LEXIS 542 ( Ky. 1932 ); Petty v. Talbott, 256 Ky. 688 , 76 S.W.2d 940, 1934 Ky. LEXIS 475 ( Ky. 1934 ); Beauchamp v. Matthews, 281 Ky. 351 , 135 S.W.2d 863, 1939 Ky. LEXIS 35 ( Ky. 1939 ); Little v. Mann, 302 Ky. 661 , 195 S.W.2d 321, 1946 Ky. LEXIS 737 ( Ky. 1946 ); Brown v. Read, 311 Ky. 104 , 223 S.W.2d 592, 1949 Ky. LEXIS 1074 ( Ky. 1949 ); Commonwealth v. Bradley, 516 S.W.2d 644, 1974 Ky. LEXIS 134 ( Ky. 1974 ).

Opinions of Attorney General.

When the thirty-first of December falls on Sunday and the following day on which county officers are to take office for the ensuing term is a legal holiday, the county officers may be sworn in and execute bond when required on or before the first Monday in January, a legal holiday. OAG 61-886 .

The office of magistrate and membership on the county registration and purgation board are incompatible. OAG 63-130 .

This section of the Constitution prohibits the present sheriff of Jefferson County from accepting a position under the next succeeding sheriff as a tax collector or as superintendent of the jail. OAG 65-723 .

The offices of constable and city policeman are incompatible. OAG 65-833 .

There is no constitutional or statutory incompatibility between membership on the county fiscal court and membership on the county board of health. OAG 66-87 .

Where a county had gone under the commission form of government and no one ran for the office of constable, the county judge could appoint a constable to fill the constable vacancy existing in each magisterial district of the county subject to the provisions of Const., § 152. OAG 66-105 .

A person elected to a full four (4) year term would be eligible for election to fill a vacancy for an unexpired term created during the succeeding term, since he would not be running for a full term. OAG 66-750 .

If a magistrate moved out of his respective district and established legal residence in an adjoining district, he would become disqualified and would vacate his office. OAG 67-373 .

Pursuant to the provisions of Const., § 100, a candidate for the office of sheriff had to be 24 years of age at the time of the general election. OAG 68-401 .

The provision of this section, prescribing that no sheriff shall be eligible for re-election or to act as deputy for the succeeding term, is applicable to a sheriff who has served a full term and would not prevent a sheriff who was appointed to fill the unexpired term of her husband from serving as a deputy sheriff for her successor. OAG 69-249 .

Under this section the ballot for the election at which magistrates are to be elected must list each magisterial district, even though there is no candidate for the office in a particular district. OAG 69-352 .

The office of county judge is probably the most important elected single county office, since he is not only a member of the fiscal court but also the presiding officer of the fiscal court. OAG 70-144 .

Constables are required to live in the county from which they are elected pursuant to this section and Const., § 100. If a person is elected constable and does not legally reside within the district from which he is elected, he would be subject to removal by the Commonwealth’s Attorney pursuant to KRS 415.040 . Once such person is removed, a vacancy is created which must be filled by the county court pursuant to KRS 63.220 . OAG 70-157 .

A deputy constable is not disqualified from serving in that capacity because of his residing in a district other than that in which the constable resides. OAG 70-187 .

An elected constable of a county could not legally accept and hold a position as police officer for a city. OAG 70-583 .

Under this section a sheriff presently in office may not run for the office of deputy sheriff in the next election. OAG 72-322 .

This section requires that the office of county attorney be listed on the November ballot, regardless of whether or not there is any candidate for the office, so that the voters would have the right to designate a candidate of their choice, and such candidate receiving a plurality of the votes would be duly elected to the office. OAG 73-93 .

When there is no constable presently serving in a district and no one applied for nomination, the county court could appoint someone to fill the unexpired term ending this year but since it is too late for any person to file for this office and have his name appear on the ballot, the only method whereby a candidate can be elected in November for the office would be by write-in votes. OAG 73-648 .

The office of constable is a constitutional office to be filled by election every four (4) years and the fact that no candidate has filed for the office does not relieve the clerk from the duty of placing the name of the office on the ballot to give qualified voters the opportunity to write in the name of any candidate of their choice. OAG 73-685 .

Where the office of sheriff is forfeited and vacated and a new sheriff is appointed to fill the office of sheriff, the newly appointed sheriff fills the unexpired term and the person elected sheriff in this year’s November election will take office on the first Monday in January, 1974 after that election. OAG 73-687 .

A county surveyor need not be licensed as a land surveyor pursuant to KRS chapter 322, as it is a constitutionally created office and licensing requirements applicable to other land surveyors are not applicable to the county surveyor in the absence of a constitutional provision to that effect and, as a license is not required by the Constitution, the legislature cannot impose such a requirement. OAG 73-763 .

As the office of county attorney is a county office under the Constitution and the office of master commissioner has been held to be an office of the court and therefore neither a state nor county office, there would be no statutory or constitutional incompatibility were a person to serve in both capacities. OAG 73-783 .

The office of sheriff is a county office under the Constitution and under KRS 70.540 counties are authorized to establish a county police department, the personnel of which would be considered county officers and, while there would be no incompatibility under KRS 61.080 , it is doubtful that the sheriff could at the same time serve as chief of the county police department and perform the duties of both offices with care and ability. OAG 73-783 .

As KRS 61.080 prohibits a person from holding the office of deputy sheriff and constable at the same time, it would not be legal for a sheriff-elect to hire the incumbent sheriff who has been elected constable and also this section specifically prohibits an outgoing sheriff from being a deputy sheriff for the succeeding term. OAG 73-836 .

Since the bailiff is classified by KRS 24.265 (repealed) as a deputy sheriff, an incumbent sheriff cannot be appointed to the position of bailiff since no sheriff is eligible for reelection or to act as a deputy for the succeeding term. OAG 73-845 .

As the members of the fiscal court must take their oath of office on or before January 7, 1974, the present members’ terms expire upon the new members’ taking office on January 7, so that the present fiscal court could hold a meeting in 1974 prior to January 7. OAG 73-850 .

As the fiscal court meets on the first and third Wednesdays of each month and the justices of the peace, county judge and commissioners, as members of the fiscal court, should hold over their office until the newly elected members take office on January 7, 1974, the incumbent fiscal court could have a meeting on January 2, 1974, the first Wednesday of the month, before the newly elected members of the court take office. OAG 73-866 .

County officials who took office in January, 1970 and served through January 6, 1974, were not entitled to six (6) days extra pay in 1974 because they were compensated per calendar year, and the extension into the first calendar year of their successors merely relates back to the calendar years of their terms. OAG 74-55 .

The sheriff in office at the time of the November 1973 election was entitled to hold office until his successor assumed office on January 1, 1974; but where the court held that the election was invalid and the office was vacant, as the vacancy occurred at the beginning of a new term, it had to be filled by the county court pursuant to KRS 63.220 and, unless the old sheriff was appointed to fill the vacancy, any attempt on his part to perform the duties of the office after the expiration of his term would make him a usurper subject to removal under KRS 415.040 . OAG 74-872 .

A deputy sheriff is not an officer named and designated in the text of the Constitution and is not required by Const. § 234 to reside in the county where he serves. OAG 75-52 .

Since the office of master commissioner is not a state, county or city office but an office of the court, it is not incompatible with the office of magistrate under Const. § 165 or KRS 61.080 , although a common-law conflict might arise if the duties of both offices could not be performed by the same incumbent with care and ability. OAG 75-255 .

Although a sheriff elected for a regular four (4) year term cannot run or be elected for the succeeding term of four (4) years, a sheriff who served the immediately preceding four (4) year term can be appointed to fill a vacancy for the last half of the succeeding term. OAG 75-706 .

A sheriff who was appointed to fill a vacancy for the last half of a regular term and who had served for the immediately preceding full term would be eligible to run for and serve as sheriff for the succeeding term of four (4) years. OAG 75-706 .

Constitution, § 165 and KRS 61.080 , which prohibit a person’s being a county and state officer at the same time, do not apply to the county attorney since the county attorney is a constitutional office, although the legislature may prescribe duties for that office pertaining to county functions as well as to state court functions. OAG 76-497 .

Since Const., § 100 requires that the county attorney reside within the county one year next preceding the November election at which he is a candidate, the fact that he would not have resided within the county the required period of time prior to the day of election would make him ineligible to hold the office and it would be of no consequence that he would have resided in the county for the required time before the date that he would be sworn into office. OAG 76-751 .

The appointment of a sheriff as a member of the county police force following the expiration of his term as sheriff would not violate this section. OAG 77-94 .

The position of assistant superintendent of schools, a state office, and the office of magistrate, a county office, are incompatible. OAG 77-129 .

While a sheriff cannot succeed himself or serve as a deputy during the succeeding term, his appointment to a city or county police force following the expiration of his term of office as sheriff does not violate any constitutional prohibition or involve the sheriff’s office. OAG 78-128 .

Where county attorney had been suspended from the practice of law he no longer possessed the constitutional qualifications of a county attorney and thus since he can no longer serve as county attorney and as a prosecutor in the court of justice his prosecutorial salary from the state treasury and his expense allowance should be stopped. OAG 78-279 .

This section explicitly prohibits a sheriff from running for reelection for the immediately following term or from acting as deputy sheriff for the immediately succeeding term and an ex-sheriff’s employment in the incumbent sheriff’s office is really as a deputy sheriff, regardless of what you call the employment. OAG 78-558 .

An individual is not required to be a registered voter in order to run for and hold the office of constable. OAG 79-525 .

A city clerk can run for the office of magistrate but if elected the clerk cannot continue to hold the office of city clerk, because the office of city clerk is a municipal office and the office of magistrate is a county office and KRS 61.080 prohibits a person from holding a municipal and a county office at the same time. OAG 80-104 .

Where a county, which had eight magistrates serving as the fiscal court when it changed to the commission form of government, votes to return to the magisterial form of government, the county will be required to have eight magistrates represented on its fiscal court, since this section requires the continual election of magistrates (justices of peace) even though a county changes to the commission form of government, and, pursuant to Const., § 144, the justices of peace compose the fiscal court if the county is operating under the magisterial form of government. OAG 80-137 .

A county attorney is a county constitutional officer, pursuant to this section and, therefore, an assistant county attorney is a statutory county officer for the purpose of considering the general question of incompatibility of offices; since the office of assistant county attorney involves only one office, a county constitutional office, no incompatibility exists even though the county attorney has been given state duties as a prosecutor (KRS 15.725(2)) and county duties as an adviser to fiscal court (KRS 69.210 ). OAG 80-341 .

An incumbent sheriff may not, after leaving office, be eligible to be either a sheriff’s deputy or sheriff’s assistant, unless he was originally elected or appointed to fill the unexpired term of another sheriff. OAG 82-25 .

The word “term” appearing in this section refers to a full term; accordingly, a sheriff who has served a full term of office cannot serve as either a sheriff’s deputy or sheriff’s assistant in the office of the sheriff who succeeds him. OAG 82-25 .

Under this section, a justice of the peace may administer the official oath of any officer within his magisterial district. OAG 82-199 . (Modifying OAG 78-57 ).

Where pursuant to KRS 67.045 a reapportionment commission was appointed to reapportion county into eight magisterial districts by November 15, 1982 but on November 2, 1982 voters of the county chose to adopt a commission form of government, the reapportionment of the magisterial districts pursuant to KRS 67.045 must be completed as directed and the present magistrates’ terms will continue to run through 1985 at which time justices of the peace will be elected for a new four (4) year term, but as elected justices they will not be on the new fiscal court since under subsection (1) of KRS 67.060 , prior to the next election in 1985, the county judge/executive is required to divide the county into three (3) commissioner districts and at the 1985 election and each four (4) years thereafter the voters will elect three (3) commissioners, one from each district, who with the county judge/executive, will constitute the fiscal court. The reapportionment of commissioners districts under KRS 67.060 relates strictly to commissioners who will make up the fiscal court beginning in January, 1986, and the reapportionment of the justices of the peace districts under KRS 67.045 will be merely to meet the mandate of this section, since because of the implications of such section the reapportionment procedure of KRS 67.045 would apply by implication to a county having a commission form of government. OAG 82-598 .

The county attorney, although a county constitutional officer under KRS 69.210 and this section, has been given a state-wide function in his prosecutorial role, and KRS 15.765(3) establishes the indexing of the original $12,000 maximum in Const., § 246 as the maximum compensation possible for the county attorney, regardless of what he receives from the fiscal court as county attorney, the county’s civil advisor, and from the state as a state prosecutor. OAG 83-38 .

A fiscal court cannot adopt personnel policies by ordinance for the county employees, and then apply such policies to deputies of constitutional officers, such as the sheriff, jailer and county clerk, because the fiscal court has no general statutory authority to deal with the deputies of county constitutional officers, other than to set the number and salaries of such deputies as permitted in KRS 64.530 . OAG 84-22 .

A county jailer, as transportation officer, must only qualify as jailer as mentioned in this section. He is only required to meet the qualifications for the office of jailer as outlined in Const., § 100; the General Assembly can impose no additional qualifications. OAG 84-289 .

Use of the term “magistrate/representative” on ballots for primary and general elections under KRS 67.042 would be legal. Although this section refers to the office as that of “justice of the peace,” the terms “justice of the peace” and “magistrate” are synonymous and have been so construed by the courts. OAG 85-30 .

Candidates for the office of magistrate/representative are to run by district in both the primary and general elections; in the absence of any attempt on the part of the legislature to provide that magistrates are to be nominated from districts in the primary by countywide vote, they must be nominated by the residents of the districts, as has been the case in all past elections for this office throughout the state. OAG 85-30 .

This section requires the election of one constable in each justice district; therefore where a county has established eight magisterial districts, the Constitution requires that a constable be elected from each district. OAG 85-30 .

Assuming that the incoming sheriff was properly elected and qualified and capable of assuming office at the opening of business on January 6, 1986, the outgoing sheriff’s term of office expired at the opening of business on January 6, 1986. Public policy requires that, in the absence of the resignation, suspension, removal, death or other positive act of withdrawal from office by the outgoing sheriff, his term of office continues until the election and qualification of his successor. OAG 86-8 .

An outgoing sheriff is entitled to his compensation up to the end of his term. OAG 86-9 , 66-98 and 74-55 overruled and withdrawn to the extent of conflict.

Judicial certification of the qualifications of a candidate for county court clerk (now sometimes referred to as the “county clerk”) is no longer required. OAG 93-14 .

In counties with the commissioner form of government, the commissioner’s districts and the justice of the peace districts are the same; consequently, such counties have three (3) justices of the peace who are elected from the respective commissioner districts. Since constables’ districts are the same as the justice of the peace districts (Ky. Const. § 99), constables are likewise elected from each commissioner’s district. Thus there is no separate apportionment of justice of the peace/constable districts; their districts are the same as the commissioner’s districts. OAG 93-40 .

For the adjustments to salaries of constitutional officers in relation to changes in the Consumer Price Index salary adjustment computations and therefore, the maximum annual compensation allowable by law for such positions in 1994 see OAG 94-7 .

Research References and Practice Aids

Cross-References.

Assessors (tax commissioners), KRS 132.370 .

Constables, KRS 70.310 to 70.440 .

Coroners, KRS ch. 72.

County attorneys, KRS 69.210 to 69.320 .

County judges/executive, KRS 64.535 .

Jailers, KRS ch. 71.

Justices of the peace, Const., § 142.

Sheriffs, KRS 70.010 to 70.210 .

Surveyors, KRS ch. 73.

When officers to enter upon duties, KRS 61.030 .

§ 100. Qualifications of officers for counties and districts.

No person shall be eligible to the offices mentioned in Sections 97 and 99 who is not at the time of his election twenty-four years of age (except Clerks of County and Circuit Courts, who shall be twenty-one years of age), a citizen of Kentucky, and who has not resided in the State two years, and one year next preceding his election in the county and district in which he is a candidate. No person shall be eligible to the office of Commonwealth’s Attorney unless he shall have been a licensed practicing lawyer four years. No person shall be eligible to the office of County Attorney unless he shall have been a licensed practicing lawyer two years. No person shall be eligible to the office of Clerk unless he shall have procured from a Judge of the Court of Appeals, or a Judge of a Circuit Court, a certificate that he has been examined by the Clerk of his Court under his supervision, and that he is qualified for the office for which he is a candidate.

NOTES TO DECISIONS

1.Actions.

In cases where a strong indication exists that the defendant may be suffering from mental issues compelling the appointment of a mental health expert under Ake v. Oklahoma, 470 U.S. 68 (1985), for practical reasons the Kentucky Correctional Psychiatric Center should not be designated as the indigent defendant’s mental health expert. Conley v. Commonwealth, 599 S.W.3d 756, 2019 Ky. LEXIS 213 ( Ky. 2019 ).

In cases where an Ake v. Oklahoma, 470 U.S. 68 (1985), expert witness is obviously required, the Commonwealth in the normal course of events will seek its own mental health expert as a rebuttal witness. The Kentucky Correctional Psychiatric Center (KCPC), as a state mental health facility, is logically situated to provide that rebuttal expert. It would not make sense for that reason, too, to consider KCPC as a viable alternative for the defendant when, as here, there is an unambiguous presentation of mental illness that may be significant to the defendant’s case, and KCPC will necessarily and foreseeably be needed by the Commonwealth to act as its expert. Conley v. Commonwealth, 599 S.W.3d 756, 2019 Ky. LEXIS 213 ( Ky. 2019 ).

2.— Contest of Eligibility.

Eligibility for nomination could be contested as prescribed by law. Francis v. Sturgill, 163 Ky. 650 , 174 S.W. 753, 1915 Ky. LEXIS 318 ( Ky. 1915 ), limited, Napier v. Roberts, 172 Ky. 227 , 189 S.W. 206, 1916 Ky. LEXIS 191 ( Ky. 1916 ). See Faulkner v. Asher, 221 Ky. 272 , 298 S.W. 691, 1927 Ky. LEXIS 701 ( Ky. 1927 ).

In a primary election contest where the facts alleged show the contestant is eligible under this section to hold the office, a specific allegation to that effect is unnecessary. Bingham v. Smith, 210 Ky. 256 , 275 S.W. 811, 1925 Ky. LEXIS 655 ( Ky. 1925 ).

3.— Ouster.

Where one is ineligible to hold an office to which he has been elected, he becomes a mere usurper and must be ousted, by an action in the name of the Commonwealth, on the relation of the Attorney General or Commonwealth’s attorney. Francis v. Sturgill, 163 Ky. 650 , 174 S.W. 753, 1915 Ky. LEXIS 318 ( Ky. 1915 ), limited, Napier v. Roberts, 172 Ky. 227 , 189 S.W. 206, 1916 Ky. LEXIS 191 ( Ky. 1916 ). See Hogg v. Combs, 250 Ky. 400 , 63 S.W.2d 465, 1933 Ky. LEXIS 701 ( Ky. 1933 ); Hart v. Rose, 255 Ky. 576 , 75 S.W.2d 43, 1934 Ky. LEXIS 297 ( Ky. 1934 ).

4.Clerk.

When a person elected to the office of a clerk of a court has, at the time fixed for taking the office, the certificate of qualification prescribed by this section, he is entitled to hold the office although he did not have the certificate at the time of the election. Kirkpatrick v. Brownfield, 97 Ky. 558 , 31 S.W. 137, 17 Ky. L. Rptr. 376 , 1895 Ky. LEXIS 222 ( Ky. 1895 ).

Supreme Court Rule 1.060 does not violate this section by requiring that a Circuit Court Clerk’s eligibility be determined before gaining access to the election ballot; it is the duty of the Supreme Court to promulgate and enforce meaningful rules and procedures to assure that each clerk is competent to discharge the duties of the office. Combs v. Huff, 858 S.W.2d 160, 1993 Ky. LEXIS 86 ( Ky. 1993 ).

Since Supreme Court Rule 1.060 merely defines the manner in which the certification of candidates for the office of Circuit Court Clerk required by this section shall be obtained and creates uniformity of the certification throughout Kentucky, this rule does not violate the separation of powers doctrine contained in Ky. Const., §§ 27 and 28. Combs v. Huff, 858 S.W.2d 160, 1993 Ky. LEXIS 86 ( Ky. 1993 ).

An aspirant to the office of Circuit Court Clerk may fully satisfy the requirements of this section by obtaining a passing grade on the examination required by SCR 1.060(2) and thus be deemed to possess the required judicial certification. Combs v. Huff, 858 S.W.2d 160, 1993 Ky. LEXIS 86 ( Ky. 1993 ).

5.Commonwealth’s Attorney.

A change in judicial district did not disqualify a Commonwealth’s Attorney for the office, since, if the Constitution required a continuous residence failing which an abandonment would follow, the officer might change his residence to a place within the district, and the law could not deprive him of his office as the Constitution protects from removal other than by impeachment. Adams v. Roberts, 119 Ky. 364 , 83 S.W. 1035, 26 Ky. L. Rptr. 1271 , 1904 Ky. LEXIS 173 ( Ky. 1904 ).

6.County Attorney.

An attorney duly licensed to practice who held himself out as a practicing lawyer is eligible for the office of county attorney, although, in fact, by virtue of his incumbency as circuit court clerk at the time, he was barred by law from actual practice before the courts of Kentucky. Howton v. Morrow, 269 Ky. 1 , 106 S.W.2d 81, 1937 Ky. LEXIS 548 ( Ky. 1 937).

7.County Officers.

While there has been no plan yet proposed under KRS 67A.010 to 67A.040 (KRS 67A.040 now repealed) for the merger of city and county governments, it is not inevitable that any plan proposed would violate § 156 dealing with the powers of cities, §§ 97 to 108 designating county officers, or § 144 which provides for a fiscal court. Pinchback v. Stephens, 484 S.W.2d 327, 1972 Ky. LEXIS 148 ( Ky. 1972 ).

8.Qualifications.
9.— Statutory.

Qualifications for eligibility to hold a particular office, when enumerated in the Constitution, may not be added to by law. Broughton v. Pursifull, 245 Ky. 137 , 53 S.W.2d 200, 1932 Ky. LEXIS 542 ( Ky. 1932 ).

10.Compensation.

This section, along with Const., §§ 99, 161 and 235, clearly indicate purpose to prohibit any change in salary or compensation of public or municipal officer during his term of office. Marion County Fiscal Court v. Kelly, 112 Ky. 831 , 56 S.W. 815, 22 Ky. L. Rptr. 174 , 1900 Ky. LEXIS 240 ( Ky. 1900 ).

Cited:

Schuff v. Pflanz, 99 Ky. 97 , 18 Ky. L. Rptr. 25 , 35 S.W. 132, 1896 Ky. LEXIS 59 ( Ky. 1896 ); Parrish v. Powers, 127 Ky. 164 , 32 Ky. L. Rptr. 125 , 105 S.W. 391, 1907 Ky. LEXIS 127 ( Ky. 1907 ); Keen v. Revis, 270 Ky. 223 , 109 S.W.2d 609, 1937 Ky. LEXIS 58 ( Ky. 1937 ); Dennis v. Rich, 434 S.W.2d 632, 1968 Ky. LEXIS 237 ( Ky. 1968 ).

Opinions of Attorney General.

While literacy is not a specific requirement for the position of justice of the peace, the statutory and common-law duties of that office would necessarily require such literacy of its incumbent as to be able to sign his own name. OAG 62-287 .

Any person who will reach the age of 24 by the November election would be qualified by age to become a candidate for jailer and, if elected, hold the office of jailer. OAG 65-105 .

A person under 21 years of age may serve as a deputy county court clerk. OAG 65-878 .

The person who fills the vacant office of county attorney by way of interim appointment must possess all the constitutional and statutory requirements of that office. Accordingly, lack of one (1) year’s residence in the county or not having been a licensed practicing lawyer for two (2) years would bar a candidate. OAG 67-522 .

The “election” referred to in this section is the general election, and a candidate for sheriff who has reached the age of 24 years at that time will, if he is otherwise qualified, be eligible to run in the election and hold the office. OAG 68-401 .

This section does not prevent a person under the age of 21 from serving as deputy county clerk. OAG 68-442 .

Under this section it is not necessary that a candidate for the office of county attorney possess the qualification of having been a licensed practicing attorney for two (2) years until the arrival of the time fixed for taking office. OAG 68-478 .

The provision of this section requiring a person to have been a licensed practicing lawyer for two (2) years to be eligible for the office of county attorney cannot be waived in the event of a vacancy. OAG 69-69 .

This section requires that in order to be eligible for the office of county attorney a person must have been a licensed practicing attorney for two (2) actual years consisting of 12 months each, and it is not sufficient that a person has been a licensed practicing attorney for portions of two (2) different calendar years. OAG 69-69 .

A candidate for the office of constable who has not resided in the magisterial district long enough to become qualified under this section would, if elected, become a usurper upon entering office and would be subject to ouster under the provisions of KRS 415.040 . OAG 69-316 .

A candidate for the office of constable who moved his legal residence outside of the magisterial district in which he was seeking office no longer possessed the qualifications for office prescribed by this section and, if elected, would become a usurper upon taking office and would be subject to removal pursuant to KRS 415.040 . OAG 69-379 .

A fiscal court order which provided that the assistant county attorney shall have at least six (6) years’ active law practice was invalid, since there is no constitutional or statutory authority authorizing additional qualifications on the assistant county attorney. OAG 69-617 .

The removal of a constable from the magisterial district in which he was elected, caused by a redistricting of the magisterial districts, does not affect the term of the incumbent and he is entitled to retain his office for the term for which he was elected even though he does not move into the new district. OAG 70-54 .

The practice of law is not confined to performing services in actions or proceedings in courts of justice but includes giving advice and preparing wills, contracts, deeds, mortgages and other instruments of a legal nature. OAG 70-106 .

Constables are required to live in the county from which they are elected pursuant to this section and Const., § 99. If a person is elected constable and does not legally reside within the district from which he is elected, he would be subject to removal by the commonwealth’s attorney pursuant to KRS 415.040 . Once such person is removed, a vacancy is created which must be filled by the county court pursuant to KRS 63.220 . OAG 70-157 .

A person appointed to the office of constable to fill a vacancy must possess the same qualifications as those required of one elected to the office. OAG 70-185 .

A deputy constable is not disqualified from serving in that capacity because of his residing in a district other than that in which the constable resides. OAG 70-187 .

An appointment to fill any vacancy in the office of county attorney would be limited to the appointment of a single county attorney. OAG 71-267 .

Serving two (2) years in the army as a legal clerk during which time he assisted in preparing courts-martial cases qualified the appointee for the position of county attorney under this section. OAG 71-545 .

It would appear that the two (2) years’ residence in the state need not be consecutive so long as the last year of residence is next preceding the officer’s election in the county or district in which he is a candidate. OAG 72-809 .

There is nothing to prevent a woman who meets the necessary qualifications from seeking the office of jailer. OAG 73-120 .

Magisterial districts may be reapportioned under the terms of KRS 25.680 (repealed) and, when this is done, resulting in a candidate being placed in a district other than the one in which he previously resided, such candidate would have to reside within the new district one (1) year next preceding the election in order to be qualified under this section. OAG 73-191 .

The qualifications for a magistrate do not require a person to be a registered voter so the fact that the candidate may or may not have reregistered for the November election would be of no significance with respect to his being qualified to be listed on the November ballot and, if elected, hold the office of magistrate, regardless of whether he filed as an independent or a party candidate. OAG 73-715 .

A county surveyor need not be licensed as a land surveyor pursuant to KRS chapter 322 as it is a constitutionally created office and licensing requirements applicable to other land surveyors are not applicable to the county surveyor in the absence of a constitutional provision to that effect and, as a license is not required, the Legislature cannot impose such a requirement. OAG 73-763 .

The requirement that county coroners be 24 years of age at the time of their election does not apply to deputy coroners, since they are not specifically enumerated in the Constitution. OAG 74-21 .

A candidate for circuit court clerk who was born and resided for her first 22 years in Kentucky, then lived in another state for 20 years, returning to Kentucky and taking up residence 16 months before the general election, satisfied the residence requirement of this section since the two (2) years’ residence need not be consecutive and only the one (1) year residence specified needs to be immediately preceding the election. OAG 75-96 .

Constitution, § 165 and KRS 61.080 , which prohibit a person’s being a county and state officer at the same time, do not apply to the county attorney since the county attorney is a constitutional office, although the Legislature may prescribe duties for that office pertaining to county functions as well as to state court functions. OAG 76-497 .

Since Const., § 100 requires that the county attorney reside within the county one (1) year next preceding the November election at which he is a candidate, the fact that he would not have resided within the county the required period of time prior to the day of election would make him ineligible to hold the office and it would be of no consequence that he would have resided in the county for the required time before the date that he would be sworn into office. OAG 76-751 .

An individual who was admitted to the bar in October, 1975 and who immediately established a part-time law practice would possess the two (2) year requirement of this section at the time he entered office and would be considered as having practiced law during the two (2) year period, and therefore would be eligible to run in the May, 1977 primary and the November general election for the office of county attorney. OAG 77-130 .

Where a person had resided in a county in Kentucky at least one (1) year prior to his taking up legal residence in Ohio, and where, following his return to the county, he was in residence for more than one (1) year prior to the general election, he would be in compliance with this section. OAG 77-644 .

Where a person who has been elected to the office of constable moves out of the district from which he was elected, the officer becomes disqualified as to residency but his official acts as constable are valid as he is considered a de facto officer until removed as a usurper. OAG 77-667 .

An individual who was duly elected to the office of constable in one district, but prior to the election moved to another district is not legally qualified to hold office and should resign or be subject to removal by the commonwealth’s attorney under KRS 415.040 . OAG 78-17 .

Where county attorney had been suspended from the practice of law he no longer possessed the constitutional qualifications of a county attorney and thus since he can no longer serve as county attorney and as a prosecutor in the court of justice his prosecutorial salary from the state treasury and his expense allowance should be stopped. OAG 78-279 .

Where there are only two (2) eligible attorneys in a county for the post of county attorney, one having the requisite experience but lacking in residence, the other having the necessary residence but lacking in experience, neither is qualified to be county attorney. OAG 78-417 .

An appointed county attorney must have the same qualifications as an elected county attorney. OAG 79-266 .

If the county attorney were to be suspended from law practice for 90 days, or any other substantial period, his suspension would immediately disqualify him as the county attorney. OAG 79-266 .

An individual is not required to be a registered voter in order to run for and hold the office of constable. OAG 79-525 .

Where the husband of a woman seeking the office of property valuation administrator has leased home in adjoining county to meet residence requirements of his employment as a policeman, the woman still meets county residence requirement under this section even where she spends one half of her time at her husband’s residence, since she continues to hold herself out as a resident of the county, remains a registered voter of the county, and her children remained enrolled in the county schools; thus, she did not, under KRS 116.035 , lose her residence due to temporary absences since she had no intention of permanently leaving. OAG 81-105 .

Proposed legislation mandating that coroners and deputy coroners take and pass prescribed examinations in order to be eligible for their respective offices would violate this section since it sets out certain qualifications for the offices and any additional grounds for disqualification or ineligibility imposed by the General Assembly which exceed those of this section are not favored in law. OAG 81-315 .

KRS 15.335 is not in conflict with this section, Const., § 101 or 234, as relates to the sheriff and constable, since the waiver of residency requirement is expressly declared not to be effective for constitutional officers. OAG 82-105 .

Where the magistrate dies or resigns and there is also a reapportionment of county magisterial districts, the person appointed and elected to fill the vacancy must reside in the vacated district having no representation by virtue of the redistricting procedure, irrespective of the fact that due to the boundary he may not possess the one (1) year residential qualification required by this section, as long as he has continued to reside in the area and has not changed his residence within the one (1) year period prior to his appointment or election. OAG 83-40 .

A county jailer, as transportation officer, must only qualify as jailer as mentioned in Const., § 99. He is only required to meet the qualifications for the office of jailer as outlined in this section; the General Assembly can impose no additional qualifications. OAG 84-289 .

This section provides certain qualifications for coroners, and the Legislature cannot impose additional qualifications where the Constitution enumerates certain qualifications for a constitutional office; thus, where a coroner meets the qualifications stated in this section, he is eligible to serve in that office. In view of the fact, however, that the certification requirements of KRS 72.405(5) and KRS 72.415 narrowly relate to the coroner’s conducting personally a postmortem examination and do not extend to the coroner’s eligibility to hold his office, the certification requirements for coroners are constitutional. OAG 84-355 .

Judicial certification of the qualifications of a candidate for county court clerk (now sometimes referred to as the “county clerk”) is no longer required. OAG 93-14 .

Research References and Practice Aids

Cross-References.

Additional qualifications for tax commissioners, KRS 132.380 .

Kentucky Law Journal.

Notes, An Analysis of the Question of County Jail Reform in Kentucky, 65 Ky. L.J. 130 (1976-77).

§ 101. Qualifications and jurisdiction of constables.

Constables shall possess the same qualifications as Sheriffs, and their jurisdictions shall be coextensive with the counties in which they reside. Constables now in office shall continue in office until their successors are elected and qualified.

NOTES TO DECISIONS

1.County Officers.

While there has been no plan yet proposed under KRS 67A.010 to 67A.040 (KRS 67A.040 now repealed) for the merger of city and county governments, it is not inevitable that any plan proposed would violate § 156 dealing with the powers of cities, §§ 97 to 108 designating various constitutional county officers or § 144 which provides for a fiscal court. Pinchback v. Stephens, 484 S.W.2d 327, 1972 Ky. LEXIS 148 ( Ky. 1972 ).

Cited:

Byrne & Speed Coal Co. v. Louisville, 189 Ky. 346 , 224 S.W. 883, 1920 Ky. LEXIS 429 ( Ky. 1920 ); Booth v. Board of Education, 191 Ky. 147 , 229 S.W. 84, 1921 Ky. LEXIS 267 ( Ky. 1921 ); Cook v. Commonwealth, 649 S.W.2d 198, 1983 Ky. LEXIS 242 ( Ky. 1983 ).

Opinions of Attorney General.

A constable cannot establish or work out of an office outside of his district. OAG 65-622 .

Although a constable must maintain an office in the district of his residence, from which he was elected, he may serve process coextensively with the county but he is not required to do so. OAG 65-622 .

A magistrate is not required to divide the assignment of work equally between the constable of his own district and the constable of another district but he may do so voluntarily. OAG 65-622 .

The issuing judge is not required to deliver a warrant of arrest to a particular or specific peace officer and it is within his discretion as to whom he will give it for execution. OAG 70-131 .

A deputy constable is not disqualified from serving in that capacity because of his residing in a district other than that in which the constable resides. OAG 70-187 .

An elected constable can join with the sheriff and state police in raiding places outside his district but within his county. OAG 70-457 .

A county constable may cite law violators into a city police court of a city within his county for offenses occurring within the corporate limits of the city. OAG 70-488 .

A constable may, if he desires, serve process outside of his district, which process he is not otherwise required to serve. OAG 70-614 .

Pursuant to subsection (3) of KRS 70.350 , a constable cannot be compelled to serve process outside of his district, unless the process is in behalf of the commonwealth or is against property in his district. OAG 70-614 .

A constable can make an arrest in a city within his district and bring the defendant before the police court of that city if it has jurisdiction. OAG 70-620 .

A constable has the duty of serving process, where it is directed or delivered to him, involving parties residing in his district, although the suit has been filed in another district. OAG 70-664 .

A constable can issue citations in traffic violation cases outside of his district citing such cases either to the county or justice’s court or to the police judge. OAG 70-792 .

A constable can arrest a person without a warrant in the district of one justice of the peace and take the defendant before another justice of the peace in another district for preliminary hearing and/or trial. OAG 71-65 .

A constable can make an arrest in any district in his county, since his jurisdiction is countywide under this section. OAG 72-108 .

A constable may enforce municipal ordinances if the offenses were committed within the boundaries of the municipality and in his presence. OAG 74-54 .

An elective constable cannot be barred from working in the city limits by the mayor, chief of police or the city council but he must keep his office in the district for which he was elected. OAG 74-554 .

Although a literal construction of KRS 95.510 would appear to empower police of cities of the third class to exercise their jurisdiction within an adjoining county providing it is within one mile of the city limits, this construction is negated by this section and KRS 65.255 . OAG 75-68 .

Since a constable’s jurisdiction is co-extensive with the county in which he resides and is elected he may, generally, exercise the duties of his office in any part of the county. OAG 78-207 .

KRS 15.335 is not in conflict with this section, Const., § 100 or 234, as relates to the sheriff and constable, since the waiver of residency requirement is expressly declared not to be effective for constitutional officers. OAG 82-105 .

Constables have no authority to serve process outside their own counties. OAG 96-29 .

§ 102. Officers for new counties.

When a new county shall be created, officers for the same, to serve until the next regular election, shall be elected or appointed in such way and at such times as the General Assembly may prescribe.

NOTES TO DECISIONS

1.Appointment.

A 1912 law which became effective June 12, 1912, creating the county of McCreary, provided for the appointment by the governor of all county officers provided by constitution and state laws. A county judge was appointed who held office until October 1912, when he resigned and another was appointed. A county judge was elected at the regular November election in 1912. The judge so elected was entitled to the office as against the second appointee. McCreary v. Williams, 153 Ky. 49 , 154 S.W. 417, 1913 Ky. LEXIS 779 ( Ky. 1913 ).

2.County Officers.

While there has been no plan yet proposed under KRS 67A.010 to 67A.040 (KRS 67A.040 now repealed) for the merger of city and county governments, it is not inevitable that any plan proposed would violate § 156 dealing with the powers of cities, §§ 97 to 108 designating various constitutional county officers, or § 144 which provides for a fiscal court. Pinchback v. Stephens, 484 S.W.2d 327, 1972 Ky. LEXIS 148 ( Ky. 1972 ).

Research References and Practice Aids

Cross-References.

Officers for consolidated counties, KRS 67.250 .

§ 103. Bonds of county officers and other officers.

The Judges of County Courts, Clerks, Sheriffs, Surveyors, Coroners, Jailers, Constables, and such other officers as the General Assembly may, from time to time, require, shall before they enter upon the duties of their respective offices, and as often thereafter as may be deemed proper, give such bond and security as may be prescribed by law.

NOTES TO DECISIONS

1.Failure to Renew.

A law authorizing the county court to declare the office of sheriff vacant upon failure of that official to renew either his general official or revenue bond within a specified time is constitutional, but the county court has the power to accept the bond on a day subsequent thereto and, having so accepted it, it is then too late to declare the office vacant. Schuff v. Pflanz, 99 Ky. 97 , 35 S.W. 132, 18 Ky. L. Rptr. 25 , 1896 Ky. LEXIS 59 ( Ky. 1896 ).

2.Waiver.

In advising county clerk, upon taking the oath of office, that he would approve the necessary bond on a subsequent date, the county judge waived tender of the bond within the statutory period and the office of clerk could not be vacated for failure to give bond within the stipulated time. Commonwealth v. Flatt, 219 Ky. 185 , 292 S.W. 785, 1927 Ky. LEXIS 309 ( Ky. 1927 ).

3.County Officers.

While there has been no plan yet proposed under KRS 67A.010 to 67A.040 (KRS 67A.040 now repealed) for the merger of city and county governments, it is not inevitable that any plan proposed would violate § 156 dealing with the powers of cities, §§ 97 to 108 designating various constitutional county officers, or § 144 which provides for a fiscal court. Pinchback v. Stephens, 484 S.W.2d 327, 1972 Ky. LEXIS 148 ( Ky. 1972 ).

This section, KRS 62.050 and KRS 62.055 , which state that a county clerk, before taking office shall post bond, are mandatory in nature. Elective clerks must post required bond before assuming the duties of office. Substantial compliance with these provisions is not sufficient. Bowen v. Commonwealth ex rel. Stidham, 887 S.W.2d 350, 1994 Ky. LEXIS 110 ( Ky. 1994 ).

This section, KRS 62.050 , and KRS 67.720 which state that a county judge-executive, before taking office shall post bond, are mandatory in nature. Elective county judge-executives must post required bond before assuming the duties of office and substantial compliance with these provisions is not sufficient. Commonwealth ex rel. Stidham v. Henson, 887 S.W.2d 353, 1994 Ky. LEXIS 111 ( Ky. 1994 ).

4.Bond.

Fire protection district’s suit against tax collection officials, including a county court clerk, a sheriff, and a county assessor or property valuation administrator, based on the officials’ failure to collect personal property tax pursuant to KRS 75.015 , was properly dismissed because sovereign immunity shielded the officials from liability; contrary to the district’s claim, the fact that the officials posted performance bonds did not amount to a waiver of sovereign immunity. Such waiver was found only where it was established by express language or by overwhelming implications. St. Matthews Fire Prot. Dist. v. Aubrey, 304 S.W.3d 56, 2009 Ky. App. LEXIS 47 (Ky. Ct. App. 2009).

Cited:

Thornsberry v. Western Surety Co., 738 F. Supp. 209, 1990 U.S. Dist. LEXIS 6717 (E.D. Ky. 1990 ).

Opinions of Attorney General.

The city marshal is required to be bonded under KRS 95.790 (repealed). OAG 64-498 .

The clerk and treasurer of a city of the sixth class are required to be bonded under KRS 88.210 (repealed). OAG 64-498 .

A person who is elected county coroner while voluntarily employed overseas by the department of the army as a civilian embalmer and who cannot return at the proper time to take the oath and assume the office cannot be granted four or five months’ temporary leave and then return and assume the office, because the failure to take oath and make bond within the time prescribed would result in an automatic vacation of office. OAG 69-239 .

Since KRS 28.020 (repealed) requires the county clerk, before entering on the duties of his office, to execute bond and prescribes the form of that bond, the liability on it depends upon its express wording and, since the bond is silent as to the deputies, it therefore does not cover the official acts of the clerk’s deputies. OAG 71-188 .

The deputy clerks of the county court clerk are not covered by the bond of the county clerk unless the bond expressly provides for such coverage. OAG 71-188 .

The failure of the county jailer to execute bond before entering upon the duties of his office created a vacancy in that office. See Campbell v. Dotson, 111 Ky. 125 , 63 S.W. 480, 1901 Ky. LEXIS 193 (1901). KRS 62.050(2) requires the elected official who must make bond to give bond on or before the day the term of office to which he has been elected begins; the statutory deadline for executing bond is mandatory and failure to give bond by the deadline vacates the office. OAG 83-483 .

Research References and Practice Aids

Cross-References.

Bonds generally, KRS ch. 62.

Bonds of:

Circuit clerks, KRS 30A.030 .

Constables, KRS 70.310 .

Coroners, KRS 72.010 .

Jailers, KRS 71.010 .

Sheriffs, KRS 70.020 , 134.230 , 134.330 .

Surveyors, KRS 73.010 .

What officers to give bond, liability on, Const., § 224.

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Bonds, § 12.00.

§ 104. Abolishment of office of assessor — Assessor may not succeed himself.

The General Assembly may abolish the office of Assessor and provide that the assessment of property shall be made by other officers; but it shall have power to reestablish the office of Assessor and prescribe his duties. No person shall be eligible to the office of Assessor two consecutive terms.

NOTES TO DECISIONS

1.Construction.

The word “abolish” in this section implied destruction and had an entirely different meaning from the word “consolidation” in Const., § 105. Stickler v. Higgins, 269 Ky. 260 , 106 S.W.2d 1008, 1937 Ky. LEXIS 592 ( Ky. 1937 ).

2.Abolishment.

Under the law abolishing the office of county assessor and creating in its place the office of county tax commissioner, incumbent assessors became ipso facto tax commissioners for the time they would have held office as assessors. Patton v. Jarvis, 185 Ky. 402 , 215 S.W. 71, 1919 Ky. LEXIS 310 ( Ky. 1919 ).

When office of county assessor was abolished pursuant to this section and office of county tax commissioner was created in lieu thereof, such commissioner was state, not county, officer. Jefferson County Fiscal Court v. Trager, 302 Ky. 361 , 194 S.W.2d 851, 1946 Ky. LEXIS 686 ( Ky. 1946 ).

3.Assessment.
4.— By Other Persons.

The provisions of the constitution do not prohibit, expressly or by implication, the assessment of property for taxation by any other person than the assessor elected in the county. Commonwealth ex rel. Armstrong v. E. H. Taylor Jr. Co., 101 Ky. 325 , 41 S.W. 11 ( Ky. 1897 ).

5.County Officers.

While there has been no plan yet proposed under KRS 67A.010 to 67A.040 (KRS 67A.040 now repealed) for the merger of city and county governments, it is not inevitable that any plan proposed would violate § 156 dealing with the powers of cities, §§ 97 to 108 designating various constitutional county officers, or § 144 which provides for a fiscal court. Pinchback v. Stephens, 484 S.W.2d 327, 1972 Ky. LEXIS 148 ( Ky. 1972 ).

Cited:

Talbott v. Burke, 287 Ky. 187 , 152 S.W.2d 586, 1941 Ky. LEXIS 515 ( Ky. 1941 ); Allphin v. Butler, 619 S.W.2d 483, 1981 Ky. LEXIS 259 ( Ky. 1981 ); Brown v. Barkley, 628 S.W.2d 616, 1982 Ky. LEXIS 232 ( Ky. 1982 ).

Research References and Practice Aids

Cross-References.

Tax commissioner in lieu of assessor, KRS 132.370 .

Tax commissioner must have certificate of qualifications, KRS 132.380 .

§ 105. Consolidation of offices of sheriff and jailer.

The General Assembly may, at any time, consolidate the offices of Jailer and Sheriff in any county or counties, as it shall deem most expedient; but in the event such consolidation be made, the office of Sheriff shall be retained, and the Sheriff shall be required to perform the duties of Jailer.

NOTES TO DECISIONS

1.Dissolution.

Once offices were consolidated under this section, legislature had right to dissolve such consolidation, at which point office of jailer would be revived, since “consolidation” did not mean “abolish.” Stickler v. Higgins, 269 Ky. 260 , 106 S.W.2d 1008, 1937 Ky. LEXIS 592 ( Ky. 1937 ).

2.County Officers.

While there has been no plan yet proposed under KRS 67A.010 to 67A.040 (KRS 67A.040 now repealed) for the merger of city and county governments, it is not inevitable that any plan proposed would violate § 156 dealing with the powers of cities, §§ 97 to 108 designating various constitutional county officers, or § 144 which provides for a fiscal court. Pinchback v. Stephens, 484 S.W.2d 327, 1972 Ky. LEXIS 148 ( Ky. 1972 ).

Cited:

Crady v. Cranfill, 371 S.W.2d 640, 1963 Ky. LEXIS 110 ( Ky. 1963 ).

Opinions of Attorney General.

Section 99 of the constitution prohibits the present sheriff of Jefferson County from accepting a position under the next succeeding sheriff as a tax collector or as superintendent of the jail. OAG 65-723 .

Under this constitutional section, the legislature may, at any time it is in lawful session, consolidate the office of jailer and sheriff in any county. However, under the present constitution, such consolidation could only be effective on a county basis, not a regional basis. OAG 69-615 .

Research References and Practice Aids

Cross-References.

Offices of jailer and sheriff in Jefferson County consolidated, KRS 71.110 .

§ 106. Fees of county officers — Fees in counties having seventy-five thousand population or more.

The fees of county officers shall be regulated by law. In counties or cities having a population of seventy-five thousand or more, the Clerks of the respective Courts thereof (except the Clerk of the City Court), the Marshals, the Sheriffs and the Jailers, shall be paid out of the State Treasury, by salary to be fixed by law, the salaries of said officers and of their deputies and necessary office expenses not to exceed seventy-five per centum of the fees collected by said officers, respectively, and paid into the Treasury.

NOTES TO DECISIONS

1.In General.

This section requires legislation to carry it into effect so as to render Const., Schedule First applicable. Norman v. Cain, 31 S.W. 860, 17 Ky. L. Rptr. 492 (1895).

2.Actions.

Demand upon fiscal court that it take steps to recover from county clerk such income of his office as had been “wrongfully, improperly or illegally used, disbursed or withheld” was sufficient to inform fiscal court that desired action was with respect to number and salaries of clerk’s deputies and other excessive office expenses. Land v. Lewis, 291 Ky. 800 , 165 S.W.2d 553, 1942 Ky. LEXIS 316 ( Ky. 1942 ).

3.Coroners.

Under this section, the legislature has the right to set the minimum salary payable to coroners. Carey v. Washington County Fiscal Court, 575 S.W.2d 161, 1978 Ky. App. LEXIS 644 (Ky. Ct. App. 1978).

4.Constables.

Legislature may require a county to pay a set salary to a constable in an amount exceeding the fees collected by him, and may allocate the fees earned by the office of constable to the payment of salaries of deputy constables alone. Jefferson County Fiscal Court v. Thomas, 279 Ky. 458 , 130 S.W.2d 60, 1939 Ky. LEXIS 258 ( Ky. 1939 ).

5.County Attorneys.

County, not Commonwealth, is entitled to excess fees paid county attorney, including commissions on judgments for fines and forfeitures. Commonwealth v. Coleman, 245 Ky. 673 , 54 S.W.2d 42, 1932 Ky. LEXIS 662 ( Ky. 1932 ).

The General Assembly has not yet fixed a salary for the county attorney. Commonwealth v. Coleman, 245 Ky. 673 , 54 S.W.2d 42, 1932 Ky. LEXIS 662 ( Ky. 1932 ).

6.County Clerks.

The compensation of the clerk of the Jefferson County court cannot under any circumstances exceed 75 per cent of the amount collected and turned into the state treasury. Neutzel v. Fiscal Court of Jefferson County, 183 Ky. 1 , 208 S.W. 11, 1919 Ky. LEXIS 433 ( Ky. 1 919).

7.County Officers.

While there has been no plan yet proposed under KRS 67A.010 to 67A.040 (KRS 67A.040 now repealed) for the merger of city and county governments, it is not inevitable that any plan proposed would violate § 156 dealing with the powers of cities, §§ 97 to 108 designating various constitutional county officers, or § 144 which provides for a fiscal court. Pinchback v. Stephens, 484 S.W.2d 327, 1972 Ky. LEXIS 148 ( Ky. 1972 ).

8.Compensation.
9.— Absence from Office.

No officer, including a Commonwealth’s Attorney, is entitled to receive emoluments of office while absent therefrom during army service, in view of this section and Const., §§ 42, 97, 98, 108 and 235 together with KRS 61.120 and 64.410 . Whitworth v. Miller, 302 Ky. 24 , 193 S.W.2d 470, 1946 Ky. LEXIS 592 ( Ky. 1946 ).

The Constitution and the implementing legislation thereunder abrogate the rule of the common law that the right to compensation is incident to the title of public office and not to the performance of the functions thereof, and therefore a public officer is no longer entitled to the emoluments of such office when he performs no duties or services in connection therewith. Whitworth v. Miller, 302 Ky. 24 , 193 S.W.2d 470, 1946 Ky. LEXIS 592 ( Ky. 1946 ).

10.— Regulation by Law.

The fact that this section provides that the fees of county officers shall be regulated by law cannot be held to mean that the fees of other officers cannot be regulated by law. Winston v. Stone, 102 Ky. 423 , 43 S.W. 397, 19 Ky. L. Rptr. 1483 , 1897 Ky. LEXIS 95 ( Ky. 1897 ), overruled, Vaughn v. Knopf, 895 S.W.2d 566, 1995 Ky. LEXIS 49 ( Ky. 1995 ).

Power to fix compensation of officers was vested in legislature, and courts could not fix or limit salaries. Meade County v. Neafus, 395 S.W.2d 573, 1965 Ky. LEXIS 149 ( Ky. 1965 ).

11.Deputies or Assistants.

Law relating to salaries of county officers and providing that the judges of county courts shall fix the salaries of the deputies or assistants employed by such officers is not unconstitutional as a delegation of legislative power to a judicial tribunal. Stone v. Wilson, 39 S.W. 49, 19 Ky. L. Rptr. 126 (1897), overruled, Vaughn v. Knopf, 895 S.W.2d 566, 1995 Ky. LEXIS 49 ( Ky. 1995 ).

12.Fees.

The legislative authority to fix fees under this section may not be exerted in contravention of other constitutional provisions. Board of Education v. Wagers, 239 S.W.2d 48, 1951 Ky. LEXIS 836 ( Ky. 1951 ).

13.— Tax Collection.

KRS 160.500 , establishing a fee of four per cent for collecting school taxes, in unconstitutional, since it is in excess of the sufficient amount and would create a substantial excess annually which would be diverted to other than school purposes. Dickson v. Jefferson County Board of Education, 311 Ky. 781 , 225 S.W.2d 672, 1949 Ky. LEXIS 1251 ( Ky. 1949 ).

14.Highway Patrol.

Law creating the office of county highway patrol is not in violation of this section relating to fees in counties of 75,000 population. Milliken v. Harrod, 275 Ky. 597 , 122 S.W.2d 148, 1938 Ky. LEXIS 471 ( Ky. 1938 ).

15.Jailers.

Intent of law that required a jailer on the first day of each month to make an itemized statement showing his expenses and the amount received by him as fees was that county jailer should account for, report, and pay amount of fees into state treasury, as any other construction would be contrary to this section. Stone v. Pflanz, 99 Ky. 647 , 36 S.W. 1128, 18 Ky. L. Rptr. 489 , 1896 Ky. LEXIS 123 ( Ky. 1896 ).

County jailer who accepted less than the full payment as fixed by law for keeping city prisoners, under an illegal contract with the city, was not estopped from subsequently recovering the full payment. Winchester v. Azbill, 225 Ky. 389 , 9 S.W.2d 51, 1928 Ky. LEXIS 791 ( Ky. 1928 ).

16.— Excess Fees.

There being no conflicting statutory provisions, county, not state, is entitled to excess of jailer’s fees over salary and expenditures. Holland v. Fayette County, 240 Ky. 37 , 41 S.W.2d 651, 1931 Ky. LEXIS 344 ( Ky. 1931 ).

17.Master Commissioners.

An 1893 act fixing the fees of master commissioner of the Jefferson Circuit Court was in accord with this section, and the court had no power to prescribe rules giving him compensation in excess of the amount fixed by that act. McHenry v. Winston, 105 Ky. 307 , 49 S.W. 971, 1899 Ky. LEXIS 284 ( Ky. 1899 ).

18.Necessary Expenses.

Both salaries and necessary expenses of county offices are covered by this section, permitting a deputy sheriff to claim mileage for transporting prisoners to state prisons. Coleman v. Mulligan, 234 Ky. 691 , 28 S.W.2d 980, 1930 Ky. LEXIS 249 ( Ky. 1930 ).

“Necessary office expense,” as used in this section, refers to expenses incident and necessary to proper conduct of such offices other than the salary of deputies. County jail matrons are jailer’s “deputies” and must be paid as such. Connors v. Jefferson County Fiscal Court, 277 Ky. 23 , 125 S.W.2d 206, 1938 Ky. LEXIS 564 ( Ky. 1938 ).

The physician to the jail, appointed under former KRS 441.300 , was not a deputy, nor was his salary necessary office expenses so as to require him to be paid as required by this section. Connors v. Jefferson County Fiscal Court, 277 Ky. 23 , 125 S.W.2d 206, 1938 Ky. LEXIS 564 ( Ky. 1938 ).

A county officer paid from fees may be allowed the reasonable expenses of his office that are beneficial to the public and not predominantly personal in nature. Funk v. Milliken, 317 S.W.2d 499, 1958 Ky. LEXIS 100 ( Ky. 1958 ).

A fiscal court is authorized, though not required to fix in advance, the categories of and maximum amounts for official expenses that will be allowed a county officer paid by fees and, in such case, the officer must submit a detailed accounting of his claimed expenses supported by adequate explanatory data. Funk v. Milliken, 317 S.W.2d 499, 1958 Ky. LEXIS 100 ( Ky. 1958 ).

19.Population.

This section is applicable if the county has a population of 75,000 or more, whether such county has a city of 75,000 population or not. Herold v. Talbott, 261 Ky. 634 , 88 S.W.2d 303, 1935 Ky. LEXIS 703 ( Ky. 1935 ).

Certificate of census by national supervisor is evidence of population of which the courts may take judicial notice, but it is only prima facie, or, in cases where it is the basis for an act, the best evidence of the fact, which may be overcome by evidence of fraud when attacked on that ground. Gross v. Ross, 299 Ky. 383 , 185 S.W.2d 547, 1945 Ky. LEXIS 430 ( Ky. 1945 ).

Certificate of national census was not conclusive as to whether a county had population of 75,000 or more. Proof that fraud was committed in taking the census by adding a substantial number of fictitious names and that the population of the county had substantially decreased since the date of the census was sufficient to overcome census certificate showing county population to be slightly in excess of 75,000, thus making this section inapplicable to the county. Gross v. Ross, 299 Ky. 383 , 185 S.W.2d 547, 1945 Ky. LEXIS 430 ( Ky. 1945 ).

20.Salaries.
21.— Failure to Regulate.

Where the legislature has failed to regulate the salary of a public officer as allowed by this section, the officer’s compensation is governed by Const., § 246. Holland v. Fayette County, 240 Ky. 37 , 41 S.W.2d 651, 1931 Ky. LEXIS 344 ( Ky. 1931 ).

22.— Illegally Reduced.

Acceptance by a public officer of his illegally reduced salary does not estop him from claiming the full salary. Altes' Ex'x v. Beauchamp, 277 Ky. 491 , 126 S.W.2d 867, 1939 Ky. LEXIS 679 ( Ky. 1939 ).

23.— In Lieu of Fees.

A law providing for salaries in lieu of fees for certain county offices is constitutional. Shaw v. Fox, 246 Ky. 342 , 55 S.W.2d 11, 1932 Ky. LEXIS 761 ( Ky. 1932 ).

24.— Limited.

Where law limited salary and expenses of a county officer to 75 per cent of the fees paid into the treasury each month by the officer during his official term, surplus from collections to one month could be used to make up deficits in any following month, since the legislative intent was to use the term of office and not the month in computing the limitation. Shannon v. Grieb, 266 Ky. 591 , 99 S.W.2d 751, 1936 Ky. LEXIS 716 ( Ky. 1936 ).

25.Sheriffs.

Under this section requiring the fees of county officers to be regulated by law, the fiscal court could not agree to a compensation to sheriff for collecting county revenue other than that fixed by law. Alexander v. Owen County, 136 Ky. 420 , 124 S.W. 386, 1910 Ky. LEXIS 500 ( Ky. 1910 ). See Madison County Fiscal Court v. McChord, 145 Ky. 727 , 141 S.W. 377, 1911 Ky. LEXIS 945 ( Ky. 1911 ).

Except in counties with a population of 75,000 or more, sheriffs’ salaries may be paid by fiscal courts from county funds. Harlan v. Sawyers, 290 S.W.2d 488, 1956 Ky. LEXIS 327 ( Ky. 1956 ).

26.— Tax Collection.

The legislature may by law designate someone other than the county sheriff to collect delinquent taxes, since this is not necessarily a function of the sheriff under the constitution. Madison County v. Hamilton, 243 Ky. 29 , 47 S.W.2d 938, 1932 Ky. LEXIS 33 ( Ky. 1932 ).

27.Social Security.

Under this section and various laws enacted pursuant thereto, state, not county, was liable for payment of employers’ portion of social security contributions to be paid for sheriff, circuit clerk, and county clerk of county having a population of more than 75,000. Shamburger v. Commonwealth, 240 S.W.2d 636, 1951 Ky. LEXIS 1014 ( Ky. 1951 ).

Cited:

Young v. Jefferson County, 100 S.W. 335, 30 Ky. L. Rptr. 1209 (1907); Ross v. Board of Education, 196 Ky. 366 , 244 S.W. 793, 1922 Ky. LEXIS 520 ( Ky. 1922 ); Commonwealth ex rel. Attorney Gen. v. Furste, 288 Ky. 358 , 156 S.W.2d 198, 1941 Ky. LEXIS 117 ( Ky. 1941 ); Ross v. Gross, 300 Ky. 337 , 188 S.W.2d 475, 1945 Ky. LEXIS 544 ( Ky. 1945 ); Commonwealth ex rel. Dummit v. Jefferson County, 300 Ky. 514 , 189 S.W.2d 604, 1945 Ky. LEXIS 570 , 167 A.L.R. 512 ( Ky. 1945 ); Metcalf v. Howard, 304 Ky. 498 , 201 S.W.2d 197, 1947 Ky. LEXIS 666 ( Ky. 1947 ); Weber v. True, 304 Ky. 681 , 202 S.W.2d 174, 1947 Ky. LEXIS 704 ( Ky. 1947 ); Hennessy v. Stewart, 283 S.W.2d 719, 1955 Ky. LEXIS 327 ( Ky. 1955 ); Wilson v. Ball, 323 S.W.2d 840, 1959 Ky. LEXIS 336 ( Ky. 1959 ); Ex parte Auditor of Public Accounts, 609 S.W.2d 682, 1980 Ky. LEXIS 274 ( Ky. 1980 ).

Opinions of Attorney General.

Mobile radio equipment, a copy of the Kentucky Revised Statutes, postage, and fingerprinting and investigating materials all constitute necessary expenses of the sheriff’s office and could be offset against excess fees. OAG 63-1054 .

The office of the sheriff of Fayette County could lease a boat and motor for official duties on the Kentucky River. OAG 64-470 .

Long distance telephone calls of county officials compensated wholly or in part from fees involving official business and supported by proper documentation should be allowed as expenses to be credited against excess fees. OAG 65-349 .

Where an outgoing sheriff who had purchased office furniture and equipment from the fees of his office attempted to sell the property in order to meet the payroll, he had no authority to sell the property and the attempted sale was illegal and void ab initio and the title to the property did not pass. OAG 65-881 .

Where the sheriff purchased office furniture and equipment from the fees of his office, that property became the property of the county and the fiscal court had control of the property. OAG 65-881 .

Fiscal courts in counties of 75,000 or less population may finance or furnish sheriffs’ automobiles in such counties as necessary official expenses of that office. OAG 68-330 .

Where a sheriff and two deputies were sued in a civil suit, if judgment was awarded against them, the court costs would not be an official expense of the sheriff’s office. OAG 68-367 .

The phrase “necessary office expenses,” as it appears in this section and in KRS 64.345 , does not include surgical fees for the care of a deputy sheriff injured in line of duty. OAG 69-293 .

This constitutional section means that the legislature is required to establish a fee system through its enactments. OAG 69-615 .

Where a pro tem judge was appointed to serve during the regular judge’s statutory vacation and continued to serve due to the regular judge’s incapacitating illness, the fiscal court was legally responsible for paying the county judge pro tem for his services in that capacity for the period of time he served. OAG 69-660 .

There is no authority providing that a burglary loss is a necessary office expense and the loss sustained may not be charged against a county clerk’s excess fee balance as an expense of the county clerk’s office. OAG 69-697 .

The fiscal court of a county of 75,000 or more population could not require the sheriff, jailer and county clerk to purchase compensation insurance out of their excess fees since it would not constitute “a necessary office expense” of such offices. OAG 70-577 .

Subject to the 75 per cent restriction found in KRS 64.345 , the county and circuit courts of Jefferson County have the authority, within their sound discretion, to grant an order allowing the Jefferson Circuit Court to expend, out of the 75 per cent account of the fees of his office, money for the actual and necessary expenses occasioned by his deputies attending the circuit court clerks’ convention. OAG 70-747 .

Before a fiscal court could authorize the expenditure of funds to hire outside counsel to assist in the defense of several suits against a sheriff, it would have to be determined that the requisite county interest was involved and that the sheriff had acted in good faith in the performance of his duties. OAG 71-355 .

The necessary and actual expenses of the deputy sheriffs in staying overnight with sequestered juries under orders of the circuit court can be paid, when properly documented, from the sheriff’s 75 per cent account pursuant to KRS 64.345 as a legitimate and necessary office expense. OAG 71-495 .

Under this section hospital and medical insurance premiums under policies covering a sheriff and his deputies could be paid from the 75 per cent of fees collected. OAG 72-644 .

Fact that application of workers’ compensation to county employees has been made mandatory does not make the purchase of policy providing such compensation “a necessary office expense” payable from fees of the particular office head since there is still no statute so permitting. OAG 73-618 .

Expense of providing radio programming to jail prisoners is a “necessary expense” of the office of jailer and circuit and county judges could properly approve such expense, payable out of the 75 per cent account. OAG 73-622 .

The normal accounting system in a county of less than 75,000 for an officer who is compensated wholly from fees merely requires the fee officer to pay the fiscal court the excess of receipts over and above the amounts allowable for personal compensation, the compensation of his legally authorized deputies and assistants and authorized office expenses within a reasonable time after the end of each calendar year of the officer’s term. OAG 74-1 .

The 1974 amendment transferring authority to allow office expenses, the number of deputies and assistants and their salaries in certain counties with a population of 75,000 or over from the circuit court judges and county judge to the fiscal court can only be asserted by the fiscal court beginning January, 1975, thus, prior to that time, the circuit judges and county judge would have to pass upon a motion made by the county clerk for another raise, additional deputies and the right to spend his entire 75 per cent account. OAG 74-534 .

In counties of 75,000 population or more, the payment of the premiums for the state revenue bond covered in KRS 134.230 and the sheriff’s general performance bond out of the “75% account” is not based on KRS 62.155 but is based upon the specific nature of “necessary office expenses” as mentioned in this section and KRS 64.345 and as construed by the courts over the years. OAG 74-561 . (Modifying OAG 74-413 .)

The circuit judges and county judge, as a judicial panel, do not have authority under this section and Const. § 106 to authorize, as a necessary office expense, the expense of parking for the county clerk’s deputies and assistants out of the fees of the clerk’s office since such expense is incidental to getting to their offices to work and, while the cars are at rest in the parking area, they are not being used for the official business of the office. OAG 74-582 . (Modifying OAG 72-540 to the extent it is in conflict.)

The fiscal court may authorize the payment out of the county treasury for the monthly maintenance of automobiles used by the county sheriff in connection with his statutory duties and, in addition, it can authorize the payment out of the county treasury for gasoline used by the sheriff’s vehicles in the carrying out of his statutory functions, of course these payments for automobile maintenance and gasoline should not be in duplication of reimbursements involved in KRS 70.170 and 64.095 ; it is legal to budget a sum for such expenditures as an estimate of what may be expended for that category; however, the actual expenditure of such money must be based upon actual maintenance cost accrued as documented and presented by the sheriff to the fiscal court for payment on an item by item basis. OAG 78-271 .

Although this section was not expressly repealed by the judicial amendment, the circuit clerks as listed in this section are no longer, as of January 2, 1978, under the operative provisions of this section. OAG 79-440 .

This section, as it relates to the circuit clerk, is in conflict with the new system envisioned by the new judicial articles, and therefore repealed pro tanto by Const., § 124. OAG 79-440 .

Where a county fiscal court sets up a maximum of $5,000 for equipment, and the sheriff sends an invoice for $6,000 to the department of finance, the department can only honor the invoice up to $5,000, until and unless the fiscal court by a subsequent order raises the limit to $6,000, at which time the department can honor the additional $1,000; the department of finance has to stick to the proper breakdown maximums set up by fiscal court in its initial order and any subsequent orders of modification. OAG 80-100 .

A succeeding sheriff is not personally liable for repayment of the advancements made to the outgoing sheriff, but such advancements are a proper charge against the tax commissions “of his office,” to the extent that they represent taxes which would normally have been collected during the fourth year of the outgoing sheriff’s term. OAG 80-298 .

Where the tax collection procedure is delayed during the fourth year of the sheriff’s term to the following year, through no fault of the incumbent sheriff, advancements to the outgoing sheriff during his fourth year may be refunded to the state by: (1) the fiscal court’s payment out of the county treasury, if available; or (2) the tax commissions collected by the succeeding sheriff during the successor’s first year of office, which commissions would normally have been earned during the fourth year of the outgoing sheriff’s terms; or (3) the payment of the outgoing sheriff out of his pocket for any balance of advancement remaining after exhausting sources (1) and (2) above. OAG 80-298 .

Since the state, under this section and KRS 64.345 , receives the fees of the county clerk, the sheriff and jailer in counties of 75,000 population or more, and pays their expenses out of the state treasury, such constitutional officers are state officers for the purpose of paying their travel expenses and are therefore subject to the state travel regulations. OAG 80-317 .

Fees received by the county attorney from the county clerk which are derived from the collection of certain taxes may not be used by the county attorney to pay premiums on professional liability insurance to cover the county attorney and his assistants, since such liability insurance is not a county attorney office “operating expense” under KRS 134.545 and this section because it insures the personal liability of the county attorney and his assistants. OAG 81-96 .

Employees of the county clerk, jailer and sheriff must be paid overtime, at the rate of time and a half, when they work longer than a 40 hour week, and such overtime payment must be paid from the “75% fund” set up by this section. OAG 81-123 .

Where an urban county council or fiscal court has under KRS 67A.060 , KRS 67.080 , and KRS 67.083 enacted reasonable ordinances providing for accumulated leave payment upon leaving local service and taking leave with pay while still in local service, an employee of the county court clerk, jailer or sheriff who is terminated may be paid for accumulated leave out of the “75% fund” set up in this section. OAG 81-123 .

The purchase of handguns for a sheriff and his deputies in their law enforcement role constitutes a “necessary office expense,” as envisioned in KRS 64.345 and this section. Thus, the sheriff should request the fiscal court to authorize him to effect such a purchase, to be paid out of his 75 percent account. OAG 82-475 .

Research References and Practice Aids

Cross-References.

Compensation, deputies and office expenses of clerks, sheriffs and jailers in counties having population of 75,000 or more, KRS 64.345 .

Fees, KRS ch. 64, KRS 132.590 , 134.290 , 160.500 .

Fees paid into treasury from counties over 75,000 in population, KRS 64.365 .

Maximum compensation, Const., § 246.

Population, how determined for purposes of this section, effect of change in population during term of officer, KRS 64.347 .

§ 107. Additional county or district offices may be created.

The General Assembly may provide for the election or appointment, for a term not exceeding four years, of such other county or district ministerial and executive officers as may, from time to time, be necessary.

NOTES TO DECISIONS

1.Abolishment.

An office not fixed by the constitution but established by law may be abolished by law unless a contract right has been secured by the incumbent, and a board of council of a city, in the exercise of a discretion given it by law, may at will abolish a city office which it has established. Board of Councilmen v. Brawner, 100 Ky. 166 , 37 S.W. 950, 18 Ky. L. Rptr. 684 , 1896 Ky. LEXIS 160 ( Ky. 1896 ).

2.Appointment.

The act creating the office of indexer and authorizing judges to appoint was not unconstitutional, but was expressly authorized by this section. Roberts v. Cain, 97 Ky. 722 , 31 S.W. 729, 17 Ky. L. Rptr. 459 , 1895 Ky. LEXIS 233 ( Ky. 1895 ).

An 1898 act regulating elections was, to the extent it provided for the appointment of election commissioners by the legislature, unconstitutional, the appointment to office being an executive power. Pratt v. Breckinridge, 112 Ky. 1 , 65 S.W. 136, 23 Ky. L. Rptr. 1356 , 1901 Ky. LEXIS 286 ( Ky. 1 901).

A law authorizing appointment of clerical assistants to justices in counties of over 250,000 population is constitutional. Shaw v. Fox, 246 Ky. 342 , 55 S.W.2d 11, 1932 Ky. LEXIS 761 ( Ky. 1932 ).

This section does not invalidate a law providing for the appointment of a city personnel director by the city personnel commission to hold office during good behavior, subject to the commission’s right to remove him for cause. Kerr v. Louisville, 271 Ky. 335 , 111 S.W.2d 1046, 1937 Ky. LEXIS 241 ( Ky. 1937 ).

3.— Removal.

The authority conferred upon the General Assembly by this section includes the authority to determine the manner and by what tribunal an officer whose appointment is so provided for may be removed. Hoke v. Richie, 37 S.W. 83, 18 Ky. L. Rptr. 523 (1896).

4.County Officers.

While there has been no plan yet proposed under KRS 67A.010 to 67A.040 (KRS 67A.040 now repealed) for the merger of city and county governments, it is not inevitable that any plan proposed would violate § 156 dealing with the powers of cities, §§ 97 to 108 designating various constitutional county officers, or § 144 which provides for a fiscal court. Pinchback v. Stephens, 484 S.W.2d 327, 1972 Ky. LEXIS 148 ( Ky. 1972 ).

Refusal of fiscal court to reappoint plaintiff at the end of his term as county treasurer, an office which has the indicia of a policy making government position which vests its holder with discretionary power, considerable responsibility, and confidence and supervisory authority, and instead to make a patronage appointment of another person to the position was consistent with KRS 67.080 , 67.083 and 68.010 and Const., § 23 and this section and such action of the court did not violate the first or fourteenth amendments to the United States Constitution and was consistent with federal precedent. Garrard County Fiscal Court v. Layton, 840 S.W.2d 208, 1992 Ky. App. LEXIS 97 (Ky. Ct. App. 1992), cert. denied, 507 U.S. 1032, 113 S. Ct. 1851, 123 L. Ed. 2d 474, 1993 U.S. LEXIS 2825 (U.S. 1993).

5.Delegation of Power.

An act is not unconstitutional because it delegates the power to the Circuit Court or county court to fix the number and compensation of deputies of certain public officers and the amounts to be allowed for their office expenses. Winston v. Stone, 102 Ky. 423 , 43 S.W. 397, 19 Ky. L. Rptr. 1483 , 1897 Ky. LEXIS 95 ( Ky. 1897 ), overruled, Vaughn v. Knopf, 895 S.W.2d 566, 1995 Ky. LEXIS 49 ( Ky. 1995 ).

6.Election.

A 1922 act authorizing the legislature to designate or itself elect members of state highway commission was invalid. Sibert v. Garrett, 197 Ky. 17 , 246 S.W. 455, 1922 Ky. LEXIS 639 ( Ky. 1922 ).

7.Term.

Law which created a board of prison commissioners and provided for a term of six (6) years for one of the commissioners was violative of this section, but such provision in the law was a separable one and could be rejected, leaving such commissioner with a term of four (4) years. Commissioners of Sinking Fund v. George, 104 Ky. 260 , 47 S.W. 779, 20 Ky. L. Rptr. 938 , 1898 Ky. LEXIS 211 ( Ky. 1898 ).

The metropolitan police bill providing for the appointment of policemen to hold office either during good behavior or at the pleasure of the appointing power was not unconstitutional as authorizing an appointment for a longer time than a term of years. Louisville v. Ross, 138 Ky. 764 , 129 S.W. 101, 1910 Ky. LEXIS 131 ( Ky. 1910 ). See Fidelity & Deposit Co. v. Commonwealth, 252 Ky. 476 , 67 S.W.2d 719, 1934 Ky. LEXIS 815 ( Ky. 1934 ). But see Neumeyer v. Krakel, 110 Ky. 624 , 62 S.W. 518, 23 Ky. L. Rptr. 190 , 1901 Ky. LEXIS 124 ( Ky. 1901 ).

An act creating the office of railroad policeman is not violative of this section in failing to limit the term of office for a time not exceeding four (4) years, but the term of office is limited to four (4) years. Cincinnati, N. O. & T. P. R. Co. v. Cundiff, 166 Ky. 594 , 179 S.W. 615, 1915 Ky. LEXIS 755 ( Ky. 1915 ).

The word “term” in this section applies to the office itself and not to the tenure of the incumbent and does apply to appointive offices held solely at the pleasure of the appointing power. Kratzer v. Commonwealth, 228 Ky. 684 , 15 S.W.2d 473, 1929 Ky. LEXIS 616 ( Ky. 1929 ).

Under this section, restricting term to four (4) years, and Const., § 23, prohibiting the creation of an office for longer time than a term of years, a city manager may be appointed by mayor and board of commissioners to hold office at their pleasure. Owensboro v. Hazel, 229 Ky. 752 , 17 S.W.2d 1031, 1929 Ky. LEXIS 843 ( Ky. 1929 ). See Lexington v. Thompson, 250 Ky. 96 , 61 S.W.2d 1092, 1933 Ky. LEXIS 655 ( Ky. 1933 ).

8.— Extension.

Drainage commissioners appointed under the Drainage Act of 1912 were officers, and act was unconstitutional insofar as it attempted to extend their terms of office. Board of Drainage Comm'rs v. Lang, 187 Ky. 123 , 218 S.W. 736, 1920 Ky. LEXIS 89 ( Ky. 1920 ). See Bard v. Board of Drainage Comm'rs, 274 Ky. 491 , 118 S.W.2d 1013, 1938 Ky. LEXIS 292 ( Ky. 1938 ).

9.— Holding Over.

Where county treasurer held over after expiration of term, sureties on his official bond were not liable for default occurring during holdover period. Miller v. Rockcastle County, 248 Ky. 290 , 58 S.W.2d 598, 1933 Ky. LEXIS 230 ( Ky. 1933 ). See Rockcastle County v. Bowman, 274 Ky. 787 , 120 S.W.2d 385, 1938 Ky. LEXIS 336 ( Ky. 1938 ).

10.Vacancy.

Where by law an inspector of illuminating oils “shall remain in office for four (4) years” and the incumbent dies during the period, the appointment of his successor is only for the unexpired part of the term and not for a full term of four (4) years, although the order of appointment so recites. Hoke v. Richie, 100 Ky. 66 , 37 S.W. 266, 18 Ky. L. Rptr. 546 , 1896 Ky. LEXIS 140 ( Ky. 1896 ).

Cited:

Fidelity & Deposit Co. v. Combs, 176 F. Supp. 756, 1959 U.S. Dist. LEXIS 2857 (D. Ky. 1 959 ); Hoke v. Richie, 100 Ky. 66 , 18 Ky. L. Rptr. 546 , 37 S.W. 266, 1896 Ky. LEXIS 140 ( Ky. 1 896 ); Board of Councilmen v. Brawner, 100 Ky. 166 , 18 Ky. L. Rptr. 684 , 37 S.W. 950, 1896 Ky. LEXIS 160 ( Ky. 1896 ); Pratt v. Breckinridge, 112 Ky. 1, 23 Ky. L. Rptr. 1356 , 65 S.W. 136, 1901 Ky. LEXIS 286 ( Ky. 1901 ); Petty v. Talbott, 256 Ky. 688 , 76 S.W.2d 940, 1934 Ky. LEXIS 475 ( Ky. 1934 ); Bard v. Board of Drainage Comm’rs, 274 Ky. 491 , 118 S.W.2d 1013, 1938 Ky. LEXIS 292 ( Ky. 1938 ).

Opinions of Attorney General.

When the fiscal court failed to appoint a county treasurer at its April term, a vacancy existed even though the former treasurer purported to hold over until July 1. OAG 62-30 .

Where the fiscal court failed to appoint a county treasurer at its April term, a treasurer appointed in May at a special session would hold office for the balance of the four-year term. OAG 62-30 .

A county treasurer can only serve for a period not exceeding the four-year term. OAG 79-409 .

§ 108. Abolishment of office of Commonwealth’s Attorney.

The General Assembly may, at any time after the expiration of six years from the adoption of this Constitution, abolish the office of Commonwealth’s Attorney, to take effect upon the expiration of the term of the incumbents, in which event the duties of said office shall be discharged by the County Attorneys.

NOTES TO DECISIONS

1.Incumbents.

Though the legislature is given power to abolish the office of Commonwealth’s attorney, it cannot abolish the tenure of any rightful incumbent of the office. Adams v. Roberts, 119 Ky. 364 , 83 S.W. 1035, 26 Ky. L. Rptr. 1271 , 1904 Ky. LEXIS 173 ( Ky. 1904 ).

2.County Officers.

While there has been no plan yet proposed under KRS 67A.010 to 67A.040 (KRS 67A.040 now repealed) for the merger of city and county governments, it is not inevitable that any plan proposed would violate § 156 dealing with the powers of cities, §§ 97 to 108 designating various constitutional county officers, or § 144 which provides for a fiscal court. Pinchback v. Stephens, 484 S.W.2d 327, 1972 Ky. LEXIS 148 ( Ky. 1972 ).

Cited:

Whitworth v. Miller, 302 Ky. 24 , 193 S.W.2d 470, 1946 Ky. LEXIS 592 ( Ky. 1946 ); Miller v. Robertson, 306 Ky. 653 , 208 S.W.2d 977, 1948 Ky. LEXIS 631 ( Ky. 1948 ).

THE JUDICIAL DEPARTMENT

§ 109. The judicial power — Unified system — Impeachment.

The judicial power of the Commonwealth shall be vested exclusively in one Court of Justice which shall be divided into a Supreme Court, a Court of Appeals, a trial court of general jurisdiction known as the Circuit Court and a trial court of limited jurisdiction known as the District Court. The court shall constitute a unified judicial system for operation and administration. The impeachment powers of the General Assembly shall remain inviolate.

Compiler’s Notes.

The General Assembly in 1974 proposed (Acts 1974, ch. 84, §§ 1-3) the repeal of sections 109 to 139, 141 and 143 of the Constitution and the substitution in lieu thereof of new sections 109-124. This amendment was ratified by the voters at the regular election in November, 1975 and became effective January 1, 1976.

Section 2 of this amendment read: “It further is proposed as a part of this amendment and as a schedule of transitional provisions, for the purposes of this amendment, that:

“1. The judges of the Court of Appeals in office on the effective date of this amendment shall become justices of the Supreme Court, for the duration of their terms, and the election of successors shall be in accordance with those terms.

“2. The circuit judges in office on the effective date of this amendment shall be continued therein for the duration of their terms. The term of office of eight years provided in this amendment for circuit judges shall apply to the circuit judges elected at the election at which this amendment is adopted.

“3. The term of office of judges of the Court of Appeals created by this amendment shall be deemed to commence as of the first Monday in January, 1976. The vacancies existing on that date by virtue of no election having been held for the office in November, 1975 shall be filled in accordance with section 152 of the present constitution and section 118 as created by this amendment.

“4. The term of office of judges of the District Court shall be deemed to commence as of the first Monday in January, 1978, and judges shall be elected at the regular election next preceding that date. The District Court shall be constituted and organized as of the first Monday in January, 1978.

“5. The quarterly courts, county courts as judicial bodies, justices’ courts and police courts in existence on the effective date of this amendment shall continue in existence until the first Monday in January, 1978. For that period those courts shall continue to be governed by the present constitution and none of the provisions of this amendment shall apply to them, except that those courts shall be deemed a part of the unified judicial system and shall be subject to the general control and rule-making power of the Supreme Court. The terms of any police court judges which commence on the first Monday in January, 1976, shall be reduced to two years from that date.

“6. The clerk of the Court of Appeals elected at the election at which this amendment is adopted shall serve as clerk of the Supreme Court for the term for which he was elected, subject to removal by the Supreme Court for good cause.

“7. Until otherwise provided by law the statutes applicable to the present Court of Appeals and not inconsistent with this amendment shall apply to the Supreme Court.

“8. All causes and proceedings pending in the present Court of Appeals on the effective date of this amendment are transferred to and shall be decided or otherwise disposed of by the Supreme Court.

“9. All causes and proceedings pending in the quarterly courts, county courts as judicial bodies, justices’ courts and police courts, on the first Monday in January, 1978, shall then be transferred to and decided by the Circuit Court or the District Court of the area, in accordance with the respective jurisdictions prescribed for the latter courts.”

NOTES TO DECISIONS

1.Purpose.

The purpose of the references to administration and administrative functions in the Judicial Amendment (Const., §§ 109 — 124) is to make it unmistakably clear that the judicial branch of the state government has exclusive authority to manage its own affairs. Ex parte Auditor of Public Accounts, 609 S.W.2d 682, 1980 Ky. LEXIS 274 ( Ky. 1980 ).

2.Appellate Procedure.

Since under this section and § 116 of the Constitution the Supreme Court only has the power to prescribe rules governing appellate procedure and jurisdiction and since the only restriction on appeal by the Commonwealth set forth by the Constitution of Kentucky, as stated in § 115 of the Constitution, is that the Commonwealth may not appeal from a judgment of acquittal in a criminal case for any purpose other than securing a certification of the law, therefore, when the Legislature, by enactment of KRS 22A.020(4), attempted to establish rules of appellate procedure, it was contrary to the dictates of the Constitution. Commonwealth v. Schumacher, 566 S.W.2d 762, 1978 Ky. App. LEXIS 524 (Ky. Ct. App. 1978), disapproved, Commonwealth v. Littrell, 677 S.W.2d 881, 1984 Ky. LEXIS 285 ( Ky. 1984 ).

3.Probate Proceedings.

Although the validity of a will had been originally contested in a probate proceeding in a county court before the adoption of the judicial article which eliminated the county courts, the Circuit Court had jurisdiction to hear subsequent proceedings in the case as an original action rather than as an appeal, even though the party who filed the action in the circuit court failed to comply with certain procedural matters involving that court’s jurisdiction. Smith v. Riherd, 603 S.W.2d 494, 1980 Ky. App. LEXIS 351 (Ky. Ct. App. 1980).

4.Judicial Authority.

Taken together, the purpose of this section and Const., § 110, is to make it unmistakably clear that the judicial branch of the state government has exclusive authority to manage its own affairs, including the authority of the chief justice to submit the budget of the Court of Justice. Ex parte Auditor of Public Accounts, 609 S.W.2d 682, 1980 Ky. LEXIS 274 ( Ky. 1980 ).

While subsection (4) of KRS 15.725 specifically provides that a county clerk can issue a criminal warrant prepared by a county attorney when no district judge, circuit judge or trial commissioner is available, the authority to sign the judge’s name to an arrest warrant cannot be delegated to the county attorney since Const., § 28, prohibits anyone in one branch of government from exercising the power in another branch of government, the county attorney being in the executive branch under Const., § 99 and the judicial branch being under this section. Dugger v. Off 2nd, Inc., 612 S.W.2d 756, 1980 Ky. App. LEXIS 425 (Ky. Ct. App. 1980).

None of the provisions of Const., §§ 113, 117, or 122 implies that any judge’s powers and authority are limited to the district in which he or she is elected. The provisions of Const., § 113(4) for a chief judge do evince, of course, an expectation that district and circuit judges will usually and regularly serve within the respective districts or circuits where they are elected, but they are still members of the same court and have equal capacity to act throughout the commonwealth, subject to the administrative authority of the respective chief judges and the chief justice and subject to the rulemaking power of the Supreme Court. Richmond v. Commonwealth, 637 S.W.2d 642, 1982 Ky. LEXIS 288 ( Ky. 1982 ).

A district judge’s authority to issue warrants is not restricted to the district in which he or she is elected; accordingly, a search warrant issued by a judge from a district other than the one in which the search was conducted was valid. Richmond v. Commonwealth, 637 S.W.2d 642, 1982 Ky. LEXIS 288 ( Ky. 1982 ).

A court, once having obtained jurisdiction of a cause of action, has, as an incidental to its constitutional grant of power, inherent power to do all things reasonably necessary to the administration of justice in the case before it. The control over this inherent judicial power, in this instance the injunction, is exclusively within the constitutional realm of the courts. As such, it is not within the purview of the legislature to grant or deny the power, as it has attempted to do in KRS 243.580(3), nor is it within the purview of the legislature to shape or fashion circumstances under which this inherently judicial power may be or may not be granted or denied. Smothers v. Lewis, 672 S.W.2d 62, 1984 Ky. LEXIS 256 ( Ky. 1984 ).

KRS 216.537 to 216.590 do not unconstitutionally delegate powers to the Cabinet of Human Resources, where the Cabinet has some experience in utilizing regulations and has for some time been regulating nursing homes, even though it does not have extensive experience in the application of these regulations, and there is a provision for a full due process hearing, and the potential for judicial review. Jones v. Cabinet for Human Resources, Div. for Licensure & Regulations, 710 S.W.2d 862, 1986 Ky. App. LEXIS 1074 (Ky. Ct. App. 1986).

KRS 216.560 , which authorizes the Cabinet for Human Resources to assess damages, does not violate this section, since guidelines describing the prohibited conduct are contained in KRS 216.557 and regulations promulgated pursuant to that section, a hearing is provided for in KRS 216.567 , and KRS 216.570 provides for judicial review of the hearing officer’s decision. Jones v. Cabinet for Human Resources, Div. for Licensure & Regulations, 710 S.W.2d 862, 1986 Ky. App. LEXIS 1074 (Ky. Ct. App. 1986).

The power to make rules and to determine substantive issues of law is solely within the power of the judiciary. Akers v. Baldwin, 736 S.W.2d 294, 1987 Ky. LEXIS 230 ( Ky. 1987 ).

By enacting KRS 381.940 , the General Assembly has arbitrarily determined the rights of the parties and their successors to past transactions; therefore, that section is unconstitutional as clear intrusion into judicial power. Akers v. Baldwin, 736 S.W.2d 294, 1987 Ky. LEXIS 230 ( Ky. 1987 ).

Because a Circuit Court had subject matter jurisdiction over a partition action pursuant to a constitutional grant of general jurisdiction, any error associated with the application of KRS 381.136 rendered the judgment voidable, not void. Hisle v. Lexington-Fayette Urban County Gov't, 258 S.W.3d 422, 2008 Ky. App. LEXIS 27 (Ky. Ct. App. 2008).

Pulaski Circuit Court had jurisdiction, either expressly or by waiver, over both the subject matter and the parties, and as there was only one circuit court, in the absence of express authority to the contrary, each geographic division of the one statewide circuit court had co-equal abilities and powers; therefore, it could grant a declaratory judgment or injunction, statewide or otherwise. Commonwealth ex rel. Conway v. Thompson, 300 S.W.3d 152, 2009 Ky. LEXIS 290 ( Ky. 2009 ).

Family court improperly delegated its judicial authority to the parenting coordinator when it appointed the parenting coordinator and did not conduct any type of hearing or consider the merits of the issues raised in the father’s motions because the father was not provided with an opportunity to be heard by the court. Warawa v. Warawa, 587 S.W.3d 631, 2019 Ky. App. LEXIS 185 (Ky. Ct. App. 2019).

5.Separation of Powers.

The limited provisions of subsections (3) and (4) of KRS 421.350 as they apply to child witnesses 12 years of age or younger who are the victims of sex abuse are constitutional, as they do not deny the right of confrontation by a defendant as protected by Const., § 11 and the Sixth Amendment to the United States Constitution nor do they violate the separation of powers doctrine as provided by Const., § 28 and this section. Commonwealth v. Willis, 716 S.W.2d 224, 1986 Ky. LEXIS 281 ( Ky. 1986 ).

The Jefferson Family Court Project is a concurrent session of the already existing District and Circuit Court Divisions convened in response to 1988 Ky. Acts Ch. 128, HCR 30; it is based on the temporary assignment of District and Circuit Judges as special judges and neither creates an impermissible new division of the courts nor usurps the power of the legislature to assign jurisdiction of subject matter to the Circuit Court. Kuprion v. Fitzgerald, 888 S.W.2d 679, 1994 Ky. LEXIS 135 ( Ky. 1994 ).

KRS 26A.020(1) represents an encroachment by the legislature on the power of the judiciary to make rules and is therefore unconstitutional; the Kentucky Supreme Court extends comity to the legislature and upholds the statute. Foster v. Overstreet, 905 S.W.2d 504, 1995 Ky. LEXIS 98 ( Ky. 1995 ).

The 1996 amendment to KRS 342.320(2)(a), which limits the maximum attorney fee for representing an injured worker before an arbitrator to $2,000.00, is not arbitrary and capricious and, therefore, does not violate Sections 2, 14, 19, 28, 29, 109, and 116 of the Kentucky Constitution or Article 1, § 10 of the United States Constitution.Daub v. Baker Concrete, 25 S.W.3d 124, 2000 Ky. LEXIS 91 ( Ky. 2000 ).

Legislature had the authority and power to establish the Kentucky State Board of Licensure for Professional Engineers and Land Surveyors (Board) and to vest it with the discretionary authority to oversee a regulatory scheme governing the licensing and oversight of land surveyors in Kentucky; it was not a violation of the separation of powers doctrine for the Board to act in accordance with that grant of authority. Ky. State Bd. of Licensure for Prof'l Eng'rs & Land Surveyors v. Curd, 2012 Ky. App. LEXIS 33 (Ky. Ct. App. Feb. 17, 2012, sub. op., 2012 Ky. App. Unpub. LEXIS 1026 (Ky. Ct. App. Feb. 17, 2012).

6.Administrative Agencies.

Nothing in Const., § 109 contemplates an administrative agency as the equivalent of a court; the phrase, “there shall be allowed as a matter of right at least one appeal to another court,” of Const., § 115, is unambiguous, and presupposes that the tribunals of review and for appeal are courts within the constitutional meaning of the word. Vessels v. Brown-Forman Distillers Corp., 793 S.W.2d 795, 1990 Ky. LEXIS 24 ( Ky. 1990 ), modified, 1990 Ky. LEXIS 83 (Ky. Sept. 6, 1990).

The statutory adoption of a discretionary method for the admission of evidence is not a violation of the separation of powers doctrine as enunciated in § 28 and this section. Commonwealth v. Willis, 716 S.W.2d 224, 1986 Ky. LEXIS 281 ( Ky. 1986 ).

7.Transfer Between Courts.

Trial court erred in dismissing a case as time-barred as a dismissal on grounds of forum non conveniens was a venue-based dismissal resulting in applicability of the saving statute, KRS 413.270 ; it was not error to transfer a case to another court as Kentucky had one unified Court of Justice, all trial courts and appellate courts were a part of that Court of Justice under Ky. Const. § 109, and in it was vested the judicial power of the Commonwealth. Dollar Gen. Stores, Ltd. v. Smith, 237 S.W.3d 162, 2007 Ky. LEXIS 207 ( Ky. 2007 ).

8.Circuit Court.

Appeal was filed more than three years after the family court’s order, and under CR 73.02(2), the court denied the appeal of a 2006 order; the court noted that the family court was a circuit court, for purposes of Ky. Const. § 109 and the requirement that an appeal from a circuit court had to be filed within 30 days of judgment. Hallis v. Hallis, 328 S.W.3d 694, 2010 Ky. App. LEXIS 175 (Ky. Ct. App. 2010).

Circuit court in Kentucky had subject matter jurisdiction to hear a foreclosure case via statute and the Kentucky Constitution. Cubar v. Town & Country Bank & Trust Co., 473 S.W.3d 91, 2015 Ky. App. LEXIS 128 (Ky. Ct. App. 2015).

Cited:

Ex parte Farley, 570 S.W.2d 617, 1978 Ky. LEXIS 390 ( Ky. 1978 ); Legislative Research Com. by Prather v. Brown, 664 S.W.2d 907, 1984 Ky. LEXIS 300 ( Ky. 1984 ); Covington v. Tranter, 673 S.W.2d 744, 1984 Ky. App. LEXIS 527 (Ky. Ct. App. 1984); Louisville v. Miller, 697 S.W.2d 164, 1985 Ky. App. LEXIS 646 (Ky. Ct. App. 1985); Massie v. Persson, 729 S.W.2d 448, 1987 Ky. App. LEXIS 444 (Ky. Ct. App. 1987); McKee v. Cutter Laboratories, Inc., 866 F.2d 219, 1989 U.S. App. LEXIS 722 (6th Cir. 1989); Gordon v. NKC Hosps., 887 S.W.2d 360, 1994 Ky. LEXIS 132 ( Ky. 1994 ); Herndon v. Herndon, 139 S.W.3d 822, 2004 Ky. LEXIS 88 ( Ky. 2004 ); James v. James, 313 S.W.3d 17, 2010 Ky. LEXIS 111 ( Ky. 2010 ).

Decisions Under Former Section

1.In General.

Judicial power cannot be exercised by any officer unless by some provision of the Constitution. Roberts v. Hackney, 109 Ky. 265 , 58 S.W. 810, 22 Ky. L. Rptr. 975 , 1900 Ky. LEXIS 205 (Ky.), modified, 109 Ky. 269 , 59 S.W. 328 ( Ky. 1900 ). See Morris v. Randall, 129 Ky. 720 , 112 S.W. 856, 1908 Ky. LEXIS 214 ( Ky. 1908 ).

The grant of the judicial power to the courts carries with it as a necessary incident, the right to make that power effective in the administration of justice under the Constitution. Burton v. Mayer, 274 Ky. 263 , 118 S.W.2d 547, 1938 Ky. LEXIS 253 ( Ky. 1938 ).

The state courts may independently declare public policy only where the Constitution and state statutes are silent on the subject. Kentucky State Fair Board v. Fowler, 310 Ky. 607 , 221 S.W.2d 435, 1949 Ky. LEXIS 973 ( Ky. 1949 ).

2.Boards and Commissions.

To construe KRS 276.330 and 276.340 (both now repealed) as empowering railroad commission to award reparation by carrier to shipper would not have violated former section regarding judicial power or Const., §§ 27 and 28, as conferring judicial powers upon such commission, since Const., § 209 continued in force such powers. Illinois C. R. Co. v. Paducah Brewery Co., 157 Ky. 357 , 163 S.W. 239, 1914 Ky. LEXIS 300 ( Ky. 1914 ).

Under the original drainage and reclamation act of 1912 prior to any amendment, the board of drainage commissioners did not perform judicial functions, and the act was not void as in conflict with former section regarding judicial power. Williams v. Wedding, 165 Ky. 361 , 176 S.W. 1176, 1915 Ky. LEXIS 531 ( Ky. 1915 ).

State statutes investing the Commonwealth railroad commission with power to make certain awards, and fix rates, were not void as being in contravention of former section regarding judicial power. Louisville & N. R. Co. v. Greenbrier Distillery Co., 170 Ky. 775 , 187 S.W. 296, 1916 Ky. LEXIS 144 ( Ky. 1916 ). See Louisville & N. R. Co. v. Garrett, 231 U.S. 298, 34 S. Ct. 48, 58 L. Ed. 229, 1913 U.S. LEXIS 2567 (U.S. 1913); Louisville & N. R. Co. v. Siler, 186 F. 176, 1911 U.S. App. LEXIS 5131 (C.C.D. Ky. 1911 ), aff'd, 231 U.S. 298, 34 S. Ct. 48, 58 L. Ed. 229, 1913 U.S. LEXIS 2567 (U.S. 1913).

The authority to regulate rates and modes of conducting the business of public utilities is primarily a legislative function of the state, and the right is a police power. Smith v. Southern Bell Tel. & Tel. Co., 268 Ky. 421 , 104 S.W.2d 961, 1937 Ky. LEXIS 442 ( Ky. 1937 ).

The public service commission is an administrative agency set up and appointed by law for the purpose of hearing the facts and establishing reasonable rules, rates, and services to the public in order to secure conformity of services and rates affecting all classes of customers, because for this burden to fall exclusively on the courts and to give the courts the primary and exclusive jurisdiction to pass upon the reasonableness of the rules, services, rates, schedules and practices of the telephone and telegraph companies would lead to confusion and uncertainty. Smith v. Southern Bell Tel. & Tel. Co., 268 Ky. 421 , 104 S.W.2d 961, 1937 Ky. LEXIS 442 ( Ky. 1937 ).

Although it upon occasion exercises quasi-judicial powers, the state board of equalization and assessment was primarily an administrative body and not a judicial tribunal. McCracken Fiscal Court v. McFadden, 275 Ky. 819 , 122 S.W.2d 761, 1938 Ky. LEXIS 499 ( Ky. 1938 ). See Blue Diamond Coal Co. v. Cornett, 300 Ky. 647 , 189 S.W.2d 963, 1945 Ky. LEXIS 618 ( Ky. 1945 ).

The workers’ compensation board or any other tribunal having power to hear evidence and to make decisions thereon may compel the taking of evidence before it within reasonable limits of time and this power will not be controlled by the courts unless the tribunal acts in an arbitrary or unreasonable manner such as to indicate an abuse of discretion. Searcy v. Three Point Coal Co., 280 Ky. 683 , 134 S.W.2d 228, 1939 Ky. LEXIS 188 ( Ky. 1939 ).

The provisions of law that permitted the state alcoholic control board to ascertain facts and administer the law was constitutional, for even though board was acting in a quasi-judicial capacity, it was not exercising judicial power as forbidden by the constitution. Reeves v. Simons, 289 Ky. 793 , 160 S.W.2d 149, 1942 Ky. LEXIS 637 ( Ky. 1942 ).

Alcoholic beverage control board could exercise quasi-judicial power such as fact finding and administration of law without violation of former section regarding judicial power and Const., §§ 27 and 28. Keller v. Kentucky Alcoholic Beverage Countrol Board, 279 Ky. 272 , 130 S.W.2d 821, 1939 Ky. LEXIS 293 ( Ky. 1939 ).

3.Federal Jurisdiction.

The state courts have no jurisdiction of questions arising under the national labor relations act, but are not deprived of jurisdiction of questions involving landlord and tenant merely because the landlord is also the employer of the tenant. Coldiron v. Good Coal Co., 276 Ky. 833 , 125 S.W.2d 757, 1939 Ky. LEXIS 601 ( Ky. 1939 ).

Patent infringement matters are exclusively within the jurisdiction of the federal courts and the state courts are not concerned therewith. Acy v. Whaley, 281 Ky. 400 , 136 S.W.2d 575, 1940 Ky. LEXIS 58 ( Ky. 1940 ).

4.Probation.

Law that granted power of probation to Circuit Courts was constitutional. Lovelace v. Commonwealth, 285 Ky. 326 , 147 S.W.2d 1029, 1941 Ky. LEXIS 386 ( Ky. 1941 ).

Statute retroactively applying a maximum probation period was invalid with respect to probation orders already entered by the courts as an encroachment upon the judicial function. Taylor v. Asher, 317 S.W.2d 895, 1958 Ky. LEXIS 117 ( Ky. 1958 ).

Opinions of Attorney General.

Lewis, Jural Rights under Kentucky’s Constitution: Realities Grounded in Myth, 80 Ky. L.J. 953 (1992).

The application of the contempt power provisions of KRS 67.040 (2), relating to the county judge/executive or pro tem or justice presiding in his place, would be unconstitutional since the county judge/executive, his pro tem, and justice of the peace are not judicial officers and the fiscal court is not a judicial body. OAG 78-242 .

Research References and Practice Aids

Cross-References.

Administrative office of courts, KRS 27A.050 , 27A.060 .

Executive head, KRS 27A.010 .

Facilities and services, KRS 26A.090 , 26A.100 , 26A.107 to 26A.130 .

Financing court system, KRS 32.011 .

Interpreters, KRS 30A.400 to 30A.435 .

Judges, KRS 26A.015 to 26A.080 .

Public advocacy department, KRS Ch. 31.

Records, KRS 26A.200 to 26A.220 .

State law library, KRS 27A.200 , 27A.210 .

Kentucky Bench & Bar.

An Overview of Kentucky’s New Court System, Vol. 41, No. 2, April 1977 Ky. Bench & B. 13.

Preston, Video Evidence in Child Sexual Abuse Cases, Vol. 52, No. 2, Spring 1988 Ky. Bench & B. 11.

Kentucky Law Journal.

Kentucky Law Survey, Fritz, Criminal Procedure, 67 Ky. L.J. 599 (1978-1979).

Kentucky Law Survey, Griffin and Becker, Zoning, 67 Ky. L.J. 627 (1978-1979).

Bratt, Surface Mining in Kentucky, 71 Ky. L.J. 7 (1982-83).

Note, Judicial v. Legislative Power in Kentucky: A “Comity” of Errors, 71 Ky. L.J. 829 (1982-83).

Kentucky Law Survey, Fortune and Welling, Criminal Procedure, 72 Ky. L.J. 381 (1983-84).

Snyder and Irland, The Separation of Governmental Powers Under the Constitution of Kentucky: A Legal and Historical Analysis of L.R.C. v. Brown, 73 Ky. L.J. 165 (1984-85).

Notes, Court-Annexed Arbitration: Kentucky’s Viable Alternative to Litigation, 77 Ky. L.J. 881 (1988-89).

Lewis, Jural Rights under Kentucky’s Constitution: Realities Grounded in Myth, 80 Ky. L.J. 953 (1992).

The Supreme Court

§ 110. Composition — Jurisdiction — Quorum — Special justices — Districts — Chief justice.

  1. The Supreme Court shall consist of the Chief Justice of the Commonwealth and six associate Justices.
    1. The Supreme Court shall have appellate jurisdiction only, except it shall have the power to issue all writs necessary in aid of its appellate jurisdiction, or the complete determination of any cause, or as may be required to exercise control of the Court of Justice. (2) (a) The Supreme Court shall have appellate jurisdiction only, except it shall have the power to issue all writs necessary in aid of its appellate jurisdiction, or the complete determination of any cause, or as may be required to exercise control of the Court of Justice.
    2. Appeals from a judgment of the Circuit Court imposing a sentence of death or life imprisonment or imprisonment for twenty years or more shall be taken directly to the Supreme Court. In all other cases, criminal and civil, the Supreme Court shall exercise appellate jurisdiction as provided by its rules.
  2. A majority of the Justices of the Supreme Court shall constitute a quorum for the transaction of business. If as many as two Justices decline or are unable to sit in the trial of any cause, the Chief Justice shall certify that fact to the Governor, who shall appoint to try the particular cause a sufficient number of Justices to constitute a full court for the trial of the cause.
  3. The Court of Appeals districts existing on the effective date of this amendment to the Constitution shall constitute the initial Supreme Court districts. The General Assembly thereafter may redistrict the Commonwealth; by counties, into seven Supreme Court districts as nearly equal in population and as compact in form as possible. There shall be one Justice from each Supreme Court district.
    1. The Justices of the Supreme Court shall elect one of their number to serve as Chief Justice for a term of four years. (5) (a) The Justices of the Supreme Court shall elect one of their number to serve as Chief Justice for a term of four years.
    2. The Chief Justice of the Commonwealth shall be the executive head of the Court of Justice and he shall appoint such administrative assistants as he deems necessary. He shall assign temporarily any justice or judge of the Commonwealth, active or retired, to sit in any court other than the Supreme Court when he deems such assignment necessary for the prompt disposition of causes. The Chief Justice shall submit the budget for the Court of Justice and perform all other necessary administrative functions relating to the court.

Compiler’s Notes.

The General Assembly in 1974 proposed (Acts 1974, ch. 84, §§ 1-3) the repeal of sections 109 to 139, 141 and 143 of the Constitution and the substitution in lieu thereof new sections 109-124. This amendment was ratified by the voters at the regular election in November, 1975 and became effective January 1, 1976.

For selection of initial justices see compiler’s notes, Const., § 109.

NOTES TO DECISIONS

1.Judgment Imposing Sentence.

A petition for mandamus or prohibition seeking to enforce or prevent an action by a Circuit Judge in a post-conviction proceeding is not a judgment “imposing a sentence,” and hence, an appeal from it is addressable to the court of appeals. Williams v. Venters, 550 S.W.2d 547, 1977 Ky. LEXIS 443 ( Ky. 1977 ).

A judgment or order denying a post-conviction motion is not a judgment “imposing a sentence,” and thus an appeal from it is addressable to the Court of Appeals, not the Supreme Court. Williams v. Venters, 550 S.W.2d 547, 1977 Ky. LEXIS 443 ( Ky. 1977 ).

Where indigent defendant who had been sentenced to life imprisonment was represented on appeal by public defender who was unable to file appellate brief within the extended period allowed by Supreme Court, due to overload of appellate work during same time period, defendant was denied equal protection since an affluent defendant who retained an overworked lawyer could have and would have been able to hire another lawyer; thus, defendant was denied his constitutional right to appeal under this section. Cleaver v. Bordenkircher, 634 F.2d 1010, 1980 U.S. App. LEXIS 12687 (6th Cir. Ky. 1980 ), cert. denied, 451 U.S. 1008, 101 S. Ct. 2345, 68 L. Ed. 2d 861, 1981 U.S. LEXIS 2174 (U.S. 1981).

After receiving a death sentence, defendant appealled as a matter of right from the final judgment to the Kentucky Supreme Court under Ky. Const. § 110(2)(b); the Supreme Court affirmed defendant’s death sentence and convictions for heinous murder of 61-year-old lady; permissible and fair retrospective hearing determined he was competent (and was good strategy) to plead guilty and waive jury sentencing. Johnson v. Commonwealth, 103 S.W.3d 687, 2003 Ky. LEXIS 21 (Ky.), cert. denied, 540 U.S. 986, 124 S. Ct. 470, 157 L. Ed. 2d 379, 2003 U.S. LEXIS 8075 (U.S. 2003).

Court of appeals erred in failing to apply the Fugitive Disentitlement Doctrine on the ground that to do so would deprive defendant of her constitutional right to appeal because defendant was informed of her constitutional right to appeal and expressly waived that right when she pleaded guilty, and the trial court informed defendant of the constitutional right to appeal at her sentencing hearing; defendant’s appeal of the order revoking her probation was a statutory right to appeal. Commonwealth v. Hess, 2021 Ky. LEXIS 320 (Ky. June 17, 2021).

2.Supervisory and Policy Making Authority.

Except for matters in which the United States Supreme Court has the right of review over the judgments of the Kentucky Supreme Court, the jurisdiction to hear and determine any cause that has as its ultimate objective a judgment declaring what the Kentucky Supreme Court must do or not do is vested exclusively in such court. Ex parte Farley, 570 S.W.2d 617, 1978 Ky. LEXIS 390 ( Ky. 1978 ).

Though subdivision (5)(b) of this section provides that the chief justice “shall be the executive head of the Court of Justice,” there can be little doubt that this section vests the supervisory and policy making authority of the Judicial Department in the Supreme Court. Ex parte Farley, 570 S.W.2d 617, 1978 Ky. LEXIS 390 ( Ky. 1978 ).

Taken together, the purpose of Const., § 109, and this section is to make it unmistakably clear that the judicial branch of the state government has exclusive authority to manage its own affairs, including the authority of the chief justice to submit the budget of the Court of Justice. Ex parte Auditor of Public Accounts, 609 S.W.2d 682, 1980 Ky. LEXIS 274 ( Ky. 1980 ).

Policy of the Supreme Court of Kentucky was not to contest the propriety of legislation in the area of governance of the Kentucky Administrative Office of the Courts (AOC) to which the court could have acceded through a wholesome comity; pursuant to KRS 13B.140 , an appeal of an AOC personnel action was properly filed in the Circuit Court. Jones v. Commonwealth, 171 S.W.3d 53, 2005 Ky. LEXIS 233 ( Ky. 2005 ).

Chief Justice of Supreme Court of Kentucky could terminate the employment of an employee working in the circuit judge’s office and could delegate that authority to the Director of the Kentucky Administrative Office of the Courts because Ky. Const. § 110 made the Chief Justice the chief executive officer of the Court of Justice, and as such the Chief Justice oversaw court personnel. Nance v. Ky. Admin. Office of the Courts, 336 S.W.3d 70, 2011 Ky. LEXIS 32 ( Ky. 2011 ).

3.Jurisdiction.

Where public advocate brought declaratory judgment action to force inspection of records compiled for purpose of Supreme Court review of death sentences, jurisdiction was vested exclusively in Supreme Court, not Circuit Court. Ex parte Farley, 570 S.W.2d 617, 1978 Ky. LEXIS 390 ( Ky. 1978 ).

To the extent that subsection (4) of KRS 118.176 provides that the action of the Court of Appeals shall be final it contravenes subsection (2)(b) of this section, which authorizes the Supreme Court to exercise appellate jurisdiction as provided by its rules. Thomas v. Lyons, 586 S.W.2d 711, 1979 Ky. LEXIS 284 ( Ky. 1979 ).

Where actual controversy existed between auditor of public accounts and the Kentucky Bar Association regarding the auditor’s power and authority to audit bar association books and accounts, the Supreme Court under this section was the only forum in which the controversy could be resolved since the bar association is an arm of the court itself and thus cannot properly be sued in any other court of the state. Ex parte Auditor of Public Accounts, 609 S.W.2d 682, 1980 Ky. LEXIS 274 ( Ky. 1980 ).

The appeal which was perfected in the Court of Appeals from a conviction in a criminal case where the sentence imposed was at least 20 years was transferred to the Supreme Court because the Court of Appeals did not have jurisdiction; however, in future situations of this type, the Supreme Court might deny the request to transfer the appeal, in which case it would be necessary for the Court of Appeals to dismiss the appeal for lack of jurisdiction. Shepherd v. Commonwealth, 739 S.W.2d 540, 1987 Ky. LEXIS 261 ( Ky. 1987 ).

Though District Judge in his normal capacity as District Judge has no jurisdiction to hear a dissolution of marriage case, because district judge was properly sworn in as special Circuit Judge under the Jefferson Family Court Project and pursuant to Const., § 110(5)(b), there existed proper subject matter jurisdiction. Kuprion v. Fitzgerald, 888 S.W.2d 679, 1994 Ky. LEXIS 135 ( Ky. 1994 ).

Because original jurisdiction of the Kentucky Supreme Court under this section should be sparingly exercised and generally only in cases where no other court has power to proceed, person bringing original action challenging District Court traffic division judge’s administrative order, which prohibited persons with outstanding arrest warrants or bench warrants from appearing before him until all previously ordered contempt fines had been paid, as violative of Const., § 14 and SCR 1.040, should have sought relief in the trial court of general jurisdiction; claim was dismissed. Abernathy v. Nicholson, 899 S.W.2d 85, 1995 Ky. LEXIS 76 ( Ky. 1995 ).

The Supreme Court could consider as an original action a motion by the Judicial Conduct Commission for an order declaring a candidate ineligible, by reason of his removal from the office of District Court Judge, to seek election to that office in the special election to fill his unexpired term since the Supreme Court was the only court with the authority to affirm, modify, set aside, or remand orders of the commission. Kentucky Judicial Conduct Comm'n v. Woods, 25 S.W.3d 470, 2000 Ky. LEXIS 108 ( Ky. 2000 ).

Because the trial court discharged a receiver, a husband was again in sole control of both business entities, and any issue relating to the appointment of a receiver was rendered moot under Ky. Const. § 110 by the trial court’s subsequent discharge of the receiver. Medical Vision Group, P.S.C. v. Philpot, 261 S.W.3d 485, 2008 Ky. LEXIS 186 ( Ky. 2008 ).

Order revoking probation and ordering defendant to serve a twenty-year sentence based on two underlying judgments, each imposing a ten-year sentence, did not constitute a judgment of the circuit court imposing a sentence as required by Ky. Const. § 110(2)(b). The probation revocation order did not provide a basis for a matter-of-right appeal. Jackson v. Commonwealth, 319 S.W.3d 343, 2010 Ky. LEXIS 178 ( Ky. 2010 ).

4.Court of Appeals.

Nothing in the 1975 amendment to this section suggests any intention to whittle down either the express or the implied authority theretofore declared and recognized as belonging to the old court of appeals. Ex parte Farley, 570 S.W.2d 617, 1978 Ky. LEXIS 390 ( Ky. 1978 ).

Although defendant had been sentenced to 40 years imprisonment, because it was not a death sentence, neither CR 74.02, Ky. Const. § 110(2)(b), nor the language in Skaggs deprived the Kentucky Court of Appeals of authority to decide defendant’s appeals of the trial court’s denial of defendant’s post-conviction motions. Cardine v. Commonwealth, 102 S.W.3d 927, 2003 Ky. LEXIS 66 ( Ky. 2003 ).

5.Reinstatement of Appeal.

Under RCr 11.42 only the appellate court having jurisdiction to entertain an appeal in a particular action has the power to reinstate an appeal, and under this section only the Supreme Court has appellate jurisdiction over an appeal from conviction for murder, rape, and sodomy; therefore the Court of Appeals is without authority to reinstate an appeal dismissed by that court. Amburgey v. Commonwealth, 579 S.W.2d 376, 1979 Ky. App. LEXIS 386 (Ky. Ct. App. 1979).

Once the appellate court has denied an appeal the trial court cannot reinstate it. Jones v. Commonwealth, 593 S.W.2d 869, 1979 Ky. App. LEXIS 505 (Ky. Ct. App. 1979).

6.Habeas Corpus.

Where defendant’s counsel failed to effectively appeal defendant’s case only through highly technical violation of Kentucky requirement that counsel insure that extension order was entered by the clerk of the court, the failure of the Kentucky Supreme Court to grant defendant’s motion for reconsideration of dismissal of appeal was arbitrary and capricious and an abuse of due process of law, since the Supreme Court was fully advised as to an obviously sincere attempt to perfect an appeal and the minuscule nature of the defect and since the defendant’s sentence totalled 105 years and subsection (2)(b) of this section grants such a defendant a direct appeal, thus defendant was entitled to a writ of habeas corpus. Gilbert v. Sowders, 646 F.2d 1146, 1981 U.S. App. LEXIS 14681 (6th Cir. Ky. 1981 ).

7.Checks and Balances.

The constitutional check-and-balance relationship between the executive and judicial branches of the government consists of the provisions for filling vacancies in judicial offices under Const., § 118, and for the appointment of temporary substitutes when two or more justices of the Supreme Court decline or are unable to participate in the disposition of a cause pending before that court under this section. Ex parte Auditor of Public Accounts, 609 S.W.2d 682, 1980 Ky. LEXIS 274 ( Ky. 1980 ).

The constitutional check-and-balance relationship between the legislative and judicial branches of the government exists by virtue of this section, Const., §§ 111 to 113 and § 120. Ex parte Auditor of Public Accounts, 609 S.W.2d 682, 1980 Ky. LEXIS 274 ( Ky. 1980 ).

8.Prohibition.
9.— No Other Remedy.

A writ of prohibition may be used by a court in discretionary manner and only when the situation is so exceptional that there is no other adequate remedy at law to prevent a miscarriage of justice. Graham v. Mills, 694 S.W.2d 698, 1985 Ky. LEXIS 236 ( Ky. 1985 ).

10.— Remedy by Appeal.
11.— — Adequate.

A writ of prohibition was erroneously granted to restrain Circuit Judge from conducting criminal proceedings against one charged with violating KRS 18A.140 , while the Attorney General was acting as prosecutor, despite defendant’s claim of great injustice and irreparable harm if after being forced to stand trial it was later determined that the Attorney General had no authority to prosecute on grounds that KRS 15.715 was unconstitutional; in cases involving a claimed constitutional defect, as a general rule, the remedy of appeal is adequate and prohibition is not proper. Graham v. Mills, 694 S.W.2d 698, 1985 Ky. LEXIS 236 ( Ky. 1985 ).

Mother’s petition for a writ of mandamus under Ky. Const., §§ 110 and 111 seeking an order to the Kentucky Administrative Office of the Courts (AOC) to reimburse the mother for transcription costs incurred in an in forma pauperis appeal was denied as: (1) KRS 453.190(1) contained no language requiring the AOC to pay for transcripts for an appeal; (2) to order the AOC to pay would violate the separation of powers doctrine; (3) there was no irreparable injury or great injustice as the trial court offered to permit the parties to submit an agreed statement of facts as contemplated by RCr 75.07, but the parties refused; and (4) the mother had an adequate remedy at law in an appeal to the intermediate appellate court. Martin v. Admin. Office of the Courts, 107 S.W.3d 212, 2003 Ky. LEXIS 142 ( Ky. 2003 ).

12.— — Death Sentence.

Any defendant is entitled to a review of the conviction and death sentence by the Kentucky Supreme Court and is entitled to pursue post conviction remedies and appeal, subject to the rules of the court. Bowling v. Commonwealth, 926 S.W.2d 667, 1996 Ky. LEXIS 17 (Ky.), cert. denied, 517 U.S. 1223, 116 S. Ct. 1855, 134 L. Ed. 2d 955, 1996 U.S. LEXIS 3486 (U.S. 1996).

13.Special Justices.

The Chief Justice of the Supreme Court of Kentucky or his designee has the authority to appoint a retired judge, who is practicing law, as a special judge. Regency Pheasant Run v. Karem, 860 S.W.2d 755, 1993 Ky. LEXIS 96 ( Ky. 1993 ).

KRS 26A.020 does not limit the appointment power of the Chief Justice pursuant to this section but only establishes a procedure by which it is to be exercised when a judge is actually unavailable to sit, therefore Chief Justice may appoint a District Judge as a temporary special Circuit Judge in order to hear dissolution actions under the authority of the Jefferson Family Court Project. Kuprion v. Fitzgerald, 888 S.W.2d 679, 1994 Ky. LEXIS 135 ( Ky. 1994 ).

Subsection (5)(b) of this section provides the necessary authority for the Chief Justice of Kentucky to assign a judge temporarily to any court other than the Supreme Court for the prompt disposition of causes. Kuprion v. Fitzgerald, 888 S.W.2d 679, 1994 Ky. LEXIS 135 ( Ky. 1994 ).

The Chief Justice of Kentucky was within his constitutional authority to accept the report of the Task Force to examine the need for and feasibility of establishing a Family Court or division of court and then to exercise his sound discretion as to how and where to implement the request of the Task Force, which included the appointment of District Judges to serve as special Circuit Judges under the authority of the Jefferson Family Court Project “until further order of the Court.” Kuprion v. Fitzgerald, 888 S.W.2d 679, 1994 Ky. LEXIS 135 ( Ky. 1994 ).

Defendant waived his objection to the erroneous appointment of a retired judge by a Chief Regional Circuit Judge, rather than the Chief Justice, when he did not challenge the error at or before trial; moreover as defendant did not allege any prejudice resulting from the appointment, this error did not result in a manifest injustice requiring a review under RCr 10.26. Jacobs v. Commonwealth, 947 S.W.2d 416, 1997 Ky. App. LEXIS 7 (Ky. Ct. App. 1997).

Defendant was properly convicted of numerous charges including a second-degree persistent felony offender enhancement despite defendant’s claim that defendant’s conviction was void because a retired senior judge presided over defendant’s trial, as the Kentucky Constitution gave the chief justice authority to make an assignment of qualified senior trial judges as the justice deemed necessary. Harris v. Commonwealth, 338 S.W.3d 222, 2011 Ky. LEXIS 42 ( Ky. 2011 ).

While Ky. Const. § 110(5)(b) vests the Chief Justice with the constitutional authority to make appointments of special judges to sit in the lower courts, it also grants him the authority to appoint such administrative assistants as he deems necessary to carry out the functions of his office. The Chief Justice’s appointment of a Chief Senior Status Judge as an administrative assistant to assist in the administration of the Senior Status Judge Program, including the appointments of Senior Judges to particular courts or cases, fits comfortably within this constitutional provision. Sanders v. Commonwealth, 339 S.W.3d 427, 2011 Ky. LEXIS 82 ( Ky. 2011 ), cert. denied, 566 U.S. 907, 132 S. Ct. 1792, 182 L. Ed. 2d 620, 2012 U.S. LEXIS 2343 (U.S. 2012).

14.— Recusal.

Where the Governor’s appointment of three (3) special justices under Const., § 110(3) was occasioned by the recusal of three (3) sitting justices, the special justices were not required to recuse themselves from deciding the constitutionality of a tax on physicians’ gross revenues utilized to obtain federal matching money to support Kentucky Medicaid solely because of the Governor’s active participation in the question of health care reform. Revenue Cabinet v. Smith, 875 S.W.2d 873, 1994 Ky. LEXIS 34 (Ky.), cert. denied, 513 U.S. 1000, 115 S. Ct. 509, 130 L. Ed. 2d 417, 1994 U.S. LEXIS 8026 (U.S. 1994).

When one of the special justices appointed by the Governor of Kentucky to replace two justices of the Kentucky Supreme Court who recused themselves from hearing a case also recused himself in the same case after he was sworn in, the Governor had no power under Ky. Const. § 110(3) to appoint another special justice; that power is triggered only when two justices decline or are unable to hear a matter, and under SCR 1.020(1)(a), six justices constitute a full court. Fletcher v. Graham, 192 S.W.3d 350, 2006 Ky. LEXIS 123 ( Ky. 2006 ).

15.Supervisory and Policy Making Authority.

State supreme court did not need to apply the Fifth Amendment, U.S. Const. amend. V, which was made applicable to the states through the Fourteenth Amendment, Ky. Const. § 2 involving exercises of power, or Ky. Const. § 11 regarding the right against self-incrimination in answering the question about whether the trial court could hold a revocation of probation hearing on new, unresolved charges. Under its supervisory authority based on Ky. Const. § 110, Ky. Const. § 115, and Ky. Const. § 116, the state supreme court could craft a rule recognizing that it was not necessary that a conviction occur before a probation revocation hearing could be held, but the trial court had to make a probationer aware that while the testimony in such a hearing could not be used as substantive evidence in a criminal proceeding, such testimony could be used for other purposes, such as impeachment. Barker v. Commonwealth, 379 S.W.3d 116, 2012 Ky. LEXIS 132 ( Ky. 2012 ).

1.In General.

The supervisory power vested in the Court of Appeals was designed for use in extraordinary cases where the exigencies of the situation are so exceptional that no other remedy is adequate to prevent a miscarriage of justice. Brougher v. Allen, 462 S.W.2d 187, 1970 Ky. LEXIS 650 ( Ky. 1970 ).

2.Original Jurisdiction.

Where Circuit Court or court inferior to it was proceeding entirely out of its jurisdiction, Court of Appeals had original jurisdiction under former section, if petitioner had no available remedy in some intervening court between court thus proceeding and Court of Appeals. Osborn v. Wolfford, 239 Ky. 470 , 39 S.W.2d 672, 1931 Ky. LEXIS 793 ( Ky. 1931 ).

Court of Appeals will assume original jurisdiction only when it clearly appears that petitioner has no other adequate remedy. Bowling Green v. Milliken, 257 Ky. 245 , 77 S.W.2d 777, 1934 Ky. LEXIS 542 ( Ky. 1934 ).

KRS 30.170 , authorizing original proceeding in Court of Appeals to discipline or disbar attorneys, gave such court no power which it did not already inherently possess, and thus did not violate former section of constitution. In re Sparks, 267 Ky. 93 , 101 S.W.2d 194, 1936 Ky. LEXIS 757 ( Ky. 1936 ). See Capps v. Gore, 231 Ky. 185 , 21 S.W.2d 266, 1929 Ky. LEXIS 248 ( Ky. 1929 ); Commonwealth ex rel. Ward v. Harrington, 266 Ky. 41 , 98 S.W.2d 53, 1936 Ky. LEXIS 604 ( Ky. 1936 ).

Court of Appeals will not exercise its original jurisdiction unless facts authorizing it clearly appear. Commonwealth ex rel. Cooper v. Howard, 276 Ky. 299 , 124 S.W.2d 86, 1939 Ky. LEXIS 519 ( Ky. 1939 ).

The Court of Appeals may not treat prohibition proceedings against a Circuit Judge as an original petition for a declaratory judgment to determine his right to appoint a Commonwealth’s Attorney pro tempore in his court in substitution of the regular elected one, since Court of Appeals does not have original jurisdiction in a declaratory judgment action. Walz v. Northcutt, 278 Ky. 616 , 129 S.W.2d 124, 1939 Ky. LEXIS 466 ( Ky. 1939 ).

The Court of Appeals has no right to entertain declaratory judgment actions under its original jurisdiction. Walz v. Northcutt, 278 Ky. 616 , 129 S.W.2d 124, 1939 Ky. LEXIS 466 ( Ky. 1939 ).

Original jurisdiction of Court of Appeals will not be exercised where Circuit Court was within its jurisdiction in refusing to set aside order by which verdict of jury had been set aside, and where petitioner had remedy by appeal. Commonwealth v. White, 289 Ky. 99 , 157 S.W.2d 747, 1941 Ky. LEXIS 20 ( Ky. 1941 ).

In an action in Circuit Court where by statute no appeal was allowed and any error which occurred in the trial court passing on the sufficiency of the evidence was simple error and not a miscarriage of justice or usurpation of authority, the Court of Appeals would not exercise its original jurisdiction to control by writ of inferior jurisdictions. Schaetzley v. Wright, 271 S.W.2d 885, 1954 Ky. LEXIS 1056 ( Ky. 1954 ).

3.Appellate Jurisdiction.

Jurisdiction of Court of Appeals extends only to final orders and judgments of inferior court and not to orders or judgments which judicial officers are authorized to make out of court. Proffer v. Stewart, 259 Ky. 445 , 82 S.W.2d 468, 1935 Ky. LEXIS 324 ( Ky. 1935 ).

Court of Appeals was without original jurisdiction except as conferred by Constitution, and must determine case as presented and tried in Circuit Court. Stuber v. Snyder's Committee, 261 Ky. 338 , 87 S.W.2d 614, 1935 Ky. LEXIS 642 ( Ky. 1935 ).

Law was unconstitutional under this section, which authorized Court of Appeals to render advisory opinions at request of governor or general assembly, since jurisdiction of such court was appellate only. In re Constitutionality of House Bill No. 222, 262 Ky. 437 , 90 S.W.2d 692, 1936 Ky. LEXIS 47 ( Ky. 1936 ).

A petition to the Court of Appeals to compel the Circuit Court to furnish petitioner as a pauper a certified copy of the transcript of the case without charge, the same motion having been made and overruled by the trial court, will be treated as an ordinary appeal and the Court of Appeals will act as a reviewing court determining only whether the trial court properly decided the issue. McIntosh v. Armour & Co. of Illinois, 279 Ky. 517 , 131 S.W.2d 393, 1939 Ky. LEXIS 302 ( Ky. 1939 ), overruled in part, Gabbard v. Lair, 528 S.W.2d 675, 1975 Ky. LEXIS 70 ( Ky. 1975 ).

The Court of Appeals does not properly have before it an appeal until all jurisdictional facts are shown on the record. Stafford v. Bailey, 282 Ky. 528 , 138 S.W.2d 999, 1940 Ky. LEXIS 201 ( Ky. 1940 ).

In original action seeking relief against certain orders in divorce action, Court of Appeals has jurisdiction to review orders quashing or refusing to file defendant’s depositions in divorce action. Fitzgerald v. Fitzgerald, 284 Ky. 137 , 143 S.W.2d 1082, 1940 Ky. LEXIS 459 ( Ky. 1940 ).

Raising a question of the constitutionality of a statute does not alone confer jurisdiction upon the Court of Appeals. Stearns Coal & Lumber Co. v. Unemployment Compensation Com., 285 Ky. 249 , 147 S.W.2d 382, 1941 Ky. LEXIS 360 ( Ky. 1941 ).

Court of Appeals will not determine except upon review of Circuit Court’s finding, the liability of an individual to pay to another any sum of money, other than the taxable costs due an official of the Commonwealth, or appointed by this court, or under its direction to render services in a pending proceeding as the court in such instance has only appellate not original jurisdiction. Bobbitt v. Bobbitt, 297 Ky. 28 , 178 S.W.2d 986, 1944 Ky. LEXIS 676 ( Ky. 1944 ).

Except in original cases authorized by this section, Court of Appeals was strictly court of review. Jackson v. Terry, 302 Ky. 132 , 194 S.W.2d 77, 1946 Ky. LEXIS 615 ( Ky. 1946 ). See Jones v. Jones, 246 S.W.2d 583, 1952 Ky. LEXIS 638 ( Ky. 1952 ).

In proceeding contesting will on ground of undue influence where jury held that will was obtained by undue influence, Court of Appeals’ action in reversing trial court was not a usurping of the right of trial by jury or the discretionary power of the Circuit Court, for this section creates and confers appellate jurisdiction on the Court of Appeals, and KRS 21.055 expressly authorizes a reversal of a judgment for errors appearing in the record, and Court of Appeals in performance of its duty had previously decided in a former appeal in the same case that as a matter of law the evidence presented in the trial court to establish undue influence was not sufficient to establish the allegation. Copley v. Craft, 341 S.W.2d 70, 1960 Ky. LEXIS 66 ( Ky. 1960 ).

Within statutory limits appellate jurisdiction is the power and authority to review, revise, correct or affirm decisions of an inferior court, and, more particularly to exercise the same judicial power which has been executed in the court of original jurisdiction and supersedes the discretion of the trial court. Copley v. Craft, 341 S.W.2d 70, 1960 Ky. LEXIS 66 ( Ky. 1960 ).

The Court of Appeals would not exercise its power under former section of the Constitution to review action of court incorporating sixth-class city under KRS 81.050 unless there is some error of an extraordinary nature resulting in an abuse of the judicial processes or constituting a miscarriage of justice, or unless there is some misuse or usurpation of authority by the lower court. Colwell v. Ward, 428 S.W.2d 30, 1968 Ky. LEXIS 702 ( Ky. 1968 ).

Where appellant sought reversal of his conviction on the ground of alleged inadequate legal representation but this question was never presented in the lower court, the Court of Appeals would not review this alleged error on direct appeal, it being exclusively a reviewing court except in original cases authorized by former section. Caslin v. Commonwealth, 491 S.W.2d 832, 1973 Ky. LEXIS 606 ( Ky. 1973 ).

4.— Right of Appeal.

The Court of Appeals has only appellate jurisdiction, and cannot make an order appointing a receiver to take charge of property or grant a restraining order to protect the rights of a party. Dupoyster v. Ft. Jefferson Imp. Co's Receiver, 121 Ky. 518 , 89 S.W. 509, 28 Ky. L. Rptr. 504 , 1905 Ky. LEXIS 233 ( Ky. 1905 ).

The right of appeal to the Court of Appeals is constitutionally determined by and may be conditioned by the acts of the general assembly. Drury v. Franke, 247 Ky. 758 , 57 S.W.2d 969, 1933 Ky. LEXIS 453 ( Ky. 1933 ). See Louisville & N. R. Co. v. Daniel, 131 Ky. 689 , 115 S.W. 804, 1909 Ky. LEXIS 64 ( Ky. 1909 ).

The order overruling a motion for a writ of mandamus made by a Circuit Judge, in vacation, is not such an order as may be appealed from to the Court of Appeals, nor can a judge of such court, sitting in chambers, revise or set aside the order of the Circuit Judge, in vacation, overruling such motion. Bennett v. Blankenship, 177 Ky. 499 , 197 S.W. 967, 1917 Ky. LEXIS 620 ( Ky. 1917 ).

Allowance of attorney’s fees to wife-appellant was incident of jurisdiction of Court of Appeals to hear and determine divorce and alimony appeals, not exercise of original jurisdiction, and thus not inhibited by former section. Kreiger v. Kreiger, 194 Ky. 812 , 241 S.W. 828, 1922 Ky. LEXIS 261 ( Ky. 1922 ).

Order granting or refusing writ of habeas corpus by a court having original jurisdiction thereof is not appealable to the Court of Appeals. Shepherd v. Rich, 214 Ky. 684 , 283 S.W. 1006, 1926 Ky. LEXIS 392 ( Ky. 1926 ).

Except upon a regular appeal, the Court of Appeals will not normally entertain a case until it is finally decided, particularly where all of the issues in the controversy are before a lower court fully competent to decide them. Jefferson County ex rel. Coleman v. Chilton, 236 Ky. 614 , 33 S.W.2d 601, 1930 Ky. LEXIS 789 ( Ky. 1930 ).

The Court of Appeals will not negate the effect of a statute limiting appeals in certain cases by exercising its original jurisdiction to grant relief which in effect would supply a right of appeal. McFarland v. Gilbert, 276 Ky. 423 , 124 S.W.2d 473, 1939 Ky. LEXIS 529 ( Ky. 1939 ).

Appellate jurisdiction cannot be conferred indirectly by combining actions, which, separately, involve amounts less than the minimum amount necessary for an appeal. Stearns Coal & Lumber Co. v. Unemployment Compensation Com., 285 Ky. 249 , 147 S.W.2d 382, 1941 Ky. LEXIS 360 ( Ky. 1941 ).

The right of appeal from a court of competent jurisdiction to an appellate court is not inherent, and must be based upon statutory authority. Mason v. Montgomery County Board of Education, 291 Ky. 654 , 165 S.W.2d 346, 1942 Ky. LEXIS 298 ( Ky. 1942 ).

The power of the legislature to deny the right of appeal has always been recognized. Engle v. Miller, 303 Ky. 731 , 199 S.W.2d 123, 1947 Ky. LEXIS 539 ( Ky. 1947 ).

The trial judge has the initial prerogative of ruling whether summary judgment proceedings are permitted and his ruling in that regard is subject to appellate review. Mid-Southern Toyota, Ltd. v. Pennington, 458 S.W.2d 776, 1970 Ky. LEXIS 188 ( Ky. 1970 ).

5.Attachment.

Where final judgment was taken in a Circuit Court and reversed in Court of Appeals, the Court of Appeals could not issue an attachment, although the case was still pending before it. Garnett v. Oliver, 242 Ky. 25 , 45 S.W.2d 815, 1931 Ky. LEXIS 709 ( Ky. 1931 ).

6.Prohibition and Mandamus.

Court of Appeals had power to issue such writs as may be necessary to give it general control over courts of inferior jurisdiction, including writs of mandamus and prohibition. Childers v. Stephenson, 320 S.W.2d 797, 1959 Ky. LEXIS 251 ( Ky. 1959 ).

Dismissal of jury by Circuit Court in libel action on ground complexity of case rendered it impractical for jury to hear it was not sufficient grounds to warrant the extraordinary relief of prohibition and mandamus. Barker v. Breslin, 329 S.W.2d 578, 1959 Ky. LEXIS 176 ( Ky. 1959 ).

Although the Court of Appeals has original jurisdiction to issue such writs as necessary against inferior courts, writs of mandamus or prohibition will not be granted unless it appears that an inferior court is proceeding or threatens to proceed in a matter in which it has no jurisdiction and there is no adequate remedy available through application to an intermediate court, or that the inferior court is proceeding erroneously within its jurisdiction and irreparable injury will result for which petitioner has no adequate remedy at law. Lexington v. Cox, 481 S.W.2d 645, 1972 Ky. LEXIS 252 (Ky. Ct. App. 1972).

7.Mandamus.

Power of Court of Appeals to issue writs of mandamus or prohibition to courts of lesser jurisdiction will not be exercised, save in exceptional or unusual cases, where mandamus would merely be a substitute for an appeal the right to which does not exist. Merrick v. Smith, 347 S.W.2d 537, 1961 Ky. LEXIS 370 ( Ky. 1961 ).

8.— Issuance.

Under former section, writ of mandamus would issue directing Circuit Judge to dismiss suit pending before him and to enter judgment therein which had been agreed upon by all parties to such suit, where order of dismissal had been approved by such parties, they being competent to enter into agreements. Bernheim v. Wallace, 186 Ky. 459 , 217 S.W. 916, 1920 Ky. LEXIS 66 ( Ky. 1920 ).

Where trial court sustained defendant’s special demurrer, plaintiff had no remedy by appeal since order sustaining demurrer was not final disposition subject to appeal, so that plaintiff’s only remedy was by writ under former section, and therefore writ of mandamus would issue compelling trial court to make such order as would finally dispose of petitioner’s case. Williams v. Howard, 192 Ky. 356 , 233 S.W. 753, 1921 Ky. LEXIS 65 ( Ky. 1921 ).

The Court of Appeals may issue writs of mandamus as necessary to give it control of inferior jurisdictions. Payne v. Kentucky R. Com., 216 Ky. 188 , 287 S.W. 560, 1926 Ky. LEXIS 871 ( Ky. 1926 ).

The Court of Appeals has power by writ of mandamus to compel a judge of Circuit Court to sign and approve a bill of exceptions tendered in due time where there was no objection to form and matter contained therein. Casebolt v. Butler, 175 Ky. 381 , 194 S.W. 305, 1917 Ky. LEXIS 309 ( Ky. 1917 ). See Stonefield v. Commonwealth, 282 Ky. 692 , 139 S.W.2d 752, 1940 Ky. LEXIS 237 ( Ky. 1940 ).

Where a prisoner filed an original petition with the Court of Appeals for a writ of habeas corpus on the ground the county judge refused to permit the filing of such petition, the court could issue a writ of mandamus ordering the county judge to accept and act upon the petition but could not consider the original petition for writ of habeas corpus as such. Burch v. Whaley, 311 Ky. 53 , 223 S.W.2d 355, 1949 Ky. LEXIS 1049 ( Ky. 1949 ).

Although normally the Court of Appeals will not issue mandamus to influence or direct the discretion of a lower court in any matter properly pending before it, there may be extreme cases in which a lower court has so unreasonably delayed the disposition of a case that his action amounts to a gross abuse of discretion, in which case a writ of mandamus might be issued to require a trial or appealable order. St. Matthews v. Smith, 266 S.W.2d 347, 1954 Ky. LEXIS 819 ( Ky. 1954 ).

Where county judge erroneously refused to call local option election, having jurisdiction to do so, and no appeal was allowed from such refusal, writ would issue to direct such judge to call election, since petitioners-voters would otherwise suffer great and irreparable injury through denial of their statutory rights, and there was no other adequate remedy. Franklin v. Pursiful, 295 Ky. 222 , 173 S.W.2d 131, 1943 Ky. LEXIS 187 ( Ky. 1943 ). See Howard v. Carty, 275 S.W.2d 68, 1955 Ky. LEXIS 349 ( Ky. 1955 ).

A writ of mandamus will issue to compel a court of inferior jurisdiction to take such action as the law makes mandatory. Childers v. Stephenson, 320 S.W.2d 797, 1959 Ky. LEXIS 251 ( Ky. 1959 ).

Petitioner who has moved in trial court for trial of felony charges against him is entitled to as speedy a trial as is consistent with the ends of justice, and to that end Court of Appeals in original action will issue writ of mandamus to trial court to docket the case for trial, and if the commonwealth is not prepared and fails to establish good cause for further continuance, to dismiss the indictments. Hoskins v. Wright, 367 S.W.2d 838, 1963 Ky. LEXIS 31 ( Ky. 1963 ).

The Court of Appeals has jurisdiction by writ of mandamus to correct the action of a county judge in declining to order an election under KRS 67.030 and Const., § 65. Coffey v. Anderson, 371 S.W.2d 624, 1963 Ky. LEXIS 103 ( Ky. 1963 ).

Petition for mandamus was sustained under former section, directing Circuit Judge to rule upon petitioner’s motion to vacate judgment of conviction, where such judge failed to respond to such petition within ten (10) days from date of filing as required. Wahl v. Simpson, 385 S.W.2d 171, 1964 Ky. LEXIS 135 ( Ky. 1964 ). See Benson v. Iler, 371 S.W.2d 15, 1963 Ky. LEXIS 86 ( Ky. 1963 ); Collier v. Conley, 386 S.W.2d 270, 1965 Ky. LEXIS 499 ( Ky. 1965 ); Moore v. Pound, 390 S.W.2d 159, 1965 Ky. LEXIS 338 ( Ky. 1965 ).

The Court of Appeals can only issue mandamus or prohibition against judicial officers. Mandamus against other officers must be brought in a court of general jurisdiction; moreover, mandamus proceedings must be brought against the individual members of an agency whose actions are sought to be controlled, and not against only the agency as such. Turner v. Department of Parole & Probation, 394 S.W.2d 889, 1965 Ky. LEXIS 211 ( Ky. 1965 ).

Where trial court denied petitioner’s request for record of proceedings had pursuant to his motion to vacate judgment, Court of Appeals sustained his motion to appeal as a pauper, and trial judge did not deny that petitioner was such a pauper, writ of mandamus was issued ordering that petitioner be furnished with such record. Bingham v. Stivers, 396 S.W.2d 800, 1965 Ky. LEXIS 132 ( Ky. 1965 ).

9.— Nonissuance.

Mandamus may not issue from the Court of Appeals to compel a county judge to require administrators to file inventories and make settlements of estates in their hands. Commonwealth v. Peter, 136 Ky. 689 , 124 S.W. 896, 1910 Ky. LEXIS 530 ( Ky. 1910 ).

Where petition of plaintiff for mandamus alleged that Circuit Court acted in manner different from what plaintiff desired, Court of Appeals had no power to interfere to extent of compelling, by mandamus, any action or decision by such Circuit Court as would deprive it of discretion conferred upon it by law. Speckert v. Ray, 166 Ky. 622 , 179 S.W. 592, 1915 Ky. LEXIS 744 ( Ky. 1915 ).

Where Circuit Judge had discretion over subject matters involved in question decided concerning petitioner, and such judge exercised such discretion, Court of Appeals had no power to compel different decision by writ of mandamus, even if such decision was erroneous, and even if such petitioner had no right of appeal from such decision or other adequate remedy. Speckert v. Ray, 166 Ky. 622 , 179 S.W. 592, 1915 Ky. LEXIS 744 ( Ky. 1915 ).

Court of Appeals would not issue writ of mandamus ordering trial judge to pass upon certain demurrer filed and pending before him, on charge by petitioner that such judge had failed to act and was negligent, where there was no charge that such judge had wilfully neglected or refused to act. J. B. B. Coal Co. v. Halbert, 169 Ky. 687 , 184 S.W. 1116, 1916 Ky. LEXIS 741 ( Ky. 1916 ).

Where other adequate remedy exists, Court of Appeals will not entertain a petition for writ of mandamus. Henry v. Harris, 221 Ky. 238 , 298 S.W. 690, 1927 Ky. LEXIS 700 ( Ky. 1927 ).

Unless it is shown that an inferior court is erroneously exercising or acting without jurisdiction, irreparable injury will result therefrom and no alternate adequate remedy exists, the Court of Appeals will not exercise its original jurisdiction and intervene. Frain v. Applegate, 239 Ky. 605 , 40 S.W.2d 274, 1931 Ky. LEXIS 832 ( Ky. 1931 ).

Under former section, appellate jurisdiction did not extend to issuing mandamus against circuit clerk, even if named, since he was ministerial officer. Foster v. Clerk of Lyon Circuit Court, 254 S.W.2d 942, 1953 Ky. LEXIS 626 ( Ky. 1953 ). See Stafford v. Bailey, 282 Ky. 528 , 138 S.W.2d 999, 1940 Ky. LEXIS 201 ( Ky. 1940 ); Sandusky v. Alsmiller, 291 Ky. 666 , 165 S.W.2d 342, 1942 Ky. LEXIS 296 ( Ky. 1942 ); Lewis v. Cooley, 311 Ky. 757 , 225 S.W.2d 306, 1949 Ky. LEXIS 1232 ( Ky. 1949 ).

The Court of Appeals will refuse to issue a writ of mandate to a trial court where rulings complained of are mere interlocutory order within the jurisdiction of the trial court. Shipp v. Stoll, 200 Ky. 646 , 255 S.W. 75, 1923 Ky. LEXIS 111 ( Ky. 1923 ). See Byrd v. Maddox, 313 Ky. 815 , 233 S.W.2d 990, 1950 Ky. LEXIS 990 ( Ky. 1950 ).

Mandamus will not lie to compel a county court to require co-administrators of an estate to file final settlement or to require other acts to be performed where the county court had jurisdiction over the proceedings and it was not shown that the petitioner would suffer any damage as a result of any order which had been entered by the county court. Smith v. Shamburger, 314 Ky. 850 , 238 S.W.2d 844, 1951 Ky. LEXIS 823 ( Ky. 1951 ).

Mandamus would not issue from Court of Appeals to control action of county or quarterly courts where relief was available in Circuit Court. Montgomery v. Viers, 130 Ky. 694 , 114 S.W. 251, 1908 Ky. LEXIS 318 ( Ky. 1908 ). See Commonwealth v. Peter, 136 Ky. 689 , 124 S.W. 896, 1910 Ky. LEXIS 530 ( Ky. 1910 ); McDonald v. De Haven, 192 Ky. 679 , 234 S.W. 277, 1921 Ky. LEXIS 128 ( Ky. 1921 ); Maynard v. Workmen's Compensation Board, 210 Ky. 708 , 276 S.W. 812, 1925 Ky. LEXIS 759 ( Ky. 1925 ); Fidelity & Deposit Co. v. Gardner, 223 Ky. 196 , 3 S.W.2d 219, 1928 Ky. LEXIS 308 ( Ky. 1928 ); Hargis v. Bach, 291 Ky. 766 , 165 S.W.2d 565, 1942 Ky. LEXIS 319 ( Ky. 1942 ); Merson v. Muir, 269 S.W.2d 272, 1954 Ky. LEXIS 993 ( Ky. 1954 ).

Writ of mandamus will not be issued to compel a Circuit Judge to set aside his judgment affirming and setting aside in part an order of the Workmen's Compensation Board. Childers v. Stephenson, 320 S.W.2d 797, 1959 Ky. LEXIS 251 ( Ky. 1959 ).

Although the Court of Appeals may issue a writ of mandamus to an inferior court to try an issue or hear a motion, the writ may not be issued to specify how such issue must be tried or what orders should be entered in any case where the discretion of a judge or a court may be exercised. Smith v. Shamburger, 314 Ky. 850 , 238 S.W.2d 844, 1951 Ky. LEXIS 823 ( Ky. 1951 ). See Childers v. Stephenson, 320 S.W.2d 797, 1959 Ky. LEXIS 251 ( Ky. 1959 ).

Writ of mandamus could not be issued under former section to compel inferior court to decide certain matter in any particular manner. Speckert v. Ray, 166 Ky. 622 , 179 S.W. 592, 1915 Ky. LEXIS 744 ( Ky. 1915 ). See McFarland v. Gilbert, 276 Ky. 423 , 124 S.W.2d 473, 1939 Ky. LEXIS 529 ( Ky. 1939 ); Turner v. Bowman, 294 Ky. 507 , 172 S.W.2d 209, 1943 Ky. LEXIS 490 ( Ky. 1943 ); Smith v. Shamburger, 314 Ky. 850 , 238 S.W.2d 844, 1951 Ky. LEXIS 823 ( Ky. 1951 ); Childers v. Stephenson, 320 S.W.2d 797, 1959 Ky. LEXIS 251 ( Ky. 1959 ); Kaufman v. Humphrey, 329 S.W.2d 575, 1959 Ky. LEXIS 174 ( Ky. 1959 ).

Mandamus may be used to compel an inferior court to adjudicate a matter it has refused to act on, but will not be issued by the Court of Appeals to control the discretion of the lower court or revise or correct its decision. Kaufman v. Humphrey, 329 S.W.2d 575, 1959 Ky. LEXIS 174 ( Ky. 1959 ).

Claimed error of trial court in refusing to empanel a jury to try a petty larceny charge against petitioner, who made unsubstantiated claim that as a pauper he would be forced to remain incarcerated pending any appeal, was not sufficient ground for writ of mandamus. Stewart v. Taustine, 343 S.W.2d 575, 1960 Ky. LEXIS 110 ( Ky. 1960 ).

Mandamus is in the nature of a personal action and petition therefor which names only “Judge, Circuit Court” as respondent is insufficient. Trodglen v. Judge, Daviess Circuit Court, 371 S.W.2d 40, 1963 Ky. LEXIS 95 ( Ky. 1963 ).

Where petitioner had adequate remedy by appeal, petition for mandamus was denied. Parsley v. Gray, 322 S.W.2d 123, 1959 Ky. LEXIS 299 ( Ky. 1959 ). See Bastian Bros. Co. v. Field, 280 Ky. 727 , 134 S.W.2d 648, 1939 Ky. LEXIS 213 ( Ky. 1939 ); Taylor v. Stevenson, 309 Ky. 68 , 215 S.W.2d 947, 1948 Ky. LEXIS 1041 ( Ky. 1948 ); Farrow v. Downing, 374 S.W.2d 480, 1964 Ky. LEXIS 372 ( Ky. 1964 ).

Mandamus did not lie to compel warden of state penitentiary to permit prisoner to mail certain legal papers in violation of regulation, which had been adopted by department of corrections and which warden had duty to obey. Kirby v. Thomas, 336 F.2d 462, 1964 U.S. App. LEXIS 4355 (6th Cir. Ky. 1964 ).

Where new trial already had been granted on ground of grant by jury of excessive damages, plaintiff-petitioner was not entitled to writ of mandamus to compel trial judge to allow filing of amended complaint showing increased claim for damages, since, in absence of showing of unusual circumstances, petitioner had adequate remedy by appeal if trial judge’s action constituted a prejudicial abuse of discretion. Farrow v. Downing, 374 S.W.2d 480, 1964 Ky. LEXIS 372 ( Ky. 1964 ).

Mandamus will not lie to correct judgment of Circuit Judge which permits parole board to determine whether sentences should run concurrently or consecutively, where judge subsequently ordered that sentences should run consecutively. Gibson v. Judge of Warren Circuit Court, 375 S.W.2d 276, 1964 Ky. LEXIS 407 ( Ky. 1964 ).

Mandamus to compel a ruling on motion to vacate conviction under RCr 11.42 will not issue where a motion to vacate has been ruled on. Kraus v. Ropke, 385 S.W.2d 162, 1964 Ky. LEXIS 128 ( Ky. 1964 ).

A writ of mandamus for a speedy trial cannot be obtained against a Commonwealth’s Attorney, a nonjudicial officer, under former section of the constitution. Walker v. Gant, 424 S.W.2d 128, 1968 Ky. LEXIS 444 ( Ky. 1968 ).

Where the defendant sought an order of mandamus requiring the judge of the Circuit Court to permit him to proceed in forma pauperis, the relief was denied because his remedy, after the Circuit Court denied his petition, was a motion in the Court of Appeals for a rule to show cause why he should not be furnished with a free copy of the transcript. Robinson v. Pound, 432 S.W.2d 645, 1968 Ky. LEXIS 350 ( Ky. 1968 ), overruled in part, Gabbard v. Lair, 528 S.W.2d 675, 1975 Ky. LEXIS 70 ( Ky. 1975 ).

10.Prohibition.

Under former section, that provided that the Court of Appeals shall have appellate jurisdiction, and power to issue writs necessary to control inferior tribunals, it had jurisdiction to consider an application for prohibition sought on the ground that a Circuit Court was acting outside of its jurisdiction in holding court at a city other than the county seat. Patterson v. Davis, 152 Ky. 530 , 153 S.W. 780, 1913 Ky. LEXIS 696 ( Ky. 1913 ).

Writ of prohibition would issue in insurance company accounting action to set aside so much of order of Circuit Court as required officers and agents of petitioner insurance company to make appearances contrary to provisions of civil code. Equitable Life Assurance Soc. v. Hardin, 166 Ky. 51 , 178 S.W. 1155, 1915 Ky. LEXIS 634 ( Ky. 1915 ).

Under former section, the Court of Appeals has power to issue a writ of prohibition to restrain a Circuit Court from proceeding without jurisdiction. Shackelford v. Patterson, 110 Ky. 863 , 62 S.W. 1040 ( Ky. 1901 ). See Campbellsville Tel. Co. v. Patteson, 114 Ky. 52 , 69 S.W. 1070, 24 Ky. L. Rptr. 832 , 1902 Ky. LEXIS 125 ( Ky. 1902 ); Hargis v. Parker, 85 S.W. 704, 27 Ky. L. Rptr. 441 (1905); Patterson v. Davis, 152 Ky. 530 , 153 S.W. 780, 1913 Ky. LEXIS 696 ( Ky. 1913 ); Greene v. Wolf, 175 Ky. 58 , 193 S.W. 1048, 1917 Ky. LEXIS 290 ( Ky. 1917 ).

Fact that no appeal would lie from decision of judge or courts sought to be restrained did not furnish ground for issuance of writ of prohibition, since, in addition to fact that petitioner had no adequate remedy by appeal, it must also have appeared that great injustice would result or irreparable injury follow from such decision if such writ were not issued. Rallihan v. Gordon, 176 Ky. 471 , 195 S.W. 783, 1917 Ky. LEXIS 53 ( Ky. 1917 ).

The authority of the Circuit Court to grant a writ of prohibition should not be confused with the original jurisdiction of the Court of Appeals. Wilson v. Dean, 177 Ky. 97 , 197 S.W. 547, 1917 Ky. LEXIS 555 ( Ky. 1917 ).

A writ of prohibition may be issued in the discretion of the Court of Appeals. Ohio River Contract Co. v. Gordon, 170 Ky. 412 , 186 S.W. 178, 1916 Ky. LEXIS 90 ( Ky. 1916 ), aff'd, 244 U.S. 68, 37 S. Ct. 599, 61 L. Ed. 997, 1917 U.S. LEXIS 1609 (U.S. 1917), overruled in part, Hoskins v. Maricle, 150 S.W.3d 1, 2004 Ky. LEXIS 196 ( Ky. 2004 ).

Where petitioner testified at trial, then afterwards signed affidavit that his testimony had been false, writ of prohibition would issue to restrain trial judge from proceeding against petitioner with contempt of court action, since such judge lacked jurisdiction to so proceed, proper procedure being criminal court action for perjury. Russell v. Field, 192 Ky. 262 , 232 S.W. 375, 1921 Ky. LEXIS 18 ( Ky. 1921 ).

A writ of prohibition addressed by the Court of Appeals to an inferior court is to stop some action which is threatened by or is being proceeded with by the inferior court. Stafford v. Bailey, 301 Ky. 155 , 191 S.W.2d 218, 1945 Ky. LEXIS 712 ( Ky. 1945 ).

A petition for writ prohibiting a Circuit Court from entering a judgment incorporating a sixth-class city, alleging that the form of the proposed city was not a square, that the complaint was not signed by the petitioners to incorporate, that only five (5) of the alleged petitioners were named in the caption, and that the petition to incorporate stated no facts justifying the inclusion of the petitioner’s undeveloped land as a part of the city, did not show such error as would warrant the exercise of the original jurisdiction of the Court of Appeals to prohibit the entry of a judgment. Eline v. Lampe, 275 S.W.2d 64, 1955 Ky. LEXIS 347 ( Ky. 1955 ).

Writ of prohibition would not issue to prohibit judge from presiding over grand jury, where there was no allegation by petitioner of any fact basically necessary to support petition and give court jurisdiction. Commonwealth ex rel. Breckinridge v. Murphy, 351 S.W.2d 513, 1961 Ky. LEXIS 174 ( Ky. 1961 ).

Writ of prohibition is strictly in the nature of a personal action and may not validly be directed to a Circuit Court as such but only to the judge thereof. Commonwealth, Dep't of Highways v. Circuit Court, 365 S.W.2d 106, 1963 Ky. LEXIS 217 ( Ky. 1963 ).

Where no stay of execution is sought, a supersedeas bond is not necessary and where the defendants refused to post a supersedeas bond when ordered by court, prohibition would lie because they may be regarded as being in contempt of court. Berryman v. Ardery, 398 S.W.2d 237, 1966 Ky. LEXIS 487 ( Ky. 1966 ).

11.— Inferior Courts.

The Court of Appeals may issue a writ of prohibition to a police court, despite former rules authorizing Circuit Courts with jurisdiction to grant such writs against county, quarterly, fiscal, and police courts. Commonwealth ex rel. Dawson v. Carmackle, 192 Ky. 171 , 232 S.W. 644, 1921 Ky. LEXIS 45 ( Ky. 1921 ).

Where petitioner for writ of prohibition did not deny charges made against him by respondent, and such charges, if true, showed petitioner to be guilty of flagrant violation of duties in office, petitioner’s allegations of no adequate legal remedy and irreparable damages resulting unless writ should issue were utterly unsupported; therefore it was imperative that such writ should be denied. Gilman v. Doak, 194 Ky. 21 , 237 S.W. 1069, 1922 Ky. LEXIS 94 ( Ky. 1922 ).

Writ of prohibition would not issue to restrain Circuit Judge from sustaining restraining order issued by Circuit Court clerk, and finding petitioner guilty of contempt for violation of such order, where such order was validly issued and was not otherwise void. Roediger v. Caldwell, 197 Ky. 164 , 246 S.W. 451, 1922 Ky. LEXIS 638 ( Ky. 1922 ).

Writ of prohibition would issue to restrain county judge from hearing and proceeding with application for writ of habeas corpus to release prisoner from custody before lawful time for such release. Commonwealth ex rel. Dawson v. Gresham, 198 Ky. 451 , 248 S.W. 1038, 1923 Ky. LEXIS 476 ( Ky. 1923 ).

Court of Appeals may grant writ to prohibit trial of number of indictments punishable by fine insufficient to authorize appeal, where conviction has been had under one indictment, and lower court will probably convict under other indictments, and thus produce irreparable injury. Natural Gas Products Co. v. Thurman, 205 Ky. 100 , 265 S.W. 475, 1924 Ky. LEXIS 48 ( Ky. 1924 ).

Unless necessary to effect control over courts of inferior jurisdiction, the Court of Appeals will not issue writs of prohibition. Clapp v. Sandidge, 230 Ky. 594 , 20 S.W.2d 449, 1929 Ky. LEXIS 131 ( Ky. 1929 ).

Where prisoner’s attorney fraudulently obtained order for prisoner’s release on application for writ of habeas corpus to Circuit Court, writ of prohibition would issue to vacate such order and enjoin such court from issuing such writ of habeas corpus. Commonwealth v. Smith, 242 Ky. 365 , 46 S.W.2d 474, 1932 Ky. LEXIS 268 ( Ky. 1932 ).

Where petitioner was assignee of estate, loss of his commissions was not such great and irreparable injury as would justify writ of prohibition prohibiting Circuit Court from proceeding under alleged erroneous ruling, especially since petitioner had adequate remedy by appeal. L. W. Henneberger Co.'s Assignee v. Price, 252 Ky. 402 , 67 S.W.2d 471, 1934 Ky. LEXIS 782 ( Ky. 1934 ).

Writ of prohibition would not issue to order Circuit Judge to allow new trial for petitioner, where money judgment had been entered against him from which there was no appeal, since petition for such writ in effect sought review by Court of Appeals of such judgment and modification thereof when no such review was authorized. Union Trading Co. v. Hubbard, 252 Ky. 518 , 67 S.W.2d 693, 1934 Ky. LEXIS 803 ( Ky. 1934 ).

Fact that other claimants were threatening to sue petitioner to recover usurious payments, barred by statute of limitations, was insufficient to justify issuance of writ of prohibition, where number and amounts of such claims were not stated, and no showing was made that petitioner would suffer great injustice and irreparable injury. Union Trading Co. v. Hubbard, 252 Ky. 518 , 67 S.W.2d 693, 1934 Ky. LEXIS 803 ( Ky. 1934 ).

Where facts stated in affidavit were such that trial judge should have vacated bench, and commonwealth petitioned Court of Appeals under former section, writ was issued prohibiting such judge from presiding at trial in question. Smith v. Ward, 256 Ky. 13 , 75 S.W.2d 538, 1934 Ky. LEXIS 345 ( Ky. 1934 ).

Writ of prohibition would not issue to prohibit Circuit Judge from dismissing appeal from judgment against petitioner in amount of $181.80, such amount being less than that required for appeal to Court of Appeals, since loss of such amount would not constitute such great and irreparable injury or injustice as would justify issuance of such writ. Glass v. Hancock, 265 Ky. 191 , 87 S.W.2d 88, 1935 Ky. LEXIS 804 ( Ky. 1935 ).

Court of Appeals has exclusive jurisdiction over petition for writ to prohibit magistrate from trying misdemeanor case since, although possibly acting erroneously, the magistrate would be acting within his jurisdiction. Pinkleton v. Lueke, 265 Ky. 84 , 95 S.W.2d 1103, 1936 Ky. LEXIS 435 ( Ky. 1936 ).

The power of the Court of Appeals to exercise its original jurisdiction in controlling inferior courts by a writ of prohibition preventing such courts from hearing causes over which they have no jurisdiction cannot be questioned. Northern States Contracting Co. v. Swope, 271 Ky. 140 , 111 S.W.2d 610, 1937 Ky. LEXIS 211 ( Ky. 1937 ).

Where a police judge acted under a habeas corpus proceeding in such a fashion as to in effect negate an order of the Court of Appeals, the court would prevent such action by writ of prohibition. Commonwealth ex rel. Meredith v. Smith, 274 Ky. 202 , 118 S.W.2d 538, 1938 Ky. LEXIS 249 ( Ky. 1938 ).

Showing that Circuit Judge required petitioner to furnish additional sureties on appeal bond, although bond had been accepted and approved by the clerk, and that judge had denied motion, made after appeal from quarterly court and appearance by petitioner in Circuit Court, to dismiss action because sheriff who served summons was plaintiff in action against petitioner, was not sufficient to entitle petitioner to writ of prohibition. Partin v. Gilbert, 275 Ky. 19 , 120 S.W.2d 667, 1938 Ky. LEXIS 357 ( Ky. 19 38).

Since, pursuant to former section, writs of prohibition could not issue from Court of Appeals except to control inferior courts, no such writ could issue against city bar association. Brents v. Burnett, 295 Ky. 337 , 174 S.W.2d 521, 1943 Ky. LEXIS 241 ( Ky. 1943 ).

Attorney general was granted a writ prohibiting Circuit Judge from sitting in a quasi-criminal proceeding in his court where the Circuit Judge had been named a codefendant and irreparable injury would result if the judge ruled adversely to the commonwealth and it later was determined he was disqualified. Commonwealth ex rel. Meredith v. Murphy, 295 Ky. 466 , 174 S.W.2d 681, 1943 Ky. LEXIS 251 ( Ky. 1943 ).

Court of Appeals denied petition for writ to prohibit Circuit Judge from ordering attorney to show cause why he should not be punished for contempt on basis his affidavit in support of motion to require Circuit Judge to disqualify himself contained allegations and innuendoes going beyond the facts necessary. Marshall v. Hancock, 300 Ky. 295 , 188 S.W.2d 477, 1945 Ky. LEXIS 545 ( Ky. 1945 ).

Ordinarily, original prohibition proceedings in the Court of Appeals will not be entertained where petitioner has a right to appeal but such jurisdiction may be taken where there was no right of appeal and there is a showing of resultant great and irreparable injury. Brumfield v. Baxter, 307 Ky. 316 , 210 S.W.2d 972, 1948 Ky. LEXIS 736 ( Ky. 1948 ).

Court of Appeals will issue writ to prohibit Circuit Court Judge from proceeding with divorce action which had not been filed in county of wife’s residence as required by statute. Brumfield v. Baxter, 307 Ky. 316 , 210 S.W.2d 972, 1948 Ky. LEXIS 736 ( Ky. 1948 ).

Where an inferior court has jurisdiction in a suit to set aside a judgment for divorce from bed and board, the petitioner did not move for the judge to vacate the bench and failed to show any error in the judge’s proceeding, the Court of Appeals will not grant a writ of prohibition against such judge. Jones v. Tartar, 308 Ky. 813 , 215 S.W.2d 955, 1948 Ky. LEXIS 1046 ( Ky. 1948 ).

Writ of prohibition will not be issued by the Court of Appeals to restrain a Circuit Judge from carrying out and enforcing a judgment in contempt proceedings where he is not acting beyond his jurisdiction. Hotel & Restaurant Employees Union v. Miller, 240 S.W.2d 576, 1951 Ky. LEXIS 978 ( Ky. 1951 ).

Where in petition before the Court of Appeals it is contended that an inferior court totally lacks jurisdiction of the subject matter in a child custody case, the court will consider such contention and, if it is so shown, will by writ prohibit the lower court from proceeding without requiring the parties to proceed to trial on the merits and pursue the same question on appeal. Chamblee v. Rose, 249 S.W.2d 775, 1952 Ky. LEXIS 862 ( Ky. 1952 ).

The use of the writ of prohibition over inferior tribunals has long been regarded as one of the inherent powers conferred upon the Court of Appeals by former section. International Union of Operating Engineers v. Bryan, 255 S.W.2d 471, 1953 Ky. LEXIS 650 ( Ky. 1953 ).

In proceeding for writ of prohibition to prohibit Circuit Judge from entering order for incorporation of portion of subdivision as sixth-class city under KRS 81.040 to 81.070 , as no appeal is permitted by this section, action of trial judge in accepting petition which did not set out metes and bounds of the proposed city nor the number of voters in it as required by KRS 81.050 , but contained information in affidavit attached to it as in compliance with this section, was not a misuse or usurpation of authority by lower court and did not warrant issuance of such writ. Schaetzley v. Wright, 271 S.W.2d 885, 1954 Ky. LEXIS 1056 ( Ky. 1954 ).

The Court of Appeals may issue writs of prohibition to prohibit Circuit Courts from proceeding in actions where they have no jurisdiction. Tyler v. Smith, 272 S.W.2d 454, 1954 Ky. LEXIS 1099 ( Ky. 1954 ).

Where trial court acted within his discretion in determining that wife, in divorce action, resided within county of court’s jurisdiction and that divorce suit was properly brought in that court, prohibition would not lie against further proceedings. Stewart v. Yager, 272 S.W.2d 674, 1954 Ky. LEXIS 1126 ( Ky. 1954 ).

To justify the issue by the Court of Appeals of a writ of prohibition, there must be some error by the lower court of an extraordinary nature resulting in abuse of judicial process, a miscarriage of justice or some misuse or usurpation of authority and the writ will not be issued to correct routine or ordinary errors of a trial court. Bryan v. Trimble, 275 S.W.2d 66, 1955 Ky. LEXIS 348 ( Ky. 1955 ).

Where one Circuit Court endeavors by habeas corpus to interfere with the actions of another Circuit Court which already has jurisdiction of a case, the first court clearly is proceeding without jurisdiction, there is no intermediate court which could afford an appeal or other remedy, and a writ of prohibition is properly issued by the Court of Appeals. Jones v. Murphy, 314 S.W.2d 545, 1958 Ky. LEXIS 306 ( Ky. 1958 ).

Where a Circuit Court Judge entered an order dismissing a divorce action, and such order became final, a writ of prohibition would issue prohibiting the judge from taking any further steps or proceedings in the action. Roberts v. Osborne, 339 S.W.2d 442, 1960 Ky. LEXIS 448 ( Ky. 1960 ).

In order to prevent a substantial miscarriage of justice, Court of Appeals issued writ of prohibition to prevent lower court from enforcing an order requiring petitioner to produce for the inspection of the adversary party in the case documents petitioner had obtained from experts for use in the preparation of his case for trial. Bender v. Eaton, 343 S.W.2d 799, 1961 Ky. LEXIS 432 ( Ky. 1961 ).

Where petitioner, after Circuit Court judgment in divorce action ordering her to convey her interest in realty to her husband as part of the property settlement, filed supersedeas bond and appeal, Court of Appeals would prohibit Circuit Court judge enforcing subsequent order finding petitioner in contempt and directing the conveyance. Unterstein v. Stapleton, 346 S.W.2d 42, 1961 Ky. LEXIS 293 ( Ky. 1961 ).

Court of Appeals refused to prohibit judge of city police court from revoking licenses of professional bondsmen where Circuit Court had already denied petitioner relief on ground action by police judge was within his jurisdiction and in his judicial capacity and Circuit Court had no power to intervene. Hettich v. Colson, 366 S.W.2d 907, 1963 Ky. LEXIS 11 ( Ky. 1963 ).

Where action of trial judge, in undertaking to hear untimely remonstrance suit, was beyond scope of judicial function, it was duty of Court of Appeals to grant relief under former section by issuing writ of prohibition against such judge. Danville v. Wilson, 395 S.W.2d 583, 1965 Ky. LEXIS 151 ( Ky. 1965 ).

Prohibition will issue to prevent a lower court from exercising jurisdiction in a divorce proceeding where a question of residence of the parties was raised, but in the absence of a transcript of the evidence in Circuit Court hearing on the question of venue, the Court of Appeals had no basis for the issuance of such writ. Turner v. Gentry, 402 S.W.2d 104, 1966 Ky. LEXIS 358 ( Ky. 1966 ).

12.— — Without Jurisdiction.

Under former section, Court of Appeals could not issue writ of prohibition to inferior court unless such inferior court had acted beyond bounds of its jurisdiction. Standard Oil Co. v. Linn, 32 S.W. 932, 17 Ky. L. Rptr. 832 (1895). See Commonwealth v. Jones, 118 Ky. 889 , 82 S.W. 643, 26 Ky. L. Rptr. 867 , 1904 Ky. LEXIS 126 ( Ky. 1904 ). But see Gilman v. Doak, 194 Ky. 21 , 237 S.W. 1069, 1922 Ky. LEXIS 94 ( Ky. 1922 ).

Where Circuit Judge propounded same question forty times to petitioner, who refused to answer, and entered judgments holding him in contempt and sentenced him to thirty hours in jail on each question, Court of Appeals would issue writ prohibiting enforcement of such judgments, since Circuit Judge was undertaking to hold court of inquiry at time in question and thus was acting without jurisdiction. Ketcham v. Manning, 212 Ky. 325 , 279 S.W. 344, 1926 Ky. LEXIS 136 ( Ky. 1926 ). See Ketcham v. Commonwealth, 204 Ky. 168 , 263 S.W. 725, 1924 Ky. LEXIS 419 ( Ky. 1924 ).

Writ would issue to prohibit magistrate from trying petitioner on merits and from holding examining trial, where such magistrate had no right under United States Const., Amend. 14, to hold trial on merits, and no jurisdiction under state statutes to hold examining trial for particular offense involved. Pinkleton v. Lueke, 265 Ky. 84 , 95 S.W.2d 1103, 1936 Ky. LEXIS 435 ( Ky. 1936 ).

13.— Great and Irreparable Injury.

Court of Appeals will not restrain Circuit Court from considering appeal from quarterly court judgment, where possible injury to petitioner would be loss of an amount below the appellate jurisdiction of the Court of Appeals and this would not be such great and irreparable injury as to confer original jurisdiction. Doyle v. Bryson, 289 Ky. 714 , 160 S.W.2d 34, 1942 Ky. LEXIS 634 ( Ky. 1942 ).

Expense and inconvenience which might result from complying with subpoena duces tecum does not amount to such great and irreparable injury as would justify writ of prohibition, even if issuance of subpoena is a clear abuse of lower court’s discretion. International Union of Operating Engineers v. Bryan, 255 S.W.2d 471, 1953 Ky. LEXIS 650 ( Ky. 1953 ).

Where petitioners did not show great and irreparable injury as a result of contempt order, writ of prohibition would not lie, even though the lower court was proceeding erroneously. Armstrong v. Bryan, 273 S.W.2d 835, 1954 Ky. LEXIS 1213 ( Ky. 1954 ).

Fact that an ousted school board member cannot supersede the judgment ousting him is not such an irreparable injury as will warrant the exercise of Court of Appeals’ supervisory power to prohibit action ousting him for in order for Court of Appeals to exercise its supervisory power in such cases, in addition to the element of great and irreparable injury there must be something in nature of usurpation or abuse of power by the lower court. Cross v. Wilson, 325 S.W.2d 309, 1959 Ky. LEXIS 44 ( Ky. 1959 ).

Where irreparable injury would be suffered by petitioner as result of Circuit Court-ordered sale of attached property in case pending on appeal, Court of Appeals will prevent sale by writ of prohibition. Staton v. Simpson, 331 S.W.2d 285, 1960 Ky. LEXIS 122 ( Ky. 1960 ).

Where erroneous order of lower court will result in a substantial miscarriage of justice, the showing of a great and irreparable injury as ordinarily defined was not an absolute necessity in order to invoke the exercise of the supervisory power of the Court of Appeals. Carpenter v. Wells, 358 S.W.2d 524, 1962 Ky. LEXIS 190 ( Ky. 1962 ).

Where Circuit Court was without jurisdiction over petitioner who was indicted by the grand jury for the offense of rape while proceedings against him were pending in the juvenile court, the Court of Appeals had power to issue a writ of prohibition without petitioner showing that he would be irreparably injured or that he would not have an adequate remedy by appeal. Miller v. Anderson, 519 S.W.2d 826, 1975 Ky. LEXIS 181 ( Ky. 1975 ).

14.— Amount in Controversy.

There is nothing in the statutes or court decisions making Court of Appeals’ jurisdiction to issue a writ of prohibition dependent upon the amount in controversy when public funds are involved. Meredith v. Sampson, 277 Ky. 263 , 126 S.W.2d 124, 1939 Ky. LEXIS 632 ( Ky. 1939 ).

Court of Appeals will not issue writ of prohibition to restrain court of county to which venue of criminal case has been changed from trying case, even though petition for change was insufficient and county to which venue was changed was not an adjacent county. Manning v. Baxter, 281 Ky. 659 , 136 S.W.2d 1074, 1940 Ky. LEXIS 88 ( Ky. 1940 ).

Fact that defendant in criminal case had burden of additional expense and difficulty in obtaining witnesses because of change of venue did not subject him to such great and irreparable injury as would justify issuing prohibition to restrain change of venue. Manning v. Baxter, 281 Ky. 659 , 136 S.W.2d 1074, 1940 Ky. LEXIS 88 ( Ky. 1940 ).

Court of Appeals would not issue a writ prohibiting a Circuit Court from trying a defendant on charges previously tried by the quarterly court, where the Circuit Court acting within its jurisdiction had determined that the trials in the quarterly court were fraudulently procured to divest the Circuit Court of jurisdiction, even though the defendant may have no statutory right of appeal from the subsequent judgment of the Circuit Court. Sizemore v. Stivers, 287 Ky. 153 , 151 S.W.2d 1059, 1941 Ky. LEXIS 492 ( Ky. 1941 ).

Writ of prohibition would not issue after act sought to be prevented had already occurred. Garner v. Shouse, 292 Ky. 798 , 168 S.W.2d 42, 1943 Ky. LEXIS 747 ( Ky. 1943 ).

The Court of Appeals may issue a writ of prohibition against a Circuit Judge in a case of criminal contempt, although the punishment which may be imposed by the court without the intervention of a jury is limited to a fine of not more than $30.00 or imprisonment for not more than 30 hours. Marshall v. Hancock, 300 Ky. 295 , 188 S.W.2d 477, 1945 Ky. LEXIS 545 ( Ky. 1945 ).

Where only loss shown by petitioner was loss of interest on a sum of money impounded by court pending outcome of suit, writ of prohibition against Circuit Judge concerning order delaying settlement of suit would be denied, especially where actions of petitioner were the real cause of the delay. Blackerby v. Adams, 313 Ky. 476 , 232 S.W.2d 79, 1950 Ky. LEXIS 900 ( Ky. 1950 ).

A petitioner for a writ of prohibition against a justice of the peace to prohibit him from releasing an insolvent debtor committed under a contempt order for failure to pay alimony and support payments was sufficient to warrant the issuance of the writ. Gibson v. Stiles, 240 S.W.2d 609, 1951 Ky. LEXIS 995 ( Ky. 1951 ).

Court refused to grant writ of prohibition where the petition therefor was in furtherance of an effort to secure the possession of gambling devices, the possession of which was in violation of statute. Gastineau v. Bradley, 249 S.W.2d 529, 1952 Ky. LEXIS 820 ( Ky. 1952 ).

The imposition by a quarterly court of a $10.00 fine and costs on a plea of guilty to a charge of reckless driving does not justify the issuance of a writ of prohibition by the Court of Appeals. Thompson v. Wood, 277 S.W.2d 472, 1955 Ky. LEXIS 469 ( Ky. 1955 ).

15.— No Other Remedy.

While Court of Appeals should not generally issue writs of prohibition, court could issue such writ when adequate relief could not be afforded by exercise of its revisory power. Hindman v. Toney, 97 Ky. 413 , 30 S.W. 1006, 17 Ky. L. Rptr. 286 , 1895 Ky. LEXIS 206 ( Ky. 1895 ).

Court of Appeals would not issue writ of prohibition to prevent Circuit Court Judge from entering judgment finding petitioner guilty, notwithstanding such finding of guilt might be erroneous, notwithstanding petitioner would not be able to appeal from such finding because fine imposed thereunder would be less than amount prescribed by statute for allowance of appeal, and notwithstanding petitioner might have no other remedy. Carey v. Sampson, 150 Ky. 460 , 150 S.W. 531, 1912 Ky. LEXIS 918 ( Ky. 1912 ). But see Adams Express Co. v. Young, 184 Ky. 49 , 211 S.W. 407, 1919 Ky. LEXIS 21 ( Ky. 1919 ).

Writ of prohibition would not issue to restrain trial judge from proceeding with action to remove petitioner from office which was not a constitutional one and so did not involve property rights. Gilman v. Doak, 194 Ky. 21 , 237 S.W. 1069, 1922 Ky. LEXIS 94 ( Ky. 1922 ). But see Rush v. Denhardt, 138 Ky. 238 , 127 S.W. 785, 1910 Ky. LEXIS 64 ( Ky. 1910 ).

General supervisory jurisdiction of the Court of Appeals will not ordinarily be exercised to stay a court of inferior jurisdiction from hearing a case in which no appeal can be taken, unless there is no adequate remedy, and it is necessary to prevent injustice. Illinois C. R. Co. v. Rice, 154 Ky. 198 , 156 S.W. 1075, 1913 Ky. LEXIS 31 ( Ky. 1913 ).

Where, under the peculiar circumstances of a particular case, a petition for a writ of prohibition against a judge of a court inferior to a Circuit Court would not afford adequate relief if addressed to the Circuit Court, the Court of Appeals will entertain such a petition. Lakes v. Goodloe, 195 Ky. 240 , 242 S.W. 632, 1922 Ky. LEXIS 342 ( Ky. 1922 ).

Facts that defendant was arrested without cause or warrant, defendant was jailed by Circuit Court in lieu of peace bond, no complaint was filed, no indictment or information was pending, there was no hearing, there was no appeal, and county court refused application for writ of habeas corpus presented clear case for intervention of Court of Appeals under this section, and writ of prohibition would therefore issue, directing Circuit Court to set aside its order, and releasing defendant from jail. Bowles v. Manning, 196 Ky. 728 , 245 S.W. 506, 1922 Ky. LEXIS 585 ( Ky. 1922 ).

Writ of prohibition would issue to prevent Circuit Judge from punishing petitioner for collecting $2.00 for taking bail bond, and from requiring him to refund it, where, notwithstanding such judge was proceeding within his jurisdiction, petitioner’s actions were made pursuant to statute already held constitutional in prior case, and petitioner had no other remedy to prevent irreparable injury. Buechel v. Field, 202 Ky. 298 , 259 S.W. 353, 1924 Ky. LEXIS 701 ( Ky. 1924 ).

Unless the facts show irreparable injury and the inadequacy of any other remedy, the Court of Appeals will not exercise its original jurisdiction to issue writs of prohibition. Allen v. Bach, 233 Ky. 501 , 26 S.W.2d 43, 1930 Ky. LEXIS 601 ( Ky. 1930 ).

Court of Appeals will not exercise its power to supervise inferior courts unless failure to invoke it will result in manifest injustice for which petitioner for writ of prohibition has no other adequate remedy. Lexington Loose Leaf Tobacco Warehouse Co. v. Coleman, 289 Ky. 277 , 158 S.W.2d 633, 1942 Ky. LEXIS 543 ( Ky. 1942 ).

Where judge in mandamus action erroneously ordered removal of petitioners’ names from election lists, thus depriving them of their right to vote, writ of prohibition would issue against such judge, since petitioners thereby suffered irreparable injury for which they had no adequate remedy by appeal, not being parties to such action, and there was no other adequate remedy. Clark v. Ardery, 310 Ky. 836 , 222 S.W.2d 602, 1949 Ky. LEXIS 1020 ( Ky. 1949 ).

Although the Court of Appeals would not exercise its original jurisdiction under former section to circumvent a statute limiting the right of appeal, the court did consider a petition for a writ of prohibition against a Circuit Judge in a nonappealable proceeding under law providing for the procedure to compel the correction of error or omission that has occurred in placing names of candidates on ballot where the case involved an important constitutional question under another section of the constitution. Grantz v. Grauman, 302 S.W.2d 364, 1957 Ky. LEXIS 185 ( Ky. 1957 ).

The exercise of supervisory control over an inferior court has been limited to extraordinary cases where the exigencies are so exceptional that no other remedy is adequate to prevent a miscarriage of justice and the extraordinary remedy of prohibition may not be invoked merely because a constitutional question is involved, if there is an adequate remedy by appeal, but where serious implications would attend any effort to raise the question in the court below by an appropriate action from which an appeal might be taken because the question concerns the judgeship of the very court where the action must be brought and the problem as to whether statute establishing judicial district is constitutional is so important that in the interest of the public as a whole it should not await the normal processes of an action to judgment followed by appeal, it is appropriate for Court of Appeals to exercise its jurisdiction under this section. Harrod v. Meigs, 340 S.W.2d 601, 1960 Ky. LEXIS 58 ( Ky. 1960 ).

Power and duty of Court of Appeals under former section demanded issuance of writ prohibiting trial judge from presiding over pending prosecution of petitioner for armed robbery, where such judge had insisted several times, in open court, that under no circumstances would he suspend or probate sentence of anyone convicted of armed robbery. Wyatt v. Ropke, 407 S.W.2d 410, 1966 Ky. LEXIS 160 ( Ky. 1966 ).

Writ of prohibition authorized by former section was to be used by Court of Appeals when exigencies were so exceptional that no other remedy was adequate to prevent miscarriage of justice. Brown v. Knuckles, 413 S.W.2d 899, 1967 Ky. LEXIS 403 ( Ky. 1967 ).

16.— Other Remedy.

Writ of prohibition to prevent a justice of the peace from exercising authority in a misdemeanor prosecution beyond his jurisdiction or erroneously deciding questions raised therein should be sought in the Circuit Court, not the Court of Appeals. Scott v. Mounts, 195 Ky. 678 , 243 S.W. 878, 1922 Ky. LEXIS 383 ( Ky. 1922 ).

If inferior court were proceeding out of its jurisdiction, it could be restrained by writ of prohibition sued out in Circuit Court, and in such case Court of Appeals would not take original jurisdiction to prohibit such inferior court, but would require petitioner to institute his proceeding in Circuit Court. Potter v. Gardner, 222 Ky. 487 , 1 S.W.2d 537, 1927 Ky. LEXIS 946 ( Ky. 1927 ).

Writ of prohibition will not be issued by the Court of Appeals where there is another adequate remedy. Morgan v. Clements, 153 Ky. 33 , 154 S.W. 370, 1913 Ky. LEXIS 758 ( Ky. 1913 ). See Scott v. Mounts, 195 Ky. 678 , 243 S.W. 878, 1922 Ky. LEXIS 383 ( Ky. 1922 ); Henry v. Harris, 221 Ky. 238 , 298 S.W. 690, 1927 Ky. LEXIS 700 ( Ky. 1927 ).

Where petitioners were convicted but Circuit Judge allegedly never signed orders of judgment, and subsequently petitioners’ supersedeas bonds were executed by circuit clerk and petitioners were jailed, writ of prohibition would not issue to prevent enforcement of such judgments or to compel any action by clerk, since petitioners had adequate remedy in Circuit Court by habeas corpus proceedings or proceedings against clerk. Ledford v. Lewis, 238 Ky. 124 , 36 S.W.2d 852, 1931 Ky. LEXIS 186 ( Ky. 1931 ).

Writ of prohibition was denied in estate settlement action, where petitioner had other remedies and Circuit Court was proceeding within its jurisdiction. Blenke v. Caldwell, 251 Ky. 46 , 64 S.W.2d 428, 1933 Ky. LEXIS 802 ( Ky. 1933 ).

Where fiscal court lacks jurisdiction to hear proceeding to cancel warrants issued for medical care furnished poor of county, petition for writ of prohibition to prohibit fiscal court from hearing such proceeding should be made initially in Circuit Court and not in Court of Appeals. Stumbo v. Clark, 255 Ky. 287 , 73 S.W.2d 8, 1934 Ky. LEXIS 208 ( Ky. 1934 ).

Where property owners refused to comply with a city ordinance requiring them to connect to a sanitary sewer, the police court judge sustained a demurrer to an action for violation of the ordinance on the ground that the ordinance was invalid, and the fine provided by the ordinance for violation was not large enough to authorize appeal, the city could not properly bring an action in the Court of Appeals for a writ of prohibition against the judge, because it had adequate remedies by either a declaratory judgment action or an action against the property owners for a mandatory injunction requiring them to make the connection. Bowling Green v. Milliken, 257 Ky. 245 , 77 S.W.2d 777, 1934 Ky. LEXIS 542 ( Ky. 1934 ).

Since Circuit Court has exclusive original jurisdiction to prohibit quarterly court from exceeding its jurisdiction by attempting to try defendants on charge of carrying deadly weapons concealed, the Court of Appeals will not entertain an original proceeding for writ of prohibition. Perry v. Bingham, 265 Ky. 133 , 95 S.W.2d 1099, 1936 Ky. LEXIS 434 ( Ky. 1936 ).

The Court of Appeals will not exercise original jurisdiction to prohibit a county judge from proceeding with prosecution for transporting passengers by motor vehicle without paying fees on theory that statute conferring jurisdiction on county court was unconstitutional. Elliott v. Hamilton, 276 Ky. 343 , 124 S.W.2d 501, 1939 Ky. LEXIS 536 ( Ky. 1939 ).

Writ of prohibition would not issue to prohibit Circuit Judge from proceeding with trial of rules against petitioner in contempt case, since petitioner had adequate remedy by petitioning such judge to vacate bench, and by appeal thereafter. Brents v. Burnett, 295 Ky. 337 , 174 S.W.2d 521, 1943 Ky. LEXIS 241 ( Ky. 1943 ).

Where decree in child custody case was not void on its face, prohibition did not lie against a contempt proceeding based thereon even if decree was erroneous, in absence of showing of irreparable injury and since other remedies were available to petitioner. Luster v. Auxier, 285 S.W.2d 900, 1955 Ky. LEXIS 88 ( Ky. 1955 ).

Court of Appeals will not by writ of prohibition vacate order of Circuit Court committing petitioner for mental observation, since adequate remedy could properly be obtained in Circuit Court. Powers v. Adams, 374 S.W.2d 862, 1964 Ky. LEXIS 398 ( Ky. 1964 ).

Writ of prohibition would not lie against Circuit Judge to prevent him from jailing petitioner on $1,000 judgment in one action, and from carrying out $7,500 judgment in another action, since petitioner had adequate remedies under statutory procedures for relief. Massengale v. Warren, 378 S.W.2d 221, 1964 Ky. LEXIS 183 ( Ky. 1964 ).

The extraordinary remedy of prohibition does not lie to prevent a judge from proceeding where proceedings to disqualify him have been instituted and no showing has been made that the petitioners have no remedy by appeal or otherwise. Wright v. Ropke, 393 S.W.2d 796, 1965 Ky. LEXIS 246 ( Ky. 1965 ).

A writ of prohibition was denied from a civil contempt order because a judgment imposing a fine for civil contempt may be superseded and the enforcement of the judgment stayed under the provisions of CR 62.03(1) and 73.04. Levisa Stone Corp. v. Hays, 429 S.W.2d 413, 1968 Ky. LEXIS 753 ( Ky. 1968 ).

The use of a writ of prohibition by the Court of Appeals is discretionary and it is used only when the exigencies of a situation are so exceptional that no other remedy is adequate to prevent a miscarriage of justice. Warecke v. Richardson, 468 S.W.2d 795, 1971 Ky. LEXIS 348 ( Ky. 1971 ).

17.— Remedy by Appeal.

Although the Court of Appeals will not issue writs of prohibition as a substitute for appeal in divorce actions, they are an appropriate remedy where basic questions of venue are raised. Burke v. Tartar, 350 S.W.2d 146, 1961 Ky. LEXIS 81 ( Ky. 1961 ).

18.— — Adequate.

Court of Appeals would not grant writ of prohibition to prevent change of venue, since right of appeal from adverse decision at trial provided petitioner with adequate remedy for any error in grant of such change of venue. Fish v. Benton, 138 Ky. 644 , 128 S.W. 1067, 1910 Ky. LEXIS 114 ( Ky. 1910 ). But see Rush v. Denhardt, 138 Ky. 238 , 127 S.W. 785, 1910 Ky. LEXIS 64 ( Ky. 1910 ).

Where petitioner applied to Court of Appeals for writ prohibiting trial court from proceeding on ground such court had not properly obtained jurisdiction of person of petitioner, Court of Appeals could not issue such writ, since petitioner would have adequate remedy by appeal, notwithstanding possibility that, upon such appeal, Court of Appeals might remand case to trial court and thereby give such court personal jurisdiction of petitioner. Central of G. R. Co. v. Gordon, 180 Ky. 739 , 203 S.W. 725, 1918 Ky. LEXIS 148 ( Ky. 1918 ).

Where, in libel action, cause was brought in court of county other than county in which alleged libel occurred, defendant-petitioner’s request for writ prohibiting Circuit Judge from hearing such cause could not be granted by Court of Appeals, even assuming that such Circuit Judge had no jurisdiction, that alleged libel was absolutely privileged, and that cause was barred by statute of limitations, since petitioner had adequate remedy by appeal from any judgment rendered against him. Lisanby v. Bush, 186 Ky. 448 , 217 S.W. 354, 1920 Ky. LEXIS 47 ( Ky. 1920 ).

Where appeal afforded adequate remedy, petition for writ of prohibition would be denied without considering such petition on its merits. Fleece v. Shackelford, 204 Ky. 841 , 265 S.W. 460, 1924 Ky. LEXIS 588 ( Ky. 1924 ).

Where petitioner moved to quash in trial court on ground such court had not obtained jurisdiction of him, and such motion was overruled, writ of prohibition would not issue to prevent continuation of trial court proceedings, since petitioner had adequate remedy by appeal, and since his appearance for appeal purposes would not work to waive question of jurisdiction. Rush v. Childers, 209 Ky. 119 , 272 S.W. 404, 1925 Ky. LEXIS 441 ( Ky. 1925 ).

Where trial judge made interlocutory order, overruling petitioner’s motion that trial judge vacate bench and permit another judge to preside over petitioner’s disbarment proceeding, petitioner had adequate remedy by appeal from any judgment rendered by such trial judge; therefore, writ of prohibition would not issue to prevent such judge from proceeding therewith. Duffin v. Field, 208 Ky. 543 , 271 S.W. 596, 1925 Ky. LEXIS 327 ( Ky. 1925 ). See Ledford v. Lewis, 227 Ky. 396 , 13 S.W.2d 276, 1929 Ky. LEXIS 888 ( Ky. 1929 ).

Where in election contest petitioner alleged that trial court had no jurisdiction on ground such contest was not instituted within proper time, plaintiff answered, and petitioner’s demurrer to such answer was overruled, Court of Appeals would not issue writ prohibiting trial judge from proceeding further, since petitioner had adequate remedy by appeal. Murray v. Simms, 232 Ky. 442 , 23 S.W.2d 551, 1930 Ky. LEXIS 20 ( Ky. 1930 ).

Writ of prohibition would not issue to prevent trial judge from presiding at petitioner’s trial for murder, where petitioner alleged judge was not qualified to preside and judge had denied motion to vacate bench, since petitioner had adequate remedy by appeal from any adverse decision, notwithstanding he would have to remain in jail pending appeal. Burchell v. Tarter, 242 Ky. 612 , 47 S.W.2d 75, 1932 Ky. LEXIS 334 ( Ky. 1932 ).

Writ of prohibition would not issue to prevent trial judge from presiding at petitioner’s trial, where petitioner alleged such judge was a witness in petitioner’s behalf, since, under procedural rules in force, such judge could be compelled to testify even if presiding, and any abuse of his discretion in continuing to preside despite so testifying would be reviewable on appeal. Burchell v. Tarter, 242 Ky. 612 , 47 S.W.2d 75, 1932 Ky. LEXIS 334 ( Ky. 1932 ).

Overruling by Circuit Judge of motion to require him to vacate bench was interlocutory order, and ordinarily Court of Appeals would not review his action under former section, since petitioner could obtain such review on appeal. Smith v. Ward, 256 Ky. 13 , 75 S.W.2d 538, 1934 Ky. LEXIS 345 ( Ky. 1934 ).

Where an order was entered for removal of a wife’s divorce action and consolidated with another action for attachment against the husband to determine the respective rights of the plaintiffs, the wife was not entitled to a writ of prohibition against the removing court, because she had an adequate remedy by appeal. Alsmiller v. Caudill, 257 Ky. 666 , 79 S.W.2d 15, 1935 Ky. LEXIS 84 ( Ky. 1935 ).

The Court of Appeals will not review on writ of prohibition, allegedly erroneous judgments of inferior courts where there is an adequate remedy by appeal from such judgment. Stucker v. Jones, 261 Ky. 82 , 87 S.W.2d 110, 1935 Ky. LEXIS 602 ( Ky. 1935 ).

A petition to prohibit a Circuit Judge from proceeding in a statutory proceeding for attachment will not be entertained by the Court of Appeals, since the petitioner has an adequate remedy at law by appeal from the decision of the judge. Old Blue Ribbon Distillers, Inc. v. Caldwell, 273 Ky. 378 , 116 S.W.2d 653, 1938 Ky. LEXIS 638 ( Ky. 1938 ).

Where the petition for a writ of prohibition failed to set out the facts of the action other than to allege that the Circuit Court was without jurisdiction and irreparable injury would be suffered but it did not appear that an appeal would not afford an adequate remedy, a demurrer to the petition was upheld. Old Blue Ribbon Distillers, Inc. v. Holbert, 276 Ky. 687 , 125 S.W.2d 253, 1939 Ky. LEXIS 588 ( Ky. 1939 ).

Where Circuit Court entered judgment holding attorney in contempt, but imposed no punishment and stated that contempt could be purged by future compliance with orders of court, attorney was not threatened with irreparable injury, had adequate remedy by appeal, and Court of Appeals would not issue writ of prohibition. Lisanby v. Wilson, 280 Ky. 768 , 134 S.W.2d 651, 1939 Ky. LEXIS 214 ( Ky. 1939 ).

Right of appeal from erroneous order changing venue to nonadjacent county furnishes adequate remedy at law, preventing issue of writ of prohibition. Manning v. Baxter, 281 Ky. 659 , 136 S.W.2d 1074, 1940 Ky. LEXIS 88 ( Ky. 1940 ).

Writ of prohibition would not issue to prohibit trial judge from amending judgment in divorce action, or to prohibit such judge from entering any order therein affecting custody of petitioner’s children, since trial court had jurisdiction to enter revisory custody orders and petitioner had adequate remedy by appeal. Duncan v. Burnett, 292 Ky. 269 , 166 S.W.2d 419, 1942 Ky. LEXIS 75 ( Ky. 1942 ).

Where Circuit Court judgment declared petitioner entitled to first lien on certain property, and corporation had judgment of same court declaring it entitled to first lien on same property, he was not entitled to writ of prohibition restraining Circuit Court from denying sale under his judgment and ordering sale under corporation’s judgment, since Circuit Court had jurisdiction to set aside the judgment and to determine its ultimate effect and its conclusiveness as to other parties, and if the Circuit Court was acting erroneously, there was an adequate remedy by appeal. Watson v. Humphrey, 293 Ky. 839 , 170 S.W.2d 865, 1943 Ky. LEXIS 716 ( Ky. 1943 ).

Writ of prohibition, sought against chancellor in action to settle estate, was denied since lower court had jurisdiction, and, even if proceeding erroneously, petitioner has adequate remedy through appeal. Smith v. Burnett, 300 Ky. 249 , 188 S.W.2d 480, 1945 Ky. LEXIS 546 ( Ky. 1945 ).

Where Circuit Court had already appointed receiver of decedent’s estate, and appeal from this action was pending in Court of Appeals, the Court of Appeals would not issue a writ of prohibition to prohibit the Circuit Court from appointing receiver. Stafford v. Bailey, 301 Ky. 155 , 191 S.W.2d 218, 1945 Ky. LEXIS 712 ( Ky. 1945 ).

Where person convicted of contempt of court had appealed from contempt judgment, and had executed a supersedeas bond, his remedy by appeal was adequate, and Court of Appeals had no jurisdiction to grant a writ of prohibition restraining enforcement of the contempt judgment. Tabor v. Coleman, 303 Ky. 95 , 196 S.W.2d 969, 1946 Ky. LEXIS 793 ( Ky. 1946 ).

Husband was not entitled to obtain writ of prohibition to prevent Circuit Court from setting aside divorce judgment, even though court was proceeding erroneously and without jurisdiction in that notice of motion to set aside judgment was not properly served on husband, where status of parties and their property had not changed since the divorce and husband therefore would not suffer any injury that could not be adequately remedied by appeal. Sheffer v. Speckman, 305 Ky. 627 , 205 S.W.2d 305, 1947 Ky. LEXIS 884 ( Ky. 1947 ).

The mere fact that an inferior court may be acting outside its jurisdiction in a case where adequate right to appeal exists is insufficient basis for an original action for writ of prohibition in the Court of Appeals. Farmers Nat'l Bank v. Speckman, 312 Ky. 106 , 226 S.W.2d 315, 1949 Ky. LEXIS 1256 ( Ky. 1949 ).

The Court of Appeals will not by writ prohibit a trial judge from rendering judgment in a case where the only ground of alleged error was a question as to the constitutionality of a statute or of a particular application thereof, since such error could be appealed. Chesapeake & O. R. Co. v. Murphy, 314 Ky. 309 , 234 S.W.2d 969, 1950 Ky. LEXIS 1085 ( Ky. 1950 ).

Where a justice of the peace erroneously refused to grant a change of venue in a criminal case to the Circuit Court, the Court of Appeals would not issue a writ of prohibition against the justice of the peace proceeding with the case, since, in the event of an adverse decision, the petitioner possessed an adequate remedy by appeal to the Circuit Court. Bentley v. Moore, 239 S.W.2d 237, 1951 Ky. LEXIS 865 ( Ky. 1951 ).

Failure of petitioner, for writ of prohibition against Circuit Judge and master commissioner, to file answer to partition suit at issue, where his petition concerned the merits of the pending suit and he had remedy by appeal, constitutes insufficient grounds for the Court of Appeals to issue the writ. Ryherd v. Carter, 240 S.W.2d 602, 1951 Ky. LEXIS 990 ( Ky. 1951 ).

Where forced to disclose irrelevant or privileged information in answer to questions during a discovery proceeding, the defendant in a quiet title action had his remedy by appeal, and requiring him to answer such questions was not misuse or usurpation of authority by the Circuit Court or such extraordinary error as would warrant Court of Appeals issuing a writ to prohibit the Circuit Court from punishing the defendant for contempt for refusal to answer such questions. Bryan v. Trimble, 275 S.W.2d 66, 1955 Ky. LEXIS 348 ( Ky. 1955 ).

An order of prohibition would not issue to enjoin a Circuit Court Judge from trying petitioner on indictment for grand larceny on theory that petitioner had no adequate remedy by appeal, since the criminal code does not provide for a plea raising questions as to denial of his constitutional rights to a speedy trial and to due process of law, as the code does not prohibit a defendant from pleading and relying upon a distinct affirmative defense based on facts disconnected from the body of the particular offense charged. Anderson v. Johnson, 314 S.W.2d 202, 1958 Ky. LEXIS 288 ( Ky. 1958 ).

Where petitioner had no immediate right of appeal from interlocutory order of trial judge setting aside verdict and ordering new trial, but preserved right of appeal from final judgment, and allegations as to prejudice of trial judge appeared merely a supposition, Court of Appeals would not issue a writ of prohibition to prevent trial judge from presiding at hearing on motion for new trial. Collins v. Wells, 314 S.W.2d 572, 1958 Ky. LEXIS 314 ( Ky. 1958 ).

Although the fact that a remedy by appeal is available will not prevent the issue of an order of prohibition, the Court of Appeals will be slow to use its extraordinary supervisory power where there is a right of appeal and will always consider the adequacy of the remedy by appeal. Slaughter v. Smith, 316 S.W.2d 364, 1958 Ky. LEXIS 44 ( Ky. 1958 ). See Chamblee v. Rose, 249 S.W.2d 775, 1952 Ky. LEXIS 862 ( Ky. 1952 ).

Where violation of constitutional or statutory provisions could be considered on appeal, there was no basis for granting relief in nature of prohibition. Hobson v. Curtis, 329 S.W.2d 565, 1959 Ky. LEXIS 169 ( Ky. 1959 ).

Court of Appeals would not invoke the extraordinary remedy of prohibition to prevent judge of Circuit Court from dismissing appeal of petitioner from his conviction in county court where petitioner was then free on bail and had the right to appeal any adverse action of the Circuit Court. Baker v. Jolly, 338 S.W.2d 901, 1960 Ky. LEXIS 418 ( Ky. 1960 ).

Where landowners in condemnation proceeding received adverse judgment in county court, they had adequate remedy by appeal to Circuit Court, which court could then grant injunctive relief, so that petition of such landowners to Court of Appeals for writ of prohibition, without such appeal to Circuit Court, would be denied. Stillpass v. Niblack, 378 S.W.2d 794, 1964 Ky. LEXIS 203 ( Ky. 1964 ).

Where two death claims and one personal injury claim had been litigated three (3) times, due to new trial being twice granted, and new trial was again ordered at end of third trial, writ of prohibition would not issue to prohibit trial judge from subjecting petitioner to fourth trial, since such circumstances did not justify departure from principle that right of eventual appeal from order granting new trial was adequate remedy. Shelby County Board of Education v. Wright, 390 S.W.2d 654, 1965 Ky. LEXIS 363 ( Ky. 1965 ).

Writ of prohibition will not lie to prevent the Circuit Court from proceeding in an action where a claim of res judicata had been interposed and such an issue is justiciable in the Circuit Court and the remedy of appeal exists. Beachcomber Club, Inc. v. Keith, 402 S.W.2d 689, 1966 Ky. LEXIS 371 ( Ky. 1966 ).

Writ would not issue to prohibit trial judge from proceeding with trial against petitioners in negligent injury action, even though same action was pending before workmen’s compensation board, since trial court had jurisdiction and petitioners had adequate remedy by appeal. Brown v. Knuckles, 413 S.W.2d 899, 1967 Ky. LEXIS 403 ( Ky. 1967 ).

Where summary judgment for defendant was reversed on appeal, allowance of the filing of an amended answer asserting a new defense was reviewable on appeal and prohibition would not lie. Boyd v. Tipton, 419 S.W.2d 140, 1967 Ky. LEXIS 137 ( Ky. 1967 ).

Although the fact that a remedy by way of appeal is available will not prevent the issuance of a writ of prohibition, the Court of Appeals is slow to use its extraordinary supervisory power where there is a right of appeal and will always consider the adequacy of the remedy by appeal. Henderson Electric Co. v. Downing, 437 S.W.2d 761, 1969 Ky. LEXIS 457 ( Ky. 1969 ).

Where the petitioner for an order of prohibition based its petition on its fears concerning its public image among employees and potential employees by reason of a jury trial and its apprehension concerning the expense of litigation, the petitioner’s showing as to the inadequacy of its remedy by appeal was completely insufficient. Henderson Electric Co. v. Downing, 437 S.W.2d 761, 1969 Ky. LEXIS 457 ( Ky. 1969 ).

Where the judge died after submission of the case and the petitioner contended he would be placed in double jeopardy if he were retried, the petitioner had a remedy by appeal, making prohibition inappropriate. Detroy v. Ropke, 447 S.W.2d 105, 1969 Ky. LEXIS 76 ( Ky. 1969 ).

Although the fact that a remedy by way of appeal is available does not preclude the issuance of an order of prohibition, the Court of Appeals is reluctant to review in piecemeal fashion the interlocutory orders of a Circuit Court when the right to appeal is available and will always consider the adequacy of the remedy by appeal. Brougher v. Allen, 462 S.W.2d 187, 1970 Ky. LEXIS 650 ( Ky. 1970 ).

Where a divorce was granted in Illinois with the husband moving to Kentucky and the wife and child to Indiana, the husband had adequate remedy by appeal in a suit to enforce delinquent child support in Kentucky and prohibition was denied. Brougher v. Allen, 462 S.W.2d 187, 1970 Ky. LEXIS 650 ( Ky. 1970 ).

Where the petitioners contended the Circuit Court should have quashed a summons, since they had an adequate remedy by appeal, a writ of prohibition would not lie. Warecke v. Richardson, 468 S.W.2d 795, 1971 Ky. LEXIS 348 ( Ky. 1971 ).

19.— — Inadequate.

Where liquor merchants in liquor license revocation proceeding petitioned county judge to remove himself on ground of prejudice and permit another judge to hear such proceeding, and such county judge refused although such petition was sufficient, Court of Appeals could issue writ under this section prohibiting such judge from hearing such proceeding, since petitioner’s right of appeal from prejudicial, adverse judgment would be inadequate remedy under these circumstances. Rush v. Denhardt, 138 Ky. 238 , 127 S.W. 785, 1910 Ky. LEXIS 64 ( Ky. 1910 ). See Gilman v. Doak, 194 Ky. 21 , 237 S.W. 1069, 1922 Ky. LEXIS 94 ( Ky. 1922 ).

Writ of prohibition was issued to prevent Circuit Court judge from proceeding with trial of ten indictments against petitioner for violations of certain statute, where Court of Appeals found that petitioner was not subject to indictment under such statute, and where petitioner would have no right of appeal if convicted because fine imposed would be less than statutory requirement for appeal. Adams Express Co. v. Young, 184 Ky. 49 , 211 S.W. 407, 1919 Ky. LEXIS 21 ( Ky. 1919 ). But see Carey v. Sampson, 150 Ky. 460 , 150 S.W. 531, 1912 Ky. LEXIS 918 ( Ky. 1912 ).

Action of Circuit Judge in hearing motion and making order while in vacation and not in term, where not authorized by any law, was action outside of and beyond his jurisdiction, from which there was no appeal; therefore, writ of prohibition would issue to restrain such judge from enforcement of such order, and also to direct him to set such order aside. Stewart v. Woods, 193 Ky. 824 , 237 S.W. 657, 1922 Ky. LEXIS 76 ( Ky. 1922 ).

Where liquor merchants in liquor license revocation proceeding petitioned county judge to remove himself on ground of prejudice and permit another judge to hear such proceeding, and such county judge refused although such petition was sufficient, Court of Appeals could issue writ under this section prohibiting such judge from hearing such proceeding, since petitioner’s right of appeal from prejudicial, adverse judgment would be inadequate remedy under these circumstances. Rush v. Denhardt, 138 Ky. 238 , 127 S.W. 785, 1910 Ky. LEXIS 64 ( Ky. 1910 ). See Gilman v. Doak, 194 Ky. 21 , 237 S.W. 1069, 1922 Ky. LEXIS 94 ( Ky. 1922 ).

Appeal would not always afford adequate remedy for purposes of denial of petition for writ of prohibition. Fleece v. Shackelford, 204 Ky. 841 , 265 S.W. 460, 1924 Ky. LEXIS 588 ( Ky. 1924 ).

Where trial judge passed upon question of venue and decided as matter of law that he had jurisdiction to hear case, particular delay and expense incident to appeal from final disposition of case by such judge gave Court of Appeals reason to consider petition for writ of prohibition on its merits, by deciding issue of jurisdiction. Fleece v. Shackelford, 204 Ky. 841 , 265 S.W. 460, 1924 Ky. LEXIS 588 ( Ky. 1924 ).

Where petitioner could appeal from adverse judgment, but meanwhile would suffer such injury as could not be adequately remedied by money damages from favorable result on appeal, such appeal was inadequate remedy, and Court of Appeals had jurisdiction to hear petition for writ of prohibition. Potter v. Gardner, 222 Ky. 487 , 1 S.W.2d 537, 1927 Ky. LEXIS 946 ( Ky. 1927 ).

Since in case of acquittal in criminal case commonwealth was without remedy by appeal if trial judge had erroneously refused to vacate bench, Court of Appeals had jurisdiction under this section to review overruling by such judge of motion requiring him to vacate bench. Smith v. Ward, 256 Ky. 13 , 75 S.W.2d 538, 1934 Ky. LEXIS 345 ( Ky. 1934 ).

Circuit Judge, in making orders with reference to the payment of jurors, is acting within the field of his jurisdiction, and therefore may be restrained by prohibition from paying illegal jury claims, and the fact that there may be a right of appeal from an order directing the payment of a jury claim does not create such an adequate remedy at law as would prevent prohibition, where there is no statutory method of preventing the clerk from paying the claims pending appeal. Meredith v. Sampson, 277 Ky. 263 , 126 S.W.2d 124, 1939 Ky. LEXIS 632 ( Ky. 1939 ).

The Court of Appeals exercised original jurisdiction to prohibit Circuit Court Judge from proceeding with divorce suit, which had not been filed in county of wife’s residence, despite the contention that adequate remedy by appeal existed. Thomas v. Newell, 277 Ky. 712 , 127 S.W.2d 610, 1939 Ky. LEXIS 724 ( Ky. 1939 ).

Court of Appeals issued original writ prohibiting Circuit Court, which did not have venue, from proceeding further in a divorce action, where defendant wife had no remedy by appeal. Brumfield v. Baxter, 307 Ky. 316 , 210 S.W.2d 972, 1948 Ky. LEXIS 736 ( Ky. 1948 ).

Since the order could not be superseded pending appeal, an appeal from an order directing arrest for disobedience to the order of a subpoena is not an adequate remedy and the Court of Appeals will assert its original jurisdiction to issue a writ of prohibition upon proper showing. Kindt v. Murphy, 312 Ky. 395 , 227 S.W.2d 895, 1950 Ky. LEXIS 653 ( Ky. 1950 ).

In divorce proceeding where judgment adverse to wife would not be void but merely erroneous and therefore unappealable, wife’s petition for writ of prohibition would be granted. Weintraub v. Murphy, 240 S.W.2d 594, 1951 Ky. LEXIS 985 ( Ky. 1951 ).

Where judgment debtor was committed to jail for contempt by a Circuit Judge, and debtor subsequently filed petition with county judge for discharge as insolvent debtor, the Circuit Judge was acting beyond his authority in enjoining the county judge from acting on the petition and in citing the county judge for contempt, the damage which might be sustained by the debtor was sufficiently irreparable and his remedy by appeal sufficiently inadequate to justify the Court of Appeals in issuing a writ of prohibition against the Circuit Judge. Smith v. Stahr, 318 S.W.2d 889, 1958 Ky. LEXIS 161 ( Ky. 1958 ).

Court of Appeals will issue writ of prohibition to prevent punishment for contempt of court of petitioners for refusing to answer questions which were not relevant to the issues in the action involved who, as nonparties to the action in the lower court, had no remedy by appeal, for such threatened erroneous action by the lower court constituted a usurpation or abuse of power which would result in a substantial miscarriage of justice, the requisite element of great and irreparable injury justifying exercise of the court’s supervisory power over inferior jurisdictions. Carpenter v. Wells, 358 S.W.2d 524, 1962 Ky. LEXIS 190 ( Ky. 1962 ).

20.— When Issued.

Court of Appeals would exercise its original jurisdiction under former section to prohibit inferior courts in all cases where (1) they were proceeding, or threatening to proceed, out of their jurisdiction, and there would be no remedy by application to some intermediate court; or (2) such courts were exercising, or about to exercise, their jurisdiction erroneously, great injustice and irreparable injury would result therefrom, and there would exist no other adequate remedy by appeal or otherwise. Duffin v. Field, 208 Ky. 543 , 271 S.W. 596, 1925 Ky. LEXIS 327 ( Ky. 1925 ); Kirwan v. Speckman, 313 Ky. 578 , 232 S.W.2d 841, 1950 Ky. LEXIS 908 ( Ky. 1950 ), overruled, Cross v. Wilson, 325 S.W.2d 309, 1959 Ky. LEXIS 44 ( Ky. 1959 ); Chesapeake & O. R. Co. v. Murphy, 314 Ky. 309 , 234 S.W.2d 969, 1950 Ky. LEXIS 1085 ( Ky. 1950 ); Smith v. Shamburger, 314 Ky. 850 , 238 S.W.2d 844, 1951 Ky. LEXIS 823 ( Ky. 1951 ); Hotel & Restaurant Employees Union v. Miller, 240 S.W.2d 576, 1951 Ky. LEXIS 978 ( Ky. 1951 ); Ryherd v. Carter, 240 S.W.2d 602, 1951 Ky. LEXIS 990 (Ky. 1951); Gastineau v. Bradley, 249 S.W.2d 529, 1952 Ky. LEXIS 820 ( Ky. 1952 ); Cadden v. Smith, 264 S.W.2d 71, 1954 Ky. LEXIS 648 ( Ky. 1954 ), overruled, Penrod v. Penrod, 489 S.W.2d 524, 1972 Ky. LEXIS 33 ( Ky. 1972 ); Armstrong v. Bryan, 273 S.W.2d 835, 1954 Ky. LEXIS 1213 ( Ky. 1954 ); Thompson v. Wood, 277 S.W.2d 472, 1955 Ky. LEXIS 469 ( Ky. 1955 ); Kinslow v. Carter, 282 S.W.2d 141, 1955 Ky. LEXIS 228 ( Ky. 1955 ); Childers v. Stephenson, 320 S.W.2d 797, 1959 Ky. LEXIS 251 ( Ky. 1959 ); Taustine v. Thompson, 322 S.W.2d 100, 1959 Ky. LEXIS 292 (Ky. 1959); Musgrave v. Hays, 354 S.W.2d 288, 1962 Ky. LEXIS 37 ( Ky. 1962 ); Massengale v. Warren, 378 S.W.2d 221, 1964 Ky. LEXIS 183 ( Ky. 1964 ); Brown v. Knuckles, 413 S.W.2d 899, 1967 Ky. LEXIS 403 ( Ky. 1967 ).

Although the Court of Appeals has original jurisdiction to issue such writs as necessary against inferior courts, writs of prohibition or mandamus will not be granted unless it appears that an inferior court is proceeding or threatens to proceed in a matter in which it has no jurisdiction and there is no adequate remedy available through application to an intermediate court, or that the inferior court is proceeding erroneously within its jurisdiction and irreparable injury will result for which petitioner has no adequate remedy at law. Lexington v. Cox, 481 S.W.2d 645, 1972 Ky. LEXIS 252 (Ky. Ct. App. 1972).

21.— Judicial Officers.

The Court of Appeals, in the exercise of its power to issue such writs as may be necessary to give it a general control of inferior jurisdictions, will not issue prohibition against a commissioner of a Circuit Court, since he is not a judicial officer. Morgan v. Clements, 153 Ky. 33 , 154 S.W. 370, 1913 Ky. LEXIS 758 ( Ky. 1913 ).

Since former section confined powers of Court of Appeals to issuing writs of prohibition against judicial tribunals, no such writ would be issued against ministerial officers, such as commissioners of courts. Equitable Life Assurance Soc. v. Hardin, 166 Ky. 51 , 178 S.W. 1155, 1915 Ky. LEXIS 634 ( Ky. 1915 ).

Authority of governor to remove public official from office was executive or administrative, not judicial; hence Court of Appeals had no power under former section to control governor’s actions relative thereto by writ of prohibition. Holliday v. Fields, 207 Ky. 462 , 269 S.W. 539, 1925 Ky. LEXIS 114 ( Ky. 1925 ).

Writ of prohibition would not issue to dismiss rule against petitioner, which rule ordered him to transcribe trial notes and furnish transcript to defendant without compensation, where defendant was allowed to appeal in forma pauperis, since even though petitioner was not sworn as official stenographer, he was de facto stenographer and so subject to control and discretion of trial court issuing such rule. Walker v. Burgevin, 220 Ky. 690 , 295 S.W. 997, 1927 Ky. LEXIS 599 ( Ky. 1927 ).

Writ of prohibition may not be issued to prevent a Commonwealth Attorney from serving with a grand jury in a case where he is a subject of its investigation, since he is not in such instance a judicial officer about to wrongfully perform a judicial act, and adequate other remedy exists in that Circuit Judge may and should appoint a substitute to serve. Commonwealth ex rel. Breckinridge v. Wise, 351 S.W.2d 491, 1961 Ky. LEXIS 163 ( Ky. 1961 ).

Order of prohibition under former section would not be issued against nonjudicial litigants. Danville v. Wilson, 395 S.W.2d 583, 1965 Ky. LEXIS 151 ( Ky. 1965 ).

22.Writs.

Former section, authorizing the Court of Appeals to issue such writs as may be necessary to give it a general control of inferior jurisdictions, was held by an equally divided court not to authorize the court to award mandamus to compel a police judge to try persons charged with the sale of liquor on Sunday. Commonwealth ex rel. Barth v. McCann, 123 Ky. 247 , 94 S.W. 645, 29 Ky. L. Rptr. 707 , 1906 Ky. LEXIS 143 ( Ky. 1906 ).

Where one is imprisoned under the judgment of a court, the writ of habeas corpus does not lie for his relief unless the judgment is void, as such writ cannot be substituted for appeal. McLaughlin v. Barr, 191 Ky. 346 , 230 S.W. 304, 1921 Ky. LEXIS 319 ( Ky. 1921 ).

23.— Discretion of Court.

Question of issuance of writ under former section was addressed to prudence of Court of Appeals, and was to be resolved on merits of particular case involved. Gilman v. Doak, 194 Ky. 21 , 237 S.W. 1069, 1922 Ky. LEXIS 94 ( Ky. 1922 ).

The Court of Appeals may refuse to grant extraordinary writs when in its discretion it deems it harmful to grant them. Gosney v. Butler Graded School, 219 Ky. 242 , 292 S.W. 781, 1927 Ky. LEXIS 308 ( Ky. 1927 ).

Issuance of writs to control inferior courts is within the discretion of the Court of Appeals. Schaetzley v. Wright, 271 S.W.2d 885, 1954 Ky. LEXIS 1056 ( Ky. 1954 ).

24.— Established.

Though specific writs are not mentioned here, well-known writs already having an established place in the law, such as mandamus, prohibition, and habeas corpus, are meant. McLaughlin v. Barr, 191 Ky. 346 , 230 S.W. 304, 1921 Ky. LEXIS 319 ( Ky. 1921 ).

25.— Inferior Courts.

Court of Appeals would abuse power vested in it by former section if it were to restrain circuit or other judges from hearing and determining cases which they had jurisdiction to hear and determine, unless such interference were demanded by some very unusual or very extraordinary reason. Rallihan v. Gordon, 176 Ky. 471 , 195 S.W. 783, 1917 Ky. LEXIS 53 ( Ky. 1917 ).

The Court of Appeals has power to issue any established writ for the purpose of exercising a general control over inferior jurisdictions. McLaughlin v. Barr, 191 Ky. 346 , 230 S.W. 304, 1921 Ky. LEXIS 319 ( Ky. 1921 ).

Power of Court of Appeals to issue writs under former section was wholly independent of any question of jurisdiction of inferior courts in question. Gilman v. Doak, 194 Ky. 21 , 237 S.W. 1069, 1922 Ky. LEXIS 94 ( Ky. 1922 ).

Original jurisdiction of Court of Appeals was limited by former section to issuance of necessary writs to inferior courts, and did not include action on original application for order requiring husband-appellee to pay attorney’s fees of wife-appellant on appeal from divorce decree. Kreiger v. Kreiger, 194 Ky. 812 , 241 S.W. 828, 1922 Ky. LEXIS 261 ( Ky. 1922 ).

Since administrative boards are not considered inferior courts, and since the power of the Court of Appeals is to control inferior jurisdictions, the Court of Appeals is without jurisdiction to entertain a petition for the control of actions of the workmen’s compensation board. Maynard v. Workmen's Compensation Board, 210 Ky. 708 , 276 S.W. 812, 1925 Ky. LEXIS 759 ( Ky. 1925 ).

Since State Railroad Commission is not a court of inferior jurisdiction, the Court of Appeals has no jurisdiction to compel it to render an opinion as to matter before it. Payne v. Kentucky R. Com., 216 Ky. 188 , 287 S.W. 560, 1926 Ky. LEXIS 871 ( Ky. 1926 ).

The Constitution does not confer upon the Court of Appeals original jurisdiction to control the actions of administrative agencies or officers, since they are not inferior courts, nor are their authorized actions judicial in nature. Stafford v. Bailey, 282 Ky. 528 , 138 S.W.2d 999, 1940 Ky. LEXIS 201 ( Ky. 1940 ).

The Court of Appeals may exercise the power to control inferior courts under the constitution only by issuing proper writs in specific cases before it. Stonefield v. Commonwealth, 282 Ky. 692 , 139 S.W.2d 752, 1940 Ky. LEXIS 237 ( Ky. 1940 ).

26.— Irreparable Injury.

In the absence of a showing of great and irreparable injury resulting from a denial of jurisdiction by the Court of Appeals, the court lacks jurisdiction to restrain a judgment assessing fines for contempt. Tompkins v. Manning, 205 Ky. 327 , 265 S.W. 830, 1924 Ky. LEXIS 120 ( Ky. 1924 ).

Facts that petitioner might be compelled to suffer inconveniences, delays, and worries of trial, and that he might be imprisoned in absence of ability to execute appeal bond if convicted, were not sufficient to constitute so great and irreparable injuries as to entitle him to apply for writ under former section. Osborn v. Wolfford, 239 Ky. 470 , 39 S.W.2d 672, 1931 Ky. LEXIS 793 ( Ky. 1931 ).

Where inferior court was within its jurisdiction, great and irreparable injury required to confer jurisdiction on Court of Appeals under former section was great and ruinous loss, for which there was no remedy, as inevitable result of failure to succeed in particular case, not mere failure to succeed followed by losses usually suffered by losing litigant and which success might have brought him. Osborn v. Wolfford, 239 Ky. 470 , 39 S.W.2d 672, 1931 Ky. LEXIS 793 ( Ky. 1931 ).

Petitioner’s showing that the judgment of the lower court was in an amount insufficient to afford him, under statute, an appeal is insufficient alone to establish that great and irreparable injury for which there is no other adequate remedy justifying intervention by the Court of Appeals under its original jurisdiction. Auto Finace & Sales Co. v. Northcutt, 277 Ky. 274 , 126 S.W.2d 455, 1939 Ky. LEXIS 653 ( Ky. 1939 ).

In order for the Court of Appeals to assume original jurisdiction, great and irreparable injury must be shown, not merely alleged. Reeves v. Bell, 285 Ky. 300 , 147 S.W.2d 711, 1941 Ky. LEXIS 378 ( Ky. 1941 ).

27.— Judicial Officers.

The Court of Appeals has jurisdiction to issue necessary writs against judicial or quasi-judicial officers and may not therefore direct a sheriff to deliver property seized under attachment, since such act amounts only to the performance of administrative duties by the sheriff. Old Blue Ribbon Distillers, Inc. v. Caldwell, 273 Ky. 378 , 116 S.W.2d 653, 1938 Ky. LEXIS 638 ( Ky. 1938 ).

A circuit clerk is a ministerial and not a judicial or quasi-judicial officer, and the Court of Appeals has no jurisdiction to control his acts by original process. Sandusky v. Alsmiller, 291 Ky. 666 , 165 S.W.2d 342, 1942 Ky. LEXIS 296 ( Ky. 1942 ).

28.— Miscellaneous.

Where bill of exceptions did not correctly show what occurred at trial, appellant could petition Court of Appeals, under former section, to require trial judge to sign true bill of exceptions. Hord v. Commonwealth, 227 Ky. 439 , 13 S.W.2d 244, 1928 Ky. LEXIS 513 ( Ky. 1928 ).

If a Circuit Court alters or sets aside its judgment after it has become final solely upon the record before it when judgment was entered, it would be beyond its jurisdiction, and process would issue from Court of Appeals to prevent such action. Swartz v. Caudill, 279 Ky. 206 , 130 S.W.2d 80, 1939 Ky. LEXIS 264 ( Ky. 1939 ).

Where counsel assigned to appellant were not present at time judgment was entered, appellant sentenced and motion for new trial overruled and he alleged as ground for relief under CR 60.02 that he had been denied assistance of counsel to take appeal, since a motion to vacate or set aside would not be appropriate remedy for unconstitutional denial of right to appeal from the judgment, the court held that as the question was one of first impression they would treat the appeal as tantamount to an application under former section of the constitution for appropriate relief. McIntosh v. Commonwealth, 368 S.W.2d 331, 1963 Ky. LEXIS 47 ( Ky. 1963 ).

29.— Other Adequate Remedy.

A writ will not issue from the Court of Appeals if any other remedy is available. Montgomery v. Viers, 130 Ky. 694 , 114 S.W. 251, 1908 Ky. LEXIS 318 ( Ky. 1908 ). See Commonwealth v. Peter, 136 Ky. 689 , 124 S.W. 896, 1910 Ky. LEXIS 530 ( Ky. 1910 ); McGee v. Weissinger, 147 Ky. 321 , 144 S.W. 20, 1912 Ky. LEXIS 234 ( Ky. 1912 ).

Court of Appeals would not issue writ under former section where demand was based solely on counsel’s conception of remediless error. Gilman v. Doak, 194 Ky. 21 , 237 S.W. 1069, 1922 Ky. LEXIS 94 ( Ky. 1922 ).

In no event would Court of Appeals exercise its power under former section to issue writs, unless failure to do so would result in manifest injustice for which petitioner would have no other remedy. Gilman v. Doak, 194 Ky. 21 , 237 S.W. 1069, 1922 Ky. LEXIS 94 ( Ky. 1922 ).

Where petitioner was indicted under child support statute, such petitioner had adequate remedy and was not entitled to writ under former section where, in addition to usual remedy of appeal, he could avoid all difficulties merely by paying assessed amount for support of his deserted child or children. Osborn v. Wolfford, 239 Ky. 470 , 39 S.W.2d 672, 1931 Ky. LEXIS 793 ( Ky. 1931 ).

The supervisory power vested in the Court of Appeals by former section is designed for use in extraordinary cases where the exigencies are so exceptional that no other remedy is adequate to prevent a miscarriage of justice. Slaughter v. Smith, 316 S.W.2d 364, 1958 Ky. LEXIS 44 ( Ky. 1958 ). See Old Blue Ribbon Distillers, Inc. v. Holbert, 276 Ky. 687 , 125 S.W.2d 253, 1939 Ky. LEXIS 588 ( Ky. 1939 ).

30.— — Appeal.

Issuance of writ under former section was not justifiable on ground that lower court’s ruling was not reviewable by appeal, since right of appeal was matter of legislative discretion and not inherent right. Gilman v. Doak, 194 Ky. 21 , 237 S.W. 1069, 1922 Ky. LEXIS 94 ( Ky. 1922 ).

Even were petitioner’s injuries shown to be so great and irreparable as to entitle him to application for writ under former section, still, remedy of appeal might be adequate, though fraught with delays, inconveniences, postponements, greater financial outlays, and even possible imprisonment. Osborn v. Wolfford, 239 Ky. 470 , 39 S.W.2d 672, 1931 Ky. LEXIS 793 ( Ky. 1931 ).

Inability of defendant in criminal case to execute bond pending appeal does not except case from general rule that appeal furnishes adequate remedy for error of trial court. Manning v. Baxter, 281 Ky. 659 , 136 S.W.2d 1074, 1940 Ky. LEXIS 88 ( Ky. 1940 ).

In original action in Court of Appeals seeking relief against certain orders made in divorce action, award of temporary alimony as sought in answer in that action cannot be granted since questions involved on that issue were appealable. Fitzgerald v. Fitzgerald, 284 Ky. 137 , 143 S.W.2d 1082, 1940 Ky. LEXIS 459 ( Ky. 1940 ).

It was never the intention of former section that the Court of Appeals should interfere with interlocutory orders of trial courts that are proceeding outside, or erroneously within, their jurisdiction when the petitioner has an adequate remedy by appeal. Sheffer v. Speckman, 305 Ky. 627 , 205 S.W.2d 305, 1947 Ky. LEXIS 884 ( Ky. 1947 ).

31.— Requirements in General.

When an inferior court, particularly a Circuit Court, proceeds beyond its jurisdiction, or where there is no adequate remedy by appeal, the Court of Appeals may, in its discretion, issue a writ upon application to prevent usurpation, irreparable injury or injustice. Renshaw v. Cook, 129 Ky. 347 , 111 S.W. 377, 33 Ky. L. Rptr. 860 , 33 Ky. L. Rptr. 895 , 1908 Ky. LEXIS 165 (Ky. Ct. App. 1908).

In applications for writs under former section, each case had to rest upon its own particular and peculiar facts. Osborn v. Wolfford, 239 Ky. 470 , 39 S.W.2d 672, 1931 Ky. LEXIS 793 ( Ky. 1931 ).

Court of Appeals may exercise control by original writ over inferior court, where such court lacks jurisdiction and there is no adequate remedy by appeal. Union Trust Co. v. Garnett, 254 Ky. 573 , 72 S.W.2d 27, 1934 Ky. LEXIS 125 ( Ky. 1934 ).

The Court of Appeals will not issue process to control action of Circuit Courts, except where Circuit Court is proceeding or about to proceed beyond its jurisdiction, or, though acting within its jurisdiction, great and irreparable injury will result to petitioner and no other remedy is open to him. Swartz v. Caudill, 279 Ky. 206 , 130 S.W.2d 80, 1939 Ky. LEXIS 264 ( Ky. 1939 ).

The Court of Appeals does not have original jurisdiction in controlling inferior courts’ actions, unless inferior court is proceeding, or about to proceed, without jurisdiction, or erroneously within its jurisdiction to great and irreparable injury of petitioner before the Court of Appeals and no other adequate remedy exists. Bastian Bros. Co. v. Field, 280 Ky. 727 , 134 S.W.2d 648, 1939 Ky. LEXIS 213 ( Ky. 1939 ).

The supervisory power of Court of Appeals is limited to cases where inferior court proceeds outside of its jurisdiction, or, where possessing jurisdiction, is exercising or about to exercise it erroneously so as to result in irreparable injury for which there is no adequate remedy by appeal or otherwise. Lexington Loose Leaf Tobacco Warehouse Co. v. Coleman, 289 Ky. 277 , 158 S.W.2d 633, 1942 Ky. LEXIS 543 ( Ky. 1942 ).

An original action may not be maintained in the Court of Appeals to obtain relief that could be obtained by appeal from the judgment complained of, unless the consequences are of such a nature that great and irreparable damages would result to petitioner with no adequate remedy at law. Doyle v. Bryson, 289 Ky. 714 , 160 S.W.2d 34, 1942 Ky. LEXIS 634 ( Ky. 1942 ).

Writs would be issued by the Court of Appeals under former section only to control judicial tribunals and in the absence of other adequate remedy. Sandusky v. Alsmiller, 291 Ky. 666 , 165 S.W.2d 342, 1942 Ky. LEXIS 296 ( Ky. 1942 ).

Where an inferior court was proceeding erroneously within its jurisdiction and great and irreparable injury would result from its action and the party injured thereby was without adequate remedy by appeal or otherwise, the Court of Appeals has jurisdiction under former section. Franklin v. Pursiful, 295 Ky. 222 , 173 S.W.2d 131, 1943 Ky. LEXIS 187 ( Ky. 1943 ).

The Court of Appeals entertains original jurisdiction to issue writs only when the inferior court is acting without jurisdiction, or it is acting within its jurisdiction but erroneously, and great and irreparable injury will follow therefrom and the petitioner is without adequate remedy. Smith v. Burnett, 300 Ky. 249 , 188 S.W.2d 480, 1945 Ky. LEXIS 546 ( Ky. 1945 ).

The power vested in Court of Appeals to issue writs to control inferior jurisdictions will be exercised when it appears that substantial injustice will eventuate by any proposed action by inferior court and petitioner will have no other adequate remedy. Stafford v. Bailey, 301 Ky. 155 , 191 S.W.2d 218, 1945 Ky. LEXIS 712 ( Ky. 1945 ). See Commonwealth ex rel. Meredith v. Murphy, 295 Ky. 466 , 174 S.W.2d 681, 1943 Ky. LEXIS 251 ( Ky. 1943 ); Engle v. Miller, 303 Ky. 731 , 199 S.W.2d 123, 1947 Ky. LEXIS 539 ( Ky. 1947 ); Jones v. Tartar, 308 Ky. 813 , 215 S.W.2d 955, 1948 Ky. LEXIS 1046 ( Ky. 1948 ); Farmers Nat'l Bank v. Speckman, 312 Ky. 106 , 226 S.W.2d 315, 1949 Ky. LEXIS 1256 ( Ky. 1949 ); Smith v. Shamburger, 314 Ky. 850 , 238 S.W.2d 844, 1951 Ky. LEXIS 823 ( Ky. 1951 ); Gastineau v. Bradley, 249 S.W.2d 529, 1952 Ky. LEXIS 820 ( Ky. 1952 ); Cadden v. Smith, 264 S.W.2d 71, 1954 Ky. LEXIS 648 ( Ky. 1954 ), overruled, Penrod v. Penrod, 489 S.W.2d 524, 1972 Ky. LEXIS 33 ( Ky. 1972 ); Armstrong v. Bryan, 273 S.W.2d 835, 1954 Ky. LEXIS 1213 ( Ky. 1954 ); Thompson v. Wood, 277 S.W.2d 472, 1955 Ky. LEXIS 469 ( Ky. 1955 ); Childers v. Stephenson, 320 S.W.2d 797, 1959 Ky. LEXIS 251 ( Ky. 1959 ).

Court of Appeals will exercise original jurisdiction in granting writs directed to inferior courts when an inferior court is acting without jurisdiction, or is acting erroneously within its jurisdiction in such manner that great and irreparable injury will result and petitioner is without adequate remedy by appeal or otherwise. Byrd v. Maddox, 313 Ky. 815 , 233 S.W.2d 990, 1950 Ky. LEXIS 990 ( Ky. 1950 ).

The court has consistently adhered to a principle of law that it will issue a writ only when the inferior court is acting without jurisdiction or it is acting within its jurisdiction, but erroneously, and great and irreparable injury will result therefrom and the petitioner is without adequate remedy by appeal or otherwise. Smith v. Shamburger, 314 Ky. 850 , 238 S.W.2d 844, 1951 Ky. LEXIS 823 ( Ky. 1951 ).

Court of Appeals will exercise its general supervisory jurisdiction conferred over inferior courts in cases in which no appeal can be taken, where injustice may be prevented, where great and irreparable injury may result, and where there is no other adequate remedy. Weintraub v. Murphy, 240 S.W.2d 594, 1951 Ky. LEXIS 985 ( Ky. 1951 ).

When General Assembly has denied the right of appeal from judgments concerning a designated subject, it is proper to assume that they intended to deny any review of ordinary or routine errors of the trial court incurred in the entering of such judgments, upon the theory that the nature of the subject was not such as to warrant resort to the highest court; therefore, there must be some error of an extraordinary nature, resulting in an abuse of the judicial process or constituting a miscarriage of justice or there must be some misuse or usurpation of authority by lower court before the appellate court will exercise its constitutional power to control inferior jurisdictions. Schaetzley v. Wright, 271 S.W.2d 885, 1954 Ky. LEXIS 1056 ( Ky. 1954 ).

Applied in

Cited:

Smith v. Commonwealth, 567 S.W.2d 304, 1978 Ky. LEXIS 3 69 ( Ky. 1978 ); Ash v. Security Nat’l Ins. Co., 574 S.W.2d 346, 1978 Ky. App. LEXIS 625 (Ky. Ct. App. 1978); Royce v. Commonwealth, 577 S.W.2d 615, 1979 Ky. LEXIS 221 ( Ky. 1979 ); Long v. Judicial Retirement & Removal Com., 610 S.W.2d 614, 1980 Ky. LEXIS 28 7 ( Ky. 1980 ); Francis v. Taylor, 593 S.W.2d 514, 1980 Ky. LEXIS 1 95 ( Ky. 1980 ); Board of Education v. Independent Bd. of Education, 681 S.W.2d 429, 1984 Ky. App. LEXIS 497 (Ky. Ct. App. 1984); Woodward v. Commonwealth, 949 S.W.2d 599, 1997 Ky. LEXIS 75 ( Ky. 1997 ); Coleman v. Commonwealth, 100 S.W.3d 745, 2002 Ky. LEXIS 247 ( Ky. 2002 ); Adkins v. Commonwealth, 96 S.W.3d 779, 2003 Ky. LEXIS 1 3 ( Ky. 2003 ); Commonwealth v. Vaughn, 117 S.W.3d 109, 2003 Ky. App. LEXIS 229 (Ky. Ct. App. 2003); Florence v. Commonwealth, 120 S.W.3d 699, 2003 Ky. LEXIS 182 ( Ky. 2003 ); Dalton v. Fortner, 125 S.W.3d 316, 2003 Ky. App. LEXIS 281 (Ky. Ct. App. 2003); Muncy v. Commonwealth, 132 S.W.3d 845, 2004 Ky. LEXIS 89 ( Ky. 2004 ); Hoskins v. Maricle, 150 S.W.3d 1, 2004 Ky. LEXIS 196 ( Ky. 2004 ); Shabazz v. Commonwealth, 153 S.W.3d 806, 2005 Ky. LEXIS 1 ( Ky. 2005 ); Bryant v. Commonwealth, 199 S.W.3d 169, 2006 Ky. LEXIS 192 ( Ky. 2006 ); Brooks v. Commonwealth, 217 S.W.3d 219, 2007 Ky. LEXIS 65 ( Ky. 2007 ); Frazier v. Morsey, Inc., — S.W.3d —, 2007 Ky. App. LEXIS 17 (Ky. Ct. App. 2007); Major v. Commonwealth, 275 S.W.3d 706, 2009 Ky. LEXIS 3 42 ( Ky. 2009 ); Parrish v. Commonwealth, 272 S.W.3d 161, 2008 Ky. LEXIS 338 ( Ky. 2008 ); Sanderson v. Commonwealth, 291 S.W.3d 610, 2009 Ky. LEXIS 96 ( Ky. 2009 ); Sanders v. Commonwealth, — S.W.3d —, 2009 Ky. LEXIS 142 (Ky. 2009); McCloud v. Commonwealth, 286 S.W.3d 780, 2009 Ky. LEXIS 152 (Ky. 2009); Delahanty v. Commonwealth Ex Rel. Maze, 295 S.W.3d 136, 2009 Ky. App. LEXIS 124 (Ky. Ct. App. 2009); Ballard v. Commonwealth, 320 S.W.3d 69, 2010 Ky. LEXIS 206 ( Ky. 2010 ); Barker v. Commonwealth, 341 S.W.3d 112, 2011 Ky. LEXIS 88 ( Ky. 2011 ); Knox v. Commonwealth, 361 S.W.3d 891, 2012 Ky. LEXIS 28 ( Ky. 2012 ); Smith v. Commonwealth, 361 S.W.3d 908, 2012 Ky. LEXIS 29 ( Ky. 2012 ); Steward v. Commonwealth, 397 S.W.3d 881, 2012 Ky. LEXIS 202 (Ky. 2012); Windstream Ky. West, LLC v. Ky. PSC, 362 S.W.3d 357, 2012 Ky. App. LEXIS 15 (Ky. Ct. App. 2012); Johnson v. Commonwealth, 412 S.W.3d 157, 2013 Ky. LEXIS 365 ( Ky. 2013 ); Graham v. Commonwealth, 571 S.W.3d 575, 2019 Ky. LEXIS 143 ( Ky. 2019 ); Robinson v. Commonwealth, 2022 Ky. LEXIS 3 (Ky. Jan. 20, 2022).

Decisions Under Former Section

Compiler’s Notes. The following annotations were decided under former § 110 which dealt with jurisdiction of the former Supreme Court which was styled the Court of Appeals.

Opinions of Attorney General.

The authority to determine job assignments and work shifts relating to deputy circuit clerks is under the immediate authority of the circuit clerk, subject to any applicable rules or requirements coming from the Supreme Court, or the chief justice as the executive head of the Court of Justice, or the administrative office of the courts with the approval of the Supreme Court. OAG 80-646 .

District judges may appoint members of foster care citizen review boards in the judge’s judicial district as provided in KRS 620.190 . OAG 94-5 .

Research References and Practice Aids

Cross-References.

Administrative office of courts, KRS 27A.050 , 27A.060 .

Delegation of functions by Chief Justice, KRS 27A.020 .

Interpreters, KRS 30A.400 to 30A.435 .

Judicial council, membership, functions, meetings, compensation and expenses, KRS 27A.100 to 27A.130 .

Judicial retirement system for judges, KRS 21.345 to 21.570 .

Supreme Court, statutory procedure, KRS Ch. 21A.

Kentucky Bench & Bar.

An Overview of Kentucky’s New Court System, Vol. 41, No. 2, April 1977 Ky. Bench & B. 13.

Pennington, Regionalization of Kentucky’s Trial Courts, Vol. 46, No. 3, July 1982, Ky. Bench & Bar 19.

Kentucky Law Journal.

Notes, An Analysis of the Question of County Jail Reform in Kentucky, 65 Ky. L.J. 130 (1976-77).

Kentucky Law Survey, Garvey and Doutt, Civil Procedure, 68 Ky. L.J. 529 (1979-1980).

Kentucky Law Survey, Collier, Criminal Procedure, 68 Ky. L.J. 655 (1979-1980).

Note, Judicial v. Legislative Power in Kentucky: A “Comity” of Errors, 71 Ky. L.J. 829 (1982-83).

Northern Kentucky Law Review.

Wintersheimer, State Constitutional Law Survey, 21 N. Ky. L. Rev. 257 (1994).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Writ of Prohibition, § 9.00.

The Court of Appeals

§ 111. Composition — Jurisdiction — Administration — Panels.

  1. The Court of Appeals shall consist initially of fourteen judges, an equal number to be selected from each Supreme Court district. The number of judges thereafter shall be determined from time to time by the General Assembly upon certification of necessity by the Supreme Court.
  2. The Court of Appeals shall have appellate jurisdiction only, except that it may be authorized by rules of the Supreme Court to review directly decisions of administrative agencies of the Commonwealth, and it may issue all writs necessary in aid of its appellate jurisdiction, or the complete determination of any cause within its appellate jurisdiction. In all other cases, it shall exercise appellate jurisdiction as provided by law.
  3. The judges of the Court of Appeals shall elect one of their number to serve as Chief Judge for a term of four years. The Chief Judge shall exercise such authority and perform such duties in the administration of the Court of Appeals as are prescribed in this section or as may be prescribed by the Supreme Court.
  4. The Court of Appeals shall divide itself into panels of not less than three judges. A panel may decide a cause by the concurring vote of a majority of its judges. The Chief Judge shall make assignments of judges to panels. The Court of Appeals shall prescribe the times and places in the Commonwealth at which each panel shall sit.

Compiler’s Notes.

The general assembly in 1974 proposed (Acts 1974, ch. 84, §§ 1-3) the repeal of sections 109 to 139, 141 and 143 of the Constitution and the substitution in lieu thereof new sections 109-124. This amendment was ratified by the voters at the regular election in November, 1975 and became effective January 1, 1976.

For initial terms of office, filling of vacancies, and disposition of pending cases, see compiler’s notes, Ky. Const., § 109.

NOTES TO DECISIONS

1.Writ of Mandamus.

The action of the Court of Appeals in issuing a writ of mandamus was within its constitutional powers to implement or aid its appellate jurisdiction. Francis v. Taylor, 593 S.W.2d 514, 1980 Ky. LEXIS 195 ( Ky. 1980 ).

Intermediate appellate court erred in issuing a writ of mandamus directing a trial court to vacate its adoption of a master’s report, which found that the enforcement of a forum selection clause, requiring the arbitration of disputes between a corporation and two (2) of its sales representatives in Washington, would result in a manifest injustice; the master correctly found that: (1) the choice of forum clause was freely negotiated and that the enforcement of it did not contravene the public policy of Kentucky; (2) Kentucky had more than a minimal interest in the action insofar as it involved two (2) of its citizens and a majority of the key witnesses were residents; (3) Kentucky had the most significant relationship to the transactions; and (4) litigation in Washington would be the “death knoll” of the action. Wilder v. Absorption Corp., 107 S.W.3d 181, 2003 Ky. LEXIS 150 ( Ky. 2003 ).

Mother’s petition for a writ of mandamus under Ky. Const., §§ 110 and 111 seeking an order to the Kentucky Administrative Office of the Courts (AOC) to reimburse the mother for transcription costs incurred in an in forma pauperis appeal was denied as: (1) KRS 453.190(1) contained no language requiring the AOC to pay for transcripts for an appeal; (2) to order the AOC to pay would violate the separation of powers doctrine; (3) there was no irreparable injury or great injustice as the trial court offered to permit the parties to submit an agreed statement of facts as contemplated by CR 75.07, but the parties refused; and (4) the mother had an adequate remedy at law in an appeal to the intermediate appellate court. Martin v. Admin. Office of the Courts, 107 S.W.3d 212, 2003 Ky. LEXIS 142 ( Ky. 2003 ).

Writ of mandamus was an appropriate remedy when the trial court had denied the inmate’s request to recover portions of the file kept by trial counsel so that the inmate could review the file for his pending proceeding under RCr 11.42, because a direct appeal would not be adequate to address the issues presented by the inmate, the inmate had shown that the trial court was acting erroneously, and the inmate would be subject to irreparable harm if he were foreclosed from reviewing his file as part of his claim for post-conviction relief. Hiatt v. Clark, 194 S.W.3d 324, 2006 Ky. LEXIS 154 ( Ky. 2006 ).

2.Checks and Balances.

The constitutional check-and-balance relationship between the legislative and judicial branches of the government exists by virtue of Const., § 110, this section, Const., §§ 112, 113, and § 120. Ex parte Auditor of Public Accounts, 609 S.W.2d 682, 1980 Ky. LEXIS 274 ( Ky. 1980 ).

3.Declaratory Judgment.

The Court of Appeals has no authority to consider an original action for a declaratory judgment, because its jurisdiction is limited by subsection (2) of this section to appellate jurisdiction only, and, under KRS 418.040 , the circuit court, not the Court of Appeals is the appropriate forum in which to seek a declaration of rights. Courier-Journal & Louisville Times Co. v. Peers, 747 S.W.2d 125 ( Ky. 1988 ).

4.Jurisdiction.

Subsection (2) of this section does not modify or limit Const., § 115 and is nothing more than an exception to the Court of Appeals’ appellate jurisdiction. Vessels v. Brown-Forman Distillers Corp., 793 S.W.2d 795, 1990 Ky. LEXIS 24 ( Ky. 1990 ), modified, 1990 Ky. LEXIS 83 (Ky. Sept. 6, 1990).

Appellate court was not authorized by the Kentucky Constitution or statute to consider an appeal from an interlocutory order denying defendant immunity under this section because this section did not include a provision for allowing such an appeal. Commonwealth v. Farmer, 423 S.W.3d 690, 2014 Ky. LEXIS 17 ( Ky. 2014 ).

5.Writ of Prohibition.

Once grand jury, for whose benefit documents were sought, was discharged by the Circuit Court, the writ of prohibition granted by the Court of Appeals lost its character as a “writ necessary in aid of [the Court of Appeals’] appellate jurisdiction.” Commonwealth v. Hughes, 873 S.W.2d 828, 1994 Ky. LEXIS 41 ( Ky. 1994 ).

Appellate court properly granted a lessee’s petition for a writ of prohibition of the first class—thereby vacating the circuit court’s denial of its motion to dismiss the lessors’ claim for breach of contract—because the challenged writ action was correctly initiated in the appellate court since none of the lessors satisfied the amount-in-controversy requirement prescribed by the legislature or met the court’s jurisdictional requirement in order to certify the class, and, while the lessors sought “legal and equitable remedies,” their single cause of action was breach of contract, which was regularly adjudicated in the district court. Imhoff v. House, 2021 Ky. LEXIS 307 (Ky. Aug. 26, 2021).

Cited in:

Middle States Coal Co. v. Cornett, 584 S.W.2d 593, 1978 Ky. App. LEXIS 681 (Ky. Ct. App. 1978); Lamar v. Office of Sheriff, 669 S.W.2d 27, 1984 Ky. App. LEXIS 499 (Ky. Ct. App. 1984); Graham v. Mills, 694 S.W.2d 698, 1985 Ky. LEXIS 236 ( Ky. 1985 ); Woodward v. Commonwealth, 949 S.W.2d 599, 1997 Ky. LEXIS 75 ( Ky. 1997 ); Hoskins v. Maricle, 150 S.W.3d 1, 2004 Ky. LEXIS 196 ( Ky. 2004 ); Delahanty v. Commonwealth Ex Rel. Maze, 295 S.W.3d 136, 2009 Ky. App. LEXIS 124 (Ky. Ct. App. 2009); Ballard v. Commonwealth, 320 S.W.3d 69, 2010 Ky. LEXIS 206 ( Ky. 2010 ); Commonwealth v. Carman, 2015 Ky. LEXIS 66 (Feb. 19, 2015).

Research References and Practice Aids

Cross-References.

Appeal procedures, KRS 22A.020 .

Appellate review procedures, KRS 22A.060 .

Court of Appeals, KRS ch. 22A.

Districts, KRS 22A.010 .

Facilities, KRS 22A.030 .

Interpreters, KRS 30A.400 to 30A.435 .

Judgments, reversal or modification, KRS 22A.060 .

Judicial council, membership, functions, meetings, compensation and expenses, KRS 27A.100 to 27A.130 .

Judicial retirement system for judges, KRS 21.345 to 21.570 .

Jurisdiction, KRS 22A.020 .

Mandates, enforcement, KRS 22A.050 .

Number of judges, KRS 22A.010 .

Process, KRS 22A.070 .

Kentucky Bench & Bar.

An Overview of Kentucky’s New Court System, Vol. 41, No. 2, April 1977 Ky. Bench & B. 13.

Kentucky Law Journal.

Kentucky Law Survey, Garvey and Doutt, Civil Procedure, 68 Ky. L.J. 529 (1979-1980).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Writ of Prohibition, § 9.00.

The Circuit Court

§ 112. Location — Circuits — Composition — Administration — Jurisdiction.

  1. Circuit Court shall be held in each county.
  2. The Circuit Court districts existing on the effective date of this amendment to the Constitution shall continue under the name “Judicial Circuits,” the General Assembly having power upon certification of the necessity therefor by the Supreme Court to reduce, increase or rearrange the judicial districts. A judicial circuit composed of more than one county shall be as compact in form as possible and of contiguous counties. No county shall be divided in creating a judicial circuit.
  3. The number of circuit judges in each district existing on the effective date of this amendment shall continue, the General Assembly having power upon certification of the necessity therefor by the Supreme Court, to change the number of circuit judges in any judicial circuit.
  4. In a judicial circuit having only one judge, he shall be the chief judge. In judicial circuits having two or more judges, they shall select biennially a chief judge, and if they fail to do so within a reasonable time, the Supreme Court shall designate the chief judge. The chief judge shall exercise such authority and perform such duties in the administration of his judicial circuit as may be prescribed by the Supreme Court. The Supreme Court may provide by rules for administration of judicial circuits by regions designated by it.
  5. The Circuit Court shall have original jurisdiction of all justiciable causes not vested in some other court. It shall have such appellate jurisdiction as may be provided by law.
  6. The Supreme Court may designate one or more divisions of Circuit Court within a judicial circuit as a family court division. A Circuit Court division so designated shall retain the general jurisdiction of the Circuit Court and shall have additional jurisdiction as may be provided by the General Assembly.

History. Repeal and reenacment, proposed by Acts 1974, ch. 84, § 1, ratified November 4, 1975, effective January 1, 1976; amendment, proposed by Acts 2001, ch. 163, § 1, ratified November 2002.

Compiler’s Notes.

This section was amended by the 2001 proposal of the General Assembly (Acts 2001, ch. 163, § 1) which was ratified by the voters at the regular election on November 5, 2002. Prior to its amendment, this section read:

“(1) Circuit Court shall be held in each county.

“(2) The Circuit Court districts existing on the effective date of this amendment to the Constitution shall continue under the name ‘Judicial Circuits,’ the General Assembly having power upon certification of the necessity therefor by the Supreme Court to reduce, increase or rearrange the judicial districts. A judicial circuit composed of more than one county shall be as compact in form as possible and of contiguous counties. No county shall be divided in creating a judicial circuit.

“(3) The number of circuit judges in each district existing on the effective date of this amendment shall continue, the General Assembly having power upon certification of the necessity therefor by the Supreme Court, to change the number of circuit judges in any judicial circuit.

“(4) In a judicial circuit having only one judge, he shall be the chief judge. In judicial circuits having two or more judges, they shall select biennially a chief judge, and if they fail to do so within a reasonable time, the Supreme Court shall designate the chief judge. The chief judge shall exercise such authority and perform such duties in the administration of his judicial circuit as may be prescribed by the Supreme Court. The Supreme Court may provide by rules for administration of judicial circuits by regions designated by it.

“(5) The Circuit Court shall have original jurisdiction of all justiciable causes not vested in some other court. It shall have such appellate jurisdiction as may be provided by law.”

The General Assembly in 1974 proposed (Acts 1974, ch. 84, §§ 1-3) the repeal of sections 109 to 139, 141 and 143 of the Constitution and the substitution in lieu thereof new sections 109-124. This amendment was ratified by the voters at the regular election in November, 1975 and became effective January 1, 1976.

For initial terms of office see compiler’s note, Const., § 109.

Legislative Research Commission Note.

(11/15/02). 2001 Ky. Acts ch. 163, which contained the text of the amendment to this section that was ratified on November 5, 2002, also contained sec. 2, which read as follows:

NOTES TO DECISIONS

1.Jurisdiction.

The Circuit Court can have no more jurisdiction to issue a declaratory judgment than to issue a writ of mandamus or prohibition against the Supreme Court or against its members and administrative staff in their official capacities. Ex parte Farley, 570 S.W.2d 617, 1978 Ky. LEXIS 390 ( Ky. 1978 ).

Where public advocate brought declaratory judgment action to force inspection of records compiled for purpose of Supreme Court review of death sentences, jurisdiction was vested exclusively in Supreme Court, not Circuit Court. Ex parte Farley, 570 S.W.2d 617, 1978 Ky. LEXIS 390 ( Ky. 1978 ).

Where jurisdiction initially attached in the Circuit Court, it was not lost when that court, during the course of the trial, dismissed one felony count of a three (3) count indictment; jurisdiction having attached by reason of the felony charge was not divested by its final determination. Broughton v. Commonwealth, 596 S.W.2d 22, 1979 Ky. App. LEXIS 520 (Ky. Ct. App. 1979).

Where a grand jury returned an indictment charging defendant with burglary in the first degree and persistent felony offender in the first degree, the issuance of the indictment on the felony charge terminated the jurisdiction in the District court and placed the sole jurisdiction in the Circuit Court; therefore, the district court had no jurisdiction to accept the defendant’s plea to a reduced charge and there was no double jeopardy when the defendant was subsequently arraigned in the Circuit Court. Commonwealth v. Hamblem, 628 S.W.2d 345, 1981 Ky. App. LEXIS 315 (Ky. Ct. App. 1981).

Special Circuit Judge could not enforce his judgment accepting defendant’s plea of guilty of charge of driving under the influence (DUI) since such charge had not been consolidated with felony charge of possession of cocaine and, since district court and not Circuit Court had jurisdiction. Jackson v. Commonwealth, 806 S.W.2d 643, 1991 Ky. LEXIS 34 ( Ky. 1991 ).

Where a misdemeanor offense and a felony offense are joined in a single indictment, after the Commonwealth dismisses the felony charge then the trial court should immediately remand the misdemeanor to the District Court. Jackson v. Commonwealth, 806 S.W.2d 643, 1991 Ky. LEXIS 34 ( Ky. 1991 ).

When representation by public defender for suspect in police custody had been requested by family member, there existed justiciable cause, by way of the right created by RCr 2.14, sufficient to invoke the jurisdiction of the state Circuit Court, even prior to an indictment, under subsection (5) of this section and KRS 23A.010(1) to issue an order requiring police officers to cease questioning of the suspect and allow access to an attorney. West v. Commonwealth, 887 S.W.2d 338, 1994 Ky. LEXIS 102 ( Ky. 1994 ), overruled in part, Commonwealth v. Terrell, 464 S.W.3d 495, 2015 Ky. LEXIS 69 ( Ky. 2015 ).

While Ky. Const., § 112 granted the Circuit Court original jurisdiction of all justiciable causes that were not already vested in another court, that provision did not give the Circuit Court jurisdiction over non-justiciable claims. A legal malpractice case was not ripe when filed since damages were not fixed and non-speculative, and since the federal class action cases on which the malpractice relied were not final when the action was filed; therefore, the Circuit Court lacked subject matter jurisdiction to enter summary judgment orders and the case had to, instead, be dismissed without prejudice. Doe v. Golden & Walters, PLLC, 173 S.W.3d 260, 2005 Ky. App. LEXIS 197 (Ky. Ct. App. 2005).

Where a Kansas child support decree was never registered in Kentucky under the Kentucky Uniform Interstate Family Support Act, KRS 407.5101 et seq., and no motion to modify child support was ever filed, a mother’s motion in a Kentucky court to transfer jurisdiction over child support issues to Kentucky was not justiciable under Ky. Const. § 112(5) because it made no substantive request for relief. Nordike v. Nordike, 231 S.W.3d 733, 2007 Ky. LEXIS 165 ( Ky. 2007 ).

Because a Circuit Court had subject matter jurisdiction over a partition action pursuant to the grant of general jurisdiction under Ky. Const. § 112(5), any error associated with the application of KRS 381.136 rendered the judgment voidable, not void. Hisle v. Lexington-Fayette Urban County Gov't, 258 S.W.3d 422, 2008 Ky. App. LEXIS 27 (Ky. Ct. App. 2008).

Circuit court had jurisdiction to hear appellant property owners’ defamation claims because no personal jurisdiction challenge was raised and the circuit court had subject matter jurisdiction over all common law claims pursuant to Ky. Const. § 112(5). Norton v. Perry, 2012 Ky. App. LEXIS 208 (Ky. Ct. App. Oct. 12, 2012), op. withdrawn, sub. op., 2013 Ky. App. LEXIS 10 (Ky. Ct. App. Jan. 11, 2013).

Court of appeals erred in granting a health care plan's petition for a writ prohibiting the circuit court from enforcing an order staying discovery in declaratory judgment litigation because the circuit court had subject matter jurisdiction since the award of partial summary judgment and the appeal did not implicate whether it had authority to hear the case. the underlying claims related to the plan's action for ascertaining its right to an early termination of a Medicaid contract. Commonwealth v. Wingate, 460 S.W.3d 843, 2015 Ky. LEXIS 16 ( Ky. 2015 ), modified, 2015 Ky. LEXIS 1703 (Ky. May 14, 2015).

Court of Appeals erred in affirming a trial court’s order setting aside a default judgment in favor of a law firm against a former client because the law firm’s counterclaim seeking enforcement of a promissory note was valid and justiciable within the meaning of the state constitution, notwithstanding that it was filed approximately 3-1/2 months prior to the promissory note’s due date, where, by filing his complaint, the client placed the question of enforceability of the note in play. Bingham Greenebaum Doll, LLP v. Lawrence, 567 S.W.3d 127, 2018 Ky. LEXIS 527 ( Ky. 2018 ).

As a matter of first impression that the existence of a plaintiff’s standing is a constitutional requirement to prosecute any action in the courts of the Commonwealth, adopting the United States Supreme Court’s test for standing as espoused in Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561 (1992). Cabinet for Health & Family Servs. v. Sexton, 566 S.W.3d 185, 2018 Ky. LEXIS 374 ( Ky. 2018 ), cert. denied, 140 S. Ct. 448, 205 L. Ed. 2d 252, 2019 U.S. LEXIS 6570 (U.S. 2019).

All Kentucky courts have the constitutional duty to ascertain the issue of constitutional standing, acting on their own motion, to ensure that only justiciable causes proceed in court, because the issue of constitutional standing is not waivable. This holding conforms to the general understanding of constitutional standing as a predicate for a court to hear a case and the ability of a court, acting on its own motion, to address that issue. Cabinet for Health & Family Servs. v. Sexton, 566 S.W.3d 185, 2018 Ky. LEXIS 374 ( Ky. 2018 ), cert. denied, 140 S. Ct. 448, 205 L. Ed. 2d 252, 2019 U.S. LEXIS 6570 (U.S. 2019).

At bottom, for a party to sue in Kentucky, the initiating party must have the requisite constitutional standing to do so, defined by three requirements: (1) injury, (2) causation, and (3) redressability. In other words, a plaintiff must allege personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief. A litigant must demonstrate that it has suffered a concrete and particularized injury that is either actual or imminent. The injury must be distinct and palpable, and not abstract or conjectural or hypothetical. The injury must be fairly traceable to the challenged action, and relief from the injury must be likely to follow from a favorable decision. Cabinet for Health & Family Servs. v. Sexton, 566 S.W.3d 185, 2018 Ky. LEXIS 374 ( Ky. 2018 ), cert. denied, 140 S. Ct. 448, 205 L. Ed. 2d 252, 2019 U.S. LEXIS 6570 (U.S. 2019).

While the justiciable causes language only appears in Ky. Const. § 112(5), which specifically and only enumerates Kentucky circuit-court jurisdiction, the standing doctrine applies to cases brought before all Kentucky courts. Cabinet for Health & Family Servs. v. Sexton, 566 S.W.3d 185, 2018 Ky. LEXIS 374 ( Ky. 2018 ), cert. denied, 140 S. Ct. 448, 205 L. Ed. 2d 252, 2019 U.S. LEXIS 6570 (U.S. 2019).

Medicaid beneficiary lacked standing to challenge a decision denying reimbursement to a hospital as she had no financial interest in the dispute, she had not alleged a lack of needed and proper care, and any purported interest in maintaining the Medicaid system’s integrity was insufficient to satisfy standing. Cabinet for Health & Family Servs. v. Sexton, 566 S.W.3d 185, 2018 Ky. LEXIS 374 ( Ky. 2018 ), cert. denied, 140 S. Ct. 448, 205 L. Ed. 2d 252, 2019 U.S. LEXIS 6570 (U.S. 2019).

2.— Misdemeanor Offenses.

After an indictment has been returned incorporating misdemeanor offenses with related felony offenses, the misdemeanor offenses may be tried in the Circuit Court along with the felony offenses. Keller v. Commonwealth, 594 S.W.2d 589, 1980 Ky. LEXIS 196 ( Ky. 1980 ).

3.— Family Court.

Trial court erred in treating a father’s exceptions to a commissioner’s child custody recommendations as a CR 59.05 motion and by transferring the case to a Family Court because the recommendation was not a final judgment; rather, the trial court should have simply reviewed the exceptions, conducted a hearing, and entered a final judgment adjudicating the custody issue. The Family Court’s jurisdiction over domestic issues was not intended to be exclusive. Pursley v. Pursley, 242 S.W.3d 346, 2007 Ky. App. LEXIS 457 (Ky. Ct. App. 2007).

Where the estate of a decedent filed a complaint for determination of paternity of a child allegedly fathered by the decedent, although the Family Court did not have jurisdiction over a paternity action under KRS 406.021 or KRS 406.180 , as the estate was not the proper party to file such a suit, and neither the child nor mother ever lived in the United States, the court had jurisdiction under KRS 418.040 to enter a declaratory judgment as to the child’s paternity. Uninsured Employers' Fund v. Bradley, 244 S.W.3d 741, 2007 Ky. App. LEXIS 403 (Ky. Ct. App. 2007).

Court of appeals erred in holding that a family court lost jurisdiction to issue a domestic violence order on the ground that it failed to conduct a hearing within 14 days after the issuance of an emergency protective order because the family court’s failure was, at most, the erroneous exercise of subject matter jurisdiction; it was not a lack of subject matter jurisdiction under Ky. Const. § 112(6). Daugherty v. Telek, 366 S.W.3d 463, 2012 Ky. LEXIS 73 ( Ky. 2012 ).

Former members of a public board had constitutional standing to raise violations of the Open Meetings Act with respect to a county fiscal court’s action in removing them and the subsequent action by the board approving a lease termination agreement because they clearly alleged distinct and palpable injuries caused by the actions of the fiscal court and the board for which they would be entitled to a remedy under the Act; any action taken by the fiscal court in violation of the Act was voidable. Lincoln Trail Grain Growers Ass'n v. Meade Cty. Fiscal Court, 2021 Ky. App. LEXIS 89 (Ky. Ct. App. Aug. 6, 2021).

4.— Lesser Included Offenses.

District Court has no power to dispose of any charges which constitute lesser included offenses of felony charged in indictment. Jackson v. Commonwealth, 633 S.W.2d 61, 1982 Ky. LEXIS 246 ( Ky. 1982 ).

5.Checks and Balances.

The constitutional check-and-balance relationship between the legislative and judicial branches of the government exists by virtue of Const., §§ 110, 111, this section, § 113, and § 120. Ex parte Auditor of Public Accounts, 609 S.W.2d 682, 1980 Ky. LEXIS 274 ( Ky. 1980 ).

6.Special Judges.

Only the Chief Justice has the authority to appoint retired judges as special judges; therefore error occurred when chief regional Circuit Judge appointed retired judge as special judge in prosecution. Jacobs v. Commonwealth, 947 S.W.2d 416, 1997 Ky. App. LEXIS 7 (Ky. Ct. App. 1997).

7.Creation of New Courts.

The creation of any court is vested only in the Legislature by virtue of this section and Const., § 113, and new District or Circuit Courts can be established only upon a certification of necessity by the Supreme Court of Kentucky. Kuprion v. Fitzgerald, 888 S.W.2d 679, 1994 Ky. LEXIS 135 ( Ky. 1994 ).

8.Trying Child as Adult.

KRS 635.020(4), as amended in 1994 to require a child over the age of 14 being charged with a felony involving the use of a firearm be tried in Circuit Court as an adult defendant, does not violate this section and Const., § 113, and the provisions of KRS 635.020(4) can be harmonized with the provisions of KRS 640.010 . (Decision prior to amendment of KRS 635.020(4), effective July 15, 1997.) Commonwealth v. Halsell, 934 S.W.2d 552, 1996 Ky. LEXIS 119 ( Ky. 1996 ).

9.Associational Standing.

First two prongs of the test for associational standing are constitutionally mandated and absolute prerequisites to establishing associational standing, and while courts should apply the third prong of the test, they should do so on a case-by-case basis; the company proved the composition of its membership, the trial court found the evidence of the company’s general purposes satisfactory, and the Commonwealth treated the domain names as a group and the company played an integral part in the litigation, such that it established associational standing. Interactive Gaming Council v. Commonwealth ex rel. Brown, 425 S.W.3d 107, 2014 Ky. App. LEXIS 29 (Ky. Ct. App. 2014).

Trial court erred by dismissing a complaint for lack of standing because the Open Meetings Act permitted an association to recover attorney fees and costs, and the availability of the remedy met the redressability requirement for constitutional standing; because actions taken in violation of the Act were not void ab initio, third parties not involved in the allegedly unlawful conduct could be entitled to rely on the validity of the agreement executed by the county fiscal court and public board. Lincoln Trail Grain Growers Ass'n v. Meade Cty. Fiscal Court, 2021 Ky. App. LEXIS 89 (Ky. Ct. App. Aug. 6, 2021).

10.Creation of New Districts.

Where Legislature creates a new district, and cuts off a county in which Commonwealth’s Attorney resides, he continues in his old district, and has a reasonable time after the act takes effect to change his residence. McCreary v. Fields, 148 Ky. 730 , 147 S.W. 901, 1912 Ky. LEXIS 543 ( Ky. 1912 ). See Watkins v. Snyder, 148 Ky. 733 , 147 S.W. 899, 1912 Ky. LEXIS 542 ( Ky. 1912 ) (decided under prior law).

11.Alteration of Districts.

In altering judicial districts in connection with the creation of a new district, the Legislature must have due regard for territory, business and population in the altered districts as well as in the new district. Runyon v. Smith, 308 Ky. 73 , 212 S.W.2d 521, 1948 Ky. LEXIS 843 ( Ky. 1948 ). But see Scott v. McCreary, 148 Ky. 791 , 147 S.W. 903, 1912 Ky. LEXIS 544 ( Ky. 1912 ), overruled, Harrod v. Meigs, 340 S.W.2d 601, 1960 Ky. LEXIS 58 ( Ky. 1960 ) (decided under prior law).

12.Administrative Agencies.

Circuit Courts have supervisory authority over state administrative agencies in their interpretation and implementation of statutes and may in exercising such authority intervene to protect the statutory, constitutional or other rights of citizens. Board of Registration Comm'rs v. Campbell, 251 Ky. 597 , 65 S.W.2d 713, 1933 Ky. LEXIS 925 ( Ky. 1933 ) (decided under prior law).

13.Particular Parties.

Kentucky Retirement System defined-benefit retirement plan members lacked constitutional standing to bring claims for alleged funding losses where, based on a statutorily declared inviolable contract with the Commonwealth, they continued to receive vested monthly retirement payments regardless of any alleged plan mismanagement, and there was no allegation that the Commonwealth could not cover any shortfall. Overstreet v. Mayberry, 603 S.W.3d 244, 2020 Ky. LEXIS 225 ( Ky. 2020 ).

Kentucky Retirement System (KRS) defined-benefit retirement plan members lacked standing as trust beneficiaries to bring claims for alleged funding losses where their rights were in the receipt of promised funds, not in the general pool of KRS assets. Overstreet v. Mayberry, 603 S.W.3d 244, 2020 Ky. LEXIS 225 ( Ky. 2020 ).

14.Representational Standing.

Kentucky Retirement System (KRS) defined-benefit retirement plan members lacked standing in a representational or derivative capacity to bring claims for alleged funding losses where their rights were in the receipt of promised funds, not in the general pool of KRS asset. Overstreet v. Mayberry, 603 S.W.3d 244, 2020 Ky. LEXIS 225 ( Ky. 2020 ).

15.Taxpayer Standing.

Kentucky Retirement System (KRS) defined-benefit retirement plan members lacked taxpayer standing to bring claims for alleged funding losses where they sought relief from private third parties and KRS officials in their individual capacities, and the state Attorney General was not involved. Overstreet v. Mayberry, 603 S.W.3d 244, 2020 Ky. LEXIS 225 ( Ky. 2020 ).

Circuit court properly held that the animal rescuers lacked constitutional standing to sue the state officials for their alleged failure to monitor or enforce compliance with the animal shelter statutes where the failure to enforce Kentucky laws was not the type of concrete and particularized injury contemplated when the Lujan test was adopted, the rescuers’ voluntary decision to expend their personal time and resources to care for stray and abandoned animals was not enough to establish an injury, and there were no allegations in the circuit court that the funds made available through the animal shelter laws were being illegally expended. Kasey v. Beshear, 2021 Ky. App. Unpub. LEXIS 190 (Ky. Ct. App. Mar. 12, 2021), op. withdrawn, 626 S.W.3d 204, 2021 Ky. App. LEXIS 56 (Ky. Ct. App. 2021).

Cited:

Lee v. Porter, 598 S.W.2d 465, 1980 Ky. App. LEXIS 311 (Ky. Ct. App. 1980); Commonwealth ex rel. Stumbo v. Wilson, 622 S.W.2d 912, 1981 Ky. LEXIS 281 ( Ky. 1981 ); Kampschaefer v. Commonwealth, 746 S.W.2d 567, 1988 Ky. App. LEXIS 38 (Ky. Ct. App. 1988); Moore v. Kentucky State Penitentiary, 789 S.W.2d 788, 1990 Ky. App. LEXIS 30 (Ky. Ct. App. 1990); Gordon v. NKC Hosps., 887 S.W.2d 360, 1994 Ky. LEXIS 132 ( Ky. 1994 ); Abernathy v. Nicholson, 899 S.W.2d 85, 1995 Ky. LEXIS 76 ( Ky. 1995 ); Woodward v. Commonwealth, 949 S.W.2d 599, 1997 Ky. LEXIS 75 ( Ky. 1997 ); Bush v. Combest, — S.W.3d —, 2004 Ky. App. LEXIS 293 (Ky. Ct. App. 2004); Abell v. Reynolds, 191 S.W.3d 1, 2006 Ky. App. LEXIS 95 (Ky. Ct. App. 2006); Gomez v. Gomez, 254 S.W.3d 838, 2008 Ky. App. LEXIS 145 (Ky. Ct. App. 2008); S.J.L.S. v. T.L.S., 265 S.W.3d 804, 2008 Ky. App. LEXIS 282 (Ky. Ct. App. 2008); Delahanty v. Commonwealth Ex Rel. Maze, 295 S.W.3d 136, 2009 Ky. App. LEXIS 124 (Ky. Ct. App. 2009); Appalachian Racing, LLC v. Family Trust Found. of Ky., Inc., 423 S.W.3d 726, 2014 Ky. LEXIS 88 ( Ky. 2014 ); Cameron v. Beshear, 628 S.W.3d 61, 2021 Ky. LEXIS 240 ( Ky. 2021 ).

Opinions of Attorney General.

Members of the new Court of Appeals are required to be legal residents of the Supreme Court districts they represent but not of a division which has no geographic delineation within the district. OAG 76-487 .

Research References and Practice Aids

Cross-References.

Additional court personnel, KRS 30A.300 , 30A.310 .

Circuit clerks, KRS 30A.010 to 30A.250 .

Circuit courts, KRS ch. 23A.

Circuit judges, KRS ch. 22A.

Circuits, KRS 23A.020 to 23A.070 .

Fees and costs, KRS 23A.200 to 23A.215 .

Interpreters, KRS 30A.400 to 30A.435 .

Judicial circuits, KRS ch. 23A.

Judicial council, membership, functions, meetings, compensation and expenses, KRS 27A.100 to 27A.130 .

Juries, KRS ch. 29A.

Judicial retirement system for judges, KRS 21.345 to 21.570 .

Jurisdiction, KRS 23A.010 .

Master commissioners, KRS ch. 31A.

Secretaries, KRS 32.031 .

Security services, KRS 23A.090 .

Kentucky Bench & Bar.

An Overview of Kentucky’s New Court System, Vol. 41, No. 2, April 1977 Ky. Bench & B. 13.

Chenault, Administration of Judicial Circuits by Region, Vol. 43, No. 3, July 1979, Ky. Bench & Bar 8.

Pennington, Regionalization of Kentucky’s Trial Courts, Vol. 46, No. 3, July 1982, Ky. Bench & Bar 19.

Kentucky Law Journal.

Kentucky Law Survey, Garvey and Doutt, Civil Procedure, 68 Ky. L.J. 529 (1979-1980).

Leathers, Rethinking Jurisdiction and Notice in Kentucky, 71 Ky. L.J. 755 (1982-83).

Graham, Implementing Custody Mediation in Family Court: Some Comments on the Jefferson County Family Court Experience, 81 Ky. L.J. 1007 (1992-93).

Treatises

Petrilli, Kentucky Family Law, Court Procedure, § 23.1.

The District Court

§ 113. Location — Districts — Composition — Administration — Trial commissioners — Jurisdiction.

  1. District Court shall be held in each county.
  2. The Circuit Court districts existing on the effective date of this amendment shall continue for District Court purposes under the name “Judicial Districts,” the General Assembly having power upon certification of the necessity therefor by the Supreme Court to reduce, increase or rearrange the districts. A judicial district composed of more than one county shall be as compact in form as possible and of contiguous counties. No county shall be divided in creating a judicial district.
  3. Each judicial district created by this amendment initially shall have at least one district judge who shall serve as chief judge and there shall be such other district judges as the General Assembly shall determine. The number of district judges in each judicial district thereafter shall be determined by the General Assembly upon certification of necessity therefor by the Supreme Court.
  4. In a judicial district having only one judge he shall be the chief judge. In those districts having two or more judges they shall select biennially a chief judge and if they fail to do so within a reasonable time, the Supreme Court shall designate the chief judge. The chief judge shall exercise such authority and perform such duties in the administration of his district as may be prescribed by the Supreme Court.
  5. In any county in which no district judge resides the chief judge of the district shall appoint a trial commissioner who shall be a resident of such county and who shall be an attorney if one is qualified and available. Other trial commissioners with like qualifications may be appointed by the chief judge in any judicial district upon certification of the necessity therefor by the Supreme Court. All trial commissioners shall have power to perform such duties of the district court as may be prescribed by the Supreme Court.
  6. The district court shall be a court of limited jurisdiction and shall exercise original jurisdiction as may be provided by the General Assembly.

Compiler’s Notes.

The General Assembly in 1974 proposed (Acts 1974, ch. 84, §§ 1-3) the repeal of sections 109 to 139, 141 and 143 of the Constitution and the substitution in lieu thereof new sections 109-124. This amendment was ratified by the voters at the regular election in November, 1975 and became effective January 1, 1976.

For commencement of initial terms of office see compiler’s notes, Const., § 109.

NOTES TO DECISIONS

1.Jurisdiction.

Where jurisdiction initially attached in the Circuit Court, it was not lost when that court, during the course of the trial, dismissed one felony count of a three (3) count indictment; jurisdiction having attached by reason of the felony charge was not divested by its final determination. Broughton v. Commonwealth, 596 S.W.2d 22, 1979 Ky. App. LEXIS 520 (Ky. Ct. App. 1979).

District Court has no power to dispose of any charges which constitute lesser included offenses of felony charged in indictment. Jackson v. Commonwealth, 633 S.W.2d 61, 1982 Ky. LEXIS 246 ( Ky. 1982 ).

Special Circuit Judge could not enforce his judgment accepting defendant’s plea of guilty of charge of driving under the influence (DUI) since such charge had not been consolidated with felony charge of possession of cocaine and, since District Court and not Circuit Court had jurisdiction. Jackson v. Commonwealth, 806 S.W.2d 643, 1991 Ky. LEXIS 34 ( Ky. 1991 ).

Where a misdemeanor offense and a felony offense are joined in a single indictment, after the Commonwealth dismisses the felony charge then the trial court should immediately remand the misdemeanor to the District Court. Jackson v. Commonwealth, 806 S.W.2d 643, 1991 Ky. LEXIS 34 ( Ky. 1991 ).

Though District Judge in his normal capacity as District Judge has no jurisdiction to hear a dissolution of marriage case, because District Judge was properly sworn in as special Circuit Judge under the Jefferson Family Court Project and pursuant to Const., § 110(5)(b), there existed proper subject matter jurisdiction. Kuprion v. Fitzgerald, 888 S.W.2d 679, 1994 Ky. LEXIS 135 ( Ky. 1994 ).

As a District Court lacked jurisdiction to make a final adjudication as to defendant’s felony charges, its dismissal of those charges did not preclude the Commonwealth, on double jeopardy grounds, from proceeding against defendant in Circuit Court on the same charges. Commonwealth v. Stephenson, 82 S.W.3d 876, 2002 Ky. LEXIS 165 ( Ky. 2002 ).

District Court was a court of limited jurisdiction and was allowed to exercise original jurisdiction only as provided by the General Assembly; a District Court was without jurisdiction to review the denial of a driver’s license, or to order the Secretary of the Transportation Cabinet to issue or reinstate an administratively revoked license, and the Circuit Court’s order affirming the District Court’s order directing reinstatement of a driver’s license was reversed. Commonwealth Transp. Cabinet v. Mohney, 107 S.W.3d 907, 2003 Ky. App. LEXIS 140 (Ky. Ct. App. 2003).

KRS 635.020(4) does not violate the separation of powers doctrine by impermissibly taking prosecutorial decisions away from prosecutors once it is found that a firearm was used by a juvenile 14 years of age or older in the commission of a felony; KRS 635.020(4) vests jurisdiction in the Circuit Court over a particular class of offenders, which is a constitutional exercise of authority because of the Legislature’s power under Ky. Const., § 113(6) to limit the jurisdiction of the District Court. Bellfield v. Commonwealth, 2006 Ky. App. LEXIS 30 (Ky. Ct. App. Feb. 3, 2006, sub. op., 2006 Ky. App. Unpub. LEXIS 825 (Ky. Ct. App. Feb. 3, 2006).

In an action to settle a probate estate, the Circuit Court alone had subject matter jurisdiction over all the contested issues presented in the case, and absent any non-contested issues, there was nothing over which the District Court retained any authority to act. Hale v. Moore, 289 S.W.3d 567, 2008 Ky. App. LEXIS 5 (Ky. Ct. App. 2008).

That part of KRS 65.8831(1) limiting review of a code enforcement board’s decision to the record created before the board was an unconstitutional grant of appellate jurisdiction to a district court in violation of Ky. Const. § 113 and KRS 24A.010(3). Such decisions were subject to de novo trials in district court. Louisville Metro Health Dep't v. Highview Manor Ass'n, LLC, 319 S.W.3d 380, 2010 Ky. LEXIS 216 ( Ky. 2010 ).

County attorney and the district court did not have the authority to approve a deferred prosecution on a charge of first-degree possession of a controlled substance under KRS 218A.14151 because only the Commonwealth’s attorney and the circuit court had jurisdiction over a felony offense. Commonwealth v. Vibbert, 397 S.W.3d 910, 2013 Ky. App. LEXIS 60 (Ky. Ct. App. 2013).

2.—Probate Proceedings.

A District Court can appoint or remove a fiduciary in the ordinary course of the probate of an estate, but when issues of fraud, mismanagement or deception are involved, the cause of action addresses itself to a court of general jurisdiction especially when damages are sought. Lee v. Porter, 598 S.W.2d 465, 1980 Ky. App. LEXIS 311 (Ky. Ct. App. 1980).

Daughter’s claim that a mother breached the mother’s duty of utmost good faith as a father’s attorney-in-fact failed because the daughter brought the claim in circuit court when district court had exclusive jurisdiction, in which the daughter asserted no claim within the statutory time period. Dickson v. Shook, 2019 Ky. App. LEXIS 44 (Ky. Ct. App. Mar. 29, 2019, sub. op., 2019 Ky. App. Unpub. LEXIS 909 (Ky. Ct. App. Mar. 29, 2019).

3.— Guardianship Proceedings.

A son’s motion for discretionary review, pursuant to CR 76.20(1), of a judgment affirming a District Court order removing him as co-guardian for his mother was denied because the matter was not a probate proceeding, and the District Court’s jurisdiction was provided by KRS 387.520(1); even if KRS 24A.120 (2) applied, the removal of a guardian was nonadversarial under KRS 24A.120 (3) since no statute granted a Circuit Court jurisdiction to remove a guardian and since the General Assembly had vested District Courts with exclusive original jurisdiction in removal matters, it was immaterial whether the removal proceeding could have been construed as adversarial pursuant to KRS 24A.120. Hall v. Coyle, 240 S.W.3d 656, 2007 Ky. App. LEXIS 419 (Ky. Ct. App. 2007).

District court acted soundly within its jurisdiction under Ky. Const. § 113(6) when it issued an order requiring a guardian to provide all financial records for an accounting and to make restitution to a guardianship account, because the district court was granted exclusive jurisdiction to manage and settle guardianship accounts under KRS 387.520 . Karem v. Bryant, 370 S.W.3d 867, 2012 Ky. LEXIS 82 ( Ky. 2012 ).

4.Checks and Balances.

The constitutional check-and-balance relationship between the legislative and judicial branches of the government exists by virtue of Ky. Const., §§ 110 to 112, this section, and § 120. Ex parte Auditor of Public Accounts, 609 S.W.2d 682, 1980 Ky. LEXIS 274 ( Ky. 1980 ).

5.Judicial Authority.

None of the provisions of Const., §§ 117, 122, or this section implies that any judge’s powers and authority are limited to the district in which he or she is elected. The provisions of paragraph (4) of this section do evince, of course, an expectation that district and Circuit Judges will usually and regularly serve within the respective districts or circuits where they are elected, but they are still members of the same court and have equal capacity to act throughout the Commonwealth, subject to the administrative authority of the respective chief judges and the chief justice and subject to the rulemaking power of the Supreme Court. Richmond v. Commonwealth, 637 S.W.2d 642, 1982 Ky. LEXIS 288 ( Ky. 1982 ).

6.Trial Commissioner’s Authority.

A trial commissioner given authority in one (1) county had no authority while serving in that county to exercise authority beyond the limits of that county, and under Supreme Court rules, he could not be given such authority; therefore, he was without jurisdiction to issue a search warrant in or for a second county, and accordingly, the search warrant was invalid. Commonwealth v. Shelton, 766 S.W.2d 628, 1989 Ky. LEXIS 20 ( Ky. 1989 ).

Trial court did not err in denying defendants’ motion to suppress drug evidence obtained in a search of their home because the warrant was not void when signed by a trial commissioner allegedly not lawfully serving that office. Where the trial commissioner was appointed by a judge who did not reappoint the trial commissioner following his re-election but where the trial commissioner continued uninterrupted in that capacity, he remained a de facto officer with authority to issue search warrants. As such, the warrant and the search performed under the warrant’s authority were valid. Gourley v. Commonwealth, 335 S.W.3d 468, 2010 Ky. App. LEXIS 251 (Ky. Ct. App. 2010).

7.Creation of New Courts.

The creation of any court is vested only in the Legislature by virtue of this section and Const., § 112, and new District or Circuit Courts can be established only upon a certification of necessity by the Supreme Court of Kentucky. Kuprion v. Fitzgerald, 888 S.W.2d 679, 1994 Ky. LEXIS 135 ( Ky. 1994 ).

8.Trying Child as Adult.

KRS 635.020(4), as amended in 1994 to require a child over the age of 14 being charged with a felony involving the use of a firearm be tried in Circuit Court as an adult defendant, does not violate this section and Const., § 112, and the provisions of KRS 635.020(4) can be harmonized with the provisions of KRS 640.010 . (Decision prior to amendment of KRS 635.020(4), effective July 15, 1997.) Commonwealth v. Halsell, 934 S.W.2d 552, 1996 Ky. LEXIS 119 ( Ky. 1996 ).

9.Standard of Review.

Because a District Court did not have appellate jurisdiction over a decision by a code enforcement board under KRS 65.8831 , the District Court was to conduct a de novo review of the record created before the code enforcement board and was not confined to a determination as to whether the board’s decision was arbitrary. Highview Manor Ass'n, LLC v. Louisville Metro Health Dep't, 2008 Ky. App. LEXIS 185 (Ky. Ct. App. June 13, 2008), aff'd in part and rev'd in part, 319 S.W.3d 380, 2010 Ky. LEXIS 216 ( Ky. 2010 ).

Cited:

Kampschaefer v. Commonwealth, 746 S.W.2d 567, 1988 Ky. App. LEXIS 38 (Ky. Ct. App. 1988); Abell v. Reynolds, 191 S.W.3d 1, 2006 Ky. App. LEXIS 95 (Ky. Ct. App. 2006); Hisle v. Lexington-Fayette Urban County Gov’t, 258 S.W.3d 422, 2008 Ky. App. LEXIS 27 (Ky. Ct. App. 2008); Peter v. Gibson, 336 S.W.3d 2, 2010 Ky. LEXIS 297 ( Ky. 2010 ).

Opinions of Attorney General.

The expression “shall be an attorney if one is qualified” as used in this section means only that the attorney must be a resident of the county in which the appointment of trial commissioner becomes necessary and the word “attorney” merely means a person duly licensed to practice law in Kentucky. OAG 76-497 .

While under this section a county judge or justice of the peace could be appointed as a trial commissioner of the District Court if: (1) the county is one having no resident District Judge, (2) they are residents of such county, and (3) it is shown that there is no resident attorney who is available, Const., § 165 and KRS 61.080 would prohibit a county judge or justice of the peace, as county officers, from being at the same time, a trial commissioner of a District Court. OAG 76-497 .

Under this section there is no requirement that an attorney appointed as trial commissioner serve full time and thus he could engage in private practice, subject to restrictions imposed by the principles of ethics and conflict of interest. OAG 77-81 .

This section requires that the attorney serving as trial commissioner in a multi-county judicial district must reside in the county for which he is appointed and which county is within the district of the chief judge appointing him and mere maintenance of an office in the county of appointment would not satisfy this requirement. OAG 77-106 .

If a qualified and resident lawyer requests the position of trial commissioner for his county, the District Judge must appoint him to that post unless there are other qualified and resident lawyers to choose from. OAG 77-424 .

A county sheriff must execute and make due return on all criminal process lawfully issued by a county trial commissioner (process as authorized by SCR 5.030 ) and placed in the sheriff’s hands or with his lawful deputies. OAG 80-332 .

There is nothing that prohibits a District Court or a trial commissioner from issuing criminal process after regular business hours. OAG 80-332 .

A lawyer who represents defendants in criminal cases cannot also be appointed to the position of trial commissioner pursuant to KRS 24A.100 and this section, since the judicial functions of the trial commissioner are inherently inconsistent and repugnant to the role of a defense attorney in criminal cases, and, in addition, the trial commissioner of one District Court cannot personally appear in criminal matters before another District Court within the same judicial district. OAG 81-177 .

The enacting of an ordinance which contains provisions regarding the jurisdiction of the District Court which are identical to the provisions found in Uniform Residential Landlord and Tenant Act, KRS 383.505 to 383.715 , for the jurisdiction of the District Court would not be an enlargement of the court’s jurisdiction and would not, therefore, invalidate such an ordinance. OAG 83-251 .

Research References and Practice Aids

Cross-References.

Additional court personnel, KRS 30A.300 , 30A.310 .

Convictions under KRS 186.560 , reporting, KRS 24A.195 .

District courts, KRS Ch. 24A.

Fees and costs, 24A.170 to 24A.180 .

Interpreters, KRS 30A.400 to 30A.435 .

Judicial council, membership, functions, meetings, compensation and expenses, KRS 27A.100 to 27A.130 .

Judicial districts, KRS 24A.030 to 24A.090 .

Judicial retirement system for judges, KRS 21.345 to 21.570 .

Juries, KRS Ch. 29A.

Jurisdiction, KRS 24A.010 , 24A.020 , 24A.110 to 24A.130 .

Services provided by law enforcement officers, KRS 24A.140 .

Small claims division, KRS 24A.200 to 24A.360 .

Trial commissioners, KRS 24A.100 .

Kentucky Bench & Bar.

An Overview of Kentucky’s New Court System, Vol. 41, No. 2, April 1977 Ky. Bench & B. 13.

Kentucky Law Journal.

Kentucky Law Survey, Fortune and Welling, Criminal Procedure, 72 Ky. L.J. 381 (1983-84).

Graham, Implementing Custody Mediation in Family Court: Some Comments on the Jefferson County Family Court Experience, 81 Ky. L.J. 1107 (1992-93).

Clerks of Courts

§ 114. Selection — Removal.

  1. The Supreme Court shall appoint a clerk to serve as it shall determine.
  2. The Court of Appeals shall appoint a clerk to serve as it shall determine.
  3. The clerks of the Circuit Court shall be elected in the manner provided elsewhere in this Constitution. The clerks of the Circuit Court shall serve as the clerks of the District Court. The clerks of the Circuit Court shall be removable from office by the Supreme Court upon good cause shown.

Compiler’s Notes.

The General Assembly in 1974 proposed (Acts 1974, ch. 84, §§ 1-3) the repeal of sections 109 to 139, 141 and 143 of the Constitution and the substitution in lieu thereof new sections 109-124. This amendment was ratified by the voters at the regular election in November, 1975 and became effective January 1, 1976.

For transfer of first clerk of the Supreme Court from Court of Appeals, see compiler’s notes, Const., § 109.

NOTES TO DECISIONS

1.Removal From Office.

Clerk of court’s failure to maintain proper records, failure to deposit moneys intact promptly into a state depository bank and failure to maintain an appropriate bank account accruing interest which is to be paid to the State Treasury was good cause to remove him from office for the remainder of his present term pursuant to subsection (3) of this section. In re Overstreet, 851 S.W.2d 458, 1993 Ky. LEXIS 11 ( Ky. 1993 ).

Opinions of Attorney General.

The circuit court clerk, deputy clerks, and employees of that office must now be considered state officers or state employees. OAG 76-509 .

A person may not, at the same time, serve as clerk of the district court and an auxiliary police officer for a city of the fourth class. OAG 80-552 .

There is no constitutional problem with KRS 172.110(1), which makes the circuit clerk the ex offico law librarian, except that the county law librarian function must not interfere with the clerk’s court functions as envisioned in this section and KRS 30A.010 ; the circuit clerk is entitled to receive a salary from the county treasury, as a properly budgeted item under KRS Chapter 68, for actually serving as the ex officio librarian of the county law library and the salary provisions, of KRS 64.055 relates solely to the work of the clerk as circuit and district court clerk. OAG 82-177 .

Research References and Practice Aids

Cross-References.

Circuit clerks, KRS 30A.010 to 30A.250 .

Court of Appeals clerks, KRS 22A.030 .

Election of circuit court clerks, Const., § 97.

Appellate Policy — Rule-Making Power

§ 115. Right of appeal — Procedure.

In all cases, civil and criminal, there shall be allowed as a matter of right at least one appeal to another court, except that the commonwealth may not appeal from a judgment of acquittal in a criminal case, other than for the purpose of securing a certification of law, and the general assembly may prescribe that there shall be no appeal from that portion of a judgment dissolving a marriage. Procedural rules shall provide for expeditious and inexpensive appeals. Appeals shall be upon the record and not by trial de novo.

Compiler’s Notes.

The General Assembly in 1974 proposed (Acts 1974, ch. 84, §§ 1-3) the repeal of sections 109 to 139, 141 and 143 of the Constitution and the substitution in lieu thereof new sections 109-124. This amendment was ratified by the voters at the regular election in November, 1975 and became effective January 1, 1976.

NOTES TO DECISIONS

1.Appeal as of Right.

Where there was no review of the record, no search for reversible error by the court below, and no determination of whether defendant received a fair trial, but instead, a new proceeding was conducted, and evidence was taken, the defendant had not had the benefit of an appeal to determine whether he received a fair trial. Taylor v. Commonwealth, 568 S.W.2d 52, 1978 Ky. App. LEXIS 546 (Ky. Ct. App. 1978).

That portion of KRS 81.060 , which incidentally was reenacted January 2, 1978, and which reads, “but no appeal shall lie from the judgment,” is in direct conflict with this section and is therefore an unconstitutional restriction on the rights of the appellants. Cole v. Stephens, 582 S.W.2d 657, 1979 Ky. App. LEXIS 419 (Ky. Ct. App. 1979).

The right of appeal guaranteed by this section may be conditioned upon strict adherence to orderly rules of procedure. Foremost Ins. Co. v. Shepard, 588 S.W.2d 468, 1979 Ky. LEXIS 291 ( Ky. 1979 ).

Where defendant’s conviction in District Court was reversed in the Circuit Court, and state filed both notice of appeal and motion for discretionary review under CR 76.20, the state was not entitled to appeal as a matter of right in Court of Appeals where motion for discretionary appeal was denied, since this section provides only for one appeal as a matter of right in each case, not one appeal by each party, thus appeal was properly dismissed. Commonwealth v. Hurd, 612 S.W.2d 766, 1981 Ky. App. LEXIS 227 (Ky. Ct. App. 1981).

Where Department of Human Resources (now Cabinet for Human Resources) sought injunction against food products company to prevent the production, packing or sale of its food until unsanitary conditions were corrected, the Circuit Court properly assumed jurisdiction, since it had equity jurisdiction and thus could exercise the provisions of subsection (2) of KRS 217.115 to bring the action to a final and full conclusion, even though the action would have properly been disposed of under KRS 217.025 , since any action in the District Court under KRS 217.115 would be entitled to a constitutional guarantee of a right of appeal to the Circuit Court under this section, and consequently on appeal the Circuit Court would unquestionably have jurisdiction to provide the remedy set forth in subsection (2) of KRS 217.115. Commonwealth, Dep't for Human Resources v. Kentucky Products, Inc., 616 S.W.2d 496, 1981 Ky. LEXIS 249 ( Ky. 1981 ).

This section provides for one appeal as a matter of right; it does not, however, guarantee a right of appeal practiced outside the rules governing appellate practice. Manly v. Manly, 669 S.W.2d 537, 1984 Ky. LEXIS 234 ( Ky. 1984 ).

Award of additional fee under KRS 304.39-220 is not a penalty imposed upon right to appeal, but an item of monetary damages allowed by the legislature due to continuing representation upon the issue of reasonableness; thus, such additional award does not violate the constitutional right to a first appeal, as provided in this section. Moore v. Roberts, 684 S.W.2d 276, 1982 Ky. LEXIS 336 ( Ky. 1982 ).

The parties’ rights under this section were satisfied and protected by the special appeals procedures. Grimes v. Nationwide Mut. Ins. Company/Nationwide Mut. Fire Ins. Co., 705 S.W.2d 926, 1985 Ky. App. LEXIS 629 (Ky. Ct. App. 1985).

The right of appeal guaranteed by this section can be hinged on strict adherence to procedural rules. Jones v. Cabinet for Human Resources, Div. for Licensure & Regulations, 710 S.W.2d 862, 1986 Ky. App. LEXIS 1074 (Ky. Ct. App. 1986).

The right of appeal guaranteed by this section is an appropriate procedure to follow in cases where the Commonwealth attempts to repudiate a written agreement signed by the parties and performed by the defendant. Shanklin v. Commonwealth, 730 S.W.2d 535, 1987 Ky. App. LEXIS 492 (Ky. Ct. App. 1987).

This section gives a matter of right appeal to the Supreme Court via KRS 342.290 to parties in workers’ compensation actions and therefore, since CR 76.25(12) attempts to limit that matter of right appeal, CR 76.25(12) is unconstitutional. Vessels v. Brown-Forman Distillers Corp., 793 S.W.2d 795, 1990 Ky. LEXIS 24 ( Ky. 1990 ), modified, 1990 Ky. LEXIS 83 (Ky. Sept. 6, 1990).

A prior conviction may not be utilized under KRS 532.055 unless: (1) the time for appealing the conviction has expired without appeal having been taken; or, (2) matter of right appeal has been taken pursuant to Ky. Const. § 115 and the judgment of conviction has been affirmed; trial court erred in a defendant’s trial for wanton murder by admitting evidence of the defendant’s prior felony convictions where such convictions were set aside and never finalized by entry of a judgment and the time for the appeal of those convictions had not yet expired, though defendant’s guilty pleas to the prior offenses were convictions. Cook v. Commonwealth, 129 S.W.3d 351, 2004 Ky. LEXIS 76 ( Ky. 2004 ).

Denial of writ of prohibition was proper since company could appeal, under Ky. Const., § 115 and KRS 22A.020(1), any contempt order issued by the trial court for breach of noncompetition order on substantive or jurisdictional grounds and did not show irreparable harm if the writ was not issued. Newell Enters. v. Bowling, 158 S.W.3d 750, 2005 Ky. LEXIS 15 ( Ky. 2005 ).

After defendant hospital was granted a writ of prohibition by the Court of Appeals, prohibiting discovery of two incident reports prepared by its attorneys on attorney-client privilege grounds, the widow of a patient could seek review of the order in the Kentucky Supreme Court pursuant to CR 76.36 and Ky. Const. § 115. Collins v. Braden, 384 S.W.3d 154, 2012 Ky. LEXIS 180 ( Ky. 2012 ).

Defendant’s appeal of an order revoking her probation was a statutory right to appeal, and thus, whether the Fugitive Disentitlement Doctrine (FDD) would deprive her of a constitutional right was moot; the court of appeals’ denial to apply the FDD was inextricably intertwined with the incorrect conclusion of law that defendant had a constitutional right to appeal, and thus, the supreme court took judicial notice of all governmental documents and public records indicating her absconsion. Commonwealth v. Hess, 2021 Ky. LEXIS 320 (Ky. June 17, 2021).

2.— Notice.

In light of the policy of this section that there shall be one appeal as a matter of right in every case, a notice of appeal defective for use of the phrase “et al.” to refer to intervening plaintiffs should not be dismissed where the applicable rule was amended before effective notice could be given. Yocom v. Franklin County Fiscal Court, 545 S.W.2d 296, 1976 Ky. App. LEXIS 120 ( Ky. 1976 ).

Nothing in this section mandated less than strict compliance with RCr 12.04 (2); therefore, where the notice of appeal filed by movant, who had been convicted of disorderly conduct, failed to designate a final judgment from which appeal was being taken, the Court of Appeals properly dismissed the appeal. Foremost Ins. Co. v. Shepard, 588 S.W.2d 468, 1979 Ky. LEXIS 291 ( Ky. 1979 ).

3.— Appeal by Commonwealth.

The Commonwealth could properly appeal from order transferring the venue of a criminal case even assuming such order was interlocutory. Commonwealth v. Evans, 645 S.W.2d 350, 1982 Ky. App. LEXIS 280 (Ky. Ct. App.), aff'd, 645 S.W.2d 346, 1982 Ky. LEXIS 330 ( Ky. 1982 ).

This section, founded in the prohibition against double jeopardy, does not prevent an appeal by the Commonwealth when a jury has returned a verdict of guilty which has been set aside by a ruling of law to a postverdict motion; if error was made in such ruling as determined on appeal, the verdict is simply reinstated. Commonwealth v. Brindley, 724 S.W.2d 214, 1986 Ky. LEXIS 321 ( Ky. 1986 ), overruled in part, Maupin v. Commonwealth, 542 S.W.3d 926, 2018 Ky. LEXIS 130 ( Ky. 2018 ).

In a noncapital criminal case, a timely appeal by the Commonwealth of defendant’s sentence is not barred by the constitutional proscription against double jeopardy. Collins v. Commonwealth, 973 S.W.2d 50, 1998 Ky. LEXIS 87 ( Ky. 1998 ).

When the Court of Appeals of Kentucky granted a writ of prohibition pursuant to CR 76.36(4) to restrain the circuit court from holding a probation revocation hearing after appellee’s probation expired, the Commonwealth was permitted to bring an appeal before the Supreme Court of Kentucky as a matter of right pursuant to Ky. Const. § 115. Conrad v. Evridge, 315 S.W.3d 313, 2010 Ky. LEXIS 145 ( Ky. 2010 ).

Once evidence was suppressed pursuant to RCr P. 9.78 regarding defendant in a DUI case because defendant was not read defendant’s Miranda rights, the district court’s finding that the remaining evidence was insufficient to convict defendant meant that defendant could not be tried again on that charge. The double jeopardy clause of the United States Constitution, U.S. Const. amend. V, as well as under the Ky. Const. § 13, barred retrial of defendant because the dismissal of that charge was a ruling on the merits, which also meant that the Commonwealth could not appeal that dismissal, pursuant to Ky. Const. § 115. Cozzolino v. Commonwealth, 395 S.W.3d 485, 2012 Ky. App. LEXIS 100 (Ky. Ct. App. 2012).

Circuit court properly denied the a writ of prohibition seeking to prohibit the district court from suppressing the results of defendant’s breathalyzer test in the DUI case under KRS 189A.010(1)(b) because, although the Commonwealth had no adequate remedy by appeal and would suffer great and irreparable injury, the evidence showed that defendant did not intend to operate a motor vehicle while intoxicated but, rather, that he had returned to his vehicle after an evening of merry-making, entered his vehicle, and started it to warm himself while he sobered. Commonwealth v. Armstrong, 2013 Ky. App. LEXIS 40 (Ky. Ct. App. Feb. 22, 2013), review denied, ordered not published, 2013 Ky. LEXIS 694 (Ky. Dec. 11, 2013).

4.— Appeal from Fiscal Court to Circuit Court.

Plaintiffs could not juxtapose this section which provides for appeal in a judicial action with former KRS 23.030 (repealed) and KRS 23A.010 with CR 76.01 in an attempt to provide for a direct appeal from fiscal court to Circuit Court since action by a fiscal court is a legislative action. Varney v. Varney, 609 S.W.2d 704, 1980 Ky. App. LEXIS 398 (Ky. Ct. App. 1980).

5.Motion to Vacate Judgment.

When an indigent defendant is unconstitutionally deprived of his right of appeal because of lack of assistance of counsel, the defendant is entitled to a belated appeal upon the filing of a motion to vacate judgment under RCr 11.42. Blankenship v. Commonwealth, 554 S.W.2d 898, 1977 Ky. App. LEXIS 782 (Ky. Ct. App. 1977).

6.Power of Supreme Court.

Since under §§ 109 and 116 of the Constitution the Supreme Court only has the power to prescribe rules governing appellate procedure and jurisdiction and since the only restriction on appeal by the Commonwealth set forth by the Constitution of Kentucky, as stated in this section, is that the Commonwealth may not appeal from a judgment of acquittal in a criminal case for any purpose other than securing a certification of the law, therefore, when the Legislature, by enactment of KRS 22A.020(4), attempted to establish rules of appellate procedure, it was contrary to the dictates of the Constitution. Commonwealth v. Schumacher, 566 S.W.2d 762, 1978 Ky. App. LEXIS 524 (Ky. Ct. App. 1978), disapproved, Commonwealth v. Littrell, 677 S.W.2d 881, 1984 Ky. LEXIS 285 ( Ky. 1984 ).

State supreme court did not need to apply the Fifth Amendment, U.S. Const. amend. V, which was made applicable to the states through the Fourteenth Amendment, Ky. Const. § 2 involving exercises of power, or Ky. Const. § 11 regarding the right against self-incrimination in answering the question about whether the trial court could hold a revocation of probation hearing on new, unresolved charges. Under its supervisory authority based on Ky. Const. § 110, Ky. Const. § 115, and Ky. Const. § 116, the state supreme court could craft a rule recognizing that it was not necessary that a conviction occur before a probation revocation hearing could be held, but the trial court had to make a probationer aware that while the testimony in such a hearing could not be used as substantive evidence in a criminal proceeding, such testimony could be used for other purposes, such as impeachment. Barker v. Commonwealth, 379 S.W.3d 116, 2012 Ky. LEXIS 132 ( Ky. 2012 ).

7.Certification of Questions of Law.

Where following the defendant’s acquittal on murder charges in the Circuit Court, the Commonwealth sought to have an appellate court certify the law with respect to certain rulings made by the trial court, the Commonwealth should have certified the questions of law to the Supreme Court, ab initio, since applying first to the Court of Appeals constituted an exercise in duplication and a waste of time and effort. Thompson v. Commonwealth, 652 S.W.2d 78, 1983 Ky. LEXIS 251 ( Ky. 1983 ), overruled, Shannon v. Commonwealth, 767 S.W.2d 548, 1988 Ky. LEXIS 80 ( Ky. 1988 ).

Commonwealth of Kentucky's motion to certify a question of law was improvidently granted because the Supreme Court of Kentucky could not properly exercise its jurisdiction to certify the law in that the orders setting and modifying bond conditions (and all subsequent orders in the case) were not final orders adverse to the Commonwealth. Nonetheless, the Supreme Court issued a discretionary writ. Commonwealth v. Carman, 455 S.W.3d 916, 2015 Ky. LEXIS 66 ( Ky. 2015 ).

Commonwealth's attempted certification of law during defendant's appeal was rejected, as the Commonwealth sought an advisory opinion directing the trial court to conduct jury selection in a certain manner. Barker v. Commonwealth, 477 S.W.3d 583, 2015 Ky. LEXIS 2011 ( Ky. 2015 ).

8.Original Proceedings.

The provision of this section that in all cases there shall be allowed as a matter of right at least one appeal to another court obviously cannot apply to an original proceeding in the court of last resort. Ex parte Farley, 570 S.W.2d 617, 1978 Ky. LEXIS 390 ( Ky. 1978 ).

9.Transcript.

The failure to have a complete transcript of every word uttered during a trial does not impair the defendant’s constitutional right to effective assistance of counsel on appeal, where the defendant has received the complete transcript of what was recorded, and the trial judge did take steps to see that the substance of the conversation with the juror was put in the trial transcript. Polk v. Commonwealth, 574 S.W.2d 335, 1978 Ky. App. LEXIS 621 (Ky. Ct. App. 1978).

10.Counsel.

So long as the transcript is as complete as it can be made, and so long as it is complete enough for trial counsel to provide effective assistance on appeal, a case need not be reversed because a new counsel is unable to provide effective assistance. Polk v. Commonwealth, 574 S.W.2d 335, 1978 Ky. App. LEXIS 621 (Ky. Ct. App. 1978).

11.Damages.

This section of the Constitution takes precedence over KRS 26A.300 and damages under KRS 26A.300 do not accrue when a petition for rehearing has been filed in this court. Ash v. Security Nat'l Ins. Co., 574 S.W.2d 346, 1978 Ky. App. LEXIS 625 (Ky. Ct. App. 1978).

Pursuant to KRS 26A.300(1), when a father filed a supersedeas bond to stay collection of a judgment for back child support, no damages could be assessed against him because it was his first appeal as a matter of right under Ky. Const. § 115. Thus, the mother’s motion to compel him to pay damages caused by the stay asked for relief that was statutorily forbidden. Hines v. Carpenter, 2009 Ky. App. LEXIS 17 (Ky. Ct. App. Feb. 6, 2009).

12.Reduction of Bail.

An appeal from an order overruling a motion to reduce bail should be decided as soon as practicable. Abraham v. Commonwealth, 565 S.W.2d 152, 1977 Ky. App. LEXIS 910 (Ky. Ct. App. 1977).

13.Case.

The actions of a Circuit Court, pursuant to KRS 81.060 , in making findings of fact, conclusions of law, and a judgment as to whether a sixth class city should be incorporated are a “case” for purposes of appeal pursuant to this section. Cole v. Stephens, 582 S.W.2d 657, 1979 Ky. App. LEXIS 419 (Ky. Ct. App. 1979).

14.Review of Administrative Determinations.

In any hearing of charges against a police officer the hearing body must determine first whether the officer has violated the rules and regulations of the department and, if so, the hearing body must exercise its discretion in imposing a penalty; the first determination is subject to judicial review, but the second is not. Columbia v. Pendleton, 595 S.W.2d 718, 1980 Ky. App. LEXIS 302 (Ky. Ct. App. 1980).

Nothing in Const., § 109 contemplates an administrative agency as the equivalent of a court; the phrase, “there shall be allowed as a matter of right at least one (1) appeal to another court,” in this section, is unambiguous, and presupposes that the tribunals of review and for appeal are courts within the constitutional meaning of the word. Vessels v. Brown-Forman Distillers Corp., 793 S.W.2d 795, 1990 Ky. LEXIS 24 ( Ky. 1990 ), modified, 1990 Ky. LEXIS 83 (Ky. Sept. 6, 1990).

As appellants’ right to appeal a planning commission’s grant of a subdivision plan was codified as a statutory procedure, KRS 100.347 , the parties were required to strictly follow those procedures, including the requirement that the appeal be filed within 30 days of the commission’s final action; the right to at least one appeal conferred by Ky. Const., § 151 was satisfied because the aggrieved parties litigated the matter from circuit court to the Kentucky Court of Appeals and to the Kentucky Supreme Court. Triad Developmental/Alta Glyne, Inc. v. Gellhaus, 150 S.W.3d 43, 2004 Ky. LEXIS 221 ( Ky. 2004 ).

15.Probate Proceedings.

Although the validity of a will had been originally contested in a probate proceeding in a county court before the adoption of the judicial article which eliminated the county courts, the Circuit Court had jurisdiction to hear subsequent proceedings in the case as an original action rather than as an appeal, even though the party who filed the action in the Circuit Court failed to comply with certain procedural matters involving that court’s jurisdiction. Smith v. Riherd, 603 S.W.2d 494, 1980 Ky. App. LEXIS 351 (Ky. Ct. App. 1980).

16.Findings of Fact.

The distinction between an appeal and a de novo review does not rest upon the introduction of new evidence, since under a trial de novo the court is unrestricted in its examination of the evidence, but in an appeal the reviewing court is bound by the principle that the findings of fact made by the trial court shall not be set aside unless clearly erroneous. Smith v. Riherd, 603 S.W.2d 494, 1980 Ky. App. LEXIS 351 (Ky. Ct. App. 1980).

17.Condemnation Suit.

The provisions of subsection (4) of KRS 416.610 allow a condemnee an immediate, expedited appeal on the question of the condemnor’s right to take, despite the absence of an express statutory right to appeal, since this section mandates an appeal in all civil and criminal cases, and the legislature was cognizant of this newly enacted section when the eminent domain statute was enacted, and since the condemnee, in the absence of an immediate appeal, cannot be returned to its original position because the condemnor is given the right of immediate possession and can proceed to achieve whatever construction or destruction that was the purpose of the petition for condemnation. Ratliff v. Fiscal Court of Caldwell County, 617 S.W.2d 36, 1981 Ky. LEXIS 252 ( Ky. 1981 ).

18.Appeal in Forma Pauperis.

Any statutory provision requiring an indigent party to be a resident in order to be allowed to proceed in forma pauperis on appeal from an action initiated by the Commonwealth involving his fundamental liberty interest in his child is an infringement on both the Equal Protection Clause of the Fourteenth Amendment and this section. G.G.L. v. Cabinet for Human Resources, 686 S.W.2d 826, 1985 Ky. App. LEXIS 488 (Ky. Ct. App. 1985).

A trial court has no authority to refuse to permit a poor person to proceed on appeal in forma pauperis only because it determines the appeal to be frivolous. Peters v. Peters, 728 S.W.2d 541, 1987 Ky. App. LEXIS 476 (Ky. Ct. App. 1987).

Where appointed counsel filed a motion to proceed in forma pauperis on appeal, because some issues did survive an express waiver of the right to appeal, the trial court’s amended judgment, that reflected that defendant had no right to appeal but the judgment would receive the mandatory review as provided by statute, was in error under Ky. Const. § 115. Windsor v. Commonwealth, 250 S.W.3d 306, 2008 Ky. LEXIS 105 ( Ky. 2008 ).

19.Forcible Detainer.

When applied to an indigent person without sufficient funds to make the required payment into court, KRS 383.255 , requiring the aggrieved party in a forcible detainer action to pay into court rent which is due or owing, creates a financial barrier between him and the Circuit Court which forecloses his avenue of appeal; therefore, as to an indigent person, KRS 383.255 constitutes an unreasonable and, therefore, impermissible regulation of the exercise of the right of appeal secured by this section. Fickey v. Cross Creek Apartments, Ltd., 700 S.W.2d 807, 1985 Ky. App. LEXIS 697 (Ky. Ct. App. 1985).

20.Workers’ Compensation.

If an appeal has already been taken from the old Workers’ Compensation Board to the Circuit Court pursuant to KRS 342.285 , prior to the date of its repeal, the Circuit Court has not lost jurisdiction to decide such a case, and such appeals shall continue to a decision in the Circuit Court in which they were filed; further, the Circuit Court’s decision shall be appealable to the Court of Appeals pursuant to this section. Jefferson County Bd. of Education v. Miller, 744 S.W.2d 751, 1988 Ky. App. LEXIS 24 (Ky. Ct. App. 1988).

The present KRS 342.290 in no way conflicts with this section; KRS 342.290 simply eliminated the Circuit Court as the court authorized to review opinions, orders and awards of the Workers’ Compensation Board, and gave the Court of Appeals the same power to review as had been originally given by statute to the Circuit Court — no more, and no less. Vessels v. Brown-Forman Distillers Corp., 793 S.W.2d 795, 1990 Ky. LEXIS 24 ( Ky. 1990 ), modified, 1990 Ky. LEXIS 83 (Ky. Sept. 6, 1990).

The review of a workers’ compensation decision which is undertaken by the Court of Appeals, although denominated as an appeal, does not constitute an appeal for the purposes of this section. Smith v. Dixie Fuel Co., 900 S.W.2d 609, 1995 Ky. LEXIS 83 ( Ky. 1995 ).

21.Juvenile Proceedings.

Although KRS 600.020(12) provides that the Unified Juvenile Code applies to matters conducted in the juvenile session of District Court, in light of KRS 610.070(3), KRS 610.340 , and this section, the public and press are to be excluded not only from all juvenile proceedings at the District Court level, but from all appellate proceedings stemming therefrom. F.T.P. v. Courier-Journal, 774 S.W.2d 444, 1989 Ky. LEXIS 48 ( Ky. 1989 ).

Even though the Commonwealth showed that there was an inadequate remedy by appeal and that it would have suffered great and irreparable injury if a trial court erred by suppressing a juvenile’s statement, a writ of prohibition was not appropriate for the State in a sodomy case because the 13-year-old juvenile’s statement given to police at a school was properly suppressed as involuntary in nature; although a 32-minute interrogation did not seem excessive, the repetitive questioning amounted to coercion by importunity. Even though Miranda rights were read, the juvenile was ordered by school officials into a room, he faced authority figures with considerable power who feigned superior knowledge, and they repeatedly demanded answers. Commonwealth v. Bell, 365 S.W.3d 216, 2012 Ky. App. LEXIS 55 (Ky. Ct. App. 2012).

22.Board of Claims Proceedings.

The provision in KRS 44.140 which allows for an appeal to be taken to the Circuit Court only if the amount in controversy is more than $500 was held not to be in violation of this section; the wording “to another court” in this section presupposes that the appealed cause was in the first instance vested in a court and causes originating in the Board of Claims clearly do not originate in a court. Moore v. Kentucky State Penitentiary, 789 S.W.2d 788, 1990 Ky. App. LEXIS 30 (Ky. Ct. App. 1990).

23.Jurisdiction.

Subsection (2) of § 111 of the Constitution does not modify or limit this section and is nothing more than an exception to the Court of Appeals’ appellate jurisdiction. Vessels v. Brown-Forman Distillers Corp., 793 S.W.2d 795, 1990 Ky. LEXIS 24 ( Ky. 1990 ), modified, 1990 Ky. LEXIS 83 (Ky. Sept. 6, 1990).

When defendant appealed, he was under a death sentence. Subsequent to filing the appeal, the governor commuted the sentence to life in prison without the possibility of parole; however, the court retained jurisdiction of the appeal because it had acquired jurisdiction when the appeal was filed, as defendant was under a death sentence at that time. Leonard v. Commonwealth, 279 S.W.3d 151, 2009 Ky. LEXIS 19 ( Ky. 2009 ).

24.Attorney Fees Against Commonwealth.

Plaintiffs maintained that under this section an award of attorney fees against the Commonwealth could only be reviewed by the Franklin Circuit Court. However, the case was unique in that the Franklin Circuit Court was the court which ordered the award of attorneys fees against the Commonwealth. Statutes must be given a practical construction, and will not be given strict or literal reading where this would lead to an absurd or unreasonable conclusion. It would be unreasonable for the Franklin Circuit Court to review its own decision, therefore, giving the statute a practical construction in light of the special circumstances and the fact that all parties were entitled as a matter of right to one appeal under Const., § 115, the Court of Appeals found that its jurisdiction over the appeal in this case was proper. Revenue Cabinet v. Barbour, 836 S.W.2d 418, 1992 Ky. App. LEXIS 14 (Ky. Ct. App. 1992).

25.Dissolution of Marriage.

Mandamus is not available to attack a final judgment dissolving a marriage where direct appeal is proscribed by statute. Goldman v. Eichenholz, 851 S.W.2d 463, 1993 Ky. LEXIS 22 ( Ky. 1993 ), dismissed, 2002 Ky. App. LEXIS 680 (Ky. Ct. App. Mar. 22, 2002).

Court of appeals erred when it found that, because a husband did not object to a domestic relations commissioner’s recommendation that his motion for relief from the trial court’s judgment adopting a settlement agreement in a divorce action be overruled, it was required to dismiss the husband’s appeal from the trial court’s judgment adopting the commissioner’s recommendation. Herndon v. Herndon, 139 S.W.3d 822, 2004 Ky. LEXIS 88 ( Ky. 2004 ), modified, 2004 Ky. LEXIS 199 (Ky. Aug. 26, 2004).

Even though there was generally no appeal allowed from a divorce action, an appeal was permitted if the divorce judgment was void. However, a motion to set aside a divorce decree under CR 60.02 based on the fact that a marriage had been annulled by the Roman Catholic Church was properly denied because the motion was untimely filed, there was no evidence of civil fraud, and constitutional reasons did not allow an interface between church and state law. Age v. Age, 340 S.W.3d 88, 2011 Ky. App. LEXIS 23 (Ky. Ct. App. 2011).

26.Denial of Probation.

The appellant could appeal the denial of shock probation, despite her entry of an unconditional guilty plea. Ware v. Commonwealth, 34 S.W.3d 383, 2000 Ky. App. LEXIS 70 (Ky. Ct. App. 2000).

27.Termination of Parental Rights.

A mother had standing to appeal the trial court’s denial of her petition for involuntary termination of a father’s parental rights with respect to their child; KRS 625.110 , which allows appeals only from an order granting such a petition, and not from a denial of a petition, is unconstitutional for violating the right to appeal guaranteed by Ky. Const. § 115. K.R.L. v. P.A.C., 210 S.W.3d 183, 2006 Ky. App. LEXIS 349 (Ky. Ct. App. 2006).

28.Waiver.

While the plea form that defendant signed conjoined the waiver of a right that was constitutionally guaranteed with the waiver of a right that was not, omission of the adjective “constitutional” did not diminish the validity of defendant’s waiver of the right to appeal under Ky. Const. § 115; therefore, defendant’s motion to withdraw the defendant’s waiver of jury sentencing under RCr P. 9.26(1) and KRS 532.055 was properly denied. Simms v. Commonwealth, 354 S.W.3d 141, 2011 Ky. App. LEXIS 166 (Ky. Ct. App. 2011).

Trial court properly denied the nursing homes’ motions for relief from judgments because, while arbitration was not only sanctioned, but indeed promoted, by the Kentucky Constitution, the arbitration agreements at issue were never validly formed where the powers vested in the attorneys-in-fact did not encompass the power to enter into an arbitration agreements regarding the claims of their decedents, the authority to waive the decedents’ constitutional rights of access to the courts by court or jury and to appeal to a higher court were not explicitly set out in the power-of-attorney document, and the attorneys-in-fact were not authorized to enter into arbitration agreements on behalf of the wrongful death beneficiaries. Extendicare Homes, Inc. v. Whisman, 478 S.W.3d 306, 2015 Ky. LEXIS 1867 ( Ky. 2015 ), rev'd in part, vacated, 137 S. Ct. 1421, 197 L. Ed. 2d 806, 2017 U.S. LEXIS 2948 (U.S. 2017).

Court of appeals erred in failing to apply the Fugitive Disentitlement Doctrine on the ground that to do so would deprive defendant of her constitutional right to appeal because defendant was informed of her constitutional right to appeal and expressly waived that right when she pleaded guilty, and the trial court informed defendant of the constitutional right to appeal at her sentencing hearing; defendant’s appeal of the order revoking her probation was a statutory right to appeal. Commonwealth v. Hess, 2021 Ky. LEXIS 320 (Ky. June 17, 2021).

Cited:

Stephens v. Goodenough, 560 S.W.2d 556, 1977 Ky. LEXIS 571 ( Ky. 1977 ); Carter v. Craig, 574 S.W.2d 352, 1978 Ky. App. LEXIS 626 (Ky. Ct. App. 1978); Sarver v. County of Allen, 582 S.W.2d 40, 1979 Ky. LEXIS 263 ( Ky. 1979 ); Griffith v. Schultz, 609 S.W.2d 125, 1980 Ky. LEXIS 269 ( Ky. 1980 ); Commonwealth v. Gettys, 610 S.W.2d 899, 1980 Ky. App. LEXIS 403 (Ky. Ct. App. 1980); Smith v. Commonwealth, 634 S.W.2d 411, 1982 Ky. LEXIS 259 ( Ky. 1982 ); Hagg v. Kentucky Utilities Co., 660 S.W.2d 680, 1983 Ky. App. LEXIS 363 (Ky. Ct. App. 1983); Lucey v. Kavanaugh, 724 F.2d 560, 1984 U.S. App. LEXIS 26500 (6th Cir. 1984); Clay v. Clay, 707 S.W.2d 352, 1986 Ky. App. LEXIS 1099 (Ky. Ct. App. 1986); Coomer v. Gray, 750 S.W.2d 424, 1988 Ky. LEXIS 23 ( Ky. 1988 ); Drumm v. Commonwealth, 783 S.W.2d 380, 1990 Ky. LEXIS 3 ( Ky. 1990 ); Western Baptist Hosp. v. Kelly, 827 S.W.2d 685, 1992 Ky. LEXIS 60 ( Ky. 1992 ); Kuprion v. Fitzgerald, 888 S.W.2d 679, 1994 Ky. LEXIS 135 ( Ky. 1994 ); Coffey v. Messer, 945 S.W.2d 944, 1997 Ky. LEXIS 62 ( Ky. 1997 ); Bishop v. Caudill, 87 S.W.3d 1, 2002 Ky. LEXIS 202 ( Ky. 2002 ); Emberton v. GMRI, Inc., 299 S.W.3d 565, 2009 Ky. LEXIS 250 ( Ky. 2009 ); James v. James, 313 S.W.3d 17, 2010 Ky. LEXIS 111 ( Ky. 2010 ); Louisville Metro Health Dep’t v. Highview Manor Ass’n, LLC, 319 S.W.3d 380, 2010 Ky. LEXIS 216 ( Ky. 2010 ); D.G.R. v. Commonwealth, 364 S.W.3d 106, 2012 Ky. LEXIS 3 6 ( Ky. 2012 ); Johnson v. Commonwealth, 412 S.W.3d 157, 2013 Ky. LEXIS 36 5 ( Ky. 2013 ); Purdue Pharma L.P. v. Combs, — S.W.3d —, 2014 Ky. App. LEXIS 35 (Ky. Ct. App. 2014); Commonwealth v. Wheeler, 558 S.W.3d 475, 2018 Ky. App. LEXIS 95 (Ky. Ct. App. 2018); Beck v. Scorsone, 612 S.W.3d 787, 2020 Ky. LEXIS 443 ( Ky. 2020 ).

Opinions of Attorney General.

This section clearly authorized the Commonwealth to appeal from District Court to Circuit Court for the purpose of certification of law. OAG 79-152 .

Research References and Practice Aids

Kentucky Bench & Bar.

Farley, The Public Defender System, Vol. 41, No. 2, April 1977 Ky. Bench & B. 18.

Green, Placing the Horse before the Cart — Another Proposal for Reform, Vol. 44, No. 2, April 1980, Ky. Bench & Bar 12.

Kentucky Law Journal.

Kentucky Law Survey: Quick, Criminal Procedure, 66 Ky. L.J. 605 (1977-1978).

Comments, The Contemporaneous Objection Rule: Time for a Re-Examination, 67 Ky. L.J. 212 (1978-1979).

Kentucky Law Survey, Garvey and Doutt, Civil Procedure, 68 Ky. L.J. 529 (1979-1980).

Kentucky Law Survey, Collier, Criminal Procedure, 68 Ky. L.J. 655 (1979-1980).

Kentucky Law Survey, Rogers and Sims, Administrative Law, 69 Ky. L.J. 489 (1980-81).

Kentucky Law Survey, Becker and Hay, Criminal Procedure, 69 Ky. L.J. 561 (1980-81).

Note, Judicial v. Legislative Power in Kentucky: A “Comity” of Errors, 71 Ky. L.J. 829 (1982-83).

Northern Kentucky Law Review.

Schechter, Survey of Kentucky Family Law Decisions Rendered In 1993, 21 N. Ky. L. Rev. 387 (1994).

§ 116. Rules governing jurisdiction, personnel, procedure, bar membership.

The Supreme Court shall have the power to prescribe rules governing its appellate jurisdiction, rules for the appointment of commissioners and other court personnel, and rules of practice and procedure for the Court of Justice. The Supreme Court shall, by rule, govern admission to the bar and the discipline of members of the bar.

Compiler’s Notes.

The General Assembly in 1974 proposed (Acts 1974, ch. 84, §§ 1-3) the repeal of sections 109 to 139, 141 and 143 of the Constitution and the substitution in lieu thereof new sections 109-124. This amendment was ratified by the voters at the regular election in November, 1975 and became effective January 1, 1976.

NOTES TO DECISIONS

1.In General.

A court, once having obtained jurisdiction of a cause of action, has, as an incidental to its constitutional grant of power, inherent power to do all things reasonably necessary to the administration of justice in the case before it. The control over this inherent judicial power, in this instance the injunction, is exclusively within the constitutional realm of the courts. As such, it is not within the purview of the legislature to grant or deny the power, as it has attempted to do in KRS 243.580(3), nor is it within the purview of the legislature to shape or fashion circumstances under which this inherently judicial power may be or may not be granted or denied. Smothers v. Lewis, 672 S.W.2d 62, 1984 Ky. LEXIS 256 ( Ky. 1984 ).

Legislature had the authority and power to establish the Kentucky State Board of Licensure for Professional Engineers and Land Surveyors (Board) and to vest it with the discretionary authority to oversee a regulatory scheme governing the licensing and oversight of land surveyors in Kentucky; it was not a violation of the separation of powers doctrine for the Board to act in accordance with that grant of authority. Ky. State Bd. of Licensure for Prof'l Eng'rs & Land Surveyors v. Curd, 2012 Ky. App. LEXIS 33 (Ky. Ct. App. Feb. 17, 2012, sub. op., 2012 Ky. App. Unpub. LEXIS 1026 (Ky. Ct. App. Feb. 17, 2012).

Where defendant was convicted of second-degree assault and tampering with physical evidence, the trial court did not commit plain error in permitting each party nine peremptory challenges. Because the Kentucky General Assembly did not improperly delegate its legislative duty to the Kentucky Supreme Court in the area of peremptory challenges, there were no constitutional infirmities in either KRS 29A.290 or RCr P. 9.40. Spencer v. Commonwealth, 2013 Ky. App. LEXIS 123 (Ky. Ct. App. Aug. 9, 2013), review denied, ordered not published, 2014 Ky. LEXIS 268 (Ky. June 19, 2014).

Labor unions are not akin to the Kentucky Bar Association (KBA) for purposes of 2017 Ky. Acts 1; the KBA is not a voluntary association, except in the sense that no one is required to practice law in Kentucky. Zuckerman v. Bevin, 565 S.W.3d 580, 2018 Ky. LEXIS 502 ( Ky. 2018 ).

2.Power to Prescribe Rules.

Since under § 109 and this section of the Constitution the Supreme Court only has the power to prescribe rules governing appellate procedure and jurisdiction and since the only restriction on appeal by the Commonwealth set forth by the Constitution of Kentucky, as stated in § 115, is that the Commonwealth may not appeal from a judgment of acquittal in a criminal case for any purpose other than securing a certification of the law, therefore, when the Legislature, by enactment of KRS 22A.020(4), attempted to establish rules of appellate procedure, it was contrary to the dictates of the Constitution. Commonwealth v. Schumacher, 566 S.W.2d 762, 1978 Ky. App. LEXIS 524 (Ky. Ct. App. 1978), disapproved, Commonwealth v. Littrell, 677 S.W.2d 881, 1984 Ky. LEXIS 285 ( Ky. 1984 ).

A “budget unit” or “state agency” as defined under KRS 43.010 does not include the Kentucky Bar Association or Kentucky Board of Bar Examiners since these organizations exist solely by virtue of the rules of the Kentucky Supreme Court which are expressly and exclusively authorized by this section. Ex parte Auditor of Public Accounts, 609 S.W.2d 682, 1980 Ky. LEXIS 274 ( Ky. 1980 ).

KRS 411.188 , which specifies that collateral source payments shall be an admissible fact in any civil trial, was held unconstitutional as it violated Const., §§ 27, 28 and this section, intruded on the responsibility exclusively assigned to the judicial branch of government, and served, in this case, to confuse the jury regarding the factual issue rather than assist them in deciding the damages incurred by the plaintiff. O'Bryan v. Hedgespeth, 892 S.W.2d 571, 1995 Ky. LEXIS 10 ( Ky. 1995 ).

Although it is within the authority of the legislature to prescribe rules of administrative procedure by enacting statutes, the power to prescribe rules of procedure for the courts resides in the Supreme Court. Smith v. Dixie Fuel Co., 900 S.W.2d 609, 1995 Ky. LEXIS 83 ( Ky. 1995 ).

KRS 26A.020(1) represents an encroachment by the legislature on the power of the judiciary to make rules and is therefore unconstitutional; the Kentucky Supreme Court extends comity to the legislature and upholds the statute. Foster v. Overstreet, 905 S.W.2d 504, 1995 Ky. LEXIS 98 ( Ky. 1995 ).

Former KRS 342.320(9), which authorized non-attorneys in the Department of Workers’ Claims to act as legal representatives in workers’ compensation cases, is unconstitutional as it violates the principle of separation of powers. Turner v. Kentucky Bar Ass'n, 980 S.W.2d 560, 1998 Ky. LEXIS 166 ( Ky. 1998 ).

The proof requirement of KRS 391.105 , which pertains to intestate succession of persons born out of wedlock, does not violate the separation of powers doctrine emanating from the state constitution. Harris v. Stewart, 981 S.W.2d 122, 1998 Ky. App. LEXIS 14 (Ky. Ct. App. 1998).

Where a juvenile committed felonies with a firearm, on the issue of transfer to adult court, the timing and scope of discovery was purely a procedural matter, KRS 610.342 , relating to juvenile records, was not a rule of discovery, RCr 3.07 controlled, and the juvenile was not entitled to complete discovery until probable cause was established; indeed if KRS 610.342 had been a rule of discovery, the appellate court would have been constrained to declare it an unconstitutional encroachment on the powers of the judiciary, under the separation of powers doctrine. Commonwealth v. DeWeese, 141 S.W.3d 372, 2003 Ky. App. LEXIS 267 (Ky. Ct. App. 2003).

KRS 532.043 did not violate the separation of powers doctrine by infringing upon the judiciary’s duty to administer justice and by removing all discretion from the trial court by imposing a three-year mandatory conditional discharge, as the Legislature, and not the judiciary, designated the elements of criminal conduct and the corresponding penalties; further, the Legislature did not unconstitutionally usurp the court’s functions by eliminating the exercise of discretion by the trial court in fixing a sentence, as it had the plenary power to set criminal penalties. Wilfong v. Commonwealth, 175 S.W.3d 84, 2004 Ky. App. LEXIS 353 (Ky. Ct. App. 2004).

District court judge’s authority to promulgate a rule of the court that precluded all county attorneys from posing certain objections to defense witnesses during preliminary hearings was precluded by Ky. Const. § 116 and SCR 1.040(3)(a). Delahanty v. Commonwealth ex rel. Maze, 295 S.W.3d 136, 2009 Ky. App. LEXIS 124 (Ky. Ct. App. 2009).

State supreme court did not need to apply the Fifth Amendment, U.S. Const. amend. V, which was made applicable to the states through the Fourteenth Amendment, Ky. Const. § 2 involving exercises of power, or Ky. Const. § 11 regarding the right against self-incrimination in answering the question about whether the trial court could hold a revocation of probation hearing on new, unresolved charges. Under its supervisory authority based on Ky. Const. § 110, Ky. Const. § 115, and Ky. Const. § 116, the state supreme court could craft a rule recognizing that it was not necessary that a conviction occur before a probation revocation hearing could be held, but the trial court had to make a probationer aware that while the testimony in such a hearing could not be used as substantive evidence in a criminal proceeding, such testimony could be used for other purposes, such as impeachment. Barker v. Commonwealth, 379 S.W.3d 116, 2012 Ky. LEXIS 132 ( Ky. 2012 ).

Defendant’s challenge to the constitutionality of RCr P. 9.40, arguing the Rule concerned a matter of substantive law which the general assembly had to enact, failed because Ky. Const. § 116 unquestionably granted the Kentucky Supreme Court the authority to enact the Rule. Glenn v. Commonwealth, 436 S.W.3d 186, 2013 Ky. LEXIS 585 ( Ky. 2013 ).

3.Property of Bar Association.

The funds and property of the Kentucky Bar Association and the Kentucky Board of Bar Examiners are public funds and property because their official functions are entirely public in nature; however the accountability of each unit is only to the Kentucky Supreme Court, since they are integral parts of that court under this section. Ex parte Auditor of Public Accounts, 609 S.W.2d 682, 1980 Ky. LEXIS 274 ( Ky. 1980 ).

The Kentucky bar center building located in Frankfort, Kentucky, is public property and therefore exempt from the levy of ad valorem taxes. Travis v. Landrum, 607 S.W.2d 124, 1980 Ky. App. LEXIS 373 (Ky. Ct. App. 1980).

The fact that the Commonwealth of Kentucky is not a named grantee in the deed to the state bar center building does not prevent the property from being public property and does not deprive the property of a tax exempt status. Travis v. Landrum, 607 S.W.2d 124, 1980 Ky. App. LEXIS 373 (Ky. Ct. App. 1980).

4.Power to Regulate Legal Profession.

KRS 21A.130 , KRS 21A.140 , KRS 21A.150 and KRS 21A.160 are void because they support to erect powers and limitations that no longer fall within the legislative province since the 1975 amendment to this section completely removed the authority to regulate the legal profession from the legislature and authorized the Supreme Court to exercise that authority. Ex parte Auditor of Public Accounts, 609 S.W.2d 682, 1980 Ky. LEXIS 274 ( Ky. 1980 ).

Finding no compelling reason to overrule 50 years of legal precedent which recognizes the principles outlined in the 15-year-old Unauthorized Practice of Law Opinion U-36, the court refused to exercise its general supervisory authority per this section and review U-36, which proscribes the use, by insurance companies, of salaried attorneys to provide defense services under the insurers’ policies of insurance. American Ins. Ass'n v. Kentucky Bar Ass'n, 917 S.W.2d 568, 1996 Ky. LEXIS 22 ( Ky. 1996 ).

The authority to designate who is authorized to practice law in the courts of the Commonwealth is vested solely in the Supreme Court of Kentucky and the Executive Branch of government could not by entering into a Consent Decree or otherwise encroach upon that authority. May v. Coleman, 945 S.W.2d 426, 1997 Ky. LEXIS 63 ( Ky. 1997 ).

The 1996 amendment to KRS 342.320(2)(a), which limits the maximum attorney fee for representing an injured worker before an arbitrator to $2,000.00, does not represent an unconstitutional attempt by the legislature to encroach upon the Supreme Court’s exclusive authority to regulate the practice of law. Daub v. Baker Concrete, 25 S.W.3d 124, 2000 Ky. LEXIS 91 ( Ky. 2000 ).

The 1996 amendment to KRS 342.320(2)(a), which limits the maximum attorney fee for representing an injured worker before an arbitrator to $2,000.00, is not arbitrary and capricious and, therefore, does not violate Sections 2, 14, 19, 28, 29, 109, and 116 of the Kentucky Constitution or Article 1, § 10 of the United States Constitution.Daub v. Baker Concrete, 25 S.W.3d 124, 2000 Ky. LEXIS 91 ( Ky. 2000 ).

Rules dictate what is and is not the unauthorized practice of law and the courts are required to follow them; a forcible detainer complaint is a pleading that must be filed and practiced by an attorney. Hornsby v. Hous. Auth. of Dry Ridge, 566 S.W.3d 587, 2018 Ky. App. LEXIS 306 (Ky. Ct. App. 2018).

5.— Bar Dues.

Bar dues are not essentially occupational license taxes which would subject them to audit by the auditor of public accounts, since the 1975 amendment to this section precludes control by the legislature over these funds. Ex parte Auditor of Public Accounts, 609 S.W.2d 682, 1980 Ky. LEXIS 274 ( Ky. 1980 ).

6.— Exclusive Jurisdiction.

A protective order from a Circuit Court preventing an attorney from being deposed by the Kentucky Bar Association was violative of the Supreme Court’s exclusive jurisdiction over disciplinary proceedings. Kentucky Bar Ass'n v. Shewmaker, 842 S.W.2d 520, 1992 Ky. LEXIS 153 ( Ky. 1992 ).

7.— Suspension from Practice.

Where the Supreme Court, pursuant to SCR 3.165 and this section, temporarily suspended a district court judge from the practice of law, such suspension also operated to temporarily disqualify him from serving as a district court judge since he was no longer licensed to practice law, as required for eligibility as a judge by Const., § 122. Cornett v. Judicial Retirement & Removal Com., 625 S.W.2d 564, 1981 Ky. LEXIS 299 ( Ky. 1981 ).

Where an attorney was suspended in West Virginia for two years for failing to appear and failing to follow discovery orders in a medical malpractice action, imposition of substantially different discipline was warranted under SCR 3.435(4)(b) because (1) the attorney’s conduct was grounded in neglect and poor office procedures, rather than intentional misconduct; (2) the attorney did not inflict injury to his client where the client’s case most likely would have been dismissed before trial due to an inability to find an expert witness; (3) a two-year suspension would have been unduly harsh where the suspension in West Virginia was set to expire in 147 days; and (4) the attorney cooperated in the disciplinary proceedings. Ky. Bar Ass'n v. Hardin, 219 S.W.3d 188, 2007 Ky. LEXIS 93 ( Ky. 2007 ).

6.—Exclusive Jurisdiction.

Trial court’s affirmance of a ruling by the Kentucky Unemployment Insurance Commission (Commission) denying an employee’s application for benefits was reversed because (1) a non-attorney represented an employer before the Commission, and, (2) to the extent a statute allowed such representation, the statute violated the Kentucky Constitution’s separation-of-powers provisions, as the unauthorized practice of law was implicated. Nichols v. Ky. Unemployment Ins. Comm'n, 2019 Ky. App. LEXIS 73 (Ky. Ct. App. Apr. 26, 2019).

8.Judicial Immunity.

The act of considering an application for admission to the bar, particularly when that duty is imposed upon the judiciary by the Constitution, is a judicial act; when it is performed by a judge, he or she is entitled to absolute judicial immunity. Sparks v. Character & Fitness Committee, 818 F.2d 541, 1987 U.S. App. LEXIS 6090 (6th Cir. Ky. 1987 ), vacated, 484 U.S. 1022, 108 S. Ct. 744, 98 L. Ed. 2d 757, 1988 U.S. LEXIS 324 (U.S. 1988), aff'd, 859 F.2d 428, 1988 U.S. App. LEXIS 14176 (6th Cir. Ky. 1988 ).

9.Special Justice Appointment.

The Chief Justice of Kentucky was within his constitutional authority to accept the report of the Task Force to examine the need for and feasibility of establishing a Family Court or division of court and then to exercise his sound discretion as to how and where to implement the request of the Task Force, which included the appointment of District Judges to serve as special circuit judges under the authority of the Jefferson Family Court Project “until further order of the Court.” Kuprion v. Fitzgerald, 888 S.W.2d 679, 1994 Ky. LEXIS 135 ( Ky. 1994 ).

Cited:

Kentucky Bar Asso. v. Kramer, 555 S.W.2d 245, 1977 Ky. LEXIS 498 ( Ky. 1977 ); Ash v. Security Nat’l Ins. Co., 574 S.W.2d 346, 1978 Ky. App. LEXIS 625 (Ky. Ct. App. 1978); Department for Human Resources v. Paulson, 622 S.W.2d 508, 1981 Ky. App. LEXIS 293 (Ky. Ct. App. 1981); Miller v. Jones, 658 S.W.2d 888, 1983 Ky. App. LEXIS 348 (Ky. Ct. App. 1983); Louisville v. Miller, 697 S.W.2d 164, 1985 Ky. App. LEXIS 646 (Ky. Ct. App. 1985); Commonwealth v. Reneer, 734 S.W.2d 794, 1987 Ky. LEXIS 232 ( Ky. 1987 ); Poorman v. Commonwealth, 782 S.W.2d 603, 1989 Ky. LEXIS 85 ( Ky. 1989 ); Drumm v. Commonwealth, 783 S.W.2d 380, 1990 Ky. LEXIS 3 ( Ky. 1990 ); Abernathy v. Nicholson, 899 S.W.2d 85, 1995 Ky. LEXIS 76 ( Ky. 1995 ); Herndon v. Herndon, 139 S.W.3d 822, 2004 Ky. LEXIS 88 ( Ky. 2004 ); Commonwealth v. Chauvin, 316 S.W.3d 279, 2010 Ky. LEXIS 146 ( Ky. 2010 ); C. C. v. Cabinet for Health & Family Servs., 330 S.W.3d 83, 2011 Ky. LEXIS 9 ( Ky. 2011 ); Hallum v. Commonwealth, 347 S.W.3d 55, 2011 Ky. LEXIS 54 ( Ky. 2011 ); Grider v. Commonwealth, 404 S.W.3d 859, 2013 Ky. LEXIS 229 ( Ky. 2013 ); Ky. Bar Ass’n v. Deters, 406 S.W.3d 812, 2013 Ky. LEXIS 246 ( Ky. 2013 ); Dunlap v. Commonwealth, — S.W.3d —, 2013 Ky. LEXIS 292 (Ky. 2013); Greene v. Boyd, 603 S.W.3d 231, 2020 Ky. LEXIS 224 ( Ky. 2020 ).

Opinions of Attorney General.

The Legislature cannot constitutionally establish procedural rules on its own, since under this section the rules of practice and procedure for the Court of Justice is left exclusively to the Supreme Court of Kentucky and, further, no statute can lawfully suggest some procedural practice which would deviate from that prescribed by the Supreme Court. OAG 78-136 .

Acts 1994, ch. 87 (KRS 42.700 (now repealed) and references to it in KRS 21A.140 and 311.610 ) is not violative of this section, which provides that the Supreme Court shall govern admission and discipline of members of the bar, as the annual fee, at issue, is not made a part of the professional dues. OAG 95-21 .

Research References and Practice Aids

Kentucky Bench & Bar.

An Overview of Kentucky’s New Court System, Vol. 41, No. 2, April 1977 Ky. Bench & B. 13.

Mapother, Kentucky’s New Rules of Civil and Criminal Procedure, Vol. 42, No. 1, Jan. 1978 Ky. Bench & B. 22.

Kentucky Law Journal.

Comments, The Contemporaneous Objection Rule: Time for a Re-Examination, 67 Ky. L.J. 212 (1978-1979).

Kentucky Law Survey, Collier, Criminal Procedure, 68 Ky. L.J. 655 (1979-1980).

Kentucky Law Survey, Gaetke and Casey, 70 Ky. L.J. 325 (1981-82).

Kentucky Law Survey, Leathers, Civil Procedure, 71 Ky. L.J. 395 (1982-83).

Leathers, Rethinking Jurisdiction and Notice in Kentucky, 71 Ky. L.J. 755 (1982-83).

Note, Judicial v. Legislative Power in Kentucky: A “Comity” of Errors, 71 Ky. L.J. 829 (1982-83).

Kentucky Law Survey, Fortune, Criminal Procedure, 73 Ky. L.J. 347 (1984-85).

Notes, The Kentucky Board of Bar Examiners’ Character and Fitness Certification Questionnaire: Are Mental Health Inquiries a Violation of the Americans with Disabilities Act?, 84 Ky. L.J. 685 (1995-96).

Northern Kentucky Law Review.

Dosker, The Kentucky Rules of Evidence: Trojan Horse or Improvement over Common Law?, 20 N. Ky. L. Rev. 701 (1993).

Notes, Restoration of the Collateral Source Rule in Kentucky: A Review of O’Bryan v. Hedgespeth, 23 N. Ky. L. Rev. 357 (1996).

Kemp & Kemp, Kentucky Workers’ Compensation Law Update: Issues Facing Employers, Employees, Medical Providers, Insurers and Practitioners as House Bill 1 Continues to Evolve, 26 N. Ky. L. Rev. 67 (1999).

Offices of Justices and Judges

§ 117. Election.

Justices of the Supreme Court and judges of the Court of Appeals, Circuit and District Court shall be elected from their respective districts or circuits on a nonpartisan basis as provided by law.

Compiler’s Notes.

The General Assembly in 1974 proposed (Acts 1974, ch. 84, §§ 1-3) the repeal of sections 109 to 139, 141 and 143 of the Constitution and the substitution in lieu thereof new sections 109-124. This amendment was ratified by the voters at the regular election in November, 1975 and became effective January 1, 1976.

NOTES TO DECISIONS

1.Nonpartisan Election.

Primary election process for selecting candidates for judicial office does not, by mere label “primary election,” denote a partisan election in violation of this section of the Constitution. Davis v. Delahanty, 551 S.W.2d 227, 1977 Ky. LEXIS 460 ( Ky. 1977 ).

2.Judicial Authority.

None of the provisions of Const., §§ 113, 122, or this section implies that any judge’s powers and authority are limited to the district in which he or she is elected. The provisions of Const., § 113(4) for a chief judge do evince, of course, an expectation that District and Circuit Judges will usually and regularly serve within the respective districts or circuits where they are elected, but they are still members of the same court and have equal capacity to act throughout the Commonwealth, subject to the administrative authority of the respective chief judges and the chief justice and subject to the rule making power of the Supreme Court. Richmond v. Commonwealth, 637 S.W.2d 642, 1982 Ky. LEXIS 288 ( Ky. 1982 ).

3.De Facto Judges.

A person is a de facto, though not a de jure, judge where, without known appointment or election, he holds office under such circumstances of reputation or acquiescence as are calculated to induce people, without inquiry, to submit to or invoke his action, supposing him to be the officer he assumes to be. Mitchell Mill Remnant Corp. v. Long, 223 Ky. 242 , 3 S.W.2d 639, 1928 Ky. LEXIS 329 ( Ky. 1928 ) (decided under prior law).

4.Splitting Counties.

Since former section of the Constitution requires that the state be divided “by counties” into appellate court districts, such a requirement forbids the splitting of any county between two (2) or more districts. Kentucky State Bar Asso. v. Taylor, 482 S.W.2d 574, 1972 Ky. LEXIS 195 ( Ky. 1972 ) (decided under prior law).

5.“One Man, One Vote.”

Unless and until it is determined by the United States Supreme Court that the federal Constitution dictates otherwise, the “one man, one vote” principle should not and does not apply to the judiciary and the state court was bound to comply with the State Constitution. Kentucky State Bar Asso. v. Taylor, 482 S.W.2d 574, 1972 Ky. LEXIS 195 ( Ky. 1972 ) (decided under prior law).

Cited:

Peers v. Davis, 573 S.W.2d 331, 1978 Ky. LEXIS 405 ( Ky. 1978 ); Noble v. Meagher, 686 S.W.2d 458, 1985 Ky. LEXIS 207 ( Ky. 1985 ).

Opinions of Attorney General.

Members of the new Court of Appeals are required to be legal residents of the Supreme Court districts they represent but not of a division which has no geographic delineation within the district. OAG 76-487 .

Research References and Practice Aids

Cross-References.

Election, KRS 118A.040 .

Election, procedure, KRS Ch. 118A.

Judicial nominating commissions, KRS 34.010 .

Kentucky Law Journal.

Note, Judicial v. Legislative Power in Kentucky: A “Comity” of Errors, 71 Ky. L.J. 829 (1982-83).

Kentucky Law Survey, Fortune and Welling, Criminal Procedure, 72 Ky. L.J. 381 (1983-84).

Northern Kentucky Law Review.

Johnson, Judicial Campaign Speech in Kentucky After Republican Party of Minnesota v. White, 30 N. Ky. L. Rev. 347 (2003).

§ 118. Vacancies.

  1. A vacancy in the office of a justice of the Supreme Court, or of a judge of the Court of Appeals, Circuit or District Court which under Section 152 of this Constitution is to be filled by appointment by the Governor shall be filled by the Governor from a list of three names presented to him by the appropriate judicial nominating commission. If the Governor fails to make an appointment from the list within sixty days from the date it is presented to him, the appointment shall be made from the same list by the chief justice of the Supreme Court.
  2. There shall be one judicial nominating commission for the Supreme Court and the Court of Appeals, one for each judicial circuit, and one for each judicial district, except that a circuit and district having the same boundary shall have but one judicial nominating commission. Each commission shall consist of seven members, one of whom shall be the chief justice of the Supreme Court, who shall be chairman. Two members of each commission shall be members of the bar, who shall be elected by their fellow members. The other four members shall be appointed by the Governor from among persons not members of the bar, and these four shall include at least two members of each of the two political parties of the Commonwealth having the largest number of voters. Members of a judicial circuit or judicial district nominating commission must be residents of the circuit or district, respectively, and the lawyer members of the commission shall be elected by the members of the bar residing in the circuit or district, respectively. The terms of office of members of judicial nominating commissions shall be fixed by the General Assembly. No person shall be elected or appointed a member of a judicial nominating commission who holds any other public office or any office in a political party or organization.

Compiler’s Notes.

The General Assembly in 1974 proposed (Acts 1974, ch. 84, §§ 1-3) the repeal of sections 109 to 139, 141 and 143 of the constitution and the substitution in lieu thereof new sections 109-124. This amendment was ratified by the voters at the regular election in November, 1975 and became effective January 1, 1976.

NOTES TO DECISIONS

1.Checks and Balances.

The constitutional check-and-balance relationship between the executive and judicial branches of the government consists of the provisions for filling vacancies in judicial offices under this section and for the appointment of temporary substitutes when two or more justices of the Supreme Court decline or are unable to participate in the disposition of a cause pending before that court under Const., § 110. Ex parte Auditor of Public Accounts, 609 S.W.2d 682, 1980 Ky. LEXIS 274 ( Ky. 1980 ).

Cited:

Peers v. Davis, 573 S.W.2d 331, 1978 Ky. LEXIS 405 ( Ky. 1978 ).

Decisions Under Prior Section

1.Creation of Additional Office.

When the Legislature created the office of an additional Circuit Judge for the Kenton districts, the office was vacant, in legal contemplation, until an incumbent was appointed or elected. Yates v. McDonald, 123 Ky. 596 , 96 S.W. 865, 29 Ky. L. Rptr. 1056 , 1906 Ky. LEXIS 186 ( Ky. 1906 ).

2.Transfer of Judge.

Where the Court of Appeals, more than three months before the next scheduled general election, accepted the application of a retiring Circuit Judge and ordered that he be transferred from the status of Circuit Judge to that of special Circuit Judge, the office he held as Circuit Judge became vacant as of that date and must be filled at the next general election despite the appointment by the Governor of a judge to fill the vacancy less than three months before the general election. Hancock v. Queenan, 294 S.W.2d 92, 1956 Ky. LEXIS 117 ( Ky. 1956 ).

Opinions of Attorney General.

The Governor may properly appoint a District Court Judge from a list of less than three names submitted by a Judicial Nominating Commission where the chief justice declares that the Commission could not find a third qualified candidate; to hold otherwise would mean that irrespective of the fact that the Commission, after due deliberation, failed to find an additional candidate that it believed to be qualified to fill the vacancy, it would nevertheless be required to submit the name of an individual who it did not consider qualified in order to meet the requirement for three nominees. OAG 83-387 .

Research References and Practice Aids

Kentucky Bench & Bar.

An Overview of Kentucky’s New Court System, Vol. 41, No. 2, April 1977 Ky. Bench & B. 13.

Bartlett, The Selection and Election of Judges in Kentucky, Vol. 53, No. 3, Summer 1989, Ky. Bench & Bar 26.

§ 119. Terms of office.

Justices of the Supreme Court and judges of the Court of Appeals and Circuit Court shall severally hold their offices for terms of eight years, and until the year two thousand twenty-two, judges of the District Court for terms of four years. Beginning in the year two thousand twenty-two, judges of the district court shall hold their offices for terms of eight years. All terms commence on the first Monday in January next succeeding the regular election for the office. No justice or judge may be deprived of his term of office by redistricting, or by a reduction in the number of justices or judges.

History. Amendment, proposed by Acts 2020, ch. 95, § 3, and is contingent upon ratification on November 3, 2020.

Compiler’s Notes.

The General Assembly in 1974 proposed (Acts 1974, ch. 84, §§ 1-3) the repeal of sections 109 to 139, 141 and 143 of the constitution and the substitution in lieu thereof new sections 109-124. This amendment was ratified by the voters at the regular election in November, 1975 and became effective January 1, 1976.

Effective Date.

November 3, 2020, contingent upon its ratification at the November 3, 2020 election. If not ratified, this proposed constitutional amendment shall be void.

Research References and Practice Aids

Kentucky Law Journal.

Note, Judicial v. Legislative Power in Kentucky: A “Comity” of Errors, 71 Ky. L.J. 829 (1982-83).

§ 120. Compensation — Expenses.

All justices and judges shall be paid adequate compensation which shall be fixed by the General Assembly. All compensation and necessary expenses of the Court of Justice shall be paid out of the State Treasury. The compensation of a justice or judge shall not be reduced during his term.

Compiler’s Notes.

The General Assembly in 1974 proposed (Acts 1974, ch. 84, §§ 1-3) the repeal of sections 109 to 139, 141 and 143 of the constitution and the substitution in lieu thereof new sections 109-124. This amendment was ratified by the voters at the regular election in November, 1975 and became effective January 1, 1976.

NOTES TO DECISIONS

1.Checks and Balances.

The constitutional check-and-balance relationship between the legislative and judicial branches of the government exists by virtue of Const., §§ 110 to 123. Ex parte Auditor of Public Accounts, 609 S.W.2d 682, 1980 Ky. LEXIS 274 ( Ky. 1980 ).

2.De Facto Judge.

A judge appointed under an unconstitutional act, good on its face, is a de facto officer, and his acts are valid as to third persons, but he is entitled to no compensation. Nagel v. Bosworth, 148 Ky. 807 , 147 S.W. 940, 1912 Ky. LEXIS 552 ( Ky. 1912 ) (decided under prior law).

3.Special Judges.

The legislature could compensate regular Circuit Court Judges for acting as special judges, which was not a part of their duties as regular judge, and such additional compensation was not unconstitutional. James v. Cammack, 139 Ky. 223 , 129 S.W. 582, 1910 Ky. LEXIS 26 ( Ky. 1910 ) (decided under prior law).

Opinions of Attorney General.

This section as to funding the operation of the court of justice out of the State Treasury is not self-executing. OAG 76-53 .

In order to facilitate the orderly transitional period prior to full State Treasury financing for the court system, the fiscal court, in making its appropriations for the first half of fiscal 1977-78 for the Circuit Court reporter and judge, should send the appropriations to the Secretary of Finance (now Secretary of Finance and Administration) who can effect a proper placing of the appropriations in the State Treasury. OAG 77-176 .

§ 121. Retirement and removal.

Subject to rules of procedure to be established by the Supreme Court, and after notice and hearing, any justice of the Supreme Court or judge of the Court of Appeals, Circuit Court or District Court may be retired for disability or suspended without pay or removed for good cause by a commission composed of one judge of the Court of Appeals, selected by that court, one circuit judge and one district judge selected by a majority vote of the circuit judges and district judges, respectively, one member of the bar appointed by its governing body, and two persons, not members of the bench or bar, appointed by the Governor. The commission shall be a state body whose members shall hold office for four-year terms. Its actions shall be subject to judicial review by the Supreme Court.

Compiler’s Notes.

The General Assembly in 1974 proposed (Acts 1974, ch. 84, §§ 1-3) the repeal of sections 109 to 139, 141 and 143 of the constitution and the substitution in lieu thereof new sections 109-124. This amendment was ratified by the voters at the regular election in November, 1975 and became effective January 1, 1976.

NOTES TO DECISIONS

1.Construction.

The language of this section is so similar to the language contained in Article VI, § 22(a) of the New York Constitution, before its amendment in 1975, that it must be concluded that the drafters of § 121 used § 22(a) as a model. Nicholson v. Judicial Retirement & Removal Com., 562 S.W.2d 306, 1978 Ky. LEXIS 322 ( Ky. 1978 ).

The purpose of this section is the regulation of the conduct of those persons charged with the administration of justice and the aim of proceedings instituted pursuant to this section is to improve the quality of justice administered within the Commonwealth by examining specific complaints of judicial misconduct, determining their relation to a judge’s fitness for office and correcting any deficiencies found by taking the least severe action necessary to remedy the situation. Nicholson v. Judicial Retirement & Removal Com., 562 S.W.2d 306, 1978 Ky. LEXIS 322 ( Ky. 1978 ).

2.Sanctions Authorized.

The express grant of authority to retire, suspend or remove judges for good cause contained in this section of the Kentucky Constitution includes by implication the authority to impose the lesser sanctions set forth in SCR 4.020(b). Nicholson v. Judicial Retirement & Removal Com., 562 S.W.2d 306, 1978 Ky. LEXIS 322 ( Ky. 1978 ).

Where a rumor was circulating that an automobile manufacturer would not be paying its employees an annual bonus during the current year, where a family court judge anticipated being inundated with motions to modify such employees’ support obligations, and where the judge issued a standing order that precluded all employees of the automobile manufacturer and any person looking at an employee’s salary to increase or lower support payments from filing a modification motion, the judge committed misconduct because the order was an outright prohibition on child support modifications and thereby denied litigants access to the court for redress. While the judge characterized the standing order as nothing more than an administrative order that attempted to deal with an anticipated influx of modification motions and likened her standing order to local rules, local rules were required to be approved by the chief justice, and rules, especially local rules, could not deny individuals access to the courts or decline jurisdiction in matters where there was a clear statutory authority for filing said motions. Because the judge acted in disregard for the law and the due process rights of litigants and because her conduct was so egregious that she could not claim the errors were made in good faith, she was suspended without pay for 45 days. Gormley v. Judicial Conduct Comm'n, 2010 Ky. LEXIS 198 (Ky. Aug. 26, 2010), sub. op., modified, 332 S.W.3d 717, 2010 Ky. LEXIS 308 ( Ky. 2010 ), modified, 2011 Ky. LEXIS 15 (Ky. Jan. 20, 2011).

3.Right to Practice Law.

Supreme Court Rule 4.020(1)(b), erroneously gives the Judicial Retirement and Removal Commission jurisdiction to impose additional sanctions relating to an individual’s right to practice law; it provides for sanctions of suspension or disbarment from the practice of law, however, this rule is beyond the scope of this section and is therefore unconstitutional. Kentucky Bar Asso. v. Hardesty, 775 S.W.2d 87, 1989 Ky. LEXIS 57 ( Ky. 1989 ) (decision prior to 1989 amendment of SCR 4.020).

4.Duration of Removal.

A candidate who had been removed from the office of District Court Judge could not seek election to that office in the special election to fill his unexpired term since the remedy of removal disqualifies a former judge from judicial office for at least the remainder of the current term. Kentucky Judicial Conduct Comm'n v. Woods, 25 S.W.3d 470, 2000 Ky. LEXIS 108 ( Ky. 2000 ).

5.Jurisdiction.

Judicial Conduct Commission correctly ruled that it had continuing jurisdiction over the judge following her separation from office because the language of the Constitution permitted the supreme court, by rule, to empower the Commission to adjudicate charges against justices and judges, including those who retire/resign, were defeated for re-election, and even lawyers who unsuccessfully aspired to judicial office with respect to campaign violations. Maze v. Judicial Conduct Comm'n, 612 S.W.3d 793, 2020 Ky. LEXIS 463 ( Ky. 2020 ).

Cited:

Kentucky Bar Asso. v. Heleringer, 602 S.W.2d 165, 1980 Ky. LEXIS 236 ( Ky. 1980 ); Long v. Judicial Retirement & Removal Com., 610 S.W.2d 614, 1980 Ky. LEXIS 287 ( Ky. 1980 ); Cornett v. Judicial Retirement & Removal Com., 625 S.W.2d 564, 1981 Ky. LEXIS 299 ( Ky. 1981 ); Commonwealth v. Brandenburg, 114 S.W.3d 830, 2003 Ky. LEXIS 210 ( Ky. 2003 ); Alred v. Commonwealth, — S.W.3d —, 2012 Ky. LEXIS 101 ( Ky. 2012 ).

Opinions of Attorney General.

If a Circuit Judge moves his residence out of his district during his term, he would be subject to removal for cause. OAG 77-414 .

Research References and Practice Aids

Cross-References.

Judicial retirement system for judges, KRS 21.345 to 21.570 .

Kentucky Bench & Bar.

Savage and Lawson, The Judicial Retirement and Removal Commission: Myth and Reality, Vol. 53, No. 2, Spring 1989, Ky. Bench & Bar 26.

Kentucky Law Journal.

Kentucky Law Survey, Wallingford, Professional Responsibility, 67 Ky. L.J. 757 (1978-1979).

Northern Kentucky Law Review.

Brown, Notes, Deters v. Judicial Retirement and Removal Commission: Free Speech and the Appearance of Judicial Impartiality, 22 N. Ky. L. Rev. 497 (1995).

§ 122. Eligibility.

To be eligible to serve as a justice of the Supreme Court or a judge of the Court of Appeals, Circuit Court or District Court a person must be a citizen of the United States, licensed to practice law in the courts of this Commonwealth, and have been a resident of this Commonwealth and of the district from which he is elected for two years next preceding his taking office. In addition, to be eligible to serve as a justice of the Supreme Court or judge of the Court of Appeals or Circuit Court a person must have been a licensed attorney for at least eight years. No district judge shall serve who has not been a licensed attorney for at least two years.

Compiler’s Notes.

The General Assembly in 1974 proposed (Acts 1974, ch. 84, §§ 1-3) the repeal of sections 109 to 139, 141 and 143 of the constitution and the substitution in lieu thereof new sections 109-124. This amendment was ratified by the voters at the regular election in November, 1975 and became effective January 1, 1976.

NOTES TO DECISIONS

1.Suspension from Practice.

Where the Supreme Court, pursuant to SCR 3.165 and Const., § 116, temporarily suspended a District Court Judge from the practice of law, such suspension also operated to temporarily disqualify him from serving as a District Court Judge since he was no longer licensed to practice law, as required by this section. Cornett v. Judicial Retirement & Removal Com., 625 S.W.2d 564, 1981 Ky. LEXIS 299 ( Ky. 1981 ).

2.Judicial Authority.

None of the provisions of Const., §§ 113, 117, or this section implies that any judge’s powers and authority are limited to the district in which he or she is elected. The provisions of Const., § 113(4) for the chief judge do evince, of course, an expectation that District and Circuit Judges will usually and regularly serve within the respective districts or circuits where they are elected, but they are still members of the same court and have equal capacity to act throughout the Commonwealth, subject to the administrative authority of the respective chief judges and the chief justice and subject to the rulemaking power of the Supreme Court. Richmond v. Commonwealth, 637 S.W.2d 642, 1982 Ky. LEXIS 288 ( Ky. 1982 ).

3.Eligibility.

The two (2) year residency requirement does not violate equal protection under the law since the requirement is a valid method of addressing the legitimate state interest in ensuring that a judge is familiar with the problems and needs of the people of his district. Mobley v. Armstrong, 978 S.W.2d 307, 1998 Ky. LEXIS 108 ( Ky. 1998 ).

Cited in:

Noble v. Meagher, 686 S.W.2d 458, 1985 Ky. LEXIS 207 ( Ky. 1985 ); Kuprion v. Fitzgerald, 888 S.W.2d 679, 1994 Ky. LEXIS 135 ( Ky. 1994 ).

Opinions of Attorney General.

This section requires an appointee as well as one elected to the office to possess all the qualifications enumerated at the time the person is sworn into office. OAG 79-601 .

A Circuit Court Judge may serve as the executor of an estate without violating this section since service as an executor only does not constitute the practice of law. OAG 82-62 .

Research References and Practice Aids

Kentucky Bench & Bar.

Bartlett, The Selection and Election of Judges in Kentucky, Vol. 53, No. 3, Summer 1989, Ky. Bench & Bar 26.

Kentucky Law Journal.

Kentucky Law Survey, Fortune and Welling, Criminal Procedure, 72 Ky. L.J. 381 (1983-84).

§ 123. Prohibited activities.

During his term of office, no justice of the Supreme Court or judge of the Court of Appeals, Circuit Court or District Court shall engage in the practice of law, or run for elective office other than judicial office, or hold any office in a political party or organization.

Compiler’s Notes.

The General Assembly in 1974 proposed (Acts 1974, ch. 84, §§ 1-3) the repeal of sections 109 to 139, 141 and 143 of the constitution and the substitution in lieu thereof new sections 109-124. This amendment was ratified by the voters at the regular election in November, 1975 and became effective January 1, 1976.

NOTES TO DECISIONS

1.Special Judges.

This section is not intended to be applicable to special judges because each special judge pro tempore appointed by the Chief Justice holds this appointive office at the pleasure of the Chief Justice and does not serve a “term of office.” Regency Pheasant Run v. Karem, 860 S.W.2d 755, 1993 Ky. LEXIS 96 ( Ky. 1993 ).

Opinions of Attorney General.

As a result of the repeal of the former language of this section, the Rules of Criminal Procedure now control the style of judicial processes. OAG 76-230 .

§ 124. Conflicting provisions.

Any remaining sections of the Constitution of Kentucky as it existed prior to the effective date of this amendment which are in conflict with the provisions of amended Sections 110 through 125 are repealed to the extent of the conflict, but such amended sections are not intended to repeal those parts of Sections 140 and 142 conferring nonjudicial powers and duties upon county judges and justices of the peace. Nothing in such amended sections shall be construed to limit the powers otherwise granted by this Constitution to the county judge as the chief executive, administrative and fiscal officer of the county, or to limit the powers otherwise granted by the Constitution to the justices of the peace or county commissioners as executive, administrative and fiscal officers of a county, or of the fiscal court as a governing body of a county.

Compiler’s Notes.

The General Assembly in 1974 proposed (Acts 1974, ch. 84, §§ 1-3) the repeal of sections 109 to 139, 141 and 143 of the constitution and the substitution in lieu thereof new sections 109-124. This amendment was ratified by the voters at the regular election in November, 1975 and became effective January 1, 1976.

NOTES TO DECISIONS

Cited:

Peers v. Davis, 573 S.W.2d 331, 1978 Ky. LEXIS 405 ( Ky. 1978 ); Woodward v. Commonwealth, 949 S.W.2d 599, 1997 Ky. LEXIS 75 ( Ky. 1997 ).

§§ 125 — 138. §§ 125 — 138. [Repealed.]

Compiler’s Notes.

These sections were repealed by the proposal of the General Assembly (Acts 1974, ch. 84, §§ 1-3) which was ratified by the voters at the regular election in November, 1975 and became effective January 1, 1976. For present law see Const., §§ 112, 117-123.

NOTES TO DECISIONS

12.-- Time of Review.

Court of appeals properly affirmed the decisions of the Workers' Compensation Board and an ALJ that an employee was entitled to reopen her workplace injury claim because the employee's motion to reopen the order granting benefits was timely filed within the statutory four-year period and the employee's condition had worsened from partial disability to total disability between the dates of the original award and the filing of the second reopening. Toyota Motor Mfg. Ky. v. Prichard, 532 S.W.3d 633, 2017 Ky. LEXIS 452 ( Ky. 2017 ).

Quarterly Courts

§ 139. Quarterly court for each county — Jurisdiction — County judge to preside. [Repealed.]

Compiler’s Notes.

This section was repealed by the proposal of the General Assembly (Acts 1974, ch. 84, §§ 1-3) which was ratified by the voters at the regular election in November, 1975 and became effective January 1, 1976.

County Courts

§ 140. County court for each county — Judge — Compensation — Commission — Removal.

There shall be established in each county now existing, or which may be hereafter created, in this State, a Court, to be styled the County Court, to consist of a Judge, who shall be a conservator of the peace, and shall receive such compensation for his services as may be prescribed by law. He shall be commissioned by the Governor, and shall vacate his office by removal from the county in which he may have been elected.

NOTES TO DECISIONS

1.Judge.

A county judge, in the absence of express authority from fiscal court, could not bind the county by agreement to arbitrate dispute as to amount to be awarded for land taken for road which was a part of a state or federal project. Adams' Heirs v. McCoy, 212 Ky. 731 , 279 S.W. 1103, 1926 Ky. LEXIS 227 ( Ky. 1926 ).

Statute providing that vacancy in office of county judge shall be filled by appointment by fiscal court of county is not unconstitutional as constituting the county judge a noncommissioned officer. Frost v. Johnston, 262 Ky. 592 , 90 S.W.2d 1045, 1936 Ky. LEXIS 82 ( Ky. 1936 ).

2.Jurisdiction.

A proceeding to take land by eminent domain initiated in the county court, a tribunal which constituted a part of the judicial establishment of the Commonwealth under this section, was removable to the federal court where it involved a controversy between citizens of different states. Madisonville Traction Co. v. St. Bernard Mining Co., 196 U.S. 239, 25 S. Ct. 251, 49 L. Ed. 462, 1905 U.S. LEXIS 898 (U.S. 1905).

The county court is a court whose jurisdiction depends in every instance upon express statutory authority. Silbersack v. Kraft, 194 Ky. 587 , 240 S.W. 392, 1922 Ky. LEXIS 233 ( Ky. 1922 ). See Adams' Heirs v. McCoy, 212 Ky. 731 , 279 S.W. 1103, 1926 Ky. LEXIS 227 ( Ky. 1926 ).

3.Records.

A county court is a court of record, and can speak only through its records. Adams' Heirs v. McCoy, 212 Ky. 731 , 279 S.W. 1103, 1926 Ky. LEXIS 227 ( Ky. 1926 ).

4.Taxation.

This section and Const., §§ 144 and 171 did not repeal existing law providing for levy and collection of railroad bond payment taxes by county judges. Guthrie v. Sparks, 131 F. 443, 1904 U.S. App. LEXIS 4299 (6th Cir. Ky.), cert. denied, 195 U.S. 633, 25 S. Ct. 790, 49 L. Ed. 353, 1904 U.S. LEXIS 741 (U.S. 1904).

Cited:

Guthrie v. Sparks, 131 F. 443, 1904 U.S. App. LEXIS 4299 (6th Cir. 1904); Joyes v. Jefferson County Fiscal Court, 106 Ky. 615 , 21 Ky. L. Rptr. 199 , 51 S.W. 435, 1899 Ky. LEXIS 94 ( Ky. 1899 ); Pratt v. Breckinridge, 66 S.W. 405, 23 Ky. L. Rptr. 1858 ( Ky. 1902 ); Hickman County v. Jackson, 153 Ky. 551 , 156 S.W. 391, 1913 Ky. LEXIS 914 ( Ky. 1913 ); Hamlet v. Davis, 244 Ky. 727 , 51 S.W.2d 963, 1932 Ky. LEXIS 501 ( Ky. 1932 ); Brown v. Hoblitzell, 307 S.W.2d 739, 1956 Ky. LEXIS 2 ( Ky. 1957 ).

Opinions of Attorney General.

A county judge who has been mandatorily called to active duty in the armed forces of the United States for a period exceeding his remaining term of office has not, in the absence of his intent to abandon that office, vacated his civil office within the meaning of this section or any other pertinent constitutional or statutory provisions, his functions in civil office being only suspended during such emergency service. The fact that his specified period of active duty in the armed forces exceeds his remaining term as county judge is not controlling as his military service could be for a shorter time than his civil term. OAG 68-187 .

Since this section designates a county judge as a “conservator of the peace,” he is authorized to arrest without warrant persons who commit misdemeanors in his presence. OAG 68-342 .

The county judge has the responsibility of establishing the voting places in the various precincts in the county. OAG 70-806 .

Research References and Practice Aids

Cross-References.

Vacancy in office of county judge, how filled, KRS 63.190 , 63.210 .

§ 141. Jurisdiction of county courts. [Repealed.]

Compiler’s Notes.

This section was repealed by the proposal of the General Assembly (Acts 1974, ch. 84, §§ 1-3) which was ratified by the voters at the regular election in November, 1975 and became effective January 1, 1976.

Justices of the Peace

§ 142. Justices’ districts — One Justice for each district — Jurisdiction and powers of Justices — Commissions — Removal.

Each county now existing, or which may hereafter be created, in this State, shall be laid off into districts in such manner as the General Assembly may direct; but no county shall have less than three nor more than eight districts, in each of which districts one Justice of the Peace shall be elected as provided in Section 99. The General Assembly shall make provisions for regulating the number of said districts from time to time within the limits herein prescribed, and for fixing the boundaries thereof. The jurisdiction of Justices of the Peace shall be coextensive with the county, and shall be equal and uniform throughout the State. Justices of the Peace shall be conservators of the peace. They shall be commissioned by the Governor, and shall vacate their offices by removal from the districts, respectively, in which they may have been elected.

NOTES TO DECISIONS

1.In General.

The courts of justices of the peace are part of the judicial department of the government of the Commonwealth. Beiser v. Scripps-McRae Pub. Co., 113 Ky. 383 , 68 S.W. 457, 24 Ky. L. Rptr. 259 , 1902 Ky. LEXIS 73 ( Ky. 1902 ).

Justices’ courts are courts of record. McBurnie v. Sullivan, 152 Ky. 686 , 153 S.W. 945, 1913 Ky. LEXIS 698 ( Ky. 1913 ).

2.Construction.

This section went into effect on the first Monday in January, 1895. Pulaski County v. Watson, 106 Ky. 500 , 50 S.W. 861, 21 Ky. L. Rptr. 61 , 1899 Ky. LEXIS 69 ( Ky. 1899 ).

This section is mandatory. Kilbourn v. Chapman, 163 Ky. 136 , 173 S.W. 322, 1915 Ky. LEXIS 184 ( Ky. 1915 ).

3.Civil Process.

A justice of the peace may issue civil process in a civil case against a person residing at any place in his county. Wheeler v. Schulman, 165 Ky. 185 , 176 S.W. 1017, 1915 Ky. LEXIS 508 ( Ky. 1915 ).

4.Districts.

All of the territory in each county is required to be included in some one of the magisterial districts in the county. Commonwealth v. Louisville & E. Packet Co., 117 Ky. 936 , 80 S.W. 154, 25 Ky. L. Rptr. 2098 , 1904 Ky. LEXIS 263 ( Ky. 1904 ). See Covington v. State Tax Com., 231 Ky. 606 , 21 S.W.2d 1010, 1929 Ky. LEXIS 334 ( Ky. 1929 ).

A magisterial district bounded by the Ohio river runs out to the state line, which is the northern shore. Commonwealth v. Louisville & E. Packet Co., 117 Ky. 936 , 80 S.W. 154, 25 Ky. L. Rptr. 2098 , 1904 Ky. LEXIS 263 ( Ky. 1904 ).

A justice of the peace may only hold court within the district from which he is elected, unless otherwise provided by law. Wheeler v. Schulman, 165 Ky. 185 , 176 S.W. 1017, 1915 Ky. LEXIS 508 ( Ky. 1915 ). See Michael v. Fegenbush, 238 Ky. 428 , 38 S.W.2d 213, 1931 Ky. LEXIS 249 ( Ky. 1931 ).

KRS 25.690 (repealed) provided for putting into effect the provision of this section for magisterial districting. Felts v. Linton, 217 Ky. 305 , 289 S.W. 312, 1926 Ky. LEXIS 90 ( Ky. 1926 ).

5.Jurisdiction.
6.— Civil.

The jurisdiction of a justice may be exercised only in the district from which he is elected, subject to the right of the party sued to have the case transferred for trial to the district of his residence, upon proper motion. Wheeler v. Schulman, 165 Ky. 185 , 176 S.W. 1017, 1915 Ky. LEXIS 508 ( Ky. 1915 ). See Allen v. Moore, 173 Ky. 394 , 191 S.W. 93, 1917 Ky. LEXIS 461 ( Ky. 1917 ).

A justice of the peace may try civil cases, even though he is referred to as a conservator of the peace. Hamlet v. Davis, 244 Ky. 727 , 51 S.W.2d 963, 1932 Ky. LEXIS 501 ( Ky. 1932 ).

7.— Criminal.

KRS 25.010 (repealed) and 26.010 (repealed) repealed all special acts giving justices of the peace jurisdiction over liquor offenses in particular counties. McTigue v. Commonwealth, 99 Ky. 66 , 35 S.W. 121, 17 Ky. L. Rptr. 1418 , 1896 Ky. LEXIS 55 ( Ky. 1896 ).

This section did not repeal local option laws conferring jurisdiction on inferior courts to try offenses named under those laws. Lowry v. Commonwealth, 36 S.W. 1117, 18 Ky. L. Rptr. 481 (1896).

A justice may try, in the court for his district, an offense committed in another district of his county. Wheeler v. Schulman, 165 Ky. 185 , 176 S.W. 1017, 1915 Ky. LEXIS 508 ( Ky. 1915 ). See Michael v. Fegenbush, 238 Ky. 428 , 38 S.W.2d 213, 1931 Ky. LEXIS 249 ( Ky. 1931 ).

Prohibition act, giving jurisdiction of offenses to all courts of same class throughout the state, conferred uniform jurisdiction, and did not violate this section. Lakes v. Goodloe, 195 Ky. 240 , 242 S.W. 632, 1922 Ky. LEXIS 342 ( Ky. 1922 ).

The General Assembly cannot constitutionally vest in courts of justices of the peace, which have no machinery for a grand jury, jurisdiction to try an offense that can be proceeded against only by indictment. King v. Pineville, 222 Ky. 73 , 299 S.W. 1082, 1927 Ky. LEXIS 853 ( Ky. 1927 ).

8.— Contempt.

A justice of the peace, acting as a judge and within his jurisdiction, who imprisons one for either a criminal or civil contempt is not liable in damages, even though he acts maliciously or corruptly, and to sustain such an action, it is necessary not only to show that he acted maliciously or corruptly, but that he did not have jurisdiction. McBurnie v. Sullivan, 152 Ky. 686 , 153 S.W. 945, 1913 Ky. LEXIS 698 ( Ky. 1913 ).

9.— Extent.

The jurisdiction of a justice of the peace is not confined to the district from which he is elected, but is coextensive with the county. Guelot v. Pearce, 38 S.W. 892, 18 Ky. L. Rptr. 1004 (1897). See Brady v. Brannon, 134 Ky. 769 , 121 S.W. 679, 1909 Ky. LEXIS 438 ( Ky. 1909 ); Allen v. Moore, 173 Ky. 394 , 191 S.W. 93, 1917 Ky. LEXIS 461 ( Ky. 1917 ).

Subsection (1) of KRS 25.030 (repealed) did not deprive a justice of the peace of jurisdiction over an action brought against a defendant living in the county, but outside the magisterial district, and it was within the jurisdiction of the justice to either try the case or transfer it to the magisterial district in which the defendant resided. Cushing v. Doudistal, 278 Ky. 779 , 129 S.W.2d 527, 1939 Ky. LEXIS 490 ( Ky. 1939 ).

A justice of the peace has no jurisdiction to hold court beyond the territorial limits of his district. Cox v. Perkins, 299 Ky. 470 , 185 S.W.2d 954, 1945 Ky. LEXIS 449 ( Ky. 1945 ).

10.— Legislative Control.

This section expressly authorizes the General Assembly to regulate the jurisdiction of justices’ courts. Pratt v. Breckinridge, 112 Ky. 1 , 65 S.W. 136, 23 Ky. L. Rptr. 1356 , 1901 Ky. LEXIS 286 ( Ky. 1 901).

No limitation is placed on the jurisdiction which the General Assembly may grant to justices’ courts. Stone v. Paducah, 120 Ky. 322 , 86 S.W. 531, 27 Ky. L. Rptr. 717 , 1905 Ky. LEXIS 102 ( Ky. 1905 ).

The General Assembly must provide means and time and place for the exercise of jurisdiction of a justice of the peace, and has authority to regulate the exercise of his jurisdiction. Wheeler v. Schulman, 165 Ky. 185 , 176 S.W. 1017, 1915 Ky. LEXIS 508 ( Ky. 1915 ).

The General Assembly may confer upon justices of the peace such civil and penal jurisdiction as it wishes. Hamlet v. Davis, 244 Ky. 727 , 51 S.W.2d 963, 1932 Ky. LEXIS 501 ( Ky. 1932 ).

The territorial jurisdiction of justices of the peace is immune from any legislative attempts to alter its geographical limits. Cushing v. Doudistal, 278 Ky. 779 , 129 S.W.2d 527, 1939 Ky. LEXIS 490 ( Ky. 1939 ).

11.— Subject Matter.

The subject matter of which a court has jurisdiction relates to the right of the court to try particular classes of cases, either civil or criminal, and such jurisdiction has its source in the State Constitution or in legislation pursuant to it. Cushing v. Doudistal, 278 Ky. 779 , 129 S.W.2d 527, 1939 Ky. LEXIS 490 ( Ky. 1939 ).

12.Legislative Error.

Where the General Assembly inadvertently used the word “magistrate” in place of the word “court,” the Court of Appeals may, under well-settled rules of statutory construction, substitute the word “court” for “magistrate.” Commonwealth v. Goldburg, 167 Ky. 96 , 180 S.W. 68, 1915 Ky. LEXIS 818 ( Ky. 1915 ).

13.Mandamus.

The mere presence before justice of the peace of a bond and affidavit, without an allegation that levy had been discharged or suspended in part, was insufficient for a writ of mandamus to issue to compel justice of peace to transfer distraint proceedings to magisterial district of defending party. Rothenburger v. Dix, 254 Ky. 107 , 71 S.W.2d 30, 1934 Ky. LEXIS 46 ( Ky. 1934 ).

14.Prosecutions.

An application to a justice to be permitted to make an affidavit to institute a prosecution is one step in a judicial proceeding, and, therefore, though such application be denied, a fair and impartial publication of the charge thus made is a privileged publication. Beiser v. Scripps-McRae Pub. Co., 113 Ky. 383 , 68 S.W. 457, 24 Ky. L. Rptr. 259 , 1902 Ky. LEXIS 73 ( Ky. 1902 ).

15.Substitute Justices.

A justice may hold court for another justice, in the district of such other justice, when the other is absent or disqualified, or there is a vacancy in the office in that district. Wheeler v. Schulman, 165 Ky. 185 , 176 S.W. 1017, 1915 Ky. LEXIS 508 ( Ky. 1915 ).

16.Taxation.

This section does not prevent the enforcement of penal ordinances of taxing districts by justices’ courts of the counties in which the districts are located. Gleason v. Weber, 155 Ky. 431 , 159 S.W. 976, 1913 Ky. LEXIS 278 ( Ky. 1913 ).

17.Venue.

The word “venue,” unless it is given jurisdictional effect by localizing the action, relates only to the place where or territory within which either party may require the case to be tried, and, unless it is a localized action, the question of jurisdiction of the subject matter is not involved. Cushing v. Doudistal, 278 Ky. 779 , 129 S.W.2d 527, 1939 Ky. LEXIS 490 ( Ky. 1939 ).

18.Warrants.

While a statute provided that any justice of the peace might issue a search warrant, this did not mean that a justice in one county might issue a warrant to search premises in another county. Coleman v. Commonwealth, 219 Ky. 139 , 292 S.W. 771, 1927 Ky. LEXIS 302 ( Ky. 1927 ).

Any justice of the peace in the county where land lies may issue a distress warrant against the land. Rothenburger v. Dix, 254 Ky. 107 , 71 S.W.2d 30, 1934 Ky. LEXIS 46 ( Ky. 1934 ).

Magistrate who knew what constituted probable cause was not disqualified to issue search warrant by the fact that he had not read recent Supreme Court cases dealing with search warrants nor had he committed the Fourth Amendment to memory. Stephens v. Commonwealth, 522 S.W.2d 181, 1975 Ky. LEXIS 128 (Ky.), cert. denied, 423 U.S. 895, 96 S. Ct. 195, 46 L. Ed. 2d 127, 1975 U.S. LEXIS 2957 (U.S. 1975).

Cited:

Joyes v. Jefferson County Fiscal Court, 106 Ky. 615 , 21 Ky. L. Rptr. 199 , 51 S.W. 435, 1899 Ky. LEXIS 94 ( Ky. 1899 ); Pratt v. Breckinridge, 66 S.W. 405, 23 Ky. L. Rptr. 1858 ( Ky. 1902 ); McInteer v. Moss, 144 Ky. 667 , 139 S.W. 842, 1911 Ky. LEXIS 694 ( Ky. 1911 ); Commonwealth v. Carter, 152 Ky. 463 , 153 S.W. 735, 1913 Ky. LEXIS 677 ( Ky. 1913 ); Louisville & N. R. Co. v. Bullitt County, 247 Ky. 489 , 57 S.W.2d 506, 1933 Ky. LEXIS 430 ( Ky. 1933 ); Smith v. Harlan County Fiscal Court, 329 S.W.2d 61, 1959 Ky. LEXIS 141 ( Ky. 1959 ).

Opinions of Attorney General.

If a magistrate moves out of his respective district and establishes legal residence in an adjoining district, he would become disqualified and would vacate his office. OAG 67-373 .

Under this section, a magistrate who moves his residence from the district he was elected to serve becomes disqualified for office and, if he refuses to vacate his office by resignation, would be subject to removal as a usurper pursuant to KRS 415.060 . OAG 67-396 .

While a justice of the peace must hold court within his magisterial district, his jurisdiction under this section is coextensive with the county as to crimes within the scope of KRS 25.010 (repealed). OAG 69-206 .

A justice of the peace may carry a concealed deadly weapon when necessary for his protection when he is performing the specific ministerial duty of acting as a conservator of the peace, and this right is determined by the facts and circumstances of each case. OAG 69-332 .

A constable can arrest a person without a warrant in the district of one justice of the peace and take the defendant before another justice of the peace in another district for preliminary hearing and/or trial. OAG 71-65 .

All counties, except Jefferson, using the justice of the peace (magisterial) type of government must have not less than three (3) nor more than eight (8) justices of the peace. OAG 71-225 .

Being a justice of the peace is one thing and being a justice of the peace serving on a fiscal court is another matter. OAG 71-225 .

A justice may not hold court outside his magisterial district and, therefore, cannot try a criminal case or hold court outside his district and a justice has no authority to hold court, receive pleas from a defendant or sign judgment and sentence the defendant in the county jail, regardless of whether the county jail is inside or outside of the justice’s district. OAG 72-674 .

Where a justice of the peace has jurisdiction of an offense under KRS 25.010 (repealed), the magisterial district in which the crime was committed is of no jurisdictional significance provided the crime was committed in the justice’s county. OAG 72-674 .

Although the jurisdiction of a justice of the peace is countywide and he has great discretion as to the location of his court, it must be held in his magisterial district and he is not authorized to receive pleas in the county jail. OAG 73-298 .

As § 234 of the Constitution requires a magistrate to live in the district for which he was elected and this section provides that justices of the peace shall vacate their offices by removal from the districts in which they have been elected, a justice who moves out of his district automatically vacates his office and a magistrate who continued to hold his office would be subject to an ouster action that could be brought by the Commonwealth Attorney under KRS 415.040 . OAG 73-363 .

Additional magisterial districts may be established in any county that does not have more than eight magisterial districts pursuant to this section by following the procedures covered in KRS 25.680 (repealed), 25.690 (repealed) and 25.700 (repealed). OAG 73-373 .

Where a justice of the peace, whose term was to expire at the end of December, 1981, moved out of his district in July, 1980, a vacancy was thereby created on the fiscal court; the governor fills the vacancy by appointment until the November, 1980, general election, at which time the vacancy will be filled by election for the remainder of the unexpired term. OAG 80-425 .

In counties with the commissioner form of government, the commissioner’s districts and the justice of the peace districts are the same; consequently, such counties have three (3) justices of the peace who are elected from the respective commissioner districts. Since constables’ districts are the same as the justice of the peace districts (Ky. Const. § 99), constables are likewise elected from each commissioner’s district. Thus there is no separate apportionment of justice of the peace/constable districts; their districts are the same as the commissioner’s districts. OAG 93-40 .

Research References and Practice Aids

Kentucky Law Journal.

Terry, Reapportionment — “One Man One Vote” — Local Government, 58 Ky. L.J. 599 (1970).

Police Courts

§ 143. Police court may be established in each city — Jurisdiction. [Repealed.]

Compiler’s Notes.

This section was repealed by the proposal of the General Assembly (Acts 1974, ch. 84, §§ 1-3) which was ratified by the voters at the regular election in November, 1975 and became effective January 1, 1976.

Fiscal Courts

§ 144. Fiscal Court for each county — To consist of Justices of the Peace or Commissioners, and County Judge — Quorum.

Counties shall have a Fiscal Court, which may consist of the Judge of the County Court and the Justices of the Peace, in which Court the Judge of the County Court shall preside, if present; or a county may have three Commissioners, to be elected from the county at large, who, together with the Judge of the County Court, shall constitute the Fiscal Court. A majority of the members of said Court shall constitute a Court for the transaction of business. But where, for county governmental purposes, a city is by law separated from the remainder of the county, such Commissioners may be elected from the part of the county outside of such city.

NOTES TO DECISIONS

1.In General.

The fiscal court of a county is a court of record. Kenton County by Hanlon v. Jameson, 150 Ky. 440 , 150 S.W. 528, 1912 Ky. LEXIS 916 ( Ky. 1912 ).

The fiscal court is a continuous body, and, although it may be differently constituted at different times, it remains the same court. Madison County Fiscal Court v. Cotton, 273 Ky. 508 , 117 S.W.2d 201, 1938 Ky. LEXIS 673 ( Ky. 1938 ).

The General Assembly has the power to prescribe the jurisdiction and powers of the fiscal court. Lincoln Nat'l Bank, Inc. v. County Debt Com., 294 Ky. 642 , 172 S.W.2d 463, 1943 Ky. LEXIS 513 ( Ky. 1943 ).

2.Appeals.

County judge or any other member of fiscal court could appeal from order of such court which such member deemed detrimental to interests of county. Howard v. Saylor, 305 Ky. 504 , 204 S.W.2d 815, 1947 Ky. LEXIS 852 ( Ky. 1947 ).

3.Commissioners.

The submission of the question whether the fiscal court of a county should be composed of three (3) commissioners at the general 1912 election, at which no general county officers could be elected, was void. Hutchinson v. Miller, 158 Ky. 363 , 164 S.W. 961, 1914 Ky. LEXIS 611 ( Ky. 1914 ).

Law that provided for election of commissioners from districts by voters at large did not violate this section requiring commissioners to be elected from county at large. Hazelrigg v. Hazelrigg, 169 Ky. 345 , 183 S.W. 933, 1916 Ky. LEXIS 700 ( Ky. 1916 ).

Act of 1924, amending and re-enacting law relating to deadlocks in fiscal court, insofar as it attempted to vest power and authority in only two (2) commissioners to transact business after existence of deadlock for 15 days, was in violation of this section, and void. Kirchdorfer v. Tincher, 204 Ky. 366 , 264 S.W. 766, 1924 Ky. LEXIS 458 ( Ky. 1924 ).

County commissioner’s office was created by Ky. Const. § 144, rather than by statute, so, when the county government was merged into an urban county or merged government, the commissioner was entitled to continue to receive the compensation for his office, because, under Ky. Const. § 161, no municipal officer’s compensation could be changed after that officer’s election or appointment, or during his term of appointment. Owens v. Maze, 132 S.W.3d 874, 2003 Ky. App. LEXIS 101 (Ky. Ct. App. 2003).

4.Composition of Court.

Whether county should be governed by fiscal court composed of county judge and justices of peace, or of county judge and at-large commissioners, was left to be be determined by legislature. Bryan v. Voss, 143 Ky. 422 , 136 S.W. 884, 1911 Ky. LEXIS 429 ( Ky. 1911 ). See Billiter v. Nelson, 300 S.W.2d 790, 1957 Ky. LEXIS 473 ( Ky. 1957 ), overruled, Lackey v. Garner, 367 S.W.2d 257, 1963 Ky. LEXIS 17 ( Ky. 1963 ).

Composition of fiscal court, which may consist of the county judge and justices of the peace, or the county judge and three (3) commissioners elected from the county at large, may be determined by a majority vote in a general election. Tarvin v. Boltz, 175 Ky. 246 , 194 S.W. 108, 1917 Ky. LEXIS 301 ( Ky. 1917 ).

Whether fiscal court form or commission form of county government is adopted depends, not on similarity or difference in respect to other counties, but on citizens’ wishes. Felts v. Linton, 217 Ky. 305 , 289 S.W. 312, 1926 Ky. LEXIS 90 ( Ky. 1926 ).

This section makes no provision for a pro tem member of the fiscal court. Jefferson County Fiscal Court v. Grauman, 281 Ky. 608 , 136 S.W.2d 1102, 1940 Ky. LEXIS 93 ( Ky. 1940 ).

Since this section provided counties with the option of either commissioners or justice of the peace in fiscal courts, legislature was precluded from enacting law making either form mandatory. Billiter v. Nelson, 300 S.W.2d 790, 1957 Ky. LEXIS 473 ( Ky. 1957 ), overruled, Lackey v. Garner, 367 S.W.2d 257, 1963 Ky. LEXIS 17 ( Ky. 1963 ).

5.County Judge.

A county judge cannot order the fixing of his own salary, nor can his son. Grayson County v. Rogers, 122 S.W. 866 ( Ky. 1909 ).

The county judge is a member of the fiscal court. Brooks v. Johnson, 148 Ky. 470 , 146 S.W. 761, 1912 Ky. LEXIS 447 ( Ky. 1912 ). See Stinnett v. Woods, 148 Ky. 473 , 146 S.W. 762, 1912 Ky. LEXIS 449 ( Ky. 1912 ); Barnett v. Gilbert, 164 Ky. 564 , 175 S.W. 1029, 1915 Ky. LEXIS 412 ( Ky. 1915 ); Breathitt County v. Hagins, 211 Ky. 391 , 277 S.W. 469, 1925 Ky. LEXIS 885 ( Ky. 1925 ); Louisville & N. R. Co. v. Bullitt County, 247 Ky. 489 , 57 S.W.2d 506, 1933 Ky. LEXIS 430 ( Ky. 1933 ); Madison County Fiscal Court v. Cotton, 273 Ky. 508 , 117 S.W.2d 201, 1938 Ky. LEXIS 673 ( Ky. 1938 ).

The county judge may be included to determine whether a majority of the court acted. Barnett v. Gilbert, 164 Ky. 564 , 175 S.W. 1029, 1915 Ky. LEXIS 412 ( Ky. 1915 ).

Although an application for organization of a militia company is required by statute to be approved by the county judge, the county, through him, does not obligate itself to perform the statutory requirement of maintaining an armory, as such a construction will substitute the county judge as a fiscal court, when this section provides who shall constitute it. Commonwealth ex rel. Attorney Gen. v. Sparks, 201 Ky. 5 , 255 S.W. 859, 1923 Ky. LEXIS 218 ( Ky. 1923 ).

County judge has same powers as other members of fiscal court. Breathitt County v. Hagins, 211 Ky. 391 , 277 S.W. 469, 1925 Ky. LEXIS 885 ( Ky. 1925 ). See Louisville & N. R. Co. v. Bullitt County, 247 Ky. 489 , 57 S.W.2d 506, 1933 Ky. LEXIS 430 ( Ky. 1933 ).

County judge may participate in proceedings of fiscal court the same as any other member. Walker v. Fox, 216 Ky. 33 , 287 S.W. 228, 1926 Ky. LEXIS 841 ( Ky. 1926 ).

Pro tem county judge, appointed pursuant to KRS 25.140 (repealed), had power to perform only those duties which devolved upon the county judge as such, and had no power to perform those duties which the county judge himself was authorized to perform due to his being personally made, by this section, a member and ex officio presiding officer of the fiscal court. Jefferson County Fiscal Court v. Grauman, 281 Ky. 608 , 136 S.W.2d 1102, 1940 Ky. LEXIS 93 ( Ky. 1940 ).

Pro tem county judge could not act as member of fiscal court. Jefferson County Fiscal Court v. Grauman, 281 Ky. 608 , 136 S.W.2d 1102, 1940 Ky. LEXIS 93 ( Ky. 1940 ).

6.County Officers.

While there has been no plan yet proposed under KRS 67A.010 to 67A.040 (KRS 67A.040 now repealed) for the merger of city and county governments, it is not inevitable that any plan proposed would violate this section or §§ 97 to 108 or 156 of the Constitution. Pinchback v. Stephens, 484 S.W.2d 327, 1972 Ky. LEXIS 148 ( Ky. 1972 ).

7.Jurisdiction.

Fiscal court has no jurisdiction over the assessment of property and is without power to buy plats for the purpose of securing better assessment of the property of the county. Jefferson County v. Young, 120 Ky. 456 , 86 S.W. 985, 27 Ky. L. Rptr. 849 , 1905 Ky. LEXIS 116 ( Ky. 1905 ).

A fiscal court is a court of limited jurisdiction and is authorized to do only such things as the statute permits or directs it to do. Taylor v. Riney, 156 Ky. 393 , 161 S.W. 203, 1913 Ky. LEXIS 440 ( Ky. 1913 ). See Mills v. Lantrip, 170 Ky. 81 , 185 S.W. 514, 1916 Ky. LEXIS 21 ( Ky. 1916 ); Riddell v. Boone County, 183 Ky. 77 , 208 S.W. 323, 1919 Ky. LEXIS 440 ( Ky. 1919 ).

The fiscal court is a court of record as well as a court of limited jurisdiction, and can only make appropriations according to the law. Ray v. Woodruff, 168 Ky. 563 , 182 S.W. 662, 1906 Ky. LEXIS 277 ( Ky. 1906 ). See Mills v. Lantrip, 170 Ky. 81 , 185 S.W. 514, 1916 Ky. LEXIS 21 ( Ky. 1916 ).

The jurisdiction of fiscal court is determined by the legislature, and not by this section of the Constitution, which merely creates said court and provides who shall constitute it. Gross v. Fiscal Court of Jefferson County, 225 Ky. 641 , 9 S.W.2d 1006, 1928 Ky. LEXIS 849 ( Ky. 1928 ).

This section creates the fiscal court but its jurisdiction is fixed by the General Assembly. Gross v. Fiscal Court of Jefferson County, 225 Ky. 641 , 9 S.W.2d 1006, 1928 Ky. LEXIS 849 ( Ky. 1928 ). See Rentz v. Campbell County, 260 Ky. 242 , 84 S.W.2d 44, 1935 Ky. LEXIS 440 ( Ky. 1935 ).

Jurisdiction of fiscal court is defined not by Constitution but by the legislature, which could create a bridge commission for specific purpose of spending proceeds of a particular bond issue. Rentz v. Campbell County, 260 Ky. 242 , 84 S.W.2d 44, 1935 Ky. LEXIS 440 ( Ky. 1935 ).

8.Liability of Court.

A fiscal court cannot be proceeded against by indictment for any purpose, and responsibility for wilful failure to discharge a statutory duty rests upon the members individually. Commonwealth v. Boyle County Fiscal Court, 113 Ky. 325 , 68 S.W. 116, 24 Ky. L. Rptr. 234 , 1902 Ky. LEXIS 47 ( Ky. 1902 ).

9.Powers.

The fiscal court of a county had the power to carry out the provisions of a special act passed prior to the adoption of this Constitution which act granted the then existing court of levy and claims certain powers with reference to carrying into effect its provisions. Pearce v. Mason County, 99 Ky. 357 , 35 S.W. 1122, 18 Ky. L. Rptr. 266 , 1896 Ky. LEXIS 94 ( Ky. 1896 ).

The fiscal courts of counties and other governing authorities can exercise no power or authority which is not expressly conferred upon them by Constitution or statute, and such implied powers as are imperatively necessary to execute those expressly conferred. Crick v. Rash, 190 Ky. 820 , 229 S.W. 63, 1921 Ky. LEXIS 516 ( Ky. 1921 ).

Fiscal court, acting in good faith, may settle claim against sheriffs during pendency of taxpayer’s suit thereon. Shipp use of Fayette County v. Rodes, 219 Ky. 349 , 293 S.W. 543, 1927 Ky. LEXIS 348 ( Ky. 1927 ). See Shipp v. Bradley, 219 Ky. 373 , 293 S.W. 553, 1927 Ky. LEXIS 349 ( Ky. 1927 ).

Established policy to require county obligations to be created by fiscal court will not be presumed changed by act creating purchasing agent, if consistent with former act. Gross v. Fiscal Court of Jefferson County, 225 Ky. 641 , 9 S.W.2d 1006, 1928 Ky. LEXIS 849 ( Ky. 1928 ).

Law that created office of purchasing agent in counties was not invalid, as curtailing powers of fiscal court. Gross v. Fiscal Court of Jefferson County, 225 Ky. 641 , 9 S.W.2d 1006, 1928 Ky. LEXIS 849 ( Ky. 1928 ).

The implied power of the fiscal court is limited and confined to the authority conferred upon it, and an appropriation for a juvenile court charity party is not within or pursuant to such power. Bruner v. Jefferson County Fiscal Court, 239 Ky. 613 , 40 S.W.2d 271, 1931 Ky. LEXIS 831 ( Ky. 1931 ).

The fiscal court is an executive board vested with legislative, ministerial and quasi-judicial powers for the transaction of its general business. Farmer v. Marr, 238 Ky. 417 , 38 S.W.2d 209, 1931 Ky. LEXIS 248 ( Ky. 1931 ).

While this section of the Constitution creates the fiscal court and provides who shall constitute it, it leaves to the General Assembly the authority to define its powers. Farmer v. Marr, 238 Ky. 417 , 38 S.W.2d 209, 1931 Ky. LEXIS 248 ( Ky. 1931 ).

The power of the fiscal court is conferred by statute, and it possesses no authority not delegated to it, expressly or impliedly, by some provision of law. Bruner v. Jefferson County Fiscal Court, 239 Ky. 613 , 40 S.W.2d 271, 1931 Ky. LEXIS 831 ( Ky. 1931 ). See Bates v. Greenup County, 282 Ky. 268 , 138 S.W.2d 463, 1940 Ky. LEXIS 160 ( Ky. 1940 ).

Whereas the management of financial affairs of the county is lodged in the fiscal court, an order by that court designating a certain bank as a depository for county funds was valid. Edwards v. Logan County, 244 Ky. 296 , 50 S.W.2d 83, 1932 Ky. LEXIS 393 ( Ky. 1932 ).

An act of fiscal court may be modified when regarded as administrative, as where the court is considering existing circumstances and probable future occurrences, but may not be modified when regarded as judicial, as where the court is considering past occurrences. Knott County v. Michael, 264 Ky. 36 , 94 S.W.2d 44, 1936 Ky. LEXIS 271 ( Ky. 1936 ).

Fiscal court has implied authority to order the furnishing and equipping of office of county surveyor, even though statute merely refers to providing of an office. Jefferson County Fiscal Court v. Gregg, 265 Ky. 61 , 95 S.W.2d 1130, 1936 Ky. LEXIS 449 ( Ky. 1936 ).

The Constitution merely creates a fiscal court and has left to the General Assembly the right to define the powers and duty of that body. Hogge v. Rowan County Fiscal Court, 313 Ky. 387 , 231 S.W.2d 8, 1950 Ky. LEXIS 862 ( Ky. 1950 ).

10.Quorum.

The Constitution makes the county judge a member of the fiscal court and provides that a majority of the members of said court shall constitute a quorum for the transaction of business, and therefore three (3) members from a court consisting of six (6) members do not constitute a majority, nor a quorum for the transaction of business. Bath County ex rel. Brown v. Daugherty, 113 Ky. 518 , 68 S.W. 436, 24 Ky. L. Rptr. 350 , 1902 Ky. LEXIS 68 ( Ky. 1902 ).

When a majority number of the members of a fiscal court is present and has an opportunity to and does vote upon a proposition, those members who are present and do not vote will be considered as acquiescing with the majority, and their silence construed as voting with the majority. Lawrence County v. Lawrence Fiscal Court, 191 Ky. 45 , 229 S.W. 139, 1921 Ky. LEXIS 284 ( Ky. 1921 ).

Statute that gives the county judge power to break a tie vote of fiscal court is not inconsistent with constitutional provision that a majority of members of such court are required to transact business. Hill v. Taylor, 264 Ky. 708 , 95 S.W.2d 566, 1936 Ky. LEXIS 388 ( Ky. 1936 ). See Muenninghoff v. Marret, 269 Ky. 826 , 108 S.W.2d 878, 1937 Ky. LEXIS 673 ( Ky. 1937 ).

Quorum requirement in this section did not prevent legislature, under KRS 67.070(3), from designating county judge as appointing authority in case of tie vote of fiscal court, where offices or positions voted upon were created by legislature or by fiscal court. Cook v. Fihe, 358 S.W.2d 350, 1962 Ky. LEXIS 166 ( Ky. 1962 ).

11.Separation of Cities.

This section of the Constitution does not authorize the legislature to separate any city from the residue of the county, and the mere fact that at the time of the adoption of the Constitution there was a statute providing for the levy and collection of a portion of the county taxes by city authority, and another portion by the county authorities outside of the city, did not constitute a separation of the city from the county for county governmental purposes. Joyes v. Jefferson County Fiscal Court, 106 Ky. 615 , 51 S.W. 435, 21 Ky. L. Rptr. 199 , 1899 Ky. LEXIS 94 ( Ky. 1899 ).

Only those counties that have two (2) county seats, and in which the city was separated from the balance of the county for county governmental purposes at the time the Constitution was adopted, may elect commissioners from the part of the county outside of the city. Richmond v. Madison County Fiscal Court, 290 Ky. 293 , 161 S.W.2d 58, 1942 Ky. LEXIS 398 ( Ky. 1942 ).

12.Miscellaneous Statutes.

KRS 66.280 to 66.390 do not supplant the fiscal court or contravene this section of the Constitution as they merely enable the county debt commission to assist the counties in solving their financial problems. County Debt Com. v. Morgan County, 279 Ky. 476 , 130 S.W.2d 779, 1939 Ky. LEXIS 279 ( Ky. 1939 ), overruled, Fiscal Court of Estill County v. Debt Com. of Kentucky, 286 Ky. 114 , 149 S.W.2d 735, 1941 Ky. LEXIS 209 ( Ky. 1941 ).

Cited:

Guthrie v. Sparks, 131 F. 443, 1904 U.S. App. LEXIS 4299 (6th Cir. 1904); Tucker v. Hubbert, 196 F. 849, 1912 U.S. App. LEXIS 1552 (6th Cir. 1912); Lynch v. Johnson, 291 F. Supp. 906, 1968 U.S. Dist. LEXIS 9306 (E.D. Ky. 1 968 ); Pratt v. Breckinridge, 112 Ky. 1 , 23 Ky. L. Rptr. 1356 , 65 S.W. 136, 1901 Ky. LEXIS 286 ( Ky. 1901 ); Pratt v. Breckinridge, 112 Ky. 1, 23 Ky. L. Rptr. 1356 , 65 S.W. 136, 1901 Ky. LEXIS 286 ( Ky. 1901 ); Henderson County v. Henderson Bridge Co., 116 Ky. 164 , 25 Ky. L. Rptr. 421 , 75 S.W. 239, 1903 Ky. LEXIS 174 ( Ky. 1903 ); Whitt v. Commonwealth, 84 S.W. 340, 27 Ky. L. Rptr. 50 (1905); Stone v. Winn, 165 Ky. 9 , 176 S.W. 933, 1915 Ky. LEXIS 476 ( Ky. 1915 ); Silbersack v. Kraft, 194 Ky. 587 , 240 S.W. 392, 1922 Ky. LEXIS 233 ( Ky. 1922 ); Felts v. Linton, 217 Ky. 305 , 289 S.W. 312, 1926 Ky. LEXIS 90 ( Ky. 1926 ); Newell v. Cincinnati, N. O. & T. P. R. Co., 246 Ky. 628 , 55 S.W.2d 662, 1932 Ky. LEXIS 81 6 ( Ky. 1932 ); Commonwealth use of Warren County v. Cox’ Adm’r, 264 Ky. 327 , 94 S.W.2d 632, 1936 Ky. LEXIS 3 05 ( Ky. 1936 ); Muenninghoff v. Marret, 269 Ky. 826 , 108 S.W.2d 878, 1937 Ky. LEXIS 673 ( Ky. 1937 ); Hogge v. Rowan County Fiscal Court, 313 Ky. 387 , 231 S.W.2d 8, 1950 Ky. LEXIS 862 ( Ky. 1950 ); Moore v. Smith, 307 S.W.2d 191, 1957 Ky. LEXIS 81 ( Ky. 1957 ); Fiscal Court of Jefferson County v. Anchorage, 393 S.W.2d 608, 1965 Ky. LEXIS 243 ( Ky. 1965 ); Holsclaw v. Stephens, 507 S.W.2d 462, 1973 Ky. LEXIS 3 ( Ky. 1973 ).

Opinions of Attorney General.

The county judge has the same powers as other members of the fiscal court. OAG 61-1053 .

The county court and judge, and not the fiscal court, has power to set weight limits and other restrictions for motor vehicles. OAG 64-14 .

The fiscal court cannot validly pass orders or resolutions by secret vote of the members. OAG 65-517 .

Where the county judge resigned prior to the termination of his office, a majority of the original fiscal court at its next regular meeting could elect one of their number to preside over the fiscal court meeting. OAG 69-631 .

The division of reclamation (now Department for Surface Mining Reclamation and Enforcement) of the Department of Natural Resources, under the supervision of the commissioner of that department, is vested with the power to exercise general supervision and administration and enforcement of KRS ch. 350 and all rules and regulations promulgated thereunder. This chapter contains no authority for a fiscal court to enact resolutions dealing with strip mining and since this section merely creates the fiscal court and leaves to the General Assembly the right to define the powers and duties of the court and since the General Assembly has not granted jurisdiction over strip mining to the fiscal court, the fiscal courts have no authority to legislate in the field of strip mining. OAG 70-268 .

Jefferson County could return to a justice of the peace type of fiscal court, provided that subsection (3) of KRS 67.050 is followed and a majority vote obtained. OAG 71-225 .

The punctual attendance of members of the fiscal court at its lawful meetings may not be coerced by the contempt of court powers of the county judge but may be compelled by mandamus action filed in circuit court. OAG 75-384 .

The county judge/executive has all the powers of any other member of the fiscal court, including the right to vote. OAG 78-52 .

If the voters of a county vote pursuant to subsection (3) of KRS 67.050 to return to a magistrate form of government the county commissioners then in office would be entitled to serve out the remainder of their term since they are named in this section and are therefore constitutional officers. OAG 78-282 .

In light of this section and subsection (1) of KRS 67.040 a fiscal court during the period of transition from a commissioner to a magistrate form of government may be composed of a combination of county commissioners and justices of the peace. OAG 78-282 .

Where a county, which had eight (8) magistrates serving as the fiscal court when it changed to the commission form of government, votes to return to the magisterial form of government, the county will be required to have eight (8) magistrates represented on its fiscal court, since Const., § 99 requires the continual election of magistrates (justices of peace) even though a county changes to the commission form of government, and, pursuant to this section, the justices of peace compose the fiscal court if the county is operating under the magisterial form of government. OAG 80-137 .

Assuming no factual circumstances that would give rise to a common-law conflict of interest, a member of a county fiscal court while serving in office may also be employed full-time or part-time as an instructor at the University of Louisville, or any other state institution of higher learning. OAG 80-277 .

Research References and Practice Aids

Cross-References.

County judge pro tem may preside over fiscal court, KRS 67.040 .

Fiscal courts, KRS ch. 67.

Northern Kentucky Law Review.

Notes, County Government — Home Rule —The General Assembly Must Grant Governmental Powers to Fiscal Courts “With the Precision of a Rifle Shot and Not With the Casualness of a Shotgun Blast” — Fiscal Court v. City of Louisville, 559 S.W.2d 478, 1977 Ky. LEXIS 554 ( Ky. 1977 ), 5 N. Ky. L. Rev. 107 (1978).

SUFFRAGE AND ELECTIONS

§ 145. Persons entitled to vote.

Every citizen of the United States of the age of eighteen years who has resided in the state one year, and in the county six months, and the precinct in which he offers to vote sixty days next preceding the election, shall be a voter in said precinct and not elsewhere but the following persons are excepted and shall not have the right to vote.

  1. Persons convicted in any court of competent jurisdiction of treason, or felony, or bribery in an election, or of such high misdemeanor as the General Assembly may declare shall operate as an exclusion from the right of suffrage, but persons hereby excluded may be restored to their civil rights by executive pardon.
  2. Persons who, at the time of the election, are in confinement under the judgment of a court for some penal offense.
  3. Idiots and insane persons.

History. Amendment, proposed by Acts 1954, approved, November, 1955.

NOTES TO DECISIONS

1.Aliens.

An alien has a right to vote under some circumstances. Cowan v. Prowse, 93 Ky. 156 , 19 S.W. 407, 14 Ky. L. Rptr. 273 , 1892 Ky. LEXIS 65 ( Ky. 1892 ).

2.Candidate for Office.

Where an elected official had been convicted of a felony prior to his becoming a candidate for office, he lost his right to vote pursuant to this section, and thus was not eligible to be a candidate under KRS 119.055 (repealed). Woods v. Mills, 503 S.W.2d 706, 1974 Ky. LEXIS 833 ( Ky. 1974 ).

3.Comparative Signatures.

The statutory provision requiring the voters to sign the comparative signature book before he casts his vote does not deny to a person his right to vote or render its exercise so difficult or so inconvenient as to amount to a denial of the right to vote, and is constitutional. Wilkinson v. Queen, 269 S.W.2d 223, 1954 Ky. LEXIS 969 ( Ky. 1954 ).

4.Elections.
5.— Primary.

A voter must have the qualifications prescribed by the Constitution for voters in a regular election to be eligible to vote in a primary election. Black v. Spillman, 185 Ky. 201 , 215 S.W. 28, 1919 Ky. LEXIS 269 ( Ky. 1919 ).

Primary elections were not elections within meaning of this section. Jefferson County Board of Election Com. v. Russell, 323 S.W.2d 864, 1959 Ky. LEXIS 347 ( Ky. 1959 ).

6.Legislative Action.

Since this section and Const. § 150 are self-executing, no statute can dispense with their requirements or provisions. Arnett v. Stumbo, 287 Ky. 433 , 153 S.W.2d 889, 1941 Ky. LEXIS 549 ( Ky. 1941 ).

Even though the Constitution prescribes the qualifications of a voter, there is a wide field for legislative action in determining how such qualifications shall be ascertained and in prescribing regulations for the prevention of fraud and abuses in elections. Wilkinson v. Queen, 269 S.W.2d 223, 1954 Ky. LEXIS 969 ( Ky. 1954 ).

The legislature has the authority to make reasonable regulations for the exercise of the legislative franchise so long as it does not deny the voting privilege itself, either directly or by rendering its exercise so difficult and inconvenient as to amount to a denial. Wilkinson v. Queen, 269 S.W.2d 223, 1954 Ky. LEXIS 969 ( Ky. 1954 ).

7.Minimum Age.

In local option election contest court properly deducted votes of minors. Widick v. Ralston, 303 Ky. 373 , 197 S.W.2d 261, 1946 Ky. LEXIS 825 , 1946 Ky. LEXIS 880 ( Ky. 1946 ).

While this section specified 18 as minimum age required of voters in regular election, voting age of voters in primary elections was controlled solely by statute. Jefferson County Board of Election Com. v. Russell, 323 S.W.2d 864, 1959 Ky. LEXIS 347 ( Ky. 1959 ).

The amendment lowering the voting age does not alter a father’s obligation to support his children until they reach age 21. Dalton v. Dalton, 367 S.W.2d 840, 1963 Ky. LEXIS 32 ( Ky. 1963 ).

8.Residency.

In order to cast a legal vote, one must have lived in the state and county for the time required by this section, and must also have lived in the school district or voting precinct for 60 days before the election. Branham v. Branham, 276 Ky. 767 , 125 S.W.2d 225, 1939 Ky. LEXIS 577 ( Ky. 1939 ).

A voter must vote in the precinct in which he resides, and not in one in which he finds it convenient to vote. Morgan v. Walker, 289 Ky. 92 , 158 S.W.2d 5, 1941 Ky. LEXIS 23 ( Ky. 1941 ).

Residency requirement in this section was determined with respect to voter’s place of habitation and his intent to remain. Moore v. Tiller, 409 S.W.2d 813, 1966 Ky. LEXIS 74 ( Ky. 1966 ).

9.— Domicile.

The word “reside,” as used in this section of the Constitution, is construed to be equivalent to “legal domicile,” as distinguished from the place of actual abode. Elam v. Maggard, 165 Ky. 733 , 178 S.W. 1065, 1915 Ky. LEXIS 599 ( Ky. 1915 ). See Everman v. Thomas, 303 Ky. 156 , 197 S.W.2d 58, 1946 Ky. LEXIS 804 ( Ky. 1946 ).

In local option election contest court properly deducted votes of persons lacking domiciliary qualification of residence. Widick v. Ralston, 303 Ky. 373 , 197 S.W.2d 261, 1946 Ky. LEXIS 825 , 1946 Ky. LEXIS 880 ( Ky. 1946 ).

10.— Intent.

A registered voter of Kentucky who moves away from the state with an intention not to return, but then changes his mind and does return within a year prior to an election, does not meet the residence requirement of this section, and is not entitled to vote. Edwards v. Logan, 114 Ky. 312 , 70 S.W. 852, 24 Ky. L. Rptr. 1099 , 25 Ky. L. Rptr. 435 , 1902 Ky. LEXIS 164 ( Ky. 1902 ), modified, 114 Ky. 331 , 75 S.W. 257, 1903 Ky. LEXIS 393 ( Ky. 1903 ).

When a man removes to a new location with the intention of making his home there indefinitely, he has changed his residence, even though he may all the time have entertained a floating intention at some future time to return to his former abode. Hodges v. Murray, 240 Ky. 127 , 41 S.W.2d 923, 1931 Ky. LEXIS 355 ( Ky. 1931 ), overruled, Johnson v. May, 305 Ky. 292 , 203 S.W.2d 37, 1947 Ky. LEXIS 785 ( Ky. 1947 ).

11.— Marriage.

Voter who left the district, married a nonresident, left him without getting a divorce, and returned to the district less than six (6) months before election, was not eligible to vote in the district. Branham v. Branham, 276 Ky. 767 , 125 S.W.2d 225, 1939 Ky. LEXIS 577 ( Ky. 1939 ).

12.— Newly Acquired.

Fact that a citizen voted in another district a year before will not, of itself, prevent him from voting in a district, provided his residence is now in the district where he attempts to vote, and has been there for the required length of time. Branham v. Branham, 276 Ky. 767 , 125 S.W.2d 225, 1939 Ky. LEXIS 577 ( Ky. 1939 ).

Voters who illegally continued to vote in the county of their former residence after moving to a different county are not prevented from registering and voting in the county of their new residence. Heavrin v. Brown, 311 Ky. 766 , 225 S.W.2d 468, 1949 Ky. LEXIS 1243 ( Ky. 1949 ).

13.— Ownership of Property.

Voter who owned realty and a few household goods and kept a garden in a district, but worked and spent most of her time in another district, was not entitled to vote in the first district. Branham v. Branham, 276 Ky. 767 , 125 S.W.2d 225, 1939 Ky. LEXIS 577 ( Ky. 1939 ).

14.— Absence.
15.— — Permanent.

One who leaves his home and establishes a home elsewhere with the purpose of engaging in business or obtaining employment for an indefinite period, and remains away for two (2) or three (3) years, and does not return except for the purpose of voting, is not a legal voter at his former home. Matney v. Elswick, 242 Ky. 183 , 45 S.W.2d 1046, 1932 Ky. LEXIS 240 ( Ky. 1932 ).

In proceedings to contest a school board election, where the evidence established that three (3) challenged voters, who had voted for the contestee, had formerly lived and were registered voters in the district, but that about a year and a half prior to the election they had moved to another district with no intention of returning to their former home at any definite time and whose absence from their former district was not for temporary purposes, the said voters were not residents of the district within the meaning of KRS 117.610 (repealed). Gambrell v. Parker, 261 S.W.2d 447, 1953 Ky. LEXIS 1024 ( Ky. 1953 ).

16.— — Temporary.

Temporary absence from permanent homes does not change a voter’s residence, and he may vote at election unless otherwise disqualified. Prewitt v. Wilson, 242 Ky. 231 , 46 S.W.2d 90, 1932 Ky. LEXIS 255 ( Ky. 1932 ).

17.— Proof.

A voter who honestly claims to reside in a particular precinct, and actually does not reside therein, is not entitled to vote in that precinct. Stice v. Parsley, 217 Ky. 653 , 290 S.W. 471, 1926 Ky. LEXIS 109 ( Ky. 1926 ).

Testimony that voter had always “claimed” her home to be with her mother in a certain school subdistrict was not sufficient, alone, to establish her residence there for voting purposes. Branham v. Branham, 276 Ky. 767 , 125 S.W.2d 225, 1939 Ky. LEXIS 577 ( Ky. 1939 ).

18.— School Elections.

The residence qualifications of a voter in an election for school trustee are governed by the Constitution. Penny v. McRoberts, 163 Ky. 313 , 173 S.W. 786, 1915 Ky. LEXIS 223 ( Ky. 1915 ).

19.— University Students.

In determining domicile, state and county officials may not require students to meet more stringent criteria than other voter registration applicants; however, such officials may ask each applicant a series of questions directed at proving domicile, but each applicant should be asked the same questions and the questions should reasonably relate to the question of domicile. Bright v. Baesler, 336 F. Supp. 527, 1971 U.S. Dist. LEXIS 10169 (E.D. Ky. 1971 ).

20.Restoration of Rights.

A person who was convicted of mail robbery and pardoned by the president of the United States before the expiration of his term of imprisonment, is acquitted of all penalties and forfeitures annexed to the offense, and restored to the right of suffrage. Cowan v. Prowse, 93 Ky. 156 , 19 S.W. 407, 14 Ky. L. Rptr. 273 , 1892 Ky. LEXIS 65 ( Ky. 1892 ).

Although offender was convicted of violating federal statute and never pardoned by President, Governor is authorized to remove disabilities on right to vote and to hold public offices and restore him to citizenship. Arnett v. Stumbo, 287 Ky. 433 , 153 S.W.2d 889, 1941 Ky. LEXIS 549 ( Ky. 1941 ).

Right to participate in the selection and the holding of public office in the Commonwealth are local questions, and act of executive clemency to restore such rights after loss must be performed by chief executive. Arnett v. Stumbo, 287 Ky. 433 , 153 S.W.2d 889, 1941 Ky. LEXIS 549 ( Ky. 1941 ).

Restoration of civil rights by executive pardon under this section merely restored right of suffrage, and it neither erased history, nor in any way affected impeachment under CR 43.07. Cowan v. Commonwealth, 407 S.W.2d 695, 1966 Ky. LEXIS 173 ( Ky. 1966 ), abrogated in part, Cotton v. Commonwealth, 454 S.W.2d 698, 1970 Ky. LEXIS 287 ( Ky. 1970 ), overruled in part, Commonwealth v. Richardson, 674 S.W.2d 515, 1984 Ky. LEXIS 264 ( Ky. 1984 ).

A defendant was not entitled to have an habitual criminal charge dismissed on the grounds that he had been restored to his civil rights by executive order. Stewart v. Commonwealth, 479 S.W.2d 23, 1972 Ky. LEXIS 289 ( Ky. 1972 ).

Where Governor gave a convicted felon a pardon which restored all of his civil rights, this included the right to vote. United States v. Barrett, 504 F.2d 629, 1974 U.S. App. LEXIS 6444 (6th Cir. Ky. 1974 ), aff'd, 423 U.S. 212, 96 S. Ct. 498, 46 L. Ed. 2d 450, 1976 U.S. LEXIS 37 (U.S. 1976).

The Legislature has spoken and directed that people (black, white, etc.) who are convicted of felonies involving moral turpitude may not be appointed peace officers. While a Governor’s pardon under Const., § 77 would at least open the door for former felon’s consideration by the Corrections Cabinet (now Department), his restoration of rights under this section and Const., § 150 does not. Leonard v. Corrections Cabinet, 828 S.W.2d 668, 1992 Ky. App. LEXIS 75 (Ky. Ct. App. 1992).

Trial court properly found that the juror was disqualified from serving on a criminal jury under the pre-2002 version of KRS 29A.080 as a convicted felon, despite the fact that the Governor had restored the juror’s right to vote and to hold public office; the Governor expressly restored the juror’s rights under Ky. Const., §§ 145, 150, both of which dealt with restoration of the right to vote and to hold office, and the Governor had the power under Ky. Const., § 77 to issue the partial pardon excluding the right to serve on a jury. Anderson v. Commonwealth, 107 S.W.3d 193, 2003 Ky. LEXIS 139 ( Ky. 2003 ).

Where defendant’s civil rights were restored by the Governor in a partial pardon pursuant to Ky. Const. §§ 145, 150 after defendant successfully completed probation on a felony offense, the restoration of rights did not restore defendant’s right to possess a firearm, as the pardon was not a full pardon under Ky. Const. § 77; thus, defendant was properly convicted of two (2) counts of possession of a firearm by a convicted felon in violation of KRS 527.040 . Cheatham v. Commonwealth, 131 S.W.3d 349, 2004 Ky. App. LEXIS 48 (Ky. Ct. App. 2004).

21.Taxpayers.

Under this section, one did not have right to vote in election solely because he was a taxpayer. Lyon v. Holbrook, 316 S.W.2d 862, 1958 Ky. LEXIS 66 ( Ky. 1958 ).

22.Voter.

One could be a qualified voter as defined in this section without exercising the right to vote. Meffert v. Brown, 132 Ky. 201 , 116 S.W. 779, 1909 Ky. LEXIS 133 ( Ky. 1909 ), overruled, Coffey v. Anderson, 371 S.W.2d 624, 1963 Ky. LEXIS 103 ( Ky. 1963 ).

Voter as used in KRS 160.180 meant fully qualified legal voter as defined by this section. Moore v. Tiller, 409 S.W.2d 813, 1966 Ky. LEXIS 74 ( Ky. 1966 ).

23.— Registration.

A statute requiring a voter to present a certificate of registration from the registration officers, or, in case of its loss, a duplicate certificate from the county clerk, does not add to the qualifications prescribed by this section. Yates v. Collins, 118 Ky. 682 , 82 S.W. 282, 26 Ky. L. Rptr. 558 , 26 Ky. L. Rptr. 930 , 1904 Ky. LEXIS 89 (Ky. Ct. App. 1904). See Perkins v. Lucas, 197 Ky. 1 , 246 S.W. 150, 1922 Ky. LEXIS 633 ( Ky. 1 922 ).

Term voter referred to persons qualified pursuant to this section, and was not confined to registered voters only. Covington v. Miller, 266 Ky. 198 , 98 S.W.2d 293, 1936 Ky. LEXIS 612 ( Ky. 1936 ), overruled, Coffey v. Anderson, 371 S.W.2d 624, 1963 Ky. LEXIS 103 ( Ky. 1963 ).

In the absence of legislative intent to the contrary, the statutory use of the word voter refers only to persons who are qualified under this section of the Constitution and who are registered to vote. Coffey v. Anderson, 371 S.W.2d 624, 1963 Ky. LEXIS 103 ( Ky. 1963 ).

This section is to be read in connection with Const., § 147, so that registration is a qualification or condition precedent to the exercise of the right to vote. Coffey v. Anderson, 371 S.W.2d 624, 1963 Ky. LEXIS 103 ( Ky. 1963 ).

24.Habitual Criminals.

A defendant was not entitled to have an habitual criminal charge dismissed on the grounds that he had been restored to his civil rights by executive order. Stewart v. Commonwealth, 479 S.W.2d 23, 1972 Ky. LEXIS 289 ( Ky. 1972 ).

25.Felony Conviction.

The language “or who in any manner causes himself to be registered when he is not legally entitled to register” in KRS 119.025 , when considered with other Kentucky statutes regarding qualification for voting, is sufficiently definite to put an ordinary person on notice that a convicted felon attempting to register would be in violation; therefore the section cannot be said to be unconstitutionally vague. Commonwealth v. Kash, 967 S.W.2d 37, 1997 Ky. App. LEXIS 119 (Ky. Ct. App. 1997).

Cited:

Boyd v. Land, 97 Ky. 379 , 17 Ky. L. Rptr. 273 , 30 S.W. 1019, 1895 Ky. LEXIS 210 ( Ky. 1895 ); Gardner v. Ray, 154 Ky. 509 , 157 S.W. 1147, 1913 Ky. LEXIS 130 ( Ky. 1913 ); Crook v. Bartlett, 155 Ky. 305 , 159 S.W. 826, 1913 Ky. LEXIS 254 ( Ky. 1913 ); Stuessy v. Louisville, 156 Ky. 523 , 161 S.W. 564, 1913 Ky. LEXIS 484 (Ky. 1913); Farleigh v. Reedy, 165 Ky. 782 , 178 S.W. 1077, 1915 Ky. LEXIS 605 ( Ky. 1915 ); Burton v. Mayer, 274 Ky. 245 , 118 S.W.2d 161, 1938 Ky. LEXIS 233 ( Ky. 1938 ); Cantrell v. Adams, 298 Ky. 845 , 183 S.W.2d 492, 1944 Ky. LEXIS 935 ( Ky. 1944 ); Everman v. Thomas, 303 Ky. 156 , 197 S.W.2d 58, 1946 Ky. LEXIS 804 ( Ky. 1946 ); Johnson v. May, 307 Ky. 399 , 211 S.W.2d 135, 1948 Ky. LEXIS 742 ( Ky. 1948 ); Hall v. Reid, 305 S.W.2d 923, 1957 Ky. LEXIS 349 ( Ky. 1957 ); Moore v. Smith, 307 S.W.2d 191, 1957 Ky. LEXIS 81 ( Ky. 1957 ); Scott v. Hill, 449 F.2d 634, 1971 U.S. App. LEXIS 7706 (6th Cir. 1971); In re Jordan, 16 B.R. 590, 1981 Bankr. LEXIS 2781 (Bankr. W.D. Ky. 1981 ); In re Washington, 17 B.R. 52, 1981 Bankr. LEXIS 2702 (Bankr. W.D. Ky. 1981 ); Louisville Shopping Center, Inc. v. St. Matthews, 635 S.W.2d 307, 1982 Ky. LEXIS 266 ( Ky. 1982 ).

Decisions Under Prior Constitution

1.Elections.

There was a marked distinction between elections for public officers and elections held under legislative sanction, upon matters that affected local interests alone. Hall v. Marshall, 80 Ky. 552 , 4 Ky. L. Rptr. 502 , 1882 Ky. LEXIS 101 (Ky. Ct. App. 1882).

2.Legislative Action.

A citizen could expatriate himself, with the consent of his state, express or presumed, but no legislation could denationalize a citizen without his concurrence. Burkett v. McCarty, 73 Ky. 758 , 1 Ky. Op. 100 ( Ky. 1866 ).

The legislature has the power to, by law, exclude all persons guilty of an infamous crime from voting. Anderson v. Winfree, 85 Ky. 597 , 4 S.W. 351, 9 Ky. L. Rptr. 181 , 1887 Ky. LEXIS 84 ( Ky. 1887 ).

3.Residency.

Foreigners who have resided in the state, county, and precinct the length of time required by the Constitution, are entitled to vote immediately upon being naturalized. Morgan v. Dudley, 57 Ky. 693 , 1857 Ky. LEXIS 86 ( Ky. 1857 ).

4.Registration.

A registration law which was unreasonable was unconstitutional. Owensboro v. Hickman, 90 Ky. 629 , 14 S.W. 688, 12 Ky. L. Rptr. 576 , 1890 Ky. LEXIS 136 ( Ky. 1890 ).

Opinions of Attorney General.

Except in primary elections, only those persons who, on the day of an election, possess the constitutional qualifications of this section, are entitled to vote in the election. OAG 60-152 .

Although a voter may register before the primary if he will possess the required residential requirements by the November election, he cannot vote in any special election or primary election prior to the time that he actually possesses the residential requirements. OAG 61-169 .

Where a voter has moved from one precinct to another and his name appears on the registration lists of both precincts, his name should be certified to the precinct to which he has moved. OAG 61-466 .

If a person was convicted of a felony, even though he were placed on probation, he cannot vote until the Governor has given him a pardon and restored his civil rights. OAG 62-449 .

Where a person became a citizen of the United States just prior to the general election but he had sufficient previous residence to meet the voting qualifications, he was eligible to be registered to vote in the general election. OAG 63-495 .

An information may not be used for a common-law crime or for a statutory misdemeanor which operates as an exclusion from the right of suffrage. OAG 63-808 .

If a person convicted of a felony has not been pardoned and thus restored to his civil rights as set out in this section of the Constitution, he is not eligible for the office of marshal. OAG 64-783 .

To be eligible to vote in Kentucky a person must be a legal resident of the state, be 18 years of age or have reached age 18 by the November election. OAG 67-210 .

When the annexation of an area by a city becomes effective, those voters having resided in the annexed territory the required length of time under this section of the Constitution and who are registered voters are automatically eligible to vote as city residents. OAG 69-467 .

This section of the Constitution and KRS 117.605 (repealed) require every voter to reside within the precinct 60 days next preceding the election. When a registered voter moves to another precinct and thereby becomes a resident of the precinct after the books are closed, he does not possess the constitutional qualifications necessary for him to vote in either the old or the new precinct. OAG 69-481 .

A person is not prohibited from voting by reason of his receiving a dishonorable discharge as a result of a general court-martial. OAG 69-619 .

KRS 117.615 (repealed) permits a person to register to vote even though he does not possess the age and residential qualifications set forth in this section of the Constitution provided he will possess such qualifications by the next November election, however, such a person cannot vote in a general or special election until he possesses the age and residential qualifications enumerated in the Constitution and KRS 117.605 (repealed). OAG 70-79 .

Residents of federal reservations in Kentucky who have established factual residence on the reservation for the period of time prescribed in this section are entitled to vote in Kentucky. OAG 70-490 .

The Governor has the authority to pardon a person convicted of a felony in federal court insofar as the restoration of the person’s right to vote and hold office under this section and Const., § 150. OAG 71-109 .

A conviction in United States District Court of the offense of possessing untaxed whiskey which resulted in a fine of $500 and six (6) months in jail, which was suspended with five (5) years’ probation, is merely conviction of a misdemeanor, does not disfranchise the person so convicted under this section and would not appear to affect his eligibility to serve as chairman of a county political committee. OAG 72-43 .

A man convicted of conspiracy in the state of Michigan would be ineligible to vote and, as a result, would be ineligible to run for and hold the office of sheriff if such conviction constituted a felony or high misdemeanor in the state of Michigan, but the right to vote may be restored by an executive order of the Governor of Kentucky pursuant to the terms of this section. OAG 73-227 .

Where a convicted felon on probation signed as an elector the qualification papers of a candidate seeking nomination for county office and prior to the May primary his probation was revoked automatically under this section, he was disqualified as an elector, which fact could be raised by an opposing candidate at any time after the revocation of probation and before the primary election under KRS 119.085 (repealed), although the qualification papers could be amended to remove this defect by substituting a new elector up to 30 days before the primary election. OAG 73-369 .

It seems apparent that pursuant to this section and § 147 of the Constitution and KRS 128.020 (repealed) and 128.150 (repealed), no person can be permitted to vote on election day who is not registered or reregistered to vote within the time prescribed by law even though he may otherwise possess the necessary qualifications to register and vote. OAG 73-612 .

Though the terms “incompetent” and “unsound mind” could include a person who was in fact insane, if the individual in question were declared to be incompetent solely for the purpose of appointing a committee to manage his financial affairs with respect to his welfare check, he would not be disqualified from voting by reason of insanity and, as long as the person in question is registered, he is prima facie qualified to vote though his qualifications can be challenged at the polls. OAG 73-700 .

Where a regular army officer has not been an actual resident of Kentucky for the preceding six (6) years but Kentucky has always been his official home of record and during his entire military service he annually paid Kentucky income tax and voted by absentee ballot in local, state and national elections, the question of whether his residence in Kentucky qualifies him to run for Lieutenant-Governor would have to be decided by courts under the legal guidelines governing domicile and residence and the only practical method of settling this question is for the officer to file for the office and await any possible challenge. OAG 75-89 .

Inmates of city or county jails convicted of treason, felony, bribery in an election or of such high misdemeanors as the General Assembly may declare, in the absence of a pardon from the Governor, cannot vote regardless of whether they are in or out of prison, however, under KRS 116.025 , those persons in jail who are charged with a crime but who have not been convicted and who are eligible may vote by absentee ballot. OAG 75-135 .

A person who has been declared incompetent, but who has not been declared to be insane by a court of competent jurisdiction, would be entitled to register and vote, if otherwise qualified. OAG 76-549 .

Where a person’s felony conviction was suspended and the individual placed on probation he would still be disqualified from voting or holding public office, but upon completion of the probation he would be entitled to apply to the Governor for restoration of his civil rights. OAG 77-95 .

The young people who are registered as 17-year-olds, but who will be 18 by the November general election, will not be eligible to vote in a special local option election under KRS 116.025 . OAG 79-41 .

A city annexing a university area could not strengthen the voting requirements since the voting qualifications are controlled by the Constitution and state statutes. OAG 82-157 .

Party affiliation is of no consequence insofar as one’s voting rights are concerned at the November election. OAG 85-131 .

A person is qualified to vote provided he meets the constitutional qualifications enumerated under this section as modified by the Supreme Court of the United States and reflected in KRS 116.025 and the registration requirement found in KRS 116.045 . OAG 85-131 .

Research References and Practice Aids

Cross-References.

Eligibility to vote, KRS 116.025 .

Right of suffrage not to be abridged on account of sex, United States Const., Amend. 19.

Kentucky Law Journal.

Note, New Approaches to the Civil Disabilities of Ex-Offenders, 64 Ky. L.J. 382 (1975-76).

Note, PACS in Kentucky: Regulating the Permanent Committees, 76 Ky. L.J. 1011 (1987-88).

Northern Kentucky State Law Forum Crumplar, Federal Election Campaign Reform: In the Twilight Zone Between Legitimate and Criminal Activity, 3 N. Ky. St. L.F. 1 (1975).

Northern Kentucky Law Review.

2008 Criminal Law Issue: Article: Barred From the Polls: Felony Disenfranchisement in the Bluegrass, see 35 N. Ky. L. Rev. 371 (2008).

ALR

Elections: Effect of conviction under federal law, or law of another state or country, on right to vote or hold public office. 39 A.L.R.3d 303.

§ 146. Soldiers or sailors stationed in State are not residents.

No person in the military, naval or marine service of the United States shall be deemed a resident of this State by reason of being stationed within the same.

Opinions of Attorney General.

Where a regular army officer has not been an actual resident of Kentucky for the preceding six (6) years but Kentucky has always been his official home of record and during his entire military service he annually paid Kentucky income tax and voted by absentee ballot in local, state and national elections, the question of whether his residence in Kentucky qualifies him to run for Lieutenant-Governor would have to be decided by courts under the legal guidelines governing domicile and residence and the only practical method of settling this question is for the officer to file for the office and await any possible challenge. OAG 75-89 .

Research References and Practice Aids

Cross-References.

Rules for determining residence, KRS 116.035 .

§ 147. Registration of voters — Manner of voting — Absent voting — Voting machines — “Election” defined — Election laws — Illiterate and disabled voters.

The General Assembly shall provide by law for the registration of all persons entitled to vote in cities and towns having a population of five thousand or more; and may provide by general law for the registration of other voters in the State. Where registration is required, only persons registered shall have the right to vote. The mode of registration shall be prescribed by the General Assembly. In all elections by persons in a representative capacity, the voting shall be viva voce and made a matter of record; but all elections by the people shall be by secret official ballot, furnished by public authority to the voters at the polls, and marked by each voter in private at the polls, and then and there deposited, or any person absent from the county of his legal residence, or from the state, may be permitted to vote in a manner provided by law. Counties so desiring may use voting machines, these machines to be installed at the expense of such counties. The word “elections” in this section includes the decision of questions submitted to the voters, as well as the choice of officers by them. The General Assembly shall pass all necessary laws to enforce this section, and shall provide that persons illiterate, blind, or in any way disabled may have their ballots marked or voted as herein required.

History. Amendment, proposed 1940, approved, 1941; amendment, proposed Acts 1944, ch. 5, approved November 1945.

NOTES TO DECISIONS

1.Construction.

The voter can vote only by using the official ballot furnished by public authority pursuant to statute. Commonwealth v. Combs, 120 Ky. 368 , 86 S.W. 697, 27 Ky. L. Rptr. 751 , 1905 Ky. LEXIS 112 ( Ky. 1905 ).

This section must be read with Const., § 148. Patterson v. Lawson, 255 Ky. 781 , 75 S.W.2d 507, 1934 Ky. LEXIS 330 ( Ky. 1934 ).

2.Absentee Voting.

An absentee voting statute is unconstitutional. Clark v. Nash, 192 Ky. 594 , 234 S.W. 1, 1921 Ky. LEXIS 102 ( Ky. 1921 ).

Act which allowed absentee voting was valid, notwithstanding this section. Commonwealth ex rel. Dummit v. O'Connell, 298 Ky. 44 , 181 S.W.2d 691, 1944 Ky. LEXIS 837 ( Ky. 1944 ) (decision prior to 1945 amendment).

The phrase “any person” does not require the legislative discretion to be exercised in favor of all absent voters. Hallahan v. Mittlebeeler, 373 S.W.2d 726, 1963 Ky. LEXIS 171 ( Ky. 1963 ).

There is no prohibition under this section against establishing classification of absentee voters. Hallahan v. Mittlebeeler, 373 S.W.2d 726, 1963 Ky. LEXIS 171 ( Ky. 1963 ).

3.Ballot Marking.

Under this section, act of voting was not complete until official ballot was marked (stamped) by voter and then and there deposited. Commonwealth v. Baker, 237 Ky. 380 , 35 S.W.2d 548, 1931 Ky. LEXIS 611 ( Ky. 1931 ).

Irregularities of election officials, as the stamping of stubs attached to the ballots with a stencil that caused a mark on the top of the ballots, that do not affect the merits of the election, will not invalidate the ballots of qualified voters. Campbell v. Little, 251 Ky. 812 , 66 S.W.2d 67, 1933 Ky. LEXIS 968 ( Ky. 1933 ).

4.Comparative Signatures.

The statutory provision requiring the voter to sign the comparative signature book before he casts his vote does not deny to a person his right to vote or render its exercise so difficult or inconvenient as to amount to a denial of the right to vote, and is constitutional. Wilkinson v. Queen, 269 S.W.2d 223, 1954 Ky. LEXIS 969 ( Ky. 1954 ).

5.Corrupt Practice Act.

The provisions of the corrupt practice act, authorizing the court to award the election to the second highest candidate when the highest candidate has violated the act, are constitutional as to primary elections, but unconstitutional as to general elections. Creech v. Fields, 276 Ky. 359 , 124 S.W.2d 503, 1939 Ky. LEXIS 537 ( Ky. 1939 ).

The provisions of the corrupt practice act, authorizing the court to declare the nomination or election of an officer void when the officer has violated the act, are constitutional. Creech v. Fields, 276 Ky. 359 , 124 S.W.2d 503, 1939 Ky. LEXIS 537 ( Ky. 1939 ).

6.Disabled Voters.

A disabled voter must declare his disability on oath before his ballot can be marked for him by the clerk. Major v. Barker, 99 Ky. 305 , 35 S.W. 543, 18 Ky. L. Rptr. 104 , 1896 Ky. LEXIS 73 ( Ky. 1896 ).

Unless an illiterate or disabled voter declares his disability under oath before his ballot is marked for him by the clerk, such ballot will be considered illegal and cannot be counted. Cole v. Nunnelley, 140 Ky. 138 , 130 S.W. 972, 1910 Ky. LEXIS 185 ( Ky. 1910 ).

The requirement that the Legislature make provisions for the benefit of blind, illiterate, and physically disabled persons to vote at regular elections has no reference to primary elections. Black v. Spillman, 185 Ky. 201 , 215 S.W. 28, 1919 Ky. LEXIS 269 ( Ky. 1919 ).

Ballots openly marked by the clerk according to the wish of the voter, in the presence of numerous persons, are void unless such voter is illiterate, blind or disabled. Kean v. Whittle, 210 Ky. 273 , 275 S.W. 818, 1925 Ky. LEXIS 658 ( Ky. 1925 ).

The provision of KRS 125.140 (repealed) for assistance to illiterate or disabled voters in operating the voting machine does not violate this section. Grauman v. Jefferson County Fiscal Court, 294 Ky. 149 , 171 S.W.2d 36, 1943 Ky. LEXIS 402 ( Ky. 1943 ).

Where many voters, some of whom were under no apparent disability and none of whom signed an affidavit of disability, were accompanied in the voting booth by an election officer, such open voting violated this section and the votes so cast were illegal. Sims v. Atwell, 556 S.W.2d 929, 1977 Ky. App. LEXIS 826 (Ky. Ct. App. 1977).

7.Elections.

In Const., § 61, word “election” was used in sense provided in this section, which provision clearly indicated that such word was used in Const., § 148 to include questions submitted to the people, as otherwise there would be no need for permission given by Const., § 61. Belknap v. Louisville, 99 Ky. 474 , 36 S.W. 1118, 18 Ky. L. Rptr. 313 , 1896 Ky. LEXIS 122 ( Ky. 1896 ), overruled, Montgomery County Fiscal Court v. Trimble, 104 Ky. 629 , 47 S.W. 773, 20 Ky. L. Rptr. 827 , 1898 Ky. LEXIS 210 ( Ky. 1898 ), overruled, Board of Education v. Winchester, 120 Ky. 591 , 87 S.W. 768, 27 Ky. L. Rptr. 994 , 1905 Ky. LEXIS 139 ( Ky. 1905 ); Board of Education v. Winchester, 120 Ky. 591 , 87 S.W. 768, 27 Ky. L. Rptr. 994 , 1905 Ky. LEXIS 139 ( Ky. 1905 ).

Definition of election in this section was meant to apply to all elections by the people held under the Constitution. Morgan v. Goode, 151 Ky. 284 , 152 S.W. 584, 1912 Ky. LEXIS 820 ( Ky. 1912 ).

Definition of term “election” in this section applied equally to term “election” wherever it appeared in Constitution. Morgan v. Goode, 151 Ky. 284 , 152 S.W. 584, 1912 Ky. LEXIS 820 ( Ky. 1912 ).

A vote of the people to determine the location of the county seat of a county, is an election within the terms of this section and must be by secret ballot. Walker v. Goode, 153 Ky. 795 , 156 S.W. 893, 1913 Ky. LEXIS 931 ( Ky. 1913 ).

No one can be declared elected, and no measure can be declared carried, unless he or it receives a majority or a plurality of the legal votes cast in the election. McKinney v. Barker, 180 Ky. 526 , 203 S.W. 303, 1918 Ky. LEXIS 102 ( Ky. 1918 ) ( Ky. 1918 ).

8.Election Officials.

Irregularities in election procedure by election officials, which are not fraudulent or intentional, and which have no effect on the results, will not invalidate the election. Craig v. Spitzer, 140 Ky. 465 , 131 S.W. 264, 1910 Ky. LEXIS 293 ( Ky. 1910 ).

Officers having charge of registration and purgation in cities are officers not of the local city, but of the state, and may be appointed by the state with authority to act in the city. Burton v. Mayer, 274 Ky. 245 , 118 S.W.2d 161, 1938 Ky. LEXIS 233 ( Ky. 1938 ).

9.Manner of Voting.

The Legislature has the authority to make reasonable regulations for the exercise of the legislative franchise so long as it does not deny the voting privilege itself, either directly or by rendering its exercise so difficult and inconvenient as to amount to a denial. Wilkinson v. Queen, 269 S.W.2d 223, 1954 Ky. LEXIS 969 ( Ky. 1954 ).

10.Qualification of Voters.

The language “or who in any manner causes himself to be registered when he is not legally entitled to register” in KRS 119.025 , when considered with other Kentucky statutes regarding qualification for voting, is sufficiently definite to put an ordinary person on notice that a convicted felon attempting to register would be in violation. Commonwealth v. Kash, 967 S.W.2d 37, 1997 Ky. App. LEXIS 119 (Ky. Ct. App. 1997).

11.Registration.
12.— Absentee.

A statute providing for registration by absentees is constitutional. Clark v. Nash, 192 Ky. 594 , 234 S.W. 1, 1921 Ky. LEXIS 102 ( Ky. 1921 ).

13.— Certificates.

Persons who were registered voters, but did not present their certificates of registration, nor offered to do so, were not entitled to vote. Felts v. Edwards, 181 Ky. 287 , 204 S.W. 145 ( Ky. 1918 ).

14.— Cities and Towns.

This section does not require the Legislature to provide for the registration of all voters not residing in cities and towns having a population of 5,000 or more, in case it requires any of such voters to register, but the Legislature is entitled to classify such voters by general laws, and to exempt voters residing in the country from registration, while requiring those residing in cities and towns to be registered. Yates v. Collins, 118 Ky. 682 , 82 S.W. 282, 26 Ky. L. Rptr. 558 , 26 Ky. L. Rptr. 930 , 1904 Ky. LEXIS 89 (Ky. Ct. App. 1904).

Legislation which provides for the registration of voters residing outside the corporate limits of cities must apply to all such voters in the state. Atherton v. Fox, 245 Ky. 718 , 54 S.W.2d 11, 1932 Ky. LEXIS 647 ( Ky. 1932 ).

The phrase “other voters” as it appears in this section does not necessarily mean all voters. Hallahan v. Mittlebeeler, 373 S.W.2d 726, 1963 Ky. LEXIS 171 ( Ky. 1963 ).

15.— Manner.

The General Assembly may prescribe a mode of registration of voters. Yates v. Collins, 118 Ky. 682 , 82 S.W. 282, 26 Ky. L. Rptr. 558 , 26 Ky. L. Rptr. 930 , 1904 Ky. LEXIS 89 (Ky. Ct. App. 1904). See Perkins v. Lucas, 197 Ky. 1 , 246 S.W. 150, 1922 Ky. LEXIS 633 ( Ky. 1 922 ).

16.— School Elections.

In determining whether voters in school elections are required to register, it is necessary to look to the statute to ascertain what provision has been made upon the subject of the registration of voters. Payne v. Providence Graded Common School Dist., 173 Ky. 753 , 191 S.W. 477, 1917 Ky. LEXIS 506 ( Ky. 1917 ).

17.— Special Elections.

Where the statute provides for general and special elections, and a special local option election is held without providing for a special registration, the election is void and may not be sustained by showing that the results were not affected by the failure to provide for special registration. Early v. Rains, 121 Ky. 439 , 106 Mo. App. 684, 89 S.W. 289, 28 Ky. L. Rptr. 415 , 1905 Ky. LEXIS 224 ( Ky. 1905 ).

18.— When Required.

Where the statute provides for a registration of voters prior to the election, and an election is held without providing for the registration at the prescribed time, the election is void. Taylor v. Betts, 141 Ky. 138 , 132 S.W. 162, 1910 Ky. LEXIS 409 ( Ky. 1910 ).

Statute providing that a nominating petition shall be signed by petitioners who are qualified to vote for the candidate requires that they be registered voters. Hall v. Reid, 305 S.W.2d 923, 1957 Ky. LEXIS 349 ( Ky. 1957 ).

By force of this section registration is a qualification or condition precedent of equal dignity with age, residence, and other qualifications prescribed in Const., § 145. Coffey v. Anderson, 371 S.W.2d 624, 1963 Ky. LEXIS 103 ( Ky. 1963 ).

19.Secret Ballot.
20.— In General.

The provision for election by secret ballot applies to all elections by the people, called and held under the Constitution, including decisions of questions submitted to the voters as well as choice of officers by them. Ginsburg v. Giles, 254 Ky. 720 , 72 S.W.2d 438, 1934 Ky. LEXIS 146 ( Ky. 1934 ).

21.— Requirements.

Where voting is open and no effort is made to preserve the secrecy of the ballot, the election will be thrown out. Combs v. Eversole, 114 Ky. 222 , 70 S.W. 638, 24 Ky. L. Rptr. 1063 , 1902 Ky. LEXIS 151 ( Ky. 1902 ). See Harrison v. Stroud, 129 Ky. 193 , 110 S.W. 828, 33 Ky. L. Rptr. 653 , 1908 Ky. LEXIS 147 ( Ky. 1908 ); Allen v. Griffith, 160 Ky. 528 , 169 S.W. 1003, 1914 Ky. LEXIS 497 ( Ky. 1914 ).

Secrecy of the ballot is preserved even though the body of the voter could be seen while he marked his ballot. Jones v. Steele, 210 Ky. 205 , 275 S.W. 790, 1925 Ky. LEXIS 647 ( Ky. 1925 ).

Statute that provides for notice of contest of election to be served upon several of those persons who voted in favor of the measure compels that class to state how they voted in the election and therefore violates their right to secrecy of ballot. Gabbard v. Roberts, 220 Ky. 480 , 295 S.W. 438, 1927 Ky. LEXIS 554 ( Ky. 1927 ).

Where voters can see how each other voted, as there was no screen or obstruction separating them, the election was not held by secret ballot and is invalid. Smith v. Jones, 221 Ky. 546 , 299 S.W. 170, 1927 Ky. LEXIS 762 ( Ky. 1927 ).

Voter violates the constitutional requirement of secrecy of ballot by depositing his ballot in the ballot box without detaching the secondary stub, upon which appeared his name and ballot number. State Board of Election Comm'rs v. Coleman, 235 Ky. 24 , 29 S.W.2d 619, 1930 Ky. LEXIS 305 ( Ky. 1930 ).

Where the provisions of the statute requiring election booths were not complied with, but the secrecy of the ballot was not affected thereby, the election will not be set aside. Alsip v. Perkins, 236 Ky. 5 , 36 Ky. 5 , 32 S.W.2d 565, 1930 Ky. LEXIS 684 ( Ky. 1930 ).

Where it is shown that voters voted openly without being sworn, the votes so cast should be thrown out. Runyon v. Trent, 270 Ky. 134 , 109 S.W.2d 396, 1937 Ky. LEXIS 40 ( Ky. 1937 ).

22.— City Officials.

Election of city attorney by secret ballot, rather than viva voce, of board of council was not invalidated by this section, since applicable section was Const., § 167 pursuant to which such election was properly held in accordance therewith. Goodloe v. Fox, 96 Ky. 627 , 29 S.W. 433, 16 Ky. L. Rptr. 653 , 1895 Ky. LEXIS 120 ( Ky. 1895 ).

23.— Nominating Petitions.

The requirement of subsection (2) of KRS 118.315 that a candidate’s petition include a declaration that “the subscribers desire . . . . . to vote for the candidate” violates the right to a secret ballot guaranteed by Ky. Const., § 147, since the declaration operates to discourage signers from participating in the electoral process by revealing how they would vote. Anderson v. Mills, 664 F.2d 600, 1981 U.S. App. LEXIS 15841 (6th Cir. Ky. 1981 ).

24.— Primary Elections.

In a primary election contest a voter may be made to tell for whom he voted. Heitzman v. Voiers, 155 Ky. 39 , 159 S.W. 625, 1913 Ky. LEXIS 189 ( Ky. 1913 ).

Secret ballot provision of this section had no application to primary elections. Glenn v. Gnau, 251 Ky. 3 , 64 S.W.2d 168, 1933 Ky. LEXIS 795 ( Ky. 1933 ). See Runyon v. Trent, 270 Ky. 134 , 109 S.W.2d 396, 1937 Ky. LEXIS 40 ( Ky. 1937 ).

25.— School Elections.

From Const., § 155 as applied to this section, it was clear that secret ballot was not intended as requirement in common-school district elections. Moss v. Riley, 102 Ky. 1 , 43 S.W. 421, 19 Ky. L. Rptr. 993 , 1897 Ky. LEXIS 104 ( Ky. 1 897 ).

26.— Tax Elections.

In subdistrict tax elections, secret ballot should be used. Gill v. Board of Education, 288 Ky. 790 , 156 S.W.2d 844, 1941 Ky. LEXIS 142 ( Ky. 1941 ).

27.Viva Voce.

Where a statute requires an election of school board members to be viva voce, the holding of the same by secret ballot is in violation of the statute and void. Elliott v. Burke, 113 Ky. 479 , 68 S.W. 445, 24 Ky. L. Rptr. 292 , 1902 Ky. LEXIS 70 ( Ky. 1902 ).

28.Voting Machines.

The primary purpose of this section was the preservation of secrecy of ballot, and statute authorizing use of voting machines was unconstitutional, because it violated provision that ballots are to be marked and deposited. Jefferson County ex rel. Grauman v. Jefferson County Fiscal Court, 273 Ky. 674 , 117 S.W.2d 918, 1938 Ky. LEXIS 704 ( Ky. 1938 ) (decision prior to 1940 amendment).

KRS ch. 125 (repealed) did not violate this section. Grauman v. Jefferson County Fiscal Court, 294 Ky. 149 , 171 S.W.2d 36, 1943 Ky. LEXIS 402 ( Ky. 1943 ).

The fact that voting machines are used in some precincts and not in others does not violate the requirement that elections be free and equal. Grauman v. Jefferson County Fiscal Court, 294 Ky. 149 , 171 S.W.2d 36, 1943 Ky. LEXIS 402 ( Ky. 1943 ).

This section imposes on the county the expense of initial installation of the voting machines but does not require county to bear expense of delivering them to city precincts for use in an election in which only city residents vote. Louisville v. Jefferson County Fiscal Court, 307 Ky. 818 , 212 S.W.2d 107, 1948 Ky. LEXIS 807 ( Ky. 1948 ).

The expense of maintenance of voting machines is to be borne by the fiscal court of the county and not the county clerk. Jefferson County Fiscal Court v. Queenan, 314 Ky. 271 , 234 S.W.2d 949, 1950 Ky. LEXIS 1072 ( Ky. 1950 ).

Words in this section to effect that “counties so desiring may use voting machines” did not preclude mandatory action by Legislature, therefore, law which required voting machines in counties, did not violate this section. Lackey v. Garner, 367 S.W.2d 257, 1963 Ky. LEXIS 17 ( Ky. 1963 ).

29.Disclosure of Voting Preference.

There is no good reason to require a voter to disclose the name of the person for whom he voted in the general election; neither is there any good reason to permit a voter to voluntarily disclose the name of the person for whom he voted in the general election. Wood v. Kirby, 566 S.W.2d 751, 1978 Ky. LEXIS 364 ( Ky. 1978 ).

Cited:

Nall v. Tinsley, 107 Ky. 44 1 , 21 Ky. L. Rptr. 1167 , 54 S.W. 187, 1899 Ky. LEXIS 184 ( Ky. 1 899); Pratt v. Breckinridge, 112 Ky. 1 , 23 Ky. L. Rptr. 1356 , 65 S.W. 136, 1901 Ky. LEXIS 286 ( Ky. 1901 ); Crook v. Bartlett, 155 Ky. 305 , 159 S.W. 826, 1913 Ky. LEXIS 254 ( Ky. 1913 ); Penny v. McRoberts, 163 Ky. 313 , 173 S.W. 786, 1915 Ky. LEXIS 223 ( Ky. 1915 ); Walsh v. Asher, 163 Ky. 377 , 173 S.W. 808, 1915 Ky. LEXIS 231 ( Ky. 1915 ); Hewlett v. Springfield, 210 Ky. 199 , 275 S.W. 385, 1925 Ky. LEXIS 646 ( Ky. 1925 ); Norton v. Letton, 271 Ky. 353 , 111 S.W.2d 1053, 1937 Ky. LEXIS 242 ( Ky. 1937 ); Fletcher v. Hampton, 275 Ky. 250 , 121 S.W.2d 33, 1938 Ky. LEXIS 402 ( Ky. 1938 ); Logsdon v. Howard, 280 Ky. 342 , 133 S.W.2d 60, 1939 Ky. LEXIS 116 ( Ky. 1939 ); Karloftis v. Helton, 297 Ky. 463 , 178 S.W.2d 959, 1944 Ky. LEXIS 665 ( Ky. 1944 ); Kobs v. Ross, 298 Ky. 267 , 182 S.W.2d 340, 1944 Ky. LEXIS 860 ( Ky. 1944 ); Commonweath ex rel. Dummit v. O’Connell, 298 Ky. 44 , 181 S.W.2d 691, 1944 Ky. LEXIS 837 (Ky. 1944); Stabile v. Osborne, 309 Ky. 427 , 217 S.W.2d 980, 1949 Ky. LEXIS 729 ( Ky. 1949 ); Rosenberg v. Queenan, 261 S.W.2d 617, 1953 Ky. LEXIS 1025 ( Ky. 1953 ); Mills v. Broughton, 365 S.W.2d 315, 1962 Ky. LEXIS 291 ( Ky. 1962 ); Stephens v. Hicks, 401 S.W.2d 75, 1966 Ky. LEXIS 405 ( Ky. 1966 ).

Decisions Under Prior Constitution

1.Illiterate Voters.

A statute which required the voter to retire to a compartment, and there, alone and unaided, indicate by a mark on the ballot the various candidates he wished to vote for, was unconstitutional as it practically deprived illiterate persons of a free and intelligible choice. Rogers v. Jacob, 88 Ky. 502 , 11 S.W. 513, 11 Ky. L. Rptr. 45 , 1889 Ky. LEXIS 66 ( Ky. 1889 ).

Opinions of Attorney General.

The officers and employees chosen by the General Assembly pursuant to KRS 6.150 are not exempt from the Frankfort occupational license tax as elected officers. OAG 68-66 .

KRS 126.140 (repealed, see KRS 125.230 , see also KRS 125.220 ) provides in effect that the voter must be absent from his county on election day to vote in absentee. It follows this section of the Constitution which also requires that a person must be absent from the county on election day to vote in absentee, thus physically handicapped, crippled persons and aged and infirm voters who remain at home on election day cannot vote in absentee unless and until the Constitution is amended. OAG 68-297 , 69-210.

Any legal voter is entitled to be registered as a member of any political party or political organization of his choice which would include the minor political organization or party known as the “American Party.” OAG 69-9 .

While the holding of an election by a governmental unit for the purpose of submitting to the voters thereof a public question (as under KRS 96.540 ) is in a sense a special election, when held, it must be on the day fixed by Const., § 148, and in accordance with KRS 125.005 (repealed), which is the latest legislative expression on the conduct of elections involving the submission of questions to the voters. The voting should be conducted in the regular precincts by the use of voting machines. OAG 73-553 .

It seems apparent that pursuant to this section and § 145 of the Constitution and KRS 128.020 (repealed) and 128.150 (repealed), no person can be permitted to vote on election day who is not registered or reregistered to vote within the time prescribed by law even though he may otherwise possess the necessary qualifications to register and vote. OAG 73-612 .

The election authorized pursuant to subsection (3) of KRS 244.295 , concerning the question of allowing limited Sunday sales of distilled spirits and wine by the drink beginning at 1:00 p.m., can be held on a general election day. OAG 82-226 .

It is not a violation of a primary candidate’s constitutional right to secret ballot, as set out in this section, to require him to state under oath that he supported his parties’ nominees in the last regular election and will support the parties’ nominees in the next regular election before allowing him to register as a candidate in a primary election; the term “support,” as used in KRS 118.125(2), does not necessarily mean that the candidate had to have voted the party ticket at the last regular election, but it could consist of advocating the claims of the party nominees, contributing to campaign expenses, getting out to vote or actual support in other ways. OAG 85-24 .

Legislation providing for “no-excuse absentee voting,” or early voting, in order to comply with federal law, a final court decision binding the Commonwealth, or rights recognized in the Bill of Rights of the Kentucky Constitution would not require an amendment to the Kentucky Constitution. OAG 07-05 .

Research References and Practice Aids

Cross-References.

Absentee voting, KRS 117.085 to 117.087 .

Conduct of elections, KRS 117.015 to 117.345 , 118.015 to 118.770 .

Electronic voting system, KRS 117.375 to 117.393 .

Medical emergency, voting by person incurring, KRS 117.077 .

Registration of voters, KRS Ch. 116.

Voting by illiterate and disabled voters, KRS 117.075 , 117.255 .

Voting machines, KRS 117.145 to 117.345 .

Voting to be by secret ballot, KRS 125.005 .

§ 148. Number of elections — Day and hours of election — Qualifications of officers — Employees to be given time to vote.

Not more than one election each year shall be held in this State or in any city, town, district, urban-county or county thereof, except as otherwise provided in this Constitution. All regular elections of State, county, city, town, urban-county, or district officers shall be held on the first Tuesday after the first Monday in November. All elections by the people shall be between the hours of six o’clock a.m. and seven o’clock p.m., but the General Assembly may change said hours, and all officers of any election shall be residents and voters in the precinct in which they act. The General Assembly shall provide by law that all employers shall allow employees, under reasonable regulations, at least four hours on election days, in which to cast their votes.

History. Amendment, proposed by Acts 1992, ch. 168, § 16, ratified November 3, 1992.

Compiler’s Notes.

The General Assembly in 1992 (Acts 1992, ch. 168, § 16) proposed an amendment to the Constitution which amendment was ratified by the voters at the regular election November 3, 1992. Prior to the amendment this section read:

“§ 148. Number of elections — Day and hours of election — Election years — Qualifications of officers — Employes to be given time to vote.

Not more than one election each year shall be held in this State or in any city, town, district, or county thereof, except as otherwise provided in this Constitution. All elections of State, county, city, town or district officers shall be held on the first Tuesday after the first Monday in November; but no officer of any city, town, or county, or of any subdivision thereof, except members of municipal legislative boards, shall be elected in the same year in which members of the House of Representatives of the United States are elected. District or State officers, including members of the General Assembly, may be elected in the same year in which members of the House of Representatives of the United States are elected. All elections by the people shall be between the hours of six o’clock a.m. and seven o’clock p.m., but the General Assembly may change said hours, and all officers of any election shall be residents and voters in the precinct in which they act. The General Assembly shall provide by law that all employers shall allow employes, under reasonable regulations, at least four (4) hour on election days, in which to cast their votes.

Section 19 of Acts 1992, ch. 168 provided: “It is further proposed as a part of this amendment and as a schedule of transitional provisions, for the purposes of this amendment, and any other provision of the Constitution of Kentucky notwithstanding:

“(1) The Governor; Lieutenant Governor; Treasurer; Auditor of Public Accounts; Attorney General; Secretary of State; Commissioner of Agriculture, Labor and Statistics; Superintendent of Public Instruction; and Railroad Commissioners elected in 1991 shall be ineligible for election to the same office for the succeeding term. Those officers elected in 1995 shall be eligible for election to the next succeeding term.

“(2) The term of office of Commonwealth’s Attorneys and Circuit Clerks elected in 1993 shall be for a single term of seven years. The regular election for those offices shall then be held in 2000 and every six years thereafter.

“(3) The term of office of District Judges, Mayors, County Judges/Executive, and local officers who regularly serve a four (4) year term and who are scheduled to be elected in 1993 shall be for a single term of five years. The regular election for those offices shall then be held in 1998 and every four (4) years thereafter.

“(4) The term of office for local officers who regularly serve a two-year term and who are scheduled to be elected in 1993 shall be for a single term of three years. The regular election for those offices shall then be held in 1996 and every two years thereafter.

“(5) The term of office for Circuit Judges and Judges of the Court of Appeals elected in 1999 shall be for a single term of seven years. The regular election for those offices shall then be held in 2006 and every eight years thereafter.

“(6) The term of office for mayor, magistrate, or other officer not specifically provided for in subsection (4) of this section elected in 1995 shall be extended for one year and subsequent elections for offices subject to the provisions of this subsection shall be held in even-numbered years.

“(7) No person holding elective office upon the effective date of this amendment shall have the duration of his current term extended. However, if the next election of any officer not specifically provided for in this section is scheduled to appear on the ballot in an odd-numbered year, the duration of that term of the officer elected shall be extended for one year. The election for any office subject to the provisions of this subsection shall subsequently be held in even-numbered years.”

NOTES TO DECISIONS

Cited:

Brown v. Holland, 97 Ky. 249 , 30 S.W. 629, 17 Ky. L. Rptr. 149 , 1895 Ky. LEXIS 180 ( Ky. 1 895 ); Todd v. Johnson, 99 Ky. 548 , 36 S.W. 987, 18 Ky. L. Rptr. 354 , 1896 Ky. LEXIS 121 ( Ky. 1 896 ); Eversole v. Brown, 53 S.W. 527, 21 Ky. L. Rptr. 925 , 1899 Ky. LEXIS 634 (Ky. Ct. App. 1899); Orme v. Commonwealth, 55 S.W. 195, 21 Ky. L. Rptr. 1412 (1900); Pratt v. Breckinridge, 112 Ky. 1, 65 S.W. 136, 23 Ky. L. Rptr. 1356 , 1901 Ky. LEXIS 286 ( Ky. 1901 ); McKinney v. Board of Trustees, 144 Ky. 85 , 137 S.W. 839, 1911 Ky. LEXIS 555 ( Ky. 1911 ); Crook v. Bartlett, 155 Ky. 305 , 159 S.W. 826, 1913 Ky. LEXIS 254 ( Ky. 1913 ); Hutchinson v. Miller, 158 Ky. 363 , 164 S.W. 961, 1914 Ky. LEXIS 611 ( Ky. 1914 ); Land v. Land, 244 Ky. 12 6, 50 S.W.2d 518, 1931 Ky. LEXIS 720 ( Ky. 1931 ); Hester v. Robbins, 292 Ky. 12 , 165 S.W.2d 817, 1942 Ky. LEXIS 15 ( Ky. 1942 ); Brumleve v. Ruth, 302 Ky. 813 , 195 S.W.2d 777, 1946 Ky. LEXIS 948 , 1946 Ky. LEXIS 949 ( Ky. 1946 ); Stephens v. Hicks, 401 S.W.2d 75, 1966 Ky. LEXIS 405 ( Ky. 1966 ).

Decisions Under Prior Section

1.Construction.

In Const., § 61, word “election” was used in sense provided in Const., § 147, which provision clearly indicated that such word was used in this section to include questions submitted to the people, as otherwise there would be no need for permission given by Const., § 61. Belknap v. Louisville, 99 Ky. 474 , 36 S.W. 1118, 18 Ky. L. Rptr. 313 , 1896 Ky. LEXIS 122 ( Ky. 1896 ), overruled, Montgomery County Fiscal Court v. Trimble, 104 Ky. 629 , 47 S.W. 773, 20 Ky. L. Rptr. 827 , 1898 Ky. LEXIS 210 ( Ky. 1898 ), overruled, Board of Education v. Winchester, 120 Ky. 591 , 87 S.W. 768, 27 Ky. L. Rptr. 994 , 1905 Ky. LEXIS 139 ( Ky. 1905 ); Board of Education v. Winchester, 120 Ky. 591 , 87 S.W. 768, 27 Ky. L. Rptr. 994 , 1905 Ky. LEXIS 139 ( Ky. 1905 ).

Const., §§ 147 and this section are legislative, mandatory and exclusive in character, laying down a specific plan by which elections are to be held. Jefferson County ex rel. Grauman v. Jefferson County Fiscal Court, 273 Ky. 674 , 117 S.W.2d 918, 1938 Ky. LEXIS 704 ( Ky. 1938 ).

2.Election Time.

Analysis

3. — Hour.

4. — Day.

5. — Year.

6. — Bond Issues.

7. — County Government.

8. — Local Option Elections.

9. — Primaries.

10. — School Elections.

11. — Special Elections.

3.— Hour.

Votes accepted after the time set for closing the polls are illegal, and the one having the highest number of votes at the closing time is elected. Varney v. Justice, 86 Ky. 596 , 6 S.W. 457, 9 Ky. L. Rptr. 743 , 1888 Ky. LEXIS 9 ( Ky. 1888 ). See Banks v. Sergent, 104 Ky. 843 , 48 S.W. 149, 20 Ky. L. Rptr. 1024 , 1898 Ky. LEXIS 230 ( Ky. 1898 ).

4.— Day.

Under the statute making it a violation of the law to sell or give away liquor upon the day of the election, the statute is violated where liquor is given at 9 p. m. even though the polls had closed at 4 p. m. Commonwealth v. Murphy, 95 Ky. 38 , 23 S.W. 655, 15 Ky. L. Rptr. 411 , 1893 Ky. LEXIS 119 ( Ky. 1893 ).

The word “election” as used in Const., § 157 applies to that word as used in this section, and hence a special election to determine the location of the county seat of a county is an “election,” and having been held on a day other than the first Tuesday after the first Monday in November, is void. Morgan v. Goode, 151 Ky. 284 , 152 S.W. 584, 1912 Ky. LEXIS 820 ( Ky. 1912 ). See Walker v. Goode, 153 Ky. 795 , 156 S.W. 893, 1913 Ky. LEXIS 931 ( Ky. 1913 ).

An election under Const., § 157, governing expenditures over income of a county, must be held on the general election day provided for in this section. Murray v. Irvan, 170 Ky. 290 , 185 S.W. 859, 1916 Ky. LEXIS 43 ( Ky. 1916 ).

The holding of an election for the purpose of deciding whether to accept or reject a municipal loan agreement must be held on the day provided by the Constitution. Ginsburg v. Giles, 254 Ky. 720 , 72 S.W.2d 438, 1934 Ky. LEXIS 146 ( Ky. 1934 ).

An election for the purpose of deciding the composition of a fiscal court is void where held on a day not permitted by this section. Patterson v. Lawson, 255 Ky. 781 , 75 S.W.2d 507, 1934 Ky. LEXIS 330 ( Ky. 1934 ).

5.— Year.

The prohibition against electing city, county or state officers at an election in which members of congress are elected, applies only to general elections and not to special elections to fill vacancies. Shelley v. McCullouch, 97 Ky. 164 , 30 S.W. 193, 17 Ky. L. Rptr. 53 , 1895 Ky. LEXIS 162 ( Ky. 1895 ).

A special election to fill a vacancy in a city office may be held in a year in which congressmen are elected. Smith v. Doyle, 76 S.W. 519, 25 Ky. L. Rptr. 958 (1903).

6.— Bond Issues.

The question of issuing municipal bonds in excess of the yearly revenue must be submitted to the voters at the general election in November. Belknap v. Louisville, 99 Ky. 474 , 36 S.W. 1118, 18 Ky. L. Rptr. 313 , 1896 Ky. LEXIS 122 ( Ky. 1896 ), overruled, Montgomery County Fiscal Court v. Trimble, 104 Ky. 629 , 47 S.W. 773, 20 Ky. L. Rptr. 827 , 1898 Ky. LEXIS 210 ( Ky. 1898 ), overruled, Board of Education v. Winchester, 120 Ky. 591 , 87 S.W. 768, 27 Ky. L. Rptr. 994 , 1905 Ky. LEXIS 139 ( Ky. 1905 ).

7.— County Government.

Although this section prohibits the election of any county officer in the same year as a congressional election, it does not prohibit at such election the submission of the question of whether a county shall adopt a commission form of government. Tarvin v. Boltz, 175 Ky. 246 , 194 S.W. 108, 1917 Ky. LEXIS 301 ( Ky. 1917 ).

8.— Local Option Elections.

In the absence of legislation authorizing it, a local option election must be held on the regular election day. Renfro v. Hamlin, 256 Ky. 192 , 75 S.W.2d 1067, 1934 Ky. LEXIS 381 ( Ky. 1934 ). See Norton v. Letton, 271 Ky. 353 , 111 S.W.2d 1053, 1937 Ky. LEXIS 242 ( Ky. 1937 ).

9.— Primaries.

The word “election,” does not include the primary in the sense that no primary can be held in the same year as the general election. Montgomery v. Chelf, 118 Ky. 766 , 82 S.W. 388, 26 Ky. L. Rptr. 638 , 1904 Ky. LEXIS 100 ( Ky. 1904 ).

The legislature has the power to pass laws governing primaries and the time for holding them, and, from that standpoint, the primary is not an election. Hager v. Robinson, 154 Ky. 489 , 157 S.W. 1138, 1913 Ky. LEXIS 129 ( Ky. 1913 ).

Primary election process for selecting candidates for judicial office is a part of the election process but is not an “election,” because it does not culminate in any candidate’s election to office and therefore is not subject to the prohibition against more than one election in each year. Davis v. Delahanty, 551 S.W.2d 227, 1977 Ky. LEXIS 460 ( Ky. 1977 ).

10.— School Elections.

Although this section forbids the holding of more than one election per year, it does not apply to school elections. Mollette v. Board of Education, 260 Ky. 737 , 86 S.W.2d 990, 1935 Ky. LEXIS 562 ( Ky. 1935 ). See Hoskins v. Ramsey, 197 Ky. 465 , 247 S.W. 371, 1923 Ky. LEXIS 663 ( Ky. 1923 ).

Members of county boards of education are state officers, and may be elected in the same year in which representatives in congress are elected. Ward v. Siler, 272 Ky. 424 , 114 S.W.2d 516, 1938 Ky. LEXIS 139 ( Ky. 1938 ).

11.— Special Elections.

Where a special constitutional amendment provides for submission of question of additional indebtedness to the voters of the county in a special election held in such a manner as may be provided by law, the holding of such election at a time other than as permitted by the Constitution does not invalidate the election. Walsh v. Asher, 163 Ky. 377 , 173 S.W. 808, 1915 Ky. LEXIS 231 ( Ky. 1915 ).

A special election to vote upon a road bond issue may be held on the general election day. Houston v. Boltz, 169 Ky. 640 , 185 S.W. 76, 1916 Ky. LEXIS 754 ( Ky. 1916 ).

Provision of this section prohibiting election of local officers in same year in which members of congress are elected, and provision of Const., § 167 requiring election of city officers in odd years, do not apply to special elections to fill vacancies prescribed by Const., § 152. Smith v. Ruth, 308 Ky. 60 , 212 S.W.2d 532, 1948 Ky. LEXIS 847 ( Ky. 1948 ).

12.Employee Voting.

Law forbidding employers to deduct from wages of employees for their absence during four (4) hour period allowed for voting under this section, was unconstitutional as exercise of arbitrary power in violation of Const., § 2, and as depriving person of property without due process of law in violation of federal Constitution. Illinois C. R. Co. v. Commonwealth, 305 Ky. 632 , 204 S.W.2d 973, 1947 Ky. LEXIS 869 ( Ky. 1947 ), cert. denied, 334 U.S. 843, 68 S. Ct. 1511, 92 L. Ed. 1767, 1948 U.S. LEXIS 2004 (U.S. 1948).

13.Number of Elections.

Constitutional prohibition against more than one election a year does not apply to filling vacancies in the general assembly, and should be read in connection with Const., § 152 which allows elections in such a manner as may be provided by law. Furste v. Gray, 240 Ky. 604 , 42 S.W.2d 889, 1931 Ky. LEXIS 458 ( Ky. 1931 ).

Following an election at which condemnation of electric facilities was rejected, a city could resubmit such referendum to the voters within one year after the previous election. Hatchett v. Glasgow, 340 S.W.2d 248, 1960 Ky. LEXIS 30 ( Ky. 1960 ).

The legislature determines the public policy as to elections subject to this section of the Constitution, which declares that not more than one election shall be held each year except special elections otherwise provided for by the Constitution. Hatchett v. Glasgow, 340 S.W.2d 248, 1960 Ky. LEXIS 30 ( Ky. 1960 ).

Opinions of Attorney General.

The provision of this section which prohibits the election of city, county, or state officers at an election in which members of congress are elected applies only to general elections and not to special elections to fill a vacancy required by Const., § 152. OAG 68-275 .

While the holding of an election by a governmental unit for the purpose of submitting to the voters thereof a public question (as under KRS 96.540 ) is in a sense a special election, when held, it must be on the day fixed by this section, and in accordance with KRS 125.005 (repealed), which is the latest legislative expression of the conduct of elections involving the submission of questions to the voters, and the voting should be conducted in the regular precincts by the use of voting machines. OAG 73-553 .

A fire protection district is not a “district” as contemplated by this section and KRS 125.005 (repealed). OAG 74-520 .

An election whereby a regional transit authority seeks the approval of the electorate for a mass transportation program can only be held at a regular November election, in view of the fact that the election does not come within any exception to the constitutional restrictions found in this section. OAG 76-190 .

A proposed increase in the county ad valorem tax rate to fund the general operating costs of the county hospital must be submitted to the voters at a November general election. OAG 76-697 .

The term “regular election” referred to in subsection (1) of KRS 108.100 refers to the November election in view of this section of the Constitution. OAG 78-289 .

The election authorized pursuant to subsection (3) of KRS 244.295 , concerning the question of allowing limited Sunday sales of distilled spirits and wine by the drink beginning at 1:00 p.m., can be held on a general election day. OAG 82-226 .

Since the phrase “next regular election” appearing in KRS 108.100(1) refers to the November election in this section, where voters at a November, 1982 election voted to abolish ambulance district and tax to support it that was established in June, 1982, such question could not again be placed on the ballot earlier than the regular election of November, 1983. OAG 82-636 .

Under KRS 83A.120(6) and this section, a referendum concerning staggered terms cannot be presented to the voters at a May primary election but could only be presented at a general election in November. OAG 83-24 .

Any referendum on annexation of territory by a city, required to be held under the provisions of KRS 81A.420(2), can only be presented to the voters at a regular November election. OAG 83-149 .

Legislation providing for “no-excuse absentee voting,” or early voting, in order to comply with federal law, a final court decision binding the Commonwealth, or rights recognized in the Bill of Rights of the Kentucky Constitution would not require an amendment to the Kentucky Constitution. OAG 07-05 .

Research References and Practice Aids

Cross-References.

Employees to be given time to vote, KRS 118.035 .

Hours of election, KRS 118.035 .

Qualifications of election officers, KRS 117.035 .

Time of election of Constitutional state officers, Const., § 95.

Time of holding regular elections, KRS 118.025 .

§ 149. Privilege from arrest during voting.

Voters, in all cases except treason, felony, breach of surety of the peace, or violation of the election laws, shall be privileged from arrest during their attendance at elections, and while they are going to and returning therefrom.

Opinions of Attorney General.

A person can be arrested for drunkenness on election day when the offense occurs at a time when the party is not at the polls or going from or to the polls for the purpose of voting. OAG 61-468 .

Research References and Practice Aids

Cross-References.

Voters exempt from arrest on civil process, KRS 454.020 .

§ 150. Disqualification from office for using money or property to secure or influence election — Corporation not to use money or other thing of value to influence election — Exclusion from office for conviction of felony or high misdemeanor — Laws to regulate elections.

Every person shall be disqualified from holding any office of trust or profit for the term for which he shall have been elected who shall be convicted of having given, or consented to the giving, offer or promise of any money or other thing of value, to procure his election, or to influence the vote of any voter at such election; and if any corporation shall, directly or indirectly, offer, promise or give, or shall authorize, directly or indirectly, any person to offer, promise or give any money or any thing of value to influence the result of any election in this State, or the vote of any voter authorized to vote therein, or who shall afterward reimburse or compensate, in any manner whatever, any person who shall have offered, promised or given any money or other thing of value to influence the result of any election or the vote of any such voter, such corporation, if organized under the laws of this Commonwealth, shall, on conviction thereof, forfeit its charter and all rights, privileges and immunities thereunder; and if chartered by another State and doing business in this State, whether by license, or upon mere sufferance, such corporation, upon conviction of either of the offenses aforesaid, shall forfeit all right to carry on any business in this State; and it shall be the duty of the General Assembly to provide for the enforcement of the provisions of this section. All persons shall be excluded from office who have been, or shall hereafter be, convicted of a felony, or of such high misdemeanor as may be prescribed by law, but such disability may be removed by pardon of the Governor. The privilege of free suffrage shall be supported by laws regulating elections, and prohibiting, under adequate penalties, all undue influence thereon, from power, bribery, tumult or other improper practices.

NOTES TO DECISIONS

Cross-References.

Cross-References.

See note to Const., § 151 under heading “1. In General”: Mounts v. Hatfield, 250 Ky. 727 , 63 S.W.2d 928, 1933 Ky. LEXIS 766 ( Ky. 1933 ).

1.Purpose.

The purpose of both this section and KRS 121.025 appears to be for the prevention of the exertion of unwarranted and perhaps unwholesome influence over political affairs by corporations formed for profit. Kentucky Registry of Election Finance v. Louisville Bar Asso., 579 S.W.2d 622, 1978 Ky. App. LEXIS 673 (Ky. Ct. App. 1978).

2.Construction.

Since Const., § 145 and this section are self-executing, no statute can dispense with their requirements or provisions. Arnett v. Stumbo, 287 Ky. 433 , 153 S.W.2d 889, 1941 Ky. LEXIS 549 ( Ky. 1941 ).

KRS 121.025 and 121.990 and this section are penal in nature and must be narrowly construed so as not to infringe on first amendment rights. Kentucky Registry of Election Finance v. Louisville Bar Asso., 579 S.W.2d 622, 1978 Ky. App. LEXIS 673 (Ky. Ct. App. 1978).

3.Application.

The proposed application of KRS 121.025 and this section prohibiting the expression of thought through the Louisville Bar Association’s paid advertisement showing the results of a poll of its members as to the qualification of candidates for the judiciary would be incompatible with the freedoms secured by the first amendment of both the Kentucky and the United States Constitutions. Kentucky Registry of Election Finance v. Louisville Bar Asso., 579 S.W.2d 622, 1978 Ky. App. LEXIS 673 (Ky. Ct. App. 1978).

The section does not apply to prevent the removal of members of a county board of education. Hale v. Combs, 30 S.W.3d 146, 2000 Ky. LEXIS 121 ( Ky. 2000 ).

4.Disqualification.

It is incompetent for the Legislature to prescribe additional disqualifications not recognized by the Constitution. Broughton v. Pursifull, 245 Ky. 137 , 53 S.W.2d 200, 1932 Ky. LEXIS 542 ( Ky. 1932 ).

Newly elected commissioners who were adjudged disqualified in civil action, due to violations of corrupt practices act, and who were then appointed by Governor to fill their own vacancies, were not barred by this section from holding such appointive offices, since disqualification under this section required conviction in criminal proceeding. Petrey v. Hazard, 346 S.W.2d 534, 1961 Ky. LEXIS 314 ( Ky. 1961 ).

5.Exclusion for Conviction.

Before a forfeiture of charter can be effected by quo warranto for violation of the corrupt practice act, a judgment must first be obtained in a criminal action. Commonwealth v. Kentucky Jockey Club, 238 Ky. 739 , 38 S.W.2d 987, 1931 Ky. LEXIS 321 ( Ky. 1931 ).

Where officer who has been convicted of felony appeals to Court of Appeals, the judgment is suspended, and the office will not become vacant unless and until the judgment is affirmed. Pineville v. Collett, 294 Ky. 853 , 172 S.W.2d 640, 1943 Ky. LEXIS 543 ( Ky. 1943 ).

County auditor is an officer and not an employee of county, and thereby comes within provision of this section barring unpardoned felon from office. Howard v. Saylor, 305 Ky. 504 , 204 S.W.2d 815, 1947 Ky. LEXIS 852 ( Ky. 1947 ).

6.Regulation of Elections.

The Legislature has the power to prescribe rules and regulations covering elections. Burns v. Lackey, 171 Ky. 21 , 186 S.W. 909, 1916 Ky. LEXIS 297 ( Ky. 1916 ).

7.Restoration of Rights.

The defendant was not entitled to have an habitual criminal charge dismissed on the grounds that he had been restored to his civil rights by executive order. Stewart v. Commonwealth, 479 S.W.2d 23, 1972 Ky. LEXIS 289 ( Ky. 1972 ).

The right to hold office was included in Governor’s pardon restoring the felon’s civil rights. United States v. Barrett, 504 F.2d 629, 1974 U.S. App. LEXIS 6444 (6th Cir. Ky. 1974 ), aff'd, 423 U.S. 212, 96 S. Ct. 498, 46 L. Ed. 2d 450, 1976 U.S. LEXIS 37 (U.S. 1976).

The Legislature has spoken and directed that people (black, white, etc.) who are convicted of felonies involving moral turpitude may not be appointed peace officers. While a Governor’s pardon under Const., § 77 would at least open the door for former felon’s consideration by the Corrections Cabinet, his restoration of rights under Const., § 145 and this section does not. Leonard v. Corrections Cabinet, 828 S.W.2d 668, 1992 Ky. App. LEXIS 75 (Ky. Ct. App. 1992).

Trial court properly found that the juror was disqualified from serving on a criminal jury under the pre-2002 version of KRS 29A.080 as a convicted felon, despite the fact that the Governor had restored the juror’s right to vote and to hold public office; the Governor expressly restored the juror’s rights under Ky. Const., §§ 145, 150, both of which dealt with restoration of the right to vote and to hold office, and the Governor had the power under Ky. Const., § 77 to issue the partial pardon excluding the right to serve on a jury. Anderson v. Commonwealth, 107 S.W.3d 193, 2003 Ky. LEXIS 139 ( Ky. 2003 ).

Where defendant’s civil rights were restored by the Governor in a partial pardon pursuant to Ky. Const. §§ 145, 150 after defendant successfully completed probation on a felony offense, the restoration of rights did not restore defendant’s right to possess a firearm, as the pardon was not a full pardon under Ky. Const. § 77; thus, defendant was properly convicted of two (2) counts of possession of a firearm by a convicted felon in violation of KRS 527.040 . Cheatham v. Commonwealth, 131 S.W.3d 349, 2004 Ky. App. LEXIS 48 (Ky. Ct. App. 2004).

Cited:

Commonwealth v. Rowe, 112 Ky. 482 , 23 Ky. L. Rptr. 1718 , 66 S.W. 29, 1902 Ky. LEXIS 183 ( Ky. 1902 ); Arnett v. Stumbo, 287 Ky. 433 , 153 S.W.2d 889, 1941 Ky. LEXIS 549 , 135 A.L.R. 1488 ( Ky. 1941 ); Commonwealth ex rel. Funk v. Huntsman, 237 S.W.2d 876, 1951 Ky. LEXIS 793 ( Ky. 1951 ); Woods v. Mills, 503 S.W.2d 706, 1974 Ky. LEXIS 8 33 ( Ky. 1974 ); Martin v. Commonwealth, 96 S.W.3d 38, 2003 Ky. LEXIS 8 ( Ky. 2003 ).

Opinions of Attorney General.

A candidate’s promising the voters that if elected he would give one-half (1/2) of his salary to the county road fund or turn back one-half (1/2) to the county treasury would constitute a violation of the corrupt practices act and upon conviction would cause a forfeiture of office. OAG 61-165 .

A person convicted of a felony in federal court is ineligible to occupy the office of county judge unless his citizenship rights have been restored to him by the Governor of Kentucky. OAG 61-549 .

Where a person was convicted only of a misdemeanor and not a felony, he did not forfeit his right to continue to serve as a member of the local board of education. OAG 64-118 .

A city must retain an officer, who was charged with assault and battery and flourishing a deadly weapon and who is awaiting an indictment by the grand jury, unless action is taken under KRS 95.450 . OAG 67-468 .

A county judge, who has been convicted and sentenced in a federal court on various charges of fraud, may legally continue in office pending his appeal to the Circuit Court. OAG 68-166 .

A person who was convicted of auto theft but subsequently pardoned by the Governor is not rendered ineligible for the position of deputy sheriff by KRS 61.300(3). While larceny is a form of moral turpitude, § 150 of the Constitution, which provides that pardon by the Governor removes the disability of exclusion from office, controls. OAG 70-99 .

Where an elected county official had been convicted of felonies in both 1938 and 1941 and a restoration of civil rights was issued for only the 1941 federal conviction, the officer was not qualified to serve. OAG 71-95 .

A person still serving a sentence for a conviction in federal court cannot have his civil rights restored under this section by the Governor until he completes the sentence or is pardoned by the President. OAG 71-109 .

The word “pardon” in this section refers to the restoration of a person’s civil rights after sentence has been served and not to the commutation of sentences. OAG 71-109 .

The fact that an applicant may have simply been charged with a criminal offense, but not convicted, would in no way disqualify him from serving as a police officer provided he possesses the statutory qualifications prescribed in KRS 90.330 . OAG 71-498 .

This section would prevent a convicted felon who has served his sentence from being elected to public office without having had his civil rights restored. OAG 72-421 .

When a city marshal who has previously been convicted of a felony and has not been pardoned by the Governor so that such disability is removed pursuant to this section is appointed in a city of the sixth class, in accordance with KRS 88.030 (repealed), such appointment is illegal and void but such an officer is a de facto officer until he is properly removed from office and any arrests made by such a de facto officer would not be invalidated, nor would there be any liability for false arrest suits created against the municipality. OAG 73-205 .

A man convicted of conspiracy in the state of Michigan would be ineligible to run for and hold the office of sheriff if such conviction constituted a felony or high misdemeanor in the state of Michigan, but such disability may be removed by an executive order of the Governor of Kentucky pursuant to the terms of this section. OAG 73-227 .

A person on parole or probation for conviction of a felony is not eligible to run for or hold public office in Kentucky under the terms of this section until he has served out his sentence or is pardoned by the Governor and his civil rights are thereafter restored pursuant to § 77 of the Constitution. OAG 73-294 .

It is only where a person has been convicted of a felony or high misdemeanor that he is disqualified from holding office. OAG 74-800 .

Although a person convicted of a felony is disqualified from holding office, removal of a county sheriff for disqualification could not be sought until the sheriff’s post-conviction procedures relating to appeal had been exhausted or abandoned, and during such interim period the sheriff could continue the pursuits of his office. OAG 76-232 .

A person who has been convicted of a felony would be disqualified from serving as a deputy sheriff or holding any other public office unless, and until such time as, the Governor issues a pardon. OAG 76-327 .

Any public officer, whether he is appointed or elected, is disqualified from serving as a public officer upon conviction of a felony under the terms of this section of the Constitution, and KRS 61.040 provides that the office of the officer convicted of a felony shall be vacated by such conviction, but until the public officer is convicted and his possible conviction procedures relating to appeal have been exhausted or abandoned, the office does not become vacant. OAG 78-838 .

A business corporation would not be in violation of this section were it to invite all candidates for state and local office to appear at the corporation’s premises to meet and address its employees as a part of an educational program and to encourage participation in a coming election, provided all candidates were treated alike as far as being given the opportunity to appear before the election and provided the company did not attempt to influence its employees to support one candidate or party over another. OAG 80-522 .

Where a county jailer was convicted of the criminal offense of theft by failure to make required disposition of funds under KRS 514.070 and sentenced to three (3) months in jail and a fine of $100, he could not be removed from office or rendered ineligible to hold the office under this section, since that provision of the Constitution provides for exclusion from office of persons convicted of felonies or high misdemeanors, and the Kentucky Legislature has not defined the term “high misdemeanor” so that the term is meaningless and inoperative; thus, under the facts the jailer was guilty of a misdemeanor and not subject to removal or ineligibility under this section. OAG 81-85 .

Under the literal wording of KRS 415.040 , the responsibility for removing a convicted felon from a county office is the Commonwealth’s Attorney of the county; the removal becomes necessary where such officer has received no pardon in terms of this section. Thus, if a former felon is elected to public office without having his civil rights restored, such person may be removed as a usurper pursuant to KRS 415.040 ; since the jailer is a county office, the burden of instituting an ouster suit squarely falls on the Commonwealth’s Attorney. OAG 83-393 .

Research References and Practice Aids

Cross-References.

Bribery in elections, KRS 61.040 , 119.205 .

Corrupt practices, KRS ch. 121.

Election offenses generally, KRS ch. 119.

Exclusion from office for conviction of felony or high misdemeanor, KRS 61.040 .

Kentucky Bench & Bar.

Dady & Robinson, Citizens United: Death Knell for Campaign Reform? Vol. 76, No. 4, July 2012, Ky. Bench & Bar 20.

Kentucky Law Journal.

Note, New Approaches to the Civil Disabilities of Ex-Offenders, 64 Ky. L.J. 382 (1975-76).

Kentucky Law Survey, Wallingford, Professional Responsibility, 67 Ky. L.J. 757 (1978-1979).

Notes, Campaign Finance Reform in Kentucky: The Race For Governor, 85 Ky. L.J. 723 (1996-97).

ALR

Elections: Effect of conviction under federal law, or law of another state or country, on right to vote or hold public office. 39 A.L.R.3d 303.

§ 151. Person guilty of fraud, intimidation, bribery, or corrupt practice to be deprived of office by suitable statutory means.

The General Assembly shall provide suitable means for depriving of office any person who, to procure his nomination or election, has, in his canvass or election, been guilty of any unlawful use of money, or other thing of value, or has been guilty of fraud, intimidation, bribery, or any other corrupt practice, and he shall be held responsible for acts done by others with his authority, or ratified by him.

NOTES TO DECISIONS

1.In General.

Where the successful candidate has been guilty of violating the corrupt practice act by bribing voters, he is not entitled to the office. Mounts v. Hatfield, 250 Ky. 727 , 63 S.W.2d 928, 1933 Ky. LEXIS 766 ( Ky. 1933 ). See Burke v. Tackett, 313 Ky. 583 , 233 S.W.2d 115, 1950 Ky. LEXIS 938 ( Ky. 1950 ).

The section does not apply to prevent the removal of members of a county board of education. Hale v. Combs, 30 S.W.3d 146, 2000 Ky. LEXIS 121 ( Ky. 2000 ).

2.Corrupt Practice Act.

The provisions of the corrupt practice act, authorizing the court to declare the nomination or election of an officer void when the officer has violated the act, are constitutional. Creech v. Fields, 276 Ky. 359 , 124 S.W.2d 503, 1939 Ky. LEXIS 537 ( Ky. 1939 ).

KRS 122.020 to 122.060 (repealed) although it permits candidates only to contest a primary election, sufficiently provides a suitable means of depriving of office persons guilty of corrupt practices. Davis v. Stahl, 287 Ky. 629 , 154 S.W.2d 736, 1941 Ky. LEXIS 607 ( Ky. 1941 ).

3.Disqualification.
4.— Election of Losing Candidate.

In an election where a candidate is deprived of his office for using fraudulent or corrupt practices, a statute declaring the election of a person who receives less than a majority or plurality of the votes cast at the election is unconstitutional. McKinney v. Barker, 180 Ky. 526 , 203 S.W. 303, 1918 Ky. LEXIS 102 ( Ky. 1918 ) ( Ky. 1918 ).

The provisions of the corrupt practice act, authorizing the court to award the election to the second highest candidate when the highest candidate has violated the act, are constitutional as to primary elections, but unconstitutional as to general elections. Creech v. Fields, 276 Ky. 359 , 124 S.W.2d 503, 1939 Ky. LEXIS 537 ( Ky. 1939 ).

5.— Nomination of Losing Candidate.

A statute declaring the nomination of a person who receives less than a majority or plurality of the votes cast at a primary election where the successful nominee was shown to have used fraudulent or corrupt practices, is constitutional. Charles v. Flanary, 192 Ky. 511 , 233 S.W. 904, 1921 Ky. LEXIS 88 ( Ky. 1921 ).

6.Election Contests.

An election contest is a purely statutory proceeding, and the Legislature may prescribe by whom and under what conditions a contest may be maintained. Payne v. Blanton, 312 Ky. 636 , 229 S.W.2d 438, 1950 Ky. LEXIS 726 ( Ky. 1950 ).

Pursuant to this section, the Legislature may provide for dismissal of contest action when it is shown that contestant has been guilty of corrupt practices. Payne v. Blanton, 312 Ky. 636 , 229 S.W.2d 438, 1950 Ky. LEXIS 726 ( Ky. 1950 ).

This section does not deprive the general assembly of the power to deprive a guilty candidate of the right to challenge his successful opponent’s election on the same grounds. Payne v. Blanton, 312 Ky. 636 , 229 S.W.2d 438, 1950 Ky. LEXIS 726 ( Ky. 1950 ).

Statute may constitutionally bar an election contest when it is shown that the candidate bringing the action is himself guilty of corrupt practices. Britton v. Garland, 335 S.W.2d 329, 1960 Ky. LEXIS 253 ( Ky. 1960 ).

7.Void Elections.

Where, from an inspection of the entire record, the court cannot determine that any candidate was fairly elected because of fraud, intimidation, bribery, or violence in the conduct of the election, the court has the power and duty to adjudge that there was no election. Taylor v. Neutzel, 220 Ky. 510 , 295 S.W. 873, 1927 Ky. LEXIS 575 ( Ky. 1927 ).

Cited:

Commonwealth v. Headley, 111 Ky. 815 , 23 Ky. L. Rptr. 1104 , 64 S.W. 744, 1901 Ky. LEXIS 255 ( Ky. 1901 ); Ridings v. Jones, 213 Ky. 810 , 281 S.W. 999, 1926 Ky. LEXIS 626 ( Ky. 1926 ); Hart v. Rose, 255 Ky. 576 , 75 S.W.2d 43, 1934 Ky. LEXIS 297 ( Ky. 1934 ); Commonwealth ex rel. Funk v. Huntsman, 237 S.W.2d 876, 1951 Ky. LEXIS 793 ( Ky. 1951 ).

Decisions Under Prior Constitution

1.Exclusion from Office.

The Legislature had the power to fix the penalty of exclusion from office and from suffrage for the offense of “setting up, exhibiting and keeping a faro bank.” Vowells v. Commonwealth, 84 Ky. 52 , 8 Ky. L. Rptr. 74 , 1886 Ky. LEXIS 34 (Ky. Ct. App. 1886).

§ 152. Vacancies — When filled by appointment, when by election — Who to fill.

Except as otherwise provided in this Constitution, vacancies in all elective offices shall be filled by election or appointment, as follows: If the unexpired term will end at the next succeeding annual election at which either city, town, county, district or State officers are to be elected, the office shall be filled by appointment for the remainder of the term. If the unexpired term will not end at the next succeeding annual election at which either city, town, county, district or State officers are to be elected, and if three months intervene before said succeeding annual election at which either city, town, county, district or State officers are to be elected, the office shall be filled by appointment until said election, and then said vacancy shall be filled by election for the remainder of the term. If three months do not intervene between the happening of said vacancy and the next succeeding election at which city, town, county, district or State officers are to be elected, the office shall be filled by appointment until the second succeeding annual election at which city, town, county, district or State officers are to be elected; and then, if any part of the term remains unexpired, the office shall be filled by election until the regular time for the election of officers to fill said offices. Vacancies in all offices for the State at large, or for districts larger than a county, shall be filled by appointment of the Governor; all other appointments shall be made as may be prescribed by law. No person shall ever be appointed a member of the General Assembly, but vacancies therein may be filled at a special election, in such manner as may be provided by law.

NOTES TO DECISIONS

1.In General.

The Legislature has the power to prescribe how a vacancy in the office of county judge shall be filled. Frost v. Johnston, 262 Ky. 592 , 90 S.W.2d 1045, 1936 Ky. LEXIS 82 ( Ky. 1936 ).

The Legislature has the power to prescribe by general law how county or district offices smaller than a county may be filled. Barton v. Brafford, 264 Ky. 480 , 95 S.W.2d 6, 1936 Ky. LEXIS 354 ( Ky. 1936 ), overruled, Gearhart v. Kentucky State Board of Education, 355 S.W.2d 667, 1962 Ky. LEXIS 76 ( Ky. 1962 ).

2.Construction.

This section is mandatory, and has to be used in construing Const., § 160. Scott v. Singleton, 171 Ky. 117 , 188 S.W. 302, 1916 Ky. LEXIS 306 ( Ky. 1916 ).

3.Application.

This section applies only to vacancies. Campbell v. Dotson, 111 Ky. 125 , 63 S.W. 480, 23 Ky. L. Rptr. 510 , 1901 Ky. LEXIS 193 ( Ky. 1901 ).

4.Appointive Offices.

This section does not affect the question of filling vacancies in appointive offices. Poyntz v. Shackelford, 107 Ky. 546 , 54 S.W. 855, 21 Ky. L. Rptr. 1323 , 1900 Ky. LEXIS 132 ( Ky. 1 900), overruled, St. Bernard Coal Co. v. Pittsburg Coal Co., 112 Ky. 418 , 64 S.W. 288, 23 Ky. L. Rptr. 52 , 1901 Ky. LEXIS 282 ( Ky. 1 901 ), overruled, Pratt v. Breckinridge, 112 Ky. 1, 65 S.W. 136, 23 Ky. L. Rptr. 1356 , 1901 Ky. LEXIS 286 ( Ky. 1901 ); Pratt v. Breckinridge, 112 Ky. 1, 65 S.W. 136, 23 Ky. L. Rptr. 1356 , 1901 Ky. LEXIS 286 (Ky. 1901).

This section embraces only vacancies in elective offices, whether constitutionally or statutorily created, and has no application to the filling of vacancies in appointive offices. Rouse v. Johnson, 234 Ky. 473 , 28 S.W.2d 745, 1930 Ky. LEXIS 220 ( Ky. 1930 ).

5.Appointment.

Where a vacancy was created in the office of county coroner more than three (3) months before the next succeeding annual election, a new coroner was properly appointed only until his successor was elected at that election. Berry v. McCullough, 94 Ky. 247 , 22 S.W. 78, 15 Ky. L. Rptr. 117 , 1893 Ky. LEXIS 38 ( Ky. 1893 ).

Where an elected city officer dies, a temporary appointment can be made only until the next time when a legal election of a successor can be held. Shelley v. McCullouch, 97 Ky. 164 , 30 S.W. 193, 17 Ky. L. Rptr. 53 , 1895 Ky. LEXIS 162 ( Ky. 1895 ).

When three (3) months intervene between the time a vacancy occurs in an office and the next succeeding annual election, the appointment made to fill the vacancy properly lasts only until that election. Pence v. Frankfort, 101 Ky. 534 , 41 S.W. 1011, 19 Ky. L. Rptr. 721 , 1897 Ky. LEXIS 224 ( Ky. 1897 ).

When the entire city board of trustees is vacated, the county judge is empowered to fill said vacancies by appointment, but only if the county court is in session. Chapman v. Horton, 59 S.W. 743, 22 Ky. L. Rptr. 1022 (1900).

Where the statute so directs, the Governor, and not the county judge, has the power to fill a vacancy in the office of justice of the peace. Daugherty v. Arnold, 110 Ky. 1 , 60 S.W. 865, 22 Ky. L. Rptr. 1504 , 1901 Ky. LEXIS 54 ( Ky. 1 901 ). See Olmstead v. Augustus, 112 Ky. 365 , 65 S.W. 817, 23 Ky. L. Rptr. 1772 , 1901 Ky. LEXIS 318 (Ky. Ct. App. 1901).

This section and Const., § 160 authorized legislature to enact law requiring that town board of trustees should by ordinance provide who would act in place of absent police judge. Grayson v. Bagby, 115 Ky. 651 , 74 S.W. 659, 25 Ky. L. Rptr. 44 , 1903 Ky. LEXIS 135 ( Ky. 1903 ).

Where so provided by statute, the city council has authority to fill vacancy in office of police judge. Traynor v. Beckham, 116 Ky. 13 , 74 S.W. 1105, 1903 Ky. LEXIS 167 (Ky. Ct. App. 1903).

An appointment cannot be made to fill a vacancy until a vacancy actually occurs. Shepherd v. Gambill, 75 S.W. 223, 25 Ky. L. Rptr. 333 (1903).

The provision that “all other appointments shall be made as may be prescribed by law” controls the appointment of school board members to fill vacancies in a school district that is not larger than the county. Glass v. Hopkinsville, 225 Ky. 428 , 9 S.W.2d 117, 1928 Ky. LEXIS 798 ( Ky. 1928 ).

Resignations of city officials are not effective until accepted by the city council, so that no vacancies exist and no appointments can be made until that time. Tabor v. Webb, 227 Ky. 611 , 13 S.W.2d 758, 1929 Ky. LEXIS 919 ( Ky. 1929 ).

6.Election.
7.— Issuance of Writ.

Issuance of a writ of election is a condition precedent to holding a valid election to fill a vacancy, and any steps theretofore taken by primary, convention or party authority, looking to filling of the vacancy, are absolutely void. Furste v. Gray, 240 Ky. 604 , 42 S.W.2d 889, 1931 Ky. LEXIS 458 ( Ky. 1931 ).

8.— General.

Vacancies in city offices may be filled at a general election of either state, county, town or district officers. Mullins v. Jones, 290 Ky. 796 , 162 S.W.2d 761, 1942 Ky. LEXIS 488 ( Ky. 1942 ).

9.— Special.

A special election to fill a vacancy in a city office may be held in a year in which congressmen are elected. Smith v. Doyle, 76 S.W. 519, 25 Ky. L. Rptr. 958 (1903).

Provision of Const., § 148 prohibiting election of local officers in same year in which members of congress are elected, and provision of Const., § 167 requiring election of city officers in odd years, do not apply to special elections to fill vacancies prescribed by this section. Smith v. Ruth, 308 Ky. 60 , 212 S.W.2d 532, 1948 Ky. LEXIS 847 ( Ky. 1948 ).

10.— Time.

The time when the election to fill a vacancy shall be held is fixed by this section, and cannot be prescribed by the Legislature. Todd v. Johnson, 99 Ky. 548 , 36 S.W. 987, 18 Ky. L. Rptr. 354 , 1896 Ky. LEXIS 121 ( Ky. 1896 ).

11.— Late.

Even though election to fill vacancy in office that had been temporarily filled by appointment of city council should have been held in November, 1950 but due to an oversight was not held until November, 1951, the 1951 election was authorized. Cawood v. Hensley, 247 S.W.2d 27, 1952 Ky. LEXIS 661 ( Ky. 1952 ).

12.— Territory.

The provision of this section for filling vacancies at the next succeeding annual election at which either city, town, county, district, or state officers are to be elected, places a limitation not only as to time but also as to territory, and the regular election must be one in territory of the same boundary, or contain the entire district or unit of government to which the office being filled belongs. Brumleve v. Ruth, 302 Ky. 813 , 195 S.W.2d 777, 1946 Ky. LEXIS 948 , 1946 Ky. LEXIS 949 ( Ky. 1946 ). See White v. Hubbard, 302 Ky. 820 , 195 S.W.2d 781, 1946 Ky. LEXIS 739 ( Ky. 1946 ).

13.— County.

An election under this section, to fill the unexpired term of an officer elected by the voters of a single county, could not be held in the November 1946 election, where the only officer to be elected at that time, representing a territory coextensive with the county, was a representative in congress, who was not a district or state officer within the meaning of this section. Brumleve v. Ruth, 302 Ky. 813 , 195 S.W.2d 777, 1946 Ky. LEXIS 948 , 1946 Ky. LEXIS 949 ( Ky. 1946 ). See White v. Hubbard, 302 Ky. 820 , 195 S.W.2d 781, 1946 Ky. LEXIS 739 ( Ky. 1946 ).

14.— School Board.

Election for school board members, in scattered districts and parts of districts within a county, was not an election for city, town, county, district, or state officers at which an election to fill a vacancy in an office elected by the entire county could be held. Brumleve v. Ruth, 302 Ky. 813 , 195 S.W.2d 777, 1946 Ky. LEXIS 948 , 1946 Ky. LEXIS 949 ( Ky. 1946 ). See White v. Hubbard, 302 Ky. 820 , 195 S.W.2d 781, 1946 Ky. LEXIS 739 ( Ky. 1946 ).

A person appointed under KRS 160.190 to fill a vacancy on the school board would be entitled to serve for the balance of the unexpired term. Shields v. Wilkins, 449 S.W.2d 220, 1969 Ky. LEXIS 33 ( Ky. 1969 ).

15.— Town Trustee.

Where a vacancy exists in the office of trustee of a town of the sixth class, it cannot be filled at a regular election at which members of congress only are elected. Provence v. Lucas, 107 S.W. 755, 32 Ky. L. Rptr. 1058 (1908).

16.— Sheriff.

A vacancy in the office of sheriff cannot be filled at an election at which only a representative in congress is to be voted for in the county in which the vacancy exists. Neeley v. McCollum, 107 Ky. 143 , 53 S.W. 37, 21 Ky. L. Rptr. 823 , 1899 Ky. LEXIS 150 ( Ky. 1899 ). See Commonwealth v. Bush, 131 Ky. 384 , 115 S.W. 249, 1909 Ky. LEXIS 37 ( Ky. 1909 ).

17.— Police Judge.

A vacancy in the office of police judge and town marshal cannot be filled at an election at which no officer other than a member of congress is to be elected. Ferguson v. Hackett, 74 S.W. 708, 25 Ky. L. Rptr. 170 , 1903 Ky. LEXIS 353 (Ky. Ct. App. 1903).

18.— Circuit Judge.

A vacancy in the office of Circuit Judge cannot be filled at an election at which no city, town, county, district, or state officer is to be elected in the judicial district in question. Eversole v. Brown, 53 S.W. 527, 21 Ky. L. Rptr. 925 , 1899 Ky. LEXIS 634 (Ky. Ct. App. 1899).

An election to fill unexpired term of Circuit Judge must be held at an election at which either city, town, county, district or state officers are to be elected, which includes members of county board of education. Ward v. Siler, 272 Ky. 424 , 114 S.W.2d 516, 1938 Ky. LEXIS 139 ( Ky. 1938 ).

This section clearly prohibited an election during the November, 1978, election to fill the vacancy in the unexpired term in the 13th Division of Jefferson Circuit Court because there was no regular election to be held in Jefferson County embracing the entire county at that time. Peers v. Davis, 573 S.W.2d 331, 1978 Ky. LEXIS 405 ( Ky. 1978 ).

19.— District Judge.

Where the appeal from the order of the Judicial Retirement and Removal Commission removing a district judge was affirmed by the Supreme Court on July 5, 1984, and a petition for rehearing was denied by the Supreme Court on August 1, 1984, whereupon the opinion affirming the Commission became final immediately, as of August 1, 1984, a vacancy occurred in the office of the district judge. Since this date was more than three (3) months before the next general election, the vacancy was required to be filled by election. Ashcraft v. Currier, 694 S.W.2d 707, 1985 Ky. LEXIS 243 ( Ky. 1985 ).

20.— Commonwealth’s Attorney.

Where there is a vacancy in the office of Commonwealth’s Attorney, it should be filled at the next regular election where there is to be elected a member of the Court of Appeals, in the district which covers all the counties in the judicial district, even though members of congress are also elected. Robinson v. McCandless, 123 Ky. 602 , 96 S.W. 877, 29 Ky. L. Rptr. 1088 , 1906 Ky. LEXIS 187 ( Ky. 1906 ).

21.State Officers.

As to the filling of a vacancy at election, where state officers are to be elected, presidential electors are “state officers” within the meaning of the provisions of this section and law providing for the filling of a vacancy in office of mayor, therefore, vacancy in office of mayor of Louisville could be filled at presidential election. Smith v. Ruth, 308 Ky. 60 , 212 S.W.2d 532, 1948 Ky. LEXIS 847 ( Ky. 1948 ).

22.Term.

An appointee has the right to hold his office until a successor is elected, but if that successor for any reason fails to qualify, a vacancy exists, and the appointee is not entitled to hold over for a second term. Terry v. Hargis, 74 S.W. 271, 24 Ky. L. Rptr. 2498 , 1903 Ky. LEXIS 474 (Ky. Ct. App. 1903).

A person appointed to fill a vacancy must relinquish his right to the office immediately upon the election and qualification of his successor. Jones v. Sizemore, 117 Ky. 810 , 79 S.W. 229, 25 Ky. L. Rptr. 1957 , 1904 Ky. LEXIS 248 ( Ky. 1904 ).

General Assembly had power under Const., § 160 to prescribe qualifications and fix manner of filling vacancies for municipal offices, but not to extend length of time of office holding beyond time fixed by this section. Scott v. Singleton, 171 Ky. 117 , 188 S.W. 302, 1916 Ky. LEXIS 306 ( Ky. 1916 ).

This section indicated, through its language, that “term” was to mean full term of four (4) years, as opposed to “part of a term.” Schardein v. Harrison, 230 Ky. 1 , 18 S.W.2d 316, 1929 Ky. LEXIS 5 ( Ky. 1 929 ), overruled, Little v. Bogie, 300 Ky. 668 , 190 S.W.2d 26, 1945 Ky. LEXIS 625 ( Ky. 1945 ).

The term of one appointed to fill a vacancy in the office of justice of the peace comes to an end at the next succeeding election at which the vacancy could have been filled. Anderson v. McBrayer, 230 Ky. 93 , 18 S.W.2d 859, 1929 Ky. LEXIS 7 ( Ky. 1929 ). But see Hester v. Robbins, 292 Ky. 12 , 165 S.W.2d 817, 1942 Ky. LEXIS 15 ( Ky. 1942 ).

One appointed to fill a vacancy in the sheriff’s office may exercise the rights and duties of that office until the next election at which a successor may be elected. McWilliams v. Madison County, 243 Ky. 498 , 49 S.W.2d 319, 1932 Ky. LEXIS 144 ( Ky. 1932 ).

Where vacancy in office of sheriff occurs at a time requiring an election to fill the remaining portion of the term at the next regular election, the appointee occupies the office to the end of the vacated term with rights and duties of one who was elected to a full term. Jordon v. Baker, 252 Ky. 40 , 66 S.W.2d 84, 1933 Ky. LEXIS 1007 ( Ky. 1933 ).

The term of a police judge is four (4) years. Mullins v. Jones, 290 Ky. 796 , 162 S.W.2d 761, 1942 Ky. LEXIS 488 ( Ky. 1942 ).

If the only annual election for officers occurring between the time of an appointment to fill a vacancy and the time at which the next regular term for the office will commence is the election at which the office is to be filled for the next four (4) year term, the appointee shall continue in office until the new term commences, and there shall be no election to fill the vacancy for the short period between the November election and the beginning of the new term in January. Hester v. Robbins, 292 Ky. 12 , 165 S.W.2d 817, 1942 Ky. LEXIS 15 ( Ky. 1942 ).

23.Three-month Period.

The three (3) month intervening period has no application in those cases in which the term or unexpired term ends with a succeeding annual election at which city, town, county, district or state officers may be elected under provisional laws. Mullins v. Jones, 290 Ky. 796 , 162 S.W.2d 761, 1942 Ky. LEXIS 488 ( Ky. 1942 ).

24.Vacancy.

On the creation of a new Circuit judgeship in a district, a vacancy exists, and the Legislature has no power to provide for an election to fill the office at an election at which there would be no election to elect other state, district, or county officers. Yates v. McDonald, 123 Ky. 596 , 96 S.W. 865, 29 Ky. L. Rptr. 1056 , 1906 Ky. LEXIS 186 ( Ky. 1906 ).

A vacancy in office exists in the contemplation of the law when it is not filled by one who is legally qualified to fill it, and who has a right to continue therein. Eagle v. Cox, 268 Ky. 58 , 103 S.W.2d 682, 1937 Ky. LEXIS 411 ( Ky. 1937 ). See Long v. Bowen, 94 Ky. 540 , 23 S.W. 343, 15 Ky. L. Rptr. 276 , 1893 Ky. LEXIS 92 (Ky. Ct. App. 1893).

A public official has the right to hold his office until the expiration of his term, at which time a vacancy occurs if no successor is appointed or elected. Warren v. Blatt, 280 Ky. 185 , 132 S.W.2d 933, 1939 Ky. LEXIS 95 ( Ky. 1939 ).

By statute, an officer of a fourth-class city who becomes financially interested in any contract with the city shall vacate his office, but he is not disqualified from being elected in the next annual election to serve for the remainder of the term. Commonwealth ex rel. Funk v. Huntsman, 237 S.W.2d 876, 1951 Ky. LEXIS 793 ( Ky. 1951 ).

An office is vacant when it is without an incumbent who is legally qualified to hold it or incumbent has no right to exercise its functions or receive emoluments thereof. Hancock v. Queenan, 294 S.W.2d 92, 1956 Ky. LEXIS 117 ( Ky. 1956 ).

Legislature has power to prescribe condition which, when voluntarily accepted by incumbent officer, would bring about event which has legal effect of vacating office. Hancock v. Queenan, 294 S.W.2d 92, 1956 Ky. LEXIS 117 ( Ky. 1956 ).

When Circuit Judge’s application for transfer or assignment to office of special judge was accepted by order of Court of Appeals, vacancy was ipso facto created by operation of law, for purpose of constitutional provision making appointment to vacated office effective only until next election, if it occurs more than three (3) months thereafter. Hancock v. Queenan, 294 S.W.2d 92, 1956 Ky. LEXIS 117 ( Ky. 1956 ).

Cited:

Belknap v. Louisville, 99 Ky. 474 , 36 S.W. 1118, 18 Ky. L. Rptr. 313 , 1896 Ky. LEXIS 122 ( Ky. 1 896 ); Pratt v. Breckinridge, 112 Ky. 1 , 65 S.W. 136, 23 Ky. L. Rptr. 1356 , 1901 Ky. LEXIS 286 ( Ky. 1901 ); Morgan v. Goode, 151 Ky. 284 , 152 S.W. 584, 1912 Ky. LEXIS 820 ( Ky. 1912 ); Murray v. Irvan, 170 Ky. 290 , 185 S.W. 859, 1916 Ky. LEXIS 43 ( Ky. 1916 ); Meagher v. Howell, 171 Ky. 238 , 188 S.W. 373, 1916 Ky. LEXIS 341 ( Ky. 1916 ); Jarvis v. Stanley, 176 Ky. 630 , 197 S.W. 183, 1917 Ky. LEXIS 94 ( Ky. 1917 ); Patton v. Jarvis, 185 Ky. 402 , 215 S.W. 71, 1919 Ky. LEXIS 310 ( Ky. 1919 ); Craft v. Baker, 194 Ky. 205 , 238 S.W. 389, 1922 Ky. LEXIS 126 ( Ky. 1922 ); Baker v. Combs, 194 Ky. 260 , 239 S.W. 56, 1922 Ky. LEXIS 165 ( Ky. 1922 ); Revis v. Daugherty, 215 Ky. 823 , 287 S.W. 28, 1926 Ky. LEXIS 818 ( Ky. 1926 ); Anderson v. McBrayer, 230 Ky. 93 , 18 S.W.2d 859, 1929 Ky. LEXIS 7 ( Ky. 1929 ); Douglas v. Pittman, 239 Ky. 548 , 39 S.W.2d 979, 1931 Ky. LEXIS 811 ( Ky. 1931 ); Ginsburg v. Giles, 254 Ky. 720 , 72 S.W.2d 438, 1934 Ky. LEXIS 146 ( Ky. 1934 ); Ball v. Cawood, 275 Ky. 108 , 120 S.W.2d 776, 1938 Ky. LEXIS 373 ( Ky. 1938 ); Culbertson v. Moore, 302 Ky. 768 , 196 S.W.2d 308, 1946 Ky. LEXIS 7 42 ( Ky. 1946 ); Commonwealth ex rel. Funk v. Huntsman, 237 S.W.2d 876, 1951 Ky. LEXIS 793 ( Ky. 1951 ); In re Appointment of Clerk of Court of Appeals, 297 S.W.2d 764, 1957 Ky. LEXIS 357 ( Ky. 1957 ).

Opinions of Attorney General.

Where a constable moved out of state and his whereabouts were unknown and his bond was cancelled, the county court could require him to renew his bond and upon his failure to do so declare the office vacant, whereupon an appointment could be made to the office until an election could be held. OAG 60-371 .

Where a vacancy occurs in the office of county tax commissioner by reason of the death of the incumbent, a successor appointed to fill out the term serves until a successor is elected in an election held under the terms of this section of the Constitution and qualifies for office. OAG 60-530 .

Where a vacancy occurs in the office of police judge and there is no other provision by law for filling the vacancy, the vacancy is to be filled by the Governor as provided in KRS 63.190 , subject to the provisions of this section of the Constitution. OAG 61-231 .

Where the appointment of a successor was made to fill the office of a county clerk who died after his election but before assuming office, he would serve until the next regular election embracing that county. OAG 61-1014 .

The city council in a city of the fifth class is authorized to fill vacancies in city offices including councilmen. If a person who was elected to the council in November was serving as a member of the council at the time of his death, the vacancy should be filled by the city council only until the expiration of his term on the first Monday in January following. At that time a vacancy would again be created and the incoming council would appoint someone to fill such vacancy until an election could be held under the terms of this section of the Constitution. On the other hand, if the newly elected but deceased member was not serving on the board, then no vacancy would exist until the first Monday in January at which time the new council would fill the vacancy until an election could be held as above indicated. OAG 61-1075 .

The terms of this section control the time for filling vacancies regardless of any statutes that may conflict herewith. OAG 62-381 .

Where a commissioner assumed the office of mayor pro tem, the other commissioners with the mayor pro tem voting as mayor, would appoint a new commissioner to serve out the term. OAG 62-1151 .

Where the mayor of the city died and a mayor pro tem was appointed, under this section of the Constitution the pro tem mayor would serve for the balance of the deceased mayor’s elected term. OAG 62-1151 .

Federal elections are not state elections within the meaning of this section of the Constitution. OAG 65-864 .

Where it was anticipated that the police judge would resign, the vacancy could be filled by an appointment of the city council but the appointment would only be valid until the next regular election that embraced the city. OAG 65-877 .

Where a county had gone under the commission form of government and no one ran for the office of constable, the county judge could appoint a constable to fill the constable vacancy existing in each magisterial district of the county, subject to the provisions of this section of the Kentucky Constitution. OAG 66-105 .

Where no election that qualified as a regular election was to be held in the fall, a person appointed to fill the vacant office of county tax commissioner could not be placed on the primary ballot to run for the unexpired term. OAG 66-230 .

Where a dormant city was never dissolved, all that was necessary to activate it was for the county court to fill by appointment, subject to this section of the Constitution, the board of trustees pursuant to KRS 88.230 (repealed). OAG 66-335 .

Where two (2) cities of the fourth class merge, only the tenure of the two (2) legislative bodies is preserved and all other elective offices are abolished, including police judge; the new offices created by the merger must be filled by the combined legislative bodies pursuant to KRS 86.240 (repealed) and the unexpired term of such offices must be filled at the next regular election pursuant to this section of the Constitution. OAG 67-149 and OAG 67-514 .

This section is applicable to determine the procedure for filling a vacancy in the office of county attorney created by the death of the incumbent. OAG 67-195 .

Where a city commissioner served as mayor pro tem following the death of the mayor in the last year of the mayor’s term of office the pro tem would continue to serve until the expiration of the regular term. OAG 67-296 .

Where a police judge was appointed it was necessary that he be nominated in a primary before he could run for the unexpired term. OAG 67-512 .

Officers of a city of the sixth class appointed by the Circuit Court should serve only until the November general election following appointment at which time, if no one is elected to these offices, the vacancies should be filled by the county court pursuant to KRS 88.230 (repealed) except the office of city judge which should be filled by the Governor pursuant to KRS 63.190 . OAG 68-3 .

Presidential electors are state officers and the election at which they are elected is a statewide election. OAG 68-199 and 68-371.

If a vacancy occurs in the office of city police judge less than 70 days before a primary election, there would be no primary election to determine a party candidate for the office, but major parties would be permitted to nominate a candidate under the provisions of KRS 119.030 (repealed). OAG 68-243 .

The prohibition against electing city, county or state officers at the same election in which members of congress are elected contained in Const., § 148 is applicable only to general elections and not to special elections held to fill a vacancy pursuant to this section. OAG 68-275 .

Where vacancies occurred in the offices of magistrate and constable more than three (3) months before the general election, they had to be filled at said election for the unexpired term. OAG 68-467 .

Officers elected to fill vacancies created by the merger of cities and the reclassification of the new city to that of a city of the fourth class, hold office for the unexpired term of the office to which they are elected. OAG 68-575 .

A vacancy in the office of jailer filled by appointment by the county judge must, under this section of the Constitution, be filled by an election held for this purpose at the next succeeding general election at which there is a regular election embracing the area in which the vacancy occurred. OAG 70-160 .

Congressional elections are federal elections and do not qualify as a regular state election within the meaning of this section. OAG 70-197 , 70-232, 70-247 and 70-266.

Persons appointed to the office of city commissioner to fill vacancies created when candidates for the office failed to qualify, hold the office until an election can be held pursuant to this section, and an election for school board members is a “regular election embracing the area in which the vacancies occur” if the school district for which the board members are to be elected embraces the entire city. OAG 70-228 .

This section requires a vacancy that occurs more than three (3) months prior to the November election to be filled at said election provided there is a regular election embracing the area in which the vacancy has occurred and if there is no such election the vacancy will be filled at the succeeding annual election. OAG 70-247 .

School board elections are not county wide and consequently do not qualify as regular elections embracing the entire county as required by this section. OAG 70-266 and 70-347.

The only possible regular election to fill a vacancy in a city office in November 1970 would be a school board election and that would qualify only if it embraced the entire city. OAG 70-606 .

A school district election would not qualify as a state election so that a person appointed to fill a vacancy in the office of police judge could run for the unexpired term where the school district boundaries did not embrace the entire city. OAG 70-631 .

The only possible regular election in November 1970 at which a vacancy in the office of police judge could be filled would be a school board election embracing the entire city. OAG 70-635 .

Where a vacancy occurs in the office of county attorney and the vacancy is not filled with reasonable haste, if there is one lawyer in the county who meets the constitutional requirements for the office, the county judge is subject to a mandamus action by a taxpayer in which the plaintiff could procure an order of the Circuit Court requiring the county court to fill the vacancy. OAG 70-650 .

Where there was a vacancy on the city council filled by appointment prior to a regular school board race, the vacancy on the council would have to be placed on the ballot even though no candidate filed for the unexpired term. OAG 70-732 .

Where a vacancy occurred in the office of magistrate but there was no regular election for public office embracing the area of the magisterial district, an attempted election to fill the office would be considered a void election under this section. OAG 70-767 .

This section requires all vacancies in elective office to be filled at the next regular election embracing the area where the vacancy occurs. If the incumbent resigns less than three (3) months before the general election, the appointee would then hold until the next succeeding general election. If the incumbent retires after the primary but more than three (3) months prior to the November election, the major political parties may nominate a candidate pursuant to local party rules for the November election and independent candidates may also file petitions under KRS 118.135 (repealed). OAG 71-9 .

Where a new judicial district was created and a Commonwealth Attorney appointed on January 1, 1971, but a regular election was to be held in 1971, there would have to be an election at the regular election to fill the vacancy in the office of Commonwealth Attorney. OAG 71-40 .

Where a magistrate died after the primary election in a year in which a statewide election was to be held, a replacement could be appointed to hold office only until the November election at which time a magistrate would be elected to take office immediately. OAG 71-257 .

Where the county attorney was nominated to run for the office of Commonwealth Attorney, no vacancy would occur in the office of county attorney until the incumbent resigned or assumed his duties as Commonwealth Attorney following his election. OAG 71-267 .

Where the county clerk’s wife had always worked in the county clerk’s office, she would not automatically become county clerk on his death but she could be appointed to fill the vacancy. OAG 71-375 .

Where a mayor resigned effective July 31 and the city council appointed one of its members to fill the vacancy, both the vacancy in the office of mayor and the vacancy on the city council would have to be filled at the November election. OAG 71-381 .

Those appointed to fill vacancies in the offices of Commonwealth’s Attorney and county attorney will hold office until the next general election, at which time there must be an election to fill the unexpired terms pursuant to this section. OAG 72-10 .

Where city police judge retired in February with one (1) year and eleven (11) months to go in his term, the vacancy must be filled at the next regular election embracing the area in which the vacancy occurs. OAG 72-83 .

Where the mayor and city police judge resigned their offices in January, 1972, the vacancies existing until December 31, 1973 must be filled at the next regular election, in November, 1972, embracing the area in which the vacancies occurred, even though the city council appointed individuals to fill the vacancies. OAG 72-87 .

Since the 1972 election of presidential electors constitutes a statewide election, a vacancy in the office of county jailer must be filled at that election, even though the next countywide election will not be until 1973. OAG 72-101 .

Where the city council voted to replace one of their number after he resigned his office in 1972, the remainder of the term must be filled at the statewide election in November, 1972, so that the newly appointed member must run for election at that time if he desires to complete the entire term of the resigned councilman. OAG 72-172 .

Where a vacancy in office had been filled by appointment by the Governor and the person so appointed did not seek to fill the unexpired term at the last November election, the vacancy must be filled at the next general election in the area in which the vacancy occurred. OAG 72-332 .

A vacancy which occurred on a city council on June 12 must be filled in the next November election as provided in this section. OAG 72-527 .

Where a vacancy occurred on August 7, that day must be excluded in computing the three (3) month period which would be on a calendar basis and, therefore, the period of time to be computed would begin on August 8 and end at midnight November 7, 1972 and three (3) months would not intervene between the time the vacancy occurred and the day of the election. OAG 72-625 .

A person appointed to fill a vacancy in office which had occurred on May 30, 1972 may be a candidate for the unexpired term of office in the November, 1972 election. OAG 72-626 .

A vacancy in the office of Circuit Court clerk occurring more than three (3) months before the general election would be filled at that time but a vacancy occurring less than 70 days before the primary should be made in a manner determined by the governing authority of the political party concerned, pursuant to KRS 119.030 (repealed). OAG 73-587 .

If a Circuit clerk retires effective January 1, 1974, the Circuit Judge of the district is empowered to fill the vacancy by appointment, but all vacancies in an elective office must be filled at the succeeding regular election which in this case would be the regular election for Circuit clerk in November, 1975. OAG 73-606 .

When there is no constable presently serving in a district and no one applied for nomination, the county court could appoint someone to fill the unexpired term ending this year, but since it is too late for any person to file for this office and have his name appear on the ballot, the only method whereby a candidate can be elected in November for the office would be by write-in votes. OAG 73-648 .

Where the office of sheriff was forfeited and vacated and a new sheriff was appointed to fill the office, the newly appointed sheriff fills the unexpired term and the person elected sheriff in the following November election would take office on the first Monday in January 1974 after that election. OAG 73-687 .

Where an incumbent mayor who had been reelected to another term beginning January 7, 1974, died on December 15, 1973, the present city council would be authorized to appoint someone as mayor to fill the vacancy for the remainder of this term and the newly elected council would then appoint someone to serve as mayor until the next regular election for the area in which the vacancy occurred which would be the 1975 general election. OAG 73-863 .

A police court judge appointed by a city council to fill a vacancy would serve until the next election for statewide offices and until the person elected at that time received his certificate of election and qualified. OAG 74-120 .

Where sixth-class city was reclassified to a fifth-class city, vacancies on the city council and the office of mayor were filled by appointment of the council until the next regular election for all of the county pursuant to this section. OAG 74-286 .

The election of city officers has to be held when there is a regular election for appellate court judge for the district in which the city is located. OAG 74-338 .

The election of members of the United States Senate and House of Representatives does not qualify as a state election under this section. OAG 74-338 .

If the mayor of a fourth-class city resigns three (3) months prior to a November school board election embracing the city, this requires the vacancy to be filled at the election, but if the resignation is less than three (3) months prior to such an election, the appointee would automatically serve until the second succeeding election. OAG 74-558 .

Federal elections for United States Senator and members of the House of Representatives do not qualify as regular elections under the terms of this section. OAG 74-655 .

If a vacancy occurs in the office of city council less than 70 days before the primary preceding a regular school board election embracing the entire city and is filled by appointment, the major parties may nominate to fill, or any independent may file a petition for, the vacancy at the coming election and the person elected would be entitled to take office immediately after receiving his certificate of election and executing the oath of office. OAG 74-655 .

Since the November, 1975 election embraced the entire state, an election at that time to fill the vacancy in the office of city prosecutor who had to be nominated at the special city primary was proper. OAG 75-245 .

Pursuant to KRS 88.180 (repealed), members of the boards of trustees in cities of the sixth class must be elected every two (2) years in the odd years although an election was held in 1974 at which the present officers were elected to fill vacancies for the remainder of the unexpired term in compliance with § 152, Const. OAG 75-473 .

Where mayor of city resigned in December 1975, the city council should appoint a successor who would serve until the 1976 general election (statewide election) whereupon a successor would be elected to serve out the unexpired term. OAG 75-660 .

Where a vacancy in the office of mayor existed more than three (3) months prior to the next regular statewide election and where at election time there would be a two (2) year unexpired term to fill, the vacancy had to be filled at the next regular election and if no candidate filed for the unexpired term then the office of mayor was legally required to be listed on the ballot to enable voters to write in a candidate. OAG 75-707 .

As presidential electors are considered state officers, election of such electors is a regular statewide election which means that any vacancies in elective offices should be filled at that time by election. OAG 75-672 and 76-24.

Neither a “write-in” candidate nor any other who did not receive sufficient votes to be elected to city council would be entitled to assume office if a duly elected member in the same election could not for any reason take office, since the proper procedure would be for the council to declare a vacancy which could then be filled pursuant to this section and KRS 86.240 (repealed). OAG 75-673 .

An appointee to a vacancy in an elected office serves until the next general election in the area served by that office. However, if the vacancy occurs less than three (3) months before the election, the appointee serves until the succeeding election. OAG 76-103 .

The election of presidential electors qualifies as a state election which embraces the area in which the vacancy in the office of sheriff has occurred. OAG 76-103 .

The election of presidential electors qualifies as a state election which embraces the area in which the vacancy in the office of magistrate has occurred. OAG 76-119 .

Where a vacancy occurs in a magisterial district and is temporarily filled by appointment by the Governor, the vacancy must be filled at the next regular election which embraces the area in which the vacancy occurred. OAG 76-179 .

Where vacancies caused by resignations in the office of mayor and the city council for a city of the fourth class were to be filled at the next annual election, the appointees to fill such vacancies would serve only until the election. OAG 76-179 .

After the resignation of a member of the common council of a third class city the council is authorized at the same meeting, if it so desires, to appoint, pursuant to motion, a successor and nominations to fill vacancies can be made by any member of the council. OAG 76-470 .

Where a vacancy occurred in a county office less than three (3) months prior to the coming November election and where the unexpired term ended at the next general election, the person appointed to fill the vacancy would serve out the remainder of the unexpired term and there would be no short term election. OAG 76-534 .

All vacancies in elective offices must be filled at the next regular election embracing the area in which the vacancy occurs. OAG 78-16 .

Where a redistricting created a new magisterial district and where the only elections to be held in the county where a federal election and school board elections which would not embrace the entire district, no election could be held to fill the unexpired term of magistrate until the statewide election in the following year. OAG 78-98 .

Federal elections do not qualify under this section as State elections. OAG 78-98 , 78-126.

Where a vacancy in the office of county attorney was filled by appointment and no elections were scheduled for November of that year which would embrace the entire county, the appointee would hold office until the statewide election in November of the following year. OAG 78-126 .

Where the county judge has died between terms, an election to fill that office in 1978 is mandatory where there is, scheduled in 1978, a Supreme Court race in the district which embraces the county in question. OAG 78-154 .

This section of the Constitution applies to all vacancies in elective offices except as otherwise provided in the Constitution, thus where a Circuit Judge resigned and a replacement to fill the vacancy was appointed on February 9, 1978, a candidate for the unexpired term must run in the November, 1979, election. OAG 78-194 .

Where a person was appointed to fill vacancy of Commonwealth Attorney on January 2, 1978, he would not be required to run for the unexpired term at any time prior to November, 1978. OAG 78-198 .

Where the duly elected jailer died on February 18, 1978, and the county judge/executive appointed a jailer to take his place, the date that an election would be required to fill this vacancy for the unexpired term would be November, 1979. OAG 78-200 .

If a vacancy on the town board occurred more than three (3) months prior to the 1978 general election, this section of the Constitution would require the vacancy be filled at that time, provided there was a regular election embracing the city, otherwise the appointee would serve out the remainder of the unexpired term which ended January, 1980, since the next regular election would be in November, 1979. OAG 78-217 .

Federal congressional elections in 1978 did not qualify as State elections under this section. OAG 78-229 .

If there were parts of the city that were not included in either or both of two (2) school elections there would be no regular election embracing the entire city within the meaning of this section of the Constitution and no election could be held for the unexpired term of a city council member and, accordingly, an appointee could serve out the remainder of the unexpired term ending in January, 1980, since the next regular election for city council would be at the November, 1979, election. OAG 78-229 .

If there were school elections in both the county and independent school districts in 1978 and their territory is adjacent to each other and at the same time (by the combined elections) takes in the entire City of Murray though neither alone embraces the City of Murray, the terms of § 152 would be complied with in that there would be regular elections at which all of the voters of the city would participate though they would not be entitled to vote for the same officers and, consequently, a vacancy on the city council would have to be filled in those November elections rather than allowing an appointee to finish the term. OAG 78-229 .

Where a county’s magisterial districts are reapportioned pursuant to KRS 67.045 and as a result of such reapportionment more districts are established than existed prior to reapportionment, vacancies are auto matically created in the new districts at the time the reapportionment becomes effective and these vacancies must be filled by appointment of the Governor until an election can be held for the unexpired term or terms, pursuant to this section of the Constitution. OAG 78-282 .

Where an appointment has been made to fill a vacancy, and an election must be made to fill the unexpired term, it must occur at the same time as the next regular election embracing the entire area where the vacancy occurred, and this may include a school board election, provided the school district covers the entire jurisdiction, but does not include a federal election. OAG 78-439 ; OAG 78-451 .

This section requires that all vacancies in elective offices must be filled at the next regular election embracing the area in which the vacancies have occurred, and although federal elections do not qualify, school elections can qualify if all of the qualified voters of the city will be entitled to vote in the school election. OAG 78-552 , 78-566.

Special elections involving public questions would not qualify as a regular election during which a special election to fill a vacancy might be filled since this section refers only to regular elections for public officers. OAG 78-566 .

A town which lost a city commissioner due to death and has filled the post by appointment and which is having school board elections which cover the whole town must fill this vacancy with a special election at that time. OAG 78-612 .

Once a municipality is incorporated it remains so incorporated unless its charter is forfeited in a legal proceeding in Circuit Court, and if a city has not been dissolved, it still exists and all that is necessary to activate it would be for the county court to fill by appointment, subject to this section of the Constitution, the board of trustees pursuant to KRS 88.230 (repealed), which in turn can fill all other appointive offices, including that of marshal; and once the necessary officials have been appointed, they can proceed to operate under the charter of sixth-class cities. OAG 78-632 .

When the mayor resigns, a vacancy is automatically created which is to be filled by the city council as provided in KRS 87.210 (repealed), which would be subject to the requirement of this section of the Constitution concerning the filling of vacancies for unexpired terms, and the appointee would serve until an election could be held, which obviously could not be held this coming November election if the vacancy occurred immediately, or less than three (3) months before the November election as provided by the Constitution, but it must be filled at the November, 1979, election if the term does not end that year because there is a statewide election which obviously would embrace the entire city. OAG 78-647 .

If the mayor of a fourth-class city resigns his office in January of 1979 or at any time less than 70 days before the May primary (May 29), party nominations would have to be made at the May primary for the November election, which would be an election for an unexpired term since the present term would not expire until January, 1982, the next regular election being in November, 1981, but candidates for the vacancy could run as independents by filing not less than 55 days before the November election, and parties could make a nomination for the November election if the vacancy occurred less than 70 days before the May primary, and regardless of whether anybody files for the vacancy, the office would have to be listed on the November ballot, providing of course the vacancy occurs less than three (3) months before the November election as provided in this section of the Constitution. OAG 78-784 .

A person elected to office may resign from office at any time and for any reason, and such resignation of itself does not in any way affect his qualifications to hold office or his right to change his mind and decide to run for the unexpired term to which he was elected. OAG 79-65 .

A person initially elected for the regular four (4) year term as jailer, but who subsequently resigned, can run for nomination in the May primary and, if nominated, for election in November for the unexpired term. OAG 79-65 .

Where a vacancy occurred in the office of county attorney and the regular county attorney term would end December 31, 1981, the office would be filled by appointment until the election of November, 1979, at which election the vacancy would be filled by election for the remainder of the term. OAG 79-266 .

Where a county clerk died in office July 5, 1979, his successor was appointed July 10, 1979, his term would not expire in 1979, and the 1979 general election would be held on November 6, there were more than three (3) months between the date of death and election day, and therefore an election would be held to fill the vacancy, for the remainder of the term, on November 6, 1979. OAG 79-419 .

Where a county jailer, elected in 1977, resigned in July, 1978, his appointed successor would be required to seek election to fill the vacancy in the 1979 election, since, as a statewide election, that would be the first election embracing the area in which the vacancy occurred. OAG 79-462 .

Where a mayor of a city of the fifth class, elected in November, 1977, resigned in May, 1978, the position should have been filled by an election in November, 1979, and failure to do so created a vacancy which would have to be filled until November, 1980, at which time it must be filled pursuant to this section. OAG 79-653 .

A vacancy on the board of commissioners in a city of the fourth class created in April, 1980, must be filled at the November, 1980, election under the terms of this section irrespective of the provisions of KRS 89.140 (repealed), since under this section, which supersedes any statute to the contrary, all vacancies must be filled at the next regular election embracing the area in which they occur if three (3) months intervene. OAG 80-322 .

Since this section requires that a city hold an election in November, 1980, to fill a vacancy on the city commission that occurred in April, 1980, even though the unexpired term ran through December, 1981, and since the city will be operating under the general election laws as of July 15, 1980, any candidate desiring to run for the unexpired term must file an independent petition not less than 55 days before the November election on the form prescribed by the state board of elections and KRS 118.365(2). OAG 80-322 .

Where a justice of the peace, whose term was to expire at the end of December, 1981, moved out of his district in July, 1980, a vacancy was thereby created on the fiscal court; the Governor fills the vacancy by appointment until the November, 1980, general election, at which time the vacancy will be filled by election for the remainder of the unexpired term. OAG 80-425 .

Where a vacancy occurred in the office of city commissioner under the commission form of government in June, 1979, and no election was or could be held that November under this section, the vacancy would have to be filled at the November, 1980, general election since the voters are electing presidential electors who are classified as state officers. OAG 80-267 .

Where a vacancy in the office of mayor occurred in October, 1979, which was too late for the office to be placed on the November, 1979, ballot, it must be placed on the November, 1980, ballot, to be filled for the unexpired one (1) year term, irrespective of whether or not anyone files for the office, since presidential electors, who are statewide officers, are being elected in November, 1980. OAG 80-405 .

Where vacancies occur in the office of mayor and in one of the positions on a city council, the city council or its clerk should notify the county clerk that the two (2) vacancies exist, and the fact that they must be filled at the November election pursuant to this section; any person who desires to run for the unexpired terms of said offices will be required to file a petition under the terms of KRS 118.215 and 118.315 . OAG 80-386 .

Where vacancies occur in the office of mayor and in one of the positions on the city council in July, 1980, this section requires that the unexpired terms be filled at the November, 1980, general election, since presidential electors will be elected then and they are considered statewide officers which would make that election qualify under the terms of this section. OAG 80-386 .

A city council may increase the size of the council from seven (7) to eight (8) by appropriate ordinance at any time, but preferably before the filing deadline for a nonpartisan primary procedure adopted pursuant to KRS 83A.170 , and may immediately fill the vacancy by appointment, subject to an election for the unexpired term as required by this section. OAG 81-131 .

Where a city has enacted an ordinance providing for nonpartisan city elections under KRS 83A.170 , and at the special city primary in May nominations were made for only three (3) of the four (4) city commissioner positions, write-in votes cannot be cast for the fourth position at the November election, since KRS 83A.170 requires a person to be nominated in a special city primary in order to hold the office to be filled in the November election; thus, because only three (3) commissioners were nominated, only three (3) can be elected at the November election and a vacancy will be created when the new commission members are to take office on the first Monday in January, at which time the elected commissioners would be authorized to fill the vacancy pursuant to subsection (4) of KRS 83A.040 , subject to the provisions of this section governing the filling of all vacancies in elective office which would require an election to be held at the next regular election. OAG 81-263 .

If letter of the elected county jailer, which contained an explicit resignation effective April 1, 1982, was tendered to the county judge/executive, then the resignation was effective, regardless of a later letter in which the jailer attempted to withdraw his resignation, where the county judge/executive communicated no acceptance of the resignation, but did the equivalent of appointing a successor. OAG 82-222 .

Where upcoming school board race would not embrace entire magisterial district, as would be required in order to qualify as a regular election embracing the magisterial district under the terms of this section, and there were no other regular state or local elections embracing the county (federal elections for members of Congress not qualifying as state elections under the terms of this section), vacancy in the office of justice of the peace in the magisterial district could not be filled at the coming November 1982 election, and the Governor’s appointee to fill this vacancy would have to serve until the 1983 general election, at which time an election for statewide officers would have to be held. OAG 82-257 .

City council vacancy existing in April, 1982, could not be filled for the unexpired term unless there was no regular election in the fall of 1982 embracing the city. If there was such an election as, for example, a school board election or an election for the Supreme Court, then this section would require the vacancy to be filled at that time for the unexpired term; if there was no qualifying election under the terms of the Constitution, then the mayor’s appointee would serve for the remainder of the term. OAG 82-351 .

Where a vacancy was created in the office of mayor on March 1, 1982, in a city of the sixth class, and was properly filled by appointment, if there was a regular school board election that embraced such city to be held at the November 1982 election, the vacancy in the office of mayor must be filled at that time; furthermore, as a member of the city commission was appointed to fill the vacancy in the office of mayor, the vacancy on the commission must also be filled for the unexpired term at the same time the office of mayor was filled. OAG 82-397 .

Where the constable elected at the November 1981 election resigned before serving any of his term, the vacancy in the office of constable had to be filled at the November 1982 election under the terms of this section since there was a regular election, for Justice of the Supreme Court, embracing the county to be held at that time. OAG 82-415 .

Where a vacancy occurred on August 2, such day had to be excluded under KRS 446.030 , and thus, August 3 would be the initial day that the three (3) month period would begin to run, which period would end at midnight on November 2 — election day; therefore, three (3) months would not intervene as required by this section, and the vacancy could not be filled at the November, 1982 election. OAG 82-428 .

Where a county increased its magisterial districts from four (4) to five (5), a vacancy would automatically exist in the fifth district which must be filled for the unexpired term in accordance with the requirements of this section and said election would be held in the next regular November election; prior to the election for the unexpired term, the Governor could fill the vacancy by appointment pursuant to KRS 63.190 which would end when the person elected in November received his certificate of election and qualified for the office. OAG 83-55 .

All newly elected councilmen at the November 1983 election must take office on January 10, 1984 and any vacancy that previously occurred during the year and had been filled by appointment would not be filled at said election since the appointee would serve out the remainder of the term as authorized under this section. On the other hand, if the term did not end in 1983, the person elected to fill the vacancy at the November election for the remaining two (2) years of the term would be entitled to take office immediately after the election or as soon as he received his certificate of election and qualified. OAG 83-467 .

Where a person is elected to fill a vacancy for an unexpired term, such person is entitled to take office immediately after his election or as soon thereafter as he receives his certificate of election and qualifies; he would then hold office for the remainder of the unexpired term. OAG 84-244 .

Where a constable resigned his office in early 1984, but neither major party nominated a candidate for the office in the May 1984 primary, regardless of whether or not anyone filed as an independent for constable, this section would require the office to be placed on the November 1984 ballot for “write-in” purposes, since the office must be filled by an election; if no one is elected, then a vacancy occurs to be filled by the county judge/executive for the remainder of the term ending in January 1986. OAG 84-244 .

A person elected to fill vacancy in the office of Commonwealth’s Attorney in November election was entitled to assume the office as soon as he received his certificate of election and executed the oath of office. He was not required to wait until the first Monday in January. OAG 84-304 .

Where the membership of a city council is increased from seven (7) to nine (9) effective January 1, 1986, since staggered terms for members of said city council had been established pursuant to KRS 83A.110 , the establishment of staggered terms by prior referendum would necessarily include the two (2) additional members; thus when the vacancies are filled by appointment pursuant to KRS 83A.040 those selected must draw in the manner provided in KRS 83A.110 to determine who will serve a two (2) year term and who will serve only a one (1) year term. The member drawing the two (2) year term would have to run for the one (1) year unexpired term at the November 1986 election, as required by this section of the Constitution. The member drawing the one (1) year term would have to run for a regular two (2) year term at the November 1986 election. OAG 85-106 .

A special election may be called immediately upon the Governor’s acceptance of a resignation from a legislator, even if the resignation states that it is to be effective at a future date. OAG 93-81 .

Research References and Practice Aids

Cross-References.

How and by whom vacancies filled, Const., § 76; KRS 63.150 to 63.220 .

Special election to fill vacancy in general assembly, KRS 118.730 .

Kentucky Bench & Bar.

Bartlett, The Selection and Election of Judges in Kentucky, Vol. 53, No. 3, Summer 1989, Ky. Bench & Bar 26.

Kentucky Law Journal.

Kentucky Law Survey, Morris, Municipal Law, 70 Ky. L.J. 287 (1981-82).

§ 153. Power of General Assembly as to elections.

Except as otherwise herein expressly provided, the General Assembly shall have power to provide by general law for the manner of voting, for ascertaining the result of elections and making due returns thereof, for issuing certificates or commissions to all persons entitled thereto, and for the trial of contested elections.

NOTES TO DECISIONS

1.In General.

The Legislature has the authority to make reasonable regulations for the exercise of the legislative franchise so long as it does not deny the voting privilege itself, either directly or by rendering its exercise so difficult and inconvenient as to amount to a denial. Wilkinson v. Queen, 269 S.W.2d 223, 1954 Ky. LEXIS 969 ( Ky. 1954 ).

2.Candidates.
3.— Defeated in Primary.

Statute which prohibits a candidate defeated in the primary election from having his name printed on the ballot for that office in the regular election is constitutional. Rosenberg v. Queenan, 261 S.W.2d 617, 1953 Ky. LEXIS 1025 ( Ky. 1953 ).

There is a vast distinction between a statute that says that a candidate defeated in the primary is ineligible to be voted for in the general election and one saying that such candidate may not have his name printed on the ballot. Rosenberg v. Queenan, 261 S.W.2d 617, 1953 Ky. LEXIS 1025 ( Ky. 1953 ).

4.— Naming.

This section of Constitution is not a limitation on the General Assembly to enact reasonable legislation for the naming of candidates by political parties and groups of voters. Asher v. Arnett, 280 Ky. 347 , 132 S.W.2d 772, 1939 Ky. LEXIS 87 ( Ky. 1939 ).

5.— Pre-election Contest.

Although under this section the General Assembly has established the policy that the results of an election can be contested only by suit brought by a defeated candidate, any voter qualified to vote for a nominee can maintain a pre-election suit contesting the validity of the candidate’s notification and declaration papers. Fletcher v. Wilson, 495 S.W.2d 787, 1973 Ky. LEXIS 410 ( Ky. 1973 ).

6.Election Board.

The General Assembly has no power to appoint members of an election board whose duties are to appoint and to remove from office, canvass election returns, and decide election contests. Pratt v. Breckinridge, 112 Ky. 1 , 65 S.W. 136, 23 Ky. L. Rptr. 1356 , 1901 Ky. LEXIS 286 ( Ky. 1 901).

7.Election Contests.

Apparently any violation of law affecting election may be grounds for contest. Napier v. Noplis, 318 S.W.2d 875, 1958 Ky. LEXIS 157 ( Ky. 1958 ).

A voter has no right to keep from office a person elected to the office of alderman, even if the election was illegal, and any contest of such election would, by statute, be settled by the other aldermen, not the courts. Witten v. Sternberg, 475 S.W.2d 496, 1971 Ky. LEXIS 73 ( Ky. 1971 ).

The judicial branch has no inherent power to pass on the validity of elections or the eligibility of candidates, but only has such power as is given by the General Assembly or as was possessed at common law through a quo warranto proceeding. Noble v. Meagher, 686 S.W.2d 458, 1985 Ky. LEXIS 207 ( Ky. 1985 ).

8.Voters.
9.— Comparative Signatures.

The statutory provision requiring the voter to sign the comparative signature book before he casts his vote does not deny to a person his right to vote or render its exercise so difficult or inconvenient as to amount to a denial of the right to vote, and is constitutional. Wilkinson v. Queen, 269 S.W.2d 223, 1954 Ky. LEXIS 969 ( Ky. 1954 ).

10.— Qualifications.

Even though the Constitution prescribes the qualifications of a voter, there is a wide field for legislative action in determining how such qualifications shall be ascertained and in prescribing regulations for the prevention of fraud and abuses in elections. Wilkinson v. Queen, 269 S.W.2d 223, 1954 Ky. LEXIS 969 ( Ky. 1954 ).

Cited:

Pratt v. Breckinridge, 66 S.W. 405, 23 Ky. L. Rptr. 1858 ( Ky. 1902 ); Ginsburg v. Giles, 254 Ky. 720 , 72 S.W.2d 438, 1934 Ky. LEXIS 146 ( Ky. 1934 ); Stearns v. Davis, 707 S.W.2d 787, 1985 Ky. App. LEXIS 712 (Ky. Ct. App. 1985).

Research References and Practice Aids

Cross-References.

Contest of elections, KRS ch. 120.

Determination and certification of results of elections, KRS 118.425 .

§ 154. Laws as to sale or gift of liquor on election days.

The General Assembly shall prescribe such laws as may be necessary for the restriction or prohibition of the sale or gift of spirituous, vinous or malt liquors on election days.

NOTES TO DECISIONS

1.Construction.

It is the duty of the General Assembly to prescribe such laws as may be necessary for the restriction or prohibition of the sale of intoxicating liquors on election day. Commonwealth v. Murphy, 95 Ky. 38 , 23 S.W. 655, 15 Ky. L. Rptr. 411 , 1893 Ky. LEXIS 119 ( Ky. 1893 ).

2.Possession of Liquor.

The Legislature is without authority to prohibit a citizen from having in his possession intoxicating liquors for his own use. Commonwealth v. Campbell, 133 Ky. 50 , 117 S.W. 383, 1909 Ky. LEXIS 169 ( Ky. 1909 ).

This section reveals a public policy that no restriction should be placed on intoxicating liquors except such as had necessary relation to their sale, barter, or loan, and precludes a power to make an offense out of mere possession of liquor, unattended by an intention to sell. Commonwealth v. Campbell, 133 Ky. 50 , 117 S.W. 383, 1909 Ky. LEXIS 169 ( Ky. 1909 ). See Commonwealth v. Smith, 163 Ky. 227 , 173 S.W. 340, 1915 Ky. LEXIS 192 ( Ky. 1915 ) ( Ky. 1915 ); Lakes v. Goodloe, 195 Ky. 240 , 242 S.W. 632, 1922 Ky. LEXIS 342 ( Ky. 1922 ).

3.School Elections.

Under a statute making it a misdemeanor to sell liquor upon the day of any general or primary election, it is a violation of the statute to sell liquor on a day when a school election is being held throughout the state. Ford v. Moss, 124 Ky. 288 , 98 S.W. 1015, 30 Ky. L. Rptr. 428 , 1907 Ky. LEXIS 178 ( Ky. 1907 ).

Purpose of legislation under this section is to guard elections against the presence and influence of liquor, and does not apply to a subdistrict wherein there is no school election, although an election was held in other subdistricts of the same precinct. Commonwealth v. Adams Express Co., 181 Ky. 4 , 203 S.W. 866, 1918 Ky. LEXIS 482 ( Ky. 1918 ).

Cited:

Barber v. Commonwealth, 182 Ky. 200 , 206 S.W. 290, 1918 Ky. LEXIS 342 ( Ky. 1918 ).

Research References and Practice Aids

Cross-References.

Sale of liquor on election day, KRS 119.215 , 242.100 , 244.290 , 244.480 .

§ 155. School elections not governed by Constitution.

The provisions of Sections 145 to 154, inclusive, shall not apply to the election of school trustees and other common school district elections. Said elections shall be regulated by the General Assembly, except as otherwise provided in this Constitution.

NOTES TO DECISIONS

Cross-References

Cross-References

See note to Const., § 147 under heading “24. — School Elections”: Moss v. Riley, 102 Ky. 1 , 43 S.W. 421, 19 Ky. L. Rptr. 993 , 1897 Ky. LEXIS 104 ( Ky. 1 897 ).

1.In General.

Under this section, common school district elections were not required to be held on regular election day. Sisk v. Gardiner, 74 S.W. 686, 25 Ky. L. Rptr. 18 (1903).

This section confers on the Legislature full power to regulate everything relating to the management and control of the common schools of this state. Shields v. Wilkins, 449 S.W.2d 220, 1969 Ky. LEXIS 33 ( Ky. 1969 ).

This section would indicate that Const., §§ 145 to 154 should not apply to school elections. Shields v. Wilkins, 449 S.W.2d 220, 1969 Ky. LEXIS 33 ( Ky. 1969 ).

2.Bond Issuance.

In the absence of statutory limitation, school trustees may submit for election more than once in the same year the question of issuing bonds, even though such issue was previously defeated. McKinney v. Board of Trustees, 144 Ky. 85 , 137 S.W. 839, 1911 Ky. LEXIS 555 ( Ky. 1911 ).

A school district bond issue election held on day other than the regular election day provided by law, and at which the vote was viva voce instead of by ballot, was not for those reasons invalid. Smith v. Board of Trustees, 171 Ky. 39 , 186 S.W. 927, 1916 Ky. LEXIS 300 ( Ky. 1916 ).

Legislature can confide to school board the power to order and conduct an election on the question of issuance of school bonds without any restriction requiring it to be held on a day of general election. Rogan v. Board of Education, 192 Ky. 770 , 234 S.W. 443, 1921 Ky. LEXIS 152 ( Ky. 1921 ).

3.School Officers.

The Legislature has the liberty to determine everything relating to the management and control of the schools of the state, including the right to determine who may vote for school superintendent and other school officers. Crook v. Bartlett, 155 Ky. 305 , 159 S.W. 826, 1913 Ky. LEXIS 254 ( Ky. 1913 ).

4.Right to Vote.

This section confers on the Legislature full power to regulate everything relating to the management and control of the common schools of the state, and the Legislature has the power to give women the right to vote in them. Stuessy v. Louisville, 156 Ky. 523 , 161 S.W. 564, 1913 Ky. LEXIS 484 ( Ky. 1913 ).

Illiterate women, no less than illiterate men, may exercise their right to vote at school elections. Prewitt v. Wilson, 242 Ky. 231 , 46 S.W.2d 90, 1932 Ky. LEXIS 255 ( Ky. 1932 ).

5.School Districts.

The city of Louisville being a school district, an election therein on a tax measure is a school district election, and under the regulation of the General Assembly. Stuessy v. Louisville, 156 Ky. 523 , 161 S.W. 564, 1913 Ky. LEXIS 484 ( Ky. 1913 ).

6.Time of Elections.

School elections of every character are not required to be held on a regular election day. Clark v. Board of Trustees, 164 Ky. 210 , 175 S.W. 359, 1915 Ky. LEXIS 359 ( Ky. 1915 ). See Sisk v. Gardiner, 74 S.W. 686, 25 Ky. L. Rptr. 18 (1903); Weil, Roth & Co. v. Paris, 176 Ky. 841 , 197 S.W. 461, 1917 Ky. LEXIS 130 ( Ky. 1917 ).

The Legislature is at liberty to fix the time for regular or general election of school trustees on a day other than the first Tuesday after the first Monday in November. Norton v. Letton, 271 Ky. 353 , 111 S.W.2d 1053, 1937 Ky. LEXIS 242 ( Ky. 1937 ).

7.Corrupt Practice Act.

Members of school board, like all other elected county and district officers, are subject to the provisions of the corrupt practice act, KRS 123.030 (repealed). Ridings v. Jones, 213 Ky. 810 , 281 S.W. 999, 1926 Ky. LEXIS 626 ( Ky. 1926 ). See Hart v. Rose, 255 Ky. 576 , 75 S.W.2d 43, 1934 Ky. LEXIS 297 ( Ky. 1934 ).

Although this section relieved Legislature of necessity of applying corrupt practice measures to schools, it did not forbid Legislature from such application; thus, corrupt practice act could apply to school elections. Hart v. Rose, 255 Ky. 576 , 75 S.W.2d 43, 1934 Ky. LEXIS 297 ( Ky. 1934 ).

8.Filling of Vacancies.

The selection of a person to fill a vacancy in a common school district office is synonymous with an election within the meaning of this section. Shields v. Wilkins, 449 S.W.2d 220, 1969 Ky. LEXIS 33 ( Ky. 1969 ).

Cited:

Belknap v. Louisville, 99 Ky. 474 , 36 S.W. 1118, 18 Ky. L. Rptr. 313 , 1896 Ky. LEXIS 122 ( Ky. 1896 ); Chambers v. Adair, 110 Ky. 942 , 62 S.W. 1128, 23 Ky. L. Rptr. 373 , 1901 Ky. LEXIS 157 ( Ky. 1901 ); Trustee of Paintsville Graded Free School Dist. v. Davis, 64 S.W. 438, 23 Ky. L. Rptr. 838 (1901); Hollar v. Cornett, 144 Ky. 420 , 138 S.W. 298, 1911 Ky. LEXIS 625 ( Ky. 1911 ); Morgan v. Goode, 151 Ky. 284 , 152 S.W. 584, 1912 Ky. LEXIS 820 ( Ky. 1912 ); Trustees of Slaughterville Graded School Dist. v. Brooks, 163 Ky. 200 , 173 S.W. 305, 1915 Ky. LEXIS 179 ( Ky. 1915 ); Penny v. McRoberts, 163 Ky. 313 , 173 S.W. 786, 1915 Ky. LEXIS 223 ( Ky. 1915 ); Murray v. Irvan, 170 Ky. 290 , 185 S.W. 859, 1916 Ky. LEXIS 43 ( Ky. 1916 ); Payne v. Providence Graded Common School Dist., 173 Ky. 753 , 191 S.W. 477, 1917 Ky. LEXIS 506 ( Ky. 1917 ); Hoskins v. Ramsey, 197 Ky. 465 , 247 S.W. 371, 1923 Ky. LEXIS 663 ( Ky. 1923 ); Alsip v. Perkins, 236 Ky. 5 , 36 Ky. 5 , 32 S.W.2d 565, 1930 Ky. LEXIS 684 ( Ky. 1930 ); Middleton v. Middleton, 239 Ky. 759 , 40 S.W.2d 311, 1931 Ky. LEXIS 847 ( Ky. 1931 ); Ginsburg v. Giles, 254 Ky. 720 , 72 S.W.2d 438, 1934 Ky. LEXIS 146 ( Ky. 1934 ); Williams v. Board for Louisville & Jefferson County Children's Home, 305 Ky. 440 , 204 S.W.2d 490, 1947 Ky. LEXIS 825 ( Ky. 1947 ).

Research References and Practice Aids

Cross-References.

School elections, KRS 160.200 to 160.260 .

MUNICIPALITIES

§ 156. 156. [Repealed.]

Compiler’s Notes.

This section was repealed by the proposal of the General Assembly (Acts 1994), ch. 168, §§ 1 and 6), which was ratified by the voters at the regular election in November, 1994 and became effective November 8, 1994. Prior to its repeal this section read: “The cities and towns of this Commonwealth, for the purposes of their organization and government, shall be divided into six classes. The organization and powers of each class shall be defined and provided for by general laws, so that all municipal corporations of the same class shall possess the same powers and be subject to the same restrictions. 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; but no city or town shall be transferred from one class to another, except in pursuance of a law previously enacted and providing therefor. The General Assembly, by a general law, shall provide how towns may be organized, and enact laws for the government of such towns until the same are assigned to one or the other of the classes above named; but such assignment shall be made at the first session of the General Assembly after the organization of said town or city.”

§ 156a. General Assembly authorized to provide for creation, governmental structure and classification of cities.

The General Assembly may provide for the creation, alteration of boundaries, consolidation, merger, dissolution, government, functions, and officers of cities. The General Assembly shall create such classifications of cities as it deems necessary based on population, tax base, form of government, geography, or any other reasonable basis and enact legislation relating to the classifications. All legislation relating to cities of a certain classification shall apply equally to all cities within the same classification. The classification of all cities and the law pertaining to the classifications in effect at the time of adoption of this section shall remain in effect until otherwise provided by law.

History. As proposed by Acts 1994, ch. 168, § 1, and ratified November 8, 1994.

Compiler’s Notes.

The General Assembly in 1994 (Acts 1994, ch. 168, § 1) proposed the repeal of Section 156, of the Constitution and the substitution in lieu thereof of new Sections 156a and 156b. This amendment was ratified by the voters at the regular election in November, 1994 and became effective November 8, 1994.

Section 5 of Acts 1994, ch. 168 provides: “It is further proposed as a part of this amendment and as a transitional provision for the purposes of this amendment, that any contract or legally binding obligation of a local government shall remain unaffected until the contract or obligation is renegotiated or expires.”

DECISIONS UNDER PRIOR LAW

  1. In General.
  2. Assignment to Classes.
  3. Charters.
  4. Classification.
  5. Delegation of Powers.
  6. General Laws.
  7. Municipal Corporations.
  8. Organization.
  9. Population.
  10. Special Laws.
  11. Boundaries.
  12. Annexation.
  13. Local Option.

The present Constitution and the laws passed thereunder governing towns and cities do not affect vested rights acquired prior thereto. Louisville v. Cumberland Tel. & Tel. Co., 224 U.S. 649, 32 S. Ct. 572, 56 L. Ed. 934, 1912 U.S. LEXIS 2333 (U.S. 1912).

The judiciary does not have the power to assign or change the assignment of a city from one class to another, even though the classification is erroneous. Green v. Commonwealth, 95 Ky. 233 , 24 S.W. 610, 16 Ky. L. Rptr. 161 , 1894 Ky. LEXIS 4 ( Ky. 1894 ).

A statute which provided for the Circuit Court to assign or transfer a town or city from one class to another violated the terms of former Const., § 156, wherein such power was granted to the Legislature alone. Jernigan v. Madisonville, 102 Ky. 313 , 43 S.W. 448, 19 Ky. L. Rptr. 1412 , 1897 Ky. LEXIS 112 ( Ky. 1897 ).

The failure of the Legislature to assign a municipality to a class at the first session of the General Assembly after the town was organized does not have the effect of dissolving the town or rendering null and void the judgment of the Circuit Court establishing said town. Commonwealth v. Rose, 105 Ky. 326 , 49 S.W. 29, 20 Ky. L. Rptr. 1220 , 1899 Ky. LEXIS 215 ( Ky. 1899 ).

Const., § 161 had to be read with former Const., § 156, and thus did not impair power of Legislature to create new municipal entity by assigning city to different class. Gilbert v. Paducah, 115 Ky. 160 , 72 S.W. 816, 24 Ky. L. Rptr. 1998 , 1903 Ky. LEXIS 87 ( Ky. 1903 ).

The Legislature has the power to transfer a city from the fourth class to the third class and provide for the continuation of the elected officers in power until their successors are elected at the next general election. Tandy & Fairleigh Tobacco Co. v. Hopkinsville, 174 Ky. 189 , 192 S.W. 46, 1917 Ky. LEXIS 183 ( Ky. 1917 ).

The Legislature has the exclusive right to classify and to change the assignment of a city or town from one class to another. London v. Brown, 183 Ky. 63 , 208 S.W. 317, 1919 Ky. LEXIS 436 ( Ky. 1919 ).

Where Legislature failed to change classification of third-class city of sufficient population to be classified as second-class city, county commissioners were not entitled to compensation of commissioners in counties containing city of second class. Magruder v. Griffith, 274 Ky. 293 , 118 S.W.2d 694, 1938 Ky. LEXIS 261 ( Ky. 1938 ).

Constitution § 161, which bars any change in the compensation of a city officer during his term, is to be read with and is qualified by former Const., § 156, which empowers the Legislature to reassign a city from one class to another with the consequences of changes in compensation which follow. Somerset v. Caylor, 241 S.W.2d 990, 1951 Ky. LEXIS 1033 ( Ky. 1951 ).

The charter of a municipality is its Constitution, and no ordinance may be enacted in conflict therewith. Hargadon v. Silk, 279 Ky. 69 , 129 S.W.2d 1039, 1939 Ky. LEXIS 239 ( Ky. 1939 ).

Former Const., § 156 and Const., § 166, and the general laws enacted under those sections for the classification, incorporation and government of cities, automatically repealed all specially enacted charters of cities. Mullins v. Wilson, 282 Ky. 316 , 138 S.W.2d 484, 1940 Ky. LEXIS 168 ( Ky. 1940 ).

Classification of cities under this former Const., § 156 is limited to the purpose of organization and government. Louisville v. Kuntz, 104 Ky. 584 , 47 S.W. 592, 20 Ky. L. Rptr. 805 , 1898 Ky. LEXIS 198 ( Ky. 1898 ).

Statutes relative to the levying and collection of taxes in cities of the first class are not unconstitutional as class legislation. Woolley v. Louisville, 114 Ky. 556 , 71 S.W. 893, 24 Ky. L. Rptr. 1357 , 1903 Ky. LEXIS 36 ( Ky. 1903 ).

Legislation relative to assessing abutting landowners for improvements in cities of the first class is not unconstitutional, even though there is only one city of that class. Hager v. Gast, 119 Ky. 502 , 84 S.W. 556, 27 Ky. L. Rptr. 129 , 1905 Ky. LEXIS 25 ( Ky. 1905 ).

The Legislature was authorized to permit two classes of cities to make assessments against state property for internal improvements because of the amount of property owned by the state within the limits of those respective classes. Logan v. Louisville, 283 Ky. 518 , 142 S.W.2d 161, 1940 Ky. LEXIS 379 ( Ky. 1940 ).

KRS 173.300 to 173.410 , applying only to cities containing property of assessed value of $5,000,000 or more, was not unconstitutional as contravening § 59 or 60, even when read in connection with former Const., § 156, since such classification was reasonable and directly related to act’s subject matter. Board of Trustees v. Newport, 300 Ky. 125 , 187 S.W.2d 806, 1945 Ky. LEXIS 801 ( Ky. 1945 ).

KRS 81.195 (repealed) is not constitutional because it does not provide for the same treatment for all cities of the third class. Corbin v. Roaden, 453 S.W.2d 603, 1970 Ky. LEXIS 329 ( Ky. 1970 ).

Former Const., § 156 permitted classification of cities upon the basis of size alone for the purpose of their organization or government and matters relating thereto. Board of Education v. Board of Education, 472 S.W.2d 496, 1971 Ky. LEXIS 200 ( Ky. 1971 ).

An act based on a classification merely according to classes of cities cannot be upheld unless it pertains to the organizations or government of the classified cities or unless the classification has a reasonable relation to the purpose of the act. Hall v. Miller, 584 S.W.2d 51, 1979 Ky. App. LEXIS 433 (Ky. Ct. App. 1979).

Statute permitting the mayor of a city to be either elected by the people or appointed by the council as provided by ordinance is not an unconstitutional delegation of power and did not violate former Const., § 156. Brown v. Holland, 97 Ky. 249 , 30 S.W. 629, 17 Ky. L. Rptr. 149 , 1895 Ky. LEXIS 180 ( Ky. 1895 ).

An act providing for judicial remedy to prevent an annexation, although a legislative function, is not an unconstitutional delegation of power. Lewis v. Brandenburg, 105 Ky. 14 , 47 S.W. 862, 20 Ky. L. Rptr. 1011 , 1898 Ky. LEXIS 238 ( Ky. 1898 ).

The measure of power conferred upon municipal corporations is subject to legislative discretion and, in the absence of an express delegation or a necessary inference from some express power, the municipality cannot lawfully act. District of Clifton v. Cummins, 165 Ky. 526 , 177 S.W. 432, 1915 Ky. LEXIS 562 ( Ky. 1915 ).

The power of a city to govern itself is limited by the general laws passed by the Legislature that defined the powers of cities of that classification. Barrow v. Bradley, 190 Ky. 480 , 227 S.W. 1016, 1921 Ky. LEXIS 481 ( Ky. 1921 ).

Legislature could delegate to cities legislative powers with respect to purely local matters but not power to create state offices. Chandler v. Louisville, 277 Ky. 79 , 125 S.W.2d 1026, 1939 Ky. LEXIS 624 ( Ky. 1939 ).

Municipalities possess no power except that expressly conferred upon them, or that which is necessarily implied in order to carry out the expressly conferred authority. Hargadon v. Silk, 279 Ky. 69 , 129 S.W.2d 1039, 1939 Ky. LEXIS 239 ( Ky. 1939 ).

Cities possess only such powers as are expressly conferred by the General Assembly, and doubts will be resolved against the city. Gregory v. Raceland, 279 Ky. 316 , 130 S.W.2d 825 ( Ky. 1939 ).

In former Const., § 156, power was implied, if not expressed, for General Assembly to confer and define local legislative power. Grimm v. Moloney, 358 S.W.2d 496, 1962 Ky. LEXIS 180 ( Ky. 1962 ). See Commonwealth v. Associated Industries of Kentucky, 370 S.W.2d 584, 1963 Ky. LEXIS 76 ( Ky. 1963 ).

KRS 100.193 and 100.197 when read together are sufficiently broad to constitute a general law authorizing the legislative body of a city to delegate authority to a planning commission to locate a floating zone or establish a neighborhood development unit and a zoning ordinance providing for such a procedure did not violate former Const., § 156 as the unlawful delegation of legislative power. Bellemeade Co. v. Priddle, 503 S.W.2d 734, 1973 Ky. LEXIS 47 ( Ky. 1973 ).

A state Legislature may delegate legislative powers to cities, but it may not authorize a city to pass such powers on to an administrative agency and since the Local Development Authority Act — KRS 99.610 to 99.680 — authorizes the agency to exercise choices that the people are entitled to have exercised by their elected representatives such act is unconstitutional. Miller v. Covington Development Auth., 539 S.W.2d 1, 1976 Ky. LEXIS 40 ( Ky. 1976 ).

Since KRS 67A.010 et seq. contains no procedure for abolishing an urban county government and former Const., § 156 provided that the General Assembly alone may provide how towns may be organized, proposed amendment to county government charter which would abolish the urban county government and replace it with former city and county governments was not constitutionally permissible. Goodloe v. Baesler, 539 S.W.2d 298, 1976 Ky. LEXIS 55 ( Ky. 1976 ).

The imposition of a penalty for the nonpayment of taxes upon a particular class of cities, or the requirement that cities of a class shall pay interest on past-due tax bills, is a valid general law. Walston v. Louisville, 66 S.W. 385, 23 Ky. L. Rptr. 1852 (1902).

Where legislation is made applicable to all cities falling within a designated class, it is a general law, even though there may only be one city in that class. Specht v. Louisville, 135 Ky. 548 , 122 S.W. 846, 1909 Ky. LEXIS 319 ( Ky. 1909 ).

Whereas an act only authorized and did not require cities to establish libraries and use part of the funds collected in police court for their operation, so that some cities in a particular class might establish them and others might not, such failure to exercise the power does not violate the provision that all cities of the same class are to be governed by the same law and have the same power. Owensboro v. Board of Trustees, 210 Ky. 482 , 276 S.W. 143, 1925 Ky. LEXIS 714 ( Ky. 1925 ).

The Legislature has the power to pass acts regulating any class of cities. Jones v. Russell, 224 Ky. 390 , 6 S.W.2d 460, 1928 Ky. LEXIS 606 ( Ky. 1928 ). See Klein v. Louisville, 224 Ky. 624 , 6 S.W.2d 1104, 1928 Ky. LEXIS 663 ( Ky. 1928 ).

The Legislature has the right to provide any method it may deem proper for the improvement of the streets and public ways of municipalities so long as it does not contravene any constitutional provisions. Coke v. Dowell, 281 Ky. 362 , 136 S.W.2d 3, 1940 Ky. LEXIS 31 ( Ky. 1940 ).

Where the Legislature provided by general law for the election of town trustees in odd years, the offices of trustee were vacant and new trustees could be appointed to replace those elected in an even year and whose names were not on the ballot for an election in the following odd year. Beauchamp v. Rahm, 283 Ky. 50 , 140 S.W.2d 633, 1940 Ky. LEXIS 278 ( Ky. 1940 ).

Former Const., § 156 constituted an exception to Const., §§ 59 and 60, prohibiting local and special legislation; therefore, an act of the Legislature limited to a city of a certain class and pertaining to municipal affairs was valid as being general rather than special legislation. Dieruf v. Louisville & Jefferson County Bd. of Health, 304 Ky. 207 , 200 S.W.2d 300, 1947 Ky. LEXIS 613 ( Ky. 1947 ).

A district may be a municipal corporation, though not a city or town. Dyer v. Newport, 123 Ky. 203 , 94 S.W. 25, 29 Ky. L. Rptr. 656 , 1906 Ky. LEXIS 134 ( Ky. 1906 ). See Covington v. District of Highlands, 113 Ky. 612 , 68 S.W. 669, 24 Ky. L. Rptr. 433 , 1902 Ky. LEXIS 89 ( Ky. 1902 ); Gleason v. Weber, 155 Ky. 431 , 159 S.W. 976, 1913 Ky. LEXIS 278 ( Ky. 1913 ).

Although concurrence of the court is a condition precedent to taking effect of a legislative act which dissolves a municipal corporation upon the approval of a majority of the voters residing therein, the act of dissolution is a valid exercise of legislative power to enact general laws for the organization of municipalities and is not an unconstitutional delegation of power. Boone County v. Verona, 190 Ky. 430 , 227 S.W. 804, 1921 Ky. LEXIS 468 ( Ky. 1921 ).

A municipal corporation is a mere creature of the state, deriving its powers from the special enactments of the Legislature, and a municipal ordinance cannot alter or supersede a provision of its charter or of a general statute. Bosworth v. Lexington, 277 Ky. 90 , 125 S.W.2d 995, 1939 Ky. LEXIS 615 ( Ky. 1939 ).

Annexation of territory by a municipality is embraced by this section under the general term of “organization and government” of cities of the class to which the municipality belongs. Lewis v. Brandenburg, 105 Ky. 14 , 47 S.W. 862, 20 Ky. L. Rptr. 1011 , 1898 Ky. LEXIS 238 ( Ky. 1898 ).

Only the state can question the legality of the organization of a city government. Providence v. Shackelford, 106 Ky. 378 , 50 S.W. 542, 20 Ky. L. Rptr. 1921 , 1899 Ky. LEXIS 49 ( Ky. 1899 ).

The right of the state to direct the affairs of municipalities is confined to the powers that they exercise as part of the state government, including the protection of life and property by regulating the number of policemen in cities of a certain class. Paducah v. Petitioner, 125 Ky. 510 , 101 S.W. 898, 31 Ky. L. Rptr. 170 , 1907 Ky. LEXIS 307 (Ky. Ct. App. 1907).

The creation of or annexation of new territory to a town is a matter within the sole discretion of the Legislature, and does not in any manner depend on the will of a majority or any of the inhabitants living within the territory. Carrithers v. Shelbyville, 126 Ky. 769 , 104 S.W. 744, 31 Ky. L. Rptr. 1166 , 1907 Ky. LEXIS 92 ( Ky. 1907 ).

The Legislature has the power to authorize the division of cities of the fourth class into wards, and to provide for the election of councilmen for the respective wards. Moore v. Georgetown, 127 Ky. 409 , 105 S.W. 905, 32 Ky. L. Rptr. 315 , 32 Ky. L. Rptr. 323 , 1907 Ky. LEXIS 148 ( Ky. 1907 ).

Former Const., § 156 was not violated by a statute permitting cities of the second class to adopt the commission form of government. Bryan v. Voss, 143 Ky. 422 , 136 S.W. 884, 1911 Ky. LEXIS 429 ( Ky. 1911 ).

An act passed pursuant to former Const., § 156 regulated all cities in a particular class, so that all municipal corporations of the same class possessed the same powers. Shipp v. Lexington, 212 Ky. 702 , 279 S.W. 1094, 1926 Ky. LEXIS 221 ( Ky. 1926 ).

The provision for the classification of cities and a definition of their powers by general law was not a grant to the General Assembly of authority so to do but was a limitation upon what, without those limitations, would be an absolute power of the General Assembly to do what it pleased. Board of Trustees v. Schupp, 223 Ky. 269 , 3 S.W.2d 606, 1928 Ky. LEXIS 315 ( Ky. 1928 ).

Former Const., § 156 authorized the classification of cities only for the purpose of organization and government. Mannini v. McFarland, 294 Ky. 837 , 172 S.W.2d 631, 1943 Ky. LEXIS 539 ( Ky. 1943 ).

While there has been no plan as yet proposed under KRS 67A.010 to 67A.040 (KRS 67A.040 now repealed) for the merger of city and county governments, any plan so proposed would not inevitably have violated former Const., § 156 which dealt with the organization and powers of cities, or sections 97 through 108 or section 144 of the Constitution. Pinchback v. Stephens, 484 S.W.2d 327, 1972 Ky. LEXIS 148 ( Ky. 1972 ).

The court will take judicial notice that the population of a town of the sixth class does not exceed 1,000. Schweirman v. Highland Park, 130 Ky. 537 , 113 S.W. 507, 1908 Ky. LEXIS 294 ( Ky. 1908 ).

A finding by the Legislature that a city has the requisite population to qualify for a certain classification is a conclusive act that cannot be questioned by the courts. Griffin v. Powell, 143 Ky. 276 , 136 S.W. 626, 1911 Ky. LEXIS 402 ( Ky. 1911 ).

Former Const., § 156 was an exception to prohibition of Const., § 59 against special legislation. Richardson v. Mehler, 111 Ky. 408 , 63 S.W. 957, 23 Ky. L. Rptr. 917 , 1901 Ky. LEXIS 214 ( Ky. 1901 ).

Former Const., § 156 repealed special acts governing cities and towns. Henning v. Stengel, 112 Ky. 906 , 66 S.W. 41, 23 Ky. L. Rptr. 1793 , 1902 Ky. LEXIS 187 ( Ky. 1902 ).

The General Assembly is without power to pass a special law to declare a certain territory a city and then proceed to assign it to a certain class. Albershart v. Donaldson, 149 Ky. 510 , 149 S.W. 873, 1912 Ky. LEXIS 647 ( Ky. 1912 ).

Legislation that requires the registration of voters in three (3) sixth-class cities is invalid if there is no law which requires registration of voters in the other sixth-class cities. Atherton v. Fox, 245 Ky. 718 , 54 S.W.2d 11, 1932 Ky. LEXIS 647 ( Ky. 1932 ).

In determining whether an act relating to a particular class of city is local and special legislation, former Const., § 156must be considered in connection with Const., §§ 59 and 60. Mannini v. McFarland, 294 Ky. 837 , 172 S.W.2d 631, 1943 Ky. LEXIS 539 ( Ky. 1943 ).

An act based on a classification merely according to classes of cities cannot be upheld unless it pertains to the organizations or government of the classified cities, or unless the classification has a reasonable relation to the purpose of the act. Mannini v. McFarland, 294 Ky. 837 , 172 S.W.2d 631, 1943 Ky. LEXIS 539 ( Ky. 1943 ); Louisville v. Kuntz, 104 Ky. 584 , 20 Ky. L. Rptr. 805 , 47 S.W. 592, 1898 Ky. LEXIS 198 ( Ky. 1898 ), and overruling certain intervening cases to the contrary.

KRS 242.1292 , providing for special precinct elections in second-class cities on the question of prohibition, does not deal with government organizations or structure; accordingly, it does not fall within the exception provided by former Const., § 156 to the prohibitions against local and special legislation contained in Const., §§ 59 and 60. United Dry Forces v. Lewis, 619 S.W.2d 489, 1981 Ky. LEXIS 260 ( Ky. 1981 ); aff’d, United Dry Forces v. Citizens for Progressive Community, 635 S.W.2d 478, 1982 Ky. LEXIS 272 ( Ky. 1982 ).

Where the clear import of KRS 81.145 (repealed), governing elections on annexation of unincorporated territory by a city of the second class in a county containing cities of the second and third class, was to place a restriction upon the annexation power of certain cities of the second class, or more properly upon one such city, not placed upon the other cities within that class, such statute plainly violated former Const., § 156. Taylor Mill v. Covington, 575 S.W.2d 159, 1978 Ky. App. LEXIS 643 (Ky. Ct. App. 1978).

Former Const., § 156 was an exception to Const., § 59 that prohibits special legislation. Hall v. Miller, 584 S.W.2d 51, 1979 Ky. App. LEXIS 433 (Ky. Ct. App. 1979).

The 1968 Act (Acts 1968, ch. 5) reclassifying the city of Edgewood from a sixth to a fourth-class city did not vitiate the 1962 annexation ordinance of city attempting to annex Edgewood nor prevent the annexing city from going forward with the proposed annexation, for the legislative intent of said act was to do nothing more than carry out the mandate of former Const., § 156 to make changes in classification as the population of the cities and towns increases or decreases and was not indicative of an intent to legislate the corporate limits of Edgewood, and even if it had been the intent of the Legislature to set corporate limits of said city such intent would have been frustrated by Const., §§ 59 and 159 prohibiting establishment of city boundaries by special and local laws. Covington v. Beck, 586 S.W.2d 284, 1979 Ky. App. LEXIS 453 (Ky. Ct. App. 1979).

The authority of a city of the third class to annex the territory of another municipality did not violate former Const., § 156 or the due process clause of the fourteenth amendment. Somerset v. Ferguson, 589 S.W.2d 884, 1979 Ky. LEXIS 296 ( Ky. 1979 ).

Subdivision (10)(a) of KRS 242.1292 , which allows the city governing body of second-class cities to designate precincts as limited sale (“wet”) precincts, is clearly premised on a finding by the governing body that the economy of a certain precinct has been adversely affected by the prohibition against the sale of alcoholic beverages; accordingly, the subdivision bears a reasonable relationship to the purpose of the act, which is to help the precinct’s economy, and is constitutional. United Dry Forces v. Lewis, 619 S.W.2d 489, 1981 Ky. LEXIS 260 ( Ky. 1981 ); aff’d, United Dry Forces v. Citizens for Progressive Community, 635 S.W.2d 478, 1982 Ky. LEXIS 272 ( Ky. 1982 ).

Subdivision (10)(b) of KRS 242.1292 providing that the city governing body in second-class cities should order a local option election in a dry precinct upon petition of 33% of the voters bears no relationship to the statutory purpose of helping the precinct’s economy and is unconstitutional as special and local legislation, and elections held pursuant to that subdivision were void; however, because of the implied severability clause in KRS 446.090 , the remainder of KRS 242.1292 is constitutional. United Dry Forces v. Lewis, 619 S.W.2d 489, 1981 Ky. LEXIS 260 ( Ky. 1981 ); aff’d, United Dry Forces v. Citizens for Progressive Community, 635 S.W.2d 478, 1982 Ky. LEXIS 272 ( Ky. 1982 ).

Research References and Practice Aids

Cross-References.

Census, determination of re-classification based on, KRS 81.032 .

Classification of cities, KRS 81.010 .

Incorporation of cities, KRS 81.045 to 81.060 .

Organization and government of cities, KRS chs. 81 to 85.

Reclassification, KRS 81.032 to 81.036 .

§ 156b. General Assembly authorized to permit municipal home rule for cities.

The General Assembly may provide by general law that cities may exercise any power and perform any function within their boundaries that is in furtherance of a public purpose of a city and not in conflict with a constitutional provision or statute.

History. As proposed by Acts 1994, ch. 168, § 1, and ratified November 8, 1994.

Compiler’s Notes.

The General Assembly in 1994 (Acts 1994, ch. 168, § 1) proposed the repeal of Section 156, of the Constitution and the substitution in lieu thereof of new Sections 156a and 156b. This amendment was ratified by the voters at the regular election in November, 1994 and became effective November 8, 1994.

Section 5 of Acts 1994, ch. 168 provides: “It is further proposed as a part of this amendment and as a transitional provision for the purposes of this amendment, that any contract or legally binding obligation of a local government shall remain unaffected until the contract or obligation is renegotiated or expires.”

NOTES TO DECISIONS

1.Local Ordinance Invalid.

Metro government's ordinance imposing a minimum wage higher than that set by the state was invalid where it directly conflicted with the state law, the state law was a comprehensive statutory scheme on the issue of wages, and thus, the conflict was of the type forbidden under Ky. Const. § 156b and Ky. Rev. Stat. Ann. § 82.082(2). Ky. Rest. Ass'n v. Louisville/Jefferson Cnty. Metro Gov't, 501 S.W.3d 425, 2016 Ky. LEXIS 506 ( Ky. 2016 ).

§ 157. Maximum tax rate for cities, counties, and taxing districts.

The tax rate of cities, counties, and taxing districts, for other than school purposes, shall not, at any time, exceed the following rates upon the value of the taxable property therein: For all cities having a population of fifteen thousand or more, one dollar and fifty cents on the hundred dollars; for all cities having less than fifteen thousand and not less than ten thousand, one dollar on the hundred dollars; for all cities having less than ten thousand, seventy-five cents on the hundred dollars; and for counties and taxing districts, fifty cents on the hundred dollars.

History. Amendment, proposed by Acts 1994, ch. 168, § 2, and ratified November 8, 1994.

Compiler’s Notes.

The General Assembly in 1994 (Acts 1994, ch. 168, § 2) proposed an amendment to this section, which amendment was ratified by the voters at the regular election November 8, 1994 and became effective November 8, 1994. Prior to this amendment this section read:

“§ 157. Maximum tax rate for cities, counties and taxing districts — Indebtedness exceeding income provided for year not to be incurred without popular vote.

The tax rate of cities, towns, counties, taxing districts and other municipalities, for other than school purposes, shall not, at any time, exceed the following rates upon the value of the taxable property therein, viz: For all towns or cities having a population of fifteen thousand or more, one dollar and fifty cents on the hundred dollars; for all towns or cities having less than fifteen thousand and not less than ten thousand, one dollar on the hundred dollars; for all towns or cities having less than ten thousand, seventy-five cents on the hundred dollars; and for counties and taxing districts, fifty cents on the hundred dollars; unless it should be necessary to enable such city, town, county, or taxing district to pay the interest on, and provide a sinking fund for the extinction of, indebtedness contracted before the adoption of this Constitution. No county, city, town, taxing district, or other municipality, shall be authorized or permitted to become indebted, in any manner or for any purpose, to an amount exceeding, in any year, the income and revenue provided for such year, without the assent of two-thirds of the voters thereof, voting at an election to be held for that purpose; and any indebtedness contracted in violation of this section shall be void. Nor shall such contract be enforceable by the person with whom made; nor shall such municipality ever be authorized to assume the same.”

Section 5 of Acts 1994, ch. 168 provides: “It is further proposed as a part of this amendment and as a transitional provision for the purposes of this amendment, that any contract or legally binding obligation of a local government shall remain unaffected until the contract or obligation is renegotiated or expires.”

NOTES TO DECISIONS

Many of the decisions under this section regarding indebtedness were decided prior to the 1994 amendment of this section which deleted that portion of the section prohibiting an entity from becoming indebted in amount exceeding yearly income and revenue. Now see Const., § 157b.

1.Constitutionality.

This section does not impair obligation of contract in violation of the federal Constitution where a contract entered into prior to the adoption of this section gave a city an option to purchase a waterworks plant after a ten (10) year term where the contract imposed no obligation to exercise the option and the section in no way affected the city’s obligation to allow the waterworks company to exercise its contractual rights. Ashland Waterworks Co. v. Ashland, 230 F. 254, 1916 U.S. Dist. LEXIS 965 (D. Ky. 1916 ), rev'd, 251 F. 492, 1918 U.S. App. LEXIS 1721 (6th Cir. Ky. 1918 ).

2.Purpose.

The purpose of this section was to protect the people of counties and cities from improvident contracts by county and city officials for public improvements. Hopkins County v. St. Bernard Coal Co., 114 Ky. 153 , 70 S.W. 289, 24 Ky. L. Rptr. 942 , 1902 Ky. LEXIS 142 ( Ky. 1902 ).

The purpose of this section and Const., § 158 is to require counties, municipalities, and other taxing units to adopt the pay-as-you-go plan and not to incur obligations in excess of their current revenues. Payne v. Covington, 276 Ky. 380 , 123 S.W.2d 1045, 1938 Ky. LEXIS 549 ( Ky. 1938 ).

It is doubtful whether it was the intention of this section to allow a county or city to incur a debt which could not be paid before the end of its fiscal year, even on the basis of bona fide anticipation. Fulton County Fiscal Court v. Southern Bell Tel. & Tel. Co., 285 Ky. 17 , 146 S.W.2d 15, 1940 Ky. LEXIS 591 ( Ky. 1940 ).

It is clearly the purpose of this section to enforce upon officials a pay-as-you-go plan of financing. Banks-Miller Supply Co. v. Carter County, 45 F. Supp. 521, 1942 U.S. Dist. LEXIS 2830 (D. Ky. 1942 ).

This section and Const., § 159 were intended, first, to prohibit the creation of indebtedness by taxing districts without making provisions for its payment and, second, to require that every valid debt of a taxing district be paid. Griffin v. Clay County, 304 Ky. 592 , 201 S.W.2d 733, 1947 Ky. LEXIS 684 ( Ky. 1947 ).

The intent and purpose of this section was to prevent local governments from incurring indebtedness that would be carried from one (1) year to the next, thereby precluding effective operation of the government. Caywood v. Stivers, 430 S.W.2d 327, 1968 Ky. LEXIS 398 ( Ky. 1968 ).

3.Construction.

This section is to be construed with reference to the time the indebtedness is contracted and not with reference to the time when authority may have been given to contract an indebtedness at some future time when such authority may or may not be exercised. Audit Co. v. Louisville, 185 F. 349, 1911 U.S. App. LEXIS 3993 (6th Cir. Ky. 1911 ).

The limitation imposed by this section on indebtedness of counties is entitled to a strict construction. Banks-Miller Supply Co. v. Carter County, 45 F. Supp. 521, 1942 U.S. Dist. LEXIS 2830 (D. Ky. 1942 ).

The limit of municipal tax rate fixed by this section is mandatory, and is not modified by Const., §§ 158 and 159. Tipton v. Shelbyville, 139 Ky. 541 , 107 S.W. 810, 32 Ky. L. Rptr. 1123 , 1908 Ky. LEXIS 8 ( Ky. 1908 ).

Constitution § 157a only enlarges and extends this section, and does not conflict with it. Hughes v. Eison, 190 Ky. 661 , 228 S.W. 676, 1921 Ky. LEXIS 509 ( Ky. 1921 ).

It is the duty of county fiscal courts and other taxing authorities in other governmental units to observe the limitations on indebtedness. Hockley v. Carter County, 267 Ky. 250 , 101 S.W.2d 928, 1937 Ky. LEXIS 298 ( Ky. 1937 ).

The constitutional limit on county and municipal indebtedness is mandatory, not a mere restriction upon the Legislature’s power, and leaves no discretion to legislators, judges or administrative officials. Payne v. Covington, 276 Ky. 380 , 123 S.W.2d 1045, 1938 Ky. LEXIS 549 ( Ky. 1938 ).

This section and Const., § 158 are self-executing, and require no legislation to give them effect. Payne v. Covington, 276 Ky. 380 , 123 S.W.2d 1045, 1938 Ky. LEXIS 549 ( Ky. 1938 ).

This section and Const., § 158 must be read together. Payne v. Covington, 276 Ky. 380 , 123 S.W.2d 1045, 1938 Ky. LEXIS 549 ( Ky. 1938 ).

This section should be strictly interpreted to effectuate obvious and salutary purposes intended. Miles v. Lee, 284 Ky. 39 , 143 S.W.2d 843, 1940 Ky. LEXIS 436 ( Ky. 1940 ).

Road and bridge bonds must be issued under this section or the provisions of Const., § 157A. Defoe v. Perry County, 293 Ky. 487 , 169 S.W.2d 309, 1943 Ky. LEXIS 647 ( Ky. 1943 ).

The tax limits of this section are absolute and to no extent modified by the provisions of Const., §§ 158 and 159. Rea v. Gallatin County Fiscal Court, 422 S.W.2d 134, 1967 Ky. LEXIS 38 ( Ky. 1967 ).

The Legislature may constitutionally fix city tax rate limits below the maximums specified in this section. Ashland v. Webb, 470 S.W.2d 604, 1971 Ky. LEXIS 279 ( Ky. 1971 ).

4.Application.

The limitation of indebtedness applies to common school districts. Perry v. Brown, 51 S.W. 457, 21 Ky. L. Rptr. 344 (1899).

The debt limit provisions of this section limit the power of the municipality only, and not the power of the General Assembly in adjusting taxation. Covington & C. Bridge Co. v. Davison, 102 S.W. 339, 31 Ky. L. Rptr. 425 (1907).

An urban-county government is subject to the tax limitations imposed by this section upon cities having the same population, subject to such more restrictive statutory limitations as the General Assembly may see fit to impose. Jacobs v. Lexington-Fayette Urban County Government, 560 S.W.2d 10, 1977 Ky. LEXIS 564 ( Ky. 1977 ).

5.1994 Amendment.

Ballot question by which 1994 amendment was adopted was not misleading or inconsistent, but revealed the substance of the amendment, and was therefore constitutional and in compliance with KRS 120.280 . Chandler v. City of Winchester, 973 S.W.2d 78, 1998 Ky. App. LEXIS 63 (Ky. Ct. App. 1998).

6.Income and Revenue.

Fines and license fees are too uncertain to be estimated as part of a city’s yearly revenue. Overall v. Madisonville, 125 Ky. 684 , 102 S.W. 278, 31 Ky. L. Rptr. 278 , 1907 Ky. LEXIS 329 ( Ky. 1907 ), overruled, Payne v. Covington, 276 Ky. 380 , 123 S.W.2d 1045, 1938 Ky. LEXIS 549 ( Ky. 1938 ).

License taxes, where they have become stabilized, may be anticipated and the income therefrom estimated, in estimating the city’s income for the year. Premier Constr. Co. v. Kimmell, 230 Ky. 439 , 20 S.W.2d 77, 1929 Ky. LEXIS 111 ( Ky. 1929 ).

In anticipating revenue it would not render an assumed indebtedness invalid where license fees, fines, receipts from cemetery lots and miscellaneous receipts were included in the revenue estimate, even though such receipts are uncertain, where the total of such estimates would not have changed the results. Nourse v. Russellville, 265 Ky. 96 , 95 S.W.2d 1096, 1936 Ky. LEXIS 433 ( Ky. 1936 ).

In the conduct of fiscal affairs, a city may take into consideration fixed revenue that may be reasonably anticipated and, therefore, revenues from municipally owned utilities may be anticipated where net revenues from past years were known. Kockritz v. Henderson, 269 Ky. 334 , 107 S.W.2d 245, 1937 Ky. LEXIS 602 ( Ky. 1937 ).

In the estimation of revenues of previous years, it is error to include both delinquent taxes for a certain year and the amount that might have been collected if the maximum rate had been applied. Fulton County Fiscal Court v. Southern Bell Tel. & Tel. Co., 285 Ky. 17 , 146 S.W.2d 15, 1940 Ky. LEXIS 591 ( Ky. 1940 ).

This section is concerned only with such future revenues as can be exacted in the form of taxes. Skidmore v. Elizabethtown, 291 S.W.2d 3, 1956 Ky. LEXIS 352 ( Ky. 1956 ).

Under this section the phrase “income and revenue” refers to that which the particular taxing district has actually provided for in reasonable and good faith anticipation in collecting. Bell v. Board of Education, 343 S.W.2d 804, 1961 Ky. LEXIS 433 ( Ky. 1961 ).

7.Governmental Expenses.

The constitutional prohibition refers only to improvident contracts, voluntarily entered into by the county, and not to necessary expenses of government, and therefore a statute authorizing a guard to keep down mob violence is not unconstitutional. Hopkins County v. St. Bernard Coal Co., 114 Ky. 153 , 24 Ky. L. Rptr. 942 , 70 S.W. 289, 1902 Ky. LEXIS 142 ( Ky. 1902 ), overruled in part, Nelson County Fiscal Court v. McCrocklin, 175 Ky. 199 , 194 S.W. 323, 1917 Ky. LEXIS 316 ( Ky. 1917 ). See City of Louisville v. Gorley, 80 S.W. 203, 25 Ky. L. Rptr. 2174 (1904).

This section does not apply to contracts designed to maintain the public peace or protect the good name of the state. Hopkins County v. St. Bernard Coal Co., 114 Ky. 153 , 70 S.W. 289, 24 Ky. L. Rptr. 942 , 1902 Ky. LEXIS 142 ( Ky. 1902 ).

Expenses for essential governmental functions do not constitute an indebtedness within the meaning of this section. Russell County Fiscal Court v. Russell County, 246 Ky. 529 , 55 S.W.2d 337, 1932 Ky. LEXIS 779 ( Ky. 1932 ).

Fees and salaries for county officers are not within the limitation of this section. Breathitt County v. Cockrell, 250 Ky. 743 , 63 S.W.2d 920, 1933 Ky. LEXIS 764 ( Ky. 1933 ).

This section applies to contract indebtedness and not to necessary governmental expenses and, therefore, bonds executed for a sewer system were valid even though the total obligation created by the bond was in excess of the year’s revenue. Francis v. Bowling Green, 259 Ky. 525 , 82 S.W.2d 804, 1935 Ky. LEXIS 351 ( Ky. 1935 ).

The expense of services of official court stenographer is a governmental expense, but stenographer could not compel fiscal court to levy tax in excess of constitutional limitation to pay warrants for services rendered in previous years. Landrum v. Ingram, 274 Ky. 736 , 120 S.W.2d 393, 1938 Ky. LEXIS 339 ( Ky. 1938 ).

The incurrence of debt for essential governmental purposes is valid, even though the debt limit fixed by this section is exceeded. Fulton County Fiscal Court v. Southern Bell Tel. & Tel. Co., 285 Ky. 17 , 146 S.W.2d 15, 1940 Ky. LEXIS 591 ( Ky. 1940 ).

Claims for county poor farm are necessary and indispensable governmental expenses. First Nat'l Bank v. Hays, 288 Ky. 297 , 156 S.W.2d 121, 1941 Ky. LEXIS 95 ( Ky. 1941 ).

Claims for pauper idiots’ support are necessary and indispensable governmental expenses. First Nat'l Bank v. Hays, 288 Ky. 297 , 156 S.W.2d 121, 1941 Ky. LEXIS 95 ( Ky. 1941 ).

Claims of county livestock inspector are necessary and indispensable governmental expenses. First Nat'l Bank v. Hays, 288 Ky. 297 , 156 S.W.2d 121, 1941 Ky. LEXIS 95 ( Ky. 1941 ).

Tax money obtained by the district board under KRS 107.310 to 107.500 as a county tax must be expended only for projects that constitute valid county purposes and any tax so levied must be counted under this section as part of the regular tax rate of the county. Lowery v. Jefferson, 458 S.W.2d 168, 1970 Ky. LEXIS 167 ( Ky. 1970 ).

8.School Purposes.

The tax rate provided for cities and towns of less than 10,000 population applies to an indebtedness for school purposes as well as for strictly municipal purposes. Richmond v. Powell, 101 Ky. 7 , 27 S.W. 1, 16 Ky. L. Rptr. 174 , 1894 Ky. LEXIS 133 ( Ky. 1894 ).

The limitation on indebtedness in this section also applies to debts incurred for school purposes. Commonwealth v. Louisville & N. R. Co., 105 Ky. 206 , 48 S.W. 1092, 20 Ky. L. Rptr. 1127 , 1899 Ky. LEXIS 203 ( Ky. 1899 ).

The tax rates of this section do not place a limit on rates that may be levied for school purposes but the debt limit does include indebtedness for school purposes. Walsh v. Pineville, 152 Ky. 556 , 153 S.W. 1002, 1913 Ky. LEXIS 721 ( Ky. 1913 ).

The limitations imposed by this section have no application to the property tax voted for school purposes under authority of a valid election. Christopher v. Robinson, 164 Ky. 262 , 175 S.W. 387, 1915 Ky. LEXIS 368 ( Ky. 1915 ).

The provisions of this section fixing tax rates for other than school purposes were not intended as an exception to the debt limits of Const., § 158, which limits no city, town, county, taxing district and municipality can exceed even for school purposes. Booth v. Board of Education, 229 Ky. 719 , 17 S.W.2d 1013, 1929 Ky. LEXIS 833 ( Ky. 1929 ).

There is no constitutional limitation on tax rates for school purposes. Bell v. Board of Education, 343 S.W.2d 804, 1961 Ky. LEXIS 433 ( Ky. 1961 ).

9.Determination of Population.

The methods used under Const., § 156 apply to ascertaining the population of cities under this section. O'Bryan v. Owensboro, 113 Ky. 680 , 68 S.W. 858, 69 S.W. 800, 24 Ky. L. Rptr. 469 , 24 Ky. L. Rptr. 645 , 1902 Ky. LEXIS 92 ( Ky. 1902 ), overruled, Nelson County Fiscal Court v. McCrocklin, 175 Ky. 199 , 194 S.W. 323, 1917 Ky. LEXIS 316 ( Ky. 1917 ).

A city council may itself ascertain that the city has more inhabitants than shown by the United States census and apply a tax rate justified by the actual population. Moss v. Frankfort, 231 Ky. 470 , 21 S.W.2d 813, 1929 Ky. LEXIS 304 ( Ky. 1929 ).

10.Indebtedness.

A city contract to pay water rent which was entered into prior to the adoption of the Constitution is an indebtedness within the meaning of this section. Mayfield Woolen Mills v. Mayfield, 111 Ky. 172 , 61 S.W. 43, 22 Ky. L. Rptr. 1676 , 1901 Ky. LEXIS 169 ( Ky. 1901 ).

The word “indebtedness,” as used in this section, refers to indebtedness created by contract, and the current expenses for the year are not to be counted as an existing debt. O'Bryan v. Owensboro, 113 Ky. 680 , 68 S.W. 858, 69 S.W. 800, 24 Ky. L. Rptr. 469 , 24 Ky. L. Rptr. 645 , 1902 Ky. LEXIS 92 ( Ky. 1902 ), overruled, Nelson County Fiscal Court v. McCrocklin, 175 Ky. 199 , 194 S.W. 323, 1917 Ky. LEXIS 316 ( Ky. 1917 ).

An indebtedness is a liability voluntarily incurred by a city by express contract and which it is bound to pay in money. Overall v. Madisonville, 125 Ky. 684 , 102 S.W. 278, 31 Ky. L. Rptr. 278 , 1907 Ky. LEXIS 329 ( Ky. 1907 ), overruled, Payne v. Covington, 276 Ky. 380 , 123 S.W.2d 1045, 1938 Ky. LEXIS 549 ( Ky. 1938 ).

A contract which provides for $3,000 a year payments for five (5) years creates an indebtedness. Board of Education v. Board of Trustees, 154 Ky. 309 , 157 S.W. 697, 1913 Ky. LEXIS 73 ( Ky. 1913 ).

The provision that the tax rate of cities shall not at any time exceed the rate of 75 cents on the value of taxable property therein in cities of less than 10,000 inhabitants was intended to protect municipal corporations from their own extravagance, and applies only to indebtedness created or attempted to be incurred by contract and not where the liability incurred is for a tort caused by or resulting from its own negligence. Menar v. Sanders, 169 Ky. 285 , 183 S.W. 949, 1916 Ky. LEXIS 704 , L.R.A. (n.s.) 1917E422 ( Ky. 1916 ), overruled in part, Nelson County Fiscal Court v. McCrocklin, 175 Ky. 199 , 194 S.W. 323, 1917 Ky. LEXIS 316 ( Ky. 1917 ). See Catlettsburg v. Davis' Adm'r, 262 Ky. 726 , 91 S.W.2d 56, 1936 Ky. LEXIS 99 ( Ky. 1936 ).

A contract requiring a city at the end of 25 years either to exercise a purchase option for a waterworks plant or to renew its lease for another 25 years created an indebtedness within the meaning of this section and Const., § 158. Benjamin v. Mayfield, 170 Ky. 446 , 186 S.W. 169, 1916 Ky. LEXIS 87 ( Ky. 1916 ).

The court’s appointment of a county agent and the appropriation of money to be used to pay the agent’s salary was the creation of an indebtedness within the meaning of this section. Carman v. Hickman County, 185 Ky. 630 , 215 S.W. 408, 1919 Ky. LEXIS 351 ( Ky. 1919 ).

The limitations of this section apply to indebtedness created by contract. Catlettsburg v. Fabric Fire Hose Co., 264 Ky. 594 , 95 S.W.2d 285, 1936 Ky. LEXIS 382 ( Ky. 1936 ).

Determination of validity of existing debts is inconclusive of county’s right to fund a particular debt. First Nat'l Bank v. Hays, 288 Ky. 297 , 156 S.W.2d 121, 1941 Ky. LEXIS 95 ( Ky. 1941 ).

The indebtedness referred to in this section means one created by contract or voluntarily incurred in such manner as would otherwise bind the municipality to pay and does not include a liability imposed by law for what is done without right or what is done negligently. Knepfle v. Morehead, 301 Ky. 417 , 192 S.W.2d 189, 1946 Ky. LEXIS 493 ( Ky. 1946 ).

The limitation on indebtedness that can be incurred in any one (1) year means that obligations cannot be entered into to be paid out of revenues to be collected after the termination of the fiscal year. Meyers v. Louisville, 310 Ky. 348 , 220 S.W.2d 852, 1949 Ky. LEXIS 923 ( Ky. 1949 ).

An obligation from which county cannot disengage itself without abandoning an unavoidable function of government is a debt within the meaning of this section. State Property & Bldg. Com. v. Hays, 346 S.W.2d 3, 1961 Ky. LEXIS 277 ( Ky. 1961 ).

An indebtedness authorized by the voters pursuant to this section is not subject to the limitations of KRS 132.010 . Raque v. Louisville, 402 S.W.2d 697, 1966 Ky. LEXIS 375 ( Ky. 1966 ).

When the public improvements finance board borrows money and pledges in payment thereof the annual appropriations for future years which the county is committed to make out of its general revenues, a debt has been created within the meaning of this section. Sawyer v. Jefferson County Fiscal Court, 438 S.W.2d 531, 1969 Ky. LEXIS 411 ( Ky. 1969 ).

The Tax Increment Act, KRS 99.750 to 99.770 (repealed), which permits various taxing districts to release increments expected to be derived by such districts as a result of the undertaking of a renewal or redevelopment project by an urban renewal community agency or authority to be used as a special fund for bond payments on the project is invalid since ad valorem taxes cannot be pledged as the source of bond payments under a special fund as such tax is a mandatory tax and any obligation that is payable from it is a debt within the meaning of this section. Miller v. Covington Development Auth., 539 S.W.2d 1, 1976 Ky. LEXIS 40 ( Ky. 1976 ).

Fiscal court did not violate this section by establishing a nonprofit corporation to float a bond issue to fund the repair of county roadways since, although the corporation would assume ownership of the roadways and lease them back to the fiscal court until the rental payments were sufficient to retire the bond issue, at which time the roads would be reconveyed to the county, the debt incurred was not a debt of the county or enforceable against it in any way. Hoskins v. Wilson, 778 S.W.2d 654, 1989 Ky. App. LEXIS 142 (Ky. Ct. App. 1989) (decided prior to 1994 amendment).

11.— When Created.

A city council resolution to employ engineers and accountants did not create an indebtedness until the employments provided for in the resolution were actually made. Louisville v. Parsons, 150 Ky. 420 , 150 S.W. 498, 1912 Ky. LEXIS 903 ( Ky. 1912 ).

An indebtedness is not created until the city has obtained the consent at an election of two thirds (2/3) of the voters voting on the question and has issued the bonds evidencing the debt. Barry v. New Haven, 162 Ky. 60 , 171 S.W. 1012, 1915 Ky. LEXIS 13 ( Ky. 1915 ).

A vote in favor of a road and bridge bond issue does not of itself create an indebtedness, as the debt is not incurred until the bonds are issued and sold, so that election as to incurring the indebtedness by the issuance of such bonds is not invalid merely because at the time of the election the debt limit would be exceeded, where it is not exceeded at the time of issuance and sale of the bonds. Young v. Fiscal Court of Trimble County, 190 Ky. 604 , 227 S.W. 1009, 1921 Ky. LEXIS 479 ( Ky. 1921 ).

12.— Old Debt Renewed.

This section does not prohibit a fiscal court from recalling outstanding bonds and issuing new bonds in lieu of the old bonds as provided in KRS 66.090 and 66.100 . Richmond Cemetery Co. v. Sullivan, 66 Ark. 646, 104 Ky. 723 , 47 S.W. 1079, 20 Ky. L. Rptr. 1028 , 1898 Ky. LEXIS 222 ( Ky. 1898 ).

The debt limit set by this section applies only to the creation of a new debt, and does not prevent the renewal of an existing debt without such a vote. Culbertson v. Louisville, 138 Ky. 747 , 128 S.W. 292, 1910 Ky. LEXIS 127 ( Ky. 1910 ).

13.— Not Debts.

The pledging of unappropriated funds by the city to guarantee payment of revenue bonds was not the creation of a debt against the city. Martin County v. Cassady, 307 Ky. 728 , 212 S.W.2d 281, 1948 Ky. LEXIS 823 ( Ky. 1948 ).

KRS 90.300 to 90.410 , and city ordinance passed thereunder, do not, in guaranteeing tenure and pension benefits to city employees, create a debt against the city in violation of this section. Henderson v. Thomy, 307 Ky. 783 , 212 S.W.2d 303, 1948 Ky. LEXIS 831 ( Ky. 1948 ).

Issuance of bonds by a county board of education was not the creation of a debt in violation of this section where anticipated tax revenues on which the anticipated tax revenues on which the school budget was based were reduced as a result of judicial decisions with respect to methods of computing assessed valuations of certain property. Bell v. Board of Education, 343 S.W.2d 804, 1961 Ky. LEXIS 433 ( Ky. 1961 ).

The creation of a library district does not permit an indebtedness of the taxing authority without a vote of the people within the prohibition of this section. Boggs v. Reep, 404 S.W.2d 24, 1966 Ky. LEXIS 286 ( Ky. 1966 ).

Since the commitment by the county to make the appropriations to the public improvements finance board does not, in and of itself, create a debt, there is no violation of this section in the mere statutory direction to the county to make the appropriations for public improvements, nor in the resolution of the fiscal court so doing. Sawyer v. Jefferson County Fiscal Court, 438 S.W.2d 531, 1969 Ky. LEXIS 411 ( Ky. 1969 ).

14.— Floating.

A fiscal court has no power to borrow money to pay a floating indebtedness which was void because the voters had never approved the incurring of such excess debts. Tarter v. Wesley, 200 Ky. 14 , 252 S.W. 109, 1923 Ky. LEXIS 6 ( Ky. 1923 ).

A county cannot expend all of its revenues on mere nongovernmental matters and then pass on its indispensable governmental obligations as a floating debt for future generations. Ballard v. Adair County, 268 Ky. 347 , 104 S.W.2d 1100, 1937 Ky. LEXIS 465 ( Ky. 1937 ).

The floating debt of a county or municipality may be funded without a vote of the people if the debts were valid and not in violation of this section and Const., § 158. Williams v. Taylor Count, 274 Ky. 217 , 118 S.W.2d 526, 1938 Ky. LEXIS 244 ( Ky. 1938 ).

City seeking approval of bonds issued to fund floating debt must show that debt was incurred for necessary governmental expenses and that no particular debt, other than for necessary governmental expenses, when added to the other debts of the city, exceeded the limitations of this section. Henderson v. Mt. Vernon, 279 Ky. 829 , 132 S.W.2d 322, 1939 Ky. LEXIS 359 ( Ky. 1939 ).

The city cannot issue bonds to cover that portion of the floating indebtedness incurred for other than necessary governmental expenditures, incurred after January 16, 1939, the effective date of Payne v. Covington, 276 Ky. 380 , 123 S.W.2d 1045, 1938 Ky. LEXIS 549 , 122 A.L.R. 321 ( Ky. 1938 ), notwithstanding the fact that during the prior years in which the expenditures exceeded its actual resources, it might lawfully have created a much larger indebtedness. Chestnut v. Bowling Green, 285 Ky. 800 , 149 S.W.2d 523, 1941 Ky. LEXIS 469 ( Ky. 1941 ).

15.— Created Before Constitution.

Where a statute passed prior to the Constitution allowed a city to incur a certain type of debt, the city may continue to do so even after the adoption of the Constitution or until such time as the Legislature shall again act. Lexington's Appeal, 96 Ky. 258 , 28 S.W. 665, 16 Ky. L. Rptr. 467 , 1894 Ky. LEXIS 124 (Ky. Ct. App. 1894).

This section does not forbid an indebtedness to be incurred where all the necessary steps had been taken pursuant to a statute and prior to the adoption of the Constitution. Ludlow v. Board of Education, 29 S.W. 854, 16 Ky. L. Rptr. 805 (1895).

This section does not apply to an indebtedness for public improvements authorized prior to the adoption of the Constitution by the Legislature where subsequent to the Constitution another act authorized the issuance of bonds to pay for improvements allowed by the first act. Warren v. Newport, 64 S.W. 852, 23 Ky. L. Rptr. 1006 , 1901 Ky. LEXIS 623 (Ky. Ct. App. 1901).

The tax limits of this section are not applicable where an excess tax levy was made in order to obtain money to pay a debt which was validly incurred under a statute in effect prior to the adoption of the present Constitution. Bank of Columbia v. Taylor County, 112 Ky. 243 , 65 S.W. 451, 23 Ky. L. Rptr. 1483 , 1901 Ky. LEXIS 304 ( Ky. 1901 ).

A county may issue bonds to pay a debt incurred prior to the adoption of the present Constitution without submitting the issue to the voters. Hawkins v. Nicholas County, 89 S.W. 484, 28 Ky. L. Rptr. 479 (1905).

This section does not prevent compliance with a valid contract which was entered into before the adoption of the Constitution. Slade v. Lexington, 141 Ky. 214 , 132 S.W. 404, 1910 Ky. LEXIS 430 ( Ky. 1910 ).

Where a city was under a contractual obligation when the Constitution was adopted, it may issue bonds to take care of the obligation. Benjamin v. Mayfield, 170 Ky. 446 , 186 S.W. 169, 1916 Ky. LEXIS 87 ( Ky. 1916 ).

A city may issue bonds to discharge a debt incurred prior to the adoption of the Constitution without submitting the issue to the electorate so long as the debt does not exceed the principal of all debts acquired before the Constitution or require a tax levy in excess of the limits of this section. Phipps v. Mayfield, 194 Ky. 130 , 238 S.W. 195, 1922 Ky. LEXIS 113 ( Ky. 1922 ).

A bond issue to refund an indebtedness incurred prior to the adoption of the present Constitution is valid though the amount surpasses the limits of Const., § 158 and was not authorized by the voters as prescribed in this section. Rice v. Pineville, 207 Ky. 530 , 269 S.W. 719, 1925 Ky. LEXIS 129 ( Ky. 1925 ).

The limits in this section do not preclude a tax levy to pay the interest on and provide a sinking fund for the payment of an indebtedness contracted before the adoption of the Constitution. Frank v. Fuss, 235 Ky. 143 , 29 S.W.2d 603, 1930 Ky. LEXIS 300 ( Ky. 1930 ).

16.— Subsequent Illegal Debts.

Where debts were created in 1903 and 1904 and could have been paid in those years had the sheriff not defaulted, those debts may be paid at a later time because if those debts did not exceed the income from those years, then no subsequent occurrence can render them void. Lawrence County v. Lawrence Fiscal Court, 130 Ky. 587 , 113 S.W. 824, 1908 Ky. LEXIS 302 ( Ky. 1908 ).

County warrants which were presumably issued before the fiscal court excluded the debt limitations are valid. Geveden v. Fiscal Court of Carlisle County, 263 Ky. 465 , 92 S.W.2d 746, 1936 Ky. LEXIS 190 ( Ky. 1936 ).

If a debt is valid when created, it cannot be invalidated by subsequent illegal expenditures. Penrod v. Sturgis, 269 Ky. 315 , 107 S.W.2d 277, 1937 Ky. LEXIS 608 ( Ky. 1937 ).

Fact that aggregate amount of warrants issued over a period of three (3) years exceeded revenues for those years did not establish invalidity of any particular warrant; to show that any particular warrant was invalid, it was necessary to plead and prove that anticipated revenue was exceeded at time warrant was issued and, if warrant was valid when issued, subsequent issuance and payment of their obligations exceeding revenues would not render valid warrant invalid. Jackson v. First Nat'l Bank, 289 Ky. 1 , 157 S.W.2d 321, 1941 Ky. LEXIS 10 ( Ky. 1 941).

Debts of municipalities constitute valid and binding obligations if, at the time they were made, they were legal. Winchester v. Winchester Bank, 306 Ky. 45 , 205 S.W.2d 997, 1947 Ky. LEXIS 928 ( Ky. 1947 ).

Where the governing body of a city assumes an obligation and executes notes therefore and, at the time the notes are executed, they do not cause the city’s anticipated income provided for the year to be exceeded, the notes are valid under this section, even though subsequent expenditures of the city for the year actually exceed the income collected. Winchester v. Winchester Bank, 306 Ky. 45 , 205 S.W.2d 997, 1947 Ky. LEXIS 928 ( Ky. 1947 ).

17.— Partial Invalidity.

When an indebtedness is in excess of constitutional limits, only the excess will be void. McKinney v. Board of Trustees, 144 Ky. 85 , 137 S.W. 839, 1911 Ky. LEXIS 555 ( Ky. 1911 ).

In an election approving bond issues for several purposes, where some of the debts were invalid, the election was still valid as to the other debts involved. Snow v. Providence, 202 Ky. 627 , 260 S.W. 389, 1924 Ky. LEXIS 770 ( Ky. 1924 ).

18.— Estimation of Amount.

In order to ascertain whether a county has incurred debt in any year beyond its income for that year, it is necessary to know the tax levy for that year as well as the value of taxable property and the amount of total indebtedness. Maysville & L. Turnpike Road Co. v. Wiggins, 104 Ky. 540 , 47 S.W. 434, 20 Ky. L. Rptr. 724 , 1898 Ky. LEXIS 189 ( Ky. 1898 ).

Under this section it is the amount of tax that may be levied which must be considered in determining whether there is an excess indebtedness, and a city may not levy a lesser amount in order to defeat the collection of a debt. Providence v. Providence Electric Light Co., 122 Ky. 237 , 91 S.W. 664, 28 Ky. L. Rptr. 1015 , 1906 Ky. LEXIS 36 ( Ky. 1906 ), overruled, Payne v. Covington, 276 Ky. 380 , 123 S.W.2d 1045, 1938 Ky. LEXIS 549 ( Ky. 1938 ).

Current expenses are to be included in the estimates of indebtedness under the limitations of this section. Winchester v. Nelson, 175 Ky. 63 , 193 S.W. 1040, 1917 Ky. LEXIS 287 ( Ky. 1917 ).

In estimating total indebtedness of a county for the purpose of tax levy, current expenses must be included but it must appear that such current expenses consist of salaries and other charges necessary to the maintenance of the county government or arose out of binding obligations incurred prior to the creation of the debt in question. Carter v. Krueger & Son, 175 Ky. 399 , 194 S.W. 553, 1917 Ky. LEXIS 346 ( Ky. 1917 ), overruled, Payne v. Covington, 276 Ky. 380 , 123 S.W.2d 1045, 1938 Ky. LEXIS 549 ( Ky. 1938 ).

In determining the amount of annual indebtedness, an indebtedness created pursuant to a vote of the people is not to be considered and only the sum necessary to pay annual expenses, the annual interest and the annual sum necessary to create a sinking fund sufficient to discharge the indebtedness shall be considered. Ballard v. Shelbyville, 180 Ky. 135 , 201 S.W. 452, 1918 Ky. LEXIS 4 ( Ky. 1918 ).

A debt which was invalidly incurred may not be considered in arriving at a conclusion as to the amount of additional debt which a county is authorized to incur. Hogan v. Lee Fiscal Court, 235 Ky. 100 , 29 S.W.2d 611, 1930 Ky. LEXIS 301 ( Ky. 1930 ).

In determining whether nongovernmental expense will exceed this section’s limitation on county indebtedness, valid floating indebtedness of county must be added to necessary governmental expense for the year, and if these items equal or exceed revenue for the year, an indebtedness for a purpose not governmental cannot thereafter be incurred. Jackson County v. Madden, 271 Ky. 535 , 112 S.W.2d 986, 1938 Ky. LEXIS 20 ( Ky. 1938 ).

The validity of a note of a board of education given in exchange for warrants previously issued must be determined by the financial status of the school district when the original indebtedness was created. Citizens Bank v. Rowan County Board of Education, 274 Ky. 481 , 118 S.W.2d 704, 1938 Ky. LEXIS 266 ( Ky. 1938 ).

A debt created pursuant to a vote of the people is not to be considered in the comparison of a city’s annual indebtedness with its annual income if the debt so created would otherwise increase the total indebtedness beyond the maximum limit. Fulton County Fiscal Court v. Southern Bell Tel. & Tel. Co., 285 Ky. 17 , 146 S.W.2d 15, 1940 Ky. LEXIS 591 ( Ky. 1940 ).

An estimate of indebtedness permissible under this question must include current expenses for the current year. Fulton County Fiscal Court v. Southern Bell Tel. & Tel. Co., 285 Ky. 17 , 146 S.W.2d 15, 1940 Ky. LEXIS 591 ( Ky. 1940 ).

19.— — Debts of School Boards.

Where a board of education was authorized by statute to issue bonds and hold an election for approval, the indebtedness is that of the board alone and the debt of the city is not considered in determining when the limits of this section are reached. Rogan v. Board of Education, 192 Ky. 770 , 234 S.W. 443, 1921 Ky. LEXIS 152 ( Ky. 1921 ).

The outstanding indebtedness of a municipality may not be taken into consideration in determining whether a graded school district has reached the constitutional limitation on indebtedness. Fall v. Read, 194 Ky. 135 , 238 S.W. 177, 1922 Ky. LEXIS 105 ( Ky. 1922 ). See Dayton v. Board of Education, 201 Ky. 566 , 257 S.W. 1021, 1923 Ky. LEXIS 345 ( Ky. 1923 ).

An indebtedness of a municipality is not to be taken into account in estimating the indebtedness of a school board of the district which covers the same territory. Dayton v. Board of Education, 201 Ky. 566 , 257 S.W. 1021, 1923 Ky. LEXIS 345 ( Ky. 1923 ).

20.— — Amount of Levy.

Income and revenue refer to the revenue actually levied and not the maximum levy that could have been made and, therefore, a taxing unit may not lawfully incur debts in excess of the revenues actually levied for the current year. Payne v. Covington, 276 Ky. 380 , 123 S.W.2d 1045, 1938 Ky. LEXIS 549 ( Ky. 1938 ); Overall v. Madisonville, 125 Ky. 684 , 102 S.W. 278, 31 Ky. L. Rptr. 278 , 1907 Ky. LEXIS 329 ( Ky. 1907 ), overruled, Payne v. Covington, 276 Ky. 380 , 123 S.W.2d 1045, 1938 Ky. LEXIS 549 ( Ky. 1938 ); Carter v. Krueger & Son, 175 Ky. 399 , 194 S.W. 553, 1917 Ky. LEXIS 346 ( Ky. 1917 ), overruled, Payne v. Covington, 276 Ky. 380, 123 S.W.2d 1045, 1938 Ky. LEXIS 549 (Ky. 1938); Vaughn v. Corbin, 217 Ky. 521 , 289 S.W. 1104, 1927 Ky. LEXIS 4 ( Ky. 1927 ); Frank v. Fuss, 235 Ky. 143 , 29 S.W.2d 603, 1930 Ky. LEXIS 300 ( Ky. 1930 ); Stratton v. Jessamine County, 257 Ky. 302 , 77 S.W.2d 955, 1934 Ky. LEXIS 555 ( Ky. 1934 ); Harrison v. Roberts, 264 Ky. 62 , 94 S.W.2d 296, 1936 Ky. LEXIS 277 ( Ky. 1936 ); Hill v. Covington, 264 Ky. 618 , 95 S.W.2d 278, 1936 Ky. LEXIS 380 ( Ky. 1936 ); Nourse v. Russellville, 265 Ky. 96 , 95 S.W.2d 1096, 1936 Ky. LEXIS 4 33 (Ky. 1936).

In determining the validity of an indebtedness incurred prior to the decision in Payne v. Covington (1938), 276 Ky. 380 , 123 S.W.2d 1045, 1938 Ky. LEXIS 549 , 122 A.L.R. 321, it is permissible to assess the revenue which would have been raised had the maximum tax rate been imposed Payne v. Covington, 283 Ky. 848 , 143 S.W.2d 727, 1940 Ky. LEXIS 427 ( Ky. 1940 ).

Any indebtedness incurred in any year in excess of the amount actually derived from the tax imposed, rather than the amount which the city or other taxing district might have collected if it had levied the maximum tax, is invalid. Chestnut v. Bowling Green, 285 Ky. 800 , 149 S.W.2d 523, 1941 Ky. LEXIS 469 ( Ky. 1941 ).

21.— Anticipated Revenue.

Borrowing immediate and necessary funds in anticipation of future collection of revenue for the current fiscal year is not the creation of such an indebtedness as is inhibited by this section. Waddle v. Somerset, 281 Ky. 30 , 134 S.W.2d 956, 1939 Ky. LEXIS 4 ( Ky. 1939 ).

City of fourth class has right to borrow money in anticipation of current revenues. Jackson v. First Nat'l Bank, 289 Ky. 1 , 157 S.W.2d 321, 1941 Ky. LEXIS 10 ( Ky. 1 941).

Fact that warrants were payable in a future year did not invalidate them if anticipated revenue of year in which they were issued was not exceeded by their issuance. Jackson v. First Nat'l Bank, 289 Ky. 1 , 157 S.W.2d 321, 1941 Ky. LEXIS 10 ( Ky. 1 941).

22.— Uncollected Revenue.

A city may borrow against an occupational tax collected by employers even though the money is not received by the city until after the fiscal year, because when the employer collects the tax during the fiscal year the funds are constructively received by the city at the time the employers collect the taxes. Meyers v. Louisville, 310 Ky. 348 , 220 S.W.2d 852, 1949 Ky. LEXIS 923 ( Ky. 1949 ).

The fiscal court could pledge tax funds which had already accrued but had not been collected. Caywood v. Stivers, 430 S.W.2d 327, 1968 Ky. LEXIS 398 ( Ky. 1968 ).

23.— Annexed or Merged Entities.

A county cannot assume the liability of a road district without popular consent. Carpenter v. Central Covington, 119 Ky. 785 , 81 S.W. 919, 26 Ky. L. Rptr. 430 , 1904 Ky. LEXIS 130 ( Ky. 1904 ).

A city, as authorized by statute, acquiring the stock of a water company which had incurred an indebtedness and had issued bonds therefor, can issue bonds to refund the indebtedness of the company without submitting the proposition to the voters of the city. Gaulbert v. Louisville, 97 S.W. 342, 30 Ky. L. Rptr. 50 (1906).

A county school board would not be permitted to assume the debts of another school district which it had absorbed, assuming such debt would create a total indebtedness in excess of the income for that year. Owsley County Board of Education v. Owsley County Fiscal Court, 251 Ky. 165 , 64 S.W.2d 179, 1933 Ky. LEXIS 797 ( Ky. 1933 ).

Where an annexing city assumes the debts of an annexed city, an illegal indebtedness is not created where the debts of the annexed city were validly created because only the amount of interest and the sinking fund need be considered and this does not bring the debt within the prohibitions of this section. Matz v. Newport, 265 Ky. 126 , 95 S.W.2d 1071, 1936 Ky. LEXIS 422 ( Ky. 1936 ).

This section does not relieve a county school board from liability for a judgment against an independent school district which had been merged with the county district by order of the state board of education. Board of Education v. Nelson, 268 Ky. 83 , 103 S.W.2d 691, 1937 Ky. LEXIS 413 ( Ky. 1937 ).

A county board of education could be liable for the debts of an independent school district when the district was merged and issue bonds to satisfy the indebtedness, since it was a debt which the board did not voluntarily incur. Bales v. Holt, 270 Ky. 272 , 109 S.W.2d 632, 1937 Ky. LEXIS 68 ( Ky. 1937 ).

If the question of incurring an indebtedness and issuing general obligation bonds had been submitted to the voters in accordance with this section and had received the required two-thirds (2/3) vote in favor, then property in the district at the time the vote was taken would remain liable for the tax required to pay the indebtedness, regardless of the transfer of the property to another school district. Board of Education v. Board of Education, 250 S.W.2d 1017, 1952 Ky. LEXIS 897 ( Ky. 1952 ).

24.— Approval of Voters.

The constitutional provision prohibiting a city from incurring any indebtedness beyond a certain limit, unless authorized by a two-thirds (2/3) vote at a special election, does not require such an election where for any reason the proposed indebtedness is not within the prohibition. Ashland Waterworks Co. v. Ashland, 251 F. 492, 1918 U.S. App. LEXIS 1721 (6th Cir. Ky. 1918 ).

A statute enacted prior to the adoption of the Constitution and providing for the creation of indebtedness in acquiring and maintaining turnpikes is subject to the two-thirds (2/3) approval of voters requirement of this section. O'Mahoney v. Bullock, 97 Ky. 774 , 31 S.W. 878, 17 Ky. L. Rptr. 523 , 1895 Ky. LEXIS 242 ( Ky. 1895 ).

The question of whether to incur an indebtedness must be submitted to the voters at a regular election. Ashland v. Culbertson, 103 Ky. 161 , 44 S.W. 441, 19 Ky. L. Rptr. 1812 , 1898 Ky. LEXIS 41 ( Ky. 1898 ), overruled, Weil, Roth & Co. v. Paris, 176 Ky. 841 , 197 S.W. 461, 1917 Ky. LEXIS 130 ( Ky. 1917 ).

Even where, under Const., § 158, a city may exceed its revenues to meet an emergency, the proposed indebtedness must still be approved by the voters as required by this section. Knipper v. Covington, 109 Ky. 187 , 58 S.W. 498, 22 Ky. L. Rptr. 676 , 1900 Ky. LEXIS 171 ( Ky. 1900 ).

In submitting the question of a bond issue to the voters, it is not necessary that the terms of the bonds to be issued and the rate of interest be given. McGinnis v. Bardstown Graded School Dist., 108 S.W. 289, 32 Ky. L. Rptr. 1289 (1908).

A city of the second class may order an election to obtain voter approval for a proposed indebtedness for the construction of sewers. Bain v. Lexington, 121 S.W. 620 ( Ky. 1909 ).

The submission to the voters of a county of the question whether they were in favor of an appropriation of $75,000 for building a new courthouse was sufficient to authorize the issuance of bonds by the county. Logan v. Gilbert, 151 Ky. 659 , 152 S.W. 778, 1913 Ky. LEXIS 553 ( Ky. 1913 ).

The requirement of ratification by a two-thirds (2/3) vote in this section does not apply to debts incurred for road construction under Const., § 157a. Gatton v. Fiscal Court of Daviess County, 169 Ky. 425 , 184 S.W. 1, 1916 Ky. LEXIS 705 ( Ky. 1916 ).

An indebtedness approved by the voters is valid even though the debt is greater than could be satisfied from the year’s revenue. Samuels v. Clinton, 184 Ky. 97 , 211 S.W. 567, 1919 Ky. LEXIS 41 ( Ky. 1919 ).

Where there is no suggestion that a proposed bond issue would result in an excess indebtedness, there is no reason to submit the question of whether the city should be allowed to exceed its current income to the voters. Hunter v. Louisville, 208 Ky. 326 , 270 S.W. 841, 1925 Ky. LEXIS 280 ( Ky. 1925 ).

Under this section county school district has no right to anticipate more than one (1) year’s taxes at a time without a two-thirds (2/3) vote of the people. Board of Education v. Board of Education, 250 S.W.2d 1017, 1952 Ky. LEXIS 897 ( Ky. 1952 ).

25.— — Two-thirds Vote.

A prospective indebtedness may be approved by two-thirds (2/3) of the voters voting on the question and it is not necessary to have the assent of two thirds (2/3) of the electorates or two-thirds (2/3) who vote for the candidates in the election. Montgomery County Fiscal Court v. Trimble, 104 Ky. 629 , 47 S.W. 773, 20 Ky. L. Rptr. 827 , 1898 Ky. LEXIS 210 ( Ky. 1898 ); Owensboro v. Baker, 37 S.W. 1129, 18 Ky. L. Rptr. 324 (1896), overruled, Montgomery County Fiscal Court v. Trimble, 104 Ky. 629 , 47 S.W. 773, 20 Ky. L. Rptr. 827 , 1898 Ky. LEXIS 210 ( Ky. 1898 ); McGoodwin v. Franklin, 38 S.W. 481, 18 Ky. L. Rptr. 752 (1896), overruled, Montgomery County Fiscal Court v. Trimble, 104 Ky. 629, 47 S.W. 773, 20 Ky. L. Rptr. 827, 1898 Ky. LEXIS 210 (Ky. 1898). See Worthington v. Board of Education, 71 S.W. 879, 24 Ky. L. Rptr. 1510 (1903); Board of Education v. Winchester, 120 Ky. 591 , 87 S.W. 768, 27 Ky. L. Rptr. 994 , 1905 Ky. LEXIS 139 ( Ky. 1905 ); Kentucky Light & Power Co. v. James H. Williams & Co., 124 S.W. 840, 1910 Ky. LEXIS 696 ( Ky. 1910 ); Iglehart v. Dawson Springs, 143 Ky. 140 , 136 S.W. 210, 1911 Ky. LEXIS 376 ( Ky. 1911 ); Logan v. Gilbert, 151 Ky. 659 , 152 S.W. 778, 1913 Ky. LEXIS 553 ( Ky. 1913 ); Fowler v. Oakdale, 158 Ky. 603 , 166 S.W. 195, 1914 Ky. LEXIS 687 ( Ky. 1914 ).

The two-thirds (2/3) vote requirement of this section refers to two-thirds (2/3) of the votes actually cast on the issue. Frost v. Central City, 134 Ky. 434 , 120 S.W. 367, 1909 Ky. LEXIS 396 ( Ky. 1909 ), overruled, Board of Education v. Corbin, 301 Ky. 686 , 192 S.W.2d 951, 1946 Ky. LEXIS 544 ( Ky. 1946 ).

The two-thirds (2/3) vote requirement refers to two-thirds (2/3) of those voting on the issue and not two-thirds (2/3) of all qualified voters. Marion v. Haynes, 157 Ky. 687 , 164 S.W. 79, 1914 Ky. LEXIS 373 ( Ky. 1914 ).

The election provision of this section refers to assent by two-thirds (2/3) of those who do not vote in the election and not to two-thirds (2/3) of all voters in the area. Bowman v. Fayette County, 168 Ky. 524 , 182 S.W. 633, 1916 Ky. LEXIS 587 ( Ky. 1916 ).

Where the territory of a city was organized into two (2) separate free graded public school districts, one for white and one for colored children, and the proposition to incur indebtedness for school building for colored school district, to be paid by taxation on the property of the colored people only, was submitted to the colored voters and adopted, there was compliance with this section. Moss v. Mayfield, 186 Ky. 330 , 216 S.W. 842, 1919 Ky. LEXIS 218 ( Ky. 1919 ).

Where the bond issues were approved by more than two-thirds (2/3) of those voting on the question, this is all that is necessary to meet the requirement of this section. Wilkerson v. Lexington, 188 Ky. 381 , 222 S.W. 74, 1920 Ky. LEXIS 290 ( Ky. 1920 ).

26.— — Time of Election.

An election under this section must be held on the first Tuesday after the first Monday in November as provided by Const., § 148. Murray v. Irvan, 170 Ky. 290 , 185 S.W. 859, 1916 Ky. LEXIS 43 ( Ky. 1916 ).

A special levy approved at an election held on a day other than the regular election day is invalid. Rockcastle County v. Louisville & N. R. Co., 232 Ky. 439 , 23 S.W.2d 276, 1929 Ky. LEXIS 447 ( Ky. 1929 ).

27.— — Effect of Vote.

Where the voters approved a free-turnpike system which involved the purchase or condemnation of roads, this vote necessarily was a vote in favor of incurring the necessary indebtedness. Whaley v. Commonwealth, 110 Ky. 154 , 61 S.W. 35, 23 Ky. L. Rptr. 1292 , 1901 Ky. LEXIS 73 ( Ky. 1901 ). See Maysville & L. Turnpike Road Co. v. Wiggins, 104 Ky. 540 , 47 S.W. 434, 20 Ky. L. Rptr. 724 , 1898 Ky. LEXIS 189 ( Ky. 1898 ).

A vote to incur indebtedness and a vote to issue bonds to meet the debt are not necessarily the same thing and two thirds (2/3) of the voters may approve the bond issue. Bardstown & L. Turnpike Co. v. Nelson County, 117 Ky. 674 , 78 S.W. 851, 25 Ky. L. Rptr. 1900 , 1904 Ky. LEXIS 229 ( Ky. 1904 ).

28.— — Tax Rate.

A city of the fourth class, free from debt and with $1,350,954 taxable property, may contract an indebtedness of $60,750, payable in annual instalments of $4,500, where two-thirds (2/3) of the city voters assent thereto, and the tax levy, in order to meet the interest and provide a sinking fund for the principal, need but slightly exceed 25 cents per $100 of taxable property. Shelbyville v. Shelbyville Water & Light Co., 27 S.W. 85, 16 Ky. L. Rptr. 176 (1894).

Subject to the provisions of Const., § 158, a county may exceed the 50-cent levy for the purpose of providing a sinking fund to meet bonds voted by the people pursuant to this section. Carter v. Krueger & Son, 175 Ky. 399 , 194 S.W. 553, 1917 Ky. LEXIS 346 ( Ky. 1917 ), overruled, Payne v. Covington, 276 Ky. 380 , 123 S.W.2d 1045, 1938 Ky. LEXIS 549 ( Ky. 1938 ).

Where an indebtedness was incurred with the consent of the electorate, the rate of taxation in this section does not apply where it was necessary for the city to exceed the rate in order to discharge the debt and the only limits that apply to this sort of debt are those of Const., § 158. Nall v. Elizabethtown, 200 Ky. 321 , 254 S.W. 893, 1923 Ky. LEXIS 64 ( Ky. 1923 ).

A tax in excess of the limitation of this section may be authorized in an election as long as the debt refunded was within the limitations of Const., § 158. Wheeler v. Hopkinsville, 269 Ky. 289 , 106 S.W.2d 1016, 1937 Ky. LEXIS 594 ( Ky. 1937 ).

Where voters authorized a bond issue with the provision that the tax levied should not exceed the limits of this section, no tax could be levied in excess of the limit without another vote. Hopkinsville v. Wheeler, 269 Ky. 291 , 269 Ky. 292 , 106 S.W.2d 1017, 1937 Ky. LEXIS 595 , 1937 Ky. App. LEXIS 595 ( Ky. 1937 ).

Where voters authorized a bond issue with the provision that the tax should not exceed the constitutional limitation, the city could not, without another vote, fix a higher rate on excess of the limit. Hopkinsville v. Wheeler, 269 Ky. 291 , 269 Ky. 292 , 106 S.W.2d 1017, 1937 Ky. LEXIS 595 , 1937 Ky. App. LEXIS 595 ( Ky. 1937 ).

In order to pay off a debt created or assumed by a vote of the people, the county or other taxing district may levy a special tax in addition the maximum rate prescribed by this section. Fulton County Fiscal Court v. Southern Bell Tel. & Tel. Co., 285 Ky. 17 , 146 S.W.2d 15, 1940 Ky. LEXIS 591 ( Ky. 1940 ).

Although KRS 107.310 to 107.500 does not validly provide for the establishment of a separate, independent taxing district, the district board may be established and function under the terms of the act as a corporate arm of the county government, with the tax, upon voter approval of projects, being levied as a county tax. Lowery v. Jefferson, 458 S.W.2d 168, 1970 Ky. LEXIS 167 ( Ky. 1970 ).

29.— Revenue Bonds.

The issuance of revenue-producing bonds under KRS ch. 58 is not violative of this section or Const., § 158. Davis v. Water-Sewer & Sanitation Com., 223 F. Supp. 902, 1963 U.S. Dist. LEXIS 6540 (W.D. Ky.), aff'd, Davis v. Bowling Green, 375 U.S. 43, 84 S. Ct. 149, 11 L. Ed. 2d 107, 1963 U.S. LEXIS 391 (U.S. 1963).

Bonds for the construction of a waterworks plant which are to be paid from the revenue from the plant do not constitute an indebtedness within the meaning of this section. Bowling Green v. Kirby, 220 Ky. 839 , 295 S.W. 1004, 1927 Ky. LEXIS 603 ( Ky. 1927 ).

A statute authorizing cities to issue bonds for the building of bridges was not a violation of this section or Const., § 158 where the bonds were to be paid solely from tolls and revenues of the bridges. Klein v. Louisville, 224 Ky. 624 , 6 S.W.2d 1104, 1928 Ky. LEXIS 663 ( Ky. 1928 ).

A city’s lease of machinery with a purchase option was valid where the payments for the machinery were to come from the revenue of the plant in which the machinery was used. Jones v. Corbin, 227 Ky. 674 , 13 S.W.2d 1013, 1929 Ky. LEXIS 945 ( Ky. 1929 ).

Waterworks bonds which are to be paid solely from the income from the waterworks are not an indebtedness of the city within the provisions of this section. Kentucky Utilities Co. v. Paris, 248 Ky. 252 , 58 S.W.2d 361, 1933 Ky. LEXIS 195 ( Ky. 1933 ). See Juett v. Williamstown, 248 Ky. 235 , 58 S.W.2d 411, 1933 Ky. LEXIS 218 ( Ky. 1933 ).

A bond issue by a city to be paid solely out of a fixed portion of the revenue from a municipally owned electric light plant will not constitute an indebtedness within the meaning of this section. Security Trust Co. v. Paris, 264 Ky. 846 , 95 S.W.2d 781, 1936 Ky. LEXIS 408 ( Ky. 1936 ).

Bonds for the construction of a hospital which were to be paid solely from rental to be received by the county from leasing the hospital were not an indebtedness within the meaning of this section. State Bank & Trust Co. v. Madison County, 275 Ky. 501 , 122 S.W.2d 99, 1938 Ky. LEXIS 455 ( Ky. 1938 ).

City of third class purchasing combined water and electric system had power, without popular vote, to issue bonds payable solely from revenues, and constituting a lien only on revenues, such bonds not constituting a debt of the city. Cawood v. Coleman, 294 Ky. 858 , 172 S.W.2d 548, 1943 Ky. LEXIS 515 ( Ky. 1943 ).

This section has no controlling force where interest payments and liquidation of bonds issued for the purpose of equipping an already acquired airfield must be met solely by revenues derived from operation of the field. Droege v. Kenton County Fiscal Court, 300 Ky. 186 , 188 S.W.2d 320, 1945 Ky. LEXIS 518 ( Ky. 1945 ).

Metropolitan sewer district law, KRS 76.010 to 76.210 , did not violate this section on ground that obligations of district would become obligations of city, thus causing debt limitations to be exceeded, in view of express provision of the law that obligations of district should not constitute obligations of the city, that debts were to be paid from district sewer revenues, and in view of fact that district was made a separate municipality independent of the city. Veail v. Louisville & Jefferson County Metropolitan Sewer Dist., 303 Ky. 248 , 197 S.W.2d 413, 1946 Ky. LEXIS 830 ( Ky. 1946 ).

Bonds issued for public projects which were to be paid from the revenues derived from the project did not constitute a debt against the city. Dunn v. Murray, 306 Ky. 426 , 208 S.W.2d 309, 1948 Ky. LEXIS 578 ( Ky. 1948 ).

Revenue bonds for county jail, issued pursuant to KRS 103.290 to 103.410 (repealed) and to be paid out of yearly rentals paid by county for each year it elected to use the jail, did not constitute a debt in violation of this section. Martin County v. Cassady, 307 Ky. 728 , 212 S.W.2d 281, 1948 Ky. LEXIS 823 ( Ky. 1948 ).

The provisions of this section do not apply to the issuance and sale of revenue bonds. Selle v. Henderson, 309 Ky. 599 , 218 S.W.2d 645, 1949 Ky. LEXIS 772 ( Ky. 1949 ).

County revenue bonds issued under the authority of KRS ch. 58 and KRS 103.290 to 103.410 (repealed) to finance the building of a courthouse were valid revenue bonds and were not obligations of the county in violation of this section. Anderson v. Wayne County, 310 Ky. 597 , 221 S.W.2d 429, 1949 Ky. LEXIS 970 ( Ky. 1949 ).

A bond issue to be paid from revenues from the operation of the improved waterworks system does not constitute a debt within the meaning of this section or Const., § 158. Burkholder v. Louisville, 276 S.W.2d 29, 1955 Ky. LEXIS 411 ( Ky. 1955 ).

Bonds payable solely from revenues other than taxes and not secured by liens on physical properties are not an indebtedness within the meaning of this section or Const., § 158. Perkins v. Frankfort, 276 S.W.2d 449, 1955 Ky. LEXIS 422 ( Ky. 1955 ).

The pledging of parking meter revenues for a combined parking facility project does not create a debt within the meaning of this section. Skidmore v. Elizabethtown, 291 S.W.2d 3, 1956 Ky. LEXIS 352 ( Ky. 1956 ).

It is not illegal to use, where authorized, surplus revenues from public utilities to pay bonds issued for unrelated public projects. Grimm v. Moloney, 358 S.W.2d 496, 1962 Ky. LEXIS 180 ( Ky. 1962 ).

Ordinarily, constitutional restrictions on municipal indebtedness are not applicable to obligations which are payable out of money derived from income and revenues of city-owned and revenue-producing public utilities. Grimm v. Moloney, 358 S.W.2d 496, 1962 Ky. LEXIS 180 ( Ky. 1962 ).

Revenue from parking meters is not tax revenue and may be pledged for the payment of bonds. White v. Common Council of Middlesboro, 414 S.W.2d 569, 1967 Ky. LEXIS 357 ( Ky. 1967 ).

Bonds meeting the requirements of KRS 58.010 to 58.140 do not violate the constitutional prohibitions on indebtedness because such bonds are paid solely from revenues of the designated system and do not encumber the city itself. Baker v. Richmond, 709 S.W.2d 472, 1986 Ky. App. LEXIS 1136 (Ky. Ct. App. 1986).

30.— Special Assessments.

A bond issue for street improvements which provided for payment of the bonds from assessments against abutting property owners did not create a debt within the meaning of this section. Catlettsburg v. Self, 115 Ky. 669 , 74 S.W. 1064, 25 Ky. L. Rptr. 161 , 1903 Ky. LEXIS 156 ( Ky. 1903 ). See Adams v. Ashland, 80 S.W. 1105, 26 Ky. L. Rptr. 184 (1904); Gedge v. Covington, 80 S.W. 1160, 26 Ky. L. Rptr. 273 (1904).

The tax rate limitations of this section have no application to local assessments to pay for local improvements. Dyer v. Newport, 80 S.W. 1127, 26 Ky. L. Rptr. 204 (1904).

The provision of this section limiting taxation and the provisions of Const., § 158 do not apply to special assessments authorized by statute to pay for the construction of drains. Williams v. Wedding, 165 Ky. 361 , 176 S.W. 1176, 1915 Ky. LEXIS 531 ( Ky. 1915 ).

A local assessment on property specially benefited by a local improvement for the cost is but a charge for the improvement and is not a tax. Vogt v. Oakdale, 166 Ky. 810 , 179 S.W. 1037, 1915 Ky. LEXIS 780 ( Ky. 1915 ). See Wickliffe v. Greenville, 170 Ky. 528 , 186 S.W. 476, 1916 Ky. LEXIS 102 ( Ky. 1916 ).

Local improvement bonds which are to be paid from the benefited property do not constitute an indebtedness unless the credit of the city is pledged for the payment of the principal and interest. Castle v. Louisa, 187 Ky. 397 , 219 S.W. 439, 1920 Ky. LEXIS 134 ( Ky. 1920 ).

This section has no application to assessments for public improvements such as sewers. Shaw v. Mayfield, 204 Ky. 618 , 265 S.W. 13, 1924 Ky. LEXIS 529 ( Ky. 1924 ), limited, Marion v. Paris, 237 Ky. 305 , 35 S.W.2d 311, 1931 Ky. LEXIS 592 ( Ky. 1931 ).

Assessments for improvements levied against the benefited property are not taxes within the meaning of this section. Board of Drainage Comm'rs v. Graves County, 209 Ky. 193 , 272 S.W. 387, 1925 Ky. LEXIS 461 ( Ky. 1925 ).

Special assessments for street improvements and other similar public works are not taxes within the meaning of this section and are not to be considered in determining the municipal tax rate or indebtedness. Shaver v. Rice, 209 Ky. 467 , 273 S.W. 48, 1925 Ky. LEXIS 523 ( Ky. 1925 ). See Gosnell v. Louisville, 104 Ky. 201 , 46 S.W. 722, 20 Ky. L. Rptr. 519 , 1898 Ky. LEXIS 156 ( Ky. 1898 ), limited, Kirwin v. Nevin, 111 Ky. 682 , 64 S.W. 647, 23 Ky. L. Rptr. 947 , 1901 Ky. LEXIS 246 ( Ky. 1901 ).

Sewer improvement bonds were validly issued where they were to be paid by assessments against the improved property and, therefore, were not an indebtedness of the city. Carey-Reed Co. v. Sisco, 251 Ky. 22 , 64 S.W.2d 430, 1933 Ky. LEXIS 803 ( Ky. 1933 ).

Improvement bonds which were to be paid through assessments against the property benefited were not an indebtedness requiring approval of the voters. Prestonsburg v. People's State Bank, 255 Ky. 252 , 72 S.W.2d 1043, 1934 Ky. LEXIS 202 ( Ky. 1934 ).

Refunding bonds to be issued by a county water district and payable solely from assessments against the property in the district are not prohibited by this section. Middendorf v. Jameson, 265 Ky. 111 , 95 S.W.2d 1057, 1936 Ky. LEXIS 417 ( Ky. 1936 ).

The improvement of streets and public ways of a municipality at the cost of the owners of the abutting property is not a debt against the municipality within the meaning of this section. Coke v. Dowell, 281 Ky. 362 , 136 S.W.2d 3, 1940 Ky. LEXIS 31 ( Ky. 1940 ).

Liability of city for deficiencies where street improvement assessments exceeded 50 per cent of value of property, for failure to collect full assessments, and for failure to enforce assessment liens assumed by city in issuance of street improvement bonds did not constitute indebtedness of city beyond income and revenue for the year in violation of this section, at least where there was no evidence of extravagant or unreasonable estimates at time of issuing bonds. Knepfle v. Morehead, 301 Ky. 417 , 192 S.W.2d 189, 1946 Ky. LEXIS 493 ( Ky. 1946 ).

Street improvement bonds issued by city of fifth class under ten-year assessment plan did not constitute an obligation of the city in violation of this section. Knepfle v. Morehead, 301 Ky. 417 , 192 S.W.2d 189, 1946 Ky. LEXIS 493 ( Ky. 1946 ).

Special assessment bonds payable from collections from property owners assessed for the benefits received are not debts within the meaning of this section or Const., § 158. Rivers v. Owensboro, 287 S.W.2d 151, 1956 Ky. LEXIS 443 ( Ky. 1956 ).

Special assessments for benefits from public improvements payable from assessments against improved properties are not ad valorem taxes and are not subject to constitutional limitations on taxation. Robertson v. Danville, 291 S.W.2d 816, 1956 Ky. LEXIS 400 ( Ky. 1956 ).

31.— — Liability of City.

Bonds for street improvements are to be paid from assessments against property owners but where the faith and credit of the city were pledged for payment of the bonds, the question must be submitted to a vote of the electorate. Covington v. McKenna, 99 Ky. 508 , 36 S.W. 518, 18 Ky. L. Rptr. 288 , 1896 Ky. LEXIS 108 ( Ky. 1896 ).

Street improvement bonds which are to be paid out of assessments which are made a lien upon the property benefited are not valid without the approval of the electorate for the excess debt where the city’s faith and credit were pledged for the payment of the bonds. German Nat'l Bank v. Covington, 164 Ky. 292 , 175 S.W. 330, 1915 Ky. LEXIS 346 ( Ky. 1915 ).

A city may not create an indebtedness for street improvements under a ten-year bond plan where such debt would be in excess of annual revenue without the assent of the electorate, because the debt is primarily that of the city even though abutting properties will be subject to liens for the cost of improvements and the assessments are to be paid by the owners annually for ten years. Schuster v. Oakdale, 180 Ky. 760 , 203 S.W. 715, 1918 Ky. LEXIS 142 ( Ky. 1918 ).

Where bonds were issued for building a sewer system and the property owners were able to elect to pay their assessments in equal instalments and there was no provision in the ordinance that the bonds should not be a liability of the city, the plan was invalid as incurring an excess debt without a vote of the electorate. Little v. Southgate, 221 Ky. 604 , 299 S.W. 587, 1927 Ky. LEXIS 809 ( Ky. 1927 ).

A provision wherein a city is directly liable to bondholders for any deficiencies arising from the city’s failure to pursue all remedies available to collect improvement assessments does not make the public improvement bonds an indebtedness within the meaning of this section. Robertson v. Danville, 291 S.W.2d 816, 1956 Ky. LEXIS 400 ( Ky. 1956 ).

32.— Valid Expenditures.

Where a city agreed to appropriate $3,000 annually to support a library building in accordance with an agreement with the donor of the building, there was no violation of this section where the appropriation was made out of each year’s revenues. Lambert v. Board of Trustees, 151 Ky. 725 , 152 S.W. 802, 1913 Ky. LEXIS 562 ( Ky. 1913 ).

Where a county, under a state-aid plan, undertook to build a road and to pay only a quarter of the cost while issuing warrants for the remaining cost conditioned upon the receipt of the sums due from the state, this agreement is not invalid under this section where the pursuit of this plan leaves no doubt that the county would not be indebted beyond its annual revenue. Tartar v. Skaggs, 184 Ky. 58 , 211 S.W. 203, 1919 Ky. LEXIS 17 ( Ky. 1919 ).

Where a city had sold construction bonds for $9,660 and there was no evidence that this sum was expended before the city had purchased certain materials, the payment for which is now sought by the seller, then it is not established that the city had exceeded its debt limitation before it made purchases in question and, therefore, such purchases were valid. Cahill-Swift Mfg. Co. v. Bardwell, 219 Ky. 649 , 294 S.W. 171, 1927 Ky. LEXIS 416 ( Ky. 1927 ).

A statute providing for state colleges to lease buildings for a term which would amortize the cost of the buildings did not violate this section, as this section applies only to self-governing political subdivisions of the state and the statute made renewal of the leases optional from year to year. McDonald v. University of Kentucky, 225 Ky. 205 , 7 S.W.2d 1046, 1928 Ky. LEXIS 734 ( Ky. 1928 ).

Where a school district employed a contractor to build a schoolhouse and the total price was beyond the amount of funds available, there was no proof that the debt was invalid where there was no contract executed and the builder agreed not to do any more than could be paid from yearly revenue. Cockrell v. Board of Trustees, 237 Ky. 280 , 35 S.W.2d 310, 1931 Ky. LEXIS 591 ( Ky. 1931 ).

Financing plan whereby banks agreed to advance money to pay condemnation award on acquisition of additional land to extend airfield and to obtain lien therefor on land, but without obligation by air board to repay the money or by city to levy tax for board’s benefit, did not constitute borrowing of money by board and obligation to repay it out of revenues for ensuing year in violation of KRS 183.200 and this section. Miles v. Lee, 284 Ky. 39 , 143 S.W.2d 843, 1940 Ky. LEXIS 436 ( Ky. 1940 ).

County warrants were not issued in violation of this section, because they were not to be paid until succeeding years, in absence of anything in written contract indicating they were not to be paid from revenues collected in years in which obligations were made. Banks-Miller Supply Co. v. Carter County, 45 F. Supp. 521, 1942 U.S. Dist. LEXIS 2830 (D. Ky. 1942 ).

Payment of increased teachers’ salaries from a capital outlay item of the education budget was not improper where it was within the limits and constituted a part of the anticipated revenues. Dunn v. Allen, 308 Ky. 774 , 215 S.W.2d 957, 1948 Ky. LEXIS 1047 ( Ky. 1948 ).

Since county containing city of sixth class could, under KRS 67.080 (8), issue bonds for the purpose of constructing and furnishing a county public health clinic and hospital and the procedure of this section was followed and the amount of indebtedness was within Const., § 158, there was no merit in suggestion that issuance of the bonds would violate this section. Demunbrun v. Browning, 311 Ky. 71 , 223 S.W.2d 372, 1949 Ky. LEXIS 1058 ( Ky. 1949 ) (decision prior to 1978 amendment of KRS 67.080 ).

33.— — Accumulating Funds.

The fiscal court may, within lawful limits, make levies to accumulate a fund with which to pay for a courthouse when erected in the future, since this section does not prohibit such levies. Combs v. Letcher County, 107 Ky. 379 , 54 S.W. 177, 21 Ky. L. Rptr. 1057 , 1899 Ky. LEXIS 182 ( Ky. 1899 ).

34.— — Ordinances.

An ordinance providing for construction of waterworks system was not invalid as creating an unauthorized debt or otherwise because of the provision that the city should pay current prices for water. Williams v. Raceland, 245 Ky. 212 , 53 S.W.2d 370, 1932 Ky. LEXIS 573 ( Ky. 1932 ).

An ordinance which encouraged a housing authority to proceed with development of slum clearance project but made absolute commitment of city only in regard to tax exemption was not invalid under this section, Const., § 158 or KRS 89.590 (repealed). Jones v. Paducah, 283 Ky. 628 , 142 S.W.2d 365, 1940 Ky. LEXIS 386 ( Ky. 1940 ).

Bond issue voted by citizens of second-class city for purpose of raising funds with which to acquire rights of way for floodwall to be constructed with federal funds was valid, notwithstanding fact that, at time of passage of ordinance submitting question to voters and at time of election, federal government had not set apart or made available the funds with which to construct the floodwall. Schatzman v. Covington, 301 Ky. 832 , 193 S.W.2d 447, 1946 Ky. LEXIS 583 ( Ky. 1946 ).

A bond issue for urban renewal which would be paid from occupational license fees from the area “if and when such fees are received” did not create an unvoted debt because the ordinance did not bind the city to continue for any period of time to impose such fees. Watkins v. Fugazzi, 394 S.W.2d 594, 1965 Ky. LEXIS 194 ( Ky. 1965 ).

35.— — Contracts.

An insurance agreement with a cooperative assessment fire insurance company is not invalid as assuming a liability in excess of revenue without approval of the electorate where the liability of the members of the insurance company is not unlimited and is capable of practical ascertainment. Dalzell v. Bourbon County Bd. of Education, 193 Ky. 171 , 235 S.W. 360, 1921 Ky. LEXIS 209 ( Ky. 1921 ).

A contract by which the board of education sold a school building for a fixed consideration to a corporation organized to purchase the building, with option by the board to lease and rebuy the building but with no obligation to do so, did not require the board to incur an indebtedness in excess of that authorized by this section and Const., § 158, without a vote of the voters thereon. Waller v. Georgetown Board of Education, 209 Ky. 726 , 273 S.W. 498, 1925 Ky. LEXIS 589 ( Ky. 1925 ).

A contract between a school corporation and a corporation where the corporation was to build a school to be rented by the city for the term of one (1) year with an option to renew from year to year for a yearly rent within the constitutional debt limit was valid. Kirkpatrick v. City Board of Education, 234 Ky. 836 , 29 S.W.2d 565, 1930 Ky. LEXIS 281 ( Ky. 1930 ). See Holman v. Glasgow Graded Common School Dist., 237 Ky. 7 , 34 S.W.2d 733, 1931 Ky. LEXIS 529 ( Ky. 1931 ).

Where a lease entered into by a school board was for one (1) year with options to renew on a year-to-year basis, this did not create an indebtedness for more than a year and such yearly rent was not in excess of anticipated revenue; therefore, there was no violation of this section. Davis v. Board of Education, 260 Ky. 294 , 83 S.W.2d 34, 1935 Ky. LEXIS 396 ( Ky. 1935 ).

Under this section a county, like other governmental units, may raise money for construction by conveying realty to a corporation which had the power to borrow money, issue bonds and rent the realty back to the county where there is no showing that the rent and other governmental expenses would exceed the amount of revenue that could be raised in any year. Sizemore v. Clay County, 268 Ky. 712 , 105 S.W.2d 841, 1937 Ky. LEXIS 521 ( Ky. 1937 ).

An agreement by a district board to rent property for one (1) year, where the year’s rent is to come from funds at hand with an option to renew the lease at the end of a year, does not amount to an indebtedness in violation of this section. Warren County Fiscal Court v. Warren County Tuberculosis Sanitorium Corp., 272 S.W.2d 331, 1954 Ky. LEXIS 1089 ( Ky. 1954 ).

Contract between two (2) cities of the fourth class whereby one city agreed to pay the other over a period of 20 years a monthly sum to be determined by the amount of the first city’s sewage collected and treated by the other did not create an indebtedness in violation of this section and Const., §§ 158 and 159. Russell v. Flatwoods, 394 S.W.2d 900, 1965 Ky. LEXIS 218 ( Ky. 1965 ).

36.— — Leases.

Although the provision of KRS 107.410 authorizes the district board, on a year-to-year basis, to agree to contribute a portion of the rental payments under a lease agreement, the power of the district board to agree, for any year, to contribute such rental payments must be confined to payment from such income and revenue as actually has been provided to the board for that year and only for projects that would serve a county purpose. Lowery v. Jefferson, 458 S.W.2d 168, 1970 Ky. LEXIS 167 ( Ky. 1970 ).

37.— Invalid Expenditures.

Bonds issued by county of the commonwealth in an amount exceeding income and revenue provided for year in which bonds were issued, without assent of two-thirds (2/3) of voters, are void even in hands of holder in due course, and cannot be enforced. Women's Catholic Order of Foresters v. Trigg County, 38 F. Supp. 398, 1941 U.S. Dist. LEXIS 3475 (D. Ky. 1941 ). See Banks-Miller Supply Co. v. Carter County, 45 F. Supp. 521, 1942 U.S. Dist. LEXIS 2830 (D. Ky. 1942 ).

Where $18,452 had been appropriated for roads and the road revenues would not exceed $20,000, an additional appropriation of $7,000 without the assent of two-thirds (2/3) of the voters was invalid. Lankford v. Burton, 167 Ky. 445 , 180 S.W. 784, 1915 Ky. LEXIS 860 ( Ky. 1915 ).

Approval of $3,800 for school improvements by the school trustees was improper where the revenue was only $2,800 and the voters had disapproved a bond issue for these improvements. Flanders v. Board of Trustees, 170 Ky. 627 , 186 S.W. 506, 1916 Ky. LEXIS 115 ( Ky. 1916 ).

A county may not incur an excess indebtedness by appropriating money for a specified purpose where this is a mere subterfuge to create an indebtedness. Carman v. Hickman County, 185 Ky. 630 , 215 S.W. 408, 1919 Ky. LEXIS 351 ( Ky. 1919 ).

Where the Legislature increased the maximum rate of levy but the board of education did not request the fiscal court to impose this new maximum, then the board was without power to issue bonds to fund a floating indebtedness. Hockensmith v. County Board of Education, 240 Ky. 76 , 41 S.W.2d 656, 1931 Ky. LEXIS 345 ( Ky. 1931 ).

A board of education may not fund an indebtedness by issuing bonds when the fiscal court failed to act on the board’s request for an additional levy. Downey v. Board of Education, 243 Ky. 66 , 47 S.W.2d 931, 1932 Ky. LEXIS 30 ( Ky. 1932 ).

Where appropriation to pay salary and expenses of county farm agent would have carried county indebtedness beyond constitutional limit, fiscal court properly refused to make the appropriation, since employment of such an agent was not a necessary governmental expense. Adair County Farm Bureau v. Fiscal Court of Adair County, 263 Ky. 23 , 91 S.W.2d 537, 1936 Ky. LEXIS 122 ( Ky. 1936 ).

The mere fact that a school board has exceeded the amount of its realized annual revenue does not violate the constitutional debt limitation where the board stays within the amount of its budget, if its excess expenditure over realized income is within the amount which the board might reasonably have anticipated would be received by it from the tax levy, but where board did not reduce the amount of its budgets, notwithstanding repeated annual experience of failing to realize revenue called for by its budgets, it did not keep its expenditures within required reasonably anticipated amount. Fiscal Court of Lincoln County v. Lincoln County Board of Education, 273 Ky. 174 , 115 S.W.2d 891, 1937 Ky. LEXIS 704 ( Ky. 1937 ).

A board of education could not validly issue bonds with maturity dates antedating the issuance, thereby making them past due and payable with accumulated interest at the time they are issued. Abbott v. Oldham County Board of Education, 272 Ky. 654 , 114 S.W.2d 1128, 1938 Ky. LEXIS 176 ( Ky. 1938 ).

Any obligation is void which exceeds the revenues that it was reasonably anticipated would be produced by taxes actually levied and the miscellaneous income which could be actually counted on. Fulton County Fiscal Court v. Southern Bell Tel. & Tel. Co., 285 Ky. 17 , 146 S.W.2d 15, 1940 Ky. LEXIS 591 ( Ky. 1940 ).

38.— — Ordinances.

An ordinance obligating a city to guarantee $1,000 annually for maintenance of a library in return for a grant to build the library was invalid because the agreement was not approved by the voters. Ramsey v. Shelbyville, 119 Ky. 180 , 83 S.W. 116, 26 Ky. L. Rptr. 1102 , 1904 Ky. LEXIS 151 ( Ky. 1904 ).

39.— — Contracts.

A contract by which a school district was to pay for the building of a school through the levy of a tax for four (4) years was invalid where the contract was not authorized by the voters. Grady v. Pruit, 111 Ky. 100 , 63 S.W. 283, 23 Ky. L. Rptr. 506 , 1901 Ky. LEXIS 180 ( Ky. 1901 ).

The acts of school trustees in contracting an indebtedness for the building of a schoolhouse in excess of the revenues, and in levying a tax to pay the debt, are void. Howard v. Trustees of School Dist., 102 S.W. 318, 31 Ky. L. Rptr. 399 (1907).

A city, without a vote of the people, cannot in one (1) year create a debt to be thereafter paid in subsequent years out of the income and revenue for such subsequent years, where the obligation is in excess of the income for the year in which the contract was made. Southern Bitulithic Co. v. Detreville, 156 Ky. 513 , 161 S.W. 560, 1913 Ky. LEXIS 483 ( Ky. 1913 ).

A construction contract in which the cost of the building was to be paid over ten (10) years out of annual revenues was invalid when not submitted for approval of the voters, as a debt payable in the future is no less a debt than if payable immediately. Bradford v. Fiscal Court of Bracken County, 159 Ky. 544 , 167 S.W. 937, 1914 Ky. LEXIS 864 ( Ky. 1914 ).

A contract by which a board of education agreed to rent of building for seven (7) years at the end of which time the building would be conveyed to the board was invalid as not having been approved by the electorate even though each yearly rental could be paid out of the annual revenue. Billings v. Bankers' Bond Co., 199 Ky. 490 , 251 S.W. 643, 1923 Ky. LEXIS 875 ( Ky. 1923 ).

Where a city leased machinery for a certain monthly rental with an option to purchase the equipment at the end of the rental period for $1.00, this was in effect an obligation to buy the machinery and, therefore, constituted an invalid present indebtedness under this section. Jones v. Rutherford, 225 Ky. 773 , 10 S.W.2d 296, 1928 Ky. LEXIS 882 ( Ky. 1928 ).

A contract by a board of education to convey property to a private corporation which was in its effect a mortgage of the property is invalid as a creation of indebtedness under this section. Hardin v. Owensboro Educational Ass'n, 244 Ky. 390 , 50 S.W.2d 968, 1932 Ky. LEXIS 430 ( Ky. 1932 ).

A plan to convey property to the fiscal court which would lease the school building to be constructed to the school board for a year-to-year lease with rent sufficient to amortize the mortgage and then reconvey the building to the board was invalid. Fiscal Court of Jackson County v. Board of Education, 268 Ky. 336 , 104 S.W.2d 1103, 1937 Ky. LEXIS 466 ( Ky. 1937 ).

A joint agreement by a city and county to lease and operate a hospital with provisions that the buildings would be replaced if totally or partially destroyed constituted an obligation for the term of 20 years or until the bonds were paid and therefore was an indebtedness in excess of anticipated revenue in violation of this section. Booth v. Owensboro, 274 Ky. 325 , 118 S.W.2d 684, 1938 Ky. LEXIS 258 ( Ky. 1938 ).

A plan by which a school board was to convey school properties to a nonprofit corporation which would erect a new school building to be leased to the board for a period of years after which the board was to become owner of the property conveyed to the corporation was invalid. Weaks v. Board of Education, 282 Ky. 241 , 137 S.W.2d 1094, 1940 Ky. LEXIS 132 ( Ky. 1940 ).

In an agreement between a county and a corporation where the county agreed to lease a bridge for one (1) year with an option to renew and to pay the expenses of operation, a judgment approving the agreement was improper where there was not sufficient evidence to indicate whether the annual revenue of the initial year of the lease would enable the county to meet the rent and expenses. Wells v. Pendleton County, 283 Ky. 546 , 142 S.W.2d 178, 1940 Ky. LEXIS 384 ( Ky. 1940 ).

Contract pursuant to which county agreed to pay annual rental of specified amount for a period of 20 years, the rent to be paid out of revenues from the rented property but the county being obligated to appropriate funds to make up any deficit arising through insufficiency of operating revenues, created an indebtedness for the aggregate amount of rent for the specified term and, where that amount exceed the income for the year in which the contract was made, the contract violated this section. Kenton County Fiscal Court v. Richards, 291 Ky. 132 , 163 S.W.2d 302, 1942 Ky. LEXIS 193 ( Ky. 1942 ).

If a board of education incurs an indebtedness by contracting for construction of a school, and its cost exceeds its income and revenue for the current year, the contract is unenforceable unless it has been approved by two thirds (2/3) of the voters of the area affected. Hacker Bros. Constr. Co. v. Board of Education, 590 S.W.2d 897, 1979 Ky. App. LEXIS 493 (Ky. Ct. App. 1979).

Where a construction company was attempting to maintain an action on the basis that it had a valid contract with the school board, the contract was unenforceable because the approval of the voters of the county was not obtained, as required by this section; on the other hand, if the construction company was attempting to maintain the action on the basis that the revenue bond methods provided for in KRS 162.120 to KRS 162.290 were followed, the contract was unenforceable because the only government agency possessing the power and authority to execute such a contract failed to do so. Hacker Bros. Constr. Co. v. Board of Education, 590 S.W.2d 897, 1979 Ky. App. LEXIS 493 (Ky. Ct. App. 1979).

40.— Excess Levies.

Three (3) tax levies of 25 cents each made by a county exceeds the limitation of this section where there is no indication that any of the levies was made for the purpose of paying a debt created before the adoption of the present Constitution. McIntire v. Powell, 137 Ky. 477 , 125 S.W. 1087, 1910 Ky. LEXIS 590 ( Ky. 1910 ).

A levy by the fiscal court of a county in excess of the 50-cent limit cannot be justified on the ground that numerous residents in the county requested the fiscal court to make the levy and agreed not to resist its collection. Hammond v. Lester, 159 Ky. 310 , 166 S.W. 976, 1914 Ky. LEXIS 768 ( Ky. 1914 ).

41.— — Sheriff’s Liability.

Where a sheriff collected taxes levied by the county and the levy was in excess of the limits of this section, the sureties of the sheriff’s bond were not liable for the excess taxes collected. Commonwealth use of Nicholas County v. Stone, 114 Ky. 511 , 71 S.W. 428, 24 Ky. L. Rptr. 1297 , 1903 Ky. LEXIS 7 ( Ky. 1903 ). See Boone v. Powell County, 108 S.W. 251, 32 Ky. L. Rptr. 1172 (1908).

42.— Valid Levies.

A tax levy for a six (6) month period beginning January 1, 1935, which was necessitated by an act changing the fiscal year of counties was not invalid where the previous levy was for an entirely different period. Ward v. Adams, 258 Ky. 721 , 81 S.W.2d 574, 1935 Ky. LEXIS 234 ( Ky. 1935 ).

Tax imposed under KRS 173.720 on behalf of library district is imposed by the fiscal court as an agent of the district and it does not constitute a county tax; consequently, the fact that the amount of the tax when added to that of the county tax exceeds the maximum for counties does not make it violative of the Constitution. Boggs v. Reep, 404 S.W.2d 24, 1966 Ky. LEXIS 286 ( Ky. 1966 ).

Where it was stipulated that taxable property in county was assessed at an average of 21.1% of fair value, a 53-cent tax rate would not violate the constitutional limit. Floyd County v. Kentucky-West Virginia Gas Co., 407 S.W.2d 721, 1966 Ky. LEXIS 188 ( Ky. 1966 ).

43.— Payment of Deficits.

If a municipality does not collect its anticipated revenue during a year or if it fails to apply that revenue to the payment of that year’s valid debts, these debts must be paid out of the revenue for the next year. First Trust Co. v. County Board of Education, 5 F. Supp. 49, 1933 U.S. Dist. LEXIS 1138 (D. Ky. 1933 ), rev'd, 78 F.2d 114, 1935 U.S. App. LEXIS 3651 (6th Cir. Ky. 1935 ).

A casual deficit which had occurred although there had been a good faith anticipation and reasonable estimates of both revenues and expenditures is not illegal or invalid, but it should be carried over as an obligation to be paid during the following year. Swinburne v. Newport, 297 Ky. 820 , 181 S.W.2d 421, 1944 Ky. LEXIS 821 ( Ky. 1944 ).

Where county borrowed $12,000 in excess of the limit of the county’s power to go into debt for a given year and repaid that amount to the bank, the county was not entitled to recover the amount loaned from the bank. Fannin v. Davis, 385 S.W.2d 321, 1964 Ky. LEXIS 158 ( Ky. 1964 ), overruled in part, Scalise v. Sewell-Scheuermann, 566 S.W.3d 539, 2018 Ky. LEXIS 451 ( Ky. 2018 ).

44.— Constitutional Statutes.

An act authorizing cities to issue bonds for hospital construction if approved by the voters was not unconstitutional because it failed to incorporate the specific two-thirds (2/3) approval required by this section. Render v. Louisville, 142 Ky. 409 , 134 S.W. 458, 1911 Ky. LEXIS 200 ( Ky. 1911 ).

KRS 80.010 to 80.257 , creating municipal housing commissions and authorizing bond issues, do not violate this section or Const., § 158 as the bonds to be issued do not constitute debts against the taxpayers of the municipality. Webster v. Frankfort Housing Com., 293 Ky. 114 , 168 S.W.2d 344, 1943 Ky. LEXIS 559 ( Ky. 1943 ).

KRS 68.245 does not violate this section when it is construed together with Const., § 181, as it must be. Rea v. Gallatin County Fiscal Court, 422 S.W.2d 134, 1967 Ky. LEXIS 38 ( Ky. 1967 ).

45.— Unconstitutional Statutes.

The provisions of KRS 162.090 , making school bonds the obligation of the city in cases where the city school district embraces the city, cannot constitutionally be applied where the city boundaries extend beyond those of the school district, therefore the bonds constitute obligations of the school district, for which only property within the district may be taxed and for which only voters in the district may vote on the question of issuance of bonds. Board of Education v. Louisville, 258 S.W.2d 707, 1953 Ky. LEXIS 877 ( Ky. 1953 ).

The provision of a statute regarding cost of elections which provided that a county budget would be disapproved if it did not provide for the payment of rent for voting machines regardless of whether the county had renewed its year-to-year lease for the machines was in violation of this section as imposing a debt. State Property & Bldg. Com. v. Hays, 346 S.W.2d 3, 1961 Ky. LEXIS 277 ( Ky. 1961 ).

KRS 66.510 violates this section to the extent that it authorizes the improvement board to pledge to the payment of its debts appropriations required to be made to it by the fiscal court in future years from the proceeds of general tax revenues. Sawyer v. Jefferson County Fiscal Court, 438 S.W.2d 531, 1969 Ky. LEXIS 411 ( Ky. 1969 ).

46.— Municipality or Taxing District.

A county is for school purposes a taxing district and a municipality, within the meaning of this section and Const., § 158 limiting indebtedness but permitting issuance of bonds to fund floating indebtedness, but county board of education is not, but is merely an arm through which the taxing district operates. Farson v. County Board of Education, 100 F.2d 974, 1939 U.S. App. LEXIS 4586 (6th Cir. Ky. 1939 ). See First Trust Co. v. County Board of Education, 78 F.2d 114, 1935 U.S. App. LEXIS 3651 (6th Cir. Ky. 1935 ).

A board of education is a municipality within the meaning of this section and may not create an indebtedness in excess of revenues without approval of the voters. Brown v. Board of Education, 108 Ky. 783 , 57 S.W. 612, 22 Ky. L. Rptr. 483 , 1900 Ky. LEXIS 102 ( Ky. 1900 ).

A county board of education may not assume an illegally created debt incurred by trustees of a school district, as a school district is a “taxing district or other municipality” within the meaning of this section. Scobee v. County Board of Education, 157 Ky. 510 , 163 S.W. 472, 1914 Ky. LEXIS 315 ( Ky. 1914 ).

Morehead College is not a municipality or taxing district within the provisions of this section. Clay v. Board of Regents, 255 Ky. 846 , 75 S.W.2d 550, 1934 Ky. LEXIS 341 ( Ky. 1934 ).

A county board of education is an entity subject to the provisions of this section. Lee v. Board of Education, 261 Ky. 379 , 87 S.W.2d 961, 1935 Ky. LEXIS 666 ( Ky. 1935 ).

The fact that the public improvements finance board itself has no power to levy taxes does not keep it from being classed as a municipality within the meaning of this section so long as it can compel the tax-levying unit of government to pay over proceeds of taxes levied by the latter. Sawyer v. Jefferson County Fiscal Court, 438 S.W.2d 531, 1969 Ky. LEXIS 411 ( Ky. 1969 ).

47.— Judgments.

Allowing debts to assume the form of a judgment will not authorize the levy of a tax in excess of the limitations of this section. Perry County v. Kentucky River Coal Corp., 268 Ky. 78 , 103 S.W.2d 689, 1937 Ky. LEXIS 412 ( Ky. 1937 ).

A city may not be compelled to levy a tax in excess of the rates in this section in order to pay a contractual debt which has been reduced to judgment. James C. Willson & Co. v. Ravenna, 268 Ky. 232 , 104 S.W.2d 965, 1937 Ky. LEXIS 443 ( Ky. 1937 ).

48.— Injunctions.

So long as municipal governments make levies of taxes within the limits prescribed by this section, courts of equity will not inquire into the necessity of the levy in a taxpayer’s suit to enjoin the collection of the tax. McInerney v. Huelefeld, 116 Ky. 28 , 75 S.W. 237, 25 Ky. L. Rptr. 272 , 1903 Ky. LEXIS 173 ( Ky. 1903 ).

A taxpayer has the right to sue for an injunction to prevent the fiscal court from incurring debts against the county in excess of its annual revenue. Wesley v. Tartar, 197 Ky. 493 , 247 S.W. 353, 1923 Ky. LEXIS 650 ( Ky. 1923 ).

In an action to enjoin a tax collection to pay an allegedly invalid indebtedness, the holders of the indebtedness are necessary parties to the action. Beaver Dam v. Vinson, 223 Ky. 490 , 3 S.W.2d 1090, 1928 Ky. LEXIS 368 ( Ky. 1928 ).

A bond issue may not be enjoined by a taxpayer when it appeared that the bonds were issued according to proper procedures and would not create an excess indebtedness. Field v. Catlettsburg, 270 Ky. 25 , 108 S.W.2d 1017, 1937 Ky. LEXIS 15 ( Ky. 1937 ).

49.— Validity.
50.— — Assumption.

In the absence of allegations or proof to the contrary it will be presumed that an indebtedness was legally contracted. Bond v. Corbin, 241 Ky. 663 , 44 S.W.2d 576, 1931 Ky. LEXIS 133 ( Ky. 1931 ).

51.— — Proof.

Under KRS 66.210 and 66.220 , a proposed bond issue must be approved by a court of competent jurisdiction as being within the limits of the Constitution and the city must affirmatively show by pleading and proof that the proposed issue is valid. Rohde v. Newport, 246 Ky. 476 , 55 S.W.2d 368, 1932 Ky. LEXIS 793 ( Ky. 1932 ).

Under KRS 66.210 and 66.220 , the burden of proof is on the county to plead and prove the validity of a proposed bond issue. Randolph v. Shelby County, 257 Ky. 297 , 77 S.W.2d 961, 1934 Ky. LEXIS 557 ( Ky. 19 34 ). See Lock v. Middlesboro, 267 Ky. 19 , 101 S.W.2d 203, 1937 Ky. LEXIS 279 ( Ky. 1937 ); Kockritz v. Henderson, 269 Ky. 334 , 107 S.W.2d 245, 1937 Ky. LEXIS 602 ( Ky. 1937 ).

52.— Invalidity.
53.— — Assertion.

An assertion that an indebtedness was in excess of revenues should have been brought in the original action to enforce notes given for the repair of a school building. Trustees of Common School Dist. v. Miller, 105 S.W. 457, 32 Ky. L. Rptr. 367 (1907).

54.— — — Pleading and Proof.

A petition alleging an indebtedness in excess of revenue must plead facts as to the amount of taxable property and the rate of taxation as well as the amount of indebtedness. Lexington & E. K. R. Co. v. Trustees of School Dist., 54 S.W. 712, 21 Ky. L. Rptr. 1205 , 1900 Ky. LEXIS 335 ( Ky. 1900 ).

In order to invalidate a contract as creating an excess indebtedness, facts indicating this effect of the contract must be alleged. City of Louisville v. Gosnell, 61 S.W. 476, 22 Ky. L. Rptr. 1524 (1901).

In an action to recover taxes collected in excess of the limitations of this section, the petition must specifically allege that no indebtedness contracted prior to the adoption of the Constitution is in existence. Sparks v. Robinson, 115 Ky. 453 , 74 S.W. 176, 24 Ky. L. Rptr. 2336 , 1903 Ky. LEXIS 114 ( Ky. 1903 ).

In an action to recover taxes, the burden is on the taxpayer to prove that the tax is in excess of the limitations of this section. Frankfort v. Morgan, 110 S.W. 286, 33 Ky. L. Rptr. 297 (1908).

Where it is not alleged or proved that a tax in excess of the limits of this section was not levied to pay an indebtedness contracted prior to the adoption of the present Constitution, the court will not presume that this section has been violated. Morgan v. Board of Councilmen, 135 Ky. 178 , 121 S.W. 1033 ( Ky. 1909 ).

In an action to prevent the collection of taxes allegedly in excess of the limits of this section, the facts as to this contention must be alleged and proved. Asher v. Pineville, 140 Ky. 670 , 131 S.W. 512, 1910 Ky. LEXIS 343 ( Ky. 1910 ).

In a case involving the assertion that an indebtedness has been illegally created, it is necessary to allege facts with respect to this assertion. Streine v. Comm'rs of Campbell Courthouse Dist., 149 Ky. 641 , 149 S.W. 928, 1912 Ky. LEXIS 672 ( Ky. 1912 ).

In questioning the validity of an indebtedness, the pleader should state facts from which it follows that the indebtedness is illegal. McCreary County v. J. C. Mayer & Co., 178 Ky. 366 , 198 S.W. 909, 1917 Ky. LEXIS 722 ( Ky. 1917 ).

It is incumbent upon the party attacking the validity of an indebtedness to allege and prove that the limits of this section were exceeded. Elliott County Fiscal Court v. Elliott County Board of Education, 193 Ky. 66 , 234 S.W. 947, 1921 Ky. LEXIS 181 ( Ky. 1921 ).

Where the pleadings do not state the amount of indebtedness or the amount of resources at the time an allegedly invalid contract was executed, there is no basis for finding that the contract created an invalid indebtedness. Conrad v. Pendleton County, 209 Ky. 526 , 273 S.W. 57, 1925 Ky. LEXIS 535 ( Ky. 1925 ).

A taxpayer attacking the validity of a contract has the burden of establishing the invalidity by showing that the obligation, when added to anticipated expenses for the year for governmental purposes and to previous contractual obligations, would exceed the income and revenue for that year. Covington v. O. F. Moore Co., 218 Ky. 102 , 290 S.W. 1066, 1927 Ky. LEXIS 106 ( Ky. 1927 ).

An indebtedness is presumed within constitutional limits and the burden of alleging and proving that an indebtedness is invalid is on the party challenging the validity of the indebtedness. Pike County v. Day & Night Nat'l Bank, 236 Ky. 202 , 32 S.W.2d 969, 1930 Ky. LEXIS 707 ( Ky. 1930 ).

In order to show that a contract is void under this section, the facts should be definitely pleaded. Lee County v. Hieronymus, 240 Ky. 490 , 42 S.W.2d 730, 1931 Ky. LEXIS 444 ( Ky. 1931 ).

A party attacking the validity of a municipal indebtedness must allege facts showing its invalidity. Williams v. Estill County, 253 Ky. 417 , 69 S.W.2d 683, 1934 Ky. LEXIS 655 ( Ky. 1934 ).

One asserting the invalidity of a municipal debt must plead and prove facts to show such invalidity including sources of revenue for the year, rate of taxation, amount of possessed property and the fact that the total revenue had been extended at the time the allegedly invalid debts were incurred. Waddle v. Somerset, 281 Ky. 30 , 134 S.W.2d 956, 1939 Ky. LEXIS 4 ( Ky. 1939 ).

55.— — Defense.
56.— — — Pleading and Proof.

In defense to suit on county warrants, county had burden of proving amount of warrants exceeded constitutional limits and that prior indebtedness was valid. Rowan County v. Banks-Miller Supply Co., 95 F.2d 904, 1938 U.S. App. LEXIS 4252 (6th Cir. Ky. 1938 ). See Banks-Miller Supply Co. v. Carter County, 45 F. Supp. 521, 1942 U.S. Dist. LEXIS 2830 (D. Ky. 1942 ).

Where a county being sued for road work alleged that the contract was void as creating an invalid indebtedness, the county was obliged to establish facts as to this defense. Durrett Const. Co. v. Caldwell County, 196 Ky. 158 , 244 S.W. 409, 1922 Ky. LEXIS 479 ( Ky. 1922 ).

In mandamus action to compel fiscal court to levy tax to pay judgment for jailer’s services, answer admitting validity of claim and alleging that all anticipated revenues were budgeted for fixed expenses is insufficient to deny all relief unless facts are pleaded to show that the constitutional limitations as to county tax rates would be violated. Duvall's Adm'x v. Elliott County, 275 Ky. 85 , 120 S.W.2d 782, 1938 Ky. LEXIS 729 (Ky. Ct. App. 1938).

In an action to recover on county warrants, where county sought to defend action on ground of illegality of warrants because the obligations exceeded the revenues for the year in which created, county had burden to plead and prove the specific ground of illegality, and mere denial that any sum was due on the warrants was not sufficient. Fiscal Court of Magoffin County v. Gardner, 302 Ky. 826 , 196 S.W.2d 597, 1946 Ky. LEXIS 759 ( Ky. 1946 ).

Where city alleged that notes were contracted by the defendant in excess of the revenues levied, collected and deposited in the general fund of city instead of alleging that the obligations sued on or referred to constituted an indebtedness at the time it was made in excess of the income and revenue provided for that year, city’s allegation was insufficient to show a violation of this section. Winchester v. Winchester Bank, 306 Ky. 45 , 205 S.W.2d 997, 1947 Ky. LEXIS 928 ( Ky. 1947 ).

In action on city warrants, defense of invalidity under this section was good only if city pleaded and proved that at time the indebtedness evidenced by each warrant was created the city had already expended or contracted to expend all revenue provided for that year. Magoffin Fiscal Court v. Gardner, 308 Ky. 220 , 214 S.W.2d 100, 1948 Ky. LEXIS 901 ( Ky. 1948 ).

The defense of illegality of a contract as violative of this section is an affirmative defense which should be specially pleaded. Whitesburg v. Bates, 320 S.W.2d 316, 1959 Ky. LEXIS 233 ( Ky. 1959 ).

57.— — — Waiver.

Where a city of the sixth class had agreed in a previous action to entry of a judgment against it for amount of alleged debt and, having failed in that action, to set up or raise question that the debt was invalid and uncollectible by reason of having been contracted by city at a time when it had contracted liabilities to full extent of corporate indebtedness and was indebted in an amount equal to revenue and income for that year, the city thereby waived such defense. Mt. Vernon v. General Electric Supply Corp., 289 Ky. 355 , 158 S.W.2d 649, 1942 Ky. LEXIS 551 ( Ky. 1942 ).

58.— — — Estoppel.

Under recitals on fact of bonds, setting forth that all requirements of law had been complied with, county was estopped from claiming bond issue was void. Knott County v. Aid Asso. for Lutherans, 140 F.2d 630, 1944 U.S. App. LEXIS 4002 (6th Cir. Ky. 1944 ). See Woodmen of World v. Rowan County, 23 F. Supp. 903, 1938 U.S. Dist. LEXIS 2081 (D. Ky. 1938 ); Women's Catholic Order of Foresters v. Carroll County, 34 F. Supp. 140, 1940 U.S. Dist. LEXIS 2754 (D. Ky. 1940 ); Women's Catholic Order of Foresters v. Trigg County, 38 F. Supp. 398, 1941 U.S. Dist. LEXIS 3475 (D. Ky. 1941 ). (In case of bonds issued since 1934, the above rule may be qualified by KRS 422.140 ).

Cited:

Roberts & Co. v. Paducah, 95 F. 62, 1899 U.S. App. LEXIS 3132 (C.C.D. Ky. 1 899); Tucker v. Hubbert, 196 F. 849, 1912 U.S. App. LEXIS 1552 (6th Cir. Ky. 1 9 12); Dietrich v. Bath County, 292 F. 279, 1909 U.S. App. LEXIS 5985 (C.C.D. Ky. 19 09); Mercer County v. Eyer, 1 F.2d 609, 1924 U.S. App. LEXIS 1864 (6th Cir. Ky. 1924 ); Commissioner v. Carey-Reed Co., 101 F.2d 602, 1939 U.S. App. LEXIS 4416 (6th Cir. 1939); Pulaski County v. Eichstaedt, 110 F.2d 79, 1940 U.S. App. LEXIS 4484 (6th Cir. Ky. 1940 ); Louisa v. Levi, 140 F.2d 512, 1944 U.S. App. LEXIS 3975 (6th Cir. Ky. 1944 ); Women's Catholic Order of Foresters v. Trigg County, 38 F. Supp. 398, 1941 U.S. Dist. LEXIS 3475 (D. Ky. 1941 ); Fidelity Trust & Safety Vault Co. v. Mayor, etc. of Morganfield, 96 Ky. 563 , 29 S.W. 442, 16 Ky. L. Rptr. 647 , 1895 Ky. LEXIS 12 6 ( Ky. 1895 ); Louisville Trust Co. v. Louisville, 30 S.W. 991, 17 Ky. L. Rptr. 265 (1895); Commissioners of Sinking Fund v. Zimmerman, 101 Ky. 432 , 41 S.W. 428, 19 Ky. L. Rptr. 689 , 1897 Ky. LEXIS 212 ( Ky. 1897 ); Field v. Stroube, 103 Ky. 114 , 44 S.W. 363, 19 Ky. L. Rptr. 1751 , 1898 Ky. LEXIS 3 2 ( Ky. 1898 ); Hardwicke v. Young, 110 Ky. 504 , 62 S.W. 10, 22 Ky. L. Rptr. 1906 , 1901 Ky. LEXIS 108 ( Ky. 1901 ); Whitney v. Kentucky M. R. Co., 110 Ky. 955 , 63 S.W. 24, 23 Ky. L. Rptr. 472 , 1901 Ky. LEXIS 161 ( Ky. 1901 ); Grady v. Landram, 63 S.W. 284, 23 Ky. L. Rptr. 506 (1901); Maze v. Owingsville Banking Co., 63 S.W. 428, 23 Ky. L. Rptr. 574 (1901); McDonald v. Louisville, 113 Ky. 425 , 68 S.W. 413, 24 Ky. L. Rptr. 271 , 1902 Ky. LEXIS 6 4 ( Ky. 1902 ); Covington v. District of Highlands, 113 Ky. 612 , 68 S.W. 669, 24 Ky. L. Rptr. 433 , 1902 Ky. LEXIS 89 ( Ky. 1902 ); Bank of Cumberland v. Simpson, 77 S.W. 695, 25 Ky. L. Rptr. 1227 (1903); Board of Trustees v. Postel, 121 Ky. 67 , 88 S.W. 1065, 28 Ky. L. Rptr. 37 , 1905 Ky. LEXIS 178 ( Ky. 1905 ); Raymer v. Trustees White School Dist., 124 Ky. 96 , 98 S.W. 323, 30 Ky. L. Rptr. 332 , 1906 Ky. LEXIS 243 ( Ky. 1906 ); Troutman v. Hays, 101 S.W. 976, 31 Ky. L. Rptr. 204 (1907); Bardwell v. Southern Engine & Boiler Works, 130 Ky. 222 , 113 S.W. 97, 1908 Ky. LEXIS 258 ( Ky. 1908 ); Morris v. Hoagland, 116 S.W. 684 ( Ky. 1909 ); Fiscal Court of Franklin County v. Commonwealth, 139 Ky. 307 , 117 S.W. 301, 1909 Ky. LEXIS 3 ( Ky. 1909 ); Alexander v. Owen County, 136 Ky. 420 , 124 S.W. 386, 1910 Ky. LEXIS 500 ( Ky. 1910 ); White Common School Dist. v. Grady, 138 Ky. 128 , 127 S.W. 537, 1910 Ky. LEXIS 49 ( Ky. 1910 ); Ex parte Newport, 141 Ky. 329 , 132 S.W. 580, 1910 Ky. LEXIS 462 (Ky. 1910); Bradford v. Glasgow, 143 Ky. 401 , 136 S.W. 647, 1911 Ky. LEXIS 411 ( Ky. 1911 ); Floyd County v. Owego Bridge Co., 143 Ky. 693 , 137 S.W. 237, 1911 Ky. LEXIS 49 2 ( Ky. 1911 ); Morgan v. Goode, 151 Ky. 284 , 152 S.W. 584, 1912 Ky. LEXIS 820 ( Ky. 1912 ); Board of Education v. Lee, 153 Ky. 661 , 156 S.W. 375, 1913 Ky. LEXIS 906 ( Ky. 1913 ); Stuessy v. Louisville, 156 Ky. 523 , 161 S.W. 564, 1913 Ky. LEXIS 484 ( Ky. 1913 ); Bernheim v. Anchorage, 159 Ky. 315 , 167 S.W. 139, 1914 Ky. LEXIS 792 ( Ky. 1914 ); Kash v. Jackson, 159 Ky. 523 , 167 S.W. 676, 1914 Ky. LEXIS 823 ( Ky. 1914 ); Mitchell v. Knox County Fiscal Court, 165 Ky. 543 , 177 S.W. 279, 1915 Ky. LEXIS 557 ( Ky. 1915 ); Larue v. Redmon, 168 Ky. 487 , 182 S.W. 622, 1916 Ky. LEXIS 583 ( Ky. 1916 ); Bird v. Asher, 170 Ky. 726 , 186 S.W. 663, 1916 Ky. LEXIS 12 9 ( Ky. 1916 ); Marz v. Newport, 173 Ky. 147 , 190 S.W. 670, 1917 Ky. LEXIS 416 ( Ky. 1917 ); Barry v. Cloverport, 175 Ky. 548 , 194 S.W. 818, 1917 Ky. LEXIS 370 ( Ky. 1917 ); Leslie County v. Hoskins, 175 Ky. 821 , 195 S.W. 142, 1917 Ky. LEXIS 404 (Ky. 1917); In re Covington, 176 Ky. 140 , 195 S.W. 439, 1917 Ky. LEXIS 32 (Ky. 1917); Kimbley v. Owensboro, 176 Ky. 532 , 195 S.W. 1087, 1917 Ky. LEXIS 75 (Ky. 1917); London v. Brown, 183 Ky. 63 , 208 S.W. 317, 1919 Ky. LEXIS 436 ( Ky. 1919 ); Samuels v. Clinton, 188 Ky. 300 , 221 S.W. 1075, 1920 Ky. LEXIS 275 ( Ky. 1920 ); Hopkins v. Dickens, 188 Ky. 368 , 222 S.W. 101, 1920 Ky. LEXIS 28 8 ( Ky. 1920 ); Moores v. Board of Trustees, 189 Ky. 148 , 224 S.W. 645, 1920 Ky. LEXIS 393 (Ky. 1920); Byrne & Speed Coal Co. v. Louisville, 189 Ky. 346 , 224 S.W. 883, 1920 Ky. LEXIS 429 (Ky. 1920); Bosworth v. Middlesboro, 190 Ky. 246 , 227 S.W. 170, 1921 Ky. LEXIS 420 ( Ky. 1921 ); Crick v. Rash, 190 Ky. 820 , 229 S.W. 63, 1921 Ky. LEXIS 516 ( Ky. 1921 ); Percival v. Covington, 191 Ky. 337 , 230 S.W. 300, 1921 Ky. LEXIS 318 (Ky. 1921); Lawson v. Greenup, 192 Ky. 268 , 232 S.W. 383, 1921 Ky. LEXIS 23 (Ky. 1921); King v. Katterjohn, 193 Ky. 359 , 236 S.W. 250, 1922 Ky. LEXIS 3 ( Ky. 1922 ); Lexington v. Board of Education, 193 Ky. 566 , 236 S.W. 1030, 1922 Ky. LEXIS 28 ( Ky. 1922 ); Knepfle's Ex'x v. Southgate, 194 Ky. 346 , 238 S.W. 1051, 1922 Ky. LEXIS 15 6 (Ky. 1922); Bass v. Katterjohn, 194 Ky. 284 , 239 S.W. 53, 1922 Ky. LEXIS 164 (Ky. 1922); Sutherland v. Board of Education, 200 Ky. 23 , 252 S.W. 123, 1923 Ky. LEXIS 12 ( Ky. 1923 ); Harris v. Morganfield, 201 Ky. 588 , 257 S.W. 1032, 1924 Ky. LEXIS 6 03 ( Ky. 1924 ); Clarke v. Russellville, 202 Ky. 794 , 261 S.W. 265, 1924 Ky. LEXIS 806 (Ky. 1924); Billeter & Wiley v. State Highway Com., 203 Ky. 15 , 261 S.W. 855, 1924 Ky. LEXIS 847 (Ky. 1924); Owensboro v. Board of Trustees, 210 Ky. 482 , 276 S.W. 143, 1925 Ky. LEXIS 714 ( Ky. 1925 ); Darnaby v. Furlong, 216 Ky. 475 , 287 S.W. 913, 1926 Ky. LEXIS 910 ( Ky. 1926 ); Ravenna v. Boyer Fire Apparatus Co., 218 Ky. 429 , 291 S.W. 782, 1927 Ky. LEXIS 200 ( Ky. 1927 ); Johnson v. Whitley County, 219 Ky. 275 , 292 S.W. 797, 1927 Ky. LEXIS 314 ( Ky. 1927 ); Waller v. Union County, 223 Ky. 63 6, 4 S.W.2d 414, 1928 Ky. LEXIS 401 ( Ky. 1928 ); Pulaski County v. Farmers' Nat'l Bank, 225 Ky. 437 , 225 Ky. 439 , 9 S.W.2d 48, 1928 Ky. LEXIS 789 ( Ky. 1928 ); Craft v. Richie, 225 Ky. 652 , 9 S.W.2d 986, 1928 Ky. LEXIS 835 (Ky. 1928); Roberts v. Taylor, 226 Ky. 640 , 11 S.W.2d 710, 1928 Ky. LEXIS 15 2 (Ky. 1928); Boll v. Ludlow, 227 Ky. 208 , 12 S.W.2d 301, 1928 Ky. LEXIS 483 (Ky. 1928); Lawson v. Greenup, 227 Ky. 414 , 13 S.W.2d 281, 1929 Ky. LEXIS 89 1 ( Ky. 1929 ); Davis v. Newport, 239 Ky. 610 , 40 S.W.2d 281, 1931 Ky. LEXIS 836 ( Ky. 1931 ); Fiscal Court of Union County v. Young, 242 Ky. 335 , 46 S.W.2d 473, 1932 Ky. LEXIS 267 ( Ky. 1932 ); Allen v. Hollingsworth, 246 Ky. 812 , 56 S.W.2d 530, 1933 Ky. LEXIS 32 ( Ky. 1933 ); Knox County v. Newport Culvert Co., 248 Ky. 661 , 59 S.W.2d 558, 1933 Ky. LEXIS 287 ( Ky. 1933 ); W. T. Congleton Co. v. Williamsburg, 253 Ky. 704 , 70 S.W.2d 376, 1934 Ky. LEXIS 726 ( Ky. 1934 ); La Follette v. Ovesen, 314 Ky. 535 , 236 S.W.2d 457, 1951 Ky. LEXIS 687 ( Ky. 1951 ); Hager v. Cisco, 256 Ky. 708 , 76 S.W.2d 614, 1934 Ky. LEXIS 446 ( Ky. 1934 ); Board of Education v. Nelson, 261 Ky. 466 , 88 S.W.2d 17, 1935 Ky. LEXIS 681 ( Ky. 1935 ); Rose v. Elliott County, 262 Ky. 768 , 91 S.W.2d 60, 1936 Ky. LEXIS 100 ( Ky. 1936 ); Jones v. Paducah, 263 Ky. 542 , 92 S.W.2d 811, 1936 Ky. LEXIS 213 ( Ky. 1936 ); Ex parte Marshall Fiscal Court, 264 Ky. 550 , 95 S.W.2d 33, 1936 Ky. LEXIS 366 (Ky. 1936); Stumbo v. Dingus' Adm'x, 265 Ky. 67 3 , 97 S.W.2d 585, 1936 Ky. LEXIS 560 (Ky. 1936); Herd v. Middlesboro, 266 Ky. 488 , 99 S.W.2d 458, 1936 Ky. LEXIS 692 (Ky. 1936); Lock v. Middlesboro, 267 Ky. 19, 101 S.W.2d 203, 1937 Ky. LEXIS 279 ( Ky. 1937 ); Lock v. Middlesboro, 268 Ky. 25 9, 104 S.W.2d 991, 1937 Ky. LEXIS 451 ( Ky. 1937 ); Towe v. Scottsville, 269 Ky. 486 , 107 S.W.2d 326, 1937 Ky. LEXIS 628 (Ky. 1937); Field v. Catlettsburg, 270 Ky. 25 , 108 S.W.2d 1017, 1937 Ky. LEXIS 15 (Ky. 1937); Scott County Board of Education v. McMillen, 270 Ky. 483 , 109 S.W.2d 1201, 1937 Ky. LEXIS 100 (Ky. 1937); Hockley v. Carter County, 270 Ky. 594 , 110 S.W.2d 292, 1937 Ky. LEXIS 123 (Ky. 1937); McHargue v. Laurel County, 270 Ky. 638 , 110 S.W.2d 419, 1937 Ky. LEXIS 128 (Ky. 1937); Smith v. Mayfield, 270 Ky. 784 , 110 S.W.2d 1081, 1937 Ky. LEXIS 163 (Ky. 1937); Booth v. Carrollton, 272 Ky. 250 , 114 S.W.2d 93, 1938 Ky. LEXIS 112 ( Ky. 1938 ); First Nat'l Bank v. Princeton, 273 Ky. 601 , 117 S.W.2d 210, 1938 Ky. LEXIS 676 ( Ky. 1938 ); Cook v. North Middletown, 275 Ky. 338 , 121 S.W.2d 719, 1938 Ky. LEXIS 428 (Ky. 1938); Hale v. Fiscal Court of Fulton County, 282 Ky. 475 , 138 S.W.2d 937, 1940 Ky. LEXIS 179 ( Ky. 1940 ); Middlesboro v. Kentucky Utilities Co., 284 Ky. 833 , 146 S.W.2d 48, 1940 Ky. LEXIS 587 (Ky. 1940); Alvey v. Brigham, 286 Ky. 610 , 150 S.W.2d 935, 1940 Ky. LEXIS 6 (Ky. 1940); Rogers v. Pike County Bd. of Sup'rs., 288 Ky. 742 , 157 S.W.2d 346, 1941 Ky. LEXIS 199 ( Ky. 1941 ); Wallins v. Luten Bridge Co., 291 Ky. 73 , 163 S.W.2d 276, 1942 Ky. LEXIS 181 ( Ky. 1942 ); Stith v. Board of Education, 292 Ky. 91 , 166 S.W.2d 58, 1942 Ky. LEXIS 53 ( Ky. 1942 ); Marion v. Nunn, 292 Ky. 251 , 166 S.W.2d 298, 1942 Ky. LEXIS 70 (Ky. 1942); Webster v. Frankfort Housing Com., 293 Ky. 114 , 168 S.W.2d 344, 1943 Ky. LEXIS 559 ( Ky. 1943 ); Fiscal Court of Monroe County v. Board of Education, 294 Ky. 758 , 172 S.W.2d 624, 1943 Ky. LEXIS 53 4 ( Ky. 1943 ); Dodge v. Jefferson County Board of Education, 298 Ky. 1, 181 S.W.2d 406, 1944 Ky. LEXIS 815 ( Ky. 1944 ); Allen County Fiscal Court v. Allen County Farm Bureau, 298 Ky. 220 , 182 S.W.2d 660, 1944 Ky. LEXIS 877 (Ky. 1944); W. C. Thornburgh Co. v. Fiscal Court of Trigg County, 299 Ky. 578 , 186 S.W.2d 185, 1945 Ky. LEXIS 465 ( Ky. 1945 ); Miller v. Quertermous, 304 Ky. 73 3, 202 S.W.2d 389, 1947 Ky. LEXIS 712 ( Ky. 1947 ); Jody v. London, 305 Ky. 303 , 203 S.W.2d 41, 1947 Ky. LEXIS 786 ( Ky. 1947 ); Sanitation Dist. of Jefferson County v. Louisville & Jefferson County Metropolitan Sewer Dist., 307 Ky. 422 , 208 S.W.2d 751, 1948 Ky. LEXIS 616 ( Ky. 1948 ); Rowland v. Winchester, 306 Ky. 772 , 209 S.W.2d 305, 1948 Ky. LEXIS 64 6 ( Ky. 1948 ); Rash v. Louisville & Jefferson County Metropolitan Sewer Dist., 309 Ky. 442 , 217 S.W.2d 232, 1949 Ky. LEXIS 670 ( Ky. 1949 ); Miller v. Ashland, 310 Ky. 680 , 221 S.W.2d 620, 1949 Ky. LEXIS 986 ( Ky. 1949 ); Monroe County v. County Debt Com., 247 S.W.2d 507, 1952 Ky. LEXIS 70 8 ( Ky. 1952 ); Deters v. Louisville, 249 S.W.2d 796, 1952 Ky. LEXIS 870 ( Ky. 1952 ); Maggard v. Marcum, 252 S.W.2d 41, 1952 Ky. LEXIS 977 (Ky. 1952); Howard v. Harlan, 256 S.W.2d 523, 1953 Ky. LEXIS 75 3 ( Ky. 1953 ); Dyche v. London, 288 S.W.2d 648, 1956 Ky. LEXIS 271 ( Ky. 1956 ); Cramer v. Catlettsburg, 300 S.W.2d 555, 1957 Ky. LEXIS 455 ( Ky. 1957 ); Lyon v. Holbrook, 316 S.W.2d 862, 1958 Ky. LEXIS 66 ( Ky. 1958 ); Board of Trustees v. Paducah, 333 S.W.2d 515, 1960 Ky. LEXIS 196 ( Ky. 1960 ); Petrey v. Hazard, 346 S.W.2d 534, 1961 Ky. LEXIS 314 ( Ky. 1961 ); Dixon v. County of Elliott, 357 S.W.2d 852, 1962 Ky. LEXIS 148 ( Ky. 1962 ); Hickman, Inc. v. Choate, 379 S.W.2d 238, 1964 Ky. LEXIS 227 ( Ky. 1964 ); Holsclaw v. Stephens, 507 S.W.2d 462, 1973 Ky. LEXIS 3 ( Ky. 1973 ); Porter v. Hospital Corp. of America, 696 S.W.2d 793, 1985 Ky. App. LEXIS 647 (Ky. Ct. App. 1985).

Opinions of Attorney General.

A special election to determine whether or not the maximum tax rate should be increased can be held on the regular election day. OAG 60-563 .

This section requires that a city of the sixth class, in order to raise the maximum tax rate from 75 cents for the purchase of fire equipment, must have the assent of two thirds (2/3) of the voters voting on the question. OAG 60-563 .

A contract entered into by the fiscal court for delivery of a piece of equipment during the current fiscal year but for which the first payment would be deferred until the next fiscal year would be void where the budge for the year in which payment would be made had not been approved when the contract was made. OAG 61-408 .

A special tax to be levied for the operation of a county health department could only be levied in the manner provided in KRS 212.720 to 212.740 . OAG 62-618 .

The county fiscal court could not make a special tax levy to finance a county health department. OAG 62-618 .

The debt of a watershed conservancy district created by judgment of the circuit court in a reverse condemnation proceeding could perhaps be satisfied by an additional tax levy in excess of the maximum rate set out in this section and KRS 262.760 . OAG 63-995 .

A tax for a fire protection district levied by the fiscal court must be included in the computation of the 50-cent county tax limit. OAG 63-1079 .

Under KRS 173.520(2)(b), the entire principal sum borrowed shall not exceed 50 per cent of the anticipated revenue for the fiscal year in which the money is borrowed. OAG 64-207 .

The special library tax levy must be included in determining the maximum tax levy permitted under this section. OAG 64-250 .

The incurrence of debt for essential governmental purposes is valid though the results may exceed the limitations of Const., § 158, but payment must be effected out of funds raised within the tax rate structure limitations of this section. OAG 64-700 .

A county library district could not borrow funds to build a new building to be repaid from tax revenues over a period of 20 years. OAG 65-261 .

The execution of a mortgage by a municipality on the physical properties of an off-street parking project as additional security for the revenue bonds issued to finance the project would create a prohibited indebtedness of the city under this section and Const., § 158. OAG 65-473 .

A first mortgage executed by a city on parking meters partially financed by money from the general fund would create a prohibited indebtedness within the meaning of this section and Const., § 158. OAG 65-485 .

If a city borrowed the sum of $17,000 by executing a note for that amount to a local bank, even though the city were permitted to pay off the note in equal instalments over a period of five (5) years, such a loan would involve the aggregate or total amount of $17,000, rather than the $17,000 being broken into five (5) equal parts. OAG 66-689 .

The metropolitan sewer district building corporation, a nonprofit, no-stock, public organization, organized pursuant to KRS ch. 273, is the lawful agency and instrumentality of Louisville and Jefferson County metropolitan sewer district in the implementation and carrying out of the lawful corporate purposes of the joint district, and particularly in the implementation of the power granted metropolitan sewer district by KRS 76.080(6), and the interest on the bonds issued by it is exempt from both federal and state income taxation and from Kentucky state ad valorem taxation. OAG 67-197 .

The fact that a town did not collect taxes in 1965 would not prevent it from collecting taxes in subsequent years, using this section to find the base rate and applying the compensating factor of KRS 132.027 to it. OAG 67-449 .

An urban service district created under KRS ch. 108 does not qualify as a taxing district within the meaning of this section and Const., § 158. OAG 68-248 .

A county hospital could acquire equipment on a lease purchase arrangement whereby a rental would be paid monthly over a period of months in excess of 12 and, upon the completion of the required rental payments, the hospital would exercise its option to purchase. OAG 68-280 .

A county hospital could not legally purchase equipment on a monthly instalment payment plan that would extend over a period in excess of 12 months. OAG 68-280 .

A county hospital could not legally purchase equipment which could not be paid for within the fiscal year in which it was purchased. OAG 68-280 .

If a city borrows the sum of $249,800 by executing a note for that amount to a local bank, even though the city were permitted to pay the note over a short-term period, such loan would be construed to involve the aggregate or total amount of $249,800 in determining the limitation of the indebtedness of the city. OAG 68-479 .

A city’s borrowing $60,000 from its depository under a five (5) year note to purchase new garbage equipment would be a violation of this section. OAG 68-578 .

The establishment of a revolving capital improvement fund with money borrowed from the city investment fund and to be repaid over a five (5) year period from ad valorem taxes would be a violation of Const., § 158. OAG 69-255 .

A proposed financial plan for the city to acquire an off-street parking facility which would extend over four (4) years at a total cost equal to the approximate income of the city could violate this section and Const., § 158 which provide that the city may not incur indebtedness in excess of the anticipated revenue for the year unless there is an affirmative vote by two thirds (2/3) of the city’s inhabitants. OAG 69-258 .

This section refers to an indebtedness created by contract only and has no application to liability incurred for a part caused by or resulting from negligence and, as a consequence, a city can be required to levy a special tax in excess of the maximum rate permitted by this section to pay any judgment against it resulting from a tort action. OAG 69-555 .

Where six (6) years earlier the people of a city voted a bond issue for the construction of a floodwall but nothing further was done, the city would now be authorized to levy the special tax irrespective of the fact that the flood control project has not yet begun nor have the bonds actually been issued. OAG 69-577 .

The tax levied for county library purposes is a part of the county’s maximum permissible ad valorem tax rate authorized by this section (the county library is not a separate taxing district). The rolled back rate for the library tax levy is not to be counted or included in the county’s general tax levy. OAG 70-327 .

Under subsection (2) of KRS 216.317 , regardless of whether the voting method or the petition method is used, a hospital district is created which constitutes a separate taxing district. This method of establishing the district is reasonably suited to its purpose and does not contravene this section particularly since the petition method is equivalent to the voting method since a majority of the voters must sign the petition. OAG 70-816 .

While a city may create an indebtedness for a public purpose, there is a constitutional debt limit for each class of city which cannot be exceeded without an affirmative vote of two thirds (2/3) of the people living within the city. OAG 70-817 .

A library district cannot obligate itself to spend more money in a particular year than the anticipated income and revenue provided for such year. OAG 71-34 .

The entire principal indebtedness would govern and not the amount of principal to be paid each year in measuring an obligation of the library district against the requirements of this section. OAG 71-34 .

Where a proposed library building would exceed the debt limitations of the library district, a holding company could be used to borrow the necessary funds and lease the library building to the library district. OAG 71-34 .

Where, due to litigation, tax bills were not sent out until June 1 and the books were to be closed as of June 30, the county treasurer could, for the purpose of making properly budgeted expenditures, authorized by the fiscal court to be paid from the tax revenue collected from the June 1 tax bills, keep his accounting books open for the 75-day period required for the collection of the taxes. OAG 71-264 .

A second-class city may borrow money in anticipation of revenue for the fiscal half year in which the money is borrowed. OAG 71-460 .

County does not violate this section’s limitation on indebtedness by selling courthouse to a holding corporation for $1.00, after which the corporation borrows funds to renovate the courthouse and sells it back to the county by means of a lease purchase contract. OAG 72-32 .

A watershed conservancy district with an annual tax revenue of $17,000 may not procure a loan of $17,000 where that district has a previous obligation of $14,000 even though that obligation is broken down into instalments. OAG 72-568 .

For the purpose of the indebtedness limitations of the Constitution under this section and § 158 of the Constitution, the revenue-sharing money actually made available to the city and county for the year in which the proposed new indebtedness for the buildings will be incurred is a valid part of the two (2) governmental units’ revenue for that particular year. OAG 73-263 .

A city may borrow money to meet its pension fund obligations if such funds are not available in the city’s 1973 budget provided the total amount of the money borrowed does not exceed its anticipated revenue for the year in violation of this section and § 158. OAG 73-283 .

A county library board can obtain the levy of a tax by the county fiscal court over and beyond the county’s general tax levy by either establishing a library district and thus a separate taxing district organized under KRS 173.470 or KRS 173.720 or it may request the fiscal court, pursuant to KRS 67.083 , to present to the voters the question of an additional tax levy, which if assented to by two-thirds (2/3) of those voting upon the question, would be an intended, authorized “voting levy” and therefore not subject to KRS 68.245 (1) or prohibited by this section. OAG 73-291 .

When a county establishes a garbage district, such district can levy an annual tax on the property within the district or it may impose a service charge for users. The affairs of such a district would be controlled and managed by a board of directors who could operate the system directly or let a franchise and contract out on bids and, while the fiscal court may establish such district and boundaries for it, the legislative bodies of incorporated cities within the county boundary would have to approve their being made a part of the district and the fiscal court would have no authority to specify the methods of financing the district may use. OAG 73-487 .

All taxes levied by a county in one (1) year constitute one fund and are to be taken in the aggregate in computing the commission due the collecting officer except that where a special district is a separate taxing district and where commission procedure is not otherwise provided apart from KRS 134.290(2), the county should be reimbursed for that portion of the sheriff’s commission allocated to the collection of such separate taxing district taxes and paid by the county, as the library tax, under KRS 173.720 , and the public health taxing district tax, under KRS 212.720 , are not a part of the county tax within the prohibition of this section. OAG 73-647 .

If the county decides to issue county government obligation bonds, instead of revenue bonds, which would not be county obligations, then the limitations of this section and § 158 would have to be considered and, if an emergency were shown, the 2 per cent limit could be exceeded, but if the obligation exceeded the income and revenue of the county for a one-year period, the question would have to be submitted to the voters and whatever amount was borrowed would have to be measured against these limitations. OAG 73-764 .

A garbage and refuse disposal district is a public agency, rather than a private agency, since the directors on the governing body of the district must take an oath of office and have a definite term of office, the plans and operations of the district are governed by statute, and the board of directors has condemnation, bond issuing, and taxing power. OAG 73-813 .

A county cannot pledge money, pursuant to KRS 183.132 , to an airport board for airport purposes out of the general fund, without the vote of the people, unless the amount pledged can be found within the available income for the fiscal year. OAG 74-399 .

A fiscal court may pass an ordinance submitting the question as to the voting of an ad valorem tax, for the purpose of financing county ambulance service, at the general election, regardless of whether the county directly provides such services or contracts for such services, without being in conflict with any constitutional or statutory provision. OAG 75-158 .

Since KRS 75.040 authorizes the board of trustees of fire protection districts to levy taxes and as a separate taxing district under this section and § 158; it may borrow money in anticipation of but not in excess of its annual revenue for the year unless by an affirmative vote of the voters living within the district, it could borrow funds from a savings and loan association to purchase land and to erect a building to house its fire fighting facilities. OAG 75-511 .

This section does not authorize a special election for any situations coming under it. OAG 75-690 .

Neighborhood improvement districts do not have the authority to levy ad valorem property taxes as they are not taxing districts. OAG 76-33 .

A contract entered into by a county to pay an annual rental for a period of years is a creation of indebtedness for the aggregate amount of the rentals in the year in which the contract is made and where such indebtedness would exceed the revenue of the county for the year, it may not be contracted without the assent of two thirds (2/3) of the voters of the county. OAG 76-150 .

A county judge, on behalf of the fiscal court, could not validly enter into a lease contract with the United States for a 50-year term without a vote of approval by two thirds (2/3) of the voters at an election. OAG 76-538 .

A maintenance agreement in which the fiscal court agrees to the expenditure of county funds over a number of years to maintain an earthen dam for flood control purposes would violate this section. OAG 77-322 .

Industrial revenue bonds issued by a county pursuant to KRS Chapter 103 are not an indebtedness of the county within the meaning of this section. OAG 77-422 .

Control by the fiscal court of land acquisitions and capital expenditures of separate taxing districts would in effect strike down the autonomy of separate taxing districts within the meaning of this section. OAG 77-433 .

The entire amount of the obligation for whatever number of years must be considered in the initial year in determining the total indebtedness that the city will be obligated for as opposed to its anticipated revenue for said year, and if the total indebtedness exceeds the anticipated revenue in the initial year, this section would be violated. OAG 78-452 .

If fire trucks are purchased on a lease-purchase basis (that is, when so many rentals are paid on the truck then the title will be transferred to the city) and if the city would only obligate itself in renting the equipment for one (1) year, subject to renewals one (1) year at a time, and if the annual installments on the truck can be paid from current revenues within the fiscal year in which the loan is made, then the loan would be legal under this section. OAG 78-572 .

If the aggregate loan amount for foreclosing and remodeling a building cannot be paid by receipts during the fiscal year from current revenues, then such loan would be illegal under this section without a vote of the people. OAG 78-572 .

Without a vote of the people, any loan made to the city must not exceed, when considering the total financial obligations of the city for the particular fiscal year, the anticipated current revenue of the city for that fiscal year. OAG 78-572 .

A hospital district is a special taxing district, and the hospital district tax rate is entirely separate from the county tax ad valorem rate. OAG 79-100 .

When an indebtedness is incurred in excess of the anticipated revenue and it is not for essential governmental purposes, only the excess of the anticipated revenue would be considered void. OAG 79-126 .

A contract to pay an annual amount for a period of years creates an indebtedness for the aggregate amount in the year in which the contract is made. OAG 79-226 .

The tax rate restriction applicable to a separate taxing district does not involve the tax rate restriction of the county in which it is located. OAG 79-273 .

The limit of tax rate as fixed by this section is mandatory and absolute. OAG 79-273 .

Under this section the Legislature intended to create the extension district as a separate entity of government, a separate “governmental subdivision of the Commonwealth,” a separate public body corporate, and a separate taxing district. OAG 79-273 .

There is no requirement that the Legislature, in order to create a separate taxing district, must employ in the statute the magic words “shall constitute a separate taxing district within the meaning of § 157 of the Constitution.” OAG 79-273 .

The mortgage provision applied in KRS 103.251 is constitutional in terms of the indebtedness restrictions of this section and § 158 of the Constitution; since no general fund revenues or tax revenues of the city will ever be involved, even should the mortgage ever be foreclosed and the property sold, no deficiency judgment can be obtained against the city and the bond transaction does not fall within the rule given in Bowling Green v. Kirby, 220 Ky. 839 , 295 S.W. 1004, 1927 Ky. LEXIS 603 ( Ky. 1927 ), that where a mortgage could foreclose on project property, which was acquired by city revenues, the foreclosure and sale constituted payment of a debt by the municipality. OAG 79-439 .

While a city has an obligation of good faith to the industrial building revenue bondholders under the bond documents, that is not equivalent to the financial obligation of the city or city indebtedness under this section and § 158 of the Constitution. OAG 79-439 .

A fire protection district is a special and separate taxing district under this section and § 158 of the Constitution. OAG 79-647 .

The county judge/executive, with approval of the fiscal court as a body, could dissolve an agricultural extension district, provided it meets certain minimal constitutional requirements: (1) the fiscal court would hold a public hearing on the matter of dissolution; (2) all liabilities and contractual obligations of the district would have to be settled completely prior to dissolution. OAG 80-67 .

When this section and Const., § 158 are read in their entirety, the restrictions of those sections are to be applied to a unit of government constituting a “municipality” and a “taxing unit” at the same time, in other words, those designated categories must coexist in order for the restrictions to apply; an urban-county airport board has no taxing power, and since it is not a “taxing unit” it is not subject to the restrictions of this section and Const., § 158. OAG 80-333 .

A county fiscal court has the authority, pursuant to this section, to place the question of a special ad valorem tax levy for park construction and maintenance on the November general election ballot, if a contractual indebtedness in connection with the park is envisioned and such contractual indebtedness cannot be funded out of current county revenues; the requisite vote for passage is two-thirds (2/3) of the voters voting at such election. OAG 80-381 .

The issue of a special tax for the maintenance of a county park can be included on the same ballot with the question of a bond issue for the construction of the county park, provided the questions on the ballot clearly delineate the precise indebtedness involved in both categories; the bond issue question, under KRS 66.040 , requires two-thirds (2/3) of the votes on the question, and the special tax voted on must fund both the construction and maintenance of the county park. OAG 80-381 .

A fiscal court could engage in a five (5) year contract with a landfill operator at an agreed-to price for handling the county’s garbage and solid waste, but with the express understanding that payments to the landfill operator will come only out of the receipts to the county in the form of garbage system user charges; the contract should by an express provision make it clear that the fiscal court is not obligated to fund out of its general funds, created by tax revenues, the landfill contract and the hauling of the garbage and solid waste from the transfer station in the county to the landfill; the contract could also provide that during the five (5) year period the fiscal court would covenant to maintain the specific user charges agreed on, and that all county garbage would be delivered to that landfill operator. OAG 80-455 .

An emergency ambulance service district created either by referendum under KRS 108.100 or by action of the fiscal court under KRS 108.105 would be a special taxing district under this section, since KRS 108.100 and KRS 108.105 must be read together under the doctrine of in pari materia and since an autonomous special taxing district would not be included in the county’s ad valorem tax levy under KRS 68.245 . OAG 81-99 .

Where a hospital district is created pursuant to KRS 216.317 and is established by the secretary for human resources pursuant to KRS 216.320 so that it is a separate “taxing district” under this section, but the fiscal court has not levied an ad valorem tax to fund its operations, the district cannot constitutionally enter into a contract for a period in excess of one (1) year obligating it to pay a debt which cannot be funded from revenues available in the year in which the obligation is created unless it is specifically approved, pursuant to this section, by two thirds (2/3) of the voters residing in the taxing district. OAG 81-128 .

An ambulance service district is a special taxing district under subdivision (3) of KRS 108.100 and this section, and as such, the tax rate and debt limitations referred to in this section relate to that district rather than the county in which it is located; thus the sheriff, rather than the county, has the authority to collect the special ad valorem tax for the district. OAG 81-319 .

Since KRS 108.105 relates to an “alternative means of creating an ambulance service district,” that section and KRS 108.100 should be construed together in pari materia, in construing KRS 108.105 to involve a taxing district within the meaning of this section which involves a separate tax independent of the county tax levy. OAG 81-344 .

Where a vote of the people is necessary under this section, to validate a contractual debt occasioned by subsidizing a person or a company holding an emergency ambulance service franchise, the election law contains no minimum time for the fiscal court’s certifying by a formal order the question under this section to the county clerk before the regular election but it should be so certified to the county clerk, by a formal fiscal court order, before the ballots are printed. OAG 81-344 .

Future receipts of county coal severance funds could not be obligated by a fiscal court beyond its present term of office for the future construction of a high school pursuant to subsection (2)(f) of KRS 42.455 ; a fiscal court cannot, due to the restrictions of this section, create county obligations in any year which would be in excess of the county’s income and revenue for that particular year without a vote of the people. OAG 81-408 .

A county fiscal court can lease real property to a private entrepreneur for a five (5) year period without violating this section and Const., § 158 if the contractual obligation by the county for maintenance and repair during that period can be funded out of the current revenues available to the county in the year the lease is executed; otherwise the proposed lease must be approved by two-thirds (2/3) of the voters at an election held pursuant to this section. OAG 82-60 .

Where there is no contractual financial obligation created on the part of a county, the limitations of this section and § 158 of the Constitution do not come into play. OAG 82-60 .

The Legislature, in connection with a health taxing district under both KRS 212.725 and 212.755 , intended to make each type of health district a separate or special taxing district under this section. OAG 82-151 .

There is no rational basis for a distinction between a public health district created under KRS 212.720 and one created under KRS 212.750 . Both types of districts were intended to be special taxing districts under this section. OAG 82-151 .

Once a fiscal court properly set a county attorney’s salary as to maximum amount, the inability of the county to pay all of the salary at a certain time because the budget only provided for payment of a lesser amount would not constitutionally prevent the attorney’s later recovery of the balance owed under the appropriate statute of limitation. OAG 82-159 .

Where proposed water improvement and expansion project to be constructed by Corps of Engineers involves the exercise of governmental or legislative powers or the exercise of discretion, as opposed to the exercise of business or proprietary powers, the city legislative body may not enter into a contract to obligate itself to operate and maintain the project beyond the terms of its members. In addition, the constitutional debt limit question could be involved where the agreement extends for many years as a city cannot become indebted in an amount exceeding in any year the income and revenue provided for such year. OAG 82-235 .

A library district can qualify to issue revenue bonds under KRS Ch. 58, since it is a special taxing district under this section and is a “governmental agency” under KRS 58.010(3). If it issues revenue bonds for a proposed project, the library district board can exercise the power to condemn real estate pursuant to KRS 58.140 . OAG 82.343.

If a proposed loan from local banks to a county hospital could not be completely funded out of tax revenues available in the accounting year in which the loan was made, the loan would be void without a vote of the people, as required by this section. That would be true even if the debt were within the limits set by Const., § 158. OAG 82-401 .

Patient revenues cannot be included as “income and revenue” of a hospital within the meaning of this section. OAG 82-401 .

The future revenues envisioned in this section relate only to such future revenues as can be exacted in the form of taxes. OAG 82-401 .

The payment of expenses of the usual and current administration of government, i.e., compulsory obligations of government arising out of statutory law, are not within the prohibitive range of this section. However, the operation of a hospital by the county is not mandatory; therefore, a proposed debt relating to a hospital fell within the operative provisions of Const., § 158 and this section. OAG 82-401 .

Where a county hospital faced a cash-flow crisis and needed to acquire funds to meet that crisis, the proposed debt could be validated by submitting it to a vote of the people under this section if such debt would exceed the available tax revenues for the particular year. The necessary affirmative vote required by this section would validate such an obligation either with government obligation bond financing or without any bond issue assuming that the limits of Const., § 158 were observed. OAG 82-401 .

This section only places an inhibition on the “indebtedness” of a county or municipality; it does not purport to direct any specific form or type of indebtedness. Obviously, this section was written for the protection of the taxpayers of counties and municipalities. OAG 82-446 .

Where a county, in order to fund an operating deficit of the county hospital, proposed to enter into an obligation in the form of notes payable solely and only out of a “special fund,” i.e., the revenues of the county hospital and, although the notes would probably be set up in terms of one (1) year obligations, it would be the intention of the county and the hospital, on the one hand, and the owners of the notes on the other hand, to renegotiate the contract each year for a period of seven (7) years with a continually decreasing total such that the entire obligation would be paid in seven (7) years time, and where the notes would declare on their face that payment would be made solely and only from the revenues of the hospital and that the county would have no obligation, directly or indirectly, to pay the notes from the county treasury or budgeted funds of the county, such proposed loan would not violate this section and would be legal. OAG 82-446 .

Pursuant to Const., § 158 and this section, a county is required to adopt, budget-wise, the pay-as-you-go plan and not to incur obligations in excess of its current revenues. OAG 83-49 .

The library tax imposed under KRS 173.720 is not a part of the county tax within the prohibition of this section; to the contrary, the library tax is a tax levied by a new authorized and separate taxing district pursuant to statutory authority. OAG 83-310 .

Road equipment expense is not a necessary and compulsory governmental expense. OAG 83-323 .

There is an exception to the restrictions of Const., § 158 and this section which consists of obligations for essential governmental services and functions; examples of “essential governmental expenses” are salaries of county officials and employees, expenses of holding county elections and the expense of maintaining a county hospital. OAG 83-323 .

Since the leasing of road equipment does not involve an essential and compulsory governmental service or function, if a lease contract involves an assumption by the county of a total debt of lease payments which exceeds the income and revenue available to the county for the particular year in which the lease is executed, the contract would violate this section in the absence of a requisite vote of the people; in the event that such lease would involve a lease for only one (1) year, which could at the option of fiscal court be renewed from year to year (the county only being obligated for one (1) year at a time), and assuming that the county has currently available revenue to cover the first year’s rental (and has available the current revenue to cover any subsequent one (1) year renewal), and assuming the limit of Ky. Const., § 158 is met, then this section would not be violated. OAG 83-323 .

A board of managers of the city/county hospital, selected by the county judge and city mayor to operate the affairs of the hospital, is not a municipality within the meaning of this section. OAG 83-388 .

A city commission of a third-class city could not undertake to purchase real property on an installment contract basis from general revenues of the city at a total cost in excess of anticipated revenue for the current fiscal year without enactment of an ordinance pursuant to KRS 91A.030 and without compliance with the referendum requirement of this section. OAG 84-74 .

The manifest purpose of this section was to inaugurate and perpetuate the “pay-as-you-go” plan of government in the local branches of government and to prevent fiscal authorities invested with the power to appropriate public moneys from incurring obligations in excess of the income and revenue, actually provided for by levy or otherwise, in the absence of the necessary constitutional vote. OAG 84-293 .

A fire protection district is a “governmental agency,” as defined in KRS 58.180 , and could thus use the corporate bond mechanism established in KRS 58.180 . Therefore, a fire protection district may create a nonprofit corporation and provide for the issuance of the corporation’s revenue bonds to finance a firehouse and related facilities. OAG 84-328 .

A fire protection district, as a special taxing district under this section and § 158 of the Constitution, is a “governmental agency,” as defined in KRS 58.010(3); thus, it has the authority to acquire, construct, and maintain a firehouse or other directly related facilities by the issuance of revenue bonds, pursuant to KRS 58.020 . OAG 84-328 .

The health district, acting through the health board, may execute a land contract for the purchase of property for district purposes, pursuant to KRS 212.740 , subject to this section, payable from district ad valorem taxes, under KRS 212.725 and 212.755 . OAG 84-385 .

Public health taxing district was designated as a separate taxing district within the meaning of this section, pursuant to KRS 212.720 and 212.750 . Thus, where county board of health sought to purchase property for the purpose of expansion by way of a conventional 10- or 15-year note and mortgage, this section required that the total indebtedness be fundable from the revenue available to the district for the year in which the obligations were executed; if the indebtedness would exceed the income and revenue actually available for the year in which the obligation was incurred, the assent of two-thirds (2/3) of the voters of the district at an election for that purpose would be required. OAG 84-385 .

A fire protection district is a special and separate taxing district under this section and Const., § 158. OAG 85-65 .

In a county with a population of less than thirty thousand, a fiscal court can produce new or additional revenue other than that derived from the ordinary ad valorem tax rate by levying a license or occupational tax without a vote of the people if the county does not already have a general license or occupational tax. OAG 85-84 .

By exempting school districts from the scope of application of the act, and by permitting termination by a taxing district on a year-to-year basis of a contractual arrangement with an agency, Acts 1986, ch. 13, which repealed the Tax Increment Act, KRS 99.750 , and enacted KRS 99.751 , 99.756 , 99.761 , 99.766 and 99.771 (now see KRS 65.490 et seq.), has remedied the constitutional problems under this section and Const., § 184 that the Supreme Court in Miller v. Covington Development Authority, 539 S.W.2d 1, 1976 Ky. LEXIS 40 ( Ky. 1976 ), found with the Tax Increment Act. OAG 86-48 .

Constitution §§ 26, 158, 162, 179 and this section do not impose a general ban upon a county agreeing to joint and several liability with other counties or political entities; furthermore, these constitutional sections do not prohibit payment of obligations incurred in a prior year, from moneys of a subsequent year. OAG 93-54 .

Research References and Practice Aids

Cross-References.

City taxes, levy of, KRS 91.260 to 91.280 , 92.280 to 92.320 .

County taxes, levy of, KRS 68.090 .

County tax in excess of 50 cents per hundred for maintenance of tubercular institution, KRS 68.090 .

Improvements, financing through special assessments, KRS 91A.200 to 91A.290 .

School taxes, levy of, KRS 160.460 to 160.477 .

Taxation by cities and counties, Const., § 181.

Kentucky Bench & Bar.

Tobergate, The Impact of Kentucky’s Present Constitution Upon Business Growth & Development, Volume 51, No. 3, Summer 1987 Ky. Bench & B. 21.

Kentucky Law Journal.

Stephenson, Property Assessment Remedies for the Kentucky Taxpayer, 60 Ky. L.J. 84 (1971).

Stevens, Property Tax Revenue Assessment Levels and Taxing Rates: The Kentucky Rollback Law, 60 Ky. L.J. 105 (1971).

Markham, The Property Tax — A Withering Vine, 60 Ky. L.J. 174 (1971).

Kentucky Law Survey, Morris, Municipal Law, 70 Ky. L.J. 287 (1981-82).

Northern Kentucky Law Review.

Notes, County Government — Home Rule —The General Assembly Must Grant Governmental Powers to Fiscal Courts “With the Precision of a Rifle Shot and Not With the Casualness of a Shotgun Blast” — Fiscal Court v. City of Louisville, 559 S.W.2d 478, 1977 Ky. LEXIS 554 ( Ky. 1977 ), 5 N. Ky. L. Rev. 107 (1978).

§ 157a. Credit of commonwealth may be loaned or given to county for roads — County may vote to incur indebtedness and levy additional tax for roads.

The credit of the Commonwealth may be given, pledged or loaned to any county of the Commonwealth for public road purposes, and any county may be permitted to incur an indebtedness in any amount fixed by the county, not in excess of five per centum of the value of the taxable property therein, for public road purposes in said county, provided said additional indebtedness is submitted to the voters of the county for their ratification or rejection at a special election held for said purpose, in such manner as may be provided by law and when any such indebtedness is incurred by any county said county may levy, in addition to the tax rate allowed under Section 157 of the Constitution of Kentucky, an amount not exceeding twenty cents on the one hundred dollars of the assessed valuation of said county for the purpose of paying the interest on said indebtedness and providing a sinking fund for the payment of said indebtedness.

History. As proposed by Acts 1908, ch. 36, and ratified by the voters at the November election, 1909.

Compiler’s Notes.

An amendment to this section was proposed by the 1990 General Assembly (Acts 1990, ch. 150, § 2), was submitted to the voters for ratification or rejection at the regular election in November, 1990, and was defeated.

NOTES TO DECISIONS

Cross-References

Cross-References

See note to Const., § 158 under heading “13. — Road Bonds”: Richardson v. Monroe County, 271 Ky. 368 , 112 S.W.2d 47, 1937 Ky. LEXIS 244 ( Ky. 1937 ), overruled, Bell v. Board of Education, 343 S.W.2d 804, 1961 Ky. LEXIS 433 ( Ky. 1961 ).

1.Construction.

This section is complete in itself and independent of any other section of the constitution. Bird v. Asher, 170 Ky. 726 , 186 S.W. 663, 1916 Ky. LEXIS 129 ( Ky. 1916 ).

The debt limits of Const., § 158 do not apply to this section. Bird v. Wilson, 171 Ky. 807 , 188 S.W. 899, 1916 Ky. LEXIS 439 ( Ky. 1916 ).

The limitations on counties in Const., § 158 are inapplicable to bonds issued for roads and bridges. Shearin v. Ballard County, 266 Ky. 806 , 100 S.W.2d 836, 1937 Ky. LEXIS 12 ( Ky. 1937 ). See Shearin v. Ballard County, 267 Ky. 737 , 103 S.W.2d 292, 1937 Ky. LEXIS 393 ( Ky. 1937 ).

Road and bridge bonds voted under this section are excluded from the debt limitations of Const., §§ 157 and 158. Fulton County Fiscal Court v. Southern Bell Tel. & Tel. Co., 285 Ky. 17 , 146 S.W.2d 15, 1940 Ky. LEXIS 591 ( Ky. 1940 ).

Road and bridge bonds may be issued under this section or under the provisions of Const., § 157. Defoe v. Perry County, 293 Ky. 487 , 169 S.W.2d 309, 1943 Ky. LEXIS 647 ( Ky. 1943 ).

2.Use of Funds.

A county may use the funds voted under this section to build roads or bridges. Whitley County v. Luten Bridge Co., 208 Ky. 625 , 271 S.W. 676, 1925 Ky. LEXIS 351 ( Ky. 1925 ).

3.Issuance of Bonds.

The court need not issue the full amount of the bonds authorized at one time, and therefore a reasonable time will be allowed within which to dispose of remaining portion of an issue. Young v. Fiscal Court of Trimble County, 190 Ky. 604 , 227 S.W. 1009, 1921 Ky. LEXIS 479 ( Ky. 1921 ).

The fiscal court’s delay in issuing bonds which had been authorized by a vote of the people did not constitute an abandonment of authority to issue them. Weathers v. Todd County, 271 Ky. 172 , 111 S.W.2d 638, 1937 Ky. LEXIS 220 ( Ky. 1937 ).

4.— Incurrence of Debt.

A debt under this section is not incurred until the bonds are issued and sold, and therefore an election approving a bond issue is not invalid because at that time the debt limit was exceeded when it was not exceeded at the time the bonds were issued and sold. Young v. Fiscal Court of Trimble County, 190 Ky. 604 , 227 S.W. 1009, 1921 Ky. LEXIS 479 ( Ky. 1921 ).

5.Approval of Voters.

An election under this section does not require more than a majority of those voting to give their assent in order to authorize an indebtedness to be incurred. Bowman v. Fayette County, 168 Ky. 524 , 182 S.W. 633, 1916 Ky. LEXIS 587 ( Ky. 1916 ).

An indebtedness may be incurred by a simple majority vote under this section, and the two-thirds vote provided for in Const., § 157 has no application. Gatton v. Fiscal Court of Daviess County, 169 Ky. 425 , 184 S.W. 1, 1916 Ky. LEXIS 705 ( Ky. 1916 ). See Crick v. Rash, 190 Ky. 820 , 229 S.W. 63, 1921 Ky. LEXIS 516 ( Ky. 1921 ).

An indebtedness for road purposes may be created by a majority of the voters of a county who participate in an election on that subject. Cleary v. Pieper, 169 Ky. 434 , 184 S.W. 4, 1916 Ky. LEXIS 707 ( Ky. 1916 ). See Houston v. Boltz, 169 Ky. 640 , 185 S.W. 76, 1916 Ky. LEXIS 754 ( Ky. 1916 ).

An indebtedness under this section may be authorized by a majority of the voters voting in the election. Denton v. Pulaski County, 170 Ky. 33 , 185 S.W. 481, 1916 Ky. LEXIS 9 ( Ky. 1916 ).

6.— Petition for Election.

The petition for an election need not designate a date for the election nor state expressly the amount of indebtedness to be incurred. Payne v. Fiscal Court of Carlisle County, 200 Ky. 41 , 252 S.W. 127, 1923 Ky. LEXIS 14 ( Ky. 1923 ).

7.— Time of Election.

Under the election provisions of this section, and the statute providing that such an election shall be held on some day named in the petition not earlier than 60 days after application, an election need not be held on a regular election day. Walsh v. Asher, 163 Ky. 377 , 173 S.W. 808, 1915 Ky. LEXIS 231 ( Ky. 1915 ). See Albright v. Ballard, 164 Ky. 747 , 176 S.W. 185, 1915 Ky. LEXIS 441 ( Ky. 1915 ).

8.— Form of Ballot.

The omission of the term “bridges” on the ballot concerning a prospective bond issue does not invalidate the election. Denton v. Pulaski County, 170 Ky. 33 , 185 S.W. 481, 1916 Ky. LEXIS 9 ( Ky. 1916 ).

9.Amount of Levy.

The legislature has no power to authorize a levy of more than 20 cents on each $100 of taxable property. Mitchell v. Knox County Fiscal Court, 165 Ky. 543 , 177 S.W. 279, 1915 Ky. LEXIS 557 ( Ky. 1915 ).

The fiscal court has no power to levy a tax exceeding 20 cents on each $100 worth of property in the county, under the provisions of this section. Collier v. Bourbon Fiscal Court, 188 Ky. 491 , 223 S.W. 149, 1920 Ky. LEXIS 307 ( Ky. 1920 ).

The total amount collected for road purposes is limited to 20 cents per $100 of assessed valuation, not to 20 cents for current expenditures and 20 cents for payment of outstanding bonds. Anderson v. Gillis, 242 Ky. 404 , 46 S.W.2d 508, 1932 Ky. LEXIS 282 ( Ky. 1932 ).

10.— Property Involved.

A levy for the payment of bonds issued under this section is to apply to the property then taxable for local purposes at the time of the levy. Jones v. Citizens' Bank of Hartford, 228 Ky. 699 , 15 S.W.2d 468, 1929 Ky. LEXIS 614 ( Ky. 1929 ).

11.— Outstanding Bond Debt.

Where a bond issue had been voted by the people and a levy of 20 cents on each $100 of taxable property was still in effect on unpaid part of the bond issue for roads and bridges, the county could not make an additional levy. Rockcastle County v. Louisville & N. R. Co., 232 Ky. 439 , 23 S.W.2d 276, 1929 Ky. LEXIS 447 ( Ky. 1929 ).

12.Bonds.
13.— Amount.

The assessed value of property at the time bonds are sold determines the limitation on their amount but the assessed value must be presumed to be that of the last complete and final assessment. Gillis v. Anderson, 256 Ky. 472 , 76 S.W.2d 279, 1934 Ky. LEXIS 433 ( Ky. 1934 ).

The amount of bonds which may be issued is to be computed at the 20-cent levy on the taxable property taxable by the county according to the last assessment preceding the issue and no bond in excess of that amount is valid. Whitley County v. Hermann, 263 Ky. 440 , 92 S.W.2d 797, 1936 Ky. LEXIS 208 ( Ky. 1936 ).

14.— Payment.

All the money raised by the 20-cent tax must be applied to the payment of the debt created under this section and none of the money may be used or appropriated for any other purpose until the debt under this section has been paid in full. Bird v. Asher, 170 Ky. 726 , 186 S.W. 663, 1916 Ky. LEXIS 129 ( Ky. 1916 ).

Bonds issued under this section must be limited to an amount which can be paid from the 20-cent levy but the court may appropriate a portion of the levy under Const., § 157 to pay the interest on and create a sinking fund to redeem the bonds. Smith v. Livingston County, 195 Ky. 382 , 242 S.W. 612, 1922 Ky. LEXIS 337 ( Ky. 1922 ).

County is not required to retire road and bridge bonds from funds other than receipts from the special levy, although it has the option to apply moneys from its general fund. Pulaski County v. Ben Hur Life Ass'n, 286 Ky. 119 , 149 S.W.2d 738, 1941 Ky. LEXIS 210 ( Ky. 1941 ).

Levy of the 20-cent tax is not mandatory, and the county may retire the bonds from general funds. Pulaski County v. Ben Hur Life Ass'n, 286 Ky. 119 , 149 S.W.2d 738, 1941 Ky. LEXIS 210 ( Ky. 1941 ).

15.Indebtedness.

The indebtedness authorized by this section and KRS 178.170 may be in addition to the aggregate county indebtedness authorized and limited by Const., §§ 157 and 158. Pulaski County v. Ben Hur Life Ass'n, 286 Ky. 119 , 149 S.W.2d 738, 1941 Ky. LEXIS 210 ( Ky. 1941 ).

16.— Valid.

Bonds issued in compliance with this section and other applicable statutory and constitutional provisions are valid obligations of the county. Shaw v. Fiscal Court of Graves County, 288 Ky. 215 , 155 S.W.2d 856, 1941 Ky. LEXIS 79 ( Ky. 1941 ).

17.— Invalid.

A county may not legally assume a debt beyond the amount which the 20-cent levy will take care of, if that is the sole source of revenue pledged for its payment. Pulaski County v. Ben Hur Life Ass'n, 286 Ky. 119 , 149 S.W.2d 738, 1941 Ky. LEXIS 210 ( Ky. 1941 ).

If part only of an issue is excessive, each bond thereof is void only as to its pro rata part of the excess. Pulaski County v. Ben Hur Life Ass'n, 286 Ky. 119 , 149 S.W.2d 738, 1941 Ky. LEXIS 210 ( Ky. 1941 ).

This section prohibits issuance of evidences of indebtedness beyond the amount prescribed, and bonds in excess thereof are void in the hands of even a bona fide holder. Pulaski County v. Ben Hur Life Ass'n, 286 Ky. 119 , 149 S.W.2d 738, 1941 Ky. LEXIS 210 ( Ky. 1941 ).

18.Negotiability.

The bonds authorized by KRS 178.170 are negotiable. Pulaski County v. Ben Hur Life Ass'n, 286 Ky. 119 , 149 S.W.2d 738, 1941 Ky. LEXIS 210 ( Ky. 1941 ).

Road and bridge bonds issued by the county are negotiable instruments. Tandy's Ex'rs v. Carlisle County, 296 Ky. 743 , 178 S.W.2d 591, 1944 Ky. LEXIS 631 ( Ky. 1944 ).

19.Refunding Bonds.

A county may renew road and bridge bonds as they mature but renewal bonds may not be issued until original bonds are due, and bonds may not be issued to fund an anticipated deficit. Russell v. Fiscal Court of Boyd County, 274 Ky. 377 , 118 S.W.2d 757, 1938 Ky. LEXIS 284 ( Ky. 1938 ).

Issuance of refunding bonds is valid even where most of the original bonds are not matured or subject to call, where the refunding bonds bear a lower interest rate and will not be issued until each bond of a like amount is tendered for cancellation. Hale v. Fiscal Court of Fulton County, 282 Ky. 475 , 138 S.W.2d 937, 1940 Ky. LEXIS 179 ( Ky. 1940 ).

An issue of refunding bonds bearing four percent (4%) interest with provision for five percent (5%) interest in some cases was not invalid, as the bonds are to be issued only in exchange for bonds of the original issue and will bear interest only from the date of issue and, therefore, there would be no duplication of interest payments or any increase in the principal indebtedness. Epley v. Kentucky County Debt Com., 283 Ky. 600 , 142 S.W.2d 116, 1940 Ky. LEXIS 363 ( Ky. 1940 ).

Where a county is in default on road and bridge bonds, it may issue refunding bonds where the new bonds are not to be delivered until cancellation or payment of old bonds and where interest on the new bonds is to start only on the day they are delivered to the purchaser. Shaw v. Fiscal Court of Graves County, 288 Ky. 215 , 155 S.W.2d 856, 1941 Ky. LEXIS 79 ( Ky. 1941 ).

Where county was in default on issue of road and bridge bonds and plan was worked out to refund issue by exchanging a new issue bearing a lower rate of interest, county had authority to agree to pay, out of road and bridge sinking fund, reasonable compensation to agent who perfected plan, the costs of publishing call notices, and service charges to an agency for handling interest and principal payments. Governor v. Wolfe County, 291 Ky. 267 , 163 S.W.2d 485, 1942 Ky. LEXIS 213 ( Ky. 1942 ).

20.Statutes.
21.— Valid.

KRS 178.210 , requiring a vote on both the tax rate and a proposed indebtedness, is not in conflict with the provision of this section requiring a vote only to the incurring of the indebtedness. Hughes v. Eison, 190 Ky. 661 , 228 S.W. 676, 1921 Ky. LEXIS 509 ( Ky. 1921 ).

22.— Invalid.

KRS 178.200 , which authorized maximum tax rate of 30 cents, violated this section which fixes maximum rate at 20 cents, and is mandatory. Pulaski County v. Ben Hur Life Ass'n, 286 Ky. 119 , 149 S.W.2d 738, 1941 Ky. LEXIS 210 ( Ky. 1941 ).

Cited:

Bloxton v. State Highway Com., 225 Ky. 324 , 8 S.W.2d 392, 1928 Ky. LEXIS 762 ( Ky. 1928 ); Montgomery County Fiscal Court v. Duff, 227 Ky. 508 , 13 S.W.2d 515, 1929 Ky. LEXIS 909 ( Ky. 1929 ); Knox County v. Newport Culvert Co., 248 Ky. 661 , 59 S.W.2d 558, 1933 Ky. LEXIS 287 ( Ky. 1933 ); Ginsburg v. Giles, 254 Ky. 720 , 72 S.W.2d 438, 1934 Ky. LEXIS 146 ( Ky. 1934 ); Cincinnati, N. O. & T. P. R. Co. v. Kinman, 280 Ky. 148 , 132 S.W.2d 735, 1939 Ky. LEXIS 73 ( Ky. 1939 ); Hatcher v. Meredith, 295 Ky. 194 , 173 S.W.2d 665, 1943 Ky. LEXIS 191 ( Ky. 194 3); Miller v. Sturgill, 304 Ky. 823 , 202 S.W.2d 632, 1947 Ky. LEXIS 73 8 ( Ky. 1947 ); Standiford Civic Club v. Commonwealth, 289 S.W.2d 498, 1956 Ky. LEXIS 285 ( Ky. 1956 ).

Opinions of Attorney General.

It is proper and legal to place on an election ballot, other than the general election ballot, a question to the voters on whether they would be in favor of a special road tax (authorized under KRS 178.210 and this section) which could be used for new construction of roads and bridges. OAG 82-602 .

Research References and Practice Aids

Cross-References.

County bonds for roads and bridges, KRS 178.170 , 178.210 .

Credit of commonwealth not to be loaned, Const., § 177.

Special tax for roads and bridges, KRS 178.210 .

Kentucky Bench & Bar.

Tobergte, The Impact of Kentucky’s Present Constitution Upon Business Growth & Development, Volume 51, No. 3, Summer 1987 Ky. Bench & Bar p. 21.

§ 157b. Adoption of budget required for cities, counties, and taxing districts — Expenditures not to exceed revenues for fiscal year.

Prior to each fiscal year, the legislative body of each city, county, and taxing district shall adopt a budget showing total expected revenues and expenditures for the fiscal year. No city, county, or taxing district shall expend any funds in any fiscal year in excess of the revenues for that fiscal year. A city, county, or taxing district may amend its budget for a fiscal year, but the revised expenditures may not exceed the revised revenues. As used in this section, “revenues” shall mean all income from every source, including unencumbered reserves carried over from the previous fiscal year, and “expenditures” shall mean all funds to be paid out for expenses of the city, county, or taxing district during the fiscal year, including amounts necessary to pay the principal and interest due during the fiscal year on any debt.

History. Adoption proposed by Acts 1994, ch. 168, § 3, and ratified November 8, 1994.

Compiler’s Notes.

The General Assembly in 1994 (Acts 1994, ch. 168, § 2) proposed that a new section be added to the Constitution to be numbered as section 157b. Such proposed section was ratified by the voters at the regular election November 8, 1994 and became effective November 8, 1994.

Section 5 of Acts 1994, ch. 168 provides: “It is further proposed as a part of this amendment and as a transitional provision for the purposes of this amendment, that any contract or legally binding obligation of a local government shall remain unaffected until the contract or obligation is renegotiated or expires.”

NOTES TO DECISIONS

1.In General.

KRS 91A.030(8) is clear that no budget ordinance shall be adopted which provides for appropriations to exceed revenues in any one fiscal year in violation of Ky. Const. § 157, which provides that the legislative body of a city shall adopt a budget showing total expected revenues and expenditures for the fiscal year. Likewise, KRS 91A.030(10) is equally clear that any amendments made to the original ordinance must continue to satisfy the same requirement of balance between revenue and expenditures. Taylor v. Carter, 333 S.W.3d 437, 2010 Ky. App. LEXIS 250 (Ky. Ct. App. 2010).

2.Violation.

At the time that a budget, or an amendment to a budget is passed, it need not be literally, “in balance” as of the date of passage because a city is certainly not expected to have, at the moment of passage, revenues adequate to meet all anticipated expenditures; however, the budget must be “in balance” insofar as anticipated expenditures not exceed anticipated revenues. Therefore, LaGrange, Ky., Ordinance 10-2008 violated KRS 91A.030(8), (10) and Ky. Const. § 157 because a tax decrease caused anticipated revenues to be less than anticipated expenditures; the city did not know at the time the ordinance was passed that it would later receive donations that served to offset the reduction in revenue. Taylor v. Carter, 333 S.W.3d 437, 2010 Ky. App. LEXIS 250 (Ky. Ct. App. 2010).

3.No Violation.

Contract for fire protection services did not violate Ky. Const. § 157b as that constitutional provision did not prohibit the district from creating obligations beyond one year, and the 10-year contract renewal only obligated it to only spend those tax revenues collected. Se. Bullitt Fire Prot. Dist. v. Se. Bullitt Fire & Rescue Dep't, 537 S.W.3d 828, 2017 Ky. App. LEXIS 397 (Ky. Ct. App. 2017).

§ 158. Maximum indebtedness of cities, counties, and taxing districts — General Assembly authorized to set additional limits and conditions.

Cities, towns, counties, and taxing districts shall not incur indebtedness to an amount exceeding the following maximum percentages on the value of the taxable property therein, to be estimated by the last assessment previous to the incurring of the indebtedness: Cities having a population of fifteen thousand or more, ten percent (10%); cities having a population of less than fifteen thousand but not less than three thousand, five percent (5%); cities having a population of less than three thousand, three percent (3%); and counties and taxing districts, two percent (2%), unless in case of emergency, the public health or safety should so require. Nothing shall prevent the issue of renewal bonds, or bonds to fund the floating indebtedness of any city, county, or taxing district. Subject to the limits and conditions set forth in this section and elsewhere in this Constitution, the General Assembly shall have the power to establish additional limits on indebtedness and conditions under which debt may be incurred by cities, counties, and taxing districts.

History. Amendment proposed by Acts 1994, ch. 168, § 4, and ratified November 8, 1994.

Compiler’s Notes.

The General Assembly in 1994 (Acts 1994, ch. 168, § 4) proposed an amendment to this section of the Constitution which was ratified by the voters at the regular election November 8, 1994 and became effective November 8, 1994. Prior to this amendment this section read:

“§ 158. Maximum indebtedness of cities, counties, and taxing districts — Indebtedness authorized or incurred prior to Constitution

The respective cities, towns, counties, taxing districts, and municipalities shall not be authorized or permitted to incur indebtedness to an amount, including existing indebtedness, in the aggregate exceeding the following named maximum percentages on the value of the taxable property therein, to be estimated by the assessment next before the last assessment previous to the incurring of the indebtedness, viz.: Cities of the first and second classes, and of the third class having a population exceeding fifteen thousand, ten per centum; cities of the third class having a population of less than fifteen thousand, and cities and towns of the fourth class, five per centum; cities and towns of the fifth and sixth classes, three per centum; and counties, taxing districts and other municipalities, two per centum: Provided, any city, town, county, taxing district or other municipality may contract an indebtedness in excess of such limitations when the same has been authorized under laws in force prior to the adoption of this Constitution, or when necessary for the completion of and payment for a public improvement undertaken and not completed and paid for at the time of the adoption of this Constitution: And provided further, If, at the time of the adoption of the Constitution, the aggregate indebtedness, bonded or floating, of any city, town, county, taxing district, or other municipality, including that which it has been or may be authorized to contract as herein provided, shall exceed the limit herein prescribed, then no such city or town shall be authorized or permitted to increase its indebtedness in an amount exceeding two per centum, and no such county, taxing district or other municipality, in an amount exceeding one per centum, in the aggregate upon the value of the taxable property therein, to be ascertained as herein provided, until the aggregate of its indebtedness shall have been reduced below the limit herein fixed, and thereafter it shall not exceed the limit, unless in case of emergency, the public health or safety should so require. Nothing herein shall prevent the issue of renewal bonds, or bonds to fund the floating indebtedness of any city, town, county, taxing district or other municipality.

Section 5 of Acts 1994, ch. 168 provides: “It is further proposed as a part of this amendment and as a transitional provision for the purposes of this amendment, that any contract or legally binding obligation of a local government shall remain unaffected until the contract or obligation is renegotiated or expires.”

NOTES TO DECISIONS

Cross-References.

Cross-References.

See notes to Const., § 157.

1.Construction.

This section, along with Const., § 157, fixes a maximum of indebtedness which may not be exceeded except for the reasons specified in the sections. Bardwell v. Harlin, 118 Ky. 232 , 80 S.W. 773, 26 Ky. L. Rptr. 101 , 1904 Ky. LEXIS 22 ( Ky. 1904 ).

The debt limitation of this section contemplates a present and not a future indebtedness. Barry v. New Haven, 162 Ky. 60 , 171 S.W. 1012, 1915 Ky. LEXIS 13 ( Ky. 1915 ).

This section limits aggregate indebtedness permitted to be incurred with the assent of two-thirds (2/3) of the voters pursuant to Const., § 157. Parsons v. Arnold, 235 Ky. 600 , 31 S.W.2d 928, 1930 Ky. LEXIS 416 ( Ky. 1930 ).

The provision with respect to renewal bonds and bonds to fund a floating indebtedness is self-executing and requires no specific statutory implementation. Johnson v. Middleton, 243 Ky. 251 , 47 S.W.2d 1030, 1932 Ky. LEXIS 61 ( Ky. 1932 ). See Baker v. Rockcastle County Court, 225 Ky. 99 , 7 S.W.2d 846, 1928 Ky. LEXIS 715 ( Ky. 1928 ); Geveden v. Fiscal Court of Carlisle County, 263 Ky. 465 , 92 S.W.2d 746, 1936 Ky. LEXIS 190 ( Ky. 1936 ); Harrison v. Roberts, 264 Ky. 62 , 94 S.W.2d 296, 1936 Ky. LEXIS 277 ( Ky. 1936 ); McHargue v. Laurel County, 270 Ky. 638 , 110 S.W.2d 419, 1937 Ky. LEXIS 128 ( Ky. 1937 ).

The limitations on counties in this section are inapplicable to bonds issued for roads and bridges. Shearin v. Ballard County, 266 Ky. 806 , 100 S.W.2d 836, 1937 Ky. LEXIS 12 ( Ky. 1937 ). See Shearin v. Ballard County, 267 Ky. 737 , 103 S.W.2d 292, 1937 Ky. LEXIS 393 ( Ky. 1937 ).

That part of this section requiring payment in 40 years must be read with that part of Const., § 158 permitting renewal of bonds. Pulaski County v. Ben Hur Life Ass'n, 286 Ky. 119 , 149 S.W.2d 738, 1941 Ky. LEXIS 210 ( Ky. 1941 ).

This section and Const., §§ 157 and 157a have been construed to be complementary for some purposes and to be independent for other purposes. Defoe v. Perry County, 293 Ky. 487 , 169 S.W.2d 309, 1943 Ky. LEXIS 647 ( Ky. 1943 ).

2.Application.

Funding bonds are within the limitations of this section. Fulton County Fiscal Court v. Southern Bell Tel. & Tel. Co., 285 Ky. 17 , 146 S.W.2d 15, 1940 Ky. LEXIS 591 ( Ky. 1940 ).

Voted bonds are also within the limitations of this section. Fulton County Fiscal Court v. Southern Bell Tel. & Tel. Co., 285 Ky. 17 , 146 S.W.2d 15, 1940 Ky. LEXIS 591 ( Ky. 1940 ).

Ordinarily, constitutional restrictions on municipal indebtedness are not applicable to obligations which are payable out of money derived from income and revenues of city-owned and revenue-producing public utilities. Grimm v. Moloney, 358 S.W.2d 496, 1962 Ky. LEXIS 180 ( Ky. 1962 ).

3.Determination of Population.

For the purpose of determining the population and so the limit of indebtedness, a city may take a census pursuant to an ordinance, though a federal census has been taken two (2) months before, especially where territory has been added in the meantime. Lancaster v. Owensboro, 72 S.W. 731, 24 Ky. L. Rptr. 1978 , 1903 Ky. LEXIS 334 (Ky. Ct. App. 1903).

4.Indebtedness.

When a city contracts to pay a certain sum per year for a given number of years for water and electric light, it “incurs an indebtedness” within the meaning of the Constitution, for the total amount which the contract provides shall be paid during all the years it is to continue. Beard v. Hopkinsville, 95 Ky. 239 , 24 S.W. 872, 15 Ky. L. Rptr. 756 , 1894 Ky. LEXIS 9 ( Ky. 1894 ).

Bonds which were issued prior to the adoption of the Constitution and short-term notes are debts within the meaning of this section. Jones v. Board of Education, 191 Ky. 198 , 229 S.W. 1032, 1921 Ky. LEXIS 295 ( Ky. 1921 ).

The legislature has the power to prescribe the form and manner of the issuing and sale of bonds as long as the right and power of a governmental subdivision to pay its debts is not destroyed. Rohde v. Newport, 246 Ky. 476 , 55 S.W.2d 368, 1932 Ky. LEXIS 793 ( Ky. 1932 ).

Interest to become due in future would not be considered as an indebtedness within constitutional debt limitations. Dalton v. State Property & Bldgs. Com., 304 S.W.2d 342, 1957 Ky. LEXIS 276 ( Ky. 1957 ).

5.— Governmental Purposes.

The incurrence of debt for essential governmental purposes is valid even though the debt limitations fixed by this section and Const., § 157 are exceeded, but payment of such a debt must be made out of funds raised within those limitations. Fulton County Fiscal Court v. Southern Bell Tel. & Tel. Co., 285 Ky. 17 , 146 S.W.2d 15, 1940 Ky. LEXIS 591 ( Ky. 1940 ).

6.— Current Expenses.

Appropriations for current operation of the county do not constitute a debt within the limitations prescribed by this section where such appropriations are within a reasonable anticipation of all taxes and other revenues to be collected during the current year. Estill County v. Noland, 295 Ky. 753 , 175 S.W.2d 341, 1943 Ky. LEXIS 324 ( Ky. 1943 ).

7.— Special Assessments.

Where statute authorized city council to order street pavements at cost of property owners and to provide a fund for the immediate payment of the entire cost or for payments on a ten (10) year plan and to borrow money in anticipation by issuing bonds, the city had authority to order the work done and to order immediate payment therefor by the property owners, and one could not avoid payment on the ground that the city had no power to order the improvement. Covington v. Nadaud, 103 Ky. 455 , 45 S.W. 498, 20 Ky. L. Rptr. 151 , 1898 Ky. LEXIS 84 ( Ky. 1898 ).

8.— Created Before Constitution.

The provisions of this section and Const., § 157 do not affect an indebtedness of a town created by vote of its taxpayers before the Constitution was adopted. Aydelett v. South Louisville, 26 S.W. 717, 16 Ky. L. Rptr. 166 (1894).

The provisions of this section do not prohibit the incurring of an indebtedness in excess of the amount by the issuance of bonds where, before the adoption of the Constitution, all the steps required by the charter necessary to the issuance of the bonds had been taken. Ludlow v. Board of Education, 29 S.W. 854, 16 Ky. L. Rptr. 805 (1895).

The provisions of this section and Const., § 157 do not apply to an indebtedness for public improvements which a city of the second class was specially authorized, prior to the adoption of the Constitution, to contract. Warren v. Newport, 64 S.W. 852, 23 Ky. L. Rptr. 1006 , 1901 Ky. LEXIS 623 (Ky. Ct. App. 1901).

9.— Excess at Time of Constitution.

Where the indebtedness of a city at the time of the adoption of the Constitution exceeded the prescribed limit by the Constitution, it matters not how great the excess, the city may, so long as the indebtedness has never been reduced below the limit prescribed, increase its indebtedness to the extent of two percent (2%) on the value of the taxable property in the city, but any increase since the adoption of the Constitution is to be estimated in determining whether a further increase will exceed the two percent (2%) limit. Ashland v. Culbertson, 103 Ky. 161 , 44 S.W. 441, 19 Ky. L. Rptr. 1812 , 1898 Ky. LEXIS 41 ( Ky. 1898 ), overruled, Weil, Roth & Co. v. Paris, 176 Ky. 841 , 197 S.W. 461, 1917 Ky. LEXIS 130 ( Ky. 1917 ).

Where a city of the fourth class decreases its indebtedness existing at the time of the adoption of the Constitution below the five percent (5%) maximum, the two percent (2%) extension does not apply. Walsh v. Pineville, 152 Ky. 556 , 153 S.W. 1002, 1913 Ky. LEXIS 721 ( Ky. 1913 ).

Where a city’s indebtedness has exceeded five percent (5%) of its taxable property at the adoption of the Constitution and ever since, it is entitled to incur the additional indebtedness permitted by this section. Bosworth v. Middlesboro, 190 Ky. 246 , 227 S.W. 170, 1921 Ky. LEXIS 420 ( Ky. 1921 ).

10.— Estimation of Amount.

City bonds expressly issued to retire bonds issued to take up the city’s floating debt are not to be considered in determining whether the limit of indebtedness as fixed by the Constitution has been exceeded. Farson, Leach & Co. v. Board of Comm'rs, 97 Ky. 119 , 30 S.W. 17, 16 Ky. L. Rptr. 856 , 1895 Ky. LEXIS 160 ( Ky. 1895 ).

In determining whether the indebtedness created by the issuance of bonds by a city will exceed the limit prescribed by the Constitution, only the face of the bonds, and not the future interest, is to be estimated. Ashland v. Culbertson, 103 Ky. 161 , 44 S.W. 441, 19 Ky. L. Rptr. 1812 , 1898 Ky. LEXIS 41 ( Ky. 1898 ), overruled, Weil, Roth & Co. v. Paris, 176 Ky. 841 , 197 S.W. 461, 1917 Ky. LEXIS 130 ( Ky. 1917 ).

In determining the amount of indebtedness of a city of the third class, an indebtedness created prior to the adoption of the Constitution should not be considered. Kimbley v. Owensboro, 176 Ky. 532 , 195 S.W. 1087, 1917 Ky. LEXIS 75 ( Ky. 1917 ).

Previously issued warrants which were void cannot be considered in determining the validity of a proposed expenditure. Williams v. Estill County, 253 Ky. 417 , 69 S.W.2d 683, 1934 Ky. LEXIS 655 ( Ky. 1934 ).

11.— — Current Expenses.

Current expenses of a city for the current year are not to be included in an estimate of a city’s existing indebtedness. O'Bryan v. Owensboro, 113 Ky. 680 , 68 S.W. 858, 69 S.W. 800, 24 Ky. L. Rptr. 469 , 24 Ky. L. Rptr. 645 , 1902 Ky. LEXIS 92 ( Ky. 1902 ), overruled, Nelson County Fiscal Court v. McCrocklin, 175 Ky. 199 , 194 S.W. 323, 1917 Ky. LEXIS 316 ( Ky. 1917 ).

In determining the total indebtedness under this section, there must be included the proposed indebtedness and all outstanding contracted indebtedness, whether bonded or floating, but it is not necessary to include current expenses for the current year. Winchester v. Nelson, 175 Ky. 63 , 193 S.W. 1040, 1917 Ky. LEXIS 287 ( Ky. 1917 ).

An estimate of indebtedness permitted under this section must include the proposed indebtedness and all outstanding indebtedness, whether bonded, floating or otherwise, but must not include current expenses for the current year. Fulton County Fiscal Court v. Southern Bell Tel. & Tel. Co., 285 Ky. 17 , 146 S.W.2d 15, 1940 Ky. LEXIS 591 ( Ky. 1940 ).

12.— — School Debts.

Where a city includes an independent school district which is an independent corporation, the indebtedness of the school district is not to be treated as a part of the city’s indebtedness, in determining whether the city has reached its maximum constitutional debt limit, so as to preclude the issuance of further bonds. Ex parte Newport, 141 Ky. 329 , 132 S.W. 580, 1910 Ky. LEXIS 462 ( Ky. 1910 ), overruled, Ex parte Ashland, 256 Ky. 384 , 76 S.W.2d 43, 1934 Ky. LEXIS 415 ( Ky. 1934 ).

In estimating the indebtedness of a city in order to determine whether a proposed bond issue would exceed the limits of this section, the bonded indebtedness of the school board is not considered as part of the city’s indebtedness. Rash v. Madisonville, 148 Ky. 154 , 146 S.W. 386, 1912 Ky. LEXIS 406 ( Ky. 1912 ).

An indebtedness of cities of the second class for school purposes is distinct from that of any other municipal corporation or political body, including the school district, and in reckoning the indebtedness thereof to determine whether contemplated school bonds would exceed the city’s debt limit, the indebtedness of a school corporation wholly or partially within the city is not to be considered. Coppin v. Board of Education, 155 Ky. 387 , 159 S.W. 937, 1913 Ky. LEXIS 258 ( Ky. 1913 ).

School improvement bonds which were approved by the voters of the city were debts of the city and not of the board of education with respect to the determination of debt limitations of this section. Hager v. Board of Education, 254 Ky. 791 , 72 S.W.2d 475, 1934 Ky. LEXIS 160 ( Ky. 1934 ).

Outstanding bonds of two (2) school districts which were authorized by the voters and which are being taken care of by special taxes are not to be considered in determining whether the contemplated increase in the bonded indebtedness is within the limits of this section. Rowan County Board of Education v. Citizens Bank, 279 Ky. 413 , 130 S.W.2d 832, 1939 Ky. LEXIS 297 ( Ky. 1939 ).

13.— — Road Bonds.

In determining the total indebtedness under this section, the amount of debt under Const., § 157a is not included. Bird v. Wilson, 171 Ky. 807 , 188 S.W. 899, 1916 Ky. LEXIS 439 ( Ky. 1916 ).

In determining the total indebtedness of a city, bonds approved under Const., § 157a are not taken into consideration. Stratton v. Pike County, 269 Ky. 273 , 106 S.W.2d 1014, 1937 Ky. LEXIS 593 ( Ky. 1937 ).

Bonds issued under Const., § 157a are not to be considered in determining whether the two percent (2%) limit of this section has been exceeded. Richardson v. Monroe County, 271 Ky. 368 , 112 S.W.2d 47, 1937 Ky. LEXIS 244 ( Ky. 1937 ), overruled, Bell v. Board of Education, 343 S.W.2d 804, 1961 Ky. LEXIS 433 ( Ky. 1961 ).

14.— — Sinking Funds.

In determining the indebtedness under this section, a sinking fund created to pay bonds not yet due should be deducted from the total amount of outstanding indebtedness. First Nat'l Bank v. Jackson, 199 Ky. 94 , 250 S.W. 795, 1923 Ky. LEXIS 767 ( Ky. 1923 ).

Cash on hand in sinking fund to meet bonds, and taxes levied for sinking fund account, must be deducted in computing outstanding indebtedness. Jackson v. First Nat'l Bank, 289 Ky. 1 , 157 S.W.2d 321, 1941 Ky. LEXIS 10 ( Ky. 1 941).

15.— — Time of Bond Sale.

It is sufficient under this section, limiting the indebtedness of fourth-class cities to five percent (5%) of the assessed value of the property, that the indebtedness does not exceed the constitutional limitation at the time of the issuance and sale of the bonds, and the fact that the existing indebtedness, together with that created by the bonds, exceeded the limitation at the time of the election to authorize the issuance of the bonds would not make them invalid, the indebtedness not being created until the bonds were sold. Frost v. Central City, 134 Ky. 434 , 120 S.W. 367, 1909 Ky. LEXIS 396 ( Ky. 1909 ), overruled, Board of Education v. Corbin, 301 Ky. 686 , 192 S.W.2d 951, 1946 Ky. LEXIS 544 ( Ky. 1946 ).

An indebtedness is determined at the time the bonds are sold and not at the time of the election approving the bond issue. Boll v. Ludlow, 234 Ky. 812 , 29 S.W.2d 547, 1930 Ky. LEXIS 274 ( Ky. 1930 ).

In determining whether indebtedness of town exceeds constitutional limit, time when bonds are sold is controlling and not time of election. Howard v. Loyall, 284 Ky. 233 , 144 S.W.2d 502, 1940 Ky. LEXIS 481 ( Ky. 1940 ).

16.— Assessment.

Where a city is divided into colored and white school districts, the taxable property to be included in assessments for the colored school district includes the property owned by colored citizens and the proportion of corporate property in the city that the number of colored children bears to the whole number of children of school age in the city. Moss v. Mayfield, 186 Ky. 330 , 216 S.W. 842, 1919 Ky. LEXIS 218 ( Ky. 1919 ).

Under this section, the amount of indebtedness which might be incurred by board of education was not controlled by assessment next before election at which bonds were authorized but by assessment next before indebtedness was incurred by issuance and sale of the bonds. Sutherland v. Board of Education, 209 Ky. 351 , 272 S.W. 887, 1925 Ky. LEXIS 498 ( Ky. 1925 ).

The assessed valuation of the property taxable for the support of the county board of education when the bonds are sold determines the constitutional limitation of the debt, but that value is presumed to be the same as the last complete and final assessment. Rowan County Board of Education v. Citizens Bank, 279 Ky. 413 , 130 S.W.2d 832, 1939 Ky. LEXIS 297 ( Ky. 1939 ).

Assessment of 1939 controlled question whether amount of bonds authorized by town to construct bridge would exceed constitutional limitation of three percent (3%) of value of taxable property in town, where issuance was not authorized by town until after 1939 assessment and sale could not be made until after 1940 assessment date. Howard v. Loyall, 284 Ky. 233 , 144 S.W.2d 502, 1940 Ky. LEXIS 481 ( Ky. 1940 ).

Although certain property is not subject to the maximum tax a city can levy on other property, its assessed valuation must be considered in determining whether debt limit has been exceeded. Jackson v. First Nat'l Bank, 289 Ky. 1 , 157 S.W.2d 321, 1941 Ky. LEXIS 10 ( Ky. 1 941).

The value of bank shares is taxable property in a city and must be considered in determining whether debt limit has been exceeded. Jackson v. First Nat'l Bank, 289 Ky. 1 , 157 S.W.2d 321, 1941 Ky. LEXIS 10 ( Ky. 1 941).

Property exempted from taxation by statute but not by the Constitution may not be included in the value of taxable property of the county in determining the debt limitations of this section. Monroe County v. County Debt Com., 247 S.W.2d 507, 1952 Ky. LEXIS 708 ( Ky. 1952 ).

17.— Floating.

This section does not restrict the issuing of bonds to fund a valid floating indebtedness. Frank v. Fuss, 235 Ky. 143 , 29 S.W.2d 603, 1930 Ky. LEXIS 300 ( Ky. 1930 ).

An outstanding valid floating indebtedness may be funded by a bond issue. Hogan v. Lee Fiscal Court, 235 Ky. 100 , 29 S.W.2d 611, 1930 Ky. LEXIS 301 ( Ky. 1930 ).

The power to issue bonds to fund a floating indebtedness is a continuing power which may be exercised at any time when justified by the circumstances. Hall v. Fiscal Court of Fleming County, 239 Ky. 425 , 39 S.W.2d 656, 1931 Ky. LEXIS 786 ( Ky. 1931 ).

A board of commissioners has the power to issue bonds to fund a valid floating indebtedness. Pace v. Paducah, 241 Ky. 568 , 44 S.W.2d 574, 1931 Ky. LEXIS 132 ( Ky. 1931 ). See Bond v. Corbin, 241 Ky. 663 , 44 S.W.2d 576, 1931 Ky. LEXIS 133 ( Ky. 1931 ); Hall v. Hopkinsville, 242 Ky. 339 , 46 S.W.2d 497, 1932 Ky. LEXIS 277 ( Ky. 1932 ).

The issuing of bonds to fund a valid floating indebtedness is not limited to the kinds of debts set out in KRS 66.080 . Rose v. Owen County, 266 Ky. 422 , 99 S.W.2d 177, 1936 Ky. LEXIS 672 ( Ky. 1936 ).

The last sentence of this section refers to funding of debts incurred after the adoption of the present Constitution. Fulton County Fiscal Court v. Southern Bell Tel. & Tel. Co., 285 Ky. 17 , 146 S.W.2d 15, 1940 Ky. LEXIS 591 ( Ky. 1940 ).

18.— — Funding.

A city is authorized to issue funding bonds to make payment on contract debt in amount not increasing the indebtedness beyond the constitutional limit in order to avoid imposing a heavy tax in one (1) year to pay the entire debt. Wilson v. Covington, 220 Ky. 798 , 295 S.W. 1068, 1927 Ky. LEXIS 636 ( Ky. 1927 ). See Davis v. Newport, 224 Ky. 546 , 6 S.W.2d 693, 1928 Ky. LEXIS 635 ( Ky. 1928 ).

An indebtedness may be funded by a bond issue if the aggregate debts were valid when created and the total bonded indebtedness does not exceed the limits of this section. Tuggle v. Knox County, 268 Ky. 260 , 104 S.W.2d 954, 1937 Ky. LEXIS 438 ( Ky. 1937 ). See Bartlett v. Winchester, 261 Ky. 694 , 88 S.W.2d 698, 1935 Ky. LEXIS 723 ( Ky. 1935 ); Ochs v. Fiscal Court of Spencer County, 261 Ky. 692 , 88 S.W.2d 700, 1935 Ky. LEXIS 724 ( Ky. 1935 ); Stumbo v. Dingus' Adm'x, 265 Ky. 673 , 97 S.W.2d 585, 1936 Ky. LEXIS 560 ( Ky. 1936 ); Pace v. Greenville, 267 Ky. 83 , 101 S.W.2d 189, 1937 Ky. LEXIS 274 ( Ky. 1937 ); Marcum v. Borders, 269 Ky. 59 , 106 S.W.2d 122, 1937 Ky. LEXIS 560 (Ky. 1937); Smith v. Mayfield, 270 Ky. 784 , 110 S.W.2d 1081, 1937 Ky. LEXIS 163 (Ky. 1937); Williams v. Taylor Count, 274 Ky. 217 , 118 S.W.2d 526, 1938 Ky. LEXIS 244 ( Ky. 1938 ); Tuggle v. Barbourville, 294 Ky. 351 , 171 S.W.2d 1008, 1943 Ky. LEXIS 457 ( Ky. 1943 ).

Matured interest on bonds validly issued to fund a floating indebtedness is also a valid floating indebtedness which may be funded. Jones v. Fiscal Court of Fulton County, 275 Ky. 619 , 122 S.W.2d 510, 1938 Ky. LEXIS 484 ( Ky. 1938 ).

Proposed funding bond issue of city was approved subject to requirement that ordinance providing for sinking fund to retire bonds, which referred to a tax levy but did not actually levy any tax, be amended so as to impose the necessary tax levy within the limits prescribed by Const., § 157. Rowland v. Winchester, 306 Ky. 772 , 209 S.W.2d 305, 1948 Ky. LEXIS 646 ( Ky. 1948 ).

Where city had a population of less than 15,000 and the limitation of its indebtedness was five percent (5%) of the assessed value of the taxable property and the city proved that at the end of the year 1947 its outstanding obligations were approximately $35,000 and the assessed valuation of the taxable property was greater than $8,000,000, it was evident that $12,000 bond issue to fund valid floating debt would not create an indebtedness in excess of the constitutional maximum. Rowland v. Winchester, 306 Ky. 772 , 209 S.W.2d 305, 1948 Ky. LEXIS 646 ( Ky. 1948 ).

19.— — — Judgments.

A judgment is a floating indebtedness which may be funded by a bond issue. Elliott v. Fiscal Court of Pike Coutny, 237 Ky. 797 , 36 S.W.2d 619, 1931 Ky. LEXIS 693 ( Ky. 1931 ).

A judgment which cannot be satisfied from available funds is a floating indebtedness and may be included in levies in subsequent years or funded by a fiscal court without a vote. Knox County v. Newport Culvert Co., 248 Ky. 661 , 59 S.W.2d 558, 1933 Ky. LEXIS 287 ( Ky. 1933 ).

A county may pay a judgment by the issuance of funding bonds where the debt on which the judgment was issued was valid when created. Coil v. Ham, 260 Ky. 650 , 86 S.W.2d 529, 1935 Ky. LEXIS 527 ( Ky. 1935 ).

An issue of bonds to fund a judgment debt was valid where evidence showed that the indebtedness incurred for each year plus the total indebtedness for the preceding years was not in excess of the limits of this section. Hundley v. Board of Education, 265 Ky. 33 , 95 S.W.2d 1091, 1936 Ky. LEXIS 429 ( Ky. 1936 ).

20.— — — Deficits in Revenue.

A floating debt accumulated over several years from unexpected deficits in revenue and based on obligations assumed pursuant to a fair estimate of revenue was a valid obligation for which bonds could be issued. Lee v. Board of Education, 261 Ky. 379 , 87 S.W.2d 961, 1935 Ky. LEXIS 666 ( Ky. 1935 ).

An indebtedness which resulted from a failure of anticipated revenue is a valid floating indebtedness where the entire indebtedness of the city has not exceeded the limits of this section. Jones v. Paducah, 263 Ky. 542 , 92 S.W.2d 811, 1936 Ky. LEXIS 213 ( Ky. 1936 ).

Where city’s floating indebtedness, resulting from deficits in revenues over series of years, constitutes city’s only direct obligation and was smaller than amount of indebtedness which city could have incurred in year during which assessed valuation of city property was smallest, bonds issued to fund such floating indebtedness would not be prohibited under constitutional provision limiting authorized indebtedness to specified percentage of assessed valuation. Penrod v. Sturgis, 269 Ky. 315 , 107 S.W.2d 277, 1937 Ky. LEXIS 608 ( Ky. 1937 ).

A floating indebtedness incurred by failures in revenue and failure of fiscal authorities to levy the full amount of the authorized poll tax is a valid indebtedness and may be funded through a bond issue. Hockley v. Carter County, 270 Ky. 594 , 110 S.W.2d 292, 1937 Ky. LEXIS 123 ( Ky. 1937 ).

21.— — — School Debts.

Issue of bonds of school district to refund validly created debts was authorized even though the debt did accumulate over a period of years, and the board of education should have paid the preceding year’s indebtedness from revenues of the succeeding year. Meade v. Board of Education, 268 Ky. 71 , 103 S.W.2d 701, 1937 Ky. LEXIS 417 ( Ky. 1937 ).

In order to approve a bond issue to fund an indebtedness of a school board, it must be shown that the anticipated revenue of the board is its budgeted revenue. Arrowood v. Board of Education, 269 Ky. 464 , 107 S.W.2d 324, 1937 Ky. LEXIS 626 ( Ky. 1937 ).

A board of education which has kept its expenditures within its budget may fund a floating indebtedness caused by an unexpected failure in its revenue. Ebert v. Board of Education, 277 Ky. 633 , 126 S.W.2d 1111, 1939 Ky. LEXIS 706 ( Ky. 1939 ).

A floating indebtedness of a board of education incurred for valid obligations and within constitutional limits which resulted from deficits in revenue caused by judicial invalidation of certain assessments could be funded by a bond issue. Bell v. Board of Education, 343 S.W.2d 804, 1961 Ky. LEXIS 433 ( Ky. 1961 ).

22.— Refunding Bonds.

Under a statute authorizing the city to retire existing bonds by payment from the sale of new bonds, or by direct exchange, the city has no right to sell more bonds than are required to pay the existing indebtedness, and cannot be allowed to realize a premium by the sale of bonds to the full amount of those outstanding. Commissioners of Sinking Fund v. Zimmerman, 101 Ky. 432 , 41 S.W. 428, 19 Ky. L. Rptr. 689 , 1897 Ky. LEXIS 212 ( Ky. 1897 ).

A statute empowering the fiscal courts of the several counties to call in outstanding bonds, and issue new bonds in lieu thereof, is valid. Richmond Cemetery Co. v. Sullivan, 66 Ark. 646, 104 Ky. 723 , 47 S.W. 1079, 20 Ky. L. Rptr. 1028 , 1898 Ky. LEXIS 222 ( Ky. 1898 ).

Where a city, as authorized by statute, bought the stock of a water company which had incurred an indebtedness and had issued bonds therefor, an issue of bonds to refund the indebtedness was within the provisions of this section relating to the renewal of bonds to refund an existing indebtedness. Gaulbert v. Louisville, 97 S.W. 342, 30 Ky. L. Rptr. 50 (1906).

A city had the power to issue refunding bonds, proceeds of which were to be used to retire outstanding bonds, without calling an election and submitting the matter to vote of the people. Welch v. Nicholasville, 225 Ky. 312 , 8 S.W.2d 400, 1928 Ky. LEXIS 768 ( Ky. 1928 ). See Rowland v. Paris, 227 Ky. 570 , 13 S.W.2d 791, 1929 Ky. LEXIS 937 ( Ky. 1929 ).

A board of education could issue refunding bonds for previous valid bonds as this would create no additional liability. Wilson v. Board of Education, 226 Ky. 476 , 11 S.W.2d 143, 1928 Ky. LEXIS 124 ( Ky. 1928 ).

A refunding bond issue may not be approved where there was a lack of evidence as to the amount of anticipated revenue, outstanding obligations, value of property in the district and other facts as to the financial status of the taxing district. Marcum v. Borders, 266 Ky. 579 , 99 S.W.2d 760, 1936 Ky. LEXIS 720 ( Ky. 1936 ).

Refunding bonds may be issued to take up funding bonds which had been issued to care for a floating indebtedness, where the refunding bonds plus the existing indebtedness do not exceed the limit set by the Constitution. Daniel v. Johnson County, 267 Ky. 44 , 101 S.W.2d 199, 1937 Ky. LEXIS 277 ( Ky. 1937 ).

The issuance of bonds for the purpose of paying or funding other outstanding bonds or other valid indebtedness is not an increase in the taxing district’s indebtedness. Abbott v. Oldham County Board of Education, 272 Ky. 654 , 114 S.W.2d 1128, 1938 Ky. LEXIS 176 ( Ky. 1938 ).

This section does not authorize the refunding of sewer bonds issued under law providing for ten (10) year payment of bonds and for statutory lien on property liable for the tax, because such bonds are not obligations or debts of the city. Paducah v. Jones, 274 Ky. 460 , 118 S.W.2d 753, 1938 Ky. LEXIS 282 ( Ky. 1938 ).

Bonds issued to retire the floating indebtedness of a county may be refunded without submitting the matter to popular vote. Jones v. Fiscal Court of Fulton County, 275 Ky. 619 , 122 S.W.2d 510, 1938 Ky. LEXIS 484 ( Ky. 1938 ).

Matured interest on bonds validly issued is itself a valid floating indebtedness, and can be refunded. Whitworth v. Breckinridge County Board of Education, 276 Ky. 346 , 124 S.W.2d 495, 1939 Ky. LEXIS 534 ( Ky. 1939 ).

A bond issue to pay off and retire bonds of a like sum where there will be no duplication of principal and interest is valid, as it is merely a renewal of an outstanding valid indebtedness. Frankfort v. Harrod, 283 Ky. 755 , 143 S.W.2d 292, 1940 Ky. LEXIS 406 ( Ky. 1940 ).

23.— Emergencies.

A city of the fifth class cannot incur an indebtedness beyond the percentage fixed, or which would require the imposition of a tax rate in excess of 75 cents on the $100, as fixed by Const., § 157, except in cases of emergency. Marion v. Haynes, 157 Ky. 687 , 164 S.W. 79, 1914 Ky. LEXIS 373 ( Ky. 1914 ).

The term “emergency” means some pressing necessity out of the ordinary state of affairs which could be remedied only by unusual expedients, an emergency ordinarily meaning a crisis on the outcome of which everything depends, while an exigency is merely an occasion of urgency and suddenness. Marion v. Haynes, 157 Ky. 687 , 164 S.W. 79, 1914 Ky. LEXIS 373 ( Ky. 1914 ).

Bonds in excess of the constitutional limit are valid where the bonds were issued to meet an emergency need for a waterworks system. Samuels v. Clinton, 188 Ky. 300 , 221 S.W. 1075, 1920 Ky. LEXIS 275 ( Ky. 1920 ).

A city of the fourth class could exceed the debt limit for the purpose of making a necessary improvement in its water supply rendered necessary by abandonment of mine from which water had been taken. Harris v. Morganfield, 201 Ky. 588 , 257 S.W. 1032, 1924 Ky. LEXIS 603 ( Ky. 1924 ).

Where evidence indicated a city of the fourth class could expect a flood of much greater height than it had heretofore experienced due to the removal of timber in the river watershed, an emergency existed and bond issue which exceeded five percent (5%) of the assessment of taxable property was valid. Hill v. Pineville, 314 Ky. 359 , 235 S.W.2d 776, 1951 Ky. LEXIS 654 ( Ky. 1951 ).

The debt limitation may be exceeded by a city of the fourth class when an emergency threatens the public health and safety. Williams v. Barbourville, 246 S.W.2d 591, 1952 Ky. LEXIS 642 ( Ky. 1952 ).

Where city was subjected to recurring floods which caused extensive property damage, emergency existed within meaning of this section and city could exceed debt limitation and city had duty under Const., § 159 to provide payment for debt even though city had to levy tax in excess of maximum rate specified in Const., § 157. Williams v. Barbourville, 246 S.W.2d 591, 1952 Ky. LEXIS 642 ( Ky. 1952 ).

The need to construct a courthouse after the old courthouse had been totally destroyed constitutes an emergency within the meaning of this section. Magoffin County v. Rigsby, 303 S.W.2d 545, 1957 Ky. LEXIS 266 ( Ky. 1957 ).

An emergency may be something other than a sudden or unexpected circumstance or condition and may be a pressing necessity requiring immediate attention, and the failure to provide such immediate attention does not make the pressing necessity any less an emergency. Rodgers v. Crittenden County, 337 S.W.2d 728, 1960 Ky. LEXIS 368 ( Ky. 1960 ).

The need for a new courthouse constitutes an emergency where the old courthouse is over 75 years old, has been rapidly deteriorating since being condemned in 1919 and constitutes a fire hazard which endangers irreplaceable records as well as the health and safety of those frequenting the building. Rodgers v. Crittenden County, 337 S.W.2d 728, 1960 Ky. LEXIS 368 ( Ky. 1960 ).

The gross inadequacy of hospital facilities in a county constitutes an emergency within the meaning of this section and permits a county to exceed its normal debt limitation. Miller v. County of Breckinridge, 361 S.W.2d 283, 1962 Ky. LEXIS 235 ( Ky. 1962 ).

24.— — Not Emergencies.

A county indebted up to the constitutional limit, and having a courthouse which may be used without endangering the public health or safety, cannot incur further indebtedness for the construction of a new courthouse, though the community has outgrown the existing courthouse. Fiscal Court of Franklin County v. Commonwealth, 139 Ky. 307 , 117 S.W. 301, 1909 Ky. LEXIS 3 ( Ky. 1909 ). See Bradford v. Fiscal Court of Bracken County, 159 Ky. 544 , 167 S.W. 937, 1914 Ky. LEXIS 864 ( Ky. 1914 ).

The need for an electric light system is not so great as to create an emergency and the limits of this section may not be exceeded by acquisition of a light plant and water system even where the need for a water system would be an emergency need. Samuels v. Clinton, 184 Ky. 97 , 211 S.W. 567, 1919 Ky. LEXIS 41 ( Ky. 1919 ).

The need to replace a school building destroyed by fire does not constitute an emergency within the meaning of this section. Nelson v. Board of Education, 213 Ky. 714 , 281 S.W. 808, 1926 Ky. LEXIS 603 ( Ky. 1926 ).

The fact that present sanitary facilities were inadequate and posed a potential health problem did not create such an unforeseen condition requiring immediate attention as to constitute an emergency within the meaning of this section. Hurst v. Millersburg, 220 Ky. 108 , 294 S.W. 788, 1927 Ky. LEXIS 469 ( Ky. 1927 ).

The need for an electric light plant does not constitute an emergency where it is not apparent that a delay in obtaining the service would imperil the public health and safety. Kentucky Utilities Co. v. Ginsberg, 255 Ky. 148 , 72 S.W.2d 738, 1934 Ky. LEXIS 180 ( Ky. 1934 ).

25.— — Question of Fact.

Whether a school bond issue was necessitated by an emergency is a question of fact on which the finding of the board of education is not conclusive. Buckner v. Board of Education, 236 Ky. 768 , 34 S.W.2d 236, 1930 Ky. LEXIS 837 ( Ky. 1930 ).

26.— Municipalities and Taxing Districts.

A board of education may not incur an indebtedness in excess of the limitations of this section which are applicable to counties, taxing districts and other municipalities, as the debts are those of the board itself and not part of the city’s debt. Sutherland v. Board of Education, 200 Ky. 23 , 252 S.W. 123, 1923 Ky. LEXIS 12 ( Ky. 1923 ).

A board of education which can mandatorily require the fiscal court to make a school levy is a taxing district, and may issue bonds to fund its floating indebtedness. Ebert v. Board of Education, 277 Ky. 633 , 126 S.W.2d 1111, 1939 Ky. LEXIS 706 ( Ky. 1939 ).

27.— Delay in Bond Issue.

A delay of eight (8) years between an election and the issuing of bonds was not unreasonable and would not render the bonds invalid. Runyon v. Simpson, 270 Ky. 646 , 110 S.W.2d 440, 1937 Ky. LEXIS 135 ( Ky. 1937 ).

28.— Partial Invalidity.

An order for an election to authorize an issue of school district bonds, exceeding the limitation fixed by this section, is not invalid as to the issuance of the legal amount. McKinney v. Board of Trustees, 144 Ky. 85 , 137 S.W. 839, 1911 Ky. LEXIS 555 ( Ky. 1911 ).

Where the voters had approved a $50,000 bond issue and $25,000 worth of bonds were issued, the additional amount of bonds cannot later be issued where at the time of the election the assessed property of the district would have supported an issue of only $22,000. Nelson v. Williamsburg Independent Graded School Dist., 265 Ky. 792 , 97 S.W.2d 814, 1936 Ky. LEXIS 579 ( Ky. 1936 ).

29.— Subsequent Invalid Debts.

Where county bonds were issued to an amount within the constitutional limits and later the assessed valuation of the county decreased and other debts were created so that the constitutional limits were exceeded, such facts would not invalidate either the bonds or the interest due thereon, but any portion of the later debts created for nongovernmental expenses would be void. Jones v. Fiscal Court of Fulton County, 275 Ky. 619 , 122 S.W.2d 510, 1938 Ky. LEXIS 484 ( Ky. 1938 ).

Any subsequent obligation of a county, after the aggregate of all the debts reaches the maximum allowed by this section, is void. Fulton County Fiscal Court v. Southern Bell Tel. & Tel. Co., 285 Ky. 17 , 146 S.W.2d 15, 1940 Ky. LEXIS 591 ( Ky. 1940 ).

30.— Election Ordinance.

An ordinance providing for a bond election need not state the value of assessed property, as such a statement would have no influence on the determination of whether the bond issue would create an indebtedness in excess of the limitations of this section. King v. Katterjohn, 193 Ky. 359 , 236 S.W. 250, 1922 Ky. LEXIS 3 ( Ky. 1922 ).

31.— Valid Bond Issue.

A provision in an ordinance that a city contribute to the payment of bonds issued for a sewer system did not create a debt in excess of the limits of this section where the ordinance specifies that the bonds are to be paid from the revenues from the sewer system and that they are not to constitute an indebtedness of the city. Francis v. Bowling Green, 259 Ky. 525 , 82 S.W.2d 804, 1935 Ky. LEXIS 351 ( Ky. 1935 ).

A bond issue to fund an indebtedness must be approved where the debt appears to be within constitutional limits. Letcher County Board of Education v. Bank of Whitesburg, Inc., 271 Ky. 166 , 111 S.W.2d 656, 1937 Ky. LEXIS 225 ( Ky. 1937 ).

A bond issue approved by the voters to pay for construction of a floodwall is valid where there is no evidence that the limits of this section would be exceeded in liquidating the bonds. Miller v. Ashland, 310 Ky. 680 , 221 S.W.2d 620, 1949 Ky. LEXIS 986 ( Ky. 1949 ).

A bond issue which would be valid within the limits of this section will not be invalidated by the fact that the accomplishment of the purpose for which the bonds were issued would cost four times the amount of the bond issue. Howard v. Board of Education, 311 Ky. 130 , 223 S.W.2d 721, 1949 Ky. LEXIS 1076 ( Ky. 1949 ).

32.— Invalid Debts.

A contract by a city of the fourth class incurring an indebtedness in excess of the five percent (5%) limit, made after the adoption of the Constitution but before the formal classification of the cities into classes by the general assembly, as required by the Constitution, was void. Beard v. Hopkinsville, 95 Ky. 239 , 24 S.W. 872, 15 Ky. L. Rptr. 756 , 1894 Ky. LEXIS 9 ( Ky. 1894 ).

A subscription by a county in aid of a railroad, even if it would otherwise be valid, is unauthorized, where it would create indebtedness in excess of the limit prescribed. Whitney v. Kentucky M. R. Co., 110 Ky. 955 , 63 S.W. 24, 23 Ky. L. Rptr. 472 , 1901 Ky. LEXIS 161 ( Ky. 1901 ).

33.— Valid Statutes.

KRS 66.310 , in forbidding counties to incur indebtedness in excess of one half (1/2) of one percent (1%) of their assessed valuation without the approval of the county debt commission, does not contravene this section which merely limits the power of the Legislature and does not preclude it from fixing a lower limit. Boll v. Ludlow, 227 Ky. 208 , 12 S.W.2d 301, 1928 Ky. LEXIS 483 ( Ky. 1928 ). See Booth v. Board of Education, 229 Ky. 719 , 17 S.W.2d 1013, 1929 Ky. LEXIS 833 ( Ky. 1929 ).

The provision of KRS 66.310 prohibiting a county from contracting a debt in excess of one-half (1/2) of one percent (1%) of the value of its taxable property without approval of the state local finance officer is not an attempt to reduce the constitutional debt limit but to require the statutory procedure to be followed before exceeding the statutory limit. Lincoln Nat'l Bank, Inc. v. County Debt Com., 294 Ky. 642 , 172 S.W.2d 463, 1943 Ky. LEXIS 513 ( Ky. 1943 ).

34.— Invalid Statutes.

A statute raising the limit of indebtedness which may be incurred by a school district from two percent (2%) to four percent (4%) is unconstitutional. Boll v. Ludlow, 227 Ky. 208 , 12 S.W.2d 301, 1928 Ky. LEXIS 483 ( Ky. 1928 ). See Booth v. Board of Education, 229 Ky. 719 , 17 S.W.2d 1013, 1929 Ky. LEXIS 833 ( Ky. 1929 ).

35.— Tax Levies.

A court may not compel a city to levy a tax to pay an indebtedness which exceeded the limitations of this section. Bardwell v. Southern Engine & Boiler Works, 130 Ky. 222 , 113 S.W. 97, 1908 Ky. LEXIS 258 ( Ky. 1908 ).

36.— Pleading and Proof.

A petition which merely avers that a floating indebtedness was illegally incurred is insufficient where it states conclusions rather than facts. King v. Christian County Board of Education, 229 Ky. 234 , 16 S.W.2d 1053, 1929 Ky. LEXIS 728 ( Ky. 1929 ).

Where a school board’s proof in a proceeding to approve a bond issue was inconsistent, the validity of the indebtedness cannot be established. Arrowood v. Board of Education, 271 Ky. 812 , 113 S.W.2d 466, 1938 Ky. LEXIS 65 ( Ky. 1938 ).

37.— Injunctions.
38.— — Parties.

In taxpayer’s action to enjoin the collection of a tax levied to pay county courthouse bonds, the county issuing the bonds should be made a party, since it will be directly affected by the result of the litigation, but the holders of outstanding county warrants, which the county in the same action alleges are invalid, need not be made parties, since such warrants could not possibly be affected. Cincinnati, N. O. & T. P. R. Co. v. Kinman, 280 Ky. 148 , 132 S.W.2d 735, 1939 Ky. LEXIS 73 ( Ky. 1939 ).

There could be no valid judgment in either an ex parte proceeding or a taxpayer’s suit for injunction as to the validity of warrants issued by a county where the holders of the warrants were not made parties to either proceeding. Cincinnati, N. O. & T. P. R. Co. v. Kinman, 280 Ky. 148 , 132 S.W.2d 735, 1939 Ky. LEXIS 73 ( Ky. 1939 ).

39.— Revenue Bonds.

Bonds meeting the requirements of KRS 58.010 to 58.140 do not violate the constitutional prohibitions on indebtedness because such bonds are paid solely from revenues of the designated system and do not encumber the city itself. Baker v. Richmond, 709 S.W.2d 472, 1986 Ky. App. LEXIS 1136 (Ky. Ct. App. 1986).

Cited:

Roberts & Co. v. Paducah, 95 F. 62, 1899 U.S. App. LEXIS 3132 (C.C.D. Ky. 1899 ); Ashland Waterworks Co. v. Ashland, 230 F. 254, 1916 U.S. Dist. LEXIS 965 (D. Ky. 1916 ); Ashland Waterworks Co. v. Ashland, 251 F. 492, 1918 U.S. App. LEXIS 1721 (6th Cir. Ky. 1918 ); Commissioner v. Carey-Reed Co., 101 F.2d 602, 1939 U.S. App. LEXIS 4416 (6th Cir. 1939); O'Mahoney v. Bullock, 97 Ky. 774 , 31 S.W. 878, 17 Ky. L. Rptr. 523 , 1895 Ky. LEXIS 242 ( Ky. 1895 ); Covington v. McKenna, 99 Ky. 508 , 36 S.W. 518, 18 Ky. L. Rptr. 288 , 1896 Ky. LEXIS 108 ( Ky. 1896 ); Maysville & L. Turnpike Road Co. v. Wiggins, 104 Ky. 540 , 47 S.W. 434, 20 Ky. L. Rptr. 724 , 1898 Ky. LEXIS 189 ( Ky. 1898 ); Brown v. Board of Education, 108 Ky. 783 , 57 S.W. 612, 22 Ky. L. Rptr. 483 , 1900 Ky. LEXIS 102 ( Ky. 1900 ); Knipper v. Covington, 109 Ky. 187 , 58 S.W. 498, 22 Ky. L. Rptr. 676 , 1900 Ky. LEXIS 17 1 ( Ky. 1900 ); Mayfield Woolen Mills v. Mayfield, 111 Ky. 172 , 61 S.W. 43, 22 Ky. L. Rptr. 1676 , 1901 Ky. LEXIS 169 ( Ky. 1901 ); Maze v. Owingsville Banking Co., 63 S.W. 428, 23 Ky. L. Rptr. 574 (1901); Covington v. District of Highlands, 113 Ky. 612 , 68 S.W. 669, 24 Ky. L. Rptr. 433 , 1902 Ky. LEXIS 8 9 ( Ky. 1902 ); Catlettsburg v. Self, 115 Ky. 669 , 74 S.W. 1064, 25 Ky. L. Rptr. 161 , 1903 Ky. LEXIS 156 ( Ky. 1903 ); Commonwealth v. Citizens' Nat'l Bank, 117 Ky. 946 , 80 S.W. 158, 25 Ky. L. Rptr. 2100 , 1904 Ky. LEXIS 265 ( Ky. 1904 ); Dyer v. Newport, 80 S.W. 1127, 26 Ky. L. Rptr. 204 (1904); Carpenter v. Central Covington, 119 Ky. 785 , 81 S.W. 919, 26 Ky. L. Rptr. 430 , 1904 Ky. LEXIS 130 ( Ky. 1904 ); Arbuckle v. McKinney, 97 S.W. 408, 30 Ky. L. Rptr. 55 (1906); Troutman v. Hays, 101 S.W. 976, 31 Ky. L. Rptr. 204 (1907); Tipton v. Shelbyville, 139 Ky. 541 , 107 S.W. 810, 32 Ky. L. Rptr. 1123 , 1908 Ky. LEXIS 8 ( Ky. 1908 ); McGinnis v. Bardstown Graded School Dist., 108 S.W. 289, 32 Ky. L. Rptr. 1289 (1908); Morris v. Hoagland, 116 S.W. 684 ( Ky. 1909 ); Rees v. Kranth, 120 S.W. 370 ( Ky. 1909 ); Kentucky Light & Power Co. v. James H. Williams & Co., 124 S.W. 840, 1910 Ky. LEXIS 696 ( Ky. 1910 ); Snyder v. Board of Trustees, 142 Ky. 73 9, 135 S.W. 271, 1911 Ky. LEXIS 282 ( Ky. 1911 ); Covington v. Bussart, 149 Ky. 288 , 148 S.W. 68, 1912 Ky. LEXIS 612 ( Ky. 1912 ); Rhea v. Newman, 153 Ky. 604 , 156 S.W. 154, 1913 Ky. LEXIS 900 ( Ky. 1913 ); Southern Bitulithic Co. v. Detreville, 156 Ky. 513 , 161 S.W. 560, 1913 Ky. LEXIS 483 ( Ky. 1913 ); Falls City Const. Co. v. Fiscal Court of Wolfe County, 160 Ky. 623 , 170 S.W. 26, 1914 Ky. LEXIS 524 ( Ky. 1914 ); Christopher v. Robinson, 164 Ky. 262 , 175 S.W. 387, 1915 Ky. LEXIS 368 ( Ky. 1915 ); Phelps v. Lexington, 167 Ky. 451 , 180 S.W. 786, 1915 Ky. LEXIS 862 ( Ky. 1915 ); Gatton v. Fiscal Court of Daviess County, 169 Ky. 425 , 184 S.W. 1, 1916 Ky. LEXIS 705 ( Ky. 1916 ); Smith v. Board of Trustees, 171 Ky. 39 , 186 S.W. 927, 1916 Ky. LEXIS 300 (Ky. 1916); Marz v. Newport, 173 Ky. 14 7, 190 S.W. 670, 1917 Ky. LEXIS 416 ( Ky. 1917 ); McCrocklin v. Nelson County Fiscal Court, 174 Ky. 308 , 192 S.W. 494, 1917 Ky. LEXIS 197 ( Ky. 1917 ); Nelson County Fiscal Court v. McCrocklin, 175 Ky. 199 , 194 S.W. 323, 1917 Ky. LEXIS 316 (Ky. 1917); Carter v. Krueger & Son, 175 Ky. 39 9, 194 S.W. 553, 1917 Ky. LEXIS 346 (Ky. 1917); In re Covington, 176 Ky. 14 0, 195 S.W. 439, 1917 Ky. LEXIS 32 (Ky. 1917); Tartar v. Skaggs, 184 Ky. 58 , 211 S.W. 203, 1919 Ky. LEXIS 17 ( Ky. 1919 ); Hopkins v. Dickens, 188 Ky. 368 , 222 S.W. 101, 1920 Ky. LEXIS 288 ( Ky. 1920 ); Moores v. Board of Trustees, 189 Ky. 148 , 224 S.W. 645, 1920 Ky. LEXIS 393 ( Ky. 1920 ); Percival v. Covington, 191 Ky. 337 , 230 S.W. 300, 1921 Ky. LEXIS 318 ( Ky. 1921 ); Shaw v. Mayfield, 191 Ky. 389 , 230 S.W. 539, 1921 Ky. LEXIS 32 7 ( Ky. 1921 ); Rogan v. Board of Education, 192 Ky. 770 , 234 S.W. 443, 1921 Ky. LEXIS 152 (Ky. 1921); Billeter & Wiley v. State Highway Com., 203 Ky. 15 , 261 S.W. 855, 1924 Ky. LEXIS 847 ( Ky. 1924 ); Corbin v. Board of Education, 206 Ky. 787 , 268 S.W. 560, 1925 Ky. LEXIS 1049 ( Ky. 1925 ); Pulliam v. Board of Trustees, 216 Ky. 266 , 287 S.W. 735, 1926 Ky. LEXIS 902 ( Ky. 1926 ); Ravenna v. Boyer Fire Apparatus Co., 218 Ky. 429 , 291 S.W. 782, 1927 Ky. LEXIS 200 ( Ky. 1927 ); Wilson v. Covington, 220 Ky. 795 , 295 S.W. 1069, 1927 Ky. LEXIS 637 ( Ky. 1927 ); State Budget Com. v. Lebus, 244 Ky. 700 , 51 S.W.2d 965, 1932 Ky. LEXIS 502 ( Ky. 1932 ); W. T. Congleton Co. v. Williamsburg, 253 Ky. 704 , 70 S.W.2d 376, 1934 Ky. LEXIS 726 ( Ky. 1934 ); Middlesboro v. Kentucky Utilities Co., 255 Ky. 140 , 72 S.W.2d 734, 1934 Ky. LEXIS 179 ( Ky. 1934 ); Hager v. Cisco, 256 Ky. 708 , 76 S.W.2d 614, 1934 Ky. LEXIS 446 (Ky. 1934); J. D. Van Hooser & Co. v. University of Kentucky, 262 Ky. 58 1 , 90 S.W.2d 1029, 1936 Ky. LEXIS 76 ( Ky. 1936 ); Ballard v. Adair County, 264 Ky. 490 , 95 S.W.2d 18, 1936 Ky. LEXIS 359 ( Ky. 1936 ); Ex parte Marshall Fiscal Court, 264 Ky. 550 , 95 S.W.2d 33, 1936 Ky. LEXIS 366 (Ky. 1936); Matz v. Newport, 265 Ky. 126 , 95 S.W.2d 1071, 1936 Ky. LEXIS 422 (Ky. 1936); Towe v. Scottsville, 269 Ky. 486 , 107 S.W.2d 326, 1937 Ky. LEXIS 628 ( Ky. 1937 ); First Nat'l Bank v. Princeton, 273 Ky. 601 , 117 S.W.2d 210, 1938 Ky. LEXIS 676 ( Ky. 1938 ); Williams v. Board of Education, 274 Ky. 624 , 119 S.W.2d 642, 1938 Ky. LEXIS 301 ( Ky. 1938 ); Board of Education v. Louisville & N. R. Co., 280 Ky. 650 , 134 S.W.2d 219, 1939 Ky. LEXIS 184 ( Ky. 1939 ); Middlesboro v. Kentucky Utilities Co., 284 Ky. 833 , 146 S.W.2d 48, 1940 Ky. LEXIS 587 ( Ky. 1940 ); Payne v. Covington, 285 Ky. 14, 146 S.W.2d 54, 1940 Ky. LEXIS 593 ( Ky. 1940 ); Wallins v. Luten Bridge Co., 291 Ky. 73 , 163 S.W.2d 276, 1942 Ky. LEXIS 181 ( Ky. 1942 ); Board of Education v. Highland Cemetery, 292 Ky. 374 , 166 S.W.2d 854, 1942 Ky. LEXIS 99 ( Ky. 1942 ); Allen County Fiscal Court v. Allen County Farm Bureau, 298 Ky. 220 , 182 S.W.2d 660, 1944 Ky. LEXIS 877 ( Ky. 1944 ); W. C. Thornburgh Co. v. Fiscal Court of Trigg County, 299 Ky. 578 , 186 S.W.2d 185, 1945 Ky. LEXIS 465 ( Ky. 1945 ); Silk v. Louisville, 299 Ky. 736 , 187 S.W.2d 286, 1945 Ky. LEXIS 790 ( Ky. 1945 ); Jody v. London, 305 Ky. 303 , 203 S.W.2d 41, 1947 Ky. LEXIS 786 ( Ky. 1947 ); Fyfe v. Hardin County Board of Education, 305 Ky. 589 , 205 S.W.2d 165, 1947 Ky. LEXIS 880 ( Ky. 1947 ); Sanitation Dist. of Jefferson County v. Louisville, 308 Ky. 368 , 213 S.W.2d 995, 1948 Ky. LEXIS 879 ( Ky. 1948 ); Rash v. Louisville & Jefferson County Metropolitan Sewer Dist., 309 Ky. 442 , 217 S.W.2d 232, 1949 Ky. LEXIS 670 ( Ky. 1949 ); Demunbrun v. Browning, 311 Ky. 71 , 223 S.W.2d 372, 1949 Ky. LEXIS 1058 ( Ky. 1949 ); Farmers State Bank v. Owsley County, 314 Ky. 856 , 238 S.W.2d 471, 1951 Ky. LEXIS 815 ( Ky. 1951 ); Deters v. Louisville, 249 S.W.2d 796, 1952 Ky. LEXIS 870 ( Ky. 1952 ); Maggard v. Marcum, 252 S.W.2d 41, 1952 Ky. LEXIS 977 ( Ky. 1952 ); Burke v. Louisville, 275 S.W.2d 899, 1955 Ky. LEXIS 38 6 ( Ky. 1955 ); Miller v. Louisville, 321 S.W.2d 237, 1959 Ky. LEXIS 269 ( Ky. 1959 ); Petrey v. Hazard, 346 S.W.2d 534, 1961 Ky. LEXIS 314 ( Ky. 1961 ); Dixon v. County of Elliott, 357 S.W.2d 852, 1962 Ky. LEXIS 148 ( Ky. 1962 ); Raque v. Louisville, 402 S.W.2d 697, 1966 Ky. LEXIS 375 ( Ky. 1966 ); Rea v. Gallatin County Fiscal Court, 422 S.W.2d 134, 1967 Ky. LEXIS 38 ( Ky. 1967 ).

Opinions of Attorney General.

The incurrence of debt for essential governmental purposes is valid though the results may exceed the limitations of this section, but payment must be effected out of funds raised within the tax rate structure limitations of Const., § 157. OAG 64-700 .

The execution of a mortgage by a municipality on the physical properties of an off-street parking project as additional security for the revenue bonds issued to finance the project would create a prohibited indebtedness of the city under this section and Const., § 157. OAG 65-473 .

A first mortgage executed by a city on parking meters partially financed by money from the general fund would create a prohibited indebtedness within the meaning of Const., § 157 and this section. OAG 65-485 .

If a city borrowed the sum of $17,000 by executing a note for that amount to a local bank, even though the city were permitted to pay off the note in equal instalments over a period of five (5) years, such a loan would involve the aggregate or total amount of $17,000, rather than the $17,000 being broken into five (5) equal parts. OAG 66-689 .

An urban service district created under KRS ch. 108 does not qualify as a taxing district within the meaning of Const., § 157 and this section. OAG 68-248 .

A county hospital could not legally purchase equipment which could not be paid for within the fiscal year in which it was purchased. OAG 68-280 .

A city’s borrowing $60,000 from its depository under a five (5) year note to purchase new garbage equipment would be a violation of Const., § 157. OAG 68-578 .

The establishment of a revolving capital improvement fund with money borrowed from the city investment fund and to be repaid over a five (5) year period from ad valorem taxes would be a violation of this section. OAG 69-255 .

A proposed financial plan for a city to acquire an off-street parking facility which would extend over four years at a total cost equal to the approximate income of the city could violate Const., § 157 and this section, which provide that the city may not incur indebtedness in excess of the anticipated revenue for the year unless there is an affirmative vote by two-thirds (2/3) of the city’s inhabitants. OAG 69-258 .

Where six (6) years earlier the people of a city voted a bond issue for the construction of a floodwall but nothing further was done, the city would now be authorized to levy the special tax irrespective of the fact that the flood control project has not yet begun nor have the bonds actually been issued. OAG 69-577 .

A city could not borrow on a ten (10) year loan the money to construct a fire station and office building without the debt being voted on in a general election if it exceeded the annual income of the city and, even if the vote was in favor of the indebtedness, it could not exceed the constitutional debt limit set by this section. OAG 70-24 .

County does not violate this section’s limitation on indebtedness by selling courthouse to a holding corporation for $1.00, after which the corporation borrows funds to renovate the courthouse and sells it back to the county by means of a lease purchase contract. OAG 72-32 .

For the purpose of the indebtedness limitations of the constitution under section 157 and this section of the constitution, the revenue sharing money actually made available to the city and county for the year in which the proposed new indebtedness for the buildings will be incurred is a valid part of the two governmental units’ revenue for that particular year. OAG 73-263 .

A city may borrow money to meet its pension fund obligations if such funds are not available in the city’s 1973 budget provided the total amount of the money borrowed does not exceed its anticipated revenue for the year in violation of this section and § 157. OAG 73-283 .

If the county decides to issue county government obligation bonds instead of revenue bonds which would not be county obligations, then the limitations of this section and § 157 would have to be considered and if an emergency were shown, the two percent (2%) limit could be exceeded, but if the obligation exceeded the income and revenue of the county for a one (1) year period, the question would have to be submitted to the voters and whatever amount was borrowed would have to be measured against the limitations. OAG 73-764 .

Since KRS 75.040 authorizes the board of trustees of fire protection districts to levy taxes and as a separate taxing district under Const., § 157 and this section, it may borrow money in anticipation of but not in excess of its annual revenue for the year unless by an affirmative vote of the voters living within the district, it could borrow funds from a savings and loan association to purchase land and to erect a building to house its fire fighting facilities. OAG 75-511 .

Neighborhood improvement districts do not have the authority to levy ad valorem property taxes as they are not taxing districts. OAG 76-33 .

When an indebtedness is incurred in excess of the anticipated revenue and it is not for essential governmental purposes, only the excess of the anticipated revenue would be considered void. OAG 79-126 .

A contract to pay an annual amount for a period of years creates an indebtedness for the aggregate amount in the year in which the contract is made. OAG 79-226 .

The mortgage provisions applied in KRS 103.251 is constitutional in terms of the indebtedness restrictions of § 157 of the Constitution and this section, since no general fund revenues or tax revenues of the city will ever be involved, even should the mortgage ever be foreclosed and the property sold, no deficiency judgment can be obtained against the city and the bond transaction does not fall within the rule given in Bowling Green v. Kirby, 220 Ky. 839 , 295 S.W. 1004, 1927 Ky. LEXIS 603 ( Ky. 1927 ), that where a mortgage could foreclose on project property, which was acquired by city revenues, the foreclosure and sale constituted payment of a debt by the municipality. OAG 79-439 .

While a city has an obligation of good faith to the industrial building revenue bondholders under the bond documents, that is not equivalent to the financial obligation of the city or city indebtedness under § 157 of the Constitution and this section. OAG 79-439 .

A fire protection district is a special and separate taxing district under § 157 of the Constitution and this section. OAG 79-647 .

When Const., § 157 and this section are read in their entirety, the restrictions of those sections are to be applied to a unit of government constituting a “municipality” and a “taxing unit” at the same time, in other words, those designated categories must coexist in order for the restrictions to apply; an urban-county airport board has no taxing power, and since it is not a “taxing unit” it is not subject to the restrictions of Const., § 157 and this section. OAG 80-333 .

A county fiscal court can lease real property to a private entrepreneur for a five (5) year period without violating this section and Const., § 157 if the contractual obligation by the county for maintenance and repair during that period can be funded out of the current revenues available to the county in the year the lease is executed; otherwise the proposed lease must be approved by two-thirds (2/3) of the voters at an election held pursuant to Const., § 157. OAG 82-60 .

Where there is no contractual financial obligation created on the part of a county, the limitations of this section and § 157 of the Constitution do not come into play. OAG 82-60 .

Where proposed water improvement and expansion project to be constructed by Corps of Engineers involves the exercise of governmental or legislative powers or the exercise of discretion, as opposed to the exercise of business or proprietary powers, the city legislative body may not enter into a contract to obligate itself to operate and maintain the project beyond the terms of its members. In addition, the constitutional debt limit question could be involved where the agreement extends for many years as a city cannot become indebted in an amount exceeding in any year the income and revenue provided for such year. OAG 82-235 .

If a proposed loan from local banks to a county hospital could not be completely funded out of tax revenues available in the accounting year in which the loan was made, the loan would be void without a vote of the people, as required by Const., § 157. That would be true even if the debt were within the limits set by this section. OAG 82-401 .

The payment of expenses of the usual and current administration of government, i.e., compulsory obligations of government arising out of statutory law, are not within the prohibitive range of Const., § 157. However, the operation of a hospital by the county is not mandatory; therefore, a proposed debt relating to a hospital fell within the operative provisions of Const., § 157 and this section. OAG 82-401 .

Where a county hospital faced a cash-flow crisis and needed to acquire funds to meet that crisis, the proposed debt could be validated by submitting it to a vote of the people under Const., § 157 if such debt would exceed the available tax revenues for the particular year. The necessary affirmative vote required by Const., § 157 would validate such an obligation either with government obligation bond financing or without any bond issue assuming that the limits of this section were observed. OAG 82-401 .

Pursuant to Const., § 157 and this section, a county is required to adopt, budget-wise, the pay-as-you-go plan and not to incur obligations in excess of its current revenues. OAG 83-49 .

Road equipment expense is not a necessary and compulsory governmental expense. OAG 83-323 .

There is an exception to the restrictions of Const., § 157 and this section which consists of obligations for essential governmental services and functions; examples of “essential governmental expenses” are salaries of county officials and employees, expenses of holding county elections and the expense of maintaining a county hospital. OAG 83-323 .

Since the leasing of road equipment does not involve an essential and compulsory governmental service or function, if a lease contract involves an assumption by the county of a total debt of lease payments which exceeds the income and revenue available to the county for the particular year in which the lease is executed, the contract would violate Const., § 157 in the absence of a requisite vote of the people; in the event that such lease would involve a lease for only one (1) year, which could at the option of fiscal court be renewed from year to year (the county only being obligated for one (1) year at a time), and assuming that the county has currently available revenue to cover the first year’s rental (and has available the current revenue to cover any subsequent one (1) year renewal), and assuming the limit of this section is met, then Const., § 157 would not be violated. OAG 83-323 .

A fire protection district is a special and separate taxing district under this section and Const., § 157. OAG 85-65 .

Constitution §§ 26, 157, 162, 179 and this section do not impose a general ban upon a county agreeing to joint and several liability with other counties or political entities; furthermore, these constitutional sections do not prohibit payment of obligations incurred in a prior year, from moneys of a subsequent year. OAG 93-54 .

Research References and Practice Aids

Cross-References.

Issuance of bonds, KRS ch. 66.

Law for borrowing money must specify purpose, Const., § 178.

Kentucky Bench & Bar.

Tobergte, The Impact of Kentucky’s Present Constitution Upon Business Growth & Development, Volume 51, No. 3, Summer 1987 Ky. Bench & B. 21.

§ 159. Tax to pay indebtedness in not more than forty years must be levied.

Whenever any city, town, county, taxing district or other municipality is authorized to contract an indebtedness, it shall be required, at the same time, to provide for the collection of an annual tax sufficient to pay the interest on said indebtedness, and to create a sinking fund for the payment of the principal thereof, within not more than forty years from the time of contracting the same.

Compiler’s Notes.

The 1990 General Assembly, by Acts 1990, ch. 150, § 5, proposed that the Constitution be amended by repealing this section. This amendment was submitted to the voters for ratification or rejection at the regular election in November, 1990, and was defeated.

NOTES TO DECISIONS

1.Construction.

Under this section and Const., § 180, a city council should annually make a separate levy sufficient to provide for the interest and sinking fund for each of its bond issues and the money in each fund should be kept separate and not used for any other purpose. Frank v. Fuss, 235 Ky. 143 , 29 S.W.2d 603, 1930 Ky. LEXIS 300 ( Ky. 1930 ).

That part of this section requiring payment in 40 years must be read with that part of Const., § 158 permitting renewal of bonds. Pulaski County v. Ben Hur Life Ass'n, 286 Ky. 119 , 149 S.W.2d 738, 1941 Ky. LEXIS 210 ( Ky. 1941 ).

This section requires that the taxing district provide for the collection of taxes sufficient to pay its debts; it is self-executing and is designed to protect bondholders. Pulaski County v. Ben Hur Life Ass'n, 286 Ky. 119 , 149 S.W.2d 738, 1941 Ky. LEXIS 210 ( Ky. 1941 ).

This section contemplates that a bond issue will be liquidated in large part by the same voters who authorized the issue, and not by a subsequent generation, and within a reasonable time. Sparks v. Sparks, 300 Ky. 392 , 189 S.W.2d 354, 1945 Ky. LEXIS 555 ( Ky. 1945 ).

Const., § 157 and this section were intended, first, to prohibit the creation of indebtedness by taxing districts without making provisions for its payment, and, second, to require that every valid debt of a taxing district must be paid. Griffin v. Clay County, 304 Ky. 592 , 201 S.W.2d 733, 1947 Ky. LEXIS 684 ( Ky. 1947 ).

The tax limits of Const., § 157 are absolute and to no extent modified by the provisions of Const., § 158 and this section. Rea v. Gallatin County Fiscal Court, 422 S.W.2d 134, 1967 Ky. LEXIS 38 ( Ky. 1967 ).

2.Application.

This section applies to any indebtedness contracted by the city which is transmuted into bonds payable over a term of years. Herd v. Middlesboro, 266 Ky. 488 , 99 S.W.2d 458, 1936 Ky. LEXIS 692 ( Ky. 1936 ).

The imperative law of the constitution and the statutes requiring that local legislative bodies issuing bonds provide by taxation to be collected annually throughout the life of a bonded indebtedness a sum sufficient to amortize the debt and pay it when and as it becomes due applies alike to bonds issued by authority of a special referendum vote and to bonds issued by resolution, order or ordinance of a local legislative body to fund a valid floating debt. Fulton County Fiscal Court v. Southern Bell Tel. & Tel. Co., 285 Ky. 17 , 146 S.W.2d 15, 1940 Ky. LEXIS 591 ( Ky. 1940 ).

3.Annual Tax.

Where refunding bonds have been issued as authorized by statute, the city may levy a tax as provided by the Constitution. Commissioners of Sinking Fund v. Zimmerman, 101 Ky. 432 , 41 S.W. 428, 19 Ky. L. Rptr. 689 , 1897 Ky. LEXIS 212 ( Ky. 1897 ).

After bonds were issued for school buildings, it was the mandatory duty of the board of council to provide for the levy of an annual tax sufficient to pay the interest and to create a sinking fund for payment of the principal. Board of Education v. Lee, 153 Ky. 661 , 156 S.W. 375, 1913 Ky. LEXIS 906 ( Ky. 1913 ).

Under the provisions of this section and Const., § 157, it is sufficient that the city council provide for the annual tax after the election and before the issuance of the bonds to pay the interest thereon and provide a sinking fund to pay same. Fowler v. Oakdale, 158 Ky. 603 , 166 S.W. 195, 1914 Ky. LEXIS 687 ( Ky. 1914 ).

This section requires a tax levy not only sufficient to pay interest on bonds but also to raise annually money sufficient to amortize the debt within the period of the bond issue. McDonald v. Lexington, 253 Ky. 585 , 69 S.W.2d 1065, 1934 Ky. LEXIS 713 ( Ky. 1934 ).

Whenever a taxing district creates a bonded indebtedness, it must provide by taxation to be collected annually throughout the life of the bonds a sum sufficient to amortize the debt and pay it when and as it shall become due, and this requirement is mandatory upon all local legislative bodies as well as on the General Assembly. Fulton County Fiscal Court v. Southern Bell Tel. & Tel. Co., 285 Ky. 17 , 146 S.W.2d 15, 1940 Ky. LEXIS 591 ( Ky. 1940 ).

This section declares that where any city or other taxing district is authorized to contract an indebtedness, it shall at the same time provide for the collection of an annual tax sufficient to pay same. Swinburne v. Newport, 297 Ky. 820 , 181 S.W.2d 421, 1944 Ky. LEXIS 821 ( Ky. 1944 ).

An annual tax is a direct ad valorem tax which is levied every year. Dalton v. State Property & Bldgs. Com., 304 S.W.2d 342, 1957 Ky. LEXIS 276 ( Ky. 1957 ).

Provision for paying the debt through license, excise taxes and fees constitute an annual tax within the meaning of Const., § 50. Dalton v. State Property & Bldgs. Com., 304 S.W.2d 342, 1957 Ky. LEXIS 276 ( Ky. 1957 ).

This section requires the collection of an annual tax to pay the principal and interest on a valid indebtedness. Bell v. Board of Education, 343 S.W.2d 804, 1961 Ky. LEXIS 433 ( Ky. 1961 ).

4.— Levy.
5.— — Amount.

A town of the sixth class, having less than 10,000 inhabitants, after levying a tax of 50 cents on each $100 for current expenses, has no authority to levy an additional tax of 50 cents on the $100 to pay interest on, and to provide a sinking fund for, waterworks bond. Bardwell v. Harlin, 118 Ky. 232 , 80 S.W. 773, 26 Ky. L. Rptr. 101 , 1904 Ky. LEXIS 22 ( Ky. 1904 ).

Where bond issue has been authorized by vote of the people, it is the right as well as the duty of the city taxing authorities to levy an additional tax, over and above that required for current expenses, if it be necessary to provide for the annual interest on the bonds and for a sinking fund for the payment of the principal, even though it should be necessary to exceed the rate of 75 cents on the $100 provided for in Const., § 157. Ballard v. Shelbyville, 180 Ky. 135 , 201 S.W. 452, 1918 Ky. LEXIS 4 ( Ky. 1918 ).

This section authorizes a levy in excess of the limits of Const., § 157 if necessary to provide an adequate sinking fund. Harris v. Morganfield, 201 Ky. 588 , 257 S.W. 1032, 1924 Ky. LEXIS 603 ( Ky. 1924 ).

In order to pay off a debt created or assumed by a vote of the people, the county or other taxing district may levy a special tax in addition to the maximum rate prescribed by Const., § 157. Fulton County Fiscal Court v. Southern Bell Tel. & Tel. Co., 285 Ky. 17 , 146 S.W.2d 15, 1940 Ky. LEXIS 591 ( Ky. 1940 ).

County could be compelled, under this section, to levy a tax in excess of the 50-cent maximum rate prescribed by Const., § 157, to provide for payment of debts consisting of funding bonds and floating debt, where the debts had been held valid under court decisions, in force at the time the debts were created, but some of which were later overruled, construing the constitution to permit a taxing district to incur valid debts of such nature regardless of fact that the debts could not be retired from the 50-cent tax levy. Griffin v. Clay County, 304 Ky. 592 , 201 S.W.2d 733, 1947 Ky. LEXIS 684 ( Ky. 1947 ).

An annual tax in excess of the maximum regular tax authorized by KRS 160.475 may be levied to pay valid school bonds where the maximum regular levy is insufficient. Bell v. Board of Education, 343 S.W.2d 804, 1961 Ky. LEXIS 433 ( Ky. 1961 ).

6.— — Length.

A county may be mandatorily required to continue the special levy beyond the life of the bonds. Pulaski County v. Ben Hur Life Ass'n, 286 Ky. 119 , 149 S.W.2d 738, 1941 Ky. LEXIS 210 ( Ky. 1941 ).

7.Sinking Fund.

The council of a city of the third class has statutory authority to create a sinking fund for the payment of any debt the city may create, including bonds issued pursuant to Const., §§ 157 and 158. O'Bryan v. Owensboro, 113 Ky. 680 , 68 S.W. 858, 69 S.W. 800, 24 Ky. L. Rptr. 469 , 24 Ky. L. Rptr. 645 , 1902 Ky. LEXIS 92 ( Ky. 1902 ), overruled, Nelson County Fiscal Court v. McCrocklin, 175 Ky. 199 , 194 S.W. 323, 1917 Ky. LEXIS 316 ( Ky. 1917 ).

The sinking fund provision of this section is designed to aid bondholders and does not invalidate bonds on account of any deficiency in provision for or loss of sinking fund, whether arising from mistake or otherwise. E. T. Lewis Co. v. Winchester, 140 Ky. 244 , 130 S.W. 1094, 1910 Ky. LEXIS 220 ( Ky. 1910 ).

This section does not require a sinking fund to redeem municipal bonds to be sufficient to retire the principal of the bonds without regard to accumulations to the sinking fund on account of its interest earnings. E. T. Lewis Co. v. Winchester, 140 Ky. 244 , 130 S.W. 1094, 1910 Ky. LEXIS 220 ( Ky. 1910 ). See Parker v. Corbin, 149 Ky. 603 , 149 S.W. 970, 1912 Ky. LEXIS 689 ( Ky. 1912 ).

Where an enabling act under which a bond issue is voted makes no provisions for a sinking fund, the terms of this section will be read into the act and become a part of it. Hunter v. Louisville, 222 Ky. 819 , 2 S.W.2d 652, 1928 Ky. LEXIS 254 ( Ky. 1928 ).

8.Term of Bonds.

The General Assembly has no power to limit the life of bonds issued under Const., § 157a, to a length of time lower than the maximum fixed by this section. Fiscal Court of Estill County v. Debt Com. of Kentucky, 286 Ky. 114 , 149 S.W.2d 735, 1941 Ky. LEXIS 209 ( Ky. 1941 ).

The General Assembly has no power to reduce the 40-year maturity provision of this section. Fiscal Court of Estill County v. Debt Com. of Kentucky, 286 Ky. 114 , 149 S.W.2d 735, 1941 Ky. LEXIS 209 ( Ky. 1941 ).

Refunding bonds to mature in 13 years and less than 29 years from the issuance of the original bonds do not violate the terms of this section. Shaw v. Fiscal Court of Graves County, 288 Ky. 215 , 155 S.W.2d 856, 1941 Ky. LEXIS 79 ( Ky. 1941 ).

A taxing district may, in its discretion, provide for maturity of its bonds within period of less than 40 years. Williams v. Barbourville, 246 S.W.2d 591, 1952 Ky. LEXIS 642 ( Ky. 1952 ).

9.— Unconstitutional Restrictions.

A statute reducing the time for discharging indebtedness incurred by municipalities to 20 years is unconstitutional. Winchester v. Nelson, 175 Ky. 63 , 193 S.W. 1040, 1917 Ky. LEXIS 287 ( Ky. 1917 ).

KRS 66.220 which requires that a certain proportion of a bond issue should fall due annually so that at final maturity all bonds shall have been paid off or canceled is void as a violation of this section. Fox v. Boyle County, 245 Ky. 27 , 53 S.W.2d 192, 1932 Ky. LEXIS 538 ( Ky. 1932 ).

10.Liability for Bonds.

Where a city has paid interest on a bond issue, it cannot avoid its liability on the bonds at the end of 40 years by alleging fraud or mistake and must therefore issue renewal bonds and provide for a sinking fund. Board of Councilmen v. Board of Education, 215 Ky. 286 , 284 S.W. 1085, 1926 Ky. LEXIS 712 ( Ky. 1926 ).

11.Authorized Indebtedness.

A debt validated by the Court of Appeals was an authorized indebtedness within meaning of this section, which requires county to provide for collection of tax sufficient to retire authorized indebtedness, and county would be required to levy sufficient tax to retire such indebtedness even though such levy would exceed the limit set out in Const., § 157. Gardner v. Magoffin County, 310 Ky. 125 , 220 S.W.2d 96, 1949 Ky. LEXIS 858 ( Ky. 1949 ).

12.Method of Payment.

Although county is required to levy annual tax sufficient to retire outstanding bonds, county has discretion as to whether such tax money in sinking fund shall be used to pay portion of bonds maturing in any year or whether such money shall be held to meet future maturities and refunding bonds issued to take care of those presently maturing. Fox v. Boyle County, 245 Ky. 27 , 53 S.W.2d 192, 1932 Ky. LEXIS 538 ( Ky. 1932 ).

13.Contract Between Cities.

Contract between two (2) cities of the fourth class whereby one city agreed to pay the other, over a period of 20 years, a monthly sum to be determined by the amount of the first city’s sewage collected and treated by the other, did not create an indebtedness in violation of this section and Const., §§ 157 and 159. Russell v. Flatwoods, 394 S.W.2d 900, 1965 Ky. LEXIS 218 ( Ky. 1965 ).

Cited:

Woodmen of World v. Rowan County, 23 F. Supp. 903, 1938 U.S. Dist. LEXIS 2081 (D. Ky. 1938 ); Women’s Catholic Order of Foresters v. Trigg County, 38 F. Supp. 398, 1941 U.S. Dist. LEXIS 3475 (D. Ky. 1941 ); Shelbyville v. Shelbyville Water & Light Co., 27 S.W. 85, 16 Ky. L. Rptr. 176 (1894); Richmond Cemetery Co. v. Sullivan, 104 Ky. 723 , 20 Ky. L. Rptr. 1028 , 47 S.W. 1079, 1898 Ky. LEXIS 222 ( Ky. 1898 ); Covington v. District of Highlands, 113 Ky. 612 , 24 Ky. L. Rptr. 433 , 68 S.W. 669, 1902 Ky. LEXIS 8 9 ( Ky. 1902 ); Commonwealth v. Citizens’ Nat’l Bank, 117 Ky. 946 , 25 Ky. L. Rptr. 2100 , 80 S.W. 158, 1904 Ky. LEXIS 265 ( Ky. 1904 ); Troutman v. Hays, 101 S.W. 976, 31 Ky. L. Rptr. 204 (1907); Tipton v. Shelbyville, 139 Ky. 541 , 32 Ky. L. Rptr. 1123 , 107 S.W. 810, 1908 Ky. LEXIS 8 ( Ky. 1908 ); Morris v. Randall, 129 Ky. 720 , 112 S.W. 856, 1908 Ky. LEXIS 214 ( Ky. 1908 ); Morris v. Hoagland, 116 S.W. 684 (1909); Rees v. Kranth, 120 S.W. 370 (1909); Bradford v. Glasgow, 143 Ky. 401 , 136 S.W. 647, 1911 Ky. LEXIS 411 ( Ky. 1911 ); Southern Bitulithic Co. v. Detreville, 156 Ky. 513 , 161 S.W. 560, 1913 Ky. LEXIS 483 ( Ky. 1913 ); Marion v. Haynes, 157 Ky. 687 , 164 S.W. 79, 1914 Ky. LEXIS 373 ( Ky. 1914 ); Mitchell v. Knox County Fiscal Court, 165 Ky. 543 , 177 S.W. 279, 1915 Ky. LEXIS 557 ( Ky. 1915 ); Phelps v. Lexington, 167 Ky. 451 , 180 S.W. 786, 1915 Ky. LEXIS 862 ( Ky. 1915 ); Billington v. Moore, 168 Ky. 22 , 181 S.W. 651, 1916 Ky. LEXIS 502 ( Ky. 1916 ); Allen v. Cromwell, 203 Ky. 836 , 263 S.W. 356, 1924 Ky. LEXIS 1017 ( Ky. 1924 ); Wilson v. Covington, 220 Ky. 795 , 295 S.W. 1069, 1927 Ky. LEXIS 637 ( Ky. 1927 ); Jones v. Citizens’ Bank of Hartford, 228 Ky. 699 , 15 S.W.2d 468, 1929 Ky. LEXIS 614 ( Ky. 1929 ); Parsons v. Arnold, 235 Ky. 600 , 31 S.W.2d 928, 1930 Ky. LEXIS 416 ( Ky. 1930 ); Wilson v. Wilson, 244 Ky. 112 , 50 S.W.2d 48, 1932 Ky. LEXIS 385 ( Ky. 1932 ); Griffin v. City of Owensboro, 244 Ky. 201 , 50 S.W.2d 514, 1932 Ky. LEXIS 399 ( Ky. 1932 ); Williams v. Raceland, 245 Ky. 212 , 53 S.W.2d 370, 1932 Ky. LEXIS 573 (Ky. 1932); Combs v. Lexington, 253 Ky. 813 , 70 S.W.2d 921, 1934 Ky. LEXIS 745 ( Ky. 1934 ); Payne v. Covington, 283 Ky. 848 , 143 S.W.2d 727, 1940 Ky. LEXIS 427 ( Ky. 1940 ); Ballard County v. Kentucky County Debt Com., 290 Ky. 770 , 162 S.W.2d 771, 1942 Ky. LEXIS 492 ( Ky. 1942 ); Rash v. Louisville & Jefferson County Metropolitan Sewer Dist., 309 Ky. 442 , 217 S.W.2d 232, 1949 Ky. LEXIS 670 ( Ky. 1949 ); Magoffin County v. Rigsby, 303 S.W.2d 545, 1957 Ky. LEXIS 266 ( Ky. 1957 ); Dixon v. County of Elliott, 357 S.W.2d 852, 1962 Ky. LEXIS 148 ( Ky. 1962 ); Raque v. Louisville, 402 S.W.2d 697, 1966 Ky. LEXIS 375 ( Ky. 1966 ).

Opinions of Attorney General.

Where bonds have all been authorized and are to be issued and sold, it is mandatory under this section that the county provide for the levy of a tax to set up a sinking fund to pay off the bonds and the tax must be levied and collected the year the bonds are sold. OAG 60-809 .

The rental obligations of the school district must be paid from tax or other revenue of the district. It is only after payment of these obligations that ordinary operating expenses of the district come into the picture. If the general fund revenues of the district have to be used to meet the balance of these obligations for the current year and if, as a result, a deficiency occurs in the general operating funds of the district which could be qualified as a valid indebtedness of the district which cannot be amortized in subsequent years without seriously impairing the efficiency of school operations, then a special additional tax may be imposed by the district. This special additional levy could not however be denominated a special building tax under KRS 160.477 . OAG 67-182 .

No city can carry a particular indebtedness for more than 40 years. OAG 70-817 .

A city may not use the interest earned on money in a sinking fund for municipal purposes other than those for which the sinking fund was created. OAG 82-499 .

Research References and Practice Aids

Kentucky Bench & Bar.

Tobergte, The Impact of Kentucky’s Present Constitution Upon Business Growth & Development, Volume 51, No. 3, Summer 1987 Ky. Bench & B. 21.

§ 160. Municipal officers — Election and term of office — Officers ineligible — Fiscal officers.

The Mayor or Chief Executive, Police Judges, members of legislative boards or councils of towns and cities shall be elected by the qualified voters thereof: Provided, the Mayor or Chief Executive and Police Judges of the towns of the fourth, fifth and sixth classes may be appointed or elected as provided by law. The terms of office of Mayors or Chief Executives and Police Judges shall be four years, and until their successors shall be qualified, and of members of legislative boards, two years. When any city of the first or second class is divided into wards or districts, members of legislative boards shall be elected at large by the qualified voters of said city, but so selected that an equal proportion thereof shall reside in each of the said wards or districts; but when in any city of the first, second or third class, there are two legislative boards, the less numerous shall be selected from and elected by the voters at large of said city; but other officers of towns or cities shall be elected by the qualified voters therein, or appointed by the local authorities thereof, as the General Assembly may, by a general law, provide; but when elected by the voters of a town or city, their terms of office shall be four years, and until their successors shall be qualified. No Mayor or Chief Executive of any city of the first or second class, after the expiration of three successive terms of office to which he has been elected under this Constitution shall be eligible for the succeeding term. No fiscal officer of any city of the first or second class, after the expiration of the term of office to which he has been elected under this Constitution, shall be eligible for the succeeding term. “Fiscal officer” shall not include an Auditor or Assessor, or any other officer whose chief duty is not the collection or holding of public moneys. The General Assembly shall prescribe the qualifications of all officers of towns and cities, the manner in and causes for which they may be removed from office, and how vacancies in such offices may be filled.

History. Amendment, proposed by Acts 1986, ch. 140, § 1, ratified November, 1986.

Compiler’s Notes.

The 1990 General Assembly, by Acts 1990, ch. 150, § 5, proposed that the Constitution be amended by repealing this section. This amendment was submitted to the voters for ratification or rejection at the regular election in November, 1990, and was defeated.

The General Assembly in 1986 (Acts 1986, ch. 140, § 1) proposed an amendment to this section of the Constitution which amendment was ratified by the voters at the regular election in November, 1986. Prior to the amendment the section read as follows: “§ 160. Officers of cities — Election or appointment — Term — Eligibility for succeeding term — Qualifications — Removal — Vacancies. — The Mayor or Chief Executive, Police Judges, members of legislative boards or councils of towns and cities shall be elected by the qualified voters thereof: Provided, The Mayor or Chief Executive and Police Judges of the towns of the fourth, fifth and sixth classes may be appointed or elected as provided by law. The terms of office of Mayors or Chief Executives and Police Judges shall be four years, and until their successors shall be qualified, and of members of legislative boards, two years. When any city of the first or second class is divided into wards or districts, members of legislative boards shall be elected at large by the qualified voters of said city, but so selected that an equal proportion thereof shall reside in each of the said wards or districts; but when in any city of the first, second or third class, there are two legislative boards, the less numerous shall be selected from and elected by the voters at large of said city; but other officers of towns or cities shall be elected by the qualified voters therein, or appointed by the local authorities thereof, as the General Assembly may, by a general law, provide; but when elected by the voters of a town or city, their terms of office shall be four years, and until their successors shall be qualified. No Mayor or Chief Executive or fiscal officer of any city of the first or second class, after the expiration of the term of office to which he has been elected under this Constitution, shall be eligible for the succeeding term. “Fiscal officer” shall not include an Auditor or Assessor, or any other officer whose chief duty is not the collection or holding of public moneys. The General Assembly shall prescribe the qualifications of all officers of towns and cities, the manner in and causes for which they may be removed from office, and how vacancies in such offices may be filled.”

NOTES TO DECISIONS

1.Construction.

The provisions of this section relating to the terms of all offices became an integral part of subsection (1) of KRS 95.720 (repealed) even though its provisions are not expressly mentioned therein. Cawood v. Hensley, 247 S.W.2d 27, 1952 Ky. LEXIS 661 ( Ky. 1952 ).

2.Application.

This section did not apply to officers elected under a city charter before the passage of any general law regarding the election of such officers. Lexington v. Wilson, 97 Ky. 707 , 31 S.W. 471, 17 Ky. L. Rptr. 435 , 1895 Ky. LEXIS 227 ( Ky. 1895 ).

While this section looks to the Legislature to make provisions for the mode of appointment or election of officers, this does not apply to mere clerks, employees or laborers whose employment may be made in such manner as the city council shall designate. Lowry v. Lexington, 113 Ky. 763 , 68 S.W. 1109, 24 Ky. L. Rptr. 516 , 1902 Ky. LEXIS 107 ( Ky. 1902 ).

3.Other Officers.

The provision as to the terms of office of other officers is plainly exclusive of the provision as to the terms of city legislative boards, and the latter cannot hold their offices until their successors are chosen. M'Dermott v. City of Louisville, 98 Ky. 50 , 32 S.W. 264, 17 Ky. L. Rptr. 617 , 1895 Ky. LEXIS 16 (Ky. Ct. App. 1895).

The phrase allowing election or appointment of “other officers” is intended to preserve the principle of home rule by continuing to allow a municipality to select its own officers to exercise the general functions of the office. Covington Bridge Com. v. Covington, 257 Ky. 813 , 79 S.W.2d 216, 1934 Ky. LEXIS 571 ( Ky. 1934 ).

4.Term.

The word “term,” which disqualifies a mayor of a city of the first class from succeeding himself, refers to a term of four (4) years and means that a mayor who is elected to a full term may not be re-elected within eight (8) years. Schardein v. Harrison, 230 Ky. 1 , 18 S.W.2d 316, 1929 Ky. LEXIS 5 ( Ky. 1 929 ), overruled, Little v. Bogie, 300 Ky. 668 , 190 S.W.2d 26, 1945 Ky. LEXIS 625 ( Ky. 1945 ).

The term of two (2) years, mentioned in this section, necessarily refers to an office legally in existence during the two (2) year term, for if there is no office, there can be no term. Payne v. Davis, 254 S.W.2d 710, 1953 Ky. LEXIS 606 ( Ky. 1953 ).

5.— Government Form Changed.

The provisions for terms of office in this section are subject to the condition that the municipal form of government might be changed and the office abolished as provided in Const., § 60 which authorizes general assembly to permit municipalities to change their form and organization of government. Payne v. Davis, 254 S.W.2d 710, 1953 Ky. LEXIS 606 ( Ky. 1953 ).

6.— Legislative Change.

The provisions of this section giving the General Assembly the power to prescribe how vacancies in municipal offices shall be filled does not allow the General Assembly to extend the length of time the appointees shall serve beyond the time established in Const., § 152. Scott v. Singleton, 171 Ky. 117 , 188 S.W. 302, 1916 Ky. LEXIS 306 ( Ky. 1916 ).

It is not permissible for the Legislature to extend the terms of office of city councilmen by providing that they shall hold over until their successors have been elected and have qualified, or beyond the term fixed in the Constitution. Byrne & Speed Coal Co. v. Louisville, 189 Ky. 346 , 224 S.W. 883, 1920 Ky. LEXIS 429 ( Ky. 1920 ).

The passage of an ordinance providing for the election rather than the appointment of the police chief changed the term of office automatically to four (4) years. Pikeville v. Stratton, 257 Ky. 320 , 78 S.W.2d 12, 1935 Ky. LEXIS 17 ( Ky. 1935 ).

Neither the General Assembly nor any city legislative body may reduce the term of an office when it is fixed by the Constitution. Cawood v. Hensley, 247 S.W.2d 27, 1952 Ky. LEXIS 661 ( Ky. 1952 ).

7.— City Classification Changed.

Where the chairman of the city council elected in January 1938 began to act as mayor in May 1938 when the city was changed from a sixth to a fifth-class city, he was not entitled to continue as mayor until the regular mayoral election in 1941, and a vacancy would occur when his two (2) year term expired in January 1940. Warren v. Blatt, 280 Ky. 185 , 132 S.W.2d 933, 1939 Ky. LEXIS 95 ( Ky. 1939 ).

Where mayor was elected in 1953 when city was third-class city and in 1956 city became city of second class and adopted city manager form of government, by virtue of KRS 81.020 (repealed), his term of office was not affected by change of classification and he had right to serve his term even if it overlapped and consumed almost two (2) years of then existing term of mayor of second-class city and, after date of change, elected mayor of third-class city rightfully pre-empted portion of term of officer of second-class city and, after his pre-emption of about two (2) years, only two (2) years remained; therefore, mayor elected in 1957 held office only until 1960 and it was necessary to hold election for mayor in 1959. Gerard v. Judd, 331 S.W.2d 119, 1959 Ky. LEXIS 2 ( Ky. 1959 ). See Pinkston v. Watkins, 186 Ky. 365 , 216 S.W. 852, 1919 Ky. LEXIS 2 24 ( Ky. 1919 ); Baker v. Combs, 194 Ky. 260 , 239 S.W. 56, 1922 Ky. LEXIS 165 ( Ky. 1922 ).

8.— Succession.

The city treasurer of a city of the second class is a fiscal officer and is not eligible to succeed himself in that office. Dorian v. Walters, 132 Ky. 54 , 116 S.W. 313, 1909 Ky. LEXIS 99 ( Ky. 1909 ).

The words “succeeding term” imply a like term immediately preceding. McGinnis v. Cossar, 230 Ky. 213 , 18 S.W.2d 988, 1929 Ky. LEXIS 53 ( Ky. 1929 ).

9.Legislative Board.

A city commission is a legislative board within the meaning of this section. Payne v. Davis, 254 S.W.2d 710, 1953 Ky. LEXIS 606 ( Ky. 1953 ).

10.Filling Vacancies.

The power of the Legislature is limited to providing how vacancies in elective office of towns and cities may be filled temporarily and until an election can be had as provided by Const., § 152. Todd v. Johnson, 99 Ky. 548 , 36 S.W. 987, 18 Ky. L. Rptr. 354 , 1896 Ky. LEXIS 121 ( Ky. 1896 ).

11.Removal of Officers.

The Legislature may provide that the city council may remove minor city officers at its pleasure. London v. Franklin, 118 Ky. 105 , 80 S.W. 514, 25 Ky. L. Rptr. 2306 , 1904 Ky. LEXIS 19 ( Ky. 1904 ).

The council of a city of the third class may remove a city assessor at pleasure under the statutes governing the appointment and removal of officers. Rogers v. Congleton, 84 S.W. 521, 27 Ky. L. Rptr. 109 (1905).

Under this section the Legislature has the power to provide how a commissioner may be removed from office. Arbogast v. Weber, 249 Ky. 20 , 60 S.W.2d 144, 1933 Ky. LEXIS 477 ( Ky. 1933 ).

12.Selection of Mayor.

Where the Legislature has not provided for the election or appointment of a mayor of a city of the fourth class, the mayor will be elected by the people under the provisions of this section. Craft v. Baker, 194 Ky. 205 , 238 S.W. 389, 1922 Ky. LEXIS 126 ( Ky. 1922 ).

13.Primary Election.

The Legislature is empowered by Const., § 160 to subject candidates for municipal office to the qualification that they must be nominated in the primary election as provided by KRS 89.440 (repealed). Shull v. Wingo, 446 S.W.2d 645, 1969 Ky. LEXIS 135 ( Ky. 1969 ).

14.Offices Changed or Abolished.

The Legislature may change the name of or abolish an office unless the office or officer is named specifically in the Constitution. Covington Bridge Com. v. Covington, 257 Ky. 813 , 79 S.W.2d 216, 1934 Ky. LEXIS 571 ( Ky. 1934 ).

15.Second-class Cities.
16.— Form of Government.

The Constitution does not require a second-class city to be divided into wards; it leaves that to the Legislature and the Legislature can abolish the ward organization, permitting them to adopt a commission form of government. Bryan v. Voss, 143 Ky. 422 , 136 S.W. 884, 1911 Ky. LEXIS 429 ( Ky. 1911 ).

17.Third-class Cities.
18.— Appointment of Employees.

Commissioners of third-class city operating under commission form of government are authorized to appoint and pay clerks to city police judge to render services pursuant to an ordinance. Browning v. Corbin, 265 Ky. 43 , 95 S.W.2d 1078, 1936 Ky. LEXIS 425 ( Ky. 1936 ).

19.Alcoholic Beverage Administrator.

The fact that part of a law allowing a city alcoholic beverage administrator to be appointed by the Commissioner of Revenue and approved by the Governor was held void did not result in making the office vacant as under the act the city was to create the office and appoint the administrator. Chandler v. Louisville, 277 Ky. 79 , 125 S.W.2d 1026, 1939 Ky. LEXIS 624 ( Ky. 1939 ).

20.Challenge of Statute.

Taxpayer could not question validity of KRS 76.160 of metropolitan sewer district law providing for appointment of trustee for bondholders, where no attempt had yet been made to appoint a trustee. Veail v. Louisville & Jefferson County Metropolitan Sewer Dist., 303 Ky. 248 , 197 S.W.2d 413, 1946 Ky. LEXIS 830 ( Ky. 1946 ).

21.Statutes.

Where police chief was elected under ordinance providing for election of police chief pursuant to statute authorizing such election but which statute contained a provision for a two (2) year term in violation of this section, since the invalid part of the statute providing for the two (2) year term can be separated from the rest of the statute, the chief can still be elected but for a four (4) year instead of a two (2) year term. Baker v. Combs, 194 Ky. 260 , 239 S.W. 56, 1922 Ky. LEXIS 165 ( Ky. 1922 ).

22.— Valid.

Legislation providing that the councilmen of cities of the fourth class shall be elected by a majority of the votes cast by the qualified voters of the wards for which they respectively stand is not repugnant to this section. Brown v. Holland, 97 Ky. 249 , 30 S.W. 629, 17 Ky. L. Rptr. 149 , 1895 Ky. LEXIS 180 ( Ky. 1895 ). See Moore v. Georgetown, 127 Ky. 409 , 105 S.W. 905, 32 Ky. L. Rptr. 315 , 32 Ky. L. Rptr. 323 , 1907 Ky. LEXIS 148 ( Ky. 1907 ).

KRS 26.270 (repealed), that provided that town trustees may provide for a person to replace a police judge who is absent or off the bench, was a valid exercise of the legislative power under the provisions of this section and Const., § 152. Grayson v. Bagby, 115 Ky. 651 , 74 S.W. 659, 25 Ky. L. Rptr. 44 , 1903 Ky. LEXIS 135 ( Ky. 1903 ).

A statute providing that a quorum shall consist of a majority of the members of the council or one half of the members and the mayor does not violate the provisions of this section. Pinson v. Morrow, 189 Ky. 291 , 224 S.W. 879, 1920 Ky. LEXIS 418 ( Ky. 1920 ), overruled, Cawood v. Hensley, 247 S.W.2d 27, 1952 Ky. LEXIS 661 ( Ky. 1952 ).

Statute allowing the board of trustees of a university, the board of education and others to appoint a city personnel commission does not violate this section as these officials are local authorities within the meaning of this section. Kerr v. Louisville, 271 Ky. 335 , 111 S.W.2d 1046, 1937 Ky. LEXIS 241 ( Ky. 1937 ).

Statute vesting control of municipal utility in a governing board did not give board legislative powers in violation of this section, since board merely constituted administrative agency with necessary discretionary powers. Settle v. Jones, 306 Ky. 9 , 206 S.W.2d 59, 1947 Ky. LEXIS 946 ( Ky. 1947 ).

23.— Invalid.

Appointive city officers cannot by statute be given a term longer than four (4) years; therefore, it would seem that a statute providing, in effect, that policemen shall not be removed by a board of safety during good behavior is void to the extent that it attempts to give a term of more than four years. Neumeyer v. Krakel, 110 Ky. 624 , 62 S.W. 518, 23 Ky. L. Rptr. 190 , 1901 Ky. LEXIS 124 ( Ky. 1901 ). But see Louisville v. Ross, 138 Ky. 764 , 129 S.W. 101, 1910 Ky. LEXIS 131 ( Ky. 1910 ).

A statute limiting the term of a police judge elected immediately after a city changed to a commission form of government to two (2) years was invalid as contrary to the terms of this section. Watkins v. Pinkston, 190 Ky. 455 , 227 S.W. 583, 1921 Ky. LEXIS 456 ( Ky. 1921 ).

24.Invalid Ordinances.

An ordinance authorizing mayor to appoint standing pro tem judge of police court to preside over it when regular judge failed to attend and hold court, and to assist such judge at any time, violated this section. KRS 26.140 and 26.220 (both repealed). Hargadon v. Silk, 279 Ky. 69 , 129 S.W.2d 1039, 1939 Ky. LEXIS 239 ( Ky. 1939 ).

Cited:

Johnson v. Wilson, 95 Ky. 415 , 15 Ky. L. Rptr. 852 , 25 S.W. 1057, 1894 Ky. LEXIS 3 9 ( Ky. 1894 ); Shelley v. McCullouch, 97 Ky. 164 , 17 Ky. L. Rptr. 53 , 30 S.W. 193, 1895 Ky. LEXIS 162 ( Ky. 1895 ); Boyd v. Land, 97 Ky. 379 , 17 Ky. L. Rptr. 273 , 30 S.W. 1019, 1895 Ky. LEXIS 210 ( Ky. 1895 ); Gibbs v. Board of Aldermen, 99 Ky. 490 , 18 Ky. L. Rptr. 341 , 36 S.W. 524, 1896 Ky. LEXIS 109 ( Ky. 1896 ); Roberts v. Hackney, 109 Ky. 265 , 22 Ky. L. Rptr. 975 , 58 S.W. 810, 1900 Ky. LEXIS 205 ( Ky. 1900 ); Neumeyer v. Krakel, 110 Ky. 624 , 23 Ky. L. Rptr. 190 , 62 S.W. 518, 1901 Ky. LEXIS 124 ( Ky. 1901 ); Potter v. Bell, 125 Ky. 288 , 30 Ky. L. Rptr. 1314 , 101 S.W. 297, 1907 Ky. LEXIS 276 ( Ky. 1907 ); Willson v. Hahn, 131 Ky. 439 , 115 S.W. 231, 1909 Ky. LEXIS 3 1 ( Ky. 1909 ); Dorian v. Paducah, 136 Ky. 373 , 124 S.W. 369, 1910 Ky. LEXIS 495 ( Ky. 1910 ); Underwood v. Wilhite, 139 Ky. 116 , 129 S.W. 548, 1910 Ky. LEXIS 14 ( Ky. 1910 ); Louisville v. Vreeland, 140 Ky. 400 , 131 S.W. 195, 1910 Ky. LEXIS 284 (Ky. 1910); Fullerton v. Mann, 214 Ky. 764 , 284 S.W. 113, 1926 Ky. LEXIS 433 ( Ky. 1926 ); Klein v. Louisville, 224 Ky. 624 , 6 S.W.2d 1104, 1928 Ky. LEXIS 663 ( Ky. 1928 ); Lexington v. Thompson, 250 Ky. 96 , 61 S.W.2d 1092, 1933 Ky. LEXIS 655 ( Ky. 1933 ); Louisville v. Thomas, 257 Ky. 540 , 78 S.W.2d 767, 1935 Ky. LEXIS 54 ( Ky. 1935 ); Louisville v. Fisher, 258 Ky. 84 , 79 S.W.2d 345, 1935 Ky. LEXIS 104 ( Ky. 1935 ); Beauchamp v. Rahm, 283 Ky. 50 , 140 S.W.2d 633, 1940 Ky. LEXIS 278 ( Ky. 1940 ); Culbertson v. Moore, 302 Ky. 768 , 196 S.W.2d 308, 1946 Ky. LEXIS 742 ( Ky. 1946 ); Meyers v. Walter, 253 S.W.2d 595, 1952 Ky. LEXIS 1105 ( Ky. 1952 ); Morgan v. Winchester, 411 S.W.2d 682, 1967 Ky. LEXIS 48 5 ( Ky. 1967 ); Sarakatsannis v. Baker, 488 S.W.2d 683, 1972 Ky. LEXIS 48 ( Ky. 1972 ); Holsclaw v. Stephens, 507 S.W.2d 462, 1973 Ky. LEXIS 3 ( Ky. 1973 ); North v. Russell, 427 U.S. 328, 96 S. Ct. 2709, 49 L. Ed. 2d 534, 1976 U.S. LEXIS 76 (1976).

Opinions of Attorney General.

The mayor of the city of Elsmere, being its chief executive officer, has the sole authority to invite the state police to exercise their powers within the city limits. OAG 61-142 .

A person elected to a full four (4) year term would be eligible for election to fill a vacancy for an unexpired term created during the succeeding term, since he would not be running for a full term. OAG 66-750 .

A city police judge is required to reside within the city limits. OAG 71-536 .

Since the General Assembly has not, under the authority of this section, provided a method for removing officers of cities of the fifth class, it appears that such officers may only be removed by impeachment under Section 68 of the Constitution. OAG 72-26 .

The mayor of a city of the fifth class is a municipal officer and may not at the same time hold the position of county judge pro tem or be a member of the county board of health. OAG 73-548 .

The prohibitions against change in compensation contained in KRS 64.580 (repealed) and Const., §§ 161 and 235 are not applicable under the “rubber dollar principle” to an incumbent mayor of a fourth-class city since the dollar is merely being adjusted for a constitutional officer, the mayor, named in this section. OAG 74-505 .

The police judge of a fourth-class city appointed by the city council is a constitutional officer whose compensation cannot be changed during his term of office and who can be removed from office only by impeachment by the General Assembly is not an employee as that term is used under the state law for state minimum wages and thus does not come under the federal minimum wage law. OAG 76-87 .

The laws pertaining to cities of the sixth class contain no provision for the removal of elected city officers though the state legislature is authorized to make such a provision under this section. OAG 78-155 .

In the absence of any constitutional authority, the General Assembly may not disqualify persons from being elected by a write-in vote. OAG 79-488 .

Where at the special city primary in May only one person was nominated for the office of mayor and only three (3) persons were nominated for four city commissioner positions, the names of the unopposed candidates would have to be placed on the November ballot for the offices they seek in order for them to be elected to office, since this section and KRS 83A.040 provide, in effect, that in order to hold the office of mayor and obtain membership on a city legislative body, one must be elected by the voters at a November election. OAG 81-263 .

Although subsection (3) of KRS 84.280 (repealed), which provided that the mayor of a second-class city is ineligible to serve successive terms, was impliedly repealed by the new municipal code effective in 1980, particularly KRS 83A.040 , 83A.050 and 83A.150 which contain no restriction on successive terms for mayors or members of legislative bodies, successive terms are still prohibited by this section. OAG 81-380 .

Research References and Practice Aids

Cross-References.

Election and qualification of city officers, removals, vacancies: Const., § 167, KRS 83A.040 , 83A.050 , 83A.080 .

§ 161. Compensation of city, county, or municipal officer not to be changed after election or appointment or during term, nor term extended.

The compensation of any city, county, town or municipal officer shall not be changed after his election or appointment, or during his term of office; nor shall the term of any such officer be extended beyond the period for which he may have been elected or appointed.

NOTES TO DECISIONS

1.Purpose.

The purpose of this section and Const., § 235 is to secure to public officers during the term of their office the same compensation they were entitled to receive at the time elected to such office. Neutzel v. Fiscal Court of Jefferson County, 183 Ky. 1 , 208 S.W. 11, 1919 Ky. LEXIS 433 ( Ky. 1 919).

The purpose of this section is to make the officers independent of the Legislature and to prevent appeals by officers to the Legislature for salary increases during their terms of office. Smith v. Harlan County Fiscal Court, 329 S.W.2d 61, 1959 Ky. LEXIS 141 ( Ky. 1959 ).

2.Construction.

This section apparently contemplates a change in compensation by the legislative body authorized to fix such compensation. Bell County v. Ball, 302 S.W.2d 131, 1957 Ky. LEXIS 183 ( Ky. 1957 ).

This section presupposes an act by the fiscal court which results in establishing reasonable compensation for the services to be rendered by an official having the qualifications for the office, the official being entitled to no less. Dennis v. Rich, 434 S.W.2d 632, 1968 Ky. LEXIS 237 ( Ky. 1968 ).

3.Application.

This section does not apply to office of Commonwealth’s Attorney, who is a state officer rather than a county or municipal officer. Miller v. Robertson, 306 Ky. 653 , 208 S.W.2d 977, 1948 Ky. LEXIS 631 ( Ky. 1948 ).

4.Change of Compensation.

In order to avoid the restrictions contained in this section and § 235 of the Constitution and KRS 64.530 against changes in salary during the coroner’s term, it would be necessary to show that the 1974 amendment to KRS 64.185 increasing the minimum salary from $50.00 per month to $150 per month was pursuant to the rubber dollar doctrine, and absent such a showing the changing of the salary during the elected term violated both constitutional and statutory prohibitions against the changing of the compensation during the elected term. Carey v. Washington County Fiscal Court, 575 S.W.2d 161, 1978 Ky. App. LEXIS 644 (Ky. Ct. App. 1978).

A magistrate’s compensation may be increased in the year of his or her election, not exceeding an amount equal to the purchasing power of the dollar in 1949 as measured by the Department of Local Government using the Consumer Price Index. Allen v. McClendon, 967 S.W.2d 1, 1998 Ky. LEXIS 35 ( Ky. 1998 ).

5.— Change.

Any change, whether a reduction or an increase, is unconstitutional. Adams v. Slavin, 225 Ky. 135 , 7 S.W.2d 836, 1928 Ky. LEXIS 711 ( Ky. 1928 ), overruled, Roberts v. Noel, 296 S.W.2d 745, 1956 Ky. LEXIS 238 ( Ky. 1956 ).

The term “changed” implies that an official’s compensation may not be scaled up or down. Sparks v. Boggs, 339 S.W.2d 480, 1960 Ky. LEXIS 472 ( Ky. 1960 ).

Once the compensation has been properly fixed, it may not be scaled up or scaled down. Dennis v. Rich, 434 S.W.2d 632, 1968 Ky. LEXIS 237 ( Ky. 1968 ).

A fiscal court properly adjusted the compensation of magistrates under the “rubber dollar” theory since KRS 64.530 allows adjustments during the term of office to provide compensation adequate for changes in the cost of living and the value of the dollar, despite the prohibitions in this section and Const., § 235 against changing compensation during the term of office for city, county or public officers. Hasty v. Shepherd, 620 S.W.2d 325, 1981 Ky. App. LEXIS 280 (Ky. Ct. App. 1981).

6.— Compensation.

Under the present Constitution, the Legislature does not have the power to change the compensation of an officer during his term of office, whether he be paid by salary or fees. Commonwealth ex rel. Attorney Gen. v. Addams, 95 Ky. 588 , 26 S.W. 581, 16 Ky. L. Rptr. 135 , 1894 Ky. LEXIS 61 ( Ky. 1894 ).

Fees allowed to certain officers as compensation in lieu of salaries are subject to the provision of this section forbidding the compensation of county or municipal officers to be changed during their terms of office. Taylor v. Adair County, 119 Ky. 374 , 84 S.W. 299, 27 Ky. L. Rptr. 36 , 1905 Ky. LEXIS 4 ( Ky. 1905 ). See Thomas v. Hager, 120 Ky. 428 , 86 S.W. 969, 27 Ky. L. Rptr. 813 , 1905 Ky. LEXIS 115 ( Ky. 1905 ).

The compensation forbidden to be changed refers to salaries in the case of those officers who are paid fixed salaries, and refers to fees and commissions of all other officers. Weber v. True, 304 Ky. 681 , 202 S.W.2d 174, 1947 Ky. LEXIS 704 ( Ky. 1947 ).

This section and Const., § 235 forbid the changing of salary of an officer during his term and are applicable to officers paid by fees as well as to those paid by salary and are also applicable to officers compensated by both salary and fees. Love v. Duncan, 256 S.W.2d 498, 1953 Ky. LEXIS 741 ( Ky. 1953 ).

When an officer is compensated only by fees, the same scale of fees must prevail for the same services and a change in amount thereof amounts to change of compensation within the meaning of this section. Bell County v. Ball, 302 S.W.2d 131, 1957 Ky. LEXIS 183 ( Ky. 1957 ).

The reference in the Constitution to compensation and salary mean the actual salary or fees paid to an officer. Caldwell County Fiscal Court v. Paris, 945 S.W.2d 952, 1997 Ky. App. LEXIS 49 (Ky. Ct. App. 1997).

7.— — Fringe Benefits.

Providing health insurance under a group policy covering county officials and employees does not constitute the payment of compensation or salary within the meaning of those terms as found in this section and Const., §§ 235 and 246. Caldwell County Fiscal Court v. Paris, 945 S.W.2d 952, 1997 Ky. App. LEXIS 49 (Ky. Ct. App. 1997).

While fringe benefits are not salary or compensation within the meaning of those terms as found in this section and Const., §§ 235 and 246 if the salary of a particular official were raised through the subterfuge of paying certain benefits for him not uniformly available to similarly situated officials, such benefits would constitute salary or compensation within the terms found in this section and Const., §§ 235 and 246. Caldwell County Fiscal Court v. Paris, 945 S.W.2d 952, 1997 Ky. App. LEXIS 49 (Ky. Ct. App. 1997).

8.— Term of Office.

One appointed county jailer for the unexpired part of a four (4) year term is in the same position as his predecessor, and is not entitled to increased compensation provided for by statute which took effect before his appointment but after the term of office of his predecessor began. Bosworth v. Ellison, 148 Ky. 708 , 147 S.W. 400, 1912 Ky. LEXIS 517 ( Ky. 1912 ).

The words “during his term of office” should be given the same meaning as the words “during the term for which they were elected” found in Const., § 235 and the compensation mentioned in this section and the salary mentioned in Const., § 235 refer to the full term of office and not to the person who may be filling the office. Schardein v. Harrison, 230 Ky. 1 , 18 S.W.2d 316, 1929 Ky. LEXIS 5 ( Ky. 1 929 ), overruled, Little v. Bogie, 300 Ky. 668 , 190 S.W.2d 26, 1945 Ky. LEXIS 625 ( Ky. 1945 ).

Under this section the term is the unit involved and no change in compensation fixed for that term may be made regardless of the number of incumbents of the office there may have been. Whitley County Board of Education v. Rose, 267 Ky. 283 , 102 S.W.2d 28, 1937 Ky. LEXIS 314 ( Ky. 1937 ).

The prohibition to change in compensation in this section and Const., § 235 relates to the term rather than the incumbent. Shamburger v. Duncan, 253 S.W.2d 388, 1952 Ky. LEXIS 1090 ( Ky. 1952 ).

Jailer’s salary could not be reduced during his term of office, even though the duties of the office had changed and the contemplated reduction would have applied to the next term. Wallace v. King, 973 S.W.2d 485, 1998 Ky. App. LEXIS 59 (Ky. Ct. App. 1998).

9.— Officers.

Drainage commissioners appointed pursuant to a statute are officers within the meaning of this section and their terms of office may not be extended during their incumbency. Board of Drainage Comm'rs v. Lang, 187 Ky. 123 , 218 S.W. 736, 1920 Ky. LEXIS 89 ( Ky. 1920 ).

A poorhouse keeper appointed by the fiscal court for two (2) years at a certain salary until further order was not a public officer but merely an employee or agent and therefore his salary could be changed without violating this section. Graves County v. Dowdy, 258 Ky. 544 , 80 S.W.2d 597, 1935 Ky. LEXIS 209 ( Ky. 1935 ).

In order for a position of employment to constitute a public office, it must be created by the Constitution or by the Legislature or created by a municipality or other body through authority conferred by the Legislature; it must possess a delegation of a portion of the sovereign power of government, to be exercised for the benefit of the public; the powers conferred and the duties to be discharged must be defined, directly or impliedly, by the Legislature or through legislative authority; the duties must be performed independently and without control of a superior power other than the law unless they be those of an inferior or subordinate office, created or authorized by the Legislature, and by it placed under the general control of a superior officer or body; and it must have some permanency and continuity. Love v. Duncan, 256 S.W.2d 498, 1953 Ky. LEXIS 741 ( Ky. 1953 ).

Official stenographic reporters of the various branches of the Jefferson Circuit Court are public officers within the meaning of this section and Const., § 235. Love v. Duncan, 256 S.W.2d 498, 1953 Ky. LEXIS 741 ( Ky. 1953 ) (decision prior to 1954 amendment of KRS 28.410 ).

A superintendent of schools is not an officer within the meaning of this section, as the office is created by statute and not named in the Constitution. Board of Education v. De Weese, 343 S.W.2d 598, 1960 Ky. LEXIS 116 ( Ky. 1960 ), overruling in part Fox v. Lantrip, 162 Ky. 178 , 172 S.W. 133, 1915 Ky. LEXIS 38 ( Ky. 1915 ); Beauchamp v. Snider, 170 Ky. 220 , 185 S.W. 868, 1916 Ky. LEXIS 46 ( Ky. 1916 ); Whitley County Board of Education v. Rose, 267 Ky. 283 , 102 S.W.2d 28, 1937 Ky. LEXIS 314 ( Ky. 1937 ), and other cases inconsistent therewith.

The meaning of the word “officers” as it is used in this section and Const., §§ 235 and 246 should be restricted to the officers directly named and designated in the text of the Constitution. Board of Education v. De Weese, 343 S.W.2d 598, 1960 Ky. LEXIS 116 ( Ky. 1960 ).

Even though the effective date of KRS 67.705(2), (3) and (4) was January 2, 1978, which would put the burden for fixing the salary of the county judge/executive on the new fiscal court in conflict with this section and KRS 64.530(4), the old fiscal court was free to fix the salary anywhere within the limits, and any salary set above or below the limits would be illegal and void. Wood v. Shelby County, 581 S.W.2d 31, 1979 Ky. App. LEXIS 406 (Ky. Ct. App. 1979).

10.— — Removable at Will.

The provisions of this section that the compensation of any city officer “shall not be changed after his election or appointment or during his term of office” applies only to officers having a fixed term, and does not forbid the reduction of the salary of a policeman removable by the board of police commissioners at pleasure. Lexington v. Rennick, 105 Ky. 779 , 49 S.W. 787, 20 Ky. L. Rptr. 1609 , 1899 Ky. LEXIS 272 ( Ky. 1899 ).

The provisions of this section relative to the change in compensation of officers do not apply to officers removable at the pleasure of the appointing body. Commonwealth v. Ewald Iron Co., 153 Ky. 116 , 154 S.W. 931, 1913 Ky. LEXIS 794 ( Ky. 1913 ). See Jefferson County v. Cole, 204 Ky. 27 , 263 S.W. 1114, 1924 Ky. LEXIS 441 ( Ky. 1924 ); Middlesboro ex rel. Minton v. Gibson, 225 Ky. 120 , 7 S.W.2d 825, 1928 Ky. LEXIS 707 ( Ky. 1928 ); Stewart v. Kidd, 262 Ky. 90 , 89 S.W.2d 861, 1936 Ky. LEXIS 2 ( Ky. 1936 ); Buechele v. Petty, 265 Ky. 321 , 96 S.W.2d 1010, 1936 Ky. LEXIS 484 ( Ky. 1936 ).

As this section applies only to officers who are elected or appointed for a fixed term and does not apply to policemen, an act prescribing qualifications for applicants for police department positions and requiring an examination for all applicants was not invalid when applied to present members of the police department. Middlesboro ex rel. Minton v. Gibson, 225 Ky. 120 , 7 S.W.2d 825, 1928 Ky. LEXIS 707 ( Ky. 1928 ).

This section does not apply to a deputy jailer, since he serves at the pleasure of the jailer and has no fixed term of office. Moody v. Duerson, 280 Ky. 527 , 133 S.W.2d 712, 1939 Ky. LEXIS 148 ( Ky. 1939 ).

The compensation of an appointive officer who is removable at the pleasure of the appointing authority may be changed at any time, notwithstanding that the statute provides that the officer shall serve for a specified term if not removed. Asher v. Pursifull, 294 Ky. 112 , 171 S.W.2d 20, 1943 Ky. LEXIS 395 ( Ky. 1943 ).

Salary of officer can be changed at any time where such officer has no fixed term and is removable at will of appointing authority. Turner v. Bowman, 294 Ky. 507 , 172 S.W.2d 209, 1943 Ky. LEXIS 490 ( Ky. 1943 ).

KRS 78.400 to 78.460 and 78.990 , authorizing the creation of a county police force merit system, superseded KRS 70.540 when accepted by the fiscal court and appellees were no longer term officers, for the offices they held had been thereby abolished and their terms terminated and they now held their positions for indefinite terms, and thus their salaries could be increased without regard to this section. Tierney v. Pendleton, 253 S.W.2d 376, 1952 Ky. LEXIS 1084 ( Ky. 1952 ).

This section does not apply to officers who hold at the pleasure of the appointing power. Love v. Duncan, 256 S.W.2d 498, 1953 Ky. LEXIS 741 ( Ky. 1953 ).

11.— City Classification Change.

This section is to be read with and qualified by Const., § 156 which allows the Legislature to change a city from one class to another with the consequential changes of compensation. Somerset v. Caylor, 241 S.W.2d 990, 1951 Ky. LEXIS 1033 ( Ky. 1951 ).

Where fourth-class city was changed to third-class city, resulting reduction in compensation of city attorney was not unconstitutional. Somerset v. Caylor, 241 S.W.2d 990, 1951 Ky. LEXIS 1033 ( Ky. 1951 ).

12.— Office Changed or Abolished.

This section does not impair the power to abolish the municipality or the office. Gilbert v. Paducah, 115 Ky. 160 , 72 S.W. 816, 24 Ky. L. Rptr. 1998 , 1903 Ky. LEXIS 87 ( Ky. 1903 ).

This section contemplates a fixed salary or fixed fees. The Legislature may affect the compensation by changing the work from one office to another, and such is constitutional. Duff v. Mosley, 169 Ky. 61 , 183 S.W. 231, 1916 Ky. LEXIS 642 ( Ky. 1916 ).

Ordinance establishing board of public works and abolishing office of superintendent of works upon such establishment was not violative of this section or Const., § 235, forbidding change of compensation of city officers or public officers during their terms. Board of Aldermen v. Hunt, 284 Ky. 720 , 145 S.W.2d 814, 1940 Ky. LEXIS 551 ( Ky. 1940 ).

The Legislature may abolish a statutory office and at that time the rights of the officeholders are terminated and, therefore, an increase in salary for those employees holding such offices was not a violation of this section as their terms were, in effect, ended when the new system of office holding was established. Tierney v. Pendleton, 253 S.W.2d 376, 1952 Ky. LEXIS 1084 ( Ky. 1952 ).

County commissioner’s office was created by Ky. Const. § 144, rather than by statute, so, when the county government was merged into an urban county or merged government, the commissioner was entitled to continue to receive the compensation for his office, because, under Ky. Const. § 161, no municipal officer’s compensation could be changed after that officer’s election or appointment, or during his term of appointment. Owens v. Maze, 132 S.W.3d 874, 2003 Ky. App. LEXIS 101 (Ky. Ct. App. 2003).

13.— Sunday Work.

An officer who receives a stipulated salary may not receive extra compensation for Sunday work unless specifically authorized by statute. Page v. O'Sullivan, 159 Ky. 703 , 169 S.W. 542, 1914 Ky. LEXIS 898 ( Ky. 1914 ).

14.— Payment in Advance.

Permitting payment to the county assessor in advance is a change in his compensation. James v. Barry, 138 Ky. 656 , 128 S.W. 1070, 1910 Ky. LEXIS 117 ( Ky. 1910 ).

15.— Retirement Contribution Increase.

Fact that officer’s contribution to retirement systems was increased from two and one-half percent (21/2%) to four percent (4%) in June 1962 did not result in a reduction of a salary of an elective officer in violation of this section and Const., § 235. Cook v. Chilton, 390 S.W.2d 656, 1965 Ky. LEXIS 364 ( Ky. 1965 ).

16.— Salary Previously Unfixed.

Where a new charter of a town provided for the election of a police judge and the fixing of his salary by the city council, and the first city council and the police judge were elected under the new charter at the same time, it was within the power of the council to fix the salary of the police judge after his election, and the police judge could not claim the salary fixed for a similar office under the old charter. Barrett v. Falmouth, 109 Ky. 151 , 58 S.W. 520, 22 Ky. L. Rptr. 667 , 1900 Ky. LEXIS 175 ( Ky. 1900 ).

Where the fiscal court fails to fix the salary of the county judge for his entire term before his election or qualification, it may fix such salary thereafter, but where it fixed $500 for the first year, it had no power thereafter to fix a different amount. Butler County v. James, 116 Ky. 575 , 76 S.W. 402, 25 Ky. L. Rptr. 801 , 1903 Ky. LEXIS 225 ( Ky. 1903 ). See Marion County Fiscal Court v. Kelly, 112 Ky. 831 , 56 S.W. 815, 22 Ky. L. Rptr. 174 , 1900 Ky. LEXIS 240 ( Ky. 1900 ).

If the fiscal court does not fix the salary of the county officer before his election, it may do so afterward, but, if such salary is fixed before election, it cannot be changed during the term. Grayson County v. Rogers, 122 S.W. 866 ( Ky. 1909 ). See Hurt v. Morgan County, 166 Ky. 364 , 179 S.W. 255, 1915 Ky. LEXIS 696 ( Ky. 1915 ); Roberts v. Walker, 227 Ky. 591 , 13 S.W.2d 761, 1929 Ky. LEXIS 921 ( Ky. 1929 ).

This section does not prohibit the fixing of the salary of an officer after his election where no salary had been fixed prior to the election, although the salary is different than that paid the previous incumbent. Asher v. Wilson, 294 Ky. 110 , 171 S.W.2d 17, 1943 Ky. LEXIS 393 ( Ky. 1943 ).

Where fiscal court, in 1937, fixed salary of county attorney for the term beginning in 1938, but the order expressly applied only to that term, it was not a violation of this section for the fiscal court, after the election of the next county attorney in 1941, to fix his salary for the term beginning in 1942 at a different sum. Asher v. Wilson, 294 Ky. 110 , 171 S.W.2d 17, 1943 Ky. LEXIS 393 ( Ky. 1943 ).

It is proper for fiscal court to fix compensation of jailer for services in caring for county buildings before commencement of term of jailer and, having once been fixed, it cannot be changed during the term. Perkins v. Cumberland County, 294 Ky. 737 , 172 S.W.2d 651, 1943 Ky. LEXIS 546 ( Ky. 1943 ).

Where ordinance fixing mayor’s salary was not in effect at time of his election, question of changing salary was not within scope of this section. Davis v. Jenkins, 314 Ky. 870 , 238 S.W.2d 475, 1951 Ky. LEXIS 816 ( Ky. 1951 ).

Where the salary of county attorney which had been fixed by an order of the fiscal court terminated at the end of the term, and order was entered after county attorney’s election to succeeding term fixing new salary for him, such order was valid, even though the amount of compensation had been changed, for the court was fixing his compensation, not changing it. Upton v. Whitley County, 256 S.W.2d 3, 1952 Ky. LEXIS 1148 ( Ky. 1952 ).

KRS 64.255 (repealed) providing for compensation of justices of the peace in counties under 250,000 population was not invalid where it was enacted not to change an existing level of compensation but to provide for compensation for the first time for performance of a long-standing duty pursuant to a judicial decision. Smith v. Harlan County Fiscal Court, 329 S.W.2d 61, 1959 Ky. LEXIS 141 ( Ky. 1959 ).

An administrative body was not prohibited from fixing a salary after the official took office in cases where the compensation had not been fixed prior thereto. Dennis v. Rich, 434 S.W.2d 632, 1968 Ky. LEXIS 237 ( Ky. 1968 ).

Where the fiscal court, prior to the enactment of the statute providing for salaries of county attorneys, by resolution set a salary of $3,000 plus fees for the county attorney to be elected, and after enactment of the statute amended the resolution, establishing a salary of $7,200, the first resolution simply established that a certain portion of the salary would be paid out of the county treasury and was not finally fixing the compensation as contemplated by the Constitution. Dennis v. Rich, 434 S.W.2d 632, 1968 Ky. LEXIS 237 ( Ky. 1968 ).

17.— Salary Previously Fixed Invalidly.

Where the Shelby County Fiscal Court was required by KRS 67.705(4) to set the county judge/executive’s salary at a minimum of $16,768.80, but had set it at a lower figure, there was no conflict, in raising it to that level, with either this section or KRS 64.530(4), since the increase would merely correct the situation to do what should have been done, and mandamus would be the proper remedy. Wood v. Shelby County, 581 S.W.2d 31, 1979 Ky. App. LEXIS 406 (Ky. Ct. App. 1979).

18.— Duties Increased or Decreased.

This section does not forbid the reduction of an officer’s duties for which he is paid special fees. Walker v. Commonwealth, 279 Ky. 198 , 130 S.W.2d 27, 1939 Ky. LEXIS 248 ( Ky. 1939 ).

19.— — Compensation Change Permitted.

Repeal of a statute imposing certain duties on county officers and allowing them compensation therefor does not change their compensation within the meaning of the Constitution. Purnell v. Mann, 105 Ky. 87 , 48 S.W. 407, 1898 Ky. LEXIS 244 ( Ky. 1 898 ), overruled, Pratt v. Breckinridge, 112 Ky. 1 , 65 S.W. 136, 23 Ky. L. Rptr. 1356 , 1901 Ky. LEXIS 286 ( Ky. 1901 ).

An officer performing extra services outside of his official duties, not interfering therewith, can receive extra compensation therefor. Slayton v. Rogers, 128 Ky. 106 , 107 S.W. 696, 32 Ky. L. Rptr. 897 , 1908 Ky. LEXIS 36 ( Ky. 1908 ).

Where a statute that allowed magistrates $3.00 per day when they attend upon the court was amended so as to allow pay for attendance upon committees, the amendment was constitutional. Thomas v. O'Brien, 138 Ky. 770 , 129 S.W. 103, 1910 Ky. LEXIS 132 ( Ky. 1910 ).

A 1924 act taking the job of tax collection from the sheriff and giving it to a tax collector was valid even though a previous statute enacted in 1922 had given the sheriff the tax collecting authority. Ross v. Cundiff, 206 Ky. 352 , 267 S.W. 169, 1924 Ky. LEXIS 335 ( Ky. 1924 ).

The Legislature may provide for separate allowance of salaries to public officers for special services, and such special allowance, if not made by the fiscal court before induction into office, may be made after induction into office. Robinson v. Elliott County Fiscal Court, 236 Ky. 63 , 32 S.W.2d 554, 1930 Ky. LEXIS 680 ( Ky. 1930 ).

The General Assembly may impose new duties on a public officer as such, and no increase in compensation for those duties may be made during his term of office, but compensation may be allowed for performance of additional duties which have no affinity with and do not interfere with the official duties. Shannon v. Combs, 273 Ky. 514 , 117 S.W.2d 219, 1938 Ky. LEXIS 680 ( Ky. 1938 ).

Where fiscal court, after election of county judge, fixed his salary at same amount former judge had received, without observing KRS 64.530 , and at a later meeting fixed the salary at an amount one and one-half (11/2) times as large as the original amount, reciting in the order that the salary should include all services rendered in misdemeanor cases, the increase did not violate this section, since the additional sum was not an increase in compensation but a substitute for fees received by county judges prior to the enactment of KRS 64.530 and the fact that the order did not separate the amount for services in misdemeanor cases from the rest of the salary was not fatal, since the circumstances clearly indicated that the additional one-half was for those services. Perry County v. Smith, 278 Ky. 321 , 128 S.W.2d 751, 1939 Ky. LEXIS 462 ( Ky. 1939 ).

Increased compensation after election has been approved when additional services are required of the officer. Dennis v. Rich, 434 S.W.2d 632, 1968 Ky. LEXIS 237 ( Ky. 1968 ).

20.— — Compensation Change Impermissible.

An allowance cannot be made to an officer for increased duties which he was under a duty to perform at the time of his election, even though it was understood that he was not to perform the duties. Jefferson County v. Waters, 114 Ky. 48 , 70 S.W. 40, 24 Ky. L. Rptr. 816 , 1902 Ky. LEXIS 133 ( Ky. 1902 ).

Where the statute directs the county treasurer to also act as treasurer of the school board, the school board cannot grant him an allowance for his services to that board in his official capacity. Board of Education v. Moore, 114 Ky. 640 , 71 S.W. 621, 24 Ky. L. Rptr. 1478 , 1903 Ky. LEXIS 17 ( Ky. 1903 ).

A contract between the county attorney and a school board allowing the attorney one half of a recovery in a suit by the school board was invalid, as the attorney’s salary was fixed and his duties required him to prosecute all civil actions in which the county was interested. Money v. Beard & Marshall, 136 Ky. 219 , 124 S.W. 282, 1909 Ky. LEXIS 468 ( Ky. 1909 ).

While the Legislature may change the duties of a county officer by either increasing or decreasing them, it cannot change his compensation, which is the sum paid for all that he may be required to do as an officer, and where the compensation of an officer is a salary the salary must remain the same throughout his term, and where the compensation is fees the same scale of fees must prevail for the same services, and where new duties are imposed, with fees attached, the incumbent cannot charge for the new duties. James v. Duffy, 140 Ky. 604 , 131 S.W. 489, 1910 Ky. LEXIS 325 ( Ky. 1910 ). See Lewis v. James, 191 Ky. 769 , 231 S.W. 526, 1921 Ky. LEXIS 392 ( Ky. 1921 ).

This section may not be disregarded when duties of an office are increased or diminished. Brown v. Laurel County Fiscal Court, 175 Ky. 747 , 194 S.W. 907, 1917 Ky. LEXIS 374 ( Ky. 1917 ).

A tax collector is not entitled to additional compensation for collecting additional taxes. McGrath v. Shelbyville, 200 Ky. 796 , 255 S.W. 694, 1923 Ky. LEXIS 187 ( Ky. 1923 ).

Where it is the statutory duty of the city clerk to collect street improvement taxes, the city council is without authority to appoint the city clerk to collect street improvement tax and allow him a percentage thereof for collecting it. Saufley v. Hazard, 209 Ky. 795 , 273 S.W. 488, 1925 Ky. LEXIS 602 ( Ky. 1925 ).

A court clerk in office when a statute creating a county library made the clerk the librarian may not collect additional compensation where the new duties were only a slight increase in the duties already imposed on him. Greenup County v. Spears, 259 Ky. 114 , 81 S.W.2d 905, 1935 Ky. LEXIS 268 ( Ky. 1935 ).

The duties of an officer may be increased or decreased during his term of office, but his compensation may not be changed during his term. Wyatt v. Danville, 276 Ky. 629 , 124 S.W.2d 1022, 1939 Ky. LEXIS 560 ( Ky. 1939 ).

Where city engineer was required by statute and ordinance to perform all engineering services for city, subsequent ordinance providing additional compensation for services rendered in improvement of water system was unconstitutional since additional services were engineering duties, and engineer could not rely on void ordinance to recover for such services rendered after term of office by agreement with city. Wyatt v. Danville, 276 Ky. 629 , 124 S.W.2d 1022, 1939 Ky. LEXIS 560 ( Ky. 1939 ).

21.— Effect on Incumbents.

A statute requiring the clerk of the Court of Appeals to turn over to the state all fees received by him, after retaining the expenses of his office, and $4,000 as his own salary did not apply to the incumbent of said office at the time the act was passed. Commonwealth ex rel. Attorney Gen. v. Addams, 95 Ky. 588 , 26 S.W. 581, 16 Ky. L. Rptr. 135 , 1894 Ky. LEXIS 61 ( Ky. 1894 ).

Circuit Court clerks were not entitled to the benefits of a statute which allowed them compensation for services in felony cases for which they had not theretofore been allowed any compensation. Bright v. Stone, 101 Ky. 626 , 43 S.W. 207, 19 Ky. L. Rptr. 849 (1897). See Stone v. Craft, 108 Ky. 20 , 55 S.W. 701, 21 Ky. L. Rptr. 1515 , 1900 Ky. LEXIS 5 ( Ky. 1900 ).

An amendment to the statute providing for an appropriation to keep the public buildings clean was not applicable to a jailer in office who was required to perform these duties at his own expense. Frizzell v. Holmes, 131 Ky. 373 , 115 S.W. 246, 1909 Ky. LEXIS 36 ( Ky. 1909 ).

Where the salary of a county official has been changed during his term of office and he is re-elected to another term, the change is inapplicable to the first term but is applicable to the term for which he is re-elected. Clark v. Logan County, 138 Ky. 676 , 128 S.W. 1079, 1910 Ky. LEXIS 119 ( Ky. 1910 ).

An act passed in 1922 providing that peace officers be allowed arrest fees for conviction of violators of the act was invalid as to a sheriff who had been elected prior to this act. Green v. Bell County, 222 Ky. 328 , 300 S.W. 857, 1927 Ky. LEXIS 912 ( Ky. 1927 ).

A county clerk was not entitled to fees for calculating taxes under an act passed after his election. Olive v. Coleman, 228 Ky. 127 , 14 S.W.2d 404, 1929 Ky. LEXIS 496 ( Ky. 1929 ).

Law requiring sheriff to issue dog licenses created change of compensation, and a sheriff in office at the time the act was passed was not entitled to fees. Bright v. Russell, 236 Ky. 567 , 33 S.W.2d 643, 1930 Ky. LEXIS 806 ( Ky. 1930 ).

22.— Re-election.

Under this section forbidding any change in compensation of an officer during his term, a statute changing the compensation of the clerks of Circuit Courts is valid as to the new term of office of a clerk re-elected to office since the passage of the statute. Stone v. Mayo, 55 S.W. 700, 21 Ky. L. Rptr. 1559 , 1900 Ky. LEXIS 551 (Ky. Ct. App. 1900).

23.— Salary Fixed Indefinitely.

If an order of the fiscal court fixes the compensation of the county judge for an indefinite time, the fiscal court has no authority to change it. McNew v. Nicholas County, 125 Ky. 66 , 100 S.W. 324, 30 Ky. L. Rptr. 1147 , 1907 Ky. LEXIS 259 ( Ky. 1907 ). See Brown v. Laurel County Fiscal Court, 175 Ky. 747 , 194 S.W. 907, 1917 Ky. LEXIS 374 ( Ky. 1917 ).

24.— Tax Collection.

Where the county attorney’s salary has been fixed by the fiscal court, it has no power to diminish his compensation during the term for which he was elected, nor to increase it by allowing him a commission on unpaid taxes collected by him, where it is his statutory duty to collect such taxes. Terrell v. Trimble County, 128 Ky. 51969 , 33 Ky. L. Rptr. 364 , 108 S.W. 848, 1908 Ky. LEXIS ( Ky. 1908 ). See Spalding v. Thornbury, 128 Ky. 533 , 103 S.W. 291, 108 S.W. 906, 31 Ky. L. Rptr. 738 , 33 Ky. L. Rptr. 362 , 1907 Ky. LEXIS 344 ( Ky. 1907 ), modified, 128 Ky. 539 , 108 S.W. 906 ( Ky. 1908 ).

The Legislature has the power to lessen the rate of compensation which an officer shall receive for the collection of public moneys, unless in so doing it makes a change in his salary or compensation after his election or during his term of office. Ross v. Board of Education, 196 Ky. 366 , 244 S.W. 793, 1922 Ky. LEXIS 520 ( Ky. 1922 ).

Changing the date at which taxes are to become delinquent does not reduce the compensation of the sheriff who collects the taxes. Carl v. Thiel, 211 Ky. 328 , 277 S.W. 485, 1925 Ky. LEXIS 875 ( Ky. 1925 ).

25.— Statutes.

While this section prohibits any change in compensation of a county judge/executive after his election or during his term, KRS 64.530(4) requires that the official’s salary be fixed not later than the first Monday in May in the year of his election, an apparent conflict. Wood v. Shelby County, 581 S.W.2d 31, 1979 Ky. App. LEXIS 406 (Ky. Ct. App. 1979).

26.— — Valid.

This section is not violated if the fiscal court fixes a salary for the first year for which the county judge is holding office at a lower figure than that for the year immediately preceding. Marion County Fiscal Court v. Kelly, 112 Ky. 831 , 56 S.W. 815, 22 Ky. L. Rptr. 174 , 1900 Ky. LEXIS 240 ( Ky. 1900 ). See Spalding v. Thornbury, 128 Ky. 533 , 103 S.W. 291, 108 S.W. 906, 31 Ky. L. Rptr. 738 , 33 Ky. L. Rptr. 362 , 1907 Ky. LEXIS 344 ( Ky. 1907 ), modified, 128 Ky. 539 , 108 S.W. 906 ( Ky. 1908 ).

An act making a change in the compensation or salary of a public officer may be valid so far as this section and Const., § 235 are affected and yet have no application to a certain officer before the expiration of his term or, in other words, invalid as to such officer during his term. Ross v. Board of Education, 196 Ky. 366 , 244 S.W. 793, 1922 Ky. LEXIS 520 ( Ky. 1922 ).

A statute providing that a tax commissioner’s compensation be based on assessments finally equalized by the county board of supervisors was not invalid when the previous statute had provided for final equalization by the state tax commission because the compensation is still based on actions of the county board and would be only indirectly affected by the change found in the present statute. Shanks v. Johnson, 220 Ky. 160 , 294 S.W. 1054, 1927 Ky. LEXIS 498 ( Ky. 1927 ).

An act which fixes the salaries of only those officers elected pursuant to the act does not violate the provisions of this section. Shaw v. Fox, 246 Ky. 342 , 55 S.W.2d 11, 1932 Ky. LEXIS 761 ( Ky. 1932 ).

An act allowing a fiscal court to furnish the road engineer a car and to pay the operation and maintenance expenses is valid as long as it is not used as a cloak to cover an increase in the engineer’s salary during his term. Oldham County v. Arvin, 251 Ky. 317 , 64 S.W.2d 907, 1933 Ky. LEXIS 856 ( Ky. 1933 ).

A statute providing that the income of an outgoing sheriff from tax collection commissions shall be treated as part of the income of the sheriff for the preceding year did not operate to reduce the salary of a sheriff who by statute became a tax collector after his term as sheriff, as the statute became operative in 1932 and his term as tax collector did not begin until 1934 and was an office entirely separate from the sheriff’s office. Petty v. Talbott, 256 Ky. 688 , 76 S.W.2d 940, 1934 Ky. LEXIS 475 ( Ky. 1934 ).

The state income tax law did not diminish salaries of public officers in violation of the Constitution. Martin v. Wolfford, 269 Ky. 411 , 107 S.W.2d 267, 1937 Ky. LEXIS 605 ( Ky. 1937 ).

Acts 1938 (1st Ex. Sess.), ch. 36, retrospectively amending law regarding the duties of the outgoing sheriff so as to allow the outgoing sheriff to collect taxes not certified to him before the end of his term, and to collect fees for that service, did not violate this section, as no unalterable vested rights of incoming sheriff to collect the involved tax and receive the commission therefor existed at the time of his installation in office or subsequent thereto. Walker v. Commonwealth, 279 Ky. 198 , 130 S.W.2d 27, 1939 Ky. LEXIS 248 ( Ky. 1939 ).

Act authorizing county containing city of second class to pay premiums on sheriff’s revenue bonds did not increase compensation of sheriff then in office in violation of this section where, even though three citizens became personal sureties on his revenue bonds, sheriff furnished a corporate bond at request of fiscal court upon the representation that they would pay the required premium. Thompson v. Shipp, 298 Ky. 805 , 184 S.W.2d 245, 1944 Ky. LEXIS 1028 ( Ky. 1944 ).

A statute providing that sheriffs may make a claim against the state for premiums paid for surety bonds did not violate this section where, at the time of its enactment, sheriffs were not required to furnish bonds. Miller v. Sturgill, 304 Ky. 823 , 202 S.W.2d 632, 1947 Ky. LEXIS 738 ( Ky. 1947 ).

Where a statute, which authorized a county attorney to appoint an assistant to act for him under certain conditions and the assistant’s compensation was in addition to the county attorney’s full salary of $5,000 per annum, was repealed, and another statute enacted in its place which authorized the appointment of an assistant but provided that the compensation of both county attorney and assistant should not exceed $5,000 per year, the later statute did not change county attorney’s compensation during his term of office in violation of this section but merely provided that if county attorney desired the services of an assistant, the assistant’s compensation would be made from county attorney’s salary, and county attorney would have to account for compensation retained in excess of the prescribed amount. Wehrman v. Wegener, 264 S.W.2d 855, 1954 Ky. LEXIS 694 ( Ky. 1954 ).

A statute increasing the fees allowed to a jailer in office for care and release of prisoners does not violate this section where, though the jailer’s salary was fixed, he never received that salary but had been compensated entirely from fees. Bell County v. Ball, 302 S.W.2d 131, 1957 Ky. LEXIS 183 ( Ky. 1957 ).

27.— — Invalid.

A statute divesting a sheriff of arresting fees to which he was entitled under the terms of statutes in effect at the time he took office was invalid. Webster County v. Overby, 240 Ky. 461 , 42 S.W.2d 707, 1931 Ky. LEXIS 433 ( Ky. 1931 ).

KRS 172.110 , 172.160 and 172.990 , insofar as they provided for additional compensation to Circuit Court clerks in office at the time they were enacted, were unconstitutional. Johnson County v. Meek, 276 Ky. 656 , 124 S.W.2d 1024, 1939 Ky. LEXIS 561 ( Ky. 1939 ).

KRS 64.200 , 70.320 and 70.430 , insofar as applied to deputy constables in office at the time of their passage, violated this section, since outright salary fixed by these sections exceeded compensation constables had previously earned in fees. Jefferson County Fiscal Court v. Thomas, 279 Ky. 458 , 130 S.W.2d 60, 1939 Ky. LEXIS 258 ( Ky. 1939 ).

28.— Orders and Ordinances.
29.— — Valid.

An order changing the salary of county officers beginning on January 1 will not be deemed an invalid attempt to change a fixed salary during the term of office, as it will be read to refer to January 6, on which day the new terms actually begin, as this was the intent and purpose of the order and this will be given effect despite the mistake in the date. McNew v. Commonwealth, 123 Ky. 115 , 93 S.W. 1047, 29 Ky. L. Rptr. 540 , 1906 Ky. LEXIS 127 ( Ky. 1906 ).

Where fees for feeding prisoners were not a part of a jailer’s salary, an ordinance changing these fees was not in violation of this section. Howell v. Ashland, 239 Ky. 349 , 39 S.W.2d 468, 1931 Ky. LEXIS 767 ( Ky. 1931 ).

Where county policemen, ordered to wear uniform by county while on duty, obtained no property rights in the uniforms and were to return them to the department on termination of employment therewith, appropriation of the fiscal court to pay for the uniforms was valid and proper as against the contention that the furnishing of uniforms increased the compensation of the policemen in contravention of this section. Steinfeld v. Jefferson County Fiscal Court, 312 Ky. 614 , 229 S.W.2d 319, 1950 Ky. LEXIS 722 ( Ky. 1950 ).

30.— — Invalid.

Where the salary for a court clerk had been fixed by the fiscal court prior to the election of a clerk, the salary could not be reduced during the clerk’s term of office. Fiscal Court of Mercer County v. Gibbs, 166 Ky. 434 , 179 S.W. 409, 1915 Ky. LEXIS 707 ( Ky. 1915 ).

The fiscal court is not authorized to increase the salary of the county clerk for services as clerk of fiscal court after the beginning of the term of office. Pursifull v. Taxpayers' League of Bell County, 257 Ky. 202 , 77 S.W.2d 783, 1934 Ky. LEXIS 544 ( Ky. 1934 ).

Where a police chief’s salary was fixed by ordinance at the time he took office, a subsequent ordinance passed during his term and reducing his salary was invalid during his term of office. Pikeville v. Stratton, 257 Ky. 320 , 78 S.W.2d 12, 1935 Ky. LEXIS 17 ( Ky. 1935 ).

Order of fiscal court on April 1, 1941, providing that salaries of county judge and county attorney “remain as is” had the effect of continuing salaries fixed under previous order of 1937 until a subsequent valid order should be entered changing them, and where no such order was entered in 1945 within time prescribed by KRS 69.250 (repealed), an order entered after the November 1945 election increasing the salaries to terminate with tenure of office of the officers elected in 1945 was invalid as violating this section. Estill County v. Noland, 303 Ky. 462 , 198 S.W.2d 38, 1946 Ky. LEXIS 872 ( Ky. 1946 ).

Where fiscal court order recited that allowance for county attorney was for services and expenses rendered by him during his second term, insofar as such order attempted payment for extra services or additional salary, it was violative of this section because it represented a change in his compensation during his term of office and, as it was impossible to separate the invalid portion of the order from the valid portion, assuming any part of the order to be valid as appellant did not establish what part was for expenses and what part was for services, payment of such allowance could not be made. Upton v. Whitley County, 256 S.W.2d 3, 1952 Ky. LEXIS 1148 ( Ky. 1952 ).

31.— Invalid Agreements.

An agreement to accept less compensation than that fixed for the office is invalid. Corbin v. Davis, 193 Ky. 391 , 236 S.W. 564, 1922 Ky. LEXIS 8 ( Ky. 1922 ).

A promise by candidates for city commissioner in which they agreed to perform their duties at a reduced salary was invalid. Sparks v. Boggs, 339 S.W.2d 480, 1960 Ky. LEXIS 472 ( Ky. 1960 ).

32.— Recovery of Reduced Salary.

The fact that an official accepted a salary which was improperly reduced during his term of office will not prevent him from recovering the rightful amount after his term of office has expired. Breathitt County v. Noble, 116 S.W. 777 ( Ky. 1909 ).

Clerk of city police court was entitled to recover amount of salary reduction in view of the provisions of this section, since clerk was an officer within such provision. Louisville v. Thomas, 257 Ky. 540 , 78 S.W.2d 767, 1935 Ky. LEXIS 54 ( Ky. 1935 ).

An officer whose salary is reduced during his term is not estopped from claiming the additional salary by virtue of his having accepted the reduced salary or even by an agreement to accept the lesser amount. Olive Hill v. Craig, 267 Ky. 38 , 101 S.W.2d 198, 1937 Ky. LEXIS 276 ( Ky. 1937 ). See Whitley County Board of Education v. Rose, 267 Ky. 283 , 102 S.W.2d 28, 1937 Ky. LEXIS 314 ( Ky. 1937 ).

33.— Retention of Excess Money.

If an officer retains money or fees in excess of the compensation fixed by law prior to the election of the officer, such action is illegal and the officer is liable for the recovery of the excess money. Princeton v. Baker, 237 Ky. 325 , 35 S.W.2d 524, 1931 Ky. LEXIS 600 ( Ky. 1931 ).

34.Change of Term.
35.— Valid Statute.

An act which provided that the sheriff, after his term as sheriff expired, could collect any delinquent taxes did not extend the sheriff’s term of office in violation of this section, as the act created a new office and designated the person to fill such office. Madison County v. Hamilton, 243 Ky. 29 , 47 S.W.2d 938, 1932 Ky. LEXIS 33 ( Ky. 1932 ).

Cited:

Hoke v. Richie, 100 Ky. 66 , 18 Ky. L. Rptr. 546 , 37 S.W. 266, 1896 Ky. LEXIS 140 ( Ky. 1896 ); Duncan v. Simrall, 44 S.W. 116, 19 Ky. L. Rptr. 1672 (1898); Covington v. District of Highlands, 113 Ky. 612 , 24 Ky. L. Rptr. 433 , 68 S.W. 669, 1902 Ky. LEXIS 89 ( Ky. 1902 ); Lowry v. Lexington, 113 Ky. 763 , 24 Ky. L. Rptr. 516 , 68 S.W. 1109, 1902 Ky. LEXIS 10 7 ( Ky. 1902 ); London v. Franklin, 118 Ky. 105 , 25 Ky. L. Rptr. 2306 , 80 S.W. 514, 1904 Ky. LEXIS 19 ( Ky. 1904 ); Gorin v. City of Bowling Green, 100 S.W. 833, 30 Ky. L. Rptr. 1160 (1907); Morris v. Randall, 129 Ky. 720 , 112 S.W. 856, 1908 Ky. LEXIS 214 ( Ky. 1908 ); Browne v. Winchester, 153 Ky. 502 , 155 S.W. 1157, 1913 Ky. LEXIS 868 ( Ky. 1913 ); Harlan County v. Blair, 243 Ky. 777 , 49 S.W.2d 1028, 1932 Ky. LEXIS 19 3 ( Ky. 1932 ); Overstreet v. Boyle County Fiscal Court, 264 Ky. 761 , 95 S.W.2d 584, 1936 Ky. LEXIS 395 ( Ky. 1936 ); Riley v. Shannon, 266 Ky. 265 , 98 S.W.2d 906, 1936 Ky. LEXIS 647 ( Ky. 1936 ); Shannon v. Wheeler, 268 Ky. 25 , 103 S.W.2d 718, 1937 Ky. LEXIS 422 ( Ky. 1937 ); Milliken v. Harrod, 275 Ky. 597 , 122 S.W.2d 148, 1938 Ky. LEXIS 471 ( Ky. 1938 ); Altes’ Ex’x v. Beauchamp, 277 Ky. 491 , 126 S.W.2d 867, 1939 Ky. LEXIS 679 ( Ky. 1939 ); Hatcher v. Meredith, 295 Ky. 194 , 173 S.W.2d 665, 1943 Ky. LEXIS 191 ( Ky. 194 3); Hopson v. Department of Revenue, 298 Ky. 635 , 183 S.W.2d 812, 1944 Ky. LEXIS 970 ( Ky. 1944 ); Gross v. Ross, 299 Ky. 383 , 185 S.W.2d 547, 1945 Ky. LEXIS 430 ( Ky. 1945 ); Estill County v. Noland, 301 Ky. 204 , 191 S.W.2d 223, 1945 Ky. LEXIS 715 ( Ky. 1945 ); Graves County v. Graves Fiscal Court, 303 Ky. 707 , 199 S.W.2d 137, 1947 Ky. LEXIS 546 ( Ky. 1947 ); Rash v. Louisville & Jefferson County Metropolitan Sewer Dist., 309 Ky. 442 , 217 S.W.2d 232, 1949 Ky. LEXIS 670 ( Ky. 1949 ); Farnsley v. Henderson, 240 S.W.2d 82, 1951 Ky. LEXIS 951 ( Ky. 1951 ); Payne v. Davis, 254 S.W.2d 710, 1953 Ky. LEXIS 606 ( Ky. 1953 ); Cheshire v. Frankfort, 272 S.W.2d 37, 1954 Ky. LEXIS 10 76 ( Ky. 1954 ); Gerding v. Wald, 273 S.W.2d 362, 1954 Ky. LEXIS 1160 ( Ky. 1954 ); Burchett v. Leslie, 311 S.W.2d 551, 1957 Ky. LEXIS 10 ( Ky. 1957 ); Wright v. Oates, 314 S.W.2d 952, 1958 Ky. LEXIS 324 ( Ky. 1958 ); Kitchens v. Milliken, 329 S.W.2d 68, 1959 Ky. LEXIS 142 ( Ky. 1959 ); Perkins v. Sims, 350 S.W.2d 715, 1961 Ky. LEXIS 131 ( Ky. 1961 ); Commonwealth v. Howard, 379 S.W.2d 475, 1964 Ky. LEXIS 247 ( Ky. 1964 ); Commonwealth v. Hesch, 395 S.W.2d 362, 1965 Ky. LEXIS 141 ( Ky. 1965 ); Sarakatsannis v. Baker, 488 S.W.2d 683, 1972 Ky. LEXIS 48 ( Ky. 1972 ); Brown v. Hartlage, 456 U.S. 45, 102 S. Ct. 1523, 71 L. Ed. 2d 732, 1982 U.S. LEXIS 92 (1982); Polston v. King, 965 S.W.2d 143, 1998 Ky. LEXIS 34 ( Ky. 1998 ).

Opinions of Attorney General.

Since no compensation had been provided for the trying of criminal cases previously, an order allowing such compensation voted after the magistrates took office was not invalid. OAG 61-314 .

A city legislative body had no authority to enact an ordinance which authorized the police judge to receive a monthly expense allowance of $50.00 for the purpose of defraying his expenses for so-called extra official duties. OAG 62-510 .

The clerk of the fiscal court of Jefferson County is not a constitutional officer and is not subject to the constitutional prohibition against change of compensation during his term. OAG 62-1121 .

Increased compensation on the “dollar equation” formula does not apply to public officers other than circuit judges. OAG 64-62 .

Even though the jailer’s work is considered unsatisfactory, as long as he attempts to perform the duties in some manner and as long as he remains in office, his salary cannot be changed during his term. OAG 64-399 .

The increase in compensation authorized by Acts 1964, ch. 109, § 2, for those constitutional officers designated in KRS 64.345 could not be granted during the officers’ present terms without violating this section. OAG 64-540 .

Pursuant to Acts 1964, ch. 109, deputies, assistants and other employees of the county are no longer limited insofar as compensation is concerned or any change therein during their tenure except when so restricted by statute. OAG 64-554 .

Amending an ordinance to change the salaries of officials to be elected would not violate this section, providing the deadline of KRS 64.580 (repealed) is met. OAG 65-267 .

An order of the fiscal court entered in 1961 could not be amended in 1965 to increase the justices’ salaries for the remainder of their terms. OAG 65-507 .

The annual appropriation for janitorial services cannot be changed during the present term of the jailer. OAG 65-741 .

Where the county fiscal court fixed a salary of $1,200 per year to be paid to the Circuit Court clerk, that body could validly eliminate that salary during the clerk’s term of office. OAG 65-785 .

The fiscal court is authorized to pay a salary to the various officers listed in KRS 64.535 , the amount of such salary, when initially established, being purely discretionary with the fiscal court but subject to the limitation of $9,600 and the limitations of this section and Const., § 235. OAG 65-802 .

A salary increase voted for the current county attorney pursuant to Acts 1966, ch. 15, § 2 amendment to KRS 64.530 did not violate this section and Const., § 235. OAG 66-294 .

Where the magistrates did not receive any compensation for trying criminal cases in the preceding term, an order entered by them after their term had begun authorizing such compensation was valid. OAG 66-388 .

The fiscal court could validly raise that portion of the circuit clerk’s salary that constituted his salary as law librarian after his term of office had begun. OAG 66-412 .

A lump-sum travel expense account for the county judge is not authorized and, unless payments made to him for expenses meet the requirements, they would constitute a prohibited increase in salary. OAG 67-325 .

Since a trial commissioner is not considered an officer, his compensation may be changed by the fiscal court during the term of a county judge. OAG 67-356 .

The fiscal court, in its sound discretion, can establish the compensation or salary of the trial commissioner, and such discretion is not subject to the constitutional limitations of this section because a trial commissioner is not an officer. OAG 67-356 .

An ordinance passed by a third-class city fixing the salary of its police judge during the judge’s term of office constitutes a change in and not a fixing of compensation during the officer’s term and thereby violates the constitution. OAG 67-475 .

An incumbent mayor, as relates to the application of the flexible dollar doctrine, may have his salary raised under the adjustment theory. OAG 68-605 .

Since the commissioners’ salaries could have been raised but were not, an increase in the salaries at this stage could not be a valid adjustment, since the time limitations of KRS 64.580 (repealed) were not followed. OAG 68-605 .

A county judge’s salary cannot be raised $100 per month by calling the $100 an expense account. OAG 70-122 .

Generally the salary levels of justices of the peace are based upon the population factor and, where the compensation of justices of the peace has been set by the fiscal court pursuant to KRS 64.255 (repealed), that compensation cannot be changed during their terms of office despite the fact that they may have unusual and burdensome case loads. OAG 70-165 .

Even though the furnishing of residential space within the jail would have a rental value, there is no increase or change of compensation in that form. OAG 70-225 .

In view of the Acts 1970, ch. 272 amendment to KRS 26.150 (repealed), an increase in the police judge’s salary in a second-class city would be a salary adjustment and not a change in compensation. OAG 70-435 .

The fiscal court may adjust the jailer’s salary upward in view of the flexible-dollar principle. OAG 70-462 .

Although the three magistrates of Wolfe County were authorized to try criminal cases pursuant to KRS 64.255 (repealed), their salaries for such services cannot be raised, since a change in the salaries of elected officers is prohibited under KRS 64.530 and by this section and Const., § 235. OAG 70-505 .

The fiscal court could legally pay a deputy clerk an amount each month in addition to the established salary where the additional amount is for performing extra duties which are not normally required of such office. OAG 70-603 .

If salary increases voted by county commissioners to county officers during their terms were actually salary “adjustments,” under the flexible-dollar theory, then the increases would not be changes as contemplated by this section and Const., § 235 and KRS 64.530 . OAG 70-618 .

This section and Const., § 235 have no application to the office of county treasurer. OAG 71-540 .

The compensation of the sheriff cannot be changed during his term in office. OAG 72-7 .

This section prohibits the county jailer from receiving any part of the deputy jailer’s salary. OAG 72-19 .

This section would prohibit increasing the previously fixed salary of a county coroner because of an increased work load during the term of office for which the salary had been fixed. OAG 72-285 .

The prohibition against changes in compensation does not apply to deputies. OAG 72-786 .

Since the county treasurer is not an officer named in the constitution, the prohibitions of this section and § 235 do not apply and his salary may be increased during his term of office at the discretion of the fiscal court, provided the increase is properly budgeted pursuant to the provisions of KRS Chapter 68. OAG 73-372 .

The prohibition against change in an officer’s compensation during an officer’s term was intended to apply to an officer’s compensation, but not to necessary and official office expenses. OAG 74-243 .

The rubber dollar principle surmounts the constitutional inhibitions of Const., § 246, establishing a compensation level of $7200 per year, as well as of this section and Const., § 235, prohibiting a change in a constitutional officer’s compensation during his term, where an adjustment is made by an express act of the General Assembly. OAG 74-314 .

This section and Const., § 235 do not apply to a nonconstitutional office. OAG 74-355 .

There are no applicable constitutional or statutory prohibitions against the increase in compensation during term, subject to the proper budgetary procedures of KRS ch. 68, of the city attorney and fire chief of a fourth-class city (nor of the city clerk and chief of police if appointed and not elected) as they are appointed by the city legislative body and are not officers designated in this section and Const., § 235 nor elected officers prohibited by KRS 64.580 (repealed). OAG 74-400 (withdrawing OAG 74-366 ).

The prohibitions against change in compensation contained in KRS 64.580 (repealed), this section and Const., § 235 are not applicable under the “rubber dollar principle” to an incumbent mayor of a fourth-class city since the dollar is merely being adjusted for a constitutional officer, the mayor, named in this section. OAG 74-505 .

The restrictions of KRS 64.580 (repealed), this section and Const., § 235 prohibiting a change in compensation do not apply to a prosecuting attorney, chief of police and members of the police department who are appointed officers and, there is no statute prohibiting a change in compensation during term. OAG 74-505 .

If the salary of a police judge in a fourth-class city was $500 per month when he was elected and the salary was originally intended to cover both judicial services as police judge and services as clerk, then a $100 per month allowance for services performed by the judge as clerk would constitute an increase in salary which would be prohibited by this section and § 235 of the Constitution and KRS 64.580 (repealed). OAG 74-525 .

The city clerk, police chief, fire chief, and the financial adviser, all of whom are appointed, are not considered officers within the meaning of the Constitution. OAG 75-318 .

Even though a police judge of a fourth-class city is appointed rather than elected he is, nonetheless, a constitutionally named officer and as such is precluded from receiving any salary increases during his term of office. OAG 75-318 and 76-87.

If group life insurance coverage under KRS 82.040 (repealed) or health insurance coverage under KRS 79.080 were given to municipal officers to be paid for in whole or part by the city, such contributions would not constitute extra compensation in violation of this section. OAG 75-470 .

The salaries of justices of the peace and other constitutional officers mentioned in KRS 64.527 can be raised during their term of office, for the salaries are merely being adjusted in purchasing power. OAG 76-252 .

The fixing of the salary of the mayor and councilmen in September, 1977, to be effective January 1, 1978, the beginning of the regular term, would be legally effective (having never previously been fixed) and cannot subsequently be changed during the regular term without violating not only the provisions of KRS 64.580 (repealed) but also this section of the Constitution, also prohibiting any change in the compensation of constitutionally named officers, and under the circumstances, the action of the council in 1978 abolishing the salary fixed in September, 1977, would be illegal and in violation of the statute and Constitution referred to previously. OAG 78-589 .

The Legislature may not pass a bill which changes, either increasing or decreasing the salary of a Circuit Court clerk during his term of office, and an attempt to do so would be unconstitutional under both this section and § 235 of the Constitution. OAG 78-594 .

It would be legal for a councilman or mayor to vote to lower his or her salary while serving as a member in view of the provisions of KRS 64-580 (repealed) as well as this section of the Constitution which prohibit any change in the compensation of elected city officers, including constitutional officers such as the mayor and members of the city council, during their terms of office. OAG 78-822 .

The compensation for the mayor and councilmen fixed by the city council of a fourth-class city on November 29, 1979 could not be changed either to per diem or reduced to zero during the term of such officers. OAG 80-76 .

A fiscal court cannot lower the salaries of constitutional officers during their terms once the fiscal court has actually, and with finality, fixed their particular salary levels in the budget, and has adopted such budget pursuant to KRS 68.260 . OAG 80-323 .

Where the fiscal court has authorized a raise in salary for the county judge/executive, it cannot later in the term turn down that raise since that would be a prohibited change in his compensation. OAG 80-334 .

Where a fiscal court fixed the salary of the county attorney at $150 per month, commencing January 1, 1978, and after he took office in January, 1978, the fiscal court entered an order raising his salary to $600 per month thereby increasing his annual salary from $1800 per year to $7200 per year, there was no prohibited change in his compensation, as is prohibited by this section, since his compensation was merely adjusted to reflect the change in purchasing power of the dollar as reflected in the consumer price index. OAG 80-424 .

Although constitutional officers’ salaries may be increased during term up to the authorized rubber dollar maximum for that year, such salaries cannot be decreased during term, since that would not be rubber dollar, and would constitute a change in compensation, as prohibited by this section and Const., § 235. OAG 82-16 .

Where an outgoing fiscal court sets new compensation levels for part-time constitutional officers which exceed the amount that such part-time officers should be entitled to receive, the appropriate relief for the new fiscal court to pursue is a circuit court action setting aside the increases, since any unilateral action by the new fiscal court to decrease the compensation would be a “change” of the type prohibited by this section. OAG 82-16 .

The fiscal court can never reduce a county attorney’s salary from one level to another during his term, since that is expressly prohibited by this section. OAG 82-159 .

The 1982 amendment to KRS 67.705 with regard to the county judge/executive’s salary was strictly in the context of the rubber dollar-consumer price index formulation. Thus the fixing of the county judge/executive’s salary in 1982 was not a change in compensation, in the constitutional sense, but was a fixation in terms of affording those officers with the application of the consumer price index theory previously adopted by Kentucky’s then highest court. OAG 82-317 .

A decrease in salary of a constitutional officer during his term would fall clearly within the prohibition against a “change” in compensation under this section and Const., § 235. In addition, any upward adjustment of a constitutional officer’s salary during term which is not made pursuant to an implementing consumer price index statute would be a prohibited “change” in compensation. OAG 82-348 .

Where magistrates’ salaries on the first Monday in May in 1981 (election year) were set at $10,000 per magistrate, the fiscal court could authorize a salary to each magistrate not to exceed $28,387 for the calendar year of 1982. However, since the magistrates on fiscal court have no executive duties, they should only be paid in terms of the work week they put in for the county. OAG 82-348 .

KRS 83A.070 requires that the compensation for members of the city legislative body be fixed not later than the first Monday in May in the year in which they are elected and such sum cannot be changed during their term of office; this means in effect, that once the compensation is fixed by ordinance, as it is required to be for members of the legislative body, it must be paid to those members. After they receive their salary, they may, of course, dispose of it in any manner that they see fit and could even donate it back to the city. OAG 82-502 .

The deputy county judge/executive is not a constitutional officer but a statutorily appointed officer; thus Const., § 235 and this section, which prohibit a “change in compensation,” do not apply to such officer. OAG 82-515 .

Once the jailer’s salary is properly set under KRS 64.530 , 64.527 , and 441.009 (now KRS 441.245 ), it cannot be reduced, since that would be a “change in compensation,” which is prohibited by Const., § 235 and this section; an upward adjustment during the term of a jailer’s salary not to exceed the rubber dollar level, is not a change in compensation. OAG 83-49 .

Deputy coroners are not subject to Const., § 235 or this section, which prohibit a change in salary during a term. OAG 83-211 .

An ordinance enacted in March of 1984 by a city council raising the salary of members thereof to $3,000 and that of the mayor to $16,000 was illegal and contrary to this section and the provisions of KRS 83A.070 since it was enacted in the middle of the term of members of the city council, elected in 1983, and that of the mayor, elected in 1981, none of whom would be up for election until November, 1985; also, the mayor’s salary far exceeded the constitutional maximum fixed in Const., § 246. OAG 84-133 .

Implicit in Const., §§ 161 and 235 is the presumption that the officer must be paid for the entirety of his term, from the first Monday in January at the beginning of his term until, but not including, the first Monday in January at the end of his term. OAG 86-8 .

Where circuit clerk who took office in January 1995, in addition to her salary as circuit clerk, and as required by KRS 172.110 , received a monthly salary for her duties as county law librarian of $75, a reduction of such salary to $50 per month in July, 1995 was illegal since it is illegal to increase a clerk’s salary as law librarian during his term, in violation of this section and Const., § 235, it is also illegal to decrease it. OAG 96-35 .

Research References and Practice Aids

Cross-References.

Maximum compensation of officers, Const., § 246.

Salaries of officers not to be changed during term, Const., § 235.

Kentucky Law Journal.

Comments, Freedom of Speech: The Case of the “Corrupt” Campaign Promise, 70 Ky. L.J. 203 (1982).

§ 162. Unauthorized contracts of cities, counties, and municipalities are void.

No county, city, town or other municipality shall ever be authorized or permitted to pay any claim created against it, under any agreement or contract made without express authority of law, and all such unauthorized agreements or contracts shall be null and void.

NOTES TO DECISIONS

1.Power to Contract.

It is a general rule that a municipal governing body cannot bind the corporation by contract beyond its powers or foreign to purposes of the corporation or against public policy. Womack-Rayburn Co. v. Worthington, 262 Ky. 710 , 91 S.W.2d 13, 1936 Ky. LEXIS 86 ( Ky. 1936 ).

The authority of fiscal court to expend county funds is coextensive with powers created by statute, and is confined to purposes expressly stated in statutes, or implied as being essential or reasonably necessary to execute express powers or to discharge duties devolving upon the fiscal court. Jefferson County v. Jefferson County Fiscal Court, 269 Ky. 535 , 108 S.W.2d 181, 1937 Ky. LEXIS 635 ( Ky. 1937 ).

Neither the Constitution nor any statute attempts to enumerate each and every object or purpose for which a municipality may expend its funds within its general powers, and purposes may be undertaken by municipalities under necessarily implied authority to carry out their governmental functions. Waddle v. Somerset, 281 Ky. 30 , 134 S.W.2d 956, 1939 Ky. LEXIS 4 ( Ky. 1939 ).

Former utility commission superintendent had been an employee of the city, not the commission, where the Home Rule Statutes, particularly KRS 83A.120 , went into effect prior to the execution of an employment contract with the superintendent and the contract was in contravention of that statute; only the mayor had authority to hire or fire him. Williams v. City of London, 252 F. Supp. 2d 388, 2003 U.S. Dist. LEXIS 4752 (E.D. Ky. 2003 ).

2.— Government Agencies.

Agencies created by law to aid in municipal government have only such powers as are expressly granted in the Constitution or statutes and are, therefore, subject to the restrictions of this section. George W. Katterjohn & Son v. Board of Education, 202 Ky. 690 , 261 S.W. 257, 1923 Ky. LEXIS 363 ( Ky. 1923 ). See Bell County Board of Education v. Lee, 239 Ky. 317 , 39 S.W.2d 492, 1931 Ky. LEXIS 775 ( Ky. 1931 ).

A water district created under KRS ch. 74 was a political subdivision and was not bound by oral contract made by commissioner to pay for benefits received by it under such contract. Louisville Extension Water Dist. v. Diehl Pump & Supply Co., 246 S.W.2d 585, 1952 Ky. LEXIS 640 ( Ky. 1952 ).

3.— Expenditures.
4.— — Valid.

The provisions of this section that no city “shall be authorized or permitted to pay any claim created against it under any agreement or contract made without express authority of law” does not render invalid a contract of employment made by express authority of a city council acting within its conceded powers. Audit Co. v. Louisville, 185 F. 349, 1911 U.S. App. LEXIS 3993 (6th Cir. Ky. 1911 ).

A first-class city has the authority to contract for street repairs. Gosnell v. Louisville, 104 Ky. 201 , 46 S.W. 722, 20 Ky. L. Rptr. 519 , 1898 Ky. LEXIS 156 ( Ky. 1898 ), limited, Kirwin v. Nevin, 111 Ky. 682 , 64 S.W. 647, 23 Ky. L. Rptr. 947 , 1901 Ky. LEXIS 246 ( Ky. 1901 ).

A statute providing that in all counties having a town not larger than the fourth class and containing a population greater than the county seat and situated over 17 miles therefrom the Circuit Court shall be held alternately in each town, the expense of furnishing a jail and courtroom in the larger town to be borne by it, does not violate this section. Johnson v. Fulton, 121 Ky. 594 , 89 S.W. 672, 28 Ky. L. Rptr. 569 , 1905 Ky. LEXIS 243 ( Ky. 1905 ).

Fourth-class city could lawfully contract to purchase map of city by resolution instead of by ordinance. Waddle v. Somerset, 281 Ky. 30 , 134 S.W.2d 956, 1939 Ky. LEXIS 4 ( Ky. 1939 ).

Purchase of map of city showing streets, alleys, public buildings and public improvements was a proper expenditure for a city. Waddle v. Somerset, 281 Ky. 30 , 134 S.W.2d 956, 1939 Ky. LEXIS 4 ( Ky. 1939 ).

The fact that a generating station might be located outside the city owning the electric plant would not make the plan an expenditure beyond the scope of KRS 96.520 and a violation of this section where the purpose of the station was basically to serve the city and its inhabitants. Miller v. Owensboro, 343 S.W.2d 398, 1961 Ky. LEXIS 421 ( Ky. 1961 ).

As fiscal courts are authorized by statute to expend public funds for recreational purposes, this section is not violated by an agreement by the county to lease school buildings for recreational purposes. Sawyer v. Jefferson County Fiscal Court, 392 S.W.2d 83, 1965 Ky. LEXIS 275 ( Ky. 1965 ).

5.— — Invalid.

Where an ordinance was in direct violation of provisions of a city’s charter, any agreement or contract made pursuant to such ordinance would be in violation of this section. Wadsworth v. Maysville, 113 Ky. 455 , 68 S.W. 391, 24 Ky. L. Rptr. 312 , 1902 Ky. LEXIS 58 ( Ky. 1902 ).

A city has no inherent power to issue bonds to construct a memorial building where there is no express authority of law authorizing such an expenditure. Barrow v. Bradley, 190 Ky. 480 , 227 S.W. 1016, 1921 Ky. LEXIS 481 ( Ky. 1921 ).

6.— Liability for Payment.

Where a contract between a city and a water company is void because the franchise of the company is invalid, the city is not relieved from liability to pay for the water received. Nicholasville Water Co. v. Board of Councilmen, 38 S.W. 430, 18 Ky. L. Rptr. 593 (Ky. Ct. App. 1896), overruled, Worell Mfg. Co. v. Ashland, 159 Ky. 656 , 167 S.W. 922, 1914 Ky. LEXIS 859 ( Ky. 1914 ).

If a city council had no authority to provide a salary for a deputy clerk, the mayor was fully justified in refusing to allow payment of the salary. Greenleaf v. Woods, 123 Ky. 306 , 96 S.W. 458, 29 Ky. L. Rptr. 723 , 1906 Ky. LEXIS 150 ( Ky. 1906 ).

7.— Defense of Illegality.

The defense of illegality of a contract under this section and Const., § 157 is an affirmative defense and must be specifically pleaded. Whitesburg v. Bates, 320 S.W.2d 316, 1959 Ky. LEXIS 233 ( Ky. 1959 ).

8.— Proving of Illegality.

City may rent premises for its governmental purposes in certain contingencies, and taxpayer attacking payment of rent as invalid has burden of proving that original rental contract was invalid. Waddle v. Somerset, 281 Ky. 30 , 134 S.W.2d 956, 1939 Ky. LEXIS 4 ( Ky. 1939 ).

9.— Binding Arbitration.

Where a city commission adopted an ordinance authorizing the execution of a collective bargaining agreement with the city police, the provision in the agreement which provided for binding arbitration in the event the parties could not agree on any or all terms of a new contract was illegal and violated this section since it has the effect of requiring future legislative bodies of the city to enter into collective bargaining agreements, which is clearly an invalid legislative decision. Covington v. Covington Lodge No. 1, etc., 622 S.W.2d 221, 1981 Ky. LEXIS 274 ( Ky. 1981 ).

Since the board of the county transit authority cannot constitutionally delegate to an arbitrator its responsibilities to fix wages, determine policy, or make decisions which are the prerogative of management, it necessarily follows that any contractual agreement to do so in the collective bargaining agreement with the union, or in an agreement with any federal agency whereby it received federal grants, is invalid. Transit Authority of Lexington-Fayette Urban County Government v. Amalgamated Transit Union, Local 639, 698 S.W.2d 520, 1985 Ky. LEXIS 266 ( Ky. 1985 ).

The county transit authority is an agency of government, a political subdivision; thus, the governing board’s exercise of discretion in policy matters and management decisions cannot be delegated to an arbitrator. Transit Authority of Lexington-Fayette Urban County Government v. Amalgamated Transit Union, Local 639, 698 S.W.2d 520, 1985 Ky. LEXIS 266 ( Ky. 1985 ).

Cited:

Roberts & Co. v. Paducah, 95 F. 62, 1899 U.S. App. LEXIS 3132 (6th Cir. 1899); S. R. Schaff & Co. v. La Grange, 176 Ky. 548 , 195 S.W. 1097, 1917 Ky. LEXIS 79 ( Ky. 1917 ); Bard v. Board of Drainage Comm’rs, 274 Ky. 491 , 118 S.W.2d 1013, 1938 Ky. LEXIS 292 ( Ky. 1938 ); Kenton County v. Covington, 302 Ky. 503 , 195 S.W.2d 93, 1946 Ky. LEXIS 714 ( Ky. 1946 ); Gregory v. Lewisport, 369 S.W.2d 133, 1963 Ky. LEXIS 70 ( Ky. 1963 ); O’Bryan v. Louisville, 382 S.W.2d 386, 1964 Ky. LEXIS 341 ( Ky. 1964 ).

Opinions of Attorney General.

The action of a magistrate of the fiscal court in procuring or contracting for road and bridge work, such as to exceed the budget or appropriations provided therefor, would be illegal, and the county would not be financially or otherwise bound by such acts. OAG 64-881 .

The language of special legislation that permitted the Campbell County commissioners to provide for maintenance, construction, repair or leasing of a courthouse was broad enough to authorize the renting of space adjacent to courthouse grounds to provide for parking of county officers, judges and jurors, and the commissioners have authority to pay six months’ rent in advance on the lease. OAG 67-134 .

County would be banned under this section from paying any claim under an agreement or contract for a project involving the leasing of a detention facility (prison) used to house prisoners from outside as well as within the state, as there is no express authority of law for a county’s entry into such endeavor. OAG 90-115 .

Constitution §§ 26, 157, 158, 179 and this section do not impose a general ban upon a county agreeing to joint and several liability with other counties or political entities; furthermore, these constitutional sections do not prohibit payment of obligations incurred in a prior year, from moneys of a subsequent year. OAG 93-54 .

§ 163. Public utilities must obtain franchise to use streets.

No street railway, gas, water, steam heating, telephone, or electric light company, within a city or town, shall be permitted or authorized to construct its tracks, lay its pipes or mains, or erect its poles, posts or other apparatus along, over, under or across the streets, alleys or public grounds of a city or town, without the consent of the proper legislative bodies or boards of such city or town being first obtained; but when charters have been heretofore granted conferring such rights, and work has in good faith been begun thereunder, the provisions of this section shall not apply.

NOTES TO DECISIONS

1.Purpose.

The purpose of this section is to prevent the General Assembly from authorizing the indiscriminate use of public ways by public utilities without the city being able to say what public ways are to be occupied by the utilities. Hatcher v. Kentucky & West Virginia Power Co., 280 Ky. 583 , 133 S.W.2d 910, 1939 Ky. LEXIS 168 ( Ky. 1939 ).

The main and actuating purpose of the framers of the Constitution in enacting this section was to prevent the Legislature from authorizing the indiscriminate use of the streets of a city by public utilities without the city being able to control the decision as to what streets and what public ways were to be occupied by such utilities. Mt. Vernon Tel. Co. v. Mt. Vernon, 313 Ky. 93 , 230 S.W.2d 451, 1950 Ky. LEXIS 818 ( Ky. 1950 ).

2.Construction.

The provision of this section to the effect that a telephone company shall not use the streets as specified is mandatory, and the company has no right to use the streets without first securing the consent of the city council. East Tennessee Tel. Co. v. Anderson County Tel. Co., 115 Ky. 488 , 74 S.W. 218, 24 Ky. L. Rptr. 2358 , 1903 Ky. LEXIS 122 ( Ky. 1903 ).

The provision of this section with reference to using the streets must be read in connection with Const., § 164, limiting the period of time of franchises, and both must be complied with. Rural Home Tel. Co. v. Kentucky & I. Tel. Co., 128 Ky. 209 , 107 S.W. 787, 32 Ky. L. Rptr. 1068 , 1908 Ky. LEXIS 44 ( Ky. 1908 ).

This section must be read and construed with Const., § 164. Ashland v. Fannin, 271 Ky. 270 , 111 S.W.2d 420, 1937 Ky. LEXIS 187 ( Ky. 1937 ).

This section and Const., § 164 must be read together, as the right to occupy public ways conferred by this section can only be granted in the manner provided in Const., § 164. Hatcher v. Kentucky & West Virginia Power Co., 280 Ky. 583 , 133 S.W.2d 910, 1939 Ky. LEXIS 168 ( Ky. 1939 ).

This section gives to cities the constitutional authority to control the manner whereby a utility may occupy public streets or other public property, and the exclusive right to say whether transmitting facilities shall be above or below ground and, if KRS ch. 278 could be construed to take such authority away from cities, it would be unconstitutional. Benzinger v. Union Light, Heat & Power Co., 293 Ky. 747 , 170 S.W.2d 38, 1943 Ky. LEXIS 698 ( Ky. 1943 ).

Under this section and Const., § 164 the final right to decide whether a public utility may use or occupy the streets of a city for intracity service was given to the city. Whitaker v. Louisville Transit Co., 274 S.W.2d 391, 1954 Ky. LEXIS 1229 ( Ky. 1954 ).

Right granted by this section is not limited to the specific utilities enumerated and city had power to issue an exclusive franchise for the operation of ambulance service over its streets. Ray v. Owensboro, 415 S.W.2d 77, 1967 Ky. LEXIS 294 ( Ky. 1967 ).

Constitution § 164 establishes the rules by which a franchise must be sold, but in effect does not expand any authority conferred by this section. Florence v. Owen Electric Coop., Inc., 832 S.W.2d 876, 1992 Ky. LEXIS 72 ( Ky. 1992 ).

3.Application.

The provisions of this section were not applicable to a water company which had for many years been laying its pipes in the streets of a city without the city’s express consent, under authority conferred by its charter. Louisville v. Louisville Water Co., 105 Ky. 754 , 49 S.W. 766, 20 Ky. L. Rptr. 1529 , 1899 Ky. LEXIS 267 ( Ky. 1899 ).

The provisions of this section are applicable only to those utilities which use the streets, alleys, or public grounds of a municipality. Tri-State Ferry Co. v. Birney, 235 Ky. 540 , 31 S.W.2d 932, 1930 Ky. LEXIS 417 ( Ky. 1930 ).

This section does not give municipalities the power to remove a utility whose equipment is already in place and which has lawfully provided service to an area where facilities were lawfully in existence and in operation prior to such area becoming an annexed part of the municipality. Florence v. Owen Electric Coop., Inc., 832 S.W.2d 876, 1992 Ky. LEXIS 72 ( Ky. 1992 ).

Court of Appeals of Kentucky believes a fire department is distinguishable from the types of utilities listed in case law construing Ky. Const. § 163. The listed utilities are for-profit organizations that the government allows to occupy some part of its public lands or roadways. A volunteer fire department is a non-profit organization and is considered by the laws of Kentucky to be an agent of the Commonwealth of Kentucky. Ky. Rev. Stat. Ann. § 75.070 . The Court of Appeals believes this distinction removes fire protection services from the utility category which would require a franchise and public bidding pursuant to Ky. Const. § 164. Se. Bullitt Fire Prot. Dist. v. Se. Bullitt Fire & Rescue Dep't, 537 S.W.3d 828, 2017 Ky. App. LEXIS 397 (Ky. Ct. App. 2017).

4.Water Company.

The western Fleming County water district is a water company within the meaning of this section. Flemingsburg v. Public Service Com., 411 S.W.2d 920, 1966 Ky. LEXIS 28 ( Ky. 1966 ).

5.Railroads.

A railroad having its termini in Louisville and Nashville and carrying freight and passengers between the two (2) cities is not a street railway within the meaning of this section. Diebold v. Kentucky Traction Co., 117 Ky. 146 , 77 S.W. 674, 25 Ky. L. Rptr. 1275 , 1903 Ky. LEXIS 280 ( Ky. 1903 ).

Though steam railways were omitted from the provisions of this section, the Legislature may, nevertheless, require that a municipality consent to the occupation of its streets by such a railway. Covingtn v. Louisville & N. R. Co., 158 Ky. 136 , 164 S.W. 329, 1914 Ky. LEXIS 569 ( Ky. 1914 ).

An electric railroad line to be constructed between two towns is not a street railway within the meaning of this section. Bentler v. Cincinnati, C. & E. R. Co., 180 Ky. 497 , 203 S.W. 199, 1918 Ky. LEXIS 97 ( Ky. 1918 ) ( Ky. 1918 ).

6.Revocable Permit.

A permit to lay a pipeline under a street is subject to revocation at any time at the pleasure of the city authorities. Spur Distributing Co. v. Husbands, 276 Ky. 521 , 124 S.W.2d 463, 1939 Ky. LEXIS 526 ( Ky. 1939 ).

7.Power of Public Service Commission.

This section does not prevent Public Service Commission from regulating rates and service of utilities. Southern Bell Tel. & Tel. Co. v. Louisville, 265 Ky. 286 , 96 S.W.2d 695, 1936 Ky. LEXIS 468 ( Ky. 1936 ).

Under the provisions of this section and Const., § 164, the Public Service Commission has no power to determine who shall and who shall not be entitled to bid for franchises. Public Service Com. v. Blue Grass Natural Gas Co., 303 Ky. 310 , 197 S.W.2d 765, 1946 Ky. LEXIS 847 ( Ky. 1946 ).

8.Contingent Agreements.

It is not unconstitutional for a municipality and a public utility to enter into temporary contingent rate agreements pending a final legal determination of the proper rates. Kentucky Utilities Co. v. Paris, 237 Ky. 488 , 35 S.W.2d 873, 1931 Ky. LEXIS 630 ( Ky. 1931 ).

9.Consent of City.

KRS 96.538 is unconstitutional to the extent it purports to give a utility the right to use a city’s streets without its consent. Nicholasville v. Blue Grass Rural Electric Cooperative Corp., 514 S.W.2d 414, 1974 Ky. LEXIS 300 ( Ky. 1974 ).

Subsection (5) of KRS 279.110 in purporting to give a rural electric cooperative the authority to construct and maintain facilities across, along or under any street and over any lands belonging to a city without the consent of the city is unconstitutional in violation of Const., § 163. Nicholasville v. Blue Grass Rural Electric Cooperative Corp., 514 S.W.2d 414, 1974 Ky. LEXIS 300 ( Ky. 1974 ).

10.City Ordinances.

Ordinance of a city of first class prohibiting use of sidewalks or streets to vend articles or to conduct or advertise business would not apply to use of streets or public ways for public utility purposes, for which city must give consent under this section. Maupin v. Louisville, 284 Ky. 195 , 144 S.W.2d 237, 1940 Ky. LEXIS 473 ( Ky. 1940 ).

Even though telephone company alleged that it had procured permission of department of highways to construct and maintain telephone poles and lines on two (2) streets in city which had been designated as part of primary road system by the department, action by city in adopting two (2) ordinances, one prohibiting erection and maintenance of poles, lines and wires on the two (2) streets in question and the other offering for sale a telephone franchise requiring removal of existing telephone poles and lines and prohibiting erection and maintenance of such installations on the two streets, was not arbitrary, capricious, oppressive or unreasonable. Mt. Vernon Tel. Co. v. Mt. Vernon, 313 Ky. 93 , 230 S.W.2d 451, 1950 Ky. LEXIS 818 ( Ky. 1950 ).

11.Void Franchise.

A franchise granted in violation of requirements of a city charter is void. Rough River Tel. Co. v. Cumberland Tel. & Tel. Co., 119 Ky. 470 , 84 S.W. 517, 27 Ky. L. Rptr. 32 , 1905 Ky. LEXIS 18 ( Ky. 1905 ).

12.Valid Statutes.

A statute requiring sale of franchise by municipality to highest and best bidder does not violate this section. Kentucky Utilities Co. v. Board of Comm'rs, 254 Ky. 527 , 71 S.W.2d 1024, 1933 Ky. LEXIS 4 ( Ky. 1933 ).

13.Mandamus.

This section and Const., § 164 only impose conditions upon the discretionary granting of a franchise, and mandamus will not lie to compel the issuance of a franchise thereunder. Bastin Tel. Co. v. Davidson, 176 Ky. 23 , 195 S.W. 148, 1917 Ky. LEXIS 13 ( Ky. 1917 ).

14.Cable Television.

In view of a city’s obligation to provide its citizens with safe, clean and unobstructed streets, and since the presence of television cables even in conjunction with existing facilities would impose an added burden on the city in meeting this obligation, the operation of a community antenna television service within the city requires a franchise under this section. Owensboro v. Top Vision Cable Co., 487 S.W.2d 283, 1972 Ky. LEXIS 64 ( Ky. 1972 ), cert. denied, 411 U.S. 948, 93 S. Ct. 1926, 36 L. Ed. 2d 410, 1973 U.S. LEXIS 2643 (U.S. 1973).

There exists a clearly articulated and affirmatively expressed state policy to allow municipal regulation of the provision of cable television service and, foreseeably, to displace competition. Consolidated Television Cable Service, Inc. v. Frankfort, 857 F.2d 354, 1988 U.S. App. LEXIS 12769 (6th Cir. Ky. 1988 ), cert. denied, 489 U.S. 1082, 109 S. Ct. 1537, 103 L. Ed. 2d 842, 1989 U.S. LEXIS 1471 (U.S. 1989).

The right to operate a cable television franchise in a city is subject to state franchise requirements set forth in this section and Ky. Const., § 164. Communications Systems, Inc. v. Danville, 880 F.2d 887, 1989 U.S. App. LEXIS 10840 (6th Cir. Ky. 1989 ).

15.Annexed Territory.

The power granted cities by Const., § 164 to control the use of their streets cannot be denied to a city as to annexed territory. Nicholasville v. Blue Grass Rural Electric Cooperative Corp., 514 S.W.2d 414, 1974 Ky. LEXIS 300 ( Ky. 1974 ).

16.Sale of Electricity.

This section and Const., § 164 do not grant a municipality the authority to franchise a right to sell electricity within the boundary of a city. The right to produce and sell electricity as a commercial product is not a prerogative of the government, but is a business which is open to all, and for that reason is not a franchise. Florence v. Owen Electric Coop., Inc., 832 S.W.2d 876, 1992 Ky. LEXIS 72 ( Ky. 1992 ).

17.Police Power.

The General Assembly, by enacting KRS 81A.490 , KRS 96.538 and KRS 279.110(5), has utilized its right to exercise its police power. This is an inclusion to regulate rates and services, not in the face of this section, but in harmony with the reserved power of the state to safeguard vital interests of the people. A constitutional prohibition against impairing the obligation of contracts (and the franchise being a contract) is not an absolute one to be read with literal exactness. Legislation enacted under police power is not invalid merely because of its incidental effect. Florence v. Owen Electric Coop., Inc., 832 S.W.2d 876, 1992 Ky. LEXIS 72 ( Ky. 1992 ).

18.Control of Public Ways and Streets.

It is clear that the framers of the Constitution meant to vest a municipality with only the right and power to control the original occupation of its public ways and streets. Florence v. Owen Electric Coop., Inc., 832 S.W.2d 876, 1992 Ky. LEXIS 72 ( Ky. 1992 ).

KRS 96.538 and 279.110 , as determined by City of Nicholasville v. Blue Grass Rural Elec. Coop. Corp., 514 S.W.2d 414, 1974 Ky. LEXIS 300 ( Ky. 1974 ), are unconstitutional to the extent it purports to give a utility the right to use a city’s streets without its consent. Florence v. Owen Electric Coop., Inc., 832 S.W.2d 876, 1992 Ky. LEXIS 72 ( Ky. 1992 ).

Cited:

Brands v. Louisville, 111 Ky. 56 , 23 Ky. L. Rptr. 442 , 63 S.W. 2, 1901 Ky. LEXIS 172 ( Ky. 1901 ); Christian-Todd Tel. Co. v. Commonwealth, 156 Ky. 557 , 161 S.W. 543, 1913 Ky. LEXIS 477 ( Ky. 1913 ); South C. & C. S. R. Co. v. Commonwealth, 181 Ky. 449 , 205 S.W. 603, 1918 Ky. LEXIS 574 ( Ky. 1918 ); Union Light, Heat & Power Co. v. Ft. Thomas, 215 Ky. 384 , 285 S.W. 228, 1926 Ky. LEXIS 743 ( Ky. 1926 ); People’s Transit Co. v. Louisville R. Co., 220 Ky. 728 , 295 S.W. 1055, 1927 Ky. LEXIS 631 ( Ky. 1927 ); Board of Education v. Kentucky Utilities Co., 231 Ky. 484 , 21 S.W.2d 817, 1929 Ky. LEXIS 307 ( Ky. 1929 ); Russell v. Kentucky Utilities Co., 231 Ky. 820 , 22 S.W.2d 289, 1929 Ky. LEXIS 372 , 66 A.L.R. 1238 ( Ky. 1929 ); Ludlow v. Union Light, Heat & Power Co., 231 Ky. 813 , 22 S.W.2d 909, 1929 Ky. LEXIS 375 (Ky. 1929); Hodgenville v. Gainesboro Tel. Co., 237 Ky. 419 , 35 S.W.2d 888, 1931 Ky. LEXIS 638 ( Ky. 1931 ); Covington v. Reynolds, 240 Ky. 86 , 41 S.W.2d 664, 1931 Ky. LEXIS 348 ( Ky. 1931 ); Covington v. Union Light, Heat & Power Co., 243 Ky. 591 , 49 S.W.2d 580, 1932 Ky. LEXIS 178 ( Ky. 1932 ); Kentucky Utilities Co. v. Paris, 297 Ky. 440 , 179 S.W.2d 676, 1944 Ky. LEXIS 705 ( Ky. 1944 ); Blackburn v. Pineville, 313 S.W.2d 860, 1958 Ky. LEXIS 277 ( Ky. 1958 ).

Opinions of Attorney General.

A third-class city may grant an exclusive franchise for bus service. OAG 70-648 .

This section does not permit a fiscal court to cross over into municipal territory with its cable television franchise, since the city’s exclusive authority over streets as provided by statute (KRS Ch. 96, KRS 85.140 (repealed), KRS 93.050 (repealed), KRS 94.110 (repealed), and KRS 94.360 (repealed) would be in conflict with such attempted county action. OAG 77-111 .

Assuming that sewer lines would be constructed along or through county road rights-of-way, a fiscal court has the authority to grant a franchise to a corporation in connection with the sewer lines operation pursuant to this section and § 164 of the Constitution, assuming it is the highest and best bidder. OAG 79-156 .

The list of utilities which are subject to the granting of franchises in this section is not comprehensive. OAG 79-156 .

The purpose of this section was to give a city or county control of the streets, alleys, and public grounds and to make it possible for the city or county to provide the services of those utilities to its inhabitants. OAG 79-156 .

An interlocal agreement and the steps taken to effectuate this section and Const., § 164 may properly include joint advertising, joint consideration of bids, joint awarding of a cable television franchise covering city and county areas, a provision that the consideration payable to the city and county shall be a certain percentage of the gross receipts from city subscribers going to the city and a percentage of gross receipts of county subscribers going to the county respectively, and the joint control over the franchise. OAG 79-208 .

Pursuant to KRS 65.240 , Const., § 164 and this section, a city and county may engage in a joint cable television franchise, but where the city already has a franchise and is bound until May 31, 1984, unless the holder of the franchise and the city and county all agree to start over and the city and county advertise for a new and joint franchise, this is not possible before that date. OAG 79-566 .

The purpose of this section and § 164 of the Constitution was to give a municipality control of its streets, roads, and public grounds and to make it possible for the municipality to provide the services of various utilities to its inhabitants. OAG 79-208 .

A fiscal court’s authority to let a cable television franchise is bottomed on the fiscal court’s power to control its roads and rights-of-way. OAG 79-566 .

Where a cable television company is not occupying county roads or rights-of-way with its facilities in unincorporated territory, then it can operate without a county franchise. OAG 79-566 .

While a fiscal court must advertise, if it wishes to let a franchise, for the letting of a cable television franchise pursuant to this section and Const., § 164, it cannot force any bidder to respond to the fiscal court’s specifications. OAG 79-566 .

The issuance of a garbage franchise by the fiscal court must necessarily involve a reasonable consideration to be paid to the county. OAG 80-57 .

A cable television franchise awarded by a county for 15 years with an additional ten (10) years under certain conditions would violate Const., § 164, since the ten (10) year term would be granted without letting it out on public bids in open competition and the extended franchise, which totaled 25 years, would exceed the 20-year franchise limit set out in that section. OAG 80-391 .

A county fiscal court has the authority to grant a cable television franchise pursuant to this section and Const., § 164, and to the extent that the systems of cable and wire are constructed over county road systems over which the fiscal court has jurisdiction, the franchise power also exists pursuant to KRS 67.080 and 67.083 ; moreover, the fiscal court has the authority, under this section and Const., § 164 to establish in the franchise contract reasonable provisions for service and rates which are calculated to effectuate the purposes for which it is granted; thus, a franchise contract which required the cable operator to perform at a level which would meet applicable FCC guidelines would be reasonable and valid. OAG 81-166 .

The franchise power of fiscal courts over cable TV exists by virtue of the fact that cable television (cable and wire) is constructed or erected over county road system rights-of-way, over which the fiscal court has exclusive jurisdiction. OAG 82-163 .

The granting of a cable TV franchise by the county in unincorporated territory is controlled strictly by this section and Const., § 164. OAG 82-163 .

The fiscal court had the authority under Const., § 164 and this section to issue a franchise for the furnishing of ambulance service to a private person or corporation after the bidding procedure required by Const., § 164. OAG 83-222 .

Where the person operating an ambulance service in county had received no franchise, and the fiscal court did not make use of Const., § 164 and this section, so that no bidding procedure was used by fiscal court, the ambulance service was not operating constitutionally; consequently the person operating the ambulance service was subject to a mandamus suit in the local circuit court, in which the fiscal court could seek to compel him to cease his operation of an ambulance service on county roads. OAG 83-222 .

Where a city and county had not entered into an interlocal agreement relative to a joint cable television franchise, the unilateral solicitation of bids by the county and the county’s acceptance of a bid which included the area of the city resulted in an illegal award of franchise. OAG 83-321 .

While Const., § 164 and this section dealing with franchises are self-operative in nature, the Interlocal Cooperation Act, i.e., KRS 65.240 , would permit the city and county to grant jointly one cable television franchise (upon advertised bid solicitation) which would service the county and city and there is nothing in the joint action which would militate against the self-executing nature of Const., § 164 and this section or against the exclusivity of separate governmental control over the streets and roads of the county and city respectively. OAG 83-321 .

Where an alarm monitoring system established by a corporation, with a console in the police station, authorized subscribers to the system to receive added police protection for a fee, and where the company paid the city a fee to help defray the expenses of monitoring the system at the police department, the system was a form of public service available to anyone desiring the additional service; because of the nature of services to be furnished under the contract between the corporation and the city, such contract would constitute a franchise that would be required to be let on a bid basis under the terms of Ky. Const., § 164. OAG 83-341 .

The fiscal court has no authority to permit private individuals to place their gas pipelines along or under county road rights of way, since they are not public utilities; public policy demands that these county roadways not be encumbered except in the manner permitted by the Constitution and statutes. OAG 84-111 .

Since Const., § 164 contains no exception to the mandated bidding procedure, and since the appellate cases are firm on the mandatory nature of Const., § 164, there is no valid or constitutional exception to Const., § 164. Thus, even though no bids had been received by a city under advertisements for bids on a cable television franchise, the fiscal court had no basis for issuing a cable television franchise and the fiscal court could not validly negotiate such contract. OAG 84-292 .

Research References and Practice Aids

Cross-References.

Sale of franchises, KRS 96.010 to 96.045 .

§ 164. Term of franchises limited — Advertisement and bids.

No county, city, town, taxing district or other municipality shall be authorized or permitted to grant any franchise or privilege, or make any contract in reference thereto, for a term exceeding twenty years. Before granting such franchise or privilege for a term of years, such municipality shall first, after due advertisement, receive bids therefor publicly, and award the same to the highest and best bidder; but it shall have the right to reject any or all bids. This section shall not apply to a trunk railway.

NOTES TO DECISIONS

1.Purpose.

The purpose of this section is to give information to all who have an interest in the privileges to be sold, to allow the citizens of the community to protect their rights, and to enable the municipality to receive the value of the privilege to be granted. Princeton v. Princeton Electric Light & Power Co., 166 Ky. 730 , 179 S.W. 1074, 1915 Ky. LEXIS 785 ( Ky. 1915 ).

One purpose of this section is to prevent councils from granting valuable rights to favorites for insufficient consideration. Hatcher v. Kentucky & West Virginia Power Co., 280 Ky. 583 , 133 S.W.2d 910, 1939 Ky. LEXIS 168 ( Ky. 1939 ).

The purpose of this section is to prevent governmental agencies of any kind from giving away, or disposing of at inadequate prices, the rights and privileges which belong to its citizens and to compel the disposition of public property to be accomplished publicly and for the highest and best value. E.M. Bailey Distributing Co. v. Conagra, Inc., 676 S.W.2d 770, 1984 Ky. LEXIS 235 ( Ky. 1984 ).

The purpose of this section is to prevent city councils from selling, at an inadequate price, the rights and privileges of the citizens of Kentucky. To this end, the public disposition of such valuable rights under this section is intended to provide those same citizens with the greatest price possible. Berea College Utilities v. Berea, 691 S.W.2d 235, 1985 Ky. App. LEXIS 588 (Ky. Ct. App. 1985).

2.Construction.

This section must be construed with Const., § 163 and no franchise may be acquired in any other way than by strict compliance with these two sections. Union Light, Heat & Power Co. v. Railroad Com., 17 F.2d 143, 1926 U.S. Dist. LEXIS 1651 (D. Ky. 1926 ).

The provisions of this section are self-executing and require no ordinance to make the section binding and obligatory. Merchants' Police & Dist. Tel. Co. v. Citizens' Tel. Co., 123 Ky. 90 , 93 S.W. 642, 29 Ky. L. Rptr. 512 , 1906 Ky. LEXIS 122 ( Ky. 1906 ).

The provisions of this section are self-operative and confer upon counties and municipalities authority to grant franchises pertaining to subjects of which they are given jurisdiction. Irvine Toll Bridge Co. v. Estill County, 210 Ky. 170 , 275 S.W. 634, 1925 Ky. LEXIS 644 ( Ky. 1925 ).

This section must be read and construed with Const., § 163. Ashland v. Fannin, 271 Ky. 270 , 111 S.W.2d 420, 1937 Ky. LEXIS 187 ( Ky. 1937 ).

Const., § 163 and this section must be read together, as the right to occupy public ways conferred by Const., § 163 can only be granted in the manner provided in this section. Hatcher v. Kentucky & West Virginia Power Co., 280 Ky. 583 , 133 S.W.2d 910, 1939 Ky. LEXIS 168 ( Ky. 1939 ).

3.Application.

This section has no application to the leasing by a city of its private property, which it holds in its proprietary capacity. Board of Councilmen v. Pattie, 227 Ky. 343 , 12 S.W.2d 1108, 1928 Ky. LEXIS 510 ( Ky. 1928 ). See Inland Waterways Co. v. Louisville, 227 Ky. 376 , 13 S.W.2d 283, 1929 Ky. LEXIS 892 ( Ky. 1929 ).

This section does not apply to privileges or franchises granted directly by the general assembly but only to those granted by local governmental units, either by virtue of inherent power or by virtue of power delegated by the general assembly. Warfield Natural Gas Co. v. Lawrence County, 300 Ky. 410 , 189 S.W.2d 357, 1945 Ky. LEXIS 556 ( Ky. 1945 ).

This section does not apply to proprietary functions of government. Faulconer v. Danville, 313 Ky. 468 , 232 S.W.2d 80, 1950 Ky. LEXIS 901 ( Ky. 1950 ).

When a neighborhood association alleged that a fiscal court’s agreement with a solid waste disposal company, providing for solid waste disposal in unincorporated areas of a county, as well as expansion of the company’s landfill, granted a franchise in violation of Ky. Const. § 164, because it was not publicly advertised or bid, the association was entitled to summary judgment because the fiscal court granted the company a right not available to the citizens at large by granting the company the right to expand its landfill. BFI Waste Sys. of N. Am., Inc. v. Huntington Woods Neighborhood Ass'n, 134 S.W.3d 624, 2003 Ky. App. LEXIS 295 (Ky. Ct. App. 2003).

When a fiscal court granted a solid waste disposal company the right to expand its landfill, without publicly advertising that contract, as required by Ky. Const., § 164, the fact that the expansion was to occur on privately-owned land rather than public land did not avoid the constitutional violation. BFI Waste Sys. of N. Am., Inc. v. Huntington Woods Neighborhood Ass'n, 134 S.W.3d 624, 2003 Ky. App. LEXIS 295 (Ky. Ct. App. 2003).

County fiscal court and an executive judge for the fiscal court were entitled to summary judgment on a 42 USCS § 1983 claim asserted by a sanitation company alleging that the bidding process for a solid waste disposal contract was a sham to provide cover for political retaliation arising from the owner’s failure to support the judge during an election. Even assuming that the judge made threats to terminate the contract, the company’s prior contract expired by its own terms regardless of any such threats, and upon the expiration of the contract, the county was required to advertise for bids pursuant to Ky. Const., § 164 such that the claim of political retaliation failed as a matter of law. Sartaine v. Pennington, 410 F. Supp. 2d 584, 2006 U.S. Dist. LEXIS 2494 (E.D. Ky. 2006 ), aff'd, 244 Fed. Appx. 718, 2007 FED App. 0564N, 2007 U.S. App. LEXIS 19110 (6th Cir. Ky. 2007 ).

Court of Appeals of Kentucky believes a fire department is distinguishable from the types of utilities listed in case law construing Ky. Const. § 163. The listed utilities are for-profit organizations that the government allows to occupy some part of its public lands or roadways. A volunteer fire department is a non-profit organization and is considered by the laws of Kentucky to be an agent of the Commonwealth of Kentucky. Ky. Rev. Stat. Ann. § 75.070 . The Court of Appeals believes this distinction removes fire protection services from the utility category which would require a franchise and public bidding pursuant to Ky. Const. § 164. Se. Bullitt Fire Prot. Dist. v. Se. Bullitt Fire & Rescue Dep't, 537 S.W.3d 828, 2017 Ky. App. LEXIS 397 (Ky. Ct. App. 2017).

4.Franchise.

The provision of Const., § 163 with reference to using the streets must be read in connection with this section, limiting the period of time of franchises, and both must be complied with. Rural Home Tel. Co. v. Kentucky & I. Tel. Co., 128 Ky. 209 , 107 S.W. 787, 32 Ky. L. Rptr. 1068 , 1908 Ky. LEXIS 44 ( Ky. 1908 ).

A franchise is the privilege of doing that which does not belong to the citizens of the country generally by common right. Irvine Toll Bridge Co. v. Estill County, 210 Ky. 170 , 275 S.W. 634, 1925 Ky. LEXIS 644 ( Ky. 1925 ).

A bus line operating on city streets is required to obtain a franchise as provided in this section, and a franchise is a privilege of doing something which does not belong to citizens generally by common right. People's Transit Co. v. Louisville R. Co., 220 Ky. 728 , 295 S.W. 1055, 1927 Ky. LEXIS 631 ( Ky. 1927 ).

The question of whether or not a franchise has been granted can be determined only from the records of the municipality and not by parol evidence. Rockport Coal Co.'s Trustee v. Tilford, 222 Ky. 288 , 300 S.W. 898, 1927 Ky. LEXIS 932 ( Ky. 1927 ).

A franchise is a right or privilege granted by the sovereign to a party to do some act or acts which he could not do without this grant from the sovereign power. Mt. Vernon Tel. Co. v. Mt. Vernon, 313 Ky. 93 , 230 S.W.2d 451, 1950 Ky. LEXIS 818 ( Ky. 1950 ).

The term “franchise” means the grant of a right to use public property, or at least the property over which the granting authority has control. Young v. Morehead, 314 Ky. 4 , 233 S.W.2d 978, 1950 Ky. LEXIS 985 ( Ky. 1950 ).

The right to operate a cable television in a city is subject to state franchise requirements set forth in Ky. Const., § 163 and this section. Communications Systems, Inc. v. Danville, 880 F.2d 887, 1989 U.S. App. LEXIS 10840 (6th Cir. Ky. 1989 ).

Although the Model Procurement Code governs purchasing, the granting of a franchise involves selling the right to utilize the public streets and ways, and accordingly, such sales are not subject to the provisions of said Code, but rather, this section governs the granting of a cable television franchise. Communications Systems, Inc. v. Danville, 880 F.2d 887, 1989 U.S. App. LEXIS 10840 (6th Cir. Ky. 1989 ).

A contract subject to this section may involve the use of private land. The Constitution does not require that public property be used and there is no legal basis for the position that public property must be used in order to involve a franchise or privilege. These cases must be reviewed on a case-by-case approach and strict adherence to the constitutional mandates of this section should be applied by the courts. Eastern Ky. Resources v. Arnett, 934 S.W.2d 270, 1996 Ky. LEXIS 118 ( Ky. 1996 ).

This section does not contain any requirement that public streets be used in order to consider a contract as a grant of franchise. Eastern Ky. Resources v. Arnett, 934 S.W.2d 270, 1996 Ky. LEXIS 118 ( Ky. 1996 ).

5.— Conditions of Sale.

A city may attach any lawful condition to the exercise of a franchise granted to a public service corporation, which condition becomes a part of the contract under which it is thenceforth used. Moberly v. Richmond Tel. Co., 126 Ky. 369 , 103 S.W. 714, 31 Ky. L. Rptr. 783 , 1907 Ky. LEXIS 56 ( Ky. 1907 ). See City of Louisville v. Louisville Home Tel. Co., 149 Ky. 234 , 148 S.W. 13, 1912 Ky. LEXIS 593 ( Ky. 1912 ).

A telephone franchise may provide for the conditions under which and the rates for which the service should be rendered. Campbellsville v. Taylor County Tel. Co., 229 Ky. 843 , 18 S.W.2d 305, 1929 Ky. LEXIS 856 ( Ky. 1929 ).

A city may establish certain requirements for bidders where these conditions of sale constitute a standard for service which the city may reasonably establish. Petroleum Exploration v. Joseph Greenspon's Sons Iron & Steel Co., 52 F.2d 944, 1931 U.S. App. LEXIS 3800 (6th Cir. Ky. 1931 ).

A city may not attach conditions to the prospective sale of a franchise where the conditions are so unreasonable as to exclude competition. Petroleum Exploration v. Joseph Greenspon's Sons Iron & Steel Co., 52 F.2d 944, 1931 U.S. App. LEXIS 3800 (6th Cir. Ky. 1931 ).

City, in renewing gas company franchise, had right to require that main service lines be joined at end to make a complete circuit, and also to require successful bidder for franchise to give bond to guarantee faithful performance, and to maintain office in city. Peoples Gas Co. v. Barbourville, 291 Ky. 805 , 165 S.W.2d 567, 1942 Ky. LEXIS 321 ( Ky. 1942 ).

In view of the present-day trend to remove utility poles and lines from city streets, action by a fifth-class city in offering for sale a telephone franchise which required that existing telephone poles and lines be removed from two (2) certain streets and prohibiting erection of such additional installation thereon was not arbitrary, capricious, oppressive or unreasonable. Mt. Vernon Tel. Co. v. Mt. Vernon, 313 Ky. 93 , 230 S.W.2d 451, 1950 Ky. LEXIS 818 ( Ky. 1950 ).

6.— Power to Grant.

Compliance with this section is essential to the validity of a contract by a city with a lighting company for lighting. Providence v. Providence Electric Light Co., 122 Ky. 237 , 91 S.W. 664, 28 Ky. L. Rptr. 1015 , 1906 Ky. LEXIS 36 ( Ky. 1906 ), overruled, Payne v. Covington, 276 Ky. 380 , 123 S.W.2d 1045, 1938 Ky. LEXIS 549 ( Ky. 1938 ).

Under this section providing that before granting a franchise or privilege for a term of years a city shall first, after due advertisement, receive bids therefor publicly and award the same to the highest bidder, a city may not grant a valid franchise without such preliminary steps, even though the city does not bind itself to continue the franchise for more than a year. Frankfort Tel. Co. v. Common Council of Frankfort, 125 Ky. 59 , 100 S.W. 310, 30 Ky. L. Rptr. 885 , 1907 Ky. LEXIS 258 ( Ky. 1907 ). See Hilliard v. Geo. G. Fetter Lighting & Heating Co., 127 Ky. 95 , 105 S.W. 115, 31 Ky. L. Rptr. 1330 , 1907 Ky. LEXIS 120 ( Ky. 1907 ).

The granting of a franchise is a legislative function but power to grant franchises may be delegated to local political subdivisions. Hatcher v. Kentucky & West Virginia Power Co., 280 Ky. 583 , 133 S.W.2d 910, 1939 Ky. LEXIS 168 ( Ky. 1939 ).

This section requires any municipality offering a franchise for sale to receive bids publicly and award the franchise to the highest and best bidder. Public Service Com. v. Blue Grass Natural Gas Co., 303 Ky. 310 , 197 S.W.2d 765, 1946 Ky. LEXIS 847 ( Ky. 1946 ).

Under this section and Const., § 163, the final right to decide whether a public utility may use or occupy the streets of a city for intracity service was given to the city. Whitaker v. Louisville Transit Co., 274 S.W.2d 391, 1954 Ky. LEXIS 1229 ( Ky. 1954 ).

This section precludes the arbitrary, capricious, bad faith, or fraudulent grant of a franchise by a municipality, however, at the same time a city commission acting in a legislative capacity enjoys considerable discretionary authority, and that discretion encompasses the authority to reject any bid for proper reasons. Communications Systems, Inc. v. Danville, 880 F.2d 887, 1989 U.S. App. LEXIS 10840 (6th Cir. Ky. 1989 ).

This section establishes the rules by which a franchise must be sold, but in effect does not expand any authority conferred by Const., § 163. Florence v. Owen Electric Coop., Inc., 832 S.W.2d 876, 1992 Ky. LEXIS 72 ( Ky. 1992 ).

7.— — Sale of Electricity.

Constitution § 163 and this section do not grant a municipality the authority to franchise a right to sell electricity within the boundary of a city. The right to produce and sell electricity as a commercial product is not a prerogative of the government, but is a business which is open to all, and for that reason is not a franchise. Florence v. Owen Electric Coop., Inc., 832 S.W.2d 876, 1992 Ky. LEXIS 72 ( Ky. 1992 ).

8.— Change of Terms.

Once a franchise has been granted, it may not be repealed, nullified or forfeited by any ordinance of a general council. Louisville v. Cumberland Tel. & Tel. Co., 224 U.S. 649, 32 S. Ct. 572, 56 L. Ed. 934, 1912 U.S. LEXIS 2333 (U.S. 1912).

A city may extend the time to begin work under municipal franchises and such extensions do not amount to the granting of a new franchise. Corbin v. Joseph Greenspon's Sons Iron & Steel Co., 52 F.2d 939, 1931 U.S. App. LEXIS 3799 (6th Cir. Ky. 1931 ).

A franchise granted by a city for valuable consideration is a contract and, therefore, the city may change the contract with the consent of the other party. Corbin v. Joseph Greenspon's Sons Iron & Steel Co., 52 F.2d 939, 1931 U.S. App. LEXIS 3799 (6th Cir. Ky. 1931 ).

Under this section providing that before granting any franchise for a term of years a city shall receive bids therefor and award the same to the highest and best bidder, a city cannot enlarge a franchise already granted, except by award to the highest and best bidder. People's Electric Light & Power Co. v. Capital Gas & Electric Light Co., 116 Ky. 76 , 75 S.W. 280, 25 Ky. L. Rptr. 327 , 1903 Ky. LEXIS 182 ( Ky. 1903 ).

Where a street railroad company having a franchise to operate in a city was granted by the city, through its council, the right to lay its tracks and operate its cars on a street not before used by it, in consideration of which it gave up the use of two (2) other streets and conveyed to the city a piece of land abutting on the streets to which the tracks were moved for the purpose of widening it, this did not amount to the granting of a new franchise to the company. Woodall v. South C. & C. S. R. Co., 137 Ky. 512 , 124 S.W. 843, 1910 Ky. LEXIS 550 ( Ky. 1910 ).

The city council has the power to change the franchise so as to permit the utility to charge more for its services, where the utility is not receiving a fair return upon its investment. Lutes v. Fayette Home Tel. Co., 155 Ky. 555 , 160 S.W. 179, 1913 Ky. LEXIS 318 ( Ky. 1913 ). See Johnson County Gas Co. v. Stafford, 198 Ky. 208 , 248 S.W. 515, 1923 Ky. LEXIS 408 ( Ky. 1923 ).

The alteration of purely regulatory provisions with respect to a previously granted franchise is not prohibited by this section. Scott v. Cincinnati, N. & C. R. Co., 268 Ky. 383 , 105 S.W.2d 169, 1937 Ky. LEXIS 482 ( Ky. 1937 ).

Nothing in this section precludes amendments to franchise bids. Communications Systems, Inc. v. Danville, 880 F.2d 887, 1989 U.S. App. LEXIS 10840 (6th Cir. Ky. 1989 ).

9.— Time Limit.

A franchise granted after the adoption of the Constitution must expire within 20 years of the date on which the franchise was granted. Covington v. Cincinnati, N. & C. R. Co., 71 F.2d 117, 1934 U.S. App. LEXIS 3036 (6th Cir. Ky.), cert. denied, 293 U.S. 612, 55 S. Ct. 142, 79 L. Ed. 702, 1934 U.S. LEXIS 370 (U.S. 1934).

The time limits of this section apply to an ordinance whether it is to be regarded as granting a new franchise or merely as a contract relating to an existing franchise. Covington v. Cincinnati, N. & C. R. Co., 71 F.2d 117, 1934 U.S. App. LEXIS 3036 (6th Cir. Ky.), cert. denied, 293 U.S. 612, 55 S. Ct. 142, 79 L. Ed. 702, 1934 U.S. LEXIS 370 (U.S. 1934).

Where additional ordinances are enacted as ancillary parts of a franchise granted prior to the adoption of the Constitution, the 20-year limit does not apply to such ancillary provisions. Covington v. Cincinnati, N. & C. R. Co., 71 F.2d 117, 1934 U.S. App. LEXIS 3036 (6th Cir. Ky.), cert. denied, 293 U.S. 612, 55 S. Ct. 142, 79 L. Ed. 702, 1934 U.S. LEXIS 370 (U.S. 1934).

Where a city adopted an ordinance for the sale at public bidding of the exclusive franchise for supplying it with gas for 20 years from the date of the acceptance of the bid, providing that the successful bidder should not be required to furnish gas until about two years later, it was held that the franchise began from the date of the contract and not from the date the bidder was required to furnish gas, and was valid. Truesdale v. Newport, 90 S.W. 589, 28 Ky. L. Rptr. 840 (1906), overruled, Florence v. Owen Electric Coop., Inc., 832 S.W.2d 876, 1992 Ky. LEXIS 72 ( Ky. 1992 ).

The grant of a franchise without any specification as to the period for which the right is granted will be construed as a grant for 20 years. Hatten v. Turman, 123 Ky. 844 , 1906 Ky. 770 , 97 S.W. 770, 30 Ky. L. Rptr. 194 , 1906 Ky. LEXIS 223 ( Ky. 1906 ), 382,,, 97 S.W. 770, 1906 Ky. LEXIS 223 ( Ky. 1906 ).

A city may not grant a franchise for more than 20 years. Princeton v. Princeton Electric Light & Power Co., 166 Ky. 730 , 179 S.W. 1074, 1915 Ky. LEXIS 785 ( Ky. 1915 ).

Where the advertisement for a franchise stated that the franchise was to last for ten years, the municipality may not then grant a valid franchise for 15 years or any other number of years. Princeton v. Princeton Electric Light & Power Co., 166 Ky. 730 , 179 S.W. 1074, 1915 Ky. LEXIS 785 ( Ky. 1915 ).

A franchise granted before this section and the statutes pursuant thereto were adopted is perpetual in the absence of any limitation in the grant. Adkins v. Ashland & Ironton Transfer & Ferry Co., 210 Ky. 532 , 276 S.W. 131, 1925 Ky. LEXIS 722 ( Ky. 1925 ).

A ruling on the constitutionality of KRS 109.041(7) was not needed to reach the decision made by the Court of Appeals that KRS 109.041(7) was sua sponte unconstitutionally contradictory to the 20-year limitation on franchises of this section. Because the contract involved in the case did not exceed 20 years, a ruling on this question was not necessary. Eastern Ky. Resources v. Arnett, 934 S.W.2d 270, 1996 Ky. LEXIS 118 ( Ky. 1996 ).

10.— Advertisement.

The advertising requirement of this section is intended to afford every prospective bidder an opportunity to submit its bid. Petroleum Exploration v. Joseph Greenspon's Sons Iron & Steel Co., 52 F.2d 944, 1931 U.S. App. LEXIS 3800 (6th Cir. Ky. 1931 ).

An ordinance offering a gas franchise for sale is not invalid because it gives only two (2) weeks’ notice, one notice in an English paper and another in a German paper, where there is no statutory definition of what constitutes due advertisement, as the good faith of the general council will not be questioned. Gathright v. H. M. Byllesby & Co., 154 Ky. 106 , 157 S.W. 45, 1913 Ky. LEXIS 59 ( Ky. 1913 ).

Where the city advertises for bids on a franchise for ten (10) years, it may not grant a franchise for 15 years or any other period. Princeton v. Princeton Electric Light & Power Co., 166 Ky. 730 , 179 S.W. 1074, 1915 Ky. LEXIS 785 ( Ky. 1915 ).

Advertisement of a franchise offer for six (6) days was sufficient where the surveys, estimates and calculations involved in the franchise were of a relatively simple nature. Bowling Green v. Davis, 313 Ky. 203 , 230 S.W.2d 909, 1950 Ky. LEXIS 853 ( Ky. 1950 ).

Operating agreement between riverport authority and private company which entitled company to various benefits, including the exclusive use of the land adjacent to the riverport facility, and the use of grain-loading apparatus to the exclusion of all others upon a 24-hour prior notice on which use there was no limitation, and which agreement was for two years with an automatic renewal for three consecutive one (1) year periods, unlawfully granted to company a franchise or a privilege without complying with the requirements of advertisement and competitive bidding in this section and thus was null and void. E.M. Bailey Distributing Co. v. Conagra, Inc., 676 S.W.2d 770, 1984 Ky. LEXIS 235 ( Ky. 1984 ).

11.— Power to Withdraw.

The Legislature has the power to allow a city to enter into a franchise agreement from which agreement the city may not withdraw on its own volition. Bowling Green v. Davis, 313 Ky. 203 , 230 S.W.2d 909, 1950 Ky. LEXIS 853 ( Ky. 1950 ).

The legislative act performed by a municipality in awarding a franchise cannot be set aside in the absence of fraud, collusion, or dishonesty. Communications Systems, Inc. v. Danville, 880 F.2d 887, 1989 U.S. App. LEXIS 10840 (6th Cir. Ky. 1989 ).

12.— Transfer of Rights.

Franchise rights of a telephone company passed to a new corporation formed by consolidation. Louisville v. Cumberland Tel. & Tel. Co., 224 U.S. 649, 32 S. Ct. 572, 56 L. Ed. 934, 1912 U.S. LEXIS 2333 (U.S. 1912).

13.— Annexed Areas.

After the annexation by a city of an area being served by a bus company holding a state certificate, the right of the bus company franchised by the city to extend its service into the annexed area was superior to the right of the company previously providing service to the area. Whitaker v. Louisville Transit Co., 274 S.W.2d 391, 1954 Ky. LEXIS 1229 ( Ky. 1954 ).

The power granted cities by this section to control the use of their streets cannot be denied to a city as to annexed territory. Nicholasville v. Blue Grass Rural Electric Cooperative Corp., 514 S.W.2d 414, 1974 Ky. LEXIS 300 ( Ky. 1974 ).

14.— Expiration of Franchise.

After the time of expiration of a franchise, a company has no right under that franchise to occupy the streets and public ways of a city and the city may not confer such right except in the same way as the original franchise was granted. Union Light, Heat & Power Co. v. Railroad Com., 17 F.2d 143, 1926 U.S. Dist. LEXIS 1651 (D. Ky. 1926 ).

When a franchise to furnish gas has expired, any attempt to force a continuation of the service after the expiration would be writing into the contract an obligation not assumed by the franchisee and would, therefore, be a violation of United States Const., Art. 1, § 10. Union Light, Heat & Power Co. v. Railroad Com., 17 F.2d 143, 1926 U.S. Dist. LEXIS 1651 (D. Ky. 1926 ).

Under a franchise providing that on the expiration of a 10-year term the gas company can withdraw from city, the gas company is entitled on expiration and on giving the required notice to withdraw. Union Light, Heat & Power Co. v. Ft. Thomas, 215 Ky. 384 , 285 S.W. 228, 1926 Ky. LEXIS 743 ( Ky. 1926 ).

An agreement between a city and a water company requiring the company to continue furnishing service under the same terms as its expired franchise was invalid. Board of Education v. Kentucky Utilities Co., 231 Ky. 484 , 21 S.W.2d 817, 1929 Ky. LEXIS 307 ( Ky. 1929 ).

After the expiration of a franchise under which a company supplied a city with gas, the state railroad commission had no jurisdiction to compel continuance of service. Ludlow v. Union Light, Heat & Power Co., 231 Ky. 813 , 22 S.W.2d 909, 1929 Ky. LEXIS 375 ( Ky. 1929 ).

A municipality may grant a public service franchise before the expiration of a similar franchise then in operation. Hatcher v. Kentucky & West Virginia Power Co., 280 Ky. 583 , 133 S.W.2d 910, 1939 Ky. LEXIS 168 ( Ky. 1939 ).

15.— Minimum Bid Requirement.

Neither this section nor KRS 96.010 expressly authorizes a minimum bid requirement. However, neither provision expressly prohibits such a precondition. Instead, both provisions would appear to implicitly authorize a minimum bid requirement, as this section empowers franchisors to “reject any and all bids,” while KRS 96.010 specifies sale of franchises “on terms that are fair and reasonable to the city, the purchaser of the franchise and to the patrons of the utility.” Given this additional language and the monopolistic nature of public utilities, an interpretation permitting franchisors to impose a minimum bid requirement on franchises is not only logical, realistic and just, but necessary. Berea College Utilities v. Berea, 691 S.W.2d 235, 1985 Ky. App. LEXIS 588 (Ky. Ct. App. 1985).

16.— Minimum Bid Specifications.

The allowance of minimum bid specifications as to the price acts to circumvent the very real possibility of a franchise award to a low bidder that would result in damage to the local economy. Owensboro Grain Co. v. Owensboro Riverport Authority, 818 S.W.2d 605, 1991 Ky. LEXIS 140 ( Ky. 1991 ), modified, 1991 Ky. LEXIS 187 (Ky. Dec. 19, 1991).

17.— — Exceptions to Specifications.

After plaintiff-grain company’s disqualification from the bidding process for a public franchise, defendant-grain company was the only bidder for the franchise, and although the bid advertisement presented minimum bid specifications for almost all of the key terms, it allowed for exceptions to the specifications; therefore, there was no opportunity for fair and reasonable competition and no way to compare the bids. Owensboro Grain Co. v. Owensboro Riverport Authority, 818 S.W.2d 605, 1991 Ky. LEXIS 140 ( Ky. 1991 ), modified, 1991 Ky. LEXIS 187 (Ky. Dec. 19, 1991).

18.— Award to Bidder.

To insure competitive bidding, a city may provide by ordinance that in selling a franchise to string and maintain wires along the streets for distributing and selling electricity, the board of public works shall not consider any bid made by a certain lighting company which already has the only existing franchise. Stites v. Norton, 125 Ky. 672 , 101 S.W. 1189, 31 Ky. L. Rptr. 263 , 1907 Ky. LEXIS 323 ( Ky. 1907 ).

An ordinance granting a telephone franchise is void unless it is shown that the grant was to the highest and best bidder. Watson v. Morehead, 125 S.W. 724, 1910 Ky. LEXIS 689 ( Ky. 1910 ).

After a franchise has been sold, a city council is under obligation to award the franchise to the highest and best bidder and may not evade its obligation to do so by arbitrarily or corruptly rejecting all bids. Groover v. Irvine, 222 Ky. 366 , 300 S.W. 904, 1927 Ky. LEXIS 935 ( Ky. 1927 ). See Norris v. Kentucky State Tel. Co., 235 Ky. 234 , 30 S.W.2d 960, 1930 Ky. LEXIS 335 ( Ky. 1930 ).

In granting franchises, a city council acts in a legislative capacity and is vested with a discretion which cannot be taken away by the courts, but after the sale of a franchise the council may not arbitrarily or corruptly reject all bids and thereby escape the obligation to award the franchise to the highest and best bidder but the burden of proof as to the alleged arbitrariness or corruptness rests on the party attacking such action. Hatcher v. Kentucky & West Virginia Power Co., 280 Ky. 583 , 133 S.W.2d 910, 1939 Ky. LEXIS 168 ( Ky. 1939 ).

Rejection of highest bid for franchise, and sale to second highest bidder, was not void, where highest bidder was insolvent and without experience in producing and furnishing service. Hatcher v. Kentucky & West Virginia Power Co., 280 Ky. 583 , 133 S.W.2d 910, 1939 Ky. LEXIS 168 ( Ky. 1939 ).

This section permits the legislative body of a municipality to reject what appears on its face to be the highest bid and accept a lower one as the best bid if it exercises a sound discretion and does not act arbitrarily or corruptly in doing so. Baskett v. Davis, 311 Ky. 13 , 223 S.W.2d 168, 1949 Ky. LEXIS 1038 ( Ky. 1949 ).

A municipality can reject what appears to be the highest bid for a franchise and accept a lower bid as the best bid if the decision is based on the exercise of sound discretion, untainted by arbitrariness or corruption. Communications Systems, Inc. v. Danville, 880 F.2d 887, 1989 U.S. App. LEXIS 10840 (6th Cir. Ky. 1989 ).

Where upon reviewing bids for a cable television franchise, a city twice rejected the top choice of its retained consultant and awarded the franchise to another company, said decision was based upon legitimate, rational reasons as the city placed greater emphasis on subscriber rates and service, while the consultant placed greater emphasis on the technical aspects of the bids. Communications Systems, Inc. v. Danville, 880 F.2d 887, 1989 U.S. App. LEXIS 10840 (6th Cir. Ky. 1989 ).

19.— Ferry Franchises.

In granting to fiscal courts control over county highways, the General Assembly did not, by implication, empower a fiscal court to award ferry franchises, such power being reserved to the General Assembly. Tri-State Ferry Co. v. Birney, 235 Ky. 540 , 31 S.W.2d 932, 1930 Ky. LEXIS 417 ( Ky. 1930 ).

20.— Trunk Railway.

An electric railroad company authorized to perform the duties of a carrier of freight and passengers between two (2) cities in different states and all intermediate points is a trunk railway as that term is used in this section. Diebold v. Kentucky Traction Co., 117 Ky. 146 , 77 S.W. 674, 25 Ky. L. Rptr. 1275 , 1903 Ky. LEXIS 280 ( Ky. 1903 ).

21.— Telephone Company.

A telephone franchise within the meaning of this section is not the right to operate a telephone exchange in a city but the right to occupy some portion of the public streets for the maintenance of such line. Bland v. Cumberland Tel. & Tel. Co., 109 S.W. 1180, 33 Ky. L. Rptr. 399 , 1908 Ky. LEXIS 345 (Ky. Ct. App. 1908). See Cumberland Tel. & Tel. Co. v. Calhoun, 151 Ky. 241 , 151 S.W. 659, 1912 Ky. LEXIS 790 ( Ky. 1912 ).

Under the limitations of this section, telephone company has no right to construct and operate its line along the highways of a county without first acquiring, by purchase from the county, a franchise for that purpose, even though it is apparently given the right to do so by statute. Christian-Todd Tel. Co. v. Commonwealth, 156 Ky. 557 , 161 S.W. 543, 1913 Ky. LEXIS 477 ( Ky. 1913 ).

Under the statutes and this section of the Constitution, the fiscal court cannot refuse sale of franchise to construct telephone line along highway after company’s notice of wish to acquire such franchise, on the ground that existing telephone system is sufficient, but only for interference with traveling. Northern Kentucky Mut. Tel. Co. v. Bracken County, 220 Ky. 297 , 295 S.W. 146, 1927 Ky. LEXIS 523 ( Ky. 1927 ).

22.— Television Companies.

A fiscal court had the right to adopt a resolution dividing a county into cable television districts. Akers v. Floyd County Fiscal Court, 556 S.W.2d 146, 1977 Ky. LEXIS 518 ( Ky. 1977 ).

There exists a clearly articulated and affirmatively expressed state policy to allow municipal regulation of the provision of cable television service and, foreseeably, to displace competition. Consolidated Television Cable Service, Inc. v. Frankfort, 857 F.2d 354, 1988 U.S. App. LEXIS 12769 (6th Cir. Ky. 1988 ), cert. denied, 489 U.S. 1082, 109 S. Ct. 1537, 103 L. Ed. 2d 842, 1989 U.S. LEXIS 1471 (U.S. 1989).

23.— Rates and Services.

It is not unconstitutional for a municipality and a public utility to enter into temporary contingent rate agreements pending a final legal determination of the proper rates. Kentucky Utilities Co. v. Paris, 237 Ky. 488 , 35 S.W.2d 873, 1931 Ky. LEXIS 630 ( Ky. 1931 ).

This section does not prevent public service commission from regulating rates and service of enumerated utilities. Southern Bell Tel. & Tel. Co. v. Louisville, 265 Ky. 286 , 96 S.W.2d 695, 1936 Ky. LEXIS 468 ( Ky. 1936 ).

A provision in a utility franchise granted by a city that the utility should lower its rates whenever its rates charged in an adjoining city were lowered was valid and was not an abdication or delegation of the rate-making power. Union Light, Heat & Power Co. v. Covington, 282 Ky. 558 , 139 S.W.2d 64, 1940 Ky. LEXIS 208 ( Ky. 1940 ).

A city, in granting a public utility franchise, whether an entirely new franchise or a renewal, has the right to prescribe the character of service to be rendered and the rates to be charged at the beginning, and thereafter the exclusive power to regulate the rates and service is vested in the public service commission. Peoples Gas Co. v. Barbourville, 291 Ky. 805 , 165 S.W.2d 567, 1942 Ky. LEXIS 321 ( Ky. 1942 ).

24.— Ambulance Service.

A city has the authority to grant a franchise for emergency ambulance service. Ray v. Owensboro, 415 S.W.2d 77, 1967 Ky. LEXIS 294 ( Ky. 1967 ).

25.— Toll Bridge.

A fiscal court may grant a franchise for the construction and operation of a toll bridge across a navigable stream. Irvine Toll Bridge Co. v. Estill County, 210 Ky. 170 , 275 S.W. 634, 1925 Ky. LEXIS 644 ( Ky. 1925 ).

26.— Granted Before Constitution.

A railroad company which, prior to the Constitution, had been granted the right to construct its road over certain streets subject to forfeit for nonuse within five (5) years had a right to engage in more construction, as the right to forfeit for nonuse had not been exercised, and this section had no application where the franchise was granted prior to the adoption of the Constitution. Louisville & N. R. Co. v. Bowling G. R. Co., 110 Ky. 788 , 63 S.W. 4, 23 Ky. L. Rptr. 273 , 1901 Ky. LEXIS 158 ( Ky. 1901 ).

Where a city and a water company had, prior to the adoption of this section, entered into a franchise agreement to run 25 years with a subsequent renewal for 25 years, such subsequent renewal coming after the adoption of this section was valid. Slade v. Lexington, 141 Ky. 214 , 132 S.W. 404, 1910 Ky. LEXIS 430 ( Ky. 1910 ).

27.— Valid.

A lighting contract with a municipality for a period of 20 years from a future date, and made under an existing valid 20-year lighting franchise, is valid and enforceable for so much of the contract period as is covered by the life of the franchise. S. R. Schaff & Co. v. La Grange, 176 Ky. 548 , 195 S.W. 1097, 1917 Ky. LEXIS 79 ( Ky. 1917 ).

An ordinance making all street railway franchises expire simultaneously within limits provided by this section, under which railway company voluntarily surrendered part of term of its franchises, was not invalid. Poggel v. Louisville R. Co., 225 Ky. 784 , 10 S.W.2d 305, 1928 Ky. LEXIS 886 ( Ky. 1928 ).

A contract entered into between a city and a street railway company amending the street railway company’s franchise to permit substitution of motor buses for electrically operated streetcars does not violate the provisions of this section and Const., § 163. Russell v. Kentucky Utilities Co., 231 Ky. 820 , 22 S.W.2d 289, 1929 Ky. LEXIS 372 ( Ky. 1929 ).

Sale of 20-year franchise was valid though company to which sale was made was owner of existing similar franchise which did not expire for more than four (4) years. Hatcher v. Kentucky & West Virginia Power Co., 280 Ky. 583 , 133 S.W.2d 910, 1939 Ky. LEXIS 168 ( Ky. 1939 ).

City lease of wharf property to private corporation for term of 40 years subject to city’s reserved right to cancel lease at any time upon one year’s notice is not void under this section. Deters v. Louisville, 249 S.W.2d 796, 1952 Ky. LEXIS 870 ( Ky. 1952 ).

A city’s award of a cable television franchise satisfied the dictates of this section; the award was for 15 years, the availability of the franchise was publicly disseminated, proposals were accepted and discussed publicly, and the city commission determined that the franchisee was the highest and best bidder. Communications Systems, Inc. v. Danville, 880 F.2d 887, 1989 U.S. App. LEXIS 10840 (6th Cir. Ky. 1989 ).

28.— Invalid.

A contract granting a franchise for 20 years from a future date is void. Somerset v. Smith, 105 Ky. 678 , 49 S.W. 456, 20 Ky. L. Rptr. 1488 , 1899 Ky. LEXIS 251 ( Ky. 1899 ).

An ordinance permitting the Department of Public Works to issue yearly licenses to corporations desiring to transmit electricity or heat through the streets in unconstitutional. Hilliard v. Geo. G. Fetter Lighting & Heating Co., 127 Ky. 95 , 105 S.W. 115, 31 Ky. L. Rptr. 1330 , 1907 Ky. LEXIS 120 ( Ky. 1907 ).

A fiscal court had no power to grant a franchise for the construction of a boom across a creek as the watercourses of a county are not for the most part under the control of the fiscal court. American Car & Foundry Co. v. Johnson County, 147 Ky. 69 , 143 S.W. 773, 1912 Ky. LEXIS 190 ( Ky. 1912 ).

Where a statute provides for a lapse of time before an ordinance granting a franchise may be passed and that provision of the statute is not observed, the franchise is void and cannot be validated by a later ordinance. Eastern Kentucky Home Tel. Co. v. Hatcher, 166 Ky. 176 , 179 S.W. 7, 1915 Ky. LEXIS 648 ( Ky. 1915 ).

A franchise which attempted to grant to a power company the exclusive right to manufacture and sell light and power within city limits was invalid, as the right to sell and produce electricity is not a prerogative of government. Princeton v. Princeton Electric Light & Power Co., 166 Ky. 730 , 179 S.W. 1074, 1915 Ky. LEXIS 785 ( Ky. 1915 ).

An ordinance which granted a franchise without advertising and receiving bids was invalid. Princeton v. Princeton Electric Light & Power Co., 166 Ky. 730 , 179 S.W. 1074, 1915 Ky. LEXIS 785 ( Ky. 1915 ).

A grant of a franchise for a period of time longer than 20 years is void in toto. Hamilton v. Bastin Bros., 188 Ky. 764 , 224 S.W. 430, 1920 Ky. LEXIS 351 ( Ky. 1920 ).

Lease by a county of the exclusive right to dig, pump, or take sand from a portion of the bed of the Ohio River within the county for a period of 50 years under a statute was invalid and void, since it could only be let to the highest bidder for a period not exceeding 20 years. Willis v. Boyd, 224 Ky. 732 , 7 S.W.2d 216, 1928 Ky. LEXIS 676 ( Ky. 1928 ).

An ordinance allowing a railway company to use city streets for which it would pay $250 a year in lieu of all other fees and taxes is invalid where 20 years has passed since its enactment. South C. & C. S. R. Co. v. Henkel & Sullivan, 228 Ky. 271 , 14 S.W.2d 1068, 1929 Ky. LEXIS 531 ( Ky. 1929 ).

Franchise ordinance providing that the period of the franchise should commence at a designated future date and continue for 20 years thereafter was void, but city had right to re-enact ordinance to eliminate void provision. Peoples Gas Co. v. Barbourville, 291 Ky. 805 , 165 S.W.2d 567, 1942 Ky. LEXIS 321 ( Ky. 1942 ).

Contract between the county fiscal court and private company for disposal of solid waste in a privately-owned landfill was a grant of a privilege or franchise granted in violation of the advertisement and public bidding requirements of this section. KRS Chapters 67, 109 and 224 establish that the General Assembly has placed in the counties primary responsibility and authority for the exclusive management of solid waste. County fiscal court was exercising its governmental, rather than proprietary, function in contracting with a private company for the construction and operation of the proposed landfill. Solid waste disposal requires a franchise whether it is performed by private parties or on private property. Eastern Ky. Resources v. Arnett, 934 S.W.2d 270, 1996 Ky. LEXIS 118 ( Ky. 1996 ).

29.— — Rights of Franchise.

An assignment of a street railway franchise, void because issued in violation of the constitutional provisions forbidding the granting of street railway franchises except to the highest bidder after due advertisement, gave the assignee no rights. Monarch v. Owensboro C. R. Co., 119 Ky. 939 , 85 S.W. 193, 27 Ky. L. Rptr. 380 , 1905 Ky. LEXIS 60 ( Ky. 1905 ).

30.— Invalid Statute.

KRS 416.140 , authorizing certain utility companies to place transmission facilities along public roads without paying compensation, does not violate this section. Warfield Natural Gas Co. v. Lawrence County, 300 Ky. 410 , 189 S.W.2d 357, 1945 Ky. LEXIS 556 ( Ky. 1945 ).

31.— Injunctions.

A city may be enjoined from granting a franchise but an injunction will not be granted except where it was apparent that the duty of awarding a franchise to the highest and best bidder would be violated. Keith v. Johnson, 109 Ky. 421 , 59 S.W. 487, 22 Ky. L. Rptr. 947 , 1900 Ky. LEXIS 220 ( Ky. 1900 ).

In a suit to enjoin actions taken pursuant to the award of a franchise, the plaintiffs had the burden of proof as to their allegations that the resolution awarding the franchise contained untrue statements and that the council had acted arbitrarily or corruptly. Baskett v. Davis, 311 Ky. 13 , 223 S.W.2d 168, 1949 Ky. LEXIS 1038 ( Ky. 1949 ).

32.— Mandamus.

This section and Const., § 163 only impose conditions upon the discretionary granting of a franchise, and mandamus will not lie to compel the issuance of a franchise thereunder. Bastin Tel. Co. v. Davidson, 176 Ky. 23 , 195 S.W. 148, 1917 Ky. LEXIS 13 ( Ky. 1917 ).

Mandamus may be granted to compel a company to remove its equipment from city streets where the company was unable to prove that it had been properly granted a franchise by the city. Rockport Coal Co.'s Trustee v. Tilford, 222 Ky. 288 , 300 S.W. 898, 1927 Ky. LEXIS 932 ( Ky. 1927 ).

33.Nonfranchise Agreements.

Where a town allowed a county the use of municipal streets and public ways for the construction of a bridge which was necessary for the use of the public generally and for the benefit of the citizens of both the town and the county, this grant had none of the elements of a franchise such as is contemplated by this section. Jackson v. Breathitt County, 105 S.W. 376, 32 Ky. L. Rptr. 199 (1907).

The operation of jitney buses on city streets over regular routes and between fixed termini is not an operation of a permanent nature requiring sale of a franchise, and licensing of jitney buses by city ordinance is not prohibited by this section and Const., § 163. Ashland v. Fannin, 271 Ky. 270 , 111 S.W.2d 420, 1937 Ky. LEXIS 187 ( Ky. 1937 ).

A contract entered into by a city and a contiguous town by which the latter was allowed to use the city’s sewer system was not the granting of a franchise or privilege within the meaning of this section. Louisville & Jefferson County Metropolitan Sewer Dist. v. Strathmoor Village, 307 Ky. 343 , 211 S.W.2d 127, 1948 Ky. LEXIS 739 ( Ky. 1948 ).

As the right to produce and sell gas is not a prerogative of a government but is a business open to all, a contract by which individual was to sell and deliver natural gas to city at its corporate limits was not the grant of a franchise by the city. Young v. Morehead, 314 Ky. 4 , 233 S.W.2d 978, 1950 Ky. LEXIS 985 ( Ky. 1950 ).

Where one city entered into a contract with another city for the treatment of its sewage in consideration of a payment over a period of 20 years of a monthly sum, the cities were performing a governmental service and this did not constitute a franchise. Russell v. Flatwoods, 394 S.W.2d 900, 1965 Ky. LEXIS 218 ( Ky. 1965 ).

A plan under which a city would construct two new power facilities for future use and sell the excess power until it was needed for municipal use did not violate this section or Const., § 179. Wilson v. Henderson, 461 S.W.2d 90, 1970 Ky. LEXIS 610 ( Ky. 1970 ).

34.— Lease.

A contract between a city and a utility company which provided that the company would sell energy to a city-owned generating station was a lease of the plant rather than a franchise and was, therefore, not invalid for extending beyond the 20-year limitation of this section, especially when the city had the right to cancel the contract after ten (10) years. Miller v. Owensboro, 343 S.W.2d 398, 1961 Ky. LEXIS 421 ( Ky. 1961 ).

The principle is firmly established that a lease of property owned by a city in a proprietary capacity does not constitute a franchise within the meaning of the Constitution. Miller v. Owensboro, 343 S.W.2d 398, 1961 Ky. LEXIS 421 ( Ky. 1961 ).

The leasing of property owned by a city in a proprietary capacity does not constitute the granting of a franchise. Baird v. Adairville, 426 S.W.2d 124, 1968 Ky. LEXIS 636 ( Ky. 1968 ).

A lease of land for temporary purposes does not constitute a franchise within the meaning of this section. Porter v. Hospital Corp. of America, 696 S.W.2d 793, 1985 Ky. App. LEXIS 647 (Ky. Ct. App. 1985).

35.— License.

A resolution of the board of trustees of a town to let a telephone company put up telephone poles on certain streets, though acted upon by the company, is not the grant of a franchise within the provisions of this section but is a mere license, which may be withdrawn at any time, and hence a license fee may be imposed on the company by the municipality for such use. Cumberland Tel. & Tel. Co. v. Calhoun, 151 Ky. 241 , 151 S.W. 659, 1912 Ky. LEXIS 790 ( Ky. 1912 ).

Where a city, without complying with the provisions of this section, granted to a telephone company the privilege of installing and operating a telephone exchange, such privilege was not a valid franchise but a mere revocable license. Bastin Tel. Co. v. Mount, 176 Ky. 26 , 195 S.W. 112, 1917 Ky. LEXIS 7 ( Ky. 1917 ).

An operator of a public utility in a town is a mere licensee and may be subject to an occupation tax where it has not obtained a franchise pursuant to the terms of this section. Hodgenville v. Gainesboro Tel. Co., 237 Ky. 419 , 35 S.W.2d 888, 1931 Ky. LEXIS 638 ( Ky. 1931 ).

Cited:

Shaw v. Covington, 194 U.S. 593, 24 S. Ct. 754, 48 L. Ed. 1131, 1904 U.S. LEXIS 796 (U.S. 1904); Postal Tel. Cable Co. v. Newport, 247 U.S. 464, 38 S. Ct. 566, 62 L. Ed. 1215, 1918 U.S. LEXIS 1868 (U.S. 1918); Owensboro v. Cumberland Tel. & Tel. Co., 174 F. 739, 1909 U.S. App. LEXIS 5249 (6th Cir. Ky. 1909 ); Ashland Waterworks Co. v. Ashland, 251 F. 492, 1918 U.S. App. LEXIS 1721 (6th Cir. Ky. 1918 ); Louisville v. Louisville R. Co., 281 F. 353, 1922 U.S. App. LEXIS 2083, 1922 U.S. App. LEXIS 2084 (6th Cir. Ky. 1922 ); Central Kentucky Natural Gas Co. v. Railroad Com. of Kentucky, 37 F.2d 938, 1930 U.S. Dist. LEXIS 1831 (D. Ky. 1930 ); Covington v. District of Highlands, 113 Ky. 612 , 68 S.W. 669, 24 Ky. L. Rptr. 433 , 1902 Ky. LEXIS 89 ( Ky. 1902 ); Campbellsville Tel. Co. v. Patteson, 114 Ky. 52 , 69 S.W. 1070, 24 Ky. L. Rptr. 832 , 1902 Ky. LEXIS 125 ( Ky. 1902 ); Cumberland Tel. & Tel. Co. v. Hopkins, 121 Ky. 850 , 90 S.W. 594, 28 Ky. L. Rptr. 846 , 1906 Ky. LEXIS 268 ( Ky. 1906 ); Gravel Switch & Little South Tel. Co. v. Lebanon, L. & L. Tel. Co., 139 Ky. 151 , 129 S.W. 559, 1910 Ky. LEXIS 18 ( Ky. 1910 ); Benjamin v. Mayfield, 170 Ky. 446 , 186 S.W. 169, 1916 Ky. LEXIS 87 ( Ky. 1916 ); Dayton v. South C. & C. S. R. Co., 177 Ky. 202 , 197 S.W. 670, 1917 Ky. LEXIS 576 ( Ky. 1917 ) ( Ky. 1917 ); American Ry. Express Co. v. Commonwealth, 187 Ky. 241 , 218 S.W. 453, 1919 Ky. LEXIS 387 ( Ky. 1919 ); Bowling Green v. Kirby, 220 Ky. 839 , 295 S.W. 1004, 1927 Ky. LEXIS 603 ( Ky. 1927 ); Hardin County Kentucky Tel. Co. v. Elizabethtown, 227 Ky. 778 , 14 S.W.2d 162, 1929 Ky. LEXIS 981 ( Ky. 1929 ); Covington v. Reynolds, 240 Ky. 86 , 41 S.W.2d 664, 1931 Ky. LEXIS 348 ( Ky. 1931 ); Miller's Ex'x v. People's Bank, 240 Ky. 185 , 41 S.W.2d 1096, 1931 Ky. LEXIS 364 ( Ky. 1931 ); Union Light, Heat & Power Co. v. Covington, 246 Ky. 663 , 55 S.W.2d 667, 1932 Ky. LEXIS 818 ( Ky. 1932 ); Spur Distributing Co. v. Husbands, 276 Ky. 52 1 , 124 S.W.2d 463, 1939 Ky. LEXIS 526 ( Ky. 1939 ); Maupin v. Louisville, 284 Ky. 195 , 144 S.W.2d 237, 1940 Ky. LEXIS 473 ( Ky. 1940 ); Lexington R. System v. Lexington Cab Co., 284 Ky. 786 , 146 S.W.2d 26, 1940 Ky. LEXIS 580 ( Ky. 1940 ); Benzinger v. Union Light, Heat & Power Co., 293 Ky. 747 , 170 S.W.2d 38, 1943 Ky. LEXIS 698 ( Ky. 1943 ); Clay v. Catlettsburg, Kenova & Ceredo Water Co., 301 Ky. 456 , 192 S.W.2d 358, 1946 Ky. LEXIS 499 ( Ky. 1946 ); Rash v. Louisville & Jefferson County Metropolitan Sewer Dist., 309 Ky. 442 , 217 S.W.2d 232, 1949 Ky. LEXIS 670 ( Ky. 1949 ); Dyche v. London, 288 S.W.2d 648, 1956 Ky. LEXIS 271 ( Ky. 195 6 ); Blackburn v. Pineville, 313 S.W.2d 860, 1958 Ky. LEXIS 277 ( Ky. 1958 ); Owensboro v. Top Vision Cable Co., 487 S.W.2d 283, 1972 Ky. LEXIS 64 ( Ky. 1972 ); Pendleton Bros. Vending, Inc. v. Commonwealth Finance & Admin. Cabinet, 758 S.W.2d 24, 1988 Ky. LEXIS 46 ( Ky. 1988 ).

Opinions of Attorney General.

A city could grant a franchise to a private company authorizing it to construct and operate a sewerage system within the city and charge reasonable rates for such services providing the franchise conformed to the requirements of KRS 96.010 and this section. OAG 61-1106 .

If a company has a franchise to operate in a city, it cannot be required to pay an occupational license tax in addition to any payment it may be making for the franchise. OAG 62-452 .

A city is without authority to levy an occupational license tax on the operations of an electric power company within the corporate limits of the city. OAG 63-592 .

Counties are authorized to grant authority in the nature of a franchise for the use of the public ways of the county (not state highway right of way) by a television antenna cable system subject to the provisions of this section governing the term and sale of franchises generally. OAG 64-44 .

The fiscal court can legally award a franchise for the countywide collection of garbage to an individual or corporation under this section. OAG 66-468 .

A county may grant a franchise to an individual or corporation for the purpose of furnishing ambulance service by a private concern. OAG 67-327 .

Even though a sanitation or health emergency is deemed to exist, before a franchise for a dumping facility can be granted, it must be advertised and bids received. OAG 70-191 .

The fiscal court could legally award a franchise covering a specifically designated portion of the county for the dumping of garbage at a landfill site pursuant to this section after advertisement was made and bids received for a site. OAG 70-191 .

A cable television corporation generally, in order to install its cable system and related equipment on, over, or across the right of way of a county road system, must acquire a franchise from the fiscal court pursuant to this section, and according to the term and bidding procedure outlined therein. OAG 70-241 .

A county cannot operate an ambulance service to the exclusion of all others unless the county issues a franchise and makes the franchise exclusive as a result of the public interest’s demanding such restraint or limitation of competition. OAG 70-565 .

If a county decides to grant an ambulance service franchise, the granting of such franchise could be exclusive, within the sound discretion of the fiscal court, depending upon what the public interest demands in the particular situation. OAG 70-565 .

In the absence of issuing an ambulance service franchise under this section or KRS ch. 58, a county has no authority to prohibit the operation of a competing ambulance service. OAG 70-565 .

The fiscal court can legally award a franchise for the countywide collection of garbage to a private individual or corporation. OAG 71-449 .

The counties have no authority to invoke this section and sell franchises involving the use of county roads and bridges to utilities named in KRS 416.140 . OAG 71-538 .

Under KRS 416.140 the state has reserved to itself the right to grant the named utilities permission to use county road rights of way and has not delegated the right to the county or any other political subdivision. OAG 71-538 .

If a fiscal court believes that the health and welfare of the county and its citizens require contract ambulance service, it can enter into a contract for such service without submitting it to the electorate, providing the franchise for such service is awarded by receiving bids pursuant to this section. OAG 73-246 .

A county may establish a garbage collection and disposal under either KRS chapters 58 or 109, letting the franchise for the operation of the system under the procedure provided in this section. OAG 73-493 .

A franchise contract for garbage operations should spell out, inter alia, with particularity the territory to be covered and necessary guidelines and requirements for such operators in order to insure an orderly system and compliance with all pertinent statutory law. OAG 73-493 .

A joint solid waste disposal authority may not enter into a contract for garbage disposal with a local contractor in the amount of more than $2,500, without first making an advertisement for bids unless the situation involves an emergency. OAG 74-42 .

A fiscal court ordinance, under the police powers of KRS 67.083 , providing for a county solid waste commission to establish solid waste collection districts and grant franchises to garbage collectors in the collection districts satisfies this section where the franchises are subject to the approval of the fiscal court. OAG 74-327 .

In determining the best bid for garbage collection franchises, the county may require the bidder to indicate that the charge would be to individuals and businesses receiving the service. OAG 74-327 .

Advertising for bids is mandatory. OAG 75-190 .

A county fiscal court may not contract with a cable television firm, to which a city within the county has awarded a nonexclusive franchise after advertising for bids, for the furnishing of facilities outside the city but within the county without advertising for bids and awarding the contract to the highest and best bidder. OAG 75-261 .

The fiscal court and the park board are bound by the terms of the marina franchise contract for a ten (10) year period and this section will not permit the amendment of the present franchise contract to provide for extension of the present franchise and guaranteeing of additional revenue for another bond issue since the franchise contract is the device to fund the outstanding revenue bond issue, and it cannot be altered in any way as to impair the original obligation. OAG 75-507 .

Where a fiscal court’s notice for bids made no mention of the awarding of an exclusive franchise for the collection of garbage and solid waste in the county, the subsequent agreement between the fiscal court and a sanitation company would not be an exclusive franchise for the collection, hauling and dumping of garbage in the county. OAG 76-340 .

Although a franchise for ambulance service must be let out on bids, the granting of the franchise could be exclusive. OAG 76-716 .

Counties, through their fiscal courts, are authorized to grant franchises for the use of the public ways of the counties by television antenna cable systems pursuant to this section; however a fiscal court cannot grant a cable television franchise involving territory within the corporate boundaries of the city located in the county since a city has exclusive jurisdiction over streets or ways within the city and the fiscal court cannot impinge on such authority. OAG 77-111 .

This section does not permit a fiscal court to cross over into municipal territory with its cable television franchise, since the city’s exclusive authority over streets as provided by statute (KRS Ch. 96, KRS 85.140 repealed, KRS 93.050 repealed, KRS 94.110 repealed and KRS 94.360 , repealed) would conflict with such attempted county action. OAG 77-111 .

Since fiscal courts have control over county roads and bridges, the courts are authorized to grant franchises for the use of public ways of the counties by television antenna cable systems. OAG 77-601 .

Counties, through fiscal courts, generally have the authority to establish in the contract of franchise reasonable provisions for service and rates and, thus, the fiscal court has the power to agree on rates for cable television by way of the franchise contract. OAG 78-89 .

A franchise which provided that “the ‘permit’ shall be for a period of 20 years and thereafter until revoked by the Fiscal Court of Estill County” was invalid under this section since it purported to extend beyond a 20-year term. OAG 78-208 .

The fact that a franchise extends beyond the term of office of fiscal court members voting on the franchise is wholly irrelevant. OAG 78-208 .

The fiscal court’s franchise power exists by virtue of the fact that cable television [cable and wire] is constructed over county road systems, over which the fiscal court has jurisdiction and fiscal courts generally have the authority to establish in the contract of franchise such reasonable provisions for service and rates under this section, as are calculated to effectuate the purposes for which it is granted. OAG 78-208 .

Where a franchise contract contains no consideration for the county and no stipulations as to service and rates, then the franchise is a gratuity or a give away and violates the spirit and letter of this section. OAG 78-208 .

Under this section and KRS 67.083 as amended in 1978 a city can grant a cable television franchise, as it relates to territory within the municipal boundaries, and the fiscal court may grant a similar franchise, involving territory which is unincorporated within the county boundaries, provided that the explicit requirements of this section are followed including the requirements that such local governments, before granting a franchise, duly advertise for and receive bids, and award the franchise to the highest and best bidder. OAG 78-316 .

A franchise contract relating to ambulance service can be and should be limited to emergency ambulance service. OAG 78-360 .

Generally telephone companies, in order to install poles and cables on county rights-of-way, must acquire a franchise from the fiscal court of the pertinent county but Southern Bell in Kentucky holds an irrevocable, perpetual legislative franchise to maintain poles and lines upon any or all highways in the Commonwealth in such a manner as to afford no obstruction to public use, and calls for no compensation to the State, its agencies or subdivisions. OAG 78-380 .

A fiscal court may legally award a franchise for countywide collection of solid waste (includes garbage) to a private individual or corporation pursuant to this section, but a corporation so enfranchised and the county must adhere to any applicable rules and regulations concerning the collection and disposal of such solid waste. See KRS 224.032 and 224.033 , as amended in 1978. OAG 78-480 .

Assuming that sewer lines would be constructed along or through county road rights-of-way, a fiscal court has the authority to grant a franchise to a corporation in connection with the sewer lines operation pursuant to § 163 of the Constitution and this section, assuming it is the highest and best bidder. OAG 79-156 .

If a corporation happens to be the only bidder, after proper advertising for bids, an award of franchise could still be made provided the contract contains terms reasonable to both parties, since the purpose of the bidding is to insure that all interested bidders get a chance at it and promote the idea of the fiscal court’s getting the best possible consideration for the franchise by sale to highest and best bidder. OAG 79-156 .

Whether or not an exclusive franchise is issued is a matter lying within the sound discretion of fiscal court. OAG 79-156 .

This section governing the term of franchises and their advertisement for bids, prohibits an enlargement of a franchise, but contains no restriction on amending rate charges and regulatory provisions contained in utility franchises in order for the utility to receive a fair return and continue the service. OAG 79-175 .

Under KRS 67.080 and this section, the fiscal court may divide a county into cable television districts and award a cable television franchise to the highest and best bidder in each district, where the fiscal court had determined, as a legislative matter, that such a method of operation will be for the best interest of the community. OAG 79-199 .

An interlocal agreement and the steps taken to effectuate Const., § 163 and this section may properly include joint advertising, joint consideration of bids, joint awarding of a cable television franchise covering city and county areas, a provision that the consideration payable to the city and county shall be a certain percentage of the gross receipts from city subscribers going to the city and a percentage of gross receipts of county subscribers going to the county respectively, and the joint control over the franchise. OAG 79-208 .

The purpose of § 163 and of the Constitution and this section was to give a municipality control of its streets, roads, and public grounds and to make it possible for the municipality to provide the services of various utilities to its inhabitants. OAG 79-208 .

The right to grant franchises applies to all utilities and services which might today be proper subjects for control, when the original intent and purpose of the act is considered. OAG 79-208 .

A city and a garbage pickup and disposal service company may by mutual agreement amend the rate structure contained in an existing franchise agreement, even where no other consideration than that of securing the advantage and convenience to citizens of the city of the continuance of a needed public service is involved, as an amendment changing rates is not construed as creating a new franchise subject to the bidding requirements of this section. OAG 79-261 .

This section governing the term of franchises and their advertisement for bids, prohibits an enlargement of the franchise but contains no restrictions on amending rate charges and regulatory provisions contained in utility franchises in order for the utility to receive a fair return and to continue the service. OAG 79-261 .

Where a county emergency ambulance service franchise would be up for bids September 1, 1979, but would be only for a term of three months, but where it had been determined that no one would bid for a franchise for only 90 days, the county could negotiate a contract with the current franchisee, since there would be no contract for a term of years, and KRS 65.710 provides for contracting for less than a term of years. OAG 79-428 .

Pursuant to KRS 65.240 , and Const., § 163 and this section, a city and county may engage in a joint cable television franchise, but where the city already has a franchise and is bound until May 31, 1984, unless the holder of the franchise and the city and county all agree to start over and the city and county advertise for a new and joint franchise, this is not possible before that date. OAG 79-566 .

While a fiscal court must advertise, if it wishes to let a franchise, for the letting of a cable television franchise pursuant to Const., § 163 and this section, it cannot force any bidder to respond to the fiscal court’s specifications. OAG 79-566 .

If a fiscal court decides to issue an ambulance franchise, pursuant to this section, it may issue an exclusive franchise only where the public interest demands that competition in that field be restrained or limited. OAG 79-569 .

The issuance of a garbage franchise by the fiscal court must necessarily involve a reasonable consideration to be paid to the county. OAG 80-57 .

A county cannot grant a franchise to a private ambulance service for a term of a year or years with the original bid winner being given an option to negotiate exclusively to provide the next year’s service without the necessity to rebid in each succeeding year because if a fiscal court grants a franchise, the literal terms of this section must be followed and the bidding requirement is mandatory for each new term. OAG 80-258 .

A county cannot incorporate under KRS Chapter 273 and grant that corporation a long-term franchise to negotiate with private firms on a yearly basis to provide ambulance service to the county, because the fiscal court, by a KRS Chapter 273 creation, cannot circumvent the express language of this section. OAG 80-258 .

A cable television franchise awarded by a county for 15 years with an additional ten (10) years under certain conditions would violate this section, since the ten (10) year term would be granted without letting it out on public bids in open competition and the extended franchise, which totaled 25 years, would exceed the 20-year franchise limit set out in this section. OAG 80-391 .

This section is self-executing and requires no implementing statutes as to bidding requirements; thus, neither the model procurement code, where the county fiscal court has adopted it pursuant to KRS 45A.343 , nor the old bidding statute, KRS 424.260 , has any application to the granting of a cable television franchise by a county. OAG 80-391 .

A fiscal court and a franchise ordinance can set forth an amendment procedure whereby a future fiscal court cannot amend the franchise ordinance without all franchise holders approving said amendment. OAG 80-413 .

If the term of a franchise as granted by a fiscal court is for 15 years, and that term of years is included in the original ordinance granting the franchise, the current fiscal court cannot in any way amend the ordinance as far as it affects the rights and obligations of the franchise holders since the county and the franchise holder are bound by the original term of years under this section. OAG 80-413 .

A county fiscal court has the authority to grant a cable television franchise pursuant to Const., § 163, and this section and to the extent that the systems of cable and wire are constructed over county road systems over which the fiscal court has jurisdiction, the franchise power also exists pursuant to KRS 67.080 and 67.083 ; moreover, the fiscal court has the authority, under Const., § 163 and this section to establish in the franchise contract reasonable provisions for service and rates which are calculated to effectuate the purposes for which it is granted; thus, a franchise contract which required the cable operator to perform at a level which would meet applicable FCC guidelines would be reasonable and valid. OAG 81-166 .

Where a city has granted a two (2) year garbage removal franchise, a rate adjustment to increase the payments made to the contractor to offset a rate increase on landfill charges made by the fiscal court would not violate this section which prohibits a city from enlarging the term or duration of a franchise, since there is no prohibition against amending the franchise in order to alter the rate schedule or regulatory matters, provided such amendment is by the agreement of the parties. OAG 81-192 .

A contract for one city to provide another city with water for a term of years is necessarily in the nature of a franchise acquired by one city from another and would be governed by this section; accordingly, the franchise could not exceed 20 years and would have to be let on a bid basis. OAG 81-365 .

A fiscal court is under a duty to impose a reasonable franchise fee for the use of a county right-of-way, not to exceed three percent of the franchisee’s gross subscriber revenues per year from cable TV operations within the franchise area. OAG 82-163 .

The franchise power of fiscal courts over cable TV exists by virtue of the fact that cable television (cable and wire) is constructed or erected over county road system rights-of-way, over which the fiscal court has exclusive jurisdiction. OAG 82-163 .

The granting of a cable TV franchise by the county in unincorporated territory is controlled strictly by Const., § 163 and this section. OAG 82-163 .

Under the explicit language of this section, any cable TV franchises awarded by a fiscal court must be made after advertisement for bids, and the award will be made to the highest and best bidder; accordingly the granting of such franchises cannot be done on a negotiated basis. OAG 82-163 .

Where cable TV operators were operating in the unincorporated portion of a county without going through a bidding process, they were operating in violation of the Constitution and were, thus, illegal; the failure to observe the bidding requirements of this section would vitiate any contractual agreements between the fiscal court and the purported franchisees. OAG 82-163 .

In general, any county may, in the discretion of the fiscal court, establish a county emergency ambulance service by contracting for it and granting a franchise under this section or may establish an emergency ambulance service district pursuant to KRS 108.100 et seq., or may establish a county emergency ambulance service directly operated by the county, but the fiscal court is not mandatorily required to provide emergency ambulance service under present statutes. OAG 82-239 .

A city can lease its property under contract for a period exceeding 20 years, so long as fraud is not attached to the contract and it involves a municipal rather than a governmental function. OAG 82-306 .

Where a city as a lessor leased certain real estate to a lessee for an original term of ten (10) years with options to the lessee for three (3) renewals thereof for ten (10), five (5) and five (5) years, thus obligating the city for a total of 30 years, and where the lessee exercised its option to renew the lease for the first ten (10) year period and subsequently attempted to exercise the option for a renewal of the lease for a five (5) year period, such lease could be enforced against the city by the lessee for the five (5) year term occurring after the first 20 years of the lease unless the element of fraud was present. OAG 82-306 .

An ambulance service may be carried on in a county under one of three methods: (1) ambulance service under a county franchise to private persons or a corporation under KRS 65.710 , provided such franchise is let under competitive bidding pursuant to this section; (2) ambulance service as a direct county operation under its police power as found in KRS 67.083(3)(t); and (3) ambulance service provided by an ambulance district as established under KRS 108.080 et seq. OAG 82-601 .

The one-year maximum period contract of KRS 65.710(5) governing ambulance service contracts is inoperative in light of this section which establishes a 20-year maximum period for franchises. OAG 82-601 ; OAG 83-349 .

The franchise procedure of this section is mandatory. OAG 83-222 .

The fiscal court had the authority under Const., § 163 and this section to issue a franchise for the furnishing of ambulance service to a private person or corporation after the bidding procedure required by this section. OAG 83-222 .

Where the person operating an ambulance service in county had received no franchise, and the fiscal court did not make use of Const., § 163 and this section, so that no bidding procedure was used by fiscal court, the ambulance service was not operating constitutionally; consequently the person operating the ambulance service was subject to a mandamus suit in the local circuit court, in which the fiscal court could seek to compel him to cease his operation of an ambulance service on county roads. OAG 83-222 .

This section allows a city to grant any franchise or privilege; the city may receive compensation for the granting of this privilege. OAG 83-233 .

While Const., § 163 and this section dealing with franchises are self-operative in nature, the Interlocal Cooperation Act, i.e., KRS 65.240 , would permit the city and county to grant jointly one cable television franchise (upon advertised bid solicitation) which would service the county and city and there is nothing in the joint action which would militate against the self-executing nature of Const., § 163 and this section or against the exclusivity of separate governmental control over the streets and roads of the county and city respectively. OAG 83-321 .

Where a city and county had not entered into an interlocal agreement relative to a joint cable television franchise, the unilateral solicitation of bids by the county and the county’s acceptance of a bid which included the area of the city resulted in an illegal award of franchise. OAG 83-321 .

Where an alarm monitoring system established by a corporation, with a console in the police station, authorized subscribers to the system to receive added police protection for a fee, and where the company paid the city a fee to help defray the expenses of monitoring the system at the police department, the system was a form of public service available to anyone desiring the additional service; because of the nature of services to be furnished under the contract between the corporation and the city, such contract would constitute a franchise that would be required to be let on a bid basis under the terms of this section. OAG 83-341 .

The fiscal court has no authority to permit private individuals to place their gas pipelines along or under county road rights of way, since they are not public utilities; public policy demands that these county roadways not be encumbered except in the manner permitted by the Constitution and statutes. OAG 84-111 .

Since this section contains no exception to the mandated bidding procedure, and since the appellate cases are firm on the mandatory nature of this section, there is no valid or constitutional exception to this section. Thus, even though no bids had been received by a city under advertisements for bids on a cable television franchise, the fiscal court had no basis for issuing a cable television franchise and the fiscal court could not validly negotiate such contract. OAG 84-292 .

An ambulance service contract can be let under KRS 65.710 , provided such franchise is let out under competitive bidding, pursuant to Const., § 164; such a franchise may be granted for up to 20 years. If the subject contract was not let under competitive bidding, it would be void. OAG 84-323 .

Where original franchise ordinance provided for security deposits for converter boxes, not to exceed $25.00, fiscal court’s resolution recognizing cable television company’s right to require a security deposit was an amendment of an existing franchise, and did not violate this section. OAG 85-8 .

Section 164 of the Kentucky Constitution does not prohibit a Mayor from entering into a lease for a term of 99 years. Furthermore, KRS 91A.180 does not restrict the Mayor’s authority to enter into leases on behalf of the city under his executive powers set forth in KRS 67C.105 . OAG 09-007 .

Research References and Practice Aids

Cross-References.

Sale of franchises, KRS 96.010 to 96.045 .

§ 165. Incompatible offices and employments.

No person shall, at the same time, be a State officer or a deputy officer or member of the General Assembly, and an officer of any county, city, town, or other municipality, or an employee thereof; and no person shall, at the same time, fill two municipal offices, either in the same or different municipalities, except as may be otherwise provided in this Constitution; but a Notary Public, or an officer of the militia, shall not be ineligible to hold any other office mentioned in this section.

NOTES TO DECISIONS

1.Purpose.

It is the purpose of the Constitution and a high policy of the law not to permit the same person to fill two (2) incompatible offices at the same time and this policy recognizes that it is the duty of a public officer or servant to discharge his duties uninfluenced by the duties and obligations of another office whatever the title or duties may be. Rash v. Louisville & Jefferson County Metropolitan Sewer Dist., 309 Ky. 442 , 217 S.W.2d 232, 1949 Ky. LEXIS 670 ( Ky. 1949 ).

2.Construction.

This section refers only to the incompatibility of offices within the state and does not prohibit any other than municipal officers from holding a state office or a deputyship under a state officer. Baker v. Dixon, 295 Ky. 279 , 174 S.W.2d 410, 1943 Ky. LEXIS 222 ( Ky. 1943 ).

KRS 61.080 represents the construction placed by the General Assembly on this section of the Constitution. O'Mara v. Mt. Vernon, 299 Ky. 401 , 185 S.W.2d 675, 1945 Ky. LEXIS 436 ( Ky. 1945 ).

3.Application.

This section applies only to state, county, and municipal officers and not to a Commonwealth Attorney becoming a United States army officer. Caudel v. Prewitt, 296 Ky. 848 , 178 S.W.2d 22, 1944 Ky. LEXIS 595 ( Ky. 1944 ).

here was no constitutional incompatibility between appellee’s two positions of elected magistrate and a police officer for the city of Winchester; he was not a state officer, nor did he hold two municipal offices, and his dual employment did not violate Ky. Const. § 165. Clark Cty. Atty. v. Thompson, 617 S.W.3d 427, 2021 Ky. App. LEXIS 2 (Ky. Ct. App. 2021).

4.State Officer.

Member of board of bar commissioners is not a state officer, and may also serve as Commonwealth's Attorney. Talbott v. Park, 256 Ky. 534 , 76 S.W.2d 600, 1934 Ky. LEXIS 440 ( Ky. 1934 ).

Constitutional and statutory provisions relating to incompatibility of certain offices do not prohibit the simultaneous holding of two (2) state offices or employments unless the duties thereof conflict. Polley v. Fortenberry, 268 Ky. 369 , 105 S.W.2d 143, 1937 Ky. LEXIS 475 ( Ky. 1937 ).

The members of the board of commissioners of the state bar are not officers within the meaning of this section. Dreidel v. Louisville, 268 Ky. 659 , 105 S.W.2d 807, 1937 Ky. LEXIS 510 ( Ky. 1937 ).

A city alcoholic beverage administrator is not an officer of the state. Chandler v. Louisville, 277 Ky. 79 , 125 S.W.2d 1026, 1939 Ky. LEXIS 624 ( Ky. 1939 ).

5.Municipal Officer.

Under a statute providing for commission form of government of cities, commissioners of cities of the second class are municipal officers within the provisions of this section that no person shall at the same time fill two (2) municipal offices either in the same or different municipalities. Commonwealth ex rel. Steller v. Livingston, 171 Ky. 52 , 186 S.W. 916, 1916 Ky. LEXIS 298 ( Ky. 1916 ).

Superintendent and members of board of children’s home are city and county employees, not state officers; therefore, they could not be designated as superintendent of schools and board of education of independent school district established at the home, since to do so would violate this section. Williams v. Board for Louisville & Jefferson County Children's Home, 305 Ky. 440 , 204 S.W.2d 490, 1947 Ky. LEXIS 825 ( Ky. 1947 ).

Holding membership on the electric plant board is not filling a municipal office within the meaning of this section. Kereiakes v. Graham, 458 S.W.2d 162, 1970 Ky. LEXIS 164 ( Ky. 1970 ).

6.Incompatible Offices.

The offices of postmaster and school trustee are, under the law, incompatible, and both cannot be held at the same time by the same person. Johnson v. Sanders, 131 Ky. 537 , 115 S.W. 772, 1909 Ky. LEXIS 54 ( Ky. 1909 ).

The office of school trustee, a state office, and the office of city councilman or town trustee, which are municipal offices, are incompatible. Middleton v. Middleton, 239 Ky. 759 , 40 S.W.2d 311, 1931 Ky. LEXIS 847 ( Ky. 1931 ).

Where a school district trustee subsequently qualified as and assumed the duties of a councilman, he thereby vacated his office as trustee. Middleton v. Middleton, 239 Ky. 759 , 40 S.W.2d 311, 1931 Ky. LEXIS 847 ( Ky. 1931 ).

The office of special tax collector to which outgoing sheriff is designated for collection of unpaid taxes is incompatible with office of county judge, and outgoing sheriff cannot hold both at the same time. Barkley v. Stockdell, 252 Ky. 1 , 66 S.W.2d 43, 1933 Ky. LEXIS 997 ( Ky. 1 933).

Membership on a county board of education was incompatible with the office of county election commissioner, and a school board member who had accepted the office of county election commissioner vacated his membership on the board by the acceptance of the latter office. Adams v. Commonwealth, 268 S.W.2d 930, 1954 Ky. LEXIS 931 ( Ky. 1954 ).

A deputy circuit clerk is clearly a “deputy (state) officer” and is, thus, precluded from simultaneously serving as an officer of a city. Court of Justice v. Oney, 34 S.W.3d 814, 2000 Ky. App. LEXIS 96 (Ky. Ct. App. 2000).

7.— Legislative Approval.

Although under this section the offices of state senator and deputy sheriff are incompatible, the court was without power to take action with respect to such incompatibility where the senate, after being presented with this question, adopted a resolution recognizing the man holding such offices as a duly qualified senator. Raney v. Stovall, 361 S.W.2d 518, 1962 Ky. LEXIS 246 ( Ky. 1962 ).

8.— Effect of Officer’s Actions.

Even if acceptance of office as member of general assembly, by a person holding the office of special judge, vacated the latter office on the ground of incompatibility, defendant in civil suit against whom judgment was rendered by special judge could not complain where special judge was qualified and eligible at the time he began the trial, and no objection was raised by defendant until after judgment had been rendered. O'Mara v. Mt. Vernon, 299 Ky. 401 , 185 S.W.2d 675, 1945 Ky. LEXIS 436 ( Ky. 1945 ).

9.Compatible Offices.

This section does not prevent a person from at once holding the offices of city attorney and court commissioner. Goodloe v. Fox, 96 Ky. 627 , 29 S.W. 433, 16 Ky. L. Rptr. 653 , 1895 Ky. LEXIS 120 ( Ky. 1895 ).

The office of special commissioner named in KRS 25.170 (repealed), is not incompatible with that of county judge pro tem. Vogt v. Beauchamp, 153 Ky. 64 , 154 S.W. 393, 1913 Ky. LEXIS 771 ( Ky. 1913 ).

Where a city commissioner of a city of the fourth class, which was not required to have a city engineer but might employ one, accepted employment by the city as an engineer but did not qualify as city engineer and was treated as an employee in this capacity and not as a city officer, he did not thereby vacate his office as commissioner. Hermann v. Lampe, 175 Ky. 109 , 194 S.W. 122, 1917 Ky. LEXIS 306 ( Ky. 1917 ).

Membership in judicial council, created by statute, is not incompatible with the duties of Circuit Judges and judges of Court of Appeals. Coleman v. Hurst, 226 Ky. 501 , 11 S.W.2d 133, 1928 Ky. LEXIS 121 ( Ky. 1928 ).

A member of the General Assembly was not disqualified by virtue of this office from accepting a contract position to teach school executed with the trustees of a common graded school district. Board of Trustees v. Renfroe, 259 Ky. 644 , 83 S.W.2d 27, 1935 Ky. LEXIS 370 ( Ky. 1935 ).

By accepting city employment, a deputy constable does not thereby vacate his office and arrests by him remain legal. Walling v. Commonwealth, 260 Ky. 178 , 84 S.W.2d 10, 1935 Ky. LEXIS 425 ( Ky. 1935 ).

Judges or justices required to act as clerks of their own courts do not hold two (2) offices within the meaning of this section. Young v. Grauman, 278 Ky. 197 , 128 S.W.2d 549, 1939 Ky. LEXIS 394 ( Ky. 1939 ).

The offices of sheriff and special tax collector are compatible. Nichols v. Land, 288 Ky. 693 , 157 S.W.2d 303, 1941 Ky. LEXIS 192 ( Ky. 1941 ).

The office of special Circuit Judge is not incompatible with the office of member of the General Assembly. O'Mara v. Mt. Vernon, 299 Ky. 401 , 185 S.W.2d 675, 1945 Ky. LEXIS 436 ( Ky. 1945 ).

Police judge of third-class city did not accept incompatible position so as to vacate his office on acceptance of employment as attorney for fifth-class city. Glasgow v. Burchett, 419 S.W.2d 544, 1967 Ky. LEXIS 158 ( Ky. 1967 ).

There is no prohibition against a member of the board of commissioners being the fifth member of the electric plant board. Kereiakes v. Graham, 458 S.W.2d 162, 1970 Ky. LEXIS 164 ( Ky. 1970 ).

10.Valid Statutes.

A statute authorizing regular Circuit Court Judges to sit as special judges does not violate this section. James v. Cammack, 139 Ky. 223 , 129 S.W. 582, 1910 Ky. LEXIS 26 ( Ky. 1910 ).

KRS 70.150 to 70.170 do not violate the provisions of this section. Milliken v. Harrod, 275 Ky. 597 , 122 S.W.2d 148, 1938 Ky. LEXIS 471 ( Ky. 1938 ).

Provisions of act that required the approval of proposed surface drainage project by city and county legislative bodies of metropolitan sewer district was not unconstitutional under this section on ground that it had effect of permitting city and county officers to act as officers of sewer district in violation of prohibition of this section against one person holding offices in two (2) different municipalities, for city and county governing bodies only had power to determine whether a particular project should be undertaken and, once it was undertaken, district had sole authority to carry it out. Curtis v. Louisville & Jefferson County Metropolitan Sewer Dist., 311 S.W.2d 378, 1958 Ky. LEXIS 185 ( Ky. 1958 ).

11.Invalid Statutes.

Acts 1948, ch. 180 amendment to KRS 76.060 , charging the city attorney of a first-class city with the duty of handling all legal matters pertaining to the metropolitan sewer district, if established, of his particular county was unconstitutional because it was in contravention of this section. Rash v. Louisville & Jefferson County Metropolitan Sewer Dist., 309 Ky. 442 , 217 S.W.2d 232, 1949 Ky. LEXIS 670 ( Ky. 1949 ).

12.Hospital Board Member.

A member of the hospital board was not a city or county officer or employee thereof within the meanings of KRS 61.080 , KRS 160.180(1)(d), or this section of the Kentucky Constitution. Commonwealth ex rel. Hancock v. Bowling, 562 S.W.2d 310, 1978 Ky. LEXIS 323 ( Ky. 1978 ).

Cited:

Kirkpatrick v. Brownfield, 97 Ky. 558 , 31 S.W. 137, 17 Ky. L. Rptr. 376 , 1895 Ky. LEXIS 222 ( Ky. 1895 ); Keating v. Covington, 35 S.W. 1026, 18 Ky. L. Rptr. 245 (1896); Covington v. District of Highlands, 113 Ky. 612 , 68 S.W. 669, 24 Ky. L. Rptr. 433 , 1902 Ky. LEXIS 89 ( Ky. 1902 ); Lowry v. Lexington, 113 Ky. 763 , 68 S.W. 1109, 24 Ky. L. Rptr. 516 , 1902 Ky. LEXIS 107 ( Ky. 1902 ); Morris v. Randall, 129 Ky. 720 , 112 S.W. 856, 1908 Ky. LEXIS 214 ( Ky. 1908 ); Kerr v. Louisville, 271 Ky. 335 , 111 S.W.2d 1046, 1937 Ky. LEXIS 241 ( Ky. 1937 ); Knuckles v. Board of Education, 272 Ky. 431 , 114 S.W.2d 511, 1938 Ky. LEXIS 138 ( Ky. 1938 ); Bard v. Board of Drainage Comm'rs, 274 Ky. 491 , 118 S.W.2d 1013, 1938 Ky. LEXIS 292 ( Ky. 1938 ); Kennedy v. Cook, 285 Ky. 9 , 146 S.W.2d 56, 1940 Ky. LEXIS 594 ( Ky. 1940 ); Somerset v. Caylor, 241 S.W.2d 990, 1951 Ky. LEXIS 1033 ( Ky. 1951 ); Lemon v. Fiscal Court of Casey County, 291 S.W.2d 572, 1956 Ky. LEXIS 396 ( Ky. 1956 ); Hancock v. Queenan, 294 S.W.2d 92, 1956 Ky. LEXIS 117 ( Ky. 1956 ); Commonwealth ex rel. Breckinridge v. Winstead, 430 S.W.2d 647, 1968 Ky. LEXIS 407 ( Ky. 1968 ).

Opinions of Attorney General.

The position of probation and parole officer in the State Department of Welfare must be considered a state office or deputy state office which would make it incompatible with the office of mayor, which is a municipal office. OAG 60-57 .

There are no statutory or constitutional prohibitions against a person holding a county office and state employment at the same time, but they may be incompatible under the common law. OAG 60-106 .

There is no constitutional or statutory incompatibility in a person’s holding two (2) county offices. OAG 60-337 .

Although there is no statutory or constitutional prohibition against a person holding a municipal office and state employment at the same time, there is the possibility that there may be a common-law incompatibility where it is physically impossible to perform the duties of both positions with care and ability. OAG 60-443 .

The fact that the two (2) offices are incompatible would not prevent the present sheriff from becoming a candidate for state representative. OAG 60-455 .

The offices of sheriff and state representative are incompatible. OAG 60-455 .

Membership on the McLean County board of education is not incompatible with the position of teacher of vocational agriculture in Muhlenberg County. OAG 60-901 .

Although the positions of county director of pupil personnel and city director of pupil personnel are not incompatible as such, they are incompatible in fact because KRS 159.140(1) requires that a director of pupil personnel must devote his entire time to his duties, which he could not do if he held such positions. OAG 60-1027 .

This section does not prohibit the concurrent holding of the positions of Commonwealth Attorney and membership on a social service advisory committee. OAG 60-1060 .

There would be no violation of this section where city officeholders are made ex officio members of a city commission by statute. OAG 60-1228 .

Since a magistrate is a county officer and a teacher is a state employee, there is not constitutional, statutory, common-law or functional incompatibility between the two (2) offices. OAG 60-1245 .

Membership on a board of education is incompatible with the office of magistrate. OAG 61-212 .

There is no statutory or constitutional incompatibility between the position of teacher and the office of county commissioner, but there may be a common-law incompatibility. OAG 61-292 .

There is no incompatibility between the office of magistrate and driving a school bus for the county board of education under this section or KRS 61.080(1), but there may be a common-law incompatibility. OAG 61-390 .

The offices of treasurer of the school board and city clerk are incompatible. OAG 61-823 .

The secretary and treasurer of the city board of education and the treasurer of the county board of education were disqualified from serving on the electric plant board. OAG 61-846 .

A member of a board of education vacates his office on said board of education when he qualifies and assumes the office of deputy sheriff. OAG 61-942 .

There is no constitutional or statutory provision which would prohibit a person from serving as a public officer in the state of Ohio and occupying the position of magistrate in this state, since this section and KRS 61.080 apply only to the holding of two (2) incompatible offices in this state. OAG 61-948 .

The law prohibits a person from being a state representative and at the same time a deputy sheriff of a county. OAG 61-1001 .

One would be prohibited from serving on the county board of health and on the county board of education at the same time, since the two (2) offices are incompatible. OAG 62-617 .

Serving at the same time in the office of magistrate and as a member of the board of supervisors would be detrimental to the public interest in that the board of supervisors executes a quasi-judicial function in the review of protested tax assessments. OAG 62-636 .

There is no statutory or constitutional incompatibility in membership on a city-county board of health and membership on the city board of alderman. OAG 62-684 .

There is no constitutional or statutory prohibition against persons holding the office of county attorney and county treasurer and at the same time serving as a member of the county building commission. OAG 62-1169 .

A common-law incompatibility would exist between the office of county treasurer and the office of county auditor. OAG 63-32 .

It is legal for a soil conservation district to employ a person as an aide although such person was also a member of the fiscal court which levied a tax for the benefit of the district. OAG 63-87 .

The office of magistrate and membership on the county registration and purgation board are incompatible. OAG 63-130 .

There is no constitutional or statutory incompatibility between serving as the civil defense director of a county and being a city councilman at the same time. OAG 63-273 .

The police judge of a city could not be appointed to a state office or a deputy state office without creating an incompatible situation under this section and KRS 61.080 , since no person can hold a city office and a state office at the same time. OAG 63-625 .

The provisions of this section and KRS 61.080 do not prohibit a person from holding a city office and state employment at the same time providing there is no common-law incompatibility. OAG 63-625 .

Actions taken as a school board member after filing for nomination for the office of sheriff and thus disqualifying himself would be valid until the school board member resigned or was removed from office. OAG 65-211 .

A member of the school board who files for nomination for the office of sheriff disqualifies himself from serving on the school board. OAG 65-211 .

One city could not contract with another city for the furnishing of police services, since it would involve the policemen holding incompatible offices in the two (2) cities. OAG 65-718 .

The offices of county judge and master commissioner do not present incompatibility of office. OAG 65-816 .

The offices of constable and city policeman are incompatible. OAG 65-833 .

A constitutional incompatibility would exist between the position of chief of police and that of chief of the fire department. OAG 66-10 .

There is no incompatibility between holding the office of magistrate and at the same time serving as county Democratic chairman. OAG 66-11 .

There is no constitutional or statutory incompatibility between membership on the county fiscal court and membership on the county board of health. OAG 66-87 .

Although no statutory or constitutional incompatibility exists, the office of county commissioner and employment in the county road department would be incompatible under the common law. OAG 66-110 .

The fiscal court could appoint, as the county dog warden, a deputy sheriff who is presently serving in this capacity without there existing an incompatible situation. OAG 66-398 .

No constitutional or statutory incompatibility exists between membership on the school board and membership on the municipal housing commission. OAG 66-673 .

The offices of deputy sheriff, county election commissioner, and jury commissioner are not incompatible under the terms of this section and KRS 61.080 , but there is a possibility of common-law incompatibility between the offices of deputy sheriff and jury commissioner. OAG 66-741 .

The office of treasurer of the county board of education and the office or employment of county finance officer are incompatible. OAG 66-754 .

A county treasurer cannot be appointed deputy county tax commissioner and serve in both capacities without creating an incompatible situation. OAG 66-759 .

A county treasurer may not simultaneously serve also as school (county) treasurer of the board of education. OAG 67-5 .

There is no constitutional or statutory incompatibility in the holding of the office of county judge and commissioner of a water district at the same time, although there would be a common-law incompatibility. OAG 67-68 .

The position of housing inspector of a city is incompatible with the office of state representative. OAG 67-81 .

Employment as director of pupil personnel for a district board of education is not incompatible with the position of member on the board of trustees of a public library district. OAG 67-83 .

The office of trustee of the library board and at the same time being a member of city council creates an incompatible situation. OAG 67-104 .

There is no incompatibility for a member of a city council to serve as campaign manager for a candidate for state office. OAG 67-121 .

The holding of the position of public schoolteacher and the position of member of the board of county commissioners, at the same time, is not constitutionally nor statutorily incompatible. OAG 67-163 .

There is no incompatibility in the holding of the offices of member of the board of education of an independent school district and stenographic reporter for a judicial district. OAG 67-177 .

The offices of member of a city independent board of education and member of the county library board are incompatible. OAG 67-186 .

The offices of member of the county board of education and member of the county library board of trustees are incompatible. OAG 67-186 .

To be a member of a library district board and a member of a city library board at the same time creates an incompatible situation. OAG 67-458 .

The office of city council member and radio operator for the city police department at the same time creates an incompatible situation. OAG 67-469 .

The office of city attorney and that of state senator are incompatible. OAG 67-517 .

A person may hold the office of Circuit Court clerk and at the same time hold the office of probation and parole officer. OAG 67-542 .

No incompatibility exists where the Commonwealth Attorney is also the master commissioner of a Circuit Court. OAG 67-542 .

A city commissioner may, at the same time, be appointed and hold the office of supervisory head of the Department of Public Safety (now Justice Cabinet), but may not hold the office of commissioner of Public Safety (now Secretary of Justice). OAG 67-554 .

To serve in the office of a city commissioner and at the same time to be a member of the auxiliary police force creates an incompatible situation. OAG 67-554 .

Membership on the board of regents of a state university is a state office and the commissioner of the Department of Banking and Securities (now Department of Financial Institutions) also is a state office. OAG 67-557 .

There is no prohibition against a person being a member of the county board of education and at the same time holding a position with the Commonwealth. OAG 68-21 .

A member of the council on public higher education must resign his position at the time he becomes a member of the Louisville board of aldermen. OAG 68-22 .

The position of assistant commissioner of insurance and that of city councilman are compatible. OAG 68-30 .

A night watchman with the state may hold the office of justice of the peace. OAG 68-33 .

The office of Commonwealth’s Attorney and that of referee of the Workmen’s Compensation Board are not incompatible. OAG 68-56 .

Although there is no constitutional or statutory incompatibility between the office of county judge and county treasurer, there is incompatibility in fact or under common law between the two (2) offices, since the office of county treasurer is subordinate to the office of county judge. OAG 68-80 .

There is no statutory or constitutional incompatibility against a person holding the position of secretary to the superintendent of the district board of education and at the same time holding the position of secretary-bookkeeper for the head start program of that school district. OAG 68-200 .

The office of county school board member is incompatible with employment as county road supervisor. OAG 68-210 .

Because of the incompatibility involved, the employment and compensation of an assistant Commonwealth’s Attorney in connection with his furnishing legal advice in criminal matters to the city would not be legal. OAG 68-290 .

A county attorney could be employed to represent a city within the county in annexation proceedings so long as he was not hired as city attorney on a full-time basis. OAG 68-400 .

A person who is the Commonwealth’s Attorney may at the same time be employed on a part-time basis by the Board of Veterinary Examiners. OAG 68-447 .

There is no statutory or constitutional incompatibility between the position of member of the board of trustees of a public library district and the position of head officer of a state university community college. OAG 68-568 .

A schoolteacher may at the same time legally serve as an election officer. OAG 68-601 .

There is no constitutional or statutory prohibition against a schoolteacher holding the office of magistrate, but a common-law incompatibility would exist. OAG 68-607 .

A vacancy on a county purgation board may be filled by appointing an employee of the Commonwealth, since the membership on the county purgation board constitutes a state office. OAG 69-11 .

Membership on a municipal housing commission is a state office and, as such, thee would be no constitutional or statutory incompatibility involved in also holding at the same time membership on the commission on higher education. OAG 69-15 .

The office of county clerk is incompatible with membership on the commission on higher education. OAG 69-15 .

While membership on the council on public higher education, established pursuant to KRS 164.010 , would constitute the holding of a state office, membership on a consolidated planning and zoning commission is neither a city, county nor a state office as contemplated by either this section or KRS 61.080 , so that no constitutional or statutory incompatibility exists that would prohibit a person from holding both offices at the same time. OAG 69-19 .

If a state employee was under the merit system, he would be prohibited from becoming a candidate for any paid political office, but no such restriction would pertain to a nonmerit system employee. OAG 69-89 .

An employee of the school system may seek and hold the office of county commissioner. OAG 69-94 .

There are no constitutional or statutory provisions that make the position of highway employee and the position of member on the county registration and purgation board incompatible. OAG 69-136 .

A member of a state university faculty and staff may at the same time hold the office of county commissioner. OAG 69-147 .

A schoolteacher may, at the same time, hold the office of property valuation administrator. OAG 69-158 .

The auditor of public accounts may, at the same time, be a stockholder or director in private businesses and charitable organizations. OAG 69-164 .

There is no incompatibility between the office of state auditor and membership on the local air board. OAG 69-164 .

An employee of a county road department may, at the same time, hold the office of county constable. OAG 69-186 .

Since the office of hearing officer or examiner for the Workers’ Compensation Board is a state office and the office of county judge pro tem is a county office, they are incompatible one with the other. OAG 69-364 .

A person serving a city municipal water and sewer commission as their attorney for the past four years pursuant to a contract based on a monthly retainer may at the same time serve as county attorney. OAG 69-420 .

The holding of the office of county judge and the holding of the office of property valuation administrator at the same time would present a statutory and constitutional incompatibility. OAG 69-432 .

There is no incompatibility to prevent a schoolteacher or principal from serving on the county commission. OAG 69-448 .

The holding of the offices of county attorney and member of the Kentucky zoning commission at the same time would present a constitutional and statutory incompatibility. OAG 69-454 .

There is no constitutional or statutory provision prohibiting a member of the housing commission from being employed on a part-time basis by the commission. OAG 69-483 .

There is no constitutional or statutory provision that prohibits a teacher in the public schools from running for the nomination of city commissioner and serving as such if elected. OAG 69-485 .

A department head at a state university not only may become a candidate for the office of city commissioner but also may serve as such. OAG 69-486 .

A member of the fiscal court may, at the same time, serve as master commissioner. OAG 69-491 .

A schoolteacher or principal of a school may at the same time serve on the city commission. OAG 69-519 .

This section does not prohibit the same person from holding more than one state office or form of employment at the same time unless the two (2) are incompatible in fact. OAG 69-536 .

An incompatibility would exist if an individual was the county treasurer and at the same time was a member of the county purgation board. OAG 69-556 .

A member of the volunteer fire department may at the same time be a member of the city council. OAG 69-558 .

The office of county chief of police and that of county election commissioner are not incompatible. OAG 69-565 .

As between the office of county judge and the position of school district transportation officer, there is no incompatibility. OAG 69-601 .

A field supervisor for the welfare department may at the same time be an election officer. OAG 69-608 .

A member of the police department in a city of the second class could neither become a candidate for membership on the local school board nor hold such office and retain his position on the city police force. OAG 69-634 .

A member of the State Legislature may represent the municipal water company in legal matters when the occasion arises because he would be considered an independent contractor. OAG 69-653 .

An individual may hold the position of special prosecutor in a city of the fifth class and at the same time hold the office of police judge in another city. OAG 69-685 .

A magistrate may at the same time be employed by the county board of education as a school bus driver. OAG 70-2 .

A county treasurer may at the same time hold the office of cashier of the food stamp program for such county. OAG 70-10 .

The director of pupil personnel for a county board of education may at the same time serve as deputy coroner of that same county. OAG 70-31 .

One holding the position of fire chief or fireman of a volunteer fire department may at the same time hold the office of mayor in that same city. OAG 70-32 .

A radio dispatcher for the police department not possessing the powers of a police officer, such as making arrests and serving warrants, may at the same time hold the office of pro tem judge of the police court. OAG 70-53 .

A city elementary school principal may at the same time hold the office of city councilman in a city of the fourth class. OAG 70-183 .

A member of the county planning and zoning commission may at the same time serve as police court judge pro tem of a city. OAG 70-186 .

Nothing statutorily nor constitutionally prohibits a member of the municipal housing commission from serving at the same time on the State Board of Elections. OAG 70-315 .

No incompatibility would exist were a person to serve as coroner and election officer at the same time. OAG 70-325 .

A member of the county registration and purgation board is a state officer and consequently a county employee is prohibited by the provisions of this section from serving as a member of purgation board. OAG 70-326 .

An individual can legally serve on the city-county youth commission and at the same time run for and hold membership on the local school board. OAG 70-391 .

The position of secretary-treasurer of the Louisville sinking fund, a municipal office, and membership of the Kentucky authority for educational television, a state office, are incompatible. OAG 70-409 .

The position of dog warden and county patrolman are county offices and there would be no constitutional or statutory provision that would prohibit a person from holding both offices at the same time. OAG 70-431 .

Any county official, except a member of the fiscal court, may be appointed to the joint riverport authority and no statutory or constitutional incompatibility would exist. OAG 70-432 .

A member of the municipal housing commission can, at the same time, serve as a member of the local school board. OAG 70-444 .

A school board member could not be hired by the county judge to operate, manage or drive a county ambulance. OAG 70-478 .

No constitutional or statutory incompatibility exists between holding the offices of both dog warden and county constable. OAG 70-492 .

A person can become a candidate for school board membership and at the same time continue to serve on the city commission. OAG 70-558 .

Accepting a commission as a Kentucky colonel while holding a state or local office would not create an incompatible situation. OAG 70-607 .

No incompatibility would exist if a notary public were to hold another public office. OAG 70-607 .

A person may not serve on a county board of health and on the board of education at the same time without forfeiting the first office he held. OAG 70-632 .

The positions of police judge and policeman would be incompatible. OAG 70-652 .

An individual may not at the same time hold the office of school board member and hold employment with a city. OAG 70-663 .

There is no constitutional or statutory provision that would prohibit a member of the county board of education from being appointed as a director or member of a water district. OAG 70-723 .

Membership on a joint recreational commission established pursuant to KRS 97.035 would constitute neither a city nor county office but would be a hybrid office not contemplated by either this section or KRS 61.080 . OAG 70-731 .

There would be no constitutional or statutory provision that would prohibit one from serving as city attorney and at the same time serving on a joint recreational commission. OAG 70-731 .

There appears to be no constitutional or statutory incompatibility nor any conflict with merit system law in the holding of the office of board member in an independent school district and a position of employment with the Department of Corrections (now Corrections Cabinet). OAG 70-811 .

There is no statutory or constitutional incompatibility between being a member of the city council and holding a position with the state as a car inspector. OAG 71-56 .

There is no statutory or constitutional incompatibility between being a school principal and serving on the city council. OAG 71-56 .

There is no statutory or constitutional incompatibility between serving as mayor of a city and holding a position as county road foreman with the State Department of Highways. OAG 71-56 .

Although a fifth-class and a sixth-class city could not hire the same policemen, under the interlocal cooperation act they could form a joint system of police protection. OAG 71-85 .

There is no constitutional or statutory incompatibility between holding a position of schoolteacher and holding the office of police judge at the same time. OAG 71-108 .

The offices of city treasurer and county soil and water conservation district supervisor under subsection (2) of KRS 262.200 are not incompatible. OAG 71-230 .

No person can serve as a policeman for two (2) different cities at the same time without creating an incompatible situation. OAG 71-236 .

There is no statutory prohibition against a person serving as county judge and at the same time being employed by the county board of education and the county clerk’s office. OAG 71-247 .

There would be no incompatibility between a principal and director of pupil personnel, which is a form of state employment, serving on a municipal civil service commission. OAG 71-305 .

There would be no constitutional or statutory incompatibility to prevent a city policewoman from being hired by the county fiscal court to search female prisoners. OAG 71-306 .

A city clerk-treasurer could not be appointed to serve as police judge pro tem in the absence of the regular police judge because it would constitute holding two (2) municipal offices. OAG 71-343 .

There is no constitutional or statutory objection to an employee of the city water and sewer department also serving as a part-time police officer for the city. OAG 71-343 .

Although there is no statutory or constitutional incompatibility between serving as police court judge and in the appointed position of railroad policeman, a common-law incompatibility may exist. OAG 71-427 .

No constitutional or statutory incompatibility exists between the positions of the paying public office of city commissioner and a paying professorship at Western Kentucky University. OAG 71-443 .

There is no constitutional or statutory conflict to prevent a state representative, as a major stockholder or an agent for a corporation which runs a rest home, to operate that rest home and accept indigent patients under contract from the county fiscal court. OAG 71-463 .

This section does not prohibit the mayor of a city from being a member of a city-county hospital board. OAG 72-18 .

There is no violation of this section where the mayor of a city is also an employee of the Commonwealth of Kentucky. OAG 72-350 .

There is no violation of this section where a county jailer also serves as the county dog warden. OAG 72-351 .

Persons who serve as members of the fish and wildlife resources commission may not also serve in any state, county, city, town, municipal, or federal office. OAG 72-354 .

There is no violation of this section where a city policeman is employed in his off-duty hours as a special local peace officer. OAG 72-391 .

This section would not prevent a deputy sheriff or a deputy county clerk from serving as an election officer. OAG 72-403 .

There is no incompatibility between the office of city councilman and employment by the housing commission. OAG 72-467 .

This section would not prohibit the appointment of a member of the board of levee commissioners to the Hickman-Fulton County Riverport Authority as both entities constitute an independent body politic and corporate entity. OAG 72-518 .

There would be no incompatibility if a member of the municipal housing authority were appointed housing inspector by the urban renewal agency. OAG 72-589 .

A person could not at the same time serve on the city’s park and recreation board and be a member of the local board of education. OAG 72-618 .

There is no violation of this section where a member of a city board of aldermen is a part-time paid faculty member of the University of Louisville. OAG 72-654 .

A member of the city council could not serve at the same time as a member of the board of electrical control. OAG 72-690 .

A city attorney may not also serve as a hearing officer for the Workers’ Compensation Board. OAG 72-698 .

A member of the fiscal court may be appointed to serve on a joint city-county planning commission. OAG 72-704 .

A county property valuation administrator may not act as tax assessor for a city within the county in which he was elected. OAG 72-736 .

A person may hold the office of mayor while at the same time holding a job under a federally financed school program. OAG 72-796 .

A position with the state game and fish commission would be incompatible with a position on a city civil service commission. OAG 72-808 .

The position of city judge pro tem is incompatible with membership on a city civil service commission. OAG 72-808 .

The positions of county coroner and membership on the Kentucky State Board of Chiropractic Examiners are incompatible. OAG 72-839 .

Although a school board employee is a state employee, he is not under the merit system as established by KRS chapter 18 (repealed), and neither this section nor KRS 61.080 , which define incompatible offices, forbid a school board employee from serving as a city councilman. OAG 73-144 .

There is no constitutional provision under this section or statutory provision under KRS 61.080 prohibiting a person from holding a county office and county employment at the same time and any possible common law conflict of interest where the person could not perform the duties of both offices at the same time with care and ability would be a question of fact for the courts to decide. OAG 73-166 .

There is no apparent common law conflict when a magistrate drives a school bus and, as driving a school bus is state employment, and a magistrate is a county officer, there is no constitutional or statutory conflict. OAG 73-212 .

A member of the fish and wildlife commission holds a state office, and may not hold the office of deputy sheriff at the same time. OAG 73-224 .

If a superintendent of parks has been made a state park ranger as authorized by KRS 148.056 , he would become a minor state officer, and would thus be ineligible to continue with the office of deputy sheriff. OAG 73-224 .

This section of the Constitution and KRS 61.080 prohibit a person from holding two (2) municipal offices at the same time, but not a municipal office and city employment, and therefore anyone can serve a city as a judge while also being employed in a nonelective capacity for which a salary is paid by the same city. OAG 73-256 .

As an auxiliary policeman is a municipal officer and a judge pro tem of the city police court is also a municipal officer, and this section and KRS 61.080 prohibit a person from holding two (2) municipal offices at the same time, a person who is an auxiliary police officer could not serve as judge pro tem of the police court at the same time. OAG 73-274 .

A policeman of a city of the fifth class, who is on a monthly salary, could continue to hold his position until he assumes the office of sheriff insofar as KRS 61.080 and this section are concerned. OAG 73-346 .

There is no constitutional or statutory provision prohibiting a person from holding a city office and state employment at the same time. OAG 73-440 .

A Commonwealth detective would be considered a state officer, and such office is not compatible with position of auxiliary or reserve policeman of a city. OAG 73-468 .

Although this section and KRS 61.080 prohibit a person from holding two (2) municipal offices at the same time, the term municipal office must be distinguished from municipal employment and where a chief of police of a city is also employed as manager of the city’s sanitation and street department, two (2) municipal offices are not involved (affirming OAG 38-504 and OAG 71-343 ). OAG 73-556 .

It would appear that a common law incompatibility would exist if a person were to serve as magistrate and at the same time serve as assistant doorkeeper during the legislative session, because the office of magistrate requires that he be accessible at all times to those who need warrants issued and who desire to bring civil suits in the magisterial district which he serves. OAG 73-661 .

Where a county and a city through a joint operation create a garbage and refuse disposal district and the board of directors is composed of four (4) members of which one is the mayor of the city and another is a member of the city council, there is no incompatibility as to these two (2) board members because the two (2) municipal officers are not county officers in the strict sense. OAG 73-667 .

While both KRS 61.080 and this section prohibit a person from holding two (2) municipal offices at the same time, there would be no incompatibility if a member of the town council served as a member of the board of trustees of a fire prevention district, since the fire prevention district is not equivalent to a municipality but is merely a separate taxing district under KRS 75.040 . OAG 73-711 .

As the office of county attorney is a county office under the Constitution and the office of master commissioner has been held to be an office of the court and therefore neither a state nor county office, there would be no statutory or constitutional incompatibility were a person to serve in both capacities. OAG 73-783 .

An incompatibility exists where a person is a member of the General Assembly and also holds the office of city attorney. OAG 73-851 .

A person serving in the house of representatives is a member of the General Assembly and a state officer and since the office of city attorney is a city office, an incompatibility would exist. OAG 73-851 .

The office of vice-chairman of the State Athletic Commission, a state office, is incompatible with the position of assistant director of buildings and maintenance for Jefferson County which is a county office. OAG 74-4 .

The office of state parole officer and the office of part-time alcoholic beverage control agent for the city of Louisville on Sunday are incompatible, one being a state office, the other being a municipal office. OAG 74-24 .

A member of the city council may serve concurrently as the city alcoholic beverage commissioner if such duties are assigned by the city council to one of the council members, as provided by KRS 241.160 , but if the office of alcoholic beverage commissioner is created by ordinance, the office is a municipal office and this section and KRS 61.080 prohibit a person from holding two (2) municipal offices at the same time. OAG 74-82 .

While a member of the county board of elections and a county judge pro tem are both county officers, there is no provision that would prevent a person from holding both of these offices at the same time, KRS 61.080 setting out the county offices that may not be held at the same time. OAG 74-91 .

As it appears from KRS 179.020 and 179.060 that the county engineer is not a county officer and neither this section nor KRS 61.080 prohibit a person from holding a form of county employment and a city office or city employment at the same time, there is no incompatibility nor conflict of interest with respect to the city hiring as city engineer the person who is presently serving as county engineer. OAG 74-92 .

If a library was created under KRS 173.310 or KRS 173.450 , it would come within the term “other municipality” of this section, a member of the board of trustees would be a municipal officer, and, under KRS 61.260 , there would be a conflict of interest if a law firm accepted employment from the library board where a member of the law firm was a member of the library board of trustees when the contract was made and such member might receive benefit as a result of the contract. OAG 74-95 .

Although KRS 26.270 (repealed) provided that the city legislative body of a city of the sixth class shall provide by ordinance who shall act in the place of the police judge, the city legislative body cannot designate a councilman to act in the place of the police judge since both a city councilman and a city police judge are municipal officers and both KRS 61.080(4) and this section of the Constitution state that no person shall, at the same time, fill two (2) municipal offices, either in the same or different municipalities. OAG 74-124 .

Although this section of the Constitution and KRS 61.080 state that no person shall at the same time fill two (2) municipal offices, either in the same or different municipalities, there are no legal prohibitions against one person holding the position of police chief and the position of city manager at the same time since a police chief is a city officer and according to KRS 89.560 (repealed) a city manager is an employee of the city rather than a city officer. OAG 74-125 .

Where a man was a city fireman and served the county as a member of a volunteer fire department, disassociated from the city or county, no incompatibilities arose under this section by his holding the office of constable of the county. OAG 74-240 .

An off-duty fireman employed to act as an auxiliary policeman to control traffic and a public works street sweeper employee employed as an auxiliary policeman to issue parking tickets to cars unlawfully blocking his path are simply holding a position of employment and an office at the same time which is not incompatible under this section or KRS 61.080(4). OAG 74-543 .

A member of a town board of trustees can be legally assigned the duties of the office of alcoholic beverage control administrator under authority of KRS 241.160 as the board member would not be holding another municipal office in violation of this section and KRS 61.080 . OAG 74-576 .

Neither the sheriff nor one of his deputies may serve as the nonsalaried county police chief as the police chief should only be answerable to the county court and while KRS 61.080 and this section do not prohibit such appointments, a practical incompatibility could arise in the serving in two (2) capacities. OAG 74-581 .

An unclassified employee of a state university is eligible to run for and serve on a county school board as there is no general prohibition against holding a state office and state employment at the same time. OAG 74-646 .

The treasurer of a county school board is considered a state officer and may not at the same time serve as commissioner of a municipal public utility which office in all probability constitutes a municipal office and, even if not, constitutes municipal employment. OAG 74-707 .

Although no constitutional or statutory conflict of interest or incompatibility exists between the office of county commissioner and that of administrative head of a department of county government, since the latter office would be under the supervision of the county commissioners and since the two (2) positions possibly could not be performed at the same time with the requisite care and ability there would appear to exist a common law incompatibility. OAG 74-737 .

A conflict of interest or incompatibility between offices comes into existence at the time the second office is assumed, not when the holder of the first office becomes a candidate for the second. OAG 74-737 .

No incompatibility exists between the positions of public school teacher and employee of the state racing commission where neither the days nor hours of work required by both conflict. OAG 74-792 .

An urban renewal agency established pursuant to KRS 99.360 is not a state, city or county agency in the sense referred to in this section and KRS 61.080 relating to compatible offices. OAG 74-879 .

The office of an auxiliary police officer of a third-class city created under KRS 95.445 is incompatible with the office of deputy sheriff, a county office, and a conservation officer, a state office under KRS 150.090 . OAG 74-909 .

The office of master commissioner is not an office within the meaning of this section or KRS 61.080 and is not, therefore, incompatible with the office of county attorney unless a common law incompatibility arises. OAG 75-57 .

Since a city-county airport board is an independent corporate entity, not a city or county agency, membership on such board is not an office contemplated by this section or KRS 61.080 and is not incompatible with the office of Commonwealth’s Attorney. OAG 75-72 .

A person may not be a school board member and hold a position on the planning and zoning commission at the same time under this section and KRS 160.180 , but until he either resigns or is ousted by the judgment of the court, he is a de facto officer in both agencies and his actions as such are valid. OAG 75-123 .

This section does not prohibit a city prosecutor from serving on a county park board at the same time although KRS 61.080(3) would so prohibit. OAG 75-138 .

A member of the Louisville police department may not hold a position as a city trustee in a 6th class city while serving as a police officer. OAG 75-246 .

Since the office of master commissioner is an office of the court, it is not incompatible with the office of magistrate under this section or KRS 61.080 , although a common law conflict might arise if the duties of both offices could not be performed by the same incumbent with care and ability. OAG 75-255 .

Although the offices of common councilman in a city of the third class and Circuit Court clerk are incompatible in view of KRS 61.080 , there is no constitutional or statutory provision which would prohibit a council member from becoming a candidate for circuit clerk since the incompatibility would not exist, in view of KRS 61.090 , until the council member assumes the office of circuit clerk. OAG 75-292 .

No statutory or constitutional conflict of interest or incompatibility exists where a member of the county board of education serves at the same time on the Cumberland River Mental Health-Mental Retardation Board, Inc., a private nonprofit corporation. OAG 75-337 .

A person appointed director of pupil personnel, a state office created by KRS 159.080 , could not at the same time serve as magistrate or justice of the peace, a county office, as the two (2) are incompatible under this section and KRS 61.080 . OAG 75-414 .

Since service on the planning and zoning commission by an officer of a political party would not constitute a contract or involve a pecuniary interest, no conflict of interest would exist under KRS 100.133 and as the position of county chairman of either political party is not a constitutional or statutory office, there would be no incompatibility pursuant to this section and KRS 61.080 . OAG 75-436 .

As the position of magistrate is a county office and a property valuation administrator is a state officer, there would be no conflict. OAG 75-526 .

A city councilman appointed as chief of police pursuant to KRS 95.720 (repealed) is holding two (2) incompatible offices under this section and KRS 61.080 , but where the councilman is merely appointed as police commissioner to oversee the police department there is no incompatibility. OAG 75-564 .

Since the offices of employee of the state highway commission and election officer or member of the board of elections are not incompatible under this section or KRS 61.080 and since the State Merit System Act has no provision prohibiting a state employee from serving in either capacity, an employee of the highway commission may legally do so. OAG 75-565 .

Under this section and KRS 61.080 the office of city fire chief is not incompatible with employment by the greater Cincinnati’s Airport fire department. OAG 75-568 .

Serving as a member of the environmental quality commission at the same time as being employed for compensation by an interlocal planning and development agency is not a situation of incompatible offices. OAG 75-674 .

Since the position of chief deputy commissioner of the Department of Insurance is a state office pursuant to KRS 304.2-060 and 304.2-090 , and being a member of a public library district board constitutes holding a municipal office, the offices are incompatible under this section and KRS 61.080 . OAG 75-696 .

Since the office of master commissioner does not constitute a state, city or county office, but merely an office of the court, no incompatibility would exist between the office of school board member and the position of master commissioner for the Circuit Court. OAG 75-700 and 75-715.

Although the office of school board member and that of master commissioner of the Circuit Court are compatible offices, there could exist a common law conflict. OAG 75-715 .

Since the position of superintendent of city waterworks is merely a form of employment and not a municipal office, it is not incompatible with the office of police judge pro tem. OAG 76-34 .

The offices of city clerk and tax assessor, both municipal offices, may not be filled by one person at the same time. OAG 76-90 .

The positions of deputy sheriff and that of a precinct judge are not incompatible insofar as KRS 61.080 and this section are concerned as a deputy sheriff is a county officer and election officers would appear to be local or county officers. OAG 76-91 .

A person may, at the same time, hold the municipal office of judge pro tem and a position of municipal employment as a management planning administrator provided that the two (2) positions can be performed with care and ability. OAG 76-134 .

A person is not prohibited from being a member of the county police merit board and, at the same time, a member of the county board of tax supervisors, if the situation does not involve a common-law incompatibility. OAG 76-195 .

Since the position of electric plant superintendent is nothing more than a form of employment, a person could serve at the same time as city manager and as plant superintendent of the electric plant board. OAG 76-211 .

Since there is no prohibition against a person holding two (2) positions of municipal employment at the same time, or a municipal office and municipal employment, a person could serve as the administrative officer of a city planning commission and at the same time serve as city manager of the city. OAG 76-212 .

Although there would be no constitutional or statutory provision prohibiting a person from holding the office of magistrate, a county office, and at the same time serving on the county school board staff, which would constitute a form of State employment, there could be a common-law incompatibility since a magistrate must be accessible at all times to persons desiring to serve warrants and to those desiring to bring civil actions. OAG 76-216 .

There is no statutory or constitutional incompatibility or conflict of interest between membership on a county school board and employment as a full-time mental health worker for a nonprofit corporation which administers a community mental health program. OAG 76-227 .

Since a city-county air board is a separate political entity from the creating agency, a member of the city council could be appointed to the air board by the mayor. OAG 76-257 .

There is no constitutional or statutory incompatibility between the positions of hearing officer for the Workers’ Compensation Board, special commissioner for the Circuit Court, or assistant public defender for the quarterly court. OAG 76-281 .

An attorney’s part-time prosecutorial position with the Commonwealth Attorney’s office would not be incompatible with the attorney’s connection with the State as an independent contractor under a personal service contract. OAG 76-334 .

In a sixth class city, the fact that the police judge is the father of the deputy marshal, who presents evidence in the city police court against an alleged violator of a city ordinance or State law, would not create a conflict of interest. OAG 76-345 .

There is no constitutional or statutory incompatibility between the position of secretary of the county police merit board and a position as a data processing contract accountant in the county clerk’s office. OAG 76-346 .

A person cannot serve as chairman of the State Athletic Commission, a state office, and at the same time enter into a personal service contract for management services with the county court clerk since the person under such contract would in reality be serving as a deputy county clerk and thus would be holding a county office. OAG 76-352 .

The mayor of the city of Glasgow can at the same time legally serve as principal of the local school. OAG 76-402 .

There is no statutory, constitutional or common-law incompatibility in a person serving as a deputy county coroner and as an emergency medical technician. OAG 76-429 .

Since a member of the board of supervisors of a conservation district is a local, subdivisional officer and may receive per diem and expenses, a state officer could not hold such a position although a state employee other than an officer could hold such a position without violating this section. OAG 76-430 .

A person cannot serve as a member of the school board and at the same time hold the position of city manager of a city without violating KRS 61.080 and this section since these sections prohibit a state officer from holding a municipal office or employment. OAG 76-433 .

A person who holds the position of director of the city’s recreation program could not continue to serve as such and at the same time serve as a member of the local board of education. OAG 76-434 .

Since the Economic Development Council is an agency of the city, county and chamber of commerce and the administrator serves all three entities, the position of assistant administrator is of a so-called hybrid nature, that is, neither a city nor county position as contemplated in this section, KRS 61.080 and KRS 160.180(1)(d) and therefore no incompatibility would exist between the position of assistant administrator of the Economic Development Council and membership on a county school board. OAG 76-495 .

While under Const., § 113 a county judge or justice of the peace could be appointed as a trial commissioner of the district court under certain circumstances, this section and KRS 61.080 would prohibit a county judge or justice of the peace, as county officers, from being at the same time a trial commissioner of a district court. OAG 76-497 .

Inasmuch as the position of maintenance supervisor for a local board of education is a form of state employment, a person would not be prohibited from holding that position and also serving as a member of the county commission. OAG 76-533 .

A man may serve on both the Urban Renewal and Community Development Agency of Elsmere and the Kenton County and Municipal Planning and Zoning Commission and there would exist no incompatible situation under this section and KRS 61.080 since the individual in question would not be holding two (2) municipal offices or a municipal and a county office at the same time. OAG 76-562 .

Since there is nothing under the terms of this section and KRS 61.080 to prohibit a person from holding a state office and state employment at the same time, a person could hold the office of Commonwealth’s Attorney, a state office, and a teaching position at a state university, a form of state employment, at the same time. OAG 76-563 .

There is no statutory or constitutional provision that would prohibit a person from serving both as a member of the fiscal court and as a deputy coroner appointed pursuant to KRS 72.040 (repealed). OAG 76-642 .

An employee of an area development district would not be prohibited from becoming a candidate for and holding a county or city office and at the same time continuing his employment with the district. OAG 76-662 .

A person could not serve as the county coroner and as a member of the State Board of Funeral Directors and Embalmers at the same time. OAG 76-669 .

Membership on a county school board and the position of county director of civil defense are incompatible. OAG 76-687 .

A member of the city council of a fifth class city could at the same time serve in the nonpaying position of police surgeon. OAG 76-689 .

There would be no incompatibility between the position of staff attorney for a nonprofit legal aid corporation and that of state representative. OAG 76-737 .

There is no provision under this section or KRS 61.080 relating to incompatible offices that would prohibit a person from holding a position on a county board of education, which is a form of state employment, and serving on the fiscal court, which is a county office, nor is there any prohibition against a person serving as a member of a county board of education and as mayor of a fourth class city. OAG 77-8 .

An individual who is a member of an independent school board cannot at the same time serve as a member of a county board of health as these positions are incompatible. OAG 77-39 .

A member of the Board of Optometric Examiners who is running for the office of county commissioner could continue to serve on the Board up until he assumed the office of county commissioner without violating the prohibition against a state officer’s holding a county office at the same time. OAG 77-79 .

An assistant county attorney may, generally, represent the Special Fund as a contract attorney in proceedings before the Workers’ Compensation Board. OAG 77-113 .

A person who is the mayor of a fifth class city cannot at the same time hold the position of superintendent of county schools since the position of mayor is a municipal office and the position of superintendent is a state office and the fact that the mayor may not receive a salary is of no consequence in determining incompatibility. OAG 77-107 .

Where an assistant county attorney, who is required to defend the interests of the county before the Workers’ Compensation Board, is under contract with the Department of Labor (now Labor Cabinet) as a Special Fund attorney but could refuse any assignment to represent the interests of the Department (Cabinet) in workers’ compensation hearings, there would be no constitutional or common-law incompatibility because, while the assistant county attorney is an officer of a county, he is not a state officer or a deputy state officer but rather, since he is under contract with the State, an independent contractor performing services for the State. OAG 77-113 .

The position of assistant superintendent of schools, a state office, and the office of magistrate, a county office, are incompatible. OAG 77-129 .

The principal of an elementary school, a state employee, can become a candidate for the office of magistrate and if elected continue to retain his position as principal unless there would be some common-law conflict of interest where the individual could not perform the duties of both positions at the same time with care and ability or unless there is some local regulation promulgated by the county board of education prohibiting school employees from becoming candidates for public office without resigning or taking leave of absence. OAG 77-146 .

It would not be an incompatible situation for the husband of the county treasurer to be a candidate for the office of property valuation administrator. OAG 77-162 .

An employee of a state university would not be prohibited from becoming a candidate for the office of county magistrate. OAG 77-181 .

There is no statutory incompatibility in an individual holding the office of mayor of a third class city, a municipal office, while retaining a faculty position at a regional university, a form of state employment. OAG 77-204 .

Where a person was chairman of Urban Renewal and a member of the board of directors of the Housing Project, the fact that he held the positions mentioned would in no way affect his right to become a candidate for a public office in the primary and general election, but if elected to the city council, he would become disqualified from serving as a member of the housing commission pursuant to KRS 80.040 or on the urban renewal agency, if it is operated by the city, since KRS 61.080 and this section prohibit a person from holding two (2) municipal offices at the same time, although if the urban renewal agency was created as an independent agency under KRS Chapter 99 no incompatibility would exist. OAG 77-244 .

Members of county boards of education are state officers and at the same time the position of state ABC officer is one authorized pursuant to KRS 241.090 and such representatives have full police powers which may or may not place their position in the category of a state officer; and although subsection (1)(d) of KRS 160.180 prohibits a school board member from holding and discharging the duties of any local office or agency under the city or county of his residence, it would not prohibit a school board member from holding employment or an appointive office with the State. OAG 77-245 .

This section and KRS 61.080 do not prohibit a person from holding two (2) state offices or employments at the same time. OAG 77-245 .

Neither KRS 61.080 nor this section prevent a person from, at the same time, being a member of the board of an air pollution control district and a member of the board of a sewer construction district, neither of which is a state, city or county agency, and if the person involved is able to perform the functions of both positions with care and ability and with impartiality and honesty, no common-law incompatibility would exist. OAG 77-249 .

A university safety and security officer appointed and holding his position pursuant to KRS 164.950 to 164.980 is a state officer and as a state officer he is precluded by this section and KRS 61.080(1) from serving, at the same time, as either a city officer or a county officer. OAG 77-521 .

For the purposes of the conflict of interest provision, the office of county attorney, while involving both state and county functions, is a county office. OAG 77-779 .

The office of magistrate and state employee are not incompatible under this section. OAG 78-2 .

Membership on an area development board and a municipal housing commission is not incompatible in as much as both agencies are hybrid political entities and not a county or subdivision of a county, city, or town. OAG 78-47 .

Although this section and KRS 61.080 do not prohibit a person’s holding two (2) county offices at the same time, there could be a common-law incompatibility between them if it would be physically impossible to perform all duties of both offices with care and ability and with impartiality and honesty. OAG 78-59 .

The mayor of a fourth-class city could not serve at the same time as a member of the city’s utility commission. OAG 78-111 .

A riverport authority is an independent governmental agency which is not a state, county or city agency contemplated under this section. OAG 78-125 .

Since the riverport authority is an independent agency from that of the city, no incompatibility or conflict of interest would exist where a city commissioner served as a port manager. OAG 78-125 .

Nothing in this section prevents a person from serving at the same time as a county building inspector and a member of a county planning and zoning commission. OAG 78-137 .

There is no statutory or constitutional incompatibility between the office of county attorney-prosecutor and membership on a municipal housing commission. OAG 78-291 .

Assuming that hospital board members of a county hospital controlled by the fiscal court qualify as county officers, there is nothing in the Constitution and in the statutes that would prohibit the county attorney from holding the two (2) county offices at the same time. OAG 78-324 .

A person could not hold the office of deputy sheriff and membership on the city council at the same time since these two (2) offices are incompatible, one with the other, under this section and KRS 61.080 . OAG 78-361 .

If a postmaster is one of the fourth class, there would be no incompatibility between that position and membership on a city council, but if it is a federal office, there would be a prohibition under § 237 of the Kentucky Constitution which holds, in effect, that no person can serve at the same time as a federal officer and a State or local officer. OAG 78-361 .

Police officers are officers of the governmental entity in which they serve but under an interlocal agreement, for example, police officers involved in a cooperative undertaking between a city and a county or two (2) cities can avoid the prohibitions in KRS 61.080 and this section against being, at the same time, a county officer and a city officer or an officer in two (2) different cities. OAG 78-364 .

An incompatibility situation would exist where a named individual served at the same time on the environmental quality commission and as mayor of the City of Hazard. OAG 78-377 .

The holding of the two (2) State officer positions of superintendent of schools and member of a local school board does not by itself present a statutory or constitutional incompatibility, under KRS 61.080 and this section. OAG 78-413 .

Appointment of a legislator to membership on a tourist board would not constitute a violation of this section of the Constitution or KRS 61.080 . OAG 78-475 .

There is no statutory incompatibility of offices between the jobs of county road supervisor and deputy county judge/executive. OAG 78-581 .

There is no statutory incompatibility between the offices of assistant commissioners of the Kentucky High School Athletic Association and a county board of education. OAG 78-583 .

Since the transit authority of River City is neither a state, city or county entity, no incompatible situation would develop within the meaning of KRS 61.080 and this section were an officer of the Jefferson County Police Department (a county officer), or for that matter the Louisville Police Department (a city officer) employed part-time by TARC for the purposes indicated. OAG 78-618 .

This section and KRS 61.080 prohibit a State officer (county school board member) from holding a county office (deputy sheriff) at the same time since they are incompatible, one with the other. OAG 78-622 .

While nothing in the law prevents an incompatibility between the office of assistant city administrator and candidate for school board, both this section and KRS 61.080 prohibit one from holding a city position and at the same time serving as a school board member, which is a State office. OAG 78-631 .

Neither this section nor KRS 61.080 would prohibit the county attorney from also being deputy county judge/executive; however, since the county attorney is the legal advisor for the county and the fiscal court, this would constitute a common-law incompatibility, and in such situation the county attorney could not honestly, impartially and objectively carry out both jobs. OAG 78-642 .

If one is not an employee of a county school board but serves, for example, as an employee of the State Department of Education, there would be no constitutional or statutory conflict under this section and KRS 61.080 since a person can hold two (2) State positions at the same time, whether they be in the form of an office or employment. OAG 78-645 .

One may serve as a member of the Bowling Green Board of Education of the Bowling Green Independent School District while at the same time being employed as an administrator of the Bowling Green-Warren County Health Department pursuant to appointment by the joint city-county board of health which is, in turn, approved by the Kentucky Department of Human Resources (now Cabinet for Human Resources), since the joint city-county health department would be considered a hybrid agency not contemplated by the Constitution or statute relating to incompatible offices, namely this section and KRS 61.080 . OAG 78-646 .

The holding of the post of county judge/executive and the post of water board commissioner would not involve a constitutional or statutory incompatibility, since the water district is a separate political subdivision. OAG 78-651 .

A member of the city council cannot serve at the same time as an auxiliary policeman at the annual salary of $1.00, because no person can hold at the same time two (2) municipal offices as this is prohibited under this section and KRS 61.080 , since a member of the city council is a municipal officer and a member of the auxiliary police force having the same powers as a regular policeman is also a municipal officer, and compensation is not a factor in determining whether or not the two (2) offices are incompatible, one with the other. OAG 78-675 .

There is nothing under this section or KRS 61.080 that would prohibit an employee of the University of Kentucky Extension Specialist Department, Poultry Division, from holding a State office at the same time (such as the school board position), and this would be true even if the employee was under the State merit system in view of KRS 18.310(4) (now see KRS 18A.140 ). OAG 78-706 .

This section and KRS 61.080 prohibit a person from holding a state office and a municipal office at the same time which means that the position of Commonwealth detective would be incompatible with that of city policeman. OAG 78-708 .

The office of mayor and that of membership in the General Assembly are of course incompatible under this section and KRS 61.080 , but the incompatibility does not occur until the person assumes the second office, in which case he vacates the first office pursuant to KRS 61.090 . OAG 78-711 .

A person could hold office on the county board of education and at the same time serve as State conservation officer. OAG 78-773 .

One may hold both the office of railroad commissioner and the position of trial assistant to the district judge of Floyd County since both are State offices. OAG 78-825 .

A person holding the position of membership on the Marshall County Board of Education cannot at the same time serve as city treasurer of Calvert City. OAG 79-1 .

Neither this section nor KRS 61.080 prohibit an employee of a city from becoming a candidate for another public office and this would be equally applicable to the employees of the City of Louisville unless said employees are under the city’s civil service program pursuant to KRS 90.220 which prohibits any person in the classified service in cities of the first class from becoming a candidate for public office. OAG 79-2 .

This section and KRS 61.080 prohibit a State officer from holding a municipal office at the same time, therefore, no one can hold the office of city attorney and serve as a member of an independent school board at the same time since the two (2) positions are incompatible one with the other. OAG 79-44 .

There would be no incompatibility under this section of the Constitution and KRS 61.080 if a full-time employee of the housing authority of a city served as a campaign manager for a candidate for governor, as these statutes relate to incompatible offices, and the position of campaign manager is not an office under either section. OAG 79-53 .

A person could legally hold the office of county judge/executive and at the same time enter into a personal service contract with the state to provide legal services to the Kentucky Public Service Commission. OAG 79-86 .

While a person may hold a municipal office and employment with the city at the same time without violating KRS 61.080 and this section, where the office of councilman and a municipal employment are involved KRS 61.270 and the common-law rule would create a conflict of interest. OAG 79-143 .

There is no conflict between the positions of superintendent of county schools and a supervisor of a county conservation district. OAG 79-149 .

The position of policeman is a municipal office. OAG 79-225 .

Though a police officer could become a candidate for city council, he could not, if elected, serve as a member of city commission and as a police officer as these two (2) positions are incompatible under this section and KRS 61.080 . OAG 79-225 .

The fact that one desires to become a candidate for another elective office creates no incompatibility until he assumes the second office which is incompatible with the first. OAG 79-248 .

Since a county coroner is a county office, while a local coordinator of county disaster and emergency services is a county employee, there is no constitutional or statutory incompatibility. OAG 79-319 .

Since a school board member is a state officer, and since a county emergency director is a county employee, this section and KRS 61.080 expressly prohibit one person from holding such office and employment at the same time. OAG 79-319 .

There is no conflict of interest if a county commissioner were appointed as a deputy county court clerk for the purpose of helping the clerk process the 1979 tax appeals. OAG 79-398 .

This section and KRS 61.080 do not prohibit the holding of two (2) county offices at the same time. OAG 79-398 .

A state employee, such as an employee of the state Department of Transportation (now Transportation Cabinet) or Department of Highways can legally serve as a district commissioner for the State Department of Fish and Wildlife insofar as any questions concerning incompatibility under this section and KRS 61.080 . OAG 79-438 .

Neither this section nor KRS 61.080 prohibit a person from holding state employment in multiple positions. OAG 79-438 .

The position of county court clerk is a county office under the Constitution, particularly § 99, and a school teacher, part-time or otherwise, is a state employee. OAG 79-459 .

There is no constitutional nor statutory prohibition which would inhibit a local board from hiring a county clerk as a substitute teacher. OAG 79-459 .

This section and KRS 61.080 prohibit a state officer from holding a county office at the same time; however, there is no prohibition against a state employee holding a county office except where such person is under the state merit system and cannot run for such office, which prohibition would not be applicable with respect to school teachers since they do not come under the state system. OAG 79-459 .

Although neither KRS 61.080 nor this section would prevent a state representative from also serving on a local city-county human rights commission, the separation of powers doctrine under Const., §§ 27 and 28 prevent a person serving in one branch of government from exercising powers in another. OAG 79-483 .

It is not incompatible for a full-time county employee to also serve as a trustee of a sixth-class city located in that county. OAG 79-493 .

There is nothing in this section or KRS 61.080 which would create an incompatibility between the jobs of deputy sheriff and part-time school bus driver. OAG 79-537 .

There is no constitutional or statutory incompatibility for an elected official, such as a member of the city council, to hold at the same time an office in a privately incorporated association, such as the N.A.A.C.P. OAG 79-603 .

Since the office of director of an emergency ambulance service district is neither a county nor city office, nothing in this section nor in KRS 61.080 would prevent a city or county officer from lawfully serving on that board. OAG 79-607 .

There is no incompatibility, under either this section, KRS 61.080 or the common law, between the state offices of secretary of energy and chairman of the Board of Trustees of the University of Kentucky. OAG 79-624 .

Nothing in this section or KRS 61.080 would prohibit an employee of a Commonwealth Attorney’s office from also being a member of a state university’s board of regents. OAG 79-645 .

Since the offices of city clerk and city treasurer are separate and distinct city offices, no person can, at the same time, hold either of these offices and another city office, such as that of city councilman, in view of this section and KRS 61.080 . OAG 80-20 .

Inasmuch as the executive director had no authority to change regulations, to administer any program or to change any program, but instead the work consisted of being a research person and coordinator of the activities of the task force group, there was no incompatibility between the position as executive director of the governor’s task force on welfare reform and a position as a member of a county urban council. OAG 80-60 .

A person cannot hold the office of city clerk and city treasurer at the same time in a city of the sixth class. OAG 80-73 .

This section and KRS 61.080 do not prohibit a person from holding a municipal office, such as city clerk-treasurer, and at the same time municipal employment, such as the position of police dispatcher. OAG 80-82 .

Since membership on the city board of adjustment constitutes a municipal office and membership on the local board of appeals under the Kentucky Building Code also constitutes a municipal office, the two (2) are incompatible, one with the other, and no person can hold both at the same time. OAG 80-91 .

The office of city school board member and that of county comptroller are incompatible. OAG 80-92 .

The office of commissioner of the Department of Public Information is not incompatible with a position on the Kentucky Heritage Commission or the Kentucky Historic Preservation Review Board. OAG 80-96 .

This section and KRS 61.080 prohibit a state officer or deputy state officer from holding a county office; however, there is no provision prohibiting a state employee, such as a school principal, who is not under the state merit system from becoming a candidate for a county office, such as a county magistrate, and serving as such at the same time he holds his state position. OAG 80-131 .

Although neither this section nor KRS 61.080 prohibits a person from holding the positions of city councilman and civil defense director at the same time, there may be a common-law conflict of interest depending on who appoints the civil defense director pursuant to KRS 39.415 ; if the city legislative body appoints the civil defense director, then a conflict of interest would exist since the councilman in question would be directly involved in his own appointment; on the other hand, if the mayor is authorized to make the appointment, then no such conflict would appear to exist. OAG 80-141 .

No conflict of interest would exist under this section or KRS 61.080 if a county deputy jailer were permitted to join the county auxiliary police force. OAG 80-222 .

An individual holding the office of magistrate can at the same time serve on the county board of elections, since no constitutional or statutory provisions prohibit a person from holding two (2) county offices at the same time and KRS 117.035 specifically permits a person who holds another county office to serve on the county board of elections. OAG 80-263 .

Since the position of trial commissioner is a state office and membership on the county election board is a county office, an individual would be prohibited from holding both positions at the same time by this section and KRS 61.080 . OAG 80-266 .

Assuming no factual circumstances that would give rise to a common-law conflict of interest, a member of a county fiscal court while serving in office may also be employed full time or part time as an instructor at the University of Louisville, or any other state institution of higher learning. OAG 80-277 .

A member of the Kentucky General Assembly can at the same time serve as a presidential elector since the Constitution does not prohibit a person from holding two (2) state offices at the same time, unless there exists a common-law incompatibility. OAG 80-291 .

A county attorney is a county constitutional officer, pursuant to Const., § 99, and, therefore, an assistant county attorney is a statutory county officer for the purpose of considering the general question of incompatibility of offices; since the office of assistant county attorney involves only one office, a county constitutional office, no incompatibility exists even though the county attorney has been given state duties as a prosecutor (KRS 15.725(2)) and county duties as an adviser to fiscal court (KRS 69.210 ). OAG 80-341 .

Insofar as constitutional and statutory provisions governing incompatible offices are concerned, there is no restriction preventing a pretrial release officer, presumably appointed by the administrative office of the courts under RCr 4.06, from becoming a candidate for a political office and there is no statutory restriction preventing the release officer from calling attention to his position during the campaign. OAG 80-360 .

There is no incompatibility in law or fact in holding at the same time the positions of Commonwealth Attorney and membership on the Eastern Kentucky University board of regents. OAG 80-402 .

There is no constitutional or statutory provision prohibiting an individual from holding a real estate license and the office of county judge/executive at the same time, although a common-law incompatibility might exist. OAG 80-478 .

An individual serving on the Crime Victims Compensation Board and as a member of the Board of Claims is a nonmerit state employee, and would not be prohibited from continuing to hold the two (2) state positions while at the same time serving as a paid coordinator with a presidential campaign. OAG 80-488 .

There is no incompatibility between serving as an employee of the Department of Human Resources (now Cabinet for Human Resources) and as a school board member since both positions are with the state, one being a form of state employment and the other (school board) a state office. OAG 80-505 .

Since the position of property valuation administrator is a state office, if and when an employee of the county ambulance service assumed the office of property valuation administrator, he must resign from his position with the county. OAG 80-523 .

There would be no constitutional or statutory restriction on a Circuit Court clerk serving as an instructor in one of the state’s driver improvement programs. OAG 80-548 .

A person may not, at the same time, serve as clerk of the District Court and an auxiliary police officer for a city of the fourth class. OAG 80-552 .

An employee of a county ambulance service, which is comprised of two (2) counties, could run for the elective office of coroner while still employed. OAG 80-563 .

The board of trustees of a county library district could be subject to a taxpayer’s suit, but to successfully maintain an action the taxpayer would have to show standing to bring such a suit, as well as special or peculiar injury. OAG 80-570 .

A deputy state fire marshal (paid a monthly salary) may not also serve as a county police officer at night. OAG 80-576 .

Since a deputy Circuit Court clerk is a state officer and a county treasurer is a county officer, the same person cannot, at the same time, fill both offices as they are incompatible with each other. OAG 80-608 .

Where sixth class city sought to appoint the chief of police as city treasurer and as director of the city water department, the same person would be prohibited from holding two (2) municipal offices at the same time under KRS 61.080 and this section; however, the city under the appropriate ordinance could assign the duty of collecting city taxes to the chief of police and make it part of his overall responsibility. OAG 81-8 .

A county school teacher can be elected to the office of magistrate without violating this section and KRS 61.080 since a person may hold both state employment such as a school teacher and at the same time hold a county office such as magistrate. OAG 81-13 .

An Assistant Commonwealth Attorney may accept a night teaching position with a community college without creating a conflict of interest since this section and KRS 61.080 do not prohibit a person from holding a form of state employment and a state office at the same time. OAG 81-17 .

A dispatcher with the city police department may run for and, if elected, serve as a city council member without violating the provisions of KRS 61.080 and this section. OAG 81-91 .

A master commissioner may also be appointed trial commissioner since there is no statutory prohibition under KRS 61.080 or constitutional prohibition under this section and neither position is subordinate to the other since the master commissioner serves in the Circuit Court and the district commissioner serves in the district court. OAG 81-108 .

An assistant Commonwealth’s Attorney may be employed by a city under a personal service contract since the attorney would be considered an independent contractor; thus, there would not be a conflict under this section and KRS 61.080 between holding state office and municipal office simultaneously. OAG 81-114 .

The deputy circuit clerk, who is a state officer under KRS 30A.010 , may be appointed concurrently as a trial commissioner of the county district court, who is also a state officer under KRS 24A.100 , since neither this section nor KRS 61.080 , both of which treat the subject of incompatible offices, prohibits a person from holding two (2) state offices at the same time. OAG 81-124 .

Where the executive director of a community development agency, which was not created as an independent agency under KRS 99.350 , is elected to the office of mayor of the same city, there is no statutory or constitutional conflict pursuant to this section or KRS 61.080 since a person can theoretically hold a municipal office and employment at the same time; however, the mayor could not continue to hold the executive director’s position without creating a common-law incompatibility or conflict of interest since he is presumed to possess the power under KRS 83A.130 to not only hire, but also fire, the executive director. OAG 81-179 .

Where an attorney is on retainer for a municipal water and sewer commission and runs for the position of Commonwealth’s Attorney, he could hold both positions without violating KRS 61.080 and this section since the retainer position is held as an independent contractor rather than as a city officer or city employee. OAG 81-214 .

A director of county parks and recreation board which is a joint city-county board created by KRS 97.035 can also be elected to the city council, since the joint board is a hybrid whose members are neither city nor county officers and thus there would be no violation of KRS 61.080 or this section which prohibit a person from holding two (2) municipal offices or a municipal and a county office at the same time. OAG 81-240 .

Under Kentucky law a city policeman is considered to be a municipal officer and thus a city cannot employ as a part-time police officer a person who is presently serving as a police officer in another city without creating an incompatibility prohibited by subsection (4) of KRS 61.080 and this section. OAG 81-307 .

The employment of a county attorney as attorney for the county board of education does not violate KRS 61.080 and this section since employment as the school board attorney would be that of an independent contractor rather than an employee, and since such employment would, at most, be a form of state employment rather than constituting a state office. OAG 81-308 .

A person who is the master commissioner of the county Circuit Court can lawfully be appointed to serve as a member of the water commission, since the office of master commissioner is, under KRS 31A.010 , merely a position filled by and under the jurisdiction of the Circuit Court, rather than a state, county or city office; thus, no incompatibility exists under KRS 61.080 and this section between the two (2) positions. OAG 81-313 .

An employee of a city or county can act as a court commissioner appointed to appraise real estate pursuant to KRS 416.580 and receive compensation therefor, since the court commissioner position is an office of the court at most and thus not a state, county or municipal office; the holding of both positions does not violate KRS 61.080 or this section. OAG 81-368 .

The appointment by a Circuit Court Judge of a city comptroller to the position of court commissioner to appraise real estate pursuant to KRS 416.580 would at most constitute appointment to an office of the court which is not a state, county or municipal office; accordingly, the holding of both offices would violate neither KRS 61.080 nor this section. OAG 81-368 .

An ordinance which created the office of city alcoholic control administrator in a fourth-class city and vested the powers and duties of the administrator in the mayor was in violation of KRS 241.160 , which provides that such office may either be created or its duties assigned to an existing office, and also violated subsection (3) of KRS 61.080 and this section which prohibit any person from filling two (2) municipal offices at the same time; however, the city council could amend or revise the ordinance to state that the duties of the administrator should be assigned to the office of the mayor, thereby avoiding the creation of a separate municipal office. OAG 81-390 .

This section and KRS 61.080 do not prohibit a county judge/executive from appointing a firefighter from one fire department to serve on the board of trustees of a fire protection district which does not include that department, since city and county firefighters are considered employees of their employing entity rather than governmental officers, and trustees of a fire protection district are district officers rather than state, county or city officers. OAG 81-427 .

The position of master commissioner for the Circuit Court is not a municipal, state or county office within the meaning of this section or KRS 61.080 ; accordingly, a city councilman in a fourth-class city can simultaneously serve as a master commissioner. OAG 82-7 .

A local industrial development authority would constitute an independent political subdivision or hybrid state-corporate agency under subsection (2) of KRS 152.830 ; accordingly, an assistant Commonwealth’s Attorney may simultaneously hold membership in a local industrial development authority without violating this section and KRS 61.080 . OAG 82-11 .

Since a metropolitan sewer district is a hybrid agency not contemplated by this section or KRS 61.080 , a property valuation administrator can also serve as a member of the board of a sewer district without violating such provisions. OAG 82-81 .

This section and KRS 61.080 do not apply to a situation where a county attorney enters into a contractual agreement to act for a city which has not created an “office” embracing the city attorney. OAG 82-150 .

The executive director of the Kentucky Higher Education Authority must be considered a state employee within the meaning of this section and KRS 61.080 ; the same would be true with respect to his serving as Executive Director to the Kentucky Higher Education Student Loan Corporation pursuant to KRS 164A.050(7). OAG 82-282 .

An unpaid city council member who is also employed by the Kentucky Higher Education Assistance Authority as Executive Director, and by virtue of his position as Executive Director of the Kentucky Higher Education Assistance Authority, is also the Executive Director of the Kentucky Higher Education Student Loan Corporation, is holding a municipal office and state employment, concerning which there is no constitutional or statutory objection. OAG 82-282 .

A member of the Board of Trustees of a fire protection district established pursuant to KRS Ch. 75 would not, for purposes of KRS 61.080 and this section, be considered a state, city or county officer and there is no statutory or constitutional prohibition against a person serving at the same time as a county police officer and as a member of the Board of Trustees of such a fire protection district. OAG 82-304 .

There is no constitutional or statutory objection to a state employee holding, at the same time, a municipal office. OAG 82-318 .

There would be no legal objection to the appointment of a state employee serving in the Department for Human Resources (now Cabinet for Human Resources), Child Welfare section, to the Electric Plant Board of a city. OAG 82-318 .

The office of city councilman and that of deputy circuit clerk are incompatible and no one can hold both positions at the same time without violating this section and KRS 61.080 . OAG 82-351 .

Although one of the commissioners is required to be appointed mayor pro tem pursuant to KRS 83A.140(4), he can only serve as such in the place of the mayor when the mayor is unable to attend to the duties of the office, and as a consequence he cannot serve as mayor pro tem when a vacancy has occurred. Thus, when a member of the commission is appointed to fill the office of mayor, he automatically vacates his position on the commission, as no person can hold two (2) municipal offices at the same time under this section and KRS 61.080 . OAG 82-397 .

Fire protection district trustees and officers are not state, city or county officers for purposes of KRS 61.080 and this section, but would be considered district officers; not only are there no statutory or constitutional prohibitions against a fire district fire chief serving at the same time as a member of the fire district’s board of trustees, but, KRS 75.031(1)(a) requires that two (2) members of the board be elected by the members of the volunteer firefighters of the district and be members thereof. The General Assembly obviously intended that the interests of the firefighters be represented on the board since two (2) board members must be members of the district’s fire department. OAG 82-409 .

The fire chief of a fire protection district organized pursuant to KRS Ch. 75 is not prevented by statutory or constitutional provisions from serving at the same time as one (1) of the two (2) required members of the fire department on the fire district’s board of trustees. On those particular occasions where a conflict does occur, the fire chief should remove himself from the proceedings rather than merely abstaining or passing on the matter. OAG 82-409 .

Since the terms of KRS 154.650 to 154.700 clearly indicate that members of the enterprise zone authority possess the five (5) basic elements required in order to establish their position as a public office and a state office, the Governor cannot appoint county and city officers to the authority without violating KRS 61.080 and this section; therefore, the Kentucky Municipal League and the Kentucky Association of Counties in nominating potential appointees for the authority must submit the names of persons who do not hold a city or county office. OAG 82-429 .

Due to the fact that the urban county government is a hybrid form of government not contemplated by KRS 61.080 or this section, the officers of such government cannot be considered either county or city officers, and, as a consequence, there would exist no constitutional or statutory incompatibility where an officer or employee of such government was appointed to the enterprise zone authority pursuant to KRS 154.675. OAG 82-482 .

If a city has either established a position of legal advisor as a form of city employment or created the office of city attorney, no one could hold at the same time the state office of trial commissioner and the office of city attorney or city employment without violating KRS 61.080 and this section. However, if an attorney is employed on a personal service contract basis, he would be considered an independent contractor and there would be no constitutional or statutory objection to his serving as trial commissioner of the district court. OAG 82-502 .

Since members of the water district commission are neither state, county or city officers, no incompatibility would exist where a person serves as a member of the commission and at the same time serves on the city council. Of course where any business develops between the water district and the city concerning which a vote must be taken, the councilman in question should refrain from participating or voting on the matter as this would be against public policy. OAG 82-635 .

No conflict of interest or incompatibility existed where an auxiliary police officer of a city was at the same time a full-time Instructor-Coordinator of the Department of Training at Eastern Kentucky University; an auxiliary police officer of a city has the same powers as a regular police officer and is, therefore, considered a municipal officer while the position of Instructor-Coordinator for a department at Eastern Kentucky University would at most be considered a form of state employment. Neither this section nor KRS 61.080 prohibits a state employee from holding a municipal office. OAG 83-29 .

While there is nothing in Kentucky law which would prevent a full time county employee from seeking the office of railroad commissioner, this section and KRS 61.080 and 61.090 would clearly prohibit a county employee from holding both his county position and the office of railroad commissioner simultaneously; it would, therefore, be necessary for him to resign the county position in order to assume the office of railroad commissioner if he is elected. OAG 83-66 .

The mayor of a city could legally serve as financial secretary to the planning and zoning commission, whether it be strictly a city commission or a joint city-county commission. OAG 83-72 .

The position of financial secretary to a zoning and planning commission would not constitute a municipal office since there is no statutory authority for creating such position as an office under KRS Chapter 100 which governs planning and zoning; consequently, neither this section nor KRS 61.080 prohibits a municipal officer from holding municipal employment and serving as financial secretary at the same time and receiving compensation from both sources. OAG 83-72 .

If a municipal utility commission is simply an agency of the city, the city attorney should probably represent both the city and the commission since the utility is an agency of the city; if it is an independent agency, he could at the same time be employed under a personal service contract which would make him an independent contractor. In neither event would the question of his holding two (2) municipal offices at the same time be involved. OAG 83-119 .

An employee of a county department of correction does not possess peace officer powers. Therefore, there would be no constitutional or statutory objection to his holding the office of chief of police of a city at the same time, since he would be a county employee. OAG 83-291 .

Since a private, nonprofit corporation is not a public agency, no statutory or constitutional incompatibility would exist if a member of a city council and a member of the board of directors of an urban renewal agency also served on the board of directors of a nonprofit corporation established to operate a community center in the same city. OAG 83-317 .

Membership on a school board constitutes a state office. OAG 83-318 .

Membership on a county fair board does not constitute a public office, in the sense of its being established by or pursuant to a specific statute or the Constitution, which would involve KRS 61.080 and this section. OAG 83-318 .

A member of the board of education can at the same time serve as a member of a county fair board. OAG 83-318 .

Neither this section nor KRS 61.080 , dealing with incompatible offices prohibits a person, who holds a particular office that may or may not be incompatible with the one he seeks, from becoming a candidate for public office; it is only when the person is elected and holds an office that is incompatible with one to which he is elected that this section and KRS 61.080 are affected. OAG 84-101 .

Where a city which had a volunteer fire department had not established the position of fire chief as an office, the position of fire chief could only be considered as a form of employment; accordingly, there was no constitutional or statutory conflict involved when the county magistrate was appointed as fire chief of the city. OAG 84-150 .

Since an airport board is a joint board, it is a hybrid agency authorized by statute between the cities and county; thus, a municipal officer could be appointed to such board without violating the prohibition against a municipal officer holding any other municipal, county or state office at the same time, contained in KRS 61.080 and this section, provided the appointment is made jointly by the mayor of the other city and the county judge/executive, and the appointee is not present during the voting. OAG 84-384 , modifying OAG 74-755 .

This section and KRS 61.080 do not prohibit a person from holding a state office and state employment at the same time unless the duties involved are incompatible; thus, the position of a member of the local board of education would not be incompatible with a position as an instructor at the Hazard Area Vocational School since the local board would have no control over the appointment of the instructor. OAG 85-23 .

From the standpoint of the incompatible offices provisions of this section of the Kentucky Constitution and KRS 61.080 , state officers are not prohibited from holding positions on the boards of directors of the Kentucky Housing Corporation and the Kentucky Higher Education Student Loan Corporation when those officers are holding positions specifically authorized by KRS 198A.030(3) and KRS 164A.050(3), because where a statute provides for the appointment of specifically designated public officers to hold another public office, these public officers hold their second public office in an “ex officio” capacity, which eliminates the possibility of a constitutional or statutory incompatibility. OAG 91-208 .

The position of trustee of the Kentucky Retirement Systems Board is a “State Office” and, therefore, Section 165 of the Kentucky Constitution and KRS 61.080 apply in determining the qualifications of potential board members. OAG 00-7 .

While it would be incompatible for a county attorney to hold, at the same time (either through election or appointment) the office of Commonwealth’s Attorney, it is not a conflict under this section or under KRS 61.080 for the county attorney, on a temporary basis, to assume the duties of the Commonwealth’s Attorney for an interim period until another person can be either appointed or elected to fill the office. OAG 92-162 .

A mayor of a city of the third class is not prohibited by KRS 76.030 , KRS 61.080 or this section from serving on the board of the Louisville and Jefferson County Metropolitan Sewer District. OAG 93-43 .

Since a state motor vehicle enforcement officer is a state officer and a special deputy sheriff is a county officer and since subsection (1) of KRS 61.080 bans one from serving at the same time as a state officer and as an officer of any county, selected motor vehicle enforcement officers may not be appointed as special deputy sheriffs. OAG 93-61 .

A person employed by an entity, such as the Louisville Waterfront Development Corporation which was established jointly by a city, a county and the state, while a public officer or employee, would not for purposes of the incompatible offices provisions be considered a state, county, or city officer or employee; thus the incompatible offices provisions would not preclude a person from serving concurrently as a member of the Kentucky General Assembly and as an officer or employee of the Louisville Waterfront Development Corporation. OAG 95-24 .

An urban county is a county with an urban county form of government, such that officers of an urban county are county officers for purposes of Ky. Const. § 165 and KRS 61.080 . Therefore, a member of the Lexington-Fayette Urban County Council may not also serve as a division director within the Cabinet for Health and Family Services. OAG 2004-10 .

The position of executive director of the Office of the Ombudsman of the Cabinet for Health and Family Services is a “state office,” and one who holds that position is a “state officer,” such that one cannot hold that position and lawfully remain a member of the Lexington-Fayette Urban County Council. OAG 2006-02 .

Research References and Practice Aids

Cross-References.

Incompatible offices, Const., §§ 44, 237; KRS 61.080 .

§ 166. Expiration of city charters granted prior to Constitution.

All acts of incorporation of cities and towns heretofore granted, and all amendments thereto, except as provided in Section 167, shall continue in force under this Constitution, and all City and Police Courts established in any city or town shall remain, with their present powers and jurisdictions, until such time as the General Assembly shall provide by general laws for the government of towns and cities, and the officers and courts thereof; but not longer than four years from and after the first day of January, one thousand eight hundred and ninety-one, within which time the General Assembly shall provide by general laws for the government of towns and cities, and the officers and courts thereof, as provided in this Constitution.

Compiler’s Notes.

The 1990 General Assembly, by Acts 1990, ch. 150, § 5, proposed that the Constitution be amended by repealing this section. This amendment was submitted to the voters for ratification or rejection at the regular election in November, 1990, and was defeated.

NOTES TO DECISIONS

1.Construction.

Charters granted prior to the adoption of the Constitution were, by the terms of this section, continued in force until the General Assembly provided by general laws for the government of towns and cities. Goodloe v. Fox, 96 Ky. 627 , 29 S.W. 433, 16 Ky. L. Rptr. 653 , 1895 Ky. LEXIS 120 ( Ky. 1895 ).

Neither this section nor Const., § 156 specifically affirms the right of the General Assembly to delegate a portion of its legislative power to the governmental body of a municipality. Commonwealth v. Associated Industries of Kentucky, 370 S.W.2d 584, 1963 Ky. LEXIS 76 ( Ky. 1963 ).

2.Effect on Existing Charters.

Where a city of the fourth class had been divided into wards, this section did not repeal such a division. Brown v. Holland, 97 Ky. 249 , 30 S.W. 629, 17 Ky. L. Rptr. 149 , 1895 Ky. LEXIS 180 ( Ky. 1895 ).

The General Assembly had the power during the four (4) year period provided for in this section to amend existing acts of incorporation. Mayfield v. Elmore, 100 Ky. 417 , 38 S.W. 849, 18 Ky. L. Rptr. 909 , 1897 Ky. LEXIS 19 ( Ky. 1897 ).

This section, Const., § 156, and the general laws enacted thereunder for the classification, incorporation and government of cities automatically repealed all specially enacted charters of cities. Mullins v. Wilson, 282 Ky. 316 , 138 S.W.2d 484, 1940 Ky. LEXIS 168 ( Ky. 1940 ).

3.— Form of Government.

Where, under an old charter, a town had been governed by trustees, these trustees became the city council and their chairman the mayor, after the adoption of a new charter under statutes governing cities of this particular class, which were enacted after the adoption of the Constitution. Bybee v. Smith, 61 S.W. 15, 22 Ky. L. Rptr. 1684 , 1901 Ky. LEXIS 399 (Ky. Ct. App. 1901).

The legislation for the incorporation and government of cities of the first class is in lieu of existing legislation on the subject, and repeals by implication a special charter given to a city of the first class. Parsons v. Breed, 126 Ky. 759 , 104 S.W. 766, 31 Ky. L. Rptr. 1136 , 1907 Ky. LEXIS 97 ( Ky. 1907 ).

4.— Taxing Powers.

The Constitution did not divest city governments of the power of taxation under their charter, or suspend such powers, until the legislature passed laws for the regulation of such powers in accordance with this section. Byrne v. Covington, 21 S.W. 1050, 15 Ky. L. Rptr. 33 (1893).

5.— Elections.

Where officers were elected under an old charter and thereafter the General Assembly provided for elections to begin being held in 1895 and for four (4) year terms, the terms of officers elected under the old charter did not fall within the terms of the new act. Lexington v. Wilson, 97 Ky. 707 , 31 S.W. 471, 17 Ky. L. Rptr. 435 , 1895 Ky. LEXIS 227 ( Ky. 1895 ).

Cited:

Johnson v. Wilson, 95 Ky. 415 , 15 Ky. L. Rptr. 852 , 25 S.W. 1057, 1894 Ky. LEXIS 39 ( Ky. 1894 ); Aydelett v. South Louisville, 26 S.W. 717, 16 Ky. L. Rptr. 166 (1894); Long v. Louisville, 97 Ky. 364 , 17 Ky. L. Rptr. 253 , 30 S.W. 987, 1895 Ky. LEXIS 2 01 ( Ky. 1895 ); Louisville Trust Co. v. City of Louisville, 30 S.W. 991, 17 Ky. L. Rptr. 265 (1895); Tevis v. Rice, 97 Ky. 528 , 17 Ky. L. Rptr. 350 , 30 S.W. 1021, 1895 Ky. LEXIS 2 11 ( Ky. 1895 ); O’Mahoney v. Bullock, 97 Ky. 774 , 17 Ky. L. Rptr. 523 , 31 S.W. 878, 1895 Ky. LEXIS 242 (Ky. 1895); Lowry v. Lexington, 113 Ky. 763 , 24 Ky. L. Rptr. 516 , 68 S.W. 1109, 1902 Ky. LEXIS 107 ( Ky. 1902 ); Ohio Valley Tel. Co. v. Louisville, 123 Ky. 193 , 29 Ky. L. Rptr. 631 , 29 Ky. L. Rptr. 682 , 94 S.W. 17, 1906 Ky. LEXIS 132 ( Ky. 1906 ); Louisville v. Vreeland, 140 Ky. 400 , 131 S.W. 195, 1910 Ky. LEXIS 284 ( Ky. 1910 ); Gerard v. Judd, 331 S.W.2d 119, 1959 Ky. LEXIS 2 ( Ky. 1959 ).

Opinions of Attorney General.

An ordinance making it unlawful for certain business establishments offering food, lodging, entertainment or amusement to the public to refuse to serve or accommodate persons because of race, color or religion would constitute a valid exercise of police power. OAG 60-132 .

§ 167. Time of election of city, urban-county, and town officers.

All officers required to be elected in cities, urban-counties, and towns by this Constitution, or by general laws enacted in conformity to its provisions, shall be elected at the general elections in November in even-numbered years.

History. Amendment, proposed by Acts 1992, ch. 168, § 17, ratified November 3, 1992.

Compiler’s Notes.

The General Assembly in 1992 (Acts 1992, ch. 168, § 17) proposed an amendment to the Constitution which amendment was ratified by the voters at the regular election November 3, 1992. Prior to the amendment this section read as:

§ 167. Time of election of city officers and police judges—Election years. — All city and town officers in this State shall be elected or appointed as provided in the charter of each respective town and city, until the general election in November, eighteen hundred and ninety-three, and until their successors shall be elected and qualified, at which time the terms of all such officers shall expire; and at that election, and thereafter as their terms of office may expire, all officers required to be elected in cities and towns by this Constitution, or by general laws enacted in conformity to its provisions, shall be elected at the general elections in November; but only in the odd years, except members of municipal legislative boards, who may be elected either in the even or odd years, or part in the even and part in the odd years: Provided, That the terms of office of Police Judges, who were elected for four years at the August election, eighteen hundred and ninety, shall expire August thirty-first, eighteen hundred and ninety-four, and the terms of Police Judges elected in November, eighteen hundred and ninety-three, shall begin September first, eighteen hundred and ninety four, and continue until the November election, eighteen hundred and ninety-seven, and until their successors are elected and qualified.”

Section 19 of Acts 1992, ch. 168 provided: “It is further proposed as a part of this amendment and as a schedule of transitional provisions, for the purposes of this amendment, and any other provision of the Constitution of Kentucky notwithstanding:

“(1) The Governor; Lieutenant Governor; Treasurer; Auditor of Public Accounts; Attorney General; Secretary of State; Commissioner of Agriculture, Labor and Statistics; Superintendent of Public Instruction; and Railroad Commissioners elected in 1991 shall be ineligible for election to the same office for the succeeding term. Those officers elected in 1995 shall be eligible for election to the next succeeding term.

“(2) The term of office of Commonwealth’s Attorneys and Circuit Clerks elected in 1993 shall be for a single term of seven years. The regular election for those offices shall then be held in 2000 and every six years thereafter.

“(3) The term of office of District Judges, Mayors, County Judges/Executive, and local officers who regularly serve a four year term and who are scheduled to be elected in 1993 shall be for a single term of five years. The regular election for those offices shall then be held in 1998 and every four years thereafter.

“(4) The term of office for local officers who regularly serve a two-year term and who are scheduled to be elected in 1993 shall be for a single term of three years. The regular election for those offices shall then be held in 1996 and every two years thereafter.

“(5) The term of office for Circuit Judges and Judges of the Court of Appeals elected in 1999 shall be for a single term of seven years. The regular election for those offices shall then be held in 2006 and every eight years thereafter.

“(6) The term of office for mayor, magistrate, or other officer not specifically provided for in subsection (4) of this section elected in 1995 shall be extended for one year and subsequent elections for offices subject to the provisions of this subsection shall be held in even-numbered years.

“(7) No person holding elective office upon the effective date of this amendment shall have the duration of his current term extended. However, if the next election of any officer not specifically provided for in this section is scheduled to appear on the ballot in an odd-numbered year, the duration of that term of the officer elected shall be extended for one year. The election for any office subject to the provisions of this subsection shall subsequently be held in even-numbered years.”

The 1990 General Assembly, by Acts 1990, ch. 150, § 5, proposed that the Constitution be amended by repealing this section. This amendment was submitted to the voters for ratification or rejection at the regular election in November, 1990, and was defeated.

NOTES TO DECISIONS

1.Construction.

This section provides that officers then in office should hold until their successors were elected and qualified. Bybee v. Smith, 61 S.W. 15, 22 Ky. L. Rptr. 1684 , 1901 Ky. LEXIS 399 (Ky. Ct. App. 1901).

This section provides for the continuance in office of the old officials and for the old method of electing and appointing officials until the November 1893 elections and also provides in what years elections of town officers shall be held and definitely fixes the terms of office of police judges. Lowry v. Lexington, 113 Ky. 763 , 68 S.W. 1109, 24 Ky. L. Rptr. 516 , 1902 Ky. LEXIS 107 ( Ky. 1902 ).

Legislation enacted pursuant to this section and Const., § 166 was in lieu of all previous legislation on the subject and by implication repealed by old charters. Parsons v. Breed, 126 Ky. 759 , 104 S.W. 766, 31 Ky. L. Rptr. 1136 , 1907 Ky. LEXIS 97 ( Ky. 1907 ).

2.Application.

This section applies to elections held upon the expiration of the regular terms of office. Shelley v. McCullouch, 97 Ky. 164 , 30 S.W. 193, 17 Ky. L. Rptr. 53 , 1895 Ky. LEXIS 162 ( Ky. 1895 ).

The provisions of this section requiring that city officers shall be elected at the general elections in November in odd-numbered years apply only to elections held upon the expiration of regular terms of office and, therefore, an election to fill an unexpired term of a city office may be held in an even-numbered year. Smith v. Doyle, 76 S.W. 519, 25 Ky. L. Rptr. 958 (1903).

Provision of Const., § 148 prohibiting election of local officers in same year in which members of congress are elected, and provision of this section requiring election of city officers in odd years, do not apply to special elections to fill vacancies prescribed by Const., § 152. Smith v. Ruth, 308 Ky. 60 , 212 S.W.2d 532, 1948 Ky. LEXIS 847 ( Ky. 1948 ).

3.Term.

In construing this section and Const., § 160 together, the word “term,” as used in both sections, means a full four (4) year term. Schardein v. Harrison, 230 Ky. 1 , 18 S.W.2d 316, 1929 Ky. LEXIS 5 ( Ky. 1 929 ), overruled, Little v. Bogie, 300 Ky. 668 , 190 S.W.2d 26, 1945 Ky. LEXIS 625 ( Ky. 1945 ).

4.Councilmen.

Where, after decision that since city had been transferred to second-class status common council, elected in 1951, was nullity, as office was nonexistent in a second-class city, mayor appointed members of general council and they qualified, the terms of the councilmen began January 1953 and division by lot to determine who held office for one year and who for two (2) years was proper; thus term of councilman elected in November 1952, which councilman drew one-year term, expired in January 1954 and his successor had to be elected in November 1953. Miles v. Peay, 256 S.W.2d 373, 1953 Ky. LEXIS 730 ( Ky. 1953 ).

5.Police Judge.

In April 1893, M. was elected police judge of a fourth-class city for a term of one year, under the provisions of its charter and on November 7, 1893, M. was appointed judge of the police court of the same city, his term of office to begin September 1, 1894, the term of office of M. under his election in April 1893 was extended until September 1894, and upon his death, August 3, 1894, two (2) vacancies existed: one for the balance of the term ending August 31, 1894, and the other for the full term beginning September 1, 1894, and ending with the November election, 1897. Boyd v. Land, 97 Ky. 379 , 30 S.W. 1019, 17 Ky. L. Rptr. 273 , 1895 Ky. LEXIS 210 ( Ky. 1895 ).

Under the provisions of this section with respect to police judges, the term of a judge of a fourth-class city elected at the November election, 1893 began on September 1, 1894. Tevis v. Rice, 97 Ky. 528 , 30 S.W. 1021, 17 Ky. L. Rptr. 350 , 1895 Ky. LEXIS 211 ( Ky. 1895 ).

Under this section a police judge elected in November 1893 continued in his office until the November election, 1897. Jackson v. Richmond, 108 Ky. 374 , 56 S.W. 501, 22 Ky. L. Rptr. 94 , 1900 Ky. LEXIS 47 ( Ky. 1900 ).

Under this section and Const., § 160, the term of office of police judges is four (4) years. Pinkston v. Watkins, 186 Ky. 365 , 216 S.W. 852, 1919 Ky. LEXIS 224 ( Ky. 1919 ). See Watkins v. Pinkston, 190 Ky. 455 , 227 S.W. 583, 1921 Ky. LEXIS 456 ( Ky. 1921 ).

The legislature may not disregard the express terms of this section and Const., § 160 with regard to the election and term of office of a police judge. Gerard v. Judd, 331 S.W.2d 119, 1959 Ky. LEXIS 2 ( Ky. 1959 ).

6.Prosecuting Attorney.

Where the term of a prosecuting attorney expired in 1925, it was the city’s duty under this section to elect the city attorney at the regular 1925 election to serve until the end of 1927. Fullerton v. Mann, 214 Ky. 764 , 284 S.W. 113, 1926 Ky. LEXIS 433 ( Ky. 1926 ).

7.City Attorney.

A city attorney could be elected in the spring of 1893 by a secret ballot of the councilmen pursuant to the city charter even though Const., § 147 provides that in all elections by persons in a representative capacity the balloting shall be viva voce. Goodloe v. Fox, 96 Ky. 627 , 29 S.W. 433, 16 Ky. L. Rptr. 653 , 1895 Ky. LEXIS 120 ( Ky. 1895 ).

8.Mayor.

Under this section the term of a mayor elected in October 1892 expired at the general election in November 1893. Jones v. Wilshire, 98 Ky. 391 , 33 S.W. 199, 17 Ky. L. Rptr. 989 , 1895 Ky. LEXIS 73 ( Ky. 1895 ).

9.Town Trustees.

Under this section and implementing statute, where town trustees appointed by court on organization of town in May 1938 were elected at 1938 general election and their names did not appear on ballots at the 1939 election, trustees’ offices were vacant after 1939 election, and county judge could appoint new trustees. Beauchamp v. Rahm, 283 Ky. 50 , 140 S.W.2d 633, 1940 Ky. LEXIS 278 ( Ky. 1940 ).

10.Election Under Charter.

The General Assembly not having, prior to the election of 1893, passed a general law for the government of cities, officers elected at that election under a city charter were not entitled to hold the office for four (4) years, in view of the passage of act of March 19, 1894, providing that at the election held in 1895 and every four (4) years thereafter there should be elected all city officers who should hold office for four (4) years. Lexington v. Wilson, 97 Ky. 707 , 31 S.W. 471, 17 Ky. L. Rptr. 435 , 1895 Ky. LEXIS 227 ( Ky. 1895 ).

Cited:

Brown v. Holland, 97 Ky. 249 , 30 S.W. 629, 17 Ky. L. Rptr. 149 , 1895 Ky. LEXIS 180 ( Ky. 1895 ); O'Mahoney v. Bullock, 97 Ky. 774 , 31 S.W. 878, 17 Ky. L. Rptr. 523 , 1895 Ky. LEXIS 242 ( Ky. 1895 ); Paris v. Webb, 33 S.W. 87, 17 Ky. L. Rptr. 1006 (1895); Jones v. Wilshire, 98 Ky. 391 , 33 S.W. 199, 17 Ky. L. Rptr. 989 , 1895 Ky. LEXIS 73 (Ky. 1895); Lafferty v. Huffman, 99 Ky. 80 , 35 S.W. 123, 18 Ky. L. Rptr. 17 , 1896 Ky. LEXIS 56 ( Ky. 1896 ); Mayfield v. Elmore, 100 Ky. 417 , 38 S.W. 849, 18 Ky. L. Rptr. 909 , 1897 Ky. LEXIS 19 ( Ky. 1897 ); Bitzer v. Thompson, 105 Ky. 514 , 49 S.W. 199, 20 Ky. L. Rptr. 1318 , 1899 Ky. LEXIS 227 ( Ky. 1899 ); Figg v. Thompson, 105 Ky. 509 , 49 S.W. 202, 20 Ky. L. Rptr. 1322 , 1899 Ky. LEXIS 229 ( Ky. 1899 ); Craft v. Baker, 194 Ky. 205 , 238 S.W. 389, 1922 Ky. LEXIS 126 ( Ky. 1922 ); Kerr v. Louisville, 271 Ky. 335 , 111 S.W.2d 1046, 1937 Ky. LEXIS 241 ( Ky. 1937 ); Mullins v. Jones, 290 Ky. 796 , 162 S.W.2d 761, 1942 Ky. LEXIS 48 8 ( Ky. 1942 ); Miles v. Peay, 256 S.W.2d 373, 1953 Ky. LEXIS 73 0 ( Ky. 1953 ); Sarakatsannis v. Baker, 488 S.W.2d 683, 1972 Ky. LEXIS 48 ( Ky. 1972 ).

Opinions of Attorney General.

An election held in 1975 for the office of mayor in a fourth class city was a nullity insofar as filling that office for a regular four (4) year term, and therefore a regular election should have been held in November, 1977. OAG 77-591 .

Since KRS 83A.050 requires cities to pay the cost of city elections only where the city election is held at a time other than the law prescribes for elections generally and since city officers can only be elected at general elections in November pursuant to this section and KRS 83A.040 , which is the time prescribed for elections for all state and local offices, cities whose officers were elected in the 1981 election would not be liable for any part of the election cost involved at the 1981 general election. OAG 82-167 .

Based on the language of the 1992 constitutional amendment to this section, cities may no longer conduct staggered elections; KRS 83A.110 , which purports to authorize staggered elections, is now unconstitutional; and city council members elected in 1993 will be elected for three (3) year terms, so that all city council seats will be up for election in 1996. OAG 93-41 .

§ 168. Ordinance not to fix less penalty than statute for same offense — Prosecution under one a bar.

No municipal ordinance shall fix a penalty for a violation thereof at less than that imposed by statute for the same offense. A conviction or acquittal under either shall constitute a bar to another prosecution for the same offense.

NOTES TO DECISIONS

1.Construction.

The city legislative body may fix a penalty at any sum within the jurisdiction of the police court, provided it is not less than the penalty set by a state statute for the same offense. Owensboro v. Sparks, 99 Ky. 351 , 36 S.W. 4, 18 Ky. L. Rptr. 269 , 1896 Ky. LEXIS 98 ( Ky. 1896 ), overruled, White v. Commonwealth, 122 Ky. 408 , 92 S.W. 285, 28 Ky. L. Rptr. 1312 , 1906 Ky. LEXIS 64 ( Ky. 1906 ).

This section has placed a constitutional restriction on the power of all municipalities as to the extent of punishment to be inflicted by the city where the same act was an offense against the Commonwealth, punishment for which was fixed by statute. Louisville v. Wehmhoff, 116 Ky. 812 , 76 S.W. 876, 79 S.W. 201, 25 Ky. L. Rptr. 1924 , 25 Ky. L. Rptr. 995 , 1903 Ky. LEXIS 250 ( Ky. 1903 ).

2.Application.

The provision of this section with reference to the fixing of penalties does not apply to fines imposed by a city for violation of an ordinance as to licenses for peddlers and itinerant merchants. Carlisle v. Hechinger, 103 Ky. 381 , 45 S.W. 358, 20 Ky. L. Rptr. 74 , 1898 Ky. LEXIS 77 ( Ky. 1898 ). See Commonwealth use of Flemingsburg v. Merz, 125 Ky. 97 , 100 S.W. 333, 30 Ky. L. Rptr. 1170 , 1907 Ky. LEXIS 262 ( Ky. 1907 ).

This section does not apply to an ordinance which is merely local in its operation. Eales v. Barbourville, 177 Ky. 216 , 197 S.W. 634, 1917 Ky. LEXIS 561 ( Ky. 1917 ).

3.Penalty Above Maximum.

This section does not prohibit the municipal corporation from fixing by ordinance a penalty for a violation thereof above the minimum fixed by statute. Owensboro v. Sparks, 99 Ky. 351 , 36 S.W. 4, 18 Ky. L. Rptr. 269 , 1896 Ky. LEXIS 98 ( Ky. 1896 ), overruled, White v. Commonwealth, 122 Ky. 408 , 92 S.W. 285, 28 Ky. L. Rptr. 1312 , 1906 Ky. LEXIS 64 ( Ky. 1906 ).

4.Double Jeopardy.

Under this section, if a person had been tried under a municipal ordinance, it would have been a bar to a trial under the statutes and vice versa. Moren v. Commonwealth, 116 Ky. 859 , 76 S.W. 1090, 25 Ky. L. Rptr. 1042 , 1903 Ky. LEXIS 253 ( Ky. 1903 ).

Conviction under an ordinance of a city of the fourth class imposing a penalty for gaming is a valid plea in bar to a prosecution in the Circuit Court for the same offense. White v. Commonwealth, 122 Ky. 408 , 92 S.W. 285, 28 Ky. L. Rptr. 1312 , 1906 Ky. LEXIS 64 ( Ky. 1906 ).

5.— Different Offenses.

A person may be prosecuted in a Circuit Court for assault and battery with an automobile even though he had been previously convicted in a police court for operating a motor vehicle under the influence of intoxicating liquors or narcotic drugs, operating a motor vehicle in a reckless and improper manner, and running a red light. Burnett v. Commonwealth, 284 S.W.2d 654, 1955 Ky. LEXIS 30 ( Ky. 1955 ).

6.— Election of Offenses.

The Commonwealth may elect whether it will prosecute under a city ordinance or a state law for an offense which is a violation of both. Burdette v. Danville, 125 S.W. 275, 1910 Ky. LEXIS 670 ( Ky. 1910 ).

The Commonwealth may not divide a single act into two (2) or more separate offenses and, where it is sufficient to constitute more than one offense and election for prosecution has been made, conviction or acquittal on charge is a bar to another prosecution based solely on same act or transaction. Burnett v. Commonwealth, 284 S.W.2d 654, 1955 Ky. LEXIS 30 ( Ky. 1955 ).

7.— Lesser Included Offense.

Where a person has been tried for a lesser grade of offense out of which a greater offense arose, his conviction or acquittal is a bar to the prosecution of the greater offense; therefore, a conviction before a justice’s court for breach of the peace by assaulting another person is a bar to a subsequent prosecution in Circuit Court for an assault and battery on the same person at the same time. Burnett v. Commonwealth, 284 S.W.2d 654, 1955 Ky. LEXIS 30 ( Ky. 1955 ).

8.— Statutory Offenses.

The provisions of this section apply only to statutory offenses; therefore a conviction, under a municipal ordinance, of the offense of maintaining a nuisance by operating a pool room is not a bar to a prosecution in the Circuit Court for the same acts, constituting a nuisance at common law, no penalty being prescribed therefor by statute. Respass v. Commonwealth, 107 Ky. 139 , 53 S.W. 24, 21 Ky. L. Rptr. 789 , 1899 Ky. LEXIS 145 ( Ky. 1899 ). See Lucas v. Commonwealth, 118 Ky. 818 , 82 S.W. 440, 26 Ky. L. Rptr. 740 , 1904 Ky. LEXIS 111 ( Ky. 1904 ).

Conviction under an ordinance for an offense not punishable by statute, such as maintaining an unsafe overhead bridge, does not bar conviction for the same offense in the Circuit Court under an indictment, as this section of the constitution refers only to statutory offenses. Louisville & N. R. Co. v. Commonwealth, 144 Ky. 558 , 139 S.W. 785, 1911 Ky. LEXIS 668 ( Ky. 1911 ).

9.Valid Penalties.

An ordinance subjecting a person convicted of maintaining a house of ill fame to a fine is valid, no penalty for the offense being fixed by statute. Owensboro v. Simms, 99 Ky. 49 , 34 S.W. 1085, 17 Ky. L. Rptr. 1393 , 1896 Ky. LEXIS 51 ( Ky. 1896 ).

KRS 131.190 and 131.990(3) apply only to officials dealing with state and county taxes, and therefore the fact that the provisions in ordinance levying an occupational license tax penalizing the disclosure of information received by city officials through tax returns and examination of taxpayers’ records imposed a penalty less than that imposed by the above sections for the same offense did not violate this section. Kohler v. Benckart, 252 S.W.2d 854, 1952 Ky. LEXIS 1025 ( Ky. 1952 ).

10.— Common-law Offenses.

A city ordinance is not void because it prescribes a lesser penalty than that fixed at common law for a common-law offense. Leitchfield Mercantile Co. v. Commonwealth, 143 Ky. 162 , 136 S.W. 639, 1911 Ky. LEXIS 407 ( Ky. 1911 ).

11.— Different Offenses.

An ordinance prescribing a lesser penalty for the offense of disorderly conduct than is prescribed by statute for the offense of a breach of the peace, riot, rout, unlawful assembly, or affray is not unconstitutional, as the offenses are not the same. Mt. Sterling v. Holly, 57 S.W. 491, 22 Ky. L. Rptr. 358 (1900).

Where a statute fixes the punishment for vagrancy at a fine of $10.00 or 30 days in jail, or both, and an ordinance fixes the punishment for loitering on a railroad track at a fine of $10.00, the ordinance is valid. Tuggles v. Commonwealth, 100 S.W. 235, 30 Ky. L. Rptr. 1071 , 1907 Ky. LEXIS 401 ( Ky. 1907 ).

An ordinance providing a penalty for unlawfully discharging a firearm within the city, which is less than the penalty prescribed by a statute for unlawfully discharging a weapon on a public highway, does not violate this section. Commonwealth v. Vanmeter, 187 Ky. 807 , 221 S.W. 211, 1920 Ky. LEXIS 210 ( Ky. 1920 ).

Although a city ordinance provided for criminal penalties governing bail bondsmen less than those provided by former KRS 304.99-030 , since these offenses were not the same, the city ordinance is valid. Paducah v. Johnson Bonding Co., 512 S.W.2d 481, 1974 Ky. LEXIS 391 ( Ky. 1974 ).

12.Invalid Penalties.

Where a statute imposes either a fine or imprisonment, or both, for a breach of the peace, and an ordinance imposes a fine only for the same offense, the ordinance is unconstitutional. Taylor v. Owensboro, 98 Ky. 271 , 32 S.W. 948, 17 Ky. L. Rptr. 856 , 1895 Ky. LEXIS 54 ( Ky. 1895 ). See Kehr v. Commonwealth, 83 S.W. 633, 26 Ky. L. Rptr. 1234 (1904).

The offense defined by the city ordinance must be the same offense as that defined by the statute in order for the ordinance fixing a lesser penalty to be invalid. Owensboro v. Evans, 172 Ky. 831 , 189 S.W. 1153, 1916 Ky. LEXIS 275 ( Ky. 1916 ).

An ordinance fixing a fine of $10.00 for drunkenness was invalid as fixing a penalty at less than that imposed by statute for the same offense. Burden v. Hendrix, 205 Ky. 167 , 265 S.W. 493, 1924 Ky. LEXIS 59 ( Ky. 1924 ).

A municipal ordinance providing a penalty of not less than $1.00 nor more than $10.00 for an offense was unconstitutional where the statute provided a penalty of not more than $100 or not less than five (5) nor more than 50 days, or both, for such offense. Buise v. Barklage, 314 Ky. 308 , 234 S.W.2d 959, 1950 Ky. LEXIS 1078 ( Ky. 1950 ).

City ordinance making it unlawful to possess gambling devices was unconstitutional, since it provided for a lesser penalty than that prescribed in KRS 436.230 (repealed) for the same offense. Newport v. Nier, 239 S.W.2d 491, 1951 Ky. LEXIS 902 ( Ky. 1951 ).

The violation of an ordinance which established a 15 m.p.h. special limit is the same offense as the statutory offense of operating a motor vehicle on a highway in excess of statutory speed and, therefore, the ordinance is invalid where it provides for a lesser penalty than that provided for in the statute. Murphy v. Lake Louisvilla, 303 S.W.2d 307, 1957 Ky. LEXIS 257 ( Ky. 1957 ).

13.— Partial Invalidity.

An ordinance void in part as being in violation of this section is void only in part and the remainder remains in full force and effect. Louisville v. Wehmhoff, 116 Ky. 812 , 76 S.W. 876, 79 S.W. 201, 25 Ky. L. Rptr. 1924 , 25 Ky. L. Rptr. 995 , 1903 Ky. LEXIS 250 ( Ky. 1903 ).

Cited:

Commonwealth v. Hunter, 41 S.W. 284, 19 Ky. L. Rptr. 1109 (1897); Louisville Public Library Co. v. Louisville, 118 Ky. 334 , 26 Ky. L. Rptr. 202 , 80 S.W. 1169, 1904 Ky. LEXIS 50 ( Ky. 1904 ); Keiper v. Louisville, 152 Ky. 691 , 154 S.W. 18, 1913 Ky. LEXIS 734 ( Ky. 1913 ).

Opinions of Attorney General.

That portion of a city ordinance which imposed a lesser punishment for the sale of alcoholic beverages to minors than the state statute on the same subject was unconstitutional. OAG 67-273 .

A city may provide fines for misdemeanors, public drunkenness, speeding, etc., at amounts higher than the fines for such offenses prescribed by state law. OAG 72-504 .

This section of the Constitution provides that no municipal ordinance shall fix a penalty for a violation thereof at less than that imposed by statute for the same offense, and has been interpreted in a number of instances to the effect that the city legislative body may fix a penalty at any sum provided that it is not less than the penalty set by a State statute for the same offense; therefore any ordinance presently providing for a minimum penalty of $10.00 for violating the provisions of KRS 189.450 would have to be amended to fix the minimum at $25.00. OAG 78-437 .

Ordinance which fixes a penalty of ten dollars to fifty dollars, while KRS 179.990(2), dealing with the same subject matter as dealt with in KRS 179.220 , fixes a penalty of twenty dollars to fifty dollars, was unconstitutional to the extent it fixed a penalty for violation at less than that imposed by statute for the offense. OAG 84-348 .

Research References and Practice Aids

Cross-References.

Double jeopardy under Penal Code, KRS 505.030 to 505.060 .

REVENUE AND TAXATION

§ 169. Fiscal year.

The fiscal year shall commence on the first day of July in each year, unless otherwise provided by law.

NOTES TO DECISIONS

Cited:

Board of Education v. Nelson, 109 Ky. 203 , 22 Ky. L. Rptr. 680 , 58 S.W. 700, 1900 Ky. LEXIS 195 ( Ky. 1900 ); Hager v. Citizens’ Nat’l Bank, 127 Ky. 192 , 32 Ky. L. Rptr. 95 , 105 S.W. 403, 1907 Ky. LEXIS 130 ( Ky. 1907 ); Hager v. American Nat’l Bank, 159 F. 396, 1908 U.S. App. LEXIS 4075 (6th Cir. 1908); Ross v. First Nat’l Bank, 213 Ky. 453 , 281 S.W. 517, 1926 Ky. LEXIS 536 ( Ky. 192 6 ).

Opinions of Attorney General.

Under this section and KRS 92.020 (repealed) implementing same, no city other than that of the first class is required under present law to change its fiscal year from a calendar year to that of July 1 through June 30. OAG 80-380 .

A local city housing authority which is an independent agency could maintain a fiscal year ending March 31, as required by the federal government, despite the requirements of this section and KRS 92.020 (repealed), since the agency is independent and not an agency of the city. OAG 81-324 .

A water and sewer system, organized by a city pursuant to KRS 96.350 and operating on a fiscal year basis ending April 30, must change its fiscal year to one provided for in KRS 92.020 (repealed), pursuant to the city’s authority to do so under this section, since an entity created under KRS 96.350 is not an independent agency and thus is subject to the restrictions of KRS 92.020 (repealed). OAG 81-324 .

The exclusionary effect of the language in this section, “unless otherwise provided by law,” embraces not only a statute providing a calendar year basis, but also a statute specifying in particularity some beginning date of a fiscal year other than July 1. OAG 85-65 .

The fiscal year of counties is governed by this section, except where provided otherwise by statute. OAG 85-65 .

Section 68.060 specifically adopts this section by providing that the fiscal year of each county shall begin on July 1, and end on June 30 next following. OAG 85-65 .

School boards and cities are covered by this section, except where otherwise provided by statute. OAG 85-65 .

The fiscal year provisions of this section apply to fire protection districts created and organized under KRS Ch. 75, unless otherwise provided by statutory law. OAG 85-65 .

By enactment of KRS 75.255 in 1974 the General Assembly abandoned the statutory alternative of a calendar year for fire protection districts, while leaving intact the prior provision of KRS 75.031(2) relating to a “fiscal year basis.” Thus by this legislation a fire protection district is permitted to use only a fiscal year basis. And since KRS Ch. 75 does not specify some beginning date other than July 1, of each year, the July 1 beginning date mentioned specifically in this section governs such fire protection districts. OAG 85-65 .

Research References and Practice Aids

Cross-References.

Fiscal year for counties, KRS 68.060 .

Fiscal year for highway purposes, KRS 176.260 .

Fiscal year for school districts, KRS 160.450 .

§ 170. Property exempt from taxation — Cities may exempt factories for five years.

There shall be exempt from taxation public property used for public purposes; places of burial not held for private or corporate profit; real property owned and occupied by, and personal property both tangible and intangible owned by, institutions of religion; institutions of purely public charity, and institutions of education not used or employed for gain by any person or corporation, and the income of which is devoted solely to the cause of education, public libraries, their endowments, and the income of such property as is used exclusively for their maintenance; household goods of a person used in his home; crops grown in the year in which the assessment is made, and in the hands of the producer; and real property maintained as the permanent residence of the owner, who is sixty-five years of age or older, or is classified as totally disabled under a program authorized or administered by an agency of the United States government or by any retirement system either within or without the Commonwealth of Kentucky, provided the property owner received disability payments pursuant to such disability classification, has maintained such disability classification for the entirety of the particular taxation period, and has filed with the appropriate local assessor by December 31 of the taxation period, on forms provided therefor, a signed statement indicating continuing disability as provided herein made under penalty of perjury, up to the assessed valuation of sixty-five hundred dollars on said residence and contiguous real property, except for assessment for special benefits. The real property may be held by legal or equitable title, by the entireties, jointly, in common, as a condominium, or indirectly by the stock ownership or membership representing the owner’s or member’s proprietary interest in a corporation owning a fee or a leasehold initially in excess of ninety-eight years. The exemptions shall apply only to the value of the real property assessable to the owner or, in case of ownership through stock or membership in a corporation, the value of the proportion which his interest in the corporation bears to the assessed value of the property. The General Assembly may authorize any incorporated city or town to exempt manufacturing establishments from municipal taxation, for a period not exceeding five years, as an inducement to their location. Notwithstanding the provisions of Sections 3, 172, and 174 of this Constitution to the contrary, the General Assembly may provide by law an exemption for all or any portion of the property tax for any class of personal property.

History. Amendment, proposed Acts 1954, ch. 111, § 1, ratified November, 1955; amendment, proposed Acts 1970, ch. 186, § 1, ratified November, 1971; amendment, proposed Acts 1974, ch. 105, § 1, ratified November, 1975; amendment, proposed Acts 1980, ch. 113, § 1, ratified November, 1981; amendment, proposed Acts 1990, ch. 151, § 1, ratified November, 1990; amendment, proposed Acts 1998, ch. 227, § 1, ratified November, 1998.

Compiler’s Notes.

The General Assembly in 1998 (Acts 1998, ch. 227, § 1) proposed an amendment to this section of the Constitution, which amendment was ratified by the voters at the regular election in November, 1998. Prior to the amendment, the section read: “There shall be exempt from taxation public property used for public purposes; places of burial not held for private or corporate profit; real property owned and occupied by, and personal property both tangible and intangible owned by, institutions of religion; institutions of purely public charity, and institutions of education not used or employed for gain by any person or corporation, and the income of which is devoted solely to the cause of education, public libraries, their endowments, and the income of such property as is used exclusively for their maintenance; household goods of a person used in his home; crops grown in the year in which the assessment is made, and in the hands of the producer; and real property maintained as the permanent residence of the owner, who is sixty-five years of age or older, or is classified as totally disabled under a program authorized or administered by an agency of the United States government or by the railroad retirement system, provided the property owner received disability payments pursuant to such disability classification, has maintained such disability classification for the entirety of the particular taxation period, and has filed with the appropriate local assessor by December 31 of the taxation period, on forms provided therefor, a signed statement indicating continuing disability as provided herein made under penalty of perjury, up to the assessed valuation of sixty-five hundred dollars on said residence and contiguous real property, except for assessment for special benefits. The real property may be held by legal or equitable title, by the entireties, jointly, in common, as a condominium, or indirectly by the stock ownership or membership representing the owner’s or member’s proprietary interest in a corporation owning a fee or a leasehold initially in excess of ninety-eight years. The exemptions shall apply only to the value of the real property assessable to the owner or, in case of ownership through stock or membership in a corporation, the value of the proportion which his interest in the corporation bears to the assessed value of the property. All laws exempting or omitting property from taxation other than the property above mentioned shall be void. The General Assembly may authorize any incorporated city or town to exempt manufacturing establishments from municipal taxation, for a period not exceeding five years, as an inducement to their location.”

The General Assembly in 1990 (Acts 1990, ch. 151, § 1) proposed an amendment to the Constitution which amendment was ratified by the voters at the regular election in November, 1990. Prior to the amendment this section read:

“§ 170. Property exempt from taxation — Cities may exempt factories for five years

There shall be exempted from taxation public property used for public purposes; places actually used for for religious worship, with the grounds attached thereto and used and appurtenant to the house of worship, not exceeding one-half acre in cities or towns, and not exceeding two acres in the country; places of burial not held for private or corporate profit, institutions of purely public charity, and institutions of education not used or employed for gain by any person or corporation, and the income of which is devoted solely to the cause of education, public libraries, their endowments, and the income of such property as is used exclusively for their maintenance; all parsonages or residences owned by any religious society, and occupied as a home, or residences owned by any religious society, and occupied as a home, and for no other purpose, by the minister of any religion, with not exceeding one-half acre of ground in towns and cities and two acres of ground in the country appurtenant thereto: household goods of a person used in his home; crops grown in the year in which the assessment is made, and in the hands of the producer; and real property maintained as the permanent residence of the owner, who is sixty-five years of age or older, or is classified as totally disabled under a program authorized or administered by an agency of the United States government or by any retirement system, provided the property owner received disability payments pursuant to such disability classification, has maintained such disability classification for the entirety of the particular taxation period, and has filed with the appropriate local assessor by December 31 of the taxation period, on forms provided therefor, a signed statement indicating continuing disability as provided herein made under penalty of perjury, up to the assessed valuation of sixty-five hundred dollars on said residence and contiguous real property, except for assessment for special benefits. The real property may be held by legal or equitable title, by the entireties, jointly, in common, as a condominium, or indirectly by the stock ownership or membership representing the owner’s or member’s proprietary interest in a corporation owning a fee or a leasehold initially in excess of ninety-eight years. The exemptions shall apply only to the value of the real property assessable to the owner or, in case of ownership through stock or membership in a corporation, the value of the proportion which his interest in the corporation bears to the assessed value of the property. All laws exempting or omitting property from taxation other than the property above mentioned shall be void. The General Assembly may authorize any incorporated city or town to exempt manufacturing establishments from municipal taxation, for a period not exceeding five years, as an inducement to their location.”

An amendment to this section was also proposed by the 1990 General Assembly (Acts 1990, ch. 150, § 3), was submitted to the voters for ratification or rejection at the regular election in November, 1990, and was defeated.

The General Assembly in 1980 (Acts 1980, ch. 113, § 1) proposed an amendment to this section of the Constitution, which amendment was ratified by the voters at the regular election in November, 1981. Prior to the amendment, the section read: “ § 170. Property exempt from taxation — Cities may exempt factories for five years. — There shall be exempt from taxation public property used for public purposes; places actually used for religious worship, with the grounds attached thereto and used and appurtenant to the house of worship, not exceeding one half acre in cities or towns, and not exceeding two acres in the country; places of burial not held for private or corporate profit, institutions of purely public charity, and institutions of education not used or employed for gain by any person or corporation, and the income of which is devoted solely to the cause of education, public libraries, their endowments, and the income of such property as is used exclusively for their maintenance; all parsonages or residences owned by any religious society, and occupied as a home, or residences owned by any religious society, and occupied as a home, and for no other purpose, by the minister of any religion, with not exceeding one half acre of ground in towns and cities and two acres of ground in the country appurtenant thereto; household goods of a person used in his home; crops grown in the year in which the assessment is made, and in the hands of the producer; and real property maintained as the permanent residence of the owner, who is sixty-five years of age or older, up to the assessed valuation of sixty-five hundred dollars on said residence and contiguous real property, except for assessment for special benefits. The real property may be held by legal or equitable title, by the entireties, jointly, in common, as a condominium, or indirectly by the stock ownership or membership representing the owner’s or member’s proprietary interest in a corporation owning a fee or a leasehold initially in excess of ninety-eight years. The exemption shall apply only to the value of the real property assessable to the owner or, in case of ownership through stock or membership in a corporation, the value of the proportion which his interest in the corporation bears to the assessed value of the property. All laws exempting or omitting property from taxation other than the property above mentioned shall be void. The general assembly may authorize any incorporated city or town to exempt manufacturing establishments from municipal taxation, for a period not exceeding five years, as an inducement to their location.”

NOTES TO DECISIONS

1.Construction.

The provisions of this section and Const., § 172 are mandatory; therefore, a city council has no power to remit or compromise taxes due the city. Shuck v. Lebanon, 68 S.W. 843, 24 Ky. L. Rptr. 451 , 1902 Ky. LEXIS 319 (Ky. Ct. App. 1902).

Tax exemption privileges may not be extended beyond the clear import of the provisions of this section. Trintiy Temple Charities, Inc. v. Louisville, 300 Ky. 172 , 188 S.W.2d 91, 1945 Ky. LEXIS 505 ( Ky. 1945 ).

The exemption for property used for religious purposes under this section is to be strictly construed. Ashland v. Calvary Protestant Episcopal Church, 278 S.W.2d 708, 1955 Ky. LEXIS 483 ( Ky. 1955 ).

2.Application.

The provision of this section and a statute that public property used for public purposes shall be exempt from taxation refers only to general ad valorem or property taxes and not to special assessments for street improvements. Mt. Sterling v. Montgomery County, 152 Ky. 637 , 153 S.W. 952, 1913 Ky. LEXIS 702 ( Ky. 1913 ).

This section does not apply where the Legislature has declined to give the state jurisdiction over intangible property of a nonresident beneficiary. Henderson v. Barrett's Ex'r, 152 Ky. 648 , 153 S.W. 992, 1913 Ky. LEXIS 718 ( Ky. 1913 ).

Tobacco held by the French government for sale under its governmental monopoly for all tobacco sales in territory under its jurisdiction is not subject to Commonwealth taxation and such taxation would be a clear interference with the sovereignty of France as recognized by the United States and the Commonwealth. French Republic v. Board of Sup'rs, 200 Ky. 18 , 252 S.W. 124, 1923 Ky. LEXIS 13 ( Ky. 1923 ).

The exemptions of this section do not apply to foreign institutions owning property within the state but conducting their charitable or educational activities wholly outside the state. Lloyd Library & Museum v. Chipman, 232 Ky. 191 , 22 S.W.2d 597, 1929 Ky. LEXIS 420 ( Ky. 1929 ). See Layman Foundation v. Louisville, 232 Ky. 259 , 22 S.W.2d 622, 1929 Ky. LEXIS 436 ( Ky. 1929 ).

This section applies to ad valorem taxes and has no application to license, franchise, occupation, or excise taxes levied under proper authority. Louisville v. Cromwell, 233 Ky. 828 , 27 S.W.2d 377, 1930 Ky. LEXIS 663 ( Ky. 1930 ).

The state income tax law is not a property tax and therefore is not governed by the provisions of this section nor by Const., §§ 171 and 172. Reynolds Metal Co. v. Martin, 269 Ky. 378 , 107 S.W.2d 251, 1937 Ky. LEXIS 604 ( Ky. 1937 ).

The exemption of public property used for public purposes exempts such property from ad valorem taxation only. Board of Education v. Talbott, 286 Ky. 543 , 151 S.W.2d 42, 1941 Ky. LEXIS 283 ( Ky. 1941 ).

This section only applies to ad valorem taxes. Thomas v. Elizabethtown, 403 S.W.2d 269, 1965 Ky. LEXIS 8 ( Ky. 1965 ). See Commonwealth ex rel. Luckett v. Elizabethtown, 435 S.W.2d 78, 1968 Ky. LEXIS 199 ( Ky. 1968 ), overruled in part, Commonwealth v. Interstate Gas Supply, Inc., 554 S.W.3d 831, 2018 Ky. LEXIS 140 ( Ky. 2018 ).

3.Effect on Prior Law.

Acts of the Legislature exempting property from taxation adopted prior to the adoption of the constitution were repealed by this section. Newport v. Masonic Temple Ass'n, 103 Ky. 592 , 45 S.W. 881, 20 Ky. L. Rptr. 266 , 1898 Ky. LEXIS 23 ( Ky. 1898 ). See Campbell County v. Newport & C. Bridge Co., 112 Ky. 659 , 66 S.W. 526, 23 Ky. L. Rptr. 2056 , 1902 Ky. LEXIS 208 ( Ky. 1902 ).

Prior statute exempting farm property from municipal taxation was invalidated by this section. Brown v. Dover, 274 Ky. 692 , 120 S.W.2d 225, 1938 Ky. LEXIS 330 ( Ky. 1938 ).

4.Crops.

Tobacco grown in one calendar year and in the hands of the producer may be assessed at any assessing date during the following year. Burley Tobacco Growers' Co-op. Asso. v. Carrollton, 208 Ky. 270 , 270 S.W. 749, 1925 Ky. LEXIS 268 ( Ky. 1925 ).

Under this section the word “grown” is used in the sense of the word “raised.” Burley Tobacco Growers' Co-op. Asso. v. Carrollton, 208 Ky. 270 , 270 S.W. 749, 1925 Ky. LEXIS 268 ( Ky. 1925 ).

5.Household Goods.

Though this section exempts from taxation personal property property of a person with a family “not exceeding $250 in value,” nothing is exempt from levy and sale for such taxes as the owner does in fact owe. Reams v. McHargue, 111 Ky. 163 , 23 Ky. L. Rptr. 540 , 63 S.W. 437, 1901 Ky. LEXIS 184 ( Ky. 1901 ), aff’d, 71 S.W. 526 (1903) (decision prior to 1955 amendment).

The question of household exemptions may not be raised in an action regarding taxable property and a sheriff’s settlements of tax collections. Livingston County v. Dunn, 244 Ky. 460 , 51 S.W.2d 450, 1932 Ky. LEXIS 453 ( Ky. 1932 ).

The word “place,” which appears in other exemptions of this section, is not used in connection with the educational and charitable institutions which are exempted and cannot be used to limit the two (2) constitutional exemptions. Department of Revenue v. Louisville Children's Theater, Inc., 565 S.W.2d 643, 1978 Ky. App. LEXIS 513 (Ky. Ct. App. 1978).

6.Homesteads.

The dollar value principle applies to the $6500 limit of the homestead exemption and therefore the 1974 amendment to subsection (2) (c) of KRS 132.810 which provides that the $6500 exemption would be construed in terms of the purchasing power of the dollar in 1972 is valid. Lester v. Ft. Thomas, 531 S.W.2d 490, 1975 Ky. LEXIS 35 ( Ky. 1975 ).

7.Manufacturing.

Exemption from taxation may be given to manufacturing establishments for a period of five (5) years from their establishment but it does not apply to those who are already established in the city. Middlesboro v. New South Brewing & Ice. Co., 108 Ky. 351 , 56 S.W. 427, 21 Ky. L. Rptr. 1782 , 1900 Ky. LEXIS 46 ( Ky. 1900 ).

A manufacturer claiming an exemption under this section must allege that his business was a new business in the city and the failure to so allege is not cured by the allegation that a statement as to this fact had been filed with the city assessor. Louisville Car Wheel & R. Supply Co. v. Louisville, 146 Ky. 573 , 142 S.W. 1043, 1912 Ky. LEXIS 102 ( Ky. 1912 ).

One engaged in generating electricity for distribution and sale is engaged in manufacturing within the provisions of this section and a statute authorizing municipalities to exempt manufacturing establishments from taxation. Kentucky Electric Co. v. Buechel, 146 Ky. 660 , 143 S.W. 58, 1912 Ky. LEXIS 142 ( Ky. 1912 ).

The promotion of new and expanded industrial development, by providing tax benefits, is a fixed policy of the Commonwealth. Department of Revenue v. Spalding Laundry & Dry Cleaning Co., 436 S.W.2d 522, 1968 Ky. LEXIS 184 ( Ky. 1968 ).

8.— Exempt.

A new corporation composed in part of the stockholders of the original corporation, which took over the business of an insolvent company and purchased its establishment, was not entitled to exemption under an ordinance exempting manufacturing establishments from taxation for five (5) years. Victor Cotton Oil Co. v. Louisville, 149 Ky. 149 , 148 S.W. 10, 1912 Ky. LEXIS 592 ( Ky. 1912 ).

Where a manufacturer purchased a foundry site and entered upon a new manufacturing enterprise of a different kind, the continued manufacture of some articles made by the old company did not stop exemption from taxation as a new enterprise. Voght Bros. Mach. Co. v. Sea, 181 Ky. 327 , 204 S.W. 76, 1918 Ky. LEXIS 509 ( Ky. 1918 ).

9.— Not Exempt.

Where a corporation merely buys out and continues in the same city, though increasing the capacity of, the business of manufacturing establishments, which are going concerns and have no purpose of abandoning their business, there is no location therein of a new business, so as to entitle it to exemption from taxation under an ordinance passed pursuant to a statute and this section. Continental Tobacco Co. v. Louisville, 123 Ky. 173 , 94 S.W. 11, 29 Ky. L. Rptr. 616 , 1906 Ky. LEXIS 129 ( Ky. 1906 ).

A corporation which is created by the consolidation of three (3) corporations and which continues the business in the same city by means of a larger plant and greater capital is not entitled to exemption from taxation under an ordinance passed pursuant to a statute authorized by this section of the constitution. Jones Bros. v. Louisville, 142 Ky. 759 , 135 S.W. 301, 1911 Ky. LEXIS 299 ( Ky. 1911 ).

A railroad company which had for many years maintained its shops in the city and erected new buildings on land part of which it had purchased prior to the passage of an ordinance exempting property of manufacturers from taxation and installed new machinery but continued substantially the same work was not entitled to exemption. Louisville & N. R. Co. v. Louisville, 143 Ky. 258 , 136 S.W. 611, 1911 Ky. LEXIS 391 ( Ky. 1911 ).

A corporation organized as a wholesale business to take over a largely retail bakery business was not entitled to exemption from municipal taxation as a new manufacturing establishment where the corporation was in effect controlled, owned and operated by the proprietor of the former business. Louisville v. New York Baking Co., 151 Ky. 758 , 152 S.W. 980, 1913 Ky. LEXIS 587 ( Ky. 1913 ). See B. F. McCormick Lumber Co. v. Winchester, 155 Ky. 494 , 159 S.W. 997, 1913 Ky. LEXIS 285 ( Ky. 1913 ).

Where a company established a box factory in the city wherein wooden boxes were manufactured and thereafter added a plant manufacturing paper boxes, this last plant was not a new business entitling it to tax exemption. Mengel Box Co. v. Sea, 167 Ky. 193 , 180 S.W. 347, 1915 Ky. LEXIS 828 ( Ky. 1915 ) ( Ky. 1915 ).

A mere expansion of a manufacturing business from a very small to a very large business does not exempt the property from taxation. Louisville v. Louisville Tin & Stove Co., 170 Ky. 557 , 186 S.W. 124, 1916 Ky. LEXIS 65 ( Ky. 1916 ).

10.— Corporate Stock.

An effort to exempt the stock of a corporation from taxation would be invalid. Commonwealth ex rel. Hopkins v. Fidelity Trust Co., 147 Ky. 77 , 143 S.W. 1037, 1912 Ky. LEXIS 216 ( Ky. 1912 ).

11.Public Property.

This section authorizes the exemption from taxation of property owned by a city necessary to the exercise of governmental duties, but not property held and used by a city for mere money making purposes, or for the comfort of its citizens. Board of Councilmen v. Commonwealth, 82 S.W. 1008, 26 Ky. L. Rptr. 957 , 1904 Ky. LEXIS 406 (Ky. Ct. App. 1904).

Where nonnegotiable bonds, acquired by a city as part of the consideration for the sale of gas plant, are held by the city solely for the purpose of devoting the income to paying the expenses of lighting the streets, they are used for public purposes. Board of Councilmen v. Commonwealth, 94 S.W. 648, 29 Ky. L. Rptr. 699 , 1906 Ky. LEXIS 323 (Ky. Ct. App. 1906).

Property of a municipality acquired and necessary to the discharge of strictly local municipal purposes is held for a public purpose and is exempt from taxation. Board of Councilmen v. White, 224 Ky. 570 , 6 S.W.2d 699, 1928 Ky. LEXIS 639 ( Ky. 1928 ).

In order to be exempt from taxation, property must be owned by all the citizens of a state or community. Inter-County Rural Electric Co-operative Corp. v. Reeves, 294 Ky. 458 , 171 S.W.2d 978, 1943 Ky. LEXIS 446 ( Ky. 1943 ).

The fact that property is devoted to public purposes does not exempt it from taxation unless it is also publicly owned, and mere use for public purposes does not clothe property with public ownership. Inter-County Rural Electric Co-operative Corp. v. Reeves, 294 Ky. 458 , 171 S.W.2d 978, 1943 Ky. LEXIS 446 ( Ky. 1943 ).

12.— Exempt.

The property of a city used in connection with its fire department, and also public parks of the city, are exempt from state taxation. Owensboro v. Commonwealth, 105 Ky. 344 , 49 S.W. 320, 20 Ky. L. Rptr. 1281 , 1899 Ky. LEXIS 236 ( Ky. 1899 ).

A waterworks system owned and operated by a city is of a governmental and public nature and is exempt from taxation as public property used for a public purpose and the fact that water rents are paid by the inhabitants using the water does not alter the public character of the waterworks system nor make it subject to taxation. Commonwealth v. Covington, 128 Ky. 36 , 107 S.W. 231, 32 Ky. L. Rptr. 837 , 1908 Ky. LEXIS 28 ( Ky. 1908 ). See City of Covington v. District of Highlands, 110 S.W. 338, 33 Ky. L. Rptr. 323 (1908); Ryan v. Louisville, 133 Ky. 714 , 118 S.W. 992, 1909 Ky. LEXIS 226 ( Ky. 1909 ); District of Highlands v. Covington, 164 Ky. 815 , 176 S.W. 192, 1915 Ky. LEXIS 446 ( Ky. 1915 ).

A sinking fund created to liquidate the bonded debt incurred by a city in the purchase of a waterworks system is but so much taxes collected to liquidate a debt, incurred for a public purpose, notwithstanding it is invested in interest-bearing stocks and bonds, and is exempt from taxation as public property used for a public purpose. Commonwealth ex rel. Albritton v. Sinking Fund Comm'rs of Lebanon Waterworks Co., 130 Ky. 61 , 112 S.W. 1128 ( Ky. 1908 ).

Where the rents received by a city for its wharf property leased to various persons are turned into the sinking fund for payment of interest and principal of the bonded indebtedness after policing, lighting, and repairing the property, the property is used for public purposes and is exempt from taxation. Commonwealth v. Louisville, 133 Ky. 845 , 119 S.W. 161, 1909 Ky. LEXIS 232 ( Ky. 1909 ).

Under this section the city hall of the city of Louisville is exempt from taxation. Schwalk's Adm'r v. Louisville, 135 Ky. 570 , 122 S.W. 860, 1909 Ky. LEXIS 322 ( Ky. 1909 ).

The marketplace and stalls therein owned and maintained by a city where gardeners and meat venders may display their goods for sale under regulations prescribed by the city at a rental charge for their use for the payment of the expense of maintenance are exempt from taxation as public property used for public purposes. Paducah v. Commonwealth, 136 Ky. 232 , 124 S.W. 286, 1910 Ky. LEXIS 473 ( Ky. 1910 ).

Property and bonds of municipal housing commissions are exempt from taxation. Webster v. Frankfort Housing Com., 293 Ky. 114 , 168 S.W.2d 344, 1943 Ky. LEXIS 559 ( Ky. 1943 ).

Fourth-class city was exempt from the payment of use taxes on automobiles purchased by the city for municipal use. Thomas v. Elizabethtown, 403 S.W.2d 269, 1965 Ky. LEXIS 8 ( Ky. 1965 ).

The Kentucky bar center building located in Frankfort, Kentucky, is public property and therefore exempt from the levy of ad valorem taxes. Travis v. Landrum, 607 S.W.2d 124, 1980 Ky. App. LEXIS 373 (Ky. Ct. App. 1980).

The fact that the Commonwealth of Kentucky is not a named grantee in the deed to the state bar center building does not prevent the property from being public property and does not deprive the property of a tax exempt status. Travis v. Landrum, 607 S.W.2d 124, 1980 Ky. App. LEXIS 373 (Ky. Ct. App. 1980).

13.— Not Exempt.

Under this section a municipal waterworks constructed and maintained by the city is not exempt from taxation, as such a utility is used for the profit and convenience of the city residents and not for purely public purposes, as such public purposes means purely governmental purposes. Covington v. Kentucky, 173 U.S. 231, 19 S. Ct. 383, 43 L. Ed. 679, 1899 U.S. LEXIS 1434 (U.S. 1899).

Though a municipality has acquired all the shares of stock of a water company, the property of the water company is not thereby converted into public property used for public purposes, and thereby exempt from taxation. Bell v. Louisville, 106 S.W. 862, 32 Ky. L. Rptr. 699 (1908).

Property of a rural electric cooperative corporation is not public property and cannot be exempted from taxation, since the public generally are not ipso facto members of such a corporation. Inter-County Rural Electric Co-operative Corp. v. Reeves, 294 Ky. 458 , 171 S.W.2d 978, 1943 Ky. LEXIS 446 ( Ky. 1943 ).

Property purchased by the city at a commissioner’s sale to satisfy tax and improvement liens and held solely for resale is subject to state, county, and school taxes. Paducah v. Commonwealth, 297 Ky. 107 , 178 S.W.2d 982, 1944 Ky. LEXIS 674 ( Ky. 1944 ).

14.Places of Worship.

In contrast to the broad and liberal terms of exemption granted by this section to educational and charitable institutions, the exemptions granted to religious organizations are narrow and strictly construed. Mordecai F. Ham Evangelistic Ass'n v. Matthews, 300 Ky. 402 , 189 S.W.2d 524, 1945 Ky. LEXIS 565 ( Ky. 1945 ).

There is no inherent immunity from taxation in favor of the church; immunity must come from an express waiver of the sovereign. Mordecai F. Ham Evangelistic Ass'n v. Matthews, 300 Ky. 402 , 189 S.W.2d 524, 1945 Ky. LEXIS 565 ( Ky. 1945 ).

It is proper to give a strict interpretation of what is owned by a religious or educational institution for the purpose of determining question of exemption from taxation. Broadway & Fourth Ave. Realty Co. v. Louisville, 303 Ky. 202 , 197 S.W.2d 238, 1946 Ky. LEXIS 814 ( Ky. 1946 ).

While a portion of a church’s property containing houses rented to tenants was not “owned and occupied by” the church and, thus, was not exempt from tax assessment under Ky. Const. § 170, the remaining acreage outside the two houses was occupied by the church and was exempt as the evidence showed the church’s periodic use of the property for recreational and meditation purposes. Freeman v. St. Andrew Orthodox Church, Inc., 294 S.W.3d 425, 2009 Ky. LEXIS 92 ( Ky. 2009 ).

15.— Exempt.

A Y.M.C.A. organized to endeavor to bring young men under moral and religious influences, and holding meetings every Sunday afternoon in a building owned by the association, actually uses its building for religious worship within the meaning of this section, and it is exempt from taxation. Commonwealth v. YMCA, 116 Ky. 711 , 76 S.W. 522, 25 Ky. L. Rptr. 940 , 1903 Ky. LEXIS 233 ( Ky. 1903 ).

A portion of a lot on which a church is built which is practically unoccupied, but is appurtenant to the church, and used with it by the congregation, is exempt from taxation. City of Louisville v. Werne, 80 S.W. 224, 25 Ky. L. Rptr. 2196 (1904).

Moneys intended to be devoted to acquiring a place of religious worship, as well as the place itself, are exempt from taxation. Commonwealth v. First Christian Church, 169 Ky. 410 , 183 S.W. 943, 1916 Ky. LEXIS 703 (Ky.), modified, 171 Ky. 62 , 186 S.W. 880, 1916 Ky. LEXIS 289 ( Ky. 1916 ).

A building owned by a church diocese the entire rent from which is used solely for denominational school purposes is exempt from taxation so long as the income is so used. Church of The Good Shepherd v. Commonwealth, 180 Ky. 465 , 202 S.W. 894, 1918 Ky. LEXIS 85 ( Ky. 1918 ).

As amended in 1990, Ky. Const. § 170 broadened the class of properties which could be held by a religious institution and not be subject to an ad valorem tax. Because there was no evidence that a church intended to use its property for investment purposes or to construct anything other than a church, it was entitled to a tax exemption. St. Andrew Orthodox Church, Inc. v. Thompson, 2007 Ky. App. LEXIS 260 (Ky. Ct. App. Aug. 10, 2007, sub. op., 2007 Ky. App. Unpub. LEXIS 523 (Ky. Ct. App. Aug. 10, 2007).

16.— Not Exempt.

A trust fund devoted to the propagation of the principles of primitive Christianity, as taught by the Christian Church, by means of the employment of an evangelist and otherwise, is not exempt from taxation on the ground that it is church property. Commonwealth v. Thomas, 119 Ky. 208 , 83 S.W. 572, 26 Ky. L. Rptr. 1128 , 1904 Ky. LEXIS 160 ( Ky. 1904 ).

Where a lot belonging to a religious organization and adjoining its church property was occupied by a building rented out for store and dwelling purposes, it was not exempt from taxation as property used for religious worship. Calvary Baptist Church v. Milliken, 148 Ky. 580 , 147 S.W. 12, 1912 Ky. LEXIS 486 ( Ky. 1912 ).

An office building owned by a board of education of a church conference and used in part for offices for the owner, the rent from the remainder being employed in the partial support of a college maintained by the conference in another city, is exempt from taxation. Commonwealth v. Board of Education, 166 Ky. 610 , 179 S.W. 596, 1915 Ky. LEXIS 745 ( Ky. 1915 ).

Where one entered into a contract to purchase the property of a church congregation, paying about one third (1/3) of the consideration in cash and agreeing to pay the remainder on demand, and the congregation retained a lien on the property, possession of which it was to retain until its new building was completed, the contract was valuable property subject to taxation and not exempt therefrom under this section. Commonwealth v. First Christian Church, 169 Ky. 410 , 183 S.W. 943, 1916 Ky. LEXIS 703 (Ky.), modified, 171 Ky. 62 , 186 S.W. 880, 1916 Ky. LEXIS 289 ( Ky. 1916 ).

Use and not ownership is the controlling factor in determining whether property is used for religious worship and a building adjoining church property, used in part for religious activities but in part rented to a business, is not exempt from taxation. Ashland v. Calvary Protestant Episcopal Church, 278 S.W.2d 708, 1955 Ky. LEXIS 483 ( Ky. 1955 ).

17.Parsonages.

A church parsonage which is not occupied by the minister but is rented to another is not exempt, though erected on the church lot, and though the rent is paid to the minister. Broadway Christian Church v. Com. & Trustees Broadway Christian Church, 112 Ky. 448 , 66 S.W. 32, 23 Ky. L. Rptr. 1695 , 1902 Ky. LEXIS 184 (Ky. Ct. App. 1902).

In order for a parsonage to be exempt from taxation, it must be owned by a religious society as well as occupied by a minister. Mordecai F. Ham Evangelistic Ass'n v. Matthews, 300 Ky. 402 , 189 S.W.2d 524, 1945 Ky. LEXIS 565 ( Ky. 1945 ).

Residence occupied by an ordained minister, unaffiliated with any organized church, and owned by a religious corporation of which the minister was the principal owner, does not qualify for tax exemption under this section. Mordecai F. Ham Evangelistic Ass'n v. Matthews, 300 Ky. 402 , 189 S.W.2d 524, 1945 Ky. LEXIS 565 ( Ky. 1945 ).

18.Places of Burial.

Funds of a cemetery company derived from sale of lots are not exempt from taxation. Commonwealth v. Lexington Cemetery Co., 114 Ky. 165 , 70 S.W. 280, 24 Ky. L. Rptr. 924 , 1902 Ky. LEXIS 139 ( Ky. 1902 ).

The cemetery of a city expending the money realized from the sale of unsold lots and the income from rentals in maintaining the cemetery is exempt from taxation. Paducah v. Commonwealth, 136 Ky. 232 , 124 S.W. 286, 1910 Ky. LEXIS 473 ( Ky. 1910 ).

Where the Legislature created a cemetery company as a body politic, authorized its maintenance and development by specified financial means, retained the power to alter or modify the legal structure of the company and authorized the levy of taxes to maintain the company should the other financial arrangements fail, the funds of the company were public property used for a public purpose within the meaning of this section. Cave Hill Cemetery Co. v. Scent, 352 S.W.2d 61, 1961 Ky. LEXIS 187 ( Ky. 1961 ).

19.Public Libraries.

The exemption of public libraries is not limited only to libraries owned and maintained by a governmental unit in light of the fact that such governmentally owned libraries would in any case be exempt as public property used for public purposes. Louisville v. Filson Club, 295 S.W.2d 340, 1956 Ky. LEXIS 159 ( Ky. 1956 ).

Where a nonprofit membership corporation, not incorporated for the purpose of maintaining a library as such, was functioning primarily as a public library, and its membership activities and benefits were minor in comparison therewith, its property was exempt from taxation. Louisville v. Filson Club, 295 S.W.2d 340, 1956 Ky. LEXIS 159 ( Ky. 1956 ).

20.Public Charities.

A masonic lodge which provides for its members and their families, or the widows and orphans of those who are dead, is a private charity and not exempt from municipal taxation. Newport v. Masonic Temple Ass'n, 108 Ky. 333 , 56 S.W. 405, 21 Ky. L. Rptr. 1785 , 1900 Ky. LEXIS 41 ( Ky. 1900 ). But see Widows' & Orphans' Home v. Commonwealth, 126 Ky. 386 , 103 S.W. 354, 31 Ky. L. Rptr. 775 , 1907 Ky. LEXIS 49 ( Ky. 1907 ).

A trust fund devoted to the propagation of the principles of primitive Christianity, as taught by the Christian Church, is not a “purely public charity,” within the meaning of this section exempting such charities from taxation. Commonwealth v. Thomas, 119 Ky. 208 , 83 S.W. 572, 26 Ky. L. Rptr. 1128 , 1904 Ky. LEXIS 160 ( Ky. 1904 ).

The property used as an infirmary or hospital, as an adjunct to a medical school, any gain resulting from the operation of the medical school going to the owners of the property, is not exempt from taxation, though considerable charity work is performed in the treatment of patients and dispensing medicines. Wathen v. City of Louisville, 85 S.W. 1195, 27 Ky. L. Rptr. 635 , 1905 Ky. LEXIS 261 (Ky. Ct. App. 1905).

A fraternal organization which owned a building and rented the rooms for lodge and religious purposes was not a purely public charity even though it did engage in some charity work. Vogt v. Louisville, 173 Ky. 119 , 190 S.W. 695, 1917 Ky. LEXIS 427 ( Ky. 1917 ). See Merrick Lodge, I. O. O. F. v. Lexington, 175 Ky. 275 , 194 S.W. 92, 1917 Ky. LEXIS 295 ( Ky. 1917 ).

A church is not a purely public charity under this section. Sage's Ex'rs v. Commonwealth, 196 Ky. 257 , 244 S.W. 779, 1922 Ky. LEXIS 518 (Ky. Ct. App. 1922).

The Benevolent Association of Elks is not an institution of purely public charity within the meaning of this section. Benevolent Ass'n of Elks v. Wintersmith, 204 Ky. 20 , 263 S.W. 670, 1924 Ky. LEXIS 393 ( Ky. 1924 ).

In the exemption granted in this section to purely public charities, the word “purely” is definitive of the word “charity” and does not instead modify the word “public.” Iroquois Post No. 229, etc. v. Louisville, 309 S.W.2d 353, 1958 Ky. LEXIS 353 ( Ky. 1958 ).

Property of organization claiming right to tax exemption could not have been used for charitable purposes unless charity was actually dispensed there, or unless it provided necessary quarters for an organization whose prime aims and functions were of an actively charitable nature. Iroquois Post No. 229, etc. v. Louisville, 309 S.W.2d 353, 1958 Ky. LEXIS 353 ( Ky. 1958 ).

The burden of proof rests upon organization claiming tax exemption as an institution of purely public charity to establish clearly its right to an exemption from payment of taxes. Iroquois Post No. 229, etc. v. Louisville, 309 S.W.2d 353, 1958 Ky. LEXIS 353 ( Ky. 1958 ).

The property of an American Legion post, which contributes a portion of its income incidentally to charity, is not tax exempt as the property of a purely public charity. Iroquois Post No. 229, etc. v. Louisville, 309 S.W.2d 353, 1958 Ky. LEXIS 353 ( Ky. 1958 ).

To warrant an exemption from payment of taxes, institution must itself be a charity, income from its property must be used to further its charitable purpose, and property must be employed for purely charitable purpose. Iroquois Post No. 229, etc. v. Louisville, 309 S.W.2d 353, 1958 Ky. LEXIS 353 ( Ky. 1958 ).

When framers of constitution wrote that an institution of purely public charity was exempt from taxation, they had in mind an institution that dispenses concrete, practical, objective charity, characterized by things actually done for relief of the unfortunate and alleviation of suffering. Iroquois Post No. 229, etc. v. Louisville, 309 S.W.2d 353, 1958 Ky. LEXIS 353 ( Ky. 1958 ).

For property to be exempt from ad valorem taxation the property does not have to be employed directly in charitable work, for it is sufficient that the ultimate effect of the use of the property is to accomplish the charitable purposes of the institution. Commonwealth ex rel. Luckett v. Grand Lodge of Kentucky & M., 459 S.W.2d 601, 1970 Ky. LEXIS 139 ( Ky. 1970 ).

To qualify as a charity for purposes of tax exemption an organization may promote activities which reasonably better the condition of mankind and need not confine its activities solely to those which fulfill the basic human needs for food, clothing and shelter. Banahan v. Presbyterian Housing Corp., 553 S.W.2d 48, 1977 Ky. LEXIS 471 ( Ky. 1977 ).

Although, as a general principle, provisions granting tax exemptions must be strictly construed, charity has been construed under this section to include activities which reasonably better the condition of mankind and is broader than relief to the needy poor. Department of Revenue v. Central Medical Laboratory, Inc., 555 S.W.2d 632, 1977 Ky. App. LEXIS 800 (Ky. Ct. App. 1977).

Charity is not just providing necessaries for the poor or unfortunate, but rather it may consist of any activities which will reasonably better the living conditions of mankind generally and a charity need not lessen the burden of government to be tax exempt. Department of Revenue v. Louisville Children's Theater, Inc., 565 S.W.2d 643, 1978 Ky. App. LEXIS 513 (Ky. Ct. App. 1978).

The public charities exemption is designed to apply to real property taxes and does not constitute a carte blanche exemption of taxation. Children's Psychiatric Hosp., Inc. v. Revenue Cabinet, 989 S.W.2d 583, 1999 Ky. LEXIS 43 ( Ky. 1999 ).

21.— Fees on Charitable Gaming.

KRS 238.570(1), imposing a regulatory fee on receipts from charitable gaming, does not violate Ky. Const., § 226(2)(f), which provides that money raised by charitable gaming be expended only for charitable purposes; nor does it violate this section, which provides that charitable institutions shall be exempt from tax, or Ky. Const., § 171, which provides that taxes shall be uniform on all property in the state. Commonwealth v. Louisville Atlantis Community/Adapt, 971 S.W.2d 810, 1997 Ky. App. LEXIS 86 (Ky. Ct. App. 1997).

22.— Sales Tax.

Although a municipal housing commission is an institution of purely public charity, it is not exempt from the imposition of the state sales tax on utilities purchased by the commission, as such a tax is in fact imposed on the seller. Marcum v. Louisville Municipal Housing Com., 374 S.W.2d 865, 1963 Ky. LEXIS 182 ( Ky. 1963 ), limited, Thomas v. Elizabethtown, 403 S.W.2d 269, 1965 Ky. LEXIS 8 ( Ky. 1965 ).

Where all of the income of a children’s theater was derived primarily from public and private donations and devoted to charitable endeavors and the salaries of the staff were an expense of the charity, such theater was exempt from sales taxation as a public charity and as an educational institution. Department of Revenue v. Louisville Children's Theater, Inc., 565 S.W.2d 643, 1978 Ky. App. LEXIS 513 (Ky. Ct. App. 1978).

23.— Use Tax.

A municipal housing commission, as an institution of purely public charity, is exempt from the payment of a use tax on utilities it purchases. Marcum v. Louisville Municipal Housing Com., 374 S.W.2d 865, 1963 Ky. LEXIS 182 ( Ky. 1963 ), limited, Thomas v. Elizabethtown, 403 S.W.2d 269, 1965 Ky. LEXIS 8 ( Ky. 1965 ).

24.— Exempt.

Under this section the Kentucky Female Orphan School, a corporation which provides for the care and education of female orphan children, is an institution of purely public charity and is exempt from taxation, for though some paying pupils may also be received, the amount received therefrom is devoted solely to the maintenance of the school, and, in view of the long settled legislative policy of the state, the word “institution,” as used in this section, must be construed to include the corporation and all of its property, wherever situated, and in whatever form its investments may be found. Trustees of Kentucky Female Orphan School v. Louisville, 100 Ky. 470 , 36 S.W. 921, 19 Ky. L. Rptr. 1091 , 19 Ky. L. Rptr. 1916 , 1896 Ky. LEXIS 130 ( Ky. 1896 ).

A sectarian school where preference is given to the admission of members of a particular religious faith is nonetheless a charitable institution, and its property is exempt from taxation. Louisville v. Southern Baptist Theological Seminary, 100 Ky. 506 , 36 S.W. 995, 19 Ky. L. Rptr. 1100 , 1896 Ky. LEXIS 132 ( Ky. 1896 ). See Louisville v. Nazareth Literary & Benevolent Inst., 19 Ky. L. Rptr. 1102 (1897).

Trust funds bequeathed to be invested and the income used solely for the education of poor children are exempt from taxation. Commonwealth v. Gray's Trustee, 115 Ky. 665 , 74 S.W. 702, 25 Ky. L. Rptr. 52 , 1903 Ky. LEXIS 144 ( Ky. 1903 ).

Where a will directed the executors to establish a trust to continue five (5) years from the death of the testator, and during that time to sell certain real estate for the benefit of the trust fund, and at the expiration of such five (5) years to terminate the trust by paying the funds to a specified orphans’ home, which was a nontaxable charitable institution, the real estate so held by the trustees during such five (5) years was not subject to taxation. Norton's Ex'rs v. Louisville, 118 Ky. 836 , 82 S.W. 621, 26 Ky. L. Rptr. 846 , 1904 Ky. LEXIS 123 ( Ky. 1904 ).

A corporation whose sole object is to provide a suitable home for the destitute widows and orphans of deceased members of a certain secret society is an institution of purely public charity, and its property is exempt from taxation. Widows' & Orphans' Home v. Commonwealth, 126 Ky. 386 , 103 S.W. 354, 31 Ky. L. Rptr. 775 , 1907 Ky. LEXIS 49 ( Ky. 1907 ).

The fact that a fund bequeathed to a trustee for the purpose of founding a home for old and destitute women is withheld by the trustee and executor from the board of managers of the home pending a contest of the will does not remove it from the exemption provided for in this section. Commonwealth v. Parr's Ex'r, 167 Ky. 46 , 179 S.W. 1048, 1915 Ky. LEXIS 791 ( Ky. 1915 ).

A hospital incorporated by trustees as a charitable corporation, having no capital stock and holding property for the maintenance of a hospital without pecuniary profit, and having funds invested, the income of which is used solely in meeting its necessary expenses, is an institution of purely public charity whose invested fund is exempt from taxation. Mason County v. Hayswood Hospital of Maysville, 167 Ky. 17 , 179 S.W. 1050, 1915 Ky. LEXIS 792 ( Ky. 1915 ).

A Y.M.C.A. operating a restaurant in its building, containing sleeping rooms, for the accommodation of members and others who may apply is exempt from payment of restaurant license tax required by a statute. Corbin YMCA v. Commonwealth, 181 Ky. 384 , 205 S.W. 388, 1918 Ky. LEXIS 533 ( Ky. 1918 ).

A corporation whose purpose was the securing of funds for the benefit of retired members, their widows and infant children who were affiliated with certain religious denominations is a public charity exempt from taxation. Preachers' Aid Soc. v. Jacobs, 235 Ky. 790 , 32 S.W.2d 343, 1930 Ky. LEXIS 467 ( Ky. 1930 ).

A nonstock, nonprofit corporation which was established to acquire and use funds to provide a home for the destitute widows and orphans of deceased members of the Methodist Episcopal Church and any others who might be placed in the corporation’s charge was a purely public charity and therefore exempt from taxation. Gray v. Methodist Episcopal Church, etc., 272 Ky. 646 , 114 S.W.2d 1141, 1938 Ky. LEXIS 180 ( Ky. 1938 ).

A building used as the headquarters for various affairs of a lodge whose basic objective was charity was exempt from ad valorem taxation even though the building was not used directly in the lodge’s various charitable activities. Commonwealth ex rel. Luckett v. Grand Lodge of Kentucky & M., 459 S.W.2d 601, 1970 Ky. LEXIS 139 ( Ky. 1970 ).

Where all purposes of foundation were charitable in nature, the fact that all of its stated purposes had not been carried out and that its stated purposes were not charities which fulfill basic human needs did not deprive it of tax exempt status. Commonwealth, Dep't of Revenue ex rel. Luckett v. Isaac W. Bernheim Foundation, Inc., 505 S.W.2d 762, 1974 Ky. LEXIS 796 ( Ky. 1974 ).

Two (2) nonprofit corporations, whose purposes include, among other things, the provision of housing to low and moderate income families of elderly or handicapped persons, are exempt from ad valorem taxation as institutions of purely public charity. Banahan v. Presbyterian Housing Corp., 553 S.W.2d 48, 1977 Ky. LEXIS 471 ( Ky. 1977 ).

Where a nonprofit laboratory testing facility performed services for three (3) nonprofit hospitals which would otherwise have been required to perform such services themselves or contract to have them performed, the facility was a public charity as contemplated by this section and was exempt from sales and use taxes. Department of Revenue v. Central Medical Laboratory, Inc., 555 S.W.2d 632, 1977 Ky. App. LEXIS 800 (Ky. Ct. App. 1977).

25.— Not Exempt.

The property of the Kentucky Chautauqua Assembly is not exempt from taxation. Bosworth v. Kentucky Chautauqua Assembly, 112 Ky. 115 , 65 S.W. 602, 23 Ky. L. Rptr. 1393 , 1901 Ky. LEXIS 308 ( Ky. 1901 ).

No exemption will be allowed for property in which a public charity has a remainder interest which is contingent on the life tenant, a 20-year-old girl, dying without issue or her issue dying before reaching majority. Moorman's Ex'r v. Board of Sup'rs, 192 Ky. 242 , 232 S.W. 379, 1921 Ky. LEXIS 21 ( Ky. 1921 ).

A contract purporting to lease certain real estate of a charitable organization for a period of 20 years, which provided for a $10,000 down payment and for monthly rentals gradually decreasing over the term, gave the lessee title at the end of the term and an option to purchase at any time during the term for a specified sum less rentals already paid, gave the lessee the right to demolish and remove a large church building on the premises, and the right to assign his interest in the lease, and provided for a commission to the real estate agent who handled the deal, was a contract of sale and not a lease, so the real estate was subject to taxation. Trintiy Temple Charities, Inc. v. Louisville, 300 Ky. 172 , 188 S.W.2d 91, 1945 Ky. LEXIS 505 ( Ky. 1945 ).

Appellee organization’s real property was not tax exempt under Ky. Const. § 170, where the evidence did not establish that appellee was a purely public charity or that its property was employed for a purely charitable purpose. Hancock v. Prestonsburg Indus. Corp., 365 S.W.3d 199, 2012 Ky. LEXIS 35 ( Ky. 2012 ).

26.Educational Institutions.

A pharmacy college operated by a corporation where there were no stockholders, which charged nominal tuition fees and rented some of its property, the income from which was used for college purposes, was declared to be an institution of education within the meaning of this section. Louisville College of Pharmacy v. Louisville, 82 S.W. 610, 26 Ky. L. Rptr. 825 , 1904 Ky. LEXIS 334 (Ky. Ct. App. 1904).

Tax exemption is not confined to the buildings and grounds on which an educational or charitable organization is conducted but applies to all property without regard to its location or the form of the investment, where the income therefrom is devoted exclusively to educational purposes. Louisville v. Presbyterian Orphans Home Soc., 299 Ky. 566 , 186 S.W.2d 194, 1945 Ky. LEXIS 469 ( Ky. 1945 ).

Gymnastic association was not an educational institution, and therefore its property was not exempt from taxation. German Gymnastic Ass'n v. Louisville, 306 Ky. 810 , 209 S.W.2d 75, 1948 Ky. LEXIS 637 ( Ky. 1948 ).

Bare legal title to, accompanied by a future equity in the income and benefits from property held by an educational institution, where control over the property and all present benefits of ownership remain with the previous owners who are private individuals, is not sufficient ownership by the educational institution to constitute property within the meaning of this section and thus exempt the property from taxation. Arcadia Realty Foundation, Inc. v. Hoenig, 336 S.W.2d 571, 1959 Ky. LEXIS 32 ( Ky. 1959 ).

27.— Exempt.

Where buildings are erected by a church for use as dormitories, in connection with a school where women and girls are taught at a nominal tuition if they are able to pay, and if not are given their education, and the expenses of conducting the institution exceed the income, and the deficit is contributed by charitable people, the buildings are exempt from taxation. Morgan v. Presbyterian Church of United States, 101 S.W. 338, 31 Ky. L. Rptr. 38 (1907).

In the provision exempting property of educational institutions not used or employed for private gain, the words “private gain” have reference only to the gain of the person, corporation, or stockholders owning the property, and hence college property is not rendered liable for taxation because the trustees leased it to a person who maintained a school therein for a profit, the rentals derived by the trustees being wholly applied to the cause of education. Commonwealth v. Trustees of Hamilton College, 125 Ky. 329 , 101 S.W. 405, 30 Ky. L. Rptr. 1338 , 1907 Ky. LEXIS 303 ( Ky. 1907 ).

A laundry, waterworks system, printing department, cooperative store, and hotel of an educational institution were exempt from taxation. Commonwealth by Ferriell v. Berea College, 149 Ky. 95 , 147 S.W. 929, 1912 Ky. LEXIS 578 ( Ky. 1912 ).

The exemption of the University of Kentucky bookstore from the sales tax by the department of revenue is not arbitrary or resulting in a proscribed discrimination. Kennedy Book Store, Inc. v. Dep't of Revenue, 450 S.W.2d 524, 1970 Ky. LEXIS 453 (Ky.), cert. denied, 400 U.S. 824, 91 S. Ct. 46, 27 L. Ed. 2d 52, 1970 U.S. LEXIS 921 (U.S. 1970).

Where a wholesale textbook dealer sold exclusively to local boards of education under contract, the dealer was exempt from sales tax liability regardless of whether its personnel assisted in the sale of the books to students and teachers by the boards. Department of Revenue v. Kentucky Textbooks, Inc., 555 S.W.2d 573, 1977 Ky. LEXIS 508 ( Ky. 1977 ).

28.— Not Exempt.

A board of education is not exempt under this section from the payment of a state gasoline tax. Board of Education v. Talbott, 286 Ky. 543 , 151 S.W.2d 42, 1941 Ky. LEXIS 283 ( Ky. 1941 ).

Where stock in three (3) private corporations which built and held title to FHA-sponsored public housing projects was transferred to a college which reincorporated them as educational trust institutions and received only bare title to the property thereof and was under no obligation to pay for the property the income from which was vested in the original owners for the payment of the debt owing to them, the transaction resembled a gift in future rather than a bona fide sale and the property; owned by the corporations and purportedly transferred to the college was not exempt from ad valorem taxes. Arcadia Realty Foundation, Inc. v. Hoenig, 336 S.W.2d 571, 1959 Ky. LEXIS 32 ( Ky. 1959 ).

29.Special Assessments.

Special assessments for public improvements are not taxes within the meaning of this section and the statutes implementing it. Logan v. Louisville, 283 Ky. 518 , 142 S.W.2d 161, 1940 Ky. LEXIS 379 ( Ky. 1940 ).

30.License Fees.

The exemption for public charities does not apply to license fees and taxes exacted for regulatory purposes. Gray v. Methodist Episcopal Church, etc., 272 Ky. 646 , 114 S.W.2d 1141, 1938 Ky. LEXIS 180 ( Ky. 1938 ).

License fees for motor vehicles are not primarily taxes for revenue purposes and, therefore, a church as a purely public charity is not exempt from the payment of such fees. Reeves v. Kentucky Utilities Co., 291 Ky. 226 , 163 S.W.2d 482, 1942 Ky. LEXIS 211 ( Ky. 1942 ).

31.Use Tax.

The use tax levied by KRS 139.310 is an excise tax, the incidence of which is so similar to that of an ad valorem tax as to render its enforcement against cities unconstitutional. Commonwealth ex rel. Luckett v. Elizabethtown, 435 S.W.2d 78, 1968 Ky. LEXIS 199 ( Ky. 1968 ), overruled in part, Commonwealth v. Interstate Gas Supply, Inc., 554 S.W.3d 831, 2018 Ky. LEXIS 140 ( Ky. 2018 ).

32.School Tax.

A school tax is not municipal taxation within the meaning of this section and an exemption of a manufacturing plant from municipal taxation does not entitle it to exemption from a school tax although such tax had not been collected for a long period. Louisville v. Board of Education, 154 Ky. 316 , 157 S.W. 379, 1913 Ky. LEXIS 66 ( Ky. 1913 ).

The Louisville Water Co., owned and operated for public use by the city, was exempt from taxation for school tax purposes. Board of Education v. Louisville Water Co., 555 S.W.2d 587, 1977 Ky. App. LEXIS 789 (Ky. Ct. App. 1977).

33.Gross Receipts Tax.

Sales by municipalities and by educational and charitable institutions are not exempt from gross receipts taxes. Covington v. State Tax Com., 257 Ky. 84 , 77 S.W.2d 386, 1934 Ky. LEXIS 519 ( Ky. 1934 ).

Sales to educational and charitable and to state institutions are exempt from gross receipts taxes. Covington v. State Tax Com., 257 Ky. 84 , 77 S.W.2d 386, 1934 Ky. LEXIS 519 ( Ky. 1934 ).

Sales to municipalities are subject to gross receipts taxes except where the purchases are exclusively for use by purely educational or charitable institutions of the municipality. Covington v. State Tax Com., 257 Ky. 84 , 77 S.W.2d 386, 1934 Ky. LEXIS 519 ( Ky. 1934 ).

34.Multiple Ownership.

Although land owned by a charitable organization and leased to a corporation is exempt from taxes, the corporation is liable for taxes on the improvements when it has constructed the buildings and has the use and control of them for a term of 50 years. Louisville Garage Corp. v. Louisville, 303 Ky. 553 , 198 S.W.2d 40, 1946 Ky. LEXIS 873 ( Ky. 1946 ).

In view of the speculative nature thereof and the necessity of strictly construing transactions involving tax exemption, there can be no apportionment of values for tax exemption purposes under this section in the absence of a valid contractual fixing of values as between respective owners of interest in the property. Arcadia Realty Foundation, Inc. v. Hoenig, 336 S.W.2d 571, 1959 Ky. LEXIS 32 ( Ky. 1959 ).

35.Determination of Exemption.

Exemption from taxation as a purely public charity is determined by the use to which the property is put, not the nature of its ownership as such. Benevolent Ass'n of Elks v. Wintersmith, 204 Ky. 20 , 263 S.W. 670, 1924 Ky. LEXIS 393 ( Ky. 1924 ). See Trustees of Widows' & Orphans' Fund v. Blount, 222 Ky. 717 , 2 S.W.2d 394, 1928 Ky. LEXIS 242 ( Ky. 1928 ).

The date as of which the lien for taxes for a particular year attaches is controlling as concerns the allowance of an exemption from the taxes of that year. Jefferson Post, A. L. Dep't v. Louisville, 280 S.W.2d 706, 1955 Ky. LEXIS 189 ( Ky. 1955 ).

Language used in articles of incorporation with regard to the purposes of a corporation is not determinative of the question of whether or not such corporation is entitled to an exemption. Louisville v. Filson Club, 295 S.W.2d 340, 1956 Ky. LEXIS 159 ( Ky. 1956 ).

The primary use made of property, not the declared objects of the owner, determine whether it is exempt from taxation. Iroquois Post No. 229, etc. v. Louisville, 309 S.W.2d 353, 1958 Ky. LEXIS 353 ( Ky. 1958 ).

Corporation was exempt from paying ad valorem taxes on a tract under Ky. Const. § 170 because it was a purely charitable organization and the acquisition was to develop the tract so as to promote job creation and job preservation; the tract was not public property used for public purposes because the corporation owned the tract in fee simple. Hancock v. Ky. Bd. of Tax Appeals & Prestonsburg Indus. Corp., 2010 Ky. App. LEXIS 86 (Ky. Ct. App. May 7, 2010), rev'd, 365 S.W.3d 199, 2012 Ky. LEXIS 35 ( Ky. 2012 ).

36.— Res Judicata.

Decision of court in 1904, that gymnastic association was exempt from taxation, was not res adjudicata as to its liability for taxes in subsequent years. German Gymnastic Ass'n v. Louisville, 306 Ky. 810 , 209 S.W.2d 75, 1948 Ky. LEXIS 637 ( Ky. 1948 ).

37.— Declaratory Judgment.

The question of whether property is exempt from taxation under this section may be determined in a declaratory judgment action. Iroquois Post, A. L. v. Louisville, 279 S.W.2d 13, 1955 Ky. LEXIS 502 ( Ky. 1955 ).

38.Recovery of Payments.

An executor who voluntarily paid taxes on land held by him in trust for charitable purposes for several years could not subsequently recover such tax payments. Nettleton's Ex'r v. Louisville, 191 Ky. 581 , 230 S.W. 957, 1921 Ky. LEXIS 347 ( Ky. 1921 ).

39.Commissions on Exempt Property.

A tax assessor is not entitled to a commission on the value of property exempt from taxation. Powers v. Osbon, 118 Ky. 810 , 82 S.W. 419, 26 Ky. L. Rptr. 744 , 1904 Ky. LEXIS 105 ( Ky. 1904 ).

County tax commissioners may not be given their statutory commission on the value of personal property exempt under this section. Oates v. Simpson, 295 Ky. 433 , 174 S.W.2d 505, 1943 Ky. LEXIS 234 ( Ky. 1943 ).

40.Invalid Exemptions.

A contract wherein a city agreed to pay any taxes levied against a light company which had agreed to furnish electric lights to the city was invalid. Bd. of Councilmen v. Capital Gas & Elec. Light Co., 96 S.W. 870, 29 Ky. L. Rptr. 1114 , 1906 Ky. LEXIS 283 (Ky. Ct. App. 1906).

After a fire had destroyed some of the buildings of a tanning establishment and the city council passed an ordinance exempting it from taxation for five (5) years if it would rebuild, the ordinance was invalid. Elam v. Salisbury, 180 Ky. 142 , 202 S.W. 56, 1918 Ky. LEXIS 26 ( Ky. 1918 ).

A deed by which a railroad gave property to a city is invalid under this section where it was intended that the street along such property was to be constructed and maintained by the city and that the railroad should be exempt from assessment for such construction and improvements. Chesapeake & O. R. Co. v. Morehead, 223 Ky. 698 , 4 S.W.2d 726, 1928 Ky. LEXIS 434 ( Ky. 1928 ).

A contract between a city and a railway company allowing the company to provide electric railway service and providing that it should pay a license fee in lieu of all other taxes excepting ad valorem taxes on its real estate and personal property and special taxes on its real estate was invalid. South C. & C. S. R. Co. v. Henkel & Sullivan, 228 Ky. 271 , 14 S.W.2d 1068, 1929 Ky. LEXIS 531 ( Ky. 1929 ).

A contract by a city transferring a bridge option to a private company, the bridge to be returned to the city as a free bridge after amortization of its cost and to be exempt from taxation while held by the private company, is invalid. Covington v. Reynolds, 240 Ky. 86 , 41 S.W.2d 664, 1931 Ky. LEXIS 348 ( Ky. 1931 ).

41.Valid Statutes.

Legislation providing for assessments against land owned by the state for public improvement is not unconstitutional under this section. Hager v. Gast, 119 Ky. 502 , 84 S.W. 556, 27 Ky. L. Rptr. 129 , 1905 Ky. LEXIS 25 ( Ky. 1905 ).

Since the construction of bridges across navigable streams serves a public purpose, a statute authorizing such construction may constitutionally exempt the bonds issued therefor from state and municipal taxation. Klein v. Louisville, 224 Ky. 624 , 6 S.W.2d 1104, 1928 Ky. LEXIS 663 ( Ky. 1928 ). See Estes v. State Highway Com., 235 Ky. 86 , 29 S.W.2d 583, 1930 Ky. LEXIS 292 ( Ky. 1930 ).

A statute exempting transfers of property for charitable purpose from inheritance tax is constitutional. Commonwealth v. Nelson's Adm'x, 235 Ky. 731 , 32 S.W.2d 19, 1930 Ky. LEXIS 436 ( Ky. 1930 ).

The General Assembly may constitutionally exempt from taxation bonds issued by state educational institutions for building construction. J. D. Van Hooser & Co. v. University of Kentucky, 262 Ky. 581 , 90 S.W.2d 1029, 1936 Ky. LEXIS 76 ( Ky. 1936 ).

Statutory provisions that revenue bonds to be issued by unemployment compensation commission to defray construction costs of office building shall be exempt from taxation does not violate this section and Const., § 171, since bonds are to be issued by an instrumentality of the state and may be considered bonds of the state specifically exempt under Const., § 171. Meagher v. Commonwealth, 305 Ky. 289 , 203 S.W.2d 35, 1947 Ky. LEXIS 784 ( Ky. 1947 ).

The provision of KRS 40.160 exempting veterans’ bonus payments from all taxation by the Commonwealth, its political subdivisions and taxing districts was intended by the General Assembly to exempt them from state income taxes and kindred municipal taxes and is not in violation of this section of the constitution governing exemption of property from ad valorem taxation. Watkins v. State Property & Bldgs. Com., 342 S.W.2d 511, 1960 Ky. LEXIS 94 ( Ky. 1960 ).

42.Invalid Statutes.

If KRS 132.220 were construed to mean that the owner of a chattel, or any interest in real property, if of value, was to be exempted from the payment of taxes regardless of whether the owner of the freehold estate pays the taxes on the whole estate, this construction would bring the statute within the prohibitions of this section. Purcell v. Lexington, 186 Ky. 381 , 216 S.W. 599, 1919 Ky. LEXIS 226 ( Ky. 1919 ), writ of error dismissed, 253 U.S. 476, 40 S. Ct. 583, 64 L. Ed. 1021, 1920 U.S. LEXIS 1430 (U.S. 1920).

General Assembly may not constitutionally exempt real estate from a state ad valorem tax. Martin v. High Splint Coal Co., 268 Ky. 11 , 103 S.W.2d 711, 1937 Ky. LEXIS 421 ( Ky. 1937 ).

43.Sewer User Charges.

Sewer user charges of a county government for the construction and maintenance of public sanitary sewers were not taxes and the County Board of Education had no constitutional exemption from the payment of such charges by virtue of this section. Board of Education v. Lexington-Fayette Urban County Government, 691 S.W.2d 218, 1985 Ky. App. LEXIS 518 (Ky. Ct. App. 1985).

44.Nonprofit Group.
45.— Not Exempt.

It was error to adjudge individuals’ leasehold interests in airport property to be used for building and maintaining an airplane hangar exempt from taxation because no profit was earned in connection with such property. No exemption is provided for exempt property held by nonprofit natural persons, associations or partnerships. Pike County Bd. of Assessment Appeals & Revenue Cabinet v. Friend, 932 S.W.2d 378, 1996 Ky. App. LEXIS 110 (Ky. Ct. App. 1996).

46.Occupancy.

Real property owned by a charity, but exclusively occupied by several residents, was not entitled to the charitable exemption in the Kentucky Constitution because the residences were not occupied by tax exempt entities; the residents' respective possessory interests was subject to ad valorem taxation. However, the fair market value of each resident's respective possessory interest was improperly assessed; the fair market value was obtained by subtracting the fair market value of the particular unit with the resident's leasehold from the fair market value of the unit without the leasehold. Grand Lodge of Ky. Free & Accepted Masons v. City of Taylor Mill, 2017 Ky. App. LEXIS 28 (Ky. Ct. App. Feb. 10, 2017, sub. op., 2017 Ky. App. Unpub. LEXIS 949 (Ky. Ct. App. Feb. 10, 2017).

Cited:

Pence v. Frankfort, 101 Ky. 534 , 19 Ky. L. Rptr. 721 , 41 S.W. 1011, 1897 Ky. LEXIS 224 ( Ky. 1 897 ); Board of Councilmen v. Scott, 101 Ky. 615 , 19 Ky. L. Rptr. 1068 , 42 S.W. 104, 1897 Ky. LEXIS 228 ( Ky. 1 897 ); Louisville & N. R. Co. v. Barboursville, 105 Ky. 174 , 20 Ky. L. Rptr. 1105 , 48 S.W. 985, 1898 Ky. LEXIS 251 ( Ky. 1899 ); Dayton v. Bellevue Water & Fuel Gaslight Co., 119 Ky. 714 , 24 Ky. L. Rptr. 194 , 68 S.W. 142, 1902 Ky. LEXIS 17 6 ( Ky. 19 02 ); Brown-Foreman Co. v. Commonwealth, 125 Ky. 402 , 30 Ky. L. Rptr. 793 , 101 S.W. 321, 1907 Ky. LEXIS 285 ( Ky. 19 07); Commonwealth v. Wathen, 126 Ky. 573 , 31 Ky. L. Rptr. 980 , 104 S.W. 364, 1907 Ky. LEXIS 76 ( Ky. 1907 ); Ramsey v. County Board of Education, 159 Ky. 827 , 169 S.W. 521, 1914 Ky. LEXIS 893 ( Ky. 1914 ); Walsh v. Asher, 163 Ky. 377 , 173 S.W. 808, 1915 Ky. LEXIS 231 ( Ky. 1915 ); North Vernon Lumber Co. v. Louisville, 163 Ky. 467 , 173 S.W. 1120, 1915 Ky. LEXIS 243 ( Ky. 1915 ); Browder v. Henderson, 182 Ky. 771 , 207 S.W. 479, 1919 Ky. LEXIS 408 ( Ky. 1919 ); Bonar v. Southgate, 215 Ky. 133 , 284 S.W. 1019, 1926 Ky. LEXIS 678 ( Ky. 1926 ); Harlan v. Blair, 251 Ky. 51 , 64 S.W.2d 434, 1933 Ky. LEXIS 804 ( Ky. 1933 ); Louisa v. Bromley, 251 Ky. 723 , 65 S.W.2d 975, 1933 Ky. LEXIS 939 ( Ky. 1933 ); Jones v. Paducah, 283 Ky. 628 , 142 S.W.2d 365, 1940 Ky. LEXIS 386 ( Ky. 1940 ); Commonwealth ex rel. Reeves v. Sutcliffe, 287 Ky. 809 , 155 S.W.2d 243, 1941 Ky. LEXIS 648 ( Ky. 1941 ); Reeves v. Louisville Gas & Electric Co., 290 Ky. 25 , 160 S.W.2d 391, 1942 Ky. LEXIS 362 ( Ky. 1942 ); Cincinnati v. Commonwealth, 292 Ky. 597 , 167 S.W.2d 709, 1942 Ky. LEXIS 147 ( Ky. 1942 ); Commonwealth v. Sun Life Assurance Co., 294 Ky. 19, 170 S.W.2d 890, 1943 Ky. LEXIS 376 ( Ky. 1943 ); Dodge v. Jefferson County Board of Education, 298 Ky. 1, 181 S.W.2d 406, 1944 Ky. LEXIS 815 ( Ky. 1944 ); Lexington Cemetery Co. v. Commonwealth, 297 Ky. 851 , 181 S.W.2d 699, 1944 Ky. LEXIS 839 ( Ky. 1944 ); Kesselring v. Bonnycastle Club, Inc., 299 Ky. 585 , 186 S.W.2d 402, 1945 Ky. LEXIS 471 ( Ky. 1945 ); George v. Bernheim Distilling Co., 300 Ky. 179 , 188 S.W.2d 321, 1945 Ky. LEXIS 519 ( Ky. 1945 ); Faulconer v. Danville, 313 Ky. 468 , 232 S.W.2d 80, 1950 Ky. LEXIS 901 ( Ky. 1950 ); Roland v. Catholic Archdiocese of Louisville, 301 S.W.2d 574, 1957 Ky. LEXIS 482 ( Ky. 1957 ); Louisville v. Christian Business Women’s Club, Inc., 306 S.W.2d 274, 1957 Ky. LEXIS 32 ( Ky. 1957 ); Draughn v. Martin, 350 S.W.2d 161, 1961 Ky. LEXIS 88 ( Ky. 1961 ); Meyers v. Arcadia Realty Foundation, Inc., 367 S.W.2d 836, 1963 Ky. LEXIS 30 ( Ky. 1963 ); Lester v. Ft. Thomas, 531 S.W.2d 490, 1975 Ky. LEXIS 35 ( Ky. 1975 ); Ex parte Auditor of Public Accounts, 609 S.W.2d 682, 1980 Ky. LEXIS 274 ( Ky. 1980 ); Porter v. Hospital Corp. of America, 696 S.W.2d 793, 1985 Ky. App. LEXIS 647 (Ky. Ct. App. 1985); Gillis v. Yount, 748 S.W.2d 357, 1988 Ky. LEXIS 13 ( Ky. 1988 ); St. Ledger v. Revenue Cabinet, 942 S.W.2d 893, 1997 Ky. LEXIS 17 ( Ky. 1997 ).

Opinions of Attorney General.

A tract of land of unstated size, owned by a church organization, upon which buildings were located described as follows: one building used as a dining hall and kitchen and for classes and instruction, one building used for dormitory purposes and classes and another structure described as an outdoor tabernacle, has a partial exemption from taxation confined to not to exceed two (2) acres and to whatever buildings might qualify as a “house of worship.” The outdoor tabernacle would possibly be the required “house of worship.” OAG 60-297 .

The organization known as the Henry Clay Memorial Foundation does not constitute an institution of education within the meaning of this section because it gives no systematic instruction by methods common to schools and therefore sales by it of post cards, color slides, commemorative plates and admission fees to the shrine are subject to the sales tax of the Commonwealth. OAG 60-816 .

The sale of Christian Science reading materials through reading rooms operated at the expense of the church is not exempt from the sales tax of the Commonwealth. OAG 60-979 .

If a taxpayer owns a trailer which he uses as a home and has household furnishings which are not affixed to the trailer, such furnishings would be exempt from ad valorem taxes. OAG 60-1052 .

A sanitation district treatment plant located within a city within the district is not subject to the ad valorem real estate taxes of the city. OAG 60-1128 .

The religious exemption of this section is confined primarily to exempting from taxes the church premises themselves and the living quarters of the pastor when such are owned by the church, and sales of tangible personal property to a church when such property is to be used within the normal function of the religious organization are not exempt from sales and use tax. OAG 61-201 .

The sales and use tax of the Commonwealth is applicable to purchases made by a church. OAG 61-204 .

There is no constitutional basis for an exemption from city, county, or state taxes in regard to an automobile owned by a church. OAG 61-985 .

The exemption from sales tax to a charitable organization is limited to an organization whose function is purely charitable within the meaning of this section and the cases decided thereunder. OAG 61-1097 .

There is no exemption to a church under the sales tax. OAG 61-1097 .

A city ordinance which exempted from city taxes all property owned by volunteer firemen was void for going beyond the exemptions allowed in the constitution. OAG 62-81 .

By virtue of the exemption from taxation granted to institutions of education by this section, county public schools would not be subject to the license tax permitted by KRS 137.115 on the sale of soft drinks or ice cream from the school cafeteria if the income derived from such sales is devoted exclusively to educational purposes. OAG 62-743 .

A board of education is not exempt under this section from paying sewer service fees or tolls. OAG 62-1086 .

A nonprofit corporation organized to promote, advance and develop a city industrially and with the power to buy, sell or deal in real estate did not qualify for exemption from ad valorem property taxation. OAG 62-1172 .

The ownership and operation of a cemetery corporation by a lodge not purely charitable in nature destroys and prohibits any tax status of such cemetery within the provisions of this section. OAG 63-55 .

A volunteer fire department is not an agency of the Commonwealth so as to exempt its property from taxation. OAG 63-412 .

Where a private company was given a 99-year lease on property owned by an American Legion post with a possible reverter to the county, the property was subject to ad valorem taxation. OAG 63-505 .

So long as a lot owned by a religious society is vacant and does not contain a building used for religious worship, the property is subject to municipal taxes. OAG 63-667 .

Where a church maintains residences for more than one minister, the church must pay municipal ad valorem tax on all such residences except one. OAG 63-702 .

Meals sold as a part of the Shriners’ fund raising activities to the general public are subject to the Commonwealth’s three percent (3%) sales tax. OAG 63-1100 .

The Shriners’ organization is not a charitable institution within the meaning of this section. OAG 63-1100 .

Since the tax exemption benefiting religious organizations is generally limited to ad valorem property taxes on places actually used for religious purposes not exceeding two (2) acres, a church campsite would be subject to ad valorem property taxes. OAG 64-1 .

Where a city made a lease of a building to a business and in the lease the city proposed to obtain the maximum tax advantage for the business, the commissioners of the city could exempt the property of the business from city taxes for a period not to exceed five (5) years. OAG 65-58 .

A city has authority to exempt a manufacturing establishment for at least five (5) years from city taxes only as an inducement to its location within the city, but no exemption is permitted from city school taxes. OAG 65-171 .

Property in a city owned by religious organizations not actually used for religious purposes is subject to ad valorem property taxation by the city. OAG 65-613 .

Any legislation that would give a $30.00 to $50.00 tax credit to be applied to the property tax bill of any person over 65 years of age is an attempt to do indirectly that which the courts have held cannot be done and would be unconstitutional and void. OAG 65-639 .

Where income from property owned by a religious society was used exclusively for the support of a parochial school it operated, the property would not be subject to ad valorem property taxation by the city. OAG 65-765 .

Where a church rented part of its property to another church to be used as a place of religious worship, the property was not subject to ad valorem taxation. OAG 65-825 .

A county fiscal court has no authority to exempt the property of a private firm or manufacturing concern from county, state, school or health taxes as an inducement to industrial development without acquiring title to such property. OAG 67-205 .

The cultivation of land in the Ballard County waterfowl refuge for the purpose of providing feed for waterfowl that make their home in the refuge and for building up a geese flock which can be hunted by all of the citizens of the Commonwealth is a proper part of the maintenance of the refuge as a public facility and does not detract from the exempt status of the land under this section. OAG 67-261 .

A city ordinance granting a rebate of tax money to a developer for his street paving costs would violate the Constitution. OAG 67-454 .

Residential property owned by a church from which it derives income is not exempt from taxation. OAG 67-470 .

Property owned by a church which lies 100 feet from the church property and exceeds one-half acre is not exempt from ad valorem property taxation. OAG 68-113 .

Where the Commonwealth or its agency or instrumentality is the grantor in a deed offered for recordation, such conveyance is subject to the real estate transfer tax. OAG 68-284 .

Where real estate is sold to a church with the stipulation that it shall be occupied rent free by the sellers during their lifetimes, it is not exempt from ad valorem property taxation. OAG 69-95 .

The property of the Boy Scouts of America is tax exempt as a charity under this section. OAG 69-526 .

A county humane society was an institution of public charity and as such was entitled to exemption from the motor vehicle usage tax on its animal ambulance. OAG 69-535 .

A county humane society was an institution of public charity and was entitled to an exemption from sales and use taxes on purchases by it of tangible personal property used in the operation of the society. OAG 69-535 .

If a city purchased tangible personal property in the state to which the use tax applied, the city would be exempt. OAG 70-775 .

An automobile owned by a church to transport children to a music education program was not exempt from the motor vehicle usage tax. OAG 71-233 .

A city may increase its general fund tax rate to offset a revenue loss occasioned by property being exempted from property tax by the homestead exemption amendment to this section. OAG 71-537 .

The homestead amendment to this section will affect the tax base of fourth-class cities as well as the tax base of counties. OAG 71-537 .

As long as income from property owned by a city and county board of education is used solely for the furtherance of the education process in such city and county, the property is exempt from ad valorem property taxes by the city. OAG 72-44 .

This section does not exempt a city from the payment of the state tax on gasoline. OAG 72-92 .

Despite the homestead amendment to this section, which became effective January 1, 1972, property owned in the city of Catlettsburg both below the flood crest of 1937 and that located above the flood crest would be liable for special assessments for a floodwall bond levy, a flood control system bond levy, and a floodwall operation and maintenance levy. OAG 72-179 .

Since the amendment of this section created the homestead tax exemption with no procedural conditions and created no authorization for legislative implementation, the amendment is self-executing and the General Assembly has no authority to establish deadlines relating to the application for or assertion of the right to the exemption. OAG 72-726 .

There is no provision, in the absence of specific statutory authorization, to exempt from or refund gasoline taxes to charitable organizations such as Appalachian Regional Hospitals, Inc. OAG 72-745 .

A parcel of real estate adjacent to a cemetery and occupied by the cemetery caretaker would be exempt from ad valorem property taxation. OAG 72-798 .

If the income derived from a bookstore and a grill operated by Eastern Kentucky University is devoted to the furtherance of the educational process, such businesses are exempt from the city of Richmond net profits tax. OAG 73-20 .

So long as a dwelling is used as a single unit family residence, the owner would be entitled to the exemption set out in this section, even though the structure was classified as a duplex. OAG 73-320 .

There is no authority in the constitution, either directly or implied, to increase the $6,500 exemption provided for the assessed value of homesteads owned by persons 65 years of age or older and the only method by which such exemption could be increased would be by amending the constitution. OAG 73-371 .

Since neither the constitution nor statutes give the fiscal court any power either expressly or by implication to exempt property from taxes, but only the power to levy taxes, the fiscal court has no authority to exempt tangible personal property from ad valorem property taxes. OAG 73-397 .

The Actors’ Theatre of Louisville, which was organized and incorporated as a nonprofit group for solely charitable and educational activities, none of the income from which and none of the expenditures by which inures to the private benefit of any individual or organization, qualifies under this section for exemption from the ad valorem tax as an institution of purely public charity and/or education. OAG 73-517 .

The incidental renting of rooms in a residence that otherwise qualifies for the homestead exemptions does not, under this section and KRS 132.810 , violate the single unit restriction. OAG 73-550 .

A special school building tax is of general benefit to the whole community and is not the type of special benefit contemplated in the homestead amendment and, therefore, cannot be levied on property in the school district entitled to the homestead exemption except on the value in excess of $6,500. OAG 73-733 .

If a city homeowner was sixty-five (65) years of age prior to the September 1972 assessment date, the city should have permitted him to file a homestead exemption application for exemption from 1973 city ad valorem property tax and the city legislative body should authorize a refund to the taxpayer who asserts a proper and qualified application for the exemption. OAG 73-780 .

City had no authority to exempt a medical clinic which was built in connection with a low rent project for the elderly, since the only allowable exemption is for manufacturing establishments for a period up to five (5) years. OAG 74-126 .

A county hospital qualifies as a public charity under this section and thus would be exempt from taxation. OAG 74-420 .

Where a hospital is a charitable institution not operated for profit, and it receives income from the rental of a medical building which income it uses for the operation of the hospital, the rental property is exempt from ad valorem property tax so long as it is owned and operated by the hospital. OAG 74-496 .

The reimbursement by a city of a private corporation constructing a private hospital for the construction of a portion of sewer line to the hospital along public right of way, in the form of property tax credits to the corporation until completed would be in violation of Const., §§ 171 and 174 requiring uniform and equal tax levies according to classification, Const., § 3 prohibiting exclusive grants except for public service and this section as it is not enumerated as exempt under such section. OAG 74-616 .

The sale by a memorial foundation, an integral part of a religious society, of a residence to a minister in the form of a contract for deed, with monthly payments to be made by the minister over a period of years, is subject to ad valorem tax. OAG 74-635 .

The Planned Parenthood Center, Inc. of Louisville, which maintains a family planning library and conducts classes about family planning, is entitled to an exemption from ad valorem property taxes as an institution of education and as a public library. OAG 74-791 .

Life tenant of single unit residential property, who is 65 years of age and who maintains the property as a personal residence, is an “owner” of the property and may apply for the homestead exemption. OAG 75-110 .

Although KRS 82.085 provides authority to levy ad valorem taxes at different rates depending upon the governmental services rendered, it nowhere provides for no city taxation at all and if the 4th class city were to levy no city ad valorem tax in newly annexed territory, such inaction would be in violation of this section. OAG 75-111 .

A health services program for the people of the county, even though there is a charge for those persons who can afford to pay, would be a public charity and the vehicles, mobile home, apartment house building and mobile clinic owned and operated by the health service are exempt from ad valorem property taxation. OAG 75-148 .

The 65 year old or older owner-occupant of a mobile home, which is a single unit residence, placed on a rented lot is entitled to the homestead exemption if the mobile home qualifies as real property by resting on a permanent fixed foundation and having the wheels or mobile parts removed. OAG 75-264 .

A dialysis clinic performing medical services to patients with chronic renal failure, some of whom are paying for such service, some of whom are served without charge and some of whom are paying only a portion of the cost, is entitled to an exemption from ad valorem property taxes as an institution of purely public charity. OAG 75-266 .

The charges for sewer services to a board of education are not an ad valorem tax from which boards of education are exempt but are like tolls or rentals so that a board of education is neither exempt from paying the sewer charges nor entitled to a refund for charges previously paid. OAG 75-598 .

A sales tax on water and sewer charges is not similar to an ad valorem tax such as to render it unenforceable against local school districts under this section. OAG 76-5 .

Though a $6500 maximum homestead exemption was in the proposed amendment to this section when it was placed on the 1975 ballot, the current exemption is $7700 instead of $6500 as a result of application of the rubber dollar principle, but the exemption cannot be more than the owner’s interest in the property. OAG 76-45 .

Any person 65 years of age or older is entitled to the $7700 exemption for 1976 upon application to the property valuation administrator without the necessity of having a deed prepared showing that person’s interest in the property. OAG 76-95 .

A “big brothers” corporation is an institution of purely public charity and would be entitled to exemption from ad valorem property taxation under this section. OAG 77-411 .

Where a lease of a plot of land is for 99 years and is transferable, the person 65 years of age or older who leases the ground and builds a home upon it is entitled to the homestead exemption. OAG 77-624 .

Equipment leased by a hospital from an out-of-state lessor is subject to ad valorem property tax since the property is not owned by the hospital but is merely leased. OAG 77-641 .

If the property currently used for parking purposes by a church group is in excess of the applicable acre limitation, any excess is not exempt from taxation under the laws of this Commonwealth as long as it is not used also for worship services or as a parsonage. OAG 78-180 .

Until such time as the court sees fit to expand its charitable definition to include motor vehicles owned by religious nonprofit cemetery organizations from the motor vehicle usage tax, such vehicles are subject to the tax. OAG 78-579 .

Should the National Society of the Sons of the American Revolution exercise its purchase option and locate its national headquarters in Kentucky, its property will be exempt from ad valorem taxes since the aims and objectives of SAR place it precisely within the language of this section, which exempts institutions of purely public charities and public libraries. OAG 78-688 .

Under KRS 132.190 , all real and personal property within this state is subject to taxation, unless exempted by the Constitution and while household goods of a person used in his home are exempt from taxation, under this section, the personal property of the taxpayer used in his business or profession is not exempt, which means a lawyer would have to list for taxes the personal tangible property in his law office, which could include law library, bookcases, typewriters, filing cabinets and other items of equipment used in that office. OAG 79-140 .

Where a convent building is being used as a place of residence for nuns who teach in a local parish school and also as a parsonage or place of residence for the priests who service the church, it would appear that the building is exempt from ad valorem property taxes both under the educational and religious exemption provisions of this section. OAG 79-596 .

Since the homestead exemption under this section applies to all contiguous real property, where a property owner owns a 20-acre tract, the amount of the homestead exemption should be applied against the value of the total 20-acre tract, even though the property owner only uses one acre for a house and garden and the remaining 19 acres are hill land. OAG 80-170 .

A person who is otherwise entitled to the homestead exemption granted by this section cannot be denied the exemption merely because he holds equitable title. OAG 80-179 .

Where a county operates a rock quarry, the county is a “taxpayer” under the provisions of KRS Chapter 143A since it severs and processes rocks, and although the exemption provision of KRS 143A.030 does not apply to rock used on county and state roads, this section does exempt the county from the tax as it relates to the rock so used; however, the county is not exempt from the tax as relates to county rock sold to private individuals for purely private purposes. OAG 80-340 .

The Louisville Orchestra, Inc., is, under this section, a “purely public charity,” and is thus exempt from the sales tax on admissions. OAG 80-598 .

Where a church-owned hospital owns an office building on an adjacent property which it rented to hospital staff doctors, the income from the office rental is exempt from taxation under this section if the income derived from office rentals is used in the operation of the hospital and there is no private profit inuring to any individual. OAG 81-150 .

Where an individual donates an undivided one-fourth (1/4) interest in certain unimproved real estate to a religious organization, and the organization will not enter into any agreement with the donor restricting its rights as a cotenant to its proportionate share of any income from the property, for the proceeds of its sale, or restricting its rights as cotenant to sue for a partition of its interest, such interest in the land would be exempt from ad valorem taxation under this section, since the organization will hold full legal rights commensurate with its ownership so that it will be the actual owner, and since the organization, as an umbrella type organization which supports a number of charitable, educational and religious organizations, including organizations which are not the same denomination as the donee, qualifies as a purely public charity sufficient to exempt it from taxation under this section. OAG 81-231 .

Where the development finance authority acquires 50 percent ownership in certain real property for a one-year period, an exemption from ad valorem property taxation limited to the extent of the authority’s ownership and for the duration of its ownership is available under this section since KRS 154.005 specifically states that the purposes of the authority are public purposes. OAG 81-270 .

A theological seminary is not exempt by virtue of this section from the payment of a real estate transfer tax required by KRS 142.050 since the real estate transfer tax is a tax on the privilege of transferring title to real property and thus in the nature of a license tax, so that this section, which applies only to ad valorem taxes, does not apply to exempt the seminary. OAG 81-276 .

Although the General Assembly may authorize incorporated cities or towns to exempt manufacturing establishments from municipal taxation, for a period not exceeding five (5) years pursuant to this section, as an inducement to locating in the community, the city may not exempt the manufacturing establishment from school or other taxes. OAG 81-326 .

The Louisville Bar Association is not exempt from the state sales tax since subdivision (1) of KRS 139.470 exempts from the tax only those gross receipts which the state is prohibited from taxing under the Constitution, and the Bar Association qualifies as neither an institution of purely public charity nor an institution of education under this section. OAG 81-330 .

An individual who is 65 years old or older or totally disabled who owns and resides in a building but leases the land upon which the building rests is entitled to the homestead exemption regardless of the length of the lease; furthermore, an owner of land who does not own the building cannot qualify for the exemption since the exemption applies only to permanent residences. OAG 81-422 . ( OAG 76-2 withdrawn).

If a homeowner otherwise qualifies for the homestead exemption, he should receive the full exemption even if he owns the property for less than a year since the intent of this section is that a qualified person pay ad valorem taxes on his home on the value above $6,500; the length of ownership in any taxable year is immaterial to this formula. OAG 81-429 ; overruled by OAG 85-108 to the extent it failed to recognize the controlling nature of the assessment date.

If the homeowner, who is otherwise qualified for the tax exemption provided in this section, sells his residence on July 1, and purchases another, he would be entitled to the exemption on both homes, in the amount of 50 percent of the ad valorem tax on each house over and above the value of $6,500 each. OAG 81-429 ; overruled by OAG 85-108 to the extent it failed to recognize the controlling nature of the assessment date.

When a house is transferred the taxes are divided between the buyer and seller, prorated to that part of the year each owned the house and the qualified exemptee will pay his share of the yearly tax based upon the percent of the year he owned the house; his portion of the tax will be based upon the value above $6,500 as adjusted for inflation. OAG 81-429 ; overruled by OAG 85-108 to the extent it failed to recognize the controlling nature of the assessment date.

A Department of Revenue (now Revenue Cabinet) memorandum dated December, 1981, which takes the administrative position that any qualified person who files for the exemption provided in the 1981 amendment to this section by the end of 1981 is due an appropriate reduction in 1981 ad valorem taxes, is the “proper authorization” required by subsection (5) of KRS 134.590 to allow the sheriff to refund the taxes due to a qualified disabled person for 1981 ad valorem taxes collected and in his possession. OAG 82-12 .

The amendment to this section, approved by the voters in November, 1981, which extends the homestead exemption from ad valorem taxes, applicable to homeowners of age 65 or over, to homeowners who are classified as totally disabled under a program authorized or administered by any agency of the United States government, is effective for the entire tax year of 1981, provided the homeowner can qualify as a continuously totally disabled person for the 12 months of 1981; since the explicit language of the amendment put the qualification on an annual and full 12-month basis, there is no problem concerning retroactivity. OAG 82-12 .

It is not necessary for a legislative enactment to establish the homestead exemption from ad valorem taxation since this section is self-executing; however, in order to claim the exemption, the owner of the qualified property must present his qualifications to the appropriate taxing authority and comply with the procedures contained in this section and KRS 132.810 . OAG 82-21 .

With the exception of the property described in KRS 92.300(1), a city of the sixth class has no alternative but to assess all property located within its jurisdictional limits which is not specifically exempted from local ad valorem taxation by the Constitution or by statute; a city ordinance attempting to exempt any other property will be void. OAG 82-21 .

A county public library is not exempt from the payment of a city franchise tax imposed on Kentucky utilities and which is, in turn, passed on to the utility’s customers in the affected area. OAG 82-34 .

The 1981 amendment to this section applies to the ad valorem tax of a fifth-class city, since it is not limited in its application to the state or county, but applies to all taxing districts; moreover, since the amendment was approved at the 1981 general election, which, under Const., § 256, is the final step in amending the Constitution, the amendment is effective in 1981. OAG 82-49 .

The Lexington Ballet Company is exempt from paying sales or use tax on its purchases and is exempt from collecting sales tax on its admission tickets since it is an institution of purely public charity under this section. OAG 82-133 .

This section does not exempt religious institutions from the utility gross receipts license tax. OAG 82-190 .

Institutions of purely public charity are exempt from payment of the real estate transfer charges levied by KRS 142.050 pursuant to this section. OAG 82-484 .

This section is applicable to all taxes, not merely ad valorem taxes. OAG 82-533 .

Since the tax authorized by KRS 92.285 (repealed) is a tax on the insurance company, this section is not violated when the insurance company passes on the tax to a church by adding it to the premium on insurance sold to the church. OAG 82-533 .

The fiscal court may impose an auto sticker tax under its police power as found in subsection (3)(t) of KRS 67.083 ; however, the proceeds cannot exceed the amount of revenue necessary to fund the administrative cost of the regulatory power. OAG 82-601 as modified by OAG 87-19 .

While the courts have, in certain cases, allowed the use of the property to be a factor in determining whether property is exempt, that consideration has been limited to only two (2) categories of exemptions: (1) “places actually used for religious worship” and (2) “institutions of purely public charity”; this consideration has not been used in reference to the exemption for “public property used for public purposes” and because exemptions are not favored in the law, it cannot be expanded to include this situation. OAG 83-14 .

For property to qualify for the exemption for “public property used for public purposes,” it must be owned by a public body. Therefore, a county could not exempt from property taxes a piece of property which was privately owned but was used by a city. OAG 83-14 .

The Paducah/McCracken County Association for Retarded Citizens, Inc., organized solely to develop and operate residential and other services for the mentally handicapped, is an institution of purely public charity and, as such, is exempt from property tax. OAG 83-137 .

Where certain property was condemned by the state as a total taking pursuant to court order, where the transportation cabinet took possession soon thereafter, but the property was not deeded to the state until several years later because of a continuing dispute over the amount of compensation to be paid, and where between the time of the cabinet’s taking possession and the date of the deed to the state, ad valorem property taxes were assessed against the publicly listed title holder, tax liens representing the back taxes assessed during the years of dispute were extinguished after legal title passed to the state. OAG 83-155 .

Since title to any property acquired by a city plant board shall vest in the city for the use and benefit of the electric and water system, the plant board is exempt from taxation pursuant to this section as public property used for public purposes. OAG 83-345 , modifying OAG 83-160 to the extent such opinion assumes that the plant board is liable for taxes.

As concerns a city license tax on insurance premiums, political subdivisions and special districts would not be exempt under this section. OAG 84-5 .

Nonprofit institutions of purely public charity and education, where a city license tax on insurance premiums is designed for revenue, would be exempt from the city tax under this section, as an institutional exemption. OAG 84-5 .

As relates to nonprofit institutions of purely public charity and education, since the insurance premium surcharge tax is designed to raise revenue, this section exempts such institutions from this tax. OAG 84-5 .

Governmental units such as the state government and political subdivisions, and special districts, are not exempt from the state surcharge or tax levied on insurance premiums pursuant to KRS 136.392 ; the exemption of this section, as relates to governmental units, involves only ad valorem taxes. OAG 84-5 .

A city can legally require a church to pay a reasonable license fee in order to sell products for church-related activities, and such license can be imposed on a daily basis, particularly where the sale is essentially on a day by day basis. OAG 84-29 .

Where property owned by a hospital, which was a nonprofit corporation, was leased to a clinic, which was a for-profit corporation, then if the building on the property was owned by the clinic, it must be placed on the tax roll and the leasehold interest must also be placed on the tax roll. OAG 84-35 .

From Kentucky case law the following standards for determining charities exempt under this section emerge: (1) the corporation or institution must itself be a charity and the income from its property must be used to further its charitable purpose; (2) the property must be employed for a purely charitable purpose; (3) a profit corporation or institution is not a public charity; and (4) the charity must be extended only to the Commonwealth of Kentucky and its people. OAG 84-169 .

Nonprofit institutions of purely public charity and education are exempt from a city license tax on insurance premiums under this section, as an institutional exemption, provided that the tax is designed for revenue; however, the charitable institution is not exempt from payment of a city license tax when it is enacted under the police power or when it is enacted for police or regulatory purposes. Thus, the line of demarcation as to the application or nonapplication of the city license tax to nonprofit and charitable institutions is drawn around the concept of the license tax being either a revenue measure or a police measure. OAG 84-201 .

The property of religious institutions is not intrinsically or inherently exempt from taxation; the exemption is limited to places of worship and parsonages, and the exemption from taxation is to be strictly and narrowly construed. Also, the exemption seems to be directed solely at real property. OAG 84-254 .

The county judge/executive has no authority to exonerate the tax bills on church-owned vehicles. OAG 84-254 .

Mere use of a church-owned vehicle by an educational institution does not exempt that property from taxation; the educational institution must own the property in order for the property to enjoy the benefit of the educational institution’s exemption from taxation. OAG 84-254 .

Whether property qualifies for the homestead exemption is determined as of January 1 each year. If one who is qualified for the homestead exemption owns the property as of that date, the property will receive the benefit of the exemption. If the property is owned as of the assessment date by one not qualified to receive the exemption, it will not receive the exemption for that year even though it may be acquired during the course of the year by one who is entitled to the exemption. OAG 85-108 , OAG 81-429 modified.

Where the purpose of the corporation was to hold title to all real and personal property for the church and to make expenditures at the direction of the General Assembly, the corporation was entitled to the exemption as an institution of purely public charity, as charity was more than an incidental portion of its program. OAG 87-81 .

The current exemption contained in the 1990 amendment to this section applies to all tangible personal property, all intangible personal property, and all real property owned and occupied by institutions of religion and is obviously permissive in its treatment of the subject; therefore, a proper interpretation should reject the imposition of conditions such as a requirement that the property be used for religious purposes, or that the property be occupied exclusively by the institution of religion, or that the institution of religion be in current rather than future occupation, because the voters did not intend to impose such conditions and the section must be construed in a general and nonrestricting sense in order that the plainly manifested purpose of those who created the amendment may be carried out. OAG 91-216 .

Research References and Practice Aids

Cross-References.

Exemption of factories by cities, KRS 91.260 , 92.300 .

Exempt property to be listed with county tax commissioner, KRS 132.220 (5).

Property not to be exempted by General Assembly, Const., § 3.

Property subject to taxation, KRS 132.190 to 132.210 .

Journal of Mineral Law & Policy.

Comments, Constitutional Validity of the Kentucky Unmined Coal Tax: Gillis v. Yount, 4 J.M.L. & P. 159 (1988).

Kentucky Bench & Bar.

Tobergte, The Impact of Kentucky’s Present Constitution Upon Business Growth & Development, Volume 51, No. 3, Summer 1987 Ky. Bench & B. 21.

Kentucky Law Journal.

Markham, The Property Tax — A Withering Vine, 60 Ky. L.J. 174 (1971).

Kentucky Law Survey, Whiteside, Taxation, 64 Ky. L.J. 371 (1975-76).

Weber and Olsen, Religious Property Tax Exemptions in Kentucky, 66 Ky. L.J. 651 (1977-1978).

Kentucky Law Survey, Whiteside and Harman, Kentucky Taxation, 67 Ky. L.J. 739 (1978-79).

Kentucky Law Survey, Whiteside, Taxation, 71 Ky. L.J. 479 (1982-83).

Snyder and Irland, The Separation of Governmental Powers Under the Constitution of Kentucky: A Legal and Historical Analysis of L.R.C. v. Brown, 73 Ky. L.J. 165 (1984-85).

§ 171. State tax to be levied — Taxes to be levied and collected for public purposes only and by general laws, and to be uniform within classes — Classification of property for taxation — Bonds exempt — Referendum on act classifying property.

The General Assembly shall provide by law an annual tax, which, with other resources, shall be sufficient to defray the estimated expenses of the Commonwealth for each fiscal year. Taxes shall be levied and collected for public purposes only and shall be uniform upon all property of the same class subject to taxation within the territorial limits of the authority levying the tax; and all taxes shall be levied and collected by general laws.

The General Assembly shall have power to divide property into classes and to determine what class or classes of property shall be subject to local taxation. Bonds of the state and of counties, municipalities, taxing and school districts shall not be subject to taxation.

Any law passed or enacted by the General Assembly pursuant to the provisions of or under this amendment, or amended section of the Constitution, classifying property and providing a lower rate of taxation on personal property, tangible or intangible, than upon real estate shall be subject to the referendum power of the people, which is hereby declared to exist to apply only to this section, or amended section. The referendum may be demanded by the people against one or more items, sections, or parts of any act enacted pursuant to or under the power granted by this amendment, or amended section. The referendum petition shall be filed with the Secretary of State not more than four months after the final adjournment of the Legislative Assembly which passed the bill on which the referendum is demanded. The veto power of the Governor shall not extend to measures referred to the people under this section. All elections on measures referred to the people under this act shall be at the regular general election, except when the Legislative Assembly shall order a special election. Any measure referred to the people shall take effect and become a law when approved by the majority of the votes cast thereon, and not otherwise. The whole number of votes cast for the candidates for Governor at the regular election, last preceding the filing of any petition, shall be the basis upon which the legal voters necessary to sign such petition shall be counted. The power of the referendum shall be ordered by the Legislative Assembly at any time any acts or bills are enacted, pursuant to the power granted under this section or amended section, prior to the year of one thousand nine hundred and seventeen. After that time the power of the referendum may be ordered either by the petition signed by five percent of the legal voters or by the Legislative Assembly at the time said acts or bills are enacted. The General Assembly enacting the bill shall provide a way by which the act shall be submitted to the people. The filing of a referendum petition against one or more items, sections or parts of an act, shall not delay the remainder of that act from becoming operative.

History. Amendment, approved November, 1915.

NOTES TO DECISIONS

1.Construction.

This section is prospective and not retrospective in effect. Long v. Louisville, 97 Ky. 364 , 30 S.W. 987, 17 Ky. L. Rptr. 253 , 1895 Ky. LEXIS 201 ( Ky. 1895 ). See Pearce v. Mason County, 99 Ky. 357 , 35 S.W. 1122, 18 Ky. L. Rptr. 266 , 1896 Ky. LEXIS 94 ( Ky. 1896 ).

Under this section it is clear that the legislature has no power to select, classify or discriminate in the imposition of a property or ad valorem tax. Hager v. Walker, 128 Ky. 1 , 107 S.W. 254, 32 Ky. L. Rptr. 748 , 1908 Ky. LEXIS 29 ( Ky. 1 908 ).

This section provides the only source from which the state may derive the necessary revenue to carry on the legitimate purposes of government and casual deficits or failures may be provided for under Const., §§ 49 and 50. Stanley v. Townsend, 170 Ky. 833 , 186 S.W. 941, 1916 Ky. LEXIS 143 ( Ky. 1916 ).

This section was amended in order to allow the general assembly to classify property for purposes of taxation. Commonwealth by Byars v. Hemingray's Ex'r, 185 Ky. 393 , 215 S.W. 69, 1919 Ky. LEXIS 308 ( Ky. 1919 ).

The provision of this section that the General Assembly shall provide by law sufficient annual tax is not self-executing nor can it be enforced by judicial process. Russell v. County Board of Education, 247 Ky. 703 , 57 S.W.2d 681, 1933 Ky. LEXIS 452 ( Ky. 1933 ).

This section and Const., §§ 172, 174 and 175 are self-executing, and they require that all property, unless exempted, be assessed for taxation and taxed and no discretion is left to the General Assembly. Reeves v. Island Creek Fuel & Transp. Co., 313 Ky. 400 , 230 S.W.2d 924, 1950 Ky. LEXIS 859 (Ky.), cert. denied, 340 U.S. 853, 71 S. Ct. 82, 95 L. Ed. 625, 1950 U.S. LEXIS 1535 (U.S. 1950).

Under this section and the implementing statutes, it is not intended that real estate and intangible property shall bear an equal burden. Kentucky Finance Co. v. McCord, 290 S.W.2d 481, 1956 Ky. LEXIS 324 ( Ky. 1956 ). See Russman v. Luckett, 391 S.W.2d 694, 1965 Ky. LEXIS 322 ( Ky. 1965 ).

This section and §§ 172 and 172A of the Constitution are to be interpreted together. Dolan v. Land, 667 S.W.2d 684, 1984 Ky. LEXIS 211 ( Ky. 1984 ).

2.Application.

The uniformity requirement of this section applies to taxation based upon income license or franchise and is given the broadest possible construction. Adams Express Co. v. Kentucky, 166 U.S. 171, 17 S. Ct. 527, 41 L. Ed. 960, 1897 U.S. LEXIS 2017 (U.S. 1897).

This section and Const., § 174 requiring uniformity in taxation apply only to property taxes. Greene v. Kentenia Corp., 175 Ky. 661 , 194 S.W. 820, 1917 Ky. LEXIS 371 ( Ky. 1917 ). But see Great Atlantic & Pacific Tea Co. v. Kentucky Tax Com., 278 Ky. 367 , 128 S.W.2d 581, 1939 Ky. LEXIS 406 ( Ky. 1939 ).

This section applies only to ad valorem taxes. Louisville v. Cromwell, 233 Ky. 828 , 27 S.W.2d 377, 1930 Ky. LEXIS 663 ( Ky. 1930 ). But see Great Atlantic & Pacific Tea Co. v. Kentucky Tax Com., 278 Ky. 367 , 128 S.W.2d 581, 1939 Ky. LEXIS 406 ( Ky. 1939 ).

While this section applies to direct taxation of property, yet the principle of equality and uniformity must be observed in imposing license and occupation taxes, and although businesses and occupations subject to license taxes may be classified and taxed at different rates, the tax within each class must be uniform. Great Atlantic & Pacific Tea Co. v. Kentucky Tax Com., 278 Ky. 367 , 128 S.W.2d 581, 1939 Ky. LEXIS 406 ( Ky. 1939 ).

The equality and uniformity requirements of this section apply not only to legislation levying a direct tax on property but also to legislation imposing occupation taxes. Louisville v. Koehler, 264 S.W.2d 80, 1954 Ky. LEXIS 654 ( Ky. 1954 ).

This section is applicable to license taxes as well as property taxes. Lexington v. Motel Developers, Inc., 465 S.W.2d 253, 1971 Ky. LEXIS 443 ( Ky. 1971 ).

KRS 238.570(1), imposing a regulatory fee on receipts from charitable gaming, does not violate Ky. Const., § 226(2)(f), which provides that money raised by charitable gaming be expended only for charitable purposes; nor does it violate Ky. Const., § 170, which provides that charitable institutions shall be exempt from tax, or this section, which provides that taxes shall be uniform on all property in the state. Commonwealth v. Louisville Atlantis Community/Adapt, 971 S.W.2d 810, 1997 Ky. App. LEXIS 86 (Ky. Ct. App. 1997).

3.Effect on Prior Law.

This section and Const., § 174 repealed the provisions of laws enacted in 1880 and 1886 exempting the property and income of the Masonic Temple Association of Newport from tax as long as the property was devoted to charitable and masonic purposes. Newport v. Masonic Temple Ass'n, 103 Ky. 592 , 45 S.W. 881, 20 Ky. L. Rptr. 266 , 1898 Ky. LEXIS 23 ( Ky. 1898 ).

This section and Const., § 172 are self executing and repeal previous statutes dealing with municipal taxation. Louisville & N. R. Co. v. Barboursville, 105 Ky. 174 , 48 S.W. 985, 20 Ky. L. Rptr. 1105 , 1898 Ky. LEXIS 251 ( Ky. 1898 ).

A judgment that certain land was not subject to city taxation prior to the adoption of the present Constitution because such land was agricultural land is not conclusive as to taxes levied since the adoption of the present Constitution. Shuck v. Lebanon, 107 Ky. 252 , 53 S.W. 655, 21 Ky. L. Rptr. 969 , 1899 Ky. LEXIS 165 ( Ky. 1899 ).

A statute enacted prior to the adoption of the Constitution, exempting insurance companies from taxation, was repealed by this section and Const., § 174. German Nat'l Ins. Co. v. Louisville, 54 S.W. 732, 21 Ky. L. Rptr. 1179 , 1900 Ky. LEXIS 345 ( Ky. 1900 ).

This section repealed special acts creating taxing districts insofar as they exempted taxable property within districts from taxation for the expenses of government. Covington v. District of Highlands, 113 Ky. 612 , 68 S.W. 669, 24 Ky. L. Rptr. 433 , 1902 Ky. LEXIS 89 ( Ky. 1902 ).

Enactment of this section was not intended to arrest the levy and collection of taxes under existing laws but provided that the legislature should, in the future, enact general laws for such tax levies and collections. Guthrie v. Sparks, 131 F. 443, 1904 U.S. App. LEXIS 4299 (6th Cir. Ky.), cert. denied, 195 U.S. 633, 25 S. Ct. 790, 49 L. Ed. 353, 1904 U.S. LEXIS 741 (U.S. 1904).

This section does not affect indebtedness already incurred when the Constitution was adopted. Carpenter v. Central Covington, 119 Ky. 785 , 81 S.W. 919, 26 Ky. L. Rptr. 430 , 1904 Ky. LEXIS 130 ( Ky. 1904 ).

The provisions of this section pertaining to taxation by general laws did not repeal special laws passed prior to the adoption of the Constitution. Smith v. Simmons, 129 Ky. 93 , 110 S.W. 336, 33 Ky. L. Rptr. 503 , 1908 Ky. LEXIS 134 ( Ky. 1908 ).

4.Uniformity and Equality.

The provisions on uniformity of this section were not repealed or impaired by Const., § 181. George Schuster & Co. v. Louisville, 124 Ky. 189 , 89 S.W. 689, 28 Ky. L. Rptr. 588 , 1905 Ky. LEXIS 165 ( Ky. 1905 ).

All property that is subject to a tax must pay the same rate for the same period, or the result will not be uniform. Commonwealth ex rel. Cummins v. Ryan's Ex'rs, 126 Ky. 649 , 104 S.W. 727, 31 Ky. L. Rptr. 1069 , 1907 Ky. LEXIS 87 ( Ky. 1907 ).

The uniformity requirement of this section and Const., § 174 is not vitiated by Const., § 182, as the provisions of that section merely relate to the mode of assessment and collection of taxes on railroads. Greene v. Louisville & I. R. Co., 244 U.S. 499, 37 S. Ct. 673, 61 L. Ed. 1280, 1917 U.S. LEXIS 1660 (U.S. 1917), overruled in part, Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 104 S. Ct. 900, 79 L. Ed. 2d 67, 1984 U.S. LEXIS 4 (U.S. 1984).

This section and Const., §§ 172 and 174 require not only that the rate of taxation on all property be uniform but also that the burden of taxation on all property be equal. Eminence Distillery Co. v. Henry County Board of Sup'rs, 178 Ky. 811 , 200 S.W. 347, 1918 Ky. LEXIS 473 ( Ky. 1918 ).

In order to be uniform under the requirements of this section, taxation must bear equally upon all the property within the taxing jurisdiction of the state, county, or municipal taxing unit. Lang v. Commonwealth, 190 Ky. 29 , 226 S.W. 379, 1920 Ky. LEXIS 543 ( Ky. 1920 ).

Under this section and Const., § 172, taxes must be equal and uniform. W. J. Duncan Coal Co. v. Board of Trustees, 202 Ky. 534 , 260 S.W. 341, 1924 Ky. LEXIS 749 ( Ky. 1924 ).

Under this section all taxation must be uniform within the entire territorial limits of the authority levying the tax. Beacon Liquors v. Martin, 279 Ky. 468 , 131 S.W.2d 446, 1939 Ky. LEXIS 304 ( Ky. 1939 ).

Equality of taxation is imperative under this section. George v. Scent, 346 S.W.2d 784, 1961 Ky. LEXIS 341 ( Ky. 1961 ).

This section requires only that taxation of property subject to taxation be uniform, and not that all property be taxed. Johnston v. Staples, 408 S.W.2d 206, 1966 Ky. LEXIS 90 ( Ky. 1966 ).

Where a city ordinance increased the licensing fees for physicians and other professions by 100 percent, but increased that for other occupations by only 20 percent to 40 percent, the requirement of uniformity was met since the tax was applied uniformly to all members of the class and was not required to be uniform as to all classes. Baker v. Corbin, 556 S.W.2d 449, 1977 Ky. App. LEXIS 817 (Ky. Ct. App. 1977).

Where the proof indicated only that 12 similar farms in the general area of taxpayers’ farm were assessed on an average of about 61 percent of their fair cash value for 1974, the assessments ranging from approximately 39 percent to 71 percent of fair cash value, and where there were certainly more than 12 “similar” farms in that county, no showing was made of a uniform or systematic proportionate assessment of the farm land in the particular district in which taxpayers’ farm was located. Walters v. Kentucky Board of Tax Appeals, 569 S.W.2d 170, 1977 Ky. App. LEXIS 926 (Ky. Ct. App. 1977).

If KRS 139.483 is applied so as to exclude from taxation boats or vessels used as pleasure commercial craft, but not other vessels, then the statute is unconstitutional because it results in discrimination and unjust treatment of a particular taxpayer. Barnes v. Department of Revenue, 575 S.W.2d 169, 1978 Ky. App. LEXIS 647 (Ky. Ct. App. 1978).

This section insures uniform rates of taxation while Const., § 172, insures a uniform standard of assessment for taxation. Parrent v. Fannin, 616 S.W.2d 501, 1981 Ky. LEXIS 250 ( Ky. 1981 ).

Neither the sales nor use tax of Kentucky upon construction machinery and materials brought into the state is a burden upon interstate commerce because it is levied after such property comes to rest in Kentucky; thus, KRS 139.510 is constitutional and does not violate this section, the 14th Amendment to the United States Constitution, or U.S. Const., Art. 1, § 8, and KRS 139.510 reflects a legitimate public purpose in allowing the tax credit to equalize the tax burden among each taxpayer coming within the purview of that particular classification. Genex/London, Inc. v. Kentucky Bd. of Tax Appeals, 622 S.W.2d 499, 1981 Ky. LEXIS 275 ( Ky. 1981 ).

Method used by property valuation administrator which resulted in farm property being assigned a value based on general averages rather than an individual and specific value related to the agricultural purpose for which it was used was constitutionally unsound since the method even though it was the same method used for all agricultural land in the county, failed to value the property on the basis of uniform standards and did not result in an effective tax which was equally burdensome on all farm taxpayers. Dolan v. Land, 667 S.W.2d 684, 1984 Ky. LEXIS 211 ( Ky. 1984 ).

There is a violation of constitutional rights if the effective tax rate is not uniform and thereby results in an unequal tax burden; any method of assessment which fails to follow the constitutional directions and accordingly does not produce an assessed value based on agricultural use of each individual parcel, violates the Constitution. Dolan v. Land, 667 S.W.2d 684, 1984 Ky. LEXIS 211 ( Ky. 1984 ).

The use of mathematical formula to arrive at a result may be proper as long as the procedure adopted does not produce an unfair or unequal valuation. Dolan v. Land, 667 S.W.2d 684, 1984 Ky. LEXIS 211 ( Ky. 1984 ).

The city’s license tax as applied to mobile home park violates the constitutional requirement of uniformity and equality which is applicable to occupational license tax ordinances where a particular entity is singled out for special licensing and/or is required to bear a heavier burden than other entities are required to bear. Erlanger v. KSL Realty Corp., 819 S.W.2d 707, 1991 Ky. LEXIS 152 ( Ky. 1991 ).

Where the Property Valuation Administrator (PVA) used a mathematical formula to assess some tracts of land, and a comparable sales method on other tracts of land, and the mathematical formula produced values that greatly exceeded the fair market value, the court held the PVA failed to value the property on the basis of uniform standards in violation of this section. Barrett v. Reynolds, 817 S.W.2d 439, 1991 Ky. LEXIS 146 ( Ky. 1991 ).

During the approximate one hundred (100) years of judicial interpretation of this section, two (2) basic principles have emerged: (1) taxes imposed under Ky. Const. § 181 must be uniform within the class; and (2) although there need not be uniformity amongst classes, there must be equality amongst sufficiently-related classes so that inter-class discrimination cannot be said to be arbitrary, unreasonable, or capricious. Renfro Valley Folks v. City of Mt. Vernon, 872 S.W.2d 472, 1993 Ky. App. LEXIS 174 (Ky. Ct. App. 1993).

Variability of the collections fees that third-party purchasers were allowed to collect did not make the collection of taxes non-uniform under Ky. Const. § 171 as the collection fees were not taxes. Farmers Nat'l Bank v. Commonwealth, 486 S.W.3d 872, 2015 Ky. App. LEXIS 76 (Ky. Ct. App. 2015).

5.Disparate Tax Burden.

The provision in KRS 68.480 (repealed), that the fiscal court levy a tax to construct and maintain a county courthouse violates this section since the courthouse commission rather than the fiscal court has the only authority to create a disparate tax burden between the courthouse district and the remainder of the county. Whitford v. Hehl, 612 S.W.2d 759, 1980 Ky. App. LEXIS 426 (Ky. Ct. App. 1980).

6.Power of Taxation.

The provision requiring the legislature to provide an annual tax sufficient to defray the ordinary expenses of the state, when considered with Const., § 59, constitutes a rule for the conduct of the state’s finances, and the legislature should levy additional taxes to meet additional appropriations. Rhea v. Newman, 153 Ky. 604 , 156 S.W. 154, 1913 Ky. LEXIS 900 ( Ky. 1913 ).

In the case of a deficit the legislature may at any succeeding session provide for an additional tax levy and collection. State Budget Com. v. Lebus, 244 Ky. 700 , 51 S.W.2d 965, 1932 Ky. LEXIS 502 ( Ky. 1932 ).

The legislature is authorized to make an appropriation for any purpose for which a tax may be levied and collected pursuant to this section. Pennington v. Shannon, 270 Ky. 142 , 109 S.W.2d 389, 1937 Ky. LEXIS 37 ( Ky. 1937 ).

Counties and cities are political subdivisions with the dual purpose of performing purely local functions and of serving as arms of the state government in local administration and each is given limited power of taxation. Lexington v. Hager, 337 S.W.2d 27, 1960 Ky. LEXIS 358 ( Ky. 1960 ).

7.Property.

An oil drilling lease is property within the meaning of this section and is subject to tax. Raydure v. Board of Sup'rs, 183 Ky. 84 , 209 S.W. 19, 1919 Ky. LEXIS 469 ( Ky. 1919 ).

Distilled spirits are personal property within the meaning of this section and Const., § 172. Reeves v. Jefferson County, 245 S.W.2d 606, 1951 Ky. LEXIS 1263 ( Ky. 1951 ). See National Distillers Products Corp. v. Board of Education, 256 S.W.2d 481, 1952 Ky. LEXIS 1151 ( Ky. 1952 ).

8.— Value.

The income producing capacity of land is not the only factor to be considered in establishing the value of the property. Dolan v. Land, 667 S.W.2d 684, 1984 Ky. LEXIS 211 ( Ky. 1984 ).

9.Territorial Scope of Tax.

All property within the corporate limits of a city is taxable for municipal purposes, regardless of any question of benefits or protection derived from the city government, and therefore the fact that land used for agricultural purposes is embraced within the city limits without the owner’s consent does not exempt it from municipal taxation. Board of Councilmen v. Scott, 101 Ky. 615 , 42 S.W. 104, 19 Ky. L. Rptr. 1068 , 1897 Ky. LEXIS 228 ( Ky. 1897 ). See Board of Councilman v. Rarick, 102 Ky. 352 , 43 S.W. 450, 19 Ky. L. Rptr. 1415 , 1897 Ky. LEXIS 113 ( Ky. 1897 ); Hughes v. Carl, 106 Ky. 533 , 50 S.W. 852, 21 Ky. L. Rptr. 6 , 1899 Ky. LEXIS 65 ( Ky. 1899 ); Central Covington v. Park, 56 S.W. 650, 21 Ky. L. Rptr. 1847 (1900).

This section and Const., § 174 require that taxes imposed by municipalities are to be levied and collected from all property situated within the territorial limits of each municipality. Latonia v. Hopkins, 104 Ky. 419 , 47 S.W. 248, 20 Ky. L. Rptr. 620 , 1898 Ky. LEXIS 169 ( Ky. 1898 ).

Since the adoption of this section, all lands within the corporate limits of cities are subject to taxation regardless of benefits received. Lebanon v. Knott, 72 S.W. 790, 24 Ky. L. Rptr. 1992 , 1903 Ky. LEXIS 514 (Ky. Ct. App. 1903).

A plan for merger of city and county government which divides the county into three (3) taxing districts and authorizes ad valorem taxation at different rates in each district commensurate with government services provided in each district does not violate this section of the Constitution. Holsclaw v. Stephens, 507 S.W.2d 462, 1973 Ky. LEXIS 3 ( Ky. 1973 ).

10.Income Tax.

An income tax is not considered a property tax within the tax uniformity and property exemption provisions of this section and Const., § 170 and, consequently, the Commonwealth income tax is constitutional. Reynolds Metal Co. v. Martin, 269 Ky. 378 , 107 S.W.2d 251, 1937 Ky. LEXIS 604 ( Ky. 1937 ).

Although an income tax is a tax against the individual, and not a property tax, within the meaning of the provisions of this section and Const., § 172 requiring that property taxes be uniform, nevertheless the income tax is limited by the principle of reasonable classification, and no individual can be singled out and compelled to pay a tax, irrespective of its nature, in an amount other than that exacted from other individuals of the same class. Martin v. Gage, 281 Ky. 95 , 134 S.W.2d 966, 1939 Ky. LEXIS 7 ( Ky. 1939 ).

11.Inheritance Tax.

An inheritance tax is not a tax on property within the provision of this section requiring uniformity and equality of taxes on all property subject to taxation. Booth's Ex'r v. Commonwealth, 130 Ky. 88 , 113 S.W. 61, 1908 Ky. LEXIS 247 ( Ky. 1908 ).

Under this section and Const., §§ 183 and 184, the common school fund may share in the income derived from inheritance taxes. Gilbert v. Greene, 185 Ky. 817 , 216 S.W. 105, 1919 Ky. LEXIS 380 ( Ky. 1919 ).

12.Special Assessments.

The provisions of this section and Const., § 174, requiring uniformity of taxation and taxation according to value, are merely declaratory of what was always the law and do not render invalid the assessment on abutting property of a part of the cost of a street improvement. Holtzhauer v. Newport, 94 Ky. 396 , 22 S.W. 752 ( Ky. 1893 ).

The word “tax” means the usual and customary mode of providing public revenue, and not special levies upon the property benefited by local improvements. Gosnell v. Louisville, 104 Ky. 201 , 46 S.W. 722, 20 Ky. L. Rptr. 519 , 1898 Ky. LEXIS 156 ( Ky. 1898 ), limited, Kirwin v. Nevin, 111 Ky. 682 , 64 S.W. 647, 23 Ky. L. Rptr. 947 , 1901 Ky. LEXIS 246 ( Ky. 1901 ). See Vogt v. Oakdale, 166 Ky. 810 , 179 S.W. 1037, 1915 Ky. LEXIS 780 ( Ky. 1915 ); Shaw v. Mayfield, 204 Ky. 618 , 265 S.W. 13, 1924 Ky. LEXIS 529 ( Ky. 1924 ), limited, Marion v. Paris, 237 Ky. 305 , 35 S.W.2d 311, 1931 Ky. LEXIS 592 ( Ky. 1931 ).

A special assessment for improvements is not a tax within the meaning of this section. Scherm v. Short, 116 Ky. 946 , 77 S.W. 357, 25 Ky. L. Rptr. 1108 , 1903 Ky. LEXIS 268 ( Ky. 1903 ).

An ordinance taxing abutting property owners for street improvements did not violate this section merely because the major costs of such improvements had previously been paid from general expense fund. Bonar v. Southgate, 215 Ky. 133 , 284 S.W. 1019, 1926 Ky. LEXIS 678 ( Ky. 1926 ).

The principles of uniform taxation govern the levying of special benefit assessments on property although such assessments are not generally considered taxes within the meaning of the term as used in this section. Nall v. Thomas, 225 Ky. 610 , 9 S.W.2d 727, 1928 Ky. LEXIS 832 ( Ky. 1928 ).

The requirements that taxation be uniform imposed by this section and Const., § 172 do not in any way bar special property assessments for public improvements conferring local benefits. Baker v. Princeton, 226 Ky. 409 , 11 S.W.2d 94, 1928 Ky. LEXIS 107 ( Ky. 1928 ).

Special assessments against abutting property to be benefited by erection and maintenance of floodwall by city did not violate uniformity provisions of this section or of United States Const., Amend. 14, by proposing to assess a particular class of taxpayers to defray part of cost of the project. Miller v. Ashland, 310 Ky. 680 , 221 S.W.2d 620, 1949 Ky. LEXIS 986 ( Ky. 1949 ).

Since special property improvement assessments are not classified as ad valorem taxes under the constitutional provisions requiring tax uniformity and equality, a taxpayer may properly be required to pay such assessment although also required to pay general taxes which were used in part to pay for similar improvements benefiting other property owners and taxpayers. Krumpelman v. Louisville & Jefferson County Metropolitan Sewer Dist., 314 S.W.2d 557, 1958 Ky. LEXIS 310 ( Ky. 1958 ).

13.License and Excise Tax.

The ad valorem system of taxation must be applied to both real and personal property and a municipality may not impose a license tax in lieu of an ad valorem tax on personalty used as part of a business. Levi v. Louisville, 97 Ky. 394 , 30 S.W. 973, 16 Ky. L. Rptr. 872 , 1895 Ky. LEXIS 196 ( Ky. 1895 ).

A license tax on distilled spirits based on the amount of spirits produced is not a property tax within the meaning of this section. Brown-Foreman Co. v. Commonwealth, 125 Ky. 402 , 101 S.W. 321, 30 Ky. L. Rptr. 793 , 1907 Ky. LEXIS 285 ( Ky. 1907 ), aff'd, 217 U.S. 563, 30 S. Ct. 578, 54 L. Ed. 883, 1910 U.S. LEXIS 1984 (U.S. 1910).

This section does not apply to license taxes of a municipality under the authority of Const., § 181. Weyman v. Newport, 153 Ky. 487 , 156 S.W. 109, 1913 Ky. LEXIS 876 ( Ky. 1913 ).

Where a telephone company has not secured a franchise pursuant to Const., § 164, the city has power to impose a license tax upon it. Hardin County Kentucky Tel. Co. v. Elizabethtown, 227 Ky. 778 , 14 S.W.2d 162, 1929 Ky. LEXIS 981 ( Ky. 1929 ).

Uniformity provision applies to license taxes as well as to property taxes. Louisville v. Aetna Fire Ins. Co., 284 Ky. 154 , 143 S.W.2d 1074, 1940 Ky. LEXIS 457 ( Ky. 1940 ).

This section requires the uniformity of license as well as to property taxes. Davis v. Pelfrey, 285 Ky. 298 , 147 S.W.2d 723, 1941 Ky. LEXIS 381 ( Ky. 1941 ).

The amount of license fees imposed as a tax is a question for the taxing power, and the courts will not interfere with its discretion unless the tax amounts to a prohibition of useful and legitimate business. White v. Richmond, 293 Ky. 477 , 169 S.W.2d 315, 1943 Ky. LEXIS 650 ( Ky. 1943 ).

In a police act, the amount of license fee charged must in some measure correspond to costs of issuing licenses and of enforcing the supervisions or regulations provided in the act. Reeves v. Adam Hat Stores, Inc., 303 Ky. 633 , 198 S.W.2d 789, 1946 Ky. LEXIS 918 ( Ky. 1946 ).

For the purposes of this section, excise taxes and license fees imposed on the sale and use of motor vehicles, gasoline and other fuels are not ad valorem property taxes. Dalton v. State Property & Bldgs. Com., 304 S.W.2d 342, 1957 Ky. LEXIS 276 ( Ky. 1957 ).

Imposition of an additional business license tax on mobile home park owners, which levied a flat fee for each space in addition to an annual business license tax, was an unconstitutional selection of one business rather than another to bear a heavier tax burden because it was not founded on a rational distinction. Jahr v. Radcliff, 503 S.W.2d 743, 1973 Ky. LEXIS 48 ( Ky. 1973 ).

The exercise of the licensing power is subject to the requirements, established by this section and Ky. Const., § 2, that classifications for purposes of taxation of occupations and businesses must be based on reasonable distinctions, must be uniform as to the class and must not be excessive, arbitrary or prohibitive, and these requirements apply whether the case involves an increase of a license fee or the initial imposition thereof. Baker v. Corbin, 556 S.W.2d 449, 1977 Ky. App. LEXIS 817 (Ky. Ct. App. 1977).

The reasonableness of distinctions made in taxing occupations and businesses is a matter within the discretion of the taxing body and where there was no evidence in the record to indicate the reason for a 100 percent increase in the licensing fee for physicians and other professions, the matter would be left within the discretion of the city taxing body since the ordinance in question did not create a special class for the purpose of imposing an additional burden. Baker v. Corbin, 556 S.W.2d 449, 1977 Ky. App. LEXIS 817 (Ky. Ct. App. 1977).

14.Utility Rates.

As long as rates are not unreasonable, a city water company may set rates in excess of those sufficient to pay operating expenses, maintenance and debts, and such rates are not objectionable as special taxes. Dolan v. Louisville Water Co., 295 Ky. 291 , 174 S.W.2d 425, 1943 Ky. LEXIS 232 ( Ky. 1943 ).

Water rates paid to a city water company are not taxes, as the obligation to pay for the use of water rests on express or implied contract on the part of the consumer to compensate for water he has applied for and received. Dolan v. Louisville Water Co., 295 Ky. 291 , 174 S.W.2d 425, 1943 Ky. LEXIS 232 ( Ky. 1943 ).

15.Use Tax.

State highway toll bridge act does not violate this section, since tolls are not taxes but compensation paid for the use of a bridge. Bloxton v. State Highway Com., 225 Ky. 324 , 8 S.W.2d 392, 1928 Ky. LEXIS 762 ( Ky. 1928 ).

16.Tax Rate.

Under this section the rate of taxation may be varied by the legislature from year to year according to requirements. Greene v. Louisville & I. R. Co., 244 U.S. 499, 37 S. Ct. 673, 61 L. Ed. 1280, 1917 U.S. LEXIS 1660 (U.S. 1917), overruled in part, Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 104 S. Ct. 900, 79 L. Ed. 2d 67, 1984 U.S. LEXIS 4 (U.S. 1984).

This section places no limit on the rate of taxation which the legislature may impose for state purposes. Crick v. Rash, 190 Ky. 820 , 229 S.W. 63, 1921 Ky. LEXIS 516 ( Ky. 1921 ).

Statute establishing a maximum rate for municipal taxation on certain classes of property is constitutional. Williamsburg v. First Nat'l Bank, 211 Ky. 606 , 277 S.W. 977, 1925 Ky. LEXIS 932 ( Ky. 1925 ).

Insofar as KRS 67A.150 mandates that service districts are separate taxing districts, it is patently offensive to this section and differentials in tax rates between service districts are unconstitutional as applied to personal property and severed mineral interests, though not as applied to real estate. Jacobs v. Lexington-Fayette Urban County Government, 560 S.W.2d 10, 1977 Ky. LEXIS 564 ( Ky. 1977 ).

KRS 133.185 , which relates to the imposition of a tax rate for a taxing district, such as a city, county or school, has no relationship to this section which requires that the General Assembly shall provide an annual tax sufficient to defray the estimated expenses of the Commonwealth; the state tax rate on all personal property, including motor vehicles, is not fixed by the processes outlined in KRS 133.185 , 132.487(2), or 132.487(6) which provide for submission of a proposal, recapitulation of motor vehicles by the property valuation administrator, and certification by the Department of Revenue (now Revenue Cabinet), but rather, the state tax rate is fixed by the General Assembly and is currently embodied in KRS 132.020 . There is no conflict between KRS 132.487(2) and 132.487(6) with the constitutional provision that the taxes shall be sufficient to defray the expenses of the state. Kling v. Geary, 667 S.W.2d 379, 1984 Ky. LEXIS 216 ( Ky. 1984 ).

17.Exemptions.

Under this section and Const., § 174, agricultural land lying within city limits is not exempt from taxation. Latonia v. Hopkins, 104 Ky. 419 , 47 S.W. 248, 20 Ky. L. Rptr. 620 , 1898 Ky. LEXIS 169 ( Ky. 1898 ).

Since the Constitution requires uniformity of taxation on all property, exemptions, like other cases of special privileges, are to be strictly construed. Louisville & N. R. Co. v. Louisville, 143 Ky. 258 , 136 S.W. 611, 1911 Ky. LEXIS 391 ( Ky. 1911 ).

Under this section the legislature has the power to exempt property from local taxation. Kentucky & West Virginia Power Co. v. Holliday, 216 Ky. 78 , 287 S.W. 212, 1926 Ky. LEXIS 832 ( Ky. 1926 ).

Statute exempting unmanufactured agricultural products in hands of producer or his agent from local taxation is valid exercise of taxing power. Owensboro v. Dark Tobacco Growers' Ass'n, 222 Ky. 164 , 300 S.W. 350, 1927 Ky. LEXIS 879 ( Ky. 1927 ).

This section authorizes only the classification of property and not its exemption, except from local taxation. Martin v. High Splint Coal Co., 268 Ky. 11 , 103 S.W.2d 711, 1937 Ky. LEXIS 421 ( Ky. 1937 ).

This section does not authorize the exemption from local taxation of property owned by a rural electric cooperative corporation. Inter-County Rural Electric Co-operative Corp. v. Reeves, 294 Ky. 458 , 171 S.W.2d 978, 1943 Ky. LEXIS 446 ( Ky. 1943 ).

Statutory provisions that revenue bonds to be issued by unemployment compensation commission, to defray construction costs of office building, shall be exempt from taxation does not violate Const., § 170 and this section since bonds are to be issued by an instrumentality of the state and may be considered “bonds of the state,” specifically exempt under this section. Meagher v. Commonwealth, 305 Ky. 289 , 203 S.W.2d 35, 1947 Ky. LEXIS 784 ( Ky. 1947 ).

18.— Valid.

KRS 160.611 , which exempts nonresidents of the county from paying the license or occupational tax for schools, did not violate either the state or federal constitutions because it taxed only the persons living in the area that would receive the benefit. Board of Education v. Board of Education, 458 S.W.2d 6, 1970 Ky. LEXIS 160 ( Ky. 1970 ).

While KRS 186A.120(3)(b), 186A.220 and 186A.230 exempt dealers who hold vehicles for resale from payment of the ad valorem tax, this is not a “halving” of a classification, but is only a method of fixing the time and the person responsible for payment of the ad valorem tax on all motor vehicles — to-wit, the purchaser of the vehicle at the time the vehicle is registered for use upon the highway, and the tax is payable by all persons, including an individual or a dealer, who intend to operate the vehicle on the highways of the state; these sections, read in conjunction with KRS 134.810(4), do not violate Const., §§ 59(15) or this section. Kling v. Geary, 667 S.W.2d 379, 1984 Ky. LEXIS 216 ( Ky. 1984 ).

19.Public Purposes.

A tax levied for school purposes is one levied for a public purpose. Davenport v. Cloverport, 72 F. 689, 1896 U.S. Dist. LEXIS 143 (D. Ky. 1896 ).

A tax is levied for public purposes where the money is used to pay a pension granted in consideration of public services, such as a pension to indigent confederate soldiers. Bosworth v. Harp, 154 Ky. 559 , 157 S.W. 1084, 1913 Ky. LEXIS 114 ( Ky. 1913 ).

Tax revenue may be used for a public purpose even though some persons derive greater benefit from the use of the money than others, it being sufficient that it is used to promote the general welfare and prosperity of the people. Carman v. Hickman County, 185 Ky. 630 , 215 S.W. 408, 1919 Ky. LEXIS 351 ( Ky. 1919 ).

Taxes may only be levied and collected for public purposes. Shanks v. Commonwealth, 219 Ky. 212 , 292 S.W. 837, 1927 Ky. LEXIS 334 ( Ky. 1927 ).

The distinction between this section and Const., § 3 is that the provision of this section requires a public purpose while the provisions of Const., § 3 forbid a special privilege. Nichols v. Henry, 301 Ky. 434 , 191 S.W.2d 930, 1945 Ky. LEXIS 746 ( Ky. 1945 ).

Surplus in general fund in state treasury is available for public purposes. Miller v. Quertermous, 304 Ky. 733 , 202 S.W.2d 389, 1947 Ky. LEXIS 712 ( Ky. 1947 ).

Where annual appropriation for operation of state charitable and correctional institutions proved insufficient, due to unanticipated rise in cost of materials and supplies, and governor’s emergency fund was insufficient to supply the deficiency, court had power to issue writ of mandamus directing commissioner of finance (now secretary of finance and administration) and state treasurer to use money in general fund surplus to supply the deficiency, the emergency being such as to impose a public duty upon the state as well as upon the General Assembly. Miller v. Quertermous, 304 Ky. 733 , 202 S.W.2d 389, 1947 Ky. LEXIS 712 ( Ky. 1947 ).

A private agency may be utilized as the conduit through which a public expenditure is made, the test being not who receives the money, but the character of the use for which it is expended. Kentucky Bldg. Com. v. Effron, 310 Ky. 355 , 220 S.W.2d 836, 1949 Ky. LEXIS 915 ( Ky. 1949 ).

The General Assembly cannot confer on local government units any power of taxation greater than that which it itself possesses under the Constitution and for that reason a municipality may not, and may not be authorized to create a bonded indebtedness for other than a public purpose. Dyche v. London, 288 S.W.2d 648, 1956 Ky. LEXIS 271 ( Ky. 1956 ).

The meaning of the sentence “taxes shall be levied and collected for public purposes only” is that taxes may be levied and collected only for a public purpose of the particular tax levying unit. Lexington v. Hager, 337 S.W.2d 27, 1960 Ky. LEXIS 358 ( Ky. 1960 ).

The payment of private claims out of a compensation fund, authorized by KRS 304.40-330 (repealed), did not violate this section since the fund was drawn from private sources and contained no public money. McGuffey v. Hall, 557 S.W.2d 401, 1977 Ky. LEXIS 533 ( Ky. 1977 ).

The primary function of the University of Kentucky medical center clinic activities is to further the educational and service goals of the medical center; accordingly, KRS 164.939 to 164.944 , which provide medical malpractice coverage for clinical employees do not violate this section since the coverage is being provided for public services and promotes the general welfare and prosperity of those taxed to sustain it. Board of Trustees v. Commonwealth, 625 S.W.2d 867, 1981 Ky. App. LEXIS 306 (Ky. Ct. App. 1981).

If the purposes served by an action constitute public purposes for which tax revenues may be levied and expended under this section, the manner of the use and expenditure is also proper under Const., § 3, and is not a private use as distinct from a public use. Hayes v. State Property & Bldgs. Com., 731 S.W.2d 797, 1987 Ky. LEXIS 217 ( Ky. 1987 ).

Grants made by fiscal court from county tax revenues by direct payment to certain specified privately-owned schools designated as transportation subsidies violated this section which provides that taxes shall be levied for public purposes only and subsection (1) of KRS 61.080 which provided that county funds may be appropriated but only for lawful purposes. Fiscal Court v. Brady, 885 S.W.2d 681, 1994 Ky. LEXIS 88 ( Ky. 1994 ).

20.— Valid.

The sprinkling of city streets, being necessary to preserve the public health and comfort, is a public purpose, and hence an ordinance levying a tax for street sprinkling purposes is not unconstitutional. Maydwell v. Louisville, 116 Ky. 885 , 76 S.W. 1091, 25 Ky. L. Rptr. 1062 , 1903 Ky. LEXIS 254 ( Ky. 1903 ).

An appropriation by statute to a private corporation organized under the laws of the state for purely charitable purposes, and conducted solely to seek out destitute children and provide them homes where they will be under supervision of the institution during their minority, is for a public purpose within the provision that taxes shall be levied for public purposes only. Hager v. Kentucky Children's Home Soc., 119 Ky. 235 , 83 S.W. 605, 26 Ky. L. Rptr. 1133 , 1904 Ky. LEXIS 166 ( Ky. 1904 ).

A statute imposing a tax on dogs to create a fund for the remuneration of the owners of sheep for losses suffered by the killing of their sheep by dogs is not a revenue statute, but is a police regulation and therefore is not repugnant to the provision of this section that taxes shall not be levied for other than public purposes, nor to Const., §§ 172 and 174. McGlone v. Womack, 129 Ky. 274 , 111 S.W. 688, 33 Ky. L. Rptr. 811 , 33 Ky. L. Rptr. 864 , 1908 Ky. LEXIS 166 (Kan. Ct. App. 1908).

Tax revenue reasonably used for memorial building, monuments, and other public ornaments designed to inspire sentiments of patriotism or respect is used for a public purpose. Barrow v. Bradley, 190 Ky. 480 , 227 S.W. 1016, 1921 Ky. LEXIS 481 ( Ky. 1921 ).

Under this section and Const., § 179, the legislature may allow a county to donate county revenues for the construction of roads within county borders. Lawrence County v. Lawrence Fiscal Court, 191 Ky. 45 , 229 S.W. 139, 1921 Ky. LEXIS 284 ( Ky. 1921 ).

A statute providing for the organization of county farm bureaus which provides for appropriation therefor by the county fiscal court does not violate this section or Const., § 181. Hendrickson v. Taylor County Farm Bureau, 196 Ky. 75 , 244 S.W. 82, 1922 Ky. LEXIS 456 ( Ky. 1922 ).

A statute providing that a city may issue bonds to construct a soldiers’ and sailors’ memorial does not violate this section although the memorial also honors individuals from the county but outside the city limits. Hunter v. Louisville, 204 Ky. 562 , 265 S.W. 277, 1924 Ky. LEXIS 552 ( Ky. 1924 ).

A city council may not from public funds pay the medical expenses of one wounded while assisting a city policeman in serving a search warrant since such payment would constitute the use of tax revenues for other than public purposes. Caudill v. Pinsion, 233 Ky. 12 , 24 S.W.2d 938, 1930 Ky. LEXIS 498 ( Ky. 1930 ).

Statute providing for the payment of inquest expenses by city of over 300,000 is constitutional. Whittenberg v. Louisville, 238 Ky. 117 , 36 S.W.2d 853, 1931 Ky. LEXIS 187 ( Ky. 1931 ). See Louisville v. Keaney, 267 Ky. 557 , 102 S.W.2d 996, 1937 Ky. LEXIS 346 ( Ky. 1937 ).

The General Assembly may constitutionally appropriate and distribute salaries on a per capita basis to all common school teachers within the state since they render a service to the state for public purposes. Board of Education v. Talbott, 261 Ky. 66 , 86 S.W.2d 1059, 1935 Ky. LEXIS 592 ( Ky. 1935 ).

KRS 158.115 , authorizing county to use general funds to furnish transportation for schoolchildren where children did not reside within reasonable walking distance of school and there were no sidewalks upon which they could travel, was valid as legislation intended for public purpose of protecting children from dangers of highways and was not invalid as intended for private purpose of aiding private, parochial or sectarian schools, notwithstanding that such schools would indirectly benefit by virtue of transportation of their pupils. Nichols v. Henry, 301 Ky. 434 , 191 S.W.2d 930, 1945 Ky. LEXIS 746 ( Ky. 1945 ).

KRS 158.115 providing for supplementary transportation for children attending school in compliance with compulsory school attendance law, providing for payment of such transportation from general funds of county and making transportation available to children attending any type of school is tax legislation for a public purpose and does not violate either the provisions of this section requiring that tax levys be only for public purposes or the provision of Const., § 3 forbidding a special privilege. Nichols v. Henry, 301 Ky. 434 , 191 S.W.2d 930, 1945 Ky. LEXIS 746 ( Ky. 1945 ).

A law providing for a division of medical hospitals and related services and a 1948 appropriation authorizing the use of state tax funds to match federal funds for the construction of non-profit, privately owned hospitals open to the public were not violative of the provision in Const., § 3 prohibiting exclusive grant of public emoluments except in consideration of public services, or of the provision in this section prohibiting the levy and collection of taxes except for public purposes only, and the proposed hospitals were to render a public service and were to be for public purposes. Kentucky Bldg. Com. v. Effron, 310 Ky. 355 , 220 S.W.2d 836, 1949 Ky. LEXIS 915 ( Ky. 1949 ).

The uniform support of dependents act is not invalid on the ground that it constitutes a diversion of public funds for the benefit of private individuals, notwithstanding the provisions requiring the county attorney, a public officer, to represent private persons. Duncan v. Smith, 262 S.W.2d 373, 1953 Ky. LEXIS 1090 ( Ky. 1953 ).

The relief of abnormal unemployment in a city and surrounding area may sufficiently constitute a public purpose to justify the creation of a municipal bonded indebtedness for the construction of industrial buildings to attract new industry to the area in order to reduce unemployment but it is incumbent upon the city in seeking to create such indebtedness to establish by clear and convincing proof that the proof that the project was essentially for a public purpose. Dyche v. London, 288 S.W.2d 648, 1956 Ky. LEXIS 271 ( Ky. 1956 ).

Although public funds may not be appropriated for any purpose for which taxes may not properly be imposed, the use of such funds for the relief of unemployment may be justified as for a public purpose. Industrial Development Authority v. Eastern Kentucky Regional Planning Com., 332 S.W.2d 274, 1960 Ky. LEXIS 142 ( Ky. 1960 ).

An act creating an industrial development finance authority and granting loans to local development agencies for use in industrial subdivision projects in order to reduce unemployment and utilize the resources of the entire state by attracting new industry was for a public purpose and was not unconstitutional as pledging or lending the credit of the state. Industrial Development Authority v. Eastern Kentucky Regional Planning Com., 332 S.W.2d 274, 1960 Ky. LEXIS 142 ( Ky. 1960 ).

KRS 157.305 (repealed), has a valid public purpose within the scope and spirit of this section and Const., §§ 3 and 177. Butler v. United Cerebral Palsy, Inc., 352 S.W.2d 203, 1961 Ky. LEXIS 200 ( Ky. 1961 ).

Statutes which created an arts and crafts loan fund board and a nursing home and personal care home loan fund board were not invalid as each served legitimate public purposes. Stovall v. Eastern Baptist Institute, 375 S.W.2d 273, 1964 Ky. LEXIS 406 ( Ky. 1964 ).

The tax levied by KRS 67.320 (repealed), is levied for a public purpose within the meaning of this constitutional provision. Johnson v. Peak, 407 S.W.2d 692, 1966 Ky. LEXIS 171 ( Ky. 1966 ).

A county fiscal court’s resolution which provided approximately 65 percent of the total cost of transporting non-public elementary school students was not unconstitutional where (1) funds were not paid directly to any private or parochial school and were, instead, paid to the individual local board of education operated transportation system of contracted bus and vehicle companies, (2) the benefit provided by the resolution went directly toward the safety and welfare of elementary age school children and not into the accounts of non-public schools, and (3) the resolution did not establish a tuition ceiling as a requisite to eligibility for the transportation subsidy. Neal v. Fiscal Court, 986 S.W.2d 907, 1999 Ky. LEXIS 24 ( Ky. 1999 ).

21.— Invalid.

A law according transportation rights to pupils attending private schools violates the public purposes provision of this section. Sherrard v. Jefferson County Board of Education, 294 Ky. 469 , 171 S.W.2d 963, 1942 Ky. LEXIS 2 ( Ky. 1942 ).

Payment of salary from public funds to state employee on leave of absence attending school to better qualify herself to perform her duties is prohibited by this section. Barnes v. Adams, 305 S.W.2d 754, 1957 Ky. LEXIS 325 ( Ky. 1957 ).

The performance of services within a city by a coroner who is designated by the Constitution as a county officer does not constitute the performance of any function of the city as a political unit and a statute providing that coroners and deputy coroners may be paid salaries by a city violates the constitutional provision that taxes may be levied only for public purposes. Lexington v. Hager, 337 S.W.2d 27, 1960 Ky. LEXIS 358 ( Ky. 1960 ).

The Kentucky Constitution contemplates that public funds shall be expended for public education and the Commonwealth is obliged to furnish every child in this state an education in the public schools, but it is constitutionally proscribed from providing aid to furnish a private education. Fannin v. Williams, 655 S.W.2d 480, 1983 Ky. LEXIS 290 ( Ky. 1983 ).

KRS 171.215 , which provides that the Department of Libraries (Department for Libraries and Archives) must supply textbooks without cost to pupils attending nonpublic schools, is unconstitutional in that it directs the expenditure of public funds for educational purposes through nonpublic schools. Fannin v. Williams, 655 S.W.2d 480, 1983 Ky. LEXIS 290 ( Ky. 1983 ).

If the exclusive purpose of KRS 171.215 , which provides that the state must supply textbooks to students in nonpublic schools, is to pay the expenses of children in private schools, Const., § 3 has been directly violated; conversely, if the textbooks also aid in the functioning of the private schools themselves, Ky. Const., §§ 184, 186, 189 and this section have been violated. Fannin v. Williams, 655 S.W.2d 480, 1983 Ky. LEXIS 290 ( Ky. 1983 ).

22.Classification of Property.

The manner of classifying property for taxation is left to the legislature. Commonwealth v. Walsh's Trustee, 133 Ky. 103 , 117 S.W. 398, 32 Ky. L. Rptr. 460 , 1909 Ky. LEXIS 172 ( Ky. 1909 ).

The General Assembly may, by general laws for state purposes, and by general laws delegating the power to municipalities, divide trades, occupations, and professions into classes, and impose a different license fee upon each class that the trade, occupation, or profession may reasonably be divided into, and the classes may be subdivided into particular classes, if made according to natural and well-recognized lines of distinction. Metropolitan Life Ins. Co. v. Paris, 138 Ky. 801 , 129 S.W. 112, 1910 Ky. LEXIS 137 ( Ky. 1910 ).

The same species or class of property, wherever situated in the state and whether owned by residents or nonresidents, must be subjected to the same rate of taxation. Raydure v. Board of Sup'rs, 183 Ky. 84 , 209 S.W. 19, 1919 Ky. LEXIS 469 ( Ky. 1919 ).

Where legislature has classified property, taxes must be uniform on each class of property, but taxes on the different classes are not required to be uniform. Klein v. Jefferson County Board of Tax Supervisors, 230 Ky. 182 , 18 S.W.2d 1009, 1929 Ky. LEXIS 64 ( Ky. 1929 ), aff'd, 282 U.S. 19, 51 S. Ct. 15, 75 L. Ed. 140, 1930 U.S. LEXIS 3 (U.S. 1930).

This section authorizes classification of property for ad valorem state taxation. Martin v. High Splint Coal Co., 268 Ky. 11 , 103 S.W.2d 711, 1937 Ky. LEXIS 421 ( Ky. 1937 ).

Differences in number only, or in the methods of conducting a business, are not sufficient to justify classification for the purpose of taxation. Great Atlantic & Pacific Tea Co. v. Kentucky Tax Com., 278 Ky. 367 , 128 S.W.2d 581, 1939 Ky. LEXIS 406 ( Ky. 1939 ).

While it is necessary to prove an allegation that a tax is confiscatory before it can be held unconstitutional on that ground, it is unnecessary in attacking the constitutionality on the ground that the classification is arbitrary, unreasonable and unnatural, to allege a factual situation demonstrating that classification is discriminatory, since court in determining validity of classification considers as proven any state of facts that would sustain the classification. Kentucky Tax Com. v. Great Atlantic & Pacific Tea Co., 280 Ky. 606 , 133 S.W.2d 947, 1939 Ky. LEXIS 180 ( Ky. 1939 ).

The presumption of constitutionality of an act making a classification of property for state taxation can be overcome only by the most explicit demonstration that the classification is a hostile and oppressive discrimination against particular persons or classes. Madden v. Kentucky, 309 U.S. 83, 60 S. Ct. 406, 84 L. Ed. 590, 1940 U.S. LEXIS 956 (U.S. 1940).

Property may be divided into classes for the purpose of exemption from local taxation only on the basis of qualities inherent in the things or possessions which are owned, and not on the basis of ownership. Inter-County Rural Electric Co-operative Corp. v. Reeves, 294 Ky. 458 , 171 S.W.2d 978, 1943 Ky. LEXIS 446 ( Ky. 1943 ).

In determining the constitutionality of a statutory classification for tax purposes, the court must resolve every doubt in favor of the constitutionality of the statute before declaring it invalid. Kentucky Tax Com. v. Lincoln Bank & Trust Co., 245 S.W.2d 950, 1952 Ky. LEXIS 615 ( Ky. 1952 ).

In order to make a classification valid, the difference upon which the classification is based must be substantial and upon a natural and reasonable basis. Louisville v. Koehler, 264 S.W.2d 80, 1954 Ky. LEXIS 654 ( Ky. 1954 ).

In the field of taxation, the legislature may make classifications, and the constitutional limitations prohibit only such classifications as are arbitrary and unreasonable in having no fair and substantial relation to the permissible governmental purpose of the legislation. Department of Revenue v. Spalding Laundry & Dry Cleaning Co., 436 S.W.2d 522, 1968 Ky. LEXIS 184 ( Ky. 1968 ).

23.— Businesses.

Businesses may be classified for the purpose of license taxes as follows: (1) a uniform tax upon all persons engaged in the same business without reference to the amount of business done; (2) a uniform tax upon the volume of business done, without distinction as to amount; (3) a division of a general class into separate classes according to the volume of business done, and the imposition of a different tax upon each division. Great Atlantic & Pacific Tea Co. v. Kentucky Tax Com., 278 Ky. 367 , 128 S.W.2d 581, 1939 Ky. LEXIS 406 ( Ky. 1939 ).

A legislative body may not, without some rational basis, select a certain type of business enterprise and impose upon it a substantially heavier tax than that imposed upon other businesses which fall within the same general classification. Lexington v. Motel Developers, Inc., 465 S.W.2d 253, 1971 Ky. LEXIS 443 ( Ky. 1971 ).

The Legislature may properly classify occupations for tax purposes based on the competitive environment in which they operate and the overall economic impact on the state economy. The different tax treatment for airlines, truck lines, barge lines, bus lines and railroad lines can be justified by their different competitive environment and their different significance to the overall state economy; the railroads and barges are critical to the marketing of Kentucky coal; the exemption for barge and rail lines can be justified as a reasonable effort to maintain the viability of transportation systems which are necessary to the state’s economy and threatened by the great competitiveness of other forms of transportation. Although similarities can be found whereby airlines, railroads and barges could be uniformly classified, there are many dissimilarities. Thus, the Legislature’s failure to provide airlines with a similar exemption does not make the application of sales tax unconstitutional. Delta Air Lines, Inc. v. Commonwealth, Revenue Cabinet, 689 S.W.2d 14, 1985 Ky. LEXIS 225 ( Ky. 1985 ).

24.— Population.

Statutes applying in the same manner to all persons in like circumstances are not special or local laws, and while an act making arbitrary and unreasonable classification of political subdivisions for the purpose of making laws applicable to them alone is invalid, cities and counties may be classified according to population. Connors v. Jefferson County Fiscal Court, 277 Ky. 23 , 125 S.W.2d 206, 1938 Ky. LEXIS 564 ( Ky. 1938 ).

25.— Reasonable.

A statute which imposes upon foreign insurance companies the same license taxes as would be imposed by the laws of domicile is not invalid with respect to the uniformity requirements of this section in that the classification is reasonable and all members of the class are subject to the same provisions. Clay v. Dixie Fire Ins. Co., 168 Ky. 315 , 181 S.W. 1123, 1916 Ky. LEXIS 543 ( Ky. 1916 ).

While municipal councils may make reasonable classifications for the imposition of license taxes, they cannot omit particular persons but are warranted, in view of the general business of a grocery store, which carries all sorts of provisions, in imposing a general license which will include a milk vendor’s license. Newport v. French Bros. Bauer Co., 169 Ky. 174 , 183 S.W. 532, 1916 Ky. LEXIS 677 ( Ky. 1916 ).

Statute taxing recording mortgages when indebtedness does not mature within five (5) years, and exempting mortgages to building and loan associations, is not invalid. Middendorf v. Goodale, 202 Ky. 118 , 259 S.W. 59, 1923 Ky. LEXIS 360 ( Ky. 1923 ). See Louisville Gas & Electric Co. v. Shanks, 213 Ky. 762 , 281 S.W. 1017, 1926 Ky. LEXIS 616 ( Ky. 1926 ), rev'd, 277 U.S. 32, 48 S. Ct. 423, 72 L. Ed. 770, 1928 U.S. LEXIS 673 (U.S. 1928).

A statute providing that machinery actually engaged in manufacturing shall be subject to taxation for state purposes only is constitutional as a reasonable classification of property for taxation. Kentucky & West Virginia Power Co. v. Holliday, 216 Ky. 78 , 287 S.W. 212, 1926 Ky. LEXIS 832 ( Ky. 1926 ).

A statute imposing different tax rates on personal property of persons dying resident in Kentucky, and persons dying resident elsewhere, is not an unreasonable or arbitrary classification, so as to violate the rule of uniformity of taxation. Price v. Fox, 220 Ky. 373 , 295 S.W. 433, 1926 Ky. LEXIS 132 ( Ky. 1926 ).

Statute providing for the payment of state bonuses to veterans may distinguish between various classes of veterans. Grise v. Combs, 342 S.W.2d 680, 1961 Ky. LEXIS 393 ( Ky. 1961 ).

The exemption from the sales tax of machinery used in manufacturing is not arbitrary and unreasonable because it does not also exempt similar machinery used in a service industry or plant. Department of Revenue v. Spalding Laundry & Dry Cleaning Co., 436 S.W.2d 522, 1968 Ky. LEXIS 184 ( Ky. 1968 ).

KRS 160.613 , permitting utilities to pass a school tax on their gross receipts on to users, was not unconstitutional as making an arbitrary classification, because users paid by the quantity of utilities used rather than by their use of the schools. Lamar v. Board Education, 467 S.W.2d 143, 1971 Ky. LEXIS 359 ( Ky. 1971 ).

Although classification by KRS 136.120 of municipal solid waste disposal facilities that dispose of waste by landfill singles out such facilities for disparate tax treatment and is not a perfect fit to the state’s objectives, such classification is reasonably related to the state’s goals for solid waste management and is therefore constitutional. Cooksey Bros. Disposal Co. v. Boyd County, 973 S.W.2d 64, 1997 Ky. App. LEXIS 132 (Ky. Ct. App. 1997), cert. denied, 525 U.S. 930, 119 S. Ct. 338, 142 L. Ed. 2d 279, 1998 U.S. LEXIS 6495 (U.S. 1998).

26.— Unreasonable.

A city ordinance imposing a license tax on those selling milk through the use of vehicles was invalid where milk dealers who did not make use of vehicles in their business were not taxed. Louisville v. Weikel, 137 Ky. 784 , 127 S.W. 147, 1910 Ky. LEXIS 627 ( Ky. 1910 ).

A municipal license tax imposed on businesses primarily engaged in the instalment sales of furniture, household goods or wearing apparel which is not imposed on other businesses engaged in instalment selling or on similar businesses not engaged primarily in instalment selling is void under this section since it represents an invalid classification and unreasonable discrimination. Commissioners of Sinking Fund v. Weis, 269 Ky. 554 , 108 S.W.2d 515, 1937 Ky. LEXIS 643 ( Ky. 1937 ).

City ordinance imposing license tax on automobiles of nonresidents but not residents used in going to and returning from work within the city establishes an unreasonable classification and is arbitrary and invalid under this section. Davis v. Pelfrey, 285 Ky. 298 , 147 S.W.2d 723, 1941 Ky. LEXIS 381 ( Ky. 1941 ).

A city license tax on the operation of apartment houses, graduated according to the number of units, was a revenue, not a licensing measure, and invalid as involving an unreasonable classification. Martin v. Greenville, 312 Ky. 292 , 227 S.W.2d 435, 1950 Ky. LEXIS 651 ( Ky. 1950 ).

Statute subjecting grandchildren of a decedent to different tax rates depending upon whether they are issue of living or deceased parents creates an unreasonable classification having no reasonable relationship to the purposes of the inheritance tax law and is unconstitutional as violating the requirement for uniform taxes. Kentucky Tax Com. v. Lincoln Bank & Trust Co., 245 S.W.2d 950, 1952 Ky. LEXIS 615 ( Ky. 1952 ).

The fact alone that a merchant is in business for less than a year is not a sound reason for placing him in a different classification for tax purposes than that occupied by his competitor. Louisville v. Koehler, 264 S.W.2d 80, 1954 Ky. LEXIS 654 ( Ky. 1954 ).

An ordinance taxing only motels and hotels and no other businesses is arbitrary in violation of Const., § 2 and violates the uniformity principle of this section. Lexington v. Motel Developers, Inc., 465 S.W.2d 253, 1971 Ky. LEXIS 443 ( Ky. 1971 ).

Subsection (5) of KRS 132.020 , creating a separate tax classification for unmined coal by treating it differently from all other interests in real estate, including other interests with similar characteristics such as oil and gas in its natural state, was a classification that was not related to the constitutionally permissible classification for the purpose of raising revenue and was therefore unconstitutional. Gillis v. Yount, 748 S.W.2d 357, 1988 Ky. LEXIS 13 ( Ky. 1988 ).

27.Double Taxation.

Double taxation is against public policy, and is not permitted except where legislature has clearly declared contrary policy, notwithstanding there is no constitutional provision forbidding it. Louisville v. Aetna Fire Ins. Co., 284 Ky. 1 54 , 143 S.W.2d 1074, 1940 Ky. LEXIS 457 ( Ky. 1 940 ). See Newport v. Fitzer, 131 Ky. 544 , 115 S.W. 742, 1909 Ky. LEXIS 46 ( Ky. 1909 ); Campbell County v. Newport, 174 Ky. 7 12 , 193 S.W. 1, 1917 Ky. LEXIS 258 ( Ky. 1917 ) ( Ky. 1917 ); Greene v. National Surety Co., 186 Ky. 353 , 217 S.W. 117, 1919 Ky. LEXIS 222 ( Ky. 1919 ); Blue Coach Lines, Inc. v. Lewis, 220 Ky. 116 , 294 S.W. 1080, 1927 Ky. LEXIS 510 ( Ky. 1927 ); District Board of Tuberculosis Sanatorium v. Lexington, 227 Ky. 7 , 12 S.W.2d 348, 1928 Ky. LEXIS 497 ( Ky. 1928 ); Fox v. Board of Louisville & Jefferson County Children's Home, 244 Ky. 1, 50 S.W.2d 67, 1932 Ky. LEXIS 390 ( Ky. 1932 ).

28.Assessments.

In order to assure that taxes be uniform and equal, the mode of valuation and assessment of property should conform as nearly as possible to a uniform system of procedure in finding values. Covington v. Covington & Cincinnati Bridge Co., 126 Ky. 163 , 103 S.W. 248 ( Ky. 1907 ).

Where a school district is partly in a city and partly in the county, the levy for state and county taxes must be considered in assessing the school tax both within and without the city. Trustees of Princeton Graded Common Schools v. Stone, 143 Ky. 495 , 136 S.W. 894, 1911 Ky. LEXIS 433 ( Ky. 1911 ).

A public service corporation aggrieved by an alleged invalid discrimination in assessment of their property may sue in equity to enjoin the enforcement of taxes based on the allegedly invalid assessments. Greene v. Louisville & I. R. Co., 244 U.S. 499, 37 S. Ct. 673, 61 L. Ed. 1280, 1917 U.S. LEXIS 1660 (U.S. 1917), overruled in part, Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 104 S. Ct. 900, 79 L. Ed. 2d 67, 1984 U.S. LEXIS 4 (U.S. 1984).

Uniform taxation requires uniformity in the mode of assessment as well as in the rate of taxation. Greene v. Louisville & I. R. Co., 244 U.S. 499, 37 S. Ct. 673, 61 L. Ed. 1280, 1917 U.S. LEXIS 1660 (U.S. 1917), overruled in part, Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 104 S. Ct. 900, 79 L. Ed. 2d 67, 1984 U.S. LEXIS 4 (U.S. 1984).

Under this section and Const., § 172, all property of value must be assessed for ad valorem taxation. Associated Producers' Co. v. Board of Sup'rs, 202 Ky. 538 , 260 S.W. 335, 1924 Ky. LEXIS 746 ( Ky. 1924 ).

Since absolute and uniform equality is unattainable as a practical matter, practical equality in tax assessment is the acceptable proper standard. Swift Coal & Timber Co. v. Board of Tax Sup'rs, 223 Ky. 461 , 3 S.W.2d 1067, 1928 Ky. LEXIS 355 ( Ky. 1928 ).

To secure equality in taxation, it is sometimes necessary to reduce the assessment of property below its fair cash value, but it may never be assessed above its fair cash value for that purpose. Rogers v. Pike County Bd. of Sup'rs., 288 Ky. 742 , 157 S.W.2d 346, 1941 Ky. LEXIS 199 ( Ky. 1941 ).

The objective of a 100 percent assessment is to achieve equality of the tax burden. Department of Revenue v. Oldham County, 415 S.W.2d 386, 1967 Ky. LEXIS 318 ( Ky. 1967 ).

Where property valuation administrator sent notices to real property owners of increases in assessments ranging between 1% and 400%, such revaluation did not violate this section since it insures uniform rates of taxation and does not apply to the assessment process, and since Const., § 172 compels tax assessors to use fair cash value as a uniform criterion and the assessments in question are only subject to attack to the extent they exceed the fair cash value the assessments were constitutional. Parrent v. Fannin, 616 S.W.2d 501, 1981 Ky. LEXIS 250 ( Ky. 1981 ).

KRS 132.010(9), (10) and 132.450(2)(a) do not violate the Constitution of Kentucky; dwelling houses are to be assessed at fair cash value, and the income and acreage standards to qualify for “agricultural land” or “horticultural land” are not unreasonable. Dolan v. Land, 667 S.W.2d 684, 1984 Ky. LEXIS 211 ( Ky. 1984 ).

Although property valuation administrators throughout the state do not need to use the same method of arriving at an assessment, whatever method is used must result in a uniform standard of assessment whether the property is agricultural or residential since Const., § 174 says that all property shall be taxed in proportion to its value. Dolan v. Land, 667 S.W.2d 684, 1984 Ky. LEXIS 211 ( Ky. 1984 ).

The burden on the Department of Revenue (now Revenue Cabinet) is simply to assure that all property in this state is assessed fairly, according to its value; if this is done, the tax burden will be equally shared. Dolan v. Land, 667 S.W.2d 684, 1984 Ky. LEXIS 211 ( Ky. 1984 ).

Property Valuation Administrator’s (PVA) quadrennial plan, which divided the county into four (4) sections and undertook to physically examine the properties in one (1) section each year, complied with all relevant statutory requirements, and did not violate this section or Const., §§ 2 or 172. Revenue Cabinet v. Leary, 880 S.W.2d 878, 1994 Ky. App. LEXIS 8 (Ky. Ct. App. 1994).

29.Taxable Situs.

Where the legislature has provided that the situs for taxation of intangible personal property shall be the residence of the beneficial owner, it may properly carry out the scheme of uniformity in providing that the same rule should apply to nonresident beneficial owners. Henderson v. Barrett's Ex'r, 152 Ky. 648 , 153 S.W. 992, 1913 Ky. LEXIS 718 ( Ky. 1913 ).

The requirement that all real and personal estate shall be subject to taxation, under this section, Const., §§ 172, 174, and pertinent legislation, presumes a taxable situs within the state. Commonwealth by Mays v. Union P. R. Co., 214 Ky. 339 , 283 S.W. 119, 1926 Ky. LEXIS 337 ( Ky. 1926 ).

30.— Apportionment of Tax.

Definite and specific legislation is not necessary in order to permit counties to levy ad valorem tax on personalty and counties under their general taxing power can assess personalty for taxation and apportion or allocate to themselves a part or share of the value of an item or unit of personalty and thus they could levy such tax on towboats and barges of company where boats and barges had acquired tax situs in Kentucky and in the several counties. Reeves v. Island Creek Fuel & Transp. Co., 313 Ky. 400 , 230 S.W.2d 924, 1950 Ky. LEXIS 859 (Ky.), cert. denied, 340 U.S. 853, 71 S. Ct. 82, 95 L. Ed. 625, 1950 U.S. LEXIS 1535 (U.S. 1950).

If the statutes imposing the tax provided a method of apportionment, that method would be exclusive, but where the statutes did not prescribe any scheme for assessment, in taxing company’s towboats and barges court must look to see if the mileage basis was a fair and just method of calculating the aliquot part of company’s boats and barges which had acquired a tax situs in Kentucky and several taxing districts. Reeves v. Island Creek Fuel & Transp. Co., 313 Ky. 400 , 230 S.W.2d 924, 1950 Ky. LEXIS 859 (Ky.), cert. denied, 340 U.S. 853, 71 S. Ct. 82, 95 L. Ed. 625, 1950 U.S. LEXIS 1535 (U.S. 1950).

Where company conducted its operations throughout the year with relatively few interruptions and its tugs and barges moved along a route of 162 miles 94.6% of which was in Kentucky and thus had a taxable situs in Kentucky, to apportion the taxes against the company’s boats and barges in proportion to the length of the line operated and location in each state, county and taxing jurisdiction was logical and fair. Reeves v. Island Creek Fuel & Transp. Co., 313 Ky. 400 , 230 S.W.2d 924, 1950 Ky. LEXIS 859 (Ky.), cert. denied, 340 U.S. 853, 71 S. Ct. 82, 95 L. Ed. 625, 1950 U.S. LEXIS 1535 (U.S. 1950).

31.Tax Collection.

This section does not give a sheriff as such the right to collect taxes. Madison County v. Hamilton, 243 Ky. 29 , 47 S.W.2d 938, 1932 Ky. LEXIS 33 ( Ky. 1932 ).

32.Valid Tax.

The fact that the method of taxation of intangible property of corporations, companies and associations differs from the method of taxation of intangible property owned by individuals does not violate the uniformity requirements of this section. Adams Express Co. v. Kentucky, 166 U.S. 171, 17 S. Ct. 527, 41 L. Ed. 960, 1897 U.S. LEXIS 2017 (U.S. 1897).

A statute that provides for the taxation of distilled liquors stored in bonded warehouses, and for their assessment at a fair cash value, and for the payment of the taxes in instalments, is constitutional. Commonwealth ex rel. Armstrong v. E. H. Taylor Jr. Co., 101 Ky. 325 , 41 S.W. 11 ( Ky. 1897 ).

KRS 132.160 does not violate the uniformity provision of this section because to preserve uniformity distillers are required to pay interest on the taxes deferred under this statute. Commonwealth ex rel. Armstrong v. E. H. Taylor Jr. Co., 101 Ky. 325 , 41 S.W. 11 ( Ky. 1897 ).

A franchise tax is not unconstitutional because it does not apply to all corporations, so long as it applies to all corporations which possess the property sought to be taxed. Louisville Tobacco Warehouse Co. v. Commonwealth, 106 Ky. 165 , 49 S.W. 1069, 20 Ky. L. Rptr. 1747 , 1899 Ky. LEXIS 15 ( Ky. 1899 ).

A statute authorizing the building of turnpike roads in Kenton County, and providing for a tax to pay therefor, was not inconsistent with this section requiring uniformity of taxation, though certain towns and cities were excluded from the taxing district and all property therein relieved of the payment of the tax. Devou v. Boske, 63 S.W. 44, 23 Ky. L. Rptr. 364 (1901).

A license tax on tobacco based on the value of tobacco held by each company does not violate the uniformity requirements of this section. Strater Bros. Tobacco Co. v. Commonwealth, 117 Ky. 604 , 78 S.W. 871, 25 Ky. L. Rptr. 1717 , 1904 Ky. LEXIS 232 ( Ky. 1904 ).

A statute making personal property of a Commonwealth corporation subject to taxation in the state, though located out of the state, is constitutional. Commonwealth v. Union Refrigerator Transit Co., 118 Ky. 131 , 80 S.W. 490, 81 S.W. 268, 26 Ky. L. Rptr. 23 , 26 Ky. L. Rptr. 397 , 1904 Ky. LEXIS 16 ( Ky. 1904 ), rev'd, 199 U.S. 194, 26 S. Ct. 36, 50 L. Ed. 150, 1905 U.S. LEXIS 1022 (U.S. 1905).

A statute providing that the property of all corporations, except as otherwise provided, shall be assessed to the corporation, and that so long as the corporation pays the taxes on all of its property the stockholders shall not be required to list their shares for taxation, must apply to foreign as well as domestic corporations under the provision of this section. Commonwealth v. Ledman, 127 Ky. 603 , 106 S.W. 247, 32 Ky. L. Rptr. 452 , 1907 Ky. LEXIS 165 ( Ky. 1907 ).

The laws dealing with assessment and payment of taxes and providing for proceedings for forfeiture to the state do not violate this section. Eastern Kentucky Coal Lands Corp. v. Commonwealth, 127 Ky. 667 , 106 S.W. 260 ( Ky. 1907 ), aff'd, 219 U.S. 140, 31 S. Ct. 171, 55 L. Ed. 137, 1911 U.S. LEXIS 1626 (U.S. 1911).

A city ordinance requiring that every person or corporation engaged in selling goods except by sample would be required to purchase a license was valid under this section as the classification used is reasonable and it is lawful to impose a license tax on merchandising as an occupation. Louisville v. Sagalowski, 136 Ky. 324 , 124 S.W. 339, 1910 Ky. LEXIS 487 ( Ky. 1910 ).

A city ordinance imposing a tax of $3.00 a year on any vehicle drawn by a single animal was valid. Louisville v. Weikel, 137 Ky. 784 , 127 S.W. 147, 1910 Ky. LEXIS 627 ( Ky. 1910 ).

A statute which allowed a discount for prompt payment of taxes is valid where such discount applies to all persons. Board of Education v. Sea, 167 Ky. 772 , 181 S.W. 670, 1916 Ky. LEXIS 492 ( Ky. 1916 ).

An ordinance requiring license taxes on tobacco dealers engaged in loose floor tobacco sales, those handling stemming or prizing tobacco and those prizing 200 hogsheads or more and not on other dealers is valid. Tandy & Fairleigh Tobacco Co. v. Hopkinsville, 174 Ky. 189 , 192 S.W. 46, 1917 Ky. LEXIS 183 ( Ky. 1917 ).

A statute regulating and requiring licenses for motor vehicles does not violate this section or Const., § 174, although an ad valorem tax is imposed in connection therewith. Smith v. Commonwealth, 175 Ky. 286 , 194 S.W. 367, 1917 Ky. LEXIS 334 ( Ky. 1917 ).

Statute requiring the county to pay the fees of the local registrar of the bureau of vital statistics is not invalid under this section or Const., §§ 180 and 181. Furlong v. Darnaby, 206 Ky. 63 , 257 S.W. 707, 1923 Ky. LEXIS 2 ( Ky. 1923 ).

A tax of one percent (1%) on the market value of crude oil produced in the state is a valid license tax. Swiss Oil Corp. v. Shanks, 273 U.S. 407, 47 S. Ct. 393, 71 L. Ed. 709, 1927 U.S. LEXIS 976 (U.S. 1927).

A law imposing a 50 cents per pint tax on distilled spirits sold at retail is valid as it imposes the tax on all retailers and is therefore uniform. State Tax Com. v. Hughes Drug Co., 219 Ky. 432 , 293 S.W. 944, 1927 Ky. LEXIS 350 ( Ky. 1927 ).

A municipal ordinance which imposed a license tax on state banks was not invalid even though a municipality has no power to impose such a tax on national banks. Shelbyville v. Citizens Bank of Shelbyville, 272 Ky. 559 , 114 S.W.2d 719, 1938 Ky. LEXIS 143 ( Ky. 1938 ). See Barnes v. Anderson Nat'l Bank, 293 Ky. 592 , 169 S.W.2d 833, 1943 Ky. LEXIS 679 ( Ky. 1943 ).

KRS 441.210 to 441.300 (repealed), do not violate this section either as double taxation or discrimination against counties of the specified classes. Connors v. Jefferson County Fiscal Court, 277 Ky. 23 , 125 S.W.2d 206, 1938 Ky. LEXIS 564 ( Ky. 1938 ).

Taxation under the Commonwealth income tax law of securities acquired by the trustees of an estate before the tax law became effective but sold thereafter, such taxation being on the basis of the securities between the two (2) dates, did not violate this section, other provisions of the Constitution or U.S. Const., Amend. 14. Fidelity & Columbia Trust Co. v. Reeves, 287 Ky. 522 , 154 S.W.2d 337, 1941 Ky. LEXIS 579 ( Ky. 1941 ).

Ordinance which imposes a tax upon the privilege of pursuing an occupation or engaging in a business within a city applied equally to all individuals within a classification made upon a natural and reasonable basis and, consequently, was not invalid for lack of uniformity. Louisville v. Sebree, 308 Ky. 420 , 214 S.W.2d 248, 1948 Ky. LEXIS 907 ( Ky. 1948 ). See Kohler v. Benckart, 252 S.W.2d 854, 1952 Ky. LEXIS 1025 ( Ky. 1952 ).

Fact that foreign corporation income from intangibles is taxed upon basis different from that of nonresident individual does not make law unconstitutional. Square D Co. v. Kentucky Bd. of Tax Appeals, 415 S.W.2d 594, 1967 Ky. LEXIS 323 ( Ky. 1967 ).

Where nothing in the record indicated that a 100 percent increase in the licensing fee of physicians and other professionals was so excessive as to be confiscatory or prohibitory, the court would not invalidate the ordinance imposing the tax. Baker v. Corbin, 556 S.W.2d 449, 1977 Ky. App. LEXIS 817 (Ky. Ct. App. 1977).

The county regulation requiring the payment of the Utility Gross Receipts License Tax by the direct payment method in order to claim the exemption under KRS 160.613 to the extent that the cost of energy or energy-producing fuels used by a manufacturer, processor, miner, or refiner exceeds three percent of its cost of production, did not violate this section and Const., § 172, as the regulation was neither arbitrary nor unreasonable, and the taxpayer was not assessed for excess tax. Martin Marietta Aluminum, Inc. v. Hancock County Bd. of Education, 806 F.2d 678, 1986 U.S. App. LEXIS 34147 (6th Cir. Ky. 1986 ).

Imposition of a use tax upon purchase of materials used in the publication of a newspaper delivered free of charge was not in violation of the equal protection clause of the Fourteenth Amendment of the United States Constitution, Const., § 2, and this section. Box Photo & Engraving Co. v. Revenue Cabinet, 743 S.W.2d 849, 1987 Ky. App. LEXIS 557 (Ky. Ct. App. 1987).

Subdivision (4)(c) of KRS 140.300 did not violate this section, Const., §§ 2 and 172A because each class is taxed equally. Revenue Cabinet Commonwealth v. Estate of Marshall, 746 S.W.2d 408, 1988 Ky. App. LEXIS 39 (Ky. Ct. App. 1988).

33.Invalid Tax.

An ordinance which charged varying license fees for liquor sales depending on the location of the business was invalid. Board of Council of Harrodsburg v. Renfro, 58 S.W. 795, 22 Ky. L. Rptr. 806 , 1900 Ky. LEXIS 290 (Ky. Ct. App. 1900).

Under this section an ordinance imposing license fees on businesses that have also been required to pay a franchise tax covering the same privilege is invalid. Cumberland Tel. & Tel. Co. v. Hopkins, 121 Ky. 850 , 90 S.W. 594, 28 Ky. L. Rptr. 846 , 1906 Ky. LEXIS 268 ( Ky. 1906 ).

A statute imposing a higher tax upon a nonresident corporation in this state, if a higher rate of taxation is imposed on companies organized under the laws of this state in the state of domicile of such nonresident companies, is unconstitutional. Western & Southern Life Ins. Co. v. Commonwealth, 133 Ky. 292 , 117 S.W. 376, 1909 Ky. LEXIS 168 ( Ky. 1909 ), overruled, Clay v. Dixie Fire Ins. Co., 168 Ky. 315 , 181 S.W. 1123, 1916 Ky. LEXIS 543 ( Ky. 1916 ).

A tax per gallon upon whiskey either withdrawn from bond within the state or transferred in bond from the state elsewhere is not an occupation tax but essentially a property tax, and void for lack of uniformity. Dawson v. Kentucky Distilleries & Warehouse Co., 255 U.S. 288, 41 S. Ct. 272, 65 L. Ed. 638, 1921 U.S. LEXIS 1825 (U.S. 1921).

Since the organization and maintenance of a militia are state purposes, a statute requiring counties where militia units may be organized to construct and pay for armories is unconstitutional since it does not result in the imposition of equal burdens and constitutes unjustified discrimination. Commonwealth ex rel. Attorney Gen. v. Sparks, 201 Ky. 5 , 255 S.W. 859, 1923 Ky. LEXIS 218 ( Ky. 1923 ).

A statute providing for taxation of shares of corporations organized thereunder in lieu of taxation of property held by such corporation is invalid. Burley Tobacco Growers' Co-op. Asso. v. Carrollton, 208 Ky. 270 , 270 S.W. 749, 1925 Ky. LEXIS 268 ( Ky. 1925 ).

For school tax purposes, where the white graded school rate exceeds the black graded school rate, corporate property within a school district must be classified as both black and white and a taxing statute is invalid to the extent it requires the corporation to pay the white school rate on any portion of its property greater than the proportion of white children of school age to the entire school age population of the school district. Louisville, H. & S. L. R. Co. v. Powell, 213 Ky. 563 , 281 S.W. 532, 1926 Ky. LEXIS 565 ( Ky. 1926 ).

City ordinance imposing, for the benefit of city firemen’s pension fund, a 2 percent tax on the gross premiums collected by fire insurance companies is unconstitutional for lack of uniformity under this section since uninsured property receives the same fire protection as insured property. Louisville v. Aetna Fire Ins. Co., 284 Ky. 154 , 143 S.W.2d 1074, 1940 Ky. LEXIS 457 ( Ky. 1940 ).

Statute imposing a license tax on retail merchants graduated by the number of stores operated is a revenue measure and, although described in its title as a police measure, could not be so considered since it exercised no valid police power consequently, and because the tax imposed was greatly in excess of the cost of its administration, the statute violated the requirements that taxes be uniform on property of the same class. Reeves v. Adam Hat Stores, Inc., 303 Ky. 633 , 198 S.W.2d 789, 1946 Ky. LEXIS 918 ( Ky. 1946 ).

A city ordinance in order to avoid tax collection losses may require a reasonable advance payment as security for payment from taxpayers operating a business within the city for less than one year but where such provision results in the taxpayer paying in effect a larger tax than levied on other similar businesses operating for more than one year, it is invalid since it does not meet the constitutional requirements of equality and uniformity in taxation. Louisville v. Koehler, 264 S.W.2d 80, 1954 Ky. LEXIS 654 ( Ky. 1954 ).

Tax authorized by statute upon each conviction in a criminal case in a court in any county containing a city of the first class, the proceeds of which were to go to the county jail building fund, is invalid, as it is not the type of tax which can be levied by a county under this section, nor can it be levied as a state tax because it is for county purposes and not a statewide application. Driver v. Sawyer, 392 S.W.2d 52, 1965 Ky. LEXIS 260 ( Ky. 1965 ).

Insofar as a law levied a tax on United States citizens domiciled in foreign countries different from that imposed upon persons domiciled in this and other states of the United States, it is unconstitutional under this section. Burge v. Marcum, 394 S.W.2d 908, 1965 Ky. LEXIS 222 ( Ky. 1965 ).

A city ordinance requiring only nonresidents to acquire a street usage license to operate trucks on its streets was discriminatory and unconstitutional under the requirement of uniformity of taxation. Gross Distributing Co. v. Shelbyville, 445 S.W.2d 114, 1969 Ky. LEXIS 139 (Ky.), amended, 447 S.W.2d 46, 1969 Ky. LEXIS 62 ( Ky. 1969 ).

City ordinance which taxed “entertainment centers” based on their volume of business but required substantially similar businesses to pay only a nominal yearly fee was arbitrary, unreasonable and capricious; and hence, unconstitutional. Renfro Valley Folks v. City of Mt. Vernon, 872 S.W.2d 472, 1993 Ky. App. LEXIS 174 (Ky. Ct. App. 1993).

In Kentucky, local real property taxes were required to be ad valorem, that is, based on assessed value; since a flat rate tax levied by a city was a specific or per unit tax and not based on value, it was invalid and unconstitutional. Class action relief was a proper remedy for aggrieved taxpayers. City of Bromley v. Smith, 149 S.W.3d 403, 2004 Ky. LEXIS 269 ( Ky. 2004 ).

34.Valid Assessment.

A statute providing for the assessment of real property every four (4) years, and that the assessment for each of the subsequent years shall be fixed at the same value, and that personal property shall be assessed annually, is not, because of the different methods provided for the assessment of real and personal property, in conflict with this section or Const., § 172. Worton v. Paducah, 123 Ky. 44 , 93 S.W. 617, 29 Ky. L. Rptr. 450 , 1906 Ky. LEXIS 117 ( Ky. 1906 ).

The fact that intangibles are assessed at full value while other property in the county is assessed at 70 percent of value does not make the intangibles tax invalid, as, under this section, the Legislature was given the power to classify property and to determine which classes would be subject to local taxation. Siler v. Board of Sup'rs, 221 Ky. 100 , 298 S.W. 189, 1927 Ky. LEXIS 669 ( Ky. 1927 ).

Defendant who owned corner lot which abutted on improved portion of road, and who was assessed for such improvement in accordance with linear number of feet which his lot abutted on improved road, was not subjected to unequal taxation, and his property was not taken without due process of law. Daly v. Look, 267 S.W.2d 77, 1954 Ky. LEXIS 827 ( Ky. 1954 ).

The assessment of farm lands in a given county for ad valorem taxes at a somewhat higher percentage of their value than the percentage at which farm lands in surrounding counties are assessed does not violate the uniformity clause of this section. Fayette County Board of Supervisors v. O'Rear, 275 S.W.2d 577, 1954 Ky. LEXIS 1252 ( Ky. 1954 ).

Where a city established sewer system under KRS ch. 58 and then annexed a subdivision and later undertook the erection of a sewer lift to connect subdivision sewer with those of city, the assessment of the cost thereof against property in subdivision under KRS ch. 94 was not violative of constitutional rights. McCoy v. Florence, 409 S.W.2d 511, 1966 Ky. LEXIS 60 ( Ky. 1966 ).

The “Roll-Back” law does not violate this section. Northern Kentucky Area Planning Com. v. Hensley, 468 S.W.2d 293, 1971 Ky. LEXIS 331 ( Ky. 1971 ).

The “Roll-Back” law is not unconstitutional as perpetuating unconstitutional assessments for the taxing power of the district is not frozen, because under KRS 157.440 a district, by popular vote, can select as high a rate as it chooses. Miller v. Nunnelley, 468 S.W.2d 298, 1971 Ky. LEXIS 334 (Ky.), cert. denied, 404 U.S. 941, 92 S. Ct. 286, 30 L. Ed. 2d 255, 1971 U.S. LEXIS 564 (U.S. 1971).

Administrative agency properly exempted stock belonging to a domestic life insurance company in computing the company’s taxes, rather than excluding the stock in calculating the tax, because such computation complied with Ky. Const. § 171, which required uniform taxation of all property within the same class. Monumental Life Ins. Co. v. Dep't of Revenue, 294 S.W.3d 10, 2008 Ky. App. LEXIS 207 (Ky. Ct. App. 2008), cert. denied, 559 U.S. 1037, 130 S. Ct. 2062, 176 L. Ed. 2d 414, 2010 U.S. LEXIS 2866 (U.S. 2010).

35.Invalid Assessment.

An assessment of distillery property at its fair cash value violates this section and Const. §§ 172 and 174 where all other property in the county was assessed at rates not to exceed 60 percent of fair cash value. Eminence Distillery Co. v. Henry County Board of Sup'rs, 178 Ky. 811 , 200 S.W. 347, 1918 Ky. LEXIS 473 ( Ky. 1918 ).

Where tax commissioner testified that he never assessed leaseholds as such apart from the improvements thereon, the assessment of a particular leasehold of land owned by an exempt lessor was discriminatory. Kentucky Tax Com. v. Jefferson Motel, Inc., 387 S.W.2d 293, 1965 Ky. LEXIS 465 ( Ky. 1965 ).

Where the Department of Revenue (now Revenue Cabinet) had failed to notify the mayors of two (2) cities of proposed increases of assessments, the increases were void only as to the property which lay within the limits of those two (2) cities. Department of Revenue v. Oldham County, 415 S.W.2d 386, 1967 Ky. LEXIS 318 ( Ky. 1967 ).

Fire protection service charge, levied by city for purpose of financing city’s fire protection services on property within the city, whereby various types of property were assessed at a flat rate, was not an ad valorem tax or a special assessment and was not authorized by statute or the Constitution and was therefore invalid. Barber v. Commissioner of Revenue, 674 S.W.2d 18, 1984 Ky. App. LEXIS 467 (Ky. Ct. App. 1984).

36.Referendum.

An act subject to possible referendum under this section becomes effective when approved by the people, or, if no referendum is directed or petitioned, upon the expiration of the time allowed to file a referendum petition. State Nat'l Bank v. Board of Councilmen, 207 Ky. 543 , 269 S.W. 726, 1925 Ky. LEXIS 134 ( Ky. 1925 ).

This section has reference only to referendums on acts passed by the legislature classifying property for tax purposes and has no application to a referendum within a watershed conservancy district. Woolsley v. Big Reedy Creek Watershed, 383 S.W.2d 135, 1964 Ky. LEXIS 17 ( Ky. 1964 ).

37.Occupational License Tax.

If it is clear that the amount of an occupational license tax is solely computed by the number of units an entity puts into operation, the tax is illegal and the mere fact that a unit, in this instance a mobile home park, does business is not sufficient to save the city’s occupational license tax ordinance, where it is clear from the evidence that there is absolutely nothing about mobile home park’s actual volume of business in the City’s mathematical calculations. Erlanger v. KSL Realty Corp., 819 S.W.2d 707, 1991 Ky. LEXIS 152 ( Ky. 1991 ).

Because the distinction drawn by a city between professions and non-professions for purposes of imposing an occupational license fee was based upon the city’s need for funds, Flemingsburg, Ky., Ordinance 12-85-1 is arbitrary in violation of Ky. Const. § 2 and violates the uniformity principle of Ky. Const. § 171. Womack v. City of Flemingsburg, 102 S.W.3d 513, 2002 Ky. App. LEXIS 2352 (Ky. Ct. App. 2002).

38.Distilled Spirits.

Since distilled spirits are property within the meaning of Const., § 172, which subjects “all property” to taxation, it necessarily follows that distilled spirits are “property” within the meaning of the provisions of the Constitution, which mandatorily requires uniformity in the assessment of property for ad valorem taxes. Yount v. Calvert, 826 S.W.2d 833, 1991 Ky. App. LEXIS 102 (Ky. Ct. App. 1991).

Subsection (10) of KRS 132.020 is repugnant to the Kentucky Constitution. It is a manifest violation of both the letter and the spirit of the law. Accordingly, the judgment of the Circuit Court declaring KRS 132.020 (10) to be an unconstitutional infringement upon the Constitution and mandating that the Kentucky Revenue Cabinet tax distilled spirits at the rate provided for under the general provisions set forth in KRS 132.020 was proper. Yount v. Calvert, 826 S.W.2d 833, 1991 Ky. App. LEXIS 102 (Ky. Ct. App. 1991).

39.Taxpayer Challenge.

Taxpayers had standing to challenge expenditures authorized by Acts 1994 (1st Ex. Sess.), ch. 5, Part XI, E. and administrative regulation adopted to establish procedure for distribution of funds provided by the act (600 KAR 5:010) as they properly alleged that they had been injured by the failure of their government to abide by the Constitution and by the illegal expenditure of their taxes. Price v. Commonwealth, 945 S.W.2d 429, 1996 Ky. App. LEXIS 136 (Ky. Ct. App. 1996).

Cited:

Briggs v. Russellville, 99 Ky. 515 , 36 S.W. 558, 18 Ky. L. Rptr. 389 , 1896 Ky. LEXIS 117 ( Ky. 1896 ); Pence v. Frankfort, 101 Ky. 534 , 41 S.W. 1011, 19 Ky. L. Rptr. 721 , 1897 Ky. LEXIS 224 ( Ky. 1897 ); Covington v. Kentucky, 173 U.S. 231, 19 S. Ct. 383, 43 L. Ed. 679, 1899 U.S. LEXIS 1434 (U.S. 1899); Middlesboro v. Coal & Iron Bank, 108 Ky. 680 , 57 S.W. 497, 22 Ky. L. Rptr. 380 , 1900 Ky. LEXIS 98 ( Ky. 1900 ); Louisville & N. R. Co. v. Trustees of Elizabethtown Dist. Public School, 64 S.W. 974, 23 Ky. L. Rptr. 1169 , 1901 Ky. LEXIS 593 (Ky. Ct. App. 1901); Southern Ry. in Kentucky v. Coulter, 113 Ky. 657 , 68 S.W. 873, 24 Ky. L. Rptr. 203 , 1902 Ky. LEXIS 96 ( Ky. 1902 ); Board of Trustees v. Morris, 71 S.W. 654, 24 Ky. L. Rptr. 1420 (1903); German Washington Mut. Fire Ins. Co. v. Louisville, 117 Ky. 593 , 78 S.W. 472, 80 S.W. 154, 25 Ky. L. Rptr. 1697 , 25 Ky. L. Rptr. 2097 , 1904 Ky. LEXIS 224 ( Ky. 1904 ); German Washington Fire Ins. Ass'n v. Louisville, 80 S.W. 154, 25 Ky. L. Rptr. 2097 (1904); Dyer v. Newport, 80 S.W. 1127, 26 Ky. L. Rptr. 204 (1904); Durrett v. Kenton County, 87 S.W. 1070, 27 Ky. L. Rptr. 1173 (1905); Alexander v. Aud, 121 Ky. 105 , 88 S.W. 1103, 28 Ky. L. Rptr. 69 , 1905 Ky. LEXIS 18 5 ( Ky. 1905 ); Durrett v. Davidson, 122 Ky. 851 , 93 S.W. 25, 29 Ky. L. Rptr. 401 , 1906 Ky. LEXIS 102 ( Ky. 1906 ); Ragland v. Anderson, 125 Ky. 141 , 100 S.W. 865, 30 Ky. L. Rptr. 1199 , 1907 Ky. LEXIS 273 ( Ky. 1907 ); Covington & C. Bridge Co. v. Davison, 102 S.W. 339, 31 Ky. L. Rptr. 425 (1907); Louisville v. Schnell, 131 Ky. 104 , 114 S.W. 742, 1908 Ky. LEXIS 114 ( Ky. 1908 ); McCreary v. Speer, 156 Ky. 7 83 , 162 S.W. 99, 1914 Ky. LEXIS 202 ( Ky. 1914 ); Mitchell v. Knox County Fiscal Court, 165 Ky. 543 , 177 S.W. 279, 1915 Ky. LEXIS 557 ( Ky. 1915 ); Commonwealth v. Consolidated Casualty Co., 170 Ky. 103 , 185 S.W. 508, 1916 Ky. LEXIS 18 ( Ky. 1916 ); Board of Levee Comm'rs v. Johnson, 178 Ky. 287 , 199 S.W. 8, 1917 Ky. LEXIS 748 ( Ky. 1917 ) ( Ky. 1917 ); Louisville & N. R. Co. v. Greene, 244 U.S. 522, 37 S. Ct. 683, 61 L. Ed. 1291, 1917 U.S. LEXIS 1661 (U.S. 1917); Commonwealth, by Byars v. Alford's Ex'r, 187 Ky. 106 , 218 S.W. 721, 1920 Ky. LEXIS 86 ( Ky. 1920 ); Thomas v. McCain, 189 Ky. 373 , 224 S.W. 1055, 1920 Ky. LEXIS 435 ( Ky. 1920 ); J. & A. Freiberg Co. v. Dawson, 274 F. 420, 1920 U.S. Dist. LEXIS 723 (D. Ky. 1920); Gammill Lumber Co. v. Board of Suprs., 274 F. 630, 1921 U.S. Dist. LEXIS 1189 (D. Miss. 1921); Swiss Oil Corp. v. Shanks, 208 Ky. 64 , 270 S.W. 478, 1925 Ky. LEXIS 216 ( Ky. 1925 ); McFarland v. Georgetown Nat'l Bank, 208 Ky. 7 , 270 S.W. 995, 1925 Ky. LEXIS 201 ( Ky. 1925 ); Ross v. First Nat'l Bank, 213 Ky. 453 , 281 S.W. 517, 1926 Ky. LEXIS 536 ( Ky. 1926 ); Shadoan v. Barnett, 217 Ky. 205 , 289 S.W. 204, 1926 Ky. LEXIS 34 ( Ky. 1926 ); Board of Councilmen v. White, 224 Ky. 570 , 6 S.W.2d 699, 1928 Ky. LEXIS 639 ( Ky. 1928 ); Shanks v. Kentucky Independent Oil Co., 225 Ky. 303 , 8 S.W.2d 383, 1928 Ky. LEXIS 756 ( Ky. 1928 ); Jones v. Citizens' Bank of Hartford, 228 Ky. 699 , 15 S.W.2d 468, 1929 Ky. LEXIS 614 ( Ky. 1929 ); Estes v. State Highway Com., 235 Ky. 86 , 29 S.W.2d 583, 1930 Ky. LEXIS 292 ( Ky. 1930 ); Stiglitz v. Schardien, 239 Ky. 799 , 40 S.W.2d 315, 1931 Ky. LEXIS 849 ( Ky. 1931 ); Kroger Grocery & Baking Co. v. Cynthiana, 240 Ky. 701 , 42 S.W.2d 904, 1931 Ky. LEXIS 464 ( Ky. 1931 ); Kentucky River Coal Corp. v. Knott County, 245 Ky. 822 , 54 S.W.2d 377, 1932 Ky. LEXIS 687 ( Ky. 1932 ); Westova Gas Co. v. Knott County Board of Sup'rs, 246 Ky. 334 , 55 S.W.2d 21, 1932 Ky. LEXIS 764 ( Ky. 1932 ); Allen v. Hollingsworth, 246 Ky. 812 , 56 S.W.2d 530, 1933 Ky. LEXIS 32 ( Ky. 1933 ); Commonwealth v. Madden's Ex'r, 265 Ky. 684 , 97 S.W.2d 561, 1936 Ky. LEXIS 551 ( Ky. 1936 ); Brown v. Dover, 274 Ky. 692 , 120 S.W.2d 225, 1938 Ky. LEXIS 330 ( Ky. 1938 ); Kroger Grocery & Baking Co. v. Lancaster, 276 Ky. 585 , 124 S.W.2d 745, 1938 Ky. LEXIS 558 ( Ky. 1938 ); Kentucky ex rel. Martin v. Morris Wholesale Liquor Distributing Co., 29 F. Supp. 310, 1939 U.S. Dist. LEXIS 2306 (D. Ky. 1939 ); Webb v. Eminence, 282 Ky. 849 , 140 S.W.2d 622, 1940 Ky. LEXIS 265 ( Ky. 1940 ); Button v. Hikes, 296 Ky. 163 , 176 S.W.2d 112, 1943 Ky. LEXIS 104 ( Ky. 1943 ); Department of Finance v. Dishman, 298 Ky. 545 , 183 S.W.2d 540, 1944 Ky. LEXIS 948 ( Ky. 1944 ); George v. Bernheim Distilling Co., 300 Ky. 179 , 188 S.W.2d 321, 1945 Ky. LEXIS 519 ( Ky. 1945 ); George Wiedemann Brewing Co. v. Newport, 321 S.W.2d 404, 1959 Ky. LEXIS 282 ( Ky. 1959 ); Turnpike Authority of Kentucky v. Wall, 336 S.W.2d 551, 1960 Ky. LEXIS 331 ( Ky. 1960 ); George v. Scent, 346 S.W.2d 784, 1961 Ky. LEXIS 34 1 ( Ky. 1961 ); Standard Oil Co. v. Boone County Board of Supervisors, 562 S.W.2d 83, 1978 Ky. LEXIS 319 ( Ky. 1978 ); Commissioners of Sinking Fund v. Estate of Doyle, 573 S.W.2d 932, 1978 Ky. App. LEXIS 615 (Ky. Ct. App. 1978); Owensboro v. McCormick, 581 S.W.2d 3, 1979 Ky. LEXIS 252 ( Ky. 1979 ); Van Hoose v. Williams, 496 F. Supp. 947, 1980 U.S. Dist. LEXIS 15217 (E.D. Ky. 1980 ); Legislative Research Com. by Prather v. Brown, 664 S.W.2d 907, 1984 Ky. LEXIS 300 ( Ky. 1984 ); E.M. Bailey Distributing Co. v. Conagra, Inc., 676 S.W.2d 770, 1984 Ky. LEXIS 235 ( Ky. 1984 ); Board of Education v. Taulbee, 706 S.W.2d 827, 1986 Ky. LEXIS 245 ( Ky. 1986 ); Dunlap v. University of Kentucky Student Health Servs. Clinic, 716 S.W.2d 219, 1986 Ky. LEXIS 300 ( Ky. 1986 ); Paducah v. T.C.B., Inc., 817 S.W.2d 234, 1991 Ky. App. LEXIS 119 (Ky. Ct. App. 1991).

Opinions of Attorney General.

Serious doubt exists as to whether a contribution to the chamber of commerce is a “public purpose” within the meaning of this section and there is no Commonwealth case approving the contribution of public moneys to a private corporation such as a chamber of commerce. OAG 61-747 .

When an in-service training program meets the criteria outlined in KRS 18.210 (repealed) and complies with the rules of the commissioner of personnel as one improving the work effectiveness of employees in the state service, the constitutional requirements set out in Const., § 3 and this section are complied with. OAG 61-917 .

The fact that the equipment of a West Virginia contractor doing a job in Kentucky could be assessed for taxation in both states does not constitute prohibited double taxation. OAG 61-975 .

Any attempt by a city to create a special class of real property owners for taxation purposes based upon age, source of income, or marital status would be a violation of the uniformity provisions of this section. OAG 63-84 .

Where bonds were issued by a city to purchase an industrial building to be leased to a business, the bonds were bonds of a municipality within the meaning of this section and were not subject to ad valorem taxation. OAG 63-398 .

Where bonds were issued by a city to purchase an industrial building to be leased to a business, the interest from the bonds was exempt from Commonwealth state income tax. OAG 63-398 .

Where bonds were issued by a city to purchase an industrial building to be leased to a business, the revenue bonds and the interest thereon were exempt from all state, county, school and municipal taxes, including the state income tax. OAG 63-398 .

A city of the fourth class has the power to impose an occupational or license tax. OAG 64-160 .

The governing bodies of the state university and colleges, under their power of appointment and their power to operate the institutions, have an area of reasonable discretion in effecting payment of recruiting expenses such as travel and lodging, whether those interviewed are employed or not, out of funds labeled “General Expense.” OAG 64-421 .

All property in the Commonwealth whether assessed by state (county) assessment authorities or by city assessors must be assessed at its fair cash value after January 1, 1966. OAG 65-467 .

The requirement that property be assessed at fair cash value applies to assessments by city assessors in the assessment of property for city tax purposes. OAG 65-467 .

A classification or real property for local ad valorem taxation according to use would be considered a reasonable distinction based upon real differences, not an arbitrary or capricious one, and would not violate this section. OAG 65-646 .

The establishment of a maximum tax rate for various classifications of property would not violate either this section or Const., § 181. OAG 65-646 .

A city cannot appropriate its tax funds to help pay the expense incurred by the coroner in connection with post-mortem examinations performed on bodies of persons who died within the city limits. OAG 66-45 .

A city has no authority to annex territory and then exclude the same territory from the city tax rolls until certain benefits are furnished said territory. OAG 66-518 .

A municipality can validly exempt wages earned by full-time students for part-time services performed for the educational institution which they attend from a general occupational license fee. OAG 67-118 .

The classification of businesses for the imposition of occupational license fees on the basis of payment of ad valorem taxes would not be constitutional. OAG 67-168 .

A payment to an individual not performing a public service cannot be regarded as expended for a public purpose; hence, such payment violates the Constitution. OAG 68-237 .

Where not all of the residents of three (3) cities included in an independent school district lived inside the school district and one city had its own tax assessor while two (2) other cities were assessed by the county assessor, the proper tax levying authority for the district was the county fiscal court and the election expense should be borne by the fiscal court. OAG 69-2 .

The expenses of a potential job applicant should be allowed only in those extraordinary circumstances in which a complicated or difficult job, requiring real academic and work experience, cannot be filled properly and adequately without such extra recruitment consideration. OAG 69-347 .

Legislation granting state aid in the construction of an office building for the Kentucky Municipal League would be constitutional. OAG 70-93 .

In the event an independent school district which has in effect a specially voted general purpose tax under KRS 157.440 merges with a county school district, the special tax of the independent district is dissolved and the taxpayers of the former independent district will pay the same school taxes as the other taxpayers within the county district. OAG 72-820 .

The board of commissioners of the city of Paducah does not have the power, by ordinance or other appropriate action, to regulate, set aside, or “roll back” all residential reappraisals on property belonging to persons over sixty-five (65) years of age, leaving this group with their 1972 assessment as it was for the previous year, as § 3 of the Constitution prohibits exemption of any property from taxation except as provided in the Constitution, this section requires that taxes shall be levied and collected for public purposes and shall be uniform upon all property of the same class subject to taxation within the territorial limits of the authority levying the tax, and § 172 requires all property not exempted by the Constitution to be assessed at its fair cash value, so that any taxpayer so aggrieved by the assessment placed upon his property by the city assessor should protest to the board of equalization as provided by KRS 92.440 . OAG 73-195 .

In view of the fact that taxes may be levied and collected to carry on government operations only, county road equipment may not be used to work on private roads, with or without compensation, as the fiscal court is only authorized to provide for the good condition of highways and the responsibility for such illegal use would rest with the individual members of the fiscal court (affirming OAG 68-86 ). OAG 73-290 .

The fiscal court could pass a resolution granting a corporation organized under KRS 273.160 (repealed in 1968) the sum of $15,000 toward the construction of a rescue squad building to house the corporation whose primary purpose is to render aid to persons in distress, since the building would involve a public purpose under this section, would not involve a lending of credit, and would not be an appropriation prohibited by this section, but merely a method of carrying out a clear public purpose. OAG 73-334 .

This section should be read together with § 179 with the idea that the proscription against county appropriations to a corporation in § 179 is not absolute, but is merely to be read as definite where the public purpose required by this section is not shown. OAG 73-334 .

Since neither the Constitution nor statutes give the fiscal court any power either expressly or by implication to exempt property from taxes, but only the power to levy taxes, the fiscal court has no authority to exempt tangible personal property from ad valorem property taxes. OAG 73-397 .

Under this section and § 3 of the Constitution, a city ordinance authorizing an incentive bonus for city employees who work a full year without taking a vacation to which they are entitled is illegal. OAG 73-436 .

A county may use revenue sharing funds to help finance a factory being built by a nonprofit corporation, which will be leased to a corporation organized for profit with an option to purchase, without violating this section. OAG 74-203 .

Under this section and Const., § 3 a city employee cannot be paid for working during his vacation period rather than taking the vacation days as this would constitute double payment for a particular period of time. OAG 74-306 .

The reimbursement by a city of a private corporation constructing a private hospital in the city for the construction of a portion of sewer line to the hospital along public right of way, in the form of property tax credits to the corporation until completed would be in violation of this section and Const., § 174 requiring uniform and equal tax levies according to classification, Const., § 3 prohibiting exclusive grants except for public service and Const., § 170 as it is not enumerated as exempt under that section. OAG 74-616 .

Reclamation of strip mined Kentucky land is a public purpose and a fiscal court may assist in funding the program of a private college to set up instruction and a degree in reclamation, providing the fiscal court determines that the program will result in a real and direct benefit to the county by, for example, the direct involvement of persons taking the instruction in reclamation within the county. OAG 74-730 .

A $35 per year charge for fire and police protection and garbage collection levied against residence and business property owners is not valid and as a “tax” is in violation of the Constitution. OAG 75-411 .

A proposed ordinance which would impose a tax of $100 per ton on coal hauled into the city limits to be resold is an excise tax rather than a license tax and is prohibited under this section. OAG 75-452 .

Since the rates charged by a municipally owned utility must be fair, reasonable, just, uniform and nondiscriminatory, a proposed lower water rate for resident users who qualify for the homestead exemption would be of doubtful legal validity. OAG 75-720 .

The marshal in a sixth class city cannot be paid a bonus at any time. OAG 76-242 .

A fiscal court could under the authority of KRS 67.083 , Const., §§ 171 and 181 pass an ordinance imposing an occupational or license tax, to be used to support a fire department established under KRS chapter 75, upon those persons engaged in writing fire insurance policies in the county and such tax could be measured in terms of the amount of such insurance written although, in order to meet the constitutional test, the tax would have to be based upon a reasonable classification, not be discriminatory and not be confiscatory. OAG 76-575 .

Since a county can levy only two (2) kinds of taxes, ad valorem taxes and license or occupational taxes, and since a sales tax for financing mass transit authorities provided for by subsection (4) of KRS 96A.320 did not fall within either of these classifications but was a sales tax to be levied by the fiscal courts of a number of counties, such sales tax was wholly and irredeemably unconstitutional. OAG 76-623 .

Although subsequent to January 2, 1978 persons may still be elected to the office of justice of the peace and justices of the peace would retain any nonjudicial powers found in the statutes, in a county having the commissioner type of government in 1978 there are practically no authorized statutory functions for a justice of the peace and, since performance of some statutory duties is necessary to entitle justices of the peace to compensation and expense allowances in 1978, payment of any compensation or expense allowance to such justices not serving on fiscal courts would raise a serious constitutional question. OAG 77-133 .

The city’s proposed educational incentive pay plan for its firemen is illegal in that there is no statutory authorization for the program, nor do payments for taking college courses come within the definition of “salary” for municipal firemen and since such proposed payments are not for services rendered to the city those payments would be in violation of § 3 and this section of the Kentucky Constitution. OAG 79-32 .

A city cannot appropriate public funds to nonprofit corporations or to associations or individuals in absence of legislative authorization when it has no control of such organizations and no direct connection with them; furthermore, all appropriations of public money by municipalities must be for a public and corporate purpose rather than for private uses. OAG 79-67 .

A county would be in violation of the law if an improvement was made for a school bus turnaround if the property was privately owned and not deeded to the county. OAG 79-200 .

The uniformity provision of the Constitution is held to be applicable to license taxes as well as property taxes. OAG 79-301 .

The use of county funds, personnel or equipment to improve or maintain private drives or lanes is illegal and unconstitutional. OAG 79-343 .

A fiscal court, under this section and § 181 of the Constitution, can levy only two (2) kinds of taxes: (1) ad valorem taxes and (2) license or occupational taxes. OAG 79-385 .

The practice of making full or partial payments on state personal service contracts which reflect no services actually rendered is unconstitutional. OAG 79-448 .

Where a person operating under a personal service contract is paid for “services not yet rendered” no public purpose can possibly be involved; it is only after the public service is actually performed or rendered that a public purpose had been subserved and a public service has been effected. OAG 79-448 .

The use of city street equipment and material for paving private driveways purchased with public funds is illegal and unconstitutional, and the fact that the private citizens whose driveways are paved will repay the city for the material used is of no consequence as the question hinges on the initial use of such equipment and material purchased with public municipal funds. OAG 79-509 .

The advance payment of money to the Brussels office of the European Economic Development Office of the Commonwealth of Kentucky for the purpose of paying certain operational expenses is constitutional under § 3 of the Constitution and this section and meets precisely the requirements of KRS 44.010 that claims against the state treasury be paid only when due since the final and effective disbursement of the operational money is only effected after the persons or corporations have actually performed the services. OAG 79-532 .

A city cannot legally provide fire protection services only to those city employees and their immediate families who reside outside the city limits, as a fringe benefit, as such services constitute a bonus or extra compensation and are prohibited by § 3 of the Constitution and this section. OAG 79-611 .

The payment of travel expenses to out-of-state persons invited to Kentucky by departments and agencies of the central state government for screening employment interviews, involving high level positions, would definitely be for a public purpose since it is desirable to procure the best possible qualified people for such positions in the interest of promoting efficient government. OAG 80-37 .

Any practice of making full or partial payments on state personal service contracts in advance of the actual and full performance of the contract is unconstitutional. OAG 80-38 .

The advance transfer of state money to the International Tourism Office for the payment of operational expenses is constitutional under Const., § 3 and this section, since the final and effective disbursement of the state money is made only after the goods and services, for which a claim is made, have been fully furnished and performed. OAG 80-38 .

The mere transfer of the state money from the state’s depository to the Brussels’ Kentucky Office of Tourism does not involve, at that point, a final effective disbursement. OAG 80-38 .

Where a reduction in taxes and a decline in some sectors of the state’s economy indicates that there will be a large deficit between the funds raised by the state and the funds appropriated to the various state departments in the biennial budget, the secretary of finance is authorized and directed, by KRS 45.160 (repealed), to prevent an overdraft or deficit by equitably reducing, according to needs, the appropriations made in the budget to each budget unit in state government so long as the reductions do not impair the constitutional functions of that department or agency; in making such reductions in appropriations the secretary of finance (now secretary of finance and administration) should: (1) make a written finding that a deficit is imminent; (2) make the best possible ascertainment of the total financial resources anticipated for that particular fiscal year; (3) ascertain the needs of each budget unit within the context of necessary constitutional function; (4) give careful consideration to the probable impact of reduction in terms of governmental services and general economic impact; (5) keep in mind the urgent necessity for continuing necessary constitutional functions and that the reductions may not impair those functions; and (6) above all, be sure that the reductions are reasonably effected in the light of the public needs and interest subserved by the particular agencies. OAG 80-410 .

Because the clear and unambiguous intent of the General Assembly was to place a ceiling upon real property tax rates while specifically exempting personal property tax rates, the unavoidable conclusion is that the county fiscal court may establish two (2) separate tax rates — one for real property and one for personal property. OAG 80-545 .

The fiscal court may expend county funds for the maintenance of the road leading to the public cemetery, provided that such road has been taken into the county road system by way of a formal order of the fiscal court. OAG 80-562 .

The compensation of the county judge/executive, county clerk, sheriff and jailer can be adjusted to the rubber dollar maximum pursuant to KRS 64.527 ; however, such adjustment for a magistrate or coroner would violate Const., § 3 and this section where such offices are not full-time positions, unless the officer is only paid a percentage of the rubber dollar maximum equivalent to the actual hours worked as compared to a full workweek. OAG 82-16 .

Where an outgoing fiscal court sets new salary levels for part-time constitutional officers, which salaries exceed the amount that the part-time officers should receive, the new fiscal court shall not honor the new salaries for any part-time officers; if the new salaries for the part-time officers are paid, the new fiscal court members would be personally and individually liable. OAG 82-16 .

For city ad valorem tax purposes, all property which is not exempted by Const., § 170 or by statute must be assessed uniformly at its fair cash value and an assessment of ad valorem tax based upon benefits received would not be valid; however, KRS 91A.200 to 91A.290 would allow a city of the sixth class to finance street lights through a special assessment on benefits received basis, so long as the city complied with the requirements of those statutes before beginning work on the improvements. OAG 82-21 .

Although a fifth-class city may levy a license tax based on the licensee’s gross income pursuant to KRS 92.280 , the percentage rate of taxation would have to remain fixed because a license tax rate which was graduated according to the amount of gross sales made would be arbitrary and unequal under this section and Const., § 2, and thus unconstitutional. OAG 82-33 .

Even if no contractual obligation for maintenance and repair by a county is created, a fiscal court must use its good business judgment in entering into a lease of county real property and the lease must be considered as involving a public purpose and in the public interest, as relates to the rental aspect and use of the property. OAG 82-60 .

A county fiscal court cannot impose an occupational or license fee or tax on those county insurance companies doing fire and casualty insurance business in the county, for the purpose of providing funds for the county volunteer fire department, without violating this section’s requirement of uniform taxation as to each classification; any such fee or tax must apply generally to all professions, trades and businesses in the county. OAG 82-103 .

An arrangement by which the state’s money remains in the hands of officials or employees of state government and the money is not finally and effectively paid out until the services are performed, is valid under Const., § 3 and this section. OAG 82-281 .

State money can only be spent for a “public purpose,” not a “private” one; thus either goods must be furnished to the state government or services for the state government must be actually rendered before the state’s money can be used to finally pay for such. OAG 82-281 .

Statutory law and Const., § 3 and this section mandate the payment of state money only after the services have been rendered or performed. OAG 82-281 .

Where it is contemplated that state money must be turned over or advanced to private or corporate contractors before contractual services are actually rendered, and the state officials engaging in the contracts determine in good faith that such advancements are necessary in point of time and the ultimate rendering of the services sought, such advancements may be constitutional under these conditions: (1) the contract must expressly provide that the responsible contractor will not make final effective disbursement of the advanced state funds until the contractual services have in fact been rendered; (2) in order to protect the state treasury, the contractor must execute a suitable bond or procure an insurance contract providing for full repayment to the state where advanced money has been disbursed without reflecting the concomitant contractual services to be rendered. OAG 82-281 .

The expenditure of public funds by local governments to pay employees their salaries while those employees, who are members of the National Guard and reserve components of the armed forces of the United States, are on annual military leave, does not violate state constitutional provisions concerning the expenditure of public funds. OAG 82-305 .

While a city cannot legally donate or contribute public funds to a private corporation over which it has no control, with certain exceptions where the state legislature has specifically authorized such donations, a city could contract with a nonprofit organization to render paramedic services to its citizens the same as it is specifically authorized to do with respect to contracting for emergency ambulance service pursuant to KRS 65.710 , 65.720 . The city could also provide for paramedic service in conjunction with the operation of its own emergency ambulance service on behalf of the citizens of the city. OAG 82-366 .

The county commissioners on a fiscal court must be paid the same compensation, regardless of what the legal sum is. In view of the fact that Const., § 3 and this section demand that an officer or employee of government receive compensation actually earned by rendering appropriate statutory services, this means that each commissioner is required to have approximately the same work load. OAG 82-461 .

A city of the fourth class has authority to enact an ordinance requiring its taxpayers to file federal income tax return schedules as a part of the city’s net profits tax returns as a verification of such returns. OAG 82-555 .

Proposed fee on garages and parking lots whereby the operators of such business would pay a fee to the county and be issued a permit for parking activity was a license tax and was constitutionally impermissible since the county already had an occupational license tax. OAG 82-573 .

A fiscal court could sell a hospital physical plant, which was not needed by the county, to a nonprofit corporation for at least its fair market value; a sale of surplus land for fair market value would satisfy §§ 3, 179 and this section as relates to prohibited gifts of county money. OAG 83-37 .

Since the statutory powers of a county fiscal court do not include carrying on or promoting the work of the church or churches, a fiscal court cannot legally expend county tax money in putting rock and gravel upon church parking lots, meritorious as it might otherwise be in relation to spiritual and moral training. OAG 83-175 .

There is no distinction between a business license tax measured by gross receipts and one measured by net profits, since the tax is levied on the privilege of doing business and that privilege does not require a greater rate for greater profits, but is worth the same for all businesses; consequently, a graduated city business license tax based on net profits would violate Const., § 2 and this section. OAG 83-331 .

When a city annexes territory and such annexation becomes final, the territory automatically becomes a part of the city and subject to tax the same as any other portion thereof regardless of the extent of the city services rendered in the annexed portion; on the other hand, since the owners of the annexed property are subject to taxation by the city, it would follow that the city should extend its services to the area within a reasonable time consistent with its financial limitations and its obligations to the community as a whole. OAG 84-28 .

The state could not indemnify a public, nonprofit organization against libel suits arising from the publication of final disciplinary actions received from a licensing board; assuming the General Assembly approved the expenditure of funds for this purpose, the enactment of legislation would be unconstitutional as creating an obligation against future revenues without voter approval in contravention of Const., § 50, as using public funds for nonpublic purposes in contravention of this section, and as lending the credit of the state in contravention of Const., § 177. OAG 84-55 .

A classification, for purposes of occupational license tax, of employer and employee is unreasonable and hence unconstitutional; the tax must be applied to all persons within a business, trade or occupation uniformly. OAG 84-76 .

Although the Commonwealth Credit Union was created with the trappings of a private corporation, it is recognized by the General Assembly as a state agency, which exists for the recognized purpose of extending “fringe benefits” to state employees; such a purpose is a public purpose, as envisioned in Const., § 3 and this section. OAG 84-80 .

Ad valorem taxes and license taxes are the only kinds of taxes that a county may levy; thus, the attempted levy of an oil shale severance tax by a county would be unconstitutional. OAG 84-116 .

A county ordinance which levies a license or occupational tax on oil shale producers engaged in the extractive business enterprise of oil shale would be constitutional, provided that the license or occupational tax as applied to oil shale producers (the same principle would apply to other mineral producers) is fairly and equitably integrated with a general county occupational or license tax applying to an overall occupational or license tax. OAG 84-116 .

Where a county entered into a contract for the furnishing of ambulance service, pursuant to KRS 65.710 , the ambulance service involved a purpose common to the entire county; thus, unless such contract embraced all citizens within the county, including those who lived in cities within the county, this section and § 171 of the Constitution would be violated. OAG 84-323 .

In a county with a population of less than thirty thousand, a fiscal court can produce new or additional revenue other than that derived from the ordinary ad valorem tax rate by levying a license or occupational tax without a vote of the people if the county does not already have a general license or occupational tax. OAG 85-84 .

The Commonwealth is prohibited from entering into an indemnity or “hold harmless” clause under this section and Const., §§ 50 and 177. OAG 86-18 .

The waiver by the Commonwealth of any right to sue the contractor violated this section and Const., §§ 50 and 177. OAG 86-18 .

It would be unconstitutional under Const., § 3 and this section to utilize state facilities and expend state funds to provide exclusive educational privileges to only children of employees of certain foreign owned corporations; however, in the case of the Japanese Saturday School administered by the University of Kentucky, since the program was operated with 100% private funds and did not involve providing exclusive educational privileges to only children of employees of certain foreign owned corporations, it was a legally permissible endeavor. OAG 86-82 .

Neither the school nor the tax collector can abate past due interest or penalty on local school taxes paid prior to or after filing suit for collection of the unpaid taxes, penalty, and interest. OAG 88-46 .

The allowance of a settlement or compromise of interest and penalties which have accrued to taxes owed a school district would be a circumvention of the provisions of this section, where the result of the settlement would be that the property for which the tax was reduced would have been taxed at a different rate which would be determined only upon the negotiating skills of the parties involved. OAG 88-46 .

The purchase of satellite receiving equipment for nonpublic schools through an appropriation by the General Assembly would appear to be educational in purpose and, therefore, would appear to be a constitutionally prohibited expenditure. OAG 89-41 .

Under KRS 168.100 , the use of state funds appropriated for educational purpose may be applied by Kentucky Educational Television only for the benefit of public or common schools in order to avoid violation of this section and Const., §§ 184, 186, and 189. Accordingly, KET is required to charge nonstate schools, whether private and nonsectarian or parochial, for services delivered in the process of returning student responses to the KET master computer. OAG 91-71 .

Regulation, 11 KAR 8:030E, promulgated by the Kentucky Higher Education Assistance Authority is unconstitutional in that it provides for loan recipients to teach in nonpublic schools which is not a public purpose under this section. At a minimum, in order for any sum raised and collected for education to be extended for any purpose other than for common schools, the question must first be submitted to the legal voters, under Const., § 184. OAG 91-82 .

The job development assessment fee of House Bill 89 (Acts 1992, ch. 105) constitutes a transaction solely between the company and its employees; the fee is not a tax since it is not payable to the government and it does not defray the cost of government; since the job development assessment fee is not a tax, it does not represent an illegal tax in violating of any constitutional provision. OAG 92-55 .

The county is not responsible for repairing a bridge which, though in the county road system, now due to rerouting of the county road serves only one (1) private residence; the bridge does not serve a public purpose and accordingly, public funds cannot be spent to repair or improve it. OAG 92-74 .

Statutory provisions that generally operate to require a fiscal court to maintain a county road, or that underpin an expenditure for such purpose, will not supercede constitutional provisions limiting governmental expenditures to public purposes. OAG 92-74 .

In light of the provisions of Const., § 171 the duty imposed upon the county attorney by KRS 69.230 is operative only where a public purpose is involved. OAG 93-60 .

While in circumstances involving a public purpose, a county attorney would have a duty, pursuant to KRS 69.230 , to oppose the wrongful opening, alteration, or discontinuance of a public road, that duty is not present where the purpose is to advance private interests such as the recreational use of unimproved public roads across private lands. OAG 93-60 .

A county attorney does not have a duty to pursue the opening of a public road, which has not been accepted as a county road, in order to enable use of such road for personal recreational purposes of some members of the public, as such task does not involve a public purpose justifying the application of public resources. OAG 93-60 .

While the office of constable and deputy jailer (county jail guard) are not incompatible, a county jail guard could not lawfully use time for which he or she is being paid as a jail guard, or the resources of the jail, to conduct his or her political campaign as such would involve direction of public resources for other than public purposes in violation of Const., § 171, and would presumably involve official misconduct. OAG 93-66 .

A fiscal court, assuming funds have been properly budgeted for the purpose, may lawfully approve reimbursement, subject to proper documentation being submitted, of the reasonable expenses for travel, meals, and lodging, actually paid by one elected to a county office, who has not yet assumed such office, where such expenses are immediately incident to attending statutorily provided training for such office. OAG 93-72 .

Acts 1994, ch. 87 (KRS 42.700 (now repealed) and amendments of KRS 21A.140 and 311.610 ) is unconstitutional as it is arbitrary legislation violative of Const., § 2 and this section. OAG 95-21 .

Research References and Practice Aids

Cross-References.

Classification of particular property for taxation, KRS 132.030 to 132.090 , 132.200 .

Property subject to local taxation, KRS 132.200 .

Referendum on acts classifying property, KRS 132.100 to 132.120 .

State ad valorem taxes, KRS 132.020 .

Journal of Mineral Law & Policy.

Comments, Constitutional Validity of the Kentucky Unmined Coal Tax: Gillis v. Yount, 4 J.M.L. & P. 159 (1988).

Kentucky Law Journal.

Stephenson, Property Assessment Remedies for the Kentucky Taxpayer, 60 Ky. L.J. 84 (1971).

Stevens, Property Tax Revenue Assessment Level and Taxing Rate: The Kentucky Rollback Law, 60 Ky. L.J. 105 (1971).

Markham, The Property Tax — A Withering Vine, 60 Ky. L.J. 174 (1971).

Kentucky Law Survey, Vasek and Bradley, Kentucky Taxation, 68 Ky. L.J. 777 (1979-1980).

Kentucky Law Survey, Whiteside, Taxation, 71 Ky. L.J. 479 (1982-83).

Northern Kentucky Law Review.

Note, Facing the Economic Challenges of the Eighties — The Kentucky Constitution and Hayes v. The State Property and Buildings Commission of Kentucky, 15 N. Ky. L. Rev. 645 (1988).

Wintersheimer, State Constitutional Law, 20 N. Ky. L. Rev. 591 (1993).

§ 172. Property to be assessed at fair cash value — Punishment of assessor for willful error.

All property, not exempted from taxation by this Constitution, shall be assessed for taxation at its fair cash value, estimated at the price it would bring at a fair voluntary sale; and any officer, or other person authorized to assess values for taxation, who shall commit any willful error in the performance of his duty, shall be deemed guilty of misfeasance, and upon conviction thereof shall forfeit his office, and be otherwise punished as may be provided by law.

NOTES TO DECISIONS

Analysis

Cross-References.

Cross-References.

See also notes to Const., § 171.

1.Construction.

This section does not confine the levy of an ad valorem tax to tangible property. Adams Express Co. v. Kentucky, 166 U.S. 171, 17 S. Ct. 527, 41 L. Ed. 960, 1897 U.S. LEXIS 2017 (U.S. 1897).

The provisions of this section are mandatory. Shuck v. Lebanon, 68 S.W. 843, 24 Ky. L. Rptr. 451 , 1902 Ky. LEXIS 319 (Ky. Ct. App. 1902).

This section fixes the standard of valuation and appraisement of property for the purposes of taxation. Fayette County v. Wells, 195 Ky. 608 , 243 S.W. 4, 1922 Ky. LEXIS 367 ( Ky. 1922 ).

This section requires that all property should pay its fair share of the expenses of government except for that property which is specifically exempted from taxation as public or quasi-public property or property serving the general welfare. Cumberland Pipe Line Co. v. Commonwealth, 258 Ky. 90 , 79 S.W.2d 366, 1934 Ky. LEXIS 575 ( Ky. 1934 ).

Assessing authorities have disregarded strict letter of this section and treated it, and statutes enacted after its adoption, as only requiring uniformity and have attempted to adopt a general level of proportionate values in assessing various classes of property. Louisville v. Martin, 284 Ky. 490 , 144 S.W.2d 1034, 1940 Ky. LEXIS 505 ( Ky. 1940 ). But see Russman v. Luckett, 391 S.W.2d 694, 1965 Ky. LEXIS 322 ( Ky. 1965 ).

This section provides that the value of the property shall determine the assessment. Floyd County v. Kentucky-West Virginia Gas Co., 407 S.W.2d 721, 1966 Ky. LEXIS 188 ( Ky. 1966 ).

This section and §§ 171 and 172A of the Constitution are to be interpreted together. Dolan v. Land, 667 S.W.2d 684, 1984 Ky. LEXIS 211 ( Ky. 1984 ).

This section is subject to the same requirements of uniformity as Const., § 172A because both are constitutional provisions for assessing property. Dolan v. Land, 667 S.W.2d 684, 1984 Ky. LEXIS 211 ( Ky. 1984 ).

The Constitution requires that all nonexempt property be taxed, but does not require that it be taxed twice, once as a tangible and once as an intangible. Kentucky Power Co. v. Revenue Cabinet, 705 S.W.2d 904, 1985 Ky. LEXIS 293 ( Ky. 1985 ).

2.Application.

This section has no application to toll charges for the use of a bridge. Klein v. Louisville, 224 Ky. 624 , 6 S.W.2d 1104, 1928 Ky. LEXIS 663 ( Ky. 1928 ).

The provisions of this section apply only to ad valorem taxes. Louisville v. Cromwell, 233 Ky. 828 , 27 S.W.2d 377, 1930 Ky. LEXIS 663 ( Ky. 1930 ).

3.Effect on Prior Law.

A statute enacted prior to the present Constitution, so far as it authorized the board of equalization to equalize assessments upon any other basis than that of the cash value of the property assessed, was in conflict with this section. Louisville R. Co. v. Commonwealth, 105 Ky. 710 , 49 S.W. 486, 20 Ky. L. Rptr. 1509 , 1899 Ky. LEXIS 261 ( Ky. 1899 ).

An act providing for assessment of real property at 70 percent of its cash value was repealed by this section. Owensboro Waterworks Co. v. Owensboro, 74 S.W. 685, 24 Ky. L. Rptr. 2530 , modified, 75 S.W. 268, 25 Ky. L. Rptr. 434 (1903).

4.Fair Cash Value.

Under this section and Const., § 174, it is made an imperative duty to assess all kinds of property, including shares of stock, in corporations at its actual value. Hager v. Citizens' Nat'l Bank, 127 Ky. 192 , 105 S.W. 403, 32 Ky. L. Rptr. 95 , 1907 Ky. LEXIS 130 ( Ky. 1907 ), dismissed, First Nat'l Bank v. Hagar, 212 U.S. 585, 29 S. Ct. 681, 53 L. Ed. 661, 1908 U.S. LEXIS 1633 (U.S. 1908).

The price a piece of property would bring at a fair voluntary sale is the test that should be applied in determining the value of property for the purpose of assessment and taxation. Hillman Land & Iron Co. v. Commonwealth, 148 Ky. 331 , 146 S.W. 776, 1912 Ky. LEXIS 453 ( Ky. 1912 ) ( Ky. 1912 ).

The principal reason for adopting fair cash value as the standard for valuations is as a means to the end of equal taxation. Greene v. Louisville & I. R. Co., 244 U.S. 499, 37 S. Ct. 673, 61 L. Ed. 1280, 1917 U.S. LEXIS 1660 (U.S. 1917), overruled in part, Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 104 S. Ct. 900, 79 L. Ed. 2d 67, 1984 U.S. LEXIS 4 (U.S. 1984).

In fixing the value of property for taxing purposes, the criterion is the fair cash value on the date as of which it is assessed. Atlantic States Coal Corp. v. Letcher County, 246 Ky. 549 , 55 S.W.2d 408, 1932 Ky. LEXIS 810 ( Ky. 1932 ).

The amount property would bring at a fair, voluntary sale on the date as of which it is assessed is its fair cash value which determines its assessment for tax purposes. Atlantic States Coal Corp. v. Letcher County, 246 Ky. 549 , 55 S.W.2d 408, 1932 Ky. LEXIS 810 ( Ky. 1932 ). See Kentucky River Coal Corp. v. Knott County, 248 Ky. 737 , 59 S.W.2d 1002, 1933 Ky. LEXIS 314 ( Ky. 1933 ).

This section intended that assessed valuation be made according to fair cash value at price it would realize at fair, voluntary sale when seller could transfer his title without destroying the property itself. Commonwealth ex rel. Reeves v. Sutcliffe, 287 Ky. 809 , 155 S.W.2d 243, 1941 Ky. LEXIS 648 ( Ky. 1941 ).

It is the legislative intent that all property be assessed at its fair cash value, which should be the controlling standard to which all other considerations must yield. Rogers v. Pike County Bd. of Sup'rs., 288 Ky. 742 , 157 S.W.2d 346, 1941 Ky. LEXIS 199 ( Ky. 1941 ).

To secure equality in taxation, it is sometimes necessary to reduce certain property below its fair cash value, but it may never be assessed above its fair cash value for that purpose. Rogers v. Pike County Bd. of Sup'rs., 288 Ky. 742 , 157 S.W.2d 346, 1941 Ky. LEXIS 199 ( Ky. 1941 ). But see Russman v. Luckett, 391 S.W.2d 694, 1965 Ky. LEXIS 322 ( Ky. 1965 ).

Fair cash value is the price which would be agreed upon by a party who desired to, but was not compelled to buy the property and an owner who desired to, but was not compelled to sell it. Evans v. Allen, 305 Ky. 728 , 205 S.W.2d 514, 1947 Ky. LEXIS 918 ( Ky. 1947 ). See Kenmont Coal Co. v. Perry County Board of Sup'rs, 262 Ky. 764 , 91 S.W.2d 47, 1936 Ky. LEXIS 95 ( Ky. 1936 ).

It is a well-established custom in the Commonwealth to assess property excluding intangible personalty at less than its fair cash value. Luckett v. Tennessee Gas Transmission Co., 331 S.W.2d 879, 1960 Ky. LEXIS 129 ( Ky. 1960 ). But see Russman v. Luckett, 391 S.W.2d 694, 1965 Ky. LEXIS 322 ( Ky. 1965 ).

The term “fair cash value” means what the property is worth in money and this can only be estimated by one criterion and that is what the property would bring in a voluntary cash sale. Floyd County v. Kentucky-West Virginia Gas Co., 407 S.W.2d 721, 1966 Ky. LEXIS 188 ( Ky. 1966 ).

5.— Factors Considered.

Where there is no available purchaser, the value of property may be determined by considering the net revenue that may be realized upon operation of a business, its prospects for continuation and the prospective length of time thereof, the material at hand to be produced and the physical condition of the properties. Carr's Fork Coal Co. v. Perry County Board of Supervisors, 263 Ky. 642 , 93 S.W.2d 359, 1936 Ky. LEXIS 232 ( Ky. 1936 ).

Amount paid for purchase of property and amount expended in improvements are not necessarily the proper criterion in fixing fair value, but are elements to be considered. Prestonsburg Water Co. v. Prestonsburg Board of Sup'rs, 279 Ky. 551 , 131 S.W.2d 451, 1939 Ky. LEXIS 305 ( Ky. 1939 ), overruled, Department of Revenue ex rel. Luckett v. Allied Drum Service, Inc., 561 S.W.2d 323, 1978 Ky. LEXIS 318 ( Ky. 1978 ).

The sale price of property is not in all circumstances the sole criterion for fixing the fair cash value, and the circumstances of the sale must be examined to determine the emphasis to be placed upon the sale price. Grant County Fiscal Court v. McGee, 582 S.W.2d 69, 1979 Ky. App. LEXIS 415 (Ky. Ct. App. 1979).

If property is sold at or near the assessment date in a fair and voluntary sale, the sale price is the best evidence of the property’s fair cash value. Sears, Roebuck & Co. v. Boone County Bd. of Assessment Appeals, 715 S.W.2d 888, 1986 Ky. App. LEXIS 1076 (Ky. Ct. App. 1986).

The Revenue Cabinet is not required to consider every variable in assessing the tax value of unmined coal tracts; its consideration of mineable and merchantable acres, average clean coal seam thickness, location by county, and whether the coal was idle, permitted, or permitted and producing provided sufficient information to make a logical and reasonable estimate of the property’s cash value. Prior to initiating a lawsuit, taxpayers who believe their valuations are in excess of fair cash value should exhaust the administrative remedies of formally protesting the assessment and, if necessary, appealing any final determination by the Cabinet to the Kentucky Board of Tax Appeals. Revenue Cabinet v. Gillig, 957 S.W.2d 206, 1997 Ky. LEXIS 91 ( Ky. 1997 ).

6.— — Cash-Equivalency Analysis.

Computing fair market value based upon a cash-equivalency analysis is unconstitutional, as it values the taxpayer’s financing arrangements rather than the property itself and will inevitably cause disparate assessment of identical properties. Sears, Roebuck & Co. v. Boone County Bd. of Assessment Appeals, 715 S.W.2d 888, 1986 Ky. App. LEXIS 1076 (Ky. Ct. App. 1986).

7.— Stock.

The book value of bank stock is not controlling in assessing the value of the stock, and where bank stock had never sold at more than par, the par value was the proper value for assessment purposes, notwithstanding that book value was considerably higher. Board of Sup'rs v. Farmers Nat'l Bank, 293 Ky. 157 , 168 S.W.2d 371, 1942 Ky. LEXIS 7 ( Ky. 1942 ).

Where a total of 36 shares of stock of a bank having 550 shares had, in two (2) year period immediately preceding assessment date, been sold in five (5) different transactions, each of which involved a free voluntary sale and in each of which both the seller and the purchaser had full knowledge of the condition of the bank, the stock was required to be assessed at its value as indicated by the prices brought in such sales, and not according to a valuation based on earnings, book value or other factors. Larue County Board of Sup'rs v. Lincoln Nat'l Bank, 300 Ky. 7 , 187 S.W.2d 819 ( Ky. 1945 ).

In determining the value of stock for inheritance tax purposes, the blockage valuation is not the dominant, much less the exclusive, criterion of taxable value, but the amount of stock and the difficulty of reducing it to its equivalent in money are factors which may be given consideration. Citizens Fidelity Bank & Trust Co. v. Reeves, 259 S.W.2d 432, 1953 Ky. LEXIS 942 ( Ky. 1953 ); Board of Sup'rs v. State Nat'l Bank, 300 Ky. 620 , 189 S.W.2d 942, 1945 Ky. LEXIS 610 ( Ky. 1945 ), overruled, Citizens Fidelity Bank & Trust Co. v. Reeves, 259 S.W.2d 432, 1953 Ky. LEXIS 942 ( Ky. 1953 ).

In evaluating corporate stock where sales in the ordinary course of trade have not been sufficient to establish the fair cash value, assessing authorities and court on a trial de novo should receive all reasonable and relevant evidence which may throw light on its value and give such weight thereto as deemed proper under the circumstances. Cook v. Citizens State Bank, 304 S.W.2d 931, 1957 Ky. LEXIS 292 ( Ky. 1957 ).

8.— Property of Decedent.

Although this section requires that the property of a decedent be assessed for inheritance tax purposes at its actual cash value at the time of his death, to be determined usually by the amount it would have brought at a fair, voluntary sale at that time, evidence as to its value before and after that time has great probative value in determining its value for tax purposes, and a temporary lack of a market for any sale of the property, or for only a depressed value sale thereof, at the time of decedent’s demise may not be used in assessing value so as to deprive the state of its right to fairly tax the property and thus secure the necessary tax revenue to operate the government. Commonwealth v. Wood's Ex'x, 297 Ky. 583 , 180 S.W.2d 312, 1944 Ky. LEXIS 749 ( Ky. 1944 ).

This section prescribes that the cash value of property at the time of decendent’s death be estimated at the prices it would bring at a fair voluntary sale. Commonwealth v. Wood's Ex'x, 297 Ky. 583 , 180 S.W.2d 312, 1944 Ky. LEXIS 749 ( Ky. 1944 ).

In determining the fair cash value of a deceased partner’s share of a North Carolina partnership for inheritance tax purposes, such value is the value at date of death without reduction by reason of taxes, liens or encumbrances. Lynch v. Kentucky Tax Com., 333 S.W.2d 257, 1960 Ky. LEXIS 182 ( Ky. 1960 ).

9.— Life Estates.

Right of life tenant of spendthrift trust whereby his right was forfeited if he sold or encumbered it, with substituted provision for disposal, should be valued according to Wiggleworth mortality table like unqualified life interest, eliminating from consideration the forfeiture clause. Commonwealth ex rel. Reeves v. Sutcliffe, 287 Ky. 809 , 155 S.W.2d 243, 1941 Ky. LEXIS 648 ( Ky. 1941 ).

Taxable value of spendthrift trust whereby life tenant’s right was forfeited if he sold or encumbered his right, with substituted provision for disposal, was not affected by the forfeiture clause so long as he did not forfeit his right by voluntary transfer. Commonwealth ex rel. Reeves v. Sutcliffe, 287 Ky. 809 , 155 S.W.2d 243, 1941 Ky. LEXIS 648 ( Ky. 1941 ).

The value for taxation purposes of a life estate paying the holder $900 a month should be determined by mortality tables and the fact that such are used to arrive at the value rather than speculative opinion evidence as to the cash value of such an estate estimated at the price it would bring at a fair voluntary sale does not violate the spirit or intent of this section. Evans v. Boyle County Board of Sup'rs, 296 Ky. 353 , 177 S.W.2d 137, 1944 Ky. LEXIS 538 ( Ky. 1944 ).

10.— Outstanding Debts.

An outstanding debt may not be deducted from the value of any property in assessing that property for taxation. Henderson Bridge Co. v. Commonwealth, 99 Ky. 623 , 31 S.W. 486, 17 Ky. L. Rptr. 389 , 1895 Ky. LEXIS 244 ( Ky. 1895 ), aff'd, 166 U.S. 150, 17 S. Ct. 532, 41 L. Ed. 953, 1897 U.S. LEXIS 2016 (U.S. 1897).

11.— Mineral Land.

In the taxation of coal lands, those parts which have no merchantable minerals should be excluded in the assessment. Ohio County Board of Supervisors v. Green River Coal Mining Co., 199 Ky. 843 , 252 S.W. 109, 1923 Ky. LEXIS 944 ( Ky. 1923 ). See Kentucky River Coal Corp. v. Knott County, 245 Ky. 822 , 54 S.W.2d 377, 1932 Ky. LEXIS 687 ( Ky. 1932 ).

Where landowner leases oil rights to land and retains a royalty interest in any oil produced, he may be taxed both on the royalty interest and on the land. Commonwealth by Revenue Agent v. Garrett, 202 Ky. 548 , 260 S.W. 379, 1924 Ky. LEXIS 766 ( Ky. 1924 ).

When mineral land is owned in fee, the owner is liable for taxes on both the mineral and surface estates, but when one owns only mineral rights, segregation is allowed. Moss v. Board of Sup'rs, 203 Ky. 813 , 263 S.W. 368, 1924 Ky. LEXIS 1021 ( Ky. 1924 ). See Kentucky River Coal Corp. v. Knott County, 245 Ky. 822 , 54 S.W.2d 377, 1932 Ky. LEXIS 687 ( Ky. 1932 ).

Mineral land should be taxed at its present value rather than its ultimate productive worth. Kentucky River Coal Corp. v. Knott County, 245 Ky. 822 , 54 S.W.2d 377, 1932 Ky. LEXIS 687 ( Ky. 1932 ).

Real estate and the mineral rights thereto, which have been leased, are severable and both are taxable. Head v. Little, 312 Ky. 10 , 226 S.W.2d 322, 1950 Ky. LEXIS 574 ( Ky. 1950 ).

Where there was no proof entered in the record that other persons owning property in a 32,000 acre holding had any desire whatsoever to quiet their title or any need to do so in order to obtain loans or to sell the property, and the only market for this property would fall in its second potential, that of its value for mineral purposes, the assessing body could rely only upon its value as established by the expert witness and not from two (2) isolated sales over a 25-year period. Grant County Fiscal Court v. McGee, 582 S.W.2d 69, 1979 Ky. App. LEXIS 415 (Ky. Ct. App. 1979).

12.Property.

Under this section and Const., § 171, an oil well, with or without its equipment, is property subject to an ad valorem tax. Associated Producers' Co. v. Board of Sup'rs, 202 Ky. 538 , 260 S.W. 335, 1924 Ky. LEXIS 746 ( Ky. 1924 ).

The term property and all property, in this section, are not of such doubtful meaning as to justify a resort to contemporaneous construction. Button v. Drake, 302 Ky. 517 , 195 S.W.2d 66, 1946 Ky. LEXIS 705 , 167 A.L.R. 1046 ( Ky. 1946 ) overruling Button v. Hikes, 296 Ky. 163 , 176 S.W.2d 112, 1943 Ky. LEXIS 104 , 150 A.L.R. 779) (1943).

Where a taxpayer held equitable title in real estate consisting of all incidents of ownership except legal title and the taxpayer paid ad volorem tax on the property, KRS 132.020 , KRS 134.060 and this section did not require the taxation of the power to dispose of the property as an intangible, separate and distinct from the underlying real property. Kentucky Power Co. v. Revenue Cabinet, 705 S.W.2d 904, 1985 Ky. LEXIS 293 ( Ky. 1985 ).

13.— Value.

The income-producing capacity of land is not the only factor to be considered in establishing the value of the property. Dolan v. Land, 667 S.W.2d 684, 1984 Ky. LEXIS 211 ( Ky. 1984 ).

14.— Enforceable Demands.

The word property embraces everything of value owned, or which could be sold at any price, and includes an enforceable demand against a person or property. Commonwealth ex rel. Huntsman v. Kentucky Distilleries & Warehouse Co., 143 Ky. 314 , 136 S.W. 1032, 1911 Ky. LEXIS 466 ( Ky. 1911 ).

An enforceable, collectible demand against another or against property is property subject to taxation at fair cash value. Fayette Realty & Finance Co. v. Commonwealth, 229 Ky. 556 , 17 S.W.2d 722, 1929 Ky. LEXIS 810 ( Ky. 1929 ).

15.— Oil Lease.

A lease allowing the lessee to drill for and produce oil if found on the leased premises is property within the meaning of this section. Raydure v. Board of Sup'rs, 183 Ky. 84 , 209 S.W. 19, 1919 Ky. LEXIS 469 ( Ky. 1919 ).

16.— Insurance Benefits.

There is no constitutional immunity from taxation of property procured by proceeds of life insurance policies in contradistinction to rights arising from any other character of investment (decision prior to enactment of KRS 132.215 ). Button v. Drake, 302 Ky. 517 , 195 S.W.2d 66, 1946 Ky. LEXIS 705 ( Ky. 1946 ).

The right to monthly payments under a life insurance policy is property within the meaning of this section. Button v. Drake, 302 Ky. 517 , 195 S.W.2d 66, 1946 Ky. LEXIS 705 ( Ky. 1946 ). See Newman v. Dickson, 305 Ky. 279 , 203 S.W.2d 33, 1947 Ky. LEXIS 783 ( Ky. 1947 ).

17.— Franchise Holders.

Tangible property of a franchise taxpayer cannot be assessed at any higher rate than that at which similar properties of the same class of other taxpayers are generally assessed. Luckett v. Texas Eastern Transmission Corp., 336 S.W.2d 567, 1960 Ky. LEXIS 338 ( Ky. 1960 ).

18.Scope of Taxing Power.

This section requires that all property over which the state has jurisdiction be assessed except that property which is exempted; therefore, this extends the zone of taxation until it equals that of jurisdiction. Commonwealth v. Union Refrigerator Transit Co., 118 Ky. 131 , 80 S.W. 490, 81 S.W. 268, 26 Ky. L. Rptr. 23 , 26 Ky. L. Rptr. 397 , 1904 Ky. LEXIS 16 ( Ky. 1904 ), rev'd, 199 U.S. 194, 26 S. Ct. 36, 50 L. Ed. 150, 1905 U.S. LEXIS 1022 (U.S. 1905).

This section and Const., § 174 were intended to bring within the taxing system every species of property in the state not expressly exempted by the Constitution, and to subject them to an equal rate of taxation. Marion Nat'l Bank v. Burton, 121 Ky. 876 , 90 S.W. 944, 28 Ky. L. Rptr. 864 , 1906 Ky. LEXIS 272 ( Ky. 1906 ).

Under this section and implementing legislation, notes, bonds, and other securities owned by nonresidents, but in the hands of a resident fiduciary for the purpose of controlling and investing, are taxable at the place of his residence. Higgins v. Commonwealth, 126 Ky. 211 , 103 S.W. 306, 31 Ky. L. Rptr. 653 , 1907 Ky. LEXIS 44 ( Ky. 1907 ).

The provisions of this section must be read in light of the generally accepted view, at the time of the adoption of the Constitution, that intangible personal property followed the person of the owner; therefore, this section operates upon all intangible property of which the state has jurisdiction. Henderson v. Barrett's Ex'r, 152 Ky. 648 , 153 S.W. 992, 1913 Ky. LEXIS 718 ( Ky. 1913 ).

19.Distilled Spirits.

Since distilled spirits are property within the meaning of this section, which subjects “all property” to taxation, it necessarily follows that distilled spirits are “property” within the meaning of the provisions of the Constitution, which mandatorily requires uniformity in the assessment of property for ad valorem taxes. Yount v. Calvert, 826 S.W.2d 833, 1991 Ky. App. LEXIS 102 (Ky. Ct. App. 1991).

Subsection (10) of KRS 132.020 is repugnant to the Kentucky Constitution. It is a manifest violation of both the letter and the spirit of the law. Accordingly, the judgment of the Circuit Court declaring KRS 132.020 (10) to be an unconstitutional infringement upon the Constitution and mandating that the Kentucky Revenue Cabinet tax distilled spirits at the rate provided for under the general provisions set forth in KRS 132.020 was proper. Yount v. Calvert, 826 S.W.2d 833, 1991 Ky. App. LEXIS 102 (Ky. Ct. App. 1991).

20.Assessments.

The schedule of property and values is not the assessment, but evidence from which assessment is made. Kentucky River Coal Corp. v. Knott County, 245 Ky. 822 , 54 S.W.2d 377, 1932 Ky. LEXIS 687 ( Ky. 1932 ).

The Constitution requires both assessment at fair cash value and equality of taxation, but where the tax assessing authorities have persistently failed to assess at fair cash value, and adopted a different set of proportionate values, all property must be treated alike and assessed uniformly according to the new set of values. McCracken Fiscal Court v. McFadden, 275 Ky. 819 , 122 S.W.2d 761, 1938 Ky. LEXIS 499 ( Ky. 1938 ). But see Russman v. Luckett, 391 S.W.2d 694, 1965 Ky. LEXIS 322 ( Ky. 1965 ).

Assessed valuation of property was fixed by court at 60 percent of fair cash value, where county and city had adopted that standard for assessing property, since all taxpayers must be treated alike. Prestonsburg Water Co. v. Prestonsburg Board of Sup'rs, 279 Ky. 551 , 131 S.W.2d 451, 1939 Ky. LEXIS 305 ( Ky. 1939 ), overruled, Department of Revenue ex rel. Luckett v. Allied Drum Service, Inc., 561 S.W.2d 323, 1978 Ky. LEXIS 318 ( Ky. 1978 ).

The assessment of property generally, formerly made as of July 1 of each calendar year, and the particular assessment of distilled spirits, heretofore made as of September 1 of each calendar year, were clearly intended to be the basis for the imposition of ad valorem taxes for all purposes for one and the same fiscal period. National Distillers Products Corp. v. Board of Education, 256 S.W.2d 481, 1952 Ky. LEXIS 1151 ( Ky. 1952 ).

An assessment cannot be held invalid merely because of the method employed in making it, so long as the method is fairly designed for the purpose of reaching, and reasonably tends to reach, an approximation of the fair voluntary sale price. Fayette County Board of Supervisors v. O'Rear, 275 S.W.2d 577, 1954 Ky. LEXIS 1252 ( Ky. 1954 ).

Under this section tax assessments are intended to express current values. Commonwealth v. Hesch, 395 S.W.2d 362, 1965 Ky. LEXIS 141 ( Ky. 1965 ).

Const., § 171, insures uniform rates of taxation while this section insures a uniform standard of assessment for taxation. Parrent v. Fannin, 616 S.W.2d 501, 1981 Ky. LEXIS 250 ( Ky. 1981 ).

Although property valuation administrators throughout the state do not need to use the same method of arriving at an assessment, whatever method is used must result in a uniform standard of assessment whether the property is agricultural or residential since Const., § 174 says that all property shall be taxed in proportion to its value. Dolan v. Land, 667 S.W.2d 684, 1984 Ky. LEXIS 211 ( Ky. 1984 ).

The burden on the Department of Revenue (now Revenue Cabinet) is simply to assure that all property in this state is assessed fairly, according to its value; if this is done, the tax burden will be equally shared. Dolan v. Land, 667 S.W.2d 684, 1984 Ky. LEXIS 211 ( Ky. 1984 ).

Property valuation administrator’s (PVA) assessments of a property were reduced as the PVA had to show a material change in the value of property determined in a contested proceeding to increase the value of the property in succeeding years. Carr v. Cont'l Gen. Tire, Inc., 168 S.W.3d 411, 2004 Ky. App. LEXIS 347 (Ky. Ct. App. 2004).

21.— Unequal.

It is well-established and time-honored custom in the Commonwealth to assess real property at considerably less than its fair cash value and, since the taxing authorities have thereby systematically ignored the demands of the Constitution and the statutes that all property be assessed for tax purposes at its fair cash value, and where it is shown that a particular property has been assessed above the usual value for assessment of similar properties, although still not above the fair cash value, the court must require that the assessment be adjusted. Luckett v. Tennessee Gas Transmission Co., 331 S.W.2d 879, 1960 Ky. LEXIS 129 ( Ky. 1960 ). See Russman v. Luckett, 391 S.W.2d 694, 1965 Ky. LEXIS 322 ( Ky. 1965 ).

22.— Valid.

This section does not require uniformity of assessment as between classes and, therefore, it was proper to assess intangible personal property at 100 percent of its value even though real estate in the same county was assessed at only 29.7 percent of its fair value. Kentucky Finance Co. v. McCord, 290 S.W.2d 481, 1956 Ky. LEXIS 324 ( Ky. 1956 ).

The “Roll-Back” law is not unconstitutional as perpetuating unconstitutional assessments for the taxing power of the district is not frozen, because under KRS 157.440 a district, by popular vote, can select as high a rate as it chooses. Miller v. Nunnelley, 468 S.W.2d 298, 1971 Ky. LEXIS 334 (Ky.), cert. denied, 404 U.S. 941, 92 S. Ct. 286, 30 L. Ed. 2d 255, 1971 U.S. LEXIS 564 (U.S. 1971).

Where property valuation administrator sent notices to real property owners of increases in assessments ranging between 1% and 400%, such revaluation did not violate Const., § 171, since that section insures uniform rates of taxation and does not apply to the assessment process, and since this section compels tax assessors to use fair cash value as a uniform criterion and the assessments in question are only subject to attack to the extent they exceed the fair cash value, thus the assessments were constitutional. Parrent v. Fannin, 616 S.W.2d 501, 1981 Ky. LEXIS 250 ( Ky. 1981 ).

Property Valuation Administrator’s (PVA) quadrennial plan, which divided the county into four (4) sections and undertook to physically examine the properties in one (1) section each year, complied with all relevant statutory requirements, and did not violate Const., §§ 2, 171 or this section. Revenue Cabinet v. Leary, 880 S.W.2d 878, 1994 Ky. App. LEXIS 8 (Ky. Ct. App. 1994).

23.— Invalid.

Oil and gas leases and rights conferred thereby are property subject to taxation at their fair cash value, estimated at the price they would bring at a fair voluntary sale, and arbitrarily fixing valuation at a percentage of gross production during tax period is invalid under this section. Estill County v. Superior Oil Corp., 210 Ky. 539 , 276 S.W. 527, 1925 Ky. LEXIS 724 ( Ky. 1925 ).

Assessment by a city of recently purchased realty at 80 percent of its fair cash value, all other similarly situated realty being assessed at only 50 percent of its fair cash value, is invalid under this section and KRS 92.440 which require that all tax assessments be uniform. Lexington v. Cooke, 309 Ky. 518 , 218 S.W.2d 58, 1949 Ky. LEXIS 751 ( Ky. 1949 ).

The fact that for 75 years property within the Commonwealth customarily has been assessed at only a percentage of its fair cash value, clearly ignoring the mandatory provisions of the Constitution and the statutes, does not justify the continued nullification of these provisions by such practice and the assessment of property at only a percentage of its fair cash value is unlawful. Russman v. Luckett, 391 S.W.2d 694, 1965 Ky. LEXIS 322 ( Ky. 1965 ). See McDevitt v. Luckett, 391 S.W.2d 700, 1965 Ky. LEXIS 323 ( Ky. 1965 ).

There is a violation of constitutional rights if the effective tax rate is not uniform and thereby results in an unequal tax burden; any method of assessment which fails to follow the constitutional directions and accordingly does not produce an assessed value based on agricultural use of each individual parcel, violates the Constitution. Dolan v. Land, 667 S.W.2d 684, 1984 Ky. LEXIS 211 ( Ky. 1984 ).

24.— — Burden of Proof.

The tax commission is required by law to fix a valuation for tax purposes, and the burden is on the taxpayer to prove that the finding of the commission was at variance with the evidence before it. Dumesnil v. Reeves, 283 Ky. 563 , 142 S.W.2d 132, 1940 Ky. LEXIS 370 ( Ky. 1940 ).

Where the assessment of the taxpayer’s property in 1999 was lowered significantly, before the valuation for succeeding years were changed from the 1999 valuation it had to be shown that property or conditions in those succeeding years had materially changed, as Ky. Const., § 172 and KRS 132.690(1) required that property be assessed annually at its fair cash value. Carr v. Cont'l Gen. Tire, Inc., 168 S.W.3d 411, 2004 Ky. App. LEXIS 347 (Ky. Ct. App. 2004).

25.— Foreign Owned Property.

Under this section and Const., § 174 where a foreign railroad makes runs over leased tracks from outside the state to one city in the state and the trains entered and left the state on the same day, all the cars and engines used in the state in a single day are not liable to assessment, but an assessment may be made where some of the engines or cars were in the state at all times. Baltimore & O. S. W. R. Co. v. Commonwealth, 177 Ky. 566 , 198 S.W. 35, 1917 Ky. LEXIS 655 ( Ky. 1917 ).

26.Injunctions.

If the requirements of this section are being violated, a taxpayer may seek injunctive relief against the enforcement of taxes resulting from the violation. Greene v. Louisville & I. R. Co., 244 U.S. 499, 37 S. Ct. 673, 61 L. Ed. 1280, 1917 U.S. LEXIS 1660 (1917), overruled in part, Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 104 S. Ct. 900, 79 L. Ed. 2d 67, 1984 U.S. LEXIS 4 (1984). See Louisville & N. R. Co. v. Greene, 244 U.S. 522, 37 S. Ct. 683, 61 L. Ed. 1291, 1917 U.S. LEXIS 1661 (U.S. 1917), overruled in part, Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 104 S. Ct. 900, 79 L. Ed. 2d 67, 1984 U.S. LEXIS 4 (U.S. 1984).

27.Valid Statutes.

A tax on intangible property which has not been taxed as tangible property does not violate the provisions of this section or Const., § 174. Adams Express Co. v. Kentucky, 166 U.S. 171, 17 S. Ct. 527, 41 L. Ed. 960, 1897 U.S. LEXIS 2017 (U.S. 1897).

A statute imposing a tax on dogs to create a fund to compensate owners of sheep which are killed by dogs is a police regulation rather than a revenue measure and, therefore does not violate this section or Const., § 174. McGlone v. Womack, 129 Ky. 274 , 111 S.W. 688, 33 Ky. L. Rptr. 811 , 33 Ky. L. Rptr. 864 , 1908 Ky. LEXIS 166 (Kan. Ct. App. 1908). See Shadoan v. Barnett, 217 Ky. 205 , 289 S.W. 204, 1926 Ky. LEXIS 34 ( Ky. 1926 ).

Where the Legislature devises means of accomplishing the result of assessing all property in the state at its cash value, and adopts a standard of evidence which appears reasonably just and certain, the act is not an infringement of the rights of a citizen so long as the results do not overreach the requirement of this section that all property is to be assessed at its cash value. Ray v. Armstrong, 140 Ky. 800 , 131 S.W. 1039, 1910 Ky. LEXIS 382 ( Ky. 1910 ).

The provisions of KRS 136.120 are not in conflict with this section. Commonwealth by Anderson v. Southern Pac. Co., 150 Ky. 97 , 149 S.W. 1105, 1912 Ky. LEXIS 821 ( Ky. 1912 ), overruled, Commonwealth v. Kentucky Heating Co., 176 Ky. 35 , 195 S.W. 459, 1917 Ky. LEXIS 40 ( Ky. 1917 ).

KRS 132.010(9), (10) and 132.450(2)(a) do not violate the Constitution of Kentucky; dwelling houses are to be assessed at fair cash value, and the income and acreage standards to qualify for “agricultural land” or “horticultural land” are not unreasonable. Dolan v. Land, 667 S.W.2d 684, 1984 Ky. LEXIS 211 ( Ky. 1984 ).

28.Invalid Statutes.

A statute which evaluated for tax purposes a pipeline company’s franchise at the difference between the value of the company’s capital stock and the value of the company’s tangible property without regard to probable future earnings was unconstitutional. Cumberland Pipe Line Co. v. Lewis, 17 F.2d 167, 1926 U.S. Dist. LEXIS 1652 (D. Ky. 1926 ).

29.Territorial Scope of Tax.

A plan for merger of city and county government which divides the county into three (3) taxing districts and authorizes ad valorem taxation at different rates in each district commensurate with government services provided in each district does not violate this section of the Constitution. Holsclaw v. Stephens, 507 S.W.2d 462, 1973 Ky. LEXIS 3 ( Ky. 1973 ).

30.Methods of Assuring Compliance.

Where a majority of the state’s property valuation administrators submitted recapitulations of the aggregate value of real property by class in their counties to the department of revenue pursuant to KRS 133.040 , and upon being informed by the department that the assessments were not in compliance with the full fair market value requirements of this section refused the department’s directives, sent pursuant to subsection (1) of KRS 133.040 , to raise the aggregate assessed values by minimum increases to make them satisfy the requirement of fair cash value, the department properly ordered the administrators’ paychecks withheld pursuant to subsection (3) of KRS 132.690 until they complied, since the department has an explicit mandate to order the administrators to correct valuations which are different, and this mandate is not superseded by the department’s ability to assess property itself under KRS 133.150 , since this is only one of several powers given the department to assure compliance with this section. Allphin v. Butler, 619 S.W.2d 483, 1981 Ky. LEXIS 259 ( Ky. 1981 ).

31.Gross Receipts License Tax.

The county regulation requiring the payment of the Utility Gross Receipts License Tax by the direct payment method in order to claim the exemption under KRS 160.613 to the extent that the cost of energy or energy-producing fuels used by a manufacturer, processor, miner, or refiner exceeds three (3) percent of its cost of production, did not violate Const., § 171 and this section, as the regulation was neither arbitrary nor unreasonable, and the taxpayer was not assessed for excess tax. Martin Marietta Aluminum, Inc. v. Hancock County Bd. of Education, 806 F.2d 678, 1986 U.S. App. LEXIS 34147 (6th Cir. Ky. 1986 ).

Cited:

Levi v. Louisville, 97 Ky. 394 , 30 S.W. 973, 16 Ky. L. Rptr. 872 , 1895 Ky. LEXIS 196 ( Ky. 18 95); Commonwealth ex rel. Armstrong v. E. H. Taylor Jr. Co., 101 Ky. 325 , 41 S.W. 11 ( Ky. 18 97 ); Pence v. Frankfort, 101 Ky. 534 , 41 S.W. 1011, 19 Ky. L. Rptr. 721 , 1897 Ky. LEXIS 224 ( Ky. 1897 ); Board of Councilmen v. Scott, 101 Ky. 615 , 42 S.W. 104, 19 Ky. L. Rptr. 1068 , 1897 Ky. LEXIS 228 (Ky. 1897); Covington v. Kentucky, 173 U.S. 231, 19 S. Ct. 383, 43 L. Ed. 679, 1899 U.S. LEXIS 1434 (U.S. 1899); Paducah S. R. Co. v. McCracken County, 105 Ky. 472 , 49 S.W. 178, 20 Ky. L. Rptr. 1294 , 1899 Ky. LEXIS 222 ( Ky. 1899 ); Board of Councilmen v. Fidelity Trust & Safety-Vault Co., 111 Ky. 667 , 64 S.W. 470, 23 Ky. L. Rptr. 908 , 1901 Ky. LEXIS 236 ( Ky. 1901 ); Aetna Life Ins. Co. v. Coulter, 115 Ky. 787 , 74 S.W. 1050, 25 Ky. L. Rptr. 193 , 1903 Ky. LEXIS 150 ( Ky. 1903 ); German Washington Mut. Fire Ins. Co. v. Louisville, 117 Ky. 593 , 78 S.W. 472, 80 S.W. 154, 25 Ky. L. Rptr. 1697 , 25 Ky. L. Rptr. 2097 , 1904 Ky. LEXIS 224 ( Ky. 1904 ); Commonwealth v. Bank of Commerce, 118 Ky. 547 , 81 S.W. 679, 26 Ky. L. Rptr. 407 , 1904 Ky. LEXIS 71 ( Ky. 1904 ); Ragland v. Anderson, 125 Ky. 141 , 100 S.W. 865, 30 Ky. L. Rptr. 1199 , 1907 Ky. LEXIS 273 ( Ky. 1907 ); Brown-Foreman Co. v. Commonwealth, 125 Ky. 402 , 101 S.W. 321, 30 Ky. L. Rptr. 793 , 1907 Ky. LEXIS 285 ( Ky. 1907 ); Commonwealth v. Wathen, 126 Ky. 573 , 104 S.W. 364, 31 Ky. L. Rptr. 980 , 1907 Ky. LEXIS 76 (Ky. 1907); Eastern Kentucky Coal Lands Corp. v. Commonwealth, 127 Ky. 667 , 106 S.W. 260 (Ky. 1907); Booth's Ex'r v. Commonwealth, 130 Ky. 88 , 113 S.W. 61, 1908 Ky. LEXIS 247 ( Ky. 1908 ); Southern Pac. Co. v. Commonwealth, 134 Ky. 410 , 120 S.W. 309, 1909 Ky. LEXIS 384 ( Ky. 1909 ); Commonwealth v. J. M. Robinson, Norton & Co., 146 Ky. 218 , 142 S.W. 406, 1912 Ky. LEXIS 58 ( Ky. 1912 ); R. J. Reynolds Tobacco Co. v. Lexington, 181 Ky. 503 , 205 S.W. 592, 1918 Ky. LEXIS 568 ( Ky. 1918 ); Purcell v. Lexington, 186 Ky. 381 , 216 S.W. 599, 1919 Ky. LEXIS 226 ( Ky. 1919 ); Bingham's Adm'r v. Commonwealth, 199 Ky. 402 , 251 S.W. 936, 1923 Ky. LEXIS 907 ( Ky. 192 3 ); French Republic v. Board of Sup'rs, 200 Ky. 18, 252 S.W. 124, 1923 Ky. LEXIS 13 ( Ky. 192 3 ); Swiss Oil Corp. v. Shanks, 273 U.S. 407, 47 S. Ct. 393, 71 L. Ed. 709, 1927 U.S. LEXIS 976 (U.S. 1927); Klosterman v. Johnson, 226 Ky. 192, 10 S.W.2d 602, 1928 Ky. LEXIS 30 ( Ky. 1928 ); Stiglitz v. Schardien, 239 Ky. 799 , 40 S.W.2d 315, 1931 Ky. LEXIS 849 ( Ky. 1931 ); Westova Gas Co. v. Knott County Board of Sup'rs, 246 Ky. 334 , 55 S.W.2d 21, 1932 Ky. LEXIS 76 4 ( Ky. 1932 ); Inter-County Rural Electric Co-operative Corp. v. Reeves, 294 Ky. 458 , 171 S.W.2d 978, 1943 Ky. LEXIS 446 ( Ky. 1943 ); County Board of Tax Sup'rs v. Helm, 297 Ky. 803 , 181 S.W.2d 452, 1944 Ky. LEXIS 832 ( Ky. 1944 ); Board of Sup'rs v. State Nat'l Bank, 300 Ky. 620 , 189 S.W.2d 942, 1945 Ky. LEXIS 610 ( Ky. 1945 ); George v. Scent, 346 S.W.2d 784, 1961 Ky. LEXIS 341 ( Ky. 1961 ); Owensboro Nat'l Bank v. Department of Revenue, 394 S.W.2d 461, 1965 Ky. LEXIS 183 ( Ky. 1965 ); Boggs v. Reep, 404 S.W.2d 24, 1966 Ky. LEXIS 286 ( Ky. 1966 ); Board of Education v. Commonwealth, Dep't of Revenue, 515 S.W.2d 231, 1974 Ky. LEXIS 230 ( Ky. 1974 ); Department of Revenue v. Cumberland Production Credit Asso., 551 S.W.2d 836, 1977 Ky. App. LEXIS 713 (Ky. Ct. App. 1977); Jacobs v. Lexington-Fayette Urban County Government, 560 S.W.2d 10, 1977 Ky. LEXIS 564 ( Ky. 1977 ); Kelley v. Ashland, 562 S.W.2d 312, 1978 Ky. LEXIS 325 ( Ky. 1978 ); Board of Education v. Taulbee, 706 S.W.2d 827, 1986 Ky. LEXIS 245 ( Ky. 1986 ); Gillis v. Yount, 748 S.W.2d 357, 1988 Ky. LEXIS 13 ( Ky. 1988 ); Barrett v. Reynolds, 817 S.W.2d 439, 1991 Ky. LEXIS 146 ( Ky. 1991 ); St. Ledger v. Revenue Cabinet, 942 S.W.2d 893, 1997 Ky. LEXIS 17 ( Ky. 1997 ).

Notes to Unpublished Decisions

Analysis

1.Fair Cash Value.

Unpublished decision: After cable television company created and delivered to the state revenue cabinet the report required by statutory law, the state revenue cabinet had the sole power to value and assess all of the property of the cable television company; moreover, the state revenue cabinet’s valuation and assessment enabled it to properly determine the fair cash value, the estimated price that could be obtained at a fair voluntary sale, of the operating property of the cable television company, which was what the cable television company was taxed on, as a unit, and, thus, the state revenue cabinet properly valued, assessed, and taxed the cable television company. Revenue Cabinet v. Comcast Cablevision, 147 S.W.3d 743, 2003 Ky. App. LEXIS 330 (Ky. Ct. App. 2003).

2.Property.
3.—Value.

Property Valuation Administrator did not err in its valuation of commercial real property under Ky. Const. § 172 and Ky. Rev. Stat. Ann. § 132.690 where the payments under the leasehold were indisputably benefits that arose out of the ownership of the property, and thus, it was not error to consider those payments in determining the property's fair cash value under the income generation approach of Ky. Rev. Stat. Ann. § 132.191(2)(b). Wilgreens, LLC v. O'Neill, 2016 Ky. App. LEXIS 169 (Ky. Ct. App. Sept. 23, 2016, sub. op., 2016 Ky. App. Unpub. LEXIS 893 (Ky. Ct. App. Sept. 23, 2016).

Opinions of Attorney General.

An oil and gas lease which gives the lessee the right to explore for oil and gas upon the lands of the lessor is a taxable interest and a tax assessment made on a nonproductive oil and gas lease from the standpoint of the royalty interest owner requires information as to the annual rental per acre that is paid by the lessee, and a full value estimate based on a ten (10) year life of a lease would be eight times the annual rental. OAG 60-141 .

All property in the Commonwealth whether assessed by state (county) assessment authorities or by city assessors must be assessed at its fair cash value after January 1, 1966. OAG 65-467 .

The requirement that property be assessed at fair cash value applies to assessments by city assessors in the assessment of property for city tax purposes. OAG 65-467 .

There is no bar to a taxing authority implementing the fair cash value assessment prior to January 1, 1966. OAG 65-584 .

A sale is the best evidence of the value of property. OAG 66-145 .

It is immaterial in the valuation of property based on sale price what arrangements were made concerning the payment of the sale price. OAG 66-145 .

KRS 82.085 implements this section and permits a municipality to vary the property tax rate in the city depending upon the public services that are available to the property in question. OAG 70-258 .

Under subsection (9) of KRS 132.010 , agricultural or horticultural land values mean representative sale prices of comparable land purchased for agricultural or horticultural use with consideration being given to the purpose of purchase. OAG 71-223 .

The property valuation administrator may, under the direction and supervision of the department of revenue (now revenue cabinet), keep a record of the property of public utility corporations, but this does not constitute an assessment. OAG 71-249 .

In determining the fair cash value of real estate for ad valorem property taxes, the property valuation administrator should take into consideration auction sales where free and open bidding was permitted, evidence that might have been elicited in any hearings held before any boards or courts and any other evidence at his disposal which would help him to determine the fair cash value of the property in question. OAG 72-69 .

The board of commissioners of the city of Paducah does not have the power, by ordinance or other appropriate action, to regulate, set aside, or “roll back” all residential reappraisals on property belonging to persons over sixty-five (65) years of age, leaving this group with their 1972 assessment as it was for the previous year, as § 3 of the Constitution prohibits exemption of any property from taxation except as provided in the Constitution, § 171 requires that taxes shall be levied and collected for public purposes and shall be uniform upon all property of the same class subject to taxation within the territorial limits of the authority levying the tax, and this section requires all property not exempted by the Constitution to be assessed at its fair cash value, so that any taxpayer so aggrieved by the assessment placed upon his property by the city assessor should protest to the board of equalization as provided by KRS 92.440 . OAG 73-195 .

The county ad valorem tax revenue is limited to the application of the preceding year’s tax rate to the preceding year’s assessment, exclusive of voting levies, plus the revenue determined by applying the effective tax rate to the net assessment growth base. OAG 74-393 .

Assessments must mandatorily conform to the strict requirement of this section, that is, the standard of “fair cash value.” OAG 80-500 .

A sixth-class city which had not elected to adopt the county assessment must comply with the assessment procedures contained in KRS 92.520 and KRS 92.540 , and while those statutes allow the city a great deal of discretion in the manner of assessment, levy and collection of its ad valorem taxes, the city must operate within the limits of the Constitution. OAG 82-372 .

Assessing every lot within a sixth-class city at $12,500 without regard to actual transfer prices reflected in recent deeds violated the “fair cash value” mandate contained in this section. OAG 82-372 .

The assessments of qualified property for the ad valorem tax levied by the state and those local governments which have not established moratorium programs pursuant to Acts 1982, ch. 327 must be made in accordance with the provisions of this section and Const., § 174, requiring assessment at fair cash value, and consequently, qualified property will have one assessment for those local governments which have established a moratorium program and another assessment for the state and those local taxing authorities which have not established such moratorium programs. OAG 82-381 .

A stolen automobile that has not been recovered should not be subject to ad valorem property tax until it is recovered. This should be accomplished by bringing proof that the vehicle was stolen to either the property valuation administrator or the county clerk; the proof should consist of a police report or other official document indicating the car was stolen. OAG 83-105 .

It is not permissible for a city to assess taxes based on an equal valuation for all properties so that all property owners pay the same tax regardless of the size or age of their home, since such an approach would be in violation of the constitutional requirement that all property be assessed at its fair cash value; while a uniform standard of assessment is required for property taxation purposes, individual characteristics of the property must be taken into account in the ultimate valuation. OAG 84-77 .

KRS 132.195(1) sets up an irrebutable presumption that the fair cash value of any leasehold interest will always equal the fair cash value of the fee, and this is patently unconstitutional. OAG 89-89 .

Research References and Practice Aids

Cross-References.

Assessment at fair value, KRS 132.450 .

Penalties on assessor, KRS 132.990 .

Journal of Mineral Law & Policy.

Comments, Constitutional Validity of the Kentucky Unmined Coal Tax: Gillis v. Yount, 4 J.M.L. & P. 159 (1988).

Kentucky Law Journal.

Willis, A Brief Survey of the Kentucky Court of Appeals Opinions Published, 1968-1971, 61 Ky. L.J. 512 (1973).

Kentucky Law Survey, Whiteside, Taxation, 64 Ky. L.J. 371 (1975-76).

Kentucky Law Survey, Whiteside, Taxation, 71 Ky. L.J. 479 (1982-83).

§ 172A. Assessment of farm land according to value for farm purposes.

Notwithstanding contrary provisions of Sections 171, 172, or 174 of this Constitution —

The General Assembly shall provide by general law for the assessment for ad valorem tax purposes of agricultural and horticultural land according to the land’s value for agricultural or horticultural use. The General Assembly may provide that any change in land use from agricultural or horticultural to another use shall require the levy of an additional tax not to exceed the additional amount that would have been owing had the land been assessed under Section 172 of this Constitution for the current year and the two next preceding years.

The General Assembly may provide for reasonable differences in the rate of ad valorem taxation within different areas of the same taxing districts on that class of property which includes the surface of the land. Those differences shall relate directly to differences between non-revenue-producing governmental services and benefits giving land urban character which are furnished in one or several areas in contrast to other areas of the taxing district.

History. Proposed by Acts 1968, ch. 103, ratified November, 1969.

NOTES TO DECISIONS

1.Application.

Since this section specifically contemplates different rates of taxation when the land affected is given an “urban character” by the different governmental services which are furnished, and since there are no words or phrases which restrict the application of the section to farm land, it can be concluded that this section applies to urban land as well as agricultural land. Louisville v. Fiscal Court of Jefferson County, 623 S.W.2d 219, 1981 Ky. LEXIS 282 ( Ky. 1981 ).

2.Construction.

This section and §§ 171 and 172 of the Constitution are to be interpreted together. Dolan v. Land, 667 S.W.2d 684, 1984 Ky. LEXIS 211 ( Ky. 1984 ).

3.Territorial Scope of Tax.

A plan for merger of city and county government which divides the county into three (3) taxing districts and authorizes ad valorem taxation at different rates in each district commensurate with government services provided in each district does not violate this section of the Constitution. Holsclaw v. Stephens, 507 S.W.2d 462, 1973 Ky. LEXIS 3 ( Ky. 1973 ).

4.Tax Rates.

Under this section and KRS 82.085 , a differential in tax rates between service districts in an urban-county is legitimate insofar as it applies to real estate but is unconstitutional and void as applied to personal property and severed mineral interests. Jacobs v. Lexington-Fayette Urban County Government, 560 S.W.2d 10, 1977 Ky. LEXIS 564 ( Ky. 1977 ).

Although this section and KRS 82.085 permit “variable” tax rates, there is an inherent danger in unrestricted differences in such rates; this section should not be viewed as permitting a taxing authority to cease providing or to agree not to provide governmental services in selective areas where it has customarily provided them and, by reason thereof, to create a different tax rate, since such a scheme would open the doorway for individuals or groups to barter with the taxing authority for a favorable tax rate for their particular property, with the result that the more prominent and influential citizens may fare better than others. Louisville v. Fiscal Court of Jefferson County, 623 S.W.2d 219, 1981 Ky. LEXIS 282 ( Ky. 1981 ).

Where a city and an adjoining area that was to be annexed entered into a pretrial agreement whereby the adjoining area agreed to be annexed in return for the city’s agreement to place the annexed area in a special taxing and service district, with a reduced ad valorem real estate tax rate over a number of years, but where the record was silent as to the availability of city services to the area, where there was no basis set out in the agreement for the difference in services authorized or not authorized and where there was no factual basis set forth in the agreement for the tax rates agreed upon, the agreement was invalid, since the difference in tax rates cannot be shown to be “reasonable” where no factual basis is set out for the agreed upon rates. Louisville v. Fiscal Court of Jefferson County, 623 S.W.2d 219, 1981 Ky. LEXIS 282 ( Ky. 1981 ).

5.Uniformity of Assessment.

Where the proof indicated only that 12 similar farms in the general area of taxpayers’ farm were assessed on an average of about 61 percent of their fair cash value of 1974, the assessments ranging from approximately 39 percent to 71 percent of fair cash value, and where there were certainly more than 12 “similar” farms in that county, no showing was made of a uniform or systematic proportionate assessment of the farm land in the particular district in which taxpayers’ farm was located. Walters v. Kentucky Board of Tax Appeals, 569 S.W.2d 170, 1977 Ky. App. LEXIS 926 (Ky. Ct. App. 1977).

Although property valuation administrators throughout the state do not need to use the same method of arriving at an assessment, whatever method is used must result in a uniform standard of assessment whether the property is agricultural or residential since Const., § 174 says that all property shall be taxed in proportion to its value. Dolan v. Land, 667 S.W.2d 684, 1984 Ky. LEXIS 211 ( Ky. 1984 ).

Method used by property valuation administrator which resulted in farm property being assigned a value based on general averages rather than an individual and specific value related to the agricultural purpose for which it was used was constitutionally unsound since the method even though it was the same method used for all agricultural land in the county, failed to value the property on the basis of uniform standards and did not result in an effective tax which was equally burdensome on all farm taxpayers. Dolan v. Land, 667 S.W.2d 684, 1984 Ky. LEXIS 211 ( Ky. 1984 ).

Section 172 of the Constitution is subject to the same requirements of uniformity as this section because both are constitutional provisions for assessing property. Dolan v. Land, 667 S.W.2d 684, 1984 Ky. LEXIS 211 ( Ky. 1984 ).

There is a violation of constitutional rights if the effective tax rate is not uniform and thereby results in an unequal tax burden; any method of assessment which fails to follow the constitutional directions and accordingly does not produce an assessed value based on agricultural use of each individual parcel, violates the Constitution. Dolan v. Land, 667 S.W.2d 684, 1984 Ky. LEXIS 211 ( Ky. 1984 ).

The burden on the Department of Revenue (now Revenue Cabinet) is simply to assure that all property in this state is assessed fairly, according to its value; if this is done, the tax burden will be equally shared. Dolan v. Land, 667 S.W.2d 684, 1984 Ky. LEXIS 211 ( Ky. 1984 ).

Where assessments of agricultural land for one year were unconstitutional, the correct remedy was the use of the previous year’s assessments for the subject property for the later tax year; the property valuation administrator was not entitled to belatedly assess the subject property for the later year’s taxes since KRS 132.220(1) clearly states that property shall be evaluated as of January 1. Dolan v. Land, 667 S.W.2d 684, 1984 Ky. LEXIS 211 ( Ky. 1984 ).

The use of mathematical formula to arrive at a result may be proper as long as the procedure adopted does not produce an unfair or unequal valuation. Dolan v. Land, 667 S.W.2d 684, 1984 Ky. LEXIS 211 ( Ky. 1984 ).

KRS 132.010(9), (10) and 132.450(2)(a) do not violate the Constitution of Kentucky; dwelling houses are to be assessed at fair cash value, and the income and acreage standards to qualify for “agricultural land” or “horticultural land” are not unreasonable. Dolan v. Land, 667 S.W.2d 684, 1984 Ky. LEXIS 211 ( Ky. 1984 ).

Subdivision (4)(c) of KRS 140.300 did not violate Const., §§ 2, 171, and this section because each class is taxed equally. Revenue Cabinet Commonwealth v. Estate of Marshall, 746 S.W.2d 408, 1988 Ky. App. LEXIS 39 (Ky. Ct. App. 1988).

6.Compliance with Statutes.

Even accepting that the agricultural or horticultural value of their farm was less than its fair market value, where the record did not indicate that taxpayers complied with the requirements of KRS 132.450(2)(a) by filing the necessary application for agricultural or horticultural valuation with the administrator on or before April 1, the Board of Tax Appeals correctly concluded that there was no showing of the filing of a timely application for agricultural valuation. Walters v. Kentucky Board of Tax Appeals, 569 S.W.2d 170, 1977 Ky. App. LEXIS 926 (Ky. Ct. App. 1977).

7.Property Value.

The income-producing capacity of land is not the only factor to be considered in establishing the value of the property. Dolan v. Land, 667 S.W.2d 684, 1984 Ky. LEXIS 211 ( Ky. 1984 ).

8.Ad Valorem.

The term “ad valorem” literally means “according to the worth,” and is used in taxation to designate an assessment of taxes against property at a certain rate upon its value. Revenue Cabinet v. Estate of Field, 864 S.W.2d 930, 1993 Ky. App. LEXIS 147 (Ky. Ct. App. 1993).

9.Inheritance Taxes.

Court of Appeals reversed a Circuit Court judgment which held that the portion of KRS 140.310(1) which limits entitlement to an agricultural assessment to “qualified persons” is invalid because it conflicts with this section. Ad valorem taxes are clearly distinguishable from inheritance taxes: the former are direct taxes on property based upon the value of the property, while the latter are taxes imposed not on property, but upon the privilege or right of succession thereto. Because the case involved an inheritance, or exise tax, this section, which limits the applicability of Const., §§ 171, 172 and 174 and which deals exclusively with ad valorem taxes, did not apply. Revenue Cabinet v. Estate of Field, 864 S.W.2d 930, 1993 Ky. App. LEXIS 147 (Ky. Ct. App. 1993).

Cited:

Legislative Research Com. by Prather v. Brown, 664 S.W.2d 907, 1984 Ky. LEXIS 300 ( Ky. 1984 ); Barrett v. Reynolds, 817 S.W.2d 439, 1991 Ky. LEXIS 146 ( Ky. 1991 ).

Opinions of Attorney General.

If a 4th class city were to levy no city ad valorem tax in newly annexed territory, such inaction would violate this section. OAG 75-111 .

A county conservation district, which assists individual landowners with the development and implementation of a resource conservation plan for a unit of land, is required to allow Department of Revenue (now Revenue Cabinet) representatives access, on a confidential basis, to individual resource conservation plans upon request. OAG 76-272 .

It would appear from an examination of the constitutional provisions (Ky. Const., § 172A) and the implementing statute (KRS 67.650 ) that where the voters in the district created are not receiving the services provided by the county government they may petition the fiscal court to reduce such rate but there is no provision for the fiscal court to act in accordance with such petition and it could very well ignore the petition and continue to levy the rate in effect. OAG 78-580 .

Where subsection (2)(b) of KRS 132.450 provides for an exclusion for land under “a zoning classification other than for agricultural or horticultural purposes,” such language is constitutionally consistent with this section, since such zoning classification is a change in the use of property as provided for under this section. OAG 81-58 .

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Whiteside and Buechel, Kentucky Taxation, 65 Ky. L.J. 425 (1976-77).

Kentucky Law Survey, Whiteside, Taxation, 71 Ky. L.J. 479 (1982-83).

§ 172B. Property assessment or reassessment moratoriums.

Notwithstanding contrary provisions of Sections 170, 171, 172, or 174 of this Constitution, the General Assembly may provide by general law that the governing bodies of county, municipal, and urban-county governments may declare property assessment or reassessment moratoriums for qualifying units of real property for the purpose of encouraging the repair, rehabilitation, or restoration of existing improvements thereon. Prior to the enactment of any property assessment or reassessment moratorium program, the General Assembly shall provide or direct the local governing authority to provide property qualification standards for participation in the program and a limitation on the duration of any assessment or reassessment moratorium. In no instance shall any such moratorium extend beyond five years for any particular unit of real property and improvements thereon.

History. Proposed by Acts 1980, ch. 113, § 2, ratified November, 1981.

Compiler’s Notes.

The General Assembly in 1980 (Acts 1980, ch. 113, § 2) proposed an amendment to the Constitution by adding this section thereto, which amendment was ratified by the voters at the regular election in November, 1981.

Opinions of Attorney General.

Property assessment or reassessment moratorium program established by a particular local taxing authority will be applicable only to the assessments or reassessments of qualified property for the taxing authority establishing the program and it cannot limit the assessments or reassessments of property for state ad valorem tax purposes. OAG 82-381 .

The assessments of qualified property for the ad valorem tax levied by the state and those local governments which have not established moratorium programs pursuant to Acts 1982, ch. 327 must be made in accordance with the provisions of Const., §§ 172 and 174, requiring assessment at fair cash value, and consequently, qualified property will have one assessment for those local governments which have established a moratorium program and another assessment for the state and those local taxing authorities which have not established such moratorium programs. OAG 82-381 .

The qualification standards of KRS 99.595 and 99.605 as enumerated by the General Assembly pursuant to the authority given it by this section are exclusive, and place no minimum on the value of the improvements. OAG 82-381 .

§ 173. Officer receiving profit on public funds guilty of felony.

The receiving, directly or indirectly, by any officer of the Commonwealth, or of any county, city or town, or member or officer of the General Assembly, of any interest, profit or perquisites arising from the use or loan of public funds in his hands, or moneys to be raised through his agency for State, city, town, district, or county purposes shall be deemed a felony. Said offense shall be punished as may be prescribed by law, a part of which punishment shall be disqualification to hold office.

NOTES TO DECISIONS

1.Constitution.

This section is implemented by KRS 61.190 (now repealed). A. & W. Equipment Co. v. Carroll, 377 S.W.2d 895, 1964 Ky. LEXIS 509 ( Ky. 1964 ).

2.Jailer.

County jailer who relied on the advice of counsel, the county attorney, and an informal opinion of the Attorney General of Kentucky in operating commissary within the detention center, the existence of which contributed both to the security of the detention center and to the benefit of the county as a whole in terms of its cost effectiveness, and who received an amount of profit from the commissary which was neither unreasonable nor excessive, nevertheless violated this section as the commissary was operated by public employees on public property. The trial court acted correctly in ruling that jailer was prohibited from operating such commissary for profit, but erred in awarding a monetary judgment against him, as he relied on the advice of his own counsel, the county attorney and the Attorney General of Kentucky, as well as the advice and acquiescence of the county government officials, to his detriment, so that such officials were estopped from seeking any monetary damages from him. Buchignani v. Lexington-Fayette Urban County Government, 632 S.W.2d 465, 1982 Ky. App. LEXIS 212 (Ky. Ct. App. 1982).

Cited:

Western U. Tel. Co. v. Norman, 77 F. 13, 1896 U.S. App. LEXIS 2937 (6th Cir. 1896); Ragland v. Anderson, 125 Ky. 141 , 30 Ky. L. Rptr. 1199 , 100 S.W. 865, 1907 Ky. LEXIS 273 ( Ky. 1907 ); Denny v. Thompson, 236 Ky. 714 , 33 S.W.2d 670, 1930 Ky. LEXIS 819 ( Ky. 1930 ); Bard v. Board of Drainage Comm’rs, 274 Ky. 491 , 118 S.W.2d 1013, 1938 Ky. LEXIS 292 ( Ky. 1938 ); George v. Scent, 346 S.W.2d 784, 1961 Ky. LEXIS 341 ( Ky. 1961 ).

Opinions of Attorney General.

The Owensboro city utility commission created and established under KRS 96.520 and 96.530 , not being an agency of the city, county or state, this section, KRS 61.190 (now repealed), relating to receiving profits on public funds by public officers and KRS 61.260 relating to second-class city officers interested in contracts with city are not applicable to city utility commissioners. OAG 75-165 .

Although a board of education may deposit federal “head start” program moneys into a negotiable order of withdrawal (NOW) bank account drawing interest without violating this section or KRS 61.190 (now repealed), it would be better practice not to do so since the interest gained by the board would have to be paid to the federal government by federal regulation. OAG 81-92 .

The authority of a Cabinet Secretary “to accept and expend funds from any source, whether public or private, in support of the duties and responsibilities of the related cabinet” under KRS 12.270(2), is subject to this section and KRS 61.190 (now repealed). OAG 81-385 .

A jailer is prohibited from operating any business in connection with the jail for profit. OAG 82-335 .

Where county did not provide a cook or cooking equipment for its jail, the fiscal court and the jailer could establish a “no profit” figure for the food prepared for jail prisoners in the restaurant operated by the jailer so that, in essence, the situation would be equivalent to the jailer’s preparing the food in the jail at no profit. OAG 82-335 .

This section, KRS 61.190 (now repealed) and 45A.340 , and the common law rules that apply to conflicts of interest are applicable to anyone holding the office of Governor. OAG 87-65 .

Research References and Practice Aids

Cross-References.

Penalties for receiving profit on public funds, KRS 61.190 (now repealed) to 61.280 .

§ 174. Property to be taxed according to value, whether corporate or individual — Income, license, and franchise taxes.

All property, whether owned by natural persons or corporations, shall be taxed in proportion to its value, unless exempted by this Constitution; and all corporate property shall pay the same rate of taxation paid by individual property. Nothing in this Constitution shall be construed to prevent the General Assembly from providing for taxation based on income, licenses or franchises.

NOTES TO DECISIONS

Cross-References

Cross-References

See notes to Const., § 171.

1.Construction.

This section expressly reserves the power to provide for taxation based on income licenses or franchises and provides that all property shall be taxed in proportion to its value. Brown-Foreman Co. v. Commonwealth, 125 Ky. 402 , 101 S.W. 321, 30 Ky. L. Rptr. 793 , 1907 Ky. LEXIS 285 ( Ky. 1907 ), aff'd, 217 U.S. 563, 30 S. Ct. 578, 54 L. Ed. 883, 1910 U.S. LEXIS 1984 (U.S. 1910).

The provisions for uniformity and equality found in this section and Const., § 171 are not vitiated by Const., § 182 for that section relates merely to the mode of assessment and collection. Greene v. Louisville & I. R. Co., 244 U.S. 499, 37 S. Ct. 673, 61 L. Ed. 1280, 1917 U.S. LEXIS 1660 (U.S. 1917), overruled in part, Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 104 S. Ct. 900, 79 L. Ed. 2d 67, 1984 U.S. LEXIS 4 (U.S. 1984).

The provisions of this section as to the power to tax based on income, licenses or franchises are not words of limitation and do not restrict taxation to only one of these sources. Reynolds Metal Co. v. Martin, 269 Ky. 378 , 107 S.W.2d 251, 1937 Ky. LEXIS 604 ( Ky. 1937 ).

2.Application.

The provisions of this section and Const., § 171 apply with equal force to all taxes levied and collected. Board of Education v. Sea, 167 Ky. 772 , 181 S.W. 670, 1916 Ky. LEXIS 492 ( Ky. 1916 ).

3.Effect on Prior Law.

A rule exempting agricultural land located within city limits from municipal taxation was abrogated by this section. Ryan v. Central City, 54 S.W. 2, 21 Ky. L. Rptr. 1070 , 1899 Ky. LEXIS 616 (Ky. Ct. App. 1899).

Former law exempting from taxation a bridge within city limits but beyond the population of the city was abrogated by this section. Louisville Bridge Co. v. Louisville, 58 S.W. 598, 22 Ky. L. Rptr. 703 , 1900 Ky. LEXIS 272 (Ky. Ct. App. 1900).

The enactment of this section changed the rule in regard to the liability for taxes of property in cities and towns which did not enjoy the benefits of municipal government and such previously exempt property may now be subject to taxation. First Nat'l Bank v. Covington, 129 F. 792, 1903 U.S. App. LEXIS 5251 (C.C.D. Ky. 1903 ), aff'd, 198 U.S. 100, 25 S. Ct. 562, 49 L. Ed. 963, 1905 U.S. LEXIS 1157 (U.S. 1905).

4.Fair Cash Value.

Under this section and Const., § 172, it is made an imperative duty to assess all kinds of property, including shares of stock, in corporations at its actual value. Hager v. Citizens' Nat'l Bank, 127 Ky. 192 , 105 S.W. 403, 32 Ky. L. Rptr. 95 , 1907 Ky. LEXIS 130 ( Ky. 1907 ), dismissed, First Nat'l Bank v. Hagar, 212 U.S. 585, 29 S. Ct. 681, 53 L. Ed. 661, 1908 U.S. LEXIS 1633 (U.S. 1908).

It is a well-established custom in the Commonwealth to assess property excluding intangible personalty at less than its fair cash value. Luckett v. Tennessee Gas Transmission Co., 331 S.W.2d 879, 1960 Ky. LEXIS 129 ( Ky. 1960 ). But see Russman v. Luckett, 391 S.W.2d 694, 1965 Ky. LEXIS 322 ( Ky. 1965 ).

It is a well-established and time-honored custom in the Commonwealth to assess real property at considerably less than its fair cash value and, since the taxing authorities have thereby systematically ignored the demands of the Constitution and the statutes that all property be assessed for tax purposes at its fair cash value, and where it is shown that a particular property has been assessed above the usual value for assessment of similar properties, although still not above the fair cash value, the court must require that the assessment be adjusted. Luckett v. Tennessee Gas Transmission Co., 331 S.W.2d 879, 1960 Ky. LEXIS 129 ( Ky. 1960 ). See Russman v. Luckett, 391 S.W.2d 694, 1965 Ky. LEXIS 322 ( Ky. 1965 ).

5.Assessments.

The schedule of property and values is not the assessment, but evidence from which assessment is made. Kentucky River Coal Corp. v. Knott County, 245 Ky. 822 , 54 S.W.2d 377, 1932 Ky. LEXIS 687 ( Ky. 1932 ).

6.Mineral Land.

Mineral land should be taxed at its present value rather than its ultimate productive worth. Kentucky River Coal Corp. v. Knott County, 245 Ky. 822 , 54 S.W.2d 377, 1932 Ky. LEXIS 687 ( Ky. 1932 ).

7.Outstanding Debt.

An outstanding debt may not be deducted from the value of any property in assessing that property for taxation. Henderson Bridge Co. v. Commonwealth, 99 Ky. 623 , 31 S.W. 486, 17 Ky. L. Rptr. 389 , 1895 Ky. LEXIS 244 ( Ky. 1895 ), aff'd, 166 U.S. 150, 17 S. Ct. 532, 41 L. Ed. 953, 1897 U.S. LEXIS 2016 (U.S. 1897).

8.License Tax.

A city has the right to require the payment of a license tax in addition to an ad valorem tax and a company paying such tax was not allowed a credit for such payment on its ad valorem tax. German Washington Mut. Fire Ins. Co. v. Louisville, 117 Ky. 593 , 78 S.W. 472, 80 S.W. 154, 25 Ky. L. Rptr. 1697 , 25 Ky. L. Rptr. 2097 , 1904 Ky. LEXIS 224 ( Ky. 1904 ).

9.Bank Deposits.

Banks are not required to pay taxes on the money deposited with them or assets which represent it, but the depositors are required to pay the tax on such assets. Commonwealth v. Bank of Commerce, 118 Ky. 547 , 81 S.W. 679, 26 Ky. L. Rptr. 407 , 1904 Ky. LEXIS 71 ( Ky. 1904 ).

10.Trademarks.

A trademark used in the sale of a commodity is not property as that term is used in this section. Commonwealth v. Kentucky Distilleries & Warehouse Co., 132 Ky. 521 , 116 S.W. 766, 1909 Ky. LEXIS 130 ( Ky. 1909 ).

11.Bridges.

A railroad bridge within a city is subject to city taxation, though it derives no benefit from the city government. Louisville Bridge Co. v. Louisville, 65 S.W. 814, 23 Ky. L. Rptr. 1655 , 1901 Ky. LEXIS 398 (Ky. Ct. App. 1901).

12.Franchises.

Under this section the legislature may give a municipal corporation authority to collect an ad valorem tax on franchises. South Covington & C. S. R. Co. v. Bellevue, 105 Ky. 283 , 49 S.W. 23, 20 Ky. L. Rptr. 1184 , 1899 Ky. LEXIS 212 ( Ky. 1899 ).

The General Assembly may declare what corporation or companies possess franchises subject to taxation. Providence Banking Co. v. Webster County, 108 Ky. 527 , 57 S.W. 14, 22 Ky. L. Rptr. 214 , 1900 Ky. LEXIS 82 ( Ky. 1900 ).

This section authorizes the General Assembly to provide for a tax on franchises. Henderson Bridge Co. v. Negley, 63 S.W. 989, 23 Ky. L. Rptr. 746 (1901).

The state may impose a tax upon the franchise of a foreign corporation, franchise being construed as the privilege of doing business within the state, and not the primary franchise of being a corporation. Greene v. Kentenia Corp., 175 Ky. 661 , 194 S.W. 820, 1917 Ky. LEXIS 371 ( Ky. 1917 ). See Baltimore & O. S. W. R. Co. v. Commonwealth, 177 Ky. 566 , 198 S.W. 35, 1917 Ky. LEXIS 655 ( Ky. 1917 ).

13.— Exemptions.

Under this section a town or city may not make a contract exempting a corporation from a tax on its franchise. South Covington & C. S. R. Co. v. Bellevue, 105 Ky. 283 , 49 S.W. 23, 20 Ky. L. Rptr. 1184 , 1899 Ky. LEXIS 212 ( Ky. 1899 ).

14.— Assessment.

In assessing the value of a franchise, no deduction may be allowed for the debts of the corporation or the operating costs. Paducah S. R. Co. v. McCracken County, 105 Ky. 472 , 49 S.W. 178, 20 Ky. L. Rptr. 1294 , 1899 Ky. LEXIS 222 ( Ky. 1899 ).

In assessing the value of a corporation’s franchise, it is proper to consider its net income. Henderson Bridge Co. v. Negley, 63 S.W. 989, 23 Ky. L. Rptr. 746 (1901).

Tangible property of a franchise taxpayer cannot be assessed at any higher rate than that at which similar properties of the same class of other taxpayers are generally assessed. Luckett v. Texas Eastern Transmission Corp., 336 S.W.2d 567, 1960 Ky. LEXIS 338 ( Ky. 1960 ).

Fire protection service charge, levied by city for purpose of financing city’s fire protection services on property within the city, whereby various types of property were assessed at a flat rate, was not an ad valorem tax or a special assessment and was not authorized by statute or the Constitution and was therefore invalid. Barber v. Commissioner of Revenue, 674 S.W.2d 18, 1984 Ky. App. LEXIS 467 (Ky. Ct. App. 1984).

15.— Occupational Tax.

Where a franchise tax has been authorized by statute and collected, the city cannot in addition levy an additional tax as a revenue measure. Cumberland Tel. & Tel. Co. v. Hopkins, 121 Ky. 850 , 90 S.W. 594, 28 Ky. L. Rptr. 846 , 1906 Ky. LEXIS 268 ( Ky. 1906 ).

16.— Corporate Property.

The provisions of this section do not preclude intangible property which is owned by a corporation from being taxed. Western U. Tel. Co. v. Norman, 77 F. 13, 1896 U.S. App. LEXIS 2937 (C.C.D. Ky.), dismissed, 17 S. Ct. 1002, 41 L. Ed. 1182 (U.S. 1896).

The fact that a corporation is a stockholder does not make the stock subject to a tax where an individual owner would not be assessable. Atlantic C. L. R. Co. v. Commonwealth, 302 Ky. 36 , 193 S.W.2d 749, 1946 Ky. LEXIS 597 ( Ky. 1946 ).

17.Statutes.

The acceptance of a revenue statute imposing a tax on the capital stock of a bank and requiring the bank’s consent to the levying of the tax did not constitute a contract whose obligation the state could not impair, and hence additional taxes could be imposed under this section and Const., § 175. Deposit Bank of Owensboro v. Daviess County, 102 Ky. 174 , 39 S.W. 1030, 19 Ky. L. Rptr. 248 , 1897 Ky. LEXIS 57 ( Ky. 1897 ), aff'd, 173 U.S. 636, 19 S. Ct. 530, 43 L. Ed. 840, 1899 U.S. LEXIS 1467 (U.S. 1899), aff'd, 173 U.S. 663, 19 S. Ct. 875, 43 L. Ed. 850, 1899 U.S. LEXIS 1469 (U.S. 1899), aff'd, 173 U.S. 662, 19 S. Ct. 875, 43 L. Ed. 850, 1899 U.S. LEXIS 1468 (U.S. 1899).

18.— Valid.

A statute requiring foreign building and loan associations doing business in the state to pay a state tax of two percent (2%) of their gross receipts, a franchise tax, does not violate the provisions of this section. Southern Bldg. & Loan Ass'n v. Norman, 98 Ky. 294 , 32 S.W. 952, 17 Ky. L. Rptr. 887 , 1895 Ky. LEXIS 55 ( Ky. 1895 ).

Acts allowing assessment of distilled spirits by the state board of equalization do not violate this section. Commonwealth ex rel. Armstrong v. E. H. Taylor Jr. Co., 101 Ky. 325 , 41 S.W. 11 ( Ky. 1897 ). See Jetts Bros. Distilling Co. v. Carrollton, 178 Ky. 561 , 199 S.W. 37, 1917 Ky. LEXIS 758 ( Ky. 1917 ), writ of error dismissed, 252 U.S. 1, 40 S. Ct. 255, 64 L. Ed. 421, 1920 U.S. LEXIS 1654 (U.S. 1920).

A statute providing that railroad corporations and corporations of various other kinds shall pay a state franchise tax, and a local tax thereon to the various counties, cities, and towns, and providing that the state board of valuation and assessment shall fix the value of the franchise for that purpose, is constitutional. Southern Ry. in Kentucky v. Coulter, 113 Ky. 657 , 68 S.W. 873, 24 Ky. L. Rptr. 203 , 1902 Ky. LEXIS 96 ( Ky. 1902 ).

A statute authorizing a license tax on real estate agents and brokers, financial agents and brokers, house agents, rental agents, loan and brokerage companies and an ordinance levying a license tax on real estate agents which are defined to include all the classes included in the statute are not invalid even though the occupations are grouped under a single head and are subject to a single tax. Covington v. Herzog, 116 Ky. 725 , 76 S.W. 538, 25 Ky. L. Rptr. 938 , 1903 Ky. LEXIS 236 ( Ky. 1903 ).

A statute providing that a tobacco factory shall pay a license tax of $1.00 on the marketable value of each $1,000 of products up to $100,000, and at the rate of 50 cents thereafter, is not a property tax but a license tax, and is constitutional. Strater Bros. Tobacco Co. v. Commonwealth, 117 Ky. 604 , 78 S.W. 871, 25 Ky. L. Rptr. 1717 , 1904 Ky. LEXIS 232 ( Ky. 1904 ).

Under KRS 136.120 , the tax on the franchise of a gas company was a property tax on intangible property and not a privilege tax. Commonwealth ex rel. Auditor's Agent v. Louisville Gas Co., 135 Ky. 324 , 122 S.W. 164, 1909 Ky. LEXIS 291 ( Ky. 1909 ). See Louisville & N. R. Co. v. Henderson, 154 Ky. 575 , 157 S.W. 1105, 1913 Ky. LEXIS 120 ( Ky. 1913 ).

A statute imposing a franchise tax on railroad corporations and enumerated public service corporations is not invalid on the ground that the intangible properties are not assessed in proportion to their values. Commonwealth by Anderson v. Southern Pac. Co., 150 Ky. 97 , 149 S.W. 1105, 1912 Ky. LEXIS 821 ( Ky. 1912 ), overruled, Commonwealth v. Kentucky Heating Co., 176 Ky. 35 , 195 S.W. 459, 1917 Ky. LEXIS 40 ( Ky. 1917 ).

A statute imposing a tax on dogs to create a fund to compensate owners of sheep which are killed by dogs is a police regulation rather than a revenue measure and, therefore, does not violate this section or Const., § 172. McGlone v. Womack, 129 Ky. 274 , 111 S.W. 688, 33 Ky. L. Rptr. 811 , 33 Ky. L. Rptr. 864 , 1908 Ky. LEXIS 166 (Kan. Ct. App. 1908). See Shadoan v. Barnett, 217 Ky. 205 , 289 S.W. 204, 1926 Ky. LEXIS 34 ( Ky. 1926 ).

A 50-cent fee imposed on farmers, selling their own produce in city, by provision exempting them from license tax on wholesale dealers imposed by ordinance was not an excise tax or privilege tax, but an inspection fee validly levied under the police power to aid in enforcement of ordinance. Hartman v. Louisville, 282 Ky. 487 , 138 S.W.2d 948, 1940 Ky. LEXIS 183 ( Ky. 1940 ).

KRS 132.010(9), (10) and 132.450(2)(a) do not violate the Constitution of Kentucky; dwelling houses are to be assessed at fair cash value, and the income and acreage standards to qualify for “agricultural land” or “horticultural land” are not unreasonable. Dolan v. Land, 667 S.W.2d 684, 1984 Ky. LEXIS 211 ( Ky. 1984 ).

19.— Invalid.

A statute imposing a tax of $10.00 on oil depots wherein petroleum or other oils are stored in bulk or tank, is not a valid property tax under the provision of this section requiring all property to be taxed in proportion to its value. Standard Oil Co. v. Commonwealth, 119 Ky. 75 , 82 S.W. 1020, 26 Ky. L. Rptr. 985 , 1904 Ky. LEXIS 146 ( Ky. 1904 ).

The Tax Increment Act, KRS 99.750 to 99.770 (repealed), which permits various taxing districts to release increments expected to be derived by such districts as a result of the undertaking of a renewal or redevelopment project by an urban renewal community agency or authority to be used as a special fund for bond payments on the project is invalid since ad valorem taxes cannot be pledged as the source of bond payments under a special fund as such tax is a mandatory tax and any obligation that is payable from it is a debt within the meaning of Const., § 157. Miller v. Covington Development Auth., 539 S.W.2d 1, 1976 Ky. LEXIS 40 ( Ky. 1976 ).

In Kentucky, local real property taxes were required to be ad valorem, that is, based on assessed value; since a flat rate tax levied by a city was a specific or per unit tax and not based on value, it was invalid and unconstitutional. Class action relief was a proper remedy for aggrieved taxpayers. City of Bromley v. Smith, 149 S.W.3d 403, 2004 Ky. LEXIS 269 ( Ky. 2004 ).

20.Invalid Exemptions.

Where a city modified its contract with a gas company and agreed to pay taxes levied against the company, the agreement was invalid since in effect it amounted to an attempt by the city to exempt property from taxation. Bd. of Councilmen v. Capital Gas & Elec. Light Co., 96 S.W. 870, 29 Ky. L. Rptr. 1114 , 1906 Ky. LEXIS 283 (Ky. Ct. App. 1906).

Despite the leaseholders’ proof that the leased facilities and the uses to which they were put were necessary to the establishment and maintenance of a modern airport, it did not follow that the leasehold interests were tax-exempt because out of the total bundle of rights that represented the ownership of real estate those rights encompassed within the leasehold estates were not owned by the airport, but by the lessees, and if the statute were construed as an effort to exempt those rights it would contravene this section of the Kentucky Constitution, which provides that all property shall be taxed in proportion to its value “unless exempted by this Constitution.” Standard Oil Co. v. Boone County Board of Supervisors, 562 S.W.2d 83, 1978 Ky. LEXIS 319 ( Ky. 1978 ).

No agency of government can validly exempt from taxation any property interest except by express constitutional authority. Standard Oil Co. v. Boone County Board of Supervisors, 562 S.W.2d 83, 1978 Ky. LEXIS 319 ( Ky. 1978 ).

It was error to adjudge individuals’ leasehold interests in airport property to be used for building and maintaining an airplane hangar exempt from taxation because no profit was earned in connection with such property. No exemption is provided for exempt property held by nonprofit natural persons, associations or partnerships. Pike County Bd. of Assessment Appeals & Revenue Cabinet v. Friend, 932 S.W.2d 378, 1996 Ky. App. LEXIS 110 (Ky. Ct. App. 1996).

21.Valuation.

The burden on the Department of Revenue (now Revenue Cabinet) is simply to assure that all property in this state is assessed fairly, according to its value; if this is done, the tax burden will be equally shared. Dolan v. Land, 667 S.W.2d 684, 1984 Ky. LEXIS 211 ( Ky. 1984 ).

For ad valorem taxes to be valid, they must be levied in proportion to the value of the property; therefore, fire protection service charge based on a flat rate regardless of the value of the property would be invalid. Barber v. Commissioner of Revenue, 674 S.W.2d 18, 1984 Ky. App. LEXIS 467 (Ky. Ct. App. 1984).

22.— Method.

The use of mathematical formula to arrive at a result may be proper as long as the procedure adopted does not produce an unfair or unequal valuation. Dolan v. Land, 667 S.W.2d 684, 1984 Ky. LEXIS 211 ( Ky. 1984 ).

Although property valuation administrators throughout the state do not need to use the same method of arriving at an assessment, whatever method is used must result in a uniform standard of assessment whether the property is agricultural or residential since this section says that all property shall be taxed in proportion to its value. Dolan v. Land, 667 S.W.2d 684, 1984 Ky. LEXIS 211 ( Ky. 1984 ).

Method used by property valuation administrator which resulted in farm property being assigned a value based on general averages rather than an individual and specific value related to the agricultural purpose for which it was used was constitutionally unsound since the method even though it was the same method used for all agricultural land in the county, failed to value the property on the basis of uniform standards and did not result in an effective tax which was equally burdensome on all farm taxpayers. Dolan v. Land, 667 S.W.2d 684, 1984 Ky. LEXIS 211 ( Ky. 1984 ).

Cited:

Commonwealth use of Franklin County v. Farmerers' Bank of Kentucky, 97 Ky. 590 , 31 S.W. 1013, 17 Ky. L. Rptr. 465 , 1895 Ky. LEXIS 243 ( Ky. 1895 ); Bath County v. Farmers' Bank, 39 S.W. 1115, 19 Ky. L. Rptr. 245 (1897); Commonwealth v. Pearl Laundry Co., 105 Ky. 259 , 49 S.W. 26, 20 Ky. L. Rptr. 1172 , 1899 Ky. LEXIS 213 ( Ky. 1899 ); Scobee v. Bean, 109 Ky. 526 , 59 S.W. 860, 22 Ky. L. Rptr. 1076 , 1900 Ky. LEXIS 237 ( Ky. 1900 ); Board of Councilmen v. Fidelity Trust & Safety-Vault Co., 111 Ky. 667 , 64 S.W. 470, 23 Ky. L. Rptr. 908 , 1901 Ky. LEXIS 236 ( Ky. 1901 ); Broadway Christian Church v. Com. & Trustees Broadway Christian Church, 112 Ky. 448 , 66 S.W. 32, 23 Ky. L. Rptr. 1695 , 1902 Ky. LEXIS 184 (Ky. Ct. App. 1902); Aetna Life Ins. Co. v. Coulter, 115 Ky. 787 , 74 S.W. 1050, 25 Ky. L. Rptr. 193 , 1903 Ky. LEXIS 150 ( Ky. 1903 ); Ragland v. Anderson, 125 Ky. 141 , 100 S.W. 865, 30 Ky. L. Rptr. 1199 , 1907 Ky. LEXIS 273 ( Ky. 1907 ); Bank of Kentucky v. Kentucky, 207 U.S. 258, 28 S. Ct. 82, 52 L. Ed. 197, 1907 U.S. LEXIS 1221 (U.S. 1907); Booth's Ex'r v. Commonwealth, 130 Ky. 88 , 113 S.W. 61, 1908 Ky. LEXIS 247 ( Ky. 1908 ); Commonwealth v. Louisville & N. R. Co., 149 Ky. 829 , 150 S.W. 37, 1912 Ky. LEXIS 732 ( Ky. 1912 ); Louisville & N. R. Co. v. Bosworth, 209 F. 380, 1913 U.S. Dist. LEXIS 1117 (D. Ky. 1913 ); Board of Levee Comm'rs v. Johnson, 178 Ky. 287 , 199 S.W. 8, 1917 Ky. LEXIS 748 ( Ky. 1917 ) ( Ky. 1917 ); J. & A. Freiberg Co. v. Dawson, 274 F. 420, 1920 U.S. Dist. LEXIS 723 (D. Ky. 1920 ); Gray v. Louisville, H. & S. L. R. Co., 201 Ky. 750 , 258 S.W. 309, 1924 Ky. LEXIS 636 ( Ky. 1924 ); Stiglitz v. Schardien, 239 Ky. 799 , 40 S.W.2d 315, 1931 Ky. LEXIS 849 ( Ky. 1931 ); Whitley County v. Hermann, 263 Ky. 440 , 92 S.W.2d 797, 1936 Ky. LEXIS 208 ( Ky. 1936 ); Spahn v. Stewart, 268 Ky. 97 , 103 S.W.2d 651, 1937 Ky. LEXIS 405 ( Ky. 1937 ); Kentucky ex rel. Martin v. Morris Wholesale Liquor Distributing Co., 29 F. Supp. 310, 1939 U.S. Dist. LEXIS 2306 (D. Ky. 1939 ); Fidelity & Columbia Trust Co. v. Reeves, 287 Ky. 522 , 154 S.W.2d 337, 1941 Ky. LEXIS 579 ( Ky. 1941 ); Newman v. Dickson, 305 Ky. 279 , 203 S.W.2d 33, 1947 Ky. LEXIS 783 ( Ky. 1947 ); Department of Revenue v. Cumberland Production Credit Asso., 551 S.W.2d 836, 1977 Ky. App. LEXIS 713 (Ky. Ct. App. 1977); Jacobs v. Lexington-Fayette Urban County Government, 560 S.W.2d 10, 1977 Ky. LEXIS 564 ( Ky. 1977 ); Commissioners of Sinking Fund v. Estate of Doyle, 573 S.W.2d 932, 1978 Ky. App. LEXIS 615 (Ky. Ct. App. 1978); Gillis v. Yount, 748 S.W.2d 357, 1988 Ky. LEXIS 13 ( Ky. 1988 ); St. Ledger v. Revenue Cabinet, 942 S.W.2d 893, 1997 Ky. LEXIS 17 ( Ky. 1997 ).

Opinions of Attorney General.

The reimbursement by a city of a private corporation, constructing a private hospital in the city, for the construction of a portion of sewer line to the hospital along public right of way, in the form of property tax credits to the corporation until completed would be in violation of Const., § 171 and this section requiring uniform and equal tax levies according to classification, Const., § 3 prohibiting exclusive grants except for public service and Const., § 170 as it is not enumerated as exempt under that section. OAG 74-616 .

The assessments of qualified property for the ad valorem tax levied by the state and those local governments which have not established moratorium programs pursuant to Acts 1982, ch. 327 must be made in accordance with the provisions of Const., § 172 and this section, requiring assessment at fair cash value, and consequently, qualified property will have one assessment for those local governments which have established a moratorium program and another assessment for the state and those local taxing authorities which have not established such moratorium programs. OAG 82-381 .

A franchise tax is generally defined as a governmental grant of a special privilege to engage in a particular business; a franchise tax may be measured by a percentage of the gross receipts or profits of a business. OAG 83-233 .

KRS 136.1873 , 136.1875 , and 136.1877 do not subject any property to taxation because the constitution has already subjected all property in the state to taxation with a few limited exceptions. OAG 92-71 .

There is nothing in KRS 136.1873 , 136.1875 , or 136.1877 that would exempt “the occasional, transient motorcoach, charter, or tour bus operation” from the assessment procedure set out in KRS 13.1873, nor is there anything unconstitutional in this procedure; it is simply an attempt by the state to insure compliance with the constitutional directive that all property be taxed. OAG 92-71 .

Research References and Practice Aids

Cross-References.

Corporation taxes, KRS ch. 136.

Income taxes, KRS ch. 141.

License and franchise taxes of counties and cities, Const., § 181.

License taxes, KRS ch. 137.

Journal of Mineral Law & Policy.

Comments, Constitutional Validity of the Kentucky Unmined Coal Tax: Gillis v. Yount, 4 J.M.L. & P. 159 (1988).

Kentucky Bench & Bar.

Tobergte, The Impact of Kentucky’s Present Constitution Upon Business Growth & Development, Volume 51, No. 3, Summer 1987 Ky. Bench & B. 21.

§ 175. Power to tax property not to be surrendered.

The power to tax property shall not be surrendered or suspended by any contract or grant to which the Commonwealth shall be a party.

NOTES TO DECISIONS

1.Construction.

This section means that the Commonwealth shall not renounce for any purpose its power to tax property located on land over which it still retains sovereignty. Hardin County Board of Supervisors v. Kentucky Limousines, 293 S.W.2d 239, 1956 Ky. LEXIS 61 ( Ky. 1956 ).

2.Effect on Prior Law.

The acceptance of a revenue statute imposing a tax on the capital stock of a bank and requiring the bank’s consent to the levying of the tax did not constitute a contract whose obligation the state could not impair, and hence additional taxes could be imposed under this section and Const., § 174. Deposit Bank of Owensboro v. Daviess County, 102 Ky. 174 , 39 S.W. 1030, 19 Ky. L. Rptr. 248 , 1897 Ky. LEXIS 57 ( Ky. 1897 ), aff'd, 173 U.S. 636, 19 S. Ct. 530, 43 L. Ed. 840, 1899 U.S. LEXIS 1467 (U.S. 1899), aff'd, 173 U.S. 663, 19 S. Ct. 875, 43 L. Ed. 850, 1899 U.S. LEXIS 1469 (U.S. 1899), aff'd, 173 U.S. 662, 19 S. Ct. 875, 43 L. Ed. 850, 1899 U.S. LEXIS 1468 (U.S. 1899).

3.Exemptions.

Exemption of the property and bonds of municipal housing commissions from taxation does not violate this section. Webster v. Frankfort Housing Com., 293 Ky. 114 , 168 S.W.2d 344, 1943 Ky. LEXIS 559 ( Ky. 1943 ).

4.Jurisdiction.

In ceding land to the United States for the purpose of establishing a federal military installation the Commonwealth surrenders its sovereignty thereof including all its rights and jurisdiction and could not, therefore, assess and levy ad valorem taxes upon property of private companies within such military reservation. Hardin County Board of Supervisors v. Kentucky Limousines, 293 S.W.2d 239, 1956 Ky. LEXIS 61 ( Ky. 1956 ).

5.Actions not Explicitly Prohibited.

Ky. Const. §§ 181 and 175 did not explicitly prohibit the sale of tax certificates as the sale of such certificates to third-party purchasers was neither a delegation nor surrender of the Commonwealth's authority to impose or collect taxes. Farmers Nat'l Bank v. Commonwealth, 486 S.W.3d 872, 2015 Ky. App. LEXIS 76 (Ky. Ct. App. 2015).

Cited:

Board of Councilmen v. Fidelity Trust & Safety-Vault Co., 111 Ky. 667 , 23 Ky. L. Rptr. 908 , 64 S.W. 470, 1901 Ky. LEXIS 236 ( Ky. 1901 ); Campbell County v. Newport & C. Bridge Co., 112 Ky. 659 , 23 Ky. L. Rptr. 2056 , 66 S.W. 526, 1902 Ky. LEXIS 208 ( Ky. 1902 ); Bard v. Board of Drainage Comm’rs, 274 Ky. 491 , 118 S.W.2d 1013, 1938 Ky. LEXIS 292 ( Ky. 1938 ).

§ 176. Commonwealth not to assume debt of county or city — Exception.

The Commonwealth shall not assume the debt of any county, municipal corporation or political subdivision of the State, unless such debt shall have been contracted to defend itself in time of war, to repel invasion or to suppress insurrection.

NOTES TO DECISIONS

1.Payments.
2.— Valid.

A state highway commission contract to share cost of highway through a city does not violate the provision of the Constitution prohibiting Commonwealth from assuming municipality’s debt since the debt is that of abutting owners. State Highway Com. v. Board of Councilmen, 245 Ky. 799 , 54 S.W.2d 315, 1932 Ky. LEXIS 675 ( Ky. 1932 ).

3.— Invalid.

Commonwealth may not pay premiums on sheriff’s county revenue bond, since this would violate this section prohibiting it from assuming debts of a county, and Const., § 177, prohibiting it from pledging credit to any political subdivision. Miller v. Sturgill, 304 Ky. 823 , 202 S.W.2d 632, 1947 Ky. LEXIS 738 ( Ky. 1947 ).

Cited:

Shannon v. Combs, 273 Ky. 514 , 117 S.W.2d 219, 1938 Ky. LEXIS 680 ( Ky. 1938 ).

Research References and Practice Aids

Kentucky Bench & Bar.

Tobergate, The Impact of Kentucky’s Present Constitution Upon Business Growth & Development, Volume 51, No. 3, Summer 1987 Ky. Bench & B. 21.

§ 177. Commonwealth not to lend credit, nor become stockholder in corporation, nor build railroad or highway.

The credit of the Commonwealth shall not be given, pledged or loaned to any individual, company, corporation or association, municipality, or political subdivision of the State; nor shall the Commonwealth become an owner or stockholder in, nor make donation to, any company, association or corporation; nor shall the Commonwealth construct a railroad or other highway.

NOTES TO DECISIONS

1.Purpose.

The purpose of this section and Const., § 179 is to prevent local and state tax revenues from being diverted from proper governmental purposes. Louisville Municipal Housing Com. v. Public Housing Administration, 261 S.W.2d 286, 1953 Ky. LEXIS 997 ( Ky. 1953 ).

This section and Const., § 179 were enacted to prevent the investment of public funds in private enterprises and to thereby forestall local and state tax revenues from being diverted from normal governmental channels. Louisville Bd. of Ins. Agents v. Jefferson County Bd. of Education, 309 S.W.2d 40, 1957 Ky. LEXIS 145 ( Ky. 1957 ).

2.Construction.

This section forbids the legislature to assume the payment of ordinary general debts of counties. Fiscal Court of Scott County v. Davidson, 259 Ky. 498 , 82 S.W.2d 801, 1935 Ky. LEXIS 350 ( Ky. 1935 ).

The provisions of this section as to the giving of credit are analogous to the portion of Const., § 179 of the Constitution which proscribes a city’s lending of its credit. Valla v. Preston Street Road Water Dist., 395 S.W.2d 772, 1965 Ky. LEXIS 164 ( Ky. 1965 ).

The credit provisions of this section attempt to prevent transactions which might result in future liabilities against the general tax revenues of the Commonwealth and thereby encroach on the freedom of future generations to utilize those resources as they deem appropriate. Hayes v. State Property & Bldgs. Com., 731 S.W.2d 797, 1987 Ky. LEXIS 217 ( Ky. 1987 ).

This section prohibits the giving of credit of the Commonwealth or the making of a donation to any private corporation or individual; however, as long as the expenditure of public money has as its purpose the effectuation of a valid public purpose, this section is not offended even in situations where the conveyance occurs without consideration. Hayes v. State Property & Bldgs. Com., 731 S.W.2d 797, 1987 Ky. LEXIS 217 ( Ky. 1987 ).

3.Application.

This did not apply to municipal housing corporation for the prohibition of this section is directed to the Commonwealth and not to an agency such as the housing commission, thus commission may insure its housing projects in a mutual fire insurance company. Louisville Municipal Housing Com. v. Public Housing Administration, 261 S.W.2d 286, 1953 Ky. LEXIS 997 ( Ky. 1953 ).

The listing of entities to which the state’s credit may not be given covers everything, including state agencies, except the federal government, other states, foreign countries and the Commonwealth itself and whether the object of an expenditure is “public” or otherwise is irrelevant. McGuffey v. Hall, 557 S.W.2d 401, 1977 Ky. LEXIS 533 ( Ky. 1977 ).

When the underlying purpose of the transaction and the financial obligation incurred are for the benefit of the Commonwealth, there is no lending of credit even though the Commonwealth may have expended its funds or incurred an obligation that benefits another; merely because the Commonwealth incurs an indebtedness for its benefit and others may incidentally profit does not bring the action within the letter or the spirit of the prohibition of lending of state credit. Hayes v. State Property & Bldgs. Com., 731 S.W.2d 797, 1987 Ky. LEXIS 217 ( Ky. 1987 ).

4.Road Construction.

The General Assembly has clear authority to dedicate the resources and credit of the state to public roads and any prohibition thereof in this section is nullified by Const., § 157a. Mitchell v. Knox County Fiscal Court, 165 Ky. 543 , 177 S.W. 279, 1915 Ky. LEXIS 557 ( Ky. 1915 ).

The adoption of Const., § 157a allowed the state to loan its credit to the counties for road construction, though prior to the adoption, such an extension of credit was prohibited by this section. Crick v. Rash, 190 Ky. 820 , 229 S.W. 63, 1921 Ky. LEXIS 516 ( Ky. 1921 ).

5.Corporate Investment.

This section prohibits the Commonwealth from entering into private business by becoming associated as a stockholder in a private business venture, but does not prevent acquisition of such property by the Commonwealth for a public use. Long v. Mayo, 271 Ky. 192 , 111 S.W.2d 633, 1937 Ky. LEXIS 218 ( Ky. 1937 ).

6.Statutes.
7.— Valid.

An appropriation by statute to a private corporation organized under the laws of the state for purely charitable purposes, and conducted solely to seek out destitute children and provide for them homes, where they will be under supervision of the institution during their minority, is not repugnant to this section providing that the credit of the state shall not be loaned to any corporation, and that the state shall not make a donation to any corporation. Hager v. Kentucky Children's Home Soc., 119 Ky. 235 , 83 S.W. 605, 26 Ky. L. Rptr. 1133 , 1904 Ky. LEXIS 166 ( Ky. 1904 ).

A state highway toll bridge act does not violate this section insofar as the provisions of this section have been modified by Const., § 157a. Bloxton v. State Highway Com., 225 Ky. 324 , 8 S.W.2d 392, 1928 Ky. LEXIS 762 ( Ky. 1928 ).

Statute transferring state tuberculosis sanatorium to board of health, under which act the board borrowed money from the federal government, was constitutional, since there was no lending or pledging of credit to any individual or entity named in this section. Hughes v. State Board of Health, 260 Ky. 228 , 84 S.W.2d 52, 1935 Ky. LEXIS 443 ( Ky. 1935 ).

A statute authorizing utility companies to place transmission facilities along public roads, provided it be done in such a manner as not to interfere with travel, and with requirement that any damage be repaired did not violate this section. Warfield Natural Gas Co. v. Lawrence County, 300 Ky. 410 , 189 S.W.2d 357, 1945 Ky. LEXIS 556 ( Ky. 1945 ).

In view of Const., § 157a, the Toll Road Act does not violate this section. Standiford Civic Club v. Commonwealth, 289 S.W.2d 498, 1956 Ky. LEXIS 285 ( Ky. 1956 ), overruled, Department of Highways v. Jackson, 302 S.W.2d 373, 1957 Ky. LEXIS 189 ( Ky. 1957 ).

KRS ch. 154 does not violate this section as the fact that the state incurs an indebtedness or expends funds for its benefit and others may incidentally profit thereby does not bring the transaction within the letter or the spirit of this section. Industrial Development Authority v. Eastern Kentucky Regional Planning Com., 332 S.W.2d 274, 1960 Ky. LEXIS 142 ( Ky. 1960 ).

KRS 157.305 (repealed) has a valid public purpose within the scope and spirit of this section and Const., §§ 3 and 171. Butler v. United Cerebral Palsy, Inc., 352 S.W.2d 203, 1961 Ky. LEXIS 200 ( Ky. 1961 ).

Acts creating an “arts and craft loan fund board” and a “nursing home loan fund board” and authorizing loans to be made by the state to nonprofit organizations and operators of nursing homes did not violate this section as they contemplate a lending of money and not a lending of credit. Stovall v. Eastern Baptist Institute, 375 S.W.2d 273, 1964 Ky. LEXIS 406 ( Ky. 1964 ).

The provisions extending malpractice coverage to the University of Kentucky Medical Center, KRS 164.939 to KRS 164.944 , create, at most, a contingent liability against the Commonwealth; accordingly, they do not create a debt within the concept of debt as used in Const., § 50, nor an encumbrance of future general revenues as prohibited by this section. Board of Trustees v. Commonwealth, 625 S.W.2d 867, 1981 Ky. App. LEXIS 306 (Ky. Ct. App. 1981).

8.— Invalid.

By attempting to underwrite the Patients’ Compensation Fund through recourse to the general fund of the State, KRS 304.40-330 (repealed) lends the credit of the State in violation of this section. McGuffey v. Hall, 557 S.W.2d 401, 1977 Ky. LEXIS 533 ( Ky. 1977 ).

9.Bond Issues.
10.— Valid.

Issuance of revenue bonds by unemployment compensation commission, for construction of office building, under statute providing that bonds should be payable solely from revenues, would not constitute lending of credit of Commonwealth in violation of this section. Meagher v. Commonwealth, 305 Ky. 289 , 203 S.W.2d 35, 1947 Ky. LEXIS 784 ( Ky. 1947 ).

Neither an agreement by the Commonwealth, pursuant to KRS 177.480 , in securing revenue bonds to pay the cost of any project constructed pursuant to KRS 177.390 to 177.570 nor a contract for the issuance of bonds for a toll road project providing that if the tolls therefrom were insufficient the maintenance and cost of operation would be paid out of the state road fund created an unconstitutional debt of the Commonwealth. Guthrie v. Curlin, 263 S.W.2d 240, 1953 Ky. LEXIS 1238 (Ky. Ct. App. 1953).

A requirement of a state revenue bond issue for construction and improvement of state park facilities which provides that the Division of Parks (now Department of Parks) will pay for maintenance, repair and insurance costs of the state park system does not violate this section. Kentucky Lake Vacation Land, Inc. v. State Property & Bldgs. Com., 333 S.W.2d 779, 1960 Ky. LEXIS 212 ( Ky. 1960 ).

Provision allowing payment of principal and interest on bonds by the authority from the revenue bond guarantee fund did not violate the constitutional prohibition against lending the Commonwealth’s credit, even though authority could lease facilities to private corporation with option of transferring title to the corporation when the bonds were paid. Greer v. Kentucky Health & Geriatric Authority, 467 S.W.2d 340, 1971 Ky. LEXIS 366 ( Ky. 1971 ).

11.— Invalid.

The Commonwealth could not pay premiums on sheriff’s county revenue bond, since payment would violate Const., § 176 and this section. Miller v. Sturgill, 304 Ky. 823 , 202 S.W.2d 632, 1947 Ky. LEXIS 738 ( Ky. 1947 ).

12.Contracts.
13.— Valid.

A contract by which the state highway commission agreed to share in the costs of a highway built through a city did not violate this section because the costs were not a debt of the city but of the property owners abutting the highway. State Highway Com. v. Board of Councilmen, 245 Ky. 799 , 54 S.W.2d 315, 1932 Ky. LEXIS 675 ( Ky. 1932 ).

An insurance contract procured by a school board to insure its property was not invalid because of provision in the contract making the insured a member of the company with a voting privilege as this does not have the same character of interests which a stockholder has in a stock insurance company but is merely incidental to acquiring the insurance protection. Louisville Bd. of Ins. Agents v. Jefferson County Bd. of Education, 309 S.W.2d 40, 1957 Ky. LEXIS 145 ( Ky. 1957 ).

Contract between State Highway Department and railroad under which Highway Department agreed to maintain certain electric signaling devices at grade crossings over railroad did not constitute a donation or lending of credit of the state to a private corporation, since the maintenance of such devices are for the promotion of safety of members of the public who use the highway. Ward v. Louisville & N. R. Co., 402 S.W.2d 98, 1966 Ky. LEXIS 356 ( Ky. 1966 ).

14.— Invalid.

If the contract did contain any assurances involving perpetual duty of the Department of Fish and Wildlife Resources to keep the dam in existence or could be construed to give such assurance, or had the Department made any such representations, then this section and Const., § 50 would be violated; these provisions prohibit any transactions which might result in future liabilities against the general resources of the state. Shelbyville ex rel. Shelbyville Municipal Water & Sewer Com. v. Commonwealth, Natural Resources & Environmental Protection Cabinet, 706 S.W.2d 426, 1986 Ky. App. LEXIS 1070 (Ky. Ct. App. 1986).

15.Telephone Franchise.

Telephone company, incorporated by the legislature, with power and right to construct and maintain telephone lines along public highways was required by law to bear the expense of the relocation of its poles, wires, and conduits, now situated upon and in certain public highways, made necessary by the construction of an expressway, since, if the franchise were so construed as to require the state to pay for such removal and relocation, it would be violative of this section. Southern Bell Tel. & Tel. Co. v. Commonwealth, 266 S.W.2d 308, 1954 Ky. LEXIS 795 ( Ky. 1954 ).

Cited:

Board of Trustees v. Lexington, 112 Ky. 171 , 23 Ky. L. Rptr. 1470 , 65 S.W. 350, 1901 Ky. LEXIS 295 ( Ky. 1901 ); Gatton v. Fiscal Court of Daviess County, 169 Ky. 425 , 184 S.W. 1, 1916 Ky. LEXIS 705 ( Ky. 1916 ); Pennington v. Shannon, 270 Ky. 142 , 109 S.W.2d 389, 1937 Ky. LEXIS 37 ( Ky. 1937 ); Hatcher v. Meredith, 295 Ky. 194 , 173 S.W.2d 665, 1943 Ky. LEXIS 191 ( Ky. 194 3); Faulconer v. Danville, 313 Ky. 468 , 232 S.W.2d 80, 1950 Ky. LEXIS 901 ( Ky. 1950 ); Hoy v. Kentucky Indus. Revitalization Auth., 907 S.W.2d 766, 1995 Ky. LEXIS 125 ( Ky. 1995 ).

Opinions of Attorney General.

Where a city deeded its publicly owned right of way along a city street to the Department of Highways, the department could not assume the responsibility for, or the costs of relocating sewer lines and laterals located within the public way. OAG 60-498 .

The trustees of a fire protection district could not lease a service station in their official capacity and apply the profits to buying fire fighting equipment. OAG 61-367 .

Western Kentucky University, although a separate corporate entity, is a state agency, and is prohibited by this section from becoming guarantor of bonds issued by a private, nonsectarian college. OAG 68-537 .

Legislation granting state aid in the construction of an office building for the Kentucky Municipal League would be constitutional. OAG 70-93 .

An agreement by a board of education to lease unused portions of a television facility owned by it to a private corporation was lawful with the exception of a provision that a part of the consideration for the lease would be an option to purchase up to 10% of the stock of the private corporation, which provision was illegal and void under §§ 177, 179, 184 and 186 of the Kentucky Constitution. OAG 73-418 .

A properly established deferred compensation plan would not violate this section even though the state invested funds in common stocks, since such funds would be the earned income of the employees and not taxpayers’ money and, although title to the funds and stock technically would be held by the state, the ultimate beneficiaries would be the employees. OAG 73-695 .

KRS 177.035 , which allows use of funds expended by the Department of Highways as part of improving and constructing highways for the relocation of utilities belonging to any municipality or municipally owned utility, does not offend this section of the Constitution. OAG 74-199 .

The coal severance tax imposed by KRS 143.010 to 143.990 , as distributed to the counties pursuant to KRS 42.300 (repealed), is not unconstitutional in violation of this section or Const., §§ 3, 51, 59, or 181. OAG 75-76 .

State expenditures for the development of clean fuels, under KRS 152.755 , do not constitute a pledge or loan of credit, since the State is not a debtor or guarantor or surety. OAG 78-102 .

While the demonstration projects and trust fund legislation established by KRS 152.755 is not unconstitutional, since it does not authorize expenditures beyond a biennium, the administrator must be scrupulously careful to see that actual contract financial commitments do not go beyond available appropriations of a biennium. OAG 78-102 .

Expenditures under the railroad rehabilitation program would not constitute a lending of credit or a loan and would not constitute the “constructing” of a railroad, since the State would be merely promoting, for the public benefit, the continuation of rail service and accordingly such expenditures were not unconstitutional. OAG 78-103 .

This section of the Kentucky Constitution, which literally prohibits the construction of a railroad by the State, would not apply to either the purchase or lease of railroad property or right-of-way effected in implementation of the national and Kentucky State rail plans. OAG 78-703 .

Public employees deferred compensation system money can be invested in mutual funds, whether backed by stocks or bonds. OAG 79-414 .

Since the money of the public employees deferred compensation system do not come directly from tax funds, but are voluntarily assigned to it from employees of the Commonwealth, there is no diversion of tax revenues from normal governmental channels by investments in common stock of a corporation. OAG 79-414 .

The “loan agreement” method when used by a city, county, or Kentucky industrial development finance authority, in financing industrial buildings does not violate the anti-lending of credit provisions of this section and Const., § 179 since no loan of government tax revenues is involved and the money loaned comes purely from the bond sale. OAG 80-320 .

The state could not indemnify a public, nonprofit organization against libel suits arising from the publication of final disciplinary actions received from a licensing board; assuming the General Assembly approved the expenditure of funds for this purpose, the enactment of legislation would be unconstitutional as creating an obligation against future revenues without voter approval in contravention of Const., § 50, as using public funds for nonpublic purposes in contravention of Const., § 171, and as lending the credit of the state in contravention of this section. OAG 84-55 .

If a state agency, such as the Department of Insurance, procured construction insurance for the Commonwealth Credit Union, this section, which prohibits the lending of the state’s credit, would not be applicable since the procurement transaction would concern two (2) state agencies. OAG 84-80 .

The Commonwealth is prohibited from entering into an indemnity or “hold harmless” clause under this section and Const., §§ 50 and 171. OAG 86-18 .

The waiver by the Commonwealth of any right to sue the contractor violated this section and Const., §§ 50 and 171. OAG 86-18 .

A state agency, such as the Office of Secretary of State and/or the State Board of Elections, may provide support (i.e. staff support, letters, information and staff travel) to assist a specific private foundation with the development and implementation of programs such as increasing voter education, participation and registration because increasing voter education, participation, and registration represent a valid public purpose. OAG 92-87 .

Although there is legal precedent for a county to acquire the stock of a private corporation in order to dissolve it, there is no authority for a county’s long term holding of the preferred stock of a private corporation. OAG 92-139 .

Research References and Practice Aids

Cross-References.

Credit may be loaned for roads, Const., § 157a.

State highways, KRS ch. 177.

Kentucky Bench & Bar.

Tobergte, The Impact of Kentucky’s Present Constitution Upon Business Growth & Development, Volume 51, No. 3, Summer 1987 Ky. Bench & B. 21.

Kentucky Law Journal.

Kentucky Law Survey: Savage, Insurance, 66 Ky. L.J. 631 (1977-1978).

Northern Kentucky Law Review.

Notes, Insurance — Medical Malpractice — Uncoupling the Freight Train: The Kentucky Medical Malpractice Act — McGuffey v. Hall, 557 S.W.2d 401, 1977 Ky. LEXIS 533 ( Ky. 1977 ), 5 N. Ky. L. Rev. 123 (1978).

Note, Facing the Economic Challenges of the Eighties — The Kentucky Constitution and Hayes v. The State Property and Buildings Commission of Kentucky, 15 N. Ky. L. Rev. 645 (1988).

Wintersheimer, State Constitutional Law, 20 N. Ky. L. Rev. 591 (1993).

§ 178. Law for borrowing money to specify purpose, for which alone money may be used.

All laws authorizing the borrowing of money by and on behalf of the Commonwealth, county or other political subdivision of the State, shall specify the purpose for which the money is to be used, and the money so borrowed shall be used for no other purpose.

NOTES TO DECISIONS

1.Construction.

This section does not prohibit the borrowing of money for a variety of municipal projects specified in a single ordinance. Raque v. Louisville, 402 S.W.2d 697, 1966 Ky. LEXIS 375 ( Ky. 1966 ).

2.Bond Issues.

Although the proceeds of municipal bonds, including premium obtained in sale thereof, must be applied to purposes for which bonds were issued and may not be diverted to other uses, part thereof may be used to pay reasonable expenses incident to issuing them. Bell v. Board of Education, 343 S.W.2d 804, 1961 Ky. LEXIS 433 ( Ky. 1961 ).

3.— Valid Ordinance.

Where ordinance provided for election on proposition of issuing bonds to provide city with refuse disposal plant and street and traffic improvements, such ordinance did not violate KRS 66.050 (repealed) or this section, since the only issue submitted to the voters was whether the city should be authorized or permitted to become indebted in a stated amount to be paid out of income and revenue of other years and the statement of the purposes or uses to be made of the proceeds derived from the bonds does not vitiate the submission of the single question whether the liability is to be incurred. Burke v. Louisville, 275 S.W.2d 899, 1955 Ky. LEXIS 386 ( Ky. 1955 ).

Cited:

Allen v. Cromwell, 203 Ky. 836 , 263 S.W. 356, 1924 Ky. LEXIS 1017 ( Ky. 1924 ); Kentucky Utilities Co. v. Paris, 256 Ky. 226 , 75 S.W.2d 1082, 1934 Ky. LEXIS 388 ( Ky. 1934 ); Bard v. Board of Drainage Comm’rs, 274 Ky. 491 , 118 S.W.2d 1013, 1938 Ky. LEXIS 292 ( Ky. 1938 ); Dyche v. London, 288 S.W.2d 648, 1956 Ky. LEXIS 271 ( Ky. 1956 ); Dalton v. State Property & Bldgs. Com., 304 S.W.2d 342, 1957 Ky. LEXIS 276 ( Ky. 1957 ); Blythe v. Transportation Cabinet of Commonwealth, 660 S.W.2d 668, 1983 Ky. LEXIS 278 ( Ky. 1983 ).

Research References and Practice Aids

Cross-References.

Issuance of bonds, KRS ch. 66.

Maximum indebtedness limited, Const., § 158.

§ 179. Political subdivision not to become stockholder in corporation, or appropriate money or lend credit to any person, except for roads or State Capitol.

The General Assembly shall not authorize any county or subdivision thereof, city, town or incorporated district, to become a stockholder in any company, association or corporation, or to obtain or appropriate money for, or to loan its credit to, any corporation, association or individual, except for the purpose of constructing or maintaining bridges, turnpike roads, or gravel roads: Provided, If any municipal corporation shall offer to the Commonwealth any property or money for locating or building a Capitol, and the Commonwealth accepts such offer, the corporation may comply with the offer.

NOTES TO DECISIONS

1.Purpose.

The purpose behind Const., § 177 and this section was to prevent local and state tax revenues from being diverted from proper governmental use. Louisville Municipal Housing Com. v. Public Housing Administration, 261 S.W.2d 286, 1953 Ky. LEXIS 997 ( Ky. 1953 ).

This section is intended to prevent the investment of public funds in private enterprises and to forestall local and state tax revenues from being diverted from proper governmental use. Louisville Bd. of Ins. Agents v. Jefferson County Bd. of Education, 309 S.W.2d 40, 1957 Ky. LEXIS 145 ( Ky. 1957 ).

2.Construction.

This section makes the same restrictions against a municipality’s donating its money or loaning its credit that Const., § 177 does concerning the state. Hager v. Kentucky Children's Home Soc., 119 Ky. 235 , 83 S.W. 605, 26 Ky. L. Rptr. 1133 , 1904 Ky. LEXIS 166 ( Ky. 1904 ).

This section does not prohibit a municipality from participating with another municipality in a function it is permitted or required to perform by itself and by which its inhabitants will reap a commensurate benefit. Johnson v. Louisville, 261 S.W.2d 429, 1953 Ky. LEXIS 1014 ( Ky. 1953 ).

Although Section 3 and this section of the Kentucky Constitution could prohibit an outright gift or lending of credit, these sections do not prevent all public incentives when offered in furtherance of a valid public service, such as economic development efforts. Dannheiser v. City of Henderson, 4 S.W.3d 542, 1999 Ky. LEXIS 114 ( Ky. 1999 ).

3.Application.

The restriction of this section against obtaining or appropriating money for any corporation, association or individual applies to donations to projects from which no benefit will be received by the city or in which it may not independently engage. Valla v. Preston Street Road Water Dist., 395 S.W.2d 772, 1965 Ky. LEXIS 164 ( Ky. 1965 ).

4.Incorporated District.

A city municipal housing commission which was organized under an enabling act of the General Assembly and operated by personnel of the city so as to participate in the federal housing program was not an incorporated district within the meaning of this section. Louisville Municipal Housing Com. v. Public Housing Administration, 261 S.W.2d 286, 1953 Ky. LEXIS 997 ( Ky. 1953 ).

A municipal housing commission is not an incorporated district within the meaning of this section and may constitutionally inure its housing projects in a mutual fire insurance company. Louisville Municipal Housing Com. v. Public Housing Administration, 261 S.W.2d 286, 1953 Ky. LEXIS 997 ( Ky. 1953 ).

5.Road Construction.

This section does not prohibit the General Assembly from authorizing a county to purchase a turnpike road from a corporation. Maysville & L. Turnpike Road Co. v. Wiggins, 104 Ky. 540 , 47 S.W. 434, 20 Ky. L. Rptr. 724 , 1898 Ky. LEXIS 189 ( Ky. 1898 ).

The Legislature may authorize a county to donate its funds to aid in the construction of roads within its borders. Lawrence County v. Lawrence Fiscal Court, 191 Ky. 45 , 229 S.W. 139, 1921 Ky. LEXIS 284 ( Ky. 1921 ).

Under this section and KRS 177.030 , donation of a traffic light by a county constitutes a donation in aid of the construction or maintenance of roads. Grauman v. Department of Highways, 286 Ky. 850 , 151 S.W.2d 1061, 1941 Ky. LEXIS 337 ( Ky. 1941 ).

Counties may donate money to the state for the purpose of constructing roads. Clay County v. Kentucky Dep't of Highways, 294 Ky. 638 , 172 S.W.2d 436, 1943 Ky. LEXIS 500 ( Ky. 1943 ).

Where county offered to lend proceeds of road bond issue to state for construction of primary road through county, but state declined to accept loan on ground that it would create an unconstitutional state debt, whereupon the fiscal court entered an order appropriating the money to the department of highways, the transaction constituted a donation to the state which the county could not recover. Clay County v. Kentucky Dep't of Highways, 294 Ky. 638 , 172 S.W.2d 436, 1943 Ky. LEXIS 500 ( Ky. 1943 ).

6.Industrial Property.

Financing proposal under which one city issued industrial bonds so as to permit such city to purchase factory site within corporate limits of nearby city (KRS 103.200 to 103.285 ) did not violate constitutional prohibition against city lending its credit to corporations, associations, or individuals. Norvell v. Danville, 355 S.W.2d 689, 1962 Ky. LEXIS 84 ( Ky. 1962 ).

Where the city and the county both deposited with the chamber of commerce one half of the price of industrial property with instructions to acquire the property, and title to one-half interest was taken in the name of the county and title to the other half was taken in the name of the chamber but subsequently conveyed to the city, there was no violation of this section. Ezelle v. Paducah, 441 S.W.2d 162, 1969 Ky. LEXIS 307 ( Ky. 1969 ).

The development of an industrial park by a city was not a prohibited lending of credit since the city was not loaning or giving a private company any form of credit, was not signing a note on behalf of the company guaranteeing repayment of any amount due, and was not issuing bonds with the debt service to be paid from future appropriations in city budgets; rather, the city bought and paid for land and was selling it without any involvement concerning the method of financing by the purchaser. Dannheiser v. City of Henderson, 4 S.W.3d 542, 1999 Ky. LEXIS 114 ( Ky. 1999 ).

The sale of municipal property to private companies was for a proper public purpose where the city’s sole purpose was to develop a corporate park so as to foster economic development by attempting to retain existing industry as well as to attract new industry to its local community; further, in order to show such public purpose, the city was not required to prove by clear and convincing evidence that unemployment was a widespread problem in the vicinity and, instead, only needed to prove that the development had a reasonable or sufficient relationship to the purpose of economic growth. Dannheiser v. City of Henderson, 4 S.W.3d 542, 1999 Ky. LEXIS 114 ( Ky. 1999 ).

7.— Leased to Corporations.

City’s issuance of bonds for construction of industrial building to be leased to private corporation did not contravene this section as it was specifically provided that the bonds should be payable only from the revenue derived from the building and would not constitute an indebtedness of the city. Faulconer v. Danville, 313 Ky. 468 , 232 S.W.2d 80, 1950 Ky. LEXIS 901 ( Ky. 1950 ).

A lease of a proposed industrial building constructed by city’s indebtedness would not be a loaning of the city’s credit to a private corporation in violation of this section. Dyche v. London, 288 S.W.2d 648, 1956 Ky. LEXIS 271 ( Ky. 1956 ).

Where city proposed to issue revenue bonds for acquisition of site and construction of plant to lease under authority of KRS 103.200 to 103.280 , and entered into contract with company to lease such plant, which contract contained option to purchase from the city, such option to purchase was not the lending of city’s credit in violation of this section. Bennett v. Mayfield, 323 S.W.2d 573, 1959 Ky. LEXIS 331 ( Ky. 1959 ).

The issuance of revenue bonds to finance a public project, such as an industrial building to be rented to private industry, does not constitute a lending of credit of the city in violation of this section. Miller v. Owensboro, 343 S.W.2d 398, 1961 Ky. LEXIS 421 ( Ky. 1961 ).

A plan by which a city was to pay, in stages, for the construction of an industrial plant to be leased to a private corporation and where the payments were to be made solely from revenue bonds does not constitute an unlawful lending of credit in violation of this section. Gregory v. Lewisport, 369 S.W.2d 133, 1963 Ky. LEXIS 70 ( Ky. 1963 ).

The issuance of revenue bonds to finance a public project, even if the project was to be rented, did not constitute a lending of credit in violation of this section. Baird v. Adairville, 426 S.W.2d 124, 1968 Ky. LEXIS 636 ( Ky. 1968 ).

8.Public Libraries.

A public library is not a private corporation but is a public corporation which does not originate in contract, and is merely a governmental institution; hence, an act authorizing a municipality to appropriate money for a public library corporation does not violate the provisions of this section. Lambert v. Board of Trustees, 151 Ky. 725 , 152 S.W. 802, 1913 Ky. LEXIS 562 ( Ky. 1913 ).

9.Public Utilities.

Plan pursuant to which city desiring to acquire city water system was to purchase all of stock in private corporation which owned system, following which corporation would be dissolved, did not violate this section. Cawood v. Coleman, 294 Ky. 858 , 172 S.W.2d 548, 1943 Ky. LEXIS 515 ( Ky. 1943 ).

Where primary purpose of new city generating station was to provide adequate facilities to meet present and anticipated energy needs, contract to sell surplus energy from station to private utility did not violate this section. Miller v. Owensboro, 343 S.W.2d 398, 1961 Ky. LEXIS 421 ( Ky. 1961 ).

An agreement in which one city agreed to construct and operate a sewage treatment plant and to build a trunk line to collect sewage from a second city for which the second city would pay a monthly sum over a 20-year period did not constitute a binding of credit by the second city, nor did the second city become a stockholder in the first city’s corporate affairs. Russell v. Flatwoods, 394 S.W.2d 900, 1965 Ky. LEXIS 218 ( Ky. 1965 ).

A plan under which a city would construct two (2) new power facilities for future use and sell the excess power until it was needed for municipal use did not violate Const., § 164 or this section. Wilson v. Henderson, 461 S.W.2d 90, 1970 Ky. LEXIS 610 ( Ky. 1970 ).

10.Recreational Facilities.

An agreement between a city and a private foundation to erect and operate a city zoo does not constitute an appropriation of city funds for the benefit of a private corporation. O'Bryan v. Louisville, 382 S.W.2d 386, 1964 Ky. LEXIS 341 ( Ky. 1964 ).

An agreement by a city to lease recreational facilities from a county board of education is not in contravention of this section as long as there is a good faith transaction as opposed to a gift disguised as an arm’s-length contract. Sawyer v. Jefferson County Fiscal Court, 392 S.W.2d 83, 1965 Ky. LEXIS 275 ( Ky. 1965 ).

11.Health Services.

Since the city-county board of health was but a means of carrying out a proper and necessary governmental function for the city and county and city reaped the same benefits from the activities of the board as it formerly reaped from activities of city board of health, the constitutional authority of the city to expend proceeds of bonds issued by city for improvement of buildings and equipment of board owned and operated hospital was as clear as its authority to contribute to the board from its general tax levy and the issuance of such bonds was not a loan of credit by the city to another corporation in violation of this section. Kesselring v. Louisville, 257 S.W.2d 596, 1953 Ky. LEXIS 800 ( Ky. 1953 ).

The evidence did not compel a finding that a county’s lease of a county hospital and grounds was for such a grossly inadequate consideration to the county as to violate this section by constituting a gift of public property to a private corporation. Porter v. Hospital Corp. of America, 696 S.W.2d 793, 1985 Ky. App. LEXIS 647 (Ky. Ct. App. 1985).

12.Correctional Facilities.

This section does not prohibit a city authorized by its charter to erect and maintain a house of correction and a house of refuge from making an appropriation to secure the location near the city of a state house of reform to which it may send its youthful offenders. Board of Trustees v. Lexington, 112 Ky. 171 , 65 S.W. 350, 23 Ky. L. Rptr. 1470 , 1901 Ky. LEXIS 295 ( Ky. 1901 ).

A statute providing that in all counties having a town not larger than the fourth class and containing a population greater than the county seat and situated over 17 miles therefrom, the circuit court shall be held alternately in each town, the expense of furnishing a jail and courtroom in the larger town to be borne by it, does not violate this section. Johnson v. Fulton, 121 Ky. 594 , 89 S.W. 672, 28 Ky. L. Rptr. 569 , 1905 Ky. LEXIS 243 ( Ky. 1905 ).

13.Railroad Construction.

A vote taken in a county after the constitution was adopted, favoring a subscription by the county in aid of a railroad, did not authorize the county to make such a subscription, though the vote and subscription were provided for by law passed prior to the adoption of the constitution. Whitney v. Kentucky M. R. Co., 110 Ky. 955 , 63 S.W. 24, 23 Ky. L. Rptr. 472 , 1901 Ky. LEXIS 161 ( Ky. 1901 ).

Ordinance requiring city to give assent to issuance of securities by street railway company did not make city guarantor of such securities, or pledge credit of city to railway. Poggel v. Louisville R. Co., 225 Ky. 784 , 10 S.W.2d 305, 1928 Ky. LEXIS 886 ( Ky. 1928 ).

14.Teacher Salaries and Pensions.

This section does not prohibit the operation of a municipal teachers’ pension system under an enabling act. Board of Education v. Louisville, 288 Ky. 656 , 157 S.W.2d 337, 1941 Ky. LEXIS 198 ( Ky. 1941 ).

An appropriation of funds by a city, to supplement salaries of teachers in independent school district, the boundaries of which coincide with those of the city, violates this section. Board of Education v. Corbin, 301 Ky. 686 , 192 S.W.2d 951, 1946 Ky. LEXIS 544 ( Ky. 1946 ).

15.Assumption of School Debts.

An assumption by the city of Louisville of a bonded indebtedness of the Louisville independent school district would be the equivalent of lending credit in violation of this section as to the city taxpayers who live outside the boundaries of the school district. Board of Education v. Louisville, 258 S.W.2d 707, 1953 Ky. LEXIS 877 ( Ky. 1953 ).

16.Bank Loans.

This section does ot invalidate financing plan, whereby banks agreed to advance money to pay condemnation award on acquisition by city and county air board of additional land to extend airfield and obtain lien thereon, without formally obliging board, county or city to repay said money or levy tax for board’s benefit. Miles v. Lee, 284 Ky. 39 , 143 S.W.2d 843, 1940 Ky. LEXIS 436 ( Ky. 1940 ).

17.Use of Public Property for Private Purpose.

Abutting property owner did not have right of private railway access over property reacquired by city under operation of law; reasonable right of access did not encompass grant of private right of railway access as to do so would be in contravention of the right enjoyed by all other members of the public or other abutting property owners and would constitute use of public property for a private purpose prohibited by this section and Const., §§ 2, 13, and 242. City of Louisville v. Louisville Scrap Material Co., 932 S.W.2d 352, 1996 Ky. LEXIS 62 ( Ky. 1996 ).

Cited:

Covington v. District of Highlands, 113 Ky. 612 , 24 Ky. L. Rptr. 433 , 68 S.W. 669, 1902 Ky. LEXIS 89 ( Ky. 1902 ); Morris v. Randall, 129 Ky. 720 , 112 S.W. 856, 1908 Ky. LEXIS 214 ( Ky. 1908 ); Webster v. Frankfort Housing Com., 293 Ky. 114 , 168 S.W.2d 344, 1943 Ky. LEXIS 559 ( Ky. 1943 ); Louisville v. Board of Education, 302 Ky. 647 , 195 S.W.2d 291, 1946 Ky. LEXIS 725 ( Ky. 1946 ); Williams v. Board for Louisville & Jefferson County Children’s Home, 305 Ky. 440 , 204 S.W.2d 490, 1947 Ky. LEXIS 825 ( Ky. 1947 ); E.M. Bailey Distributing Co. v. Conagra, Inc., 676 S.W.2d 770, 1984 Ky. LEXIS 235 ( Ky. 1984 ).

Opinions of Attorney General.

A sheriff may not deduct from excess fees the cost of interest on money borrowed by him when said borrowed funds are for the operation of his office nor may a fiscal court pay deputies’ salaries and office expenses of a sheriff where such amounts are to be repaid to the fiscal court by the sheriff when fees are available because of the provisions of this section. OAG 61-632 .

A city would not violate this section by continuing to insure property it had purchased with a mutual insurance company, because becoming a member of a mutual insurance company does not make the insured a stockholder within the fair import of the constitutional prohibition. OAG 61-836 .

The board of trustees of a city could not legally appropriate money to pay for the electric power and repairs necessary to keep a memorial cross lighted that was a memorial to a private individual. OAG 62-615 .

The city of Marion cannot legally appropriate money from its general fund for the support of the Crittenden recreational center, a nonstock, nonprofit corporation. OAG 62-634 .

If implemented in a school district, the young historians program can be regarded as educational in purpose within the meaning of the constitution. OAG 63-214 .

A county fiscal court cannot advance funds to pay the operating expenses of the sheriff’s office during the slack period when his current fees are not enough to meet the current expenses of his office. OAG 63-848 .

Where the residents of a city voted in favor of a general obligation bond for an industrial park development and a site was purchased, under the implementing ordinance the city could lease or sell the industrial park property to a nonprofit industrial foundation but it could not donate municipal property to such an organization. OAG 68-181 .

A city would not be legally authorized to make a donation to the building fund of the local YMCA, a private nonprofit organization over which the city has no control. OAG 68-533 .

Where not all of the residents of three cities included in an independent school district lived inside the school district and one city had its own tax assessor while two (2) other cities where assessed by the county assessor, the proper tax levying authority for the district was the county fiscal court and the election expense should be borne by the fiscal court. OAG 69-2 .

Although a city or county could not contribute public funds to a group of private citizens for a beautification project, the city and county could establish either separate committees or a joint committee pursuant to KRS ch. 65, composed of citizens and appropriate funds thereto, to be utilized for beautifying the metropolitan area. OAG 69-415 .

Under this section a municipality or a municipal water commission would be prohibited from donating money to an industrial council created as a nonprofit corporation for the purpose of encouraging new industries in the municipality. OAG 69-520 .

In view of this section, a city cannot legally appropriate funds to assist a women’s civic club to construct an amphitheater on land owned by the board of education, a separate public entity. The city could, however, build the amphitheater as a public project, or jointly establish a recreational system with the school district pursuant to KRS 97.010 which could include the amphitheater or, pursuant to the same statute, the city could lease land from the school board to establish a recreational center. OAG 70-514 .

It is doubtful that the city of Berea could contribute money to Berea College to make up the cost difference where the college was installing additional equipment to furnish water to the city under a franchise. OAG 70-679 .

County fiscal court could pass a resolution granting a corporation organized under KRS 273.160 (repealed in 1968) the sum of $15,000 toward the construction of a rescue squad building to house the corporation whose primary purpose is to render aid to persons in distress, since the building would involve a public purpose under § 171 of the Kentucky Constitution, would not involve a lending of credit, and would not be an appropriation prohibited by § 171, but merely a method of carrying out a clear public purpose. OAG 73-334 .

This section should be read together with § 171 with the idea that the proscription against county appropriations to a corporation is not absolute, but is merely to be read as definite where the public purpose required by § 171 is not shown. OAG 73-334 .

An agreement by a board of education to lease unused portions of a television facility owned by it to a private corporation was lawful with the exception of a provision that a part of the consideration for the lease would be an option to purchase up to 10% of the stock of the private corporation, which provision was illegal and void under §§ 177, 179, 184 and 186 of the Kentucky Constitution. OAG 73-418 .

Donations by a sixth-class city to organizations which aided in a tornado disaster are improper. OAG 74-437 .

Although a fiscal court is prohibited by this section from loaning county funds to deputy sheriffs to permit them to purchase cars for use in the performance of their official duties, it may, under the authority of KRS 67.080 and 67.083 , purchase such automobiles, as a properly budgeted item, the county retaining title to the cars and leasing them to the sheriff at an equitable monthly rental payable from the fees of his office. OAG 74-735 .

The council of a city of the fourth class cannot legally appropriate money from its general fund to support a private, nonstock, nonprofit corporation in providing a supervised recreational program for the youth of the area and a meeting place for senior citizens of the community. OAG 75-366 .

The appropriation of funds by municipalities for private purposes, such as face-lifting of private houses was within the constitutional prohibition under this section. OAG 75-156 .

A city cannot use tax money to pay for subscriptions to a newspaper for the residents of a city where the newspaper is independent and is in no way associated with the city government. OAG 76-397 .

For a school district to hold a vendor’s lien on the sale of surplus school property would be a prohibited extension of its credit to the purchaser. OAG 77-771 .

This section did not apply to appropriation to the State Department of Transportation (now Transportation Cabinet) for purposes of administering the railroad rehabilitation program. OAG 78-103 .

A donation from a fiscal court to a volunteer fire department would in all probability be declared invalid under this section. OAG 78-122 .

The fiscal court of a county containing a city of the third class may not legally appropriate money to a private nonprofit corporation not engaged in charitable and welfare work pursuant to KRS 204.200 (now repealed) insofar as in absence of specific statutory authorization to do so, such an appropriation of public funds is precluded by the Kentucky Constitution. OAG 78-158 .

Generally, a city cannot appropriate public funds to nonprofit organizations in absence of legislative authorization when it has no control of such organizations and no connection with them. OAG 78-205 .

The granting of a franchise for no monetary or valuable consideration would at least indirectly constitute a violation of this section of the Constitution, since the county is giving away monetarily what a fair franchise fee would be. OAG 78-208 .

The purpose of this constitutional provision was to prevent the investment or contribution of public funds in private enterprises and to thereby forestall local tax revenues from being diverted from normal governmental channels. OAG 78-208 .

The repeal of KRS 102.060 removed the authority for the appropriation of city funds, through the chamber of commerce for the purpose of industrial development, and that the tax moneys may not be applied for such purposes; furthermore, should the cities volunteer their tax moneys for such purposes, the action would be illegal under this section. OAG 78-313 .

The city can only appropriate money for a public municipal purpose over which it has control, which would eliminate an appropriation to pay part of the funeral costs of an employee of the city. OAG 79-59 .

A city cannot appropriate public funds to nonprofit corporations or to associations or individuals in absence of legislative authorization when it has no control of such organizations and no direct connection with them; furthermore, all appropriations of public money by municipalities must be for a public and corporate purpose rather than for private uses. OAG 79-67 .

Since this section forbids municipal corporations from contributing to private corporations, a city may not contribute to a charitable hospital owned and operated by a private religious group. OAG 79-135 .

This section of the Constitution applies to municipal donations or gifts to a corporation and would have no application with respect to the city’s right to lease or sell municipal property. OAG 79-141 .

The constitutional prohibition against lending credit of the state or of counties seeks to prevent transactions that might result in future liabilities against the general resources of the state or county. OAG 79-166 .

A city may not make a grant to an incorporated religious nonprofit social welfare agency to assist that organization in operating a give-away program at its thrift store in that city, since this section prohibits the General Assembly from authorizing a city to appropriate money for any corporation, association or individuals. OAG 81-193 .

Although a fire protection district, under KRS 75.040 , has the authority through its board of trustees to levy a tax upon the property in its district in connection with the establishment, maintenance and operation of its fire department, there is no authority permitting a fiscal court to simply donate funds to a fire protection district, and such a donation would probably violate this section since it prohibits the General Assembly from authorizing a county to lend its credit or appropriate money to any corporation, association or individual. OAG 81-247 .

Although a county receiving moneys from the Economic Assistance Fund established under KRS 42.450 would appear to have statutory authorization to make expenditures from the fund to such nonprofit organizations as little league baseball pursuant to the language of subsection (2) of KRS 42.455 and KRS 67.083(3)(f) which allow expenditures for “recreation,” such an appropriation would violate the prohibition of this section against appropriations for corporations since the baseball program is not a county operation or function and is not under the basic operative control or management of the fiscal court. OAG 81-381 .

A city could not purchase insurance coverage with itself as the named insured and a private railroad corporation as an additional insured in order to cover tort actions arising out of railroad accidents occurring on property leased by the railroad to the city, since such coverage would violate the prohibition contained in this section against a city appropriating public money for the benefit of a private corporation. OAG 81-418 .

Where a city leased a parking lot from a railroad company, the city could not legally increase its lease payments to the railroad by the amount needed for the company to purchase its own insurance naming the city as an additional insured, for even though a city can provide for its own protection through the provisions of KRS 82.082 , it is prohibited by this section from appropriating public money for the benefit of a private corporation. OAG 81-418 .

Where a railroad company leased a parking lot next to its tracks to a city, the city could not legally expend funds for insurance coverage naming the company as insured to cover any liability which the company might incur as a result of claims against it for personal injury, death or property damage involving persons and property located on the leased property as a result of railroad accidents, since this section prohibits a city from appropriating public money for the benefit of a private corporation. OAG 81-418 .

There is no authority in either KRS 67.080 or KRS 67.083 which authorizes a fiscal court to expend public funds to pay the electrical inspection fees for individual county residents; in addition, this section prohibits any county from appropriating money for any individual. OAG 82-30 .

There was no constitutional problem where the county fiscal court advanced $500 to the clerk’s office for use in making change with the clerk being a bailee for the money and the money being returnable to the county on demand. OAG 82-107 .

Where a community action corporation is organized and functioning pursuant to KRS 273.410 to 273.455 (now KRS 273.410 to 273.453 ), and has been designated, pursuant to an ordinance or resolution of the fiscal court, as an agent of the county under KRS 273.435 for the implementation of various statutorily authorized public welfare projects, the fiscal court may appropriate public funds to such community action corporation in connection with the carrying out of such projects. OAG 82-238 .

While a city cannot legally donate or contribute public funds to a private corporation over which it has no control, with certain exceptions where the State Legislature has specifically authorized such donations, the city could contract with a nonprofit organization to render paramedic services to its citizens the same as it is specifically authorized to do with respect to contracting for emergency ambulance service pursuant to KRS 65.710 , 65.720 . The city could also provide for paramedic service in conjunction with the operation of its own emergency ambulance service on behalf of the citizens of the city. OAG 82-366 .

This section restricts a municipal corporation from making donations to projects for which no benefit will be received by the city or in which it may not independently engage. OAG 82-410 .

A fiscal court could sell a hospital physical plant, which was not needed by the county, to a nonprofit corporation for at least its fair market value; a sale of surplus land for fair market value would satisfy §§ 3, 171 and this section, as relates to prohibited gifts of county money. OAG 83-37 .

The purpose of this section was to prevent the investment of public funds in private enterprises and to thereby forestall local tax revenues from being diverted from normal governmental channels; thus, this section would prohibit a county’s use of its tax resources or other resources to fund a hospital physical plant by selling the plant to a nonprofit corporation, which ran the hospital, for no consideration. OAG 83-37 .

While a city may not give municipal park property or use of it to an independent agency for the purpose of constructing and operating a public swimming pool, nor donate municipal funds to the nonprofit corporation, basic responsibility for the operation and maintenance of the pool may be contracted for by the city with the independent agency whereby the agency would agree to purchase liability insurance covering the activities at the pool and further would agree to hold the city harmless regarding the use of the pool. OAG 83-399 .

There is no statutory authority for a fiscal court to appropriate money to and on behalf of a nonprofit corporation which is not associated with and not under the control of county government for the construction of a water distribution system in the county; such an appropriation is prohibited by this section. If the county constructed such a water distribution system it could not simply give the system away to a nonprofit water association corporation but would have to receive fair market value for a transfer of ownership. OAG 83-410 .

A city could not donate real property to a private, not-for-profit hospital corporation for construction of a hospital nor could it sell the property to the hospital corporation for less than fair market value; a city cannot donate its property whether it be in the form of real estate or an appropriation of public funds to any private corporation as this would be in direct violation of this section. The city, of course, may sell its property no longer needed for public purpose pursuant to the terms of KRS 82.081 and 82.082 in any manner that it desires; however, such property should be sold either for its fair cash value based on an independent appraisal, by auction or through the bidding method. OAG 84-74 .

Any attempt by a city to grant a private, hospital corporation relief from the payment of water and sewer charges or to construct free of charge drainage or pipeline facilities, or grant it other credits or free services mentioned, would be in violation of this section and against public policy. OAG 84-74 .

Since county revenue bonds issued in conformity with applicable statutory sections involve no county governmental debt obligation, no lending of credit, and no use of tax revenues, this section (prohibiting a county’s lending of credit) is not violated. OAG 84-92 .

Since the three authorized methods found under KRS 99.350 are exclusive, a city must follow one of these methods if it wishes to operate under KRS Ch. 99, thus a city cannot legally enter into any agreement with a private nonprofit association and appropriate funds thereto, as well as other facilities and services, for the purpose of operating a community development program authorized by KRS Ch. 99. OAG 84-247 .

Pursuant to KRS 273.441 and KRS 273.410(2), any of the counties which have in legal effect designated a corporation as a community action agency may, subject to available funds and proper budgeting procedure under KRS Chapter 68, contribute, through the corporation, county funds for any of the purposes described specifically in KRS 273.441 and KRS 273.410(2), with the assumption that such county grants are made by way of an agreement between the county and the corporation that such county money will be spent for a designated purpose or purposes, as expressly provided in KRS 273.441 and 273.410(2), the corporation subsequently reporting to the county government the precise nature and amount of the final expenditure. This is no violation of this section of the Constitution. For a county may select a nonprofit corporation as an instrumentality in carrying out a public purpose. OAG 85-117 .

Subdivision (3)(g) of KRS 67.083 states that counties may provide memorials; since this is a public purpose which the county may engage in, the fiscal court may donate money to a private institution for this purpose if it so chooses. OAG 86-23 .

Although there is legal precedent for a county to acquire the stock of a private corporation in order to dissolve it, there is no authority for a county’s long term holding of the preferred stock of a private corporation. OAG 92-139 .

Although the county’s acceptance of preferred stock in a private corporation, in place of a debt owed the county by the corporation, might ultimately result in a salutary effect on unemployment, such public purpose, carried out by a county, and not under a specific statutory framework, is not allowed by this section. OAG 92-139 .

Constitution §§ 26, 157, 158, 162, and this section do not impose a general ban upon a county agreeing to joint and several liability with other counties or political entities; furthermore, these constitutional sections do not prohibit payment of obligations incurred in a prior year, from moneys of a subsequent year. OAG 93-54 .

This section which prohibits counties from owning stock in a corporation, also prohibits counties from forming a trust that owns stock in a corporation. OAG 94-1 .

Action of two (2) counties in executing an interlocal cooperation act in which they created a trust which issued tax-exempt bonds and used the proceeds to acquire all the stock of a corporation was prohibited by this section since the trust’s authority is no greater than that of either county, and since the counties cannot own stock in a corporation, neither can the trust. OAG 94-1 .

Appropriations by local governments to nonprofit organizations, which are earmarked and used for a public purpose, are a lawful use of public funds and are consistent with this section of the Kentucky Constitution. OAG 99-5 .

McCracken County Fiscal Court has the authority under Kentucky law to offer a grant of a short term loan to a start-up business if done for a legitimate public purpose. OAG 2008-06 .

Research References and Practice Aids

Kentucky Bench & Bar.

Tobergte, The Impact of Kentucky’s Present Constitution Upon Business Growth & Development, Volume 51, No. 3, Summer 1987 Ky. Bench & B. 21.

§ 180. Act or ordinance levying any tax must specify purpose, for which alone money may be used.

Every act enacted by the General Assembly, and every ordinance and resolution passed by any county, city, town or municipal board or local legislative body, levying a tax, shall specify distinctly the purpose for which said tax is levied, and no tax levied and collected for one purpose shall ever be devoted to another purpose.

Compiler’s Notes.

The General Assembly in 1996 proposed (Acts 1996, ch. 98, § 1) the amendment of this section. The amendment was ratified by the voters at the regular election in November 1996. Prior to the amendment the section read:

Ҥ 180. Act or ordinance levying any tax must specify purpose, for which alone money may be used.

The General Assembly may authorize the counties, cities or towns to levy a poll tax not exceeding one dollar and fifty cents per head. Every act enacted by the General Assembly, and every ordinance and resolution passed by any county, city, town or municipal board or local legislative body, levying a tax, shall specify distinctly the purpose for which said tax is levied, and no tax levied and collected for one purpose shall ever be devoted to another purpose.”

The 1990 General Assembly, by Acts 1990, ch. 150, § 5, proposed that the Constitution be amended by repealing this section. This amendment was submitted to the voters for ratification or rejection at the regular election in November, 1990, and was defeated.

NOTES TO DECISIONS

Cross-References

Cross-References

See notes to Const., § 184 under “8. Expenditures of Fundsb and b‚9. b”Valid:b Grayson County Board of Educ. v. Boone, 452 S.W.2d 371, 1970 Ky. LEXIS 348 (Ky. Ct. App. 1970).

1.Construction.

The provisions of this section are mandatory. Commonwealth v. United States Fidelity & Guaranty Co., 121 Ky. 409 , 89 S.W. 251, 28 Ky. L. Rptr. 362 , 1905 Ky. LEXIS 220 ( Ky. 1905 ).

This section does not limit the revenues of a year to the payment of liabilities incurred during that year, but only requires that revenues levied for a particular purpose, as for road purposes, be used for that purpose, either in the year levied or some other year. Lawrence County v. Lawrence Fiscal Court, 130 Ky. 587 , 113 S.W. 824, 1908 Ky. LEXIS 302 ( Ky. 1908 ).

This section and sections 184 and 186 of the Kentucky Constitution, when read together, prohibit the diversion of common school funds for purposes other than the maintenance of the public schools of the Commonwealth. Board of Education v. Lexington-Fayette Urban County Government, 691 S.W.2d 218, 1985 Ky. App. LEXIS 518 (Ky. Ct. App. 1985).

2.Application.

The limitations imposed by this section have no application to the poll tax voted for school purposes under authority of a valid election. Christopher v. Robinson, 164 Ky. 262 , 175 S.W. 387, 1915 Ky. LEXIS 368 ( Ky. 1915 ).

This section has no application to poll taxes levied for school purposes. Fiscal Court of Monroe County v. Board of Education, 294 Ky. 758 , 172 S.W.2d 624, 1943 Ky. LEXIS 534 ( Ky. 1943 ).

3.Poll Taxes.

The provision of this section that the General Assembly may authorize the counties, cities, or towns to levy a poll tax not exceeding $1.50 per head does not preclude the levy of the tax by both a county and a town. Short v. Bartlett, 114 Ky. 143 , 70 S.W. 283, 24 Ky. L. Rptr. 932 , 1902 Ky. LEXIS 140 ( Ky. 1902 ).

This section refers to poll taxes imposed for purposes other than the maintenance of common schools, and the maximum poll tax for general county purposes does not prevent a similar tax for school purposes, and under the Constitution the legislature may levy whatever taxes, ad valorem or capitation, necessary to provide an efficient system of common schools. McIntire v. Powell, 137 Ky. 477 , 125 S.W. 1087, 1910 Ky. LEXIS 590 ( Ky. 1910 ).

4.License Fees.

In view of Const., § 181 as to license fees, an act providing for license taxes on compounded and rectified distilled spirits is not unconstitutional for failure to specify the purpose for which the tax is levied. Brown-Foreman Co. v. Commonwealth, 125 Ky. 402 , 101 S.W. 321, 30 Ky. L. Rptr. 793 , 1907 Ky. LEXIS 285 ( Ky. 1907 ), aff'd, 217 U.S. 563, 30 S. Ct. 578, 54 L. Ed. 883, 1910 U.S. LEXIS 1984 (U.S. 1910).

A license fee is not a tax within the meaning of this section, and an ordinance imposing a license fee need not specify its purposes, except where required by specific statute. Pure Milk Producers & Distributors Ass'ns v. Morton, 276 Ky. 736 , 125 S.W.2d 216, 1939 Ky. LEXIS 575 ( Ky. 1939 ).

5.Levy on Special District.

Under this section when only a special district is liable for the tax, the levy should be so made as to indicate the territory on which it is levied. Carpenter v. Central Covington, 119 Ky. 785 , 81 S.W. 919, 26 Ky. L. Rptr. 430 , 1904 Ky. LEXIS 130 ( Ky. 1904 ).

6.Unattainable Purpose.

Bond proceeds, when the purpose of the issue has become impossible of attainment, may be used to retire the issue. Fiscal Court of Estill County v. Debt Com. of Kentucky, 286 Ky. 114 , 149 S.W.2d 735, 1941 Ky. LEXIS 209 ( Ky. 1941 ).

7.Funds.
8.— Separation.

Under this section a city was obligated to keep separate a fund levied to pay a bond issue from the fund levied for general purposes and neither of the funds should be devoted to another purpose or mixed with the other fund. Wilson v. Covington, 220 Ky. 795 , 295 S.W. 1069, 1927 Ky. LEXIS 637 ( Ky. 1927 ).

The city council should make separate tax levies for general expenses and for each bond issue before and since the adoption of the Constitution, keeping the moneys separate, and using them only for designated purposes. Frank v. Fuss, 235 Ky. 143 , 29 S.W.2d 603, 1930 Ky. LEXIS 300 ( Ky. 1930 ).

Annual interest and proportionate parts of the principal of a bond issue whose purpose is the funding of a floating debt must be paid from the regular, general and current revenues and the fiscal court must provide for these obligations out of the revenues by a special allocation of the levy and keep them as special inviolate funds under this section, Const., § 159 and KRS 68.100 . Fulton County Fiscal Court v. Southern Bell Tel. & Tel. Co., 285 Ky. 17 , 146 S.W.2d 15, 1940 Ky. LEXIS 591 ( Ky. 1940 ).

Annual diversion of $19 million in coal severance tax receipts from the Workers’ Compensation Benefit Reserve Fund (BRF) to the general fund did not violate Ky. Const. § 180 because the act levying the tax, KRS 143.090(4), did not, itself, dedicate coal severance tax revenue to the BRF or the Kentucky Workers' Compensation Funding Commission. Beshear v. Haydon Bridge Co., 304 S.W.3d 682, 2010 Ky. LEXIS 8 ( Ky. 2010 ).

9.— General.

State taxes levied for general fund are available for appropriation for any proper state purpose, including payment of park bonds. Walton v. Carter, 337 S.W.2d 674, 1960 Ky. LEXIS 363 ( Ky. 1960 ).

10.Surplus Funds.

The surplus remaining after the object of a tax levy has been accomplished must be treated as a part of the general funds of the county, and available for general county purposes. Field v. Stroube, 103 Ky. 114 , 44 S.W. 363, 19 Ky. L. Rptr. 1751 , 1898 Ky. LEXIS 32 ( Ky. 1898 ). See Whaley v. Commonwealth, 110 Ky. 154 , 61 S.W. 35, 23 Ky. L. Rptr. 1292 , 1901 Ky. LEXIS 73 ( Ky. 1901 ).

Where a city collected a greater sum for school purposes than requested by the board of education but within the limitation of the rate of assessment fixed in the statute, amount collected belonged to the school district. Board of Education v. Newport, 174 Ky. 28 , 191 S.W. 871, 1917 Ky. LEXIS 153 ( Ky. 1917 ).

When school bond issue raises more funds than are needed, the application of the excess to the payment of the bonds and interest is not a diversion prohibited by this section. Ashland v. Board of Education, 286 Ky. 69 , 149 S.W.2d 728, 1941 Ky. LEXIS 206 ( Ky. 1941 ).

When fiscal court accepts proposed budget and levies a tax for general fund purposes in accordance with the budget, the requirement of this section that resolution passed by any county levying a tax must specify distinctly the purpose for which the tax is levied, is satisfied and when the purpose for which a tax was levied has been accomplished the surplus may be transferred to the general fund and be used for any purpose for which a tax might have been levied. Nichols v. Henry, 301 Ky. 434 , 191 S.W.2d 930, 1945 Ky. LEXIS 746 ( Ky. 1945 ).

Surplus remaining after the purpose of a tax levy has been accomplished is treated as part of the general fund of the county and becomes available for general county use notwithstanding this section. Fannin v. Davis, 385 S.W.2d 321, 1964 Ky. LEXIS 158 ( Ky. 1964 ), overruled in part, Scalise v. Sewell-Scheuermann, 566 S.W.3d 539, 2018 Ky. LEXIS 451 ( Ky. 2018 ).

City’s sanitation assessment was not properly designated a “user fee,” but to the extent it was a fee/assessment for a local governmental service the excess revenues generated could be deemed taxes; when the annual sanitation assessment ordinances were passed and the monies collected it was clear that excess funds would be generated, and thus, even if the assessment was a service fee, the predictable excess regularly devoted to the city’s general expenditures was properly viewed as a tax. Scalise v. Sewell-Scheuermann, 566 S.W.3d 539, 2018 Ky. LEXIS 451 ( Ky. 2018 ).

Resident properly stated a cause of action on behalf of a city to recover the surplus sanitation revenue that was not devoted to trash collection and recycling because Ky. Rev. Stat. §§ 92.330 and 92.340 prohibited the use of the sanitation tax revenue for other non-sanitation purposes; the city council was avoiding the increasingly unpopular action of raising taxes and instead running the city in some part on the fully-expected excess sanitation revenue. Scalise v. Sewell-Scheuermann, 566 S.W.3d 539, 2018 Ky. LEXIS 451 ( Ky. 2018 ).

11.— Educational.

A tax levied and collected by a city for school purposes cannot be appropriated by act of the legislature to maintain a public library which is open to the pupils of the common schools only as a part of the general public, and which is not under the control of the board of education or the schools. Board of Education v. Board of Trustees, 113 Ky. 234 , 68 S.W. 10, 24 Ky. L. Rptr. 98 , 1902 Ky. LEXIS 45 ( Ky. 1902 ).

The use of funds collected for educational purposes, common school purposes, and the common school for the maintenance of a recreation plan did not violate this section, as recreational training is a part of the educational function. Dodge v. Jefferson County Board of Education, 298 Ky. 1 , 181 S.W.2d 406, 1944 Ky. LEXIS 815 ( Ky. 1 944).

A board of education cannot be required to pay an assessment to help build a floodwall because payment would be in violation of this section and Const., § 184. Board of Education v. Spencer County, Levee, Flood Control & Drainage Dist., 313 Ky. 8 , 230 S.W.2d 81, 1950 Ky. LEXIS 797 ( Ky. 1950 ).

This section and Const., § 184 must be read together in determining how school funds shall be spent, and the test to be applied in each instance is what constitutes an educational purpose within the meaning of Const., § 184, rather than whether an activity might be beneficial to education. Board of Education v. Spencer County, Levee, Flood Control & Drainage Dist., 313 Ky. 8 , 230 S.W.2d 81, 1950 Ky. LEXIS 797 ( Ky. 1950 ).

Revenues from bonds issued and from a special fund created for school buildings may not be used to repair a school stadium. Board of Education v. Williams, 256 S.W.2d 29, 1953 Ky. LEXIS 714 ( Ky. 1953 ).

12.Levy.
13.— Valid.

A city ordinance providing that all moneys received from licenses shall be paid to the treasurer, placed to the credit of the general revenue fund of the city, and used in defraying current and incidental expenses, except a certain proportion to be paid to the treasurer of the board of education for the use of the public schools of the city, sufficiently complies with this section. Burch v. Owensboro, 36 S.W. 12, 18 Ky. L. Rptr. 284 (1896).

An ordinance imposing a license fee on persons engaging in a trade, adopted under Const., § 181 and a statute, does not levy a tax within the meaning of this section, and the ordinance is not invalid because it does not specify the purpose for which the license fee is imposed. Shugars v. Hamilton, 122 Ky. 606 , 92 S.W. 564, 29 Ky. L. Rptr. 127 , 1906 Ky. LEXIS 80 ( Ky. 1906 ). See Brown-Foreman Co. v. Commonwealth, 125 Ky. 402 , 101 S.W. 321, 30 Ky. L. Rptr. 793 , 1907 Ky. LEXIS 285 ( Ky. 1907 ), aff'd, 217 U.S. 563, 30 S. Ct. 578, 54 L. Ed. 883, 1910 U.S. LEXIS 1984 (U.S. 1910).

An ordinance of a town levying a property tax for municipal purposes and a poll tax for said purposes sufficiently specifies the purposes for which the taxes are levied. Mt. Pleasant v. Eversole, 96 S.W. 478, 29 Ky. L. Rptr. 830 (1906).

If the purposes of a tax are found in the act levying it, this section is satisfied, though the purposes are stated in different parts of the act. Tyson v. Board of Trustees, 139 Ky. 256 , 129 S.W. 820, 1910 Ky. LEXIS 29 ( Ky. 1910 ).

A levy by a county fiscal court, reciting that it is made to defray current expenses, such as salaries, specifies distinctly the purpose for which the levy is made. Hillman Land & Iron Co. v. Commonwealth, 148 Ky. 331 , 146 S.W. 776, 1912 Ky. LEXIS 453 ( Ky. 1912 ) ( Ky. 1912 ).

The resolution of commissioners of a courthouse district, levying a tax for the purpose of paying the debts and interest of the said district maturing in the year 1911, specifies distinctly the purpose for which the tax is levied, being used in the sense of current expenses incurred during the year in maintaining the courthouse. Streine v. Comm'rs of Campbell Courthouse Dist., 149 Ky. 641 , 149 S.W. 928, 1912 Ky. LEXIS 672 ( Ky. 1912 ).

An ordinance imposing a license fee to be paid into the general revenue funds of said city specifies the purpose of the levy sufficiently, since all revenue collected by a city is primarily for the purpose of paying its general expenses, and constitutes the general fund whether or not such a fund is specifically set up by ordinance. Tandy & Fairleigh Tobacco Co. v. Hopkinsville, 174 Ky. 189 , 192 S.W. 46, 1917 Ky. LEXIS 183 ( Ky. 1917 ).

Where a license tax ordinance specified purpose for which tax was levied, an amendment was not invalid because of failure to state such purpose. Williams v. Bowling Green, 254 Ky. 11 , 70 S.W.2d 967, 1934 Ky. LEXIS 12 ( Ky. 1934 ).

An ordinance levying a tax and providing “ . . . . . that said license fees are hereby fixed, established, imposed and levied for the purpose of and to be paid into the general revenue funds of said city” sufficiently specified the purpose for which the taxes were levied. Planters Bank & Trust Co. v. Hopkinsville, 289 Ky. 451 , 159 S.W.2d 25, 1942 Ky. LEXIS 584 ( Ky. 1942 ).

Tax statute containing a sufficient specification of purpose at time it was enacted was not invalidated by subsequent omission of such provision upon revision. Commonwealth ex rel. Scent v. Smith, 353 S.W.2d 557, 1962 Ky. LEXIS 24 ( Ky. 1962 ).

14.— Invalid.

An order of a city council levying a tax is void unless it distinctly specifies the purpose for which the tax is levied. Somerset v. Somerset Banking Co., 109 Ky. 549 , 60 S.W. 5, 22 Ky. L. Rptr. 1129 , 1900 Ky. LEXIS 239 ( Ky. 1900 ).

A resolution of the trustees of a school district declaring that a property tax of 50 cents on each $100 worth of taxable property should be levied was void as it omitted to state the purpose of the tax. Morrell Refrigerator Car Co. v. Commonwealth, 128 Ky. 447 , 108 S.W. 926, 32 Ky. L. Rptr. 1383 , 32 Ky. L. Rptr. 1389 , 1908 Ky. LEXIS 86 ( Ky. 1908 ). See United States Fidelity & Guaranty Co. v. Board of Education, 118 Ky. 355 , 80 S.W. 1191, 26 Ky. L. Rptr. 246 , 1904 Ky. LEXIS 56 ( Ky. 1904 ); Chesapeake, O. & S.W.R.R. v. Commonwealth, 129 Ky. 318 , 111 S.W. 334, 33 Ky. L. Rptr. 882 , 1908 Ky. LEXIS 131 (1908).

The levy of a tax, void for failure to specify the purposes of the tax, on being amended in this particular, takes effect as of the date when the original levy would have taken effect had it been valid. Commonwealth Use Keown v. Chesapeake, O. & S. R. Co., 141 Ky. 633 , 133 S.W. 559, 1911 Ky. LEXIS 56 (Ky.), modified, Commonwealth use of Ohio County, v. Chesapeake, O. & S. W. R. Co., 143 Ky. 472 , 136 S.W. 895, 1911 Ky. LEXIS 434 ( Ky. 1911 ).

Where an ordinance does not specify the purposes for which a tax will be levied, the ordinance is in violation of this section and, therefore, void. Morton v. Fullerton, 229 Ky. 76 , 16 S.W.2d 797, 1929 Ky. LEXIS 707 ( Ky. 1929 ). See Trustees of Eddyville Common Graded School Dist. v. Cash's Adm'r, 245 Ky. 76 4, 54 S.W.2d 336, 1932 Ky. LEXIS 682 ( Ky. 1932 ).

A fiscal court order levying a tax which fails to specify the purpose for which the tax is levied is void under this section. Knox County v. Lewis' Adm'r, 253 Ky. 652 , 69 S.W.2d 1000, 1934 Ky. LEXIS 693 ( Ky. 1934 ).

15.Expenditures.
16.— Valid.

Where a tax was levied for the purpose of paying off the existing indebtedness of the county, and to defray current and necessary expenses of the same, the appropriation of a portion thereof for road and bridge purposes was not a use of the money for purposes other than for which it was collected. Poole v. Slayton, 128 Ky. 514 , 108 S.W. 903, 33 Ky. L. Rptr. 373 , 1908 Ky. LEXIS 82 ( Ky. 1908 ).

Where county defaulted on road and bridge bonds, and plan was worked out to refund issued by exchanging bonds for a new issue bearing a lower rate of interest, county had authority to agree to pay, out of road and bridge sinking fund, reasonable compensation to agent who perfected plan, the costs of publishing call notices, and service charges to an agency for handling interest and principal payments. Governor v. Wolfe County, 291 Ky. 267 , 163 S.W.2d 485, 1942 Ky. LEXIS 213 ( Ky. 1942 ).

Identical resolutions of the fiscal court and county school board issued prior to an election ordered under KRS 160.477 to permit the electorate to vote on a proposed special school building tax levy, which resolutions informed the voters the levy was to be used for a school building adequate for the pupils in the locality in grades one through 12, did not amount to a contract to conduct a high school in the new building and a subsequent decision, resulting from a school consolidation plan, to use the new building for a grade school was within the school board’s powers and did not constitute a diversion of tax revenues from the purpose for which they were collected. Ewing v. Peak, 266 S.W.2d 300, 1954 Ky. LEXIS 793 ( Ky. 1954 ).

The applicability of this section and Ky. Const., Sections 184 and 186 to the issue of whether a sewer user charge can be paid from school funds must be determined by a reasonable interpretation of whether the service or commodity provided is necessary for the maintenance of the public schools and is exclusively for the benefit of the public schools. Sewer user charges imposed upon a county board of education bear a reasonable and rational relationship to the value of the services provided and therefore are exclusively for the benefit of and necessary for the maintenance of the public schools. Board of Education v. Lexington-Fayette Urban County Government, 691 S.W.2d 218, 1985 Ky. App. LEXIS 518 (Ky. Ct. App. 1985).

17.— Invalid.

Claims against a county allowed by the fiscal court for one year cannot be paid out of the levy for a subsequent year as that would be devoting the taxes to a purpose for which they were not levied. Cooper v. Wait, 106 Ky. 628 , 51 S.W. 161, 21 Ky. L. Rptr. 229 , 1899 Ky. LEXIS 83 ( Ky. 1899 ).

Where funds were specified for use in construction of an adequate sewer system, such funds cannot be used to compensate for injuries due to alleged negligence of one of the contractors hired to construct the sewer system. T. B. Jones & Co. v. Ferro Concrete Const. Co., 154 Ky. 47 , 156 S.W. 1060, 1913 Ky. LEXIS 25 ( Ky. 1913 ).

After levy was made by appropriate ordinance for sinking fund, and tax was collected and deposited to credit of sinking fund, the city was thereafter without right to divert, by resolution or otherwise, the fund thus appropriated. Newport v. McLane, 256 Ky. 803 , 77 S.W.2d 27, 1934 Ky. LEXIS 491 ( Ky. 1934 ), overruled in part, Scalise v. Sewell-Scheuermann, 566 S.W.3d 539, 2018 Ky. LEXIS 451 ( Ky. 2018 ).

Purchase of county funding bonds with funds from the county sinking fund, where county was unable to sell such bonds in the open market, was unlawful as a diversion of tax revenues levied and collected for one purpose to another. Hays v. Isaacs, 275 Ky. 26 , 120 S.W.2d 737, 1938 Ky. LEXIS 359 ( Ky. 1938 ).

When money, which should have been allocated to various funds for which it was levied and apportioned, was used for other purposes, there was a clear violation of this section. Newport v. Rawlings, 289 Ky. 203 , 158 S.W.2d 12, 1941 Ky. LEXIS 25 ( Ky. 1941 ), overruled in part, Scalise v. Sewell-Scheuermann, 566 S.W.3d 539, 2018 Ky. LEXIS 451 ( Ky. 2018 ).

Proceeds from the sale of bonds which were issued to establish and maintain a city-owned light and power plant could not be diverted to payment of the city’s general indebtedness. Daily v. Smith's Adm'x, 297 Ky. 689 , 180 S.W.2d 861, 1944 Ky. LEXIS 783 ( Ky. 1944 ), overruled in part, Scalise v. Sewell-Scheuermann, 566 S.W.3d 539, 2018 Ky. LEXIS 451 ( Ky. 2018 ).

Since the purpose of KRS 178.210 is to improve and construct rather than to repair and maintain, the expenditure of funds realized from the collection of a special tax levy repair or maintenance of county roads or bridges was illegal in violation of this section and KRS 68.110 . Thompson v. Bracken County, 294 S.W.2d 943, 1956 Ky. LEXIS 153 ( Ky. 1956 ).

18.Statutes.
19.— Valid.

A statute requiring that guards appointed to protect property against mobs shall be paid out of the county treasury and levy of that year means that they are to be paid out of the general fund, and a designation of this fund, in an order of the fiscal court levying the tax, as the general claim fund is sufficiently specific. Cahill v. Perrine, 105 Ky. 531 , 49 S.W. 344, 1899 Ky. LEXIS 241 ( Ky. 1899 ).

KRS 91.430 does not violate this section. Board of Education v. Sea, 167 Ky. 772 , 181 S.W. 670, 1916 Ky. LEXIS 492 ( Ky. 1916 ).

An act involving a school tax levy was valid under this section where the budget section showed every item of school expense for the year as well as the total amount needed to be raised for school purposes by the tax levy. Fiscal Court of Jefferson County v. Jefferson County Board of Education, 196 Ky. 212 , 244 S.W. 764, 1922 Ky. LEXIS 511 ( Ky. 1922 ).

An act requiring that the proceeds of a school tax levy should bear the costs of the collection of this levy does not violate this section or Const., § 184. Ross v. Board of Education, 196 Ky. 366 , 244 S.W. 793, 1922 Ky. LEXIS 520 ( Ky. 1922 ).

KRS 441.220 to 441.300 (repealed) does not violate this section, as an attempted appropriation by the state of county funds levied and collected for specific county purposes. Connors v. Jefferson County Fiscal Court, 277 Ky. 23 , 125 S.W.2d 206, 1938 Ky. LEXIS 564 ( Ky. 1938 ).

KRS 158.115 authorizing county to use general funds to supplement school transportation system, including the furnishing of transportation to private, sectarian and parochial schools, does not violate this section. Nichols v. Henry, 301 Ky. 434 , 191 S.W.2d 930, 1945 Ky. LEXIS 746 ( Ky. 1945 ).

Statute authorizing a school board to impose occupational license fees but only after electoral approval is not unconstitutional on the ground that the use of school tax funds to defray the expenses of the election amounts to a diversion of tax revenue from the purpose for which it was collected. Sims v. Board of Education, 290 S.W.2d 491, 1956 Ky. LEXIS 329 ( Ky. 1956 ).

Statute authorizing payment of bonds issued to match federal highway funds from license, excise taxes and fees from the sale and use of motor vehicles and fuels does not violate this section. Dalton v. State Property & Bldgs. Com., 304 S.W.2d 342, 1957 Ky. LEXIS 276 ( Ky. 1957 ).

Statute providing for submission to voters of question of issuing general obligation bonds for developing and improving state parks and for constructing and improving highways, bridges and tunnels under federal cost participation program did not, by pledging ad valorem tax revenues to payment of park bonds, amount to a diversion of taxes from purposes for which they were levied, since such act in effect made provision for new levy replacing old levy, with new purposes, and did not purport to dispose of funds from old levy, while this section is concerned only with expenditure of funds that have been received from tax levy previously made. Walton v. Carter, 337 S.W.2d 674, 1960 Ky. LEXIS 363 ( Ky. 1960 ).

KRS 341.145 providing a scheme for increasing unemployment benefits does not violate this section, for increasing benefits does not constitute a changing of the purpose of the funds levied for unemployment compensation benefits. Commonwealth v. Associated Industries of Kentucky, 370 S.W.2d 584, 1963 Ky. LEXIS 76 ( Ky. 1963 ).

20.— Invalid.

A statute which appropriates for library purposes a part of the net amount raised for school purposes is invalid. Lambert v. Board of Trustees, 151 Ky. 725 , 152 S.W. 802, 1913 Ky. LEXIS 562 ( Ky. 1913 ).

Contributions of railroad workers paid pursuant to the unemployment compensation law and credited thereunder to the pooled account were taxes validly levied under this section for the sole purpose of paying unemployment compensation benefits, and the legislature could not transfer this fund to a federal fund in an effort to obtain benefits of a federal statute which removed railroad workers from operation of state statute. Unemployment Compensation Com. v. Savage, 283 Ky. 301 , 140 S.W.2d 1073, 1940 Ky. LEXIS 322 ( Ky. 1940 ).

An act providing for disposition of contributions of railroad workers to unemployment compensation fund violated this section, since it provided for a diversion of funds from the uses for which they were raised. Kentucky Color & Chemical Co. v. Barnes, 290 Ky. 681 , 162 S.W.2d 531, 1942 Ky. LEXIS 477 ( Ky. 1942 ).

The additional three percent (3%) fee allowed a sheriff for the collection of school taxes by KRS 160.500 violates this section and Const., § 184 as a diversion of tax revenues from the purpose for which levied. Dickson v. Jefferson County Board of Education, 311 Ky. 781 , 225 S.W.2d 672, 1949 Ky. LEXIS 1251 ( Ky. 1949 ).

A former provision of KRS 134.310 permitting excess of sheriff’s commission for collecting school taxes over and above costs of such collection to be applied to the general expenses of the sheriff’s office authorizes a diversion of school tax revenues to nonschool purposes and is unconstitutional. Board of Education v. Greenhill, 291 S.W.2d 36, 1956 Ky. LEXIS 366 ( Ky. 1956 ).

21.Collection Expenses.

Under this section a tax collector’s commission may not be paid out of taxes collected for school purposes. Winchester v. Board of Education, 182 Ky. 313 , 206 S.W. 492, 1918 Ky. LEXIS 366 ( Ky. 1918 ).

This section is not violated when a reasonable charge is made against a local school tax for its collection. Dickson v. Jefferson County Board of Education, 311 Ky. 781 , 225 S.W.2d 672, 1949 Ky. LEXIS 1251 ( Ky. 1949 ).

Retention by sheriff of four percent (4%) of school tax collected was unconstitutional diversion of school funds where evidence indicated one percent (1%) was sufficient to cover cost of collecting school tax and the extra three percent (3%) was to be used by sheriff for general expenses of his office. Board of Education v. Wagers, 239 S.W.2d 48, 1951 Ky. LEXIS 836 ( Ky. 1951 ).

A sheriff’s fee for collecting school taxes must not exceed the cost of such collection. Barren County Board of Education v. Edmunds, 252 S.W.2d 882, 1952 Ky. LEXIS 1036 ( Ky. 1952 ).

Although it may have been that the General Assembly’s intent was to create a flat four percent (4%) commission for the county clerks for collecting the taxes, such interpretation would bring subsection (3) of KRS 134.805 into conflict with this section and Const., § 184; therefore, a county clerk may not receive a fee for collecting the school tax which is in excess of his or her actual cost of collection, not exceeding four percent (4%). Benson v. Board of Education, 748 S.W.2d 156, 1988 Ky. App. LEXIS 11 (Ky. Ct. App. 1988).

The only exception to the constitutional limitations of this section and Const., § 184 prohibiting the use of school funds for anything other than school purposes is the payment by the school board of the reasonable and actual costs of collecting the taxes. Benson v. Board of Education, 748 S.W.2d 156, 1988 Ky. App. LEXIS 11 (Ky. Ct. App. 1988).

22.Liability for Improper Expenditures.

City commissioners who, pursuant to resolution, diverted money from sinking fund to general fund, are civilly liable with their sureties to city for amount diverted, and neither expediency nor emergency created by their own actions could be invoked to avert their liability. Newport v. McLane, 256 Ky. 803 , 77 S.W.2d 27, 1934 Ky. LEXIS 491 ( Ky. 1934 ), overruled in part, Scalise v. Sewell-Scheuermann, 566 S.W.3d 539, 2018 Ky. LEXIS 451 ( Ky. 2018 ).

Where taxes are expended for another purpose than that for which levied, those officials responsible for such expenditure are jointly and severally liable for the money so expended. Bernard v. McFarland, 267 Ky. 210 , 101 S.W.2d 913, 1937 Ky. LEXIS 292 ( Ky. 1937 ).

The fact that a board of education had been enjoined, in suit by taxpayers, from further collection of original tax for bonds was no defense where board had misapplied from sinking fund more than enough to pay the bonds. Board of Education v. Highland Cemetery, 292 Ky. 374 , 166 S.W.2d 854, 1942 Ky. LEXIS 99 ( Ky. 1942 ).

23.— Setoff.

In a suit by library board to recover fines and costs of a police court which were by statute designated for library use, the city could not claim a setoff for $3,000 raised by a special tax levy for library use in view of the fact that under this section such $3,000 could not have been used for any purpose other than that of use by the library. Owensboro v. Board of Trustees, 210 Ky. 482 , 276 S.W. 143, 1925 Ky. LEXIS 714 ( Ky. 1925 ).

Taxes may not be offset by a debt owed by the taxing power to the taxpayer. Irvine v. Wallace, 254 Ky. 564 , 71 S.W.2d 974, 1934 Ky. LEXIS 91 ( Ky. 1934 ).

24.— Repayment of Funds.

Where a city collected taxes paid in compromise, part of which money was for the public school tax, the city could not withhold the tax from the school system as under this section the city had no power to use such tax money for any other purpose. Cynthiana v. Board of Education, 52 S.W. 969, 21 Ky. L. Rptr. 731 , 1899 Ky. LEXIS 340 (Ky. Ct. App. 1899).

Money paid by a city to a library pursuant to a statute which was found to be in violation of this section may be recovered by the board of education to which the money should properly have been paid. Board of Trustees v. Board of Education, 75 S.W. 225, 25 Ky. L. Rptr. 341 (1903).

Where school subdistrict used, for general school purposes, the proceeds of a tax levied to pay bonds, which proceeds would have been sufficient to pay bonds in full, bondholders were entitled to judgment requiring school board to pay bonds out of board’s general fund, and to levy a tax to pay the balance of the bonds if the amount in the general fund was not sufficient to pay the bonds in full. Board of Education v. Highland Cemetery, 292 Ky. 374 , 166 S.W.2d 854, 1942 Ky. LEXIS 99 ( Ky. 1942 ).

Cited:

McDonald v. Louisville, 113 Ky. 425 , 68 S.W. 413, 24 Ky. L. Rptr. 271 , 1902 Ky. LEXIS 6 4 ( Ky. 1902 ); Covington v. District of Highlands, 113 Ky. 612 , 68 S.W. 669, 24 Ky. L. Rptr. 433 , 1902 Ky. LEXIS 89 ( Ky. 1902 ); Commonwealth v. Citizens' Nat'l Bank, 117 Ky. 946 , 80 S.W. 158, 25 Ky. L. Rptr. 2100 , 1904 Ky. LEXIS 265 ( Ky. 1904 ); Louisville v. Button, 118 Ky. 732 , 82 S.W. 293, 26 Ky. L. Rptr. 606 , 1904 Ky. LEXIS 92 ( Ky. 1904 ); George Schuster & Co. v. Louisville, 124 Ky. 189 , 89 S.W. 689, 28 Ky. L. Rptr. 588 , 1905 Ky. LEXIS 165 ( Ky. 1905 ); Morris v. Randall, 129 Ky. 720 , 112 S.W. 856, 1908 Ky. LEXIS 214 ( Ky. 1908 ); Western & Southern Life Ins. Co. v. Commonwealth, 133 Ky. 292 , 117 S.W. 376, 1909 Ky. LEXIS 168 ( Ky. 1909 ); Louisville v. Becker, 139 Ky. 17 , 129 S.W. 311, 1910 Ky. LEXIS 4 ( Ky. 1910 ); Louisville v. Belknap Hardware & Mfg. Co., 145 Ky. 266 , 140 S.W. 185, 1911 Ky. LEXIS 823 ( Ky. 1911 ); Southern Bitulithic Co. v. Detreville, 156 Ky. 513 , 161 S.W. 560, 1913 Ky. LEXIS 4 83 ( Ky. 1913 ); Falls City Const. Co. v. Fiscal Court of Wolfe County, 160 Ky. 623 , 170 S.W. 26, 1914 Ky. LEXIS 524 ( Ky. 1914 ); Clay v. Dixie Fire Ins. Co., 168 Ky. 315 , 181 S.W. 1123, 1916 Ky. LEXIS 543 ( Ky. 1916 ); Bird v. Asher, 170 Ky. 726 , 186 S.W. 663, 1916 Ky. LEXIS 129 ( Ky. 1916 ); McCrocklin v. Nelson County Fiscal Court, 174 Ky. 308 , 192 S.W. 494, 1917 Ky. LEXIS 197 ( Ky. 1917 ); Barker v. Crum, 177 Ky. 637 , 198 S.W. 211, 1917 Ky. LEXIS 6 65 ( Ky. 1917 ) (Ky. 1917); Commonwealth v. Silcox, 209 Ky. 32 , 272 S.W. 40, 1925 Ky. LEXIS 418 ( Ky. 1925 ); Talbott v. Kentucky State Board of Education, 244 Ky. 826 , 52 S.W.2d 727, 1932 Ky. LEXIS 516 ( Ky. 1932 ); Breathitt County v. Cockrell, 250 Ky. 743 , 63 S.W.2d 920, 1933 Ky. LEXIS 764 ( Ky. 1933 ); Fiscal Court of Scott County v. Davidson, 259 Ky. 498 , 82 S.W.2d 801, 1935 Ky. LEXIS 350 ( Ky. 1935 ); Superior Coal & Builders' Supply Co. v. Board of Education, 260 Ky. 84 , 83 S.W.2d 875, 1935 Ky. LEXIS 412 ( Ky. 1935 ); Wheeler v. Hopkinsville, 269 Ky. 289 , 106 S.W.2d 1016, 1937 Ky. LEXIS 594 ( Ky. 1937 ); Rose v. Knox County Fiscal Court, 279 Ky. 611 , 131 S.W.2d 498, 1939 Ky. LEXIS 319 ( Ky. 1939 ); Alvey v. Brigham, 286 Ky. 610 , 150 S.W.2d 935, 1940 Ky. LEXIS 6 ( Ky. 1940 ); Meagher v. Commonwealth, 305 Ky. 289 , 203 S.W.2d 35, 1947 Ky. LEXIS 784 ( Ky. 1947 ); Williams v. Board for Louisville & Jefferson County Children's Home, 305 Ky. 440 , 204 S.W.2d 490, 1947 Ky. LEXIS 825 ( Ky. 1947 ); Rash v. Louisville & Jefferson County Metropolitan Sewer Dist., 309 Ky. 442 , 217 S.W.2d 232, 1949 Ky. LEXIS 670 ( Ky. 1949 ); Fannin v. Williams, 655 S.W.2d 480, 1983 Ky. LEXIS 290 ( Ky. 1983 ).

Opinions of Attorney General.

The lending of school property, such as chairs, tables and projectors to various organizations for banquets and similarly related meetings constitutes an indirect, if not direct, use of school property and school funds for other than school purposes and is expressly prohibited by the Constitution. OAG 60-1032 .

A board of education may enter into a contract with the county library whereby the library will provide and circulate books to designated schools within the county school district without violating the provisions of this section and Const., § 184. OAG 61-506 .

A county board of education may not donate school funds to a town public library which is open to the public as well as school students, because such an appropriation or donation would constitute an expenditure of school funds for other than educational purposes; however, a board of education could enter into a contract with a town public library whereby the latter would agree to furnish books and services to the county school children in return for a certain sum. This would not violate this section and Const., § 184 because the school money expended would be for the direct benefit of only the school children in their district and, therefore, would not include the public generally. OAG 61-879 .

A municipality may not erect a water tank on school premises without the consent of the board of education and the payment of fair compensation for the use of school property. OAG 63-1060 .

A board of education may not provide and maintain an automobile for the personal use of a school superintendent. OAG 64-130 .

A board of education may provide and maintain an automobile for the benefit of the school superintendent while discharging the duties attendant to his office. OAG 64-130 .

An independent school district and a city may not cooperate to jointly construct, pay for and own an auditorium-gymnasium on school property, which would be used by the schools for educational purposes and by the city for various public functions. OAG 64-475 .

An independent school district can construct an auditorium-gymnasium and, after its completion, use the money which the city wishes to contribute as rent for the times when the building could be leased to the city. OAG 64-475 .

An organization may use school buses of an independent school district to transport children to a function if the buses are not being used for school purposes, if reasonable and adequate compensation is paid for their use, if adequate collision insurance is purchased by the organization, and if it will carry liability insurance sufficient to cover the liability of any and all persons who may be concerned, including the members of the local boards of education. OAG 64-630 .

A school board has legal authority to purchase liability insurance to cover the liability for sick-leave payments imposed by KRS 161.155 . OAG 64-841 .

It is legal for a board of education to execute a contract with a local health department to provide preventive medical services. OAG 65-293 .

Commingling of state and federal funds by a school would result in their becoming subject to the provisions of both state and federal laws governing their expenditure. OAG 65-625 .

A school board may lawfully purchase fire and extended coverage insurance in the form of a package policy even though the premium is not specifically allocable to individual coverages if it does not exceed the rate regularly charged for fire and extended coverage insurance, as approved by the Kentucky department of insurance for such risks. OAG 66-36 .

A restriction contained in a declaration of restrictions affecting a 10.44-acre tract proposed as a school site that would require the owner of the tract to pay an assessment that could be used for maintenance of other property in the subdivision would preclude the purchase of the tract as a school site since the payment of the assessment would violate this section and Const., § 184. OAG 67-413 .

Tax receipts derived under KRS 132.160 may be used for road construction and reconstruction purposes. OAG 68-233 .

Public schoolteachers may not, as a part of the duties for which they are compensated by boards of education, be assigned to teach in a private or sectarian school since the effect of such assignment would be to the primary benefit of the private or sectarian school as opposed to a primary benefit to its students or to the common schools and would offend this section and Const., § 184 which restrict school funds to public school purposes and would also offend Const., § 189 which prohibits the use by sectarian schools of funds levied for educational purposes. OAG 68-423 .

Expenditures of school funds to provide turnabouts for school buses on private property adjacent to bridges that have been condemned would offend this section and Const., § 184 and would not be a proper school board expenditure. OAG 68-473 .

An arrangement whereby a high school constructs a swimming pool on school property to be used by the students during school hours but which would be in the exclusive control of the school booster organization after school hours, which organization would sell pool memberships to the general public with the net proceeds to be paid to the board of education, would be proscribed by this section and Const., § 184. OAG 69-121 .

A school board could not grant an easement across school property to the metropolitan sewer district since the easement would not constitute an educational purpose. OAG 69-127 .

KRS 262.745 and this section would not permit the expenditure of a Commonwealth watershed conservancy district’s tax moneys for the acquisition of Tennessee lands for the purpose of building a floodwater retarding structure in Tennessee. OAG 69-204 .

A lease of school property permitting the construction of a swimming pool on the leased premises would not violate this section or Const., § 184 if the consideration received by the school district would be sufficient to compensate for the lease. OAG 69-290 .

Under this section and Const., § 184, the funds of the school board may not properly be expended to pay a portion of the salary of policewomen to patrol intersections on the city streets during school rush hours since this activity involves a service for the general public welfare rather than one which is designed to accomplish an educational purpose. OAG 69-488 .

The members of families of employees and/or the dependents of employees may, within the discretion of the board, participate in the various types of group coverage provided the extra cost of the family coverage or dependent coverage is paid by the employee. OAG 70-336 .

If in the year that sufficient revenue was derived from a special tax to finally retire all bonds and interest a surplus was created, such surplus could be appropriated by the county for general purposes without being prohibited by this section. OAG 70-671 .

Once the levying of a special tax has accumulated enough revenue to retire all bonds and pay all interest due, and even though there may be a surplus at that point, the levying of the special tax should cease. OAG 70-671 .

While general tax dollars provided by the state may be used to pay a portion of the costs incurred in operating special education classes for exceptional children, a local board of education is precluded from spending school funds for such purpose even though such an operation is a most laudable and commendable one. OAG 72-86 .

A school board may not make a contribution to a park commission which is seeking to accumulate a fund in order to secure matching federal funds for development of a community recreation park. Section 186 of the Constitution prohibits the use of school funds for other than school purposes. This section provides that no tax levied and collected for one purpose shall be used for another. It is therefore unconstitutional for a school board to contribute money for other purposes. OAG 72-95 .

Any fee collected by a sheriff in excess of the cost of collecting school funds would constitute a diversion of school funds for other than school purposes in violation of this section and section 184 of the Constitution. OAG 72-277 .

Under this section and § 184 of the Constitution it would be invalid for a school board to convey title to its property to a city except for fair market value or to lease the property for less than its fair rental value. OAG 72-376 .

Under this section and § 184 of the Constitution a school board may lease unused property provided that the consideration paid by the lessee is the fair rental value of the property. OAG 72-397 .

It is proper for a school district to require students to pay the cost of their meals, but if a school district sees fit to do so, it may use school funds to subsidize the school lunch program with the result that the pupils will be paying a price which is less than the cost of supplying their meals. OAG 73-754 .

The announcement over a school speaker system or the distribution of notices to children on school property of meetings of an organization of parents to promote a constitutional amendment which would forbid busing of school pupils for the purpose of achieving racial balance in the public schools constitutes an illegal use of school property and improperly interjects political questions into the operation of the public school. OAG 74-118 .

Public school teachers may not, as a part of the duties for which compensated by boards of education, be assigned, to teach in a private or sectarian school. OAG 74-331 . (Modifying OAG 68-150 , OAG 68-585 .)

Proposed public relations plan to have administrators of the school system join various service organizations of the community would not be a proper expenditure of school funds and would be unconstitutional under this section and Const., § 184. OAG 74-873 .

A school district may not spend funds for street construction and improvement on nonschool property. OAG 75-108 .

Once funding bonds have been paid off, the levy must be discontinued. OAG 75-162 .

A county fiscal court ordinance enacting a license tax for the stated purpose of defraying the general expenses of the county government, although somewhat generalized, is technically in compliance with this section and KRS 68.100 . OAG 75-385 .

Public school funds may not be expended to employ persons to control vehicular and pedestrian traffic on public streets or roads in or around school premises. OAG 75-614 .

An off-duty constable employed as a school security guard is an employee of the school board which may compensate him for his services. OAG 75-631 .

Although the services of school crossing guards are a benefit to school children, the guards do not serve an “educational purpose,” and thus school board funds may not be expended to pay the salaries of individuals who patrol intersections on city streets. OAG 76-239 .

A county sheriff’s fee for collecting school taxes must represent the reasonable cost of collection, as long as the rate does not exceed 4 percent, and the sheriff must document his reasonable costs of collection. OAG 76-251 .

The expenses of opening schools to serve as voting places on a presidential election day, as provided by subsection (2) of KRS 117.065 , when the schools are mandated to be closed by KRS 2.190 would be so small and incidental as not to be proscribed by Kentucky Constitution, §§ 180, 184, 186. OAG 76-592 . Withdrawing OAG 42-363 .

The circumstances surrounding the use of schools as voting places, as provided for in subsection (2) of KRS 117.065 , may be structured so that there does not exist any unwarranted and impermissible expenditures of public common school money for election purposes. OAG 76-614 .

The transfer by a county board of health to a county hospital of a blanket appropriation of a sum of the tax district fund would involve an illegal and unconstitutional transfer of such tax funds, since such blanket appropriation to a hospital, county, city or private, is not permissible under KRS Chapter 212 and this section. OAG 76-753 .

Once the sheriff’s total fee for collecting school taxes is properly computed the constitutional test of diversion is met since the constitutional diversion occurs no sooner than the reasonable cost of collection is exceeded, regardless of how much the excess is. OAG 78-146 .

The payment to the urban county government of 25% for the school tax collection fee paid to the sheriff does not constitute an unlawful diversion of school money. OAG 78-146 .

The total cost of collecting school taxes (prior to the 75% and 25% distribution at State level) is strictly constitutional as being an expenditure for school purposes. OAG 78-146 .

The use of county funds, personnel or equipment to improve or maintain private drives or lanes is illegal and unconstitutional. OAG 79-343 .

An ordinance providing that an occupational tax levied and collected shall be paid into the general revenue funds of the county would be sufficient compliance with this section. OAG 79-374 .

The use of city street equipment and material for paving private driveways purchased with public funds is illegal and unconstitutional, and the fact that the private citizens whose driveways are paved will repay the city for the material used is of no consequence as the question hinges on the initial use of such equipment and material purchased with public municipal funds. OAG 79-509 .

The expense allowance provided the county judge/executive in KRS 67.722 may be constitutionally funded from the county road fund, since such “administration of the local county road program” relates directly to the “cost of administration” of the county road program, as the terms “cost of administration” and “public highways” are used in Const., § 230 and as envisioned in KRS 68.100 , and this section; under the same reasoning, if it can be reasonably determined as to what percentage of his work schedule the county judge/executive is engaged in administrative work relating to the county road program of construction, maintenance, and repair, that percentage factor may be applied to his salary to determine that precise part of his salary which may be funded out of the county road fund. OAG 80-377 .

If school district money in any respect and in any amount is used to transport nonpublic school children the Constitution would be violated. OAG 82-392 .

It is not appropriate for the Board of Education to provide transportation for parochial pupils from their homes to the nearest public school, where they do not live within a reasonable walking distance to such school, and for the Board of Education to be reimbursed by either the fiscal court and/or the local parochial school system for the additional cost (if any) to the school system since reimbursement is required to be on a “per capita” basis. OAG 82-392 .

It is not constitutionally permissible for the Board of Education to provide transportation for parochial school pupils from their homes to the nearest public schools so long as they do not live within a reasonable walking distance to such school, where transportation from public schools to parochial schools would then be provided either by the fiscal court or the local parochial school system. OAG 82-392 .

Where nonpublic school children are transported on public school buses, irrespective of their point of departure, the local school district must be reimbursed on a per capita basis to avoid constitutional violation. The Court of Appeals has sanctioned only the per capita methodology for use in determining the additional transportation costs in transporting such children. OAG 82-392 .

KRS 158.115 was the authorizing statute for a contract requiring a fiscal court to reimburse a school district on a straight per capita basis for nonpublic school students who rode public school buses and, absent full reimbursement by the fiscal court to the school board, the expenditure of public school moneys for transporting nonpublic school children would create a constitutional violation under this section as well as other provisions. Therefore, failure by the school board to enforce the contract with the fiscal court would be tantamount to willful neglect of duty and could lead to removal from office. OAG 82-405 .

To the extent that a particular county tax ordinance or resolution spells out with particularity that all or a certain portion of the tax must go for county road purposes, any expenditure of that tax money, “earmarked” for county road purposes, to pay for the expense allowance provided for justices of the peace in KRS 64.530 , would be in violation of KRS 68.100 and this section. OAG 82-466 .

Within reason, school boards are permitted to bear the direct and indirect expenses incurred by teachers and administrators who attend, after prior approval by the board, professional activities and functions; however, school boards are not wholly unfettered in exercising their discretion in approving attendance at sundry professional activities since Const., § 184 and this section require that school funds may be used only for school purposes, the test being whether the expenditure is for an educational purpose rather than whether an activity might be beneficial to education. OAG 83-228 .

A proposal by the fiscal court to pay a sum equal to 150 percent of the purported “actual cost” of transporting “all” the school children in a school district may not be legally tolerated, since it appears that a purported “actual increase cost” figure for the cost of transporting the nonpublic school children may not be constitutionally determined. OAG 83-294 .

An expenditure of common school funds or a donation of school property for a public purpose other than for the benefit of public education is not permissible under this section and Const., §§ 184 and 186; therefore, under this section and Const., §§ 184 and 186, any transfer of surplus school buildings to community service organizations must be based on the fair market value of the property. OAG 91-85 .

It is still the opinion of the Attorney General’s office that OAG 79-107 represents the law of Kentucky and the interpretation of this section and Ky. Const., § 184, and that the expenditure of school funds for school guard crossings is prohibited constitutionally. OAG 92-6 .

A reward, offered by the local school board, for the purpose of apprehending the vandals who damaged school property constitutes a proper educational purpose within the meaning of this section and Ky. Const., §§ 184 and 186; the act also falls within the parameters of KRS 160.160 as being necessary in order that the board may accomplish the purposes for which it was created as the resources of each school system are limited, and must be protected. OAG 92-63 .

A school board cannot lawfully agree to provide materials paid for with school funds, or provide school funds themselves, whether under an intergovernmental agreement or otherwise, for the construction or maintenance of school bus turnarounds within the meaning of subsection (2) of KRS 178.290 . OAG 93-63 .

KRS 158.6455 permits a local school council or principal to use school reward money to pay teacher bonuses, and these bonuses are permissible under the Kentucky Constitution because they are “for school purposes.” OAG 00-2 .

A county board of education can constitutionally pay a privilege fee for connecting to a public sewer system. A privilege fee to fund construction of a sewer system is a “public school purpose” if it bears a rational relationship to the value of the services provided to the public schools. A fee based on usage and acreage meets this standard because it is proportional to the services provided. OAG 2009-01 .

Research References and Practice Aids

Cross-References.

City poll taxes, KRS 92.280 .

County poll taxes, KRS 68.090 .

Exemptions from poll tax, KRS 142.020 .

Purpose of tax, specification and use for, KRS 68.100 , 92.330 .

Surplus in special fund may be used for a similar purpose, KRS 68.120 .

§ 181. General Assembly may not levy tax for political subdivision, but may confer power — License and excise taxes — City taxes in lieu of ad valorem taxes.

The General Assembly shall not impose taxes for the purposes of any county, city, town or other municipal corporation, but may, by general laws, confer on the proper authorities thereof, respectively, the power to assess and collect such taxes. The General Assembly may, by general laws only, provide for the payment of license fees on franchises, stock used for breeding purposes, the various trades, occupations and professions, or a special or excise tax; and may, by general laws, delegate the power to counties, towns, cities and other municipal corporations, to impose and collect license fees on stock used for breeding purposes, on franchises, trades, occupations and professions. And the General Assembly may, by general laws only, authorize cities or towns of any class to provide for taxation for municipal purposes on personal property, tangible and intangible, based on income, licenses or franchises, in lieu of an ad valorem tax thereon: Provided, Cities of the first class shall not be authorized to omit the imposition of an ad valorem tax on such property of any steam railroad, street railway, ferry, bridge, gas, water, heating, telephone, telegraph, electric light or electric power company.

History. Amendment Acts 1902, ch. 50, adopted November, 1903.

Compiler’s Notes.

The 1990 General Assembly, by Acts 1990, ch. 150, § 5, proposed that the Constitution be amended by repealing this section. This amendment was submitted to the voters for ratification or rejection at the regular election in November, 1990, and was defeated.

The amendment to this section (Acts 1902, ch. 50) was carried in Carroll’s Statutes as Const., § 181a. However, since § 181a incorporated the wording of the original § 181 the “a” was deleted.

NOTES TO DECISIONS

1.In General.

This section gives the General Assembly power to tax every business and individual regardless of the nature of his trade or profession and without limitation on the amount of tax except that it not be unreasonable or arbitrary or amount to a denial of the right to engage in a particular trade or profession. Hager v. Walker, 128 Ky. 1 , 107 S.W. 254, 32 Ky. L. Rptr. 748 , 1908 Ky. LEXIS 29 ( Ky. 1 908 ).

Unless a tax is generally prohibitive or confiscatory, it may not be invalidated merely because it is so in individual cases. Hartman v. Louisville, 282 Ky. 487 , 138 S.W.2d 948, 1940 Ky. LEXIS 183 ( Ky. 1940 ).

2.Purpose.

The purpose of the provisions of this section prohibiting the Legislature from imposing taxes for the purposes of any county, but permitting it, by general law, to confer on the proper authorities thereof power to assess and collect taxes, is to enable each county to levy, collect, and spend its own taxes free from the control of the Legislature, and to prevent the Legislature from levying a tax on property located in any county for county governmental purposes. Mitchell v. Knox County Fiscal Court, 165 Ky. 543 , 177 S.W. 279, 1915 Ky. LEXIS 557 ( Ky. 1915 ).

3.Construction.

KRS 68.245 does not violate this section when it is construed together with Const., § 157 as it must be. Rea v. Gallatin County Fiscal Court, 422 S.W.2d 134, 1967 Ky. LEXIS 38 ( Ky. 1967 ).

This section requires no particular standard for measuring any tax. Second Street Properties, Inc. v. Fiscal Court of Jefferson County, 445 S.W.2d 709, 1969 Ky. LEXIS 179 ( Ky. 1969 ).

Statutes giving cities the authority to levy and collect an occupational license fee and providing that they shall be issued and enforced by local ordinance, authorize by implication the power to require the filing of the return and the enforcement of this requirement by means of a penalty as a necessary incident to the exercise of that power. Louisville v. Fischer Packing Co., 520 S.W.2d 744, 1975 Ky. LEXIS 171 ( Ky. 1975 ).

4.Ad Valorem Tax.

The amendment to this section permitted cities to adopt a license system in lieu of the ad valorem system of taxation. Wiemer v. Commissioners of Sinking Fund, 124 Ky. 377 , 99 S.W. 242, 30 Ky. L. Rptr. 523 , 1907 Ky. LEXIS 188 ( Ky. 1907 ).

The proviso at the end of this section prohibiting the omission of an ad valorem tax on personal property of certain utilities must be read in connection with the preceding clause, authorizing the substitution of a tax based on income, licenses or franchises in lieu of ad valorem tax, and as so read, the proviso mean that a city of the first class may not substitute any other tax for the ad valorem tax on utilities, but it does not mean that a city of the first class may not omit entirely an ad valorem tax on personal property of utilities where so authorized by the Legislature under Const., § 171. Reeves v. Louisville Gas & Electric Co., 290 Ky. 25 , 160 S.W.2d 391, 1942 Ky. LEXIS 362 ( Ky. 1942 ).

Former statute that provided that if the city council of a second-class city did not levy an ad valorem tax before May 1 of any year, the ad valorem tax rate of the preceding year should become the tax rate for that year, did not levy a tax for a city, nor did it fix a rate at which a levy shall be made by the city and, thus, it did not violate this section. Friedman v. Owensboro, 308 Ky. 315 , 213 S.W.2d 793, 1948 Ky. LEXIS 871 ( Ky. 1948 ).

In Kentucky, local real property taxes were required to be ad valorem, that is, based on assessed value; since a flat rate tax levied by a city was a specific or per unit tax and not based on value, it was invalid and unconstitutional. Class action relief was a proper remedy for aggrieved taxpayers. City of Bromley v. Smith, 149 S.W.3d 403, 2004 Ky. LEXIS 269 ( Ky. 2004 ).

5.Appropriations.

Where in the same session of the Legislature, an act is passed imposing a duty upon a state officer and an appropriation is passed for the officer to use in performing his duties, the two (2) must be read together so that there is no lack of an appropriation for the performance of the duty so imposed. State Budget Com. v. Adams, 249 Ky. 680 , 61 S.W.2d 314, 1933 Ky. LEXIS 584 ( Ky. 1933 ).

6.Assessments.

This section requires that municipal taxes be levied and collected annually, and not that property be annually assessed. Worton v. Paducah, 123 Ky. 44 , 93 S.W. 617, 29 Ky. L. Rptr. 450 , 1906 Ky. LEXIS 117 ( Ky. 1906 ).

The power to confer on the proper authorities of a municipality the authority to assess and collect taxes necessarily carries with it the power to regulate how the taxes shall be assessed and collected. Covington & C. Bridge Co. v. Davison, 102 S.W. 339, 31 Ky. L. Rptr. 425 (1907).

The power to assess means the power to levy a tax and does not mean the valuation of property for taxation. Board of Equalization v. Louisville & N. R. Co., 139 Ky. 386 , 109 S.W. 303, 33 Ky. L. Rptr. 78 , 1908 Ky. LEXIS 9 ( Ky. 1908 ).

A statute authorizing the state tax commission to equalize county assessments and to raise and lower county assessments does not violate this section as there is no attempt to impose taxes for county purposes. Fayette County v. Wells, 195 Ky. 608 , 243 S.W. 4, 1922 Ky. LEXIS 367 ( Ky. 1922 ).

Fire protection service charge, levied by city for purpose of financing city’s fire protection services on property within the city, whereby various types of property were assessed at a flat rate, was not an ad valorem tax or a special assessment and was not authorized by statute or the Constitution and was therefore invalid. Barber v. Commissioner of Revenue, 674 S.W.2d 18, 1984 Ky. App. LEXIS 467 (Ky. Ct. App. 1984).

7.Business.

The provisions of this section are broad enough to include any business or branch of business that any person may carry on in a city. Weyman v. Newport, 153 Ky. 487 , 156 S.W. 109, 1913 Ky. LEXIS 876 ( Ky. 1913 ).

The provision that the General Assembly may authorize municipal corporations to impose license taxes on trades, occupations, and professions is broad enough to include any business or branch of business that any person may carry on in a city. Weyman v. Newport, 153 Ky. 487 , 156 S.W. 109, 1913 Ky. LEXIS 876 ( Ky. 1913 ).

A firm engaged in storing and rehandling its own tobacco is engaged in a business and, as such term is synonymous with trade or occupation, such a firm may be subject to a license tax. R. J. Reynolds Tobacco Co. v. Lexington, 181 Ky. 503 , 205 S.W. 592, 1918 Ky. LEXIS 568 ( Ky. 1918 ).

Under a city charter authorizing licenses on trades and occupations, a license tax on business is valid, that term being synonymous with trade or occupation. R. J. Reynolds Tobacco Co. v. Lexington, 181 Ky. 503 , 205 S.W. 592, 1918 Ky. LEXIS 568 ( Ky. 1918 ).

Ten cents ($.10) per pound oleomargarine sales tax was violative of this section and state bill of rights, as being prohibitive of legitimate business, since such tax had practically destroyed such business. Field Packing Co. v. Glenn, 5 F. Supp. 4, 1933 U.S. Dist. LEXIS 1127 (D. Ky.), modified, 290 U.S. 177, 54 S. Ct. 138, 78 L. Ed. 252, 1933 U.S. LEXIS 453 (U.S. 1933).

When this section was read in connection with bill of rights, it conferred no power to prohibit or substantially prohibit, by taxation, legitimate business. Field Packing Co. v. Glenn, 5 F. Supp. 4, 1933 U.S. Dist. LEXIS 1127 (D. Ky.), modified, 290 U.S. 177, 54 S. Ct. 138, 78 L. Ed. 252, 1933 U.S. LEXIS 453 (U.S. 1933).

Businesses may be classified for the purpose of license taxes as follows: (1) a uniform tax upon all persons engaged in the same business without reference to the amount of business done; (2) a uniform tax upon the volume of business done, without distinction as to amount; (3) a division of a general class into separate classes according to the volume of business done, and the imposition of a different tax upon each division. Great Atlantic & Pacific Tea Co. v. Kentucky Tax Com., 278 Ky. 367 , 128 S.W.2d 581, 1939 Ky. LEXIS 406 ( Ky. 1939 ).

Differences in number only, or in the methods of conducting a business do not alone provide a natural and reasonable basis of classification for the purpose of taxation. Great Atlantic & Pacific Tea Co. v. Kentucky Tax Com., 278 Ky. 367 , 128 S.W.2d 581, 1939 Ky. LEXIS 406 ( Ky. 1939 ).

Law that provided for a chain store tax violated this section since the alleged advantages attached to multiple store operations, such as abundant capital, quantity buying, buying for cash and skill in buying, have no relation to the number of units and form no reasonable basis for the classification. Great Atlantic & Pacific Tea Co. v. Kentucky Tax Com., 278 Ky. 367 , 128 S.W.2d 581, 1939 Ky. LEXIS 406 ( Ky. 1939 ).

City ordinance which taxed “entertainment centers” based on their volume of business but required substantially similar businesses to pay only a nominal yearly fee was arbitrary, unreasonable and capricious; and hence, unconstitutional. Renfro Valley Folks v. City of Mt. Vernon, 872 S.W.2d 472, 1993 Ky. App. LEXIS 174 (Ky. Ct. App. 1993).

8.Cities.

A statute requiring that all the expenses of an inquest held in a city of over 30,000 shall be paid by that city does not violate this section. Whittenberg v. Louisville, 238 Ky. 117 , 36 S.W.2d 853, 1931 Ky. LEXIS 187 ( Ky. 1931 ). See Louisville v. Keaney, 267 Ky. 557 , 102 S.W.2d 996, 1937 Ky. LEXIS 346 ( Ky. 1937 ).

9.City Purposes.

An act requiring a city which plans to establish a water system in a neighboring town which it may annex to purchase the property of the company then supplying that town is invalid under this section as such a purchase would require a tax levy resulting in the state indirectly levying a tax for municipal purposes. Kenton Water Co. v. Covington, 156 Ky. 569 , 161 S.W. 988, 1913 Ky. LEXIS 489 ( Ky. 1913 ).

Statute requiring sale of franchise by municipality to highest and best bidder on expiration of prior franchise does not violate this section. Kentucky Utilities Co. v. Board of Comm'rs, 254 Ky. 527 , 71 S.W.2d 1024, 1933 Ky. LEXIS 4 ( Ky. 1933 ).

This section prohibits the General Assembly through its taxing power from evading by indirection the limits on the tax rates of cities and counties imposed by another provision of the Constitution. Board of Trustees v. Paducah, 333 S.W.2d 515, 1960 Ky. LEXIS 196 ( Ky. 1960 ).

10.Conferring of Power.

This section authorizes the state to commit to one body the power to levy certain taxes and to another to levy other taxes but when it does so, all taxes so levied are levied under the authority of the state. Commonwealth v. Citizens' Nat'l Bank, 117 Ky. 946 , 80 S.W. 158, 25 Ky. L. Rptr. 2100 , 1904 Ky. LEXIS 265 ( Ky. 1904 ), writ of error dismissed, 199 U.S. 603, 26 S. Ct. 750, 50 L. Ed. 329, 1905 U.S. LEXIS 963 (U.S. 1905).

Statute providing for issuance of bonds by city for the construction of soldiers’ and sailors’ memorial is not an attempt to confer power on city to levy tax for county purposes, though memorial is intended also for soldiers and sailors from county outside city limits. Hunter v. Louisville, 204 Ky. 562 , 265 S.W. 277, 1924 Ky. LEXIS 552 ( Ky. 1924 ).

Where the General Assembly has delegated to a city power to levy license taxes, the discretion of the city within the limits of the legislative grant is as far-reaching as when the power is directly exercised by the Legislature itself. Kroger Grocery & Baking Co. v. Lancaster, 276 Ky. 585 , 124 S.W.2d 745, 1938 Ky. LEXIS 558 ( Ky. 1938 ).

This section does not of itself grant any taxing powers to cities but only authorizes the delegation of such powers to cities by legislation enacted by the General Assembly. George Wiedemann Brewing Co. v. Newport, 321 S.W.2d 404, 1959 Ky. LEXIS 282 ( Ky. 1959 ).

In allowing local government to impose a tax on room rent to finance promotion of convention and tourist activity, the Legislature was not delegating its legislative power, but was simply giving its sanction to the exercise of a local taxing power. Second Street Properties, Inc. v. Fiscal Court of Jefferson County, 445 S.W.2d 709, 1969 Ky. LEXIS 179 ( Ky. 1969 ).

A city is without any inherent authority to tax or regulate and is confined to any exercise of such powers by the authority delegated by the state. Erlanger v. KSL Realty Corp., 704 S.W.2d 649, 1986 Ky. LEXIS 228 ( Ky. 1986 ).

11.County Purposes.

Statute providing for payment of arrest fee from costs or county funds to officer making arrest under the statute is constitutional. Duke v. Boyd County, 225 Ky. 112 , 7 S.W.2d 839, 1928 Ky. LEXIS 712 ( Ky. 1928 ).

Since uniform county budget act providing booklets, receipts, blanks, and records are to be furnished to counties under uniform state accounting law meant they were to be furnished by fiscal courts, the act was not contrary to constitution prohibiting state imposition of taxes for county purposes. State Budget Com. v. Adams, 249 Ky. 680 , 61 S.W.2d 314, 1933 Ky. LEXIS 584 ( Ky. 1933 ).

Tax authorized by statute upon each conviction in a criminal case in a court in any county containing a city of the first class, the proceeds of which were to go to the county jail building fund, was invalid, and it is not the type of tax which can be levied by a county under Const., § 171, nor can it be levied as a state tax because it is for county purposes and has no statewide application. Driver v. Sawyer, 392 S.W.2d 52, 1965 Ky. LEXIS 260 ( Ky. 1965 ).

12.Fiscal Courts.

KRS 67.083 , to the extent that it grants powers to the fiscal court not enumerated in this section, is in a vacuum and is a nullity. Fiscal Court of Jefferson County v. Louisville, 559 S.W.2d 478, 1977 Ky. LEXIS 554 ( Ky. 1977 ).

County fiscal court’s ordinance that provided for disparate treatment of license fee payers based on whether they paid the license fee based on their net profit or wages earned was invalid to the extent of that disparate treatment; the authorizing statute, KRS 68.197(3), stated that employers, employees, and businesses should be treated alike and, thus, the county fiscal court could not enact an ordinance providing for such disparate treatment. Hardwick v. Boyd County Fiscal Court, 219 S.W.3d 198, 2007 Ky. App. LEXIS 85 (Ky. Ct. App. 2007).

13.Exemptions.

KRS 132.200 , exempting manufacturing machinery from local taxation, is effective to exempt manufacturing machinery of utilities in cities of the first class, since Const., § 171 authorizes such exemption. This section does not prohibit the exemption but only prohibits the substitution of any other tax for an ad valorem tax on property of utilities that is not otherwise exempted from an ad valorem tax. Reeves v. Louisville Gas & Electric Co., 290 Ky. 25 , 160 S.W.2d 391, 1942 Ky. LEXIS 362 ( Ky. 1942 ).

14.Excise Tax.

A tax on each pint of liquor sold at retail is a valid excise tax under this section. State Tax Com. v. Hughes Drug Co., 219 Ky. 432 , 293 S.W. 944, 1927 Ky. LEXIS 350 ( Ky. 1927 ).

Statute taxing each pint of distilled spirits sold at retail is a valid excise tax for the purpose of raising revenue. State Tax Com. v. Hughes Drug Co., 219 Ky. 432 , 293 S.W. 944, 1927 Ky. LEXIS 350 ( Ky. 1927 ).

Tax of ten cents ($.10) per pound imposed by statute on all oleomargarine sold in state was excise tax, and had to find its justification in this section. Field Packing Co. v. Glenn, 5 F. Supp. 4, 1933 U.S. Dist. LEXIS 1127 (D. Ky.), modified, 290 U.S. 177, 54 S. Ct. 138, 78 L. Ed. 252, 1933 U.S. LEXIS 453 (U.S. 1933).

Statute imposing tax per quart on ice cream, to be collected by person making first sale thereof within the state and accounted for to the department of revenue, was an excise tax within constitutional provision authorizing excise taxes, and was invalid as confiscatory. Martin v. Nocero Ice Cream Co., 269 Ky. 151 , 106 S.W.2d 64, 1937 Ky. LEXIS 543 ( Ky. 1937 ).

The special or excise taxes provided for in this section are annual taxes within the meaning of Const., § 50. Dalton v. State Property & Bldgs. Com., 304 S.W.2d 342, 1957 Ky. LEXIS 276 ( Ky. 1957 ).

The authorization of this section to cities to impose and collect license fees does not encompass “excise” taxes. Lexington v. Motel Developers, Inc., 465 S.W.2d 253, 1971 Ky. LEXIS 443 ( Ky. 1971 ); C. C. C. Coal Co. v. Pike County, 536 S.W.2d 467, 1976 Ky. LEXIS 80 ( Ky. 1976 ).

County tax levied upon the business of receiving and/or processing coal at a fixed place of business within the county for distribution outside the county was an excise tax which was invalid under this section. C. C. C. Coal Co. v. Pike County, 536 S.W.2d 467, 1976 Ky. LEXIS 80 ( Ky. 1976 ).

15.Inheritance Tax.

Even if an inheritance tax is considered a special or excise tax authorized by this section, and the rule as to uniformity of taxation applies, a statute imposing a collateral inheritance tax of $5.00 on every $100 of every legacy of the class taxed in excess of $500, to the extent of the excess, satisfies the rule as to uniformity. Booth's Ex'r v. Commonwealth, 130 Ky. 88 , 113 S.W. 61, 1908 Ky. LEXIS 247 ( Ky. 1908 ).

The inheritance tax is in effect a special or excise tax as authorized under this section. Booth's Ex'r v. Commonwealth, 130 Ky. 88 , 113 S.W. 61, 1908 Ky. LEXIS 247 ( Ky. 1908 ).

16.Inspection Fees.

A fee imposed on farmers selling their own produce in city exempting them from license tax on wholesale dealers was not an excise tax or privilege tax, but an inspection fee validly levied under the police power. Hartman v. Louisville, 282 Ky. 487 , 138 S.W.2d 948, 1940 Ky. LEXIS 183 ( Ky. 1940 ).

17.Juvenile Courts.

The legislature has no power to require a city, without its consent, to pay one half (1/2) of the expenses of a juvenile court controlled entirely by the county. Campbell County v. Newport, 174 Ky. 712 , 193 S.W. 1, 1917 Ky. LEXIS 258 ( Ky. 1917 ) ( Ky. 1917 ).

18.License Fees.

An ordinance imposing a license fee on persons engaging in a trade, adopted under this section and a statute, does not levy a tax within the meaning of Const., § 180, and the ordinance is not invalid because it does not specify the purpose for which the license fee is imposed. Shugars v. Hamilton, 122 Ky. 606 , 92 S.W. 564, 29 Ky. L. Rptr. 127 , 1906 Ky. LEXIS 80 ( Ky. 1906 ). See Brown-Foreman Co. v. Commonwealth, 125 Ky. 402 , 101 S.W. 321, 30 Ky. L. Rptr. 793 , 1907 Ky. LEXIS 285 ( Ky. 1907 ), aff'd, 217 U.S. 563, 30 S. Ct. 578, 54 L. Ed. 883, 1910 U.S. LEXIS 1984 (U.S. 1910).

Ordinarily the reasonableness of a license fee imposed as a tax is a question for the taxing power but this rule is subject to the limitation that the tax imposed shall not amount to a prohibition of any useful or legitimate occupation. Fiscal Court of Owen County v. F. & A. Cox Co., 132 Ky. 738 , 117 S.W. 296, 1909 Ky. LEXIS 151 ( Ky. 1909 ).

The rule that the reasonableness of a license fee imposed as a tax is a question for the taxing power, and that the courts will not interfere with its discretion, is subject to the limitation that the tax shall not amount to a prohibition of any useful or legitimate occupation. Fiscal Court of Owen County v. F. & A. Cox Co., 132 Ky. 738 , 117 S.W. 296, 1909 Ky. LEXIS 151 ( Ky. 1909 ).

A court will not interfere with license fees imposed under this section unless the fee is arbitrary and oppressive. Henderson v. Lockett, 157 Ky. 366 , 163 S.W. 199, 1914 Ky. LEXIS 283 ( Ky. 1914 ).

Fact that long-term nursing facility operators sold nearly all of their respective assets did not remove the transactions from the realm of “business activity” or the gains from them from the umbrella of “net profits” for purposes of an occupational license fee, as such was authorized by the local regulations pursuant to the authority under Ky. Const. § 181 and KRS 91.200 . Meadows Health Sys. East, Inc. v. Louisville/Jefferson County Metro Revenue Comm'n, 375 S.W.3d 71, 2012 Ky. App. LEXIS 132 (Ky. Ct. App. 2012).

Long-term nursing facility operators’ challenge to a revenue commission’s collection of an occupational license fee on their capital gains from the sale of their facilities lacked merit under Ky. Const. § 181 and KRS 91.200 , as such did not constitute an income tax, and the local authorities had discretion to determine what constituted “net profits” for such tax purposes. Meadows Health Sys. East, Inc. v. Louisville/Jefferson County Metro Revenue Comm'n, 375 S.W.3d 71, 2012 Ky. App. LEXIS 132 (Ky. Ct. App. 2012).

19.— Attorneys.

Where the General Assembly has authorized a city to impose license fees on professions, an ordinance by such a city requiring attorneys at law to pay a license fee on their profession, and providing for the imposition of a fine on failure to do so, is valid. Yantis v. Lexington, 94 S.W. 653, 29 Ky. L. Rptr. 689 , 1906 Ky. LEXIS 319 (Ky. Ct. App. 1906). See Baker v. Lexington, 53 S.W. 16, 21 Ky. L. Rptr. 809 , 1899 Ky. LEXIS 388 (Ky. Ct. App. 1899).

20.— Boards of Education.

Statute authorizing a board of education to impose occupational license fees does not violate this section. Sims v. Board of Education, 290 S.W.2d 491, 1956 Ky. LEXIS 329 ( Ky. 1956 ).

21.— Cleaning and Dyeing.

An ordinance imposing license fee of $200 for engaging in or soliciting business of cleaning or dyeing clothes without operating plant in city is not arbitrarily discriminatory because it imposed a fee of only $25.00 on business of operating cleaning and dyeing plant in city. Williams v. Bowling Green, 254 Ky. 11 , 70 S.W.2d 967, 1934 Ky. LEXIS 12 ( Ky. 1934 ).

22.— County.

Statute requiring the county to pay the fees of the local registrar of the bureau of vital statistics is not invalid under this section or Const., §§ 171 and 181. Furlong v. Darnaby, 206 Ky. 63 , 257 S.W. 707, 1923 Ky. LEXIS 2 ( Ky. 1923 ).

23.— Distilled Spirits.

In view of this section as to license fees, an act providing for license taxes on compounded and rectified distilled spirits is not unconstitutional for failure to specify the purpose for which the tax is levied. Brown-Foreman Co. v. Commonwealth, 125 Ky. 402 , 101 S.W. 321, 30 Ky. L. Rptr. 793 , 1907 Ky. LEXIS 285 ( Ky. 1907 ), aff'd, 217 U.S. 563, 30 S. Ct. 578, 54 L. Ed. 883, 1910 U.S. LEXIS 1984 (U.S. 1910).

24.— Franchises.

The provisions of this section authorizing the imposition of license fees on franchises does not contemplate that the Legislature may authorize a city to tax the same privilege against the same owner. Cumberland Tel. & Tel. Co. v. Hopkins, 121 Ky. 850 , 90 S.W. 594, 28 Ky. L. Rptr. 846 , 1906 Ky. LEXIS 268 ( Ky. 1906 ).

The General Assembly may constitutionally provide for payment of license fees on franchises or occupations, or a special or excise tax, in addition to the ad valorem tax authorized by Const., § 171. Shanks v. Kentucky Independent Oil Co., 225 Ky. 303 , 8 S.W.2d 383, 1928 Ky. LEXIS 756 ( Ky. 1928 ).

25.— Gross Receipts.

Since, except for ad valorem taxes and taxes on personal property based on income, license or franchise, in lieu of ad valorem tax thereon, cities are limited to revenue from license fees as a source of income, occupational license tax imposed on gross receipts was valid as a license fee. George Wiedemann Brewing Co. v. Newport, 321 S.W.2d 404, 1959 Ky. LEXIS 282 ( Ky. 1959 ).

26.— Insurance Companies.

Statute providing that a city council may, by ordinance, require license fees to be paid by insurance companies for the privilege of doing business is valid and authorizes such license tax in addition to a tax on tangible property. Fidelity & Casualty Co. v. Louisville, 106 Ky. 207 , 50 S.W. 35, 20 Ky. L. Rptr. 1785 , 1899 Ky. LEXIS 25 ( Ky. 1899 ). See German Washington Mut. Fire Ins. Co. v. Louisville, 117 Ky. 593 , 78 S.W. 472, 80 S.W. 154, 25 Ky. L. Rptr. 1697 , 25 Ky. L. Rptr. 2097 , 1904 Ky. LEXIS 224 ( Ky. 1904 ).

27.— Liquor.

Statute imposing a limit on the license fees of brewers alone does not constitute an unconstitutional tax discrimination since the alcoholic beverage business is of such a special nature that it may properly be treated as a separate classification for purposes of regulation and license taxation. George Wiedemann Brewing Co. v. Newport, 321 S.W.2d 404, 1959 Ky. LEXIS 282 ( Ky. 1959 ).

28.— Peddlers.

Under this section a city of the fifth class may impose a license fee on peddlers or itinerant retailers of goods, wares and merchandise of any description. Carlisle v. Hechinger, 103 Ky. 381 , 45 S.W. 358, 20 Ky. L. Rptr. 74 , 1898 Ky. LEXIS 77 ( Ky. 1898 ).

29.— Produce Dealers.

City ordinance requiring established produce dealers to pay annual license fee of one-half (1/2) that imposed on nonestablished dealers was constitutional, the classification being reasonable and the fee as to nonestablished dealers not being confiscatory or prohibitive. Hartman v. Louisville, 282 Ky. 487 , 138 S.W.2d 948, 1940 Ky. LEXIS 183 ( Ky. 1940 ).

30.— Vending Machines.

City ordinance imposing $10.00 yearly license fee on each coin-operated merchandise vending machine is valid. Harrodsburg v. Devine, 418 S.W.2d 426, 1967 Ky. LEXIS 218 ( Ky. 1967 ).

31.License Tax.

The ad valorem system of taxation must be applied to both real and personal property and a municipality may not impose a license tax in lieu of an ad valorem tax on personalty used as part of a business. Levi v. Louisville, 97 Ky. 394 , 30 S.W. 973, 16 Ky. L. Rptr. 872 , 1895 Ky. LEXIS 196 ( Ky. 1895 ).

Under a statute empowering a city council to impose license taxes on all trades and professions, the amount of the tax is left to the discretion of the city council, and an ordinance cannot be declared invalid because the tax imposed is unreasonable or is oppressive to small dealers. Hall v. Commonwealth, 101 Ky. 382 , 41 S.W. 2, 19 Ky. L. Rptr. 578 , 1897 Ky. LEXIS 191 ( Ky. 1897 ).

A statute imposing a higher tax upon a nonresident corporation in this state, if a higher rate of taxation is imposed on companies organized under the laws of this state in the state of domicile of such nonresident companies, is unconstitutional. Western & Southern Life Ins. Co. v. Commonwealth, 133 Ky. 292 , 117 S.W. 376, 1909 Ky. LEXIS 168 ( Ky. 1909 ), overruled, Clay v. Dixie Fire Ins. Co., 168 Ky. 315 , 181 S.W. 1123, 1916 Ky. LEXIS 543 ( Ky. 1916 ).

A city ordinance requiring that every person or corporation engaged in selling goods except by sample would be required to purchase a license was valid under this section as the classification used is reasonable and it is lawful to impose a license tax on merchandising as an occupation. Louisville v. Sagalowski, 136 Ky. 324 , 124 S.W. 339, 1910 Ky. LEXIS 487 ( Ky. 1910 ).

Although license taxes must be uniform with regard to a particular class which is taxed, a city may classify occupations if the classification is made upon a reasonable and natural basis. Weyman v. Newport, 153 Ky. 487 , 156 S.W. 109, 1913 Ky. LEXIS 876 ( Ky. 1913 ).

While municipal councils may make reasonable classifications for the imposition of license taxes, they cannot omit particular persons but are warranted, in view of the general business of a grocery store, which carries all sorts of provisions, in imposing a general license which will include a milk vendor’s license. Newport v. French Bros. Bauer Co., 169 Ky. 174 , 183 S.W. 532, 1916 Ky. LEXIS 677 ( Ky. 1916 ).

Notwithstanding the power to impose a license tax, a municipality may not impose such a tax in a sum that would be unreasonable and which would amount to a prohibition of the continued engagement in that business. Salisbury v. Equitable Purchasing Co., 177 Ky. 348 , 197 S.W. 813, 1917 Ky. LEXIS 590 ( Ky. 1917 ) ( Ky. 1917 ).

License taxes on occupations may be imposed to raise revenue or to control or limit the exercise of a particular vocation. Howard v. Lebby, 197 Ky. 324 , 246 S.W. 828, 1923 Ky. LEXIS 626 ( Ky. 1923 ).

This section must of course be read in connection with the bill of rights, and a license tax which amounts, in effect, to confiscation or the suppression of a legitimate occupation is forbidden. Great Atlantic & Pacific Tea Co. v. Kentucky Tax Com., 278 Ky. 367 , 128 S.W.2d 581, 1939 Ky. LEXIS 406 ( Ky. 1939 ).

Though Const., §§ 1 and 2 guarantee to everyone the inalienable right to earn a livelihood, this section expressly qualifies that right to the extent that it empowers cities, counties, towns and other municipal corporations to impose an occupational license tax on trades, occupations and professions embracing fields of employment and all means of earning a livelihood. Louisville v. Sebree, 308 Ky. 420 , 214 S.W.2d 248, 1948 Ky. LEXIS 907 ( Ky. 1948 ).

Where the Legislature has granted to all classes of cities the authority to levy any and all taxes provided for in this section, a city of the second class has the authority to levy an occupational license tax upon the privilege of engaging in a business or profession or carrying on an occupation within the city, although the city has an ad valorem tax on personal property. Kohler v. Benckart, 252 S.W.2d 854, 1952 Ky. LEXIS 1025 ( Ky. 1952 ).

An occupational license tax payable by all persons employed within the city is authorized by this section. Grimm v. Moloney, 358 S.W.2d 496, 1962 Ky. LEXIS 180 ( Ky. 1962 ).

A tax on the rental of hotel and motel rooms may be characterized as a permissible license tax which a city could impose upon a business enterprise and not as an excise tax of the kind which cities under this section are not empowered to levy. Lexington v. Motel Developers, Inc., 465 S.W.2d 253, 1971 Ky. LEXIS 443 ( Ky. 1971 ).

Imposition of an additional business license tax on mobile home park owners, which levied a flat fee for each space in addition to an annual business license tax, was an unconstitutional selection of one business rather than another to bear a heavier tax burden because it was not founded on a rational distinction. Jahr v. Radcliff, 503 S.W.2d 743, 1973 Ky. LEXIS 48 ( Ky. 1973 ).

By enacting KRS 92.280 , the Legislature delegated the licensing power authorized under this section to cities of the second to sixth class, but the exercise of such power is subject to the requirement that classifications for purposes of taxation must be based on reasonable distinctions, be uniform as to the class and not be excessive, arbitrary or prohibitive. Baker v. Corbin, 556 S.W.2d 449, 1977 Ky. App. LEXIS 817 (Ky. Ct. App. 1977).

A city ordinance imposing a license tax on entities engaged in commercial transmission of voice, picture, or data by non-land line means within the city limits using structures 30 feet or more in height was unconstitutional in its application to a cellular telephone company. City of Leb. Junction v. Cellco P'ship, 80 S.W.3d 761, 2001 Ky. App. LEXIS 57 (Ky. Ct. App. 2001).

32.— Farmers.

An ordinance imposing a license tax on trade or business conducted in the city did not apply to a farmer who lived outside the corporate limits and occasionally sold hogs in the city which were surplus from hogs raised for the family use. Karnes v. Benton, 258 Ky. 425 , 80 S.W.2d 558, 1935 Ky. LEXIS 191 ( Ky. 1935 ).

33.— Gross Receipts.

For purposes of revenue and regulation, a city has power to pass an ordinance imposing an occupational license tax under which various types of businesses are classified and taxes are fixed on the basis of gross receipts. Paducah Automotive Trades Ass'n v. Paducah, 307 Ky. 524 , 211 S.W.2d 660, 1948 Ky. LEXIS 769 ( Ky. 1948 ).

Where city under statutory authority imposed maximum annual license fee of $500 on brewers, city was not entitled to impose in addition thereto a general occupational license tax based on gross receipts. George Wiedemann Brewing Co. v. Newport, 321 S.W.2d 404, 1959 Ky. LEXIS 282 ( Ky. 1959 ).

34.— Liquor.

A city of the fifth class has authority to impose a license tax on wholesale liquor dealers. Cofer v. Commonwealth, 87 S.W. 264, 27 Ky. L. Rptr. 934 (1905).

An act imposing a license tax per gallon payable on the removal of distilled spirits from warehouses is invalid as it is not an excise or occupational tax but a tax on the removal of the property from the warehouses. Craig v. E. H. Taylor, Jr. & Sons, 192 Ky. 36 , 232 S.W. 395, 1921 Ky. LEXIS 28 ( Ky. 1921 ).

Statute imposing per gallon license tax on every person engaged in the business of manufacturing, owning, storing and removing distilled spirits from bonded warehouses is unconstitutional. Craig v. E. H. Taylor, Jr. & Sons, 192 Ky. 36 , 232 S.W. 395, 1921 Ky. LEXIS 28 ( Ky. 1921 ).

35.— Livery Stables.

Pursuant to a statute so authorizing, a city council may levy a license tax on livery stables. Wilson v. Lexington, 105 Ky. 765 , 49 S.W. 806, 20 Ky. L. Rptr. 1980 , 1899 Ky. LEXIS 277 ( Ky. 1899 ).

36.— Milk Vendors.

A city ordinance, imposing a license tax for revenue purposes of $5.00 per annum on every firm or corporation selling or vending milk by wagon, cart, or any other vehicle in the city, for each wagon, cart, or vehicle so used, was unconstitutional as imposing the tax on milk vendors only. Louisville v. Weikel, 137 Ky. 784 , 127 S.W. 147, 1910 Ky. LEXIS 627 ( Ky. 1910 ).

37.— Real Estate Agents.

Statute authorizing cities to levy a license tax on real estate agents and brokers, financial agents and brokers, house agents, rental agents, loan and brokerage companies, and a city ordinance levying a license tax of $25.00 on real estate agents, so defined as to include all these classes, are not unconstitutional. Covington v. Herzog, 116 Ky. 725 , 76 S.W. 538, 25 Ky. L. Rptr. 938 , 1903 Ky. LEXIS 236 ( Ky. 1903 ).

38.— Tobacco Dealers.

A statute providing that a tobacco factory shall pay a license tax of $1.00 on the marketable value of each $1,000 of products up to $100,000, and at the rate of 50 cents thereafter, is not a property tax but a license tax, and is constitutional. Strater Bros. Tobacco Co. v. Commonwealth, 117 Ky. 604 , 78 S.W. 871, 25 Ky. L. Rptr. 1717 , 1904 Ky. LEXIS 232 ( Ky. 1904 ).

An ordinance requiring license taxes on tobacco dealers engaged in loose floor tobacco sales, those handling stemming or prizing tobacco and those prizing 200 hogsheads or more and not on other dealers is valid. Tandy & Fairleigh Tobacco Co. v. Hopkinsville, 174 Ky. 189 , 192 S.W. 46, 1917 Ky. LEXIS 183 ( Ky. 1917 ).

39.— Wages, Salaries and Profits.

City ordinance imposing license tax on wages, salaries and net profits for privilege of engaging in occupations, trades, professions and businesses did not violate the provision of this section. Louisville v. Sebree, 308 Ky. 420 , 214 S.W.2d 248, 1948 Ky. LEXIS 907 ( Ky. 1948 ).

40.— Loan Companies.

An ordinance imposing an annual license fee of $400 on any firm in the business of lending money on an assignment of future salaries was invalid as prohibitive where no firm in such a business had a net return of more than three times the amount of the license. Salisbury v. Equitable Purchasing Co., 177 Ky. 348 , 197 S.W. 813, 1917 Ky. LEXIS 590 ( Ky. 1917 ) ( Ky. 1917 ).

41.Local Concern.

The provision of this section forbidding the General Assembly from imposing taxes for purposes of any county, city, town, or other municipal corporation does not apply to matters of statewide importance, in which there is also a local interest. District Board of Tuberculosis Sanatorium v. Lexington, 227 Ky. 7 , 12 S.W.2d 348, 1928 Ky. LEXIS 497 ( Ky. 1928 ).

A statute providing for tax levies for the establishment of county libraries did not involve the levying of taxes for local concern, as a library is not a matter of basically local concern. Boggs v. Reep, 404 S.W.2d 24, 1966 Ky. LEXIS 286 ( Ky. 1966 ).

42.Local Purposes.

KRS 136.120 does not violate the provision of this section which prohibits the General Assembly from imposing taxes for the purposes of other local units of government. South Covington & C. S. R. Co. v. Bellevue, 105 Ky. 283 , 49 S.W. 23, 20 Ky. L. Rptr. 1184 , 1899 Ky. LEXIS 212 ( Ky. 1899 ).

Statute providing that every corporation shall pay a local tax on its franchise does not violate the provision of this section that the General Assembly shall not impose taxes for the purpose of any county or city, as it is left to local authorities to levy such tax as they deem necessary. Paducah S. R. Co. v. McCracken County, 105 Ky. 472 , 49 S.W. 178, 20 Ky. L. Rptr. 1294 , 1899 Ky. LEXIS 222 ( Ky. 1899 ).

Statute requiring any city, before establishing its own water system in any neighboring town which it might annex, to purchase the property of the company then supplying the town violates the provision prohibiting the General Assembly from imposing taxes for the purposes of any county or city. Kenton Water Co. v. Covington, 156 Ky. 569 , 161 S.W. 988, 1913 Ky. LEXIS 489 ( Ky. 1913 ).

Under this section, while the Legislature has the power to authorize local communities to impose taxes on themselves for local purposes, it may not itself exert this power by levying a tax for local purposes. Campbell County v. Newport, 174 Ky. 712 , 193 S.W. 1, 1917 Ky. LEXIS 258 ( Ky. 1917 ) ( Ky. 1917 ).

An act providing for county farm bureaus and for the appropriation by county fiscal courts of specified sums of money for the support of these organizations does not constitute an appropriation by the state for county purposes as the advancement and improvement of agriculture serves a public rather than a purely local purpose. Hendrickson v. Taylor County Farm Bureau, 196 Ky. 75 , 244 S.W. 82, 1922 Ky. LEXIS 456 ( Ky. 1922 ).

Taxes levied by the state for activities or services inuring to the benefit of the state as a whole or the public at large do not come within the purview of this section although they may benefit a particular community to a greater extent than the public generally. Board of Trustees v. Newport, 300 Ky. 125 , 187 S.W.2d 806, 1945 Ky. LEXIS 801 ( Ky. 1945 ).

This section does not prohibit the General Assembly from requiring cities to levy taxes or expend city funds for the purposes of police and fire departments, as these departments are a matter of general public concern extending beyond strictly local purposes. Board of Trustees v. Paducah, 333 S.W.2d 515, 1960 Ky. LEXIS 196 ( Ky. 1960 ).

This section means that the General Assembly cannot require a city to impose a tax for strictly local purposes but can require a city to impose a tax for purposes of general public or statewide concern and prohibits not only the requirement of the levy of the city tax for local purposes but the expenditure of general city funds for such purposes. Board of Trustees v. Paducah, 333 S.W.2d 515, 1960 Ky. LEXIS 196 ( Ky. 1960 ).

43.Motor Vehicles.

Statute which provides that cities may license, tax, and regulate all vehicles used or let for hire is in fact a tax on the occupation of the person owning the vehicle, and not on the vehicle itself, and is valid, though an ad valorem tax also is imposed on vehicles generally. Covington v. Woods, 98 Ky. 344 , 33 S.W. 84, 17 Ky. L. Rptr. 927 , 1895 Ky. LEXIS 61 ( Ky. 1895 ).

A license tax on automobiles when applied to automobiles not used for hire is invalid as a revenue measure, as it is not a tax on an occupation but may be valid as an exercise of police power if the fee is reasonable and not large enough to indicate a revenue producing purpose. Henderson v. Lockett, 157 Ky. 366 , 163 S.W. 199, 1914 Ky. LEXIS 283 ( Ky. 1914 ).

An automobile tax could not be upheld as a revenue measure, as applied to automobiles not used for let or hire, since it would not be a tax on an occupation but is sustainable as an exercise of the police power if the fee is reasonable, and not sufficiently large to indicate a revenue producing purpose. Henderson v. Lockett, 157 Ky. 366 , 163 S.W. 199, 1914 Ky. LEXIS 283 ( Ky. 1914 ). See Mayfield v. Carter Hardware Co., 191 Ky. 364 , 230 S.W. 298, 1921 Ky. LEXIS 317 ( Ky. 1921 ).

A municipal ordinance enacted pursuant to statute is not invalid insofar as it imposes a license tax in addition to an ad valorem tax on automobiles used for pleasure purposes, the fees to go into the sinking fund. Panke v. Louisville, 229 Ky. 186 , 16 S.W.2d 1034, 1929 Ky. LEXIS 718 ( Ky. 1929 ).

City ordinance by exacting license fees for motor vehicles except those operated for hire, under police powers, and providing that fees should be paid into the general fund, complies with this section and Const., § 180. Daily v. Owensboro, 257 Ky. 281 , 77 S.W.2d 939, 1934 Ky. LEXIS 550 ( Ky. 1934 ).

A city having authority to levy a license tax on trucks using its streets may base the tax upon the type, size, horsepower or number of trucks used. Kroger Grocery & Baking Co. v. Lancaster, 276 Ky. 585 , 124 S.W.2d 745, 1938 Ky. LEXIS 558 ( Ky. 1938 ).

A city may, under its police power, impose a license tax on firms doing business in the city by operating trucks on its streets, other than common carriers or contract carriers. Kroger Grocery & Baking Co. v. Lancaster, 276 Ky. 585 , 124 S.W.2d 745, 1938 Ky. LEXIS 558 ( Ky. 1938 ).

A city ordinance which did not regulate trucks, but licensed and taxed them at a graduated rate based on load capacity, so that license fees represented approximately 10 per cent of the city’s revenues, was valid as a police measure, and not a revenue measure, since such fees were not shown to be unreasonable in view of the damage done to streets by heavy trucks. Kroger Grocery & Baking Co. v. Lancaster, 276 Ky. 585 , 124 S.W.2d 745, 1938 Ky. LEXIS 558 ( Ky. 1938 ).

44.Occupational Tax.

Under a statute authorizing cities to tax grocers, the tax must apply to all grocers in a city, and hence an ordinance levying a tax only on grocers who employ delivery wagons is invalid. Covington v. Dalheim, 126 Ky. 26 , 102 S.W. 829, 31 Ky. L. Rptr. 466 , 1907 Ky. LEXIS 14 ( Ky. 1907 ).

The General Assembly having empowered cities to impose occupation taxes, the amount of the tax is left to the discretion of the city council, and an ordinance cannot be declared invalid because the tax imposed is unreasonable. Otting v. Bellevue, 105 S.W. 375, 32 Ky. L. Rptr. 186 (1907).

Under this section, and Const., § 171, requiring all ad valorem taxes to be uniform, the Legislature had no power to impose an occupational tax on real estate agents varying in amount according to the class of the city in which such real estate agents resided and exempting all who did not live or do business in such cities and towns. Hager v. Walker, 128 Ky. 1 , 107 S.W. 254, 32 Ky. L. Rptr. 748 , 1908 Ky. LEXIS 29 ( Ky. 1 908 ).

An ordinance enacted pursuant to statute requiring each barber shop to pay a license of $5.00 per year and $2.00 additional for each chair where more than two (2) chairs are used imposes a valid occupational tax. Louisville v. Schnell, 131 Ky. 104 , 114 S.W. 742, 1908 Ky. LEXIS 114 ( Ky. 1908 ).

An ordinance requiring a barber shop to pay an annual license tax and an additional tax for each chair over two (2) chairs was an occupational tax. Louisville v. Schnell, 131 Ky. 104 , 114 S.W. 742, 1908 Ky. LEXIS 114 ( Ky. 1908 ).

Where a city has been authorized by statute to levy license taxes, it is competent for the city to select the occupations on which to levy such tax, and it is not essential that all callings be taxed, and the city may classify those of the same occupations imposing a different license tax upon each class if the classification is a reasonable one, and the tax imposed is the same on all the class. Louisville v. Sagalowski, 136 Ky. 324 , 124 S.W. 339, 1910 Ky. LEXIS 487 ( Ky. 1910 ).

The practice of law is an occupation which may be taxed, and occupation taxes will be upheld unless the fees are so exorbitant as to be unreasonable and prohibitory. Newlin v. Stuart, 273 Ky. 626 , 117 S.W.2d 608, 1938 Ky. LEXIS 694 ( Ky. 1938 ).

Persons in the same occupation may be classified on a natural and reasonable basis and a different license tax imposed upon each class. Great Atlantic & Pacific Tea Co. v. Kentucky Tax Com., 278 Ky. 367 , 128 S.W.2d 581, 1939 Ky. LEXIS 406 ( Ky. 1939 ).

Unless an occupation may be absolutely prohibited under a proper exercise of the police power, taxes levied against it must not be prohibitive or confiscatory. Hartman v. Louisville, 282 Ky. 487 , 138 S.W.2d 948, 1940 Ky. LEXIS 183 ( Ky. 1940 ).

While this section permits a municipality to classify trades and occupations, there must be a reasonable basis for the classification and an ordinance which imposes a $25.00 fee on a dry cleaner with a plant located in the city and a $100 fee on a dry cleaner whose plant is not located in the city is invalid, as the distinction based on new citizenship cannot be upheld. Long v. Benton, 285 Ky. 526 , 148 S.W.2d 701, 1941 Ky. LEXIS 424 ( Ky. 1941 ).

City occupational license tax on work done does not violate this section prohibiting cities from levying income taxes notwithstanding fact the tax within the meaning of the Buck Act (4 USCS §§ 106(a), 110(c)) is an income tax and one for which federal employees of Frankfort, Kentucky are liable. Patrick v. Frankfort, 539 S.W.2d 275, 1976 Ky. LEXIS 44 ( Ky. 1976 ).

An ordinance creating an occupational license fee on compensation for certain services rendered in a city could be applied to circuit court judges under KRS 82.090 since the ordinance is simply a revenue tax imposing an occupational tax rather than a license placed upon the court system in an attempt to regulate it, and as such is a tax provided for in this section and may be collected by the city under KRS 82.090 . Commissioners of Sinking Fund v. Hopson, 613 S.W.2d 621, 1980 Ky. App. LEXIS 429 (Ky. Ct. App. 1980).

A county of less than 30,000 population has the legal authority to levy occupational license taxes. Casey County Fiscal Court v. Burke, 743 S.W.2d 26, 1988 Ky. LEXIS 4 ( Ky. 1988 ).

45.Oil Production.

An oil production tax, in addition to property tax provided for by statute, is valid as an occupation tax. Raydure v. Board of Sup'rs, 183 Ky. 84 , 209 S.W. 19, 1919 Ky. LEXIS 469 ( Ky. 1919 ).

An oil production tax which is assessed in addition to a property tax is authorized under this section. Raydure v. Board of Sup'rs, 183 Ky. 84 , 209 S.W. 19, 1919 Ky. LEXIS 469 ( Ky. 1919 ).

46.Pensions.

Since the General Assembly may, by general laws, require municipal corporations to take such steps and impose such taxes as will provide for maintenance of public order, it may order retirement pay for policemen. Board of Trustees v. Schupp, 223 Ky. 269 , 3 S.W.2d 606, 1928 Ky. LEXIS 315 ( Ky. 1928 ).

A statute requiring city to levy a tax for firemen’s pensions is unconstitutional as imposing taxes on city. Campbell v. Board of Trustees, 235 Ky. 383 , 31 S.W.2d 620, 1930 Ky. LEXIS 375 ( Ky. 1930 ), overruled, Board of Trustees v. Paducah, 333 S.W.2d 515, 1960 Ky. LEXIS 196 ( Ky. 1960 ).

This section does not prohibit granting of pensions to teachers. Board of Education v. Louisville, 288 Ky. 656 , 157 S.W.2d 337, 1941 Ky. LEXIS 198 ( Ky. 1941 ).

KRS 95.852 to 95.884 establishing retirement and pension systems for city police and fire departments and requiring the city to make contributions thereto upon an actuarially determined basis out of the city general fund does not violate this section as imposing a state tax for the purposes of a municipality. Board of Trustees v. Paducah, 333 S.W.2d 515, 1960 Ky. LEXIS 196 ( Ky. 1960 ).

47.Police Power.

Statute prohibiting druggists retailing spirituous liquors in quantities less than a quart except for medicinal purposes and on the prescription of a physician, is a police regulation, and not in violation of the provision of this section for license fees on trades and occupations. Commonwealth v. Fowler, 96 Ky. 166 , 28 S.W. 786, 16 Ky. L. Rptr. 360 , 1894 Ky. LEXIS 128 ( Ky. 1894 ).

This section permits a license tax imposed by a municipal corporation under its police power. Kroger Grocery & Baking Co. v. Lancaster, 276 Ky. 585 , 124 S.W.2d 745, 1938 Ky. LEXIS 558 ( Ky. 1938 ).

An act enacted solely as a revenue measure can be sustained only as such, and cannot be sustained as an exercise of the police power, and a police power purpose will not be read into an act that is strictly a revenue matter. Great Atlantic & Pacific Tea Co. v. Kentucky Tax Com., 278 Ky. 367 , 128 S.W.2d 581, 1939 Ky. LEXIS 406 ( Ky. 1939 ).

Only certain occupations subject to the police power may be taxed to the point of prohibition. Great Atlantic & Pacific Tea Co. v. Kentucky Tax Com., 278 Ky. 367 , 128 S.W.2d 581, 1939 Ky. LEXIS 406 ( Ky. 1939 ).

48.Privilege Tax.

A tax imposed on the recording of mortgages is a privilege tax under this section. Middendorf v. Goodale, 202 Ky. 118 , 259 S.W. 59, 1923 Ky. LEXIS 360 ( Ky. 1923 ).

49.Property Valuation.

This section does not prohibit the General Assembly from providing for the valuation of property by the state board for local taxation. South Covington & C. S. R. Co. v. Bellevue, 105 Ky. 283 , 49 S.W. 23, 20 Ky. L. Rptr. 1184 , 1899 Ky. LEXIS 212 ( Ky. 1899 ).

50.Public Concern.

As public safety is a matter of general public concern, this section does not prohibit the General Assembly from requiring cities to levy taxes or expend city funds for the purposes of police and fire departments. Board of Trustees v. Paducah, 333 S.W.2d 515, 1960 Ky. LEXIS 196 ( Ky. 1960 ).

51.Public Hospitals.

The construction of public hospitals by cities and counties is a matter of public concern of statewide interest, and the General Assembly may appropriate state funds to assist in such construction. Miller v. State Bldg. Com., 308 Ky. 249 , 214 S.W.2d 265, 1948 Ky. LEXIS 910 ( Ky. 1948 ).

52.Public Purposes.

KRS 70.150 to 70.170 do not violate this section, since their purpose is for the public welfare and protection of the traveling public, and for the benefit of the state as well as the county. Milliken v. Harrod, 275 Ky. 597 , 122 S.W.2d 148, 1938 Ky. LEXIS 471 ( Ky. 1938 ).

Money raised by state taxes may not be appropriated for a purely local purpose affecting only the inhabitants of a particular municipality, but it may be appropriated to be expended in a particular locality if the purpose is a general public one in which the state at large is concerned. Miller v. State Bldg. Com., 308 Ky. 249 , 214 S.W.2d 265, 1948 Ky. LEXIS 910 ( Ky. 1948 ).

Const., § 171 requiring that all taxes be levied only for a public purpose is a limitation on the authority conferred by this section and no municipality can create a bonded indebtedness for other than a public purpose. Dyche v. London, 288 S.W.2d 648, 1956 Ky. LEXIS 271 ( Ky. 1956 ).

53.Public Utilities.

Rates paid to a water company, whose capital shares are all owned by the city, are not taxes as the obligation to pay for the use of water rests on express or implied contract for consumer to compensate for water he has applied for and received. Dolan v. Louisville Water Co., 295 Ky. 291 , 174 S.W.2d 425, 1943 Ky. LEXIS 232 ( Ky. 1943 ).

54.Sales Tax.

Retail merchants’ gross sales tax act of 1930 was not violative of this section. Stewart Dry Goods Co. v. Lewis, 7 F. Supp. 438, 1933 U.S. Dist. LEXIS 1007 (D. Ky. 1933 ), rev'd, 294 U.S. 550, 55 S. Ct. 525, 79 L. Ed. 1054, 1935 U.S. LEXIS 57 (U.S. 1935).

Imposition of a sales tax on the sale of bullion coins was not confiscatory and violative of this section where the taxpayer was entitled to collect the sales tax from his customers at the time of the sales. Revenue Cabinet Kentucky v. Saylor, 738 S.W.2d 426, 1987 Ky. App. LEXIS 585 (Ky. Ct. App. 1987).

55.School Tax.

A statute requiring a minimum school tax for cities of the first class was not in violation of the provisions of this section forbidding the General Assembly to impose taxes for municipal purposes because the maintenance of public schools is a matter of state concern rather than a purely municipal matter. Louisville v. Commonwealth, 134 Ky. 488 , 121 S.W. 411, 1909 Ky. LEXIS 399 ( Ky. 1909 ).

Statute requiring a minimum school tax rate of 36 mills for cities is not in violation of the provision of this section that the General Assembly shall not impose taxes for the purpose of any municipal corporation. Louisville v. Commonwealth, 134 Ky. 488 , 121 S.W. 411, 1909 Ky. LEXIS 399 ( Ky. 1909 ).

As school taxes are state taxes, a statute providing for the collection of such taxes by a state revenue agent does not violate this section. Commonwealth v. Louisville Nat'l Bank, 220 Ky. 89 , 294 S.W. 815, 1927 Ky. LEXIS 478 ( Ky. 1927 ).

A statute for collection of school taxes by state revenue agent was not in violation of this section since school taxes are state taxes. Commonwealth v. Louisville Nat'l Bank, 220 Ky. 89 , 294 S.W. 815, 1927 Ky. LEXIS 478 ( Ky. 1927 ).

Statute authorizing boards of education of cities to establish junior colleges, and requiring the city to levy a tax when requested to do so by the board of education, does not impose a tax for municipal purposes contrary to the constitution. Pollitt v. Lewis, 269 Ky. 680 , 108 S.W.2d 671, 1937 Ky. LEXIS 659 ( Ky. 1937 ).

56.Special Taxes.

As long as rates are not unreasonable, a water company, whose stock is owned solely by the city, may set rates in excess of sum sufficient to pay operating expenses, maintenance and debts, and such rates are not objectionable as special taxes. Dolan v. Louisville Water Co., 295 Ky. 291 , 174 S.W.2d 425, 1943 Ky. LEXIS 232 ( Ky. 1943 ).

57.State Concern.

State may constitutionally require county to levy taxes for general public purposes in which state at large also is concerned. Fox v. Board of Louisville & Jefferson County Children's Home, 244 Ky. 1 , 50 S.W.2d 67, 1932 Ky. LEXIS 390 ( Ky. 1 932).

The state may make allotments from funds raised by taxes to nonprofit hospitals without violating this section as this section does not prevent the allocation of state funds to public hospitals in which there is a statewide concern and interest. Kentucky Bldg. Com. v. Effron, 310 Ky. 355 , 220 S.W.2d 836, 1949 Ky. LEXIS 915 ( Ky. 1949 ).

KRS 160.613 authorizing all counties to levy certain taxes for schools was authorizing a tax for a state purpose. Lamar v. Board Education, 467 S.W.2d 143, 1971 Ky. LEXIS 359 ( Ky. 1971 ).

58.Taxing Districts.

KRS 249.540 , 249.551 and 249.631 (all repealed), which allowed a relatively small number of people in a county to establish a taxing district by petition without the exercise of discretion by local authorities, violated the principle of this section and are constitutionally invalid. Reid v. Allinder, 504 S.W.2d 706, 1974 Ky. LEXIS 828 ( Ky. 1974 ).

59.Toll Charges.

The provisions of this section do not apply to tolls charged for the use of a bridge as such tolls are not taxes and are analogous to special assessments. Klein v. Louisville, 224 Ky. 624 , 6 S.W.2d 1104, 1928 Ky. LEXIS 663 ( Ky. 1928 ). See Bloxton v. State Highway Com., 225 Ky. 324 , 8 S.W.2d 392, 1928 Ky. LEXIS 762 ( Ky. 1928 ).

60.Actions not Explicitly Prohibited.

Ky. Const. §§ 181 and 175 did not explicitly prohibit the sale of tax certificates as the sale of such certificates to third-party purchasers was neither a delegation nor surrender of the Commonwealth's authority to impose or collect taxes. Farmers Nat'l Bank v. Commonwealth, 486 S.W.3d 872, 2015 Ky. App. LEXIS 76 (Ky. Ct. App. 2015).

Cited:

Southern Bldg. & Loan Ass'n v. Norman, 98 Ky. 294 , 32 S.W. 952, 17 Ky. L. Rptr. 887 , 1895 Ky. LEXIS 5 5 ( Ky. 1 89 5); Western U. Tel. Co. v. Norman, 77 F. 13, 1896 U.S. App. LEXIS 2937 (C.C.D. Ky. 1 89 6); Pearce v. Mason County, 99 Ky. 357 , 35 S.W. 1122, 18 Ky. L. Rptr. 266 , 1896 Ky. LEXIS 94 ( Ky. 1896 ); Adams Express Co. v. Kentucky, 166 U.S. 171, 17 S. Ct. 527, 41 L. Ed. 960, 1897 U.S. LEXIS 2017 (U.S. 1897); Gosnell v. Louisville, 104 Ky. 201 , 46 S.W. 722, 20 Ky. L. Rptr. 519 , 1898 Ky. LEXIS 156 ( Ky. 1898 ); Commonwealth v. Pearl Laundry Co., 105 Ky. 259 , 49 S.W. 26, 20 Ky. L. Rptr. 1172 , 1899 Ky. LEXIS 213 ( Ky. 1899 ); West v. Mt. Sterling, 65 S.W. 120, 23 Ky. L. Rptr. 1670 , 1901 Ky. LEXIS 379 (Ky. Ct. App. 1901); Covington v. District of Highlands, 113 Ky. 612 , 68 S.W. 669, 24 Ky. L. Rptr. 433 , 1902 Ky. LEXIS 89 ( Ky. 1902 ); Maydwell v. Louisville, 116 Ky. 885 , 76 S.W. 1091, 25 Ky. L. Rptr. 1062 , 1903 Ky. LEXIS 254 ( Ky. 1903 ); Louisville v. Louisville R. Co., 118 Ky. 5 34, 81 S.W. 701, 84 S.W. 535, 26 Ky. L. Rptr. 378 , 27 Ky. L. Rptr. 141 , 1904 Ky. LEXIS 74 ( Ky. 1904 ); George Schuster & Co. v. Louisville, 124 Ky. 189, 89 S.W. 689, 28 Ky. L. Rptr. 588 , 1905 Ky. LEXIS 165 ( Ky. 1905 ); Bd. of Councilmen v. Capital Gas & Elec. Light Co., 96 S.W. 870, 29 Ky. L. Rptr. 1114 , 1906 Ky. LEXIS 283 (Ky. Ct. App. 1906); Commonwealth use of Flemingsburg v. Merz, 125 Ky. 97 , 100 S.W. 333, 30 Ky. L. Rptr. 1170 , 1907 Ky. LEXIS 262 ( Ky. 1907 ); Hager v. Citizens' Nat'l Bank, 127 Ky. 192 , 105 S.W. 403, 32 Ky. L. Rptr. 95 , 1907 Ky. LEXIS 130 ( Ky. 1907 ); Morris v. Randall, 129 Ky. 720 , 112 S.W. 856, 1908 Ky. LEXIS 214 ( Ky. 1908 ); James v. United States Fidelity & Guarantee Co., 133 Ky. 299 , 117 S.W. 406, 1909 Ky. LEXIS 174 ( Ky. 1909 ); United States Fidelity & Guaranty Co. v. Commonwealth, 139 Ky. 27 , 129 S.W. 314, 1910 Ky. LEXIS 5 ( Ky. 1910 ); Commonwealth v. Louisville & N. R. Co., 149 Ky. 829 , 150 S.W. 37, 1912 Ky. LEXIS 732 ( Ky. 1912 ); Smith v. Commonwealth, 175 Ky. 286 , 194 S.W. 367, 1917 Ky. LEXIS 334 ( Ky. 1917 ); Greene v. E. H. Taylor, Jr. & Sons, 184 Ky. 739 , 212 S.W. 925, 1919 Ky. LEXIS 126 ( Ky. 1919 ); Mueller v. Phillips, 186 Ky. 657 , 217 S.W. 1010, 1920 Ky. LEXIS 20 ( Ky. 192 0); J. & A. Freiberg Co. v. Dawson, 274 F. 420, 1920 U.S. Dist. LEXIS 723 (D. Ky. 1920 ); Mayfield v. Carter Hardware Co., 191 Ky. 364 , 230 S.W. 298, 1921 Ky. LEXIS 317 ( Ky. 1921 ); Dawson v. Kentucky Distilleries & Warehouse Co., 255 U.S. 288, 41 S. Ct. 272, 65 L. Ed. 638, 1921 U.S. LEXIS 1825 (U.S. 1921); Commonwealth ex rel. Attorney Gen. v. Sparks, 201 Ky. 5 , 255 S.W. 859, 1923 Ky. LEXIS 218 ( Ky. 1923 ); Swiss Oil Corp. v. Shanks, 208 Ky. 64 , 270 S.W. 478, 1925 Ky. LEXIS 216 ( Ky. 1925 ); Mansbach Scrap Iron Co. v. Ashland, 235 Ky. 265 , 30 S.W.2d 968, 1930 Ky. LEXIS 338 ( Ky. 1930 ); Kroger Grocery & Baking Co. v. Cynthiana, 240 Ky. 701 , 42 S.W.2d 904, 1931 Ky. LEXIS 464 ( Ky. 1931 ); Talbott v. Kentucky State Board of Education, 244 Ky. 826 , 52 S.W.2d 727, 1932 Ky. LEXIS 516 ( Ky. 1932 ); Mills v. Barbourville, 273 Ky. 490 , 117 S.W.2d 187, 1938 Ky. LEXIS 667 ( Ky. 1938 ); Connors v. Jefferson County Fiscal Court, 277 Ky. 23 , 125 S.W.2d 206, 1938 Ky. LEXIS 564 ( Ky. 1938 ); Kentucky ex rel. Martin v. Morris Wholesale Liquor Distributing Co., 29 F. Supp. 310, 1939 U.S. Dist. LEXIS 2306 (D. Ky. 1939 ); Pure Milk Producers & Distributors Ass'ns v. Morton, 276 Ky. 736 , 125 S.W.2d 216, 1939 Ky. LEXIS 575 ( Ky. 1939 ); Webb v. Eminence, 282 Ky. 849 , 140 S.W.2d 622, 1940 Ky. LEXIS 265 ( Ky. 1940 ); Jellico Grocery Co. v. Whitesburg, 286 Ky. 470 , 151 S.W.2d 35, 1941 Ky. LEXIS 280 ( Ky. 1941 ); Inter-County Rural Electric Co-operative Corp. v. Reeves, 294 Ky. 458 , 171 S.W.2d 978, 1943 Ky. LEXIS 446 ( Ky. 1943 ); Seevers v. Somerset, 295 Ky. 595 , 175 S.W.2d 18, 1943 Ky. LEXIS 304 ( Ky. 1943 ); Kentucky Utilities Co. v. Paris, 297 Ky. 440 , 179 S.W.2d 676, 1944 Ky. LEXIS 705 ( Ky. 1944 ); Miller v. Sturgill, 304 Ky. 823 , 202 S.W.2d 632, 1947 Ky. LEXIS 738 ( Ky. 1947 ); Rash v. Louisville & Jefferson County Metropolitan Sewer Dist., 309 Ky. 442 , 217 S.W.2d 232, 1949 Ky. LEXIS 670 ( Ky. 1949 ); Cook v. Commissioners of Sinking Fund, 312 Ky. 1, 226 S.W.2d 328, 1950 Ky. LEXIS 577 ( Ky. 1950 ); Commissioners of Sinking Fund v. Ohio Valley Grocery Co., 240 S.W.2d 56, 1951 Ky. LEXIS 94 0 ( Ky. 1951 ); H. H. Leet Furniture Co. v. Richmond, 357 S.W.2d 329, 1962 Ky. LEXIS 123 ( Ky. 1962 ); Kentucky Municipal League v. Commonwealth, 530 S.W.2d 198, 1975 Ky. LEXIS 48 ( Ky. 1975 ); Kelley v. Ashland, 562 S.W.2d 312, 1978 Ky. LEXIS 325 ( Ky. 1978 ); Legislative Research Com. by Prather v. Brown, 664 S.W.2d 907, 1984 Ky. LEXIS 300 ( Ky. 1984 ); Beverly P. White Towers Ltd. Partnership v. Winchester, 704 S.W.2d 651, 1986 Ky. LEXIS 221 ( Ky. 1986 ).

Opinions of Attorney General.

This section provides that the General Assembly may by general laws empower a county to impose certain taxes or license fees, but where no such law appears in the statutes, no authority exists to impose a tax. OAG 61-447 .

This section provides authority for cities of all classes to impose license and ad valorem taxes. KRS 92.280 relates to the authority of cities from the second to the sixth class to impose ad valorem taxes and license fees, and KRS 91.200 relates to the same right of cities of the first class. OAG 61-868 .

A city is not authorized to adopt a city retail sales tax. OAG 62-322 .

A city would have no power to claim occupational taxes due from wages earned by an individual outside the city even though the payroll was prepared within the city. OAG 62-567 .

If persons subject to a city occupational license tax perform any substantial portion of their duties outside the city limits, they will not be subject to the tax on that proportion of their earnings derived from work performed outside the city. OAG 62-567 .

The administrative staff and clerks working for the county board of education in the county courthouse would be subject to the city occupational tax. OAG 62-567 .

A city is without authority to levy an occupational license tax on the operations of Southern Bell Telephone & Telegraph Company within the corporate limits of the city. OAG 62-644 .

A city of fourth class may either establish and operate a fire department or enter into a contract with an existing fire department and may obtain the money for either system through taxes imposed by city ordinance. OAG 64-247 .

A city has the power to impose a tax on trades, occupations, and professions. OAG 64-745 .

A city may by ordinance levy an occupational license tax against a company for the privilege of soliciting business in the city, so long as the tax is the same as that applied to local merchants. OAG 65-247 .

The mere solicitation of orders for future delivery by common carrier would be sufficient to constitute an activity for which a city could require that an occupational license tax be paid. OAG 65-247 .

The establishment of a maximum tax rate for various classifications of property would not violate either this section or Const., § 171. OAG 65-646 .

The establishment of the local tax rate by the General Assembly would violate this section. OAG 65-646 .

Where, prior to January 1, 1965, the Kentucky department of agriculture did not withhold city and county occupational license taxes from employees employed in the city and county, neither the department nor commonwealth was liable for taxes, interest or penalty for any prior period, and the city and county would have to look to the employees for any unpaid taxes. OAG 65-845 .

A city could require all trucks unloading materials within the city limits to pay an annual tax of $25.00. OAG 66-435 .

A city tax on trucks unloading within the city could not apply to a person or company holding a common carrier’s license or permit issued by the state department of motor transportation. OAG 66-435 .

Where a nonresident hauled wood through a city which had a tax on trucks unloading within the city and unloaded the wood on property owned by a railroad within the city limits, he would be subject to the tax. OAG 66-435 .

A city has no authority to impose an occupational license fee upon an attorney who neither lives nor maintains an office in the city but who irregularly practices his profession in the city under specific employment to attend to a special matter. OAG 67-18 .

A city’s occupational license fee ordinance was not applicable to net profits of franchise corporations, state banks and national banks even though they were not exempted in the ordinance. OAG 67-130 .

Where a city ordinance stated that the city’s first occupational license tax year began September 1, 1968, it actually began on September 3, 1968, since September 1 fell on a Sunday and September 2 was Labor Day, a legal holiday. OAG 69-263 .

State legislation providing state funds as matching funds for federal funds received through the safe streets act which, together with the federal funds, would be distributed to local police departments throughout the state to increase salaries of police would not violate this section. OAG 70-62 .

Legislation granting state aid in the construction of an office building for the Kentucky Municipal League would be constitutional. OAG 70-93 .

A first-class city has no authority to levy an admission tax for athletic events. OAG 70-566 .

A county fiscal court could not levy a severance tax on coal mined and timber cut in the county. OAG 71-35 .

A proposed tax by a county government based upon the percentage of a county resident’s individual Kentucky income tax liability would be invalid as not being the kind of tax authorized by this section. OAG 72-278 .

As a strictly revenue measure, a motor vehicle license tax is not authorized for cities and counties under this section; therefore, a sticker license tax for cars is not valid where the revenues from such tax would be used to provide revenue for expanded general law enforcement services. OAG 72-466 .

A fiscal court may enact an ordinance imposing a license tax on operators of places of entertainment under KRS 231.010 as a valid revenue measure. OAG 72-821 .

As an implementation of this section, a county may levy an occupational tax under the authority of KRS 67.083 . OAG 73-216 .

In view of the fact that a county can levy only ad valorem taxes and a license tax, a proposed special tax by a county to fund a county ambulance program could not be levied. OAG 73-246 .

Although a county ordinance requiring a motor vehicle sticker at an annual fee of $4.00 per motor vehicle imposed upon all persons or firms owning or operating motor vehicles upon county roads is not authorized as a tax or for revenue purposes by this section of the Constitution, KRS 67.083 authorizes a fiscal court in the reasonable exercise of the county’s police powers to enact such an ordinance in connection with the regulation of traffic on county road systems, providing that the revenue collected under the ordinance does not exceed the reasonable policing cost since if it does the measure must be considered a revenue measure. OAG 73-526 .

A county fiscal court has ample authority to levy a county motor vehicle license fee on residents and nonresidents in the county using the county roads on a regular basis to move to and from their places of employment and it is not discriminatory to exempt from the payment of such license fee those persons required to obtain a license tag for the operation of their motor vehicles in cities and towns located in the county. OAG 73-827 .

A fourth-class city may license private investigators for occupational tax purposes but there is no provision for the regulation or recognition of private detectives or security police and they are simply regarded as any other type of private enterprise with no privileges of arrest or carrying of concealed deadly weapon and have no authority not possessed by any private citizen. OAG 74-29 .

A city cannot legally apply a car sticker license tax to the privately owned automobiles of the county sheriff and deputies which are used exclusively in the state service as outlined in Georgetown v. Morrison (1962), 362 S.W.2d 289, 1962 Ky. LEXIS 256 . OAG 74-340 .

An ordinance of a fiscal court imposing, under KRS 67.083 , a car sticker tax on automobiles of residents of the unincorporated areas of a county solely as a revenue measure and not in any way connected with motor vehicle regulations or inspections would be unconstitutional under this section. OAG 74-346 .

A severance tax proposed by a county is prohibited by this section as it is an excise tax, and counties can only levy ad valorem and license taxes. OAG 74-348 and 74-427.

A fiscal court may pass an ordinance providing for solicitors’ licenses as a license or occupational tax but it must be nondiscriminatory, nonconfiscatory and based upon a reasonable classification. OAG 74-614 .

It would appear that a proposed city occupational licensing ordinance governing master sign crafters which requires a $50 licensing fee from residents and a $250 licensing fee from nonresidents is discriminatory and unreasonable and as a result invalid. OAG 74-651 .

The coal severance tax imposed by KRS 143.010 to 143.990 , as distributed to the counties pursuant to KRS 42.300 (repealed), is not unconstitutional, in violation of this section or Const., §§ 3, 51, 59, or 177. OAG 75-76 .

Under the authority of this section as implemented by KRS 67.083 the fiscal court of a county with a population of less than 50,000 may legally enact a license tax upon the receipts or profits of all persons engaged or employed in any trade, occupation or profession within the county, for the purpose, as stated in the ordinance, of defraying the general expenses of the county government and to constitute the base upon which the fiscal court contemplates issuing a revenue bond issue for the financing of courthouse improvements and to provide additional funds for the county general fund. OAG 75-385 .

A $35 per year “charge” for fire and police protection and garbage collection against residence and/or business property owners is an unconstitutional “tax.” OAG 75-411 .

A general occupational tax would apply to a justice of the peace. OAG 75-418 .

A city of the fourth class has the authority to enact an occupational license tax ordinance whereby the city is empowered to examine the books and records of employers and taxpayers, and reasonable inspections of licensees’ records, conducted in a manner fair to all competitors, are reasonable. OAG 75-519 .

A city ordinance exacting a tax of 10¢ per ton on coal processed or transported in the city is an excise tax and not a license tax and thus is not authorized under this section. OAG 76-32 .

A tonnage fee paid by a coal company to a county in consideration for the use of county roads could be interpreted as an excise tax and would not be permissible, inasmuch as this section only authorizes license and ad valorem taxes by a county fiscal court. OAG 76-170 .

A municipality may levy an occupational tax on a newspaper so long as the tax is reasonable and not confiscatory in nature and applies equally to those newspapers published in the city and to those distributed from other cities. OAG 76-208 .

A fiscal court could, under the authority of KRS 67.083 , Const., § 171 and this section pass an ordinance imposing an occupational or license tax to be used to support a fire department, upon those persons engaged in writing fire insurance policies in the county and the tax could be measured in terms of the amount of such insurance written, although, in order to meet the constitutional test, such tax would have to be based upon a reasonable classification, not be discriminatory and not be confiscatory. OAG 76-575 .

As a strictly revenue measure, a tax on vehicle licenses imposed by a county cannot be sustained under this section since the tax is not a franchise, trades or occupational tax. OAG 76-597 .

Since a county can levy only two (2) kinds of taxes, ad valorem taxes and license or occupational taxes, and since a sales tax for financing mass transit authorities provided for by subsection (4) of KRS 96A.320 does not fall within either of these classifications but is a sales tax to be levied by the fiscal courts of a number of counties, such sales tax is wholly and irredeemably unconstitutional. OAG 76-623 .

A graduated occupational tax which would be an excise tax or a local county income tax is not a kind of tax authorized for counties. OAG 76-665 .

Every city has the power to levy a license fee not only on resident automobiles but also nonresident automobiles where such are operated daily within the city, and this authority is based upon the ground that the license is not a property tax but one imposed by virtue of the city’s police power for the use of the city streets. OAG 78-410 .

A county, through its fiscal court, has the authority under this section of the Constitution, and KRS 67.083 , to levy an occupational or license tax, and even if the occupational tax covered all persons working or carrying on a business in the county (including those in cities in the county), double taxation would not be involved, since to constitute double taxation the two (2) taxes must be imposed on the same property by the same governing body during the same taxing period for the same taxing purpose. OAG 78-624 .

A county ordinance which levies a license or occupational tax on coal producers engaged in the extractive business enterprise of coal production would be constitutional, provided that the license or occupational tax as applied to coal producers is fairly and equitably integrated with a general county occupational or license tax applying to an overall occupational or license tax. OAG 79-385 .

A fiscal court, under § 171 of the Constitution and this section, can levy only two (2) kinds of taxes: (1) ad valorem taxes and (2) license or occupational taxes. OAG 79-385 .

A person’s residence or source of payment of a person’s income has no bearing on the application of the tax due, rather the question is where the individual’s compensation is earned. OAG 79-386 .

A single isolated sale by a realtor under specific employment is not carrying on, conducting, or managing a business within a city’s licensing ordinance. OAG 79-477 .

If a real estate salesman posts a “for sale” sign, but makes no sale if this is a single isolated transaction or series of isolated transactions, a city occupational license tax ordinance should not apply. OAG 79-477 .

It is each independent real estate contractor/salesman, not the real estate broker, who is subject to a city’s occupational license tax. OAG 79-477 .

A county fiscal court may enact a general license tax ordinance without a vote of the electorate, where the revenue from such a county tax is needed to complete the county’s judicial facilities building; the tax may be applied effectively to all persons working and businesses operating within the county boundaries, including persons working and businesses operating within the city boundaries of a city in that county, even though the city already has its own payroll tax in effect. OAG 80-121 .

Where a fiscal court enacted a general occupational tax in the amount of one percent of market value of all products or one percent of net profits from nonmanufacturing businesses, the intent of the fiscal court was to levy the tax on all independent trades, occupations and professions and thus it qualified as an occupational or license tax and was not an excise tax, as defined by the courts; the fact that the tax applied to certain producing businesses was measured in terms of one percent of the market value of the goods produced did not convert the license tax into an excise tax. OAG 80-516 .

Where a county license tax is laid upon persons engaged in independent trades, occupations, and professions, the tax is a valid occupational or license tax and such tax may be measured in terms of net income or market value of the goods produced; the measuring of the tax in terms of market value does not convert the license tax into an excise tax. OAG 80-516 .

A city could not impose an occupational license fee on a district health department as a business operating within the city limits. OAG 80-578 .

Where an ice cream vendor has been licensed to sell ice cream from a truck on city streets within city limits, pursuant to this section and KRS 92.280 , an independent park commission which runs the city park, that contains city streets, cannot separately license the vendor or prevent him from selling on a city street within the park in competition with a concession stand which the park commission leases out to another concessionaire, although the city may, by reasonable regulation, designate an area to which the truck sales are limited. OAG 81-190 .

A county fiscal court is empowered by this section to impose an occupational license tax upon an insurance company operating in the county as long as the tax is fairly and equitably integrated with the general county occupational license tax, is based upon reasonable classifications and is not discriminatory, arbitrary or confiscatory, since subsection (2) of KRS 67.083 allows the fiscal court to levy all taxes not in conflict with the state Constitution and statutes. OAG 81-332 .

Under KRS 92.281 and this section, a city has concurrent jurisdiction with the state to require a license permit for the conduct of professional wrestling matches within its corporate limits even though the state requires an annual license fee for such activity under KRS 229.071 , since KRS 229.071 does not prohibit a city from also imposing a license fee. OAG 81-410 .

A city of the sixth class can levy an ad valorem tax by ordinance and it need not hold a public hearing or election; however, for an ad valorem tax ordinance of a city of the sixth class to be valid, it must comply with all appropriate procedures and limitations contained in KRS Chapters 92 and 132. OAG 82-21 .

A city of the sixth class can raise revenue by all means enumerated in this section with regard to cities except those specifically exempted by KRS 92.281(5) and 92.300(2). OAG 82-21 .

A county public library is not exempt from the payment of a city franchise tax imposed on Kentucky utilities and which is, in turn, passed on to the utility’s customers in the affected area. OAG 82-34 .

A city of the fifth class may levy an occupational license fee, but it may not levy an income tax. OAG 82-290 .

The only taxes that a city may levy are (1) an ad valorem tax, (2) a license fee on trades, occupations, professions, etc., and (3) a tax on personal property, tangible and intangible, based on income, licenses or franchises, in lieu of an ad valorem tax thereon. OAG 82-290 .

Property assessment or reassessment moratorium program established by a particular local taxing authority will be applicable only to the assessments or reassessments of qualified property for the taxing authority establishing the program and cannot limit the assessments or reassessments of property for state ad valorem tax purposes. OAG 82-381 .

A city of the fourth class has authority to enact an ordinance requiring its taxpayers to file federal income tax return schedules as a part of the city’s net profits tax returns as a verification of such returns. OAG 82-555 .

Proposed fee on garages and parking lots whereby the operators of such business would pay a fee to the county and be issued a permit for parking activity was a license tax and was constitutionally impermissible since the county already had an occupational license tax. OAG 82-573 .

The fiscal court may impose an auto sticker tax under its police power as found in KRS 67.083 (3)(t) to fund an ambulance service and such tax would not violate Const., § 170 and this section. However, the proceeds cannot exceed the amount of revenue necessary to fund to administrative cost of the regulatory power. OAG 82-601 .

A city is not required to relate reasons or standards for determining the occupational license fee levied against a particular type of business as long as the fee is reasonable and not discriminatory. OAG 83-101 .

A city government can enact a license tax on the privilege to do business, said license fee differing in amount depending on the type of business or occupation listed, even if the ordinance levying the tax fails to list standards concerning the reason for charging different yearly rates for the various businesses and professions, as long as the fee is uniformly imposed on all businesses within the specified classes. OAG 83-101 .

A franchise tax is generally defined as a governmental grant of a special privilege to engage in a particular business; a franchise tax may be measured by a percentage of the gross receipts or profits of a business. OAG 83-233 .

A city may levy a franchise tax or fee and such may be measured by the gross receipts of the franchisee; accordingly, a city which imposed a franchise fee on a power company for the right to distribute electrical energy in the city had not levied a forbidden excise tax. OAG 83-233 , superseding OAG 68-338 , to the extent of conflict.

A transient room tax imposed by a city and county or by either one individually pursuant to KRS 91A.390 to fund the operations of a tourist and convention commission is a license or occupational tax. OAG 83-315 .

A classification, for purposes of occupational license tax, of employer and employee is unreasonable and hence unconstitutional; the tax must be applied to all persons within a business, trade or occupation uniformly. OAG 84-76 .

Ad valorem taxes and license taxes are the only kinds of taxes that a county may levy; thus, the attempted levy of an oil shale severance tax by a county would be unconstitutional. OAG 84-116 .

A county ordinance which levies a license or occupational tax on oil shale producers engaged in the extractive business enterprise of oil shale would be constitutional, provided that the license or occupational tax as applied to oil shale producers (the same principle would apply to other mineral producers) is fairly and equitably integrated with a general county occupational or license tax applying to an overall occupational or license tax. OAG 84-116 .

Nonprofit institutions of purely public charity and education are exempt from a city license tax on insurance premiums under Const., § 170, as an institutional exemption, provided that the tax is designed for revenue; however, the charitable institution is not exempt from payment of a city license tax when it is enacted under the police power or when it is enacted for police or regulatory purposes. Thus, the line of demarcation as to the application or nonapplication of the city license tax to nonprofit and charitable institutions is drawn around the concept of the license tax being either a revenue measure or a police measure. OAG 84-201 .

In a county with a population of less than thirty thousand, a fiscal court can produce new or additional revenue other than that derived from the ordinary ad valorem tax rate by levying a license or occupational tax without a vote of the people if the county does not already have a general license or occupational tax. OAG 85-84 .

Rental receipts received by an individual are susceptible to the imposition of a municipal occupational tax; a municipality contemplating the imposition of an occupational tax on rental proceeds should consider the inclusion within the enabling ordinance of a definition of the minimum degree of individual involvement or activity required to bring an income generating activity within the scope of the tax. OAG 87-17 .

A county may impose a motor vehicle license fee pursuant to its police power. The fee charged must bear a reasonable relationship to the administrative costs of the regulatory power, and reasonableness under this section is a question of fact; however, excess proceeds will not necessarily invalidate the sticker fee provided the excess is not so great as to make the fee into a revenue-producing measure. OAG 87-19 .

A county may levy only ad valorem and occupational license taxes. OAG 87-19 .

A local option sales tax may not be enacted without a constitutional amendment. OAG 13-001 , 2013 Ky. AG LEXIS 1

Research References and Practice Aids

Cross-References.

City license and excise taxes, KRS 91.200 to 91.270 , 92.280 to 92.320 .

Coin-operated machines, city license tax on, KRS 137.410 .

County license fees on certain activities authorized, KRS 137.115 .

First-class city not to omit ad valorem tax on utilities, KRS 91.260 .

Kentucky Law Journal.

Notes, Economic, Social and Legal Aspects of Coal Transportation in Kentucky, 64 Ky. L.J. 601 (1975-76).

Snell, A Plea for a Comprehensive Liability Statute, 74 Ky. L.J. 521 (1985-86).

Northern Kentucky Law Review.

Notes, County Government — Home Rule —The General Assembly Must Grant Governmental Powers to Fiscal Courts “With the Precision of a Rifle Shot and Not With the Casualness of a Shotgun Blast” — Fiscal Court v. City of Louisville, 559 S.W.2d 478, 1977 Ky. LEXIS 554 ( Ky. 1977 ), 5 N. Ky. L. Rev. 107 (1978).

§ 182. Railroad taxes — How assessed and collected.

Nothing in this Constitution shall be construed to prevent the General Assembly from providing by law how railroads and railroad property shall be assessed and how taxes thereon shall be collected. And until otherwise provided, the present law on said subject shall remain in force.

NOTES TO DECISIONS

1.Purpose.

This section was adopted to provide for a different method of taxation of the property of railroads than that used in assessing the property of individuals, it having become apparent that that method did not produce the necessary uniformity of taxation when applied to the property of railroads, in view of their nature. Commonwealth by Anderson v. Louisville & N. R. Co., 142 Ky. 663 , 135 S.W. 280, 1911 Ky. LEXIS 288 ( Ky. 1911 ).

2.Railroad Property.

Where a bridge is owned and used by a railroad company, it constitutes railroad property within this section, though it is also used for the accommodation of teams, street cars, and foot passengers. Board of Equalization v. Louisville & N. R. Co., 139 Ky. 386 , 109 S.W. 303, 33 Ky. L. Rptr. 78 , 1908 Ky. LEXIS 9 ( Ky. 1908 ).

3.Assessment and Collection.

This section relates only to the mode of assessment and collection of railroad property and taxes thereon and does not authorize a departure from the uniformity in valuation and rate required by Const., §§ 171 and 174. Greene v. Louisville & I. R. Co., 244 U.S. 499, 37 S. Ct. 673, 61 L. Ed. 1280, 1917 U.S. LEXIS 1660 (U.S. 1917), overruled in part, Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 104 S. Ct. 900, 79 L. Ed. 2d 67, 1984 U.S. LEXIS 4 (U.S. 1984).

This section empowers the legislature to formulate a method of taxation and assessment of railroad property different from that which it applies to other property. Commonwealth by Anderson v. Southern Pac. Co., 150 Ky. 97 , 149 S.W. 1105, 1912 Ky. LEXIS 821 ( Ky. 1912 ), overruled, Commonwealth v. Kentucky Heating Co., 176 Ky. 35 , 195 S.W. 459, 1917 Ky. LEXIS 40 ( Ky. 1917 ).

Cited:

Southern Ry. in Kentucky v. Coulter, 113 Ky. 657 , 68 S.W. 873, 24 Ky. L. Rptr. 203 , 1902 Ky. LEXIS 96 ( Ky. 1902 ); Commonwealth v. Union Refrigerator Transit Co., 118 Ky. 131 , 26 Ky. L. Rptr. 23 , 26 Ky. L. Rptr. 397 , 80 S.W. 490, 81 S.W. 268, 1904 Ky. LEXIS 16 ( Ky. 1904 ); Cumberland Tel. & Tel. Co. v. Hopkins, 121 Ky. 850 , 28 Ky. L. Rptr. 846 , 90 S.W. 594, 1906 Ky. LEXIS 268 ( Ky. 1906 ); Commonwealth v. Louisville & N. R. Co., 149 Ky. 829 , 150 S.W. 37, 1912 Ky. LEXIS 732 ( Ky. 1912 ); Gammill Lumber Co. v. Board of Suprs., 274 F. 630, 1921 U.S. Dist. LEXIS 1189 (D. Miss. 1921); Fiscal Court v. Brady, 885 S.W.2d 681, 1994 Ky. LEXIS 88 ( Ky. 1994 ).

Research References and Practice Aids

Cross-References.

Railroad taxes, KRS 136.120 to 136.200 .

EDUCATION

§ 183. General Assembly to provide for school system.

The General Assembly shall, by appropriate legislation, provide for an efficient system of common schools throughout the State.

Compiler’s Notes.

The following amendment was proposed by the 1986 General Assembly (Acts 1986, ch. 36, § 4), was submitted to the voters for ratification or rejection at the regular election in November, 1986 and was defeated:

§ 183. Common schools to be provided for — State board of education — Superintendent of public instruction.

The general assembly shall, by appropriate legislation, provide for an efficient system of common schools throughout the state. There shall be a state board of education which shall consist of thirteen (13) members whose duties and qualifications shall be prescribed by statute. The governor shall appoint one (1) board member from each of the seven (7) supreme court districts and six (6) members at large to begin their respective terms on July 1, 1987. Individual appointments shall be subject to confirmation by majority vote of the senate during the first regular, special or organizational session of the general assembly subsequent to the appointment. Appointments not confirmed shall be void and the governor shall make an additional appointment to serve the remainder of the particular term, subject to confirmation by the senate. Of the original thirteen (13) appointments, three (3) shall be for six (6) year terms, two (2) for five (5) year terms, two (2) for four (4) year terms, two (2) for three (3) year terms, two (2) for two (2) year terms, and two (2) for one (1) year terms, at the designation of the governor. Thereafter, at the expiration of each term, a member of the state board of education shall be appointed for a six (6) year term. Board members shall be eligible to serve no more than two (2) consecutive terms. The state board of education shall appoint a superintendent of public instruction, who shall act as executive officer for the board and perform such duties and possess such qualifications as may be provided by the board or by statute. The superintendent shall serve pursuant to an employment contract which may be executed in a maximum term of five (5) years. An individual may, at the pleasure of the board, serve consecutive contractual periods of employment as superintendent. The superintendent of public instruction shall serve at such salary and allowances as may be fixed by the board and may be removed for cause to be prescribed by law.

Sections 5 and 6 of Acts 1986, ch. 36 read:

“Section 5. It is further proposed as a part of this amendment that the superintendent of public instruction serving in office at the time of the ratification of this amendment, shall continue in office until his elective term shall expire with the first appointed superintendent to take office at the expiration of the elected superintendent’s term.”

“Section 6. It is further provided as a part of this amendment and as a schedule of transitional provisions for the purposes of this amendment, any other provision of the Constitution of Kentucky to the contrary notwithstanding, that:

  1. The first appointments of the members of the State Board of Education shall be confirmed by the Senate in the 1987 organizational session of the General Assembly.
  2. The State Board of Education that takes office in July, 1987 shall appoint an acting Superintendent of Public Instruction to take office the first Monday in January, 1988.
  3. The terms of board members serving in office on June 30, 1987 shall expire on that date.
  4. All statutes relating to the State Board of Education or the Superintendent of Public Instruction in force on the first Monday in January, 1988, as then constituted, not inconsistent therewith, shall remain in full force until altered or repealed by the General Assembly. The provisions of all statutes which are inconsistent with this amendment shall cease on the first Monday in January, 1988.”

An amendment was proposed by the 1972 General Assembly (Acts 1972, ch. 129, § 1), was submitted to the voters for ratification or rejection at the regular election in November, 1973 and was defeated.

NOTES TO DECISIONS

1.Construction.

This section makes it mandatory upon the general assembly to provide an efficient common school system. Board of Education v. McChesney, 235 Ky. 692 , 32 S.W.2d 26, 1930 Ky. LEXIS 441 ( Ky. 1930 ). See Commonwealth ex rel. Baxter v. Burnett, 237 Ky. 473 , 35 S.W.2d 857, 1931 Ky. LEXIS 623 ( Ky. 1931 ).

This section is as broad as it is possible to frame an authority to the Legislature to deal with the common schools in any way it should desire. Louisville v. Board of Education, 302 Ky. 647 , 195 S.W.2d 291, 1946 Ky. LEXIS 725 ( Ky. 1946 ).

Although this section permits the General Assembly to provide, by appropriate legislation, for an efficient system of common schools, such legislation is not appropriate if it contravenes another constitutional provision of equal dignity. Board of Education v. Board of Education, 472 S.W.2d 496, 1971 Ky. LEXIS 200 ( Ky. 1971 ).

The Kentucky Constitution contemplates that public funds shall be expended for public education and the Commonwealth is obliged to furnish every child in this state an education in the public schools, but it is constitutionally proscribed from providing aid to furnish a private education. Fannin v. Williams, 655 S.W.2d 480, 1983 Ky. LEXIS 290 ( Ky. 1983 ).

A fair reading of Const., §§ 183-189 compels the conclusion that money spent on education is to be spent exclusively in the public school system, except where the question of taxation for an educational purpose has been submitted to the voters and the majority of the votes cast at the election on the question shall be in favor of such taxation. Fannin v. Williams, 655 S.W.2d 480, 1983 Ky. LEXIS 290 ( Ky. 1983 ).

Several conclusions readily appear from a reading of this section. First, it is the obligation, the sole obligation, of the General Assembly to provide for a system of common schools in Kentucky. The obligation to so provide is clear and unequivocal and is, in effect, a constitutional mandate. Next, the school system must be provided throughout the entire state, with no area (or its children) being omitted. The creation, implementation and maintenance of the school system must be achieved by appropriate legislation. Finally, the system must be an efficient one. Rose v. Council for Better Educ., 790 S.W.2d 186, 1989 Ky. LEXIS 55 ( Ky. 1989 ).

2.Power of Legislature.

What the system of education referred to in this section is, or is to be, is left wholly to the discretion of the General Assembly. Prowse v. Board of Education, 134 Ky. 365 , 120 S.W. 307, 1909 Ky. LEXIS 383 ( Ky. 1909 ). See Elliott v. Garner, 140 Ky. 157 , 130 S.W. 997, 1910 Ky. LEXIS 201 ( Ky. 1910 ); Madison County Board of Education v. Smith, 250 Ky. 495 , 63 S.W.2d 620, 1933 Ky. LEXIS 738 ( Ky. 1933 ); Commonwealth v. Griffen, 268 Ky. 830 , 105 S.W.2d 1063, 1937 Ky. LEXIS 536 ( Ky. 1937 ).

Cities of the fifth and sixth classes, in the absence of legislative authority, do not have the power under this section to organize by ordinance city school districts independent of the county districts. Allen v. Elkhorn Coal Corp., 208 Ky. 108 , 270 S.W. 743, 1925 Ky. LEXIS 223 ( Ky. 1925 ).

The determination of whether legislation providing for the common school system is “appropriate” is a legislative function. Board of Education v. Board of Education, 458 S.W.2d 6, 1970 Ky. LEXIS 160 ( Ky. 1970 ).

The sole responsibility for providing the system of common schools is that of our General Assembly. The General Assembly must not only establish the system, but it must monitor it on a continuing basis so that it will always be maintained in a constitutional manner. The General Assembly must carefully supervise it, so that there is no waste, no duplication, no mismanagement, at any level. Rose v. Council for Better Educ., 790 S.W.2d 186, 1989 Ky. LEXIS 55 ( Ky. 1989 ).

This section requires the General Assembly to establish a system of common schools that provides an equal opportunity for children to have an adequate education. In no way does this constitutional requirement act as a limitation on the General Assembly’s power to create local school entities and to grant to those entities the authority to supplement the state system. Rose v. Council for Better Educ., 790 S.W.2d 186, 1989 Ky. LEXIS 55 ( Ky. 1989 ).

3.State Control.

Public education has always been regarded as a matter of state concern, and the state does not relinquish its control and management of the school system by allowing or requiring the different localities to supplement the state’s appropriation of funds by local taxation. Louisville v. Commonwealth, 134 Ky. 488 , 121 S.W. 411, 1909 Ky. LEXIS 399 ( Ky. 1909 ). See Commonwealth ex rel. Baxter v. Burnett, 237 Ky. 473 , 35 S.W.2d 857, 1931 Ky. LEXIS 623 ( Ky. 1931 ).

Every common school in the state, whether located in a city or a rural district, is a state institution, protected, controlled, and regulated by the state, and the fact that the state has appointed agencies such as fiscal courts, school trustees, and municipal bodies to aid it in the collection of taxes for the maintenance of these schools does not deprive them of their state character. Louisville v. Board of Education, 154 Ky. 316 , 157 S.W. 379, 1913 Ky. LEXIS 66 ( Ky. 1913 ). See Moss v. Mayfield, 186 Ky. 330 , 216 S.W. 842, 1919 Ky. LEXIS 218 ( Ky. 1919 ); Whitt v. Wilson, 212 Ky. 281 , 278 S.W. 609, 1925 Ky. LEXIS 1120 ( Ky. 1925 ); Commonwealth ex rel. Baxter v. Burnett, 237 Ky. 473 , 35 S.W.2d 857, 1931 Ky. LEXIS 623 ( Ky. 1931 ).

A provision in a deed of property to a city school board that such property be held for the exclusive use of white male students is void as an unconstitutional attempt to cede away governmental powers by the school board. Board of Education v. Society of Alumni, etc., 239 S.W.2d 931, 1951 Ky. LEXIS 907 ( Ky. 1951 ).

4.Common Schools.

City schools, including high schools, are part of the state’s common school system. Louisville v. Commonwealth, 134 Ky. 488 , 121 S.W. 411, 1909 Ky. LEXIS 399 ( Ky. 1909 ). See Whitt v. Wilson, 212 Ky. 281 , 278 S.W. 609, 1925 Ky. LEXIS 1120 ( Ky. 1925 ).

Graded schools are common schools. Jeffries v. Board of Trustees, 135 Ky. 488 , 122 S.W. 813, 1909 Ky. LEXIS 312 ( Ky. 1909 ).

Although county schools and graded common schools are part of common school system, application to graded common school system of laws clearly intended to be applicable only to county schools is not warranted. Sugg v. Board of Trustees, 255 Ky. 356 , 74 S.W.2d 198, 1934 Ky. LEXIS 236 ( Ky. 1934 ).

Common schools are public or free schools maintained by the state at public expense, as distinguished from private, parochial or sectarian schools. Sherrard v. Jefferson County Board of Education, 294 Ky. 469 , 171 S.W.2d 963, 1942 Ky. LEXIS 2 ( Ky. 1942 ).

This section places a duty on the General Assembly to establish an efficient common school system free from political influence. KRS 161.164 and 161.990 were enacted by the General Assembly in an effort to comply with this directive. State Bd. for Elementary & Secondary Educ. v. Howard, 834 S.W.2d 657, 1992 Ky. LEXIS 85 ( Ky. 1992 ).

5.— Constitutionality of School System.

The Kentucky Supreme Court ruled that Kentucky’s entire system of common schools was unconstitutional. That decision applied to the entire sweep of the system—all its parts and parcels; it applied to the statutes creating, implementing and financing the system and to all regulations, etc., pertaining thereto; it covered the creation of local school districts, school boards, and the Kentucky Department of Education to the Minimum Foundation Program and Power Equalization Program; and it covered school construction and maintenance, teacher certification—the whole gamut of the common school system in Kentucky. Rose v. Council for Better Educ., 790 S.W.2d 186, 1989 Ky. LEXIS 55 ( Ky. 1989 ).

6.Normal Schools.

The state normal schools constitute a part of the common school system of the state, and the object of the Legislature in establishing them was to more fully effect the provisions of this section. James v. State University, 131 Ky. 156 , 114 S.W. 767, 1908 Ky. LEXIS 118 ( Ky. 1908 ).

In the absence of statutory authority the board of regents of a state normal school could not sell property of the school which held it as an agency of the state. Board of Regents v. Engle, 224 Ky. 184 , 5 S.W.2d 1062, 1928 Ky. LEXIS 566 ( Ky. 1928 ).

7.Institutional Schools.

State aid to institutional schools such as Louisville and Jefferson County children’s home is not within the scope of this section to Const., § 186. Hodgkin v. Board for Louisville & Jefferson County Children's Home, 242 S.W.2d 1008, 1951 Ky. LEXIS 1101 ( Ky. 1951 ).

8.Uniform Education.

This section does not require a school district to provide a level of public education exceeding that prescribed by the state board of education as authorized by statute. Major v. Cayce, 98 Ky. 357 , 33 S.W. 93, 17 Ky. L. Rptr. 967 , 1895 Ky. LEXIS 66 ( Ky. 1895 ).

City revenue from tax on corporations must be apportioned between white and colored schools, for to do otherwise would violate this section. Trustees of Graded Free Colored Common Schools v. Trustees of Graded Free White Common Schools, 180 Ky. 574 , 203 S.W. 520, 1918 Ky. LEXIS 114 ( Ky. 1918 ).

Operation of two high schools in western part of county and none in eastern part without providing equal and uniform educational opportunities for those in the eastern half is clearly arbitrary, discriminatory, and in violation of this section and KRS 158.010 . Wooley v. Spalding, 293 S.W.2d 563, 1956 Ky. LEXIS 73 ( Ky. 1956 ).

Uniformity does not require equal classification but it does demand that there shall be substantially uniform system and equal school facilities without discrimination as between different sections of a district or county. Wooley v. Spalding, 293 S.W.2d 563, 1956 Ky. LEXIS 73 ( Ky. 1956 ).

9.School Districts.

School districts created in accordance with this section are creatures of the Legislature and Legislature has power to alter them or even do away with them entirely. Board of Education v. Mescher, 310 Ky. 453 , 220 S.W.2d 1016, 1949 Ky. LEXIS 954 ( Ky. 1949 ). See Board of Education v. Board of Education, 250 S.W.2d 1017, 1952 Ky. LEXIS 897 ( Ky. 1952 ).

Though a school district possesses some of the attributes of a municipal corporation for some legal purposes, and though a school district is regarded as a political subdivision for some legal considerations, a school district is, nevertheless, an agency of the state subject to the will of the Legislature and existing for one public purpose only — to locally administer the common schools within a particular area subject to the paramount interest of the state. Board of Education v. Board of Education, 458 S.W.2d 6, 1970 Ky. LEXIS 160 ( Ky. 1970 ).

10.Boards of Education.

General Assembly may require that members of county board of education have an eighth grade education. Commonwealth ex rel. Meredith v. Norfleet, 272 Ky. 800 , 115 S.W.2d 353, 1938 Ky. LEXIS 207 ( Ky. 1938 ).

It is the local boards which hold the substantial decision-making authority in regard to the local concerns for which they are established; although the state does establish guiding rules and policies for the efficient administration of the public schools, being a steward of state education policy does not make the school district an alter ego of the state. Blackburn v. Floyd County Bd. of Educ., 749 F. Supp. 159, 1990 U.S. Dist. LEXIS 18321 (E.D. Ky. 1990 ).

11.School Elections.

All elections affecting schools are exclusively under the control of the General Assembly, and are not included in the franchise and election articles of the Constitution. Hoskins v. Ramsey, 197 Ky. 465 , 247 S.W. 371, 1923 Ky. LEXIS 663 ( Ky. 1923 ).

Under this section the Legislature has the power to regulate school district elections by virtue of which the corrupt practices act applies to such elections. Ridings v. Jones, 213 Ky. 810 , 281 S.W. 999, 1926 Ky. LEXIS 626 ( Ky. 1926 ).

Statute providing for election by secret ballot of a board of education of each county, was in implementation of this section. Hunter v. Board of Education, 265 Ky. 162 , 96 S.W.2d 265, 1936 Ky. LEXIS 453 ( Ky. 1936 ).

12.School Taxes.

The Legislature is empowered to levy whatever taxes, either ad valorem or capitation, which are necessary to provide an efficient system of common schools throughout the state. McIntire v. Powell, 137 Ky. 477 , 125 S.W. 1087, 1910 Ky. LEXIS 590 ( Ky. 1910 ).

Since the imposition of a poll or capitation tax for school purposes is authorized by the Constitution, it is the absolute duty of the fiscal court to levy such a tax, within the statutory limit, at the request of the board of education. Fiscal Court of Logan County v. Board of Education, 138 Ky. 98 , 127 S.W. 527, 1910 Ky. LEXIS 44 ( Ky. 1910 ).

This section does not authorize Legislature to ignore limitation on indebtedness of two per cent of taxable property. Booth v. Board of Education, 229 Ky. 719 , 17 S.W.2d 1013, 1929 Ky. LEXIS 833 ( Ky. 1929 ).

All taxes imposed for common school purposes are state taxes, although the fund raised by any particular common school tax may be designed to be devoted exclusively to schools located in the territory affected by the tax. Paducah-Illinois R. Co. v. Graham, 46 F.2d 806, 1931 U.S. Dist. LEXIS 1138 (D. Ky. 1931 ).

Providing funds by taxation for common schools, and providing for their organization and administration, are inherently legislative in character, and by this section expressly allocated to the legislative department. Paducah-Illinois R. Co. v. Graham, 46 F.2d 806, 1931 U.S. Dist. LEXIS 1138 (D. Ky. 1931 ).

13.Assessments for Public Improvements.

In view of this section public school property belonging to a city school board may not be subjected to the payment of an assessment for the original construction of a street. Louisville v. Leatherman, 99 Ky. 213 , 35 S.W. 625, 18 Ky. L. Rptr. 124 , 1896 Ky. LEXIS 75 ( Ky. 1896 ).

The Legislature may not authorize a school district to issue bonds for or assume any obligation to pay for abutting municipal street improvements. Wilson v. Board of Education, 226 Ky. 476 , 11 S.W.2d 143, 1928 Ky. LEXIS 124 ( Ky. 1928 ).

14.Teacher Requirements.

The requirement of a county board of education, exercised under statutory authority, that teachers employed by it have higher educational requirements than are required for a teacher’s license does not violate constitutional or statutory requirements of a uniform school system. Daviess County Board of Education v. Vanover, 219 Ky. 565 , 293 S.W. 1063, 1927 Ky. LEXIS 379 ( Ky. 1927 ).

15.Teacher Retirement.

A board of education regulation compelling retirement of teachers at age 65 was not unconstitutional. Belcher v. Gish, 555 S.W.2d 264, 1977 Ky. LEXIS 505 ( Ky. 1977 ).

16.Valid Statutes.

Under this section, that part of the school law authorizing the conversion of a part of a common school district into a graded school district without the consent of a majority of all the patrons of the common school district is constitutional. Elliott v. Garner, 140 Ky. 157 , 130 S.W. 997, 1910 Ky. LEXIS 201 ( Ky. 1910 ).

KRS 160.045 does not violate Const., §§ 2, 19, 52, or this section. Board of Education v. Board of Education, 250 S.W.2d 1017, 1952 Ky. LEXIS 897 ( Ky. 1952 ).

KRS 160.486 is valid and does not contravene the expressed will of the people contained in this Constitution. Board of Education v. Board of Education, 458 S.W.2d 6, 1970 Ky. LEXIS 160 ( Ky. 1970 ).

Since the school based council is an authoritative body within the local school district, and the restriction in subdivision (2)(a) of KRS 160.345 prohibiting school district employees or their spouses from serving as parent members on the school based councils directly addresses the appearance of nepotism within that body and is clearly related to the goals of the Legislature to eradicate nepotism within the school districts of the Commonwealth, they are not unconstitutional as a violation of the equal protection clause of the Fourteenth Amendment. Department of Educ. v. Risner, 913 S.W.2d 327, 1996 Ky. LEXIS 2 ( Ky. 1996 ).

Governor of Kentucky properly issued an executive order, which made several temporary changes to various state education boards, because the boards fell within the ambit of the Governor’s statutory authority to temporarily reorganize boards outside of the legislative session. The Governor’s power did not violate the education provision of the Kentucky Constitution because the Kentucky Legislature apparently believed the grant of interim power to the Governor promoted Kentucky’s system of common schools. Commonwealth ex rel. Beshear v. Bevin, 575 S.W.3d 673, 2019 Ky. LEXIS 214 ( Ky. 2019 ).

17.Prior Statutes.

Special acts concerning school districts in towns and cities were repealed by the subsequent general law relating to common schools, to the extent that they were inconsistent therewith. Hickman College v. Colored Common School Dist., 111 Ky. 944 , 65 S.W. 20, 23 Ky. L. Rptr. 1271 , 1901 Ky. LEXIS 278 (Ky. Ct. App. 1901).

18.Efficient System.

A school system does not cease to be efficient, and thus violate this section, because of court ordered busing for de-desegregation since at the very least “efficient” refers to a system which exists and operates and it must operate in a constitutional manner. Carroll v. Department of Health, Education & Welfare, 410 F. Supp. 234, 1976 U.S. Dist. LEXIS 16031 (W.D. Ky. 1976 ), aff'd, Carroll v. Board of Education, 561 F.2d 1, 1977 U.S. App. LEXIS 11870 (6th Cir. Ky. 1977 ).

The essential, and minimal, characteristics of an “efficient” system of common schools, may be summarized as follows: 1) The establishment, maintenance and funding of common schools in Kentucky is the sole responsibility of the General Assembly. 2) Common schools shall be free to all. 3) Common schools shall be available to all Kentucky children. 4) Common schools shall be substantially uniform throughout the state. 5) Common schools shall provide equal educational opportunities to all Kentucky children, regardless of place of residence or economic circumstances. 6) Common schools shall be monitored by the General Assembly to assure that they are operated with no waste, no duplication, no mismanagement, and with no political influence. 7) The premise for the existence of common schools is that all children in Kentucky have a constitutional right to an adequate education. 8) The General Assembly shall provide funding which is sufficient to provide each child in Kentucky an adequate education. 9) An adequate education is one which has as its goal the development of the seven (7) capacities recited previously. Rose v. Council for Better Educ., 790 S.W.2d 186, 1989 Ky. LEXIS 55 ( Ky. 1989 ).

The Supreme Court considered foreign cases, along with constitutional debates, Kentucky precedents and the opinion of experts in formulating the definition of “efficient” as it appears in this section. Rose v. Council for Better Educ., 790 S.W.2d 186, 1989 Ky. LEXIS 55 ( Ky. 1989 ).

19.Funding.

The present school funding statutes permit local Boards of Education to raise funds through property taxes and permissive taxes such as the utilities tax; base funding and Tier One funding can be produced by a property tax not subject to voter recall and this nonrecallable option enables boards of education to fund schools without relying on permissive taxes; the General Assembly has supplied a mechanism to satisfy base funding, as well as Tier One funding, according to the mandate of this section; and that is all that Rose v. Council for Better Educ., 790 S.W.2d 186, 1989 Ky. LEXIS 55 ( Ky. 1989 ) requires. Board of Educ. v. Brooks, 824 S.W.2d 431, 1992 Ky. App. LEXIS 22 (Ky. Ct. App. 1992).

Cited:

Davenport v. Cloverport, 72 F. 689, 1896 U.S. Dist. LEXIS 143 (D. Ky. 1 896 ); Berkley v. Board of Education, 58 S.W. 506, 22 Ky. L. Rptr. 638 , 1900 Ky. LEXIS 300 (Ky. Ct. App. 1900); Pratt v. Breckinridge, 112 Ky. 1 , 65 S.W. 136, 23 Ky. L. Rptr. 1356 , 1901 Ky. LEXIS 286 ( Ky. 1901 ); Marsee v. Hager, 125 Ky. 445 , 101 S.W. 882, 31 Ky. L. Rptr. 79 , 1907 Ky. LEXIS 304 ( Ky. 1907 ); James v. State University, 131 Ky. 156 , 114 S.W. 767, 1908 Ky. LEXIS 118 ( Ky. 1908 ); Prowse v. Board of Education, 134 Ky. 365 , 120 S.W. 307, 1909 Ky. LEXIS 383 ( Ky. 1909 ); Ex parte Newport, 141 Ky. 329 , 132 S.W. 580, 1910 Ky. LEXIS 462 ( Ky. 1910 ); Mt. Sterling v. Montgomery County, 152 Ky. 637 , 153 S.W. 952, 1913 Ky. LEXIS 702 ( Ky. 1913 ); Larue v. Redmon, 168 Ky. 487 , 182 S.W. 622, 1916 Ky. LEXIS 583 ( Ky. 1916 ); Gilbert v. Greene, 185 Ky. 8 17, 216 S.W. 105, 1919 Ky. LEXIS 380 ( Ky. 1919 ); Schultz v. Ohio County, 226 Ky. 633 , 11 S.W.2d 702, 1928 Ky. LEXIS 149 ( Ky. 1928 ); Talbott v. Kentucky State Board of Education, 244 Ky. 8 26, 52 S.W.2d 727, 1932 Ky. LEXIS 516 ( Ky. 1932 ); Board of Education v. Simmons, 245 Ky. 493 , 53 S.W.2d 940, 1932 Ky. LEXIS 625 ( Ky. 1932 ); Dean v. Board of Education, 247 Ky. 553 , 57 S.W.2d 477, 1933 Ky. LEXIS 419 ( Ky. 1933 ); Board of Education v. Talbott, 261 Ky. 66 , 86 S.W.2d 1059, 1935 Ky. LEXIS 592 ( Ky. 1935 ); Wirth v. Board of Education, 262 Ky. 291 , 90 S.W.2d 62, 1935 Ky. LEXIS 787 ( Ky. 1935 ); Board of Education v. Talbott, 286 Ky. 543 , 151 S.W.2d 42, 1941 Ky. LEXIS 283 ( Ky. 1941 ); Gill v. Board of Education, 288 Ky. 790 , 156 S.W.2d 844, 1941 Ky. LEXIS 142 ( Ky. 1941 ); Commonwealth ex rel. Meredith v. Reeves, 289 Ky. 73 , 157 S.W.2d 751, 1941 Ky. LEXIS 21 (Ky. 1941); Board of Education v. Corbin, 301 Ky. 686 , 192 S.W.2d 951, 1946 Ky. LEXIS 544 ( Ky. 1946 ); Williams v. Board for Louisville & Jefferson County Children's Home, 305 Ky. 440 , 204 S.W.2d 490, 1947 Ky. LEXIS 825 ( Ky. 1947 ); Board of Education v. Spencer County, Levee, Flood Control & Drainage Dist., 313 Ky. 8, 230 S.W.2d 81, 1950 Ky. LEXIS 797 ( Ky. 1950 ); Wooley v. Spalding, 365 S.W.2d 323, 1962 Ky. LEXIS 294 ( Ky. 1962 ); International Brotherhood of Firemen & Oilers v. Board of Education, 393 S.W.2d 793, 1965 Ky. LEXIS 245 ( Ky. 1965 ); Baker v. Strode, 348 F. Supp. 1257, 1971 U.S. Dist. LEXIS 14893 (W.D. Ky. 1971 ); Carroll v. Board of Education, 561 F.2d 1, 1977 U.S. App. LEXIS 11870 (6th Cir. Ky. 1977 ); Chapman v. Gorman, 839 S.W.2d 232, 1992 Ky. LEXIS 124 ( Ky. 1992 ).

Opinions of Attorney General.

The summer school sessions operated by the Louisville and Jefferson County school systems on a tuition basis are not extensions of the regular school term and, consequently, are not in violation of the constitutional or statutory provisions which require a uniform system of common schools to be maintained in the state. OAG 60-1053 .

Following the tax rollback, the executive department of state government had the authority and duty to provide supplemental payments to certain schools under the minimum foundation program as would insure the orderly continuation of the common schools program and as would prevent the regression of the program. OAG 70-474 .

Although there is a wide disparity of per pupil financial support for education, in view of the recent United States Supreme Court case, San Antonio Independent School District v. Rodriguez, the only way our present system of common schools could be declared unconstitutional as violating this section would be to hold that it is not an “efficient system” and, if there is a better way of school financing, it is not up to the courts but the educators and Legislature to find it. OAG 73-273 .

There is no constitutional or legislative requirement that the cost of education to public school pupils must be free and a board of education may require that pupils be charged a reasonable fee for school supplies. OAG 75-619 .

A local school board regulation requiring its certified employees to reside in the board district would seem to work against efficiency in operating schools and procurement of teacher personnel so as to violate this section. OAG 82-59 .

The purchase of satellite receiving equipment for nonpublic schools through an appropriation by the General Assembly would appear to be educational in purpose and, therefore, would appear to be a constitutionally prohibited expenditure. OAG 89-41 .

It is not unconstitutional for the Legislature to require reorganization of the Department of Education, in the course of developing an efficient system of common schools in compliance with this section. OAG 91-66 .

Based on the language of this section of the Kentucky Constitution, and on case law interpreting this section, the General Assembly has authorization to create the Office of Education Accountability. OAG 91-222 .

The discovery powers set forth in KRS 7.410(2)(d) are broad; however, they relate to the ability of the arm of the Legislature to study the implementation of the Reform Act, and to insure that the General Assembly is successful in creating an “efficient system of common schools,” as mandated by this section of the Kentucky Constitution. OAG 91-222 .

A school board may not require principals to be residents of the school district. OAG 01-7 .

Research References and Practice Aids

Cross-References.

Schools, KRS chs. 156 to 167.

Uniform system of schools to be maintained, KRS 158.010 .

Kentucky Bench & Bar.

Prather, Establishing Schools, Vol. 57, No. 1, Winter 1993, Ky. Bench & Bar 19.

Education Law: An Overview of the Rose Decision and the Newest Suit on Educational Funding, Vol. 68, No. 5, Sept. 2004, Ky. Bench & Bar 23.

Kentucky Law Journal.

Lewis, Jural Rights under Kentucky’s Constitution: Realities Grounded in Myth, 80 Ky. L.J. 953 (1992).

Roach, Rule of Men, 81 Ky. L.J. 483 (1992-93).

Article: New Directions in School Funding and Governance: Moving from Politics to Evidence, 98 Ky. L.J. 653 (2009/2010).

Special Feature: Rose At 20: The Past And Future Of School Finance Litigation: Foreword: Rights, Remedies, and Rose, 98 Ky. L.J. 703 (2009/2010).

Special Feature: Rose At 20: The Past And Future Of School Finance Litigation: Judicial Humility: The Enduring Legacy of Rose v. Council for Better Education, 98 Ky. L.J. 717 (2009/2010).

Special Feature: Rose At 20: The Past And Future Of School Finance Litigation: Justiciability, Adequacy, Advocacy, and the “American Dream”, 98 Ky. L.J. 739 (2009/2010).

Special Feature: Rose At 20: The Past And Future Of School Finance Litigation: The Evolving Role of the Courts in School Reform Twenty Years After Rose, 98 Ky. L.J. 789 (2009/2010).

Northern Kentucky Law Review.

Comments, Separation of Church and State: Education and Religion in Kentucky, 6 N. Ky. L. Rev. 125 (1979).

§ 184. Common school fund — What constitutes — Use — Vote on tax for education other than in common schools.

The bond of the Commonwealth issued in favor of the Board of Education for the sum of one million three hundred and twenty-seven thousand dollars shall constitute one bond of the Commonwealth in favor of the Board of Education, and this bond and the seventy-three thousand five hundred dollars of the stock in the Bank of Kentucky, held by the Board of Education, and its proceeds, shall be held inviolate for the purpose of sustaining the system of common schools. The interest and dividends of said fund, together with any sum which may be produced by taxation or otherwise for purposes of common school education, shall be appropriated to the common schools, and to no other purpose. No sum shall be raised or collected for education other than in common schools until the question of taxation is submitted to the legal voters, and the majority of the votes cast at said election shall be in favor of such taxation: Provided, The tax now imposed for educational purposes, and for the endowment and maintenance of the Agricultural and Mechanical College, shall remain until changed by law.

NOTES TO DECISIONS

1.Purpose.

It was the intent of this section to prohibit the collection of any taxes to any extent for educational purposes other than in common schools, without a majority vote of the people. Brown v. Board of Education, 108 Ky. 783 , 57 S.W. 612, 22 Ky. L. Rptr. 483 , 1900 Ky. LEXIS 102 ( Ky. 1900 ).

2.Construction.

This section is a restriction upon legislative power, not upon municipal indebtedness. Brown v. Board of Education, 108 Ky. 783 , 57 S.W. 612, 22 Ky. L. Rptr. 483 , 1900 Ky. LEXIS 102 ( Ky. 1900 ).

This section leaves to the law-making body the determination of what is an efficient educational system, and to that body wide discretion in choosing the method of supplying an efficient system. Dodge v. Jefferson County Board of Education, 298 Ky. 1 , 181 S.W.2d 406, 1944 Ky. LEXIS 815 ( Ky. 1 944).

This section and sections 180 and 186 of the Kentucky Constitution, when read together, prohibit the diversion of common school funds for purposes other than the maintenance of the public schools of the Commonwealth. Board of Education v. Lexington-Fayette Urban County Government, 691 S.W.2d 218, 1985 Ky. App. LEXIS 518 (Ky. Ct. App. 1985).

3.Application.

The prohibitions of this section apply to local political units as well as to the General Assembly. Pollitt v. Lewis, 269 Ky. 680 , 108 S.W.2d 671, 1937 Ky. LEXIS 659 ( Ky. 1937 ).

4.Common School System.

In order for there to be a common school there must be a common school district. Hodgkin v. Board for Louisville & Jefferson County Children's Home, 242 S.W.2d 1008, 1951 Ky. LEXIS 1101 ( Ky. 1951 ).

Neither the statements of the Court of Appeals nor the pronouncements of the legislature can make an institution a part of the common school system contrary to the mandate of the Constitution. Hodgkin v. Board for Louisville & Jefferson County Children's Home, 242 S.W.2d 1008, 1951 Ky. LEXIS 1101 ( Ky. 1951 ).

5.Common School Fund.

The income to which the common school fund was entitled was not confined to those sources of revenue provided in a certain statute, but might be supplemented from other sources such as inheritance taxes. Gilbert v. Greene, 185 Ky. 817 , 216 S.W. 105, 1919 Ky. LEXIS 380 ( Ky. 1919 ).

Money appropriated for schools immediately becomes part of school fund, although appropriated after tax is levied or collected. Talbott v. Kentucky State Board of Education, 244 Ky. 826 , 52 S.W.2d 727, 1932 Ky. LEXIS 516 ( Ky. 1932 ).

Under this section, the school fund was entitled to the surplus in the county livestock fund, despite the repeal of statute providing for payment of the surplus to the school fund. Board of Education v. Tierney, 280 S.W.2d 201, 1955 Ky. LEXIS 148 ( Ky. 1955 ).

6.School Taxes.

Under this section, a city could not avoid paying over to the school board the whole amount of taxes collected, on the ground that it went into the sinking fund. Louisville v. Louisville School Board, 32 S.W. 406, 17 Ky. L. Rptr. 697 (1895).

In view of Const., § 180 and this section, where a city collected a greater sum for school purposes than requested by board of education but within limitation of rate of assessment fixed in statute, the total amount collected belonged to the board of education. Board of Education v. Newport, 174 Ky. 28 , 191 S.W. 871, 1917 Ky. LEXIS 153 ( Ky. 1917 ).

Where a city collects taxes for school purposes without insisting upon levy being reduced by amount of unreported resources of board of education, it cannot subsequently so insist and may not withhold from the school board any portion of the tax levied for school purposes. Board of Education v. Newport, 174 Ky. 28 , 191 S.W. 871, 1917 Ky. LEXIS 153 ( Ky. 1917 ).

A tax levied for the benefit of common schools is a state tax, although it may be levied and collected by municipal county or district agencies. Moss v. Mayfield, 186 Ky. 330 , 216 S.W. 842, 1919 Ky. LEXIS 218 ( Ky. 1919 ). See Whitt v. Wilson, 212 Ky. 281 , 278 S.W. 609, 1925 Ky. LEXIS 1120 ( Ky. 1925 ).

Legislature may provide for efficient school system by directly levying tax which is sufficient when proceeds are distributed pro rata or by raising limit of local school tax rates. Talbott v. Kentucky State Board of Education, 244 Ky. 826 , 52 S.W.2d 727, 1932 Ky. LEXIS 516 ( Ky. 1932 ).

Continued collection of seven cents special tax voted in 1937 for a junior college program was not in violation of this section, although the junior college was to be operated by a state university under contract with the school board and the tax would be paid over to a nonprofit corporation created by the school board as its own agency, the school board having option to withdraw from the program of operation of the junior college. Montague v. Board of Education, 402 S.W.2d 94, 1966 Ky. LEXIS 355 ( Ky. 1966 ).

7.— Collection Fees.

Using a portion of a tax collected for purposes of common school education to bear the costs of its collection, does not violate Const., § 180 or this section. Ross v. Board of Education, 196 Ky. 366 , 244 S.W. 793, 1922 Ky. LEXIS 520 ( Ky. 1922 ).

No violence is done to constitutional provisions prohibiting diversion of taxes or school funds when a reasonable charge is made against a local school tax for its collection. Dickson v. Jefferson County Board of Education, 311 Ky. 781 , 225 S.W.2d 672, 1949 Ky. LEXIS 1251 ( Ky. 1949 ).

The additional three percent (3%) fee allowed the sheriff of Jefferson County for the collection of school taxes by KRS 160.500 violates this section and Const., § 180. Dickson v. Jefferson County Board of Education, 311 Ky. 781 , 225 S.W.2d 672, 1949 Ky. LEXIS 1251 ( Ky. 1949 ).

A sheriff may not retain for the general expenses of his office from school tax funds any fee in an amount greater than that incurred as an expense of collecting such school tax funds despite statutory authority for a larger fee and the court is required to limit his fee upon such showing. Board of Education v. Wagers, 239 S.W.2d 48, 1951 Ky. LEXIS 836 ( Ky. 1951 ). See Barren County Board of Education v. Edmunds, 252 S.W.2d 882, 1952 Ky. LEXIS 1036 ( Ky. 1952 ); Board of Education v. Greenhill, 291 S.W.2d 36, 1956 Ky. LEXIS 366 ( Ky. 1956 ).

The trial court must fix the fee of the sheriff for collecting board of education tax levy at a figure commensurate with the services rendered since a flat percentage fee violates Const., § 180 and this section in those cases where the reasonable cost of collection is less than amount which would be paid the sheriff by the application of the flat percentage to the total amount of taxes collected. Barren County Board of Education v. Edmunds, 252 S.W.2d 882, 1952 Ky. LEXIS 1036 ( Ky. 1952 ).

Although it may have been that the General Assembly’s intent was to create a flat four percent (4%) commission for the county clerks for collecting the taxes, such interpretation would bring subsection (3) of KRS 134.805 into conflict with Const., § 180 and this section; therefore, a county clerk may not receive a fee for collecting the school tax which is in excess of his or her actual cost of collection, not exceeding four percent (4%). Benson v. Board of Education, 748 S.W.2d 156, 1988 Ky. App. LEXIS 11 (Ky. Ct. App. 1988).

The only exception to the constitutional limitations of Const., § 180 and this section prohibiting the use of school funds for anything other than school purposes is the payment by the school board of the reasonable and actual costs of collecting the taxes. Benson v. Board of Education, 748 S.W.2d 156, 1988 Ky. App. LEXIS 11 (Ky. Ct. App. 1988).

The allocation of the costs of collection of school taxes based on a percentage of revenue collected does not violate this section; such collection costs in no way diminish the constitutional command that school taxes must be appropriated to the common schools and no other purpose. These basic principles were not changed by the adoption of the Kentucky Education Reform Act of 1990. Board of Educ. v. Williams, 930 S.W.2d 399, 1996 Ky. LEXIS 94 ( Ky. 1996 ).

8.Expenditure of Funds.

City school board’s appropriation for purposes not expressly named in statute must reasonably relate to proper school activities or interests. Board of Education v. Simmons, 245 Ky. 493 , 53 S.W.2d 940, 1932 Ky. LEXIS 625 ( Ky. 1932 ).

Discretion vested in boards of education to expend school moneys, is subject to constitutional restriction that such expenditures must be for purposes of common school education. Schuerman v. State Board of Education, 284 Ky. 556 , 145 S.W.2d 42, 1940 Ky. LEXIS 514 ( Ky. 1940 ).

The determination of proper purposes of common school education is subject to wide and varied opinion and, unless an expenditure is extreme or clearly not for a proper educational purpose, the determination of such purpose is within the discretion of the General Assembly. Board of Education v. Talbott, 286 Ky. 543 , 151 S.W.2d 42, 1941 Ky. LEXIS 283 ( Ky. 1941 ).

If the taxes are paid, the sum so collected shall not be devoted to any other purpose than school purposes. Dickson v. Jefferson County Board of Education, 311 Ky. 781 , 225 S.W.2d 672, 1949 Ky. LEXIS 1251 ( Ky. 1949 ).

This section must be read together with Const., § 180 in determining how school funds must be spent, and the test to be applied in each instances is, what constitutes an educational purpose rather than whether an activity might merely be beneficial to education. Board of Education v. Spencer County, Levee, Flood Control & Drainage Dist., 313 Ky. 8 , 230 S.W.2d 81, 1950 Ky. LEXIS 797 ( Ky. 1950 ).

School funds may not be diverted from school purposes. Grayson County Board of Education v. Boone, 452 S.W.2d 371, 1970 Ky. LEXIS 348 ( Ky. 1970 ).

A fair reading of Const., §§ 183-189 compels the conclusion that money spent on education is to be spent exclusively in the public school system, except where the question of taxation for an educational purpose has been submitted to the voters and the majority of the votes cast at the election on the question shall be in favor of such taxation. Fannin v. Williams, 655 S.W.2d 480, 1983 Ky. LEXIS 290 ( Ky. 1983 ).

The Kentucky Constitution contemplates that public funds shall be expended for public education and the Commonwealth is obliged to furnish every child in this state an education in the public schools, but it is constitutionally proscribed from providing aid to furnish a private education. Fannin v. Williams, 655 S.W.2d 480, 1983 Ky. LEXIS 290 ( Ky. 1983 ).

9.— Valid.

City and county boards of education may expend reasonable amounts from public school fund to pay membership dues in Kentucky school board association, since maintenance of that association for purposes specified in its Constitution is beneficial to public education in Kentucky. Schuerman v. State Board of Education, 284 Ky. 556 , 145 S.W.2d 42, 1940 Ky. LEXIS 514 ( Ky. 1940 ).

Payment of gasoline tax by boards of education does not violate this section. Board of Education v. Talbott, 286 Ky. 543 , 151 S.W.2d 42, 1941 Ky. LEXIS 283 ( Ky. 1941 ).

The carrying of liability insurance on school buses is an expense incident to a rational program of school transportation, and the requirement of KRS 160.310 that such insurance be carried does not violate this section. Bronaugh v. Murray, 294 Ky. 715 , 172 S.W.2d 591, 1943 Ky. LEXIS 531 ( Ky. 1943 ).

Where no accurate time accounting could be made for school tax collection by the sheriff and his employees but the four percent (4%) he retained was not excessive, there was no diversion of school funds in the retention of the four percent (4%). Grayson County Board of Education v. Boone, 452 S.W.2d 371, 1970 Ky. LEXIS 348 ( Ky. 1970 ).

A county fiscal court’s resolution which provided approximately 65 percent of the total cost of transporting non-public elementary school students was not unconstitutional where (1) funds were not paid directly to any private or parochial school and were, instead, paid to the individual local board of education operated transportation system of contracted bus and vehicle companies, (2) the benefit provided by the resolution went directly toward the safety and welfare of elementary age school children and not into the accounts of non-public schools, and (3) the resolution did not establish a tuition ceiling as a requisite to eligibility for the transportation subsidy. Neal v. Fiscal Court, 986 S.W.2d 907, 1999 Ky. LEXIS 24 ( Ky. 1999 ).

10.— Invalid.

The appropriation of any part of a school fund or of the taxes which have been devoted to the purposes of the common school system, to the payment either of general taxation for support of the state government, or of special assessments to pay the cost of street improvements, would be an appropriation thereof to another purpose than that of the school system, forbidden by this section. Louisville v. Leatherman, 99 Ky. 213 , 35 S.W. 625, 18 Ky. L. Rptr. 124 , 1896 Ky. LEXIS 75 ( Ky. 1896 ). See Kentucky Institution for Education of Blind v. Louisville, 123 Ky. 767 , 97 S.W. 402, 30 Ky. L. Rptr. 136 , 1906 Ky. LEXIS 213 ( Ky. 1906 ).

A tax levied and collected by a city for school purposes cannot be appropriated by act of legislature to maintain public library open to pupils of common schools only as a part of general public, and not under control of board of education for common schools. Board of Education v. Board of Trustees, 113 Ky. 234 , 68 S.W. 10, 24 Ky. L. Rptr. 98 , 1902 Ky. LEXIS 45 ( Ky. 1902 ).

State board of education could not purchase free textbooks for schools, where none of state’s school fund had been appropriated for that purpose and general fund had been exhausted. State Board of Education v. Kenney, 230 Ky. 287 , 18 S.W.2d 1114, 1929 Ky. LEXIS 71 ( Ky. 1929 ).

The Tax Increment Act, KRS 99.750 to 99.770 (repealed), which permits various taxing districts to release increments expected to be derived by such districts as a result of the undertaking of a renewal or redevelopment project by an urban renewal community agency or authority to be used as a special fund for bond payment is invalid as it violates this section, for money collected for the purposes of education in the common school system cannot be spent for any other purpose. Miller v. Covington Development Auth., 539 S.W.2d 1, 1976 Ky. LEXIS 40 ( Ky. 1976 ).

If the exclusive purpose of KRS 171.215 , which provides that the state must supply textbooks to students in nonpublic schools, is to pay the expenses of children in private schools, Const., § 3 has been directly violated; conversely, if the textbooks also aid in the functioning of the private schools themselves, Const., §§ 171, 186, 189 and this section have been violated. Fannin v. Williams, 655 S.W.2d 480, 1983 Ky. LEXIS 290 ( Ky. 1983 ).

KRS 171.215 , which provides that the department of libraries (now department for libraries and archives) must supply textbooks without cost to pupils attending nonpublic schools, is unconstitutional in that it directs the expenditure of public funds for educational purposes through nonpublic schools. Fannin v. Williams, 655 S.W.2d 480, 1983 Ky. LEXIS 290 ( Ky. 1983 ).

Grants made by fiscal court from county tax revenue by direct payment to certain specified privately-owned schools designated as transportation subsidies violated this section which provides that money cannot be expended for education other than in common schools without a vote of the public, because public money is being expended for the benefit of the private institution rather than providing specifically for the health and safety of all the children. Fiscal Court v. Brady, 885 S.W.2d 681, 1994 Ky. LEXIS 88 ( Ky. 1994 ).

11.Assessment for Public Improvements.

Board of education could not be required to pay assessment by county flood and drainage district to build a flood wall notwithstanding board and children in its district would benefit thereby since such expenditure would be for other than educational purposes. Board of Education v. Spencer County, Levee, Flood Control & Drainage Dist., 313 Ky. 8 , 230 S.W.2d 81, 1950 Ky. LEXIS 797 ( Ky. 1950 ).

Even if the money paid by the state as the apportionment of a special improvement benefit assessment against school property is considered money appropriated in aid of education, it is within the legislative discretion to specify the purpose of its use. Robertson v. Danville, 291 S.W.2d 816, 1956 Ky. LEXIS 400 ( Ky. 1956 ).

KRS 107.010 to 107.220 providing for the financing of public improvement projects by annual assessments on the basis of the assessed values of the benefited properties, does not, by providing that public school properties shall be assessed and that levies against it should be paid from the state treasury out of moneys not otherwise appropriated, violate this section. Robertson v. Danville, 291 S.W.2d 816, 1956 Ky. LEXIS 400 ( Ky. 1956 ).

12.University of Kentucky.

This section does not prohibit a subsequent, new, statutory appropriation for the support of the Agricultural and Mechanical College. Agricultural & Mechanical College v. Hager, 121 Ky. 1 , 87 S.W. 1125, 27 Ky. L. Rptr. 1178 , 1905 Ky. LEXIS 171 ( Ky. 1 905).

Neither the change of the name of the Agricultural & Mechanical College of Kentucky to State University, nor transfer of normal work proper to state normal schools, destroyed its identity as a public corporation and state institution as respects the matter of appropriation therefor. James v. State University, 131 Ky. 1 56 , 114 S.W. 767, 1908 Ky. LEXIS 118 ( Ky. 1 908). See Agricultural & Mechanical College v. Hager, 121 Ky. 1, 87 S.W. 1125, 27 Ky. L. Rptr. 1178 , 1905 Ky. LEXIS 171 ( Ky. 1905 ); Marsee v. Hager, 125 Ky. 445 , 101 S.W. 882, 31 Ky. L. Rptr. 79 , 1907 Ky. LEXIS 304 ( Ky. 1907 ).

The State University and the state normal schools are among the educational institutions for which, under this section, the legislature may make appropriations without submitting the matter to a vote of the people. James v. State University, 131 Ky. 1 56 , 114 S.W. 767, 1908 Ky. LEXIS 118 ( Ky. 1 908). See Agricultural & Mechanical College v. Hager, 121 Ky. 1, 87 S.W. 1125, 27 Ky. L. Rptr. 1178 , 1905 Ky. LEXIS 171 ( Ky. 1905 ); Marsee v. Hager, 125 Ky. 445 , 101 S.W. 882, 31 Ky. L. Rptr. 79 , 1907 Ky. LEXIS 304 ( Ky. 1907 ).

This section has no application to a statute providing that counties may send a number of pupils free of tuition to the State University. Barker v. Crum, 177 Ky. 637 , 198 S.W. 211, 1917 Ky. LEXIS 665 ( Ky. 1917 ) ( Ky. 1917 ).

13.Normal Schools.

Statute establishing a system of state normal schools and appropriating money therefor was not in violation of this section. Marsee v. Hager, 125 Ky. 445 , 101 S.W. 882, 31 Ky. L. Rptr. 79 , 1907 Ky. LEXIS 304 ( Ky. 1907 ).

14.Institutional Schools.

This section and Const., § 185 do not empower the commissioners of the sinking fund of the Commonwealth to provide funds for reconstruction of building of Industrial College for Colored People destroyed by fire or to authorize the trustees to reconstruct the building at state expense. Rhoads v. Fields, 219 Ky. 303 , 292 S.W. 809, 1927 Ky. LEXIS 321 ( Ky. 1927 ).

15.Valid Statutes.

Statute providing that the expenses of the Department of Education, of whatever character, be paid from the common school fund, is not repugnant to this section. Superintendent of Public Instruction v. Auditor of Public Accounts, 97 Ky. 180 , 30 S.W. 404, 17 Ky. L. Rptr. 46 , 1895 Ky. LEXIS 169 ( Ky. 1895 ).

Under this section statute authorizing discounts for prompt payment of taxes including school taxes is not invalid as allowing sums produced by taxation for common schools to be appropriated to other purposes. Board of Education v. Sea, 167 Ky. 772 , 181 S.W. 670, 1916 Ky. LEXIS 492 ( Ky. 1916 ).

Law providing for an increase of the tax for operating expenses of common schools was valid. Larue v. Redmon, 168 Ky. 487 , 182 S.W. 622, 1916 Ky. LEXIS 583 ( Ky. 1916 ).

An act providing for payment of interest on warrants to be issued by the auditor for teachers’ salaries did not violate this section. Adams v. Greene, 182 Ky. 504 , 206 S.W. 759, 1918 Ky. LEXIS 387 ( Ky. 1918 ).

KRS 212.260 authorizing county health officers to visit schools and inspect premises does not limit or substitute for school board’s power to appropriate school funds under the Constitution. Board of Education v. Simmons, 245 Ky. 493 , 53 S.W.2d 940, 1932 Ky. LEXIS 625 ( Ky. 1932 ).

Statute authorizing a board of education to impose occupational license fees after electoral approval does not violate this section by providing that the necessary expenses of the required election be paid from school funds. Sims v. Board of Education, 290 S.W.2d 491, 1956 Ky. LEXIS 329 ( Ky. 1956 ).

Former statute that authorized public aid to private institutions for the education of exceptional children did not violate this section since it was not the intention of the delegates in adopting this section and Const., § 186 to deny forever the possibility of special educational assistance to those who by no choice of their own are unsuited to the standard programs and facilities of the common school system, the act in question being primarily a welfare rather than an educational measure and the fact that it takes the form of education being immaterial. Butler v. United Cerebral Palsy, Inc., 352 S.W.2d 203, 1961 Ky. LEXIS 200 ( Ky. 1961 ).

16.Invalid Statutes.

Legislative act providing for furnishing free transportation to pupils attending private schools violated this section, there being no merit in argument that act provided benefit for children and not for school. Sherrard v. Jefferson County Board of Education, 294 Ky. 469 , 171 S.W.2d 963, 1942 Ky. LEXIS 2 ( Ky. 1942 ).

17.Sewer User Charges.

The applicability of this section and Ky. Const., §§ 180 and 186 to the issue of whether a sewer user charge can be paid from school funds must be determined by a reasonable interpretation of whether the service or commodity provided is necessary for the maintenance of the public schools and is exclusively for the benefit of the public schools. Sewer user charges imposed upon a county board of education bear a reasonable and rational relationship to the value of the services provided and therefore are exclusively for the benefit of and necessary for the maintenance of the public schools. Board of Education v. Lexington-Fayette Urban County Government, 691 S.W.2d 218, 1985 Ky. App. LEXIS 518 (Ky. Ct. App. 1985).

Cited:

Bank of Cumberland v. Simpson, 77 S.W. 695, 25 Ky. L. Rptr. 1227 (1903); Commonwealth v. Southern Pac. Co., 154 Ky. 41 , 156 S.W. 865, 1913 Ky. LEXIS 4 ( Ky. 1913 ); Greene v. Gilbert, 168 Ky. 380 , 182 S.W. 202, 1916 Ky. LEXIS 563 ( Ky. 1916 ); Larue v. Redmon, 168 Ky. 487 , 182 S.W. 622, 1916 Ky. LEXIS 583 ( Ky. 1916 ); Cassady v. Oldham County, 246 Ky. 772 , 246 Ky. 773 , 56 S.W.2d 368, 1933 Ky. LEXIS 25 ( Ky. 1933 ); Board of Education v. Williams, 256 S.W.2d 29, 1953 Ky. LEXIS 714 ( Ky. 1953 ); Van Hoose v. Williams, 496 F. Supp. 947, 1980 U.S. Dist. LEXIS 15217 (E.D. Ky. 1980 ); Marshall v. Commonwealth, 20 S.W.3d 478, 2000 Ky. App. LEXIS 62 (Ky. Ct. App. 2000).

Opinions of Attorney General.

A board of education has no authority to appropriate money to a fire department, as the benefit to education in this regard would be remote and would not be an expenditure of school funds for educational purposes as required by this section. OAG 60-612 .

The county board of education has authority to request the department of highways to allow a water line to be attached to the water main serving the school in order that service may be extended to a subdivision, since there would not be any additional expenditure of school funds for the extension of the water line to the new subdivision, there is no violation of this section. OAG 60-704 .

If implemented in a school district the young historians program can be regarded as educational in purpose within the meaning of the Constitution. OAG 63-214 .

A board of education may not provide and maintain an automobile for the personal use of a school superintendent. OAG 64-130 .

A board of education may provide and maintain an automobile for the benefit of the school superintendent while discharging the duties attendant to his office. OAG 64-130 .

A school board has legal authority to purchase liability insurance to cover the liability for sick-leave payments imposed by KRS 161.155 . OAG 64-841 .

It is legal for a board of education to execute a contract with a local health department to provide preventive medical services. OAG 65-293 .

In order for a local school board to have a legal right to spend foundation program funds or revenue raised by local taxation for adults over 21 years of age the program would have to be part of the common school program. OAG 65-410 .

Commingling of state and federal funds by a school would result in their becoming subject to the provisions of both state and federal laws governing their expenditure. OAG 65-625 .

A school board may lawfully purchase fire and extended coverage insurance in the form of a package policy even though the premium is not specifically allocable to individual coverage if it does not exceed the rate regularly charged for fire and extended coverage insurance, as approved by the Kentucky department of insurance for such risks. OAG 66-36 .

A restriction contained in a declaration of restrictions affecting a 10.44 acre tract proposed as a school site that would require the owner of the tract to pay an assessment that could be used for maintenance of other property in the subdivision would preclude the purchase of the tract as a school site since the payment of the assessment would violate this section. OAG 67-413 .

The city council’s requiring the board of education to make repairs in the sidewalk in front of the high school would be in direct violation of this section. OAG 68-67 .

An expenditure of school funds to help defray the operating costs of the county health department would not be proper. OAG 68-143 .

The payment to the city by the board of education of a tap-in fee for connecting to the sewer line would not violate this section or Const., § 186. OAG 68-283 .

Expenditures of school funds to provide turnabouts for school buses on private property adjacent to bridges that have been condemned would offend this section and Const., § 180 and would not be a proper school board expenditure. OAG 68-473 .

A school board could not grant an easement across school property to the metropolitan sewer district since the easement would not constitute an educational purpose. OAG 69-127 .

A lease of school property permitting the construction of a swimming pool on the leased premises would not violate this section or Const., § 180 if the consideration received by the school district would be sufficient to compensate for the lease. OAG 69-290 .

Under this section and Const., § 180 the funds of the school board may not properly be expended to pay a portion of the salary of policewomen to patrol intersections on the city streets during school rush hours since this activity involves a service for the general public welfare rather than one which is designed to accomplish an educational purpose. OAG 69-488 .

The members of families of employees and/or the dependents of employees may, within the discretion of the board, participate in the various types of group coverage provided the extra cost of the family coverage or dependent coverage is paid by the employee. OAG 70-336 .

A lease by a school board of school property at the nominal rental value of $1.00 per year merely on the basis that United Cerebral Palsy would conduct a school on the premises could not be justified per se under Const., §§ 180, 184, and 186. However, if a factual determination were made that a proposed United Cerebral Palsy school would furnish an approved program for the instruction of exceptional children and that such a program was needed by the local school board, the board could execute a lease of property for such a school for the nominal sum of $1.00 per year. OAG 70-805 .

Both the value received criterion and the direct benefit criterion must be considered in applying tests to determine whether a particular expenditure is valid under the school purpose restriction. OAG 70-805 .

The Kentucky statutes do not authorize the expending of bond proceeds to renovate school buildings presently existing and already acquired. OAG 71-107 .

The statutory sections relating to acquisition of existing buildings in KRS chs. 58 and 162 are broad enough to include, by reasonable implication, whatever may be properly spent for the functional adaptation of purchased buildings to school purposes. OAG 71-107 .

A school board cannot expend money for the construction of a community center building to be used for educational, recreational, and social community services and health purposes. OAG 71-184 .

A local board of education is precluded from expending school funds to pay a portion of the costs incurred by either private or quasi-public nonschool agencies in operating special education classes for exceptional children. OAG 72-86 .

An agreement by a board of education to lease unused portions of a television facility owned by it to a private corporation was lawful with the exception of a provision that a part of the consideration for the lease would be an option to purchase up to 10% of the stock of the private corporation, which provision was illegal and void under §§ 177, 179, 184, and 186 of the Constitution. OAG 73-418 .

It is proper for a school district to require students to pay the cost of their meals, but if a school district sees fit to do so, it may use school funds to subsidize the school lunch program with the result that the pupils will be paying a price which is less than the cost of supplying their meals. OAG 73-754 .

It would be a violation of the Constitution to pay the salary of a parochial schoolteacher from the funds of a public school district. OAG 73-799 .

Since the control of air pollution is for the public benefit, the obtaining of a pollutant permit is a public school purpose and therefore payment of the fee does not violate the Constitution. OAG 74-57 .

The announcement over a school speaker system or the distribution of notices to children on school property of meetings of an organization of parents to promote a constitutional amendment which would forbid busing of school pupils for the purpose of achieving racial balance in the public schools constitutes an illegal use of school property and improperly interjects political questions into the operation of the public school. OAG 74-118 .

Public school teachers may not, as a part of the duties for which compensated by boards of education, be assigned, to teach in a private or sectarian school. OAG 74-331 (modifying OAG 68-150 , and withdrawing OAG 68-585 ).

Qualified pupils in private schools which are nonsectarian and which do not teach religion are entitled to the benefits of the Title I program. OAG 74-683 .

Proposed public relations plan to have administrators of the school system join various service organizations of the community would not be a proper expenditure of school funds and would be unconstitutional under this section and Const., § 180. OAG 74-873 .

A public school district cannot be compelled to pay for public improvements nor can it voluntarily use school funds for such purposes. OAG 75-108 and 75-613.

Under this section and § 186 of the Const., school funds may not be expended for the construction of entrances to school property within the rights of way of state highways and the expense of such entrances must be borne by the state department of transportation (now transportation cabinet). OAG 75-362 and 75-613.

Public school funds may not be expended to employ persons to control vehicular and pedestrian traffic on public streets or roads in or around school premises. OAG 75-614 .

An off-duty constable employed as a school security guard is an employee of the school board which may compensate him for his services. OAG 75-631 .

Although the services of school crossing guards are a benefit to school children, the guards do not serve an “educational purpose,” and thus school board funds may not be expended to pay the salary of individuals who patrol intersections on city streets. OAG 76-239 .

A county sheriff’s fee for collecting school taxes must represent the reasonable cost of collection, as long as the rate does not exceed 4 percent, and the sheriff must document his reasonable costs of collection. OAG 76-251 .

Once approval to sell school property as surplus is given by the Superintendent of Public Instruction, there is no legal requirement that a board of education must dispose of the property by public auction or advertisement of sealed bids and the board may establish a price for the land and sell to any purchaser willing and able to meet that price if the figure represents at least the appraised fair market value of the property. OAG 76-291 .

A board of education may not participate in defraying the cost of a property reappraisal that was ordered by the Circuit Court in an action by a private party against the city. OAG 77-299 .

The expenses of opening schools to serve as voting places on a presidential election day, as provided by subsection (2) of KRS 117.065 , when the schools are mandated to be closed by KRS 2.190 would be so small and incidental as not to be proscribed by Kentucky Constitution, §§ 180, 184, 186. OAG 76-592 . Withdrawing OAG 42-363 .

Since the requirement that schools not be opened without a custodian is a policy created by school board and not by statute, the circumstances surrounding the use of schools as voting places as provided for in subsection (2) of KRS 117.065 may be structured so that there does not exist any unwarranted and impermissible expenditures of public common school money for election purposes. OAG 76-614 .

Since a water system is a necessary appendage to the school building and may relate very closely to the health and welfare of the students, a county board of education could legally spend public common school funds to construct a water line from the school property to an existing water line supply. OAG 76-654 .

Once the sheriff’s total fee for collecting school taxes is properly computed the constitutional test of diversion is met since the constitutional diversion occurs no sooner than the reasonable cost of collection is exceeded, regardless of how much the excess is. OAG 78-146 .

The payment to the urban county government of 25% for the school tax collection fee paid to the sheriff does not constitute an unlawful diversion of school money. OAG 78-146 .

The total cost of collecting school taxes (prior to the 75% and 25% distribution at State level) is strictly constitutional as being an expenditure for school purposes. OAG 78-146 .

A city ordinance making school crossing guards, who are sworn peace officers with authority to issue citations and place and remove traffic control devices, employees of the school board rather than the city is invalid under KRS 94.360 (repealed), giving a city exclusive control over its streets, KRS 189.336 , giving a city exclusive authority to place traffic control devices, and this section requiring school board funds be used only for the purpose of education. OAG 79-107 .

The employment of school crossing guards is not an “educational purpose” for which school funds may be expended. OAG 79-107 .

The governing body of a city of the second class has authority by ordinance to present the question to its citizens concerning whether they wish to have a seven cents special tax levy to support a community college continued or repealed. OAG 79-503 .

An emergency ambulance service for school children and personnel may legally be provided by a contract made between a board of education and a private ambulance service since this is for school purposes and the expenditure would not be prohibited by this section of the Constitution. OAG 81-87 .

The present school laws, in light of the Constitution, do not authorize or permit any state-funded extended employment days to be used for vacation or holidays. OAG 82-356 .

Within reason, school boards are permitted to bear the direct and indirect expenses incurred by teachers and administrators who attend, after prior approval by the board, professional activities and functions; however, school boards are not wholly unfettered in exercising their discretion in approving attendance at sundry professional activities since Const., § 180 and this section require that school funds may be used only for school purposes, the test being whether the expenditure is for an educational purpose rather than whether an activity might be beneficial to education. OAG 83-228 .

It is legal for a board of education to pay salaries and/or expenses — including travel, lodging, and meals for school administrators or teachers to attend business sessions of their respective professional organizations, training and professional improvement meetings conducted by their professional organization and accreditation associations to which their schools or districts belong, and/or lobbying activities conducted by their professional associations. OAG 83-228 .

A proposal by the fiscal court to pay a sum equal to 150 percent of the purported “actual cost” of transporting “all” the school children in a school district may not be legally tolerated, since it appears that a purported “actual increase cost” figure for the cost of transporting the nonpublic school children may not be constitutionally determined. OAG 83-294 .

Language in budget memorandum recommending and directing that 705 KAR 2:030 Section 8 be amended to change the local district transfer provision from 20% to the established value of the capital outlay component of a foundation unit with difference in the transfer to be used to fund the operational costs of the New Rowan County State Vocational-Technical School and the expanded facilities in Ashland and Elizabethtown is precatory in nature and in light of this section and Const., § 186 cannot be carried out for funds involved, are foundation program funds and not just general funds appropriated for education and using the difference in the transfer amount of funds to support the operational cost of the New Rowan County State Vocational-Technical School and expanded facilities in Ashland and Elizabethtown would be using foundation program funds for nonfoundation purposes. OAG 84-314 .

Where one or more school districts initiate a suit to enforce state equalization of school funding within the Commonwealth, interested school districts may contribute reasonable amounts of money from school funds to meet the costs of the suit, including reasonable attorney’s fees; such expenditures would, however, have to be made in accordance with appropriate budget considerations. OAG 85-100 .

By exempting school districts from the scope of application of the act, and by permitting termination by a taxing district on a year-to-year basis of a contractual arrangement with an agency, Acts 1986, ch. 13 which repealed the Tax Increment Act, KRS 99.750 , and enacted KRS 99.751 , 99.756 , 99.761 , 99.766 and 99.771 , has remedied the constitutional problems under this section and Const., § 157 that the Supreme Court in Miller v. Covington Development Authority, 539 S.W.2d 1, 1976 Ky. LEXIS 40 ( Ky. 1976 ), found with the Tax Increment Act. OAG 86-48 .

Any settlement of claims for taxes owed, including interest and penalties, would be a diversion of school fund moneys for a purpose other than that of the common schools. OAG 88-46 .

Neither the school nor the tax collector can abate past due interest or penalty on local school taxes paid prior to or after filing suit for collection of the unpaid taxes, penalty, and interest. OAG 88-46 .

The purchase of satellite receiving equipment for nonpublic schools through an appropriation by the General Assembly would appear to be educational in purpose and, therefore, would appear to be a constitutionally prohibited expenditure. OAG 89-41 .

No existing law prohibits, outright, local districts from showing instructional TV programming with minimal commercials included so long as curricular materials are properly reviewed; if instructional TV programming, with minimal commercials included, is allowed in the public schools, then the two (2) minutes of advertising do not have to be excluded from the six (6) hour day. OAG 90-42 .

The state board has the authority to ban any television instruction with commercial advertising if the board determines as a matter of public policy that such should not be utilized in the classroom. The board also has the authority to allow the local boards of education and school councils to decide this matter. OAG 90-42 .

The common school fund consists of all sums produced by taxation or otherwise for common school purposes in addition to the interest and dividends of the fund. Those sums are to be spent exclusively on public education. KRS 156.665 (now repealed) provides that among the duties and responsibilities of the Council for Education Technology is the investment of all funds received by the council for the purpose of carrying out these duties and responsibilities, and accordingly, KRS 42.500 does not apply, as the authority granted to the State Investment Commission is limited by KRS 156.665 (now repealed). OAG 91-39 .

Under KRS 168.100 , the use of state funds appropriated for educational purpose may be applied by Kentucky Educational Television only for the benefit of public or common schools in order to avoid violation of this section and Const., §§ 171, 186, and 189. Accordingly, KET is required to charge nonstate schools, whether private and nonsectarian or parochial, for services delivered in the process of returning student responses to the KET master computer. OAG 91-71 .

An expenditure of common school funds or a donation of school property for a public purpose other than for the benefit of public education is not permissible under this section and Const., §§ 180 and 186; therefore, under this section and Const., §§ 180 and 186, any transfer of surplus school buildings to community service organizations must be based on the fair market value of the property. OAG 91-85 .

It is still the opinion of the Attorney General’s office that OAG 79-107 represents the law of Kentucky and the interpretation of Ky. Const., § 180 and this section, and that the expenditure of school funds for school guard crossings is prohibited constitutionally. OAG 92-6 .

A reward, offered by the local school board, for the purpose of apprehending the vandals who damaged school property constitutes a proper educational purpose within the meaning of this section and Ky. Const., §§ 180 and 186; the act also falls within the parameters of KRS 160.160 as being necessary in order that the board may accomplish the purposes for which it was created as the resources of each school system are limited, and must be protected. OAG 92-63 .

A school board cannot lawfully agree to provide materials paid for with school funds, or provide school funds themselves, whether under an intergovernmental agreement or otherwise, for the construction or maintenance of school bus turnarounds within the meaning of subsection (2) of KRS 178.290 . OAG 93-63 .

KRS 158.6455 permits a local school council or principal to use school reward money to pay teacher bonuses, and these bonuses are permissible under the Kentucky Constitution because they are “for school purposes.” OAG 00-2 .

A county board of education can constitutionally pay a privilege fee for connecting to a public sewer system. A privilege fee to fund construction of a sewer system is a “public school purpose” if it bears a rational relationship to the value of the services provided to the public schools. A fee based on usage and acreage meets this standard because it is proportional to the services provided. OAG 2009-01 .

Research References and Practice Aids

Cross-References.

City universities and colleges, KRS ch. 165.

Northern Kentucky Law Review.

Comments, Separation of Church and State: Education and Religion in Kentucky, 6 N. Ky. L. Rev. 125 (1979).

§ 185. Interest on school fund — Investment.

The General Assembly shall make provision, by law, for the payment of the interest of said school fund, and may provide for the sale of the stock in the Bank of Kentucky; and in case of a sale of all or any part of said stock, the proceeds of sale shall be invested by the Sinking Fund Commissioners in other good interest-bearing stocks or bonds, which shall be subject to sale and reinvestment, from time to time, in like manner, and with the same restrictions, as provided with reference to the sale of the said stock in the Bank of Kentucky.

NOTES TO DECISIONS

1.Escheated Property.

This section does not prevent the legislature from allowing certain localities to make additional provision for the financing of their schools and, consequently, a statute providing that certain categories of property, in case of escheat, shall go to a school district is valid. Ky. v. Thomas' Admr, 140 Ky. 789 , 131 S.W. 797, 1910 Ky. LEXIS 362 (Ky. Ct. App. 1910).

2.Industrial College.

Commissioners of the sinking fund had no authority to provide funds for reconstruction of building of Industrial College destroyed by fire, nor could they authorize trustees of college to do so at expense of state. Rhoads v. Fields, 219 Ky. 303 , 292 S.W. 809, 1927 Ky. LEXIS 321 ( Ky. 1927 ).

Cited:

Pratt v. Breckinridge, 112 Ky. 1 , 23 Ky. L. Rptr. 1356 , 65 S.W. 136, 1901 Ky. LEXIS 286 ( Ky. 1 901 ); Board of Education v. Talbott, 261 Ky. 66 , 86 S.W.2d 1059, 1935 Ky. LEXIS 592 ( Ky. 1935 ); Hodgkin v. Board for Louisville & Jefferson County Children’s Home, 242 S.W.2d 1008, 1951 Ky. LEXIS 1101 ( Ky. 1951 ).

§ 186. Distribution and use of school fund.

All funds accruing to the school fund shall be used for the maintenance of the public schools of the Commonwealth, and for no other purpose, and the General Assembly shall by general law prescribe the manner of the distribution of the public school fund among the school districts and its use for public school purposes.

History. Amendment, Acts 1952, ch. 89, approved November, 1953.

Compiler’s Notes.

The provision of this section providing for pro rata distribution of school funds was repealed in 1953. Cases which construed this provision are as follows: Louisville School Board v. Superintendent of Public Instruction (1897), 102 Ky. 394 , 19 K.L.R. 1350, 43 S.W. 718; Louisville School Board v. McChesney (1900), 109 Ky. 9 , 22 K.L.R. 506, 58 S.W. 427; Talbott v. Kentucky State Board of Education (1932), 244 Ky. 826 , 52 S.W.2d 727; Board of Education v. Talbott (1935), 261 Ky. 66 , 86 S.W.2d 1059; Commonwealth ex rel. Meredith v. Reeves (1941), 289 Ky. 73 , 157 S.W.2d 751; Jefferson County Board of Education v. Goheen (1947), 306 Ky. 439 , 207 S.W.2d 567; Hodgkin v. Kentucky Chamber of Commerce (1952), 246 S.W.2d 1014.

NOTES TO DECISIONS

1.Construction.

This section and sections 180 and 184 of the Kentucky Constitution, when read together, prohibit the diversion of common school funds for purposes other than the maintenance of the public schools of the Commonwealth. Board of Education v. Lexington-Fayette Urban County Government, 691 S.W.2d 218, 1985 Ky. App. LEXIS 518 (Ky. Ct. App. 1985).

2.Application.

This section applies exclusively to common school funds levied and collected by the Commonwealth in its sovereign capacity and from the state at large, it has no application to public school funds levied, collected, and raised by subdivisions of the state to supplement the state school fund for their exclusively local purposes, and the state has no right to take charge of such funds and distribute them throughout the state among the common schools. Talbott v. Kentucky State Board of Education, 244 Ky. 826 , 52 S.W.2d 727, 1932 Ky. LEXIS 516 ( Ky. 1932 ). See Cassady v. Oldham County, 246 Ky. 772 , 246 Ky. 773 , 56 S.W.2d 368, 1933 Ky. LEXIS 25 ( Ky. 1933 ).

3.Common School Purposes.

A tax levied for the benefit of common schools is a state tax, although it may be levied and collected by municipal county or district agencies. Moss v. Mayfield, 186 Ky. 330 , 216 S.W. 842, 1919 Ky. LEXIS 218 ( Ky. 1919 ). See Whitt v. Wilson, 212 Ky. 281 , 278 S.W. 609, 1925 Ky. LEXIS 1120 ( Ky. 1925 ).

The definition of the purposes of common school education is necessarily broad and, unless a particular expenditure is clearly outside the reasonable purview of educational activities, the Legislature has a right to declare it to be for such a purpose. Board of Education v. Talbott, 286 Ky. 543 , 151 S.W.2d 42, 1941 Ky. LEXIS 283 ( Ky. 1941 ).

The courts scrupulously protect school funds from diversion even for laudable purposes. Board of Education v. Wagers, 239 S.W.2d 48, 1951 Ky. LEXIS 836 ( Ky. 1951 ).

School districts were created by the General Assembly and exist only as a means for the state to carry out the General Assembly’s constitutional duty to provide for an efficient system of common schools throughout the state. Calvert Invest., Inc. v. Louisville & Jefferson County Metro. Sewer Dist., 805 S.W.2d 133, 1991 Ky. LEXIS 17 ( Ky. 1991 ).

4.— Teachers’ Salaries.

An act providing for payment of interest on warrants to be issued by the auditor for teachers’ salaries did not violate Const., § 184. Adams v. Greene, 182 Ky. 504 , 206 S.W. 759, 1918 Ky. LEXIS 387 ( Ky. 1918 ).

Common school teachers are state employees and as such may receive salaries appropriated by the General Assembly provided by statutes authorized by the constitution and distributed to all teachers of common school within the Commonwealth on a per capita basis. Board of Education v. Talbott, 261 Ky. 66 , 86 S.W.2d 1059, 1935 Ky. LEXIS 592 ( Ky. 1935 ).

5.— Expenditures.

A fair reading of Const., §§ 183-189 compels the conclusion that money spent on education is to be spent exclusively in the public school system, except where the question of taxation for an educational purpose has been submitted to the voters and the majority of the votes cast at the election on the question shall be in favor of such taxation. Fannin v. Williams, 655 S.W.2d 480, 1983 Ky. LEXIS 290 ( Ky. 1983 ).

The Kentucky Constitution contemplates that public funds shall be expended for public education and the Commonwealth is obliged to furnish every child in this state an education in the public schools, but it is constitutionally proscribed from providing aid to furnish a private education. Fannin v. Williams, 655 S.W.2d 480, 1983 Ky. LEXIS 290 ( Ky. 1983 ).

6.— — Valid.

Since the terms education, common school purpose and common school system are sufficiently broad enough to encompass recreational training, a county board of education may, under this section and Const., §§ 180 and 184, expend tax funds collected for school purposes for the financing of recreational training. Dodge v. Jefferson County Board of Education, 298 Ky. 1 , 181 S.W.2d 406, 1944 Ky. LEXIS 815 ( Ky. 1 944).

County board of education was authorized to expend school funds to pay attorney’s fees and court costs in defending two (2) cases against them for protection of corporate action and decisions of board for these actions serve a public school purpose. Hogan v. Glasscock, 324 S.W.2d 815, 1959 Ky. LEXIS 385 ( Ky. 1959 ).

The extra cost to some school districts for busing as a result of court ordered desegregation does not violate this section since all that is required is that a common formula be used to arrive at distributions, not that distribution to each district be proportionately equal. Carroll v. Department of Health, Education & Welfare, 410 F. Supp. 234, 1976 U.S. Dist. LEXIS 16031 (W.D. Ky. 1976 ), aff'd, Carroll v. Board of Education, 561 F.2d 1, 1977 U.S. App. LEXIS 11870 (6th Cir. Ky. 1977 ).

7.— — Invalid.

School taxes received from the state by a graded common school district cannot be used to purchase a lot or erect or furnish a school building. Crabbe v. Board of Trustees, 132 Ky. 478 , 116 S.W. 706, 1909 Ky. LEXIS 113 ( Ky. 1909 ).

Contract between county board of education and sheriff fixing sheriff’s fee for collecting school taxes substantially in excess of the cost of collection is invalid as an unconstitutional diversion of school funds. Hager v. McConathy, 269 S.W.2d 725, 1954 Ky. LEXIS 1017 ( Ky. 1954 ).

If the exclusive purpose of KRS 171.215 , which provides that the state must supply textbooks to students in nonpublic schools, is to pay the expenses of children in private schools, Const., § 3 has been directly violated; conversely, if the textbooks also aid in the functioning of the private schools themselves, Const., §§ 171, 184, 189 and this section have been violated. Fannin v. Williams, 655 S.W.2d 480, 1983 Ky. LEXIS 290 ( Ky. 1983 ).

KRS 171.215 , which provides that the department of libraries (now department for libraries and archives) must supply textbooks without cost to pupils attending nonpublic schools, is unconstitutional in that it directs the expenditure of public funds for educational purposes through nonpublic schools. Fannin v. Williams, 655 S.W.2d 480, 1983 Ky. LEXIS 290 ( Ky. 1983 ).

8.Distribution of Funds.

Under this section the distribution of school funds is now left to Legislature discretion, although prior to the constitutional amendment of 1953, deleting the previous per capita clause of this section, the Legislature was thereby limited in the method by which it could distribute funds in aid of education. Robertson v. Danville, 291 S.W.2d 816, 1956 Ky. LEXIS 400 ( Ky. 1956 ).

9.Sewer User Charges.

The applicability of this section and Ky. Const., sections 180 and 184 to the issue of whether a sewer user charge can be paid from school funds must be determined by a reasonable interpretation of whether the service or commodity provided is necessary for the maintenance of the public schools and is exclusively for the benefit of the public schools. Sewer user charges imposed upon a county board of education bear a reasonable and rational relationship to the value of the services provided and therefore are exclusively for the benefit of and necessary for the maintenance of the public schools. Board of Education v. Lexington-Fayette Urban County Government, 691 S.W.2d 218, 1985 Ky. App. LEXIS 518 (Ky. Ct. App. 1985).

10.Escheated Property.

This section does not prevent the Legislature from allowing certain localities to make additional provision for the financing of their schools and, consequently, a statute providing that certain categories of property, in case of escheat, shall go to a school district is valid. Ky. v. Thomas' Admr, 140 Ky. 789 , 131 S.W. 797, 1910 Ky. LEXIS 362 (Ky. Ct. App. 1910).

11.Aid for Exceptional Children.

Former statute that authorized public aid to private institutions for the education of exceptional children did not violate this section since it was not the intention of the delegates in adopting this section and Const., § 184 to deny forever the possibility of special educational assistance to those who by no choice of their own are unsuited to the standard programs and facilities of the common school system, the act in question being primarily a welfare rather than an educational measure and the fact that it takes the form of education being immaterial. Butler v. United Cerebral Palsy, Inc., 352 S.W.2d 203, 1961 Ky. LEXIS 200 ( Ky. 1961 ).

12.Institutional Schools.

State aid to institutional schools such as Louisville and Jefferson County children’s home is not within the scope of this section and Const., §§ 183-185. Hodgkin v. Board for Louisville & Jefferson County Children's Home, 242 S.W.2d 1008, 1951 Ky. LEXIS 1101 ( Ky. 1951 ).

Uniformity does not require equal classification but it does demand that there shall be substantially uniform system and equal school facilities without discrimination as between different sections of a district or county. Wooley v. Spalding, 293 S.W.2d 563, 1956 Ky. LEXIS 73 ( Ky. 1956 ).

Cited:

Louisville School Board v. McChesney, 109 Ky. 9 , 22 Ky. L. Rptr. 506 , 58 S.W. 427, 1900 Ky. LEXIS 163 ( Ky. 1900 ); Crosby v. Mayfield, 133 Ky. 215 , 117 S.W. 316, 1909 Ky. LEXIS 161 ( Ky. 1909 ); Commonwealth v. Southern Pac. Co., 154 Ky. 41 , 156 S.W. 865, 1913 Ky. LEXIS 4 ( Ky. 1913 ); Cassady v. Oldham County, 246 Ky. 772 , 246 Ky. 773 , 56 S.W.2d 368, 1933 Ky. LEXIS 25 ( Ky. 1933 ); Board of Education v. Williams, 256 S.W.2d 29, 1953 Ky. LEXIS 714 ( Ky. 1953 ); Wooley v. Spalding, 293 S.W.2d 563, 1956 Ky. LEXIS 73 ( Ky. 1956 ); Van Hoose v. Williams, 496 F. Supp. 947, 1980 U.S. Dist. LEXIS 15217 (E.D. Ky. 1980 ).

Opinions of Attorney General.

A school board may not make a contribution to a park commission which is seeking to accumulate a fund in order to secure matching federal funds for development of a community recreation park. This section prohibits the use of school funds for other than school purposes. Section 180 provides that no tax levied and collected for one purpose shall be used for another. OAG 72-95 .

This section would prohibit a school board from contributing funds to repair a city street which had been damaged by continued use by heavy school buses. OAG 72-514 .

An agreement by a board of education to lease unused portions of a television facility owned by it to a private corporation was lawful with the exception of a provision that a part of the consideration for the lease would be an option to purchase up to 10% of the stock of the private corporation, which provision was illegal and void under §§ 177, 179, 184, and 186 of the Constitution. OAG 73-418 .

It is proper for a school district to require students to pay the cost of their meals, but if a school district sees fit to do so, it may use school funds to subsidize the school lunch program with the result that the pupils will be paying a price which is less than the cost of supplying their meals. OAG 73-754 .

Since the control of air pollution is for the public benefit, the obtaining of a pollutant permit is a public school purpose and payment of the fee does not violate the constitution. OAG 74-57 .

Qualified pupils in private schools which are nonsectarian and which do not teach religion are entitled to the benefits of the Title I program. OAG 74-683 .

Under Const. § 184 and this section, school funds may not be expended for the construction of entrances to school property within the right of way of a state highway and the expense of such entrances must be borne by the state department of transportation (now transportation cabinet). OAG 75-362 .

In view of this section and § 184 of the Const., a board of education may not be compelled to replace or repair a sidewalk abutting one of its schools, nor may it voluntarily expend funds for such purpose, as such would constitute the expenditure of school funds for a nonschool purpose. OAG 75-613 .

In view of this section, Const. § 184 and KRS 67A.060 , a board of education may not be compelled to, nor may it voluntarily, pay an assessment imposed under KRS 67A.780 for a sanitary sewer benefiting school property. OAG 75-613 .

Public school funds may not be expended to employ persons to control vehicular and pedestrian traffic on public streets or roads in or around school premises. OAG 75-614 .

An off-duty constable employed as a school security guard is an employee of the school board which may compensate him for his services. OAG 75-631 .

Inasmuch as common school funds may only be paid to common school districts, a county school board may not expend public common school funds to transport students attending a nonpublic model school. OAG 76-261 .

The expenses of opening schools to serve as a voting place on a presidential election day, as provided by subsection (2) of KRS 117.065 , when the schools are mandated to be closed by KRS 2.190 would be so small and incidental as not to be proscribed by Kentucky Constitution, §§ 180, 184, and 186. OAG 76-592 . Withdrawing OAG 42-363 .

Since the requirement that schools not be opened without a custodian is a policy created by the school board and not by statute, the circumstances surrounding the use of schools as voting places as provided for in subsection (2) of KRS 117.065 may be structured so that there does not exist any unwarranted and impermissible expenditures of public common school money for election purposes. OAG 76-614 .

Where four teacher-owned cars were damaged by paint blown by wind from the paint room of a senior high school’s agriculture department during the painting of a tractor, the board of education would be immune from liability under the doctrine of sovereign immunity, and since using school board funds for such a purpose would be tantamount to concluding there could be such liability, such an expenditure would be unconstitutional under this section. OAG 80-49 .

A county fiscal court may provide snow removal service to the county schools in exchange for the transporting of nonpublic school students, provided that the value of such service is fairly and accurately determined, provisions are made for the payment to the county school system of any balance due, and appropriate procurement laws are followed where applicable; the best method for handling any legitimate exchange of services as outlined would be for the county school system to pay for the service and for the county fiscal court to pay that amount back to the county school system for the transporting of nonpublic school students. OAG 80-390 .

The present school laws, in light of the Constitution, do not authorize or permit any state-funded extended employment days to be used for vacation or holidays. OAG 82-356 .

Language in budget memorandum recommending and directing that 705 KAR 2:030 Section 8 be amended to change the local district transfer provision from 20% to the established value of the capital outlay component of a foundation unit with difference in the transfer to be used to fund the operational costs of the New Rowan County State Vocational-Technical School and the expanded facilities in Ashland and Elizabethtown is precatory in nature and in light of this section and Const., § 184 cannot be carried out for funds involved, are foundation program funds and not just general funds appropriated for education and using the difference in the transfer amount of funds to support the operational cost of the New Rowan County State Vocational-Technical School and expanded facilities in Ashland and Elizabethtown would be using foundation program funds for nonfoundation purposes. OAG 84-314 .

Payment by a board of education for the sabbatical leave of a teacher or superintendent is constitutional so long as the teacher or superintendent agrees to extend at least two (2) years of future services to the school board. OAG 88-29 .

No existing law prohibits, outright, local districts from showing instructional TV programming with minimal commercials included so long as curricular materials are properly reviewed; if instructional TV programming, with minimal commercials included, is allowed in the public schools, then the two (2) minutes of advertising do not have to be excluded from the six (6) hour day. OAG 90-42 .

The state board has the authority to ban any television instruction with commercial advertising if the board determines as a matter of public policy that such should not be utilized in the classroom. The board also has the authority to allow the local boards of education and school councils to decide this matter. OAG 90-42 .

Under KRS 168.100 , the use of state funds appropriated for educational purpose may be applied by Kentucky Educational Television only for the benefit of public or common schools in order to avoid violation of this section and Const., §§ 171, 184 and 189. Accordingly, KET is required to charge nonstate schools, whether private and nonsectarian or parochial, for services delivered in the process of returning student responses to the KET master computer. OAG 91-71 .

An expenditure of common school funds or a donation of school property for a public purpose other than for the benefit of public education is not permissible under this section and Const., §§ 180 and 184; therefore, under this section and Const., §§ 180 and 184, any transfer of surplus school buildings to community service organizations must be based on the fair market value of the property. OAG 91-85 .

A reward, offered by the local school board, for the purpose of apprehending the vandals who damaged school property constitutes a proper educational purpose within the meaning of this section and Ky. Const., §§ 180 and 184; the act also falls within the parameters of KRS 160.160 as being necessary in order that the board may accomplish the purposes for which it was created as the resources of each school system are limited, and must be protected. OAG 92-63 .

A school board cannot lawfully agree to provide materials paid for with school funds, or provide school funds themselves, whether under an intergovernmental agreement or otherwise, for the construction or maintenance of school bus turnarounds within the meaning of subsection (2) of KRS 178.290 . OAG 93-63 .

A county board of education can constitutionally pay a privilege fee for connecting to a public sewer system. A privilege fee to fund construction of a sewer system is a “public school purpose” if it bears a rational relationship to the value of the services provided to the public schools. A fee based on usage and acreage meets this standard because it is proportional to the services provided. OAG 2009-01 .

Research References and Practice Aids

Northern Kentucky Law Review.

Comments, Separation of Church and State: Education and Religion in Kentucky, 6 N. Ky. L. Rev. 125 (1979).

Wintersheimer, State Constitutional Law, 20 N. Ky. L. Rev. 591 (1993).

§ 187. Race or color not to affect distribution of school fund.

In distributing the school fund no distinction shall be made on account of race or color.

History. Amendment, proposed by Acts 1996, ch. 98, § 2, ratified November, 1996.

Compiler’s Notes.

The General Assembly in 1996 proposed (Acts 1996, ch. 98, § 2) the amendment of this section. The amendment was ratified by the voters at the regular election in November 1996. Prior to the amendment the section read:

§ 187. White and colored to share fund without distinction — Separate schools. — In distributing the school fund no distinction shall be made on account of race or color, and separate schools for white and colored children shall be maintained.”

NOTES TO DECISIONS

1.Constitutionality.

It was conceded by the state superintendent of public schools that this section was unconstitutional in light of the decision of the United States Supreme Court in the case of Brown v. Board of Educ., 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873, 1954 U.S. LEXIS 2094 (U.S. 1954), limited, Nichols v. McGee, 169 F. Supp. 721, 1959 U.S. Dist. LEXIS 3871 (D. Cal. 1959). See Willis v. Walker, 136 F. Supp. 177, 1955 U.S. Dist. LEXIS 2389 (D. Ky. 1955 ).

Research References and Practice Aids

Kentucky Law Journal.

Comment, Regulation of Fundamentalist Christian Schools: Free Exercise of Religion v. The State’s Interest in Quality Education, 67 Ky. L.J. 415 (1978-1979).

§ 188. Refund of federal direct tax part of school fund — Irredeemable bond.

So much of any moneys as may be received by the Commonwealth from the United States under the recent act of Congress refunding the direct tax shall become a part of the school fund, and be held as provided in Section 184; but the General Assembly may authorize the use, by the Commonwealth, of moneys so received or any part thereof, in which event a bond shall be executed to the Board of Education for the amount so used, which bond shall be held on the same terms and conditions, and subject to the provisions of Section 184, concerning the bond therein referred to.

NOTES TO DECISIONS

1.District School Funds.

District school funds are separate and distinct from the common school fund of the state which prior to the 1953 amendment of Const., § 186 deleting the per capita clause therefrom, was distributed by the state to the various school districts on a per capita basis under Const., § 186 and this section. Commonwealth ex rel. Meredith v. Reeves, 289 Ky. 73 , 157 S.W.2d 751, 1941 Ky. LEXIS 21 ( Ky. 1941 ).

Cited:

Talbott v. Kentucky State Board of Education, 244 Ky. 826 , 52 S.W.2d 727, 1932 Ky. LEXIS 516 ( Ky. 1932 ); Sherrard v. Jefferson County Board of Education, 294 Ky. 469 , 171 S.W.2d 963, 1942 Ky. LEXIS 2 ( Ky. 1942 ).

Research References and Practice Aids

Cross-References.

Irredeemable bond for University of Kentucky and Kentucky State College, KRS 164.520 .

§ 189. School money not to be used for church, sectarian, or denominational school.

No portion of any fund or tax now existing, or that may hereafter be raised or levied for educational purposes, shall be appropriated to, or used by, or in aid of, any church, sectarian or denominational school.

NOTES TO DECISIONS

1.Construction.

The constitution and statutes require that there shall be equality and that all public schools shall be nonpartisan and nonsectarian. Wooley v. Spalding, 293 S.W.2d 563, 1956 Ky. LEXIS 73 ( Ky. 1956 ).

A fair reading of Const., §§ 183-189 compels the conclusion that money spent on education is to be spent exclusively in the public school system, except where the question of taxation for an educational purpose has been submitted to the voters and the majority of the votes cast at the election on the question shall be in favor of such taxation. Fannin v. Williams, 655 S.W.2d 480, 1983 Ky. LEXIS 290 ( Ky. 1983 ).

The Kentucky Constitution contemplates that public funds shall be expended for public education and the Commonwealth is obliged to furnish every child in this state an education in the public schools, but it is constitutionally proscribed from providing aid to furnish a private education. Fannin v. Williams, 655 S.W.2d 480, 1983 Ky. LEXIS 290 ( Ky. 1983 ).

2.Religious Activities Prohibited.

A board of education may be enjoined from distributing sectarian literature in a public school, from expending public school funds for religious or sectarian purposes, from keeping sectarian publications in public school libraries, and from stopping the operation of public school buses on religious holidays, not also legalized as state or national holidays, such activities being in violation of this section and applicable statutes. Wooley v. Spalding, 293 S.W.2d 563, 1956 Ky. LEXIS 73 ( Ky. 1956 ).

3.Prayer in Schools.

A prayer offered at the opening of a public school, imploring the aid and presence of the Heavenly Father, looking forward to a heavenly reunion after death, and concluding in Christ’s name, is not sectarian, and does not make the school a sectarian school. Hackett v. Brooksville Graded School Dist., 120 Ky. 608 , 87 S.W. 792, 27 Ky. L. Rptr. 1021 , 1905 Ky. LEXIS 144 ( Ky. 1905 ).

4.Rental of Church Property.

Rental of school buildings from church by a county school board was not of itself a violation of this section. Rawlings v. Butler, 290 S.W.2d 801, 1956 Ky. LEXIS 345 ( Ky. 1956 ).

5.Private Schools.

The term private schools in KRS 157.305 does not include schools outside the state or schools that give sectarian instruction or have any denominational requirements with respect to their teachers or pupils and this section is not violated thereby. Butler v. United Cerebral Palsy, Inc., 352 S.W.2d 203, 1961 Ky. LEXIS 200 ( Ky. 1961 ).

6.Salary Contributions.

Where members of religious order hired by the state and paid to teach in public schools had taken vow of poverty to religious order and contributed their salaries over living expenses to such order there was no violation of this section although there would be violation if the members were but conduits through which public school funds were channeled to a religious order. Rawlings v. Butler, 290 S.W.2d 801, 1956 Ky. LEXIS 345 ( Ky. 1956 ).

7.Transportation to Private Schools.

Statute providing free transportation to pupils attending private schools violated this section, there being no merit in argument that act provided benefit for children and not for school. Sherrard v. Jefferson County Board of Education, 294 Ky. 469 , 171 S.W.2d 963, 1942 Ky. LEXIS 2 ( Ky. 1942 ).

Award of 99 percent of fiscal court’s transportation subsidy to educational institutions that promoted religious teachings and beliefs, while equivalent support for the public school optional program was withheld violated Const., § 5 and this section. Fiscal Court v. Brady, 885 S.W.2d 681, 1994 Ky. LEXIS 88 ( Ky. 1994 ).

A county fiscal court’s resolution which provided approximately 65 percent of the total cost of transporting non-public elementary school students was not unconstitutional where (1) funds were not paid directly to any private or parochial school and were, instead, paid to the individual local board of education operated transportation system of contracted bus and vehicle companies, (2) the benefit provided by the resolution went directly toward the safety and welfare of elementary age school children and not into the accounts of non-public schools, and (3) the resolution did not establish a tuition ceiling as a requisite to eligibility for the transportation subsidy. Neal v. Fiscal Court, 986 S.W.2d 907, 1999 Ky. LEXIS 24 ( Ky. 1999 ).

8.Textbooks for Private Schools.

If the exclusive purpose of KRS 171.215 , which provides that the state must supply textbooks to students in nonpublic schools, is to pay the expenses of children in private schools, Const., § 3 has been directly violated; conversely, if the textbooks also aid in the functioning of the private schools themselves, Const., §§ 171, 184, 186 and this section have been violated. Fannin v. Williams, 655 S.W.2d 480, 1983 Ky. LEXIS 290 ( Ky. 1983 ).

KRS 171.215 , which provides that the department of libraries (now department for libraries and archives) must supply textbooks without cost to pupils attending nonpublic schools, is unconstitutional in that it directs the expenditure of public funds for educational purposes through nonpublic schools. Fannin v. Williams, 655 S.W.2d 480, 1983 Ky. LEXIS 290 ( Ky. 1983 ).

9.Sectarian Orphanage.

Acceptance of inmates of Baptist Orphans’ Home as students in public schools does not violate this section. Crain v. Walker, 222 Ky. 828 , 2 S.W.2d 654, 1928 Ky. LEXIS 255 ( Ky. 1928 ).

10.Valid Agreements.

Where a graded school employed two teachers from a denominational college whose services were donated to the school after a fire at the college had reduced its capacity to use these teachers, there was no invalid arrangement which would authorize the county superintendent to withhold funds from the graded school. McDonald v. Parker, 130 Ky. 501 , 110 S.W. 810, 33 Ky. L. Rptr. 805 , 1908 Ky. LEXIS 231 ( Ky. 1908 ).

11.Invalid Agreements.

Contract between trustees of common school district and sectarian educational institution, whereby latter agreed to teach common school pupils and trustees agreed to keep buildings in repair out of common school funds, violated this section and Const., § 5. Williams v. Board of Trustees, 173 Ky. 708 , 191 S.W. 507, 1917 Ky. LEXIS 518 ( Ky. 1917 ) ( Ky. 1917 ).

12.Public funding of religious schools

Pharmacy school appropriation for the university violated Ky. Const. § 189 because it was an allocation of public funds for educational purposes to a church, sectarian, or denominational school, and the university was a Baptist university that had been supported by members and churches of the Baptist faith. Univ. of the Cumberlands v. Pennybacker, 308 S.W.3d 668, 2010 Ky. LEXIS 97 ( Ky. 2010 ).

All revenue raised or taxes levied by the Commonwealth may fairly be said to have been collected for state government purposes and one leading purpose is indisputably public education at the primary, secondary and postsecondary levels. Under these circumstances, Ky. Const. § 189 is properly read to prohibit appropriation of any public funds to religious schools. Univ. of the Cumberlands v. Pennybacker, 308 S.W.3d 668, 2010 Ky. LEXIS 97 ( Ky. 2010 ).

Ky. Const. § 189 did not offend the First Amendment by prohibiting appropriations of public tax monies to religious schools because there is no speech forum at issue where defendants allege discrimination in the expenditure of public funds for education. Univ. of the Cumberlands v. Pennybacker, 308 S.W.3d 668, 2010 Ky. LEXIS 97 ( Ky. 2010 ).

Cited:

Commonwealth v. Thomas, 119 Ky. 208 , 83 S.W. 572, 26 Ky. L. Rptr. 1128 , 1904 Ky. LEXIS 160 ( Ky. 1904 ); Shanklin v. Boyd, 146 Ky. 460 , 142 S.W. 1041, 1912 Ky. LEXIS 101 ( Ky. 1912 ); Calvary Baptist Church v. Milliken, 148 Ky. 580 , 147 S.W. 12, 1912 Ky. LEXIS 486 ( Ky. 1912 ); Jefferson County Board of Education v. Goheen, 306 Ky. 439 , 207 S.W.2d 567, 1947 Ky. LEXIS 101 9 ( Ky. 1947 ); Kentucky Bldg. Com. v. Effron, 310 Ky. 355 , 220 S.W.2d 836, 1949 Ky. LEXIS 915 ( Ky. 1949 ); Board of Education v. Society of Alumni, etc., 239 S.W.2d 931, 1951 Ky. LEXIS 907 ( Ky. 1951 ); Ashland v. Calvary Protestant Episcopal Church, 278 S.W.2d 708, 1955 Ky. LEXIS 483 ( Ky. 1955 ); Wooley v. Spalding, 293 S.W.2d 563, 1956 Ky. LEXIS 73 ( Ky. 1956 ); Van Hoose v. Williams, 496 F. Supp. 947, 1980 U.S. Dist. LEXIS 15217 (E.D. Ky. 1980 ).

Opinions of Attorney General.

A county board of education was authorized to pay the salaries of teachers at a school within the system even though the buildings of the school were owned by a religious denomination. OAG 60-1217 .

Tuition to the Oneida School, a non-public institution, may not be paid by the Perry County board of education. OAG 67-348 .

Public school teachers may not, as a part of the duties for which they are compensated by boards of education, be assigned to teach in a private or sectarian school since the effect of such an assignment would be to the primary benefit of the private or sectarian school as opposed to a primary benefit to its students or the common schools and would offend Const., §§ 180 and 184 which restrict school funds to public school purposes, and would offend this section which prohibits the use by sectarian schools of funds levied for educational purposes. OAG 68-423 .

For the Commonwealth to grant to a private college the power to exercise eminent domain, from a public-purpose standpoint the private institution of higher learning would have to be one which accords entrance privileges to qualified applicants on an open and equal basis without discrimination as to race, national origin or religious belief. OAG 70-567 .

The benefits of eminent domain could be given to certain qualifying private colleges either by providing for the exercise of the right in behalf of a particular qualifying private college through a designated state agency with related over-all responsibilities for higher education or by extending the right to certain specified classes of private colleges and private universities. OAG 70-567 .

Funds appropriated by the General Assembly for the school lunch programs may be shared by parochial schools without violating this section. OAG 72-422 .

As long as a public school corporation receives fair market value for the services it renders and as long as there is no entanglement of the business operation of the corporation with a parochial school, there is no legal objection to the corporation providing computer service to the parochial school. OAG 73-669 .

It would be a violation of the constitution to pay the salary of a parochial schoolteacher from public school district funds. OAG 73-799 .

Public school teachers may not, as a part of the duties for which compensated by boards of education, be assigned, to teach in a private or sectarian school. OAG 74-331 (modifying OAG 68-150 , and withdrawing OAG 68-585 ).

This section has no bearing on whether a public school may agree to allow students attending parochial schools to participate on the athletic teams of the public school. OAG 74-650 .

A public school may not pay the tuition of a deaf student who attends a catholic school at the parents’ election after rejection of the public school’s arrangement for the child to be admitted to the Kentucky school for the deaf. OAG 74-660 .

Under KRS 168.100 , the use of state funds appropriated for educational purpose may be applied by Kentucky Educational Television only for the benefit of public or common schools in order to avoid violation of this section and Const., §§ 171, 184 and 186. Accordingly, KET is required to charge nonstate schools, whether private and nonsectarian or parochial, for services delivered in the process of returning student responses to the KET master computer. OAG 91-71 .

Research References and Practice Aids

Northern Kentucky Law Review.

Comments, Separation of Church and State: Education and Religion in Kentucky, 6 N. Ky. L. Rev. 125 (1979).

ALR

Constitutionality, under state constitutional provision forbidding financial aid to religious sects, of public provision of school bus service for private school pupils. 41 A.L.R.3d 344.

CORPORATIONS

§ 190. Regulation of corporations by General Assembly.

Except as otherwise provided by the Constitution of Kentucky, the General Assembly shall, by general laws only, provide for the formation, organization, and regulation of corporations. Except as otherwise provided by the Constitution of Kentucky, the General Assembly shall also, by general laws only, prescribe the powers, rights, duties, and liabilities of corporations and the powers, rights, duties, and liabilities of their officers and stockholders or members.

History. Amendment, proposed by Acts 2002, ch. 341, § 1, ratified November, 2002.

Compiler’s Notes.

This section was amended by the 2002 proposal of the General Assembly (Acts 2002, ch. 341, § 1). Prior to its amendment, this section read:

“§ 190. Corporations must accept Constitution. — No corporation in existence at the time of the adoption of this Constitution shall have the benefit of future legislation without first filing in the office of the Secretary of State an acceptance of the provisions of this Constitution.”

NOTES TO DECISIONS

1.Acceptance.

Railroad by complying in 1904 with provisions of this section prior to amendment, was entitled to benefit of act of 1894 relating to relocation of road. Bryan v. Louisville & N. R. Co., 244 F. 650, 1917 U.S. App. LEXIS 2042 (8th Cir. Mo. 1917), writ of error dismissed, 246 U.S. 651, 38 S. Ct. 334, 62 L. Ed. 921, 1918 U.S. LEXIS 1597 (U.S. 1918).

The acceptance of the Kentucky Constitution by a turnpike company amounted to a surrender of its special privileges and immunities granted under a prior special act of the legislature. Vanceburg & Stout's Lane Turnpike Rd. Co. v. Chesapeake & O. R. Co., 280 F. 482, 1922 U.S. App. LEXIS 1814 (6th Cir. Ky. 1922 ).

2.— Failure.

It was not a valid objection to payment of expenses incurred under “turnpike raiders’ act” of 1897, that the corporation for whose protection expenses were incurred had not filed a written acceptance of the Constitution pursuant to this section prior to amendment. Cahill v. Perrine, 105 Ky. 531 , 49 S.W. 344, 1899 Ky. LEXIS 241 ( Ky. 1899 ).

Where it did not appear corporation had accepted provisions of Constitution under this section prior to amendment, and it appeared affirmatively by its petition that it acted under its charter, it would not be presumed it had accepted provisions of Constitution. Newport & C. Bridge Co. v. Gill, 53 S.W. 650, 21 Ky. L. Rptr. 942 , 1899 Ky. LEXIS 579 (Ky. Ct. App. 1899).

Building and loan association was subject to statute changing mode of assessment of shares, although it had not filed acceptance of Constitution. Commonwealth v. Fayette Bldg. & Loan Ass'n, 71 S.W. 5, 24 Ky. L. Rptr. 1223 (1902).

It was immaterial, in a collateral proceeding, whether or not corporation was seeking to evade provisions of this section. Calor Oil & Gas Co. v. Franzell, 128 Ky. 715 , 109 S.W. 328, 33 Ky. L. Rptr. 98 , 1908 Ky. LEXIS 95 ( Ky. 1908 ).

3.— Corporate Charters.

A railroad company created by private act, accepting the provisions of the Constitution, was not relieved from charter provisions relating to construction of farm crossings, and could not rely on statutes on the subject. Louisville & N. R. Co. v. Robbins, 111 S.W. 283, 33 Ky. L. Rptr. 778 (1908).

Bank had, in manner provided in this section prior to amendment, expressly surrendered any charter rights it possessed in conflict with or inconsistent with the Constitution and laws made thereunder. Bruner v. Citizens' Bank of Shelbyville, 134 Ky. 283 , 120 S.W. 345, 1909 Ky. LEXIS 392 ( Ky. 1909 ).

A railroad company which filed its acceptance under this section prior to amendment after the passage of a statute providing that provisions of charters and articles of incorporation inconsistent with its provisions should stand repealed, cannot attack the constitutionality of such statute or orders made under it, on ground of impairment of a contract made by its charter authorizing it to charge certain rates. Louisville & N. R. Co. v. Siler, 186 F. 176, 1911 U.S. App. LEXIS 5131 (C.C.D. Ky. 1911 ), aff'd, 231 U.S. 298, 34 S. Ct. 48, 58 L. Ed. 229, 1913 U.S. LEXIS 2567 (U.S. 1913).

Upon the filing of a resolution of its board of directors, in accordance with the provisions of this section prior to amendment, the provisions of a railroad’s charter as to maximum rates therein specified ceased to be an obstacle to the exercise by the state of its rate-making power. Louisville & N. R. Co. v. Garrett, 231 U.S. 298, 34 S. Ct. 48, 58 L. Ed. 229, 1913 U.S. LEXIS 2567 (U.S. 1913).

Failure of corporation to accept provisions of the Constitution did not ipso facto forfeit its charter or render it impotent to maintain a certain action. Reichert v. Ellis Ferry Co., 184 Ky. 150 , 211 S.W. 403, 1919 Ky. LEXIS 19 ( Ky. 1919 ).

4.Municipal Corporations.

Court of Appeals refused to reverse a judgment refusing writ of prohibition against the board of sinking fund commission of the city of Louisville sought on the ground that such board, a corporation, had not adopted the provisions of the Kentucky Constitution as provided by this section prior to amendment, but explicitly did not decide whether this section was intended to apply to municipal corporations at all, or whether the corporation involved here had not in fact been constituted a new corporation by legislation postdating the Kentucky Constitution. Elliott v. Louisville, 101 Ky. 262 , 40 S.W. 690, 19 Ky. L. Rptr. 414 , 1897 Ky. LEXIS 182 ( Ky. 1897 ).

This section prior to amendment is not intended to apply to municipal, but only to private corporations. Carrollton Furniture Mfg. Co. v. Carrollton, 104 Ky. 525 , 47 S.W. 439, 20 Ky. L. Rptr. 818 , 1898 Ky. LEXIS 190 ( Ky. 1898 ).

Constitution, §§ 190 (prior to amendment) to 209, inclusive, relate to private corporations only. Carrollton Furniture Mfg. Co. v. Carrollton, 104 Ky. 525 , 47 S.W. 439, 20 Ky. L. Rptr. 818 , 1898 Ky. LEXIS 190 ( Ky. 1898 ). See Klein v. Louisville, 224 Ky. 624 , 6 S.W.2d 1104, 1928 Ky. LEXIS 663 ( Ky. 1928 ).

Cited:

Adams Express Co. v. Kentucky, 166 U.S. 171, 17 S. Ct. 527, 41 L. Ed. 960, 1897 U.S. LEXIS 2017 (U.S. 1897); Licking Valley Bldg. Ass'n v. Commonwealth, 89 S.W. 682, 28 Ky. L. Rptr. 543 (1905); Stites v. Norton, 125 Ky. 672 , 101 S.W. 1189, 31 Ky. L. Rptr. 263 , 1907 Ky. LEXIS 323 ( Ky. 1907 ); Louisville & N. R. Co. v. Garrett, 231 U.S. 298, 34 S. Ct. 48, 58 L. Ed. 229, 1913 U.S. LEXIS 2567 (U.S. 1913); Southern Pac. Co. v. California Adjustment Co., 237 F. 954, 1916 U.S. App. LEXIS 2010 (9th Cir. Cal. 1916); Bryan v. Louisville & N. R. Co., 244 F. 650, 1917 U.S. App. LEXIS 2042 (8th Cir. Mo. 1917); Louisville v. Louisville R. Co., 281 F. 353, 1922 U.S. App. LEXIS 2083, 1922 U.S. App. LEXIS 2084 (6th Cir. Ky. 1922 ).

Research References and Practice Aids

Cross-References.

Present constitution, acceptance, KRS 271A.695 .

Kentucky Bench & Bar.

Tobergte, The Impact of Kentucky’s Present Constitution Upon Business Growth & Development, Volume 51, No. 3, Summer 1987 Ky. Bench & B. 21.

Young, Modernizing Kentucky’s Corporate Laws, Vol. 67, No. 3, May 2003, Ky. Bench & Bar 12.

§ 191. Unexercised charters granted prior to Constitution revoked. [Repealed.]

Compiler’s Notes.

Acts 2002, ch. 341, § 1 proposed that this section be repealed, and such repeal was ratified by the voters at the 2002 election. Prior to its repeal, the section read:

§ 191. Unexercised charters granted prior to Constitution revoked. — All existing charters or grants of special or exclusive privileges, under which a bona fide organization shall not have taken place, and business been commenced in good faith at the time of the adoption of this Constitution, shall thereafter be void and of no effect.”

§ 192. Corporations restricted to charter authority — Holding of real estate limited. [Repealed.]

Compiler’s Notes.

Acts 2002, ch. 341, § 1 proposed that this section be repealed, and such repeal was ratified by the voters at the 2002 election. Prior to its repeal, the section read:

§ 192. Corporations restricted to charter authority — Holding of real estate limited. — No corporation shall engage in business other than that expressly authorized by its charter, or the law under which it may have been or hereafter may be organized, nor shall it hold any real estate, except such as may be proper and necessary for carrying on its legitimate business, for a longer period than five years, under penalty of escheat.”

§ 193. Stock or bonds to be issued only for money or for property or labor at market value — Watered stock void. [Repealed.]

Compiler’s Notes.

Acts 2002, ch. 341, § 1 proposed that this section be repealed, and such repeal was ratified by the voters at the 2002 election. Prior to its repeal, the section read:

193. Stock or bonds to be issued only for money or for property or labor at market value — Watered stock void. — No corporation shall issue stock or bonds, except for an equivalent in money paid or labor done, or property actually received and applied to the purposes for which such corporation was created, and neither labor nor property shall be received in payment of stock or bonds at a greater value than the market price at the time such labor was done or property delivered, and all fictitious increase of stock or indebtedness shall be void.”

NOTES TO DECISIONS

1.Purpose.

The purpose of this section and statutes implementing it is to have a corporation receive the full equivalent for its outstanding stock. Goff v. Henry Goff & Co.'s Assignee, 257 Ky. 519 , 78 S.W.2d 758, 1935 Ky. LEXIS 52 ( Ky. 1935 ).

The primary purpose of this section is to protect corporate creditors and those who hold or purchase stock or securities in corporations and they may enforce compliance therewith. Mazer v. Hazard Realty Corp., 283 Ky. 283 , 140 S.W.2d 1033, 1940 Ky. LEXIS 311 ( Ky. 1940 ) (decided under prior law).

2.Construction.

Under this section payment of subscription to stock of corporation may be with services or property, provided that the property or services actually be received by corporation and applied to corporation’s purposes, and that neither property nor services are received at more than the then market prices . Jones v. Bowman, 181 Ky. 722 , 205 S.W. 923, 1918 Ky. LEXIS 614 ( Ky. 1918 ) (decided under prior law).

Stock issued by a corporation must be for an equivalent in money paid or labor done, or property actually received; otherwise, stock issued by a corporation is a fictitious increase which is void. Kirk v. Kirk's Auto Electric, Inc., 728 S.W.2d 529, 1987 Ky. LEXIS 205 ( Ky. 1987 ) (decided under prior law).

The issuance of shares must be attended by good faith, and the corporation must receive value not disproportionate to the value of the shares issued. Kirk v. Kirk's Auto Electric, Inc., 728 S.W.2d 529, 1987 Ky. LEXIS 205 ( Ky. 1987 ) (decided under prior law).

3.Application.

Issue of bonds by city pursuant to act authorizing bridges across stream forming state boundary, issued by a commission functioning only as agent of the city and payable only from a special fund to be derived from tolls does not violate this section. Klein v. Louisville, 224 Ky. 624 , 6 S.W.2d 1104, 1928 Ky. LEXIS 663 ( Ky. 1928 ). See Carrollton Furniture Mfg. Co. v. Carrollton, 104 Ky. 525 , 47 S.W. 439, 20 Ky. L. Rptr. 818 , 1898 Ky. LEXIS 190 ( Ky. 1898 ) (decided under prior law).

4.New Stock Issue.

Where corporations are consolidated under Kentucky law into a new corporation, stock in the new company may be issued share-for-share only to the extent that the assets of the old corporation equal the face value of the new stock issued. Taylor v. Citizens' Oil Co., 182 Ky. 350 , 206 S.W. 644, 1918 Ky. LEXIS 386 ( Ky. 1918 ) (decided under prior law).

Proposed recapitalization plan of a company which specified number of shares of new prior preferred stock with priority over present outstanding preferred stock, Class A common stock and Class B common stock as to dividends does not violate this section. Francke v. Axton-Fisher Tobacco Co., 289 Ky. 687 , 160 S.W.2d 23, 1942 Ky. LEXIS 630 ( Ky. 1942 ) (decided under prior law).

5.Foreign Corporations.

Stock of a corporation of another state, validly issued under the laws of that state, is not invalid under this section, although it may have been issued for property worth less than the value of the stock. Taylor v. Citizens' Oil Co., 182 Ky. 350 , 206 S.W. 644, 1918 Ky. LEXIS 386 ( Ky. 1918 ) (decided under prior law).

Where the statute under which a foreign corporation was organized provided that in the absence of actual fraud the judgment of the directors as to the value of the property taken in exchange for stock shall be conclusive, the actual fraud or intentional wrongdoing may be inferred from circumstances, and inadequacy of consideration may be considered in connection with other facts. McCombs Producing & Refining Co. v. Ogle, 200 Ky. 208 , 254 S.W. 425, 1923 Ky. LEXIS 38 ( Ky. 1923 ) (decided under prior law).

The sale by a foreign corporation in Kentucky of its stock for stock of another corporation which had no market value is void. In re Kentucky Wagon Mfg. Co., 3 F. Supp. 958, 1932 U.S. Dist. LEXIS 1514 (D. Ky. 1932 ), aff’d, 71 F.2d 802, 1934 U.S. App. LEXIS 3216 (6th Cir. 1934) (decided under prior law).

6.Stock Without Par Value.

This section does not prohibit issue of stock without par value. Lewis v. Oscar C. Wright Co., 234 Ky. 814 , 29 S.W.2d 566, 1930 Ky. LEXIS 282 ( Ky. 1930 ) (decided under prior law).

7.Valid Issue.

If corporate stock, sought to be canceled as issued without consideration in violation of this section, was issued by the company in lieu of a like number of shares previously issued at par, and later acquired by the principal stockholders and by them given to defendant, the transaction was not in fact contrary to this section. Johnson v. Belle Point Lumber Co., 196 Ky. 436 , 244 S.W. 906, 1922 Ky. LEXIS 540 ( Ky. 1922 ) (decided under prior law).

Sale of stock of corporation on credit does not violate statutes or this section. Commonwealth v. Kentucky Jockey Club, 238 Ky. 739 , 38 S.W.2d 987, 1931 Ky. LEXIS 321 ( Ky. 1931 ).

If stock is exchanged for services rendered or property received the transaction must be in good faith, and the value of the services performed or property received may not be substantially disproportionate to the value of the stock issued without violating this section. Mazer v. Hazard Realty Corp., 283 Ky. 283 , 140 S.W.2d 1033, 1940 Ky. LEXIS 311 ( Ky. 1940 ) (decided under prior law).

8.— Market Value.

Where a corporation facing possible liquidation as a result of continuing unprofitable operations, issued $2,000,000 of mortgage notes and $2,000,000 of its stock at 871/2% of its par value, such stock having, by virtue of the complete lack of any sales or purchases, no established market value, in exchange for property which permitted the corporation to continue a profitable operation and was reasonably worth as much or more than the votes and stock issued, reasonable value equated with “market value” and the transaction did not constitute a violation of this section. Lamprecht v. Swiss Oil Corp., 32 F.2d 646, 1929 U.S. App. LEXIS 3843 (6th Cir. Ky. 1929 ) (decided under prior law).

9.— Secured Note.

A note secured by a paid-up insurance policy is the equivalent of money. Clarke v. Lexington Stoveworks, 72 S.W. 286, 24 Ky. L. Rptr. 1755 , 1903 Ky. LEXIS 463 (Ky. Ct. App. 1903) (decided under prior law).

10.Invalid Issue.

Agreement between persons interested in promoting a corporation for division of capital stock between them, except stock to be given to person furnishing the money with which to buy land, is illegal and unenforceable under this section. Bennett v. Stuart, 161 Ky. 264 , 170 S.W. 642, 1914 Ky. LEXIS 52 ( Ky. 1914 ) (decided under prior law).

Where stock was issued to individuals who gave no consideration therefor, and had not as yet rendered substantial services, and were to receive a 40 per cent commission on future stock sales, the stock was bonus stock, issued without adequate consideration and could be canceled. McCombs Producing & Refining Co. v. Ogle, 200 Ky. 208 , 254 S.W. 425, 1923 Ky. LEXIS 38 ( Ky. 1923 ) (decided under prior law).

11.— Previously Surrendered Stock.

This section forbids corporation which has reduced amount of its stock by pro rata surrender from stockholders to treasury, from returning the surrendered stock to stockholders without consideration when the financial condition of the company improves. Scheirich v. Otis-Hidden Co., 204 Ky. 289 , 264 S.W. 755, 1924 Ky. LEXIS 454 ( Ky. 1924 ) (decided under prior law).

12.— Holder in Good Faith.

Stock issued in violation of this section will not be invalidated thereby after it had passed into the hands of a holder in good faith who had no knowledge of the original issue without payment of equivalent value. Taylor v. Citizens' Oil Co., 182 Ky. 350 , 206 S.W. 644, 1918 Ky. LEXIS 386 ( Ky. 1918 ) (decided under prior law).

13.— Liability of Purchaser.

Where certain stockholders of a corporation paid only half its face value for the stock issued to them, their holdings upon suit by other stockholders of the corporation, would be reduced by one-half (1/2). Taylor v. Citizens' Oil Co., 182 Ky. 350 , 206 S.W. 644, 1918 Ky. LEXIS 386 ( Ky. 1918 ) (decided under prior law).

An officer of a corporation who by his violation of his fiduciary relationship to the corporation acquires stock of a subsidiary which was acquired by the corporation without full consideration in violation of this section cannot escape his liability by pleading that the issue of the stock to the corporation from which he acquired it was void under this section. Albert v. Black Motor Co., 357 S.W.2d 714, 1962 Ky. LEXIS 142 ( Ky. 1962 ) (decided under prior law).

14.— Actions for Recovery.

Neither a corporation nor its receiver may bring an action against stockholders to collect the difference between the amount paid by them for the stock and the par value thereof, since the only remedy possessed by the corporation in such case is to set such issuance of stock aside. James v. Bosworth, 223 Ky. 1 , 2 S.W.2d 1075, 1927 Ky. LEXIS 959 ( Ky. 1 927 ) (decided under prior law).

Stockholders of each corporation are liable to the creditors thereof for the full amount of the unpaid price of stocks subscribed for by them and a claim for such unpaid balance is an asset of the corporation which passes to its trustee in bankruptcy, who may sue for and collect it for the benefit of the creditors. Van Arsdale v. Richards, 247 Ky. 77 , 56 S.W.2d 728, 1933 Ky. LEXIS 363 ( Ky. 1933 ) (decided under prior law).

If corporate stock has been issued illegally under this section in payment for services or other consideration worth less than the par value of the stock the corporation can institute proceedings against the stockholders to cancel the sale, or corporate creditors could sue the stockholders to recover the difference in value, but a contract subsequently entered into by a new corporation to purchase such stock could not be collaterally attacked by the trustees in bankruptcy of this corporation on the grounds that its contract was not supported by valid consideration in view of the illegality of the original issue of the stock. In re Independent Distillers, 34 F. Supp. 724, 1940 U.S. Dist. LEXIS 2638 (D. Ky. 1940 ) (decided under prior law).

15.— Tender Pending Litigation.

Where a contract with a corporation was invalid under this section, it was not affected by a rejected offer to pay an additional amount pending litigation. Detroit-Kentucky Coal Co. v. Bicket Coal & Coke Co., 251 F. 542, 1918 U.S. App. LEXIS 1728 (6th Cir. Ky. 1918 ) (decided under prior law).

§ 194. Corporations to have place of business and process agent in State. [Repealed.]

Compiler’s Notes.

Acts 2002, ch. 341, § 1 proposed that this section be repealed, and such repeal was ratified by the voters at the 2002 election. Prior to its repeal, the section read:

§ 194. Corporations to have place of business and process agent in State. — All corporations formed under the laws of this State, or carrying on business in this State, shall, at all times, have one or more known places of business in this State, and an authorized agent or agents there, upon whom process may be executed, and the General Assembly shall enact laws to carry into effect the provisions of this section.”

NOTES TO DECISIONS

1.Doing Business.

Foreign corporation, having a representative in state, authorized to do and doing business for it, is doing business in state, and may be sued therein, regardless of its conception of his relationship, and process served on him gives court jurisdiction over the corporation. Mergenthaler Linotype Co. v. Griffin, 226 Ky. 159 , 10 S.W.2d 633, 1928 Ky. LEXIS 47 ( Ky. 1928 ) (decided under prior law).

Opinions of Attorney General.

A corporation incorporated under the laws of Kentucky must maintain a registered office and agent in that office in this state under KRS 271A.060 , but it need not maintain a separate place of business in addition to the registered office. OAG 75-10 . ( OAG 65-829 withdrawn.)

Since the registered office of a corporation is a known place of business, it may be located in any county of the state without regard to where the company conducts its commercial business, and, while the registered agent of the corporation need not be a resident of the county in which the corporation is registered, he must be located at, and the address of his business office must be identical with, the address of the registered office to satisfy the requirements of this section. OAG 75-85 .

Research References and Practice Aids

Cross-References.

Registered agent of corporation, KRS 271A.060 , 271A.065 .

Service of process on corporation, KRS 271A.070 .

Kentucky Law Journal.

Snyder and Irland, The Separation of Governmental Powers Under the Constitution of Kentucky: A Legal and Historical Analysis of L.R.C. v. Brown, 73 Ky. L.J. 165 (1984-85).

§ 195. Corporation property subject to eminent domain — Corporations not to infringe upon individuals.

The Commonwealth, in the exercise of the right of eminent domain, shall have and retain the same powers to take the property and franchises of incorporated companies for public use which it has and retains to take the property of individuals, and the exercise of the police powers of this Commonwealth shall never be abridged nor so construed as to permit corporations to conduct their business in such manner as to infringe upon the equal rights of individuals.

NOTES TO DECISIONS

Cited:

Stites v. Norton, 125 Ky. 672 , 101 S.W. 1189, 31 Ky. L. Rptr. 263 , 1907 Ky. LEXIS 323 ( Ky. 1907 ).

Research References and Practice Aids

Cross-References.

Eminent domain, KRS ch. 416.

Taking private property for public use, Const., §§ 13, 242.

§ 196. Regulation of common carriers — No relief from common-law liability.

Transportation of freight and passengers by railroad, steamboat or other common carrier, shall be so regulated, by general law, as to prevent unjust discrimination. No common carrier shall be permitted to contract for relief from its common law liability.

NOTES TO DECISIONS

1.Constitutionality.

This section is not in conflict with the interstate commerce clause of the United States Constitution. Western Union Tel. Co. v. Eubank, 100 Ky. 591 , 38 S.W. 1068, 18 Ky. L. Rptr. 995 , 1897 Ky. LEXIS 38 ( Ky. 1897 ).

2.Purpose.

This section is a part of the action intended to prevent unjust discrimination covered by Const., §§ 214 and 215. Louisville & N. R. Co. v. Commonwealth, 108 Ky. 628 , 57 S.W. 508, 22 Ky. L. Rptr. 328 , 1900 Ky. LEXIS 101 ( Ky. 1900 ). See Commonwealth v. Louisville & N. R. Co., 68 S.W. 1103, 24 Ky. L. Rptr. 509 , 1902 Ky. LEXIS 450 (Ky. Ct. App. 1902).

The object of this section was to prevent unjust discrimination in the transportation of freight and passengers by a common carrier. Kentucky Traction & Terminal Co. v. Murray, 176 Ky. 593 , 195 S.W. 1119, 1917 Ky. LEXIS 86 ( Ky. 1917 ), writ of error dismissed, 249 U.S. 623, 39 S. Ct. 388, 63 L. Ed. 806, 1919 U.S. LEXIS 2087 (U.S. 1919).

3.Construction.

This section authorizes the legislature to prescribe other circumstances and conditions that those which appear on Const., § 215 with respect to allowing discrimination in charges for transportation. Louisville & N. R. Co. v. Commonwealth, 46 S.W. 702, 20 Ky. L. Rptr. 1099 (1898).

4.Relief From Liability.

The duty of a carrier of passengers to use extraordinary diligence to protect the lives and persons of his passengers cannot be waived, even by express contract. Louisville & N. R. Co. v. Bell, 100 Ky. 203 , 38 S.W. 3, 18 Ky. L. Rptr. 735 , 1896 Ky. LEXIS 163 ( Ky. 1896 ).

A common carrier cannot, by any stipulation in the contract or bill of lading, reduce its liability as an insurer of the safety of goods till the consignee has had a reasonable time to remove them after their arrival. Lewis v. Louisville & N. R. Co., 135 Ky. 361 , 122 S.W. 184, 1909 Ky. LEXIS 296 ( Ky. 1909 ).

A common carrier cannot exempt himself from liability for his own negligence or that of his employees, but the rigor of this rule may be modified by a fair, reasonable and just agreement with the shipper which does not include exemption from such negligence. Adams Express Co. v. Croninger, 226 U.S. 491, 33 S. Ct. 148, 57 L. Ed. 314, 1913 U.S. LEXIS 2256 (U.S. 1913).

5.— Valid Contracts.

A contract between a railroad and its employees by which an association is formed, under which employee, after an injury is suffered, may elect to accept benefits under regulations of association or pursue his remedy against the carrier, is not prohibited by this section. Pittsburg, C. C. & S. L. R. Co. v. Carmody, 188 Ky. 588 , 222 S.W. 1070, 1920 Ky. LEXIS 328 ( Ky. 1920 ).

While a carrier may contract against liability for loss of goods in transit through mobs or riots, it cannot contract against its own negligence, and is bound to exercise due care, though a riot be in progress and imperil the goods. Southern R. Co. v. John T. Barbee & Co., 190 Ky. 63 , 226 S.W. 376, 1920 Ky. LEXIS 542 ( Ky. 1920 ).

Contract between railroad company and manufacturer, by which railroad agreed to furnish service over spur track to manufacturer, and manufacturer agreed to keep track free from trash or rubbish is valid, and railroad was not liable for damages from fire caused by sparks from engine setting fire to rubbish along track. Thurmond v. Nashville, C. & S. L. Ry., 293 Ky. 716 , 170 S.W.2d 7, 1943 Ky. LEXIS 685 ( Ky. 1943 ).

6.— Invalid Contracts.

Provision in contract for carriage of cattle that they were not worth more than a certain amount, and that no recovery for injury thereto should be had unless written notice was given the carrier before the unloading of the cattle, violated this section. Ohio & M. R. Co. v. Tabor, 98 Ky. 503 , 32 S.W. 168, 17 Ky. L. Rptr. 568 , 1895 Ky. LEXIS 8 ( Ky. 1895 ).

An agreement between a shipper and carrier that no claim for loss or damage to livestock shipped shall be valid unless made in writing, and verified by affidavit, in 10 days after removal of the stock from the car, violates this section. Brown v. Illinois C. R. Co., 100 Ky. 525 , 38 S.W. 862, 18 Ky. L. Rptr. 974 , 1897 Ky. LEXIS 22 ( Ky. 1897 ).

Where a shipper of pedigreed horses paid a reduced rate, and accepted a bill of lading which provided that in consideration thereof the value of the horses in case of loss should be a certain sum printed in the bill, but there was no agreement outside the bill that the amount so stated should be treated as the value of the animals, the shipper was not limited to such amount in an action for injury to the animals caused by the carrier’s negligence. Louisville & N. R. Co. v. Frazee, 71 S.W. 437, 24 Ky. L. Rptr. 1273 (1903).

Under this section, provisions in a bill of lading that the shipper should feed, water, and attend to the livestock at his own risk while in transit do not relieve the carrier of its duty to look after the stock. Cincinnati, N. O. & T. P. R. Co. v. Sanders & Russell, 118 Ky. 115 , 80 S.W. 488, 25 Ky. L. Rptr. 2333 , 1904 Ky. LEXIS 15 ( Ky. 1904 ).

A contract providing for the release and discharge of a carrier from all liability for the loss of dogs, unless caused by the negligence of the agents or employees of the carrier, and restricting the carrier’s liability to $25.00 on account of the loss of any of the dogs, is invalid. Adams Express Co. v. Walker, 119 Ky. 121 , 83 S.W. 106, 26 Ky. L. Rptr. 1025 , 1904 Ky. LEXIS 149 ( Ky. 1904 ).

A transportation contract arbitrarily fixing the value of the property, to determine the freight and the extent of the carrier’s liability, is void. Southern Express Co. v. Fox & Logan, 131 Ky. 257 , 115 S.W. 184, 1909 Ky. LEXIS 17 ( Ky. 1909 ).

The contract of a carrier to relieve itself of its common-law liability by arbitrarily fixing the value of property carried is void except in cases of fraud. Louisville & N. R. Co. v. Woodford, 152 Ky. 398 , 153 S.W. 722, 1913 Ky. LEXIS 672 ( Ky. 1913 ), writ of error dismissed, 234 U.S. 46, 34 S. Ct. 739, 58 L. Ed. 1202, 1914 U.S. LEXIS 1183 (U.S. 1914).

7.— Interstate Shipments.

The Carmack amendment of 1906 to the interstate commerce act legislated directly upon the carrier’s liability for loss of and damage to interstate shipments, and this legislation superseded all state regulations upon the same subject. Adams Express Co. v. Croninger, 226 U.S. 491, 33 S. Ct. 148, 57 L. Ed. 314, 1913 U.S. LEXIS 2256 (U.S. 1913).

The federal interstate commerce act and the several amendments, particularly the Carmack amendment, have had the effect of superseding all regulations and policies of any particular state upon the same subject; and to this extent have abrogated this section prohibiting a common carrier from contracting for relief against its common-law liability. Cincinnati, N. O. & T. P. R. Co. v. Rankin, 153 Ky. 730 , 156 S.W. 400, 1913 Ky. LEXIS 916 ( Ky. 1913 ). See Robinson v. Louisville & N. R. Co., 160 Ky. 235 , 169 S.W. 831, 1914 Ky. LEXIS 457 ( Ky. 1914 ).

Under interstate commerce act as amended, a carrier in the transportation of animals in interstate commerce may make a reasonable agreement with the shipper limiting the carrier’s liability to a specified sum for the purpose of obtaining the lower of two (2) or more rates proportioned to the amount of the risk. Cincinnati, N. O. & T. P. R. Co. v. Rankin, 153 Ky. 730 , 156 S.W. 400, 1913 Ky. LEXIS 916 , 45 L.R.A. (n.s.) 529 ( Ky. 1913 ), opinion extended Cincinnati, N. O. & T. P. R. Co. v. Rankin, 154 Ky. 549 , 157 S.W. 926, 1913 Ky. LEXIS 104 ( Ky. 1913 ).

With regard to interstate shipments, the previous rule that under this section a shipper is not bound by a recital of value in his contract with the carrier but may, in the event of loss, recover the full value is no longer valid since it is in conflict with the interstate commerce act of the United States. Louisville & N. R. Co. v. Miller, 156 Ky. 677 , 162 S.W. 73, 1914 Ky. LEXIS 190 ( Ky. 1914 ).

A provision of an interstate livestock transportation contract that damage claims shall be in writing, verified, and delivered to specified agents within ten (10) days from the time the stock is removed from the cars, is valid. Howard & Callahan v. Illinois C. R. Co., 161 Ky. 783 , 171 S.W. 442, 1914 Ky. LEXIS 156 ( Ky. 1914 ). See Armstrong v. Illinois C. R. Co., 162 Ky. 539 , 172 S.W. 947, 1915 Ky. LEXIS 105 ( Ky. 1915 ).

If the carrier has filed its schedule of rates under interstate commerce act, the parties are bound by a contract made thereunder, limiting the carrier’s liability; otherwise its validity depends on the value being declared for a proper lower rate. Adams Express Co. v. Cook, 162 Ky. 592 , 172 S.W. 1096, 1915 Ky. LEXIS 144 ( Ky. 1915 ).

A reasonable stipulation in reference to presenting a claim for damages under a contract for the carriage of livestock is valid and enforceable. Cincinnati, N. O. & T. P. R. Co. v. Luke, 169 Ky. 560 , 184 S.W. 1132, 1916 Ky. LEXIS 750 ( Ky. 1916 ).

The right of a railroad engaged in interstate commerce to contract for relief from its common-law liability for injury to passengers to whom free transportation is furnished, depends upon federal law. Louisville & N. R. Co. v. George, 279 Ky. 24 , 129 S.W.2d 986, 1939 Ky. LEXIS 225 ( Ky. 1939 ).

8.— Telegraph Companies.

Since the federal statute of June 18, 1910, a telegraph company may by contract limit its liability for negligence in failing to deliver an unrepeated interstate message. Western Union Tel. Co. v. Lee, 174 Ky. 210 , 192 S.W. 70, 1917 Ky. LEXIS 188 ( Ky. 1917 ). See Merriweather v. Western Union Tel. Co., 183 Ky. 710 , 210 S.W. 190, 1919 Ky. LEXIS 548 ( Ky. 1919 ).

9.— Free Transportation.

A railroad company cannot relief itself of liability for injury received on account of gross negligence, by a stipulation that a person using and accepting a gratuitous pass assumes all risk of accident to person or property. Louisville & N. R. Co. v. Brown, 186 Ky. 435 , 217 S.W. 686, 1919 Ky. LEXIS 206 ( Ky. 1919 ).

Under federal law, an agreement by a passenger to whom free transportation if furnished, to waive liability of railroad for injuries caused through ordinary negligence is valid. Louisville & N. R. Co. v. George, 279 Ky. 24 , 129 S.W.2d 986, 1939 Ky. LEXIS 225 ( Ky. 1939 ).

10.— Foreign Contracts.

A carrier incorporated in the commonwealth is not prohibited from contracting in another state for exemption from liability for loss by fire, where the goods shipped are in that state and are not to pass through the commonwealth. Tecumseh Mills v. Louisville & N. R. Co., 108 Ky. 572 , 57 S.W. 9, 22 Ky. L. Rptr. 264 , 1900 Ky. LEXIS 79 ( Ky. 1900 ).

A carrier contracted in Illinois to carry freight into Kentucky, and contract relieved carrier from liability for damages caused by fire not arising from its negligence, which limitation of common-law liability was valid under the laws of Illinois, and the freight, while in transit in Illinois, was destroyed by an accidental fire in an action in Kentucky against the carrier for destruction of the freight, the limitation of liability in contract was a good defense. Cleveland, C. C. & S. L. R. Co. v. Druien, 118 Ky. 237 , 80 S.W. 778, 26 Ky. L. Rptr. 103 , 1904 Ky. LEXIS 23 ( Ky. 1904 ).

Under this section and Virginia statute prohibiting carriers from contracting away their common-law liability, a Virginia contract, whereby messenger of express company at the time of his employment released any and all claims against the company or against the carrier for injuries he might receive, whether through negligence of express company or other carrier, was void, so as not to affect right of employee to recover for injuries received in Kentucky. Davis v. Chesapeake & O. R. Co., 122 Ky. 528 , 92 S.W. 339, 29 Ky. L. Rptr. 53 , 1906 Ky. LEXIS 74 ( Ky. 1906 ).

11.— Transfer to Connecting Carrier.

This section does not prohibit a carrier from stipulating that its liability for loss or damage shall terminate after the delivery of the goods for transshipment by a connecting carrier. The City of Clarksville, 94 F. 201, 1899 U.S. Dist. LEXIS 116 (D. Ind. 1899).

As a carrier at common law was under no liability beyond its own line unless it undertook to carry beyond its own line, this section has no application where a carrier receiving livestock to be transported to a point beyond its own line stipulates that its liability as carrier shall cease at its terminus when the stock is ready to be delivered to the connecting carrier. Pittsburg, C. C. & S. L. R. Co. v. Viers, 113 Ky. 526 , 68 S.W. 469, 24 Ky. L. Rptr. 356 , 1902 Ky. LEXIS 77 ( Ky. 1902 ).

A common carrier may limit its liability for loss on connecting lines by a stipulation in the bill of lading that articles to be transported beyond its lines may be delivered to connecting lines for transportation to their destinations, and that its responsibility there ceases. Brunk v. Ohio & K. R. Co., 127 Ky. 304 , 105 S.W. 443, 32 Ky. L. Rptr. 174 , 1907 Ky. LEXIS 135 ( Ky. 1907 ). But see Ireland v. Mobile & O. R. Co., 105 Ky. 400 , 49 S.W. 188, 20 Ky. L. Rptr. 1586 , 1899 Ky. LEXIS 224 ( Ky. 1899 ); Cumberland Transp. Co. v. E. J. O'Brien & Co., 222 Ky. 814 , 2 S.W.2d 668, 1928 Ky. LEXIS 261 ( Ky. 1928 ).

12.Duty to Furnish Cars.

No common carrier can be relieved from its duty under the common law and statute to furnish cars suitable to transport the freight offered, by contract or by merely incorporating in its tariff schedule a provision to the effect that it does not own a particular kind of cars and will do no more than endeavor to procure them from the owner, even though such provisions be approved both by the interstate commerce commission and the railroad commission of the state. Davis v. McKinley, 200 Ky. 699 , 255 S.W. 523, 1923 Ky. LEXIS 173 ( Ky. 1923 ).

13.Nondiscrimination by Employees.

Under this section employees of a common carrier may not refuse to handle the goods of a customer of the carrier because to do so would require such employees to cross a picket line and any contract exempting employees of a common carrier from the obligation to serve all customers of the common carrier equally is void as in violation of this section, requiring such service to all customers not being in violation of any law or of the Constitution of the United States. General Drivers, W. & H. v. American Tobacco Co., 264 S.W.2d 250, 1953 Ky. LEXIS 1252 (Ky. Ct. App. 1953), rev'd, 348 U.S. 978, 75 S. Ct. 569, 99 L. Ed. 762, 1955 U.S. LEXIS 1453 (U.S. 1955).

14.Workers’ Compensation.

Even though under workers’ compensation act it was possible that employer could accept its provisions but the employee would not, such act did not violate the provisions of this section providing that no common carrier could contract for relief from common-law liability. Greene v. Caldwell, 170 Ky. 571 , 186 S.W. 648, 1916 Ky. LEXIS 126 ( Ky. 1916 ).

15.Valid Rate Differences.

A railroad company may charge less for hauling coal used for manufacturing purposes than it charges for hauling coal used for domestic purposes, as the fact that the company receives the manufactured product for return shipment in the one case and not in the other constitutes a difference in conditions which authorizes a difference in charges. Louisville & N. R. Co. v. Commonwealth, 108 Ky. 628 , 57 S.W. 508, 22 Ky. L. Rptr. 328 , 1900 Ky. LEXIS 101 ( Ky. 1900 ). See Commonwealth v. Louisville & N. R. Co., 68 S.W. 1103, 24 Ky. L. Rptr. 509 , 1902 Ky. LEXIS 450 (Ky. Ct. App. 1902).

Cited:

Louisville & N. R. Co. v. Harned, 66 S.W. 25, 23 Ky. L. Rptr. 1651 (1901); Greenwich Ins. Co. v. Louisville & N. R. Co., 112 Ky. 598 , 66 S.W. 411, 23 Ky. L. Rptr. 2014 , 1902 Ky. LEXIS 200 ( Ky. 1902 ); Commonwealth v. Louisville & N. R. Co., 68 S.W. 1103, 24 Ky. L. Rptr. 509 , 1902 Ky. LEXIS 450 (Ky. Ct. App. 1902); Union Cent. Life Ins. Co. v. Spinks, 119 Ky. 261 , 83 S.W. 615, 26 Ky. L. Rptr. 1205 , 1904 Ky. LEXIS 168 ( Ky. 1904 ); Louisville & N. R. Co. v. Pedigo, 129 Ky. 661 , 113 S.W. 116, 1908 Ky. LEXIS 229 ( Ky. 1908 ); Chesapeake & O. R. Co. v. Hall, 136 Ky. 379 , 124 S.W. 372, 1910 Ky. LEXIS 496 ( Ky. 191 0); Chesapeake & O. R. Co. v. O'Gara, King & Co., 144 Ky. 561 , 139 S.W. 803, 1911 Ky. LEXIS 681 ( Ky. 191 1); Louisville & N. R. Co. v. Woodford, 234 U.S. 46, 34 S. Ct. 739, 58 L. Ed. 1202, 1914 U.S. LEXIS 1183 (U.S. 1914); Browning v. Louisville & N. R. Co., 213 Ky. 376 , 281 S.W. 490, 1926 Ky. LEXIS 522 ( Ky. 1926 ); Knight v. Pennsylvania R. R., 280 Ky. 191, 132 S.W.2d 950, 1939 Ky. LEXIS 101 ( Ky. 1939 ); Atlantic Co. v. Broughton, 146 F.2d 480, 1944 U.S. App. LEXIS 2321 (5th Cir. 1944).

Opinions of Attorney General.

KRS 158.6455 permits a local school council or principal to use school reward money to pay teacher bonuses, and these bonuses are permissible under the Kentucky Constitution because they are “for school purposes.” OAG 00-2 .

Research References and Practice Aids

Cross-References.

Air transportation companies, KRS 183.530 to 183.590 , 183.620 .

Common carriers, KRS ch. 276.

Railroads, traffic with connecting carriers, discrimination prohibited, Const., §§ 213, 215.

Unjust discrimination prohibited, 278.170 .

§ 197. Free passes or reduced rates to officers forbidden.

No railroad, steamboat or other common carrier, under heavy penalty to be fixed by the General Assembly, shall give a free pass or passes, or shall, at reduced rates not common to the public, sell tickets for transportation to any State, district, city, town or county officer, or member of the General Assembly, or Judge; and any State, district, city, town or county officer, or member of the General Assembly, or Judge, who shall accept or use a free pass or passes, or shall receive or use tickets or transportation at reduced rates not common to the public, shall forfeit his office. It shall be the duty of the General Assembly to enact laws to enforce the provisions of this section.

NOTES TO DECISIONS

1.Forfeiture of Office.

Office of officer cannot be forfeited for accepting free transportation without prior conviction therefor. Commonwealth v. Hearon, 235 Ky. 681 , 32 S.W.2d 21, 1930 Ky. LEXIS 437 ( Ky. 1930 ); Commonwealth v. Kentucky Jockey Club, 238 Ky. 739 , 38 S.W.2d 987, 1931 Ky. LEXIS 321 ( Ky. 1931 ).

No proceeding can be held to oust one from office for violation of this section without a prior conviction. Daniels v. Adams, 314 Ky. 258 , 234 S.W.2d 742, 1950 Ky. LEXIS 1065 ( Ky. 1950 ).

2.Invalid Contracts.

The provisions of this section became a part of contract for free transportation in return for right of way, and when the antipass law took effect, the contract became illegal and no longer of any binding effect. Kentucky Traction & Terminal Co. v. Murray, 176 Ky. 593 , 195 S.W. 1119, 1917 Ky. LEXIS 86 ( Ky. 1917 ), writ of error dismissed, 249 U.S. 623, 39 S. Ct. 388, 63 L. Ed. 806, 1919 U.S. LEXIS 2087 (U.S. 1919).

3.Valid Statutes.

KRS 276.240 (now repealed) was enacted to carry into effect the provisions of this section. Commonwealth v. Chesapeake & O. R. Co., 251 Ky. 382 , 65 S.W.2d 95, 1933 Ky. LEXIS 890 ( Ky. 1933 ).

Cited:

Commonwealth v. Kentucky Jockey Club, 238 Ky. 739 , 38 S.W.2d 987, 1931 Ky. LEXIS 321 ( Ky. 1931 ).

Research References and Practice Aids

Kentucky Law Journal.

Snyder and Irland, The Separation of Governmental Powers Under the Constitution of Kentucky: A Legal and Historical Analysis of L.R.C. v. Brown, 73 Ky. L.J. 165 (1984-85).

§ 198. Trusts and combinations in restraint of trade to be prevented. [Repealed.]

Compiler’s Notes.

Acts 2002, ch. 341, § 1 proposed that this section be repealed, and such repeal was ratified by the voters at the 2002 election. Prior to its repeal, the section read:

§ 198. Trusts and combinations in restraint of trade to be prevented. — It shall be the duty of the General Assembly from time to time, as necessity may require, to enact such laws as may be necessary to prevent all trusts, pools, combinations or other organizations, from combining to depreciate below its real value any article, or to enhance the cost of any article above its real value.”

NOTES TO DECISIONS

1.Constitutionality.

This section, standing alone, does not contravene any provision of the federal Constitution, as this section is not self-executing. Commonwealth v. Grinstead, 108 Ky. 59 , 55 S.W. 720, 1900 Ky. LEXIS 11 ( Ky. 1900 ). See Gay v. Brent, 166 Ky. 833 , 179 S.W. 1051, 1915 Ky. LEXIS 783 ( Ky. 1915 ) (decided under prior law).

2.Construction.

This section does not prohibit trusts, pools or combinations nor does it command the General Assembly to enact laws forbidding them, but leaves it to the assembly to determine the need of future legislation on the question; it is only trusts, pools, and combinations, created for the purpose of depreciating an article below its real value or enhancing its cost above its real value that are forbidden, hence the General Assembly may legalize pools and combinations created or organized for the purpose of obtaining fair or remunerative prices. Owen County Burley Tobacco Soc. v. Brumback, 128 Ky. 137 , 107 S.W. 710, 32 Ky. L. Rptr. 916 , 1908 Ky. LEXIS 38 ( Ky. 1908 ) (decided under prior law).

Statutes relating to pools and monopolies are governed and limited by this section. Commonwealth v. International Harvester Co., 131 Ky. 768 , 115 S.W. 755, 1909 Ky. LEXIS 51 ( Ky. 1909 ) (decided under prior law).

Pools, trusts and other combinations may be legalized by statute but such statutes cannot allow, in violation of this section, any such combination to fix prices in an attempt to raise or depreciate the price of any commodity or article above or below its real value. Commonwealth v. International Harvester Co., 147 Ky. 573 , 144 S.W. 1068, 1912 Ky. LEXIS 301 ( Ky. 1912 ) (decided under prior law).

This section is not self-executing and the need for implementing legislation is left to the discretion of the General Assembly. General Electric Co. v. American Buyers Cooperative, Inc., 316 S.W.2d 354, 1958 Ky. LEXIS 42 ( Ky. 1958 ) (decided under prior law).

3.Common Law.

The common law applying to contracts in restraint of trade remain in force in Kentucky. Scobee v. Brent, 185 Ky. 734 , 216 S.W. 76, 1919 Ky. LEXIS 367 ( Ky. 1919 ). See Elkins v. Barclay, 243 Ky. 144 , 47 S.W.2d 945, 1932 Ky. LEXIS 37 ( Ky. 1932 ) (decided under prior law).

4.Valid Statutes.

Statute prohibiting any combination to regulate or fix prices, and any combination to limit production, was not void for uncertainty. Commonwealth v. Grinstead, 108 Ky. 59 , 55 S.W. 720, 1900 Ky. LEXIS 11 ( Ky. 1900 ), reh. den., Davis v. Lebanon, 108 Ky. 59 , 57 S.W. 471, 1900 Ky. LEXIS 90 (1900) (decided under prior law).

Statute forbidding combinations to fix prices, without regard to value of the property, did not violate this section. Commonwealth v. Bavarian Brewing Co., 112 Ky. 925 , 66 S.W. 1016, 23 Ky. L. Rptr. 2334 , 1902 Ky. LEXIS 232 ( Ky. 1902 ) (decided under prior law).

Statute prohibiting combines or pools to regulate or fix prices of any kind of commodity is valid. Gay v. Brent, 166 Ky. 833 , 179 S.W. 1051, 1915 Ky. LEXIS 783 ( Ky. 1915 ) (decided under prior law).

Former statute which provided that it shall not be illegal to enter into a contract by which a buyer agrees not to resell certain articles except at a price set by the seller did not violate this section. General Electric Co. v. American Buyers Cooperative, Inc., 316 S.W.2d 354, 1958 Ky. LEXIS 42 ( Ky. 1958 ) (decided under prior law).

5.Invalid Statutes.

A statute authorizing combinations to pool wheat and tobacco crops and executory contract thereunder to suppress competition in the purchase and sale of bluegrass seed was unconstitutional and unenforceable as being in restraint of trade. Gay v. Brent, 166 Ky. 833 , 179 S.W. 1051, 1915 Ky. LEXIS 783 ( Ky. 1915 ) (decided under prior law).

That part of KRS 365.090 (repealed) enforcing price fixing of minimum resale prices against nonsigners and such price agreements is invalid. General Electric Co. v. American Buyers Cooperative, Inc., 316 S.W.2d 354, 1958 Ky. LEXIS 42 ( Ky. 1958 ) (decided under prior law).

§ 199. Telegraph and telephone companies — Right to construct lines — Exchange of messages.

Any association or corporation, or the lessees or managers thereof, organized for the purpose, or any individual, shall have the right to construct and maintain lines of telegraph within this State, and to connect the same with other lines, and said companies shall receive and transmit each other’s messages without unreasonable delay or discrimination, and all such companies are hereby declared to be common carriers and subject to legislative control. Telephone companies operating exchanges in different towns or cities, or other public stations, shall receive and transmit each other’s messages without unreasonable delay or discrimination. The General Assembly shall, by general laws of uniform operation, provide reasonable regulations to give full effect to this section. Nothing herein shall be construed to interfere with the rights of cities or towns to arrange and control their streets and alleys, and to designate the places at which, and the manner in which, the wires of such companies shall be erected or laid within the limits of such city or town.

NOTES TO DECISIONS

1.Construction.

This section does not exclude telephone companies from legislative control. Southern Bell Tel. & Tel. Co. v. Louisville, 265 Ky. 286 , 96 S.W.2d 695, 1936 Ky. LEXIS 468 ( Ky. 1936 ).

2.Legislative Control.

Telephone companies are public utility corporations subject to the control of the legislature. Carrollton Tel. Exch. Co. v. Spicer, 177 Ky. 340 , 197 S.W. 827, 1917 Ky. LEXIS 595 ( Ky. 1917 ) ( Ky. 1917 ).

3.Common Carriers.

Under this section, telegraph companies are to be treated as common carriers, and may not limit its common-law liability by contract or stipulation. Western Union Tel. Co. v. Eubank, 100 Ky. 591 , 38 S.W. 1068, 18 Ky. L. Rptr. 995 , 1897 Ky. LEXIS 38 ( Ky. 1897 ). See Postal Tel. Cable Co. v. Schaefer, 110 Ky. 907 , 62 S.W. 1119, 23 Ky. L. Rptr. 344 , 1901 Ky. LEXIS 155 ( Ky. 1901 ).

4.Condemnation.

Though this section confers on telegraph companies the right to construct and maintain lines within the state, and requires the General Assembly to provide by general laws the necessary regulations to carry that section into effect, yet, as the General Assembly had failed, prior to Act of March 19, 1898, to obey that mandate, no proceeding could, prior to that act, be maintained to condemn land for a telegraph line. Postal Tel. Cable Co. v. Mobile & O.R.R., 54 S.W. 727, 21 Ky. L. Rptr. 1188 , 1900 Ky. LEXIS 329 (1900).

5.— Foreign Companies.

Foreign telephone and telegraph companies, which have complied with constitution and qualified themselves to do business in the state, need not domesticate themselves, as railroads are required to do by KRS 277.020 (now repealed), in order to condemn right of way. Potter v. Gardner, 222 Ky. 487 , 1 S.W.2d 537, 1927 Ky. LEXIS 946 ( Ky. 1927 ).

6.Connecting Lines.

A contract between two (2) telephone companies to connect their lines must remain in force and effect during the corporate existence of the two (2) companies or so long as they retain the exchanges agreed to be connected. Campbellsville Tel. Co. v. Lebanon, L. & L. Tel. Co., 118 Ky. 277 , 80 S.W. 1114, 26 Ky. L. Rptr. 127 , 1904 Ky. LEXIS 41 ( Ky. 1904 ). See Campbellsburg Tel. Campbellsville Tel. Co. v. Lebanon, L. & L. Tel. Co., 84 S.W. 518, 27 Ky. L. Rptr. 90 ( Ky. 1905 ).

Under this section, one telephone company could not contract with another such company to give exclusive connection with the latter’s exchanges. Rural Home Tel. Co. v. Kentucky & I. Tel. & Tel. Co., 100 S.W. 847, 30 Ky. L. Rptr. 1230 (1907).

When lines of different telephone companies are connected, service must be accepted over lines existing at time of connection. Railroad Com. v. Northern Kentucky Tel. Co., 236 Ky. 747 , 33 S.W.2d 676, 1930 Ky. LEXIS 820 ( Ky. 1930 ).

When in good faith telephone company requests physical connection with another company, the railroad commission cannot refuse to order such connection but may determine who shall pay the cost of connection and work out regulations controlling the matter of tolls and other details after connection is made. Railroad Com. v. Northern Kentucky Tel. Co., 236 Ky. 747 , 33 S.W.2d 676, 1930 Ky. LEXIS 820 ( Ky. 1930 ).

State railroad commission must work out details of connections between telephone companies without destroying property rights of either company. Railroad Com. of Kentucky v. Northern Kentucky Tel. Co., 247 Ky. 453 , 57 S.W.2d 63, 1932 Ky. LEXIS 878 ( Ky. 1932 ).

Telephone company is entitled to make physical connection with lines of another telephone company, though no telephone exchange exists at point of connection. Railroad Com. of Kentucky v. Northern Kentucky Tel. Co., 247 Ky. 453 , 57 S.W.2d 63, 1932 Ky. LEXIS 878 ( Ky. 1932 ).

7.Transmitting Messages.

Company operating telephone system in a city without having obtained franchise as prescribed by Const., §§ 163 and 164, cannot compel another company to receive and transmit messages. Rural Home Tel. Co. v. Kentucky & I. Tel. Co., 128 Ky. 209 , 107 S.W. 787, 32 Ky. L. Rptr. 1068 , 1908 Ky. LEXIS 44 ( Ky. 1908 ).

Telephone company is subject to constitutional and statutory rights of other telephone companies to transmit messages over its lines. Railroad Com. of Kentucky v. Northern Kentucky Tel. Co., 247 Ky. 453 , 57 S.W.2d 63, 1932 Ky. LEXIS 878 ( Ky. 1932 ).

Cited:

Western Union Tel. Co. v. Eubank, 100 Ky. 591 , 38 S.W. 1068, 18 Ky. L. Rptr. 995 , 1897 Ky. LEXIS 38 ( Ky. 1897 ); Stites v. Norton, 125 Ky. 672 , 101 S.W. 1189, 31 Ky. L. Rptr. 263 , 1907 Ky. LEXIS 323 ( Ky. 1907 ); Louisville v. Cumberland Tel. & Tel. Co., 224 U.S. 649, 32 S. Ct. 572, 56 L. Ed. 934, 1912 U.S. LEXIS 2333 (U.S. 1912); Louisville & N. R. Co. v. Western Union Tel. Co., 249 F. 385, 1918 U.S. App. LEXIS 2220 (6th Cir. Ky. 1918 ).

Research References and Practice Aids

Cross-References.

Exchange of messages, KRS 278.520 , 278.530 .

Telephone and telegraph companies, KRS 278.510 to 278.540 .

Kentucky Law Journal.

Snyder and Irland, The Separation of Governmental Powers Under the Constitution of Kentucky: A Legal and Historical Analysis of L.R.C. v. Brown, 73 Ky. L.J. 165 (1984-85).

§ 200. Domestic corporation consolidating with foreign does not become foreign. [Repealed.]

Compiler’s Notes.

Acts 2002, ch. 341, § 1 proposed that this section be repealed, and such repeal was ratified by the voters at the 2002 election. Prior to its repeal, the section read:

§ 200. Domestic corporation consolidating with foreign does not become foreign. — If any railroad, telegraph, express, or other corporation, organized under the laws of this Commonwealth, shall consolidate by sale or otherwise, with any railroad, telegraph, express or other corporation organized under the laws of any other State, the same shall not thereby become a foreign corporation, but the courts of this Commonwealth shall retain jurisdiction over that part of the corporate property within the limits of this State in all matters which may arise, as if said consolidation had not taken place.”

NOTES TO DECISIONS

1.Construction.

This section and Const., § 199 contemplate that there should be a transfer of franchise, right of way or property upon consolidation of telephone companies. Louisville v. Cumberland Tel. & Tel. Co., 224 U.S. 649, 32 S. Ct. 572, 56 L. Ed. 934, 1912 U.S. LEXIS 2333 (U.S. 1912) (decided under prior law).

The trial court erred in its determination that this section entitled defendant to continue to exercise the power of eminent domain and to bring this condemnation action without having complied with section 211 of the Kentucky Constitution and KRS 277.020 (now repealed). Eaton Asphalt Paving Co. v. CSX Transp., 8 S.W.3d 878, 1999 Ky. App. LEXIS 31 (Ky. Ct. App. 1999) (decided under prior law).

2.Reinsurance of Risks.

Where a domestic life insurance company, acting pursuant to statute and with consent of its policy holders, reinsured all its risks with a foreign company, there was no consolidation within this section, so as to require reinsuring company to deposit securities as a local company. Ill. Life Ins. Co. v. Prewitt, 123 Ky. 36 , 93 S.W. 633, 29 Ky. L. Rptr. 447 , 1906 Ky. LEXIS 120 (Ky. Ct. App. 1906) (decided under prior law).

§ 201. Public utility company not to consolidate with, acquire or operate competing or parallel system — Common carriers not to share earnings with one not carrying — Telephone companies excepted under certain conditions.

No railroad, telegraph, telephone, bridge or common carrier company shall consolidate its capital stock, franchises or property, or pool its earnings, in whole or in part, with any other railroad, telegraph, telephone, bridge or common carrier company owning a parallel or competing line or structure, or acquire by purchase, lease or otherwise, any parallel or competing line or structure, or operate the same; nor shall any railroad company or other common carrier combine or make any contract with the owners of any vessel that leaves or makes port in this State, or with any common carrier, by which combination or contract the earnings of one doing the carrying are to be shared by the other not doing the carrying: Provided, however, That telephone companies may acquire by purchase or lease, or otherwise, and operate, parallel or competing exchanges, lines and structures, and the property of other telephone companies, if the state agency as may have jurisdiction over such matters shall first consent thereto, and if, further, each municipality wherein such property or any part thereof is located shall also first consent thereto as to the property within its limits, but under any such acquisition and operation toll line connections with the property so acquired shall be continued and maintained under an agreement between the purchasing company and the toll line companies then furnishing such service, and in the event they are unable to agree as to the terms of such an agreement the state agency as may have jurisdiction over such matters, shall fix the term of such agreement.

History. Amendment proposed by Acts 2000, ch. 407, § 1, ratified November, 2000.

Compiler’s Notes.

1917 amendment was proposed by 1916 Ky. Acts ch. 125, § 1, and ratified on November 6, 1917.

The General Assembly in 2000 (Acts 2000, ch. 407, § 1) proposed an amendment to the Constitution which amendment was ratified by the voters at the regular election in November, 2000. Prior to the amendment the section read:

§ 201. Public utility company not to consolidate with, acquire or operate competing or parallel system — Common carriers not to share earnings with one not carrying — Telephone companies excepted under certain conditions. — No railroad, telegraph, telephone, bridge or common carrier company shall consolidate its capital stock, franchises or property, or pool its earnings, in whole or in part, with any other railroad, telegraph, telephone, bridge or common carrier company owning a parallel or competing line or structure, or acquire by purchase, lease or otherwise, any parallel or competing line or structure, or operate the same; nor shall any railroad company or other common carrier combine or make any contract with the owners of any vessel that leaves or makes port in this State, or with any common carrier, by which combination or contract the earnings of one doing the carrying are to be shared by the other not doing the carrying: Provided, however, That telephone companies may acquire by purchase or lease, or otherwise, and operate, parallel or competing exchanges, lines and structures, and the property of other telephone companies, if the Railroad Commission or such other State commission as may have jurisdiction over such matters shall first consent thereto, and if, further, each municipality wherein such property or any part thereof is located shall also first consent thereto as to the property within its limits, but under any such acquisition and operation toll line connections with the property so acquired shall be continued and maintained under an agreement between the purchasing company and the toll line companies then furnishing such service, and in the event they are unable to agree as to the terms of such an agreement the Railroad Commission or such other State commission as may have jurisdiction over such matters, shall fix the term of such agreement.”

An amendment to this section was proposed by the 1992 General Assembly (Acts 1992, ch. 112, § 4), was submitted to the voters for ratification or rejection at the regular election in November, 1992 and was defeated.

NOTES TO DECISIONS

1.Constitutionality.

This section does not violate the provisions of the Constitution of the United States prohibiting any state from passing laws impairing the obligation of contracts, nor does it conflict with those provisions giving congress the power to regulate interstate commerce. Louisville & N. R. Co. v. Commonwealth, 97 Ky. 675 , 31 S.W. 476, 17 Ky. L. Rptr. 427 , 1895 Ky. LEXIS 229 ( Ky. 1895 ), aff'd, 161 U.S. 677, 16 S. Ct. 714, 40 L. Ed. 849, 1896 U.S. LEXIS 2194 (U.S. 1896).

The assumption of right to forbid consolidation of parallel and competing lines is not an interference with the power of congress over interstate commerce. Louisville & N. R. Co. v. Kentucky, 161 U.S. 677, 16 S. Ct. 714, 40 L. Ed. 849, 1896 U.S. LEXIS 2194 (U.S. 1896).

This section is a legitimate exercise of the police power of the state, and forbids consolidation between two (2) railroads. Louisville & N. R. Co. v. Kentucky, 161 U.S. 677, 16 S. Ct. 714, 40 L. Ed. 849, 1896 U.S. LEXIS 2194 (U.S. 1896).

2.Purpose.

The purpose and effect of this section is to prohibit as against public policy the acquisition and control of parallel or competing railroad lines or structures by any company likely to use them so as to hurt the public. Louisville & N. R. Co. v. Commonwealth, 97 Ky. 675 , 31 S.W. 476, 17 Ky. L. Rptr. 427 , 1895 Ky. LEXIS 229 ( Ky. 1895 ), aff'd, 161 U.S. 677, 16 S. Ct. 714, 40 L. Ed. 849, 1896 U.S. LEXIS 2194 (U.S. 1896).

3.Construction.

The terms of this section mean parallel or competing, not parallel and competing. Commonwealth ex rel. Breathitt v. Louisville & N. R. Co., 144 Ky. 324 , 138 S.W. 291, 1911 Ky. LEXIS 623 ( Ky. 1911 ).

The 1917 amendment to this section, permitting consolidation of competing telephone companies with consent of railroad commission and city, was not intended to authorize cities to attach conditions which would deprive the state of its inherent power to regulate rates. Southern Bell Tel. & Tel. Co. v. Louisville, 265 Ky. 286 , 96 S.W.2d 695, 1936 Ky. LEXIS 468 ( Ky. 1936 ).

4.Effect of Previous Laws.

Act of Jan. 17, 1856, adopted before this section, did not give a railroad the right to purchase parallel or competing lines after the adoption of this section despite the fact that the application thereof invalidated an existing contract. Louisville & N. R. Co. v. Commonwealth, 97 Ky. 675 , 31 S.W. 476, 17 Ky. L. Rptr. 427 , 1895 Ky. LEXIS 229 ( Ky. 1895 ), aff'd, 161 U.S. 677, 16 S. Ct. 714, 40 L. Ed. 849, 1896 U.S. LEXIS 2194 (U.S. 1896).

Although enacted prior to the enactment of this section, a statute authorizing a railroad to acquire any road constructed by another company does not give such railroad the right to acquire parallel or competing lines in violation of this section. Louisville & N. R. Co. v. Commonwealth, 97 Ky. 675 , 31 S.W. 476, 17 Ky. L. Rptr. 427 , 1895 Ky. LEXIS 229 ( Ky. 1895 ), aff'd, 161 U.S. 677, 16 S. Ct. 714, 40 L. Ed. 849, 1896 U.S. LEXIS 2194 (U.S. 1896).

5.Parallel Lines.

The word parallel in this section was used in the sense of meaning two (2) lines conforming in their general direction and not in the strict sense of two (2) railroad lines constructed equidistant apart throughout their entire length. Louisville & N. R. Co. v. Commonwealth, 97 Ky. 675 , 31 S.W. 476, 17 Ky. L. Rptr. 427 , 1895 Ky. LEXIS 229 ( Ky. 1895 ), aff'd, 161 U.S. 677, 16 S. Ct. 714, 40 L. Ed. 849, 1896 U.S. LEXIS 2194 (U.S. 1896).

The fact that a railroad is one of two (2) parallel lines, is not affected by an unexecuted original plan of construction. Commonwealth ex rel. Breathitt v. Louisville & N. R. Co., 144 Ky. 324 , 138 S.W. 291, 1911 Ky. LEXIS 623 ( Ky. 1911 ).

6.— Valid.

This section does not prevent a railroad from owning two (2) bridges across the Ohio River more than 200 miles apart, one running north and south and the other almost east and west, and each serving a population having no community interest with that served by the other. Commonwealth v. Louisville, & N. R. Co., 148 Ky. 94 , 146 S.W. 767, 1912 Ky. LEXIS 451 ( Ky. 1912 ).

7.— Invalid.

Consolidation of parallel or competing railroad lines cannot be upheld because it gives the public better service, nor because one of the lines cannot be operated independently at a profit. Commonwealth ex rel. Breathitt v. Louisville & N. R. Co., 144 Ky. 324 , 138 S.W. 291, 1911 Ky. LEXIS 623 ( Ky. 1911 ).

A contract whereby one competing transfer company in carrying passengers and freight in a city and vicinity becomes exclusively a carrier of passengers, and the other competing company becomes exclusively a carrier of freight, is contrary to public policy and invalid. J. H. Fields & Son v. E. G. Holland & Son, 158 Ky. 544 , 165 S.W. 699, 1914 Ky. LEXIS 665 ( Ky. 1914 ) ( Ky. 1914 ).

8.— — Mortgages.

Assuming that a contract wherein one common carrier purchased the equipment and permits of another was in violation of this section, mortgages which were assumed by the purchaser were not invalidated so as to give a subsequent lien on the property preference thereover. Safety Motor Coach Co. v. Maddin's Adm'x, 266 Ky. 459 , 99 S.W.2d 183, 1936 Ky. LEXIS 673 ( Ky. 1936 ).

Mortgage received as the result of a purchase of a bus company’s certificate of convenience and necessity, in violation of this section, although technically invalid, take precedence upon assignment to the claims of attaching unsecured creditors of the bus company. Maddin v. Safety Motor Coach Co., 286 Ky. 601 , 151 S.W.2d 389, 1941 Ky. LEXIS 303 ( Ky. 1941 ). See Safety Motor Coach Co. v. Maddin's Adm'x, 266 Ky. 459 , 99 S.W.2d 183, 1936 Ky. LEXIS 673 ( Ky. 1936 ); Swope v. Central Greyhound Lines, 278 Ky. 104 , 128 S.W.2d 171, 1939 Ky. LEXIS 371 ( Ky. 1939 ).

9.Procedure Against Violations.

The Commonwealth may maintain suit to enjoin a railroad company from acquiring the lines of other companies as prohibited by this section. Louisville & N. R. Co. v. Commonwealth, 97 Ky. 675 , 31 S.W. 476, 17 Ky. L. Rptr. 427 , 1895 Ky. LEXIS 229 ( Ky. 1895 ), aff'd, 161 U.S. 677, 16 S. Ct. 714, 40 L. Ed. 849, 1896 U.S. LEXIS 2194 (U.S. 1896).

Where a railroad has acquired another line and title has vested, the legality of the transaction under this section can only be raised by the state in a direct proceeding for that purpose and may not be raised by a stockholder of a corporation, to which such line has been leased by the railroad which acquired it in a collateral action to set aside such lease. Rogers v. Nashville, C. & St. L. R. Co., 91 F. 299, 1898 U.S. App. LEXIS 1849 (6th Cir. Tenn. 1898).

Acquisitions in violation of this section might be prevented by appropriate court action or by the refusal of the court to recognize or enforce the invalid contracts. Whitney v. Newbold, 270 Ky. 209 , 109 S.W.2d 406, 1937 Ky. LEXIS 44 ( Ky. 1937 ).

Cited:

Louisville Trust Co. v. Louisville, N. A. & C. R. Co., 75 F. 433, 1896 U.S. App. LEXIS 2048 (6th Cir. Ky. 1896 ); Shepard v. Northern P. R. Co., 184 F. 765, 1911 U.S. App. LEXIS 5078 (C.C.D. Minn. 1911); Louisville & N. R. Co. v. Central Stock Yards Co., 133 Ky. 148 , 97 S.W. 778, 30 Ky. L. Rptr. 18 , 1906 Ky. LEXIS 276 (Ky. Ct. App. 1906); Stites v. Norton, 125 Ky. 672 , 101 S.W. 1189, 31 Ky. L. Rptr. 263 , 1907 Ky. LEXIS 323 ( Ky. 1907 ); Gathright v. H. M. Byllesby & Co., 154 Ky. 106 , 157 S.W. 45, 1913 Ky. LEXIS 59 ( Ky. 1913 ); Swope v. Central Greyhound Lines, 278 Ky. 104 , 128 S.W.2d 171, 1939 Ky. LEXIS 371 ( Ky. 1939 ).

Research References and Practice Aids

Cross-References.

Consolidation of telephone companies, KRS 278.510 .

§ 202. Foreign corporations not to be given privileges over domestic. [Repealed.]

Compiler’s Notes.

Acts 2002, ch. 341, § 1 proposed that this section be repealed, and such repeal was ratified by the voters at the 2002 election. Prior to its repeal, the section read:

§ 202. Foreign corporations not to be given privileges over domestic. — No corporation organized outside the limits of this State shall be allowed to transact business within the State on more favorable conditions than are prescribed by law to similar corporations organized under the laws of this Commonwealth.”

NOTES TO DECISIONS

1.Construction.

Foreign corporations doing business in this state are subject to the Commonwealth laws, and do not import any of the laws of their domicile which are contrary to the laws or policy of this state. Zacher v. Fidelity Trust & Safety-Vault Co., 109 Ky. 441 , 59 S.W. 493, 22 Ky. L. Rptr. 987 , 1900 Ky. LEXIS 222 ( Ky. 1900 ) (decided under prior law).

This section, Const., § 211, and statutes enacted pursuant thereto, were not designed to and do not impose upon foreign corporations any limitations or burdens not put upon domestic corporations. Plummer v. Chesapeake & O. R. Co., 143 Ky. 102 , 136 S.W. 162, 1911 Ky. LEXIS 361 ( Ky. 1911 ), overruled, Coleman v. Daniel, 292 Ky. 553 , 166 S.W.2d 978, 1942 Ky. LEXIS 113 ( Ky. 1942 ) (decided under prior law).

A foreign corporation coming into state to transact business therein subjects itself to all laws of state applicable to domestic corporations, and its rights and duties are measured by such laws, and this rule of equality continues not only during the life of a foreign corporation transacting business in the state, but until its affairs have been settled up on dissolution. Castle's Adm'r v. Acrogen Coal Co., 145 Ky. 591 , 140 S.W. 1034, 1911 Ky. LEXIS 908 ( Ky. 1911 ) (decided under prior law).

When a foreign corporation comes into this state and does business here, it makes itself subject to the laws of the state just as a domestic corporation. Bowman v. Breyfogle, 145 Ky. 443 , 140 S.W. 694, 1911 Ky. LEXIS 895 ( Ky. 1911 ) (decided under prior law).

2.Foreign Insurance Companies.

Kentucky nonforfeiture acts, providing for paid-up insurance and giving policies a cash surrender value, though applying in specific terms only to domestic corporations, also are binding on foreign corporations. Metropolitan Life Ins. Co. v. Clay, 158 Ky. 192 , 164 S.W. 968, 1914 Ky. LEXIS 614 ( Ky. 1914 ) (decided under prior law).

A foreign insurance company is not entitled to transact business in this state upon more favorable conditions than domestic corporations organized for the same purpose. National Ben. Ass'n v. Clay, 162 Ky. 409 , 172 S.W. 922, 1915 Ky. LEXIS 93 ( Ky. 1915 ). See Greene v. Kentenia Corp., 175 Ky. 661 , 194 S.W. 820, 1917 Ky. LEXIS 371 ( Ky. 1917 ); Security Life Ins. Co. v. Watkins, 189 Ky. 20 , 224 S.W. 462, 1920 Ky. LEXIS 367 ( Ky. 1920 ); Commonwealth Life Ins. Co. v. Haskins, 259 Ky. 780 , 83 S.W.2d 457, 1935 Ky. LEXIS 377 ( Ky. 1935 ) (decided under prior law).

In licensing foreign insurance corporations the insurance commissioner is concerned only with the powers they propose to exercise within the state and not with their charter powers. Allin v. American Indem. Co., 246 Ky. 396 , 55 S.W.2d 44, 1932 Ky. LEXIS 773 ( Ky. 1932 ) (decided under prior law).

This section would not prevent a foreign insurance company which has the capacity to write two (2) types of insurance from writing only one type of insurance when doing business in this state. Allin v. American Indem. Co., 246 Ky. 396 , 55 S.W.2d 44, 1932 Ky. LEXIS 773 ( Ky. 1932 ) (decided under prior law).

3.Eminent Domain.

Under this section, Const., § 211 and Kentucky statutes, a foreign railroad corporation which had merely complied with KRS 277.020 (now repealed), by filing articles of incorporation, acquired only the right therein given to possess, control, maintain and operate a railroad in this state, and had no power to exercise the right of eminent domain or maintain a suit to subject the property of another to its use without becoming a Kentucky corporation by organization as such under law that provided for organization and incorporation of railroads. Evansville & H. Raction Co. v. Henderson Bridge Co., 141 F. 51, 1905 U.S. App. LEXIS 3995 (6th Cir. Ky. 1905 ) (decided under prior law).

4.Stock Subscription.

A foreign corporation may not lawfully transact business in Kentucky until it has complied with the statutory requirement that 50% of the capital stock of a corporation be subscribed to in good faith, although this requirement may be complied with, in the absence of formal stock subscription, by the purchase of and payment for the stock required. In re Kentucky Wagon Mfg. Co., 3 F. Supp. 958, 1932 U.S. Dist. LEXIS 1514 (D. Ky. 1932 ), aff’d, 71 F.2d 802, 1934 U.S. App. LEXIS 3216 (6th Cir. 1934) (decided under prior law).

5.Taxation.

The imposition of a license tax on whiskey rectified within Kentucky but not applying to whiskey rectified outside but brought into the state is not in violation of this section. Brown-Foreman Co. v. Commonwealth, 125 Ky. 402 , 30 Ky. L. Rptr. 793 , 101 S.W. 321, 1907 Ky. LEXIS 285 ( Ky. 1907 ), aff’d, Brown-Forman Co. v. Kentucky, 217 U.S. 563, 30 S. Ct. 578, 54 L. Ed. 883, 1910 U.S. LEXIS 1984 (1910) (decided under prior law).

Although a city may not impose a license tax on national banks, such a tax imposed on state banks does not violate this section. Shelbyville v. Citizens Bank of Shelbyville, 272 Ky. 559 , 114 S.W.2d 719, 1938 Ky. LEXIS 143 ( Ky. 1938 ) (decided under prior law).

The unemployment compensation act is not invalid under this section by virtue of taxing state banks but exempting national banks. Barnes v. Anderson Nat'l Bank, 293 Ky. 592 , 169 S.W.2d 833, 1943 Ky. LEXIS 679 ( Ky. 1943 ) (decided under prior law).

6.Rights of Creditors.

A foreign corporation doing business in this state to which stock has been fraudulently transferred by a nonresident debtor, may be sued in this state by a creditor to set aside the fraudulent transfer. Bowman v. Breyfogle, 145 Ky. 443 , 140 S.W. 694, 1911 Ky. LEXIS 895 ( Ky. 1911 ) (decided under prior law).

§ 203. Liabilities under corporate franchise not released by lease or alienation. [Repealed.]

Compiler’s Notes.

Acts 2002, ch. 341, § 1 proposed that this section be repealed, and such repeal was ratified by the voters at the 2002 election. Prior to its repeal, the section read:

§ 203. Liabilities under corporate franchise not released by lease or alienation. — No corporation shall lease or alienate any franchise so as to relieve the franchise or property held thereunder from the liabilities of the lessor or grantor, lessee or grantee, contracted or incurred in the operation, use or enjoyment of such franchise, or any of its privileges.”

NOTES TO DECISIONS

1.Construction.

Franchise as used in this section, means the corporate existence, or charter privileges, as distinguished from the corporeal property of the corporation, and the words “or property held thereunder,” have reference to such public duty, obligations, or servitude as may be imposed, by virtue of the franchise, on the tangible property of the corporation. Bailey v. Southern R. Co., 110 Ky. 231 , 61 S.W. 31, 22 Ky. L. Rptr. 1397 , 1901 Ky. LEXIS 70 ( Ky. 1901 ) (decided under prior law).

2.Municipalities.

This section does not apply to municipal corporations. Carrollton Furniture Mfg. Co. v. Carrollton, 104 Ky. 525 , 47 S.W. 439, 20 Ky. L. Rptr. 818 , 1898 Ky. LEXIS 190 ( Ky. 1898 ).

Where a city of the fifth class leased its wharf, it was not liable to third persons for negligent operation of the wharfboat, in absence of negligence in furnishing to lessee a reasonably safe wharfboat. Carrollton Furniture Mfg. Co. v. Carrollton, 104 Ky. 525 , 47 S.W. 439, 20 Ky. L. Rptr. 818 , 1898 Ky. LEXIS 190 ( Ky. 1898 ) (decided under prior law).

3.Torts by Lessee.

A railroad corporation leasing its road without direct legislative authority is responsible for the torts of its lessee, though it surrenders complete control of the leased road. Louisville & N. R. Co. v. Breeden's Adm'x, 111 Ky. 729 , 64 S.W. 667, 23 Ky. L. Rptr. 1021 , 1901 Ky. LEXIS 248 (Ky. Ct. App. 1901) (decided under prior law).

A provision in the charter of a railroad corporation empowering the corporation to make contracts with individuals, corporations and other railroad companies for the building, completion and operating of said road or any part thereof, empowered the corporation to lease its road, but not so as to relieve it from liability for the negligence of the lessee in the operation of a train. McCabe’s Adm’x v. Maysville & B. S. R. Co., 112 Ky. 861 , 23 Ky. L. Rptr. 2328 , 66 S.W. 1054, 1902 Ky. LEXIS 242 ( Ky. 1902 ), rev’d, Chesapeake & O. R. Co. v. McCabe, 213 U.S. 207, 29 S. Ct. 430, 53 L. Ed. 765, 1909 U.S. LEXIS 1868 (1909) (decided under prior law).

Under this section the corporation owning a railroad is responsible to the public for wrongs done by its lessee in operating it. McCabe's Adm'x v. Maysville & B. S. R. Co., 112 Ky. 861 , 66 S.W. 1054, 23 Ky. L. Rptr. 2328 , 1902 Ky. LEXIS 242 ( Ky. 1902 ), rev'd, 213 U.S. 207, 29 S. Ct. 430, 53 L. Ed. 765, 1909 U.S. LEXIS 1868 (U.S. 1909). See Illinois C. R. Co. v. Sheegog's Adm'r, 126 Ky. 252 , 103 S.W. 323, 31 Ky. L. Rptr. 691 , 1907 Ky. LEXIS 45 ( Ky. 1907 ), aff'd, 215 U.S. 308, 30 S. Ct. 101, 54 L. Ed. 208, 1909 U.S. LEXIS 1760 (U.S. 1909); Louisville Bridge Co. v. Sieber, 157 Ky. 151 , 162 S.W. 804, 1914 Ky. LEXIS 245 ( Ky. 1914 ) (decided under prior law).

The lessor of a railroad track is bound jointly with the lessee for any injury done one of the public. Louisville Bridge Co. v. Sieber, 157 Ky. 151 , 162 S.W. 804, 1914 Ky. LEXIS 245 ( Ky. 1914 ) (decided under prior law).

Under this section, lessor of railroad was liable for death of brakeman knocked from passing train by depot shed constructed dangerously close to the track by lessee. Chesapeake & O. R. Co. v. Vaughan's Adm'x, 159 Ky. 433 , 167 S.W. 141, 1914 Ky. LEXIS 793 ( Ky. 1914 ) (decided under prior law).

Lessor of railroad’s line, though lacking any management control, is liable for actionable negligence of lessee. Illinois C. R. Co. v. McGuire's Adm'r, 239 Ky. 1 , 38 S.W.2d 913, 1931 Ky. LEXIS 723 ( Ky. 1 931) (decided under prior law).

Corporation holding permit to operate motor vehicles as common carrier is liable for damage caused by negligent operation of bus by its lessee. Moody v. Consolidated Coach Corp., 248 Ky. 180 , 58 S.W.2d 375, 1933 Ky. LEXIS 204 ( Ky. 1933 ) (decided under prior law).

Negligence of lessee of railroad engine, where damage to the engine was caused by the joint negligence of lessee and another, was not imputed to lessor so as to preclude lessor’s recovery of such damage from the third party. Southern R. Co. v. Kelly Constr. Co., 406 S.W.2d 305, 1966 Ky. LEXIS 195 ( Ky. 1966 ) (decided under prior law).

4.Purchaser of Property.

The purchaser of tangible property of a railroad corporation is not charged with contract duty of vendor to maintain fence on each side of right of way through certain lands, purchaser having no notice of contract at time of his purchase. Bailey v. Southern R. Co., 110 Ky. 231 , 61 S.W. 31, 22 Ky. L. Rptr. 1397 , 1901 Ky. LEXIS 70 ( Ky. 1901 ) (decided under prior law).

5.Corporate Debts.

This section did not make corporate debts a lien on assets, nor was it intended to prevent an insolvent corporation from selling its property in good faith to pay its debts. Russell's Adm'r v. Frankfort & S. R. Co., 131 Ky. 862 , 116 S.W. 289, 1909 Ky. LEXIS 76 ( Ky. 1909 ) (decided under prior law).

6.Sale of Property.

Where one of two (2) railroads, against whom an action was brought for injuries, had conveyed its road to the other before the accident, it was not liable. Murray v. Chesapeake & O. R. Co., 139 Ky. 379 , 115 S.W. 821, 1909 Ky. LEXIS 2 ( Ky. 1909 ) (decided under prior law).

§ 204. Bank officer liable for receiving deposit for insolvent bank.

Any President, Director, Manager, Cashier or other officer of any banking institution or association for the deposit or loan of money, or any individual banker, who shall receive or assent to the receiving of deposits after he shall have knowledge of the fact that such banking institution or association or individual banker is insolvent, shall be individually responsible for such deposits so received, and shall be guilty of felony and subject to such punishment as shall be prescribed by law.

History. Ratified on: August 3, 1891, and revised September 28, 1891.

§ 205. Forfeiture of corporate charters in case of abuse or detrimental use.

The General Assembly shall, by general laws, provide for the revocation or forfeiture of the charters of all corporations guilty of abuse or misuse of their corporate powers, privileges or franchises, or whenever said corporations become detrimental to the interest and welfare of the Commonwealth or its citizens.

History. Ratified on: August 3, 1891, and revised September 28, 1891.

§ 206. Warehouses subject to legislative control — Inspection — Protection of patrons.

All elevators or storehouses, where grain or other property is stored for a compensation, whether the property stored be kept separate or not, are declared to be public warehouses, subject to legislative control, and the General Assembly shall enact laws for the inspection of grain, tobacco and other produce, and for the protection of producers, shippers and receivers of grain, tobacco and other produce.

History. Ratified on: August 3, 1891, and revised September 28, 1891.

NOTES TO DECISIONS

1.Purpose.

This section was intended to require the legislature to enact proper laws on the subject. Pannell v. Louisville Tobacco Warehouse Co., 113 Ky. 630 , 68 S.W. 662, 23 Ky. L. Rptr. 2423 , 1902 Ky. LEXIS 87 (Ky.), modified, 113 Ky. 640 , 82 S.W. 1141, 1902 Ky. LEXIS 248 (Ky. Ct. App. 1902).

2.Legislative Power.

At time of adoption of present Constitution, the power of the legislature to regulate tobacco warehouses had been expressly sustained. Pannell v. Louisville Tobacco Warehouse Co., 113 Ky. 630 , 68 S.W. 662, 23 Ky. L. Rptr. 2423 , 1902 Ky. LEXIS 87 (Ky.), modified, 113 Ky. 640 , 82 S.W. 1141, 1902 Ky. LEXIS 248 (Ky. Ct. App. 1902).

3.Discrimination.

Refusal of tobacco warehouseman to permit tobacco speculator to bid for tobacco sold at warehouse violated this section, notwithstanding federal O.P.A. regulations fixing ceilings on sales and restricting amount that might be sold to any one buyer. Germann v. Stanley, 300 Ky. 860 , 190 S.W.2d 547, 1945 Ky. LEXIS 658 ( Ky. 1945 ).

Cited:

Jewell Tabacco Warehouse Co. v. Kemper, 206 Ky. 667 , 268 S.W. 324, 1925 Ky. LEXIS 1023 ( Ky. 1925 ); Freeman v. Danville Tobacco Board of Trade, Inc., 380 S.W.2d 215, 1964 Ky. LEXIS 284 ( Ky. 1964 ).

Opinions of Attorney General.

In view of the fact that tobacco warehouses are public warehouses and in view of legislation which grants the Department of Agriculture power to license, supervise and regulate such warehouses, agents of the Department are authorized to examine the records of tobacco warehouses. OAG 76-175 .

Research References and Practice Aids

Cross-References.

Warehouse regulation, KRS chs. 248, 251, 359.

Kentucky Law Journal.

Snyder and Irland, The Separation of Governmental Powers Under the Constitution of Kentucky: A Legal and Historical Analysis of L.R.C. v. Brown, 73 Ky. L.J. 165 (1984-85).

§ 207. Cumulative voting for directors of corporations — Proxies. [Repealed.]

Compiler’s Notes.

Acts 2002, ch. 341, § 1 proposed that this section be repealed, and such repeal was ratified by the voters at the 2002 election. Prior to its repeal, the section read:

§ 207. Cumulative voting for directors of corporations — Proxies. — In all elections for directors or managers of any corporation, each shareholder shall have the right to cast as many votes in the aggregate as he shall be entitled to vote in said company under its charter, multiplied by the number of directors or managers to be elected at such election; and each shareholder may cast the whole number of votes, either in person or by proxy, for one candidate, or distribute such votes among two or more candidates, and such directors or managers shall not be elected in any other manner.”

NOTES TO DECISIONS

1.Cumulative Voting.

A corporation bylaw providing that at stockholders’ meetings each stockholder should cast one vote for each share of stock held by him is valid since this section establishes the cumulative system of voting stock. Proctor Coal Co. v. Finley, 98 Ky. 405 , 33 S.W. 188, 17 Ky. L. Rptr. 950 , 1895 Ky. LEXIS 70 ( Ky. 1895 ) (decided under prior law).

Where no stockholder objects, or is denied his right to vote cumulatively this section does not require cumulative voting and a stockholder’s election held where voting was by a previous method is legal. Schmidt v. Mitchell, 101 Ky. 570 , 41 S.W. 929, 19 Ky. L. Rptr. 763 , 1897 Ky. LEXIS 223 ( Ky. 1897 ) (decided under prior law).

2.— Corporate Mergers.

A corporate merger and reorganization providing that the first board of directors shall serve until the first annual meeting of stockholders by contract rather than by election is not invalid under this section since reasonably necessary to implement the merger, although it does result in a temporary and technical suspension of the cumulative voting rights of the stockholders. Security Trust Co. v. Dabney, 372 S.W.2d 401, 1963 Ky. LEXIS 132 ( Ky. 1963 ) (decided under prior law).

3.— Preferred Stock.

In the absence of constitutional or statutory provisions, it is within the power of a corporation to provide in its charter or stock certificates that holders of the preferred stock shall have no voting power, however, unless the right to vote is expressly withheld, the holders of preferred stock have the right to vote at corporate meetings. In re American Elevator & Machine Co., 73 F. Supp. 473, 1947 U.S. Dist. LEXIS 2328 (D. Ky. 1947 ) (decided under prior law).

4.— Valid Statutes.

The drainage and reclamation act of 1912, KRS ch. 267, does not violate this section. Bard v. Board of Drainage Comm'rs, 274 Ky. 491 , 118 S.W.2d 1013, 1938 Ky. LEXIS 292 ( Ky. 1938 ) (decided under prior law).

5.Nonstock Corporation.

A nonstock corporation is outside the scope of this section in the absence of legislation specifically extending the voting right to it. Farmers No. 4, Inc. V. Lexington Tobacco Board of Trade, 461 S.W.2d 926, 1970 Ky. LEXIS 647 ( Ky. 1970 ).

This section creates a right in holders of interests in corporations issuing stock but not in members of nonstock corporations. Farmers No. 4, Inc. V. Lexington Tobacco Board of Trade, 461 S.W.2d 926, 1970 Ky. LEXIS 647 ( Ky. 1970 ) (decided under prior law).

§ 208. “Corporation” includes joint stock company or association. [Repealed.]

Compiler’s Notes.

Acts 2002, ch. 341, § 1 proposed that this section be repealed, and such repeal was ratified by the voters at the 2002 election. Prior to its repeal, the section read:

208. ‘Corporation’ includes joint stock company or association. — The word ‘corporation’ as used in this Constitution shall embrace joint stock companies and associations.”

NOTES TO DECISIONS

1.Joint Stock Company.

This section does not control the definition of corporation when used in the various statutes of Kentucky and the use of the word corporation in such statutes does not automatically include joint stock associations. Commonwealth v. Adams Express Co., 123 Ky. 720 , 97 S.W. 386, 29 Ky. L. Rptr. 1280 , 1906 Ky. LEXIS 210 ( Ky. 1906 ) (decided under prior law).

A joint stock company or association, organized but not incorporated in another state, is on the same footing as a corporation in this state with respect to our Constitution and statutes. Stearns Coal Co. v. McPherson, 144 Ky. 730 , 139 S.W. 971, 1911 Ky. LEXIS 734 ( Ky. 1911 ) (decided under prior law).

This section seems to require construction of joint stock company as including a private corporation. Kirby v. Louismann-Capen Co., 221 F. 267, 1914 U.S. Dist. LEXIS 1292 (D. Ky. 1914 ). See International Harvester Co. v. Commonwealth, 147 Ky. 655 , 145 S.W. 393, 1912 Ky. LEXIS 327 ( Ky. 1912 ), aff'd, 234 U.S. 579, 34 S. Ct. 944, 58 L. Ed. 1479, 1914 U.S. LEXIS 1109 (U.S. 1914) (decided under prior law).

2.— Actions Against.

A joint stock association is not necessary party to a suit brought against the individual members thereof for personal injuries resulting from its negligence. Roller v. Madison, 172 Ky. 693 , 189 S.W. 914, 1916 Ky. LEXIS 254 ( Ky. 1916 ) (decided under prior law).

Despite this section, members of a joint stock association are individually liable for all of its obligations, including injuries caused by its negligence. Roller v. Madison, 172 Ky. 693 , 189 S.W. 914, 1916 Ky. LEXIS 254 ( Ky. 1916 ) (decided under prior law).

A joint stock association may be sued as a corporation, it not being necessary to sue the members individually. American Ry. Express Co. v. Asher, 218 Ky. 172 , 291 S.W. 21, 1927 Ky. LEXIS 123 ( Ky. 1927 ) (decided under prior law).

3.Copartnership Associations.

Under this section and statutes an association of 3,000 alleged copartners will be treated as a corporation for the service of process. Adams Exp. Co. v. Schofield, 111 Ky. 832 , 64 S.W. 903, 23 Ky. L. Rptr. 1120 , 1901 Ky. LEXIS 262 ( Ky. 1901 ) (decided under prior law).

4.Labor Unions.

A labor union, though a voluntary association, may be sued in its own name. Jackson v. International Union of Operating Engineers, 307 Ky. 485 , 211 S.W.2d 138, 1948 Ky. LEXIS 743 ( Ky. 1948 ) (decided under prior law).

RAILROADS AND COMMERCE

§ 209. Railroad Commission — Election, term, and qualifications of Commissioners — Commissioners’ districts — Powers and duties — Removal — Vacancies. [Repealed.]

Compiler’s Notes.

Acts 2000, ch. 399, § 3 proposed that this section be repealed, and such repeal was ratified by the voters at the November, 2000 regular election.

Prior to its repeal, the section read: “ Railroad Commission — Election, term, and qualifications of Commissioners — Commissioners’ districts — Powers and duties — Removal — Vacancies. — A commission is hereby established, to be known as “The Railroad Commission,” which shall be composed of three Commissioners. During the session of the General Assembly which convenes in December, eighteen hundred and ninety-one, and before the first day of June, eighteen hundred and ninety-two, the Governor shall appoint, by and with the advice and consent of the Senate, said three Commissioners, one from each Superior Court District as now established, and said appointees shall take their office at the expiration of the terms of the present incumbents. The Commissioners so appointed shall continue in office during the term of the present Governor, and until their successors are elected and qualified. At the regular election in eighteen hundred and ninety-five and every four years thereafter the Commissioners shall be elected, one in each Superior Court District, by the qualified voters thereof, at the same time and for the same term as the Governor. No person shall be eligible to said office unless he be, at the time of his election, at least thirty years of age, a citizen of Kentucky two years, and a resident of the district from which he is chosen one year, next preceding his election. Any vacancy in this office shall be filled as provided in Section 152 of this Constitution. The General Assembly may from time to time change said districts so as to equalize the population thereof; and may, if deemed expedient, require that the Commissioners be all elected by the qualified voters of the State at large. And if so required, one Commissioner shall be from each District. No person in the service of any railroad or common carrier company or corporation, or of any firm or association conducting business as a common carrier, or in anywise pecuniarily interested in such company, corporation, firm or association, or in the railroad business, or as a common carrier, shall hold such office. The powers and duties of the Railroad Commissioners shall be regulated by law; and, until otherwise provided by law, the Commission so created shall have the same powers and jurisdiction, perform the same duties, be subject to the same regulations, and receive the same compensation, as now conferred, prescribed and allowed by law to the existing Railroad Commissioners. The General Assembly may, for cause, address any of said Commissioners out of office by similar proceedings as in the case of Judges of the Court of Appeals; and the General Assembly shall enact laws to prevent the nonfeasance and misfeasance in office of said Commissioners, and to impose proper penalties therefor.”

Acts 2000, ch. 399, § 4 reads: “It is further proposed as part of this amendment and as a schedule of transitional provisions, for the purposes of this amendment, and any other provision of the Constitution of Kentucky notwithstanding that:

“(1) Any Railroad Commissioner serving in office at the time of the ratification of this amendment shall continue in office until the expiration of his current term.

“(2) Upon the proposed amendment’s approval by the voters of the Commonwealth, the statutory duties of the Railroad Commission shall continue in effect until the effective date of legislation enacted by the General Assembly to implement this amendment.”

The following amendment was proposed by the 1972 General Assembly (Acts 1972, ch. 129, § 1), was submitted to the voters for ratification or rejection at the regular election in November 1973 and was defeated:

“Section 209. — The General Assembly shall provide by general law for the necessary regulation and supervision of railroads operating within the commonwealth, and, on the expiration of the terms of the commissioners elected in November 1971, for the exercise of any authority granted in this constitution to ‘The Railroad Commission.’”

Sections 7 and 8 of Acts 1992, ch. 112 provided:

“Section 7. If approved by the voters of the Commonwealth, the provisions of this amendment shall prevail over any other amendment concurrently ratified by the voters relating to the election and right of succession of any person holding an office which is abolished by this amendment.

“Section 8. If approved by the voters of the Commonwealth, this amendment shall first apply to the election of constitutional state officers held in 1995.”

§ 210. Common carrier corporation not to be interested in other business.

No corporation engaged in the business of common carrier shall, directly or indirectly, own, manage, operate, or engage in any other business than that of a common carrier, or hold, own, lease or acquire, directly or indirectly, mines, factories or timber, except such as shall be necessary to carry on its business, and the General Assembly shall enact laws to give effect to the provisions of this section.

NOTES TO DECISIONS

1.Coal Company Railroad.

A coal company constructing railroad switch to its mine, under KRS 277.040 is not a common carrier. Straight Creek Coal Mining Co. v. Straight Creek Coal & Coke Co., 135 Ky. 536 , 122 S.W. 842, 1909 Ky. LEXIS 318 ( Ky. 1909 ).

2.Railroad Hotel.

A railroad may own and run a hotel which is operated primarily for the comfort and convenience of its passengers and employees and not for profit. Louisville Property Co. v. Commonwealth, 146 Ky. 827 , 143 S.W. 412, 1912 Ky. LEXIS 165 ( Ky. 1912 ).

3.Railroad Securities Trading.

Where a railroad operating in Kentucky was buying and selling securities through its New York office to further its corporate purposes and in accord with its needs as a common carrier, such transactions were a valid exercise of corporate powers under this section, section 192 of the constitution and KRS 271.145 (1) (repealed), but the resultant securities business was not an independent operation and the intangibles had not acquired a separate business situs. Commonwealth ex rel. Luckett v. Louisville & N. R. Co., 479 S.W.2d 15, 1972 Ky. LEXIS 286 (Ky.), cert. denied, 409 U.S. 949, 93 S. Ct. 269, 34 L. Ed. 2d 219, 1972 U.S. LEXIS 957 (U.S. 1972).

Research References and Practice Aids

Kentucky Law Journal.

Snyder and Irland, The Separation of Governmental Powers Under the Constitution of Kentucky: A Legal and Historical Analysis of L.R.C. v. Brown, 73 Ky. L.J. 165 (1984-85).

§ 211. Foreign railroad corporation may not condemn or acquire real estate.

No railroad corporation organized under the laws of any other State, or of the United States, and doing business, or proposing to do business, in this State, shall be entitled to the benefit of the right of eminent domain or have power to acquire the right of way or real estate for depot or other uses, until it shall have become a body corporate pursuant to and in accordance with the laws of this Commonwealth.

NOTES TO DECISIONS

Cross-References

Cross-References

See note to Const., § 202 under heading “3. Eminent Domain.”: Evansville & H. Raction Co. v. Henderson Bridge Co., 141 F. 51, 1905 U.S. App. LEXIS 3995 (6th Cir. Ky. 1905 ).

1.Purpose.

This section and Const., § 202 and statutes enacted pursuant thereto, were not designed to and do not impose upon foreign corporations any limitations or burdens not put upon domestic corporations. Plummer v. Chesapeake & O. R. Co., 143 Ky. 102 , 136 S.W. 162, 1911 Ky. LEXIS 361 ( Ky. 1911 ), overruled, Coleman v. Daniel, 292 Ky. 553 , 166 S.W.2d 978, 1942 Ky. LEXIS 113 ( Ky. 1942 ).

2.Construction.

The word corporation in this section refers to the corporation as a legal entity, and not to its individual stockholders. Lewis v. Maysville & B. S. R. Co., 76 S.W. 526, 25 Ky. L. Rptr. 948 (1903).

3.Application.

This section applies to every foreign railway corporation that owns and operates a railway in this state, whether the railway so owned and operated was constructed by the foreign corporation or purchased by it from a domestic or other foreign corporation. Plummer v. Chesapeake & O. R. Co., 143 Ky. 102 , 136 S.W. 162, 1911 Ky. LEXIS 361 ( Ky. 1911 ), overruled, Coleman v. Daniel, 292 Ky. 553 , 166 S.W.2d 978, 1942 Ky. LEXIS 113 ( Ky. 1942 ).

The trial court erred in its determination that section 200 of the Kentucky Constitution entitled defendant to continue to exercise the power of eminent domain and to bring this condemnation action without having complied with Section 211 of the Kentucky Constitution and KRS 277.020 (now repealed). Eaton Asphalt Paving Co. v. CSX Transp., 8 S.W.3d 878, 1999 Ky. App. LEXIS 31 (Ky. Ct. App. 1999).

4.Tramway.

A foreign timber corporation may not be denied the right to condemn land for an easement to build a tramway to move the timber as such a tramway is not a railroad and, therefore, not within the prohibition of this section. Goose Creek Lumber Co. v. White, 219 Ky. 739 , 294 S.W. 494, 1927 Ky. LEXIS 450 ( Ky. 1927 ).

5.Taxation.

A foreign corporation complying with this section and KRS 277.020 (now repealed) for the purpose of acquiring the right of eminent domain does not thereby become subject to taxation as a domestic corporation under KRS 136.060 . Vaughan v. Nashville, C. & S. L. Ry., 192 Ky. 137 , 232 S.W. 411, 1921 Ky. LEXIS 30 ( Ky. 1921 ).

6.Federal Jurisdiction.

Compliance with this section by a foreign railroad corporation does not deprive such corporation of the right to remove a suit against it by a citizen of Kentucky to the Federal court for diversity of citizenship. Davis's Adm'r v. Chesapeake & O. R. Co., 116 Ky. 144 , 75 S.W. 275, 25 Ky. L. Rptr. 342 , 1903 Ky. LEXIS 180 ( Ky. 1903 ).

This section and KRS 277.020 (now repealed) refer to a corporation as a legal entity and not to its stockholders and for the purposes of diversity of citizenship as a basis for removal of a cause of action to the federal court all stockholders of a nonresident corporation are presumed to be citizens of the state in which it was incorporated. Lewis v. Maysville & B. S. R. Co., 76 S.W. 526, 25 Ky. L. Rptr. 948 (1903).

Cited:

Newport News & Mississippi Val. Co. v. McDonald Brick Co.’s Assignee, 109 Ky. 408 , 22 Ky. L. Rptr. 934 , 59 S.W. 332, 1900 Ky. LEXIS 2 19 ( Ky. 1900 ); McCabe’s Adm’x v. Maysville & B. S. R. Co., 112 Ky. 861 , 23 Ky. L. Rptr. 2328 , 66 S.W. 1054, 1902 Ky. LEXIS 2 42 ( Ky. 1902 ); Commonwealth v. Chesapeake & O. R. Co., 116 Ky. 951 , 25 Ky. L. Rptr. 1126 , 77 S.W. 186, 1903 Ky. LEXIS 261 ( Ky. 1903 ); Evansville & H. Traction Co. v. Henderson Bridge Co., 132 F. 402, 1904 U.S. App. LEXIS 5010 (6th Cir. 1904); Chesapeake & O. R. Co. v. McCabe, 213 U.S. 207, 29 S. Ct. 430, 53 L. Ed. 765, 1909 U.S. LEXIS 1868 (1909); Murray v. Chesapeake & O. R. Co., 139 Ky. 379 , 115 S.W. 821, 1909 Ky. LEXIS 2 ( Ky. 1909 ).

Research References and Practice Aids

Cross-References.

Foreign railroad companies must incorporate in this state, KRS 277.020 (now repealed).

§ 212. Rolling stock, earnings, and personal property of railroads subject to execution or attachment.

The rolling stock and other movable property belonging to any railroad corporation or company in this State shall be considered personal property, and shall be liable to execution and sale in the same manner as the personal property of individuals. The earnings of any railroad company or corporation, and choses in action, money and personal property of all kinds belonging to it, in the hands, or under the control, of any officer, agent or employee of such corporation or company, shall be subject to process of attachment to the same extent and in the same manner, as like property of individuals when in the hands or under the control of other persons. Any such earnings, choses in action, money or other personal property may be subjected to the payment of any judgment against such corporation or company, in the same manner and to the same extent as such property of individuals in the hands of third persons.

NOTES TO DECISIONS

1.Construction.

This section’s recognition of rolling stock as personal property prevented court from holding personal property of railroad should be redeemable as real estate. Columbia Finance & T. Co. v. Kentucky Union R. Co., 60 F. 794, 1894 U.S. App. LEXIS 2140 (6th Cir. Ky. 1894 ).

Research References and Practice Aids

Cross-References.

Property of railroad subject to execution, KRS 426.180 .

§ 213. Railroad companies to handle traffic with connecting carriers without discrimination.

All railroad, transfer, belt lines and railway bridge companies organized under the laws of Kentucky, or operating, maintaining or controlling any railroad, transfer, belt lines or bridges, or doing a railway business in this State, shall receive, transfer, deliver and switch empty or loaded cars, and shall move, transport, receive, load or unload all the freight in car loads or less quantities, coming to or going from any railroad, transfer, belt line, bridge or siding thereon, with equal promptness and dispatch, and without any discrimination as to charges, preference, drawback or rebate in favor of any person, corporation, consignee or consignor, in any matter as to payment, transportation, handling or delivery; and shall so receive, deliver, transfer and transport all freight as above set forth, from and to any point where there is a physical connection between the tracks of said companies. But this section shall not be construed as requiring any such common carrier to allow the use of its tracks for the trains of another engaged in like business.

NOTES TO DECISIONS

1.Constitutionality.

Provision that carrier must deliver its cars to connecting carriers without providing adequate protection for their return, or compensation for their use, amounts to a taking of property without due process of law within United States Const., Amend. 14 and Const., §§ 213 and 214. Louisville & N. R. Co. v. Central Stock Yards Co., 212 U.S. 132, 29 S. Ct. 246, 53 L. Ed. 441, 1909 U.S. LEXIS 1802 (U.S. 1909).

2.Construction.

The constitutional provisions compelling one railway to receive and transfer over its line cars of another company, was not intended to compel a road to receive cars in a defective or unsafe condition. Louisville & N. R. Co. v. Williams, 95 Ky. 199 , 24 S.W. 1, 15 Ky. L. Rptr. 548 , 1893 Ky. LEXIS 137 ( Ky. 1893 ).

This section and Const., §§ 214, 215 and 216 are self-executing. Commonwealth v. Louisville & N. R. Co., 112 Ky. 75 , 65 S.W. 158, 23 Ky. L. Rptr. 1382 , 1901 Ky. LEXIS 288 ( Ky. 1901 ).

The Kentucky Constitution does not require a railroad having its own stockyards in Louisville, under lease, to accept livestock from other states for delivery at stockyards of another railroad in same neighborhood, although there is a physical connection between the two roads. Central Stock Yards Co. v. Louisville & N. R. Co., 192 U.S. 568, 24 S. Ct. 339, 48 L. Ed. 565, 1904 U.S. LEXIS 972 (U.S. 1904). See Louisville & N. R. Co. v. Central Stock Yards Co., 212 U.S. 132, 29 S. Ct. 246, 53 L. Ed. 441, 1909 U.S. LEXIS 1802 (U.S. 1909).

This section does not require that a railroad deliver its own cars to another road. Central Stock Yards Co. v. Louisville & N. R. Co., 192 U.S. 568, 24 S. Ct. 339, 48 L. Ed. 565, 1904 U.S. LEXIS 972 (U.S. 1904). See Louisville & N. R. Co. v. Central Stock Yards Co., 212 U.S. 132, 29 S. Ct. 246, 53 L. Ed. 441, 1909 U.S. LEXIS 1802 (U.S. 1909).

Cited:

Louisville & N. R. Co. v. Commonwealth, 108 Ky. 628 , 57 S.W. 508, 22 Ky. L. Rptr. 328 , 1900 Ky. LEXIS 101 ( Ky. 1900 ); Stites v. Norton, 125 Ky. 672 , 101 S.W. 1189, 31 Ky. L. Rptr. 263 , 1907 Ky. LEXIS 323 ( Ky. 1907 ); Devon v. Cincinnati, C. & E. R. Co., 128 Ky. 768 , 109 S.W. 361, 33 Ky. L. Rptr. 122 , 1908 Ky. LEXIS 97 ( Ky. 1908 ).

Research References and Practice Aids

Cross-References.

Regulation of transportation of freight and passengers by railroads to prevent unjust discrimination, Const., § 196.

Kentucky Law Journal.

Snyder and Irland, The Separation of Governmental Powers Under the Constitution of Kentucky: A Legal and Historical Analysis of L.R.C. v. Brown, 73 Ky. L.J. 165 (1984-85).

§ 214. Railroad not to make exclusive or preferential contract.

No railway, transfer, belt line or railway bridge company shall make any exclusive or preferential contract or arrangement with any individual, association or corporation, for the receipt, transfer, delivery, transportation, handling, care or custody of any freight, or for the conduct of any business as a common carrier.

NOTES TO DECISIONS

1.Constitutionality.

Provision that carrier must deliver its cars to connecting carriers without providing adequate protection for their return, or compensation for their use, amounts to a taking of property without due process of law within United States Const., Amend. 14 and Const., §§ 213 and 214. Louisville & N. R. Co. v. Central Stock Yards Co., 212 U.S. 132, 29 S. Ct. 246, 53 L. Ed. 441, 1909 U.S. LEXIS 1802 (U.S. 1909).

2.Construction.

This section and Const., §§ 215 and 216 are self-executing. Commonwealth v. Louisville & N. R. Co., 112 Ky. 75 , 65 S.W. 158, 23 Ky. L. Rptr. 1382 , 1901 Ky. LEXIS 288 ( Ky. 1901 ).

3.Taxicab Franchise.

This section does not apply to and does not prohibit a contract by a railroad which grants to a taxicab company the exclusive right to solicit on railroad premises the haulage of passengers and baggage. Black & White Taxicab & Transfer Co. v. Brown & Yellow Taxicab & Transfer Co., 15 F.2d 509, 1926 U.S. App. LEXIS 2925 (6th Cir. Ky. 1926 ), aff'd, 276 U.S. 518, 48 S. Ct. 404, 72 L. Ed. 681, 1928 U.S. LEXIS 96 (U.S. 1928).

A contract with a transfer company relating to transportation of passengers or baggage from station did not related to railroad’s business as a common carrier, and was not invalid. Black & White Taxicab & Transfer Co. v. Brown & Yellow Taxicab & Transfer Co., 276 U.S. 518, 48 S. Ct. 404, 72 L. Ed. 681, 1928 U.S. LEXIS 96 (U.S. 1928).

A contract by a railroad company granting to a taxicab company the exclusive privilege of entering and using the railroad’s depot to solicit transportation therefrom of passengers and baggage is not invalidated by this section since such contract was not an extension of its business as a common carrier. Yellow Cab Co. v. Murphy, 243 S.W.2d 42, 1951 Ky. LEXIS 1116 ( Ky. 1951 ).

4.Preferential Rates.

Contracts between carrier and shipper for a preferential rate are inoperative and void. Chesapeake & O. R. Co. v. Maysville Brick Co., 132 Ky. 643 , 116 S.W. 1183, 1909 Ky. LEXIS 139 ( Ky. 1909 ). See Louisville & N. R. Co. v. Coquillard Wagon Works' Assignees, 147 Ky. 530 , 144 S.W. 1080, 1912 Ky. LEXIS 307 ( Ky. 1912 ); Louisville & N. R. Co. v. Allen, 152 Ky. 145 , 153 S.W. 198, 1913 Ky. LEXIS 618 ( Ky. 1913 ); Tobacco By-Products & Chemical Corp. v. Western Dark Fired Tobacco Growers Ass'n, 280 Ky. 469 , 133 S.W.2d 723, 1939 Ky. LEXIS 153 ( Ky. 1939 ).

In view of this section the director general of railroads could collect the balance due on freight where the shipper had been billed at less than the promulgated rate although such collection might, by virtue of price regulation, result in sale of the goods shipped at a loss. Davis v. Moody, 203 Ky. 203 , 261 S.W. 1101, 1924 Ky. LEXIS 867 ( Ky. 1924 ).

Where seller contracted to ship goods in carloads of not less than 40,000 lbs., in order to secure lower freight rate, and seller shipped goods in smaller loads under alleged agreement with railroad to receive same rate, which agreement was void because agreed rate was not a regular tariff rate, purchaser was not estopped to recover differential even though he accepted shipments with knowledge of agreement and paid higher rate. Tobacco By-Products & Chemical Corp. v. Western Dark Fired Tobacco Growers Ass'n, 280 Ky. 469 , 133 S.W.2d 723, 1939 Ky. LEXIS 153 ( Ky. 1939 ).

5.Spur Tracks.

Although a railroad may refuse to carry freight within its switching yard facilities necessary to the handling, storage and distribution of its cars and freight, where it maintains a system of spur tracks connecting various industrial facilities it must haul freight thereto for all shippers alike, and may not evade this obligation by designating such facilities as within its yard or switching limits. Crescent Coal Co. v. Louisville & N. R. Co., 143 Ky. 73 , 135 S.W. 768, 1911 Ky. LEXIS 335 ( Ky. 1911 ).

A railroad is under the same obligation to afford its facilities to shippers connected to its facilities by spur tracks as it is to those connected to its main lines. Crescent Coal Co. v. Louisville & N. R. Co., 143 Ky. 73 , 135 S.W. 768, 1911 Ky. LEXIS 335 ( Ky. 1911 ).

6.Classification of Freight.

Although a railroad may fix a schedule of reasonable rates for carrying freight on its lines based on different classifications of freight, where no such schedule has been established it must haul freight of differing categories at the same rate for all shippers demanding it, and it cannot justify a higher rate for one category of freight, while hauling other freight at a lower rate, by contending that in the case of the latter it receives a second freight haul of the manufactured product of such freight. Crescent Coal Co. v. Louisville & N. R. Co., 143 Ky. 73 , 135 S.W. 768, 1911 Ky. LEXIS 335 ( Ky. 1911 ).

Cited:

Louisville & N. R. Co. v. Commonwealth, 108 Ky. 628 , 57 S.W. 508, 22 Ky. L. Rptr. 328 , 1900 Ky. LEXIS 101 ( Ky. 1900 ); Commonwealth v. Louisville & N. R. Co., 68 S.W. 1103, 24 Ky. L. Rptr. 509 , 1902 Ky. LEXIS 450 (Ky. Ct. App. 1902); Stites v. Norton, 125 Ky. 672 , 101 S.W. 1189, 31 Ky. L. Rptr. 263 , 1907 Ky. LEXIS 323 ( Ky. 1907 ); Devon v. Cincinnati, C. & E. R. Co., 128 Ky. 768 , 109 S.W. 361, 33 Ky. L. Rptr. 122 , 1908 Ky. LEXIS 97 ( Ky. 1908 ); Hughes Transp., Inc. v. United States, 121 F. Supp. 212, 128 Ct. Cl. 221, 1954 U.S. Ct. Cl. LEXIS 129 (Ct. Cl. 1954).

§ 215. Freight to be handled without discrimination.

All railway, transfer, belt lines or railway bridge companies shall receive, load, unload, transport, haul, deliver and handle freight of the same class for all persons, associations or corporations from and to the same points and upon the same conditions, in the same manner and for the same charges, and for the same method of payment.

NOTES TO DECISIONS

Cross-References

Cross-References

See note to Const., § 213 under heading “2. Construction.”: Commonwealth v. Louisville & N. R. Co., 112 Ky. 75 , 65 S.W. 158, 23 Ky. L. Rptr. 1382 , 1901 Ky. LEXIS 288 ( Ky. 1901 ).

1.Construction.

There can be no violation of this section unless different charges are made for transporting freight of the same class to and from the same points upon the same conditions. Louisville & N. R. Co. v. Commonwealth, 105 Ky. 179 , 48 S.W. 416, 20 Ky. L. Rptr. 1099 , 1898 Ky. LEXIS 245 ( Ky. 1898 ).

Const. § 196 authorizes the legislature to prescribe other circumstances and conditions than those prescribed by this section, in which carriers may discriminate in respect to charges for transportation, being a recognition of the propriety of authorizing discrimination deemed just. Louisville & N. R. Co. v. Commonwealth, 104 Ky. 226 , 46 S.W. 707, 20 Ky. L. Rptr. 1380 , 1898 Ky. LEXIS 151 ( Ky. 1898 ).

2.Classification of Freight.

Charge by a carrier of a lesser rate for hauling coal used for manufacturing purposes than for coal used for other purposes does not violate this section since the fact that the carrier receives the manufactured product in return shipment constitutes a sufficient difference in conditions to justify a difference in rates. Louisville & N. R. Co. v. Commonwealth, 108 Ky. 628 , 57 S.W. 508, 22 Ky. L. Rptr. 328 , 1900 Ky. LEXIS 101 ( Ky. 1900 ).

This section does not prohibit a carrier charging more to ship a high grade of coal for domestic purposes that to ship a low grade of coal for steam purposes. Commonwealth v. Louisville & N. R. Co., 68 S.W. 1103, 24 Ky. L. Rptr. 509 , 1902 Ky. LEXIS 450 (Ky. Ct. App. 1902).

Although a railroad may fix a schedule of reasonable rates for carrying freight on its lines based on different classifications of freight, where no such schedule has been established it must haul freight of differing categories at the same rate for all shippers demanding it, and it cannot justify a higher rate for one category of freight, while hauling other freight at a lower rate, by contending that in the case of the latter it receives a second freight haul of the manufactured product of such freight. Crescent Coal Co. v. Louisville & N. R. Co., 143 Ky. 73 , 135 S.W. 768, 1911 Ky. LEXIS 335 ( Ky. 1911 ).

A railroad cannot refuse to carry a particular category of freight upon lines where other freight is hauled on the ground that it has never before hauled that type of freight on such lines. Crescent Coal Co. v. Louisville & N. R. Co., 143 Ky. 73 , 135 S.W. 768, 1911 Ky. LEXIS 335 ( Ky. 1911 ).

3.Spur Tracks.

Although a railroad may refuse to carry freight within its switching yard facilities necessary to the handling, storage and distribution of its cars and freight, where it maintains a system of spur tracks connecting various industrial facilities it must haul freight thereto for all shippers alike, and may not evade this obligation by designating such facilities as within its yard or switching limits. Crescent Coal Co. v. Louisville & N. R. Co., 143 Ky. 73 , 135 S.W. 768, 1911 Ky. LEXIS 335 ( Ky. 1911 ).

A railroad is under the same obligation to afford its facilities to shippers connected to its facilities by spur tracks as it is to those connected to its main lines. Crescent Coal Co. v. Louisville & N. R. Co., 143 Ky. 73 , 135 S.W. 768, 1911 Ky. LEXIS 335 ( Ky. 1911 ).

A railroad company owes to establishments connected with its line by spur track the same duty to furnish shipping facilities as it does to persons whose shipments are situated immediately on its main road. Louisville & N. R. Co. v. Higdon, 149 Ky. 321 , 148 S.W. 26, 1912 Ky. LEXIS 599 ( Ky. 1912 ), aff'd, 234 U.S. 592, 34 S. Ct. 948, 58 L. Ed. 1484, 1914 U.S. LEXIS 1111 (U.S. 1914).

4.Special Carrier.

Where a carrier hold itself out as only engaged in the carriage of specified articles, it is under no obligation to carry other things. Louisville & N. R. Co. v. Higdon, 149 Ky. 321 , 148 S.W. 26, 1912 Ky. LEXIS 599 ( Ky. 1912 ), aff'd, 234 U.S. 592, 34 S. Ct. 948, 58 L. Ed. 1484, 1914 U.S. LEXIS 1111 (U.S. 1914).

5.Reasonable and Usual Rate.

Where a common carrier accepts freight without special contract as to the rate to be charged, the law implies an undertaking to charge the usual rate. Thomas v. Frankfort & C. R. Co., 116 Ky. 879 , 76 S.W. 1093, 25 Ky. L. Rptr. 1051 , 1903 Ky. LEXIS 256 ( Ky. 1903 ).

If a carrier has no established rate which covers the service requested, it is bound to fix a reasonable rate therefor. Louisville & N. R. Co. v. Higdon, 149 Ky. 321 , 148 S.W. 26, 1912 Ky. LEXIS 599 ( Ky. 1912 ), aff'd, 234 U.S. 592, 34 S. Ct. 948, 58 L. Ed. 1484, 1914 U.S. LEXIS 1111 (U.S. 1914).

6.Through Rates.

Shipment under a bill of lading to a point several miles from the nearest station of the railroad, the shipment being picked up at the station by a freight wagon hauler with whom the railroad had no contract and hauled to the point of destination, constitutes a through shipment for which the railroad was entitled to charge less than the sum of the local freight rates. Southern R. Co. v. Commonwealth, 116 Ky. 907 , 77 S.W. 207, 25 Ky. L. Rptr. 1078 , 1903 Ky. LEXIS 266 ( Ky. 1903 ).

This section does not prohibit a carrier from charging for freight a through rate which is less than the sum of the local rates between two (2) points. Southern R. Co. v. Commonwealth, 116 Ky. 907 , 77 S.W. 207, 25 Ky. L. Rptr. 1078 , 1903 Ky. LEXIS 266 ( Ky. 1903 ).

7.Invalid Contracts.

The provisions of this section prohibit enforcement of specific performance of a contract whereby the purchaser of an easement, in consideration thereof, agrees that freight of the landowner shall be carried free of charge, but, upon refusal to carry such freight free of charge, the failure to do so amounts to an unpaid consideration for the easement which remains a lien thereon and the landowner may recover in damages his losses resulting from the refusal to transport his freight without charge. Hurley v. Big Sandy & C. R. Co., 137 Ky. 216 , 125 S.W. 302, 1910 Ky. LEXIS 560 ( Ky. 1910 ).

8.Wilful Violation.

Under this section and Const., § 217 it is essential that the offense of unjust discrimination be wilfully and knowingly committed. Louisville & N. R. Co. v. Commonwealth, 105 Ky. 179 , 48 S.W. 416, 20 Ky. L. Rptr. 1099 , 1898 Ky. LEXIS 245 ( Ky. 1898 ).

9.Indictment.

An indictment for violation of this section should set out the points from and to which the goods are shipped. Louisville & N. R. Co. v. Commonwealth, 108 Ky. 628 , 57 S.W. 508, 22 Ky. L. Rptr. 328 , 1900 Ky. LEXIS 101 ( Ky. 1900 ).

The provisions of Const., § 217 as to the power of the attorney general in cases of violation of this section do not preclude indicting a carrier for such violations. Louisville & N. R. Co. v. Commonwealth, 108 Ky. 628 , 57 S.W. 508, 22 Ky. L. Rptr. 328 , 1900 Ky. LEXIS 101 ( Ky. 1900 ).

Under this section and Const., § 217 a carrier may be indicted in the absence of any action by the Railroad Commission. Commonwealth v. Louisville & N. R. Co., 112 Ky. 75 , 65 S.W. 158, 23 Ky. L. Rptr. 1382 , 1901 Ky. LEXIS 288 ( Ky. 1901 ).

An indictment for violation under this section, which fails to allege that the discriminative rates were charged for services to the different persons upon the same conditions, is fatally defective. Commonwealth v. Chesapeake & O. R. Co., 72 S.W. 758, 24 Ky. L. Rptr. 1887 , 1903 Ky. LEXIS 421 (Ky. Ct. App. 1903).

An indictment under this section must charge that the services involved were all on the same conditions. Commonwealth v. Chesapeake & O. R. Co., 72 S.W. 360, 24 Ky. L. Rptr. 1886 , 1903 Ky. LEXIS 444 (Ky. Ct. App. 1903).

10.Invalid Statutes.

Statute making it unlawful for any corporation to make or give any undue or unreasonable preference or advantage to any particular person or locality, or any particular description of traffic, in the transportation of a like kind of traffic, was void for uncertainty. Louisville & N. R. Co. v. Commonwealth, 104 Ky. 226 , 46 S.W. 707, 20 Ky. L. Rptr. 1380 , 1898 Ky. LEXIS 151 ( Ky. 1898 ).

Insofar as KRS 276.290 and 276.300 (both now repealed) conflict with this section they are void. Commonwealth v. Louisville & N. R. Co., 112 Ky. 75 , 65 S.W. 158, 23 Ky. L. Rptr. 1382 , 1901 Ky. LEXIS 288 ( Ky. 1901 ).

Cited:

Stites v. Norton, 125 Ky. 672 , 101 S.W. 1189, 31 Ky. L. Rptr. 263 , 1907 Ky. LEXIS 323 ( Ky. 1907 ); Devon v. Cincinnati, C. & E. R. Co., 128 Ky. 768 , 109 S.W. 361, 33 Ky. L. Rptr. 122 , 1908 Ky. LEXIS 97 ( Ky. 1908 ).

§ 216. Railroad must allow tracks of others to cross or unite.

All railway, transfer, belt lines and railway bridge companies shall allow the tracks of each other to unite, intersect and cross at any point where such union, intersection and crossing is reasonable or feasible.

NOTES TO DECISIONS

1.Construction.

This section is self-executing and fully and sufficiently defines the acts constituting an offense thereunder and prescribes the penalty to be imposed by a court of competent jurisdiction. Commonwealth v. Louisville & N. R. Co., 112 Ky. 75 , 65 S.W. 158, 23 Ky. L. Rptr. 1382 , 1901 Ky. LEXIS 288 ( Ky. 1901 ).

2.Street and Electric Railroads.

This section applies to street or electric railways, as well as to steam railroads. Elizabethtown, L. & B. S. R. Co. v. Ashland & C. S. R. Co., 96 Ky. 347 , 26 S.W. 181, 16 Ky. L. Rptr. 42 , 1894 Ky. LEXIS 79 ( Ky. 1894 ). See Louisville & N. R. Co. v. Bowling G. R. Co., 110 Ky. 788 , 63 S.W. 4, 23 Ky. L. Rptr. 273 , 1901 Ky. LEXIS 158 ( Ky. 1901 ); Owensboro C. R. Co. v. Louisville, H. & S. L. R. Co., 165 Ky. 683 , 178 S.W. 1043, 1915 Ky. LEXIS 592 ( Ky. 1915 ).

3.Torts of Crossing Railroads.

Plaintiff railroad granted defendant railroad permission to cross plaintiff’s track at a place where right of way belonged to plaintiff, on condition defendant be liable for all damages by reason of failure of its employees to stop its cars before crossing, to avoid collisions, therefore as defendant could not have crossed plaintiff’s tracks without making compensation, defendant’s contract was not without consideration, and plaintiff could recover damages for injuries to rolling stock owing to defendant’s employees failing to stop a car before making the crossing. Owensboro C. R. Co. v. Louisville & N. R. Co., 94 S.W. 22, 29 Ky. L. Rptr. 596 , 1906 Ky. LEXIS 338 (Ky. Ct. App. 1906).

As railroad, under this section, could not prevent building of switch, it was not responsible for resulting injury. Louisville & N. R. Co. v. Commonwealth, 101 S.W. 382, 31 Ky. L. Rptr. 65 (1907). See Chesapeake & O. R. Co. v. Caldwell, 213 Ky. 410 , 281 S.W. 176, 1926 Ky. LEXIS 530 ( Ky. 1926 ).

4.Contracts for Maintenance.

This section does not render agreements between street railway and railroad concerning maintenance of crossings unenforceable for want of consideration. Louisville Transit Co. v. Louisville & N. R. Co., 253 S.W.2d 240, 1952 Ky. LEXIS 1069 ( Ky. 1952 ).

5.Indictment.

Under this section and Const., § 217 a carrier may be indicted in the absence of any action by the railroad commission. Commonwealth v. Louisville & N. R. Co., 112 Ky. 75 , 65 S.W. 158, 23 Ky. L. Rptr. 1382 , 1901 Ky. LEXIS 288 ( Ky. 1901 ).

Cited:

Evansville & H. Traction Co. v. Henderson Bridge Co., 134 F. 973, 1904 U.S. App. LEXIS 5177 (6th Cir. 1904); Louisville & N. R. Co. v. Commonwealth, 108 Ky. 628 , 22 Ky. L. Rptr. 328 , 57 S.W. 508, 1900 Ky. LEXIS 101 ( Ky. 1900 ); Louisville & N. R. Co. v. Central Stock Yards Co., 133 Ky. 148 , 30 Ky. L. Rptr. 18 , 97 S.W. 778, 1906 Ky. LEXIS 276 ( Ky. 1906 ); Devon v. Cincinnati, C. & E. R. Co., 128 Ky. 768 , 33 Ky. L. Rptr. 122 , 109 S.W. 361, 1908 Ky. LEXIS 97 ( Ky. 1908 ).

§ 217. Penalties for violating Sections 213, 214, 215, or 216 — Attorney General to enforce.

Any person, association or corporation, willfully or knowingly violating any of the provisions of Sections 213, 214, 215, or 216, shall, upon conviction by a court of competent jurisdiction, for the first offense be fined two thousand dollars; for the second offense, five thousand dollars; and for the third offense, shall thereupon, ipso facto, forfeit its franchises, privileges or charter rights; and if such delinquent be a foreign corporation, it shall, ipso facto, forfeit its right to do business in this State; and the Attorney-General of the Commonwealth shall forthwith, upon notice of the violation of any of said provisions, institute proceedings to enforce the provisions of the aforesaid sections.

NOTES TO DECISIONS

1.Construction.

This section and Const., § 215 are fixed and self-executing and statutory provisions defining and fixing punishment for the offense of unjust discrimination at variance therewith are void. Louisville & N. R. Co. v. Commonwealth, 105 Ky. 179 , 48 S.W. 416, 20 Ky. L. Rptr. 1099 , 1898 Ky. LEXIS 245 ( Ky. 1898 ).

2.Indictment.

The provisions of this section that the Attorney General shall enforce the provisions of Const., §§ 213, 214, 215 and 216 does not exempt a carrier from indictment for a violation of this section, although the proceedings were not instituted by the Attorney General. Louisville & N. R. Co. v. Commonwealth, 108 Ky. 628 , 57 S.W. 508, 22 Ky. L. Rptr. 328 , 1900 Ky. LEXIS 101 ( Ky. 1900 ).

Under this section a carrier may be indicted for a violation of Const., §§ 213, 214, 215 and 216 in the absence of any action by the Railroad Commission. Commonwealth v. Louisville & N. R. Co., 112 Ky. 75 , 65 S.W. 158, 23 Ky. L. Rptr. 1382 , 1901 Ky. LEXIS 288 ( Ky. 1901 ).

Cited:

Southern R. Co. v. Commonwealth, 116 Ky. 907 , 25 Ky. L. Rptr. 1078 , 77 S.W. 207, 1903 Ky. LEXIS 266 ( Ky. 1903 ).

§ 218. Long and short hauls.

It shall be unlawful for any person or corporation, owning or operating a railroad in this State, or any common carrier, to charge or receive any greater compensation in the aggregate for the transportation of passengers, or of property of like kind, under substantially similar circumstances and conditions, for a shorter than for a longer distance over the same line, in the same direction, the shorter being included within the longer distance; but this shall not be construed as authorizing any common carrier, or person or corporation, owning or operating a railroad in this State, to receive as great compensation for a shorter as for a longer distance: Provided, That upon application to the state agency as may have jurisdiction over such matters, such common carrier, or person or corporation owning or operating a railroad in this State, may in special cases, after investigation by the appropriate state agency, be authorized to charge less for longer than for shorter distances for the transportation of passengers, or property; and the appropriate state agency may, from time to time, prescribe the extent to which such common carrier, or person or corporation, owning or operating a railroad in this State, may be relieved from the operation of this section.

History. Amendment proposed by Acts 2000, ch. 407, § 1, ratified November, 2000.

Compiler’s Notes.

The General Assembly in 2000 (Acts 2000, ch. 407, § 1) proposed an amendment to the Constitution which amendment was ratified by the voters at the regular election in November, 2000. Prior to the amendment the section read:

§ 218. Long and short hauls. — It shall be unlawful for any person or corporation, owning or operating a railroad in this State, or any common carrier, to charge or receive any greater compensation in the aggregate for the transportation of passengers, or of property of like kind, under substantially similar circumstances and conditions, for a shorter than for a longer distance over the same line, in the same direction, the shorter being included within the longer distance; but this shall not be construed as authorizing any common carrier, or person or corporation, owning or operating a railroad in this State, to receive as great compensation for a shorter as for a longer distance: Provided, That upon application to the Railroad Commission, such common carrier, or person or corporation owning or operating a railroad in this State, may in special cases, after investigation by the Commission, be authorized to charge less for longer than for shorter distances for the transportation of passengers, or property; and the Commission may, from time to time, prescribe the extent to which such common carrier, or person or corporation, owning or operating a railroad in this State, may be relieved from the operation of this section.”

An amendment to this section was proposed by the 1992 General Assembly (Acts 1992, ch. 112, § 5) and was submitted to the voters for ratification or rejection at the regular election on November 3, 1992 and was defeated.

NOTES TO DECISIONS

1.Constitutionality.

This section is not void for interference with interstate commerce, as its provisions do not embrace interstate traffic. Louisville & N. R. Co. v. Kentucky, 161 U.S. 677, 16 S. Ct. 714, 40 L. Ed. 849, 1896 U.S. LEXIS 2194 (U.S. 1896).

This section, as applied to places all of which are within the state, violates no provision of the federal Constitution. Louisville & N. R. Co. v. Kentucky, 183 U.S. 503, 22 S. Ct. 95, 46 L. Ed. 298, 1902 U.S. LEXIS 727 (U.S. 1902).

The provisions of this section cannot be applied to carriage from without the state to points within; this would be a regulation of interstate commerce and invalid. Louisville & N. R. Co. v. Eubank, 184 U.S. 27, 22 S. Ct. 277, 46 L. Ed. 416, 1902 U.S. LEXIS 2316 (U.S. 1902).

Neither this section nor KRS 276.230 (now repealed) are in conflict with the United States Constitution or statutes. Illinois Cent. R.R. v. Commonwealth, 63 S.W. 448, 23 Ky. L. Rptr. 544 (1901).

2.Construction.

This section is restricted in its operation to those who own or operate a railroad within the state, and the long and short distance mentioned are evidently distance upon the railroad line within the state. Louisville & N. R. Co. v. Kentucky, 161 U.S. 677, 16 S. Ct. 714, 40 L. Ed. 849, 1896 U.S. LEXIS 2194 (U.S. 1896).

This section does not apply unless the short-haul distance is included within the long-haul distance and is not violated where the long haul is entirely on the main line but the short haul originates on a branch line. Louisville & N. R. Co. v. Walker, 110 Ky. 961 , 63 S.W. 20, 23 Ky. L. Rptr. 453 , 1901 Ky. LEXIS 159 ( Ky. 1901 ).

A joint traffic agreement whereby connecting carriers haul from a point on one road to a point on the other for less than the first carrier charges from the same point on its road to its terminus, (a shorter distance between the two points), is not in violation of this section and KRS 276.230 (now repealed). Commonwealth v. Chesapeake & O. R. Co., 115 Ky. 57 , 72 S.W. 361, 1903 Ky. LEXIS 72 ( Ky. 1903 ).

3.Order of Railroad Commission.

The fact that competition exists at the point where a long haul is made does not authorize a carrier to charge more for a short haul over the same line without the permission of the Railroad Commission. Hutcheson v. Louisville & N. R. Co., 108 Ky. 615 , 57 S.W. 251, 22 Ky. L. Rptr. 361 , 1900 Ky. LEXIS 86 ( Ky. 1900 ).

The Railroad Commission may relieve a carrier from the operation of this section and KRS 276.230 (now repealed) with regard to the transportation of a given commodity between certain points. Illinois Cent. R.R. v. Commonwealth, 63 S.W. 448, 23 Ky. L. Rptr. 544 (1901).

4.Jurisdiction of Courts.

Since the questions of when and under what circumstances a carrier may properly charge more for a short than a long haul were not matters of judicial cognizance at common law, the constitutional right of due process does not require them to be tried by the courts, and the state has the right, in the exercise of its police power, to relegate such decisions to the Railroad Commission, and make its decisions on such questions final. Illinois Cent. R.R. v. Commonwealth, 64 S.W. 975, 23 Ky. L. Rptr. 1159 , 1901 Ky. LEXIS 622 (1901).

5.Excess Charges.

A carrier charging more for a short than a long haul in violation of this section is liable in damages to the shipper for the excess charged. Louisville & N. R. Co. v. Walker, 110 Ky. 961 , 63 S.W. 20, 23 Ky. L. Rptr. 453 , 1901 Ky. LEXIS 159 ( Ky. 1901 ).

Where an excess charge is made by a carrier in violation of this section, the shipper is conclusively presumed to have been damaged to the extent of the excess. Hutcheson v. Louisville, & N. R. Co., 63 S.W. 33, 22 Ky. L. Rptr. 1871 (1901).

6.— Civil Liability.

Where a shipper is charged more for a short haul than a long haul by a carrier in violation of this section he may maintain a suit for damages against the carrier, although the implementing statute provides only for the indictment of the carrier. Hutcheson v. Louisville & N. R. Co., 108 Ky. 615 , 57 S.W. 251, 22 Ky. L. Rptr. 361 , 1900 Ky. LEXIS 86 ( Ky. 1900 ).

An action of the Railroad Commission exonerating a carrier from the operation of this section is not retrospective and does not relieve the carrier of liability to shippers previously incurred by violating this section. Louisville & N. R. Co. v. Vancleave, 110 Ky. 968 , 63 S.W. 22, 23 Ky. L. Rptr. 479 , 1901 Ky. LEXIS 160 ( Ky. 1901 ).

7.Indictment.

Under this section and KRS 276.230 (now repealed) a carrier may be indicted for charging more for a short haul than a long haul, although no recommendation for an indictment was made by the Railroad Commission. Illinois C. R. Co. v. Commonwealth, 63 S.W. 448, 23 Ky. L. Rptr. 544 (1901).

Under this section and KRS 276.230 (now repealed) no indictment may be returned by a grand jury against a carrier for a violation of the statute until the Railroad Commission has refused to exonerate the carrier. Illinois Cent. R.R. v. Commonwealth, 64 S.W. 975, 23 Ky. L. Rptr. 1159 , 1901 Ky. LEXIS 622 (1901).

An investigation and decision adverse to the carrier by the Railroad Commission are necessary in every case as a condition precedent before an indictment can be had against the carrier under this section and KRS 276.230 (now repealed) and no decision by the Railroad Commission in such case may be projected into the future. Louisville & N. R. Co. v. Commonwealth, 114 Ky. 787 , 71 S.W. 910, 24 Ky. L. Rptr. 1593 , 24 Ky. L. Rptr. 1779 , 1903 Ky. LEXIS 40 ( Ky. 1903 ).

An order of the Railroad Commission refusing to exonerate a carrier and recommending that it be indicted under this section and KRS 276.230 (now repealed) for certain specifically named shipments may not be made the basis for indictments for subsequent shipments. Louisville & N. R. Co. v. Commonwealth, 114 Ky. 787 , 71 S.W. 910, 24 Ky. L. Rptr. 1593 , 24 Ky. L. Rptr. 1779 , 1903 Ky. LEXIS 40 ( Ky. 1903 ).

8.Statutes.
9.— Valid.

KRS 276.230 (now repealed) does not violate this section when construed to require that the Railroad Commission refuse to exonerate a carrier from the operation of this section before an indictment may be returned against it under the statute. Illinois Cent. R.R. v. Commonwealth, 64 S.W. 975, 23 Ky. L. Rptr. 1159 , 1901 Ky. LEXIS 622 (1901).

KRS 276.330 and 276.340 (both now repealed), providing for hearing and settlement by the Railroad Commission of excessive rate complaints, do not violate this section. Louisville & N. R. Co. v. Greenbrier Distillery Co., 170 Ky. 775 , 187 S.W. 296, 1916 Ky. LEXIS 144 ( Ky. 1916 ).

10.— Invalid.

Insofar as KRS 276.290 and 276.300 (both now repealed) conflict with this section they are void. Commonwealth v. Louisville & N. R. Co., 112 Ky. 75 , 65 S.W. 158, 23 Ky. L. Rptr. 1382 , 1901 Ky. LEXIS 288 ( Ky. 1901 ).

Cited:

McChord v. Louisville & N. R. Co., 183 U.S. 483, 22 S. Ct. 165, 46 L. Ed. 289, 1902 U.S. LEXIS 726 (1902); Louisville & N. R. Co. v. Garrett, 231 U.S. 298, 34 S. Ct. 48, 58 L. Ed. 229, 1913 U.S. LEXIS 2567 (1913); Louisville & N. R. Co. v. Siler, 186 F. 176, 1911 U.S. App. LEXIS 5131 (6th Cir. 1911); Louisville & N. R. Co. v. Kentucky R. Com., 214 F. 465, 1914 U.S. Dist. LEXIS 1823 (D. Ky. 1914 ); Louisville & N. R. Co. v. Commonwealth, 105 Ky. 179 , 20 Ky. L. Rptr. 1099 , 48 S.W. 416, 1898 Ky. LEXIS 245 ( Ky. 1898 ); Newport News & Mississippi Val. Co. v. McDonald Brick Co.’s Assignee, 109 Ky. 408 , 22 Ky. L. Rptr. 934 , 59 S.W. 332, 1900 Ky. LEXIS 219 ( Ky. 1900 ); Regenhardt Const. Co. v. Southern Ry. in Kentucky, Inc., 297 Ky. 840 , 181 S.W.2d 441, 1944 Ky. LEXIS 830 ( Ky. 1944 ).

THE MILITIA

§ 219. Militia, what to consist of.

The militia of the Commonwealth of Kentucky shall consist of all able-bodied male residents of the State between the ages of eighteen and forty-five years, except such persons as may be exempted by the laws of the State or of the United States.

NOTES TO DECISIONS

1.Construction.

The organized state militia is exclusively a state function which in no way relates to the functions or responsibilities of the counties. Commonwealth ex rel. Attorney Gen. v. Sparks, 201 Ky. 5 , 255 S.W. 859, 1923 Ky. LEXIS 218 ( Ky. 1923 ).

Research References and Practice Aids

Cross-References.

Who constitute active militia, KRS 37.170 .

§ 220. General Assembly to provide for militia — Exemptions from service.

The General Assembly shall provide for maintaining an organized militia, and may exempt from military service persons having conscientious scruples against bearing arms; but such persons shall pay an equivalent for such exemption.

NOTES TO DECISIONS

1.Obligations of County.

Although the organization of a militia company must be approved by the county judge, the county does not thereby obligate itself to construct an armory as required by statute, since the militia is strictly a state function. Commonwealth ex rel. Attorney Gen. v. Sparks, 201 Ky. 5 , 255 S.W. 859, 1923 Ky. LEXIS 218 ( Ky. 1923 ).

The General Assembly may not impose on a county the duty of maintaining, at the cost of the county, an armory for the use of the militia. Commonwealth ex rel. Attorney Gen. v. Sparks, 201 Ky. 5 , 255 S.W. 859, 1923 Ky. LEXIS 218 ( Ky. 1923 ).

Cited:

James v. Walker, 147 Ky. 646 , 144 S.W. 744, 1912 Ky. LEXIS 286 ( Ky. 1912 ); Jones v. Crittenden, 96 S.W.3d 13, 2002 Ky. LEXIS 235 ( Ky. 2002 ).

Research References and Practice Aids

Cross-References.

Active militia, KRS ch. 37.

National guard, KRS ch. 38.

§ 221. Government of militia to conform to Army regulations.

The organization, equipment and discipline of the militia shall conform as nearly as practicable to the regulations for the government of the armies of the United States.

NOTES TO DECISIONS

1.Valid Statutes.

A statute providing that commissioned officers of the state militia shall be paid the same as corresponding ranks in the United States army is constitutional as in compliance with this section. James v. Walker, 141 Ky. 88 , 132 S.W. 149, 1910 Ky. LEXIS 404 ( Ky. 1910 ), rehearing denied, 147 Ky. 646 , 144 S.W. 744, 1912 Ky. LEXIS 286 ( Ky. 1912 ), opinion extended, James v. Walker, 147 Ky. 646 , 144 S.W. 744, 1912 Ky. LEXIS 286 ( Ky. 1912 ).

Cited:

Commonwealth ex rel. Attorney Gen. v. Sparks, 201 Ky. 5 , 255 S.W. 859, 1923 Ky. LEXIS 218 ( Ky. 1923 ); Jones v. Crittenden, 96 S.W.3d 13, 2002 Ky. LEXIS 235 ( Ky. 2002 ).

Research References and Practice Aids

Cross-References.

Military justice, KRS ch. 35.

§ 222. Officers of militia — Adjutant General.

All militia officers whose appointment is not herein otherwise provided for, shall be elected by persons subject to military duty within their respective companies, battalions, regiments or other commands, under such rules and regulations and for such terms, not exceeding four years, as the General Assembly may, from time to time, direct and establish. The Governor shall appoint an Adjutant-General and his other staff officers; the generals and commandants of regiments and battalions shall respectively appoint their staff officers, and the commandants of companies shall, subject to the approval of their regimental or battalion commanders, appoint their noncommissioned officers. The Governor shall have power to fill vacancies that may occur in elective offices by granting commissions which shall expire when such vacancies have been filled according to the provisions of this Constitution.

NOTES TO DECISIONS

Cited:

Sibert v. Garrett, 197 Ky. 17 , 246 S.W. 455, 1922 Ky. LEXIS 639 ( Ky. 1922 ); Commonwealth ex rel. Attorney Gen. v. Sparks, 201 Ky. 5 , 255 S.W. 859, 1923 Ky. LEXIS 218 ( Ky. 1923 ); Furste v. Gray, 240 Ky. 604 , 42 S.W.2d 889, 1931 Ky. LEXIS 458 ( Ky. 1931 ).

Research References and Practice Aids

Cross-References.

Adjutant general, KRS 36.020 to 36.050 .

Governor is commander-in-chief of militia, Const., § 75.

Officers of active militia, KRS 37.200 .

Officers of department of military affairs, KRS 36.110 to 36.140 .

Officers of national guard, KRS 38.040 to 38.130 .

§ 223. Safekeeping of public arms, military records, relics, and banners.

The General Assembly shall provide for the safekeeping of the public arms, military records, relics and banners of the Commonwealth of Kentucky.

NOTES TO DECISIONS

Cited:

Commonwealth ex rel. Attorney Gen. v. Sparks, 201 Ky. 5 , 255 S.W. 859, 1923 Ky. LEXIS 218 ( Ky. 1923 ).

Research References and Practice Aids

Cross-References.

Adjutant general to keep arms, records, relics and banners, KRS 36.040 .

GENERAL PROVISIONS

§ 224. Bonds — What officers to give — Liability on.

The General Assembly shall provide by a general law what officers shall execute bond for the faithful discharge of their duties, and fix the liability therein.

Opinions of Attorney General.

The auxiliary police as a part of a county or city civil defense organization or unit are not required to furnish any type of bond. OAG 61-808 .

Research References and Practice Aids

Cross-References.

Bonds of public officers, KRS ch. 62.

When officers to give bond, Const., § 103.

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Bonds, § 12.00.

§ 225. Armed men not to be brought into State — Exception.

No armed person or bodies of men shall be brought into this State for the preservation of the peace or the suppression of domestic violence, except upon the application of the General Assembly, or of the Governor when the General Assembly may not be in session.

Research References and Practice Aids

Cross-References.

Penalty for bringing armed men into the state, KRS 432.550 .

Seller and buyer of lottery ticket, testimony in prosecution for gambling, KRS 436.510 .

§ 225A. Personal right to hunt, fish, and harvest wildlife — Limitations.

The citizens of Kentucky have the personal right to hunt, fish, and harvest wildlife, using traditional methods, subject only to statutes enacted by the Legislature, and to administrative regulations adopted by the designated state agency to promote wildlife conservation and management and to preserve the future of hunting and fishing. Public hunting and fishing shall be a preferred means of managing and controlling wildlife. This section shall not be construed to modify any provision of law relating to trespass, property rights, or the regulation of commercial activities.

History. Amendment, proposed by Acts 2011, ch. 4, § 1, ratified November 6, 2012.

§ 226. State lottery — Charitable lotteries and charitable gift enterprises — Other lotteries and gift enterprises forbidden.

  1. The General Assembly may establish a Kentucky state lottery and may establish a state lottery to be conducted in cooperation with other states. Any lottery so established shall be operated by or on behalf of the Commonwealth of Kentucky.
  2. The General Assembly may by general law permit charitable lotteries and charitable gift enterprises and, if it does so, it shall:
    1. Define what constitutes a charity or charitable organization;
    2. Define the types of charitable lotteries and charitable gift enterprises which may be engaged in;
    3. Set standards for the conduct of charitable lotteries and charitable gift enterprises by charitable organizations;
    4. Provide for means of accounting for the amount of money raised by lotteries and gift enterprises and for assuring its expenditure only for charitable purposes;
    5. Provide suitable penalties for violation of statutes relating to charitable lotteries and charitable gift enterprises; and
    6. Pass whatever other general laws the General Assembly deems necessary to assure the proper functioning, honesty, and integrity of charitable lotteries and charitable gift enterprises, and the charitable purposes for which the funds are expended.
  3. Except as provided in this section, lotteries and gift enterprises are forbidden, and no privileges shall be granted for such purposes, and none shall be exercised, and no schemes for similar purposes shall be allowed. The General Assembly shall enforce this section by proper penalties. All lottery privileges or charters heretofore granted are revoked.

History. Amendment, proposed by Acts 1992, ch. 113, § 1, ratified November 3, 1992.

Compiler’s Notes.

The General Assembly in 1992 (Acts 1992, ch. 113, § 1) proposed an amendment to the Constitution which amendment was ratified by the voters at the regular election November 3, 1992. Prior to the amendment the section read:

§ 226. State lottery — Other lotteries and gift enterprises forbidden. — (1) The general assembly may establish a Kentucky state lottery and may establish a state lottery to be conducted in cooperation with other states. Any lottery so established shall be operated by or on behalf of the Commonwealth of Kentucky.

(2) Except as provided in this section, lotteries and gift enterprises are forbidden, and no privileges shall be granted for such purposes, and none shall be exercised, and no schemes for similar purposes shall be allowed. The general assembly shall enforce this section by proper penalties. All lottery privileges or charters heretofore granted are revoked.”

The General Assembly in 1988 (Acts 1988, ch. 116, § 1) proposed an amendment to the Constitution which amendment was ratified by the voters at the regular election in November, 1988. Prior to the amendment the section read:

§ 226. Lotteries and gift enterprises forbidden. — Lotteries and gift enterprises are forbidden, and no privileges shall be granted for such purposes, and none shall be exercised, and no schemes for similar purposes shall be allowed. The General Assembly shall enforce this section by proper penalties. All lottery privileges or charters heretofore granted are revoked.”

NOTES TO DECISIONS

1.In General.

Lotteries, gift enterprises, and all similar schemes are forbidden. A. B. Long Music Co. v. Commonwealth, 429 S.W.2d 391, 1968 Ky. LEXIS 748 ( Ky. 1968 ).

2.Constitutionality.

This section does not violate the contract clause of the Constitution of the United States. Douglas v. Kentucky, 168 U.S. 488, 18 S. Ct. 199, 42 L. Ed. 553, 1897 U.S. LEXIS 1742 (U.S. 1897).

3.Public Policy.

This section and KRS 436.360 (repealed) relate to a statewide public policy with the obligation for their enforcement resting exclusively upon state courts and enforcement officials, and a city is not obligated to enforce them. Worden v. Louisville, 279 Ky. 712 , 131 S.W.2d 923, 1939 Ky. LEXIS 330 ( Ky. 1939 ).

4.Lottery.

A lottery is a gambling scheme for the distribution of prizes by chance among persons who have paid or promised to pay a valuable consideration for the chance to share in the distribution. Commonwealth v. Jenkins, 159 Ky. 80 , 166 S.W. 794, 1914 Ky. LEXIS 751 ( Ky. 1914 ). See Commonwealth v. Kentucky Jockey Club, 238 Ky. 739 , 38 S.W.2d 987, 1931 Ky. LEXIS 321 ( Ky. 1931 ).

The pari-mutuel system of betting on horse races does not constitute a lottery within the meaning of this section. Commonwealth v. Kentucky Jockey Club, 238 Ky. 739 , 38 S.W.2d 987, 1931 Ky. LEXIS 321 ( Ky. 1931 ).

A plan whereby customers of a tailor received chances to obtain free suits of clothes at weekly drawings was a lottery. Worden v. Louisville, 279 Ky. 712 , 131 S.W.2d 923, 1939 Ky. LEXIS 330 ( Ky. 1939 ).

A lottery may exist even where the participants will suffer no loss as long as there is the possibility of contingent gains. Commonwealth v. Malco-Memphis Theatres, Inc., 293 Ky. 531 , 169 S.W.2d 596, 1943 Ky. LEXIS 656 ( Ky. 1943 ).

If a chance of winning a prize is part of the inducement to purchase goods or tickets of admission the scheme is a lottery. Commonwealth v. Malco-Memphis Theatres, Inc., 293 Ky. 531 , 169 S.W.2d 596, 1943 Ky. LEXIS 656 ( Ky. 1943 ).

The rule is that where the participants in a drawing by lot for a prize have paid admission fees the transaction is a lottery even where the fee is the same as that charged when no drawing is held. Commonwealth v. Malco-Memphis Theatres, Inc., 293 Ky. 531 , 169 S.W.2d 596, 1943 Ky. LEXIS 656 ( Ky. 1943 ).

Under this section and KRS 436.360 (repealed) a referral selling plan encompassing contingent prizes is a lottery and unlawful. Commonwealth v. Allen, 404 S.W.2d 464, 1966 Ky. LEXIS 304 ( Ky. 1966 ).

The word lottery is a generic term and embraces all schemes for distribution of prizes by chance for consideration, including bingo. A. B. Long Music Co. v. Commonwealth, 429 S.W.2d 391, 1968 Ky. LEXIS 748 ( Ky. 1968 ).

In the absence of any judicial history to support the construction that the game of bingo is not a lottery, it is prohibited by this section and the bingo licensing act is invalid despite the dedication of the proceeds to charitable and worthy purposes. Otto v. Kosofsky, 476 S.W.2d 626, 1971 Ky. LEXIS 64 ( Ky. 1971 ), cert. denied, 409 U.S. 912, 93 S. Ct. 227, 34 L. Ed. 2d 173, 1972 U.S. LEXIS 1057 (U.S. 1972).

5.Enforcement of Law.

Action brought by merchant against city to obtain declaratory judgment as to validity of proposed lottery scheme was fatally defective for want of proper parties, since cities are not charged with enforcing lottery law, city police, in enforcing lottery law, are acting as state officers, and making city defendant did not operate to make police defendants. Worden v. Louisville, 279 Ky. 712 , 131 S.W.2d 923, 1939 Ky. LEXIS 330 ( Ky. 1939 ).

6.Recovery of Winnings.

Alleged illegality of an automobile raffle under this section and statute may not be pleaded in defense to action by owner of winning ticket against parties who represented him at raffle and took possession of auto. Leake v. Isaacs, 262 Ky. 640 , 90 S.W.2d 1001, 1936 Ky. LEXIS 67 ( Ky. 1936 ).

Under this section and KRS 436.360 (repealed), 436.380 (repealed), the holder of a winning lottery ticket is entitled to recover the prize despite the illegality of the lottery itself. Hardy v. St. Matthew's Community Center, 240 S.W.2d 95, 1951 Ky. LEXIS 957 ( Ky. 1951 ).

7.Invalid Statutes.

Amendment of KRS 436.360 (repealed) which attempted to exempt from the lottery law any award of a prize given to purchasers of goods or admission tickets where no fee was charged for the privilege of participating in the drawing for the prize other than the regular price of the goods or admission, violated this section. Commonwealth v. Malco-Memphis Theatres, Inc., 293 Ky. 531 , 169 S.W.2d 596, 1943 Ky. LEXIS 656 ( Ky. 1943 ).

In the absence of any judicial history to support the construction that the game of bingo is not a lottery, it is prohibited by this section and the bingo licensing act is invalid despite the dedication of the proceeds to charitable and worthy purposes. Otto v. Kosofsky, 476 S.W.2d 626, 1971 Ky. LEXIS 64 ( Ky. 1971 ), cert. denied, 409 U.S. 912, 93 S. Ct. 227, 34 L. Ed. 2d 173, 1972 U.S. LEXIS 1057 (U.S. 1972).

8.Forgery of Lottery Tickets.

When the Kentucky Constitution was amended to allow for the creation of the lottery, the General Assembly could have amended KRS 516.020 to include forgery of lottery tickets. Rather than amend the existing legislation, however, it enacted KRS 154A.990(2), which addresses only the forgery of lottery tickets. As it clearly would not have been special legislation to amend KRS 154A.020 to include forgery of lottery tickets, similarly KRS 154A.990(2) does not constitute special legislation. Creation of a separate statutory provision is in conformity with the constitutional amendment allowing the General Assembly to promulgate legislation regulating and protecting the integrity of the lottery. Harris v. Commonwealth, 878 S.W.2d 801, 1994 Ky. App. LEXIS 68 (Ky. Ct. App. 1994).

9.Fees on Charitable Gaming.

KRS 238.570(1), imposing a regulatory fee on receipts from charitable gaming, does not violate subsection (2)(f) of this section, which provides that money raised by charitable gaming be expended only for charitable purposes; nor does it violate Ky. Const., § 170, which provides that charitable institutions shall be exempt from tax, or Ky. Const., § 171, which provides that taxes shall be uniform on all property in the state. Commonwealth v. Louisville Atlantis Community/Adapt, 971 S.W.2d 810, 1997 Ky. App. LEXIS 86 (Ky. Ct. App. 1997).

Opinions of Attorney General.

A promotional scheme was not a prohibited lottery where the numbers of all the license plates in an area were used as the pool from which winners of prizes were drawn. OAG 63-419 .

Tickets on the Irish sweepstakes could not be given as prizes under a promotional plan. OAG 63-419 .

A city has no authority to adopt an ordinance prohibiting or regulating under the police power the use or distribution of give-away contests involving no payment of consideration which are being conducted by local merchants, and has no power to impose a separate tax on the merchants who use such contests, but may by ordinance impose an occupational license tax in a reasonable amount on a business devoted to distributing contest material to the merchants. OAG 68-234 .

A bank promotional package that included a brochure describing a prize and containing the contest rules for winning the prize and required the completion of an application for a credit charge card to be eligible for the prize did not constitute a lottery. OAG 73-500 .

A raffle constitutes a lottery within the prohibitions of this section and KRS 436.360 (now repealed). OAG 73-579 .

The game of bingo constitutes a lottery and is forbidden by this section and KRS 436.360 (repealed), regardless of the promoter or purpose. OAG 73-683 .

A bank promotion to pay anyone who participates the sum of $1.00 in U. S. currency and a ticket in a random drawing at the end of the promotion for prizes in exchange for one hundred pennies, for the purpose of placing the pennies in circulation, does not constitute a prohibited lottery or gift enterprise as there is no consideration for the chance to win a prize. OAG 74-590 .

A volunteer rescue squad, fire department or similar group could not legally sell raffle tickets where the prize would consist of a percentage of the money taken in on the raffle, since such a raffle constitutes a lottery and is illegal under this section and KRS Chapter 528. OAG 78-372 .

The 1980 amendment to KRS 528.010 , which added subsection (10), is unconstitutional and is void ab initio insofar as that amendment seeks to exempt bingo and/or lotteries or gift enterprises of any form from the operation of the penal code, since absent an amendment of this section, the criminal sanctions imposed by KRS Chapter 528 are operative as to lotteries, gift enterprises and bingo games sponsored by and for charitable purposes; if the General Assembly wishes to legalize charitable bingo, the only method of doing so is to propose a constitutional amendment placing the question before the people of Kentucky. OAG 80-408 .

Although the 1980 amendment to KRS 528.010 , which added subsection (10), is unconstitutional and void ab initio insofar as it seeks to legalize charitable bingo and other forms of charitable lotteries, the amendment act is not written in such a way as to indicate that the legislature would not have enacted a provision legalizing charitable “games of chance” without that portion of the act which sought to decriminalize bingo or other forms of lotteries or gift enterprises; therefore, KRS 528.010 , as amended, is constitutional and valid insofar as it decriminalizes charitable “games of chance” other than lotteries. OAG 80-409 .

There are games of chance which are not lotteries and which may be removed from the operation of the criminal sanctions of KRS Chapter 528 without violating this section; the only games of chance that are constitutionally forbidden are those in which the outcome is determined solely by chance, and since the card games of Rook and draw poker both require some degree of skill to win, they are not lotteries and are not constitutionally forbidden; consequently, if the National Federation of the Blind of Kentucky can qualify for “charitable gaming status” under KRS 528.010 , it may legally conduct a card tournament. OAG 80-409 .

An institution of higher learning may not implement a fund raising scheme for the booster club whereby patrons would be solicited to buy one or more memberships in the booster club at $25.00 each, and the members would be eligible to participate in series of weekly drawings with various cash prizes, since the membership fees would constitute consideration for chances, the winners would be determined by pure chance and a prize would be awarded; thus, the scheme is a lottery and prohibited under this section. OAG 81-62 .

Where a soft drink bottler sponsors a contest whereby a person can obtain bottle caps by purchasing the product, visiting one of eight bottling plants statewide or calling a toll-free telephone number, and win various prizes including cash for specially marked caps, such a “flexible participation” scheme is not a lottery, since not all methods of obtaining bottle caps involve paying for them, which would be a prohibited scheme under subsection (5)(a) 1 of KRS 528.010 and thus is not prohibited by this section. OAG 81-146 .

Where an automobile company conducts an automobile giveaway on the premises of a supermarket which possesses wine and beer licenses, and the contest involves the contestant entering the supermarket premises to register for the contest, which requires no minimum purchase to enter, the contest would not be a gambling scheme under KRS 528.010 requiring revocation or suspension of the beer or wine license pursuant to KRS 243.500(7); however, if the chance of winning the prize is part of the inducement to purchase the goods, the contest would violate this section and subject the licenses to revocation or suspension. OAG 81-201 .

A promotional scheme by a hamburger chain which would entail the consumer receiving a sweepstakes ticket with the purchase of a certain type sandwich would not be a “lottery” in violation of this section and KRS 528.010 since consumers could also send a form available at the store to the parent corporation to receive a free sweepstakes ticket without making a purchase, or could send directly to a post office box for a ticket without making a purchase so that the consumer did not have to pay consideration in order to receive a ticket and the chance to win an award; however, in order not to violate KRS 367.170 , any advertisement of the scheme, in addition to stating “no purchase necessary,” must also include all of the alternatives for participation in the scheme. OAG 81-259 .

A proposed fund-raising raffle to be conducted by a local charity, whereby a farm would be raffled off after the sale of 2,000 tickets at $100 per ticket, with the proceeds being applied first to the costs, liens and mortgages and the rest of the proceeds being divided between the farm owner and the charitable organization, would be violative of this section’s prohibition against lotteries, since a raffle is the purest and simplest form of a lottery; moreover, the charitable organization would not be exempt from this prohibition, because subdivision (10) of KRS 528.010 is unconstitutional and void ab initio, and, even if that subdivision were constitutional, the participation of the farm owner would violate the exemption provided in subsection (10)(a) 3 of KRS 528.010 . OAG 81-290 .

KRS 436.420 is unconstitutional since it prohibits the advertising of lawful lotteries and prohibits the publication of “any information about lotteries” in violation of U.S. Const., Amend. 1. OAG 84-305 .

A state in which a lottery is illegal cannot prohibit the advertisement of a lottery that is legal in the state where it is conducted. OAG 84-305 .

A proposed lottery game to be based on the Breeder’s cup horse races is a “lottery” that is authorized by this section and KRS 154A.065 . It has a prize, the prize is distributed by chance, and a valuable consideration is paid for the chance. OAG 92-127 .

The only games that can qualify as authorized lotteries are those that qualify as “lotteries” pursuant to this section. OAG 92-127 .

The State Constitution, including the lottery amendment, prohibits the General Assembly from permitting casino gambling. OAG 93-58 .

The Constitution must be amended in order to permit casino gambling because the lottery amendment is not broad enough to permit casino gambling. OAG 93-58 .

This section does not permit the Kentucky Lottery Corporation to operate video lottery terminals. OAG 99-8 .

Ky. Const. § 226(3) would prohibit the General Assembly from sanctioning a “lottery”, defined as a species of gambling, and described as a scheme for the distribution of prizes or things of value, purely by lot or by chance, among persons who have paid, or agree to pay, a valuable consideration, for the chance to share in the distribution, except as specifically authorized by Ky. Const. § 226(1) and (2). There is no constitutional prohibition which limits the General Assembly from authorizing and regulating other forms of gambling. OAG 2005-03 .

The framers of the Constitution clearly rejected the inclusion of other forms of gaming within the prohibition of “lotteries” when Ky. Const. § 226 was passed. Hence, “lotteries” are constitutionally distinct from other forms of gambling. OAG 2005-03 .

The General Assembly may authorize the Kentucky Lottery Corporation to establish, license, regulate and tax video lottery terminals at designated horse racing tracks under Ky. Const. § 226(1) without further amendment to the Kentucky Constitution. OAG 09-004 .

Internet sweepstakes cafes constitute illegal lotteries, and the devices used in them constitute gambling devices. OAG 2015-05

Research References and Practice Aids

Cross-References.

Gambling under Penal Code, KRS 528.010 et seq.

Kentucky Bench & Bar.

Howerton, Kentucky’s Constitution: An Antique in Need of Repair, volume 51, No. 4, Fall 1987 Ky. Bench & B. 34.

Know When (and How) to Hold ‘Em, Vol. 69, No. 5, Sept. 2005, Ky. Bench & Bar 13.

Kentucky Law Journal.

Soukup, Rolling the Dice on Precedent and Wagering on Legislation: The Law of Gambling Debt Enforceability in Kentucky after Kentucky Off-Track Betting, Inc. v. McBurney and KRS § 372.005 ., 95 Ky. L.J. 529 (2006/2007).

§ 226a. 226a. [Repealed.]

Compiler’s Notes.

This section (Acts 1918, ch. 63, approved November, 1919) which prohibited the manufacture, sale or transportation of intoxicating liquors was repealed by Acts 1934, ch. 58, approved November, 1935 which also reenacted Const., § 61.

§ 227. Prosecution and removal of local officers for misfeasance, malfeasance, or neglect.

Judges of the County Court, Justices of the Peace, Sheriffs, Coroners, Surveyors, Jailers, Assessors, County Attorneys and Constables shall be subject to indictment or prosecution for misfeasance or malfeasance in office, or wilful neglect in discharge of official duties, in such mode as may be prescribed by law, and upon conviction his office shall become vacant, but such officer shall have the right to appeal to the Court of Appeals. Provided, also, that the General Assembly may, in addition to the indictment or prosecution above provided, by general law, provide other manner, method or mode for the vacation of office, or the removal from office of any sheriff, jailer, constable or peace officer for neglect of duty, and may provide the method, manner or mode of reinstatement of such officers.

History. Amendment, proposed 1918, approved November, 1919.

NOTES TO DECISIONS

1.Construction.

This section as amended in 1919 is not self-executing. Holliday v. Fields, 210 Ky. 179 , 275 S.W. 642, 1925 Ky. LEXIS 645 ( Ky. 1925 ).

2.Malfeasance.

Malfeasance in office is the wrongdoing of an official act with an evil intent or accompanied by such gross negligence as to be equivalent to fraud. Holliday v. Fields, 210 Ky. 179 , 275 S.W. 642, 1925 Ky. LEXIS 645 ( Ky. 1925 ).

Indictment charging lawfully and maliciously issued warrant of arrest charging an offense without proper affidavit or legal foundation was sufficient to allege malfeasance under this section and statute. Robbins v. Commonwealth, 232 Ky. 115 , 22 S.W.2d 440, 1929 Ky. LEXIS 403 ( Ky. 1929 ).

Malfeasance in office generally is the wrongful or unjust doing of some official act but it is essential that an evil intent or motive accompany the act and an honest or ignorant mistake, not accompanied by such motive or by fraud or by reckless or wilfully negligent conduct does not comprise malfeasance. Robbins v. Commonwealth, 232 Ky. 115 , 22 S.W.2d 440, 1929 Ky. LEXIS 403 ( Ky. 1929 ).

Since the Ky. Const., § 227 vested review of malfeasance in office conviction in the highest court within the Commonwealth at the time it was adopted, and because the Supreme Court assumed the position of the former Court of Appeals as the highest court within the Commonwealth with the passage of the Judicial Article in 1976, the Supreme Court is the appropriate court to resolve the appeal of a county judge executive’s conviction for malfeasance in office. Woodward v. Commonwealth, 949 S.W.2d 599, 1997 Ky. LEXIS 75 ( Ky. 1997 ), modified, 1997 Ky. LEXIS 96 (Ky. Sept. 4, 1997).

3.Misfeasance.

Misfeasance involves the wrongdoing of an official act. Holliday v. Fields, 210 Ky. 179 , 275 S.W. 642, 1925 Ky. LEXIS 645 ( Ky. 1925 ).

4.Neglect of Duty.

Charges that a sheriff was drunk, boisterous and engaged in abusive conduct do not constitute a neglect of office calling for removal of the sheriff under this section. Holliday v. Fields, 210 Ky. 179 , 275 S.W. 642, 1925 Ky. LEXIS 645 ( Ky. 1925 ).

Neglect of duty within the meaning of this section is most frequently used in the sense of a failure to do or to act. Holliday v. Fields, 210 Ky. 179 , 275 S.W. 642, 1925 Ky. LEXIS 645 ( Ky. 1925 ).

Drunkenness leading to absence and neglect of duties is sufficient to sustain prosecution under this section and statute. Sanders v. Commonwealth, 249 Ky. 225 , 60 S.W.2d 586, 1933 Ky. LEXIS 502 ( Ky. 1933 ).

5.Forfeiture of Office.

A county judge is a constitutional officer elected for a term, and as such any forfeiture of his office is a matter of public concern and may not be accomplished in any way other than the method of removal as provided and set out in the Constitution, thus a practicing attorney with no interest in the office different from that of the public generally lacked capacity to maintain an action for forfeiture of the office of county judge on grounds that the latter engaged in the practice of law in violation of KRS 30.150 (repealed). Wegener v. Wehrman, 312 Ky. 445 , 227 S.W.2d 997, 1950 Ky. LEXIS 674 ( Ky. 1950 ).

6.— Commonwealth Attorney.

A Commonwealth’s Attorney is a constitutional officer who may be removed only under Const., §§ 68 and 97 and not under statutes enacted pursuant to this section. Commonwealth ex rel. Attorney Gen. v. Howard, 297 Ky. 488 , 180 S.W.2d 415, 1944 Ky. LEXIS 763 ( Ky. 1944 ).

7.Valid Statutes.

A statute authorizing the county court to remove a sheriff for failure to execute the bond required thereunder was not affected by this section. Schuff v. Pflanz, 99 Ky. 97 , 35 S.W. 132, 18 Ky. L. Rptr. 25 , 1896 Ky. LEXIS 59 ( Ky. 1896 ).

Statute, pursuant to this section as amended in 1919, empowering the Governor to remove peace officers after a hearing upon written charges, with right to appeal to Court of Appeals, did not vest the Governor with judicial functions in violation of the Constitution, since he acted in an executive or administrative capacity. Holliday v. Fields, 207 Ky. 462 , 269 S.W. 539, 1925 Ky. LEXIS 114 ( Ky. 1925 ).

KRS 63.090 (5), defining the term neglect of duty, does not violate this section. Stuart v. Combs, 360 S.W.2d 144, 1962 Ky. LEXIS 213 ( Ky. 1962 ).

8.Appeal.

A member of fiscal court convicted of malfeasance in office who appeals and supersedes the judgment of conviction, is entitled to perform the duties of his office pending appeal. Hazelrigg v. Douglass, 126 Ky. 738 , 104 S.W. 755, 31 Ky. L. Rptr. 1121 , 1907 Ky. LEXIS 94 ( Ky. 1907 ).

Where a sheriff had been granted an appeal from a judgment depriving him of his office because he had been indicted for murder it was proper for the clerk of the Circuit Court to refuse to accept a supersedeas bond tendered by the sheriff. Baker v. Wilson, 310 Ky. 692 , 221 S.W.2d 690, 1949 Ky. LEXIS 1272 ( Ky. 1949 ).

Cited:

Commonwealth v. Rowe, 112 Ky. 482 , 23 Ky. L. Rptr. 1718 , 66 S.W. 29, 1902 Ky. LEXIS 183 ( Ky. 1902 ); Eastern Kentucky Coal Lands Corp. v. Commonwealth, 127 Ky. 667 , 106 S.W. 260, 1907 Ky. LEXIS 166 (1907); Horn v. Wells, 253 Ky. 494 , 69 S.W.2d 1011, 1934 Ky. LEXIS 695 ( Ky. 1934 ); Miller v. Robertson, 306 Ky. 653 , 208 S.W.2d 977, 1948 Ky. LEXIS 631 ( Ky. 1948 ); Frederick v. Combs, 354 S.W.2d 506, 1962 Ky. LEXIS 46 ( Ky. 1962 ); Shearer v. Hall, 399 S.W.2d 701, 1965 Ky. LEXIS 31 ( Ky. 1965 ).

Opinions of Attorney General.

A city jailer, as a peace officer, may be subject, where the facts warrant, to the procedure outlined in KRS 63.090 to 63.130 for removal. OAG 71-314 .

The provisions of KRS 61.770 as to vacation of public office, insofar as they relate to officers named in the Constitution, are invalid under this section and §§ 68 and 124 of the Constitution, since constitutionally named officers are removable only by the method prescribed in the Constitution. OAG 72-289 .

A jailer who fails to arrest a drunk knocking on the door of the county jail can be indicted and prosecuted for wilful neglect of duty under this section, which requires no legislative implementation, or under KRS 61.170 , and upon conviction his office would become vacant. OAG 73-163 .

KRS 61.170 requires an indictment by a Circuit Court grand jury in order to charge that offense; but since KRS 24A.110 vests exclusive jurisdiction of misdemeanor cases, generally, in the District Court, the Circuit Court in which such an indictment is returned has necessarily, because of the jurisdictional statute, the authority and duty to refer the indictment for trial or other appropriate disposition to the District Court of that county. OAG 80-152 .

Research References and Practice Aids

Cross-References.

Abuse of public office, KRS 522.010 to 522.040 .

Misfeasance, malfeasance or neglect, punishment for, KRS 61.170 .

Removal of officers, KRS 63.020 to 63.180 .

ALR

Personal liability of policeman, sheriff, or similar peace officer or his bond, for injury suffered as a result of failure to enforce law or arrest lawbreaker. 41 A.L.R.3d 700.

§ 228. Oath of officers and attorneys.

Members of the General Assembly and all officers, before they enter upon the execution of the duties of their respective offices, and all members of the bar, before they enter upon the practice of their profession, shall take the following oath or affirmation: I do solemnly swear (or affirm, as the case may be) that I will support the Constitution of the United States and the Constitution of this Commonwealth, and be faithful and true to the Commonwealth of Kentucky so long as I continue a citizen thereof, and that I will faithfully execute, to the best of my ability, the office of . . . . . according to law; and I do further solemnly swear (or affirm) that since the adoption of the present Constitution, I, being a citizen of this State, have not fought a duel with deadly weapons within this State nor out of it, nor have I sent or accepted a challenge to fight a duel with deadly weapons, nor have I acted as second in carrying a challenge, nor aided or assisted any person thus offending, so help me God.

NOTES TO DECISIONS

1.Construction.

Under this section officers must swear to uphold the Constitution of the United States as well as the Constitution of Kentucky, therefore, any decision of the United States Supreme Court construing the federal Constitution is binding on this court. Wagers v. Sizemore, 222 Ky. 306 , 300 S.W. 918, 1927 Ky. LEXIS 941 ( Ky. 1927 ). See Shaw v. Fox, 246 Ky. 342 , 55 S.W.2d 11, 1932 Ky. LEXIS 761 ( Ky. 1932 ).

2.Failure To Take Oath.

Fiscal court could not legally approve payments to a deputy jailer where there was no showing that he had qualified as such by taking the oath required by this section and Const., § 232. Taylor v. Todd, 241 Ky. 605 , 44 S.W.2d 606, 1931 Ky. LEXIS 148 ( Ky. 1931 ).

Assuming that an oath were required under this section, the failure of precinct officers to take such oath would not invalidate a primary election in that precinct. Sims v. Atwell, 556 S.W.2d 929, 1977 Ky. App. LEXIS 826 (Ky. Ct. App. 1977).

Trial court did not err in denying defendants’ motion to suppress drug evidence obtained in a search of their home because the warrant was not void when signed by a trial commissioner allegedly not lawfully serving that office. Where the trial commissioner was appointed by a judge who did not reappoint the trial commissioner following his re-election but where the trial commissioner continued uninterrupted in that capacity, he remained a de facto officer with authority to issue search warrants. As such, the warrant and the search performed under the warrant’s authority were valid. Gourley v. Commonwealth, 335 S.W.3d 468, 2010 Ky. App. LEXIS 251 (Ky. Ct. App. 2010).

Cited:

Roberts v. Cain, 97 Ky. 722 , 31 S.W. 729, 17 Ky. L. Rptr. 459 , 1895 Ky. LEXIS 233 ( Ky. 1 895 ); Taylor v. Beckham, 108 Ky. 278 , 56 S.W. 177, 21 Ky. L. Rptr. 1735 , 1900 Ky. LEXIS 39 ( Ky. 1 900 ); Daugherty v. Arnold, 110 Ky. 1, 60 S.W. 865, 22 Ky. L. Rptr. 1504 , 1901 Ky. LEXIS 54 ( Ky. 1901 ); Commonwealth v. Ginn & Co., 120 Ky. 83 , 85 S.W. 688, 27 Ky. L. Rptr. 486 , 1905 Ky. LEXIS 72 ( Ky. 1905 ); James v. Cammack, 139 Ky. 223 , 129 S.W. 582, 1910 Ky. LEXIS 26 ( Ky. 1910 ); Cartmell v. Commercial Bank & Trust Co., 153 Ky. 798 , 156 S.W. 1048, 1913 Ky. LEXIS 938 ( Ky. 1913 ); Cincinnati, N. O. & T. P. R. Co. v. Cundiff, 166 Ky. 594 , 179 S.W. 615, 1915 Ky. LEXIS 755 ( Ky. 1915 ); Board of Education v. McChesney, 235 Ky. 692 , 32 S.W.2d 26, 1930 Ky. LEXIS 441 ( Ky. 1930 ); Oakes v. Remines, 273 Ky. 750 , 117 S.W.2d 948, 1938 Ky. LEXIS 713 ( Ky. 1938 ); Beauchamp v. Cahill, 297 Ky. 505 , 180 S.W.2d 423, 1944 Ky. LEXIS 766 ( Ky. 1944 ); Black v. Sutton, 301 Ky. 247 , 191 S.W.2d 407, 1945 Ky. LEXIS 733 ( Ky. 1945 ); Commonwealth ex rel. Breckinridge v. Marshall, 361 S.W.2d 103, 1962 Ky. LEXIS 228 ( Ky. 1962 ); Raney v. Stovall, 361 S.W.2d 518, 1962 Ky. LEXIS 246 ( Ky. 1962 ); D & W Auto Supply v. Department of Revenue, 602 S.W.2d 420, 1980 Ky. LEXIS 243 ( Ky. 1980 ); Rottinghaus v. Board of Comm'rs, 603 S.W.2d 487, 1979 Ky. App. LEXIS 536 (Ky. Ct. App. 1979).

Opinions of Attorney General.

Where five (5) months after taking office school board members had not yet taken the statutory oath of office the board members forfeited their office for failure to qualify within a reasonable time after their election. OAG 61-485 .

Where five (5) months after taking office school board members had not yet taken the statutory oath, the state board of education was required to fill the resulting vacancies pursuant to KRS 160.190 . OAG 61-485 .

A forest warden is required to take the oath of office set forth in this section, and no other oath is required. OAG 63-323 .

A person who is elected county coroner while voluntarily employed overseas by the department of the army as a civilian embalmer and who cannot return at the proper time to take the oath and assume the office, cannot be granted four (4) or five (5) months temporary leave and then return and assume the office because failure to take oath and make bond within the prescribed time would result in the automatic vacation of the office. OAG 69-239 .

Under this section a city jailer would be required to take the oath of office. OAG 72-507 .

KRS 277.280 requires that railroad policemen must take the oath prescribed by this section and in view of the language “so long as they continue a citizen thereof” in this section, it seems that a railroad policeman must be a citizen of Kentucky. OAG 75-166 .

Volunteer firemen who are regular members of a fire department in a volunteer fire department district should be required to take the constitutional oath, and the oath contained in KRS 75.170 . OAG 79-622 .

Where a full-time student and resident of Kentucky has already been sworn into office as the student body president and assumed student government responsibilities as the student member of a state university board of regents, there is no need for him to take the constitutional oath of office provided for in this section, since subsection (5) of KRS 164.320 only requires that appointed members take the constitutional oath, and student body president is an elective office. OAG 81-172 .

As to the residence requirement as relates to a county policeman, it is only necessary that he reside in some Kentucky county, and he does not have to reside in the county of the appointment, but it is necessary that his commuting, if done, will not prevent the proper carrying out of his police duties as scheduled. OAG 80-68 .

Since the members of the enterprise zone authority, KRS 154.650 to 154.700, are state officers they must execute the oath of office prescribed by this section. OAG 82-429 .

The language of this section clearly requires all public officers, which would include most, if not all, members of the various state boards and commissions, to be citizens of the commonwealth of Kentucky in order for them to qualify to execute the oath required of all public officers before they can enter the duties of their respective offices. OAG 83-103 .

This section requires an officer taking the oath of office to be a citizen or resident of Kentucky, and Const., § 234 requires all civil officers of Kentucky to reside in Kentucky; therefore, that provision of KRS 423.110 (6) relating to the appointment of a special notary living in a foreign jurisdiction, is unconstitutional. However, under the principle of severability, as expressed in KRS 446.090 , KRS 423.110 , minus the offending language involving appointing nonresidents, is constitutional; thus the special notary, who lives in Kentucky, may, under KRS 423.110, engage in notarial acts in a foreign jurisdiction, provided that such exercise of function does not violate the public policy of or is not in basic conflict with the law of the foreign jurisdiction; the extraterritorial recognition of KRS 423.110 is only based upon the principles of comity. OAG 85-36 .

All notary publics, residents of Kentucky, including those appointed under KRS 423.110 , must take the oath mentioned in KRS 423.110 before the county judge/executive of the county in which the notary resides, and must take the oath prescribed in this section before one of the applicable officers mentioned in KRS 62.020 . OAG 85-36 .

In light of Bernal v. Fainter, 467 U.S. 216, 104 S. Ct. 2312, 81 L. Ed. 2d 175, 1984 U.S. LEXIS 93, (1984), the citizenship requirement of this section is not enforcible as to the office of notary public under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and Const., § 3; thus, an alien residing in a particular county in Kentucky may qualify as a notary public, provided that he satisfies the requirements of KRS 423.010 and takes the oath before the county judge/executive of his county that “he will honestly and diligently discharge the duties of his office,” as required by KRS 423.010 . In addition, he must take the oath of officers prescribed in this section, before any applicable officer listed in KRS 62.020 , even though he is not a citizen of the United States nor Kentucky; in view of the holding in Bernal v. Fainter, the requirement of citizenship, as it applies to the oath of this section, would be, as a practical matter and in harmony with the cypres doctrine of equity, considered waived. OAG 85-37 , modifying OAG 77-297 .

The prohibition in KRS 15.740 against a Commonwealth’s Attorney’s representation of defendants does not apply until the prospective Commonwealth’s Attorney has taken the oath of office under this section and § 232 of the Constitution; a prospective appointee has a reasonable time within which to qualify by taking the oath. OAG 85-80 .

Since residency should not be considered a requirement to practice as a notary, the provision in this section regarding state citizenship should be deleted from the oath given to a notary; furthermore, the oath may be administered in any county. OAG 88-20 .

Research References and Practice Aids

Cross-References.

Form of oath altered on pardon of person convicted of dueling, Const., § 240.

Oaths of officers, KRS 62.010 to 62.040 .

Kentucky Law Journal.

Notes, An Analysis of the Question of County Jail Reform in Kentucky, 65 Ky. L.J. 130 (1976-77).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Constitutional Oath, Form 11.01.

Caldwell’s Kentucky Form Book, 5th Ed., Oath of Clerks and Deputies, Form 10.03.

ALR

Validity of governmental requirement of oath of allegiance or loyalty. 18 A.L.R.2d 268.

§ 229. “Treason” defined — Evidence necessary to convict.

Treason against the Commonwealth shall consist only in levying war against it, or in adhering to its enemies, giving them aid and comfort. No person shall be convicted of treason except on the testimony of two witnesses to the same overt act, or his own confession in open court.

Research References and Practice Aids

Cross-References.

Power of pardon for treason vested in general assembly, Const., § 77.

§ 230. Money not to be drawn from Treasury unless appropriated — Annual publication of accounts — Certain revenues usable only for highway purposes.

No money shall be drawn from the State Treasury, except in pursuance of appropriations made by law; and a regular statement and account of the receipts and expenditures of all public money shall be published annually. No money derived from excise or license taxation relating to gasoline and other motor fuels, and no moneys derived from fees, excise or license taxation relating to registration, operation, or use of vehicles on public highways shall be expended for other than the cost of administration, statutory refunds and adjustments, payment of highway obligations, costs for construction, reconstruction, rights-of-way, maintenance and repair of public highways and bridges, and expense of enforcing state traffic and motor vehicle laws.

History. Amendment, proposed Acts 1944, ch. 9, ratified November, 1945.

NOTES TO DECISIONS

1.Purpose.

The purpose of this section and KRS 41.110 was to prevent the expenditure of the state’s money without the consent of the Legislature. Ferguson v. Oates, 314 S.W.2d 518, 1958 Ky. LEXIS 295 ( Ky. 1958 ); Commonwealth ex rel. Armstrong v. Collins, 709 S.W.2d 437, 1986 Ky. LEXIS 262 ( Ky. 1986 ).

2.Construction.

The provision of this section that no money shall be drawn from the State Treasury except in pursuance of appropriations does not mean that the Legislature has exclusive control over withdrawal of money from treasury. Miller v. Quertermous, 304 Ky. 733 , 202 S.W.2d 389, 1947 Ky. LEXIS 712 ( Ky. 1947 ).

The fact that this section restricts to road purposes the expenditure of revenues from the gasoline tax and other motor vehicle taxes does not uphold a creation of a debt in violation of Const., §§ 49 and 50. Curlin v. Wetherby, 275 S.W.2d 934, 1955 Ky. LEXIS 401 ( Ky. 1955 ).

This section complements Const., § 231 in promoting an orderly system for the disposition of public money and preventing the diversion of highway funds. Foley Constr. Co. v. Ward, 375 S.W.2d 392, 1963 Ky. LEXIS 190 ( Ky. 1963 ).

Commonwealth representatives did not have a right under Ky. Const., § 230 to be called into an extraordinary session of the Kentucky General Assembly to end the Kentucky Governor’s allegedly unlawful expenditure of unappropriated state funds under Ky. Const., § 80; whether to call an extraordinary session and what matters were to be addressed in such a session were within the discretion of the Governor. Ky. Const., § 230 did not provide an exception to the separation-of-powers doctrine created by Ky. Const., §§ 27 and 28. Geveden v. Commonwealth ex rel. Fletcher, 142 S.W.3d 170, 2004 Ky. App. LEXIS 251 (Ky. Ct. App. 2004).

3.Appropriation.

The state cannot be made liable at all except under a statute passed by the Legislature incurring the liability, nor can it be made liable to suit against its auditor to compel him by mandamus to issue a warrant upon the treasury for the same unless the Legislature has expressly appropriated the money to discharge the liability. Hager v. Shuck, 120 Ky. 574 , 87 S.W. 300, 27 Ky. L. Rptr. 957 , 1905 Ky. LEXIS 133 ( Ky. 1905 ).

A provision in an act to the effect that at the end of each month the board of prison commissioners shall certify to the auditor of public accounts the amount due each prisoner for that month, and he shall draw his warrant for the amount so certified, is an appropriation within the meaning of this section. State Board of Charities & Corrections v. Hays, 190 Ky. 147 , 227 S.W. 282, 1920 Ky. LEXIS 554 ( Ky. 1920 ).

Direction to the auditor to issue a warrant and to the Treasurer to pay it from the general fund is an appropriation within the meaning of this section, therefore it was not necessary for the Legislature to make an appropriation before a warrant could be issued for the amount fixed for services rendered by a sheriff under KRS 70.150 to 70.170 . Shannon v. Dean, 279 Ky. 279 , 130 S.W.2d 812, 1939 Ky. LEXIS 290 ( Ky. 1939 ).

This section does not require that appropriations be detailed, definite or specific. Commonwealth ex rel. Meredith v. Johnson, 292 Ky. 288 , 166 S.W.2d 409, 1942 Ky. LEXIS 73 ( Ky. 1942 ).

The Legislature is not required to anticipate every item for which it may become necessary to expend money in the course of the operation of the affairs of the state. Commonwealth ex rel. Meredith v. Johnson, 292 Ky. 288 , 166 S.W.2d 409, 1942 Ky. LEXIS 73 ( Ky. 1942 ).

The General Assembly is permitted, pursuant to KRS 446.085 , to effectively eliminate the efficacy of existing statutes through the reduction or elimination of an appropriation, subject only to the finding of a financial emergency and further subject to the time limitation of the budgetary period, and this statutory scheme is clearly within the constitutional powers of the General Assembly, under Const., § 15 and this section. Commonwealth ex rel. Armstrong v. Collins, 709 S.W.2d 437, 1986 Ky. LEXIS 262 ( Ky. 1986 ).

Ky. Const. § 230 provided that no money shall be drawn from the State Treasury unless it is appropriated. Ky. Const. § 230, and the funds for the career retention program authorized in KRS 196.160 were never appropriated, and thus may not be drawn from the Treasury in order to create the program. It was the General Assembly alone that had the power to determine how the people’s money would be spent; therefore, as the General Assembly never appropriated funds for the implementation of KRS 196.160 , its efficacy had been eliminated, and the police union and the corrections officers’ claims under it were without merit. FOP Barkley Lodge # 60, Inc. v. Fletcher, 618 F. Supp. 2d 712, 2008 U.S. Dist. LEXIS 12645 (W.D. Ky. 2008 ).

4.Contingent Expense.

Claims against the state for work done in copying and ingrossing bills under employment of the clerk of the House of Representatives, by direction of the House, constitute a contingent expense and do not violate this section. McDonald v. Norman, 95 Ky. 593 , 26 S.W. 808, 16 Ky. L. Rptr. 137 , 1894 Ky. LEXIS 67 ( Ky. 1894 ).

The payment of contingent expenses of the Legislature duly provided for by statute does not violate this section. Stone v. Dispatch Pub. Co., 55 S.W. 725, 21 Ky. L. Rptr. 1473 , 1900 Ky. LEXIS 536 (Ky. Ct. App. 1900).

5.Excess Payments.

A State Treasurer who made payments in excess of appropriations was liable for such payments even though the excess payments were made inevitable by his predecessor in office. Dishman v. Coleman, 244 Ky. 239 , 50 S.W.2d 504, 1932 Ky. LEXIS 397 ( Ky. 1932 ).

6.— Mandamus.

Where an appropriation for state charitable and correctional institutions was insufficient due to unanticipated cost increases and the deficiency could not be covered by the governor’s emergency fund it was proper to issue a writ of mandamus to the Commissioner of Finance (now Secretary of Finance and Administration) and the State Treasurer to use money in the general fund as the emergency nature of the situation resulted in a public duty to supply the funds despite the restrictions of this section. Miller v. Quertermous, 304 Ky. 733 , 202 S.W.2d 389, 1947 Ky. LEXIS 712 ( Ky. 1947 ).

Mandamus did not lie to compel Commissioner of Finance (now Secretary of Finance and administration) to allocate money beyond appropriation limits to cover deficits in budget accounts and to provide money for purchaser of much needed equipment especially when it was not shown that the appropriation therefor was unreasonably inadequate. Ferguson v. Oates, 314 S.W.2d 518, 1958 Ky. LEXIS 295 ( Ky. 1958 ).

7.Highway Expenditures.

The anti-diversion amendment to this section prohibiting the use of gasoline taxes and certain other revenue for purposes other than those concerning highways was not intended to curtail the road program, but, rather, was intended to secure the funds with which to continue it, consequently the use of such funds for the publication and distribution of highway information which results in increased revenue for use in the road program was not prohibited. Keck v. Manning, 313 Ky. 433 , 231 S.W.2d 604, 1950 Ky. LEXIS 897 ( Ky. 1950 ).

Gasoline and motor vehicle taxes constitute public revenue, as distinguished from a special fund, and are subject to the general constitutional prohibitions against creating obligations against future revenue. Curlin v. Wetherby, 275 S.W.2d 934, 1955 Ky. LEXIS 401 ( Ky. 1955 ).

The provisions of this section dedicating certain revenues only to public highway purposes does not confer any authority on the elected officials of the state to expend other than current revenue for such purposes. Curlin v. Wetherby, 275 S.W.2d 934, 1955 Ky. LEXIS 401 ( Ky. 1955 ).

8.Invalid Payments.

Under this section and Const., § 11 the Commonwealth has no authority to pay the expense of procuring the attendance and testimony of witness for the defendant in a criminal prosecution even though defendant and the witness are poor persons. Greene v. Ballard, 174 Ky. 808 , 192 S.W. 841, 1917 Ky. LEXIS 246 ( Ky. 1917 ).

Board of education could not purchase and pay for free textbooks to be used in common schools under statutory authority to do so, where none of school fund had been appropriated for that purpose, and when general fund had been exhausted by appropriating power of Legislature. State Board of Education v. Kenney, 230 Ky. 287 , 18 S.W.2d 1114, 1929 Ky. LEXIS 71 ( Ky. 1929 ).

9.Statutes.
10.— Valid.

An act granting a pension to confederate soldiers or their widows was not unconstitutional, it was not necessary that the act should use the word appropriate, and where the act directed the vouchers issued to the pensioners should be paid out of the treasury upon warrant of the auditor, and auditor was directed to issue such warrant to each pensioner, it was an appropriation within the meaning of this section. Bosworth v. Harp, 154 Ky. 559 , 157 S.W. 1084, 1913 Ky. LEXIS 114 ( Ky. 1913 ).

Uniform county budget act was not unconstitutional because act contained no appropriation to carry it out since act passed at same session appropriated money for operation of office of inspector and examiner, whose duty it was to carry out the provisions of the act. State Budget Com. v. Adams, 249 Ky. 680 , 61 S.W.2d 314, 1933 Ky. LEXIS 584 ( Ky. 1933 ).

Appropriation of sum of money for general purpose of capital outlay at University of Kentucky was not invalid by reason of not being sufficiently specific, since the appropriation must be considered in the light of the authority given the board of trustees to determine, in the exercise of a reasonable discretion, the needs and requirements of the university. Commonwealth ex rel. Meredith v. Johnson, 292 Ky. 288 , 166 S.W.2d 409, 1942 Ky. LEXIS 73 ( Ky. 1942 ).

Provisions of appropriation bill creating various emergency funds, for general emergencies, emergency relief and emergency defense, and other provisions creating funds for purchase, construction, maintenance and repair of public lands and buildings, none of which provisions contained any details or specifications as to the expenditure of the sums appropriated, and all of which provisions vested power in the governor to determine the necessity for making such expenditures and the purposes for which they should be made, did not constitute an unconstitutional delegation of legislative authority. Commonwealth ex rel. Meredith v. Johnson, 292 Ky. 288 , 166 S.W.2d 409, 1942 Ky. LEXIS 73 ( Ky. 1942 ).

KRS 62.155 giving sheriffs a claim for premiums paid on bonds required by law is sufficient as an appropriation within the meaning of this section. Miller v. Sturgill, 304 Ky. 823 , 202 S.W.2d 632, 1947 Ky. LEXIS 738 ( Ky. 1947 ).

While KRS 177.550 provides that a toll road shall become a part of the state highway system after the bonds have been retired thus becoming a public highway, the provisions of the toll road act authorizing payments out of the state road fund for surveys and maintenance, prior to the retirement of the bonds, does not violate this section. Guthrie v. Curlin, 263 S.W.2d 240, 1953 Ky. LEXIS 1238 (Ky. Ct. App. 1953).

11.— Invalid.

Provisions of a statute devoting portion of motor fuel taxes to the financing of veterans’ bonus are invalid under this section, but are not so integral a part of the primary objective of the act as to invalidate it in toto. Stovall v. Gartrell, 332 S.W.2d 256, 1960 Ky. LEXIS 141 ( Ky. 1960 ).

12.Claims Against Commonwealth.

In establishing the sovereign immunity principle, this section and Const. § 231 make no distinction between the intentional and unintentional torts; a wrong is a wrong, whether intentionally or negligently committed, but unless the Constitution is changed the sovereign state cannot be held liable in a court of law for either intentional or unintentional torts committed by its agents. Calvert Invest., Inc. v. Louisville & Jefferson County Metro. Sewer Dist., 805 S.W.2d 133, 1991 Ky. LEXIS 17 ( Ky. 1991 ).

The Supreme Court rejected extending sovereign immunity beyond what the Constitution demands; the concept that the government can do no wrong or that the government cannot afford to compensate those whom it wrongs in circumstances where a private entity would be required to pay is unacceptable in a just society. Calvert Invest., Inc. v. Louisville & Jefferson County Metro. Sewer Dist., 805 S.W.2d 133, 1991 Ky. LEXIS 17 ( Ky. 1991 ).

Where, with regard to the personal liability of certain public officials, plaintiff’s complaint failed to specify individual capacity in the heading, lacked specificity in the body, and failed to seek judgment against such individuals in the concluding demand, the complaint failed to state a separate cause of action for personal liability against any particular individual. Calvert Invest., Inc. v. Louisville & Jefferson County Metro. Sewer Dist., 805 S.W.2d 133, 1991 Ky. LEXIS 17 ( Ky. 1991 ).

Trial court erred in ordering the cabinet for health and family services to pay for opiate hair follicle drug screen testing performed on the parents of a neglected child because there was no specific statute authorizing assessment of such payment and there was no significant potential infringement of the parents’ due process rights which would serve to bring the issue within the purview of the court’s inherent powers to administer justice. Commonwealth v. G.W.F., 229 S.W.3d 596, 2007 Ky. App. LEXIS 364 (Ky. Ct. App. 2007).

Property owners’ claims against a fire department and a city were dismissed because KRS 75.070 and 95.830(2) provided the fire department with sovereign immunity, the statutes were constitutional under Ky. Const. §§ 230 and 231, and the statutes did not violate the jural rights doctrine under Ky. Const. §§ 14, 54, and 241. Caneyville Volunteer Fire Dep't v. Green's Motorcycle Salvage, Inc., 286 S.W.3d 790, 2009 Ky. LEXIS 158 ( Ky. 2009 ).

When it was held that the legislature violated Ky. Const. § 51 by transferring funds from workers’ compensation accounts to the general fund, the governor could not be ordered to restore funds that were previously transferred because this violated sovereign immunity, as provided in Ky. Const. §§ 230 and 231. Beshear v. Haydon Bridge Co., 416 S.W.3d 280, 2013 Ky. LEXIS 582 ( Ky. 2013 ).

When it was held that the legislature violated Ky. Const. § 51 by transferring funds from workers’ compensation accounts to the general fund, separation of powers barred a court from ordering the governor to restore funds previously transferred because the legislature solely controlled the state treasury. Beshear v. Haydon Bridge Co., 416 S.W.3d 280, 2013 Ky. LEXIS 582 ( Ky. 2013 ).

Cited:

Walker v. Coulter, 113 Ky. 814 , 68 S.W. 1108, 24 Ky. L. Rptr. 530 , 1902 Ky. LEXIS 106 ( Ky. 1902 ); Hager v. Kentucky Children's Home Soc., 119 Ky. 235 , 83 S.W. 605, 26 Ky. L. Rptr. 1133 , 1904 Ky. LEXIS 166 ( Ky. 1904 ); James v. Walker, 141 Ky. 88 , 132 S.W. 149, 1910 Ky. LEXIS 404 ( Ky. 1910 ); Bosworth v. State University, 166 Ky. 436 , 179 S.W. 403, 1915 Ky. LEXIS 705 ( Ky. 1915 ) ( Ky. 1915 ); State Budget Com. v. Lebus, 244 Ky. 700 , 51 S.W.2d 965, 1932 Ky. LEXIS 502 ( Ky. 1932 ); Department of Finance v. Dishman, 298 Ky. 545 , 183 S.W.2d 540, 1944 Ky. LEXIS 948 ( Ky. 1944 ); Ross v. Gross, 300 Ky. 337 , 188 S.W.2d 475, 1945 Ky. LEXIS 544 ( Ky. 1945 ); United States v. Commonwealth, 288 S.W.2d 664, 1956 Ky. LEXIS 277 (Ky. Ct. App. 1956); Dalton v. State Property & Bldgs. Com., 304 S.W.2d 342, 1957 Ky. LEXIS 276 ( Ky. 1957 ); Walton v. Carter, 337 S.W.2d 674, 1960 Ky. LEXIS 363 ( Ky. 1960 ); Raney v. Stovall, 361 S.W.2d 518, 1962 Ky. LEXIS 246 ( Ky. 1962 ); Ward v. Louisville & N. R. Co., 402 S.W.2d 98, 1966 Ky. LEXIS 356 ( Ky. 1966 ); Commonwealth ex rel. Ross v. Lee's Ford Dock, Inc., 551 S.W.2d 236, 1977 Ky. LEXIS 463 ( Ky. 1977 ); McGuffey v. Hall, 557 S.W.2d 401, 1977 Ky. LEXIS 533 ( Ky. 1977 ); Legislative Research Com. by Prather v. Brown, 664 S.W.2d 907, 1984 Ky. LEXIS 300 ( Ky. 1984 ).

Opinions of Attorney General.

Where a city deeded its publicly owned right of way along a city street to the Department of Highways, the Department could not assume the responsibility for, or the costs of relocating sewer lines and laterals located within the public way. OAG 60-498 .

The governing bodies of the state university and colleges, under their power of appointment and their power to operate the institutions, have an area of reasonable discretion in effecting payment of recruiting expenses such as travel and lodging, whether those interviewed are employed or not, out of funds labeled “General Expense.” OAG 64-421 .

Scenic strips and easements adjacent to the highway rights of way could be legally purchased for beautification purposes and highway funds could be expended for such purpose. OAG 66-35 .

Road fund moneys used for payments in consideration of an employee’s resigning and relinquishing his right to appeal violate the constitution. OAG 68-237 .

The Department of Highways may lawfully allocate funds from its otherwise unencumbered, state financed personal service or litigation expense accounts to share in the expense of providing hearing examiners employed to conduct hearings on behalf of the personnel board. OAG 68-411 .

The fiscal court has no authority to pay a portion of a county judge’s salary or office expenses (that might be attributed to his road work) from the county road fund. OAG 68-581 .

Where the Legislature has failed to make necessary appropriations for payments under the workmen’s compensation law, premiums may properly be paid out of the unappropriated surplus in the general expenditure fund as a necessary expense. OAG 73-28 .

The appropriation by trust and agency accounts in the state budget is an appropriation as defined by KRS 45.010 (repealed) and as mentioned in this section, and the exclusion of bond project revenues by KRS 41.110 was designed to accommodate KRS 45.140 (repealed) since the trust and agency accounts do not require allotments, but to give the exclusion the meaning that appropriations are not necessary for bond project revenues placed in the State Treasury would place it squarely in conflict with this section. OAG 73-173 .

In view of this section and KRS 41.110 , the payment of costs cannot be mandatorily enforced against the state, although under KRS 453.010 the state may decide as to payment or nonpayment of costs based upon the factual and equitable considerations surrounding the litigation. OAG 73-430 .

Under this section and KRS 31.050 and 31.060 , and in view of KRS 41.110 and 45.230 (repealed), excess funds returned to the public defender at the end of the fiscal year may not be returned to a county as an addition to the maximum formula state grant provided. OAG 73-525 .

Where a county was delinquent in payments to the county employees’ retirement fund, which is a state fund under KRS 78.520 , and the board of trustees of the county employees’ retirement system proceeded under KRS 78.535 to collect this arrearage and the State Treasurer under the authority of KRS 44.030 paid the arrearage to the retirement system fund out of funds which had been granted to the delinquent county by the state public defender’s office (now Department of Public Advocacy) pursuant to KRS 31.050 and KRS 31.160 , subsequently issuing a check to the delinquent county only for the amount of the grant from the public defender’s office (now Department of Public Advocacy) less the retirement fund arrearage, this action violated neither this section nor KRS 41.110 . OAG 73-561 .

KRS 177.035 , which allows use of funds expended by the Department of Highways as part of improving and constructing highways for the relocation of utilities belonging to any municipality or municipally owned utility, does not offend this section. OAG 74-199 .

Sections 12 and 13 of part six of the 1974-76 Appropriations Act, appropriating the excess general fund revenue above a stated amount to the general contingency fund which may be allocated upon the orders of the governor to state agencies for enumerated purposes, are within the confines of Const., §§ 27, 28, 29 and this section. OAG 74-600 .

The Kentucky Horse Council is an agency of state government and all of its funds from whatever source received, including private sources, contributions and membership fees, upon receipt become public funds and are subject to all general constitutional and statutory provisions governing the audit, budgeting, accounting and expenditure of state funds. OAG 74-715 .

The Commonwealth cannot be sued nor can a judgment expend itself on the public treasury without a specific waiver of sovereign immunity. OAG 74-573 .

Although the responsibility for receiving and processing the documentation supportive of claims against the State and issuing the proper and legal warrants rests with the Department for Finance and Administration (now Finance and Administration Cabinet), the State Treasurer may question any particular warrant if it is done in good faith and on good constitutional grounds. OAG 76-221 .

Appropriations from the general fund to carry out the railroad rehabilitation program did not violate this section. OAG 78-103 .

There is a constitutional barrier against using road fund money for a transit authority. OAG 78-144 .

Road funds can only be expended for road purposes. OAG 78-217 .

Revenue going to the Kentucky retirement systems must be kept in the State Treasury, since it involves money for which the state or its agency is responsible for receiving and disbursing from time to time to retirees or their beneficiaries. OAG 79-396 .

Departments and agencies of the central state government can legally pay, out of the current operational account, the travel expenses of out-of-state persons invited to Kentucky for screening employment interviews, involving high level state management or cabinet positions, when the prospective employee will not agree to pay such expenses. OAG 80-37 .

The purpose of this section was to prevent the expenditure of the state’s money without the consent of the General Assembly. OAG 80-37 .

The expense allowance provided the county judge/executive in KRS 67.722 may be constitutionally funded from the county road fund, since such “administration of the local county road program” relates directly to the “cost of administration” of the county road program, as the terms “cost of administration” and “public highways” are used in this section and as envisioned in KRS 63.100 , and Const., § 180; under the same reasoning, if it can be reasonably determined as to what percentage of his work schedule the county judge/executive is engaged in administrative work relating to the county road program of construction, maintenance, and repair, that percentage factor may be applied to his salary to determine that precise part of his salary which may be funded out of the county road fund. OAG 80-377 .

Where a city receives funds disbursed by the state from various road use taxes and received by the city pursuant to KRS 177.369 , and the city places these funds in an interest-bearing special road fund account, the interest derived therefrom must be applied to the road related purposes set forth in KRS 177.365 since this section mandates this and subsection (2) of KRS 177.369 narrowly restricts expenditures for the construction, reconstruction and maintenance of urban roads and streets. OAG 81-143 .

There was nothing in this section which would prohibit the transfer by the state of surplus waste disposal lands to be used for industrial and commercial site development to a city at no cost, where the Commonwealth had long-standing commitments to the city to that effect. OAG 82-320 .

The funds received by the city under the municipal aid program are subject to the general mandate of this section concerning road expenditures; KRS 177.369(2) further limits permissible expenditures of such funds to only the “purpose of construction, reconstruction and maintenance of urban roads and streets set forth in KRS 177.365 ”; therefore, since a parking lot is not within the definition of “streets,” the city cannot expend its municipal aid funds to pave a public parking lot. OAG 82-492 .

The state’s money can only be spent with the consent of the Legislature; an appropriations act is merely legislation directing the payment of state money. OAG 84-184 .

The service fee, described in KRS 189A.050 (1) and (3), is constitutional, since it in no way violates Const., § 51; the 1984 Act (Chapter 165) enacting KRS 189A.050 has only one subject, “An Act relating to crimes and punishments.” The service fee is not an appropriation, as envisioned in this section and KRS 41.110 , and there is no intent expressed in KRS 189A.050 that such fees are to go into the State Treasury prior to disbursement. OAG 84-327 .

There is no constitutional provision that prohibits the state from entering into a contract for more than two (2) years; however, one who contracts with the state is chargeable with the knowledge of the limitations imposed on any state contract, and thus, the General Assembly is not required to appropriate funds after the biennium, if, in fact, general funds are required. OAG 89-16 .

When a local development project is referred to by name in a branch budget appropriation, the use of the project name is inseparable from a local entity’s receipt of the state funds. The appropriated funds can only be lawfully applied to a facility as named in the appropriation, and any inconsistent use of those funds by the Governor’s Office for Local Development or by any local entity receiving the funds would lack authorization from the General Assembly and would therefore be contrary to state law. OAG 2005-05 .

Agencies may enter into personal service contracts with terms extending past the expiration of the current fiscal biennium, subject to the power of the General Assembly to choose not to fund such contracts in future budgets. The Government Contract Review Committee can approve such contracts because the ultimate decision on funding for each biennium is made by the full legislative body. OAG 07-06 .

The purpose of a “funding out” provision is to ensure, for the contract holder’s benefit, that the contract holder has actual knowledge of the General Assembly’s power to refuse funding for the contract in future budgets, although actual knowledge of the power of the General Assembly is technically not required. A “funding out” provision would accomplish this purpose more effectively than the termination provision alone mandated by KRS 45A.695(1). OAG 07-06 .

Research References and Practice Aids

Cross-References.

Contracts for capital outlay or state printing, authority to enter into in anticipation of appropriations already made, KRS 45.011 .

Money not to be drawn from treasury unless appropriated, KRS 41.110 .

Publication of annual report of Treasurer, KRS 41.340 .

Kentucky Bench & Bar.

Lawson, Kentucky Governmental and Sovereign Immunity. Vol. 72, No. 2, March 2008, Ky. Bench & Bar 18..

Kentucky Law Journal.

Salamanca, The Constitutionality of an Executive Spending Plan, 92 Ky. L.J. 149 (2003).

Northern Kentucky Law Review.

Article: Government Tort Liability: A Survey Examination of Liability for Public Employers and Employees in Kentucky,36 N. Ky. L. Rev. 377 (2009).

§ 231. Suits against the Commonwealth.

The General Assembly may, by law, direct in what manner and in what courts suits may be brought against the Commonwealth.

NOTES TO DECISIONS

Analysis

1.Sovereign Immunity.

The Commonwealth is immune from suit unless the right of action is conferred by the constitution or by legislative act pursuant thereto. Reeves v. Jefferson County, 245 S.W.2d 606, 1951 Ky. LEXIS 1263 ( Ky. 1951 ).

Under this section no one may sue the state without its consent. Bach v. Bach, 288 S.W.2d 52, 1956 Ky. LEXIS 243 ( Ky. 1956 ).

The sovereign immunity granted by this section may not be waived except by legislative action and need not necessarily be pleaded as an affirmative defense to operate as a bar to action against the state. Commonwealth, Dep't of Highways v. Davidson, 383 S.W.2d 346, 1964 Ky. LEXIS 32 ( Ky. 1964 ).

The Attorney General did not infringe any constitutional provision or federal law merely by asserting the doctrine of sovereign immunity as a defense in a wrongful death action against the Commonwealth. Ellison v. Stephens, 581 F.2d 584, 1978 U.S. App. LEXIS 9494 (6th Cir. Ky. 1978 ).

Without regard to the question of sovereign immunity, the Legislature has the express power to enact legislation fixing venue and limitations for all actions including contract actions brought against an agency of the Commonwealth. H. E. Cummins & Sons Constr. Co. v. Turnpike Authority, 562 S.W.2d 651, 1977 Ky. App. LEXIS 899 (Ky. Ct. App. 1977).

Sovereign immunity does not contradict §§ 14, 26 or any other parts of the State Constitution. Rooks v. University of Louisville, 574 S.W.2d 923, 1978 Ky. App. LEXIS 639 (Ky. Ct. App. 1978), overruled, Guffey v. Cann, 766 S.W.2d 55, 1989 Ky. LEXIS 4 ( Ky. 1989 ).

Where sovereign immunity exists by reason of the Constitution under this section, the General Assembly may extend for limit waiver as it sees fit, but where no constitutionally protected sovereign immunity exists the General Assembly cannot by statute create it or it is in violation of the rights preserved to citizens under §§ 14, 54 and 241 of the Constitution. Kentucky Center for Arts Corp. v. Berns, 801 S.W.2d 327, 1990 Ky. LEXIS 142 ( Ky. 1990 ).

The Environmental Protection Cabinet is a state agency enjoying sovereign immunity. Lisack v. Natural Resources & Environmental Protection Cabinet, 840 S.W.2d 835, 1992 Ky. App. LEXIS 223 (Ky. Ct. App. 1992).

Since 1792, nothing could be clearer in Kentucky law than the principle that counties enjoy sovereign immunity from ordinary tort liability, the same immunity as the Commonwealth. Kenton County Pub. Parks Corp. v. Modlin, 901 S.W.2d 876, 1995 Ky. App. LEXIS 70 (Ky. Ct. App. 1995).

Where sovereign immunity exists, it is not lost or diminished or affected in any manner by the purchase of liability insurance or the establishment of an indemnity fund, whether directed or authorized by statute or merely undertaken without authorization, notwithstanding that such may have been an unnecessary expenditure of funds. All claims against immune entities fall squarely within the purview of the Board of Claims Act where resides exclusive jurisdiction for claims against the entity; the Board of Claims Act and sovereign immunity are co-extensive; a plea of sovereign immunity is an admission of Board of Claims jurisdiction. Withers v. University of Kentucky, 939 S.W.2d 340, 1997 Ky. LEXIS 29 ( Ky. 1997 ).

The doctrine of sovereign immunity applies to boards of education and board members acting in their official capacities with regard to contract, as well as tort claims. Ammerman v. Board of Educ. of Nicholas County, 30 S.W.3d 793, 2000 Ky. LEXIS 132 ( Ky. 2000 ).

Although a county and the county officials were immune from suit when the officials acted in their official capacities, the officials had no immunity in regards to the replacement of a missing sign, which was a ministerial function; as a result, the trial court erred in granting summary judgment to the officials. Estate of Clark v. Daviess County, 105 S.W.3d 841, 2003 Ky. App. LEXIS 59 (Ky. Ct. App. 2003).

KRS 75.070 is unconstitutional to the extent it attempts to confer sovereign immunity on firefighters and fire departments for negligence in the course of firefighting; the general assembly had no power to extend sovereign immunity beyond the limits of the area protected by Ky. Const. § 231, as doing so was contrary to Ky. Const. §§ 14, 54 and 241. Green's Motorcycle Salvage, Inc. v. Caneyville Volunteer Fire Dep't, 2007 Ky. App. LEXIS 197 (Ky. Ct. App. June 29, 2007), rev'd, 286 S.W.3d 790, 2009 Ky. LEXIS 158 ( Ky. 2009 ).

In a suit filed by opposition political party members who alleged that their First Amendment rights to freedom of association were infringed by defendant politician’s recommendation that a fellow political party member be appointed to a position on the Kentucky Transportation Cabinet (KTC), the KTC was found to be immune from suit under U.S. Const. amend. XI because the opposition party members failed to allege that the state Legislature had explicitly waived the KTC’s sovereign immunity under Ky. Const. § 231. Wilder v. Hall, 501 F. Supp. 2d 887, 2007 U.S. Dist. LEXIS 63645 (E.D. Ky. 2007 ).

As no statute, regulation, or case law imposed a duty on the Kentucky Department of Highways (KDH) to the general public or to adjoining landowners to remove defective trees, its failure to remove a dead tree on KDH-owned property was not a “ministerial act” as that term is used in KRS 44.073(2). Therefore, a homeowner’s claim against the KDH for damage to his property caused by a fallen tree was barred by sovereign immunity. Commonwealth v. Sexton, 256 S.W.3d 29, 2008 Ky. LEXIS 161 ( Ky. 2008 ).

Where the estate representative’s medical negligence complaint filed in the trial court was dismissed on sovereign immunity grounds, the estate representative was entitled to timely refile the complaint before the proper forum, the Board of Claims, based on the tolling provision in KRS 413.270 . Commonwealth of Ky. Univ. of Ky. Hosp. v. Douglas, 2008 Ky. App. LEXIS 228 (Ky. Ct. App. July 18, 2008), review denied, ordered not published, 2009 Ky. LEXIS 224 (Ky. Aug. 19, 2009).

Property owners’ claims against a fire department and a city were dismissed because KRS 75.070 and 95.830(2) provided the fire department with sovereign immunity, the statutes were constitutional under Ky. Const. §§ 230 and 231, and the statutes did not violate the jural rights doctrine under Ky. Const. §§ 14, 54, and 241. Caneyville Volunteer Fire Dep't v. Green's Motorcycle Salvage, Inc., 286 S.W.3d 790, 2009 Ky. LEXIS 158 ( Ky. 2009 ).

Regarding the reduction of retirement benefits, the overwhelming implication of KRS 61.692 and KRS 418.075 was that the Commonwealth had waived sovereign immunity, even if it was not clear that there was an express waiver of such as indicated by the language of the statutes themselves. That the Commonwealth could not successfully claim that the doctrine of sovereign immunity could bar a declaratory judgment action against it was evident in KRS 61.645(2)(a) that stated the Board could sue and be sued, which included the attempt under KRS 61.637(1) to reduce retiree benefits for those individuals who had returned to public employment and Ky. Const. § 231 stating that the legislature had to authority to waive immunity. Commonwealth v. Ky. Ret. Sys., 396 S.W.3d 833, 2013 Ky. LEXIS 84 ( Ky. 2013 ).

Trial court clerk bringing a slip and fall case against the local governments and local government officials could not maintain a claim against any of them. Under Ky. Const. § 231, the local governments were subdivisions of the Commonwealth and, thus, had the same sovereign immunity as the Commonwealth had, and the officials who were sued in their official capacity according to a commonsense reading of the complaint likewise had that immunity. Edmonson County v. French, 394 S.W.3d 410, 2013 Ky. App. LEXIS 30 (Ky. Ct. App. 2013).

Circuit court properly granted the Commonwealth’s motion for summary judgment because a managing contractor’s claim was for indemnity from the Commonwealth, for which there was no provision in the contract, nor had there been a statutory waiver of sovereign immunity. D. W. Wilburn, Inc. v. Painting Co., 577 S.W.3d 782, 2019 Ky. App. LEXIS 66 (Ky. Ct. App. 2019).

2.— General Assembly.

The General Assembly has the right to define or extend the provisions for suit against the state, however, any changes in the law or extension of sovereign immunity is a substantive and not a procedural matter. The General Assembly can by appropriate statute vitiate the interpretations of the statutory law made by the Supreme Court of Kentucky but, unless expressly provided, it can do so only in a prospective or future sense or in futuro as distinguished from retroactively or in an ex post facto manner. University of Louisville v. O'Bannon, 770 S.W.2d 215, 1989 Ky. LEXIS 12 ( Ky. 1989 ).

When it was held that the legislature violated Ky. Const. § 51 by transferring funds from workers’ compensation accounts to the general fund, the governor could not be ordered to restore funds that were previously transferred because this violated sovereign immunity, as provided in Ky. Const. §§ 230 and 231. Beshear v. Haydon Bridge Co., 416 S.W.3d 280, 2013 Ky. LEXIS 582 ( Ky. 2013 ).

3.—Universities.

The University of Kentucky and its Medical Center are entitled to sovereign immunity under the Constitution. Withers v. University of Kentucky, 939 S.W.2d 340, 1997 Ky. LEXIS 29 ( Ky. 1997 ).

University of Kentucky Medical Center (UKMC) was immune from liability for its employee’s allegedly making a false report to authorities that a child’s meconium stool sample tested positive for drugs, which led to the child’s being placed in foster care, since the functions of the UKMC in question were governmental. Garrison v. Leahy-Auer, 220 S.W.3d 693, 2006 Ky. App. LEXIS 151 (Ky. Ct. App. 2006).

Plaintiff student-athlete could not maintain a claim for breach of contract under Kentucky law against defendant university premised on a student athlete handbook because the state sovereign immunity doctrine barred suit with respect to the claim, and the immunity could not be waived in federal district court by any action of defendant’s own volition, such as the creation or adoption of any written document that may purport or appear to bind the university, its employees or both. Even assuming that any such contract or agreement between defendant and plaintiff existed and that any waiver was permitted, it would have been of a limited nature, and plaintiff would have needed to proceed on any written contract as set forth in KRS 45A.245(1) in a suit against the commonwealth in state court. Green v. Sandy, 2011 U.S. Dist. LEXIS 114718 (E.D. Ky. Oct. 3, 2011).

University of Kentucky was entitled to immunity based on caselaw; plaintiffs chose not to bring their claims through the Kentucky Claims Commission, for which the university could not have raised an immunity defense, and the court declined plaintiffs’ request to create an exception to Ky. Const. § 231 and hold that the university was not immune because its institutional control of the arena was not an integral state function. Saunier v. Lexington Ctr. Corp., 2020 Ky. App. LEXIS 68 (Ky. Ct. App. Apr. 17, 2020, sub. op., 2020 Ky. App. Unpub. LEXIS 825 (Ky. Ct. App. Apr. 17, 2020).

4.— Schools.

In an action by students arising from inappropriate touchings by a teacher, school officials were immune from allegations against them both in their official and individual capacities. Wilson v. Webb, 2000 U.S. App. LEXIS 23585 (6th Cir. Ky. Sept. 13, 2000).

5.— Extent.

The constitutional immunity of the Commonwealth from suits against it without its consent does not extend to subordinate arms of the state or independent contractors. Taylor v. Westerfield, 233 Ky. 619 , 26 S.W.2d 557, 1930 Ky. LEXIS 640 ( Ky. 1930 ).

The county is a political subdivision of the state and is clothed with immunity from tort liability. Pursuant to KRS 67A.060(1) urban county government retains the immunities of county government; it is, like a county government, an arm of the state entitled to the protective cloak of sovereign immunity. Hempel v. Lexington-Fayette Urban County Government, 641 S.W.2d 51, 1982 Ky. App. LEXIS 261 (Ky. Ct. App. 1982).

The airport board was established by either the city or the county, and pursuant to KRS 67A.010 , became a county agency prior to the time of the tort involved; therefore, the immunity of the state and the county was extended to the air board. Inco, Ltd. v. Lexington-Fayette Urban County Airport Bd., 705 S.W.2d 933, 1985 Ky. App. LEXIS 679 (Ky. Ct. App. 1985).

The Kentucky Center for the Arts Corporation is not under the “direction and control” of the central state government but of its directors who are appointed for four (4) year terms and act autonomously and cannot be removed except for cause; and this coupled with the fact that the purpose of the Arts Corporation is to provide entertainment, albeit in the name of promoting tourism and thus the economic welfare of Louisville and Jefferson County, these facts compel the conclusion that the constitutional fathers would not view this activity as qualifying for sovereign immunity. Kentucky Center for Arts Corp. v. Berns, 801 S.W.2d 327, 1990 Ky. LEXIS 142 ( Ky. 1990 ).

The line between what is a state agency and what is a municipal corporation is not divided by whether the entity created by state statute is or is not a city, but whether, when viewed as a whole, the entity is carrying out a function integral to state government and the Kentucky Center for the Arts Corporation does not qualify for sovereign immunity under this concept. Kentucky Center for Arts Corp. v. Berns, 801 S.W.2d 327, 1990 Ky. LEXIS 142 ( Ky. 1990 ).

In establishing the sovereign immunity principle, Const. § 230 and this section make no distinction between the intentional and unintentional torts; a wrong is a wrong, whether intentionally or negligently committed, but unless the Constitution is changed the sovereign state cannot be held liable in a court of law for either intentional or unintentional torts committed by its agents. Calvert Invest., Inc. v. Louisville & Jefferson County Metro. Sewer Dist., 805 S.W.2d 133, 1991 Ky. LEXIS 17 ( Ky. 1991 ).

The Supreme Court rejected extending sovereign immunity beyond what the Constitution demands; the concept that the government can do no wrong or that the government cannot afford to compensate those whom it wrongs in circumstances where a private entity would be required to pay is unacceptable in a just society. Calvert Invest., Inc. v. Louisville & Jefferson County Metro. Sewer Dist., 805 S.W.2d 133, 1991 Ky. LEXIS 17 ( Ky. 1991 ).

The Commonwealth of Kentucky is immune from civil suit except as provided by the General Assembly; the Board of Claims has exclusive jurisdiction over claims for damages arising from alleged negligence, such as a claim that the state negligently trained and supervised a state trooper or that the trooper negligently failed to provide for the safety of a prisoner who committed suicide in a county jail. Franklin County v. Malone, 957 S.W.2d 195, 1997 Ky. LEXIS 105 ( Ky. 1997 ), overruled in part, Commonwealth Bd. of Claims v. Harris, 59 S.W.3d 896, 2001 Ky. LEXIS 198 ( Ky. 2001 ), overruled in part, Yanero v. Davis, 65 S.W.3d 510, 2001 Ky. LEXIS 203 ( Ky. 2001 ).

Trial court’s dismissal of a minor decedent’s estate administrator’s negligence action against a state agency, arising from the death of the minor due to child abuse by the mother’s live-in boyfriend, was proper, as the actions of the agency’s workers were discretionary and the limited waiver of governmental immunity under KRS 44.073(2) was not applicable; the agency workers properly responded to charges of abuse and implemented proper procedures and safeguards, but they were unaware who the abusive person actually was due to the false representations as to the incidents by the minor and her mother, and they were protected by immunity under Ky. Const., § 231. Stratton v. Commonwealth, 182 S.W.3d 516, 2006 Ky. LEXIS 16 ( Ky. 2006 ).

6.—Waiver.

The immunity of the Commonwealth of Kentucky from suit in federal court was not waived by mere filing of pleadings by State Property and Buildings Commission in declaratory judgment case and such immunity has not been relinquished by the General Assembly as required by this section. Walker v. Felmont Oil Corp., 240 F.2d 912, 1957 U.S. App. LEXIS 4842 (6th Cir. Ky. 1957 ).

When Commonwealth consents to be sued it normally acquires the same rights and is subject to the same limitations as any other litigant. Commonwealth v. Bowman, 267 Ky. 50 , 100 S.W.2d 801, 1936 Ky. LEXIS 751 ( Ky. 1936 ).

The General Assembly may, in waiving by legislation, the immunity of the Commonwealth from suit, impose such restrictions, conditions and procedures as it sees fit. Commonwealth v. McCoun, 313 S.W.2d 585, 1958 Ky. LEXIS 272 ( Ky. 1958 ).

Where investors sought to recover from the Commonwealth money damages allegedly caused by the state’s violation of federal securities laws, the action could not be maintained since the state’s entry, in a regulatory capacity, into the area of securities did not constitute an implied waiver of immunity from suit. Yeomans v. Kentucky, 514 F.2d 993, 1975 U.S. App. LEXIS 14929 (6th Cir. Ohio), cert. denied, 423 U.S. 983, 96 S. Ct. 404, 46 L. Ed. 2d 309, 1975 U.S. LEXIS 3409 (U.S. 1975).

This section of the Constitution has limited the right to waive sovereign immunity to the General Assembly. University of Louisville v. Martin, 574 S.W.2d 676, 1978 Ky. App. LEXIS 627 (Ky. Ct. App. 1978).

The Board of Claims Act, KRS 44.070 to 44.160 , is a partial waiver of the Commonwealth’s sovereign immunity. Department of Education v. Blevins, 707 S.W.2d 782, 1986 Ky. LEXIS 257 ( Ky. 1986 ).

The waiver of sovereign immunity granted by the Board of Claims Act, KRS 44.070 to 44.160 , does not exclude a parent’s claim for loss of affection and companionship of a minor child as created by KRS 411.135 . Department of Education v. Blevins, 707 S.W.2d 782, 1986 Ky. LEXIS 257 ( Ky. 1986 ).

This section permits the General Assembly to waive sovereign immunity by appropriate legislation. Dunlap v. University of Kentucky Student Health Servs. Clinic, 716 S.W.2d 219, 1986 Ky. LEXIS 300 ( Ky. 1986 ).

The plain, unmistakable meaning of the University of Kentucky Medical Malpractice Insurance Act, KRS 164.939 to 164.944 , is a partial waiver of governmental immunity for the hospital to the extent that this insurance fund has been provided for by this act. Dunlap v. University of Kentucky Student Health Servs. Clinic, 716 S.W.2d 219, 1986 Ky. LEXIS 300 ( Ky. 1986 ).

This section authorizes the creation of the Board of Claims Act which in some degree waives the Commonwealth’s sovereign immunity for limited remedies of certain claims. Moore v. Kentucky State Penitentiary, 789 S.W.2d 788, 1990 Ky. App. LEXIS 30 (Ky. Ct. App. 1990).

KRS 44.070 does not waive the state’s sovereign immunity in indemnity actions, nor does it violate this section maintaining the doctrine of sovereign immunity. It is the prerogative of the General Assembly, not the courts to waive immunity when and if it so chooses. Poole Truck Line v. Commonwealth Transp. Cabinet/Department of Highways by & Through Kelly, 892 S.W.2d 611, 1995 Ky. App. LEXIS 23 (Ky. Ct. App. 1995).

The University of Kentucky Medical Center Malpractice Insurance Act (KRS 164.939 et seq.) does not act as an express waiver of sovereign immunity. Withers v. University of Kentucky, 939 S.W.2d 340, 1997 Ky. LEXIS 29 ( Ky. 1997 ).

Waiver of sovereign immunity will be found only where stated by the most express language or such overwhelming implications from the text of a statute as will leave no room for any other reasonable construction. Withers v. University of Kentucky, 939 S.W.2d 340, 1997 Ky. LEXIS 29 ( Ky. 1997 ).

7.— Joint Resolutions.

A joint resolution authorizing named persons to sue the Commonwealth on certain claims in the Franklin Circuit Court is not a violation of this section. Such a resolution is not a law within the meaning of this section or Const., § 59. Commonwealth v. Haly, 106 Ky. 716 , 51 S.W. 430, 21 Ky. L. Rptr. 666 , 1899 Ky. LEXIS 93 ( Ky. 1899 ), limited, Carr v. Jefferson County, 275 Ky. 685 , 122 S.W.2d 482, 1938 Ky. LEXIS 475 ( Ky. 1938 ), limited, Wright's Adm'r v. Carroll County, 275 Ky. 690 , 122 S.W.2d 485, 1938 Ky. LEXIS 476 ( Ky. 1938 ).

Under this section a joint resolution of the General Assembly, approved by the Governor, is just as effective as a formal statute in authorizing a suit against the Commonwealth. Commonwealth v. Lyon, 72 S.W. 323, 24 Ky. L. Rptr. 1747 , 1903 Ky. LEXIS 435 (Ky. Ct. App. 1903).

General Assembly may waive immunity of the state from suit by resolution as well as by statute, but may not waive the immunity of a particular county. Carr v. Jefferson County, 275 Ky. 685 , 122 S.W.2d 482, 1938 Ky. LEXIS 475 ( Ky. 1938 ). See Wright's Adm'r v. Carroll County, 275 Ky. 690 , 122 S.W.2d 485, 1938 Ky. LEXIS 476 ( Ky. 1938 ).

8.— Board of Claims.

The board of claims was established by KRS 44.070 to 44.110 under the authority of this section and its function and power is judicial though limited. Motors Ins. Corp. v. Commonwealth, Dep't of Highways, 336 S.W.2d 44, 1960 Ky. LEXIS 316 ( Ky. 1960 ).

The Board of Claims Act which was enacted under the authority of this section does not create causes of action against the Commonwealth but waives sovereign immunity by providing a remedy for a particular character of claim. University of Kentucky v. Guynn, 372 S.W.2d 414, 1963 Ky. LEXIS 137 ( Ky. 1963 ).

6.—Waiver.

Deputy jailer’s retaliation claim was not barred by the doctrine of sovereign immunity because Ky. Rev. Stat. Ann. § 342.197 implicitly waived immunity for a county fiscal court, and a county jailer in his official capacity; only the county fiscal court qualified as a deputy jailer’s employer, and the county jailer was entitled to the same immunity to the extent he was sued in his official capacities, and the waiver, therefore, applied to him. Benningfield v. Fields, 584 S.W.3d 731, 2019 Ky. LEXIS 371 ( Ky. 2019 ).

9.Permissible Actions.

Where attorneys have been employed by the Governor to represent the state, a suit by them against the auditor to have a warrant for the compensation to which they are entitled under the contract, or entitled, if discharged by the Governor, is not a suit against the state. Gordon v. Morrow, 186 Ky. 713 , 218 S.W. 258, 1920 Ky. LEXIS 35 ( Ky. 1920 ).

Where the Commonwealth paid a contractor for work done instead of the assignee after the Commonwealth had accepted the assignment, the assignee had a right to maintain an action for the amount paid to the contractor and the Commonwealth was not protected by sovereign immunity. Fidelity & Casualty Co. v. Commonwealth, 445 S.W.2d 113, 1969 Ky. LEXIS 138 ( Ky. 1969 ).

Municipal corporations enjoy no constitutional protection from tort liability. Bolden v. Covington, 803 S.W.2d 577, 1991 Ky. LEXIS 9 ( Ky. 1991 ).

Both a county municipal sewer district and a county board of health when performing services similar to a private corporation, should be liable for their torts. Calvert Invest., Inc. v. Louisville & Jefferson County Metro. Sewer Dist., 805 S.W.2d 133, 1991 Ky. LEXIS 17 ( Ky. 1991 ).

10.— Damaging or Taking Property.

A suit against county for damages to property inflicted by constructing a sewer line is not prohibited by this section. Webster County v. Lutz, 234 Ky. 618 , 28 S.W.2d 966, 1930 Ky. LEXIS 241 ( Ky. 1930 ).

State Park Commission which has broad authority to take property and to sue and be sued in corporate name is not exempt under this section from suit for taking private property without compensation. Kentucky State Park Com. v. Wilder, 260 Ky. 190 , 84 S.W.2d 38, 1935 Ky. LEXIS 437 ( Ky. 1935 ).

11.— Suits Against Public Officers.

Mandamus to compel a state treasurer to surrender a fund deposited with him by an insurance company pursuant to a statute is not an action against the state under this section requiring legislative consent to such actions. Ill. Life Ins. Co. v. Prewitt, 123 Ky. 36 , 93 S.W. 633, 29 Ky. L. Rptr. 447 , 1906 Ky. LEXIS 120 (Ky. Ct. App. 1906).

Agents and boards created by the state may be compelled to do something the state authorizes them to do, or be restrained from doing things that the state does not authorize them to do, when it is necessary to compel or restrain as the case may be, to prevent injury or injustice to the complaining party and this does not constitute a suit against the Commonwealth within the meaning of this section. Reliance Mfg. Co. v. Board of Prison Comm'rs, 161 Ky. 135 , 170 S.W. 941, 1914 Ky. LEXIS 67 ( Ky. 1914 ).

State Highway Commission members are subject to restraint where they are threatening injury or wrong to property rights, and landowners’ suit to enjoin diverting waters of creek which would flood their land was not suit against Commonwealth requiring state’s consent under this section. Anderson v. State Highway Com., 252 Ky. 696 , 68 S.W.2d 5, 1934 Ky. LEXIS 839 ( Ky. 1934 ).

Actions to compel state officers to perform duty imposed or refrain from actions prohibited by law are not actions against the Commonwealth prohibited by this section. Louisville v. Martin, 284 Ky. 490 , 144 S.W.2d 1034, 1940 Ky. LEXIS 505 ( Ky. 1940 ).

12.Impermissible Actions.

Action against State Park Commission, claiming a joint interest in property, and seeking sale of same because of indivisibility is a suit brought against the Commonwealth, and cannot be maintained without its consent. Kentucky State Park Com. v. Wilder, 256 Ky. 313 , 76 S.W.2d 4, 1934 Ky. LEXIS 401 ( Ky. 1934 ).

Actions directly against the Commonwealth or against an officer or agency who are but nominal parties, the Commonwealth being the real party in interest may not be maintained, unless such action has been authorized by law. Louisville v. Martin, 284 Ky. 490 , 144 S.W.2d 1034, 1940 Ky. LEXIS 505 ( Ky. 1940 ).

Where Highway Department in reconstructing highway did nothing beyond what was authorized by the right of way deeds, there was no condemnation in reverse under Const., § 242 and suit for damages by abutting landowners is barred by doctrine of sovereign immunity as established by this section. Commonwealth, Dep't of Highways v. Davidson, 383 S.W.2d 346, 1964 Ky. LEXIS 32 ( Ky. 1964 ).

Because a school board is protected by state sovereign immunity from a suit for money damages for an injury wrongfully inflicted, whether the cause of action is common law or statutory, and because the United States Supreme Court has decided that where such is the case the state sovereign immunity defense will prevail against a 42 USCS § 1983 claim, a claim for money damages brought by a union against a school board for refusing to deduct union dues was properly dismissed by the trial court. Clevinger v. Board of Educ., 789 S.W.2d 5, 1990 Ky. LEXIS 40 ( Ky. 1990 ).

School board was immune from damages sought under KRS 446.070 for failure to deduct union dues from employees’ wages. Clevinger v. Board of Educ., 789 S.W.2d 5, 1990 Ky. LEXIS 40 ( Ky. 1990 ).

General Assembly has never explicitly waived sovereign immunity to bring a common law claim for loss of parental consortium; until the legislature provides otherwise, common law claims for loss of parental consortium against the Commonwealth and its political subdivisions, such as Louisville Metro Government, are barred by sovereign immunity. A.H. v. Louisville Metro Gov't, 612 S.W.3d 902, 2020 Ky. LEXIS 445 ( Ky. 2020 ).

13.— Garnishment.

In an action on a note executed by one having money due him for work on state highways, the Commonwealth cannot be proceeded against by garnishment under this section. B. B. Wilson Co. v. Van Diver, 230 Ky. 27 , 18 S.W.2d 308, 1929 Ky. LEXIS 3 ( Ky. 1929 ). But see Batesville Casket Co. v. Fields, 288 Ky. 104 , 155 S.W.2d 743, 1941 Ky. LEXIS 63 ( Ky. 1941 ).

14.— Breach of Contract.

State Department of Highways could not be sued for damages for breach of contract, in the absence of statute authorizing such suit. Foley Constr. Co. v. Ward, 375 S.W.2d 392, 1963 Ky. LEXIS 190 ( Ky. 1963 ).

Suit against state for damages resulting from breach of contract was barred by the doctrine of sovereign immunity. Wells v. Commonwealth, Dep't of Highways, 384 S.W.2d 308, 1964 Ky. LEXIS 86 ( Ky. 1964 ).

15.— Personal Injuries.

Board of education of school district was entitled to sovereign immunity from suit for injuries to student. Wood v. Board of Education, 412 S.W.2d 877, 1967 Ky. LEXIS 445 ( Ky. 1967 ).

Sovereign immunity extends to a county and county board of education so as to provide immunity in a suit against them for personal injuries occurring on school property. Cullinan v. Jefferson County, 418 S.W.2d 407, 1967 Ky. LEXIS 212 ( Ky. 1967 ), overruled in part, Yanero v. Davis, 65 S.W.3d 510, 2001 Ky. LEXIS 203 ( Ky. 2001 ).

Sovereign immunity extends to counties so as to make a county immune to a suit for personal injuries sustained on the premises of the county courthouse. Moores v. Fayette County, 418 S.W.2d 412, 1967 Ky. LEXIS 213 ( Ky. 1967 ).

16.Statute of Limitations.

Limitation does not begin to run in favor of the Commonwealth until permission has been granted to maintain a suit against it. Commonwealth v. Haly, 106 Ky. 716 , 51 S.W. 430, 21 Ky. L. Rptr. 666 , 1899 Ky. LEXIS 93 ( Ky. 1899 ), limited, Carr v. Jefferson County, 275 Ky. 685 , 122 S.W.2d 482, 1938 Ky. LEXIS 475 ( Ky. 1938 ), limited, Wright's Adm'r v. Carroll County, 275 Ky. 690 , 122 S.W.2d 485, 1938 Ky. LEXIS 476 ( Ky. 1938 ).

17.Injunctive Relief.

This section cannot be used as a bar to litigants seeking prospective injunctive relief for violations of federally protected rights against state officials. Board of Trustees v. Hayse, 782 S.W.2d 609, 1989 Ky. LEXIS 99 ( Ky. 1989 ), cert. denied, 497 U.S. 1025, 110 S. Ct. 3273, 111 L. Ed. 2d 783, 1990 U.S. LEXIS 3655 (U.S. 1990), cert. denied, 498 U.S. 938, 111 S. Ct. 341, 112 L. Ed. 2d 306, 1990 U.S. LEXIS 5568 (U.S. 1990), overruled in part, Yanero v. Davis, 65 S.W.3d 510, 2001 Ky. LEXIS 203 ( Ky. 2001 ).

18.Ministerial Duties.

Whether an athletic director negligently performed his duties with respect to a concession stand was for the trier of fact to decide because it was a ministerial duty; thus, summary judgment in a volunteer parent’s negligence action against the athletic director after she was injured by the concession stand’s overhead door was inappropriate. An act was not necessarily taken out of the class styled “ministerial” because the officer performing it was vested with a discretion respecting the means of method to be employed, and although the athletic director might have possessed some discretion concerning the door and window configuration in the concession stand, the task itself was ministerial in nature. Faulkner v. Greenwald, 358 S.W.3d 1, 2011 Ky. App. LEXIS 45 (Ky. Ct. App. 2011).

Cited:

Commonwealth v. Bowman, 267 Ky. 50 , 100 S.W.2d 801, 1936 Ky. LEXIS 751 ( Ky. 1936 ); Daniel’s Adm’r v. Hoofnel, 287 Ky. 834 , 155 S.W.2d 469, 1941 Ky. LEXIS 6 54 ( Ky. 1941 ); Department of Conservation v. Sowders, 244 S.W.2d 464, 1951 Ky. LEXIS 1220 ( Ky. 1951 ); Curlin v. Ashby, 264 S.W.2d 671, 1954 Ky. LEXIS 6 88 ( Ky. 1954 ); Rather v. Allen County War Memorial Hospital, 429 S.W.2d 860, 1968 Ky. LEXIS 764 ( Ky. 1968 ); Commonwealth Dep’t of Parks v. Bergee Bros., Inc., 480 S.W.2d 158, 1972 Ky. LEXIS 274 ( Ky. 1972 ); Commonwealth, Dep’t of Highways v. Shamrock Corp. of Kentuckiana, Inc., 501 S.W.2d 584, 1973 Ky. LEXIS 137 ( Ky. 1973 ); Holloway Constr. Co. v. Smith, 683 S.W.2d 248, 1984 Ky. LEXIS 279 ( Ky. 1984 ); Cabinet for Human Resources Commonwealth v. Poore, 711 S.W.2d 498, 1986 Ky. App. LEXIS 1156 (Ky. Ct. App. 1986); Kestler v. Transit Auth., 758 S.W.2d 38, 1988 Ky. LEXIS 63 ( Ky. 1988 ); Commonwealth Transp. Cabinet Dep’t of Highways v. Abner, 810 S.W.2d 504, 1991 Ky. LEXIS 73 ( Ky. 1991 ); Commonwealth, Transp. Cabinet, Bureau of Highways v. Roof, 913 S.W.2d 322, 1996 Ky. LEXIS 6 ( Ky. 1996 ); Criswell v. Wayne County, 165 F.3d 26, 1998 U.S. App. Lexis 36470 (6th Cir. 1998).

Notes to Unpublished Decisions

Analysis

1.Sovereign Immunity.
6.—Waiver.

Unpublished Decision: Ky. Rev. Stat. Ann. § 45A.245(1) waives the defense of governmental immunity in all claims based upon lawfully authorized written contracts, and the legislature chose to utilize this language, without restriction or limitation; there is no reason, therefore, to impose a constraint unintended or unexpressed by the General Assembly, and clearly, the legislature has waived governmental immunity on all claims brought by all persons on all lawfully authorized written contracts with the Commonwealth. Univ. of Louisville v. Rothstein, 532 S.W.3d 644, 2017 Ky. LEXIS 449 ( Ky. 2017 ).

Unpublished Decision: Because plaintiff's claims against Murray State University (MSU) would be state law claims, MSU was unable to waive its sovereign immunity without legislative action, and plaintiff had not pointed to any Kentucky statute that would waive MSU's immunity. Bleid Sports, LLC v. NCAA, 976 F. Supp. 2d 911, 2013 U.S. Dist. LEXIS 138286 (E.D. Ky. 2013 ).

2.— Waiver.

Unpublished decision: In an action by a group of disadvantaged business enterprises (DBE) under 42 U.S.C.S. § 1983 claiming a due process violation based on fraudulent administration of the DBE program by the Kentucky Transportation Cabinet and two state officials in their official capacities, the court properly dismissed the claim based on sovereign immunity; although § 1983 was adopted pursuant to U.S. Const. amend. XIV, § 5, Congress did not indicate its intent to abrogate state sovereign immunity. Further, Ky. Const. § 231 showed that Kentucky did not intend to subject itself to suit in federal court. Chaz Constr., LLC v. Codell, 137 Fed. Appx. 735, 2005 FED App. 0386N, 2005 U.S. App. LEXIS 8453 (6th Cir. Ky. 2005 ).

Unpublished decision: In an action by a group of disadvantaged business enterprises (DBE) claiming a civil violation of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C.S. § 1961 et seq., based on fraudulent administration of the DBE program by the Kentucky Transportation Cabinet and two state officials in their official capacities, the court properly dismissed the claim based on sovereign immunity; Congress did not abrogate state sovereign immunity under U.S. Const. amend. XI, and Ky. Const. § 231 showed that Kentucky did not intend to subject itself to suit in federal court. Chaz Constr., LLC v. Codell, 137 Fed. Appx. 735, 2005 FED App. 0386N, 2005 U.S. App. LEXIS 8453 (6th Cir. Ky. 2005 ).

Opinions of Attorney General.

Property owned by the Commonwealth, even in its proprietary capacity, may not be taken by a city or its urban renewal agency in eminent domain proceedings. OAG 64-197 .

Under this section, the division of forestry, acting under its statutory authorization to control forest pests and infestations pursuant to KRS 149.610 to 149.680 , would be immune from liability for damages resulting from the recommendation of the use of approved pesticides or the use of pesticides no longer recommended for use, except where the division of forestry uses DDT for any unauthorized purpose as provided in KRS 217.556 (repealed). OAG 70-373 .

The general statutes of limitation have no application to the presentation for payment of warrants issued by a fiscal court. OAG 70-549 .

Boards of education are immune from suits for negligence of their employees both as to actions in the circuit court and in the board of claims under KRS ch. 44. OAG 70-801 .

A county hospital as such is not suable in tort action and the county maintaining the county hospital is immune from tort liability under this section as a political subdivision of the state except to the extent of insurance coverage where KRS 67.186 is invoked. OAG 75-19 .

KRS Chapter 338, relating to occupational safety and health, in not excluding the state or its subdivisions from its scope has waived sovereign immunity for penalties against such entities. OAG 75-161 .

A county cannot be held liable for any injuries that may be sustained on any private, public or county road, due to improper maintenance because of sovereign immunity. OAG 75-236 .

Although the Commonwealth of Kentucky is immune from all lawsuits unless the General Assembly provides otherwise, if a private agency with whom the state had a contract failed to provide adequate services to recipients for whom the state is mandated to provide services, under KRS 44.070 the injured party may file a complaint against the board of claims or against the agent of the state and both the state and the agency would be responsible. OAG 75-250 .

The legislature did not waive sovereign immunity pursuant to KRS 147.080 (repealed) by authorizing the board therein to sue and be sued. OAG 75-458 .

The county, as well as the State, is still clothed with sovereign immunity. OAG 78-234 .

With the exception of situations covered by KRS 44.070 , 67.180 , 67.186 and 160.310 , a county is not liable for the tortious or negligent conduct of its employees who, within the scope of their employment, are performing a governmental function of the county. OAG 78-329 .

KRS 44.070 does no violence to this section. OAG 79-101 .

A county, as a political subdivision of the Commonwealth and as an arm of state government, is clothed with sovereign immunity from tort liability. OAG 79-101 .

A county had no liability as to a motorist’s cracked windshield suffered on a county road during a storm, regardless of whether the damage was proximately caused by an act of God or by a road defect. OAG 80-538 .

A county is immune from liability, generally, under the doctrine of sovereign immunity. OAG 80-538 .

The Legislature has enacted no statute that specifically allows a civil action to be maintained against the Commonwealth to recover for damages caused by wild deer crossing roadways or entering onto private lands. OAG 90-70 .

There being no legislative waiver of the Commonwealth’s immunity from suit for damage by wild deer, and there being no legal duty of the Commonwealth to prevent wild deer from damaging persons or property such as would give rise to a Board of Claims action sounding in negligence, the Commonwealth of Kentucky, Department of Fish and Wildlife Resources, incurs no legal liability as a result of wild deer injuring persons or damaging property. OAG 90-70 .

Research References and Practice Aids

Cross-References.

Board of claims to hear damage claims against state agencies, KRS 44.070 to 44.160 .

Kentucky Bench & Bar.

Meier, State Board of Claims — Liability and Limitations, Vol. 58, No.1, Winter 1994, Ky. Bench & Bar 14.

Lawson, Kentucky Governmental and Sovereign Immunity. Vol. 72, No. 2, March 2008, Ky. Bench & Bar 18..

Breen, “We Have Seen the Enemy and He Is Us.” An Essay on Sovereign Immunity in Kentucky. Vol. 72, No. 2, March 2008, Ky. Bench & Bar 19..

Kentucky Law Journal.

Comments, The Employee Defense Act: Wearing Down Sovereign Immunity, 66 Ky. L.J. 150 (1977-78).

Snell, A Plea for a Comprehensive Liability Statute, 74 Ky. L.J. 521 (1985-86).

Hamm, The Reemergence of the Sovereign Immunity Doctrine in Kentucky, 87 Ky. L.J. 439 (1998-99).

Northern Kentucky Law Review.

Notes, University of Louisville v. O’Bannon: Retroactive Application of Board of Claims Act Amendments, 18 N. Ky. L. Rev. 121 (1990).

Article: Government Tort Liability: A Survey Examination of Liability for Public Employers and Employees in Kentucky,36 N. Ky. L. Rev. 377 (2009).

Kentucky Survey Issue: Article: If a Tree Falls on a House, Will the State Hear It?: A Kentucky Survey of Adjacent Landowner Liability Due to Encroaching Vegetation, 38 N. Ky. L. Rev. 355 (2011).

§ 232. Manner of administering oath.

The manner of administering an oath or affirmation shall be such as is most consistent with the conscience of the deponent, and shall be esteemed by the General Assembly the most solemn appeal to God.

NOTES TO DECISIONS

Cited:

Taylor v. Todd, 241 Ky. 605 , 44 S.W.2d 606, 1931 Ky. LEXIS 148 ( Ky. 1931 ); Lanning v. Brown, 377 S.W.2d 590, 1964 Ky. LEXIS 497 ( Ky. 1964 ).

Opinions of Attorney General.

The prohibition in KRS 15.740 against a Commonwealth’s Attorney’s representation of defendants does not apply until the prospective Commonwealth’s Attorney has taken the oath of office under this section and § 228 of the Constitution; a prospective appointee has a reasonable time within which to qualify by taking the oath. OAG 85-80 .

Research References and Practice Aids

Cross-References.

Who may administer oath, KRS 62.020 .

§ 233. General laws of Virginia in force in this state until repealed.

All laws which, on the first day of June, one thousand seven hundred and ninety-two, were in force in the State of Virginia, and which are of a general nature and not local to that State, and not repugnant to this Constitution, nor to the laws which have been enacted by the General Assembly of this Commonwealth, shall be in force within this State until they shall be altered or repealed by the General Assembly.

NOTES TO DECISIONS

1.Construction.

This section incorporates into the laws of Kentucky the common law of England in force and effect there before March 24, 1607, as it was given force and effect by and in Virginia at its convention in 1776. Aetna Ins. Co. v. Commonwealth, 106 Ky. 864 , 51 S.W. 624, 21 Ky. L. Rptr. 503 , 1899 Ky. LEXIS 112 ( Ky. 1899 ).

This section does not limit or extend the effect of Const., § 251 with regard to land claimed under patents issued by the state of Virginia before June 1, 1792. Warfield Natural Gas Co. v. Ward, 286 Ky. 73 , 149 S.W.2d 705, 1940 Ky. LEXIS 1 ( Ky. 1940 ).

This section authorizes the General Assembly to abrogate or modify the common law, including the abrogation or modification of common-law duties of constitutional state officers. Johnson v. Commonwealth, 291 Ky. 829 , 165 S.W.2d 820, 1942 Ky. LEXIS 329 ( Ky. 1942 ).

Although this section provides for the application of common law unless altered or repealed it was not the intent of the framers of the Constitution to shackle the judicial branch in its interpretation, modification or abolition of the body of mutable common law to meet the demands of changing times. Louisville v. Chapman, 413 S.W.2d 74, 1967 Ky. LEXIS 380 ( Ky. 1967 ).

2.Common Law.

The common law is now and always has been in force in this Commonwealth. Stith v. Louisville & N. R. Co., 109 Ky. 168 , 58 S.W. 600, 22 Ky. L. Rptr. 653 , 1900 Ky. LEXIS 189 ( Ky. 1900 ).

Principles and rules of common law of general nature prior to March 24, 1607, are in force in the Commonwealth, except as modified by the Constitution, statutes, judicial decisions and public policy. Commonwealth v. Donoghue, 250 Ky. 343 , 63 S.W.2d 3, 1933 Ky. LEXIS 693 ( Ky. 1933 ).

The common law is in force in the Commonwealth except as it has been modified by the Constitution, statute, judicial decisions, public policy. Burks v. Commonwealth, 259 S.W.2d 68, 1953 Ky. LEXIS 935 ( Ky. 1953 ).

3.— Statutory Repeal.

Statutory repeals of the common law as well as of other statutes are not favored and never declared unless clearly made to appear. Ruby Lumber Co. v. K. V. Johnson Co., 299 Ky. 811 , 187 S.W.2d 449, 1945 Ky. LEXIS 820 ( Ky. 1945 ).

The Court of Appeals is not at liberty to ignore the common law and a statutory intention to abrogate the common law will not be presumed. Ruby Lumber Co. v. K. V. Johnson Co., 299 Ky. 811 , 187 S.W.2d 449, 1945 Ky. LEXIS 820 ( Ky. 1945 ).

The intention to abrogate the common law is not presumed and the intention to repeal must be clearly apparent. Benjamin v. Goff, 314 Ky. 639 , 236 S.W.2d 905, 1951 Ky. LEXIS 714 ( Ky. 1951 ).

This section and its accompanying schedule explicitly recognize that the common law is subject to repeal or alteration. Fireman's Fund Ins. Co. v. Government Emples. Ins. Co., 635 S.W.2d 475, 1982 Ky. LEXIS 270 ( Ky. 1982 ), overruled, Perkins v. Northeastern Log Homes, 808 S.W.2d 809, 1991 Ky. LEXIS 44 ( Ky. 1991 ).

Where defendant was convicted of second-degree assault and tampering with physical evidence, the trial court did not commit plain error in permitting each party nine peremptory challenges. Because the Kentucky General Assembly did not improperly delegate its legislative duty to the Kentucky Supreme Court in the area of peremptory challenges, there were no constitutional infirmities in either KRS 29A.290 or RCr P. 9.40; the common law on peremptory challenges was no longer once it had been supplanted by acts of the Kentucky General Assembly. Spencer v. Commonwealth, 2013 Ky. App. LEXIS 123 (Ky. Ct. App. Aug. 9, 2013), review denied, ordered not published, 2014 Ky. LEXIS 268 (Ky. June 19, 2014).

4.— English Law.

Common-law rule that decedent’s real estate cannot be sold to pay expenses of administration remains in force in Kentucky. Ballard v. Helburn, 9 F. Supp. 812, 1933 U.S. Dist. LEXIS 981 (W.D. Ky. 1933 ).

The common law of England, including all statutes, made in aid of it prior to the fourth year of the reign of James I (March 24, 1607) are in force in the Commonwealth except insofar as altered by the legislature, but English common-law decisions rendered since July 4, 1776, are not in force in this Commonwealth by virtue of specific statute. Campbell v. W. M. Ritter Lumber Co., 140 Ky. 312 , 131 S.W. 20, 1910 Ky. LEXIS 251 ( Ky. 1910 ).

The English common-law rule with respect to domestic fowls is still in force, though it may be changed at any time, and a municipality may by ordinance regulate the running at large of animals including fowls. Adams Bros. v. Clark, 189 Ky. 279 , 224 S.W. 1046, 1920 Ky. LEXIS 416 ( Ky. 1920 ).

The right to collect interest in this state is by virtue of statute and not under the original common law of England as it applies here. Coleman v. Reamer's Ex'r, 237 Ky. 603 , 36 S.W.2d 22, 1931 Ky. LEXIS 657 ( Ky. 1931 ).

Except as modified by statute the common law governs the relations of husband and wife and thereby the meaning of what are the necessaries which a husband must provide his wife. Palmer v. Turner, 241 Ky. 322 , 43 S.W.2d 1017, 1931 Ky. LEXIS 81 ( Ky. 1931 ).

Since there appears no recognized applicable law of England prior to March 24, 1607, and there is no authorizing statute or decision of the Court of Appeals the Attorney General may not intervene in a will contest involving a charitable trust. Commonwealth ex rel. Ferguson v. Gardner, 327 S.W.2d 947, 1959 Ky. LEXIS 82 ( Ky. 1959 ).

Where statute making murder unlawful does not define the offense it is proper for the indictment to define the crime in common-law terms, and a conviction thereunder does not violate the United States Const., Amend. 14. Pryor v. Thomas, 361 S.W.2d 279, 1962 Ky. LEXIS 233 ( Ky. 1962 ), cert. denied, 372 U.S. 922, 83 S. Ct. 739, 9 L. Ed. 2d 727, 1963 U.S. LEXIS 2211 (U.S. 1963).

5.— English Statutes.

Under the Constitution the English statute, 43 Elizabeth (Chapter 4), which was passed in aid of the common law, is a part of the laws of the Commonwealth and confers on the courts a corrective and remedial power in the regulation of charitable trusts. Coleman v. O'Leary's Ex'r, 114 Ky. 388 , 70 S.W. 1068, 24 Ky. L. Rptr. 1248 , 1902 Ky. LEXIS 169 ( Ky. 1902 ).

The English statute of 2 & 3 Edward VI, which became a part of the laws of this Commonwealth has been modified by Commonwealth statute and as a result where a mortal wound is inflicted in one county and death ensues in another the perpetrator of the offense may be tried in either and a jury summoned from either is in the vicinage. Commonwealth v. Jones, 118 Ky. 889 , 82 S.W. 643, 26 Ky. L. Rptr. 867 , 1904 Ky. LEXIS 126 ( Ky. 1904 ).

The English Statute, 43 Elizabeth enacted in 1601, concerning charitable uses and trusts is a part of the law of this Commonwealth. Jenkins v. Berry, 119 Ky. 350 , 83 S.W. 594, 26 Ky. L. Rptr. 1141 , 1904 Ky. LEXIS 165 ( Ky. 1904 ).

6.— Virginia Law and Statutes.

Under Virginia common law, adopted by this section, a conveyance by one joint tenant of a part of his interest in an entire tract held in common passed the title of the grantor in such part, not only as against himself and those claiming under him, but as to all other persons except the cotenants injured by it, and as to them also, except so far as they would be injured. Saulsberry v. Saulsberry, 121 F.2d 318, 1941 U.S. App. LEXIS 4582 (6th Cir. Ky. 1941 ).

Under this section the common law of Virginia, which was the English common law, was adopted, and all laws and statutes then in force not repugnant to the public policy of the Commonwealth, and not specifically repealed, remained in force. Nider v. Commonwealth, 140 Ky. 684 , 131 S.W. 1024, 1910 Ky. LEXIS 377 ( Ky. 1910 ). See McGoodwin v. Shelby, 182 Ky. 377 , 206 S.W. 625, 1918 Ky. LEXIS 380 ( Ky. 1918 ).

The Virginia Act of 1785 declaring that a person having one-fourth (1/4) part or more of Negro blood shall be deemed a mulatto, is in force in the Commonwealth. McGoodwin v. Shelby, 182 Ky. 377 , 206 S.W. 625, 1918 Ky. LEXIS 380 ( Ky. 1918 ).

The law of the Commonwealth includes all laws which were in force in the state of Virginia on June 1, 1792, except as modified by the Constitution, statutes, or judicial decisions, and which are not repugnant to the public policy of the Commonwealth and as such they have equal authority with statutory law. Wilson v. Commonwealth, 290 Ky. 223 , 160 S.W.2d 649, 1942 Ky. LEXIS 387 ( Ky. 1942 ).

The true meaning of this section is that the laws of Virginia retained in force are those that do not conflict with the true meaning, reasonable operation and effect of the provisions of the Constitution. Commonwealth ex rel. Attorney Gen. v. Howard, 297 Ky. 488 , 180 S.W.2d 415, 1944 Ky. LEXIS 763 ( Ky. 1944 ).

7.— Writ of Coram Nobis.

Under this section and Const., § 14 the common-law remedy of writ of coram nobis is a part of due course of law and is available in state courts to a defendant convicted of crime after the expiration of the terms of court at which he was convicted, where he was convicted on perjured testimony or newly discovered evidence indicates that he should be exonerated. Anderson v. Buchanan, 292 Ky. 810 , 168 S.W.2d 48, 1943 Ky. LEXIS 748 ( Ky. 1943 ).

8.— Removal of Officers.

Since Const., § 68 provides a method for removing a Commonwealth’s Attorney from office, such method must be held to be exclusive, and this section does not authorize the Legislature to prescribe another method of removal even though such other method was recognized at common law. Commonwealth ex rel. Attorney Gen. v. Howard, 297 Ky. 488 , 180 S.W.2d 415, 1944 Ky. LEXIS 763 ( Ky. 1944 ).

9.— Nolo Contendere.

The language of R. Cr. 8.08 and R. Cr. 8.12 as construed according to common and approved usage, expressly prohibits the use of any pleas in criminal cases except guilty or not guilty; any conflicting common rule allowing the acceptance of pleas of nolo contendere is without effect. Commonwealth v. Hillhaven Corp., 687 S.W.2d 545, 1984 Ky. App. LEXIS 638 (Ky. Ct. App. 1984).

Cited:

Eastern Kentucky Coal Lands Corp. v. Commonwealth, 127 Ky. 667 , 106 S.W. 260, 1907 Ky. LEXIS 166 (1907); Hilen v. Hays, 673 S.W.2d 713, 1984 Ky. LEXIS 261 ( Ky. 1984 ).

Research References and Practice Aids

Cross-References.

Statutes enacted prior to 1942 repealed, KRS 447.025 .

Kentucky Law Journal.

Kentucky Law Survey, Adams, Torts, 73 Ky. L.J. 481 (1984-85).

Northern Kentucky Law Review.

Comments, Equal Protection of the Sexes in Kentucky: The Effect of the Hummeldorf Decision on a Woman’s Right to Choose Her Surname, 9 N. Ky. L. Rev. 475 (1982).

Wintersheimer, State Constitutional Law, 20 N. Ky. L. Rev. 591 (1993).

§ 233a. Valid or recognized marriage — Legal status of unmarried individuals.

Only a marriage between one man and one woman shall be valid or recognized as a marriage in Kentucky. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized.

History. Creation, proposed by Acts 2004, ch. 128, § 1, and ratified November 2, 2004.

Compiler’s Notes.

The General Assembly in 2004 (Acts 2004, ch. 128, § 1) proposed that a new section be added to the Constitution to be numbered as section 233a. Such proposed section was ratified by the voters at the regular election November 2, 2004 and became effective November 2, 2004.

NOTES TO DECISIONS

1.Applicability.

The Family Court was not justified in creating and applying a “legal fiction” that avoided the effect of KRS 199.520(2), KRS 402.020(1)(d), KRS 402.040(2), and Section 233A of Kentucky’s Constitution in order to grant an adoption to a same-sex life partner of the biological parent. Without question, it is inappropriate to use a legal fiction to sidestep a public policy so clearly expressed by the Legislature in statute and by the People of the Commonwealth in its ratification of a Constitutional provision. S.J.L.S. v. T.L.S., 265 S.W.3d 804, 2008 Ky. App. LEXIS 282 (Ky. Ct. App. 2008).

2.Constitutionality.

Kentucky’s denial of recognition for valid same-sex marriages under this provision and KRS 402.045 violates the guarantee of equal protection under the law, even under the most deferential standard of review; accordingly, this provision and KRS 402.045 are unconstitutional. Bourke v. Beshear, 996 F. Supp. 2d 542, 2014 U.S. Dist. LEXIS 17457 (W.D. Ky.), rev'd, 772 F.3d 388, 2014 FED App. 0275P, 2014 U.S. App. LEXIS 21191 (6th Cir. Mich. 2014).

To the extent Ky. Rev. Stat. Ann. §§ 402.005 and 402.020(1)(d) and Ky. Const. § 233A denied same-sex couples the right to marry in Kentucky, they violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, and they were void and unenforceable. Love v. Beshear, 989 F. Supp. 2d 536, 2014 U.S. Dist. LEXIS 89119 (W.D. Ky. 2014 ).

Under the Due Process and Equal Protection Clauses of the Fourteenth Amendment, same-sex couples may exercise the fundamental right to marry, and this provision is therefore invalid to the extent it excludes same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples; further, there is no lawful basis for a state to refuse to recognize a lawful same-sex marriage performed in another state on the ground of its same-sex character. Obergefell v. Hodges, 576 U.S. 644, 135 S. Ct. 2584, 192 L. Ed. 2d 609, 2015 U.S. LEXIS 4250 (U.S. 2015).

Opinions of Attorney General.

State universities may extend employee health insurance coverage to “domestic partners” or any other persons, but may not condition such benefits upon a legal status defined in a manner substantially similar to that of marriage, since this would constitute the recognition of such a legal status in contravention of Ky. Const. § 233a. If domestic partnership is not defined in terms of a legal status similar to marriage, but is defined in a more inclusive manner, extending such benefits would be constitutional. OAG 2007-04 .

§ 234. Residence and place of office of public officers.

All civil officers for the State at large shall reside within the State, and all district, county, city or town officers shall reside within their respective districts, counties, cities or towns, and shall keep their offices at such places therein as may be required by law.

NOTES TO DECISIONS

1.Application.

The word “officer,” as used in this section, only applies to those directly named and designated in the Constitution. Newport v. Schindler, 449 S.W.2d 17, 1969 Ky. LEXIS 23 ( Ky. 1969 ).

2.Municipal Officers.

A nonresident of the state may not hold a city office. Barker v. Southern Const. Co., 47 S.W. 608, 20 Ky. L. Rptr. 796 (1898).

Statute not requiring a municipal police officer to be a resident of the city, county or state is unconstitutional. Swincher v. Commonwealth, 72 S.W. 306, 24 Ky. L. Rptr. 1897 , 1903 Ky. LEXIS 301 (Ky. Ct. App. 1903).

Where persons appointed as trustees of an incorporated town are not residents thereof, they are ineligible. Hill v. Anderson, 122 Ky. 87 , 90 S.W. 1071, 28 Ky. L. Rptr. 1032 , 1906 Ky. LEXIS 24 ( Ky. 1906 ).

A city attorney in a city of the fourth class is an officer within the contemplation of this section and is therefore required to be a resident of the city. Hirschfeld v. Commonwealth, 256 Ky. 374 , 76 S.W.2d 47, 1934 Ky. LEXIS 416 ( Ky. 1934 ).

Although KRS 69.560 (repealed), which created the position of city attorney, required only that the city attorney be a resident of the county in which the city was located prior to the 1958 amendment, a person had to be a resident of the city as well under the requirements of this section. Hirschfeld v. Commonwealth, 256 Ky. 374 , 76 S.W.2d 47, 1934 Ky. LEXIS 416 ( Ky. 1934 ).

KRS 69.580 (repealed) authorizes the employment of an attorney, in cities of the fifth class, to advise the city on legal matters. Glasgow v. Burchett, 419 S.W.2d 544, 1967 Ky. LEXIS 158 ( Ky. 1967 ).

There is no conflict between subsection (2) of KRS 95.440 and this section because a policeman in a city of the second class is not an officer designated in the Constitution. Newport v. Schindler, 449 S.W.2d 17, 1969 Ky. LEXIS 23 ( Ky. 1969 ).

3.State Officers.

A statute providing for the appointment of a bond recorder by Circuit Judges having jurisdiction in cities of the first class creates an office of the state and not a strictly municipal office and consequently this section does not require such officer to reside within the city. York v. Ross, 139 Ky. 215 , 129 S.W. 580, 1910 Ky. LEXIS 25 ( Ky. 1910 ).

Provision, in 1948 act which rearranged judicial districts, that Commonwealth’s Attorney, whose home county was transferred to another district, could retain his office by moving into the new district before the expiration of his term, was not necessarily in violation of this section, since it could be construed to mean that move must be made within a reasonable time before expiration of term, which would be in accord with general rule, however if it was unconstitutional, the provision was not an inseparable part of the act, and remainder of act was valid, notwithstanding some evidence that act would not have been passed without this provision; the result of holding the provision unconstitutional would be that Commonwealth’s Attorney must move within a reasonable time. Cornett v. Clements, 309 Ky. 80 , 216 S.W.2d 417, 1948 Ky. LEXIS 1076 ( Ky. 1948 ).

4.District Officers.

The law authorizes the appointment of a collector for any taxing district as well as for the entire county, and it is not required that the collector shall be a resident of the district in which the taxes are to be collected, he not being a district officer within meaning of this section. Commonwealth v. Blackwell, 97 Ky. 314 , 30 S.W. 642, 17 Ky. L. Rptr. 183 , 1895 Ky. LEXIS 184 ( Ky. 1895 ).

A constable of one district may be enjoined from maintaining office within another district. Ellis v. Wright, 237 Ky. 98 , 34 S.W.2d 966, 1931 Ky. LEXIS 554 ( Ky. 1931 ).

KRS ch. 267 does not violate this section. Bard v. Board of Drainage Comm'rs, 274 Ky. 491 , 118 S.W.2d 1013, 1938 Ky. LEXIS 292 ( Ky. 1938 ).

5.County Officers.

This section and Const., §§ 95, 97 and 99 notwithstanding, social security contributions for county court clerk, county Circuit Court clerk, and county sheriff were to be paid from State Treasury, not county fiscal court. Shamburger v. Commonwealth, 240 S.W.2d 636, 1951 Ky. LEXIS 1014 ( Ky. 1951 ).

Cited:

Robertson v. Hopkins County, 247 Ky. 129 , 56 S.W.2d 700, 1933 Ky. LEXIS 349 ( Ky. 1933 ); Lexington v. Thompson, 250 Ky. 96 , 61 S.W.2d 1092, 1933 Ky. LEXIS 655 ( Ky. 1933 ); Hermann v. Morlidge, 298 Ky. 632 , 183 S.W.2d 807, 1944 Ky. LEXIS 968 ( Ky. 1944 ); Williams v. Board for Louisville & Jefferson County Children’s Home, 305 Ky. 440 , 204 S.W.2d 490, 1947 Ky. LEXIS 825 ( Ky. 1947 ); Shamburger v. Commonwealth, 240 S.W.2d 636, 1951 Ky. LEXIS 1014 ( Ky. 1951 ); Hall v. Miller, 584 S.W.2d 51, 1979 Ky. App. LEXIS 433 (Ky. Ct. App. 1979).

Opinions of Attorney General.

A county commissioner elected from a particular district must reside within said district. OAG 62-425 .

If a county commissioner were to move from the district from which he was elected, he would disqualify himself and be subject to removal. OAG 62-425 .

The city attorney of a city of the fourth class operating under the commission form of government is a municipal officer who must reside within the city as required by this section. OAG 62-865 .

If policemen of firemen move their residence outside of the city employing them, they would be subject to removal. OAG 63-649 .

Policemen and firemen must continue to reside within the city employing them to remain qualified voters in the city and thus remain qualified to hold their positions under the terms of KRS 95.440(2). OAG 63-649 .

An official court reporter must reside within the Commonwealth. OAG 63-1024 .

A local superintendent of schools does not come within the purview of the word officer, and he is not required to live within the school district. OAG 64-130 .

A constable cannot establish or work out of an office outside of his district. OAG 65-622 .

Although a constable must maintain an office in the district of his residence from which he was elected, he may serve process coextensively with the county, but he is not required to do so. OAG 65-622 .

A magistrate is not required to divide the assignment of work equally between the constable of his own district and the constable of another district, but he may do so voluntarily. OAG 65-622 .

If an ordinance establishing a commission set forth a definite term and vested the commission with duties and powers indicating an exercise of governmental authority, the members would probably be considered municipal officers and as such would be required to reside within the municipality. OAG 66-18 .

KRS 95.440 does not eliminate the requirement that police officers reside within the city. OAG 66-193 .

Under this section the state has a duty to provide, at the expense of the Commonwealth, all medical attention required for a prisoner serving time in a state institution as a result of a sentence imposed upon conviction of a felony. OAG 67-2 .

A clerk of the city police court is considered an arm of the court which is a part of a city’s judicial branch, hence he is a minor officer of the city, and therefore a clerk of the police court must reside within the city. OAG 67-137 .

This section is applicable to a municipal chief of police. OAG 67-242 .

Any justice of the peace that becomes disqualified by moving from his district would, if he refused to vacate his office by resignation, be subject to removal as a usurper by the Commonwealth’s Attorney. OAG 67-373 .

A person who resides in another county is not eligible to be appointed a deputy coroner. OAG 67-414 .

A city clerk must reside within the city, be a qualified voter in the city and have resided therein for one (1) year next preceding his appointment. OAG 68-135 .

This section is applicable to the office of city clerk in a city of the sixth class. OAG 68-162 .

A policeman is required to reside within the city in which he is employed. OAG 68-358 .

Where a person was elected to the city council and shortly thereafter he moved from the city, he had no right to continue to serve on the city council. OAG 69-27 .

A constable who has moved his legal residence from the magisterial district in which he holds office, becomes a usurper in office and is subject to removal by the Commonwealth’s Attorney pursuant to KRS 415.040 and 415.060 . OAG 69-316 .

A candidate for the office of constable, who after being elected but before qualifying for office, moved his legal residence from the magisterial district in which he was elected, would, upon assuming office become a usurper subject to removal pursuant to KRS 415.040 . OAG 69-379 .

This section is applicable to determine the residence qualification necessary to hold the office of city commissioner in a city of the fourth class operating under the city manager-commission form of government. OAG 69-412 .

Pursuant to KRS 85.060(2) (repealed) and the Constitution, a councilman must retain residence in the ward and also in the city in order to remain qualified to hold office. OAG 69-466 .

Where a city created by ordinance the position of director of finance, the position was a minor office and the person holding the office would be required to reside within the city. OAG 69-568 .

In a third-class city, where two (2) members of the city council moved out of the city into the county, until the council could hear and determine the question of disqualification pursuant to an ordinance setting up the hearing procedure as required by statute, the councilmen were legally entitled to continue to serve and would at least be considered de facto officers. OAG 69-575 .

A police officer of a city of the fifth class is a city officer within the meaning of this section and a person must be a resident of the city in order to be appointed as a police officer or may be discharged for cause after his appointment if he refuses to become a resident, despite the provisions of KRS 95.710 to the contrary. OAG 69-621 .

A person would not be disqualified from serving as chief of police of a city of the third class where he has only resided in the city and county for one (1) day and is not a qualified voter of either the city or the county. OAG 70-49 .

Members of the Court of Appeals are in fact district officers insofar as residence is concerned and must be legal residents of their respective appellate court districts in order to qualify to run, but who must continue to maintain that residence throughout their tenure in office. OAG 70-181 .

A deputy constable is not disqualified from serving in that capacity because of his residing in a district other than that in which the constable resides. OAG 70-187 .

A constable may, if he desires, serve process outside of his district, which process he is not otherwise required to serve. OAG 70-614 .

Pursuant to subsection (3) of KRS 70.350 , a constable cannot be compelled to serve process outside of his district unless the process is in behalf of the Commonwealth or is against property in his district. OAG 70-614 .

It is not legally necessary that the quarterly court clerk be a resident of the county the court serves. OAG 70-748 .

A person who works in the state of Kentucky six (6) days a week but has a home in the state of Indiana cannot be appointed a notary public in and for the state of Kentucky at large. OAG 70-795 .

Neither the marshal, deputy marshal nor policemen are required to possess the residential and voting qualifications required under KRS 88.170 (repealed) or this section since the enactment of KRS 15.335 . OAG 71-336 .

If the city treasurer took up residence outside of the city, such would not disqualify him from holding the position of city treasurer. OAG 71-458 .

The city treasurer, not being a constitutionally named officer, would not be required to reside within the city in order to be qualified to hold said office. OAG 71-458 .

A city police judge is required to reside within the city limits. OAG 71-536 .

While KRS 95.440 requires each member of the police or fire department in cities of the second and third classes to be a qualified voter in the county of employment, there is no such statutory requirement for policemen in cities of the first class. Further, the word “officer” as used in this section applies to those named and designated in the Constitution and a policeman is not such an officer. Therefore, a Louisville police officer may be employed without regard to where he votes or is a resident. OAG 68-358 and 66-193 are withdrawn and OAG 68-523 , 66-469, 63-649 and 65-718 are hereby modified. OAG 72-57 .

A city clerk may reside outside the boundaries of the city and still qualify for the office. OAG 72-785 .

As a police judge pro tem is a creature of statute as provided for in KRS 26.260 (repealed), such a judge is not an officer named in the Constitution who would be required to reside within the city under this section. OAG 72-846 .

The fire chief of a city of the fourth class can reside outside the city limits and continue to hold his position with the city as this section has been held to apply only to those officers named in the Constitution and does not include the fire chief, although KRS 95.710 requires members of the police and fire departments to reside within the county six (6) months prior to their appointment. OAG 73-139 .

A candidate for a particular state legislative district must reside in the district for which he is elected in spite of the ambiguous nature of § 32 of the Constitution. OAG 73-330 .

As this section requires a magistrate to live in the district for which he was elected and § 142 of the Constitution provides that justices of the peace shall vacate their offices by removal from the districts in which they have been elected, a justice who moves out of his district automatically vacates his office, and a magistrate who continued to live outside of his district and attempted to hold his office would be subject to an ouster action that could be brought by the Commonwealth’s Attorney under KRS 415.040 . OAG 73-363 .

In view of the repealing effect of KRS 15.335 on KRS 88.170 (repealed) and since this section only applies to those officers directly named and designated in the Constitution, a marshal is not required to live within the city boundaries of the city in which he is marshal. OAG 73-634 .

No one can be legally appointed to the office of police judge who has not resided within the city for the time prescribed and who is not a registered voter in the city and vacancies in the office of police judge must be filled by the governor. OAG 73-722 .

The mayor would be authorized to appoint a member of the recreation commission who is not a resident of the city as there are no specific qualifications for membership on the commission or any residence qualifications for city officers generally under the charter of third-class cities and as this is not a constitutional office (but see OAG 69-568 ). OAG 73-776 .

A county police officer is not a constitutional officer for the purpose of residency under the Constitution; thus, pursuant to KRS 15.335 , limiting residency and voting qualifications to constitutional officers, the residency requirements of KRS 61.300 and 70.540 do not apply. OAG 74-581 .

A deputy sheriff is not an officer named and designated in the Constitution and is not required to reside in the county where he serves. OAG 75-52 .

Since only officers designated in the text of the Constitution come under this section, it does not apply to county auditors. OAG 76-63 .

Since the word “officer” as used in this section applies only to those directly named and designated therein, this section does not apply to a water district commissioner. OAG 76-381 .

If a member of the board of trustees has moved his residence outside the corporate limits of the city and is no longer a resident and qualified voter therein, he has disqualified himself and would be subject to removal, however, the officer does not automatically vacate his office by moving from the city since until such a disqualified officer either resigns or is removed from office, he serves as a de facto officer and his acts are considered valid. OAG 76-381 .

The fact that a State senator moves his legal residence from one precinct to the other within his county, or for that matter to a precinct in any one of the other counties comprising his district, would in no way affect his right to continue to serve as senator from said district. OAG 78-237 .

While this section requires public officers to reside within their respective districts, counties, cities, etc., it applies only to constitutional officers, i.e., officers who are directly named and designated in the text of the Constitution. OAG 79-366 .

Members of a joint city-county port authority need not be residents of the city or county which created the authority, except for the mayors and county judge/executive serving as additional members since they are officers designated under this section of the Constitution as being required to live in their respective cities or counties and KRS 65.540 is silent on the residency requirements. OAG 81-66 .

KRS 15.335 is not in conflict with this section, Const., § 100 or § 101, as relates to the sheriff and constable, since the waiver of residency requirement is expressly declared not to be effective for constitutional officers. OAG 82-105 .

A city attorney is not a constitutionally named officer and therefore is not required to conform to the requirements of this section regarding residence; accordingly, in the absence of any city ordinance requiring the city attorney to reside within the city, he may reside outside the city or, for that matter, in another county. OAG 82-185 .

A deputy sheriff, where it is satisfactory to the sheriff, may live in a Kentucky county other than the county in which his employing sheriff lives. OAG 82-460 .

Section 228 of the Kentucky Constitution requires an officer taking the oath of office to be a citizen or resident of Kentucky, and this section requires all civil officers of Kentucky to reside in Kentucky; therefore, that provision of KRS 423.110 (6) relating to the appointment of a special notary living in a foreign jurisdiction, is unconstitutional. However, under the principle of severability, as expressed in KRS 446.090 , KRS 423.110 , minus the offending language involving appointing nonresidents, is constitutional; thus the special notary, who lives in Kentucky, may, under KRS 423.110, engage in notarial acts in a foreign jurisdiction, provided that such exercise of function does not violate the public policy of or is not in basic conflict with the law of the foreign jurisdiction; the extraterritorial recognition of KRS 423.110 is only based upon the principles of comity. OAG 85-36 .

Since residency should not be considered a requirement to practice as a notary, the provision in Const., § 228 regarding state citizenship should be deleted from the oath given to a notary; furthermore, the oath may be administered in any county. OAG 88-20 .

Whether a constable is required (“supposed”) to have an office for keeping official documents, securing evidence, and conducting official duties and additionally, to the extent this question might indirectly ask whether a fiscal court must supply or pay for the cost of an office for a constable, under this section, there is no such requirement, and such a decision is within the discretion of the fiscal court. OAG 95-11 .

Research References and Practice Aids

Cross-References.

State officers at capital may retain home residence for voting purposes, KRS 61.110 .

§ 235. Salaries of public officers not to be changed during term — Deductions for neglect.

The salaries of public officers shall not be changed during the terms for which they were elected; but it shall be the duty of the General Assembly to regulate, by a general law, in what cases and what deductions shall be made for neglect of official duties. This section shall apply to members of the General Assembly also.

NOTES TO DECISIONS

1.Purpose.

This section with Const., §§ 99, 100, and 161 clearly indicated purpose to prohibit any change in salary or compensation of public or municipal officer during his term of office. Marion County Fiscal Court v. Kelly, 112 Ky. 831 , 56 S.W. 815, 22 Ky. L. Rptr. 174 , 1900 Ky. LEXIS 240 ( Ky. 1900 ).

The purpose of this section was to require that salaries of public officers be fixed before their terms begin. Talbott v. Thomas, 286 Ky. 786 , 151 S.W.2d 1, 1941 Ky. LEXIS 277 ( Ky. 1941 ).

The purpose of this section and Const., § 161 is to make a public officer independent of the Legislature and prevent appeals to the Legislature to increase the salaries of incumbents in office. Smith v. Harlan County Fiscal Court, 329 S.W.2d 61, 1959 Ky. LEXIS 141 ( Ky. 1959 ).

The purpose of this section is directed against making of a change that is to take effect during a term of office then current. Commonwealth ex rel. Hancock v. Davis, 521 S.W.2d 823, 1975 Ky. LEXIS 162 ( Ky. 1975 ).

2.Construction.

Under the present Constitution the Legislature does not have the power to change the compensation of an officer during his term of office whether he be paid by salary or fees. Commonwealth ex rel. Attorney Gen. v. Addams, 95 Ky. 588 , 26 S.W. 581, 16 Ky. L. Rptr. 135 , 1894 Ky. LEXIS 61 ( Ky. 1894 ).

This section as well as Const., § 161 is mandatory. Roberts v. Walker, 227 Ky. 591 , 13 S.W.2d 761, 1929 Ky. LEXIS 921 ( Ky. 1929 ). See Olive v. Coleman, 228 Ky. 127 , 14 S.W.2d 404, 1929 Ky. LEXIS 496 ( Ky. 1929 ).

The second clause of this section qualifies the first clause. However, it requires legislative action to put it into effect. Miller v. Robertson, 306 Ky. 653 , 208 S.W.2d 977, 1948 Ky. LEXIS 631 ( Ky. 1948 ).

The prohibition as to change in compensation in Const., § 161 and this section relate to the term rather than the incumbent. Shamburger v. Duncan, 253 S.W.2d 388, 1952 Ky. LEXIS 1090 ( Ky. 1952 ).

This section limits the over-all amount but not the sources of compensation. Wright v. Oates, 314 S.W.2d 952, 1958 Ky. LEXIS 324 ( Ky. 1958 ).

Where conflict arises between the application of this section and that of Const., § 133 (repealed), the latter must prevail since it is specific and particular while this section is general in application. Wright v. Oates, 314 S.W.2d 952, 1958 Ky. LEXIS 324 ( Ky. 1958 ).

3.Application.

This section applies only to officials and not to clerks employed by officers. Vansant v. Commonwealth, 189 Ky. 1 , 224 S.W. 367, 1920 Ky. LEXIS 366 ( Ky. 1 920).

This section applies regardless of how many incumbents of the office there may be during any term. Whitley County Board of Education v. Rose, 267 Ky. 283 , 102 S.W.2d 28, 1937 Ky. LEXIS 314 ( Ky. 1937 ).

This section and Const., § 161 are applicable to officers paid by fees as well as those paid by salary or by both salary and fees. Love v. Duncan, 256 S.W.2d 498, 1953 Ky. LEXIS 741 ( Ky. 1953 ).

This section and Const., § 161 forbid the changing of the salary of an officer during his term and are applicable to officers paid by fees as well as to those paid by salary and are also applicable to officers compensated by both salary and fees. Love v. Duncan, 256 S.W.2d 498, 1953 Ky. LEXIS 741 ( Ky. 1953 ).

Both salary and fees must be considered when applying this section and Const., §§ 161 and 246 to county attorneys. Dennis v. Rich, 434 S.W.2d 632, 1968 Ky. LEXIS 237 ( Ky. 1968 ).

4.Effect of Constitutional Amendment.

The 1949 amendment to Const., § 246 had the effect of suspending this section and Const., § 161 insofar as they affected public officials then in office or elected at the election at which the amendments were adopted; therefore as “term” is the unit to which these sections apply commissioner elected in 1951 and commissioner elected in 1947 and re-elected in 1951 were not entitled to increase in compensation made possible by amendment to law that provided for compensation for commissioners serving on fiscal court. Shamburger v. Duncan, 253 S.W.2d 388, 1952 Ky. LEXIS 1090 ( Ky. 1952 ).

5.Public Officer.

A public officer is an individual vested with a portion of the functions of the government to be exercised for the public benefit, whether his term of office be fixed or at the will of the creating power. Shanks v. Howes, 214 Ky. 613 , 283 S.W. 966, 1926 Ky. LEXIS 383 ( Ky. 1926 ).

Chief clerk of house of representatives is an officer within the meaning of this section. Shanks v. Howes, 214 Ky. 613 , 283 S.W. 966, 1926 Ky. LEXIS 383 ( Ky. 1926 ). See Sanders v. Talbott, 255 Ky. 50 , 72 S.W.2d 758, 1934 Ky. LEXIS 185 ( Ky. 1934 ).

Poorhouse keeper, appointed by fiscal court for two (2) years at stipulated salary until further orders of court, was an employee or agent of appointing court, and not a “public officer,” and his salary could be reduced by court without violating this section. Graves County v. Dowdy, 258 Ky. 544 , 80 S.W.2d 597, 1935 Ky. LEXIS 209 ( Ky. 1935 ).

Official stenographic reporters of the various branches of the Jefferson Circuit Court are public officers within the meaning of this section and Const., § 161. Love v. Duncan, 256 S.W.2d 498, 1953 Ky. LEXIS 741 ( Ky. 1953 ).

A superintendent of the county board of education is not an officer within the meaning of this section and Const., §§ 161 and 246, since the office is a creature of statute (KRS 160.350 ) and is not named in the Constitution. Board of Education v. De Weese, 343 S.W.2d 598, 1960 Ky. LEXIS 116 ( Ky. 1960 ).

The meaning of the word officers as it is used in this section and Const., §§ 161 and 246 should be restricted to the officers directly named and designated in the text of the Constitution. Board of Education v. De Weese, 343 S.W.2d 598, 1960 Ky. LEXIS 116 ( Ky. 1960 ).

6.Fixed Term of Office.

This section is limited to those officers having “terms for which they were elected.” Lexington v. Rennick, 105 Ky. 779 , 49 S.W. 787, 20 Ky. L. Rptr. 1609 , 1899 Ky. LEXIS 272 ( Ky. 1899 ).

This section and Const., § 161 only apply to officers having a fixed term, and do not include officers created by the Legislature who may be removed at the pleasure of the appointing board. Commonwealth v. Ewald Iron Co., 153 Ky. 116 , 154 S.W. 931, 1913 Ky. LEXIS 794 ( Ky. 1913 ).

Whether an officer has a fixed term of office can be determined only by reference to the law creating the office. Shanks v. Howes, 214 Ky. 613 , 283 S.W. 966, 1926 Ky. LEXIS 383 ( Ky. 1926 ).

7.Indeterminate Term.

This section does not apply to officers who are removable at the will of the appointing power, therefore, an act increasing the salaries of official stenographic reporters did not violate this section. Jefferson County v. Cole, 204 Ky. 27 , 263 S.W. 1114, 1924 Ky. LEXIS 441 ( Ky. 1924 ).

This section does not apply to a deputy jailer, since he serves at the pleasure of the jailer and has no fixed term of office. Moody v. Duerson, 280 Ky. 527 , 133 S.W.2d 712, 1939 Ky. LEXIS 148 ( Ky. 1939 ).

The compensation of an appointive officer who is removable at the pleasure of the appointing authority may be changed at any time, notwithstanding that the statute provides that the officer shall serve for a specified term if not removed. Asher v. Pursifull, 294 Ky. 112 , 171 S.W.2d 20, 1943 Ky. LEXIS 395 ( Ky. 1943 ).

Salary of officer can be changed at any time where such officer has no fixed term and is removable at will of appointing authority. Turner v. Bowman, 294 Ky. 507 , 172 S.W.2d 209, 1943 Ky. LEXIS 490 ( Ky. 1943 ).

This section and Const., § 161 do not apply to officers who hold office at the pleasure of the appointing power. Love v. Duncan, 256 S.W.2d 498, 1953 Ky. LEXIS 741 ( Ky. 1953 ).

8.Fixing Salary.

Since the Constitution of 1891 in effect created a new Court of Appeals after 1894, the Act of March 4, 1894 fixing the salaries of the judges at $5,000 per annum does not violate this section, particularly in view of Const., §§ 112 and 115. Stone v. Pryor, 103 Ky. 645 , 45 S.W. 1053, 20 Ky. L. Rptr. 312 , 1898 Ky. LEXIS 112 ( Ky. 1898 ).

The provision of this section that salaries of public officers shall not be changed during the terms for which they were elected can operate only after the Legislature has fixed such salaries. Stone v. Pryor, 103 Ky. 645 , 45 S.W. 1053, 20 Ky. L. Rptr. 312 , 1898 Ky. LEXIS 112 ( Ky. 1898 ).

This section is not violated if the fiscal court fixes a salary for the first year for which the county judge is holding office, at a lower figure than that for the year immediately preceding. Marion County Fiscal Court v. Kelly, 112 Ky. 831 , 56 S.W. 815, 22 Ky. L. Rptr. 174 , 1900 Ky. LEXIS 240 ( Ky. 1900 ).

Where the fiscal court fails to fix the salary of the county judge before his election as is required under this section and Const., § 161, it may fix such salary thereafter; but when once fixed it has no power to allow him a different amount, and its orders to that effect are void. Butler County v. James, 116 Ky. 575 , 76 S.W. 402, 25 Ky. L. Rptr. 801 , 1903 Ky. LEXIS 225 ( Ky. 1903 ).

An order made by the fiscal court of a county at its April term, 1899, fixing the salary of county treasurer at $300 per annum, could not at a subsequent term of the court be changed during his term of office. McNew v. Commonwealth, 123 Ky. 115 , 93 S.W. 1047, 29 Ky. L. Rptr. 540 , 1906 Ky. LEXIS 127 ( Ky. 1906 ).

Under this section where order fixed the salary of county judge “beginning January 1, 1902” at $600 per annum, payable quarterly, it did not fix the salary for the one term of four (4) years, but fixed it also for the succeeding terms, subject to be changed but not to affect the salary during period for which elected; and where an order was made during the first term increasing the salary to $800 per annum for said term, which was held invalid, judge was not entitled upon being re-elected for a second term to a $800 salary under said void order. McNew v. Nicholas County, 125 Ky. 66 , 100 S.W. 324, 30 Ky. L. Rptr. 1147 , 1907 Ky. LEXIS 259 ( Ky. 1907 ).

Where, after a school superintendent was elected for a four (4) year term, the fiscal court entered an order allowing him compensation at the rate of 15 cents per pupil this amounted to the establishment of his salary and the fiscal court could not subsequently, during his term of office, change his compensation to a flat salary rate. Breathitt County v. Noble, 116 S.W. 777 ( Ky. 1909 ).

In such case, where there was no general order fixing the salary of the superintendent before his election, the allowance for the first year after his election should be taken as the basis for fixing the salary for future years of the term, not less than the minimum prescribed by the statute in force at the time of his election. Fox v. Lantrip, 162 Ky. 178 , 172 S.W. 133, 1915 Ky. LEXIS 38 ( Ky. 1915 ).

If the fiscal court has not by an order fixed the salary of the county attorney before his election, it may do so after his election, and before his qualification, or even after he has taken office. Hurt v. Morgan County, 166 Ky. 364 , 179 S.W. 255, 1915 Ky. LEXIS 696 ( Ky. 1915 ).

Where the compensation of a county school superintendent is based on the number of school children in the county, and the school age after his election is reduced, thereby decreasing his compensation, the salary he should receive under the new law should be ascertained on a percentage plan based on census of former years. Phillips v. Broach, 186 Ky. 138 , 216 S.W. 80, 1919 Ky. LEXIS 159 ( Ky. 1919 ).

A county officer may appeal from an order of the fiscal court entered after his election fixing his salary but in the absence of such appeal his salary remains so fixed for the remainder of his term and may not be raised. Roberts v. Walker, 227 Ky. 591 , 13 S.W.2d 761, 1929 Ky. LEXIS 921 ( Ky. 1929 ).

An order of a fiscal court appropriating money from the tax levy to pay the salaries of county judge and county attorney does not fix their salaries for future years and a subsequent order of the fiscal court entered after the election of a new county judge and county attorney fixing their salaries at a figure higher than previously paid is valid under this section. Roberts v. Walker, 227 Ky. 591 , 13 S.W.2d 761, 1929 Ky. LEXIS 921 ( Ky. 1929 ).

Special allowance to county judge for presiding at misdemeanor trial, not having been established before county judge was inducted into office, may be made thereafter. Robinson v. Elliott County Fiscal Court, 236 Ky. 63 , 32 S.W.2d 554, 1930 Ky. LEXIS 680 ( Ky. 1930 ).

Where a general city ordinance fixing the salary of the chief of police was in force at the time he took office a subsequent ordinance reducing the salary was without effect during the remainder of his term under this section and Const., § 161. Pikeville v. Stratton, 257 Ky. 320 , 78 S.W.2d 12, 1935 Ky. LEXIS 17 ( Ky. 1935 ).

Where fiscal court, in 1937, fixed salary of county attorney for the term beginning in 1938, but the order expressly applied only to that term, it was not a violation of this section for the fiscal court, after the election of the next county attorney in 1941, to fix his salary for the term beginning in 1942 at a different sum. Asher v. Wilson, 294 Ky. 110 , 171 S.W.2d 17, 1943 Ky. LEXIS 393 ( Ky. 1943 ).

It is proper for fiscal court to fix compensation of jailer, for services in caring for county buildings, before commencement of term of jailer, and having once been fixed it cannot be changed during the term. Perkins v. Cumberland County, 294 Ky. 737 , 172 S.W.2d 651, 1943 Ky. LEXIS 546 ( Ky. 1943 ).

Statute fixing the compensation of justices of the peace which was not enacted to increase or decrease the existing method of compensation does not violate this section. Smith v. Harlan County Fiscal Court, 329 S.W.2d 61, 1959 Ky. LEXIS 141 ( Ky. 1959 ).

Where the fiscal court, prior to the enactment of the statute providing for salaries of county attorneys, by resolution set a salary of $3,000 plus fees for the county attorney to be elected, and after enactment of the statute amended the resolution, establishing a salary of $7,200, the first resolution simply established that a certain portion of the salary would be paid out of the county treasury and was not finally fixing the compensation as contemplated by the Constitution. Dennis v. Rich, 434 S.W.2d 632, 1968 Ky. LEXIS 237 ( Ky. 1968 ).

9.Change of Compensation.

Under this section, a successful contestant for a state office is not entitled to recover from the state salary paid contestee during his incumbency, there being no change of or deductions from contestant’s salary, but his remedy is against the person who received a part of his salary. Nall v. Coulter, 117 Ky. 747 , 78 S.W. 1110, 25 Ky. L. Rptr. 1891 , 1904 Ky. LEXIS 238 ( Ky. 1904 ).

Under this section and Const., § 98 declaring compensation of Commonwealth’s Attorney should be by salary of $500 per annum, payable out of State Treasury, and such per cent of fines and forfeitures as may be fixed by law, an act that created an additional judicial district, the effect of which was to withdraw one of the counties from the district in which the complainant was Commonwealth’s Attorney during his term of office, and lessen the amount of fines and forfeitures he would otherwise have received but did not diminish his salary, nor the percentage of fines and forfeitures to which he was entitled, did not violate this section. Butler v. Stephens, 119 Ky. 616 , 84 S.W. 745, 27 Ky. L. Rptr. 241 , 1905 Ky. LEXIS 36 ( Ky. 1905 ).

A county school superintendent is not entitled to collect any salary except that allowed him by fiscal court, which can neither be increased nor decreased after his election. Beauchamp v. Snider, 170 Ky. 220 , 185 S.W. 868, 1916 Ky. LEXIS 46 ( Ky. 1916 ). See Anderson v. Burton, 174 Ky. 456 , 192 S.W. 519, 1917 Ky. LEXIS 206 ( Ky. 1917 ).

Where a sheriff receives part of his compensation in fees for collecting delinquent taxes a statute changing the date at which taxes become delinquent which may result in a decrease in fees is not an invalid change of compensation where there is no change in the percentage of compensation of the scale of fees for the particular service. Carl v. Thiel, 211 Ky. 328 , 277 S.W. 485, 1925 Ky. LEXIS 875 ( Ky. 1925 ).

Termination of payment of fees to an officer in office for duties of which he has been relieved by statute is not prohibited by this section. Webster County v. Overby, 240 Ky. 461 , 42 S.W.2d 707, 1931 Ky. LEXIS 433 ( Ky. 1931 ).

Statute which provided that any Commonwealth’s Attorney who had served in the United States armed forces should have deducted from his compensation the sum paid under KRS 69.060 to a Commonwealth’s Attorney pro tem during the temporary absence of the regular officer and that except for such deduction such Commonwealth’s Attorney should be paid his prescribed compensation in full made no change in the compensation of the Commonwealth’s Attorney and thus did not offend the Constitution. Miller v. Robertson, 306 Ky. 653 , 208 S.W.2d 977, 1948 Ky. LEXIS 631 ( Ky. 1948 ).

In order to avoid the restrictions contained in § 161 and this section of the Constitution and KRS 64.530 against changes in salary during the coroner’s term, it would be necessary to show that the 1974 amendment to KRS 64.185 increasing the minimum salary from $50.00 per month to $150 per month was pursuant to the rubber dollar doctrine, and absent such a showing the changing of the salary during the elected term violated both constitutional and statutory prohibitions against the changing of the compensation during the elected term. Carey v. Washington County Fiscal Court, 575 S.W.2d 161, 1978 Ky. App. LEXIS 644 (Ky. Ct. App. 1978).

The reference in the Constitution to compensation and salary mean the actual salary or fees paid to an officer. Caldwell County Fiscal Court v. Paris, 945 S.W.2d 952, 1997 Ky. App. LEXIS 49 (Ky. Ct. App. 1997).

Providing health insurance under a group policy covering county officials and employees does not constitute the payment of compensation or salary within the meaning of those terms as found in this section and Const., §§ 161 and 246. Caldwell County Fiscal Court v. Paris, 945 S.W.2d 952, 1997 Ky. App. LEXIS 49 (Ky. Ct. App. 1997).

10.— Equalization of Salaries.

This section which must be read in connection with Const., §§ 112, 161 and 246 does not in the light of these sections prevent judges of the Court of Appeals from receiving raises in salary during their terms of office. Perkins v. Sims, 350 S.W.2d 715, 1961 Ky. LEXIS 131 ( Ky. 1961 ).

11.— Increase of Living Costs.

Salary increases to public officers during their terms of office do not violate this section when the increases merely keep the salaries of the officers abreast of their initial value or purchasing power in the light of the increased cost of living as reflected by the consumer price index. Commonwealth v. Hesch, 395 S.W.2d 362, 1965 Ky. LEXIS 141 ( Ky. 1965 ).

A fiscal court properly adjusted the compensation of magistrates under the “rubber dollar” theory since KRS 64.530 allows adjustments during the term of office to provide compensation adequate for changes in the cost of living and the value of the dollar, despite the prohibitions in Const., § 161 and this section against changing compensation during the term of office for city, county or public officers. Hasty v. Shepherd, 620 S.W.2d 325, 1981 Ky. App. LEXIS 280 (Ky. Ct. App. 1981).

12.— Change of Duties.

This section does not prohibit the Legislature from changing the duties of public officers, either by adding to them or taking from them, so long as it does not change their compensation while in office. Greene v. Cohen, 181 Ky. 108 , 203 S.W. 1077, 1918 Ky. LEXIS 501 ( Ky. 1918 ).

Where collection of city school taxes was by statute taken away from the sheriff and given to the city tax collector, the act did not violate this section. Ross v. Cundiff, 206 Ky. 352 , 267 S.W. 169, 1924 Ky. LEXIS 335 ( Ky. 1924 ).

The Legislature may add to or take from official duties but may not change compensation of official during his tenure. Olive v. Coleman, 228 Ky. 127 , 14 S.W.2d 404, 1929 Ky. LEXIS 496 ( Ky. 1929 ).

The duties of an officer may be increased or decreased during his term of office, but his compensation may not be changed. Wyatt v. Danville, 276 Ky. 629 , 124 S.W.2d 1022, 1939 Ky. LEXIS 560 ( Ky. 1939 ).

13.— — Related Duties.

This section applies to a prison guard, and he is not permitted to claim additional compensation for the performance of such duties or labors as may be required of him on the Sabbath. Page v. O'Sullivan, 159 Ky. 703 , 169 S.W. 542, 1914 Ky. LEXIS 898 ( Ky. 1914 ).

A county assessor in office when an act was passed allowing ten cents for each dog assessed was not entitled to this additional fee as the statute did not impose on the assessor any new duties beyond the scope of his office. Dunlap v. Littell, 200 Ky. 595 , 255 S.W. 280, 1923 Ky. LEXIS 162 ( Ky. 1923 ).

An incumbent sheriff may not collect revenue from dog licenses he was required to issue under the terms of a statute enacted during his term of office as the additional duty of issuing such licenses was not beyond the scope of his office in light of the fact that the sheriff had always been the collector of county revenues. Bright v. Russell, 236 Ky. 567 , 33 S.W.2d 643, 1930 Ky. LEXIS 806 ( Ky. 1930 ).

A statute creating a county library and making the Circuit Court clerk the librarian and providing compensation for such duties did not apply to a clerk then in office where the duties under the new statute only constituted a slight increase in the library duties already a part of the clerk’s job. Greenup County v. Spears, 259 Ky. 114 , 81 S.W.2d 905, 1935 Ky. LEXIS 268 ( Ky. 1935 ).

Where city engineer was required by statute and ordinance to perform all engineering services for city, subsequent ordinance providing additional compensation for services rendered in improvement of water system was unconstitutional since additional services were engineering duties and engineer could not rely on void ordinance to recover for such services rendered after term of office by agreement with city. Wyatt v. Danville, 276 Ky. 629 , 124 S.W.2d 1022, 1939 Ky. LEXIS 560 ( Ky. 1939 ).

14.— — Additional Duties.

An act authorizing regular Circuit Court Judges to sit as special judges when regular judges fail to attend or cannot preside, imposes on regular judges the duties of a special judge which are not a part of the duties of a regular judge, and such a statute may provide compensation to regular judges for discharging such duties and not violate this section. James v. Cammack, 139 Ky. 223 , 129 S.W. 582, 1910 Ky. LEXIS 26 ( Ky. 1910 ).

Additional duties may be added to an office during the term of an incumbent and he will be required to perform the duties, although no additional compensation may be provided. Lewis v. James, 191 Ky. 769 , 231 S.W. 526, 1921 Ky. LEXIS 392 ( Ky. 1921 ).

An act creating a state judicial council of which Circuit Court Judges were to be members imposed duties on the judges which were wholly outside the normal duties required of such a judge and, therefore, additional compensation provided for such duties was valid. Coleman v. Hurst, 226 Ky. 501 , 11 S.W.2d 133, 1928 Ky. LEXIS 121 ( Ky. 1928 ).

While the General Assembly may impose new duties on a public officer for which the officer may receive no increase in compensation during his term of office, compensation may be increased during the term where the additional duties to be performed are outside the scope of and have no affinity or connection with the official duties of the officer. Shannon v. Combs, 273 Ky. 514 , 117 S.W.2d 219, 1938 Ky. LEXIS 680 ( Ky. 1938 ).

KRS 21.305 (repealed) did not violate this section as it only provided additional compensation for Circuit Judges for additional duties as special commissioners not related to their regular duties as Circuit Judges. Matthews v. Allen, 360 S.W.2d 135, 1962 Ky. LEXIS 211 ( Ky. 1962 ).

15.— Expense Allowance.

There being no specific constitutional or statutory provision to the contrary, the allowance by the Legislature of expenses incurred by public officers in the discharge of their official duties is neither salary, compensation nor an emolument of their office within the meaning of this section. Manning v. Sims, 308 Ky. 587 , 213 S.W.2d 577, 1948 Ky. LEXIS 864 ( Ky. 1948 ).

KRS 64.500 (repealed) allowing counties to pay Circuit Court Judges an annual sum for “incidental and office expenses incurred in the discharging of the duties of his office” does not allow an increase in compensation in violation of this section as a lump-sum allowance for expenses is not an increase in compensation unless the sum is so large as to be plainly in excess of any expenses a judge could possibly incur in the discharge of his official duties. Tierney v. Van Arsdale, 332 S.W.2d 546, 1960 Ky. LEXIS 158 ( Ky. 1960 ).

16.— Bond Premiums.

Act authorizing county containing city of second class to pay premiums on sheriff’s revenue bonds did not increase compensation of sheriff then in office in violation of this section where, even though three (3) citizens became personal sureties on his revenue bonds, sheriff furnished a corporate bond at request of fiscal court upon representation that they would pay the required premium. Thompson v. Shipp, 298 Ky. 805 , 184 S.W.2d 245, 1944 Ky. LEXIS 1028 ( Ky. 1944 ).

Since sheriffs were not required to furnish corporate surety on bonds before KRS 62.155 , giving sheriffs a claim against Commonwealth for premiums paid surety companies on bonds does not amount to an unconstitutional increase in sheriffs’ compensation in violation of this section or Const., § 161. Miller v. Sturgill, 304 Ky. 823 , 202 S.W.2d 632, 1947 Ky. LEXIS 738 ( Ky. 1947 ).

17.— Expiration of Term.

A statute allowing a fiscal court to provide additional compensation to Commonwealth Attorneys may not be read to allow additional compensation to be paid to an attorney after his term of office has expired as such a payment would violate the terms of this section. Harlan County ex rel. Middleton v. Brock, 263 Ky. 530 , 92 S.W.2d 757, 1936 Ky. LEXIS 194 ( Ky. 1936 ).

18.— Filling Vacated Office.

This section and Const., § 161 refer to the office and not the incumbent; and a person appointed to fill a vacancy caused by the resignation of an officer elected for a full term can only receive the same compensation as did the officer who resigned, although the compensation may have been increased before the vacancy occurred. Bosworth v. Ellison, 148 Ky. 708 , 147 S.W. 400, 1912 Ky. LEXIS 517 ( Ky. 1912 ).

Where police chief elected by voters for term of four (4) years resigned before end of term, and city council appointed another to fill unexpired term, provision increasing salary in order making appointment to fill vacancy was void as to remainder of unexpired term, but was valid as fixing salary for future holders of the office. Jackson v. First Nat'l Bank, 289 Ky. 1 , 157 S.W.2d 321, 1941 Ky. LEXIS 10 ( Ky. 1 941).

19.— Acceptance of Change.

Where a fiscal court unlawfully reduced the salary of a school superintendent during his term of office he could either appeal from the order of the fiscal court or sue the county for the deficiency and his acceptance of the lesser amount did not estop him from recovering the balance from the county after his term of office expired. Breathitt County v. Noble, 116 S.W. 777 ( Ky. 1909 ).

Where an officer’s fees were fixed prior to his taking office he would not be bound by any agreement made by him to accept a smaller sum as such an agreement would be void as lacking consideration and against public policy. Corbin v. Davis, 193 Ky. 391 , 236 S.W. 564, 1922 Ky. LEXIS 8 ( Ky. 1922 ).

An officer whose salary or compensation is reduced during his term is not estopped from recovering the reduction, because of absence of coercion or failure to object to the reduction. Louisville v. Thomas, 257 Ky. 540 , 78 S.W.2d 767, 1935 Ky. LEXIS 54 ( Ky. 1935 ). See Whitley County Board of Education v. Rose, 267 Ky. 283 , 102 S.W.2d 28, 1937 Ky. LEXIS 314 ( Ky. 1937 ).

A public officer is not estopped from claiming his full salary which is illegally reduced by voluntarily accepting a lesser amount. Altes' Ex'x v. Beauchamp, 277 Ky. 491 , 126 S.W.2d 867, 1939 Ky. LEXIS 679 ( Ky. 1939 ).

20.— Recovery of Overpayment.

Any taxpayer of the county, though paying only a poll tax, may maintain an action on behalf of himself and all other taxpayers thereof to recover overpayment of salary to the county school superintendent. Anderson v. Burton, 174 Ky. 456 , 192 S.W. 519, 1917 Ky. LEXIS 206 ( Ky. 1917 ).

21.— Effect on Incumbent.

An amendment of a statute raising the minimum of a county school superintendent from $250 to $400 did not apply to a superintendent elected prior to the passage of the amendment. Piercy v. Smith, 117 Ky. 990 , 80 S.W. 201, 25 Ky. L. Rptr. 2158 , 1904 Ky. LEXIS 271 ( Ky. 1904 ).

Under a statute providing that in a county having a specified population with a city of a certain class, but no court of continuous session, such county by its fiscal court or commissioners, and the city by its council, may pay to the Circuit Judge of the district such additional compensation as they deem just, not exceeding a certain amount, the court held that an annual additional allowance could be operative after the term of the then incumbent, but that the compensation of an incumbent could not be changed during his term. McCracken County v. Reed, 125 Ky. 420 , 101 S.W. 348, 31 Ky. L. Rptr. 31 , 1907 Ky. LEXIS 288 ( Ky. 1907 ).

After the salary of a school superintendent is once fixed by the fiscal court it may not thereafter be changed during his term of office. Breathitt County v. Noble, 116 S.W. 777 ( Ky. 1909 ).

An act changing the time of payment of an assessor for his services from after the making of the assessment to payment in advance, passed during the assessor’s term of office, was invalid as to the assessor then in office under this section and Const., § 161, the present use of money as against a future right of use being a valuable thing. James v. Barry, 138 Ky. 656 , 128 S.W. 1070, 1910 Ky. LEXIS 117 ( Ky. 1910 ). But see Shannon v. Wheeler, 268 Ky. 25 , 103 S.W.2d 718, 1937 Ky. LEXIS 422 ( Ky. 1937 ).

The fiscal court has no power to reduce the salary of the county court clerk, as clerk of the fiscal court, it having been fixed by order prior to his election. Fiscal Court of Mercer County v. Gibbs, 166 Ky. 434 , 179 S.W. 409, 1915 Ky. LEXIS 707 ( Ky. 1915 ).

Statute increasing the fees of the clerk of the county court does not apply to the officer during the term the act was passed, but it may provide that increase of fees may be charged and the increase be collected and turned into the state treasury. Neutzel v. Fiscal Court of Jefferson County, 183 Ky. 1 , 208 S.W. 11, 1919 Ky. LEXIS 433 ( Ky. 1 919).

Statute authorizing fiscal court to make a reasonable allowance to the county clerk for services to the fiscal court does not authorize the court to make such allowance to a clerk during his term of office increasing his annual compensation in violation of this section. Pursifull v. Taxpayers' League of Bell County, 257 Ky. 202 , 77 S.W.2d 783, 1934 Ky. LEXIS 544 ( Ky. 1934 ).

22.— Increase in Deductions.

Fact that officer’s contribution to retirement system was increased from two and one-half percent (21/2%) to four percent (4%) in June, 1962, did not result in a reduction of a salary of an elective officer in violation of this section and Const., § 161. Cook v. Chilton, 390 S.W.2d 656, 1965 Ky. LEXIS 364 ( Ky. 1965 ).

23.— Abolishment of Office.

Ordinance establishing board of public works and abolishing office of superintendent of works did not violate this section or Const., § 161. Board of Aldermen v. Hunt, 284 Ky. 720 , 145 S.W.2d 814, 1940 Ky. LEXIS 551 ( Ky. 1940 ).

24.— Valid Change.

A statute allowing a captain of state militia a larger compensation under certain conditions did not violate this section. James v. Walker, 141 Ky. 88 , 132 S.W. 149, 1910 Ky. LEXIS 404 ( Ky. 1910 ).

The General Assembly can lessen the rate of commission which a sheriff shall receive for collection of public moneys, unless in so doing it changes his salary or compensation after his election or during his term of office. Ross v. Board of Education, 196 Ky. 366 , 244 S.W. 793, 1922 Ky. LEXIS 520 ( Ky. 1922 ).

The salary of the chief clerk of the house of representatives may be changed while he is in office, even though he is a public officer. Shanks v. Howes, 214 Ky. 613 , 283 S.W. 966, 1926 Ky. LEXIS 383 ( Ky. 1926 ).

Statute providing that income of outgoing sheriff arising from commissions for collection of taxes be treated as part of sheriff’s income for preceding year did not violate this section. Petty v. Talbott, 256 Ky. 688 , 76 S.W.2d 940, 1934 Ky. LEXIS 475 ( Ky. 1934 ).

KRS 67.120 providing that the fiscal court shall annually make a reasonable allowance to the clerk of the county court does not authorize a yearly change in compensation but must be interpreted in light of this section and Const., § 161 as allowing only the same annual compensation throughout a clerk’s term of office. Pursifull v. Taxpayers' League of Bell County, 257 Ky. 202 , 77 S.W.2d 783, 1934 Ky. LEXIS 544 ( Ky. 1934 ).

KRS 70.170 providing that sheriff should receive reasonable compensation for additional services that he was required to perform by KRS 70.150 and 70.160 did not conflict this section. Milliken v. Harrod, 275 Ky. 597 , 122 S.W.2d 148, 1938 Ky. LEXIS 471 ( Ky. 1938 ).

A law which provided for a salary change to take effect two (2) years later during a subsequent term of office did not violate this section. Commonwealth ex rel. Hancock v. Davis, 521 S.W.2d 823, 1975 Ky. LEXIS 162 ( Ky. 1975 ).

25.— Invalid Change.

KRS 172.100 and 172.110 , insofar as they provided for additional compensation to Circuit Court clerks in office at the time they were enacted, were unconstitutional. Johnson County v. Meek, 276 Ky. 656 , 124 S.W.2d 1024, 1939 Ky. LEXIS 561 ( Ky. 1939 ).

KRS 64.200 and 70.320 , insofar as applied to deputy constables in office at the time of its passage, violated this section, since outright salary fixed by the act exceeded compensation constables had previously earned in fees. Jefferson County Fiscal Court v. Thomas, 279 Ky. 458 , 130 S.W.2d 60, 1939 Ky. LEXIS 258 ( Ky. 1939 ).

Overseeing county roads is a part of the duties for which a county judge is fully compensated by his salary and a fiscal court order allowing him $25.00 per month for traveling expenses for this purpose is void under this section and Const., § 161. Noland v. Estill County, 304 Ky. 870 , 202 S.W.2d 376, 1947 Ky. LEXIS 708 ( Ky. 1947 ). See Estill County v. Noland, 301 Ky. 204 , 191 S.W.2d 223, 1945 Ky. LEXIS 715 ( Ky. 1945 ).

26.— Garnishment.

This section does not prohibit garnishment of salary due a Circuit Judge. Batesville Casket Co. v. Fields, 288 Ky. 104 , 155 S.W.2d 743, 1941 Ky. LEXIS 63 ( Ky. 1941 ).

27.— Retention of Excess.

Retention of money or fees collected by city treasurer in excess of compensation fixed by law before his election is illegal, although authorized by statute. Princeton v. Baker, 237 Ky. 325 , 35 S.W.2d 524, 1931 Ky. LEXIS 600 ( Ky. 1931 ).

28.— Fringe Benefits.

While fringe benefits are not salary or compensation within the meaning of those terms as found in this section and Const., §§ 161 and 246 if the salary of a particular official were raised through the subterfuge of paying certain benefits for him not uniformly available to similarly situated officials, such benefits would constitute salary or compensation within the terms found in this section and Const., §§ 161 and 246. Caldwell County Fiscal Court v. Paris, 945 S.W.2d 952, 1997 Ky. App. LEXIS 49 (Ky. Ct. App. 1997).

Cited:

Louisville v. Wilson, 99 Ky. 598 , 18 Ky. L. Rptr. 427 , 36 S.W. 944, 1896 Ky. LEXIS 120 ( Ky. 1 896 ); James v. Walker, 141 Ky. 88 , 132 S.W. 149, 1910 Ky. LEXIS 404 ( Ky. 1 910 ); Adams v. Greene, 182 Ky. 504 , 206 S.W. 759, 1918 Ky. LEXIS 387 ( Ky. 1918 ); Schardein v. Harrison, 230 Ky. 1, 18 S.W.2d 316, 1929 Ky. LEXIS 5 ( Ky. 1929 ); Shaw v. Fox, 246 Ky. 342 , 55 S.W.2d 11, 1932 Ky. LEXIS 761 ( Ky. 1932 ); Talbott v. Jones, 252 Ky. 115 , 66 S.W.2d 89, 1933 Ky. LEXIS 1008 ( Ky. 1933 ); Taxpayers’ League of Bell County v. Vanbeber, 252 Ky. 282 , 66 S.W.2d 516, 1933 Ky. LEXIS 1013 ( Ky. 1934 ); Bell v. Talbott, 252 Ky. 721 , 68 S.W.2d 36, 1934 Ky. LEXIS 848 ( Ky. 1934 ); Shannon v. Wheeler, 268 Ky. 25 , 103 S.W.2d 718, 1937 Ky. LEXIS 422 ( Ky. 1937 ); Talbott v. Thomas, 286 Ky. 786 , 151 S.W.2d 1, 1941 Ky. LEXIS 277 ( Ky. 194 1); Hatcher v. Meredith, 295 Ky. 194 , 173 S.W.2d 665, 1943 Ky. LEXIS 191 ( Ky. 1943 ); Rhoads v. Miller, 298 Ky. 346 , 182 S.W.2d 248, 1944 Ky. LEXIS 855 ( Ky. 1944 ); Hopson v. Department of Revenue, 298 Ky. 635 , 183 S.W.2d 812, 1944 Ky. LEXIS 970 ( Ky. 1944 ); Gross v. Ross, 299 Ky. 383 , 185 S.W.2d 547, 1945 Ky. LEXIS 430 ( Ky. 1945 ); Estill County v. Noland, 301 Ky. 204 , 191 S.W.2d 223, 1945 Ky. LEXIS 715 ( Ky. 1945 ); Farnsley v. Henderson, 240 S.W.2d 82, 1951 Ky. LEXIS 951 ( Ky. 1951 ); Cheshire v. Frankfort, 272 S.W.2d 37, 1954 Ky. LEXIS 1076 ( Ky. 1954 ); Lemon v. Fiscal Court of Casey County, 291 S.W.2d 572, 1956 Ky. LEXIS 396 ( Ky. 1956 ); Sparks v. Boggs, 339 S.W.2d 480, 1960 Ky. LEXIS 472 ( Ky. 1960 ); Commonwealth v. Howard, 379 S.W.2d 475, 1964 Ky. LEXIS 247 ( Ky. 1964 ); Sarakatsannis v. Baker, 488 S.W.2d 683, 1972 Ky. LEXIS 48 ( Ky. 1972 ); Wiggins v. Stuart, 671 S.W.2d 262, 1984 Ky. App. LEXIS 513 (Ky. Ct. App. 1984); Polston v. King, 965 S.W.2d 143, 1998 Ky. LEXIS 34 ( Ky. 1998 ).

Opinions of Attorney General.

The secretary to the board of education is not a public officer within the meaning of this section and consequently, subject to the general principles of contract law, the salary of the secretary may be changed during his term. OAG 60-480 .

Since no compensation had been provided for the trying of criminal cases previously, an order allowing such compensation voted after the magistrates took office was not invalid. OAG 61-314 .

The clerk of the fiscal court of Jefferson County is not a constitutional officer and is not subject to the constitutional prohibition against change of compensation during his term. OAG 62-1121 .

Increased compensation on the “dollar equation” formula does not apply to public officers other than Circuit Judges. OAG 64-62 .

Even though the jailer’s work is considered unsatisfactory, as long as he attempts to perform the duties in some manner, and as long as he remains in office, his salary cannot be changed during his term. OAG 64-399 .

The increase in compensation authorized by Acts 1964, ch. 109 for those constitutional officers designated in KRS 64.345 could not be granted during the officers’ present terms without violating Const., § 161. OAG 64-540 .

An order of the fiscal court entered in 1961 could not be amended in 1965 to increase the justices’ salaries for the remainder of their terms. OAG 65-507 .

The annual appropriation for janitorial services cannot be changed during the present term of the jailer. OAG 65-741 .

Where the county fiscal court fixed a salary of $1,200 per year to be paid to the Circuit Court clerk, that body could not validly eliminate that salary during the clerk’s term of office. OAG 65-785 .

The fiscal court is authorized to pay a salary to the various officers listed in KRS 64.535 , the amount of such salary, when initially established, being purely discretionary with the fiscal court but subject to the limitation of $9,600 and the limitations of Const., § 161 and this section. OAG 65-802 .

Where no categories of reasonable expenses to be allowed members of the court were established by the fiscal court, members would be required to submit a detailed account of the claimed official expenses with proper supporting documentation. OAG 65-884 .

A salary increase voted for the current county attorney pursuant to the 1966 amendment to KRS 64.530 did not violate Const., § 161 and this section. OAG 66-294 .

Pursuant to the 1966 amendment to KRS 64.530 a salary increase voted for the county attorney in April, 1966 was valid as to the current county attorney. OAG 66-294 .

Where the magistrates did not receive any compensation for trying criminal cases in the preceding term, an order entered by them after their term had begun authorizing such compensation was valid. OAG 66-388 .

The fiscal court could validly raise that portion of the circuit clerk’s salary that constituted his salary as law librarian after his term of office had begun. OAG 66-412 .

A lump-sum travel expense account for the county judge is not authorized and unless payments made to him for “expenses” meet the requirements they would constitute a prohibited increase in salary. OAG 67-325 .

The fiscal court, in its sound discretion, can establish the compensation or salary of the trial commissioner, and such discretion is not subject to the constitutional limitations of Const., § 246 because a trial commissioner is not an officer. OAG 67-356 .

This section is applicable to those officers named in Const., § 160, regardless of the number of incumbents during a full term, and would prohibit changing or increasing the salary of a person appointed to fill a vacancy in the office of city police judge from the salary of the resigning incumbent. OAG 68-199 .

Since an expense allowance is neither salary nor compensation, this section would not be applicable to prohibit the members of the general assembly from voting themselves an increased expense allowance to be effective in the same term. OAG 68-207 .

A city, which has the home rule statutes, has the authority to increase the compensation of elective officers during their term under the “rubber dollar” theory. OAG 68-572 .

An incumbent mayor as relates to the application of the flexible dollar doctrine may have his salary raised under the “adjustment” theory. OAG 68-605 .

Since the commissioners’ salaries could have been raised but were not, an increase in the salaries at this stage could not be a valid adjustment since the time limitations of KRS 64.580 (repealed) were not followed. OAG 68-605 .

Where a pro tem judge was appointed to serve during the regular judge’s statutory vacation and continued to serve due to the regular judge’s incapacitating illness, the fiscal court was legally responsible for paying the county judge pro tem for his services in that capacity for the period of time he served. OAG 69-660 .

Generally the salary levels of justices of the peace are based upon the population factor and where the compensation of justices of the peace have been set by fiscal court pursuant to KRS 64.255 (repealed), that compensation cannot be changed during their terms of office despite the fact that they may have unusual and burdensome case loads. OAG 70-165 .

The fiscal court may adjust the jailer’s salary upward in view of the flexible-dollar principle. OAG 70-462 .

Although the three (3) magistrates of Wolfe County were authorized to try criminal cases pursuant to KRS 64.255 (repealed), their salaries for such services cannot be raised, since a change in the salary of elected officers is prohibited under KRS 64.530 and by Const., § 161 and this section. OAG 70-505 .

If salary increases voted by county commissioners to county officers during their terms were actually salary “adjustments,” under the flexible-dollar theory, then the increases would not be changes as contemplated by Const., § 161 and this section and by KRS 64.530 . OAG 70-618 .

Section 161 of the Constitution and this section have no application to the office of county treasurer. OAG 71-540 .

The compensation of a sheriff cannot be changed during his term of office. OAG 72-7 .

This section prohibits a county jailer receiving any part of the deputy jailer’s salary. OAG 72-19 .

This section would prohibit increasing the previously fixed salary because of an increased work load during the term of the coroner’s office for which the salary had been fixed. OAG 72-285 .

This section was not violated by an increase in the Lieutenant Governor’s salary pursuant to the 1972 amendment to KRS 64.480 , as such an increase is considered a salary adjustment and not a salary change and is therefore not prohibited by this section as it conforms to the Consumer Price Index of 186 in February 1972, when the amendment was passed. OAG 72-567 .

The prohibition against increases in compensation does not apply to deputies. OAG 72-786 .

The salary of the county treasurer may be increased during his term at the discretion of the fiscal court. OAG 73-372 .

Unless agreed upon between the city and a city attorney when the compensation for his term of office was set, a city attorney, could not be paid legal fees in addition to his salary for handling a federal water and sewer grant project for the city during his term of office. OAG 73-386 .

A police officer is not required to be a resident of the city by which he is employed (affirming OAG 73-461 ). OAG 73-556 .

The rubber dollar principle surmounts the constitutional inhibitions of Const., § 246, establishing a compensation level of $7200 per year, as well as of Const., § 161 and this section, prohibiting a change in a constitutional officer’s compensation during his term, where an adjustment is made by an express act of the General Assembly. OAG 74-314 and 75-149.

The prohibitions against change in compensation contained in KRS 64.580 (repealed) and Const., § 161 and this section are not applicable under the “rubber dollar principle” to an incumbent mayor of a fourth-class city since the dollar is merely being adjusted for a constitutional officer named in Const., § 160. OAG 74-505 .

There are no applicable prohibitions against the increase in compensation during term, subject to the proper budgetary procedures of KRS, ch. 68, of the city attorney and fire chief of a fourth-class city (nor of the city clerk and chief of police if appointed and not elected) as they are appointed by the city legislative body and are not officers designated in Const., § 161 and this section nor elected officers prohibited by KRS 64.580 (repealed). OAG 74-400 . (Withdrawing 74-366.)

If the original salary of a police judge for a fourth-class city was originally intended to cover his services as police judge and deputy clerk, KRS 64.580 (repealed) and Const., § 161 and this section prohibit the judge from adding $100 a month, voted by the city council for a deputy clerk, to his salary and continuing to act as deputy clerk. OAG 74-525 .

The prohibition against change of a public officer’s salary during an officer’s term was intended to apply to an officer’s compensation, but not to necessary and official office expenses. OAG 74-243 .

The salaries of justices of the peace and other constitutional officers mentioned in KRS 64.527 can be raised during their term of office, for the salaries are merely being adjusted in purchasing power. OAG 76-252 .

While the compensation of public officers cannot be changed during the terms for which they were elected, an “adjustment” of compensation can be provided by the Legislature to reflect the adjustment of the 1949 dollar under the consumer price index formula during the terms for which they were elected. OAG 76-552 .

An adjustment in terms of the purchasing power of the dollar and the rising consumer price index does not constitute a change in compensation as envisioned by this section. OAG 78-594 .

The Legislature may not pass a bill which changes, either increasing or decreasing, the salary of a Circuit Court clerk during his term of office, and an attempt to do so would be unconstitutional under both Kentucky Constitution § 161 and this section. OAG 78-594 .

A fiscal court cannot lower the salaries of constitutional officers during their terms once the fiscal court has actually, and with finality, fixed their particular salary levels in the budget, and has adopted such budget pursuant to KRS 68.260 . OAG 80-323 .

Where the fiscal court has authorized a raise in salary for the county judge/executive, it cannot later in the term turn down that raise since that would be a prohibited change in his compensation. OAG 80-334 .

Although constitutional officers’ salaries may be increased during term up to the authorized rubber dollar maximum for that year, such salaries cannot be decreased during term, since that would not be rubber dollar, and would constitute a change in compensation, as prohibited by Const., § 161 and this section. OAG 82-16 .

The 1982 amendment to KRS 67.705 with regard to the county judge/executive’s salary is strictly in the context of the rubber dollar-consumer price index formulation. Thus the fixing of the county judge/executive’s salary in 1982 is not a change in compensation, in the constitutional sense, but is a fixation in terms of affording those officers with the application of the consumer price index theory previously adopted by Kentucky’s then highest court. OAG 82-317 .

A decrease in salary of a constitutional officer during his term would fall clearly within the prohibition against a “change” in compensation under Const., § 161 and this section. In addition, any upward adjustment of a constitutional officer’s salary during term which is not made pursuant to an implementing consumer price index statute would be a prohibited “change” in compensation. OAG 82-348 .

Where magistrates’ salaries on the first Monday in May in 1981 (election year) were set at $10,000 per magistrate, the fiscal court could authorize a salary to each magistrate, not to exceed $28,387 for the calendar year of 1982. However, since the magistrates on fiscal court have no executive duties, they should only be paid in terms of the work week they put in for the county. OAG 82-348 .

KRS 83A.070 requires that the compensation for members of the city legislative body be fixed not later than the first Monday in May in the year in which they are elected and such sum cannot be changed during their term of office; this means in effect, that once the compensation is fixed by ordinance, as it is required to be for members of the legislative body, it must be paid to those members. After they receive their salary, they may, of course, dispose of it in any manner that they see fit and could even donate it back to the city. OAG 82-502 .

The deputy county judge/executive is not a constitutional officer but a statutorily appointed officer; thus Const., § 161 and this section, which prohibit a “change in compensation,” do not apply to such officer. OAG 82-515 .

Once the jailer’s salary is properly set under KRS 64.530 , 64.527 , and 441.009 (repealed), it cannot be reduced, since that would be a “change in compensation,” which is prohibited by Const., § 161 and this section; an upward adjustment during the term of a jailer’s salary not to exceed the rubber dollar level, is not a change in compensation. OAG 83-49 .

Deputy coroners are not subject to Const., § 161 or this section, which prohibit a change in salary during a term. OAG 83-211 .

Implicit in Const., §§ 161 and 235 is the presumption that the officer must be paid for the entirety of his term, from the first Monday in January at the beginning of his term until, but not including, the first Monday in January at the end of his term. OAG 86-8 .

Where circuit clerk who took office in January 1995, in addition to her salary as circuit clerk, and as required by KRS 172.110 , received a monthly salary for her duties as county law librarian of $75, a reduction of such salary to $50 per month in July, 1995 was illegal since it is illegal to increase a clerk’s salary as law librarian during his term, in violation of Const., § 161 and this section, it is also illegal to decrease it. OAG 96-35 .

Research References and Practice Aids

Cross-References.

Compensation of local officers not to be changed during term, Const., § 161.

Deduction of salary for neglect, KRS 61.120 to 61.150 .

Maximum limit on salaries, Const., § 246.

Kentucky Law Journal.

Comments, Freedom of Speech: The Case of the “Corrupt” Campaign Promise, 70 Ky. L.J. 203 (1982).

Northern Kentucky Law Review.

Comment, Kentucky’s Power of Eminent Domain, 7 N. Ky. L. Rev. 421 (1980).

§ 236. When officers to enter upon duties.

The General Assembly shall, by law, prescribe the time when the several officers authorized or directed by this Constitution to be elected or appointed, shall enter upon the duties of their respective offices, except where the time is fixed by this Constitution.

NOTES TO DECISIONS

1.Construction.

This section does not refer to or purport to deal with the term of any office, which is governed by Const., §§ 160 and 167. Pinkston v. Watkins, 186 Ky. 365 , 216 S.W. 852, 1919 Ky. LEXIS 224 ( Ky. 1919 ).

2.Application.

This provision applies only to offices which are to be filled for a full term, and not to appointments to fill vacancies, and one elected to fill a vacancy is entitled to enter upon duties of his office, in place of an appointee, immediately after his election and qualification. Jones v. Sizemore, 117 Ky. 810 , 79 S.W. 229, 25 Ky. L. Rptr. 1957 , 1904 Ky. LEXIS 248 ( Ky. 1904 ).

This section has no application to member of county board of education, which is not a constitutional office. Brown v. Rose, 233 Ky. 549 , 26 S.W.2d 503, 1930 Ky. LEXIS 611 ( Ky. 1930 ).

3.Eligibility for Office.

This section does not require that one elected to the office of county judge shall be eligible to the office when elected, but eligible when entitled to qualify and enter upon the performance of the duties of the office. Jones v. Williams, 153 Ky. 822 , 156 S.W. 876, 1913 Ky. LEXIS 926 ( Ky. 1913 ).

4.Vacating Office.

One appointed by the Governor at the instance of a railroad to act as railroad policeman under a commission issued in June 1906 who did not take oath of office and qualify until July 1907 vacated his office in view of a statute requiring qualification of those appointed to office in 30 days of notice of appointment. Cincinnati, N. O. & T. P. R. Co. v. Cundiff, 166 Ky. 594 , 179 S.W. 615, 1915 Ky. LEXIS 755 ( Ky. 1915 ).

Research References and Practice Aids

Cross-References.

Oath to be taken and bond executed before entering upon duties, Const., §§ 103, 228; KRS 62.010 , 62.050 .

When officers to enter upon duties, KRS 61.030 .

§ 237. Federal office incompatible with State office.

No member of Congress, or person holding or exercising an office of trust or profit under the United States, or any of them, or under any foreign power, shall be eligible to hold or exercise any office of trust or profit under this Constitution, or the laws made in pursuance thereof.

NOTES TO DECISIONS

1.Purpose.

The primary purpose of this constitutional provision is to prohibit a separation of allegiance from one sovereign to another, and to prevent a division of loyalty justly due the sovereign to which the officer is in the first instance duty bound. Baker v. Dixon, 295 Ky. 279 , 174 S.W.2d 410, 1943 Ky. LEXIS 222 ( Ky. 1943 ).

2.Eligibility.

This section does not require one holding a federal office to be eligible for an office under the Constitution at the time of his election but only at the time he assumes such office. Jones v. Williams, 153 Ky. 822 , 156 S.W. 876, 1913 Ky. LEXIS 926 ( Ky. 1913 ).

3.Incompatibility.

There is no incompatibility of office except as prescribed by this section and Const., § 165, or by statutes enacted pursuant thereto, or in cases involving incompatibility of duties in different positions. Coleman v. Hurst, 226 Ky. 501 , 11 S.W.2d 133, 1928 Ky. LEXIS 121 ( Ky. 1928 ).

The incompatibilities set out in this section and Const., § 165 are not exclusive, and common-law incompatibility exists when the public functions to be performed are inconsistent the one with the other and when the nature and duties of the two (2) offices are such as to render it improper from consideration of public policy for one incumbent to retain both. Knuckles v. Board of Education, 272 Ky. 431 , 114 S.W.2d 511, 1938 Ky. LEXIS 138 ( Ky. 1938 ).

The offices of jailer and special tax collector are not incompatible under this section or Const., § 165 but are incompatible within the spirit and intent of KRS 61.080 which makes the offices of sheriff and jailer incompatible. Nichols v. Land, 288 Ky. 693 , 157 S.W.2d 303, 1941 Ky. LEXIS 192 ( Ky. 1941 ).

The test of incompatibility is not to be measured by physical inability to personally discharge the duties of the offices, but it must be tested by the measure of consistency of the duties involved. Baker v. Dixon, 295 Ky. 279 , 174 S.W.2d 410, 1943 Ky. LEXIS 222 ( Ky. 1943 ).

4.Military Service.

A captain in the Kentucky National Guard who has been ordered into temporary federal service but will still hold and act under commission issued to him by Governor of Kentucky, and will be required to take no additional oath or make no new enlistment contract or be given no federal commission, does not forfeit his office as circuit clerk, since he does not hold two incompatible offices under this section. Kennedy v. Cook, 285 Ky. 9 , 146 S.W.2d 56, 1940 Ky. LEXIS 594 ( Ky. 1940 ), limited, Caudel v. Prewitt, 296 Ky. 848 , 178 S.W.2d 22, 1944 Ky. LEXIS 595 ( Ky. 1944 ).

Involuntary induction into the armed forces of the United States in time of emergency does not work a forfeiture of a state office held by inductee. Baker v. Dixon, 295 Ky. 279 , 174 S.W.2d 410, 1943 Ky. LEXIS 222 ( Ky. 1943 ).

One who has entered into the military service of the United States in a professional capacity would, under this section, be ineligible to hold or exercise the office of Commonwealth Attorney, but one who is involuntarily inducted is not ineligible. Baker v. Dixon, 295 Ky. 279 , 174 S.W.2d 410, 1943 Ky. LEXIS 222 ( Ky. 1943 ).

This section does not apply where a Commonwealth Attorney becomes an officer in the United States army during a time of national emergency. Caudel v. Prewitt, 296 Ky. 848 , 178 S.W.2d 22, 1944 Ky. LEXIS 595 ( Ky. 1944 ).

5.Rural Mail Carrier.

Rural mail carrier did not hold office of trust or profit under the United States within the meaning of the Constitution. Lasher v. Commonwealth, 418 S.W.2d 416, 1967 Ky. LEXIS 215 ( Ky. 1967 ).

6.Postmaster.

The trial court properly concluded that the postmaster of a fourth-class post office was not a holder of an office of trust or profit within the meaning of this section, and therefore was eligible to serve as a member of a school board. Commonwealth ex rel. Hancock v. Clark, 506 S.W.2d 503, 1974 Ky. LEXIS 749 ( Ky. 1974 ).

Cited:

Miller v. Robertson, 306 Ky. 653 , 208 S.W.2d 977, 1948 Ky. LEXIS 631 ( Ky. 1948 ); Rash v. Louisville & Jefferson County Metropolitan Sewer Dist., 309 Ky. 442 , 217 S.W.2d 232, 1949 Ky. LEXIS 670 ( Ky. 1949 ); Hancock v. Queenan, 294 S.W.2d 92, 1956 Ky. LEXIS 117 ( Ky. 1956 ); Commonwealth ex rel. Breckinridge v. Winstead, 430 S.W.2d 647, 1968 Ky. LEXIS 407 ( Ky. 1968 ).

Opinions of Attorney General.

A fourth-class postmaster is a federal officer and a school board member is a state officer, and for one person to hold both offices at the same time is prohibited by this section. OAG 60-813 .

While there is no prohibition under the Constitution or statutes against a person holding federal employment and a county office at the same time as there would be if the same person held a federal office and a county office at the same time, the federal hatch act, 5 USCS § 118(i), makes it unlawful for any person employed in the executive branch of the federal government or any agency or department thereof to take an active part in the political management or political campaigns. OAG 61-196 .

A mail contractor may not serve as a member of the Kentucky House of Representatives because the two (2) offices are incompatible. OAG 61-291 .

The position of substitute rural mail carrier is incompatible with the office of member of a board of education. OAG 61-785 .

A person who holds a public office in another state may not at the same time serve as a magistrate in Kentucky. OAG 61-972 .

A school board member would be eligible to serve where he resigned his federal office of substitute mail carrier after his election but before he qualified for office and assumed his duties as school board member. OAG 65-157 .

The position of rural mail carrier is a form of federal employment rather than a federal office and a person who holds such a position is not disqualified by the provisions of this section from serving on the county board of education. OAG 68-191 .

A position on the field staff of a United States senator is a federal employment and not an office of trust or profit under the United States within the meaning of this section and consequently the provisions of this section do not bar a member of the general assembly from holding such a position. OAG 69-67 .

This section prohibits a person from serving as a member of a local draft board and as a city councilman at the same time. OAG 69-298 .

The position of mail distribution clerk is a federal employment and not an office of trust or profit under the United States within the meaning of this section and consequently the provisions of this section do not bar a postal clerk from the office of city commissioner. OAG 69-410 .

An employee of the Blue Grass army activities could, at the same time, serve as a member of the school board without violating this section. OAG 69-438 .

The positions of contract rural letter carrier and magistrate are not constitutionally incompatible under this section. OAG 70-33 .

Under this section the office of postmaster is incompatible with membership on a county board of education. OAG 70-137 .

Since the position of Special Master, an appointive position made by the federal district court whose duties are to hear the evidence in a particular case and file a report with the Circuit Judge who then renders a decision, is neither a federal office nor a judicial office, there is no constitutional objection, either under this section or under Const., § 28, to the position being held by a member of the general assembly. OAG 70-163 .

This section does not prohibit a federal employee under civil service from serving at the same time as a county employee. OAG 70-326 .

Since the offices of school board member and selective service board member are both offices of trust, they are incompatible under the Constitution and cannot be held by a person at the same time. OAG 70-812 .

Where a state representative won a special election to fill a vacancy in the United States congress, a vacancy automatically was created in his district when he was sworn in as a member of congress. OAG 72-3 .

A member of the county board of education cannot also hold the position of postmaster. The offices are incompatible under this section. OAG 72-67 .

A part-time United States deputy marshal cannot be sworn in as a police officer in a city of the second class. OAG 72-129 .

Persons who serve as members of the Fish and Wildlife Resources Commission may not also serve in any state, county, city, town, municipal or federal office. OAG 72-354 .

There is no prohibition against a federal employee serving as a school board member. OAG 72-665 .

Despite changes in the federal postal system, a postmaster of any class of post office is still a federal officer and barred by this section from serving at the same time as a state officer. OAG 72-800 .

This section does not bar the manager of a rural electric cooperative organized pursuant to KRS 279.020 to 279.220 from holding elective office, since rural electric cooperatives are Kentucky nonprofit corporations and are not a part of the federal government or of the federal rural electrification administration. OAG 73-412 .

A field worker with the federally funded office of economic opportunity could properly serve, at the same time, as a member of a school board, her position with the federal government not amounting to an office of trust or profit under the United States. OAG 73-625 .

At least in the case of fourth-class cities, the local postmaster may also serve as a school board member. OAG 75-661 .

It would be legal for a person regularly employed by the federal government as a coal mine inspector to be elected and serve at the same time as a member of the school board. OAG 79-491 .

This section would prohibit the postmaster of a first class post office in a city from being on the water board, since the postmaster position of a first class office would be an “office of trust”, and a water board member is an office of trust under Kentucky law. OAG 80-234 .

A member of the General Assembly may also serve as director of a member-owned rural electric cooperative which is a nonprofit corporation created pursuant to KRS chapter 279, since the cooperative is not a state administrative board or commission, and such dual employment therefor does not violate this section or KRS 6.800 which prohibits state legislators from holding any other state office or employment. OAG 81-249 .

Research References and Practice Aids

Cross-References.

Incompatible offices, Const., §§ 44, 165; KRS 61.080 .

§ 238. Discharge of sureties on officers’ bonds.

The General Assembly shall direct by law how persons who now are, or may hereafter become, sureties for public officers, may be relieved of or discharged from suretyship.

Research References and Practice Aids

Cross-References.

Discharge of sureties, KRS 62.090 to 62.130 .

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Bonds, § 12.00.

§ 239. Disqualification from office for presenting or accepting challenge to duel — Further punishment.

Any person who shall, after the adoption of this Constitution, either directly or indirectly, give, accept or knowingly carry a challenge to any person or persons to fight in single combat, with a citizen of this State, with a deadly weapon, either in or out of the State, shall be deprived of the right to hold any office of honor or profit in this Commonwealth; and if said acts, or any of them, be committed within this State, the person or persons so committing them shall be further punished in such manner as the General Assembly may prescribe by law.

NOTES TO DECISIONS

1.In General.

A duel is a combat with a deadly weapon fought under prescribed rules according to a precedent formal agreement without sudden heat or passion. Ward v. Commonwealth, 132 Ky. 636 , 116 S.W. 786, 1909 Ky. LEXIS 135 ( Ky. 1909 ).

Cited:

In re Wall (S.D. Fla. 1882); Commonwealth ex rel. Funk v. Huntsman, 237 S.W.2d 876, 1951 Ky. LEXIS 793 ( Ky. 1951 ).

Research References and Practice Aids

Cross-References.

Disqualification from office for dueling, KRS 61.100 .

Oath as to dueling, Const., § 228.

Penalty for delivering or accepting challenge to duel, KRS 437.030 .

§ 240. Pardon of person convicted of dueling.

The Governor shall have power, after five years from the time of the offense, to pardon any person who shall have participated in a duel as principal, second or otherwise, and to restore him to all the rights, privileges and immunities to which he was entitled before such participation. Upon presentation of such pardon the oath prescribed in Section 228 shall be varied to suit the case.

§ 241. Recovery for wrongful death.

Whenever the death of a person shall result from an injury inflicted by negligence or wrongful act, then, in every such case, damages may be recovered for such death, from the corporations and persons so causing the same. Until otherwise provided by law, the action to recover such damages shall in all cases be prosecuted by the personal representative of the deceased person. The General Assembly may provide how the recovery shall go and to whom belong; and until such provision is made, the same shall form part of the personal estate of the deceased person.

NOTES TO DECISIONS

Analysis

1.Construction.

This section is self-executing and an action is maintainable thereunder although the cause of action arose before the enactment of any statute. Thomas v. Royster, 98 Ky. 206 , 32 S.W. 613, 17 Ky. L. Rptr. 783 , 1895 Ky. LEXIS 37 ( Ky. 1895 ).

This section and KRS 411.130 simply extended beyond death substantially the same cause of action the injured party would have had under common law if he survived. Harralson v. Thomas, 269 S.W.2d 276, 1954 Ky. LEXIS 996 ( Ky. 1954 ), overruled, Harlan Nat'l Bank v. Gross, 346 S.W.2d 482, 1961 Ky. LEXIS 309 ( Ky. 1961 ).

This section uses the words “negligence” and “wrongful act” to include every degree of tort against the person and prohibits the Legislature from denying any right of legal action based thereon. Saylor v. Hall, 497 S.W.2d 218, 1973 Ky. LEXIS 304 ( Ky. 1973 ).

2.Application.

This section was not intended to be retroactive and does not bar action for wrongful death under prior statute in case of death occurring before the adoption of the Constitution. Wright v. Woods, 96 Ky. 56 , 27 S.W. 979, 16 Ky. L. Rptr. 337 , 1894 Ky. LEXIS 97 ( Ky. 1894 ). See Edmonson v. Kentucky C. R. Co., 28 S.W. 789, 16 Ky. L. Rptr. 459 (1894).

Under this section and §§ 14 and 54 of the Constitution, which apply to legislative as well as judicial acts, KRS 413.120(14) and KRS 413.135 could not constitutionally be applied to bar recovery by a third party tenant from a negligent builder for personal injuries or wrongful death, since to do so would amount to impermissibly destroying an existing right of action under the guise of limitation of actions. Saylor v. Hall, 497 S.W.2d 218, 1973 Ky. LEXIS 304 ( Ky. 1973 ). But see Carney v. Moody, 646 S.W.2d 40, 1982 Ky. LEXIS 331 ( Ky. 1982 ), overruled, Perkins v. Northeastern Log Homes, 808 S.W.2d 809, 1991 Ky. LEXIS 44 ( Ky. 1991 ).

Since the restriction of KRS 304.40-330 (repealed) on the amount payable from a compensation fund in one (1) year was not a limitation on the claimant’s right of recovery, this section could not apply. McGuffey v. Hall, 557 S.W.2d 401, 1977 Ky. LEXIS 533 ( Ky. 1977 ).

Decisions concerning when the sovereign immunity defense applies to a state entity have held that § 231, as a specific provision, overrides §§ 14, 54, and this section, as general provisions, but only in suits which may be legitimately classified as “brought against the Commonwealth.” Kentucky Center for Arts Corp. v. Berns, 801 S.W.2d 327, 1990 Ky. LEXIS 142 ( Ky. 1990 ).

KRS 67A.060 retention of sovereign immunity in urban county governments is not unconstitutional; sovereign immunity “trumps” jural rights because sovereign immunity predates the adoption of Kentucky’s first constitution. Lexington-Fayette Urban County Gov't v. Smolcic, 142 S.W.3d 128, 2004 Ky. LEXIS 182 ( Ky. 2004 ).

3.Administrator.

An action by a father as administrator for wrongful death under this section does not abate with the father’s death but may be revived by his successor as administrator for the benefit of the father’s estate. Thomas' Adm'r v. Maysville Gas Co., 112 Ky. 569 , 66 S.W. 398, 23 Ky. L. Rptr. 1879 , 1902 Ky. LEXIS 198 ( Ky. 1902 ). See Thomas' Adm'r v. Maysville Gas Co., 108 Ky. 224 , 56 S.W. 153 ( Ky. 1900 ).

A wrongdoer should not be permitted by collusion and fraud to procure the appointment of an administrator and control him so as to defeat an action and recovery for the death of his intestate as authorized hereunder. McLemore v. Sebree Coal & Mining Co., 121 Ky. 53 , 88 S.W. 1062, 28 Ky. L. Rptr. 25 , 1905 Ky. LEXIS 177 ( Ky. 1905 ).

A voluntary payment of a debt or liability to a foreign domiciliary administrator, where decedent was a nonresident, though the wrongful death occurred in this state, is valid though an administrator has been appointed in the state where payment is made, if the person making it is without actual notice of such appointment. Compton's Adm'r v. Borderland Coal Co., 179 Ky. 695 , 201 S.W. 20, 1918 Ky. LEXIS 270 ( Ky. 1918 ) ( Ky. 1918 ).

Under this section authority to bring suit for wrongful death rests solely in the resident administrator and an administrator may maintain suit only in the state where he is qualified. Compton's Adm'r v. Borderland Coal Co., 179 Ky. 695 , 201 S.W. 20, 1918 Ky. LEXIS 270 ( Ky. 1918 ) ( Ky. 1918 ). See Ballard v. United Distillers Co., 28 F. Supp. 633, 1939 U.S. Dist. LEXIS 2380 (D. Ky. 1939 ); Siebenhar v. Wise, 16 F.R.D. 479, 1951 U.S. Dist. LEXIS 3634 (D. Ky. 1951 ).

4.Personal Representative.

There are only two (2) exceptions to the requirement that actions for wrongful death must be brought by the personal representative of the deceased: (1) a beneficiary may bring suit in his own name where the personal representative has refused to do so; and (2) such suit may be brought when there is fraud and collusion on the part of the personal representative and the person sought to be made liable for the death. Lewis v. Harper, 371 F.2d 555, 1967 U.S. App. LEXIS 7788 (6th Cir. Ky. 1967 ). See McLemore v. Sebree Coal & Mining Co., 121 Ky. 53 , 88 S.W. 1062, 28 Ky. L. Rptr. 25 , 1905 Ky. LEXIS 177 ( Ky. 1905 ); Leach v. Owensboro C. R. Co., 137 Ky. 292 , 125 S.W. 708, 1910 Ky. LEXIS 569 ( Ky. 1910 ).

A legal representative may maintain an action for the wrongful death of one who leaves neither widow nor child. Lexington & C. C. Min. Co. v. Huffman's Adm'r, 32 S.W. 611, 17 Ky. L. Rptr. 775 (1895).

The provisions of this section gave a right of recovery to the personal representative, and only left to the Legislature the mere distribution of the recovery. East Tennessee Tel. Co. v. Simms' Adm'r, 99 Ky. 404 , 36 S.W. 171, 1896 Ky. LEXIS 102 ( Ky. 1896 ). See Louisville v. Hart's Adm'r, 143 Ky. 171 , 136 S.W. 212, 1911 Ky. LEXIS 377 ( Ky. 1911 ).

This section gives an absolute right to the personal representative of a decedent to recover damages for wrongful death, regardless of whether the money recovered goes to the heirs, the estate or the creditors of decedent. Kentucky State Journal Co. v. Workmen’s Compensation Board, 161 Ky. 562 , 170 S.W. 1166, 1914 Ky. LEXIS 88 , L.R.A. (n.s.) 1916B389 ( Ky. 1914 ), overruled, Wells v. Jefferson County, 255 S.W.2d 462, 1953 Ky. LEXIS 646 ( Ky. 1953 ).

Personal representative of deceased could bring action against a sheriff for killing a bystander, when shooting at another in a crowd, when widow and children of deceased bystander failed to prosecute action for damages as specifically permitted under a provision of statute. Wells' Adm'r v. Lewis, 213 Ky. 846 , 281 S.W. 996, 1926 Ky. LEXIS 634 ( Ky. 1926 ).

This section and KRS 411.130 mandate that all actions for wrongful death be maintained by the personal representative of the deceased. Where there had never been a valid personal representative of the deceased, the district court did not err in finding wrongful death actions barred by the statute of limitations. Drake v. B.F. Goodrich Co., 782 F.2d 638, 1986 U.S. App. LEXIS 21993 (6th Cir. Ky. 1986 ).

5.Corporations.

This section and the statute thereunder were not intended to give a right of action against a municipal corporation for the death of a person occurring as the result of an act done in the performance of a duty which the municipality owed to the public, and the doing of which was but the exercise of power purely governmental. Twyman's Adm'r v. Board of Councilmen, 117 Ky. 518 , 78 S.W. 446, 25 Ky. L. Rptr. 1620 , 1904 Ky. LEXIS 217 ( Ky. 1904 ). See Smith's Adm'r v. Commissioners of Sewerage, 146 Ky. 562 , 143 S.W. 3, 1912 Ky. LEXIS 118 ( Ky. 1912 ), overruled in part, Haney v. Lexington, 386 S.W.2d 738, 1964 Ky. LEXIS 178 ( Ky. 1964 ).

6.Persons.
7.— Government Employees.

A statute which purports to extend immunity enjoyed by the governmental agency to the personal liability of its employees violates Ky. Const., §§ 14 and 54 and would violate this section, if a death were involved. The Constitution prohibits the abolition or diminution of legal remedies for personal injuries. University of Louisville v. O'Bannon, 770 S.W.2d 215, 1989 Ky. LEXIS 12 ( Ky. 1989 ).

A statute which purports to extend sovereign immunity to the personal liability of its employees violates this section as well as Const., §§ 14 and 54. Blue v. Pursell, 793 S.W.2d 823, 1989 Ky. App. LEXIS 124 (Ky. Ct. App. 1989).

8.— Physicians.

If an injury is inflicted by a physician negligently on his patient and death ensues therefrom, he is liable for such death just as any lay person. Randolph's Adm'r v. Snyder, 139 Ky. 159 , 129 S.W. 562, 1910 Ky. LEXIS 19 ( Ky. 1910 ).

9.— Sheriffs.

A sheriff and surety on bond are not liable to widow for death of her husband by a deputy sheriff’s careless, wanton and malicious use of firearms unless it is alleged that the sheriff and his surety committed the killing, or that they aided or abetted the deputy sheriff, either under this section or statute allowing recovery to widow specifically. Howard v. Caudill, 228 Ky. 403 , 15 S.W.2d 245, 1929 Ky. LEXIS 554 ( Ky. 1929 ).

10.— Sole Beneficiary.

This section and KRS 411.130 confer a right to sue for damages in every case where death results from injury inflicted by negligence or wrongful act except only where, under the very provisions of these enactments, an action is impossible because the responsible party is also the sole beneficiary of any possible recovery. Bays v. Cox' Adm'r, 312 Ky. 827 , 229 S.W.2d 737, 1950 Ky. LEXIS 750 ( Ky. 1950 ).

Under this section and statutes, an administrator of a childless wife wrongfully killed by her husband may not recover damages from the husband, since he is both the wrongdoer and the beneficiary of any recovery. Moore v. Citizens Bank of Pikeville, 420 S.W.2d 669, 1967 Ky. LEXIS 126 ( Ky. 1967 ).

11.— Spouses.

This section and the statute thereunder do not confer upon the personal representative of a wife without surviving children who was killed by her husband the right to sue the husband or his personal representative for damages for her wrongful death, as under the terms of both, the wife’s estate has no beneficial interest in any sum recoverable. Dishon's Adm'r v. Dishon's Adm'r, 187 Ky. 497 , 219 S.W. 794, 1920 Ky. LEXIS 153 ( Ky. 1920 ), overruled, Brown v. Gosser, 262 S.W.2d 480, 1953 Ky. LEXIS 1104 ( Ky. 1953 ).

Where there are children surviving who under the statute are entitled to half of recovery, wife’s administrator may maintain an action against the husband for damages for her wrongful death. Robinson's Adm'r v. Robinson, 188 Ky. 49 , 220 S.W. 1074, 1920 Ky. LEXIS 229 ( Ky. 1920 ).

Where decedent was killed in automobile collision caused by concurrent negligence of her husband and another defendant, in an action by decedent’s personal representative against the two (2) defendants the husband was not entitled to share in the recovery; however, the decedent’s two (2) surviving children were entitled to one-half (1/2) the amount of the verdict less funeral expenses and costs of administration, and judgment should have been entered for such amount, plus expenses and cost, with the amounts to be assessed against the defendants in proportion to amount of verdict against each. Bays v. Cox' Adm'r, 312 Ky. 827 , 229 S.W.2d 737, 1950 Ky. LEXIS 750 ( Ky. 1950 ).

12.— Corporations.

Where Ohio resident who worked in Ohio for national business firm was killed in an airplane crash in Kentucky, employer, which paid claims under Ohio Worker’s Compensation Act to employee’s survivors and was precluded by that act from recovering from third-party tort-feasor, could not bring wrongful death action under this section and KRS 411.130 against the same third-party tort-feasor, since KRS 411.130 gives the sole right to make a claim to the injured person and his spouse if he survives and to the survivors named in the section in the event of death. Harris Corp., Data Communications Div. v. Comair, Inc., 510 F. Supp. 1168, 1981 U.S. Dist. LEXIS 11561 (E.D. Ky. 1981 ), aff'd, 712 F.2d 1069, 1983 U.S. App. LEXIS 25666 (6th Cir. Ky. 1983 ).

13.Decedents.
14.— Aliens.

The county court of the county where an unnaturalized foreigner was employed as a laborer and lost his life by employer’s negligence has a right to appoint an administrator who can bring action under this section, though decedent had no estate and no relations in this state. Trotta's Adm'r v. Johnson, Briggs, & Pitts, 121 Ky. 827 , 90 S.W. 540, 28 Ky. L. Rptr. 851 , 1906 Ky. LEXIS 260 ( Ky. 1906 ).

15.— Automobile Guests.

Statute prohibiting recovery for death of automobile guest, unless there is intentional wrong, is unconstitutional. Ludwig v. Johnson, 243 Ky. 533 , 49 S.W.2d 347, 1932 Ky. LEXIS 159 ( Ky. 1932 ).

16.— Nonresidents.

Before the adoption of this section, a personal representative could not be appointed for a nonresident decedent unless it appeared that the decedent left property in the commonwealth to be administered. Young's Adm'r v. Louisville & N. R. Co., 121 Ky. 483 , 89 S.W. 475, 28 Ky. L. Rptr. 451 , 1905 Ky. LEXIS 228 ( Ky. 1905 ).

Where a nonresident intestate having no domicile in this state and no next of kin, distributee or creditor residing therein is killed in a county of the state by negligence of a person or corporation, the county court may appoint an administrator at the first term of court succeeding his death. Young's Adm'r v. Louisville & N. R. Co., 121 Ky. 483 , 89 S.W. 475, 28 Ky. L. Rptr. 451 , 1905 Ky. LEXIS 228 ( Ky. 1905 ).

17.— Unborn Children.

An unborn child is a person within the meaning of this section and statute if it has reached the prenatal stage of viability permitting it to live and grow normally if prematurely separated from its mother. Mitchell v. Couch, 285 S.W.2d 901, 1955 Ky. LEXIS 89 ( Ky. 1955 ).

18.Fellow-servant Rule.

The fellow-servant rule was not abrogated by this section. Linck's Adm'r v. Louisville & N. R. Co., 107 Ky. 370 , 54 S.W. 184, 21 Ky. L. Rptr. 1097 , 1899 Ky. LEXIS 183 ( Ky. 1899 ). See McDonald v. Louisville & N. R. Co., 232 Ky. 734 , 24 S.W.2d 585, 1930 Ky. LEXIS 70 ( Ky. 1930 ).

This section authorizes recovery from the master for wrongful death of a servant due to the ordinary negligence of a fellow servant. Southern R. Co. v. Barr's Adm'x, 55 S.W. 900, 21 Ky. L. Rptr. 1615 , 1900 Ky. LEXIS 574 (Ky. Ct. App. 1900). See Linck's Adm'r v. Louisville & N. R. Co., 107 Ky. 370 , 54 S.W. 184, 21 Ky. L. Rptr. 1097 , 1899 Ky. LEXIS 183 ( Ky. 1899 ).

19.Settlements.

Voluntary settlement by personal representative of deceased employee does not constitute a bar to compensation claim by dependents. Napier v. John P. Gorman Coal Co., 242 Ky. 127 , 45 S.W.2d 1064, 1931 Ky. LEXIS 714 ( Ky. 1931 ).

20.Negligence.

As used in this section, the word “negligence” means such actionable negligence as would authorize a recovery for the injury had death not ensued. Singleton v. Felton, 101 F. 526, 1900 U.S. App. LEXIS 4429 (6th Cir. Ohio 1900).

The word “negligence” in this section is used in its well-known, legal significance as meaning actionable negligence which would authorize a recovery for the injury if death had not ensued. St. Walburg Monastery, etc. v. Feltner's Adm'r, 275 S.W.2d 784, 1955 Ky. LEXIS 375 ( Ky. 1955 ).

21.— Degrees.

This section makes no provision for degrees of negligence. Louisville & N. R. Co. v. Copley, 177 Ky. 171 , 197 S.W. 648, 1917 Ky. LEXIS 567 ( Ky. 1917 ).

22.— Wilful.

Where a petition in an action for wrongful death states a good cause of action under this section, an allegation that the negligence involved was wilful does not require that the case be considered as an action to recover for death from wilful neglect. Louisville & N. R. Co. v. Alumbaugh's Adm'r, 51 S.W. 18, 21 Ky. L. Rptr. 134 (1899).

23.— Proximate Cause.

Wrongful death must have been caused and brought about as the proximate result of the negligence or wrongful act of defendant. Delong's Adm'r v. Tackett, 240 S.W.2d 829, 1951 Ky. LEXIS 1020 ( Ky. 1951 ).

24.— Employment of Minor.

Where the only negligence by an employer is the employment of one under the legal employment age, no recovery for wrongful death may be had on behalf of a parent who knowingly permitted such employment, but this knowing permission cannot be used to defeat a recovery for the benefit of the other parent who did not permit or acquiesce in such employment. Kentucky Utilities Co. v. McCarty's Adm'r, 169 Ky. 38 , 183 S.W. 237, 1916 Ky. LEXIS 645 (Ky.), modified, 170 Ky. 543 , 186 S.W. 150, 1916 Ky. LEXIS 79 ( Ky. 1916 ).

25.Wrongful Act.

The words “wrongful act,” as used in this section, are intended to denote only acts from which negligence may arise, and therefore this section does not affect statute giving right of action for damages to the widow or minor child of a person killed by the malicious or wanton use of firearms. McClure v. Alexander, 24 S.W. 619, 15 Ky. L. Rptr. 732 (1894).

The words “wrongful act,” as used in this section and in the statute, embrace every injury that might be committed against the person, whether negligently done or not, and would include death by the wrongful use of firearms. Howard's Adm'r v. Hunter, 126 Ky. 685 , 104 S.W. 723, 31 Ky. L. Rptr. 1092 , 1907 Ky. LEXIS 85 ( Ky. 1907 ).

26.— Breach of Contract.

This section authorizes a recovery for the death of a servant resulting from the master’s breach of contract to furnish a guard to protect him from an assault by others. Lewis' Adm'r v. Taylor Coal Co., 112 Ky. 845 , 66 S.W. 1044, 23 Ky. L. Rptr. 2218 , 1902 Ky. LEXIS 238 ( Ky. 1902 ).

27.— Noncompliance with Law.

The failure to comply with a city ordinance requiring fire escapes on certain buildings was not only negligence but also a wrongful act within the meaning of this section. Mullins v. Nordlow, 170 Ky. 169 , 185 S.W. 825, 1916 Ky. LEXIS 31 ( Ky. 1916 ). See Baker v. White, 251 Ky. 691 , 65 S.W.2d 1022, 1933 Ky. LEXIS 954 ( Ky. 1933 ).

28.— Unlawful Liquor Sales.

In an action for death alleged to be caused by unlawful sale of intoxicants to decedent, there can be no recovery unless sale was made to injure decedent, or with knowledge he intended to drink the liquor to such an extent as to produce injury or death, or unless the seller had reasonable grounds to believe that decedent could not be safely trusted with the liquor. Britton's Adm'r v. Samuels, 143 Ky. 129 , 136 S.W. 143, 1911 Ky. LEXIS 351 ( Ky. 1911 ). See Waller's Adm'r v. Collinsworth, 144 Ky. 3 , 137 S.W. 766, 1911 Ky. LEXIS 535 ( Ky. 1911 ).

Under this section the unlawful sale of intoxicants to an inebriate from which he dies does not constitute a wrongful act for which damages may be recovered unless the sale was with intent to injure decedent, or the seller had reasonable grounds to believe his death might result. Britton's Adm'r v. Samuels, 143 Ky. 129 , 136 S.W. 143, 1911 Ky. LEXIS 351 ( Ky. 1911 ).

29.Workers’ Compensation.

Although it may by statute provide to whom the damages in recovery for wrongful death may go, the Legislature cannot under this section constitutionally provide in a workmen’s compensation act that, in the absence of dependents, recovery for wrongful death will be with the Workers’ Compensation Board and be payable to the workers’ compensation fund and an act so providing is unconstitutional. Kentucky State Journal Co. v. Workmen’s Compensation Board, 161 Ky. 562 , 170 S.W. 1166, 1914 Ky. LEXIS 88 , L.R.A. (n.s.) 1916B389 ( Ky. 1914 ), overruled, Wells v. Jefferson County, 255 S.W.2d 462, 1953 Ky. LEXIS 646 ( Ky. 1953 ).

Notwithstanding this section gives right of action for wrongful death to the personal administrator of the deceased servant, a servant may voluntarily accept provision of the Workers’ Compensation Act, fixing the amount of recovery in case of death, and the administrator of a deceased servant who had accepted the provisions of the act cannot maintain an action for wrongful death under this section. Penn's Adm'r v. Bates & Rogers Const. Co., 183 Ky. 529 , 209 S.W. 513, 1919 Ky. LEXIS 510 ( Ky. 1919 ). See Grannison's Adm'r v. Bates & Rogers Const. Co., 187 Ky. 538 , 219 S.W. 806, 1920 Ky. LEXIS 161 (Ky.), writ of error dismissed, 254 U.S. 613, 41 S. Ct. 62, 65 L. Ed. 438, 1920 U.S. LEXIS 1133 (U.S. 1920); Taylor's Adm'r v. Bates & Rogers Const. Co., 196 Ky. 206 , 244 S.W. 693, 1922 Ky. LEXIS 498 ( Ky. 1922 ).

Workers’ Compensation Act cannot be construed as making testimony of witness to compensation register conclusive evidence decedent accepted provisions of the act, for to do so would violate Const., § 54 and this section. Pioneer Coal Co. v. Polly, 208 Ky. 548 , 271 S.W. 592, 1925 Ky. LEXIS 328 ( Ky. 1925 ).

The Workers’ Compensation Act is valid under this section. Rockport Coal Co. v. Barnard, 210 Ky. 5 , 273 S.W. 533, 1925 Ky. LEXIS 617 ( Ky. 1925 ).

An amendment to KRS 342.295 providing employee is deemed to have accepted the Workers’ Compensation Act unless and until he files with his employer a written notice of rejection preserves right of employee to make a voluntary election and the failure of an employee to elect affirmatively to retain, by remaining outside the act, the constitutional right to sue his employer for personal injuries or wrongful death constitutes a valid waiver. Wells v. Jefferson County, 255 S.W.2d 462, 1953 Ky. LEXIS 646 ( Ky. 1953 ).

By acceptance of the Workers’ Compensation Act, an employee elected that the loss resulting from his death should be compensated for in the manner provided by the act and foreclosed the assertion by his personal representative to sue for wrongful death under this section. Davis v. Solomon, 276 S.W.2d 674, 1955 Ky. LEXIS 441 ( Ky. 1955 ).

This section does not prohibit the application of the immunity provisions of the Workers’ Compensation Act to an employer. Simmons v. Clark Constr. Co., 426 S.W.2d 930, 1968 Ky. LEXIS 663 ( Ky. 1968 ).

While the court is charged to construe the workmen’s compensation act liberally, the General Assembly did not eliminate, explicitly or implicitly, an employee’s right under the Constitution to bring an action for wrongful death against an allegedly negligent insurance carrier of his employer. Bryant v. Old Republic Ins. Co., 431 F.2d 1385, 1970 U.S. App. LEXIS 7109 (6th Cir. Ky. 1970 ).

Although the equitable right to indemnity may have existed in 1891, an employer’s liability to indemnify a third party tortfeasor would not have existed; therefore, this section and Const., §§ 14 and 54 were not a bar to any attempt to limit indemnification. Capps v. Herman Schwabe, Inc., 628 F. Supp. 1353, 1986 U.S. Dist. LEXIS 29917 (W.D. Ky. 1986 ).

There is no constitutional impediment to repose provisions in the workers’ compensation scheme. Wright v. Oberle-Jordre Co., 910 S.W.2d 241, 1995 Ky. LEXIS 141 ( Ky. 1995 ).

30.Recovery.
31.— Barred by Prior Judgment.

Where a decedent, prior to death, had recovered a judgment for personal injuries and such judgment had been satisfied, administrator could not subsequently maintain wrongful death action. Perry's Adm'r v. Louisville & N. R. Co., 199 Ky. 396 , 251 S.W. 202, 1923 Ky. LEXIS 856 ( Ky. 1923 ).

32.— Distribution.

Under this section, the Legislature may provide the manner of distribution of the recovery and name the order in which the distributees shall take. O'Malley's Adm'r v. McLean, 113 Ky. 1 , 67 S.W. 11, 23 Ky. L. Rptr. 2258 , 1902 Ky. LEXIS 13 ( Ky. 1 902).

33.— From Employer.

There can be no recovery from the employer in an action for wrongful death under this section where the injuries leading to death resulted from the negligence or gross negligence of a coequal fellow servant. Edmonson v. Kentucky C. R. Co., 105 Ky. 479 , 49 S.W. 200, 20 Ky. L. Rptr. 1296 , 1899 Ky. LEXIS 228 ( Ky. 1899 ).

Recovery under this section was distinguished from recovery under federal employers’ liability act. Chesapeake & O. R. Co. v. Maggard's Adm'r, 193 Ky. 259 , 235 S.W. 736, 1921 Ky. LEXIS 220 ( Ky. 1921 ).

Administrator of a deceased boy may recover for his death from his employer if employment was unlawful and proximate cause of death. Cincinnati Times Star Co. v. Clay's Adm'r, 195 Ky. 465 , 243 S.W. 16, 1922 Ky. LEXIS 371 ( Ky. 1922 ).

34.— — Contractors.

This section is not violated even when a statute which provided for the liability of a contractor or subcontractor where employee was injured while in the employ of one of his intermediate subcontractors is construed to deprive personal representatives of employees of subcontractor killed by negligence of principal contractor of right of action for wrongful death, where employees waived their right of action to obtain benefit of right of recovering compensation from principal contractor although employed by subcontractor. Jennings v. Vincent's Adm'x, 284 Ky. 614 , 145 S.W.2d 537, 1940 Ky. LEXIS 549 ( Ky. 1940 ).

35.— Funeral Expenses.

Funeral expenses are an element of damage for wrongful death and should be considered in arriving at amount of recovery in an action by the personal representative of the deceased. Square Deal Cartage Co. v. Smith's Adm'r, 307 Ky. 135 , 210 S.W.2d 340, 1948 Ky. LEXIS 702 ( Ky. 1948 ).

36.— Loss of Services.

In the absence of specific statute so authorizing, a parent may not maintain an action for loss of services from the wrongful death of a son. Gregory v. Illinois C. R. Co., 80 S.W. 795, 26 Ky. L. Rptr. 76 (1904).

37.— Parent and Child.

In wrongful death actions claims by administrator of estates of defendant’s deceased mother and his deceased minor child, the amount of recovery should be reduced by the amount of defendant’s statutory distributive shares remaining after payment of deceased’s funeral expenses and administrative costs. Hale v. Hale, 312 Ky. 867 , 230 S.W.2d 610, 1950 Ky. LEXIS 831 ( Ky. 1950 ).

The common-law disability of parent to sue child or child to sue parent for tort is inapplicable to wrongful death actions on behalf of the estates of defendant’s deceased mother and his deceased minor daughter. Hale v. Hale, 312 Ky. 867 , 230 S.W.2d 610, 1950 Ky. LEXIS 831 ( Ky. 1950 ).

Under this section and KRS 411.130 , the administrator of a deceased infant’s estate has a cause of action against its parents for wrongful death caused by their negligence. Harlan Nat'l Bank v. Gross, 346 S.W.2d 482, 1961 Ky. LEXIS 309 ( Ky. 1961 ).

Brothers had standing to bring a legal malpractice claim because they were the intended beneficiaries of the claim and were entitled to one-half of the proceeds of any recovery and the one-year statute of limitations period, and thus, the attorneys’ actions in litigating the claim were undertaken for the brothers; the one-year statute of limitations period was tolled until the brothers reached the age of majority. Pete v. Anderson, 413 S.W.3d 291, 2013 Ky. LEXIS 588 ( Ky. 2013 ).

38.— Parties in Interest.

This section does not violate United States Const., Amend. 14, although the recovery may be for the benefit of persons who have no pecuniary interest in the life of the deceased. Owensboro & N. R. Co. v. Barclay's Adm'r, 102 Ky. 16 , 43 S.W. 177, 19 Ky. L. Rptr. 997 , 1897 Ky. LEXIS 81 ( Ky. 1897 ).

39.— Personal Estate.

Where an action for wrongful death was brought before the passage of KRS 411.130 , this section and previous statutes control and the recovery forms part of the personal estate of the decedent. Berg v. Berg's Adm'r, 105 Ky. 80 , 48 S.W. 432, 20 Ky. L. Rptr. 1083 , 1898 Ky. LEXIS 249 ( Ky. 1898 ).

Declaratory judgment action brought by administrator to determine whether funds received from settlement of claim for wrongful death of decedent were subject to payment of common-law judgment against administrator secured by attorneys who performed service for decedent, prior to her death, in effort to recover for personal injuries sustained in the accident out of which the wrongful death claim arose was proper, and was not a collateral attack on the common-law judgment, and the trial court should have held that wrongful death funds were not subject to payment of common-law judgment but that other funds of the estate were so subject. Emmerke's Adm'r v. Denunzio, 302 Ky. 832 , 196 S.W.2d 599, 1946 Ky. LEXIS 760 ( Ky. 1946 ).

In an action for wrongful death where the decedent is survived by a spouse, child, or parent, the sum recovered does not become part of decedent’s estate and is not subject to the payment of debts. Emmerke's Adm'r v. Denunzio, 302 Ky. 832 , 196 S.W.2d 599, 1946 Ky. LEXIS 760 ( Ky. 1946 ).

40.Cause of Action.

If a person's death by suicide was wrongfully induced by torment negligently or intentionally inflicted by bullying, or by a negligent failure to prevent, stop, or report the bullying when there is a duty to do so, and the Supreme Court of Kentucky is bound by the constitutional mandate to acknowledge the wrongful death claim in every such case, then it must do so in the case of negligently or intentionally-induced suicide. Patton v. Bickford, 529 S.W.3d 717, 2016 Ky. LEXIS 681 ( Ky. 2016 ).

Ky. Rev. Stat. Ann. § 411.130(1) reflects the language of Ky. Const. § 241, and its plain language compels the conclusion that a wrongful death action may be premised upon a bullying-induced suicide when it can be shown that the offensive conduct caused the death. Patton v. Bickford, 529 S.W.3d 717, 2016 Ky. LEXIS 681 ( Ky. 2016 ).

41.— Accrual.

An action for wrongful death does not accrue until the death of the person injured, regardless of the date of the injury. Louisville & N. R. Co. v. Simrall's Adm'r, 127 Ky. 55 , 104 S.W. 1011, 31 Ky. L. Rptr. 1269 , 1907 Ky. LEXIS 114 ( Ky. 1907 ).

42.— Common Law.

An action for wrongful death can only be maintained under the statute enacted pursuant to this section, no such right of action existing at common law. Smith's Adm'r v. National Coal & Iron Co., 135 Ky. 671 , 117 S.W. 280, 1909 Ky. LEXIS 244 ( Ky. 1909 ).

43.Defenses.
44.— General.

Defenses of contributory negligence, fellow servant’s negligence and assumed risk may be pleaded where wrongful death action is brought under this section and not under federal or state employer’s liability acts. McDonald v. Louisville & N. R. Co., 232 Ky. 734 , 24 S.W.2d 585, 1930 Ky. LEXIS 70 ( Ky. 1930 ).

45.— Contributory Negligence.

Although a railroad and its servants are under an obligation to exercise sufficient care in the movement of trains to prevent collisions, this duty is not owed to a person unlawfully trespassing upon the train and even though a collision was negligently caused the contributory negligence of the trespasser is a defense to successful recovery for wrongful death under this section and statute. Singleton v. Felton, 101 F. 526, 1900 U.S. App. LEXIS 4429 (6th Cir. Ohio 1900).

Under this section and KRS 411.130 , the word “wilful,” as descriptive of a degree of negligence, is now eliminated and the rule that contributory negligence is not available as a defense to any degree of negligence is no longer in force. Singleton v. Felton, 101 F. 526, 1900 U.S. App. LEXIS 4429 (6th Cir. Ohio 1900).

This section does not deny the right to rely upon contributory negligence as a defense in actions for death by wrongful act. Passamaneck v. Louisville R. Co., 98 Ky. 1 95 , 32 S.W. 620, 17 Ky. L. Rptr. 763 , 1895 Ky. LEXIS 40 ( Ky. 1 895). See Smith's Adm'r v. National Coal & Iron Co., 135 Ky. 671 , 117 S.W. 280, 1909 Ky. LEXIS 244 ( Ky. 1909 ); Warren's Adm'r v. Jeunesse, 122 S.W. 862 ( Ky. 1909 ); Cincinnati, N. O. & T. P. R. Co. v. Lovell's Adm'r, 141 Ky. 249 , 132 S.W. 569, 1910 Ky. LEXIS 460 ( Ky. 1910 ), modified, 142 Ky. 1, 133 S.W. 788, 1911 Ky. LEXIS 115 ( Ky. 1911 ).

Under this section and KRS 411.130 , contributory negligence is available as a defense in an action alleging gross negligence or negligence. Clark's v. Louisville & N. R. Co., 101 Ky. 34 , 39 S.W. 840 ( Ky. 1897 ).

In an action under this section, contributory negligence or knowledge by the decedent of dangerous conditions resulting in his death are matters of defense and need not be proved by plaintiff. Lexington & Carter County Min. Co. v. Stephens' Adm'r, 104 Ky. 502 , 47 S.W. 321, 20 Ky. L. Rptr. 696 , 1898 Ky. LEXIS 179 ( Ky. 1898 ).

In wrongful death actions based on alleged violation of statute prohibiting employment of infants under 14 years, defense of contributory negligence of deceased infant as well as contributory negligence of parents of infant is available to defendant. Armstrong's Adm'r v. Sumne & Ratterman Co., 211 Ky. 750 , 278 S.W. 111, 1925 Ky. LEXIS 963 ( Ky. 1925 ).

46.— Imputed Negligence.

In action by administrator of the estate of defendant’s deceased minor daughter, marital relation alone was not sufficient to impute father’s negligence to the mother so as to bar recovery for the benefit of the mother. Hale v. Hale, 312 Ky. 867 , 230 S.W.2d 610, 1950 Ky. LEXIS 831 ( Ky. 1950 ).

47.— Personal Immunity.

Adoption of KRS 411.148 is within the legislature’s police powers, and does not violate the jural rights doctrine under Ky. Const. §§ 14, 54, and 241, as the purpose of KRS 411.148 is to encourage the rendering of medical assistance to those in need by trained medical personnel by removing the fear of liability that accompanies rendering aid under the common law. Cook v. Taylor, 2008 Ky. App. LEXIS 264 (Ky. Ct. App. Aug. 22, 2008), review denied, ordered not published, 2009 Ky. LEXIS 212 (Ky. Aug. 19, 2009).

48.— Statute of Limitations.

The Kentucky statute providing that actions must be brought within one (1) year applies to actions for wrongful death under this section and implementing statutes. De Valle Da Costa v. Southern P. Co., 167 F. 654, 1909 U.S. App. LEXIS 5362 (C.C.D. Mass. 1909).

The statute of limitations for wrongful death actions runs from the death of the decedent, even though there was no viable action for personal injury or medical negligence or malpractice at the time of death. Farmers Bank & Trust Co. v. Rice, 674 S.W.2d 510, 1984 Ky. LEXIS 242 ( Ky. 1984 ).

49.—Statutory Immunity.

This section changes the common-law rule that a right of action on account of negligence died with the person and does not render statute, under which a hospital received its charter granting it immunity, unconstitutional. St. Walburg Monastery, etc. v. Feltner's Adm'r, 275 S.W.2d 784, 1955 Ky. LEXIS 375 ( Ky. 1955 ).

Provisions of KRS 95.830(2) violate this section and Ky. Const. §§ 14 and 54. Happy v. Erwin, 330 S.W.2d 412, 1959 Ky. LEXIS 195 ( Ky. 1959 ), overruled in part, Fireman's Fund Ins. Co. v. Government Emples. Ins. Co., 635 S.W.2d 475, 1982 Ky. LEXIS 270 ( Ky. 1982 ).

Where sovereign immunity exists by reason of the Constitution under § 231, the General Assembly may extend or limit waiver as it sees fit, but where no constitutionally protected sovereign immunity exists the General Assembly cannot by statute create it or it is in violation of the rights preserved to citizens under Const. §§ 14 and 54 and this section. Kentucky Center for Arts Corp. v. Berns, 801 S.W.2d 327, 1990 Ky. LEXIS 142 ( Ky. 1990 ).

Property owners’ claims against a fire department and a city were dismissed because KRS 75.070 and 95.830(2) provided the fire department with sovereign immunity, the statutes were constitutional under Ky. Const. §§ 230 and 231, and the statutes did not violate the jural rights doctrine under Ky. Const. §§ 14, 54, and 241. Caneyville Volunteer Fire Dep't v. Green's Motorcycle Salvage, Inc., 286 S.W.3d 790, 2009 Ky. LEXIS 158 ( Ky. 2009 ).

Kentucky’s Recreational Use Statute was constitutional because it did not violate the jural rights doctrine. Poore v. 21st Century Parks, Inc., 619 S.W.3d 409, 2020 Ky. App. LEXIS 88 (Ky. Ct. App. 2020).

50.Joinder.

An action for death under this section cannot properly be joined with a cause of action for the pain and suffering of the deceased. Lewis' Adm'r v. Taylor Coal Co., 112 Ky. 845 , 66 S.W. 1044, 23 Ky. L. Rptr. 2218 , 1902 Ky. LEXIS 238 ( Ky. 1902 ). See Louisville R. Co. v. Raymond's Adm'r, 135 Ky. 738 , 123 S.W. 281, 1909 Ky. LEXIS 332 ( Ky. 1909 ).

Defendant may join as defendants in an action hereunder the master and the servant superior in authority to the decedent and on account of whose breach of duty, evidenced by acts of omission or commission, the accident occurred that resulted in decedent’s death. Carter Coal Co. v. Prichard's Adm'r, 166 Ky. 776 , 179 S.W. 1038, 1915 Ky. LEXIS 781 ( Ky. 1915 ).

51.Jurisdiction.

A state has a right by its Constitution and laws to regulate actions for negligence and, under this section and the statute, a railroad may be sued jointly with its servant for negligence of the latter for which the former is responsible, and such defendants may not remove the case into the federal court unless diversity of citizenship exists as to the other defendants. Cincinnati, N. O. & T. P. R. Co. v. Bohon, 200 U.S. 221, 26 S. Ct. 166, 50 L. Ed. 448, 1906 U.S. LEXIS 1470 (U.S. 1906). See Enos v. Kentucky Distilleries & Warehouse Co., 189 F. 342, 1911 U.S. App. LEXIS 4403 (6th Cir. Ky. 1911 ).

Courts of the Commonwealth under this section have jurisdiction to try cases for the negligent or wrongful death of a person by collision of boats. Johnson v. Westerfield's Adm'r, 143 Ky. 10 , 135 S.W. 425, 1911 Ky. LEXIS 330 ( Ky. 1911 ). See Monongahela River Consol. Coal & Coke Co. v. Lancaster's Adm'r, 169 Ky. 24 , 183 S.W. 258, 1916 Ky. LEXIS 651 ( Ky. 1916 ).

In an action for death occurring within the boundaries of the state, burden is on the defendant to plead and prove facts showing accident occurred on United States government property and that state laws did not apply. Henry Bickel Co. v. Wright's Adm'x, 180 Ky. 181 , 202 S.W. 672, 1918 Ky. LEXIS 61 ( Ky. 1918 ).

52.Damages.
53.— General.

The recovery allowed hereunder includes not only compensatory damages but all varieties of damage known to the law, and extended the common-law right of recovery of compensatory and exemplary damage not resulting in death to cases in which death ensued. Louisville & N. R. Co. v. Kelly’s Adm’x, 100 Ky. 421 , 19 Ky. L. Rptr. 69 , 38 S.W. 852, 1897 Ky. LEXIS 20 ( Ky. 1897 ), aff’d, 100 Ky. 445 , 40 S.W. 452 (1897). See Owensboro & N. R. Co. v. Barclay's Adm'r, 102 Ky. 16 , 43 S.W. 177, 19 Ky. L. Rptr. 997 , 1897 Ky. LEXIS 81 ( Ky. 1897 ).

Damages recovered by an administrator for decedent’s wrongful death do not pass under the will. Sturges v. Sturges, 126 Ky. 80 , 102 S.W. 884, 31 Ky. L. Rptr. 537 , 1907 Ky. LEXIS 27 ( Ky. 1907 ).

54.— Measure.

In action for wrongful death of infant by his administrator who is a parent and a beneficiary, neither the value of his earning power nor the cost of his education and maintenance during his minority should be taken into account in assessing damages based on destruction of earning power. Linss v. Chesapeake & O. R. Co., 91 F. 964, 1899 U.S. App. LEXIS 2944 (C.C.D. Ky. 1899 ).

In action for wrongful death under this section, the measure of damages is the loss to the estate of the decedent by the destruction of his earning power, excluding the value of his life to any particular relative who is a beneficiary. Linss v. Chesapeake & O. R. Co., 91 F. 964, 1899 U.S. App. LEXIS 2944 (C.C.D. Ky. 1899 ).

In action for wrongful death, the measure of damages is the actual sum which would fairly compensate the estate of decedent for the destruction of his earning that he necessarily would apply a certain portion of his earnings to his own support. Louisville & N. R. Co. v. Eakins' Adm'r, 103 Ky. 465 , 45 S.W. 529, 20 Ky. L. Rptr. 736 , 1898 Ky. LEXIS 22 ( Ky. 1898 ). See Louisville & N. R. Co. v. Eakins' Adm'r, 103 Ky. 465 , 45 S.W. 529, 20 Ky. L. Rptr. 736 , 1898 Ky. LEXIS 22 ( Ky. 1898 ).

Ky. Const. § 241 and KRS 411.130 authorize imposing punitive damages on an employer via vicarious liability or respondeat superior for the gross negligence of employees. In re Air Crash at Lexington, Kentucky, 2008 U.S. Dist. LEXIS 44888 (E.D. Ky. June 6, 2008).

55.— Punitive.

Punitive damages are recoverable under this section, as well as compensatory damages, when they would have been recoverable at common law. East Tennessee Tel. Co. v. Simms' Adm'r, 99 Ky. 404 , 36 S.W. 171, 1896 Ky. LEXIS 102 ( Ky. 1896 ).

Under this section and KRS 411.130 , while punitive damages may be recovered when the negligence involved is gross or the act is wilful, they may not be recovered for wilful neglect, although compensatory damages may be recovered. Clark's v. Louisville & N. R. Co., 101 Ky. 34 , 39 S.W. 840 ( Ky. 1897 ).

In an action arising under this section before the passage of KRS 411.130 , punitive damages were recoverable for death caused by gross negligence. Louisville & N. R. Co. v. Kelly's Adm'x, 100 Ky. 421 , 38 S.W. 852, 19 Ky. L. Rptr. 69 , 1897 Ky. LEXIS 20 ( Ky. 1897 ).

This section permits the recovery of compensatory damages for the wrongful death of an employee caused by the simple negligence of a superior fellow employee and recovery of punitive damages if gross negligence is invalid, unlike the common-law rule in cases involving only injury where even compensatory damages may only be recovered if gross negligence is shown. Illinois C. R. Co. v. Josey's Adm'x, 110 Ky. 342 , 61 S.W. 703, 22 Ky. L. Rptr. 1795 , 1901 Ky. LEXIS 93 ( Ky. 1901 ).

Under this section, where a railroad was guilty of gross negligence, it was proper to submit to the jury the question of punitive damages. Illinois C. R. Co. v. Sheegog's Adm'r, 126 Ky. 252 , 103 S.W. 323, 31 Ky. L. Rptr. 691 , 1907 Ky. LEXIS 45 ( Ky. 1907 ), aff'd, 215 U.S. 308, 30 S. Ct. 101, 54 L. Ed. 208, 1909 U.S. LEXIS 1760 (U.S. 1909).

KRS 411.184(1)(c), which changed the existing common law standard of gross negligence for awarding punitive damages and which conditions such an award on a finding that defendant acted “with a flagrant indifference to the rights of the plaintiff and with a subjective awareness that such conduct will result in human death or bodily harm,” violates the jural rights doctrine inherent in this section and Ky. Const., §§ 14 and 54. Williams v. Wilson, 972 S.W.2d 260, 1998 Ky. LEXIS 63 ( Ky. 1998 ).

56.—Punitive.

Court erred when it found that Kentucky’s punitive damages statute, KRS 411.184 , did not apply to a wrongful death case because Ky. Const. § 241 prohibited limitations on damages in wrongful death cases, and held that Kentucky courts would apply § 411.184 to wrongful death cases, including the instant case; the court granted partial summary judgment in favor of the airline on the issue of punitive damages because plaintiffs had not shown by clear and convincing evidence that there were similar incidents from which the airline should have anticipated the pilots’ conduct that caused the plane crash or that the airline authorized or ratified the conduct of the pilots, and thus, plaintiffs failed to present clear and convincing evidence of gross negligence on the part of the airline management such that it should be held liable for punitive damages for the conduct of the pilots. In re Air Crash at Lexington, Ky., 2011 U.S. Dist. LEXIS 10429 (E.D. Ky. Feb. 2, 2011).

57.Limitation of Actions.

Under this section and §§ 14 and 54 of the Constitution, KRS 413.120(14) and KRS 413.135 could not constitutionally be applied to bar recovery by a third party tenant from a negligent builder for personal injuries or wrongful death, since to do so would amount to destroying an existing right of action under the guise of limitation of actions. Saylor v. Hall, 497 S.W.2d 218, 1973 Ky. LEXIS 304 ( Ky. 1973 ). But see Carney v. Moody, 646 S.W.2d 40, 1982 Ky. LEXIS 331 ( Ky. 1982 ), overruled, Perkins v. Northeastern Log Homes, 808 S.W.2d 809, 1991 Ky. LEXIS 44 ( Ky. 1991 ).

In an action against materialmen who designed and furnished, in 1970, aluminum circuit wiring that allegedly caused a supper club fire in 1977, Const., §§ 14, 51 and this section precluded application of the five (5) year statute of limitations of KRS 413.135 to bar suit against the defendants, as it would have extinguished a common-law right of action before the injury occurred and before the plaintiffs had any reasonable opportunity to seek redress in court. In re Beverly Hills Fire Litigation, 695 F.2d 207, 1982 U.S. App. LEXIS 17268 (6th Cir. Ky. 1982 ), cert. denied, 461 U.S. 929, 103 S. Ct. 2090, 77 L. Ed. 2d 300, 1983 U.S. LEXIS 4603 (U.S. 1983).

KRS 413.135 as amended in 1986 providing for limitation on action for damages arising out of injury is constitutionally defective as special legislation and further attempts to amend it to overcome the constitutional defects fatally impale upon this section and Ky. Const., §§ 14 and 54. Perkins v. Northeastern Log Homes, 808 S.W.2d 809, 1991 Ky. LEXIS 44 ( Ky. 1991 ).

Cited:

Chesapeake & O. R. Co. v. Dixon, 179 U.S. 131, 21 S. Ct. 67, 45 L. Ed. 121, 1900 U.S. LEXIS 1856 (U.S. 1900); Beck v. Johnson, 169 F. 154, 1909 U.S. App. LEXIS 5441 (C.C.D. Ky. 1909 ); Enos v. Kentucky Distilleries & Warehouse Co., 189 F. 342, 1911 U.S. App. LEXIS 4403 (6th Cir. Ky. 1911 ); Puget Sound Traction, Light & Power Co. v. Frescoln, 245 F. 301, 1917 U.S. App. LEXIS 1485 (9th Cir. Wash. 1917); Ammond v. Pennsylvania R. Co., 125 F.2d 747, 23 Ohio Op. 172, 1942 U.S. App. LEXIS 4463 (6th Cir. Ohio 1942); Frasier v. Public Service Interstate Transp. Co., 254 F.2d 132, 1958 U.S. App. LEXIS 3984 (2d Cir. N.Y. 1958); Hall v. Illinois C. R. Co., 152 F. Supp. 549, 1957 U.S. Dist. LEXIS 3438 (D. Ky. 1957 ); Higgins v. Louisville & N. R. Co., 38 S.W. 876, 18 Ky. L. Rptr. 899 (1897); Harris v. Kentucky Timber & Lumber Co., 43 S.W. 462, 19 Ky. L. Rptr. 1731 ( Ky. 1897 ); Louisville & N. R. Co. v. Creighton, 106 Ky. 42 , 50 S.W. 227, 20 Ky. L. Rptr. 1691 , 20 Ky. L. Rptr. 1898 , 1899 Ky. LEXIS 38 ( Ky. 1899 ); Southern R. Co. v. Otis' Adm'r, 78 S.W. 480, 25 Ky. L. Rptr. 1686 (1904); Smith's Adm'r v. North Jellico Coal Co., 131 Ky. 196 , 114 S.W. 785, 1908 Ky. LEXIS 121 ( Ky. 1908 ); Louisville & N. R. Co. v. Long's Adm'r, 139 Ky. 299 , 117 S.W. 359, 1909 Ky. LEXIS 4 ( Ky. 1909 ); Slusher v. Weller, 151 Ky. 203 , 151 S.W. 684, 1912 Ky. LEXIS 799 ( Ky. 1912 ); Blue Diamond Coal Co. v. Frazier, 229 Ky. 450 , 17 S.W.2d 406, 1929 Ky. LEXIS 781 ( Ky. 1929 ); Stiglitz Furnance Co. v. Stith's Adm'r, 234 Ky. 12 , 27 S.W.2d 402, 1930 Ky. LEXIS 111 ( Ky. 1930 ); Whitney Transfer Co. v. McFarland, 283 Ky. 200 , 138 S.W.2d 972, 1940 Ky. LEXIS 270 ( Ky. 1940 ); Louisville & N. R. Co. v. Newell, 299 Ky. 65 , 184 S.W.2d 214, 1944 Ky. LEXIS 10 13 ( Ky. 1944 ); Sturgeon v. Baker, 312 Ky. 338 , 227 S.W.2d 202, 1950 Ky. LEXIS 638 ( Ky. 1950 ); Brown v. Gosser, 262 S.W.2d 480, 1953 Ky. LEXIS 1104 ( Ky. 1953 ); McCallum v. Harris, 379 S.W.2d 438, 1964 Ky. LEXIS 238 ( Ky. 196 4 ); Totten v. Parker, 428 S.W.2d 231, 1967 Ky. LEXIS 523 ( Ky. 1967 ); Carney v. Moody, 646 S.W.2d 40, 1982 Ky. LEXIS 331 ( Ky. 1982 ); In re Beverly Hills Fire Litigation, 583 F. Supp. 1163, 1984 U.S. Dist. LEXIS 20773 (E.D. Ky. 1984 ); M.J. Daly Co. v. Varney, 695 S.W.2d 400, 1985 Ky. LEXIS 226 ( Ky. 1985 ); Tabler v. Wallace, 704 S.W.2d 179, 1985 Ky. LEXIS 291 ( Ky. 1985 ); Fireman's Fund Ins. Co. v. Sherman & Fletcher, 705 S.W.2d 459, 1986 Ky. LEXIS 239 ( Ky. 1986 ); Department of Education v. Blevins, 707 S.W.2d 782, 1986 Ky. LEXIS 257 ( Ky. 1986 ); McKee v. Cutter Laboratories, Inc., 866 F.2d 219, 1989 U.S. App. LEXIS 722 (6th Cir. Ky. 1989 ); Rhodes v. Rhodes, 764 S.W.2d 641, 1988 Ky. App. LEXIS 171 (Ky. Ct. App. 1988); McCollum v. Sisters of Charity of Nazareth Health Corp., 799 S.W.2d 15, 1990 Ky. LEXIS 98 ( Ky. 1990 ); Wittmer v. Jones, 864 S.W.2d 885, 1993 Ky. LEXIS 138 ( Ky. 1993 ); Garrison v. Leahy-Auer, 220 S.W.3d 693, 2006 Ky. App. LEXIS 151 (Ky. Ct. App. 2006); Simms v. Estate of Blake, 615 S.W.3d 14, 2021 Ky. LEXIS 10 ( Ky. 2021 ).

Notes to Unpublished Decisions

1.Workers’ Compensation.

Unpublished decision: KRS 342.125(8), which limited the period in which an employee could reopen a claim after December 31, 1996, afforded the employee a reasonable four-year period after December 12, 1996 in which to assert a right to increased compensation, and did not violate Ky. Const. § 59(24), as the provision served a legitimate purpose. Thus, the employee was not deprived of a vested right to reopen her claim after more than four years had passed. Johnson v. Gans Furniture Indus., Inc., 114 S.W.3d 850, 2003 Ky. LEXIS 204 ( Ky. 2003 ).

Opinions of Attorney General.

KRS 75.070 is unconstitutional as being in violation of Const., §§ 14, 54, and this section. OAG 71-82 .

Subsection (2) of KRS 95.830 , in its attempt to exempt cities from liability, is unconstitutional. OAG 71-82 .

A proposed amendment to KRS 413.140 making the statute of limitations and discovery period for medical malpractice case applicable to minors, with the statute commencing to run no later than a minor’s seventh birthday, would be unconstitutional in contravention of this section and Const., §§ 14 and 54. OAG 75-633 .

Although a claimant can consent to a limitation of his rights under section 54 of the Const., proposed new legislation limiting malpractice judgments to $500,000, providing the claimant voluntarily accepts the provisions of the proposed act, raises constitutional questions under this section and Const., §§ 14 and 54 since an agreement not to assert a medical negligence claim in court could be held void as against public policy and the courts probably would not apply, for constitutional reasons, any implied consent, implied acceptance or implied waiver doctrine in the area of medical negligence. OAG 75-633 .

To the extent KRS 411.148 relieves the persons named therein from liability arising from death or physical injury to persons caused by negligence, the statute is unconstitutional under Const., § 54 and, to the extent therefore, void. OAG 79-535 .

KRS 39.419 is unconstitutional under Const., §§ 14, 54, and this section to the extent that it relieves the persons named therein of liability from negligently causing the death or injury to another person or the loss of or damage to the property of that other person. OAG 81-94 .

KRS 411.200 is unconstitutional and in violation of this section and §§ 14 and 54 of the Kentucky Constitution to the extent that it attempts to immunize from civil liability any act or omission resulting in damage or injury caused by a person who serves as a director, officer, volunteer or a trustee of a nonprofit organization. OAG 91-89 .

Research References and Practice Aids

Cross-References.

Action for wrongful death, KRS 411.130 .

Recovery for injury or death not to be limited, Const., § 54.

Workmen’s compensation in case of death, KRS 342.750 .

Kentucky Bench & Bar.

Palmore, A Summary of Significant Decisions by the Supreme Court of Kentucky April 1982-April 1983, Vol. 47, No. 3, July 1983, Ky. Bench & Bar 14.

Moore, Punitive Damages in Wrongful Death Actions: Is KRS 411.184 Constitutional?, Vol. 54, No. 3, Summer 1990, Ky. Bench & Bar 18.

Meier, State Board of Claims — Liability and Limitations, Vol. 58, No.1, Winter 1994, Ky. Bench & Bar 14.

Kentucky Law Journal.

Render, On Unpublished Opinions, 73 Ky. L.J. 145 (1984-85).

Rogers, Apportionment in Kentucky After Comparative Negligence, 75 Ky. L.J. 103 (1986-87).

Lewis, Jural Rights under Kentucky’s Constitution: Realities Grounded in Myth, 80 Ky. L.J. 953 (1992).

Hamm, The Reemergence of the Sovereign Immunity Doctrine in Kentucky, 87 Ky. L.J. 439 (1998-99).

Northern Kentucky Law Review.

Note — Criminal Law — Murder — Intentional Killing of Viable Fetus Not Murder, 11 N. Ky. L. Rev. 213 (1984).

Wintersheimer, State Constitutional Law, 20 N. Ky. L. Rev. 591 (1993).

Busald and Tankersley, Survey of Kentucky Tort Law: 1991-92, 20 N. Ky. L. Rev. 687 (1993).

Note, Jones v. Commonwealth, 20 N. Ky. L. Rev. 831 (1993).

Wintersheimer, State Constitutional Law Survey, 21 N. Ky. L. Rev. 257 (1994).

Treatises

Petrilli, Kentucky Family Law, Actions, § 17.3.

Petrilli, Kentucky Family Law, 1991 Supp., Dissolution Decree, § 24.2.

§ 242. Just compensation to be made in condemning private property — Right of appeal — Jury trial.

Municipal and other corporations, and individuals invested with the privilege of taking private property for public use, shall make just compensation for property taken, injured or destroyed by them; which compensation shall be paid before such taking, or paid or secured, at the election of such corporation or individual, before such injury or destruction. The General Assembly shall not deprive any person of an appeal from any preliminary assessment of damages against any such corporation or individual made by Commissioners or otherwise; and upon appeal from such preliminary assessment, the amount of such damages shall, in all cases, be determined by a jury, according to the course of the common law.

NOTES TO DECISIONS

  • 86. — — — — County Liability.
  • 1.Actions.

    The form of the verdict in condemnation cases is a matter of procedure and not of substantive law. Commonwealth, Dep't of Highways v. Sherrod, 367 S.W.2d 844, 1963 Ky. LEXIS 33 ( Ky. 1963 ).

    2.— Abandoned.

    Where condemnation action is instituted but then abandoned, the owner may not recover damages for his expenses due to such action in the absence of bad faith or unreasonable delay. Kroger Co. v. Louisville & Jefferson County Air Board, 308 S.W.2d 435, 1957 Ky. LEXIS 137 ( Ky. 1957 ).

    3.— Against Commonwealth.

    Action will lie against Commonwealth for damages growing out of taking, injuring, or destroying private property for public purposes. Kentucky State Park Com. v. Wilder, 256 Ky. 313 , 76 S.W.2d 4, 1934 Ky. LEXIS 401 ( Ky. 1934 ). See Kentucky State Park Com. v. Wilder, 260 Ky. 190 , 84 S.W.2d 38, 1935 Ky. LEXIS 437 ( Ky. 1935 ).

    4.— — Sovereign Immunity.

    A contractor cannot be sued for construction pursuant to plans furnished by State Highway Commission where state had not given its consent to be sued. Hunt-Forbes Const. Co. v. Robinson, 227 Ky. 138 , 12 S.W.2d 303, 1928 Ky. LEXIS 484 ( Ky. 1928 ).

    State may not be sued without its consent even for taking private property for public use. Hunt-Forbes Const. Co. v. Robinson, 227 Ky. 138 , 12 S.W.2d 303, 1928 Ky. LEXIS 484 ( Ky. 1928 ).

    Where private property is taken for public use or where there is a trespass thereon which amounts to such taking, the state’s immunity from suit is waived by this section and Const., § 13. Kentucky Bell Corp. v. Commonwealth, 295 Ky. 21 , 172 S.W.2d 661, 1943 Ky. LEXIS 184 ( Ky. 1943 ).

    Where private property is taken or where there is a trespass thereon which amounts to such taking, the state’s immunity from suit is waived. Commonwealth v. Kelley, 314 Ky. 581 , 236 S.W.2d 695, 1951 Ky. LEXIS 698 ( Ky. 1951 ).

    Suit by landowner against State Highway Department for damages resulting from diversion of creek bed in construction of highway was in effect a suit for condemnation and the state could not claim immunity, since it had failed to bring condemnation proceedings. Keck v. Hafley, 237 S.W.2d 527, 1951 Ky. LEXIS 764 ( Ky. 1951 ).

    Where location and construction of culvert directly caused damage to land of such a value as to constitute the taking thereof without compensation, the state could not plead immunity in a property owner’s suit for damages allegedly caused by negligent construction of the culvert. Department of Highways v. Corey, 247 S.W.2d 389, 1952 Ky. LEXIS 701 ( Ky. 1952 ).

    5.— — State Agencies.

    The State Park Commission is subject to suit for taking property without compensation, as no state agency can claim immunity for a wrong committed in clear violation of this section. Kentucky State Park Com. v. Wilder, 260 Ky. 190 , 84 S.W.2d 38, 1935 Ky. LEXIS 437 ( Ky. 1935 ).

    This section controls actions against state agency for damages for overflow of land and destruction of usefulness of structures, and injunctive relief is not available. Kentucky Game & Fish Com. v. Burnette, 290 Ky. 786 , 163 S.W.2d 50, 1942 Ky. LEXIS 501 ( Ky. 1942 ).

    School Board was not entitled to dismissal of a takings suit on immunity grounds because if the property owners successfully proved their homes were damaged or destroyed as a direct consequence of the blasting for construction of the new high school, the Board might be liable in damages; even if the injury or destruction did not rise to the level of a taking, just compensation must be paid. Stathers v. Garrard County Bd. of Educ., 405 S.W.3d 473, 2012 Ky. App. LEXIS 162 (Ky. Ct. App. 2012).

    In a suit brought by property owners against a sanitation district arising from sewage overflows, the owners could maintain claims of inverse condemnation, as to which sovereign immunity is no bar, and could also maintain claims of nuisance and trespass seeking to recover for an unconstitutional taking of private property without just compensation. Sanitation Dist. No. 1 v. McCord, 2013 Ky. App. LEXIS 15 (Ky. Ct. App. Jan. 25, 2013), review denied, ordered not published, 2014 Ky. LEXIS 130 (Ky. Mar. 12, 2014).

    6.— Charitable Institutions.

    A public charitable institution not authorized to sue or be sued or to hold or acquire property but whose property is vested in the state cannot be sued by an adjoining landowner for injury to his land occasioned by construction of a sewer, since such a suit is in effect against the state itself. Norwood v. Kentucky Confederate Home, 172 Ky. 300 , 189 S.W. 225, 1916 Ky. LEXIS 201 ( Ky. 1916 ).

    7.— Estoppel.

    Mere permission to a railroad by an abutting property owner to lay track along land which subsequently became a city street does not estop the property owner from thereafter claiming damages under this section and statute. Koch v. Kentucky & I. R. & B. Co., 80 S.W. 1133, 26 Ky. L. Rptr. 216 (1904).

    Where wife executed purported deed conveying property for highway purposes, void because husband did not join in conveyance, and acquiesced in highway construction, she was nevertheless not estopped from subsequently claiming compensation for unlawful taking. Franklin County v. Bailey, 250 Ky. 528 , 63 S.W.2d 622, 1933 Ky. LEXIS 739 ( Ky. 1933 ).

    8.— Injunctive Relief.

    Where State Highway Department changed creek channel, thus impairing use of land by inundation, owner could seek injunctive relief or damages for permanent taking of property, but not both. Keck v. Hafley, 237 S.W.2d 527, 1951 Ky. LEXIS 764 ( Ky. 1951 ).

    Mere resolution of a fiscal court establishing a public road to traverse and abut on land the use of which was limited by restrictive residential covenants did not amount to a taking of property without compensation under this section, although the covenants prevented the dedication of the land by the owner for a public road and the action of the fiscal court could not be enjoined. Thompson v. Fayette County, 302 S.W.2d 550, 1957 Ky. LEXIS 195 ( Ky. 1957 ). See McLean v. Thurman, 273 S.W.2d 825, 1954 Ky. LEXIS 1210 ( Ky. 1954 ).

    When it was held that the legislature violated Ky. Const. § 51 by transferring funds from workers’ compensation accounts to the general fund, Ky. Const. § 242 did not apply to permit a trial court to enjoin the governor to restore funds previously transferred because the funds paid were lawfully assessed. Beshear v. Haydon Bridge Co., 416 S.W.3d 280, 2013 Ky. LEXIS 582 ( Ky. 2013 ).

    9.— Negligence.

    Suit for diminution in value of use of property because of negligence in the maintenance and operation of a roundhouse is not an action under this section but one for negligent operation of the roundhouse during period of operation. Chesapeake & O. R. Co. v. Scott, 197 Ky. 636 , 247 S.W. 735, 1923 Ky. LEXIS 683 ( Ky. 1923 ).

    Although counties are by statute responsible for taking of and injury to property in necessary and proper construction of road by State Highway Commission, there is no right of action against the county for commission’s negligence in construction of highway. Barass v. Ohio County, 240 Ky. 149 , 41 S.W.2d 928, 1931 Ky. LEXIS 356 ( Ky. 1931 ). See Bader v. Jefferson County, 274 Ky. 486 , 119 S.W.2d 870, 1938 Ky. LEXIS 311 ( Ky. 1938 ); Hopkins County v. Rodgers, 275 Ky. 778 , 122 S.W.2d 743, 1938 Ky. LEXIS 493 ( Ky. 1938 ).

    10.— Purchasers.

    Purchaser buying property after it became generally known that railroad track would be reconstructed in street could not recover damages from railroad. Hutcherson v. Louisville & N. R. Co., 247 Ky. 317 , 57 S.W.2d 12, 1933 Ky. LEXIS 394 (Ky. Ct. App. 1933).

    Purchasers of property later condemned had not assumed risk that city would flood and destroy their property by a new channel and the diversion of water flow. Danville v. Smallwood, 347 S.W.2d 516, 1961 Ky. LEXIS 362 ( Ky. 1961 ).

    11.— Res Judicata.

    Judgment for damages under a condemnation action was a bar to a subsequent action for injuries afterwards accruing. Oliver v. Illinois C. R. Co., 74 S.W. 1078, 25 Ky. L. Rptr. 235 (1903).

    An action by a property owner against a railroad for damages by reason of smoke, noise and occupation of the adjacent street does not bar a later action under this section for damages resulting from a subsequent change in grade. Louisville & N. R. Co. v. Cumnock, 77 S.W. 933, 25 Ky. L. Rptr. 1330 (1903).

    12.— Statute of Limitations.

    Where taking is not authorized by legislative nor municipal authority, the structure being permanent, the 15-year statute of limitations applies, it being on same plane as any other taking of real estate. Klosterman v. Chesapeake & O. R. Co., 114 Ky. 426 , 71 S.W. 6, 24 Ky. L. Rptr. 1183 , 24 Ky. L. Rptr. 1233 , 1902 Ky. LEXIS 171 ( Ky. 1902 ).

    An action brought against the Department of Highways for damages to landowner’s property caused by the construction of a fill was based on an implied promise to pay for the property taken by the Commonwealth on the theory that the injured party could waive the tort and sue on such promise, and the cause of action accrued when the fill was built and was subject to the five (5) year statute of limitations. Curlin v. Ashby, 264 S.W.2d 671, 1954 Ky. LEXIS 688 ( Ky. 1954 ).

    After the running of the period of limitation provided by KRS 413.010 , the original owner of real estate is no longer in a position to assert title to the property; title has effectively vested in the adverse possessor, and the Commonwealth is not prohibited by either Const., § 13 or this section from taking advantage of this limitation. Commonwealth, Dep't of Parks v. Stephens, 407 S.W.2d 711, 1966 Ky. LEXIS 182 ( Ky. 1966 ).

    13.— Subsequent Purchasers.

    Separate suits cannot be maintained for damage by the owner, and persons subsequently acquiring property, where injury is from construction of a permanent structure, but owner at time of erection is entitled not merely to damages for past injuries but also damages property may reasonable sustain in future; the purchasers are compensated by reduction in price and have no cause of action. Louisville & N. R. Co. v. Lambert, 110 S.W. 305, 33 Ky. L. Rptr. 199 , 1908 Ky. LEXIS 342 (Kan. Ct. App. 1908).

    A subsequent purchaser may not recover damages under this section resulting from a permanent structure built on adjoining land, it being presumed that any diminution in value or damages was deducted from the purchase price. Commonwealth v. Kelley, 314 Ky. 581 , 236 S.W.2d 695, 1951 Ky. LEXIS 698 ( Ky. 1951 ).

    14.Compensation.

    This section and Const., § 13 not only guarantee to a property owner that his property may not be taken from him for a public purpose without just compensation but also limit his compensation to the loss sustained. Commonwealth, Dep't of Highways v. Sherrod, 367 S.W.2d 844, 1963 Ky. LEXIS 33 ( Ky. 1963 ).

    The trial court held that private sanitation company must cease its sewerage treatment process and that the metropolitan sewer district may acquire the sewer collection system, but that the metropolitan sewer district must pay just compensation to private sanitation company. Louisville & Jefferson County Metro. Sewer Dist. v. Tarrytowne Sanitation Co., 818 S.W.2d 267, 1991 Ky. App. LEXIS 51 (Ky. Ct. App. 1991).

    Union’s representation of a nonmember employee through collective bargaining or grievance processing serves the union’s interest, irrespective of whether it receives an agency fee, and a union is not “compelled” by 2017 Ky. Acts 1 to represent nonmembers without compensation; because exclusive designation fully and adequately compensates unions for free-riders, the Act does not constitute a taking of private property without compensation. Zuckerman v. Bevin, 565 S.W.3d 580, 2018 Ky. LEXIS 502 ( Ky. 2018 ).

    15.— Change of Grade, Damage.

    Where a strip of land was taken to widen and reconstruct a public highway, damage to the value of abutting property resulting from the change of grade constituted a taking within the meaning of this section and § 13 of the Constitution, although the abutting owner could not have recovered damages for resulting loss of access unless he was denied reasonable access to the highway system. Commonwealth, Dep't of Highways v. Roberts, 496 S.W.2d 343, 1973 Ky. LEXIS 380 ( Ky. 1973 ).

    16.—Just.

    Just compensation, as provided for in the Constitution for the taking of land, is the value at the time of the taking. Brock v. Harlan County, 297 Ky. 113 , 179 S.W.2d 202, 1944 Ky. LEXIS 683 ( Ky. 1944 ).

    Preliminary award by commissioners to owner of land condemned until changed by verdict of jury on appeal constitutes just compensation within the meaning of this section and Const., § 13. Barker v. Lannert, 310 Ky. 843 , 222 S.W.2d 659, 1949 Ky. LEXIS 1022 ( Ky. 1949 ).

    Under this section just compensation is the fair cash value of property at the time of taking, and an award of $3,000 for loss of access to farmland valued at $5,700 was not inadequate. Sea v. Commonwealth, Dep't of Highways, 418 S.W.2d 766, 1967 Ky. LEXIS 240 ( Ky. 1967 ).

    In a condemnation case where the amount of compensation due was at issue, an owner made a prima facie showing that the taking caused it to suffer a permanent injury to its remaining property; in analyzing the unity of use/purpose question, it was error to consider only the present use of the property by a short-term tenant. A prior transfer between interrelated companies of a three parcel tract was not competent or reliable evidence of the present fair market value of a single parcel tract nine years later. Putnam & Sons, LLC v. Paducah Indep. Sch. Dist., 2015 Ky. App. LEXIS 162 (Ky. Ct. App. Nov. 20, 2015, sub. op., 2015 Ky. App. Unpub. LEXIS 876 (Ky. Ct. App. Nov. 20, 2015).

    17.— Before Taking.

    Under this section a city of the first class was not authorized to extend a street across a railroad right of way until compensation had been made to the railroad company. Louisville & N. R. Co. v. Louisville, 131 Ky. 108 , 114 S.W. 743, 1908 Ky. LEXIS 115 ( Ky. 1908 ).

    KRS ch. 267 is not unconstitutional for failure to make adequate provision for payment of damages awarded, since it provides a fund which may be supplemented by a judgment of the court requiring payment to be made before property is taken. Shaw v. Board of Drainage Comm'rs, 160 Ky. 422 , 169 S.W. 859, 1914 Ky. LEXIS 473 ( Ky. 1914 ). See Williams v. Wedding, 165 Ky. 361 , 176 S.W. 1176, 1915 Ky. LEXIS 531 ( Ky. 1915 ).

    This section encompasses the injury or destruction of property as well as the taking thereof, and a county court cannot cause a public road to be opened until the owner has received or been tendered compensation. Bushart v. Fulton County, 183 Ky. 471 , 209 S.W. 499, 1919 Ky. LEXIS 504 ( Ky. 1919 ).

    Contractor entering owner’s premises and beginning construction before owner received payment under condemnation proceedings is liable in trespass for taking and injuring owner’s land and it is no defense that condemnation proceedings were pending. Terhune v. Gorham, 225 Ky. 249 , 8 S.W.2d 431, 1928 Ky. LEXIS 785 ( Ky. 1928 ).

    While a condemnor must pay or tender compensation to an owner prior to taking possession of property, the amount tendered or paid need be only the amount of the preliminary assessment of compensation, with either party having the right to secure a final assessment of the amount of compensation by a jury. Foster v. Sanders, 557 S.W.2d 205, 1977 Ky. App. LEXIS 827 (Ky. Ct. App. 1977).

    18.— — Right to Possession.

    KRS 416.270 (repealed), which gave the condemnor the right to enter into possession of property upon the payment of the compensation fixed by the commissioners, did not violate this section or Const., § 13. Linn v. Bryan, 312 Ky. 203 , 226 S.W.2d 959, 1950 Ky. LEXIS 626 ( Ky. 1950 ).

    19.— Damages.

    This section implied damage to soil but did not include loss of use, rents or profits of land merely because land was not fenced, owner having made deed to highway commission for land involved. Snyder v. Shelby County, 261 Ky. 118 , 87 S.W.2d 90, 1935 Ky. LEXIS 594 ( Ky. 1935 ). See Fallis v. Mercer County, 236 Ky. 315 , 33 S.W.2d 12, 1930 Ky. LEXIS 743 ( Ky. 1930 ).

    Where city constructed storm sewer, unnaturally diverting water and damaging property, owners were entitled to compensation for the taking of their property. Danville v. Smallwood, 347 S.W.2d 516, 1961 Ky. LEXIS 362 ( Ky. 1961 ).

    20.— — Court Costs.

    The Commonwealth must pay court costs when a taking occurs either in eminent domain proceedings or an inverse condemnation proceeding, overruling in part, Department of Revenue v. D & W Auto Supply, Inc., 614 S.W.2d 542, 1981 Ky. App. LEXIS 235 (Ky. Ct. App. 1981).Commonwealth, Natural Resources & Environmental Protection Cabinet v. Stearns Coal & Lumber Co., 678 S.W.2d 378, 1984 Ky. LEXIS 204 ( Ky. 1984 ).

    This provision renders invalid that portion of KRS 453.010 which permits a judge to award court costs against state even where no taking has occurred. Commonwealth, Natural Resources & Environmental Protection Cabinet v. Stearns Coal & Lumber Co., 678 S.W.2d 378, 1984 Ky. LEXIS 204 ( Ky. 1984 ).

    21.— — Cotenants.

    No contract between the owners of different interests in property which is condemned can obligate the condemnor to pay more than the fair market value of the property as a whole nor, in the absence of some special provision, deprive any owner of his rightful share. Ashland v. Price, 318 S.W.2d 861, 1958 Ky. LEXIS 152 ( Ky. 1958 ).

    22.— — Fear.

    A well-defined fear based on actual experience that a gas and oil pipeline might explode need not be so general as to enter into the calculations of all who propose to buy or sell similar properties before that possibility may be considered in calculating damages from taking easement, and it is sufficient to show that such fear enters into the calculations of a substantial number of such persons. Tennessee Gas & Transmission Co. v. Jackman, 311 Ky. 507 , 224 S.W.2d 660, 1949 Ky. LEXIS 1173 ( Ky. 1949 ).

    23.— — Fixtures.

    In condemnation proceedings where realty, building and machinery of an industrial plant are operated as a unit, it is permissible to value the machinery as part of plant, where the machinery is a fixture. Newport v. Dorsel Co., 281 Ky. 372 , 136 S.W.2d 11, 1940 Ky. LEXIS 34 ( Ky. 1940 ).

    24.— — Injury to Remaining Property.

    Where a strip of land was taken to widen and reconstruct a public highway, damage to the value of abutting property resulting from the change of grade constituted a taking within the meaning of this section and § 13 of the Constitution, although the abutting owner could not have recovered damages for resulting loss of access unless he was denied reasonable access to the highway system. Commonwealth, Dep't of Highways v. Roberts, 496 S.W.2d 343, 1973 Ky. LEXIS 380 ( Ky. 1973 ).

    Landowners were not entitled to compensation for the loss in value of properties that neighbored their condemned parcels of land because the unity rule did not apply when, for condemnation purposes, the parcels taken were not united in use with the rest of the landowners’ property; therefore, the jury’s determination of the market value of the taken property, in isolation from the rest of the landowners’ property, was the proper measure of compensation. Bianchi v. City of Harlan, 274 S.W.3d 368, 2008 Ky. LEXIS 128 ( Ky. 2008 ).

    Landowners were not entitled to compensation for the loss in value of properties that neighbored their condemned parcels of land because the unity rule did not apply when, for condemnation purposes, the parcels taken were not united in use with the rest of the landowners’ property; there was no permanent injury or substantial interference with the landowners’ nearby property, and potential inconvenience and business losses flowing from the condemnation were not the type of permanent injury or substantial interference with property use necessary to invoke the unity rule. Bianchi v. City of Harlan, 274 S.W.3d 368, 2008 Ky. LEXIS 128 ( Ky. 2008 ).

    25.— — Market Value.

    Instruction should define market value as price land will bring when offered for sale by one desiring to sell and purchased by one desiring to purchase. Franklin County v. Bailey, 250 Ky. 528 , 63 S.W.2d 622, 1933 Ky. LEXIS 739 ( Ky. 1933 ).

    In suit for damages under this section in condemnation proceeding, a proposed or planned use of the land taken may be shown and is competent evidence on the question of damages if such use adds to the value of the land, but the measure of damages for land taken is the fair market value at the time of the taking. Miller v. King, 278 Ky. 151 , 128 S.W.2d 621, 1939 Ky. LEXIS 415 ( Ky. 1939 ).

    If the land taken by eminent domain is reasonably adaptable and there is expectation or probability in the near future that it can or should be divided into town lots, the adaptability of the land for division into lots should be considered in determining damages. East Kentucky Rural Electric Cooperative Corp. v. Smith, 310 S.W.2d 535, 1958 Ky. LEXIS 395 ( Ky. 1958 ).

    In determining the fair and reasonable market value of condemned property, all factors which a prudent purchaser would take into consideration, including an outstanding lease which may be a liability or an asset, should be taken into account. Ashland v. Price, 318 S.W.2d 861, 1958 Ky. LEXIS 152 ( Ky. 1958 ).

    Where a septic facility was part of property taken in condemnation proceeding which rendered unusable kitchen and bathroom of house on remaining land, cost of replacing this facility was a proper item of damage to the remaining land bearing on the decreased market value of the property. Commonwealth v. Conatser, 329 S.W.2d 48, 1959 Ky. LEXIS 136 ( Ky. 1959 ).

    26.— — Measure.

    In an action under this section by a property owner against a railroad for damages to his property from a change in the railroad grade, the measure of damages is the difference between the market value of the property before it was generally known the work was to be done and the market value immediately thereafter. Louisville & N. R. Co. v. Cumnock, 77 S.W. 933, 25 Ky. L. Rptr. 1330 (1903). See City of Louisville v. Hegan, 49 S.W. 532, 20 Ky. L. Rptr. 1532 , 1899 Ky. LEXIS 438 (Ky. Ct. App. 1899).

    Where the injury complained of is permanent, the measure of damages is the depreciation in the market value of the property, but if injury is temporary, that is, such as can be remedied or abated by removal or repair, the measure of damages is the reasonable cost of repairing the property and depreciation in its rental value during period complained of or, if it be occupied by the owner, the diminution, if any, in the value of the use during the period. Ewing v. Louisville, 140 Ky. 726 , 131 S.W. 1016, 1910 Ky. LEXIS 375 ( Ky. 1910 ).

    The measure of damages for injury to lumber recoverable under this section is the difference between the market value thereof immediately before and immediately after the injury. Adams & Sullivan v. Sengel, 177 Ky. 535 , 197 S.W. 974, 1917 Ky. LEXIS 622 ( Ky. 1917 ).

    The measure of damages to a building caused by blasting is the amount necessary to restore the building to its original condition plus the diminution in use or rental value during the period of damage. Adams & Sullivan v. Sengel, 177 Ky. 535 , 197 S.W. 974, 1917 Ky. LEXIS 622 ( Ky. 1917 ).

    Damages are not recoverable of a railroad company by the owner of land through which railroad runs for loss of a private passway, formerly used by him, situated on the right of way and included in the ground acquired by railroad for its roadbed under condemnation proceedings, where payment had been made to landowner for taking land. Turner v. Louisville & N. R. Co., 189 Ky. 714 , 225 S.W. 1072, 1920 Ky. LEXIS 503 ( Ky. 1920 ).

    In determining damages in an eminent domain case, the owner is not limited to the value of the land for the purposes for which it is actually being used at the time but is entitled to have considered every legitimate use to which the land may be devoted and everything that affects its value. East Kentucky Rural Electric Cooperative Corp. v. Smith, 310 S.W.2d 535, 1958 Ky. LEXIS 395 ( Ky. 1958 ).

    The measure of the compensation to be paid for an easement taken under the power of eminent domain is the market value to the owner of the land taken and the loss caused to him by the taking and depriving him of its use, and the owner is entitled to just and full compensation for both. East Kentucky Rural Electric Cooperative Corp. v. Smith, 310 S.W.2d 535, 1958 Ky. LEXIS 395 ( Ky. 1958 ).

    Where land is appropriated for a high-tension power line or other wire lines over private property, the owner of the property has the right to be compensated not only for the land actually taken for poles and towers and the depreciation in the value of the strip of land over which the wires are suspended but also to compensation for the impairment of the remainder of the tract by reason of the taking less any special consequential benefit. East Kentucky Rural Electric Cooperative Corp. v. Smith, 310 S.W.2d 535, 1958 Ky. LEXIS 395 ( Ky. 1958 ).

    The measure of just compensation in condemnation is difference between the market value of the entire tract of land immediately before and the market value of the remainder immediately after the taking. Birdsong v. Commonwealth, Dep't of Highways, 336 S.W.2d 42, 1960 Ky. LEXIS 315 ( Ky. 1960 ).

    Although diminution in the value of the use of property necessarily is an elusive concept, the cost of reasonable necessary repairs may properly be considered. Danville v. Smallwood, 347 S.W.2d 516, 1961 Ky. LEXIS 362 ( Ky. 1961 ).

    Where a witness as to before and after valuation of land condemned for an easement was not aware that houses could be built on the easement but, after the fact was called to his attention, took it into consideration but did not change the valuation, the situation did not justify striking the testimony of the witness. East Kentucky Rural Electric Cooperative Corp. v. Bowles, 469 S.W.2d 763, 1971 Ky. LEXIS 310 ( Ky. 1971 ).

    27.— — Negligence.

    Where plaintiff’s land was damaged but no part of it was appropriated and damages resulted from negligent as opposed to proper construction, this section did not apply to compensate plaintiff. Perry County v. Tyree, 282 Ky. 708 , 139 S.W.2d 721, 1940 Ky. LEXIS 226 ( Ky. 1940 ).

    28.— — Setoff.

    A statute is unconstitutional which requires consequential benefits to be set off against damage. Broadway Coal Mining Co. v. Smith, 136 Ky. 725 , 125 S.W. 157, 1910 Ky. LEXIS 536 ( Ky. 1910 ), overruled, Commonwealth, Dep't of Highways v. Sherrod, 367 S.W.2d 844, 1963 Ky. LEXIS 33 ( Ky. 1963 ).

    Award for taking of land for highway purposes should be difference between fair market value immediately before and immediately after taking, and court should not direct jury to offset actual damage by advantages to remaining portion by construction or operation of highway. Commonwealth v. Powell, 258 Ky. 131 , 79 S.W.2d 411, 1935 Ky. LEXIS 120 ( Ky. 1935 ).

    In suit to obtain passageway over another’s land to permit access to county seat and courthouse, plaintiff must prove the necessity of such taking for that purpose and must compensate the owner for the value of the land taken with no offset for benefits which might accrue to the land thereby. Howard v. Howard, 260 Ky. 257 , 84 S.W.2d 77, 1935 Ky. LEXIS 454 ( Ky. 1935 ).

    Insofar as they provide that benefits in a condemnation case can be set off only against resulting damages, KRS 177.083 (repealed), 416.020 (repealed) and 416.050 (repealed) are unconstitutional under this section and Const., § 13. Commonwealth, Dep't of Highways v. Sherrod, 367 S.W.2d 844, 1963 Ky. LEXIS 33 ( Ky. 1963 ).

    The offset of benefits against both taking and resulting damages in condemnation cases is not unconstitutional under United States Const., Amend. 5. Commonwealth, Dep't of Highways v. Sherrod, 367 S.W.2d 844, 1963 Ky. LEXIS 33 ( Ky. 1963 ).

    Under this section and Const., § 13, enhancement of the value of land involved in a condemnation proceeding, or other benefits to the landowner, resulting from a public improvement for which a portion of the land is condemned must be offset against any loss suffered by the landowner in determining the measure of his damages for the taking. Commonwealth, Dep't of Highways v. Sherrod, 367 S.W.2d 844, 1963 Ky. LEXIS 33 ( Ky. 1963 ).

    29.— Paid or Secured.
    30.— — Before Injury.

    A statute or ordinance is not unconstitutional and void because it fails to provide for compensation to be made for the injury before it is done. Barfield v. Gleason, 111 Ky. 491 , 63 S.W. 964, 23 Ky. L. Rptr. 128 , 1901 Ky. LEXIS 215 (Ky.), modified, 64 S.W. 959, 23 Ky. L. Rptr. 1102 , 1901 Ky. LEXIS 596 (Ky. Ct. App. 1901).

    A statute or ordinance which may or may not result in injury to property is not unconstitutional because it omits to provide for compensation for any such injury which may occur. Barfield v. Gleason, 111 Ky. 491 , 63 S.W. 964, 23 Ky. L. Rptr. 128 , 1901 Ky. LEXIS 215 (Ky.), modified, 64 S.W. 959, 23 Ky. L. Rptr. 1102 , 1901 Ky. LEXIS 596 (Ky. Ct. App. 1901).

    The placing of a pipe under a road by the county road engineer which diverted water from its natural course onto an adjoining owner’s property without having first paid or secured owner for such injury violates this section, and the court properly required the engineer and fiscal court to remove said pipe. Wharton v. Barber, 188 Ky. 57 , 221 S.W. 499, 1920 Ky. LEXIS 231 ( Ky. 1920 ).

    Compensation for property taken must be paid before taking, while compensation for property injured or destroyed may be paid or secured before injury at election of condemnor. P. Bannon Pipe Co. v. Illinois C. R. Co., 203 Ky. 659 , 262 S.W. 1110, 1924 Ky. LEXIS 987 ( Ky. 1924 ); Foster v. Sanders, 557 S.W.2d 205, 1977 Ky. App. LEXIS 827 (Ky. Ct. App. 1977).

    31.— Partial Taking.

    A farm must be considered as an entirety in assessing compensation for the taking of part thereof. Tennessee Gas Transmission Co. v. Huddleston, 312 Ky. 833 , 229 S.W.2d 983, 1950 Ky. LEXIS 783 ( Ky. 1950 ).

    The construction of curbs along a new highway which does not bar access thereto does not condemn any right of access and no damages may be assessed for such partial, nonpermanent interference with total access. Commonwealth, Dep't of Highways v. Sherrod, 367 S.W.2d 844, 1963 Ky. LEXIS 33 ( Ky. 1963 ).

    32.— Sale of Property.
    33.— — Injury to Remaining Property.

    Plaintiffs, having conveyed land to State Highway Commission for public road use in consideration of cash and contemplated benefits, could not recover from county for injury to remaining property by construction of the planned road in the absence of bad faith or negligence. Snyder v. Whitley County, 255 Ky. 741 , 75 S.W.2d 373, 1934 Ky. LEXIS 325 ( Ky. 1934 ), overruled, Commonwealth v. Litteral, 319 S.W.2d 458, 1958 Ky. LEXIS 167 ( Ky. 1958 ), overruled in part, Commonwealth v. Litteral, 319 S.W.2d 458, 1958 Ky. LEXIS 167 ( Ky. 1958 ). See Snyder v. Shelby County, 261 Ky. 118 , 87 S.W.2d 90, 1935 Ky. LEXIS 594 ( Ky. 1935 ).

    A deed whose consideration includes resulting benefits to grantor’s adjacent property by reason of highway construction bars recovery for consequential injury to such property from such construction in absence of negligence or bad faith. Breathitt County v. Hudson, 265 Ky. 21 , 95 S.W.2d 1132, 1936 Ky. LEXIS 450 ( Ky. 1936 ).

    Where landowners conveyed to the Department of Highways a certain portion of their land for highway purposes and, in the course of the reconstruction of a highway, dust caused thereby damaged the landowners’ crops on remaining land, such damage did not constitute a new taking of landowners’ property. Commonwealth v. Moore, 267 S.W.2d 531, 1954 Ky. LEXIS 841 ( Ky. 1954 ).

    34.Corporations.

    This section applies to all corporations participating in taking of private property for public use. Chesapeake & O. R. Co. v. Wadsworth Electric Mfg. Co., 234 Ky. 645 , 29 S.W.2d 650, 1930 Ky. LEXIS 285 ( Ky. 1930 ).

    35.— County.

    A county and its agents are liable for injury to adjacent lands in changing the grade of a road. Layman v. Beeler, 113 Ky. 221 , 67 S.W. 995, 24 Ky. L. Rptr. 174 , 1902 Ky. LEXIS 41 ( Ky. 1902 ).

    Where State Highway Department, in relocating a state highway, acquired a new right of way and closed the old right of way, the county, which had no part in acquiring the new right of way or in changing the location of the highway, did not take any property of person whose land abutted on old right of way and was not liable in damages to such person. Department of Highways v. Current, 299 Ky. 127 , 184 S.W.2d 879, 1944 Ky. LEXIS 1040 ( Ky. 1944 ).

    36.— — Fiscal Courts.

    Fiscal court authorized to acquire land by purchase, donation or condemnation cannot delegate such power, and a suit stated no cause of action where not showing the court itself contracted or ratified contract or appropriated land for public purposes. Calvert v. Allen County Fiscal Court, 252 Ky. 450 , 67 S.W.2d 701, 1934 Ky. LEXIS 809 ( Ky. 1934 ).

    37.— Joint Liability.

    Under a contract of a county with a coal company to furnish right of way over land not owned by coal company in consideration for which coal company was to construct the road, there was a joint liability of county and coal company to the owner, as against contention road was established without legal authority. Harlan v. Cornett, 203 Ky. 41 , 261 S.W. 849, 1924 Ky. LEXIS 844 ( Ky. 1924 ).

    County had right to join with city in contract for construction of a viaduct carrying highway, and agree to acquire right of way, and contribute to costs of same where substantial part was outside city limits, and it is jointly liable with city for damages resulting from construction. Ashland v. Queen, 254 Ky. 329 , 71 S.W.2d 650, 1934 Ky. LEXIS 79 ( Ky. 1934 ).

    38.— Municipal.

    A municipal corporation cannot raise the grade of the street above the level of the lot without incurring responsibility to the owners of abutting lots, and property owner does not lose his right to damages by failure to institute a suit for an injunction to prevent the injury until the damages have been estimated and paid. Henderson v. McClain, 102 Ky. 402 , 43 S.W. 700, 19 Ky. L. Rptr. 1450 , 1897 Ky. LEXIS 131 ( Ky. 1897 ).

    A city is liable for injury to a lot caused by throwing surface water thereon in changing the grade of a street. Mt. Sterling v. Jephson, 53 S.W. 1046, 21 Ky. L. Rptr. 1028 , 1899 Ky. LEXIS 580 (Ky. Ct. App. 1899).

    Although in the collection and distribution of garbage a city discharges a governmental function, it has no right to take or injure private property for the use thereof without making compensation therefor. Louisville v. Hehemann, 161 Ky. 523 , 171 S.W. 165, 1914 Ky. LEXIS 115 ( Ky. 1914 ) ( Ky. 1914 ).

    Statute authorizing condemnation by second-class cities for public purposes which provided for payment of fair and reasonable cash value of tract taken considered in relation to entire tract and direct damage to land not taken did not conflict with this section. Shipp v. Lexington, 212 Ky. 702 , 279 S.W. 1094, 1926 Ky. LEXIS 221 ( Ky. 1926 ).

    City taking possession and control of turnpike company bridge when it conveyed portion of its road outside city to State Highway Commission, without condemning property and making just compensation, was liable to company for value of the bridge. Wayne County v. Elk Spring Valley Turnpike Co., 233 Ky. 741 , 26 S.W.2d 1049, 1930 Ky. LEXIS 658 ( Ky. 1930 ).

    The provisions of the Constitution governing compensation for the taking of private property by municipalities are limitations rather than grants of right and are self-executing, permitting recovery of damages by a property owner without additional statutory authority. V. T. C. Lines, Inc. v. Harlan, 313 S.W.2d 573, 1957 Ky. LEXIS 15 ( Ky. 1957 ).

    39.— — Sovereign Immunity.

    Where a city takes, injures or destroys private property for a public purpose without making just compensation therefor, the fact that the city may be entitled to plead sovereign immunity as a defense to an action in tort is wholly immaterial; indeed, there need be no showing of negligence at all, and the city may even be liable for the actions of independent contractors who accurately followed project plans and specifications. Wireman v. Greenup, 582 S.W.2d 48, 1979 Ky. App. LEXIS 410 (Ky. Ct. App. 1979).

    40.— — Respondeat Superior.

    The general rule that a city is not liable for the torts of its officers or agents when in the performance of a governmental function has no application where the acts in effect amount to a taking of property within the meaning of this section. Cleveland Wrecking Co. v. Struck Const. Co., 41 F. Supp. 70, 1941 U.S. Dist. LEXIS 2610 (D. Ky. 1941 ).

    41.— Not Authorized to Take.

    Corporations not authorized to take property by eminent domain are not relieved from liability for injuries to the owner of a dominant estate from the corporation’s filling up its servient estate so as to throw back surface water naturally flowing thereon. Pickerill v. Louisville, 125 Ky. 213 , 100 S.W. 873, 30 Ky. L. Rptr. 1239 , 1907 Ky. LEXIS 274 ( Ky. 1907 ).

    42.— Private.

    It is both expedient and necessary for the public welfare for private corporations serving the public good to have the power of eminent domain, and the general assembly has the constitutional authority to vest this power in such corporations and grant them the right to exercise necessary discretion in the selection and location of property needed and, where such discretion is exercised in good faith, it will not be reviewed by the courts. Craddock v. University of Louisville, 303 S.W.2d 548, 1957 Ky. LEXIS 267 ( Ky. 1957 ).

    43.— Schools.

    School board taking property of another must justly compensate for it. Superior Coal & Builders' Supply Co. v. Board of Education, 260 Ky. 84 , 83 S.W.2d 875, 1935 Ky. LEXIS 412 ( Ky. 1935 ).

    Reasonable regulation prohibiting public school children from visiting a certain cafe during school hours does not violate this or other sections of the Constitution. Casey County Board of Education v. Luster, 282 S.W.2d 333, 1955 Ky. LEXIS 238 ( Ky. 1955 ).

    44.— Sewer Districts.

    Metropolitan sewer district law for Louisville and Jefferson County, KRS 76.010 to 76.210 , was not unconstitutional as taking private property without compensation, on ground that transfer of city sewer system to the district together with right given district to make charges for use of sewer system deprived taxpayers of city of their right to use the sewers without charge, which right was claimed to exist by virtue of fact that bonds of city had been issued to pay for sewers; the transfer of the city system to the district was a mere transfer of custodianship and the taxpayers did not have a right to free use of the sewers even when operated by the city. Veail v. Louisville & Jefferson County Metropolitan Sewer Dist., 303 Ky. 248 , 197 S.W.2d 413, 1946 Ky. LEXIS 830 ( Ky. 1946 ).

    45.Individuals.
    46.— Private Contractors.

    Where, by blasting, a private contractor constructing a city sewer damages abutting property, it is liable for the injury thereto as a taking of property under this section. Adams & Sullivan v. Sengel, 177 Ky. 535 , 197 S.W. 974, 1917 Ky. LEXIS 622 ( Ky. 1917 ).

    A contractor constructing a highway without negligence under plans of the State Highway Commission is not liable for damages resulting from the obstruction of a stream along the right of way but is liable for the results of any negligence in the performance of the contract or without negligence where, as a result of blasting, material is thrown upon property beyond the right of way. H. H. Miller Const. Co. v. Collins, 269 Ky. 670 , 108 S.W.2d 663, 1937 Ky. LEXIS 657 ( Ky. 1937 ).

    In action against city for damages from construction of sewer by contractor, it was sufficient to allege in general terms existence of contractual relationship between city and contractor, since, if contractor was a trespasser acting without municipal authority, burden rested on city to so plead and prove. Cumberland v. Central Baptist Church, 305 Ky. 283 , 203 S.W.2d 57, 1947 Ky. LEXIS 793 ( Ky. 1947 ).

    47.Property.

    This provision applies to both real and personal property taken for public use. Superior Coal & Builders' Supply Co. v. Board of Education, 260 Ky. 84 , 83 S.W.2d 875, 1935 Ky. LEXIS 412 ( Ky. 1935 ).

    Easement for a water pipeline along the right of way of a state highway was property within this section. Commonwealth v. Means & Russell Iron Co., 299 Ky. 465 , 185 S.W.2d 960, 1945 Ky. LEXIS 451 ( Ky. 1945 ).

    48.— Abutting.

    The owner of land abutting upon a public road or street on which was constructed a street railway track is entitled to no compensation for the use of the road by the railway merely because the use of his property was affected thereby without proof of additional special damage. Ashland & C. S. R. Co. v. Faulkner, 106 Ky. 332 , 45 S.W. 235, 21 Ky. L. Rptr. 151 , 1899 Ky. LEXIS 7 ( Ky. 1899 ).

    The owner of abutting property may recover damages for injury to his property by the grading of a street which caused permanent interference with his ingress and egress from his property or diverted the natural flow of water. Ludlow v. Detweller, 47 S.W. 881, 20 Ky. L. Rptr. 894 (1898).

    The owner of abutting property has no right of recovery under this section for noises, smells and disturbance usual to city life, including use of highway by a street railway, insofar as they are reasonably incidental to the railway’s operation and borne by the public generally. Louisville R. Co. v. Foster, 108 Ky. 743 , 57 S.W. 480, 22 Ky. L. Rptr. 458 , 1900 Ky. LEXIS 91 ( Ky. 1900 ).

    A change in grade in a street which causes damages to abutting property is a taking of private property within the meaning of this section. Barfield v. Gleason, 111 Ky. 491 , 63 S.W. 964, 23 Ky. L. Rptr. 128 , 1901 Ky. LEXIS 215 (Ky.), modified, 64 S.W. 959, 23 Ky. L. Rptr. 1102 , 1901 Ky. LEXIS 596 (Ky. Ct. App. 1901). See Henderson v. McClain, 102 Ky. 402 , 43 S.W. 700, 19 Ky. L. Rptr. 1450 , 1897 Ky. LEXIS 131 ( Ky. 1897 ).

    A railroad company bound by law to furnish suitable stock pens is liable for injuries to adjacent property resulting from the construction and operation of such pens, though it has been guilty of no negligence. Bramlette v. Louisville & N. R. Co., 113 Ky. 300 , 68 S.W. 145, 24 Ky. L. Rptr. 180 , 1902 Ky. LEXIS 55 ( Ky. 1902 ).

    When a city changes the grade of a street after it has been established, it is liable to owners of adjacent property for injuries but is not liable for original grading, where street has been previously dedicated, or acquired by condemnation, when the work is not done negligently. Owensboro v. Hope, 128 Ky. 524 , 108 S.W. 873, 33 Ky. L. Rptr. 375 , 1908 Ky. LEXIS 74 ( Ky. 1908 ). See City of Louisville v. Sauter, 149 Ky. 721 , 149 S.W. 1029, 1912 Ky. LEXIS 720 ( Ky. 1912 ); Hazard v. Eversole, 237 Ky. 242 , 35 S.W.2d 313, 1931 Ky. LEXIS 593 ( Ky. 1931 ).

    An abutting property owner is not entitled to additional compensation when a railroad builds on a street if the railroad is prudently operated but, if the railroad occupies the whole street to the exclusion of all others, it becomes a different burden than that contemplated in the original condemnation and the property owner is entitled to additional compensation. Stein v. Chesapeake & O. R. Co., 132 Ky. 322 , 116 S.W. 733, 1909 Ky. LEXIS 122 ( Ky. 1909 ). See Chesapeake & O. R. Co. v. Eastham, 249 Ky. 136 , 60 S.W.2d 361, 1933 Ky. LEXIS 490 ( Ky. 1933 ).

    Cities are liable to abutting property owners for injury sustained by the excavation of a street, or the changing of its grade, or for any improvements that injure or destroy the property. Cassell v. Board of Councilmen, 134 Ky. 103 , 119 S.W. 788, 1909 Ky. LEXIS 367 ( Ky. 1909 ). See Erlanger v. Cody, 158 Ky. 625 , 166 S.W. 202, 1914 Ky. LEXIS 689 ( Ky. 1914 ).

    In changing a grade, if city destroys trees growing in a public highway, it is not liable to abutting property owner therefor. Cassell v. Board of Councilmen, 134 Ky. 103 , 119 S.W. 788, 1909 Ky. LEXIS 367 ( Ky. 1909 ).

    A county is liable in damages for injuries resulting from ditching a public road and constructing a culvert in such manner as to materially increase the natural flow of water on the land of an adjacent landowner. Moore v. Lawrence County, 143 Ky. 448 , 136 S.W. 1031, 1911 Ky. LEXIS 465 ( Ky. 1911 ).

    A city is liable to an abutting property owner who has been injured by the regrading of a street. Dayton v. Rewald, 168 Ky. 398 , 182 S.W. 931, 1916 Ky. LEXIS 620 ( Ky. 1916 ).

    A county constructing a turnpike with a culvert too small to carry off the water is liable for damage caused thereby to adjoining land. Black Mountain Corp. v. Houston, 211 Ky. 621 , 277 S.W. 993, 1925 Ky. LEXIS 934 ( Ky. 1925 ).

    An abutting property owner has no property right in the continued maintenance of a highway but only the right of reasonable access to the highway systems and of such surface condition as the state chooses to provide in the reasonable administration of its highway system. Commonwealth, Dep't of Highways v. Sherrod, 367 S.W.2d 844, 1963 Ky. LEXIS 33 ( Ky. 1963 ).

    An abutting owner does not have a vested right to build a structure over a public highway. Commonwealth, Dep't of Highways v. Trimble, 451 S.W.2d 641, 1969 Ky. LEXIS 18 ( Ky. 1969 ).

    Where a strip of land was taken to widen and reconstruct a public highway, damage to the value of abutting property resulting from the change of grade constituted a taking within the meaning of this section and § 13 of the Constitution, although the abutting owner could not have recovered damages for resulting loss of access unless he was denied reasonable access to the highway system. Commonwealth, Dep't of Highways v. Roberts, 496 S.W.2d 343, 1973 Ky. LEXIS 380 ( Ky. 1973 ).

    The taking of a property owner’s second strip of land contiguous to a first condemned strip for the purpose of restoring an easement to a second property owner was a taking of private property for a private use, and was forbidden by Const., § 13 and this section. Commonwealth, Dep't of Transp., Bureau of Highways v. Knieriem, 707 S.W.2d 340, 1986 Ky. LEXIS 238 ( Ky. 1986 ).

    Abutting property owner did not have right of private railway access over property reacquired by city under operation of law; reasonable right of access did not encompass grant of private right of railway access as to do so would be in contravention of the right enjoyed by all other members of the public or other abutting property owners and would constitute use of public property for a private purpose prohibited by Const. §§ 2, 13, 179, and this section. City of Louisville v. Louisville Scrap Material Co., 932 S.W.2d 352, 1996 Ky. LEXIS 62 ( Ky. 1996 ).

    49.— — Damages.

    Injury to abutting property from the unauthorized double tracking of a railroad where only a single track had been authorized and an action for damages for the resultant injury is not barred by the five-year statute of limitations, the damages being measured by the depreciation in value of the property. Klosterman v. Chesapeake & O. R. Co., 56 S.W. 820, 22 Ky. L. Rptr. 192 , 1900 Ky. LEXIS 461 (Ky. Ct. App. 1900).

    Damage to abutting property resulting from construction or grading of a city street constitutes a cause of action against the city under this section but cannot be pleaded in bar to the claim for the improvement. Barfield v. Gleason, 111 Ky. 491 , 63 S.W. 964, 23 Ky. L. Rptr. 128 , 1901 Ky. LEXIS 215 (Ky.), modified, 64 S.W. 959, 23 Ky. L. Rptr. 1102 , 1901 Ky. LEXIS 596 (Ky. Ct. App. 1901). See Louisville Steam Forge Co. v. Mehler, 112 Ky. 438 , 64 S.W. 396, 23 Ky. L. Rptr. 1335 , 1901 Ky. LEXIS 283 ( Ky. 1901 ).

    A city is liable for injury to owners of adjoining property from the location of a pest house and, in absence of personal injury, the measure of damages, if establishment of pest house is permanent, is the impairment of the market value of the property. Paducah v. Allen, 111 Ky. 361 , 63 S.W. 981, 23 Ky. L. Rptr. 701 , 1901 Ky. LEXIS 217 ( Ky. 1901 ).

    An abutting property owner may not recover damages for the accumulation of surface water on the property allegedly caused by the inadequacy of city sewer outlets without showing that the accumulation resulted from some specific act of the city and did not accumulate and overflow independently. Thoman v. Covington, 62 S.W. 721, 23 Ky. L. Rptr. 117 , 1901 Ky. LEXIS 340 ( Ky. 1901 ).

    Abutting property owner may recover damages for grading of a city street, although there was no actual invasion of his property. Board of Councilmen v. Edelen, 82 S.W. 279, 26 Ky. L. Rptr. 601 , 1904 Ky. LEXIS 392 (Ky. Ct. App. 1904).

    Where abutting property owner sued for damages resulting from the grading of a city street which was only partially opened, it was proper to exclude testimony as to what value the property would have had if the street had been completely opened. Board of Councilmen v. Edelen, 82 S.W. 279, 26 Ky. L. Rptr. 601 , 1904 Ky. LEXIS 392 (Ky. Ct. App. 1904).

    In action by an abutting owner for changing grade of a street, the measure of damages is difference between the fair market value of the property just before and just after the change, and the increased value of plaintiff’s property, in common with other property in the square by reason of change in grade, is to be considered in determining damages. Louisville v. Kaye, 122 Ky. 599 , 92 S.W. 554, 29 Ky. L. Rptr. 116 , 1906 Ky. LEXIS 77 ( Ky. 1906 ). See City of Louisville v. Hegan, 49 S.W. 532, 20 Ky. L. Rptr. 1532 , 1899 Ky. LEXIS 438 (Ky. Ct. App. 1899); Wilson v. Eminence, 198 Ky. 32 , 247 S.W. 1106, 1923 Ky. LEXIS 366 ( Ky. 1923 ).

    Abutting owner suing for damages for road construction is not entitled to rental value of garage during time use of it was prevented by construction. Mercer County v. Ballinger, 238 Ky. 120 , 36 S.W.2d 856, 1931 Ky. LEXIS 189 ( Ky. 1931 ).

    In action for damages to adjacent realty as result of condemnation for gas and oil pipeline, damages resulting from laying line, erosion of top soil resulting from surface water caused by drainage ditches, and grant of right of ingress and egress over entire tract are all proper elements of damage. Tennessee Gas Transmission Co. v. Million, 314 Ky. 137 , 234 S.W.2d 152, 1950 Ky. LEXIS 1007 ( Ky. 1950 ).

    50.— — Lateral Support.

    A railroad company is liable to an adjacent landowner for damages to his land by removing the lateral support afforded by its right of way, whether it is negligent or not. Chesapeake & O. R. Co. v. May, 157 Ky. 708 , 163 S.W. 1112, 1914 Ky. LEXIS 358 ( Ky. 1914 ). See Floyd County v. West Virginia-Kentucky Hardware & Supply Co., 59 F.2d 895, 1932 U.S. App. LEXIS 3481 (6th Cir. Ky. 1932 ); Louisville & N. O. R. Co. v. Culbertson, 158 Ky. 561 , 165 S.W. 681, 1914 Ky. LEXIS 657 ( Ky. 1914 ); Perry County v. Townes, 228 Ky. 608 , 15 S.W.2d 521, 1929 Ky. LEXIS 638 ( Ky. 1929 ); Covington v. Parsons, 258 Ky. 22 , 79 S.W.2d 353, 1935 Ky. LEXIS 108 ( Ky. 1935 ); Bader v. Jefferson County, 274 Ky. 486 , 119 S.W.2d 870, 1938 Ky. LEXIS 311 ( Ky. 1938 ).

    City is liable for negligence of its employees in permitting an excavation for a sewer in a public street to remain open, unfilled and unprotected for an unreasonable and unnecessary length of time, thereby causing ground of abutting property owner to slide into the trench and injure his premises, notwithstanding city was engaged in a governmental function. O'Gara v. Dayton, 175 Ky. 395 , 194 S.W. 380, 1914 Ky. LEXIS 169 ( Ky. 1914 ) ( Ky. 1914 ).

    City is liable for damages to a church building caused by weakening of lateral support to church’s land in construction of a city sewer by contractor, notwithstanding church did not plead and prove validity of contract entered into between city and contractor and did not establish negligence where action was predicated on taking of property for public purpose. Cumberland v. Central Baptist Church, 305 Ky. 283 , 203 S.W.2d 57, 1947 Ky. LEXIS 793 ( Ky. 1947 ).

    Removal of lateral support by construction of a highway is not consequential injury recovery for which would be estopped by deed conveying the right of way, but is a compensable taking within the meaning of this section. Commonwealth v. Litteral, 319 S.W.2d 458, 1958 Ky. LEXIS 167 ( Ky. 1958 ).

    Release obtained by city relieving it of liability for trespass upon adjacent property or for damages to improvements in creek bed area it sought to improve did not relieve it of liability for removing lateral support from such property, nor was it a defense that the damage was caused by shifting of filled dirt rather than virgin soil or that landowners failed to shore up their property against the damage. Newport v. Rosing, 319 S.W.2d 852, 1958 Ky. LEXIS 174 ( Ky. 1958 ).

    Where, in undertaking a public improvement, city removed lateral support from adjoining land causing destruction of the houses, this did not constitute an exercise of emergency police power but a taking of private property for public purposes and the landowners could recover damages therefor without showing negligence. Newport v. Rosing, 319 S.W.2d 852, 1958 Ky. LEXIS 174 ( Ky. 1958 ).

    51.— — Nuisance.

    A city prison is not per se a nuisance and a city is not liable to the owner of adjacent property because it is rendered less desirable for a residence. Bowling Green v. Rogers, 142 Ky. 558 , 134 S.W. 921, 1911 Ky. LEXIS 245 ( Ky. 1911 ).

    Reasonable and necessary operation of jet airport does not entitle homeowners in vicinity to recover under this section due to diminution in value of property caused thereby. Louisville & Jefferson County Air Board v. Porter, 397 S.W.2d 146, 1965 Ky. LEXIS 67 ( Ky. 1965 ).

    52.— Condemnation.

    Under this section and Const., § 248, statute providing that railroads may institute condemnation proceedings in county courts and providing for juries of 12 to assess damages and compensation is constitutional. Louisville & N. R. Co. v. Western U. Tel. Co., 207 F. 1, 1913 U.S. App. LEXIS 1597 (6th Cir. Ky. 1913 ).

    Condemnation suits are common-law actions requiring a motion for a new trial and filing of bill of exceptions and bill of evidence. Commonwealth ex rel. State Highway Com. v. Adams, 220 Ky. 151 , 294 S.W. 1066, 1927 Ky. LEXIS 503 ( Ky. 1927 ).

    Action by municipality to require railroad to establish suitable crossing of established street was not a condemnation proceeding and therefore railroad was not having its property taken without due process of law. Louisville & N. R. Co. v. Owensboro, 238 S.W.2d 148, 1951 Ky. LEXIS 806 ( Ky. 1951 ).

    53.— — Dead Bodies.

    Suit cannot be brought under this section for appropriation of a corpse, since the property right therein is not such that it may be condemned. University of Louisville v. Metcalfe, 216 Ky. 339 , 287 S.W. 945, 1926 Ky. LEXIS 931 ( Ky. 1926 ).

    54.— — Damages.

    In condemnation proceedings to determine the value of turnpike road, the measure is its actual value at the time of condemnation and not what it would cost to construct a turnpike at that time. Richmond & L. Turnpike Road Co. v. Madison County Fiscal Court, 114 Ky. 351 , 70 S.W. 1044, 24 Ky. L. Rptr. 1260 , 1902 Ky. LEXIS 165 ( Ky. 1902 ).

    In condemnation of land for railroad right of way where land was one-fourth (1/4) mile from town and town lots adjoining it had been laid out, it was competent to show land was adaptable for use as town lots in assessing damages. Chicago, S. L. & N. O. R. Co. v. Rottgering, 83 S.W. 584, 26 Ky. L. Rptr. 1167 (1904).

    In condemnation proceeding, evidence as to price of nearby lands is competent in determining damages. Chicago, S. L. & N. O. R. Co. v. Rottgering, 83 S.W. 584, 26 Ky. L. Rptr. 1167 (1904).

    In condemnation proceedings involving land taken for railroad right of way, owners were entitled, as damages, to the fair value of the land taken in relation to the entire tract, to direct damages resulting to the remainder of the tract, not exceeding the difference in the value of the land before and after the taking and, in addition, such incidental damages to the remainder of the land as might result from the reasonable operation of the railroad less the increment in value to the remainder accruing from the building of the railroad. Chicago, S. L. & N. O. R. Co. v. Rottgering, 83 S.W. 584, 26 Ky. L. Rptr. 1167 (1904).

    In condemnation proceedings, everything that affects market value of remaining land should be taken into consideration by the jury, and market value is the price land will bring if offered for sale by one who desires but is not compelled to sell, and bought by one who desires to purchase but is not compelled to have it. Louisville & N. R. Co. v. Burnam, 214 Ky. 736 , 284 S.W. 391, 1925 Ky. LEXIS 1138 ( Ky. 1925 ). See Board of Councilmen of Frankfort v. Brammell, 220 Ky. 132 , 294 S.W. 1076, 1927 Ky. LEXIS 509 ( Ky. 1927 ).

    Damages to farm by condemnation of easement for transmission lines is determined by difference between market value before and after easement was taken. Kentucky Hydroelectric Co. v. Reister, 216 Ky. 303 , 287 S.W. 357, 1926 Ky. LEXIS 848 ( Ky. 1926 ).

    Diminution in value of land caused by condemnation must be paid in money, not other benefits. Kentucky Hydroelectric Co. v. Reister, 216 Ky. 303 , 287 S.W. 357, 1926 Ky. LEXIS 848 ( Ky. 1926 ).

    Damages for condemnation of easement for electric transmission lines may not include fear of danger by owner or purchasers from construction or maintenance. Kentucky Hydro Electric Co. v. Woodard, 216 Ky. 618 , 287 S.W. 985, 1926 Ky. LEXIS 952 ( Ky. 1926 ).

    In condemnation proceedings where portion of lot and house are appropriated for highway purposes, any marketable value of that portion of house and lot not appropriated should be deducted from market value of whole lot at time of appropriation in determining compensation, and if house and lot not appropriated has no appreciable market value, owner’s compensation is to be determined as if entire property were appropriated. Commonwealth by State Highway Com. v. Begley, 261 Ky. 812 , 88 S.W.2d 920, 1935 Ky. LEXIS 729 ( Ky. 1935 ).

    Where operator of a residential subdivision, after obtaining easement from State Department of Highways, constructed a water pipeline along south side of state highway, he was entitled, in condemnation proceeding brought by state in connection with proposed reconstruction and widening of highway, to an award of damages equal to cost of relocating his pipeline on the north side of the highway, which was made necessary by the proposed reconstruction; in such case, where it was proved that 3,000 feet of pipe would have to be relocated in order to make the pipeline function, condemnee was entitled to an award based on the cost of relocating 3,000 feet, although only 652 feet were within the condemned area. Commonwealth v. Means & Russell Iron Co., 299 Ky. 465 , 185 S.W.2d 960, 1945 Ky. LEXIS 451 ( Ky. 1945 ).

    The difference in value of land before and after condemnation is for the jury’s consideration. Tennessee Gas & Transmission Co. v. Jackman, 311 Ky. 507 , 224 S.W.2d 660, 1949 Ky. LEXIS 1173 ( Ky. 1949 ).

    Right and privilege given condemnor to trim any trees, brush or branches located in proximity to condemned easement constitutes a burden on the land to be considered in assessing damages. Kentucky Water Service Co. v. Gibbs, 239 S.W.2d 62, 1951 Ky. LEXIS 840 ( Ky. 1951 ).

    Where an easement was condemned to construct a reservoir, the value the landowner was deprived of for raising corn and tobacco, the reasonable cost of necessary fencing, and the deprivation of the owners of a stream and trees along it for the shade and watering of livestock on adjacent land were all elements properly considered in the assessment of damages. Kentucky Water Service Co. v. Gibbs, 239 S.W.2d 62, 1951 Ky. LEXIS 840 ( Ky. 1951 ).

    In condemnation proceedings, all the owner is entitled to is the diminution in fair market value of his property without any regard to the infringement of his desire not to part with his property, and the determination of the amount of the diminution as well as the amount of any enhancement in the value of the property are proper questions for the jury to determine. Commonwealth, Dep't of Highways v. Sherrod, 367 S.W.2d 844, 1963 Ky. LEXIS 33 ( Ky. 1963 ).

    In condemnation proceedings, the only measure of damages is the difference in the fair market value of the entire tract immediately before and immediately after the taking, and the total damages to all individuals having a property interest in the tract may not exceed this amount. Commonwealth, Dep't of Highways v. Sherrod, 367 S.W.2d 844, 1963 Ky. LEXIS 33 ( Ky. 1963 ).

    In condemnation proceedings, there must be strict adherence to the fair market value measure of damages, regardless of any contracts affecting the amount of profits anyone having a property interest in the realty might realize therefrom. Commonwealth, Dep't of Highways v. Sherrod, 367 S.W.2d 844, 1963 Ky. LEXIS 33 ( Ky. 1963 ).

    The old rule that fencing is to be handled as a separate item in assessing damages in condemnation cases is rescinded and KRS 416.110 which so provides is unconstitutional under this section and Const., § 13. Commonwealth, Dep't of Highways v. Sherrod, 367 S.W.2d 844, 1963 Ky. LEXIS 33 ( Ky. 1963 ).

    When distinguished from diminution in fair market value of property condemned, consequential injury, incidental damage and inconvenience are items which may not be used in assessing damages recoverable for condemnation. Commonwealth, Dep't of Highways v. Sherrod, 367 S.W.2d 844, 1963 Ky. LEXIS 33 ( Ky. 1963 ).

    The condemnee is not entitled to recoup expenses incurred for removal and relocation of its machinery and equipment from condemned property to its new location. Chain Belt Co. v. Commonwealth, Dep't of Highways, 391 S.W.2d 357, 1965 Ky. LEXIS 294 ( Ky. 1965 ).

    In condemnation proceeding, neither minerals nor timber should be valued separately. Witbeck v. Big Rivers Rural Electric Cooperative Corp., 412 S.W.2d 265, 1967 Ky. LEXIS 425 ( Ky. 1967 ), overruled, Commonwealth, Dep't of Highways v. Stephens Estate, 502 S.W.2d 71, 1973 Ky. LEXIS 67 ( Ky. 1973 ).

    The only issue of damages to be tried in a condemnation case is the difference in the market value of the property immediately before and after the taking of the easement condemned. Witbeck v. Big Rivers Rural Electric Cooperative Corp., 412 S.W.2d 265, 1967 Ky. LEXIS 425 ( Ky. 1967 ), overruled, Commonwealth, Dep't of Highways v. Stephens Estate, 502 S.W.2d 71, 1973 Ky. LEXIS 67 ( Ky. 1973 ).

    Since, in condemnation for sewer, the entire cost of the project is paid by the property owners along the sewer line, enhancement of value attributable to the project is not to be considered in fixing of damages for easements. Epperson v. Briscoe Manor Sewer Constr. Dist., 420 S.W.2d 390, 1966 Ky. LEXIS 3 ( Ky. 1966 ).

    Where an easement was condemned on a farm that had sold for $431 per acre and the farm had good subdivision potential, a verdict of $446 an acre for the easement would be within the evidence. East Kentucky Rural Electric Cooperative Corp. v. Bowles, 469 S.W.2d 763, 1971 Ky. LEXIS 310 ( Ky. 1971 ).

    Trial court erred by allowing condemnees to recover trespass damages based on the condemnor’s entering their land before its amended condemnation petition was granted; as the land that was trespassed on was eventually taken through condemnation, only “reverse condemnation” damages were proper. Big Rivers Elec. Corp. v. Barnes, 147 S.W.3d 753, 2004 Ky. App. LEXIS 85 (Ky. Ct. App. 2004).

    55.— — — Estimated.

    In condemnation cases, land values are established on the basis of estimates and opinions which, of necessity, permits wide variances and, if such estimates are reasonable, a court will not substitute its opinion as to value in place thereof. Commonwealth v. Conatser, 329 S.W.2d 48, 1959 Ky. LEXIS 136 ( Ky. 1959 ).

    In estimating value of land taken in condemnation proceedings, the tract taken must be considered in relation to the entire tract of which it was a part, but the value assessed does not have to be in direct proportion thereto, since the part taken may well comprise the most valuable portion of the entire tract. Commonwealth, Dep't of Highways v. Hall, 353 S.W.2d 548, 1962 Ky. LEXIS 21 ( Ky. 1962 ).

    56.— — — Excessive.

    The yardstick to be applied in determining whether an award of damages in a condemnation suit is excessive is flexible and the examination of other cases is of little assistance. East Kentucky Rural Electric Cooperative Corp. v. Burke, 301 S.W.2d 892, 1957 Ky. LEXIS 490 ( Ky. 1957 ).

    No precise rule exists by which a court can measure whether damages in a condemnation case are excessive. East Kentucky Rural Electric Co-op. Corp. v. Rand, 357 S.W.2d 890, 1962 Ky. LEXIS 163 ( Ky. 1962 ).

    In determining whether an award in a condemnation proceeding is excessive, the qualifications of the condemnee’s witnesses, as well as their testimony, must be considered. Commonwealth, Dep't of Highways v. Vaughn, 390 S.W.2d 146, 1965 Ky. LEXIS 333 ( Ky. 1965 ).

    57.— — — Loss of Profits.

    In condemnation proceeding, neither the landowner nor a lessee is entitled to damages for loss of profits from a business conducted on the property condemned; he is limited to loss of market value of the condemned property. Commonwealth, Dep't of Highways v. Sherrod, 367 S.W.2d 844, 1963 Ky. LEXIS 33 ( Ky. 1963 ).

    58.— — — Refused.

    Where, in a condemnation suit, landowner objected to verdict and refused to accept the sum awarded and company deposited the amount of award in court, an order giving possession was authorized. Hamilton v. Maysville & B. S. R. Co., 84 S.W. 778, 27 Ky. L. Rptr. 251 (1905).

    Where amount of judgment was tendered and rejected, plaintiff could not recover interest, although he appealed to Circuit Court and there recovered a larger judgment, and he might recover interest on amount of increase but only from the time the county took actual possession. Commonwealth ex rel. State Highway Com. v. Adams, 220 Ky. 151 , 294 S.W. 1066, 1927 Ky. LEXIS 503 ( Ky. 1927 ).

    59.— — Decedent’s Heirs.

    Where, in condemnation proceeding, some of defendants claiming interest in the property died, case could not proceed until revived against their heirs, since to do so would constitute a taking of property without just compensation under this section, Const., § 13, and United States Const., Amend. 5. Louisville & N. R. Co. v. Mayhew, 307 Ky. 793 , 211 S.W.2d 675, 1948 Ky. LEXIS 771 ( Ky. 1948 ).

    60.— — Election to Take.

    A company which institutes condemnation proceedings may after judgment elect to take or not to take the land, and a personal judgment is not proper before exercise of right of election, but after election and possession, such judgment is proper. Long Fork R. Co. v. Sizemore, 184 Ky. 54 , 211 S.W. 193, 1919 Ky. LEXIS 12 ( Ky. 1919 ).

    61.— — Legislative.

    Under this section and Const., § 13, a city may enact such laws and ordinances as reasonably tend to further the public welfare. Illinois C. R. Co. v. Mayfield, 35 F.2d 808, 1929 U.S. App. LEXIS 3074 (6th Cir. Ky. 1929 ), cert. denied, 280 U.S. 608, 50 S. Ct. 158, 74 L. Ed. 651, 1930 U.S. LEXIS 803 (U.S. 1930).

    Statute authorizing condemnation for private tramway to enable one to reach railroad switches for purpose of marketing products of certain quarries but denying exclusive use to such passage and giving other persons right of use upon paying proper compensation is not unconstitutional. Chesapeake Stone Co. v. Moreland, 126 Ky. 656 , 104 S.W. 762, 31 Ky. L. Rptr. 1075 , 1907 Ky. LEXIS 96 ( Ky. 1907 ).

    Highway toll bridge act of 1928 that provided for the building and operation of bridges across streams and the condemnation of land therefor had to be construed in connection with this section providing that private property cannot be taken without just compensation. Bloxton v. State Highway Com., 225 Ky. 324 , 8 S.W.2d 392, 1928 Ky. LEXIS 762 ( Ky. 1928 ).

    KRS 381.580 to 381.630 (repealed) providing for condemnation of private passways, did not violate this section. Parsley v. Madison, 302 Ky. 467 , 194 S.W.2d 993, 1946 Ky. LEXIS 698 ( Ky. 1946 ).

    62.— — Environmental Impact.

    A condemnor, who has public purpose, does not need to give consideration to the environmental impact of a proposed project in order to avoid acting in an arbitrary and capricious manner. Proffitt v. Louisville & Jefferson County Metro. Sewer Dist., 850 S.W.2d 852, 1993 Ky. LEXIS 66 ( Ky. 1993 ).

    63.— — Public Use and Necessity.

    The business in which a corporation is engaged cannot add to or take from it the right of condemnation, and the test in every case is, Will the property taken be for a public use and necessary for such use. Riley v. Louisville, H. & S. L. R. Co., 142 Ky. 67 , 133 S.W. 971, 1911 Ky. LEXIS 126 ( Ky. 1911 ).

    Land may be condemned by a court only in the manner authorized by the Constitution and cannot be condemned on behest of board of sewer commissioners without a showing of necessity for public use, the burden of proof as to the value of the land being on the condemnor. Commissioners of Sewerage v. Reisert, 243 Ky. 494 , 49 S.W.2d 324, 1932 Ky. LEXIS 147 ( Ky. 1932 ).

    Although the General Assembly may not authorize the taking by eminent domain of property not necessary for a particular public need, a municipality may so acquire land in reasonable contemplation of future needs. McGee v. Williamstown, 308 S.W.2d 795, 1957 Ky. LEXIS 142 ( Ky. 1957 ).

    Evidence on the question of the necessity for taking land under eminent domain should not usually be given to the jury, since it is a question of law for the court. McGee v. Williamstown, 308 S.W.2d 795, 1957 Ky. LEXIS 142 ( Ky. 1957 ).

    In condemnation, public necessity cannot be inferred merely from a resolution indicating a purpose of proceeding but, where a resolution of the fiscal court, although not in so many words stating a necessity, recited in the preamble that building a road was in the best interests of the county for the benefit of the traveling public, public necessity was sufficiently stated. Prather v. Fulton County, 336 S.W.2d 339, 1960 Ky. LEXIS 322 ( Ky. 1960 ).

    Land condemned to form a new access road to a major highway and give access to an adjoining hotel open to the public, which access would otherwise be cut off by the highway, was a taking for a public and not a private use, although of special benefit to the hotel owner. Sturgill v. Commonwealth, Dep't of Highways, 384 S.W.2d 89, 1964 Ky. LEXIS 79 ( Ky. 1964 ).

    Whether property is condemned and appropriated for a public use or injured or destroyed for a public purpose is immaterial and, in either case, the owner must be justly compensated under this section and Const., § 13. Commonwealth, Dep't of Highways v. Gisborne, 391 S.W.2d 714, 1965 Ky. LEXIS 329 ( Ky. 1965 ).

    The elimination of blight by developing the property according to a proper plan constitutes a “public use” of the property. Owensboro v. McCormick, 581 S.W.2d 3, 1979 Ky. LEXIS 252 ( Ky. 1979 ).

    Constitution, § 13 and this section clearly require that finding of “public purpose” does not satisfy the requirement of a finding of “public use.” Owensboro v. McCormick, 581 S.W.2d 3, 1979 Ky. LEXIS 252 ( Ky. 1979 ).

    When the property being condemned will not be developed for use by the public, exercise of the power of eminent domain is not permissible under Const., § 13 and this section unless the property lies within an area of land which is blighted as defined by statute. Owensboro v. McCormick, 581 S.W.2d 3, 1979 Ky. LEXIS 252 ( Ky. 1979 ).

    Where land was condemned to expand a utility’s existing electrical transmission system, the selection of the transmission lines route and the purpose for which they were built was for a public use and therefore proper and well within the power of condemnor. Ratliff v. Fiscal Court of Caldwell County, 617 S.W.2d 36, 1981 Ky. LEXIS 252 ( Ky. 1981 ).

    64.— — Reverse.

    Where condemnation suit in reverse was tried throughout on theory of restoration and the defendant made no objection, it was not necessary to decide whether restoration costs alone, rather than diminution in value, constituted the correct measure of damages. Danville v. Smallwood, 347 S.W.2d 516, 1961 Ky. LEXIS 362 ( Ky. 1961 ).

    Damages for loss of business due to torn-up condition of the surface of a highway, rather than interference with access thereto, may not be recovered in a condemnation proceeding, and the previous reverse condemnation cases do not apply since they involve a taking of property, which is not the case here since the abutting owner has no property right in the continued maintenance of a particular highway. Commonwealth, Dep't of Highways v. Sherrod, 367 S.W.2d 844, 1963 Ky. LEXIS 33 ( Ky. 1963 ).

    Condemnation in reverse exists only where there is a taking, destroying or injuring of property by the sovereign without any color of right, and it does not apply to a case where a road is constructed in accordance with plans specified in deeds. Commonwealth, Dep't of Highways v. Davidson, 383 S.W.2d 346, 1964 Ky. LEXIS 32 ( Ky. 1964 ).

    In reverse condemnation proceeding, expert witnesses may properly testify that in their opinion damages to realty from landslide were caused by removal of lateral support. Commonwealth, Dep't of Highways v. Widner, 388 S.W.2d 583, 1965 Ky. LEXIS 437 ( Ky. 1965 ).

    In reverse condemnation proceeding, landowner could recover damages from Commonwealth for landslide due to removal of lateral support without giving deed for such property, and award of damages forecloses, of course, any subsequent recovery for the same injury. Commonwealth, Dep't of Highways v. Widner, 388 S.W.2d 583, 1965 Ky. LEXIS 437 ( Ky. 1965 ).

    Suit for damages for injury to realty resulting from removal of lateral support by State Highway Department amounts to a reverse condemnation proceeding under this section, is not necessarily based on negligence, and is within the jurisdiction of the Circuit Court rather than the exclusive jurisdiction of the board of claims. Commonwealth, Dep't of Highways v. Widner, 388 S.W.2d 583, 1965 Ky. LEXIS 437 ( Ky. 1965 ).

    Where landowner sued for damages in reverse condemnation proceeding for injury to land resulting from State Highway Department mistakenly having construction performed on land not included in deed it had taken, landowner was not required, on recovery of compensation, to deed such land to Commonwealth, since there was no taking of the land itself and thus no necessity for a deed. Commonwealth, Dep't of Highways v. Gisborne, 391 S.W.2d 714, 1965 Ky. LEXIS 329 ( Ky. 1965 ).

    Where, through mistake of State Highway Department, contractor performed highway construction through land not included in that portion deeded to Commonwealth, the owner can recover damages from the Commonwealth in reverse condemnation proceeding under this section and, in absence of negligence, contractor is not liable for any portion of the damages. Commonwealth, Dep't of Highways v. Gisborne, 391 S.W.2d 714, 1965 Ky. LEXIS 329 ( Ky. 1965 ).

    Where an entity possessing the right of eminent domain prematurely enters the premises of the condemnee, the exclusive remedy is a reverse condemnation suit under this section, the measure of damages is the same as in condemnation cases, and there may be no separate recovery of punitive damages for trespass. Witbeck v. Big Rivers Rural Electric Cooperative Corp., 412 S.W.2d 265, 1967 Ky. LEXIS 425 ( Ky. 1967 ), overruled, Commonwealth, Dep't of Highways v. Stephens Estate, 502 S.W.2d 71, 1973 Ky. LEXIS 67 ( Ky. 1973 ).

    Fiscal court’s resolution acquiring a county road and the maintenance thereof resulted in an unauthorized taking because a proper acquisition complying with statutory requirements could not have occurred; however, owners who acquiesced to paving could obtain no recovery, even if they timely filed suit, and were properly directed to remove a gate. Cary v. Pulaski County Fiscal Court, 420 S.W.3d 500, 2013 Ky. App. LEXIS 85 (Ky. Ct. App. 2013).

    65.— — Title Acquired.

    Title acquired by a condemnation proceeding is derivative, standing in place of the title as it was privately held and is clear, therefore, only insofar as the private owners have had their interests removed by the payment to them of just compensation. Cumberland River Oil Co. v. Commonwealth, Dep't of Highways, 350 S.W.2d 700, 1961 Ky. LEXIS 127 ( Ky. 1961 ).

    66.— Contract Rights.

    Proof of tenancy alone is not proof of loss; tenant must establish that fair market value of lease is greater than the rent reserved and an unexercised option to purchase condemned land is not compensable in compensation action, and instruction permitting jury to consider it as element of damages is improper. Ashland v. Kittle, 347 S.W.2d 522, 1961 Ky. LEXIS 364 ( Ky. 1961 ).

    Oil company which had contract with owner of filling station to handle its products exclusively, on property later condemned by State Highway Department, could not recover damages from the state for a taking of property, since the state, by condemning, had done nothing the original owner could not have done lawfully by quitting the business, and the company’s rights under the contract were therefore not compensable as against the state. Cumberland River Oil Co. v. Commonwealth, Dep't of Highways, 350 S.W.2d 700, 1961 Ky. LEXIS 127 ( Ky. 1961 ). See Folger v. Commonwealth, Dep't of Highways, 350 S.W.2d 703, 1961 Ky. LEXIS 128 ( Ky. 1961 ).

    67.— Nonabutting.

    One whose property does not adjoin a right of way cannot recover for damage from the noise of operating trains, and one may recover for obstruction of street or alley leading to his property by construction of railroad across it, though at points not abutting his property; recovery may also be had for damage to property from cinders, soot and smoke thrown from trains by ordinary winds but not unusual winds. Illinois C. R. Co. v. Elliot, 129 Ky. 121 , 110 S.W. 817, 33 Ky. L. Rptr. 537 , 1908 Ky. LEXIS 144 ( Ky. 1908 ).

    68.— Private.

    Private property cannot be taken for private purposes and an individual cannot condemn a private passway, however needful or convenient to him the use may be. Fitzpatrick v. Warden, 157 Ky. 95 , 162 S.W. 550, 1914 Ky. LEXIS 223 ( Ky. 1914 ). See McIntosh Coal Co. v. Blue Grass Coal Co., 203 Ky. 802 , 263 S.W. 346, 1924 Ky. LEXIS 1012 ( Ky. 1924 ).

    69.— — Leased.

    A lessee’s interest in condemned property is such that he must be compensated for the taking thereof under eminent domain and the condemnor must pay just compensation to all persons having ownership interests in condemned property. Ashland v. Price, 318 S.W.2d 861, 1958 Ky. LEXIS 152 ( Ky. 1958 ).

    In order to recover damages for deprivation of his lease on condemned premises, the tenant must prove he has sustained an actual, compensable loss. Ashland v. Price, 318 S.W.2d 861, 1958 Ky. LEXIS 152 ( Ky. 1958 ).

    Upon the condemnation of leased property, the jury must, in fixing damages, first fix the fair market value of the property as a whole and then divide the amount in accordance with the rights of the landlord and tenant. Ashland v. Price, 318 S.W.2d 861, 1958 Ky. LEXIS 152 ( Ky. 1958 ).

    In an eminent domain proceeding, the fair market value of leased property as a whole must first be determined and then divided between lessor and lessee according to their respective interests, and an instruction permitting the jury to fix the value of their interests or the damage thereto is improper. Ashland v. Kittle, 347 S.W.2d 522, 1961 Ky. LEXIS 364 ( Ky. 1961 ).

    In a condemnation proceeding involving leased property, it is not necessary that the allocation of damages between the owner and the lessee be tried in a separate action. Commonwealth, Dep't of Highways v. Sherrod, 367 S.W.2d 844, 1963 Ky. LEXIS 33 ( Ky. 1963 ).

    The fair market value of a leasehold on condemned land should be determined by the difference in the fair market value of the land sold subject to the lease and the value sold free of the lease. Commonwealth, Dep't of Highways v. Sherrod, 367 S.W.2d 844, 1963 Ky. LEXIS 33 ( Ky. 1963 ).

    Where condemnation makes land unsuitable for a business conducted thereon by a lessee, he is entitled to a share in the condemnation award, determined by the diminution of the fair market value of the property based on the difference in the market value of the lease before and after the taking. Commonwealth, Dep't of Highways v. Sherrod, 367 S.W.2d 844, 1963 Ky. LEXIS 33 ( Ky. 1963 ).

    Where condemned land is under lease at a higher amount than the fair rental value, the excess over a fair rental is profit for which the owner is not entitled to compensation. Commonwealth, Dep't of Highways v. Sherrod, 367 S.W.2d 844, 1963 Ky. LEXIS 33 ( Ky. 1963 ).

    Although ownership of separate interests in land does not change basic rule that just compensation in condemnation proceedings must be determined by computing the difference in fair market value of land before and after the taking, an owner of leasehold interest in subsurface fire clay on condemned land may introduce evidence as to amount thereof and other factors showing that the leasehold had value as a part of market value of land as a whole. Gulf Interstate Gas Co. v. Garvin, 368 S.W.2d 309, 1963 Ky. LEXIS 40 ( Ky. 1963 ).

    Where landowners would lose the rental income from their property when the Commonwealth took possession thereof, but the interest on lien debts against the property would continue to accrue, it was mandatory in light of the magnitude of the sum involved, $976,145, that the award be placed at interest until the question of lien priorities could be resolved, and the failure of the trial court to do so constituted denial of due process and a clear abuse of discretion. Foster v. Sanders, 557 S.W.2d 205, 1977 Ky. App. LEXIS 827 (Ky. Ct. App. 1977).

    70.— — Public Accommodations.

    A city ordinance prohibiting discrimination in service in places of public accommodation by reason of race, color, religion, ancestry or national origin does not violate this section or Const., §§ 1, 2, 13 or 25. Commonwealth v. Beasy, 386 S.W.2d 444, 1965 Ky. LEXIS 502 ( Ky. 1965 ).

    71.— — Riparian.

    Where necessary for city to deepen pool from which water supply was taken by building dam across river, thereby submerging sand bars belonging to riparian owner, city was liable for damage for taking riparian owner’s private property. Natcher v. Bowling Green, 264 Ky. 584 , 95 S.W.2d 255, 1936 Ky. LEXIS 374 ( Ky. 1936 ).

    A power company which, under government license, constructed a power plant and completed a dam originally begun by federal government for purpose of aiding navigation was not liable to landowners for inundation because of raising level of water in river, over which government had control, since government alone was liable. Humpich's Trustees v. Louisville Gas & Electric Co., 269 Ky. 558 , 108 S.W.2d 509, 1937 Ky. LEXIS 640 ( Ky. 1937 ).

    72.—Public.
    73.— —Utilities.

    Where city and railroad agreed to eliminate grade crossings and contract provided railroad pay damages to third persons, a utility could not recover the expense of necessary relocation of its lines. Union Light, Heat & Power Co. v. Louisville & N. R. Co., 257 Ky. 761 , 79 S.W.2d 199, 1935 Ky. LEXIS 92 ( Ky. 1935 ).

    Circuit court properly denied an owner’s motion for an evidentiary hearing and entered an interlocutory judgment to a public utility because the utility had the right to condemn the easement in the owner’s real property and was permitted to take possession of the easement upon payment of the compensation awarded, there was no need for, nor a right to, another hearing, the utility did not act arbitrarily when it petitioned the court to condemn the modified, but overlapping, easement in order to avoid a small cemetery found along the original route, and the owner did not seek an injunction or post a supersedeas bond to stay enforcement of the interlocutory judgment. Allard v. Big Rivers Elec. Corp., 602 S.W.3d 800, 2020 Ky. App. LEXIS 61 (Ky. Ct. App. 2020).

    74.— Taking.

    Where action is not predicated on negligence but on taking of property by city for public purpose, owner of property may recover damages to property as well as actual taking of it without showing of negligence. Cumberland v. Central Baptist Church, 305 Ky. 283 , 203 S.W.2d 57, 1947 Ky. LEXIS 793 ( Ky. 1947 ).

    Although highway was constructed before plaintiff’s purchase of property, if improper maintenance of ditches and culvert by the State Highway Department occurred during plaintiff’s ownership or damage became apparent during that time and property was so damaged that to maintain its use would require considerable expense, there would be a taking of the property within constitutional provisions requiring payment for private property taken for public use. Commonwealth v. Kelley, 314 Ky. 581 , 236 S.W.2d 695, 1951 Ky. LEXIS 698 ( Ky. 1951 ).

    An interference with the legally protected use to which land has been dedicated which destroys that use or places thereon a substantial and additional burden is taking of property under this section. Commonwealth v. Kelley, 314 Ky. 581 , 236 S.W.2d 695, 1951 Ky. LEXIS 698 ( Ky. 1951 ). See Department of Highways v. Corey, 247 S.W.2d 389, 1952 Ky. LEXIS 701 ( Ky. 1952 ).

    Owner of bus station could not recover from the city for damages from emery dust blown on his property and equipment as result of city cleaning its nearby swimming pool by sandblasting, since such damages resulted from the negligent acts of a servant of the city while performing a governmental function and not from a taking of property without just compensation within the purview of this section. V. T. C. Lines, Inc. v. Harlan, 313 S.W.2d 573, 1957 Ky. LEXIS 15 ( Ky. 1957 ).

    The sale of land for delinquent taxes does not constitute a taking of private property for a public purpose without the payment of just compensation. Richardson v. Brunner, 356 S.W.2d 252, 1962 Ky. LEXIS 93 (Ky.), cert. denied, 371 U.S. 815, 83 S. Ct. 27, 9 L. Ed. 2d 56, 1962 U.S. LEXIS 575 (U.S. 1962).

    Loss of business to an adjoining property owner arising from construction of a highway was not compensable as a taking of property. Commonwealth, Dep't of Highways v. Fister, 373 S.W.2d 720, 1963 Ky. LEXIS 168 ( Ky. 1963 ).

    Where city had easement to construct sewer line across certain lots, the lot owner had the right to select the right of way so long as he acted reasonably and, if the city extended its activities beyond the acquired right of way to the damage of the servient owner, there was a taking within the purview of this section. Blair v. Pikeville, 384 S.W.2d 65, 1964 Ky. LEXIS 71 ( Ky. 1964 ).

    There was no legally compensable taking of landowner’s property where state merely erected signs welcoming public to appellees’ property and where landowner was not deprived of any valuable right. Commonwealth, Natural Resources & Environmental Protection Cabinet v. Stearns Coal & Lumber Co., 678 S.W.2d 378, 1984 Ky. LEXIS 204 ( Ky. 1984 ).

    There was no legally compensable taking of landowner’s property where state merely erected signs welcoming public to appellees’ property and where landowner was not deprived of any valuable right. Commonwealth, Natural Resources & Environmental Protection Cabinet v. Stearns Coal & Lumber Co., 678 S.W.2d 378, 1984 Ky. LEXIS 204 ( Ky. 1984 ).

    Developer could recover damages for inverse condemnation after the Kentucky Uninsured Employer’s Fund filed an invalid lien under KRS 342.770 , which resulted in termination of financing for a subdivision project. A compensable taking occurred, even though there was no legislative or regulatory action limiting the property’s use. Commonwealth v. County of Hardin Planning & Dev. Comm'n, 390 S.W.3d 840, 2012 Ky. App. LEXIS 240 (Ky. Ct. App. 2012).

    75.— — Annexation.

    The action of a planning and zoning commission which had the effect of incorporating land into a flood control ponding area was unconstitutional as the taking of property without due process of law and the appropriation of private property for public use without just compensation. Hager v. Louisville & Jefferson County Planning & Zoning Com., 261 S.W.2d 619, 1953 Ky. LEXIS 1026 ( Ky. 1953 ).

    76.— — Assessments.

    A street assessment is not an arbitrary and unconstitutional taking of property merely because the cost thereof exceeds the benefits therefrom. Barfield v. Gleason, 111 Ky. 491 , 63 S.W. 964, 23 Ky. L. Rptr. 128 , 1901 Ky. LEXIS 215 (Ky.), modified, 64 S.W. 959, 23 Ky. L. Rptr. 1102 , 1901 Ky. LEXIS 596 (Ky. Ct. App. 1901). See Louisville Steam Forge Co. v. Mehler, 112 Ky. 438 , 64 S.W. 396, 23 Ky. L. Rptr. 1335 , 1901 Ky. LEXIS 283 ( Ky. 1901 ).

    The previous assessment for a sewer constructed along one street fronting upon a corner lot does not make a subsequent assessment for a sewer along the other street fronting on the same lot invalid as a taking of private property without just compensation. Gesser v. McLane, 156 Ky. 743 , 161 S.W. 1118, 1914 Ky. LEXIS 182 ( Ky. 1914 ).

    77.— — Destruction.

    County was liable for destruction of a warehouse caused by diversion of a stream resulting from county permitting drift to accumulate against trestle supporting highway bridge. Letcher County v. Hogg, 209 Ky. 182 , 272 S.W. 423, 1925 Ky. LEXIS 457 ( Ky. 1925 ).

    Where city public improvement project resulted in the destruction of houses of adjacent property owners, the damages were in the amount of the value of the houses before their destruction, since they had no value at all at the time of the trial. Newport v. Rosing, 319 S.W.2d 852, 1958 Ky. LEXIS 174 ( Ky. 1958 ).

    78.— — Eminent Domain.

    The power of eminent domain, being in derogation of the right of the individual citizen to his property, should always be strictly construed, and there can be no such thing as a condemnation by estoppel. Dennis Long & Co. v. Louisville, 98 Ky. 67 , 32 S.W. 271, 17 Ky. L. Rptr. 642 , 1895 Ky. LEXIS 18 ( Ky. 1895 ).

    In the matter of right of eminent domain, the question of necessity is determined by the legislative department, state or municipal, while the question of public use is for the courts. Louisville & N. R. Co. v. Louisville, 131 Ky. 108 , 114 S.W. 743, 1908 Ky. LEXIS 115 ( Ky. 1908 ). See Henderson v. Lexington, 132 Ky. 390 , 111 S.W. 318, 33 Ky. L. Rptr. 703 , 1908 Ky. LEXIS 123 ( Ky. 1908 ); Baxter v. Louisville, 224 Ky. 604 , 6 S.W.2d 1074, 1928 Ky. LEXIS 654 ( Ky. 1928 ).

    This section refers only to property taken under eminent domain and not to property not taken but damaged by the negligence of the servants of a city in the course of discharging a governmental function. T. B. Jones & Co. v. Ferro Concrete Const. Co., 154 Ky. 47 , 156 S.W. 1060, 1913 Ky. LEXIS 25 ( Ky. 1913 ).

    KRS 416.230 and former law providing procedure for condemnation of oil and gas pipelines, do not contravene the provisions of either this section or Const. § 13. Barker v. Lannert, 310 Ky. 843 , 222 S.W.2d 659, 1949 Ky. LEXIS 1022 ( Ky. 1949 ).

    Provision of law that provided for condemnation of oil and gas pipelines that required an owner of land condemned for gas transmission line rights of way to pay cost of appeal if award of compensation was not increased thereon was unconstitutional under this section. Barker v. Lannert, 310 Ky. 843 , 222 S.W.2d 659, 1949 Ky. LEXIS 1022 ( Ky. 1949 ).

    The right of eminent domain may extend both to private property and property devoted to public use but may not be contracted away. Louisville v. Milton, 247 S.W.2d 975, 1952 Ky. LEXIS 725 ( Ky. 1952 ).

    University having acquired land by state-delegated power of eminent domain may constitutionally lease it for construction of a hospital where clergymen of one religion and other classes of individuals have preferred access. Craddock v. University of Louisville, 303 S.W.2d 548, 1957 Ky. LEXIS 267 ( Ky. 1957 ).

    Right of eminent domain is a sovereign right. Foley Constr. Co. v. Ward, 375 S.W.2d 392, 1963 Ky. LEXIS 190 ( Ky. 1963 ).

    In eminent domain proceedings a court will deny the right to take only where there has been gross abuse or manifest fraud. Commonwealth v. Cooksey, 948 S.W.2d 122, 1997 Ky. App. LEXIS 60 (Ky. Ct. App. 1997).

    In eminent domain proceedings there are no statutory provisions or other authority for allowing the taking but limiting damages to monetary sums, for bifurcation of the jury trial, or for deciding if fraud exists in the negotiations if the jury award exceeds the commissioners’ recommendation. Commonwealth v. Cooksey, 948 S.W.2d 122, 1997 Ky. App. LEXIS 60 (Ky. Ct. App. 1997).

    In an eminent domain case the trial court erred in not disposing of all the claims concerning the right to take before the jury trial aspect of the case and in allowing a claim for additional damages to go to the jury. Commonwealth v. Cooksey, 948 S.W.2d 122, 1997 Ky. App. LEXIS 60 (Ky. Ct. App. 1997).

    The eminent domain statutes make no provisions for the jury to consider bad faith or fraud; any allegation of bad faith or fraud would necessarily have to come before the judge who would decide if it affects the state’s right to take. Commonwealth v. Cooksey, 948 S.W.2d 122, 1997 Ky. App. LEXIS 60 (Ky. Ct. App. 1997).

    79.— — Improvements.

    While a city had a prescriptive right to maintain a ditch of certain capacity over plaintiff’s land, it was not authorized to enter the land for the purpose of doubling the capacity of the ditch. City of Owensboro v. Brocking, 87 S.W. 1086, 27 Ky. L. Rptr. 1086 , 1905 Ky. LEXIS 265 (Ky. Ct. App. 1905).

    A city cannot take an underground stream flowing under the lands of an individual for a public sewer without compensating him for the resulting injury. Kevil v. Princeton, 118 S.W. 363 ( Ky. 1909 ).

    Where city changes grade in improving a street and damages result but the improvement enhances the value of abutting property, the measure of damages the abutting property owner is entitled to is the difference between the fair market value before and after the improvement less the amount he has been assessed for the improvement. Board of Councilmen of Frankfort v. Brammell, 220 Ky. 132 , 294 S.W. 1076, 1927 Ky. LEXIS 509 ( Ky. 1927 ). See Lebanon v. Brents, 223 Ky. 377 , 3 S.W.2d 768, 1928 Ky. LEXIS 345 ( Ky. 1928 ); Hazard v. Combs, 229 Ky. 222 , 16 S.W.2d 1022, 1929 Ky. LEXIS 713 ( Ky. 1929 ).

    Owners may, without enabling act, sue county for taking property for public purposes by running sewage on or near it, thus reducing value of its use. Webster County v. Lutz, 234 Ky. 618 , 28 S.W.2d 966, 1930 Ky. LEXIS 241 ( Ky. 1930 ).

    Where owner protested against city taking land for street purposes but said he would not enjoin, and city expended money in making such improvement, owner could not recover possession but was limited to action for damages. Whitesburg v. Lewis, 255 Ky. 91 , 72 S.W.2d 1019, 1934 Ky. LEXIS 192 ( Ky. 1934 ).

    80.— — — Liens.

    A city, having constructed a sidewalk on defendant’s land without compensating him, had no lien upon the lot for the cost thereof even though it might by condemnation proceedings have acquired enough of the lot for the sidewalk and the sidewalk added to the value of the owner’s land. Clinton v. Franklin, 119 Ky. 143 , 83 S.W. 140, 26 Ky. L. Rptr. 1056 , 1904 Ky. LEXIS 155 ( Ky. 1904 ).

    81.— — Ingress and Egress.

    Damages to the remainder of the property from the construction and operation of a railroad and from the obstruction of the ingress to and egress from the property are recoverable. Elizabethtown L. & B. S. R. Co. v. Catlettsburg Water Co., 110 Ky. 175 , 61 S.W. 47, 22 Ky. L. Rptr. 1632 , 1901 Ky. LEXIS 75 ( Ky. 1901 ).

    An embankment four feet high in the highway in front of and parallel with plaintiff’s lots impeding his ingress and egress is a compensable injury. Yates v. Big Sandy R. Co., 89 S.W. 108, 28 Ky. L. Rptr. 206 (1905).

    This section applies to the building without right of a fill for a railroad on the land of another or the obstructing of the means of ingress and egress to and from his land. Hazard Dean Coal Co. v. McIntosh, 183 Ky. 316 , 209 S.W. 364, 1919 Ky. LEXIS 496 ( Ky. 1919 ).

    A change in location of right of way by a railroad subsequent to a preliminary survey, at which time owner acquired property, subjected the railroad company to damage to owner by interfering with ingress and egress, from smoke and cinders and other interference with enjoyment of the premises. Weitlauf v. Paducah & I. R. Co., 190 Ky. 143 , 226 S.W. 388, 1920 Ky. LEXIS 546 ( Ky. 1920 ).

    Right of continuing ingress and egress by condemnor of right of way over remainder of land is an element of damages to be considered in recovery of damages to remainder of land from taking of easement. Tennessee Gas & Transmission Co. v. Jackman, 311 Ky. 507 , 224 S.W.2d 660, 1949 Ky. LEXIS 1173 ( Ky. 1949 ).

    Retained right of ingress and egress under condemnation is a proper element to be considered in estimating difference in value of property immediately before and immediately after taking of easement, but damages sustained as a result of condemnor’s use of such right of way is not a proper element of incidental damages arising out of taking of the easement and any claim therefor must be covered in a special plea or in a suit against the contractor. Petroleum Exploration, Inc. v. Hensley, 313 Ky. 98 , 230 S.W.2d 464, 1950 Ky. LEXIS 822 ( Ky. 1950 ).

    Where condemnation of right of way may result in practical destruction of adjacent land for farming purposes, retention by condemnor of right to egress and ingress over all the realty and effect of condemnation on market value are proper elements of damage to each and every portion of a farm, regardless of how many tracts into which it may be divided and sold. Tennessee Gas Transmission Co. v. Igo, 314 Ky. 146 , 234 S.W.2d 149, 1950 Ky. LEXIS 1006 ( Ky. 1950 ).

    The right of egress and ingress over an entire tract granted in addition to an easement under condemnation is an encroachment on the entire tract, reducing the market value thereof, and constitutes damage which must be compensated. Tennessee Gas Transmission Co. v. Million, 314 Ky. 137 , 234 S.W.2d 152, 1950 Ky. LEXIS 1007 ( Ky. 1950 ).

    Although condemnor might not exercise right of ingress and egress over lands remaining after condemnation, it affected the market value of the property and should be considered as an element of damages. Kentucky Water Service Co. v. Gibbs, 239 S.W.2d 62, 1951 Ky. LEXIS 840 ( Ky. 1951 ).

    Where ordinary highway is converted to a limited access highway, cutting off a frontage of a large portion of the land from the new highway, the right of access of which the owner is deprived is not a matter to be considered in determining the damages to the remaining property so long as reasonable access is available. Commonwealth, Dep't of Highways v. Denny, 385 S.W.2d 776, 1964 Ky. LEXIS 163 ( Ky. 1964 ).

    Where a strip of land was taken to widen and reconstruct a public highway, damage to the value of abutting property resulting from the change of grade constituted a taking within the meaning of this section and § 13 of the Constitution, although the abutting owner could not have recovered damages for resulting loss of access unless he was denied reasonable access to the highway system. Commonwealth, Dep't of Highways v. Roberts, 496 S.W.2d 343, 1973 Ky. LEXIS 380 ( Ky. 1973 ).

    82.— — Injury.

    A railroad company which, in constructing a fill, interrupts the natural drainage of surface water and, after making a culvert through such a fill, fails to keep it open so as to flood the premises of the upper proprietor is guilty of actionable wrong and subject to damages. Stith v. Louisville & N. R. Co., 109 Ky. 168 , 58 S.W. 600, 22 Ky. L. Rptr. 653 , 1900 Ky. LEXIS 189 ( Ky. 1900 ). See Louisville & N. R. Co. v. Brinton, 109 Ky. 180 , 58 S.W. 604, 22 Ky. L. Rptr. 664 , 1900 Ky. LEXIS 190 ( Ky. 1900 ).

    Where a railroad throws smoke and cinders upon the property of another, it is an injury to the property under this section and compensation must be made; this also applies to trains standing or moving on a side track, if the property owner affected was the owner of the property when the side track was constructed. Chesapeake & O. R. Co. v. Blankenship, 158 Ky. 270 , 164 S.W. 943, 1914 Ky. LEXIS 604 ( Ky. 1914 ).

    83.— — Police Power.

    Law creating drainage district is an exercise of state’s police power and is not a violation of this section in denying a railroad company compensation for injuries or damages resulting therefrom. Louisville & N. R. Co. v. Board of Drainage Comm'rs, 183 Ky. 282 , 209 S.W. 15, 1919 Ky. LEXIS 466 ( Ky. 1919 ). See Taylor Coal Co. v. Board of Drainage Comm'rs, 189 Ky. 793 , 225 S.W. 368, 1919 Ky. LEXIS 583 ( Ky. 1919 ).

    Gas company whose underground lines were caused to sag and break by construction of a city sewer and who alleged no negligence or wrongful act in connection with such construction could not recover from the city under this section, since it had no absolute right in the street where its lines ran and its right was fully subject to the police power of the city in constructing the street. Louisville Gas & Electric Co. v. Commissioners of Sewerage, 236 Ky. 376 , 33 S.W.2d 344, 1930 Ky. LEXIS 776 ( Ky. 1930 ).

    City ordinance requiring that each dwelling be equipped with adequate, specified indoor plumbing was a valid, reasonable exercise of the police power and constituted neither a taking of property nor a violation of due process. Louisville v. Thompson, 339 S.W.2d 869, 1960 Ky. LEXIS 487 ( Ky. 1960 ).

    Regulations adopted by the county board of health providing for minimum standards for habitable housing were valid and reasonably necessary to protect the health and welfare of the inhabitants where they provided for “due process of law” and they were within the framework of the enabling legislation. Louisville & Jefferson County Board of Health v. Haunz, 451 S.W.2d 407, 1969 Ky. LEXIS 16 ( Ky. 1969 ).

    Requirement of KRS 350.060 that private individuals who own interests in surface estates from which the mineral had been severed must grant their consent, for a consideration, to surface mining on their land was unconstitutional since its effect was to change the relative legal rights and economic bargaining positions of such private parties under their contracts rather than to achieve any public purpose and thus could not be justified as a legitimate exercise of police power. Department for Natural Resources & Environmental Protection v. No. 8 Limited of Virginia, 528 S.W.2d 684, 1975 Ky. LEXIS 73 ( Ky. 1975 ).

    Since the county ordinance banning pit bull terriers because of their “inherently vicious and dangerous propensities” was reasonable and a valid exercise of the county’s police power, no compensation was due to their owners for the forfeiture and destruction of such dogs. Bess v. Bracken County Fiscal Court, 210 S.W.3d 177, 2006 Ky. App. LEXIS 347 (Ky. Ct. App. 2006).

    84.— — Public Ways.

    The closing of a street, alley or highway is a taking of property within this section. Henderson v. Lexington, 132 Ky. 390 , 111 S.W. 318, 33 Ky. L. Rptr. 703 , 1908 Ky. LEXIS 123 ( Ky. 1908 ).

    In the absence of a specific statute so empowering it, a county could not require a railroad to construct an overhead bridge over its right of way to carry a proposed public road without violating this section and Const., § 13, as well as United States Const., Amend. 14. Louisville & N. R. Co. v. Hopkins County, 153 Ky. 718 , 156 S.W. 379, 1913 Ky. LEXIS 907 ( Ky. 1913 ).

    The public road act of 1914, providing for establishment, use and maintenance of roads and providing for condemnation of land therefor, did not violate this section. Gratzer v. Gertisen, 181 Ky. 626 , 205 S.W. 782, 1918 Ky. LEXIS 599 ( Ky. 1918 ).

    City may authorize railroad company to construct tracks along its streets even though tracks encroach on part of street reserved for sidewalks. P. Bannon Pipe Co. v. Illinois C. R. Co., 203 Ky. 659 , 262 S.W. 1110, 1924 Ky. LEXIS 987 ( Ky. 1924 ).

    When changing grade of street does not interfere with owner’s right in property or his reasonable use of street, there is no actionable injury under this section. Covington v. Greenburg, 242 Ky. 797 , 47 S.W.2d 723, 1932 Ky. LEXIS 365 ( Ky. 1932 ).

    Where a strip of land was condemned for a road which was abandoned before building by the county but the property was not reconveyed to the original landowners and the road subsequently was built by interested citizens, there existed a taking of private property for public purposes within this section and the county was compelled to satisfy the landowners’ judgment. Knox Fiscal Court v. Phipps, 261 S.W.2d 441, 1953 Ky. LEXIS 1021 ( Ky. 1953 ).

    The removal of a tract from direct access to a United States highway may have resulted in the diminution of the value of the tract because it removed the tract from the federal highway community or influence, and such reduction in value is not a factor to be considered in determining the damages allowed therefor in a condemnation action. Commonwealth, Dep't of Highways v. Prewitt, 390 S.W.2d 898, 1965 Ky. LEXIS 381 ( Ky. 1965 ).

    85.— — — State Construction.

    Damage to property resulting from a change in water drainage caused by State Highway Department road construction amounted to a taking of property within purview of this section and Const., § 13, even though no new watershed was tapped by such construction. Commonwealth, Dep't of Highways v. Watson, 446 S.W.2d 294, 1969 Ky. LEXIS 119 ( Ky. 1969 ). See Keck v. Hafley, 237 S.W.2d 527, 1951 Ky. LEXIS 764 ( Ky. 1951 ).

    86.— — — — County Liability.

    Action could be maintained under this section for wrongful taking of property in connection with construction of state highway, but action would lie against county, which has duty to furnish right of way, and not against state or its Department of Highways. Department of Highways v. Parker, 306 Ky. 14 , 206 S.W.2d 73, 1947 Ky. LEXIS 952 ( Ky. 1947 ).

    Except for the provisions of KRS 177.060 , there could be no liability against a county for the taking of land or damages resulting from the construction of a highway by the state; therefore, the liability of the county must be measured by the law rather than this section and Const., § 13. Cantrell v. Pike County, 255 S.W.2d 988, 1953 Ky. LEXIS 690 ( Ky. 1953 ).

    Where State Highway Department lowered the grade in constructing highway over a dedicated street, adjoining property owners could not recover from county for destruction or impairment of their access to the street where no land was taken or other injury resulted. Cantrell v. Pike County, 255 S.W.2d 988, 1953 Ky. LEXIS 690 ( Ky. 1953 ).

    Under Const., § 13, this section and subsection (1) of KRS 177.060 , which provides that cost of acquiring right of way for primary road purposes and all damages incurred thereby shall be paid by county, and not State Highway Department or contractor, is liable for damages to adjacent land due to removal of lateral support. Commonwealth, Dep't of Highways v. Thacker, 384 S.W.2d 79, 1964 Ky. LEXIS 75 ( Ky. 1964 ).

    87.— — — Traffic Diversion.

    Where change in route of road results merely in personal inconvenience or injury, such as to trade or business, by diverting traffic, or merely compels a more circuitous route of access, county is not required to compensate property owners. Cranley v. Boyd County, 266 Ky. 569 , 99 S.W.2d 737, 1936 Ky. LEXIS 710 ( Ky. 1936 ), overruled, Department of Highways v. Jackson, 302 S.W.2d 373, 1957 Ky. LEXIS 189 ( Ky. 1957 ).

    Closing of a public highway abutting plaintiff’s property is not a taking of private property without compensation unless ingress or egress is unreasonably blocked; mere diversion of traffic is insufficient. De Rossette v. Jefferson County, 288 Ky. 407 , 156 S.W.2d 165, 1941 Ky. LEXIS 106 ( Ky. 1941 ).

    Circuity of travel resulting from placement of highway was improper factor to be considered in determining the value of land taken. Commonwealth, Dep't of Highways v. Fancher, 390 S.W.2d 164, 1965 Ky. LEXIS 342 ( Ky. 1965 ).

    In condemnation proceedings, regardless of how lucrative a condemnee’s business is, if it depends upon the flow of traffic by his property, he is entitled to no recovery for loss of business or value of property by virtue of diversion of such traffic along another route. Commonwealth, Dep't of Highways v. York, 390 S.W.2d 190, 1965 Ky. LEXIS 348 ( Ky. 1965 ).

    88.— — Trespass.

    A petition alleging that county constructed a highway across plaintiff’s land without acquiring right of way and that contractor committed trespass in constructing it was a suit under this section and not a suit for recovery for trespass by the contractor for which the county would not be liable. McDonald v. Powell County, 199 Ky. 300 , 250 S.W. 1007, 1923 Ky. LEXIS 830 ( Ky. 1923 ).

    When land was taken by the county to widen roadway without condemnation proceedings or compensation, owner could recover against county for value of property taken, his action being treated as an appeal from assessment legally made in condemnation proceedings, not as an action for trespass. Harlan County v. Cole, 218 Ky. 819 , 292 S.W. 501, 1927 Ky. LEXIS 263 ( Ky. 1927 ). See Letcher County v. Hogg, 209 Ky. 182 , 272 S.W. 423, 1925 Ky. LEXIS 457 ( Ky. 1925 ); Webster County v. Lutz, 234 Ky. 618 , 28 S.W.2d 966, 1930 Ky. LEXIS 241 ( Ky. 1930 ); Hazard v. Eversole, 237 Ky. 242 , 35 S.W.2d 313, 1931 Ky. LEXIS 593 ( Ky. 1931 ); Mercer County v. Ballinger, 238 Ky. 120 , 36 S.W.2d 856, 1931 Ky. LEXIS 189 ( Ky. 1931 ); Jefferson County v. Bischoff, 238 Ky. 176 , 37 S.W.2d 24, 1931 Ky. LEXIS 206 (Ky. 1931); Breathitt County v. Hudson, 265 Ky. 21 , 95 S.W.2d 1132, 1936 Ky. LEXIS 450 ( Ky. 1936 ); Leslie County v. Davidson, 270 Ky. 705 , 110 S.W.2d 652, 1937 Ky. LEXIS 145 ( Ky. 1937 ).

    Damages for unauthorized transportation of coal from adjacent tract across plaintiff’s land was of a temporary nature and not to be measured as in the case of permanent taking of the land. Rose v. Martin, 310 Ky. 193 , 220 S.W.2d 385, 1949 Ky. LEXIS 875 ( Ky. 1949 ).

    89.—No Taking.

    The requirement that privately owned sewage treatment facilities connect into comprehensive sewer system did not constitute a taking for which just compensation had to be paid; private sewage facilities had no reasonable expectation of continuing indefinitely to sell sewer services to certain customers. Monticello Co. v. Natural Resources & Envtl. Protection Cabinet, 864 S.W.2d 921, 1993 Ky. App. LEXIS 65 (Ky. Ct. App. 1993).

    Court of Appeals holds that the statutory provisions set forth in Ky. Rev. Stat. Ann. ch. 134 do not constitute a taking under either the United States Constitution or the Kentucky Constitution. Farmers Nat'l Bank v. Commonwealth, 486 S.W.3d 872, 2015 Ky. App. LEXIS 76 (Ky. Ct. App. 2015).

    State agency was entitled to summary judgment on a property owner's claims of unconstitutional taking without compensation and inverse condemnation because the agency possessed a drainage easement on a sinkhole in the owner's land and its contractor's act of dumping inert debris in the sinkhole was reasonably associated with the maintenance of that easement. S. Cent. Ky. Props. v. DOT, 510 S.W.3d 850, 2017 Ky. App. LEXIS 20 (Ky. Ct. App. 2017).

    90.— Workers’ Compensation.

    A claimant was not denied his constitutional rights under Article I, § 10 of the United States Constitution or §§ 13, 19, or 242 of the Kentucky Constitution when he was not allowed to reopen an original workers’ compensation award within two (2) years of entry, notwithstanding that KRS 342.125 , as it existed on the date of his injury, would have allowed such reopening, since reopening is a remedy for an increase in disability that occurs after an award is entered and any right that a worker has to be compensated for a post-award increase in disability is inchoate until such time as he sustains a post-award change of occupational disability, at which point the right becomes vested. McCool v. Martin Nursery & Landscaping, Inc., 43 S.W.3d 256, 2001 Ky. LEXIS 60 ( Ky. 2001 ).

    91.Evidence.
    92.— Appraisers.

    Where landowner, in condemnation proceedings, did not object to value placed on land by appraisers, evidence that condemnor had supplemented the statutory fees of the appraisers and had informed them of that fact was not prejudicial error; however, had the landowner objected to the appraisal, on appeal the evidence of the supplemental compensation to the appraisers would have required reversal. Tennessee Gas Transmission Co. v. Million, 314 Ky. 137 , 234 S.W.2d 152, 1950 Ky. LEXIS 1007 ( Ky. 1950 ).

    93.— Condemnors.
    94.— — Court-appointed.

    Commissioners appointed by the court to condemn property should not be used as witnesses in a suit for damages resulting from the condemnation. Tennessee Gas Transmission Co. v. Million, 314 Ky. 137 , 234 S.W.2d 152, 1950 Ky. LEXIS 1007 ( Ky. 1950 ).

    95.— — Expenses.

    Where condemned farmland was site of farm buildings and remaining land was not suitable location for buildings without filling and it did not appear owners had right to remove the buildings, admission of evidence by the condemnor as to cost of moving the buildings to reduce amount of award was prejudicial error. Birdsong v. Commonwealth, Dep't of Highways, 336 S.W.2d 42, 1960 Ky. LEXIS 315 ( Ky. 1960 ).

    96.— Damages.

    In action to condemn a right of way, testimony of witnesses respecting damages to other farms because of similar construction, though witnesses did not testify expressly as to the similarity of the lands, was competent. Tennessee Gas Transmission Co. v. Igo, 314 Ky. 146 , 234 S.W.2d 149, 1950 Ky. LEXIS 1006 ( Ky. 1950 ).

    Taking damages and resulting damages were not separable, and evidence of damages was to go only to difference in market value of property taken before and after the taking. Milby v. Louisville Gas & Electric Co., 375 S.W.2d 237, 1963 Ky. LEXIS 183 ( Ky. 1963 ).

    Where land had 4.17 million tons of coal beneath it, which the condemnees’ expert opined could be mined economically in 10 to 20 years, the jury was entitled to accept this testimony, though the condemnor’s experts disputed it; therefore, the jury’s finding that the “highest and best use” of the land was as a coal reserve was supported by the evidence, and the $ 67,000 condemnation award was not excessive. Big Rivers Elec. Corp. v. Barnes, 147 S.W.3d 753, 2004 Ky. App. LEXIS 85 (Ky. Ct. App. 2004).

    97.— Fear of Injury.

    Exclusion of testimony in condemnation case that fear of danger from high voltage line lessened value of property was not prejudicial where condemnee failed to establish: (1) the basis in reason and experience for such fear; (2) satisfactory showing that the fear entered into the calculations of substantial number of persons buying or selling similar property; and (3) the depreciation of market value by reason of the fear. Witbeck v. Big Rivers Rural Electric Cooperative Corp., 412 S.W.2d 265, 1967 Ky. LEXIS 425 ( Ky. 1967 ), overruled, Commonwealth, Dep't of Highways v. Stephens Estate, 502 S.W.2d 71, 1973 Ky. LEXIS 67 ( Ky. 1973 ).

    98.— Hearsay.

    In condemnation action for damages to realty adjacent to right of way, where jury returned detailed report of its calculations and method of arriving at its findings which showed findings were not based on hearsay testimony as to value of realty for building sites, such testimony was harmless but, on new trial, such testimony should be excluded. Tennessee Gas Transmission Co. v. Million, 314 Ky. 137 , 234 S.W.2d 152, 1950 Ky. LEXIS 1007 ( Ky. 1950 ).

    99.— Property Value.

    In condemnation proceedings involving farmland, testimony as to value of realty condemned for building sites, in the absence of a showing of a market or demand therefor, is inadmissible. Tennessee Gas Transmission Co. v. Million, 314 Ky. 137 , 234 S.W.2d 152, 1950 Ky. LEXIS 1007 ( Ky. 1950 ).

    Where witness, testifying as to value of realty condemned, admitted he was not familiar with realty in question, his testimony was not excludable as a matter of law. Tennessee Gas Transmission Co. v. Million, 314 Ky. 137 , 234 S.W.2d 152, 1950 Ky. LEXIS 1007 ( Ky. 1950 ).

    In condemnation proceedings both parties may offer evidence descriptive of the property, its physical characteristics, its location and surroundings, and other pertinent factors bearing on its value. East Kentucky Rural Electric Cooperative Corp. v. Smith, 310 S.W.2d 535, 1958 Ky. LEXIS 395 ( Ky. 1958 ).

    The valuation placed on condemned property by competent witnesses is sufficient in itself without reference to genuinely comparable sales which so frequently are not available. Commonwealth, Dep't of Highways v. Vaughn, 390 S.W.2d 146, 1965 Ky. LEXIS 333 ( Ky. 1965 ).

    In condemnation proceeding involving a synagogue, evidence of replacement value was properly admissible as related to the market value which is the standard of just compensation under this section. Commonwealth, Dep't of Highways v. Congregation Anshei S'Fard, 390 S.W.2d 454, 1965 Ky. LEXIS 353 ( Ky. 1965 ).

    Testimony as to value of property for commercial purposes in event of rezoning was not prejudicial where court made it clear that the probable reclassification in the near future could be considered only as a factor bearing on the value of the property immediately after the taking. Chitwood v. Commonwealth, Dep't of Highways, 391 S.W.2d 381, 1965 Ky. LEXIS 307 ( Ky. 1965 ).

    When the Department of Highways condemned crossing easements across a railroad, the railroad failed to present any competent evidence as to a diminution in the value of its right of way, as the evidence it did present was based on the non-compensable cost of operating the crossings and the speculative costs of litigation related to future accidents at the crossings; thus, in spite of the Ky. Const., § 242 requirement that damages in condemnation cases be determined by a jury, as the railroad created no valuation issue for a jury to determine, the highway department was entitled to summary judgment. Commonwealth v. R.J. Corman R.R. Company/Memphis Line, 116 S.W.3d 488, 2003 Ky. LEXIS 211 ( Ky. 2003 ).

    In a condemnation action, the court of appeals usurped the jury’s role by presuming to weigh the evidence and concluding that, contrary to the jury’s determination, the evidence was insufficient to support a finding that the property owner’s property was physically adaptable for industrial uses. The owner’s engineer was duly qualified by training and long experience to form an opinion about the amenability of the road and its sharp turn to tractor-trailer traffic, and his testimony, though not supported by computer model representations, was supported by several real world examples and by the testimony of the owner that she was aware from living in the area for over forty years that it was possible for trucks to negotiate the road. Baston v. County of Kenton ex rel. Kenton County Airport Bd., 319 S.W.3d 401, 2010 Ky. LEXIS 211 ( Ky. 2010 ).

    100.— — Estimates.

    Where estimate of witnesses as to value of land taken in condemnation proceeding is based on both proper and improper factors, it is not necessarily subject to a motion to strike. Commonwealth, Dep't of Highways v. York, 390 S.W.2d 190, 1965 Ky. LEXIS 348 ( Ky. 1965 ).

    Witnesses, after stating estimates of before and after values of property, should not be permitted to detail the amounts calculated for the various damage factors used in arriving at such value. Commonwealth, Dep't of Highways v. Hopson, 396 S.W.2d 805, 1965 Ky. LEXIS 135 ( Ky. 1965 ).

    101.— Trespass.

    In action to condemn an easement for construction of a reservoir, evidence that fishermen using reservoir might trespass upon owner’s remaining property was speculative and should have been excluded but was not so prejudicial as to require reversal. Kentucky Water Service Co. v. Gibbs, 239 S.W.2d 62, 1951 Ky. LEXIS 840 ( Ky. 1951 ).

    102.— Witnesses.

    In condemnation proceeding landowners’ witnesses who testified they were familiar with local values and comparable sales were qualified. Commonwealth, Dep't of Highways v. Darnell, 400 S.W.2d 230, 1966 Ky. LEXIS 430 ( Ky. 1966 ).

    Witnesses who were not qualified appraisers but had knowledge of condemned land and were experienced in land sales in community qualified to give valuation testimony. Commonwealth, Dep't of Highways v. Musick, 400 S.W.2d 513, 1966 Ky. LEXIS 436 ( Ky. 1966 ).

    Despite the general rule that untrained persons may not give opinion evidence concerning matters requiring specific expertise and training, lay witnesses are competent to testify from their own observations as to the difference in the flow of drainage water before and after highway construction in reverse condemnation suit. Commonwealth, Dep't of Highways v. Watson, 446 S.W.2d 294, 1969 Ky. LEXIS 119 ( Ky. 1969 ).

    103.Appeal.

    Where a corporation having the power to condemn takes land for its use without making just compensation therefor, the owner may sue for damages and his suit will be treated as an appeal from a condemnation judgment of the county court. Kentucky & West Virginia Power Co. v. Vanhoose, 295 Ky. 339 , 174 S.W.2d 538, 1943 Ky. LEXIS 249 ( Ky. 1943 ).

    In condemnation proceeding, where landowners appealed from commissioner’s award and county court increased award, which was reduced on further award to Circuit Court, costs were properly assessed against the condemnor. East Kentucky Rural Electric Cooperative Corp. v. Burke, 301 S.W.2d 892, 1957 Ky. LEXIS 490 ( Ky. 1957 ). See Barker v. Lannert, 310 Ky. 843 , 222 S.W.2d 659, 1949 Ky. LEXIS 1022 ( Ky. 1949 ).

    Where the condemnees are the unsuccessful parties in an appeal to the Court of Appeals, the imposition of the costs of appeal on them does not constitute any violation of this section or Const., § 13. Commonwealth, Dep't of Highways v. Fister, 376 S.W.2d 543, 1964 Ky. LEXIS 460 ( Ky. 1964 ).

    104.— Damages.

    Where damages awarded on appeal to Circuit Court were less than amount paid to landowner pursuant to county court judgment, condemnor was entitled to interest on the amount of the excess. Sloan v. Commonwealth, Dep't of Highways, 405 S.W.2d 294, 1966 Ky. LEXIS 253 ( Ky. 1966 ).

    105.— — Jury Trial.

    Under this section and Const., § 248, county court may empanel a jury of 12 men in a condemnation proceeding. Louisville & N. R. Co. v. Lang, 160 Ky. 702 , 170 S.W. 2, 1914 Ky. LEXIS 512 ( Ky. 1914 ).

    Damages in condemnation proceedings must be assessed by a jury of 12 and an instruction under Const., § 248 authorizing recovery if nine or more agreed was erroneous. Hazard v. Combs, 213 Ky. 750 , 281 S.W. 993, 1926 Ky. LEXIS 613 ( Ky. 1926 ). See Harlan County v. Cole, 218 Ky. 819 , 292 S.W. 501, 1927 Ky. LEXIS 263 ( Ky. 1927 ); Franklin County v. Bailey, 250 Ky. 528 , 63 S.W.2d 622, 1933 Ky. LEXIS 739 ( Ky. 1933 ).

    In condemnation cases, it is not violative of the constitutional provision which requires that a jury shall determine damages according to the course of the common law to permit women to serve on such juries, although under the common law they were not permitted to serve, since the phrase “according to the course of the common law” modifies the word “determined” and does not refer to the manner in which the jury shall be selected. Louisville & N. R. Co. v. Kelly, 302 Ky. 249 , 194 S.W.2d 503, 1946 Ky. LEXIS 648 ( Ky. 1946 ).

    Requirement of this section that jury trial be according to the course of the common law may be waived by either litigant. Parsley v. Madison, 302 Ky. 467 , 194 S.W.2d 993, 1946 Ky. LEXIS 698 ( Ky. 1946 ).

    Action against State Highway Department for injury to land due to overflow of water allegedly caused by negligent management and operation of highway and culverts was basically for payment for taking private property for public use and not action in trespass and required unanimous jury verdict. Commonwealth v. Kelley, 314 Ky. 581 , 236 S.W.2d 695, 1951 Ky. LEXIS 698 ( Ky. 1951 ).

    Where, by constructing highway, State Highway Department diverted creek bed, suit by property owner for damages resulting from inundation of his land will be treated as an appeal to the Circuit Court from a condemnation assessment and, under this section, damages must be determined by a 12-man jury. Keck v. Hafley, 237 S.W.2d 527, 1951 Ky. LEXIS 764 ( Ky. 1951 ).

    Excluding cases involving only temporary construction easements, the only measure of damages in condemnation proceedings is the difference in fair market value before and after the taking, and the jury may not be permitted to fix separately taking and resulting damages, even though the total of such separate damages is no more than the diminution in fair market value. Commonwealth, Dep't of Highways v. Sherrod, 367 S.W.2d 844, 1963 Ky. LEXIS 33 ( Ky. 1963 ).

    KRS 177.083 (repealed), 177.087 (repealed), 416.020 (repealed) and 416.050 (repealed), insofar as they required a jury to fix separately taking damages and resulting damages in condemnation cases, were unconstitutional under this section and Const., § 13. Commonwealth, Dep't of Highways v. Sherrod, 367 S.W.2d 844, 1963 Ky. LEXIS 33 ( Ky. 1963 ).

    The court should not intrude on the jury’s award under this section unless the amount allowed is shockingly excessive or obviously based on improper factors. Commonwealth, Dep't of Highways v. Vaughn, 390 S.W.2d 146, 1965 Ky. LEXIS 333 ( Ky. 1965 ).

    Where a jury was constituted as required by this section, the verdict could not be reversed unless it could be shown that prejudice resulted because of the failure of the trial court to strike the biased juror. Commonwealth, Dep't of Highways v. Ginsburg, 516 S.W.2d 868, 1974 Ky. LEXIS 182 ( Ky. 1974 ).

    The right to jury trial under this section is a personal right and not a mandate to the court and such right can be waived. Equitable Life Assurance Soc. v. Taylor, 637 S.W.2d 663, 1982 Ky. App. LEXIS 235 (Ky. Ct. App. 1982), overruled in part, Louisville & Jefferson County Metro. Sewer Dist. v. Bischoff, 248 S.W.3d 533, 2007 Ky. LEXIS 265 ( Ky. 2007 ).

    Where order stating that trial would be before court reflected preparation by defendants, but it also clearly recited that it was upon plaintiff’s motion and bore the “Have Seen” signature of plaintiff’s counsel, and where no challenge to the wording of the order was made and plaintiff participated without objection in the hearing before the court on the damage matter, plaintiff affirmatively waived its right to jury determination of damages. Equitable Life Assurance Soc. v. Taylor, 637 S.W.2d 663, 1982 Ky. App. LEXIS 235 (Ky. Ct. App. 1982), overruled in part, Louisville & Jefferson County Metro. Sewer Dist. v. Bischoff, 248 S.W.3d 533, 2007 Ky. LEXIS 265 ( Ky. 2007 ).

    Railroad that sought damages for the taking of easements at certain railroad crossings was entitled to have the amount of damages determined by a jury; however, there had to be competent evidence of diminution in the value as a result of the acquisition in order for it to constitute a compensable taking. R. J. Corman R.R. Co./Memphis Line v. Commonwealth, 2001 Ky. App. LEXIS 1259 (Ky. Ct. App. Dec. 14, 2001), rev'd, 116 S.W.3d 488, 2003 Ky. LEXIS 211 ( Ky. 2003 ).

    Failure to demand a jury trial under CR 38.02 did not constitute an affirmative waiver of the mandate for a jury trial in eminent domain cases under either Ky. Const., § 242 or KRS 416.620(1); a trial court erred in denying an owner’s request for a jury trial on the ground that the owner’s demand was untimely under CR 38.02. Bischoff v. Louisville & Jefferson County Metro. Sewer Dist., 2005 Ky. App. LEXIS 267 (Ky. Ct. App. Dec. 16, 2005), rev'd, 248 S.W.3d 533, 2007 Ky. LEXIS 265 ( Ky. 2007 ).

    Since KRS 416.650 provides that all proceedings under the eminent domain statutes are governed by the Kentucky Rules of Civil Procedure except where those statutes specifically or by necessary implication provide otherwise, CR 38.02 applies to eminent domain proceedings and requires a party to an eminent domain case to obtain a trial by jury by serving a timely demand, failing which, the party waives the right to a jury trial under CR 38.04. Louisville & Jefferson County Metro. Sewer Dist. v. Bischoff, 248 S.W.3d 533, 2007 Ky. LEXIS 265 ( Ky. 2007 ).

    The right to a jury trial under either Ky. Const. § 7 or Ky. Const. § 242 is fundamental, but neither is more so than the other. Louisville & Jefferson County Metro. Sewer Dist. v. Bischoff, 248 S.W.3d 533, 2007 Ky. LEXIS 265 ( Ky. 2007 ).

    106.— Right.

    KRS ch. 267 did not violate this section by denying the right of appeal from the preliminary assessment of damages in condemnation proceedings or the right to a jury trial on such appeal. Williams v. Wedding, 165 Ky. 361 , 176 S.W. 1176, 1915 Ky. LEXIS 531 ( Ky. 1915 ).

    Cited:

    Tolle v. Owensboro, F. of R. & G. R. R. Co., 111 Ky. 623 , 23 Ky. L. Rptr. 864 , 64 S.W. 455, 1901 Ky. LEXIS 232 ( Ky. 1901 ); McHugh v. Louisville Bridge Co., 65 S.W. 456, 1901 Ky. LEXIS 367 , 23 Ky. L. Rptr. 1546 (1901); Board of Park Comm’rs v. Prinz, 127 Ky. 460 , 32 Ky. L. Rptr. 359 , 105 S.W. 948, 1907 Ky. LEXIS 153 ( Ky. 1907 ); Nell v. Power, 107 S.W. 694 (1908); Hall v. Leeper, 121 S.W. 683 (1909); Johnson v. Marcum, 152 Ky. 629 , 153 S.W. 959, 1913 Ky. LEXIS 704 ( Ky. 1913 ); Rowe v. Commonwealth, 153 Ky. 338 , 155 S.W. 753, 1913 Ky. LEXIS 8 44 ( Ky. 1913 ); Kenton Water Co. v. Covington, 156 Ky. 569 , 161 S.W. 988, 1913 Ky. LEXIS 489 (Ky. 1913); Jewell Tabacco Warehouse Co. v. Kemper, 206 Ky. 667 , 268 S.W. 324, 1925 Ky. LEXIS 1023 ( Ky. 1925 ); Goose Creek Lumber Co. v. White, 219 Ky. 739 , 294 S.W. 494, 1927 Ky. LEXIS 450 ( Ky. 1927 ); Harlan v. Peaveley, 224 Ky. 338 , 6 S.W.2d 270, 1928 Ky. LEXIS 594 ( Ky. 1928 ); Fowler v. Obier, 224 Ky. 742 , 7 S.W.2d 219, 1928 Ky. LEXIS 677 ( Ky. 1928 ); Wells v. West, 228 Ky. 737 , 15 S.W.2d 531, 1928 Ky. LEXIS 8 (Ky. 1928); Leslie County v. Hart, 232 Ky. 24 , 22 S.W.2d 278, 1929 Ky. LEXIS 382 ( Ky. 1929 ); Fischer v. James A. Diskin Co., 247 Ky. 694 , 57 S.W.2d 538, 1933 Ky. LEXIS 436 ( Ky. 1933 ); Bard v. Board of Drainage Comm’rs, 274 Ky. 491 , 118 S.W.2d 1013, 1938 Ky. LEXIS 292 ( Ky. 1938 ); Carr v. Jefferson County, 275 Ky. 685 , 122 S.W.2d 482, 1938 Ky. LEXIS 475 ( Ky. 1938 ); Henderson v. Codell Const. Co., 284 Ky. 214 , 144 S.W.2d 218, 1940 Ky. LEXIS 466 ( Ky. 1940 ); Douthitt v. Covington, 284 Ky. 382 , 144 S.W.2d 1025, 1940 Ky. LEXIS 502 ( Ky. 1940 ); Wallace v. Laurel County Bd. of Education, 287 Ky. 454 , 153 S.W.2d 915, 1941 Ky. LEXIS 556 ( Ky. 1941 ); Commonwealth v. Tate, 297 Ky. 826 , 181 S.W.2d 418, 1944 Ky. LEXIS 820 ( Ky. 1944 ); Pursifull v. Pineville, 298 Ky. 453 , 183 S.W.2d 32, 1944 Ky. LEXIS 921 ( Ky. 1944 ); Lehman v. Williams, 301 Ky. 729 , 193 S.W.2d 161, 1946 Ky. LEXIS 563 ( Ky. 1946 ); Wright v. Flood, 304 Ky. 122 , 200 S.W.2d 117, 1947 Ky. LEXIS 594 ( Ky. 1947 ); Tennessee Gas & Transmission Co. v. Lawrence, 314 Ky. 63 , 234 S.W.2d 311, 1950 Ky. LEXIS 1031 ( Ky. 1950 ); Maggard v. Marcum, 252 S.W.2d 41, 1952 Ky. LEXIS 977 ( Ky. 1952 ); Commonwealth v. Givens, 299 S.W.2d 799, 1957 Ky. LEXIS 428 ( Ky. 1957 ); Commonwealth v. Clarke, 340 S.W.2d 442, 1960 Ky. LEXIS 33 ( Ky. 1960 ); Commonwealth, Dep’t of Highways v. Chinn, 350 S.W.2d 622, 1961 Ky. LEXIS 116 ( Ky. 1961 ); Winchester v. Spencer, 352 S.W.2d 929, 1961 Ky. LEXIS 217 ( Ky. 1961 ); Commonwealth ex rel. Kentucky R. Com. v. Illinois C. R. Co., 358 S.W.2d 533, 1962 Ky. LEXIS 194 ( Ky. 1962 ); Commonwealth, Dep’t of Highways v. Carson, 398 S.W.2d 706, 1966 Ky. LEXIS 509 ( Ky. 1966 ); Adams, Inc. v. Louisville & Jefferson County Board of Health, 439 S.W.2d 586, 1969 Ky. LEXIS 374 ( Ky. 1969 ); Commonwealth ex rel. Stephens v. South Cent. Bell Tel. Co., 545 S.W.2d 927, 1976 Ky. LEXIS 142 ( Ky. 1976 ); Holladay v. Peabody Coal Co., 560 S.W.2d 550, 1977 Ky. LEXIS 570 ( Ky. 1977 ); Rabourn v. Commonwealth, 2006 Ky. App. LEXIS 216 (Ky. Ct. App. 2006).

    Opinions of Attorney General.

    An interstate cooperative agreement could legally provide that the Tennessee watershed district would acquire such easements or flowage rights on Tennessee lands from Tennessee landowners whose lands might be flooded as a result of the construction and operation of two (2) Kentucky dams, subject to the Tennessee district’s being reimbursed, by the Kentucky district, for its expenses in acquiring, recording and transferring such rights to the Kentucky district if such agreement complied with the requirements of KRS 65.250 , 65.260 and 65.290 . OAG 69-204 .

    Inasmuch as the alleged economic loss occasioned by the building of an interstate bridge is not a “taking” or is not a trespass as to be equivalent to a “taking,” the purchase of a ferry for the sole purpose of protecting the owner from financial loss would not be a proper implementation of the eminent domain concept. OAG 76-308 .

    The fiscal court can “establish” a road or strip of land as a part of the county road system prior to obtaining easements or title from the owners. However, the fiscal court cannot start road work on the land in question until the owner has received or been tendered compensation; the fiscal court must either pay the owners for the land to be used for the county road or must tender the compensation prior to the county’s going on the land and beginning the road work. OAG 83-125 .

    Research References and Practice Aids

    Cross-References.

    Eminent domain, KRS ch. 416.

    Private property not to be taken without compensation, Const., § 13.

    Kentucky Law Journal.

    Schneider, Strip Mining in Kentucky, 59 Ky. L.J. 652 (1971).

    Note, Historic Preservation — An Individual’s Perspective, 67 Ky. L.J. 1018 (1978-1979).

    Kentucky Law Survey, Grise, Torts, 71 Ky. L.J. 307 (1982-83).

    Leathers, Rethinking Jurisdiction and Notice in Kentucky, 71 Ky. L.J. 755 (1982-83).

    Notes, Private Property and Environmental Regulatory Takings: A Forward Look into Rights and Remedies, as Illustrated by an Excursion into the Wild Rivers Act of Kentucky, 73 Ky. L.J. 999 (1984-85).

    Lewis, Jural Rights under Kentucky’s Constitution: Realities Grounded in Myth, 80 Ky. L.J. 953 (1992).

    § 243. Child labor.

    The General Assembly shall, by law, fix the minimum ages at which children may be employed in places dangerous to life or health, or injurious to morals; and shall provide adequate penalties for violations of such law.

    NOTES TO DECISIONS

    1.Injury.

    A policy of special protection of minors from injury is reflected in the law of the state. Pike v. George, 434 S.W.2d 626, 1968 Ky. LEXIS 235 ( Ky. 1968 ).

    Research References and Practice Aids

    Cross-References.

    Child labor, KRS ch. 339.

    Kentucky Law Journal.

    Snyder and Irland, The Separation of Governmental Powers Under the Constitution of Kentucky: A Legal and Historical Analysis of L.R.C. v. Brown, 73 Ky. L.J. 165 (1984-85).

    § 244. Wage-earners in industry or of corporations to be paid in money.

    All wage-earners in this State employed in factories, mines, workshops, or by corporations, shall be paid for their labor in lawful money. The General Assembly shall prescribe adequate penalties for violations of this section.

    NOTES TO DECISIONS

    1.Construction.

    This section is self-executing. Barker v. Stearns Coal & Lumber Co., 291 Ky. 184 , 163 S.W.2d 466, 1942 Ky. LEXIS 205 ( Ky. 1942 ).

    2.Checks.

    A redemption by the employer at bi-monthly paydays of checks issued to employees for services at a reduction of ten per cent of their face value violates this section. Kentucky Coal Mining Co. v. Mattingly, 133 Ky. 526 , 118 S.W. 350, 1909 Ky. LEXIS 201 ( Ky. 1909 ).

    3.Contracts.

    A contract whereby an employer agreed that if merchant would buy and keep in stock a general line of merchandise employer would accept all orders drawn on it by employees and pay merchant gross amount of such orders at end of each month and would try to influence employees to give merchant entire trade was unenforceable under this section. Hudnall v. Watts Steel & Iron Syndicate, 49 S.W. 21, 20 Ky. L. Rptr. 1211 , 1899 Ky. LEXIS 406 (Ky. Ct. App. 1899).

    4.Coupons.

    An employee to whom merchandise coupon books have been issued by a mining corporation before his wages become due and who is entitled to redeem such coupons in cash when wages are payable, under this section can assign such coupons and right to obtain cash thereon, notwithstanding a provision contained therein that they are not transferable. Pond Creek Coal Co. v. Riley Lester & Bros., 171 Ky. 811 , 188 S.W. 907, 1916 Ky. LEXIS 440 ( Ky. 1916 ).

    5.Credit.

    Extension of credit by employer to employee based on anticipated service and contingent security is not payment of wages but is a matter of contract between parties to which this section does not apply. Barker v. Stearns Coal & Lumber Co., 287 Ky. 340 , 152 S.W.2d 953, 1941 Ky. LEXIS 534 ( Ky. 1941 ).

    This section, while not prohibiting extension of credit based upon wages either earned or unearned or giving of tokens evidencing such credit, requires that whatever is given for wages earned must be redeemable and payable in cash without restriction or condition, and hence must be freely assignable or transferable to a third party. Barker v. Stearns Coal & Lumber Co., 287 Ky. 340 , 152 S.W.2d 953, 1941 Ky. LEXIS 534 ( Ky. 1941 ).

    6.Scrip.

    Purchaser of scrip received in payment of merchandise is entitled to interest thereon from date of presentment to payor on demand on regular paydays and refusal by payor, in view of implied promise raised by law to pay interest on sum due from time of its demand and refusal. Carrs Fork Coal Co. v. Johnson Drug Co., 249 Ky. 371 , 60 S.W.2d 952, 1933 Ky. LEXIS 527 ( Ky. 1933 ).

    A contract between a mining company which paid its employees with scrip and a supply company, whereby the mining company influenced its employees to trade with the supply company from which it redeemed its scrip at a discount, was against public policy and invalid under this section. Southern Coal Co. v. Martin's Fork Coal Co., 286 Ky. 679 , 151 S.W.2d 394, 1940 Ky. LEXIS 7 ( Ky. 1940 ).

    Merchant who accepted from miners mining company’s scrip marked nontransferable and issued to miners as medium of credit for labor performed or to be performed and redeemable only in cash on regular payday would be entitled, on regular payday, to have company redeem same in cash, since law, insofar as it authorized issuance to wage earners in mines for their labor of scrip or any other instrument which was nonassignable or nontransferable and redeemable only in merchandise or something other than lawful money, was unconstitutional and void as applied to wages earned. Barker v. Stearns Coal & Lumber Co., 287 Ky. 340 , 152 S.W.2d 953, 1941 Ky. LEXIS 534 ( Ky. 1941 ).

    Although nontransferable, scrip may be issued for wages not yet earned, and for other purposes than earned wages, employer issuing scrip has burden of proof, in action by assignee of scrip, to show what portion of scrip was issued for purposes other than earned wages. Barker v. Stearns Coal & Lumber Co., 291 Ky. 184 , 163 S.W.2d 466, 1942 Ky. LEXIS 205 ( Ky. 1942 ).

    7.Statutes.

    Law which provides for punishment of certain employers who shall pay their employees in other than lawful money is constitutional. Avent Beattyville Coal Co. v. Commonwealth, 96 Ky. 218 , 28 S.W. 502, 16 Ky. L. Rptr. 414 , 1894 Ky. LEXIS 117 ( Ky. 1894 ).

    A law implementing this section and applying only to persons and corporations employing ten or more persons is constitutional as special legislation, as classification is reasonable and natural and consistent with the end sought to be accomplished by this section. Commonwealth v. Hillside Coal Co., 109 Ky. 47 , 58 S.W. 441, 22 Ky. L. Rptr. 559 , 1900 Ky. LEXIS 166 ( Ky. 1900 ).

    A law requiring persons and corporation engaged in mining to pay all employees on the fifteenth and thirtieth days of each month to within 15 days of said dates, unless prevented by unavoidable casualty, forbidding blacklisting and providing penalties for violation, is constitutional as class legislation and is authorized under this section. Commonwealth v. Reinecke Coal Min. Co., 117 Ky. 885 , 79 S.W. 287, 25 Ky. L. Rptr. 2027 , 1904 Ky. LEXIS 258 ( Ky. 1904 ).

    Law making scrip issued by employer redeemable in cash at least once monthly does not impair the obligation of contract and is valid under this section. Hoskins Grocery Co. v. Creech Coal Co., 247 Ky. 8 , 56 S.W.2d 555, 1933 Ky. LEXIS 342 ( Ky. 1933 ).

    KRS 352.540 , relating to payment of wages to miners, although partaking of special legislation inhibited by Const., § 59, is valid as consistent with the purposes of this section. Barker v. Stearns Coal & Lumber Co., 287 Ky. 340 , 152 S.W.2d 953, 1941 Ky. LEXIS 534 ( Ky. 1941 ).

    Where nontransferable scrip, redeemable only in merchandise, was issued under a 1932 act which was later declared unconstitutional, such scrip had to be regarded as subject to provisions of KRS 337.040 (repealed), which authorized only transferable scrip redeemable in cash; therefore, unconstitutionality of law under which scrip was issued did not make scrip void. Barker v. Stearns Coal & Lumber Co., 291 Ky. 184 , 163 S.W.2d 466, 1942 Ky. LEXIS 205 ( Ky. 1942 ).

    8.Union Dues.

    Check-off orders whereby union miners direct employer to deduct union dues from their paychecks do not violate this section. Braddom v. Three Point Coal Corp., 288 Ky. 734 , 157 S.W.2d 349, 1941 Ky. LEXIS 200 ( Ky. 1941 ).

    9.Wage Assignment.

    This section does not prevent employee from assigning his wages nor from giving an order to his employer in behalf of a third person, and compliance with such an assignment or order by an employer constitutes payment to the employee in money. Kentucky-Tennessee Light & Power Co. v. Moats, 290 Ky. 690 , 162 S.W.2d 526, 1942 Ky. LEXIS 476 ( Ky. 1942 ).

    Research References and Practice Aids

    Cross-References.

    Corporations to pay employees semimonthly, KRS 337.020 .

    Payment of wages to miners, KRS 352.540 .

    § 244a. Old age assistance.

    The General Assembly shall prescribe such laws as may be necessary for the granting and paying of old persons an annuity or pension.

    History. Proposed Acts 1934, ch. 59, adopted November, 1935.

    Research References and Practice Aids

    Cross-References.

    Old age assistance, KRS ch. 205.

    § 245. Revision of statutes to conform to Constitution.

    Upon the promulgation of this Constitution, the Governor shall appoint three persons, learned in the law, who shall be Commissioners to revise the statute laws of this Commonwealth, and prepare amendments thereto, to the end that the statute laws shall conform to and effectuate this Constitution. Such revision and amendments shall be laid before the next General Assembly for adoption or rejection, in whole or in part. The said Commissioners shall be allowed ten dollars each per day for their services, and also necessary stationery for the time during which they are actually employed; and upon their certificate the Auditor shall draw his warrant upon the Treasurer. They shall have the power to employ clerical assistants, at a compensation not exceeding ten dollars per day in the aggregate. If the Commissioners, or any of them, shall refuse to act, or a vacancy shall occur, the Governor shall appoint another or others in his or their place.

    NOTES TO DECISIONS

    1.Purpose.

    The purpose of this section was to secure a uniform system of laws throughout the state, and a law proposed by the commission and adopted by the Legislature superseded and repealed a previous act by the Legislature at same session, governing fees of court commissioners. McHenry v. Winston, 49 S.W. 4, 20 Ky. L. Rptr. 1194 , 1899 Ky. LEXIS 293 (Ky. Ct. App.), modified, 105 Ky. 307 , 49 S.W. 971, 1899 Ky. LEXIS 284 ( Ky. 1899 ).

    One of the special aims of this section was to rid the state of special legislation, and a general law applicable to all corporations in regard to personal liability of stockholder for debt of corporation prevails over an inconsistent previous law. Williams v. Nall, 108 Ky. 21 , 55 S.W. 706, 21 Ky. L. Rptr. 1526 , 1900 Ky. LEXIS 6 ( Ky. 1900 ).

    2.Elections.

    As the commission, under this section, in their report and recommendation as to the election laws, left the old laws as to contested elections unchanged, the old law was still in force. Pratt v. Breckinridge, 112 Ky. 1 , 65 S.W. 136, 23 Ky. L. Rptr. 1356 , 1901 Ky. LEXIS 286 ( Ky. 1 901 ). See Pratt v. Breckinridge, 66 S.W. 405, 23 Ky. L. Rptr. 1858 , 1902 Ky. LEXIS 463 ( Ky. 1902 ).

    3.Repeal.

    Pursuant to this section, a general law enacted conforming to constitutional requirement operates as a repeal of special acts conferring jurisdiction the exercise of which is inconsistent with the general law, even if the constitutional provision requiring such uniformity did not of itself effect such repeal. McTigue v. Commonwealth, 99 Ky. 66 , 35 S.W. 121, 17 Ky. L. Rptr. 1418 , 1896 Ky. LEXIS 55 ( Ky. 1896 ).

    A general law prepared by the commission pursuant to this section and adopted by Legislature which was comprehensive in character and covered the whole subject superseded and repealed the former law governing appointment of clerk to treasurer. Long v. Stone, 39 S.W. 836, 19 Ky. L. Rptr. 246 (1897). See Burke v. Layoff, 178 Ky. 588 , 199 S.W. 775, 1918 Ky. LEXIS 428 ( Ky. 1918 ).

    Cited:

    Guthrie v. Sparks, 131 F. 443, 1904 U.S. App. LEXIS 4299 (6th Cir. 1904); Aetna Life Ins. Co. v. Coulter, 115 Ky. 787 , 25 Ky. L. Rptr. 193 , 74 S.W. 1050, 1903 Ky. LEXIS 150 ( Ky. 1903 ); Burke v. Layoff, 178 Ky. 588 , 199 S.W. 775, 1918 Ky. LEXIS 428 ( Ky. 1918 ); Talbott v. Thomas, 286 Ky. 786 , 151 S.W.2d 1, 1941 Ky. LEXIS 277 ( Ky. 1941 ); Fidelity & Columbia Trust Co. v. Meek, 294 Ky. 122 , 171 S.W.2d 41, 1943 Ky. LEXIS 404 ( Ky. 1943 ).

    Research References and Practice Aids

    Cross-References.

    Statute revision, KRS 7.120 to 7.140 .

    § 246. Maximum limit on compensation of public officers.

    No public officer or employee except the Governor, shall receive as compensation per annum for official services, exclusive of the compensation of legally authorized deputies and assistants which shall be fixed and provided for by law, but inclusive of allowance for living expenses, if any, as may be fixed and provided for by law, any amount in excess of the following sums: Officers whose jurisdiction or duties are coextensive with the Commonwealth, the mayor of any city of the first class, and Judges and Commissioners of the Court of Appeals, Twelve Thousand Dollars ($12,000); Circuit Judges, Eight Thousand Four Hundred Dollars ($8,400); all other public officers, Seven Thousand Two Hundred Dollars ($7,200). Compensation within the limits of this amendment may be authorized by the General Assembly to be paid, but not retroactively, to public officers in office at the time of its adoption, or who are elected at the election at which this amendment is adopted. Nothing in this amendment shall permit any officer to receive, for the year 1949, any compensation in excess of the limit in force prior to the adoption of this amendment.

    History. Amendment, proposed Acts 1948, ch. 172, ratified November, 1949.

    NOTES TO DECISIONS

    1.Construction.

    This section is self-executing and may be enforced by the courts without any legislative authority. Shipp v. Rodes, 196 Ky. 523 , 245 S.W. 157, 1922 Ky. LEXIS 565 ( Ky. 1922 ). See Pike County v. Young, 266 Ky. 588 , 99 S.W.2d 749, 1936 Ky. LEXIS 713 ( Ky. 1936 ).

    This section is clear and unequivocal, and leaves nothing to implication. Louisville v. German, 286 Ky. 477 , 150 S.W.2d 931, 1940 Ky. LEXIS 5 ( Ky. 1940 ).

    This section is mandatory and self-executing. Louisville v. German, 286 Ky. 477 , 150 S.W.2d 931, 1940 Ky. LEXIS 5 ( Ky. 1940 ).

    Section 3 of the Constitution and this section are harmonious. Talbott v. Thomas, 286 Ky. 786 , 151 S.W.2d 1, 1941 Ky. LEXIS 277 ( Ky. 1941 ). See Alvey v. Brigham, 286 Ky. 610 , 150 S.W.2d 935, 1940 Ky. LEXIS 6 ( Ky. 1940 ).

    2.Application.

    This section applies to compensation for public service, whether rendered in one or more positions. Coleman v. Hurst, 226 Ky. 501 , 11 S.W.2d 133, 1928 Ky. LEXIS 121 ( Ky. 1928 ).

    Where the Legislature has failed to regulate the salary of a public officer as allowed by Const., § 106, the officer’s compensation is $5,000 by operation of this section. Holland v. Fayette County, 240 Ky. 37 , 41 S.W.2d 651, 1931 Ky. LEXIS 344 ( Ky. 1931 ).

    This limitation applies to the officer and not the office. Louisville v. German, 286 Ky. 477 , 150 S.W.2d 931, 1940 Ky. LEXIS 5 ( Ky. 1940 ).

    This section applies to municipal officers. Alvey v. Brigham, 286 Ky. 610 , 150 S.W.2d 935, 1940 Ky. LEXIS 6 ( Ky. 1940 ).

    In conflict between this section and Const., § 133 (repealed), governing the salaries of Circuit Judges, this section must prevail. Barker v. Barnes, 248 S.W.2d 901, 1952 Ky. LEXIS 765 ( Ky. 1952 ).

    3.Actions.
    4.— Equity.

    In action by taxpayer to recover sums received by jailer alleged to be in excess of constitutional compensation limit where it was alleged allowance for feeding prisoners was excessive, it was proper to overrule plaintiff’s motion to transfer to equity, in the absence of showing of fraud or collusion between jailer and the fiscal court. Taylor v. Broughton, 254 Ky. 265 , 71 S.W.2d 635, 1934 Ky. LEXIS 75 ( Ky. 1934 ).

    5.— Fiscal Court.

    Taxpayer, in suit to recover commissions collected by sheriffs in excess of $5,000, was not entitled to recover against fiscal court for not requiring sheriffs to account under statutes, since petition at best could only be construed as alleging failure to discharge discretionary duties. Shipp v. Bradley, 210 Ky. 51 , 275 S.W. 1, 1925 Ky. LEXIS 627 ( Ky. 1925 ). See Shipp v. Rodes, 196 Ky. 523 , 245 S.W. 157, 1922 Ky. LEXIS 565 ( Ky. 1922 ).

    6.— Limitations.

    County’s claims against county attorney for moneys collected in excess of constitutional limit are barred by limitations as regards moneys collected more than five years before commencement of action. Jefferson County v. Chilton, 253 Ky. 221 , 69 S.W.2d 338, 1934 Ky. LEXIS 636 ( Ky. 1934 ).

    7.— Pleadings and Proof.

    A taxpayer may sue under this section on his own behalf and on behalf of other taxpayers to recover excess salary paid and need not demand that fiscal court bring such suit where facts justify assumption that fiscal court will not do so. Shipp v. Rodes, 196 Ky. 523 , 245 S.W. 157, 1922 Ky. LEXIS 565 ( Ky. 1922 ). See Pike County v. Young, 266 Ky. 588 , 99 S.W.2d 749, 1936 Ky. LEXIS 713 ( Ky. 1936 ).

    In action against an officer to recover compensation which he received in excess of constitutional limitation, a disclosure of his total compensation may be obtained either by cross-examination or by interrogatories attached to the petition. Boyd County v. Boyd Fiscal Court, 247 Ky. 183 , 56 S.W.2d 959, 1933 Ky. LEXIS 368 ( Ky. 1933 ).

    Suit against city manager to recover money paid in excess of constitutional limit cannot be maintained by taxpayer without showing demand on public officers to bring suit or circumstances indicating their refusal to do so. Wagner v. Wallingford, 257 Ky. 477 , 78 S.W.2d 326, 1935 Ky. LEXIS 39 ( Ky. 1935 ).

    Jailer bringing suit to recover claims allowed by fiscal court had burden of proof of showing credits to which he was entitled when fiscal court answered that he already had been paid a certain sum and payment of his claims would exceed constitutional limitation. Bell Fiscal Court v. Helton, 258 Ky. 219 , 79 S.W.2d 683, 1935 Ky. LEXIS 806 ( Ky. 1935 ).

    Where county court clerk received money from the county fiscal court in a specified year to which she was not entitled and used such to employ additional office help, it was incumbent upon the clerk, in an action brought by a taxpayer to recover such sum, to prove that she had had an excess of fees in an amount which was at least equal to the amount received from the fiscal court for the same specified calendar year and that she had paid this amount to the county in order to be relieved from liability, as the clerk could not use fees received in subsequent years which exceeded the amount required to pay office expenses and clerk’s compensation to make up the amount owed to the county. Ader v. Howard, 263 S.W.2d 491, 1953 Ky. LEXIS 1152 ( Ky. 1953 ).

    8.— Settlements.

    Under this section and statutes, taxpayer suing to recover, on behalf of county, sheriffs’ commissions for collecting taxes in excess of $5,000 per annum is not required to show that there was a person appointed by fiscal court with whom sheriffs could settle and that they had refused to do so, since clearly they could have settled with the fiscal court. Shipp v. Bradley, 210 Ky. 51 , 275 S.W. 1, 1925 Ky. LEXIS 627 ( Ky. 1925 ). See Shipp v. Rodes, 196 Ky. 523 , 245 S.W. 157, 1922 Ky. LEXIS 565 ( Ky. 1922 ).

    Fiscal court acting in good faith may compromise and settle an action by taxpayer against former sheriff to recover excess collected above constitutional limit in salary and fees. Shipp use of Fayette County v. Rodes, 219 Ky. 349 , 293 S.W. 543, 1927 Ky. LEXIS 348 ( Ky. 1927 ).

    9.— Taxable Property.

    In suit to recover from sheriffs commissions and fees in excess of $5,000, it is unnecessary for plaintiff to file a list of taxable property, since suit only sought to require sheriffs to account for moneys actually collected. Shipp v. Bradley, 210 Ky. 51 , 275 S.W. 1, 1925 Ky. LEXIS 627 ( Ky. 1925 ). See Shipp v. Rodes, 196 Ky. 523 , 245 S.W. 157, 1922 Ky. LEXIS 565 ( Ky. 1922 ).

    10.Amendments to Constitution.

    Where proposed amendment to this section provided definite limitations to annual compensation of public officers or employees but words “or employee” did not appear in title of proposal and were not followed through in the text of the proposal, it was not necessary that they be included in the amendment question to be placed on the ballot. Smith v. Hatcher, 311 Ky. 386 , 223 S.W.2d 182, 1949 Ky. LEXIS 1044 ( Ky. 1949 ).

    The 1949 amendment to this section had the effect of suspending Const., §§ 161 and 235 insofar as they affected public officials then in office or elected at the election at which the amendments were adopted; therefore, as the term is the unit to which these sections apply, commissioner elected in 1951 and commissioner elected in 1947 and re-elected in 1951 were not entitled to increase in compensation made possible by 1952 amendment to law that provided for compensation of county commissioners serving on the fiscal court. Shamburger v. Duncan, 253 S.W.2d 388, 1952 Ky. LEXIS 1090 ( Ky. 1952 ).

    The 1949 amendment to this section applies to both fee officers and salaried officers. Cheshire v. Frankfort, 272 S.W.2d 37, 1954 Ky. LEXIS 1076 ( Ky. 1954 ).

    When the 1949 amendment is considered as a whole, the intent becomes clear that the old $5,000 limit should remain in force until the General Assembly should authorize an increase within the new limits, at least with respect to officers in office at the time of adoption of the amendment or who were elected at the election at which the amendment was adopted. Cheshire v. Frankfort, 272 S.W.2d 37, 1954 Ky. LEXIS 1076 ( Ky. 1954 ).

    Judicial notice was taken of the fact that an adjustment of compensation attaching to public office through an amendment or repeal of this section was an urgent requirement because economic conditions had reduced value of compensation provided for to point that qualified men and women without independent means could not afford to serve. Board of Education v. De Weese, 343 S.W.2d 598, 1960 Ky. LEXIS 116 ( Ky. 1960 ).

    11.City Attorneys.

    A city attorney is a public officer and subject to this section. Carroll v. Fullerton, 215 Ky. 558 , 286 S.W. 847, 1926 Ky. LEXIS 769 ( Ky. 1926 ), overruled, Ward v. Southern Bell Tel. & Tel. Co., 436 S.W.2d 794, 1968 Ky. LEXIS 189 ( Ky. 1968 ).

    12.City Finance Officers.

    Compensation in excess of $5,000 from the office of both director of finance of the city of Louisville and chief accountant and financial advisor of the city of Louisville municipal housing commission violates this section. Louisville v. German, 286 Ky. 477 , 150 S.W.2d 931, 1940 Ky. LEXIS 5 ( Ky. 1940 ).

    13.City Managers.

    This section applies to municipal officers. A city manager is a public officer within this section and statutory provision that city manager is not an officer is void; consequently, an ordinance fixing salary in excess of constitutional limit is unenforceable. Lexington v. Thompson, 250 Ky. 96 , 61 S.W.2d 1092, 1933 Ky. LEXIS 655 ( Ky. 1933 ).

    14.Compensation.

    In enacting Acts 1950, ch. 123, providing for compensation of certain public officers, the Legislature intended that both the number and the compensation of deputies should be fixed by the fiscal court before the first Monday in May of the election year, and, if not so fixed, they would be limited by KRS 64.720 to that of the preceding term. Funk v. Milliken, 317 S.W.2d 499, 1958 Ky. LEXIS 100 ( Ky. 1958 ).

    While fringe benefits are not salary or compensation within the meaning of those terms as found in Const., §§ 161, 235, and this section if the salary of a particular official were raised through the subterfuge of paying certain benefits for him not uniformly available to similarly situated officials, such benefits would constitute salary or compensation within the terms found in Const., §§ 161, 235, and this section. Caldwell County Fiscal Court v. Paris, 945 S.W.2d 952, 1997 Ky. App. LEXIS 49 (Ky. Ct. App. 1997).

    The reference in the Constitution to compensation and salary mean the actual salary or fees paid to an officer. Caldwell County Fiscal Court v. Paris, 945 S.W.2d 952, 1997 Ky. App. LEXIS 49 (Ky. Ct. App. 1997).

    15.— Cost of Living.

    Where the law fixing the compensation of a public officer adheres to the limit set forth in the Constitution, an officer is not entitled to receive any more than that amount as a result of the increased cost of living. Meade County v. Neafus, 395 S.W.2d 573, 1965 Ky. LEXIS 149 ( Ky. 1965 ). But see Matthews v. Allen, 360 S.W.2d 135, 1962 Ky. LEXIS 211 ( Ky. 1962 ).

    16.— Purchasing Power.

    The salary provisions of this section may be interpreted and periodically applied to all constitutional officers in terms which will equate current salaries with the purchasing power of the dollar in 1949 when this section was amended and, in the instance of the judiciary, other factors may also be considered in establishing the adequate compensation directed by Const., §§ 112 and 133 (repealed). Matthews v. Allen, 360 S.W.2d 135, 1962 Ky. LEXIS 211 ( Ky. 1962 ). But see Meade County v. Neafus, 395 S.W.2d 573, 1965 Ky. LEXIS 149 ( Ky. 1965 ).

    Where a fiscal court adjusted salaries of magistrates to a fixed $11,772 per annum, such action was not unconstitutional since this section allows salaries to be equated with the purchasing power of the dollar in 1949 and under KRS 64.527 and the “rubber dollar” theory, the current maximum salary would be approximately $18,000 and there was no showing of illegality. Hasty v. Shepherd, 620 S.W.2d 325, 1981 Ky. App. LEXIS 280 (Ky. Ct. App. 1981).

    17.— Donations.

    Fact that compensation is paid from donations to the city rather than from taxation is immaterial. Louisville v. German, 286 Ky. 477 , 150 S.W.2d 931, 1940 Ky. LEXIS 5 ( Ky. 1940 ).

    18.— Excess.

    Any compensation received by an officer over and above the limit prescribed herein must be for acts done outside of official duties and with which they have no affinity or connection. Alvey v. Brigham, 286 Ky. 610 , 150 S.W.2d 935, 1940 Ky. LEXIS 6 ( Ky. 1940 ).

    19.— Expense Allowances.

    There being no specific constitutional or statutory provision to the contrary, the allowance by the Legislature of expenses incurred by public officers in the discharge of their official duties is neither salary, compensation, nor an emolument of their office within the meaning of this section. Manning v. Sims, 308 Ky. 587 , 213 S.W.2d 577, 1948 Ky. LEXIS 864 ( Ky. 1948 ).

    20.— Fees.

    Officer is entitled to apply fees to his compensation for the year fees are paid and not for year in which they are earned. McCracken County v. Thompson's Ex'x, 268 Ky. 253 , 104 S.W.2d 968, 1937 Ky. LEXIS 444 ( Ky. 1937 ).

    21.— Pensions.

    Pensions to officers already paid $5,000 per annum for public or official services are prohibited by this section. Alvey v. Brigham, 286 Ky. 610 , 150 S.W.2d 935, 1940 Ky. LEXIS 6 ( Ky. 1940 ).

    22.— Per Annum.

    Per annum refers to year of service, not to year of payment. Alvey v. Brigham, 286 Ky. 610 , 150 S.W.2d 935, 1940 Ky. LEXIS 6 ( Ky. 1940 ).

    23.— Separate Allowances.

    The Legislature may provide for separate allowance of salaries to public officers for specific services but the aggregate allowance must not exceed constitutional limit. Robinson v. Elliott County Fiscal Court, 236 Ky. 63 , 32 S.W.2d 554, 1930 Ky. LEXIS 680 ( Ky. 1930 ).

    24.— Source.

    It is immaterial whether the compensation comes from one or several positions. Louisville v. German, 286 Ky. 477 , 150 S.W.2d 931, 1940 Ky. LEXIS 5 ( Ky. 1940 ).

    This section relates to public funds, public moneys or moneys from public sources, whether derived from taxes, rents, fines, contracts or otherwise. Alvey v. Brigham, 286 Ky. 610 , 150 S.W.2d 935, 1940 Ky. LEXIS 6 ( Ky. 1940 ).

    25.— Fringe Benefits.

    Providing health insurance under a group policy covering county officials and employees does not constitute the payment of compensation or salary within the meaning of those terms as found in Const., §§ 161, 235 and this section. Caldwell County Fiscal Court v. Paris, 945 S.W.2d 952, 1997 Ky. App. LEXIS 49 (Ky. Ct. App. 1997).

    26.County Attorneys.

    The county and not the state is entitled to excess fees paid county attorneys, including commissions on judgments for fines and forfeitures. Commonwealth v. Coleman, 245 Ky. 673 , 54 S.W.2d 42, 1932 Ky. LEXIS 662 ( Ky. 1932 ). As to jailers, see Breathitt County v. Cockrell, 250 Ky. 743 , 63 S.W.2d 920, 1933 Ky. LEXIS 764 ( Ky. 1933 ).

    Both salary and fees must be considered when applying this section and Const., §§ 161 and 235 to county attorneys. Dennis v. Rich, 434 S.W.2d 632, 1968 Ky. LEXIS 237 ( Ky. 1968 ).

    27.County Coroners.

    County coroner is not entitled to recover statutory fees from city for year in excess of $5,000 maximum compensation, even though excess is to go to the county. Louisville v. Keaney, 267 Ky. 557 , 102 S.W.2d 996, 1937 Ky. LEXIS 346 ( Ky. 1937 ).

    28.Creditors.

    Under this section it is against public policy to subject the salary of a state officer to the claims of his creditors. Dickinson v. Johnson, 110 Ky. 236 , 61 S.W. 267, 22 Ky. L. Rptr. 1686 , 1901 Ky. LEXIS 78 ( Ky. 1901 ).

    29.Employees.

    Under this section limitation on salaries of public officers did not apply to salaries of subordinate employees. Pardue v. Miller, 306 Ky. 110 , 206 S.W.2d 75, 1947 Ky. LEXIS 953 ( Ky. 1947 ). See Board of Education v. De Weese, 343 S.W.2d 598, 1960 Ky. LEXIS 116 ( Ky. 1960 ).

    Officers, as the word is used in this section and in Const., §§ 161 and 235, should be restricted to those officers directly named and designated in the Constitution and should not include employees not so designated. Board of Education v. De Weese, 343 S.W.2d 598, 1960 Ky. LEXIS 116 ( Ky. 1960 ), overruling prior contrary decisions.

    30.Employment.

    Designation of position as “employment” will not be allowed to circumvent this section. Louisville v. German, 286 Ky. 477 , 150 S.W.2d 931, 1940 Ky. LEXIS 5 ( Ky. 1940 ).

    31.Fiscal Courts.

    Where a county officer presents an account to the fiscal court and the court believes that the officer has or will by the account, with prior receipts, exceed the constitutional limitation on his compensation, the fiscal court may require of him a full and complete showing of such receipts from all sources and the expenses of his office before allowing the account presented. Boyd County v. Boyd Fiscal Court, 247 Ky. 183 , 56 S.W.2d 959, 1933 Ky. LEXIS 368 ( Ky. 1933 ).

    Fiscal courts, except of counties having a population of 75,000 or more, may pay sheriffs’ $7,200 salaries from county treasury. Harlan v. Sawyers, 290 S.W.2d 488, 1956 Ky. LEXIS 327 ( Ky. 1956 ).

    32.House of Representatives.

    Chief clerk of House of Representatives is a public officer within this section. Sanders v. Talbott, 255 Ky. 50 , 72 S.W.2d 758, 1934 Ky. LEXIS 185 ( Ky. 1934 ).

    33.Independent Contractors.

    This section does not restrict the compensation paid to independent contractors; attorneys employed by Department of Revenue (now Revenue Cabinet) to collect back taxes under contract and consultant engineer employed by public service commission under contract which left him free of all control by the commission were independent contractors. Talbott v. Public Service Com., 291 Ky. 109 , 163 S.W.2d 33, 1942 Ky. LEXIS 174 ( Ky. 1942 ), overruled, Pardue v. Miller, 306 Ky. 110 , 206 S.W.2d 75, 1947 Ky. LEXIS 953 ( Ky. 1947 ).

    34.Jailers.

    Jailer’s compensation is limited to $5,000 after deducting all expenses from total receipts of office from every source. Holland v. Fayette County, 240 Ky. 37 , 41 S.W.2d 651, 1931 Ky. LEXIS 344 ( Ky. 1931 ).

    The jailer of a county must report to the fiscal court all moneys received from any source by virtue of his office, including fees for keeping federal prisoners, and, there being no statutory provision, his accounting should be on an annual, not a four-year basis. Holland v. Fayette County, 240 Ky. 37 , 41 S.W.2d 651, 1931 Ky. LEXIS 344 ( Ky. 1931 ).

    There being no statutory provision to the contrary, county, not state, is entitled to excess of jailer’s fees over salary and expenditures. Holland v. Fayette County, 240 Ky. 37 , 41 S.W.2d 651, 1931 Ky. LEXIS 344 ( Ky. 1931 ).

    Failure of jailer to account annually to fiscal court, as required by law, does not preclude his filing single accounting for his entire four-year term. Taylor v. Broughton, 254 Ky. 265 , 71 S.W.2d 635, 1934 Ky. LEXIS 75 ( Ky. 1934 ).

    A jailer’s compensation, within the meaning of this section, is the balance of whatever he retains for his own compensation after deducting payment to others for labor and expenses required for the proper performance of the duties and functions of his office. Wilson v. Ball, 323 S.W.2d 840, 1959 Ky. LEXIS 336 ( Ky. 1959 ). See Bell Fiscal Court v. Helton, 258 Ky. 219 , 79 S.W.2d 683, 1935 Ky. LEXIS 806 ( Ky. 1935 ); Manning v. Sims, 308 Ky. 587 , 213 S.W.2d 577, 1948 Ky. LEXIS 864 ( Ky. 1948 ).

    Services performed by county jailer under his contract with the county government as director of detention, namely the fingerprinting and photographing of prisoners, were not a part of his official duties as jailer, and he was not prohibited from entering into a contract with the county government for such nonofficial duties. Buchignani v. Lexington-Fayette Urban County Government, 632 S.W.2d 465, 1982 Ky. App. LEXIS 212 (Ky. Ct. App. 1982).

    35.Joint Offices.

    Where more than one (1) office is held during the same year by an individual, he is entitled only to the maximum compensation permitted for the highest ranking office. Barker v. Barnes, 248 S.W.2d 901, 1952 Ky. LEXIS 765 ( Ky. 1952 ).

    The limit on the compensation of any public officer applies to the person, regardless of the number of offices he may hold. Funk v. Milliken, 317 S.W.2d 499, 1958 Ky. LEXIS 100 ( Ky. 1958 ).

    36.Joint Officers.

    This section does not prevent two (2) officers who each hold office for part of year from together receiving more than the limitation. Whittenberg v. Louisville, 238 Ky. 117 , 36 S.W.2d 853, 1931 Ky. LEXIS 187 ( Ky. 1931 ).

    37.Judges.

    Judges of the Court of Appeals may by law be given salary raises during their terms of office under Const., §§ 112, 161, 235 and this section. Perkins v. Sims, 350 S.W.2d 715, 1961 Ky. LEXIS 131 ( Ky. 1961 ).

    38.Public Office.

    To constitute a public office within the meaning of this section, thus subjecting the incumbent to the constitutional salary limitation, the office must comprise the following five indispensable elements: (1) It must be created by the Constitution or by law; (2) it must possess a delegation of a portion of the sovereign power of government to be exercised for the benefit of the public; (3) the powers conferred and the duties to be discharged must be defined, directly or impliedly, by the Legislature, or through legislative authority; (4) the duties must be performed independently and without control of a superior power, other than the law, unless they be those of an inferior or subordinate office, created or authorized by the Legislature, and by it placed under the general control of a superior officer or body; and (5) it must have some permanency and continuity and not be only temporary or occasional. Lexington v. Thompson, 250 Ky. 96 , 61 S.W.2d 1092, 1933 Ky. LEXIS 655 ( Ky. 1933 ). See Nichols v. Marks, 308 Ky. 863 , 215 S.W.2d 1000, 1948 Ky. LEXIS 1063 ( Ky. 1948 ); Reynolds v. Board of Education, 311 Ky. 458 , 224 S.W.2d 442, 1949 Ky. LEXIS 1156 ( Ky. 1949 ).

    39.Public Officers.

    Where independent initiative is exercised by an officeholder in performing his official duties, he is a public officer subject to the salary limitation of this section, although his functions are subject to general control by some higher authority, such as a board of education. Reynolds v. Board of Education, 311 Ky. 458 , 224 S.W.2d 442, 1949 Ky. LEXIS 1156 ( Ky. 1949 ).

    40.— Additions to Catagory.

    The General Assembly did not exceed its legislative powers by impermissibly interpreting the Kentucky Constitution when it determined that sheriffs, county judges/executive, county clerks, and jailers who operate full service jails had duties coextensive with the Commonwealth and, added them to the category of public officers eligible to be compensated under this section’s highest compensation level. Kentucky Sheriffs Ass'n v. Fischer, 986 S.W.2d 444, 1999 Ky. LEXIS 18 ( Ky. 1999 ).

    41.Schools.

    Principals and supervisors employed by a board of education are employees, not public officers, and are not subject to constitutional salary limitation. Schranz v. Board of Education, 307 Ky. 590 , 211 S.W.2d 861, 1948 Ky. LEXIS 801 ( Ky. 1948 ).

    School superintendent and assistant school superintendent for business affairs are subject to the constitutional limitation on salaries of public officers. Reynolds v. Board of Education, 311 Ky. 458 , 224 S.W.2d 442, 1949 Ky. LEXIS 1156 ( Ky. 1949 ). But see Board of Education v. De Weese, 343 S.W.2d 598, 1960 Ky. LEXIS 116 ( Ky. 1960 ).

    A superintendent of schools is not an officer within the meaning of Const., §§ 161, 235 or this section, since the office of superintendent is a creature of statute and is not named in the Constitution. Board of Education v. De Weese, 343 S.W.2d 598, 1960 Ky. LEXIS 116 ( Ky. 1960 ). But see Reynolds v. Board of Education, 311 Ky. 458 , 224 S.W.2d 442, 1949 Ky. LEXIS 1156 ( Ky. 1949 ).

    42.Sheriffs.

    All amounts collected by sheriffs from whatever source, including tax collection commissions, in excess of $5,000 per annum plus the compensation paid or due sheriffs’ deputies are due county and the state has no claim for excess commissions from collection of state revenue. Shipp v. Bradley, 210 Ky. 51 , 275 S.W. 1, 1925 Ky. LEXIS 627 ( Ky. 1925 ). See Shipp v. Rodes, 196 Ky. 523 , 245 S.W. 157, 1922 Ky. LEXIS 565 ( Ky. 1922 ).

    Although sheriffs and their sureties may not be subject to suit for recovery of allowances made to sheriffs by fiscal court, they are chargeable with the aggregate thereof and sheriffs are entitled only to $5,000 in addition to compensation of necessary deputies. Shipp v. Bradley, 210 Ky. 51 , 275 S.W. 1, 1925 Ky. LEXIS 627 ( Ky. 1925 ). See Shipp v. Rodes, 196 Ky. 523 , 245 S.W. 157, 1922 Ky. LEXIS 565 ( Ky. 1922 ).

    In determining if compensation of sheriffs exceeds constitutional limitation of $5,000, commission for collection of state revenues must be considered together with all other fees and commissions. Shipp v. Bradley, 210 Ky. 51 , 275 S.W. 1, 1925 Ky. LEXIS 627 ( Ky. 1925 ). See Shipp v. Rodes, 196 Ky. 523 , 245 S.W. 157, 1922 Ky. LEXIS 565 ( Ky. 1922 ).

    Sheriff may be required by county to account for all moneys received by him as compensation, either for collection of revenues or by way of fees for performance of duties of his office, in excess of $5,000 and a fair compensation to a reasonable number of deputies and assistants in good faith employed in his office. Commonwealth use of Scott County v. Nunnelley, 211 Ky. 409 , 277 S.W. 506, 1925 Ky. LEXIS 890 ( Ky. 1925 ).

    Since the Commonwealth is not entitled to any excess of the income of a sheriff over the constitutional limit, the state auditor is not entitled to know the total income from a sheriff’s office under the authority of this section. Davis v. Walker, 212 Ky. 379 , 279 S.W. 654, 1926 Ky. LEXIS 150 ( Ky. 1926 ).

    Outgoing sheriff, paid annual salary of $5,000 in one (1) year, was not entitled to compensation for his services in collecting taxes in following year in view of statutory provisions that income of outgoing sheriff arising from commissions for collection of taxes should be treated as part of income for preceding year. Petty v. Talbott, 256 Ky. 688 , 76 S.W.2d 940, 1934 Ky. LEXIS 475 ( Ky. 1934 ).

    Sheriff paid only by fees out of which come his personal compensation, office expense and deputy hire must account to the fiscal court of the county only for that part of his personal compensation which exceeds the constitutional limit. Weber v. True, 304 Ky. 681 , 202 S.W.2d 174, 1947 Ky. LEXIS 704 ( Ky. 1947 ).

    43.Statutes.
    44.— Administrative Officers.

    Law providing that the salary of a public officer shall be fixed by an administrative authority does not violate this section; it is not necessary for the Legislature to fix the amount of the salary of every public officer. Johnson v. Commonwealth, 291 Ky. 829 , 165 S.W.2d 820, 1942 Ky. LEXIS 329 ( Ky. 1942 ).

    45.— Commonwealth Attorneys.

    The maximum salary of $26,000 for Commonwealth Attorneys as set by KRS 64.510(2) (repealed) does not violate this section as some duties of such attorneys, pursuant to KRS 69.013 , are coextensive with the Commonwealth and they are thus entitled to the $12,000 maximum of this section adjusted to reflect the change in purchasing power of the dollar since 1949 when this section was passed. Commonwealth ex rel. Hancock v. Davis, 521 S.W.2d 823, 1975 Ky. LEXIS 162 ( Ky. 1975 ).

    46.— Constables and Justices.

    Law limiting constables and justices in certain counties to salaries less than $5,000 is constitutional, since the Constitution allows similar officers in other counties to receive salary of $5,000. Shaw v. Fox, 246 Ky. 342 , 55 S.W.2d 11, 1932 Ky. LEXIS 761 ( Ky. 1932 ).

    47.— Fee Officers.

    Action of a city council approving a fee officer’s monthly settlements during calendar year, as a cumulative result of which he was able to retain more than $5,000 for the year, did not constitute specific action by the council increasing his compensation. Cheshire v. Frankfort, 272 S.W.2d 37, 1954 Ky. LEXIS 1076 ( Ky. 1954 ).

    48.— Jailers.

    To permit the jailers, under a law fixing their salary at not to exceed 75 per cent of the fees collected by them respectively and paid into the treasury, to appropriate in such case all the fees and compensation received for services rendered would evade this section of Constitution. Stone v. Pflanz, 99 Ky. 647 , 36 S.W. 1128, 18 Ky. L. Rptr. 489 , 1896 Ky. LEXIS 123 ( Ky. 1896 ). See Winston v. Stone, 102 Ky. 423 , 43 S.W. 397, 19 Ky. L. Rptr. 1483 , 1897 Ky. LEXIS 95 ( Ky. 1897 ), overruled, Vaughn v. Knopf, 895 S.W.2d 566, 1995 Ky. LEXIS 49 ( Ky. 1995 ).

    49.— Judges.

    Law providing that a stipend of $5,000 per annum be paid Court of Appeals justices after their retirement was unconstitutional under this section and Const., § 3. Talbott v. Thomas, 286 Ky. 786 , 151 S.W.2d 1, 1941 Ky. LEXIS 277 ( Ky. 1941 ).

    KRS 64.500 (repealed) applied only to regular judges and not to special judges whose compensation was provided for and limited by KRS 23.290 (repealed), and county fiscal court could not legally pay out of the county treasury additional compensation to a special judge appointed to serve during illness of regular judge of the Circuit Court. Duncan v. Jefferson County Fiscal Court, 262 S.W.2d 674, 1953 Ky. LEXIS 1113 ( Ky. 1953 ).

    KRS 26.650 to 26.665 (repealed) are not unconstitutional under this section, since the highest amount that can be paid a police judge is $4,800 and, when amount of pension of $2,400 provided by law is added to it, judge’s entire compensation does not exceed $7,200. Maybury v. Coyne, 312 S.W.2d 455, 1958 Ky. LEXIS 225 ( Ky. 1958 ).

    Former law regarding expenses of Circuit Judges was broadly enough entitled to cover provision authorizing counties to compensate Circuit Judges annually for official expenses, and payments thereunder by a fiscal court did not violate this or other sections of the Constitution. Tierney v. Van Arsdale, 332 S.W.2d 546, 1960 Ky. LEXIS 158 ( Ky. 1960 ).

    50.— Schools.

    Presumption obtained that Legislature fixed Superintendent of Public Instruction’s salary at $4,000 with no intention to leave in effect a provision of law for payment of an additional $1,500 for performance of duties of special inspector and examiner of schools, in view of this section. Bell v. Talbott, 252 Ky. 721 , 68 S.W.2d 36, 1934 Ky. LEXIS 848 ( Ky. 1934 ).

    51.Universities.

    The limitations of this section do not apply to a professor of the University of Kentucky. Pardue v. Miller, 306 Ky. 110 , 206 S.W.2d 75, 1947 Ky. LEXIS 953 ( Ky. 1947 ).

    Cited:

    Winston v. Stone, 102 Ky. 423 , 19 Ky. L. Rptr. 1483 , 43 S.W. 397, 1897 Ky. LEXIS 95 ( Ky. 1897 ); Stone v. Pryor, 103 Ky. 645 , 20 Ky. L. Rptr. 312 , 45 S.W. 1053, 1898 Ky. LEXIS 112 ( Ky. 1898 ); McHenry v. Winston, 105 Ky. 307 , 49 S.W. 971, 1899 Ky. LEXIS 284 ( Ky. 1899 ); Sibert v. Garrett, 197 Ky. 17 , 246 S.W. 455, 1922 Ky. LEXIS 639 ( Ky. 1922 ); Adams v. Slavin, 225 Ky. 135 , 7 S.W.2d 836, 1928 Ky. LEXIS 711 ( Ky. 1928 ); Jefferson County ex rel. Coleman v. Chilton, 236 Ky. 614 , 33 S.W.2d 601, 1930 Ky. LEXIS 789 ( Ky. 1930 ); Kluemper v. Zimmer, 240 Ky. 225 , 41 S.W.2d 1111, 1931 Ky. LEXIS 3 70 ( Ky. 1931 ); Taylor v. Gaines, 254 Ky. 602 , 72 S.W.2d 16, 1934 Ky. LEXIS 121 ( Ky. 1934 ); Hubbard v. Ledford, 258 Ky. 704 , 81 S.W.2d 569, 1935 Ky. LEXIS 231 ( Ky. 1935 ); Herold v. Talbott, 261 Ky. 634 , 88 S.W.2d 303, 1935 Ky. LEXIS 703 ( Ky. 1935 ); Overstreet v. Boyle County Fiscal Court, 264 Ky. 761 , 95 S.W.2d 584, 1936 Ky. LEXIS 3 95 ( Ky. 1936 ); Commonwealth v. Bartholomew, 265 Ky. 703 , 97 S.W.2d 591, 1936 Ky. LEXIS 563 ( Ky. 1936 ); Pike County v. Young, 266 Ky. 588 , 99 S.W.2d 749, 1936 Ky. LEXIS 713 (Ky. 1936); Shannon v. Combs, 273 Ky. 514 , 117 S.W.2d 219, 1938 Ky. LEXIS 680 ( Ky. 1938 ); Milliken v. Harrod, 275 Ky. 597 , 122 S.W.2d 148, 1938 Ky. LEXIS 471 ( Ky. 1938 ); Land v. Lewis, 299 Ky. 866 , 186 S.W.2d 803, 1945 Ky. LEXIS 496 , 159 A.L.R. 601 ( Ky. 1945 ); Howard v. Saylor, 305 Ky. 504 , 204 S.W.2d 815, 1947 Ky. LEXIS 852 ( Ky. 1947 ); Farnsley v. Henderson, 240 S.W.2d 82, 1951 Ky. LEXIS 95 1 ( Ky. 1951 ); Shamburger v. Commonwealth, 240 S.W.2d 636, 1951 Ky. LEXIS 1014 ( Ky. 1951 ); Perry County v. Combs, 293 S.W.2d 571, 1956 Ky. LEXIS 75 ( Ky. 1956 ); Greenup County v. Millis, 303 S.W.2d 898, 1957 Ky. LEXIS 272 ( Ky. 1957 ); Ferguson v. Redding, 304 S.W.2d 927, 1957 Ky. LEXIS 291 ( Ky. 1957 ); Wright v. Oates, 314 S.W.2d 952, 1958 Ky. LEXIS 324 ( Ky. 1958 ); Veith v. Louisville, 355 S.W.2d 295, 1962 Ky. LEXIS 64 ( Ky. 1962 ); Commonwealth v. Howard, 379 S.W.2d 475, 1964 Ky. LEXIS 247 ( Ky. 1964 ); Fannin v. Davis, 385 S.W.2d 321, 1964 Ky. LEXIS 158 ( Ky. 1964 ); Ayotte v. Danville, 411 S.W.2d 929, 1967 Ky. LEXIS 494 ( Ky. 1967 ); Sarakatsannis v. Baker, 488 S.W.2d 683, 1972 Ky. LEXIS 48 ( Ky. 1972 ); Holsclaw v. Stephens, 507 S.W.2d 462, 1973 Ky. LEXIS 3 ( Ky. 1973 ); Brown v. Hartlage, 456 U.S. 45, 102 S. Ct. 1523, 71 L. Ed. 2d 732, 1982 U.S. LEXIS 92 (1982); Wiggins v. Stuart, 671 S.W.2d 262, 1984 Ky. App. LEXIS 513 (Ky. Ct. App. 1984).

    Opinions of Attorney General.

    The hospital administrator of the Allen County War Memorial Hospital is a county officer or employee, since he administers the affairs of the county-owned hospital. In either case this section limits the salary he may be paid. OAG 60-134 .

    The Governor is privileged, without reference to this section, to raise the salary of the commissioner of mental health to any amount which, in his opinion, is reasonably commensurate with the services rendered. OAG 61-594 .

    There is no limitation on the maximum compensation that a city may allow its city manager, regardless of whether he be classified as an officer or as an employee. OAG 61-1061 .

    Fees collected from independent school district, drainage board and other municipalities within counties are to be included with other official fees in fixing the limitation on salary of sheriff. OAG 62-56 .

    A county hospital administrator may receive an annual salary in excess of $7,200. OAG 62-258 .

    KRS 69.265 (repealed) was constitutional, since it dealt only with payment of expenses and did not constitute a change of salary during term or an increase of compensation to a point above the $7,200 maximum. OAG 63-34 .

    Increased compensation on the dollar-equation formula does not apply to public officers other than Circuit Judges. OAG 64-62 .

    The increase in compensation authorized by Acts 1964, ch. 109, for those constitutional officers designated in KRS 64.345 above the constitutional maximum is valid and constitutional. OAG 64-540 .

    The increase in compensation authorized by Acts 1964, ch. 109, for those constitutional officers designated in KRS 64.345 could not be granted during the officers’ present terms without violating Const., § 161. OAG 64-540 .

    Pursuant to Acts 1964, ch. 109, deputies, assistants and other employees of the county are no longer limited insofar as compensation is concerned or any change therein during their tenure except when so restricted by law. OAG 64-554 .

    KRS 64.720 specifically authorizes a fiscal court to pay the constable a salary out of the county treasury not to exceed $7,200 pursuant to this section. OAG 65-71 .

    The county attorney’s maximum income cannot rise above $7,200 in the absence of implementing legislative action. OAG 65-542 , 65-618.

    Under KRS 64.535 , the Circuit Court clerks and county court clerks of the Commonwealth are entitled to a maximum compensation of up to $9,600 beginning with the year 1964, conditioned upon the availability of fees of those offices for that purpose. OAG 65-543 .

    Where a sheriff resigned one (1) month before the end of his term and a new sheriff was appointed to fill out the term, the new sheriff was entitled to retain the excess fees collected in that month not to exceed $9,600. OAG 66-170 .

    The fiscal court, in its sound discretion, can establish the compensation or salary of the trial commissioner, and such discretion is not subject to the constitutional limitations of this section because a trial commissioner is not an officer. OAG 67-356 .

    A city which has the home rule statutes has the authority to increase the compensation of elective officers during their term under the “rubber dollar” theory. OAG 68-572 .

    A deputy county court clerk can be paid by the county for work performed in connection with the sheriff’s and treasurer’s settlements if properly authorized by the fiscal court, although such compensation is in addition to the salary for duties performed in the county court clerk’s office, and monetary restrictions of this section would not apply to the deputy, since a deputy county court clerk is not designated as such in the Constitution. OAG 70-65 .

    The fiscal court could implement a salary adjustment in the salary of the county judge subject to the maximum compensation of KRS 64.535 but it could not be retroactive. OAG 70-592 .

    A county clerk, in making his annual settlements with the county, must include in his income, as part of the receipts of his office, the salary paid to him for serving as clerk of the juvenile session of the county court which is a public and official service. OAG 71-147 .

    Where the clerk of the county court is being paid an additional salary as clerk of the juvenile court, that compensation must be added to all other compensation received for his public service in arriving at his maximum compensation under this section. OAG 71-147 .

    This section does not apply to county clerk deputies since they are not named in the Constitution. OAG 72-540 .

    This section would prohibit the secretary of state from receiving compensation for his membership on the state board of elections. OAG 72-639 .

    The salary limitations of this section do not apply to the office of city prosecutor. OAG 72-750 .

    Local legislative action to allow compensation in excess of the limit provided for local officers in this section must be preceded by an act of the General Assembly allowing such compensation above the constitutional limit but within the “rubber dollar” principle ( OAG 72-680 modified to the extent of conflict). OAG 72-818 .

    As the office of mayor is a constitutional office under the provisions of § 160, the salary of such constitutional officers is fixed by this section at a maximum of $7,200 per annum and could only be changed by action of the Legislature. OAG 73-52 .

    Where the present county clerk plans to resign before November 1, 1973, and a deputy clerk will be appointed to serve out the remainder of the clerk’s term ending the first Monday in January, 1974, the present clerk can retain the $12,600 he has earned which is the statutory limit and the successor clerk can retain all salary and fees earned during November and December 1973, not to exceed the statutory limit, as the compensation limitation of this section applies to the officer and not to the office so that successive holders of the same office during a single year are each held only to the salary and fees earned while they are in office, subject to the maximum. OAG 73-742 .

    The rubber dollar principle surmounts the constitutional inhibitions of this section, establishing a compensation level of $7,200 per year, as well as of Const., §§ 161 and 235, prohibiting a change in a constitutional officer’s compensation during his term, where an adjustment is made by an express act of the General Assembly. OAG 74-314 .

    The fiscal court may in its discretion increase or decrease the salaries payable out of county funds of all the officers named in KRS 64.535 , except justices of the peace or commissioners serving on the fiscal courts, as certified by the Kentucky Department of Commerce prior to the second Friday in February of each year, which increase or decrease is to be based on changes in the consumer price index for 1949. OAG 74-322 .

    Reimbursement of a county judge, by the county on order of the fiscal court, for life, health and accident insurance premiums paid by him for himself would be reimbursement of official expenses in the public interest and would not have to be calculated within the maximum authorized by KRS 64.535 as a permissible adjustment of the $7,200 per year level provided in this section. OAG 74-347 .

    There is no statutory or constitutional limit in the amount of compensation that a city prosecuting attorney can receive as he is not a constitutional officer. OAG 75-29 .

    In determining the maximum salary of the officers named in KRS 64.527 , the Department of Commerce (now Commerce Cabinet) must equate the current consumer price index and the current salary ceilings with the value of the dollar as it existed in March, 1949 when this section was adopted. OAG 75-79 .

    Where a circuit clerk also is master commissioner his maximum salary from the fees of both offices is limited to the maximum salary allowed circuit clerks. OAG 75-626 .

    The “rubber dollar” theory would not be applicable to a city utility commission whose members are not constitutionally named officers. OAG 76-44 .

    Since members of a city water and sewer commission are appointed and not elected officers, there would be no legal objection to the city council increasing the compensation of the utility board members by amending the ordinance which established the commission. OAG 76-44 .

    The maximum compensation of circuit clerks is established by the Constitution and may not be exceeded regardless of the number of sources of public compensation. OAG 76-169 .

    Although the legislative intent was to include the justices of the peace under the general annual maximum compensation formula which computes a salary level by applying the change in the consumer price index to the 1949 base of $7,200, the fiscal courts, in voting on salaries for justices of the peace, should consider the justices’ work schedules. OAG 76-220 .

    Where the fiscal court had not exhausted its salary fixing authority, the fiscal court, in its sound discretion, could enter an order adjusting the salary of an incumbent county judge upward to the maximum compensation provided for in this section. OAG 76-228 .

    The salaries of justices of the peace and other constitutional officers mentioned in KRS 64.527 can be raised during their term of office, since the salaries are merely being adjusted in purchasing power. OAG 76-252 .

    Until the Legislature acts to raise the compensation of the office of mayor of a fourth class city, the maximum salary for that office would be $7,200. OAG 76-320 .

    If the Legislature enacts legislation giving the circuit clerks duties coextensive with the Commonwealth, that would qualify the circuit clerks under the $12,000 monetary level. OAG 76-523 .

    The compensation limits set forth in this section of the Constitution are based on the purchasing power of the 1949 dollar and are therefore adjustable to its fluctuations, but a court could set aside such salaries if the evidence in a taxpayers’ suit would show that the time spent by the magistrates on county business is such that payment of such salaries would be arbitrary under § 2 of the Constitution. OAG 78-426 .

    Under the rubber dollar theory the fiscal court at any time, in implementing KRS 64.527 , can adjust the salaries of the justices of the peace upward, subject to the maximum rubber dollar amount payable. OAG 78-426 .

    This section of the Constitution and KRS 64.640 have no application to personal service contracts, and KRS 18.140 (now KRS 18A.115 ), as amended in 1978, expressly exempts persons employed in a professional or scientific capacity from the classified service. OAG 78-692 .

    To get constitutional officer’s compensation in proper perspective, one must consider two (2) levels of compensation restriction: (1) the overall constitutional maximum based upon the adjustment of the dollar in terms of change in the consumer price index formula enunciated by the appellate court as applied to the monetary base levels set out in this section of the Constitution; and (2) the statutory maximum compensation which, of course, must not exceed the constitutional maximum. OAG 78-840 .

    For purposes of audit, under KRS 43.070 , and for the purpose of determining the sheriff’s aggregate rubber dollar income under this section, payments made by the Army Corps of Engineers to county sheriffs under contracts to provide law enforcement to designated civil works water resource projects are to financially assist the sheriffs to step up law enforcement activities in such projects during peak visitation periods, are impressed with a public fee character, accrue to the office, and count toward the aggregate rubber dollar limit for that year. OAG 79-454 .

    A $5.00 fee for accepting bail bonds after normal office hours does not belong to the jailer, personally, but must be included in the fees of his office. OAG 80-9 .

    For 1980, the maximum compensation permissible for constitutional officers who are in the $7,200 limit category under this section would be $23,184. OAG 80-74 .

    In terms of an advancing consumer price index, the year 1949 must necessarily be used as the base year in applying the salary adjustment formula for constitutional officers. OAG 80-74 .

    The $7,200 category applies to the county judge/executives, county clerks, sheriffs, justices of the peace, county commissioners, coroners, and jailers. OAG 80-74 .

    The $12,000 category mentioned in this section applies to the Lieutenant Governor, Attorney General, Superintendent of Public Instruction, Commissioner of Agriculture, Secretary of State, State Treasurer, Auditor of Public Accounts, and Clerk of the Supreme Court and to Commonwealth’s Attorneys and County Attorneys. OAG 80-74 .

    Following the 1980 adjustment, the maximum compensation permissible for constitutional officers who are in the $12,000 limit category mentioned in this section would be $38,640. OAG 80-74 .

    Since the compensation for mayors of cities of the third class has not been legislated upon by the General Assembly, the incumbent is not entitled to a cost of living raise during his term and the maximum compensation that he can receive is $7,200. OAG 80-79 .

    Where a county jailer is also acting as a police dispatcher for the county sheriff’s office, for which latter work he receives $2,500 per year, that amount for dispatcher is to be applied to his statutory limitation of $23,184 for 1980, since the rubber dollar maximum applies annually to the same person for “public services,” whether such services are rendered in one position or more than one. OAG 80-269 .

    Where a fiscal court fixed the salary of the county attorney at $150 per month, commencing January 1, 1978, and after he took office in January, 1978, the fiscal court entered an order raising his salary to $600 per month thereby increasing his annual salary from $1,800 per year to $7,200 per year, there was no prohibited change in his compensation, as is prohibited by Const., § 161, since his compensation was merely adjusted to reflect the change in purchasing power of the dollar as reflected in the consumer price index. OAG 80-424 .

    A jailer who was receiving the maximum annual salary rate could not contract out services to the local government for payment since, if he was getting additional money from urban county government as compensation for any statutory duties, such extra money would violate this section and KRS 64.527 , and the extra money was recoverable to the public treasury. OAG 80-525 .

    The constitutional restriction on salaries of officers relates strictly to public funds or public moneys. OAG 80-525 .

    The $7,200 monetary level of this section applies to county judges/executive, county clerks, sheriffs, justices of the peace, county commissioners, coroners and jailers, pursuant to KRS 64.527 ; the implementation of the indexed principle will depend upon the fiscal court setting salaries payable out of the county treasury and operation of the fee system for fee officers and, thus, the fee officer can apply fees earned by himself or herself, without any action on the part of fiscal court, up to the maximum payable for the particular year under the indexed system. OAG 82-80 ; 83-38; 84-54.

    A county attorney’s compensation as prosecutor and as civil attorney for the county must be added together to apply the rule of constitutional limitation of salary in this section. OAG 82-159 .

    While the maximum salary, as set forth in this section and indexed under the consumer price index concept, must apply to the same person for public services, regardless of whether such services are rendered in one position or more than one, the circuit clerk can accept a salary as law librarian, provided that the regular clerk’s salary and the library salary in the aggregate do not exceed the rubber dollar maximum for the particular year. OAG 82-177 .

    Any “salary” paid to a jailer under KRS 67.130 in 1979 and 1980 must be considered in the total “statutory” compensation permitted the jailer for those years under the rubber dollar compensation. OAG 82-333 .

    Where a jailer was paid a salary for janitorial work in the courthouse, the “salary” would be an unconstitutional addition to his regular jailer’s compensation, provided that regular jailer compensation was at the maximum rubber dollar amount permitted by KRS 64.527 and this section. OAG 82-333 .

    The rubber dollar cases reflect the constitutional principle that the dollar, as relates to constitutional officer compensation as outlined by maximum level in this section, is subject to purchasing power adjustment in terms of the evolving Consumer Price Index. The cases also make it clear that the actual application of the rubber dollar concept requires specific statutory implementation by the General Assembly. OAG 82-348 .

    Where magistrates’ salaries on the first Monday in May in 1981 (election year) were set at $10,000 per magistrate, the fiscal court could authorize a salary to each magistrate, not to exceed $28,387 for the calendar year of 1982. However, since the magistrates on fiscal court have no executive duties, they should only be paid in terms of the work week they put in for the county. OAG 82-348 .

    The compensation which the county attorney could receive for performing his or her prosecutorial function in 1988 was $34,861. OAG 88-10 .

    The Governor’s salary for 1988 was $68,364. OAG 88-10 .

    The maximum annual compensation for the Lieutenant Governor, Attorney General, Superintendent of Public Instruction, Commissioner of Agriculture, Secretary of State, State Treasurer, Auditor of Public Accounts and Clerk of the Supreme Court of this Commonwealth was $58,101. OAG 88-10 .

    The maximum annual compensation possible for the county attorney for 1988 was $58,101. OAG 88-10 .

    The maximum annual compensation possible for county judge/executives, justices of the peace, county commissioners, county clerks, sheriffs, jailers and coroners, mayors (except in cities of the first class), and city legislative body members in 1988 was $34,861. OAG 88-10 .

    The maximum annual compensation possible for full-time and part-time Commonwealth’s Attorneys for 1988 was $58,101. OAG 88-10 .

    The maximum annual compensation possible for the mayor in a first class city in 1988 was $58,101. OAG 88-10 .

    If a city’s legislative body chooses to make “rubber dollar” adjustments, it may do so at any time following publication of that year’s “rubber dollar” changes. OAG 90-2 .

    The members of the Board of Aldermen for the City of Louisville may adjust their salaries by any percentage up to the maximum as calculated for that particular year. OAG 90-2 .

    Computations of the maximum annual compensation of state, county, and city constitutional officers are required to be annually computed by the second Friday in February using the “rubber dollar” theory adopted by the court in Matthews v. Allen, 360 S.W.2d 135, 1962 Ky. LEXIS 211 ( Ky. 1962 ) and Commonwealth v. Hesch, 395 S.W.2d 362, 1965 Ky. LEXIS 141 ( Ky. 1965 ). OAG 90-17 .

    In relation to the compensation of a County Attorney for his or her prosecutorial duties current compensation for such duties is to be computed based upon the $7200 maximum established by this section resulting in maximum allowable compensation for prosecutorial duties in 1991 of $40,427. OAG 91-29 .

    In relation to the state prosecutorial duties of the County Attorney under KRS 15.725(2), such officer is to be compensated as provided in KRS 15.765 , under a CPI formula using 1949 as the base year, in accordance with this section which provides for compensation of not more than $12,000 per annum and the Department of Local Government accurately computed the maximum annual compensation for the County Attorney as $67,378. OAG 91-29 .

    Where the Department of Local Government’s computations in adjusting salaries of constitutional officers in relation to changes in the Consumer Price Index were based upon the court-established formula application of this section which sets forth maximum compensation levels for state and local governmental constitutional officers, the computations were accurate. OAG 91-29 .

    Because they are for services beyond the official services required of a county attorney, payments to county attorneys or their employees, from funds of Title IV-D of the United States Social Security Act, as reimbursement for salary costs pursuant to federal law, are not subject to this section. OAG 92-161 .

    Payments authorized under specific federal legislation, on a reimbursement basis, for salary costs of local officials associated with specific compliance with a contract with a state agency consistent with federal law, are payments for other than official services, and thus are not limited by this section. OAG 92-161 .

    For an opinion verifying the accuracy of computations to be used in adjusting salaries of constitutional officers in relation to changes in the Consumer Price Index, see OAG 93-21 .

    For the adjustments to salaries of constitutional officers in relation to changes in the Consumer Price Index salary adjustment computations and therefore, the maximum annual compensation allowable by law for such positions in 1994 see OAG 94-7 .

    While the Governor may issue executive orders pursuant to the powers granted in Const., §§ 76 to 81 or specifically delegated by the General Assembly, no known grant of power to the Governor authorizes him to declare public policy in contravention of policy established by the General Assembly; therefore, since KRS 64.527 makes a plain expression of public policy declaring that county clerks are subject to salary maximum applicable to “all other public officers” rather than the salary maximum applicable to “officers whose jurisdiction or duties are coextensive with the Commonwealth”, executive order that declared that county clerks are officials whose duties are coextensive with the Commonwealth for the purposes of constitutional salary computations was of no effect. OAG 96-32 .

    Research References and Practice Aids

    Cross-References.

    Compensation not to be changed during term, Const., §§ 161, 235.

    Compensation of governor, KRS 64.480 .

    Compensation of public officers, generally, KRS 64.480 to 64.740 .

    Deductions for neglect of duty, Const., § 235; KRS 61.120 to 61.150 .

    Kentucky Bench & Bar.

    Howerton, Kentucky’s Constitution: An Antique in Need of Repair, volume 51, No. 4, Fall 1987 Ky. Bench & B. 34.

    Kentucky Law Journal.

    Kentucky Law Survey, Morris, Municipal Law, 70 Ky. L.J. 287 (1981-82).

    § 247. Public printing — Contract for — Officers not to have interest in — Governor to approve.

    The printing and binding of the laws, journals, department reports, and all other public printing and binding, shall be performed under contract, to be given to the lowest responsible bidder, below such maximum and under such regulations as may be prescribed by law. No member of the General Assembly, or officer of the Commonwealth, shall be in any way interested in any such contract; and all such contracts shall be subject to the approval of the Governor.

    NOTES TO DECISIONS

    1.Purpose.

    The objective of this section was to insure that the Commonwealth would not be required or permitted to expend more for its printing and binding than was necessary and to enable it to obtain these requirements at the lowest possible cost. State Journal Co. v. Commonwealth, 289 Ky. 808 , 160 S.W.2d 145, 1942 Ky. LEXIS 636 ( Ky. 1942 ).

    2.Application.

    This section does not apply to such printing as is contingent, incidental or casual. Stone v. Dispatch Pub. Co., 55 S.W. 725, 21 Ky. L. Rptr. 1473 , 1900 Ky. LEXIS 536 (Ky. Ct. App. 1900).

    3.Binding.

    The printing contractor’s right to furnish printing is not limited to material which is to be bound. State Journal Co. v. Commonwealth, 289 Ky. 808 , 160 S.W.2d 145, 1942 Ky. LEXIS 636 ( Ky. 1942 ).

    4.Counties.

    This section refers only to public printing of the state and not to printing of the county, such as printing of ballots. Krieger v. Standard Printing Co., 191 Ky. 552 , 231 S.W. 27, 1921 Ky. LEXIS 352 ( Ky. 1921 ).

    5.State Agencies.

    This section does not confer upon the printing contractor the right to do all of the state’s printing and binding nor prohibit the doing of multigraphing and minor printing services by state agencies. State Journal Co. v. Commonwealth, 289 Ky. 808 , 160 S.W.2d 145, 1942 Ky. LEXIS 636 ( Ky. 1942 ).

    Cited:

    Keck v. Manning, 313 Ky. 433 , 231 S.W.2d 604, 1950 Ky. LEXIS 897 ( Ky. 1950 ).

    Research References and Practice Aids

    Cross-References.

    Public printing, KRS Ch. 57.

    § 248. Juries — Number of jurors — Three-fourths may indict or give verdict.

    A grand jury shall consist of twelve persons, nine of whom concurring, may find an indictment. In civil and misdemeanor cases, in courts inferior to the Circuit Courts, a jury shall consist of six persons. The General Assembly may provide that in any or all trials of civil actions in the Circuit Courts, three-fourths or more of the jurors concurring may return a verdict, which shall have the same force and effect as if rendered by the entire panel. But where a verdict is rendered by a less number than the whole jury, it shall be signed by all the jurors who agree to it.

    NOTES TO DECISIONS

    1.Construction.

    This section does not interfere with the ancient mode of trial by jury. Lakes v. Goodloe, 195 Ky. 240 , 242 S.W. 632, 1922 Ky. LEXIS 342 ( Ky. 1922 ).

    The provisions of this section are self-executing. Branham v. Commonwealth, 209 Ky. 734 , 273 S.W. 489, 1925 Ky. LEXIS 591 ( Ky. 1925 ), overruled, Short v. Commonwealth, 519 S.W.2d 828, 1975 Ky. LEXIS 182 ( Ky. 1975 ).

    2.Qualifications.

    This section provides that a jury shall be composed of persons, and the law defines the qualification of such persons, and the question of whether or not persons presented for jury service have the statutory and constitutional qualification rests in the decision of trial court. McLaughlin v. Commonwealth, 192 Ky. 206 , 232 S.W. 628, 1921 Ky. LEXIS 40 ( Ky. 1921 ).

    3.Number Required for Verdict.

    Under this section and statutes, where only six (6) of the jurors who signed the liability verdict also signed the damages verdict, the verdict was void. Baxter v. Tankersley, 416 S.W.2d 737, 1967 Ky. LEXIS 283 ( Ky. 1967 ), overruled, Young v. J.B. Hunt Transp., Inc., 781 S.W.2d 503, 1989 Ky. LEXIS 84 ( Ky. 1989 ).

    4.Special Interrogatories.

    Each special interrogatory submitted to a jury is to be treated as a separate verdict which may be reached by any nine (9) or more members of the panel. Young v. J.B. Hunt Transp., Inc., 781 S.W.2d 503, 1989 Ky. LEXIS 84 ( Ky. 1989 ).

    5.Bastardy Proceedings.

    Instruction in bastardy proceeding that verdict must be unanimous was prejudicially erroneous to complainant, since bastardy proceedings are civil, not criminal. Commonwealth ex rel. Baker v. Bondie, 277 Ky. 207 , 126 S.W.2d 148, 1939 Ky. LEXIS 639 ( Ky. 1939 ).

    6.Circuit Courts.

    A Circuit Court petit jury consists of 12 persons. Branham v. Commonwealth, 209 Ky. 734 , 273 S.W. 489, 1925 Ky. LEXIS 591 ( Ky. 1925 ), overruled, Short v. Commonwealth, 519 S.W.2d 828, 1975 Ky. LEXIS 182 ( Ky. 1975 ).

    This section gives the General Assembly an option in the matter of the right to change the rule of unanimity in trials of civil actions in Circuit Courts. Branham v. Commonwealth, 209 Ky. 734 , 273 S.W. 489, 1925 Ky. LEXIS 591 ( Ky. 1925 ), overruled, Short v. Commonwealth, 519 S.W.2d 828, 1975 Ky. LEXIS 182 ( Ky. 1975 ).

    7.Condemnation Suits.

    The county court may empanel a jury of 12 men in a condemnation proceeding. Louisville & N. R. Co. v. Lang, 160 Ky. 702 , 170 S.W. 2, 1914 Ky. LEXIS 512 ( Ky. 1914 ). See Louisville & N. R. Co. v. Western U. Tel. Co., 207 F. 1, 1913 U.S. App. LEXIS 1597 (6th Cir. Ky. 1913 ).

    Damages in condemnation proceedings must be assessed unanimously by a jury of 12. Hazard v. Combs, 213 Ky. 750 , 281 S.W. 993, 1926 Ky. LEXIS 613 ( Ky. 1926 ).

    8.Criminal Actions.

    Conviction of accused for a felony, on trial by seven (7) jurors instead of 12, by agreement of parties was void under this section, and bad faith of accused in making such agreement was immaterial. Branham v. Commonwealth, 209 Ky. 734 , 273 S.W. 489, 1925 Ky. LEXIS 591 ( Ky. 1925 ), overruled, Short v. Commonwealth, 519 S.W.2d 828, 1975 Ky. LEXIS 182 ( Ky. 1975 ).

    An accused, upon a plea of not guilty in a felony case, may waive his right to a jury trial or may agree to trial by jury of less than 12 members, if consent of the government counsel and the court’s sanction have been obtained and if accused’s waiver is made intelligently and voluntarily. Short v. Commonwealth, 519 S.W.2d 828, 1975 Ky. LEXIS 182 ( Ky. 1975 ).

    9.Federal Law.

    An instruction permitting a verdict to be made by nine (9) jurymen is proper in an action under the federal employer’s liability act. Louisville & N. R. Co. v. Thomas' Adm'r, 170 Ky. 145 , 185 S.W. 840, 1916 Ky. LEXIS 36 ( Ky. 1916 ).

    10.Grand Jury.

    Under this section an indictment found by a grand jury consisting of more than 12 persons is void. Downs v. Commonwealth, 92 Ky. 605 , 18 S.W. 526, 13 Ky. L. Rptr. 820 , 1892 Ky. LEXIS 27 ( Ky. 1892 ).

    Law allowing official stenographer to be present in grand jury room during examination of witnesses does not violate this section. Alford v. Commonwealth, 240 Ky. 513 , 42 S.W.2d 711, 1931 Ky. LEXIS 435 ( Ky. 1931 ).

    “Indictment” is an accusation made in behalf of the people, is formed by concurrence of nine (9) or more grand jurors in proper session, is completed by return or delivery to court, and charges defendant with crime over which Circuit Court has jurisdiction. Nicholas v. Thomas, 382 S.W.2d 871, 1964 Ky. LEXIS 366 ( Ky. 1964 ).

    11.Inferior Courts.

    Under this section a jury in a court inferior to the Circuit Court is composed of six (6) persons only, and this applied to prosecutions under statute relating to intoxicating liquors wherein quarterly courts and justices’ courts were given jurisdiction. Lakes v. Goodloe, 195 Ky. 240 , 242 S.W. 632, 1922 Ky. LEXIS 342 ( Ky. 1922 ).

    The fact that there was no provision for the jurors in a police court case to be paid did not prevent the jury from being legally constituted. Clifton v. Blackburn, 468 S.W.2d 267, 1971 Ky. LEXIS 323 ( Ky. 1971 ).

    12.Inquests.

    Where an inquest concerning the mental capacity of a grantor was held by a county judge presiding over the Circuit Court and a jury of only six (6) jurors was empaneled, the proceedings were defective. Burris v. Burris, 341 S.W.2d 265, 1960 Ky. LEXIS 79 ( Ky. 1960 ).

    Cited:

    Chesapeake & O. R. Co. v. Kelly, 241 U.S. 485, 36 S. Ct. 630, 60 L. Ed. 1117, 1916 U.S. LEXIS 1728 (1916); Stone v. Saunders, 106 Ky. 904 , 21 Ky. L. Rptr. 534 , 51 S.W. 788, 1899 Ky. LEXIS 113 ( Ky. 1899 ); Ehrlich v. Commonwealth, 131 Ky. 680 , 115 S.W. 797, 1909 Ky. LEXIS 62 ( Ky. 1909 ); Terrell v. Commonwealth, 194 Ky. 608 , 240 S.W. 81, 1922 Ky. LEXIS 212 ( Ky. 1922 ); Lee v. Commonwealth, 210 Ky. 410 , 276 S.W. 127, 1925 Ky. LEXIS 691 ( Ky. 1925 ); Cannon v. Commonwealth, 291 Ky. 50 , 163 S.W.2d 15, 1942 Ky. LEXIS 165 ( Ky. 1942 ); Harrod v. Commonwealth, 253 S.W.2d 574, 1952 Ky. LEXIS 1098 ( Ky. 1952 ); Beach v. Lady, 262 S.W.2d 837, 1953 Ky. LEXIS 113 9 ( Ky. 1953 ); Democratic Party v. Graham, 976 S.W.2d 423, 1998 Ky. LEXIS 126 ( Ky. 1998 ).

    Opinions of Attorney General.

    In civil and misdemeanor cases, in courts inferior to the Circuit Courts, a jury consists of six (6) persons. OAG 64-593 .

    Since a police court in a fifth-class city has no detailed statutory direction concerning jury selection, the selection is the same as at common law subject to any statutory modification. OAG 71-226 .

    Bastardy cases may be tried by juries consisting of six (6) persons. OAG 71-425 .

    The impaneling of a grand jury is the responsibility of the Circuit Judge and there is no requirement that the Commonwealth’s Attorney be given notice thereof, be present in court at the impaneling or be given an opportunity to challenge prospective grand jurors. OAG 74-740 .

    Research References and Practice Aids

    Cross-References.

    Juries, KRS Ch. 29A.

    Right to jury trial, Ky. Const., § 7.

    Kentucky Law Journal.

    Snyder and Irland, The Separation of Governmental Powers Under the Constitution of Kentucky: A Legal and Historical Analysis of L.R.C. v. Brown, 73 Ky. L.J. 165 (1984-85).

    Treatises

    Kentucky Instructions to Juries (Civil), 5th Ed., Animals, § 15.01.

    Kentucky Instructions to Juries (Civil), 5th Ed., General Principles, § 13.20.

    § 249. Employees of General Assembly — Number and compensation.

    The House of Representatives of the General Assembly shall not elect, appoint, employ or pay for, exceeding one Chief Clerk, one Assistant Clerk, one Enrolling Clerk, one Sergeant at Arms, one Doorkeeper, one Janitor, two Cloakroom Keepers and four Pages; and the Senate shall not elect, appoint, employ or pay for, exceeding one Chief Clerk, one Assistant Clerk, one Enrolling Clerk, one Sergeant at Arms, one Doorkeeper, one Janitor, one Cloakroom Keeper and three Pages; and the General Assembly shall provide, by general law, for fixing the per diem or salary of all of said employees.

    NOTES TO DECISIONS

    1.Construction.

    This section forbids the election, appointment, employment or pay of any employees by the branches of the Legislature except those specifically mentioned in this section. Walker v. Coulter, 113 Ky. 814 , 68 S.W. 1108, 24 Ky. L. Rptr. 530 , 1902 Ky. LEXIS 106 ( Ky. 1902 ). See James v. Cromwell, 129 Ky. 508 , 112 S.W. 611, 33 Ky. L. Rptr. 1024 , 1908 Ky. LEXIS 184 ( Ky. 1908 ).

    This section does not create positions nor require their filling. Shanks v. Howes, 214 Ky. 613 , 283 S.W. 966, 1926 Ky. LEXIS 383 ( Ky. 1926 ).

    2.Election of Officers.

    Election of officers is an executive function, though the Legislature may perform it. Pratt v. Breckinridge, 112 Ky. 1 , 65 S.W. 136, 23 Ky. L. Rptr. 1356 , 1901 Ky. LEXIS 286 ( Ky. 1 901).

    3.Power of Appointment.

    The power of appointment may not be exercised in any cases other than those specified in this section and Const., § 34. Pratt v. Breckinridge, 112 Ky. 1 , 65 S.W. 136, 23 Ky. L. Rptr. 1356 , 1901 Ky. LEXIS 286 ( Ky. 1 901).

    4.Temporary Employees.

    This section prohibits the senate from paying claim for wages of a temporary porter. Walker v. Coulter, 113 Ky. 814 , 68 S.W. 1108, 24 Ky. L. Rptr. 530 , 1902 Ky. LEXIS 106 ( Ky. 1902 ).

    5.Unlawful Employees.

    Payment for an employee unlawfully hired cannot be made as a contingent expense, and it is immaterial that such employment was authorized by joint resolution of both houses. Shanks v. Julian, 213 Ky. 291 , 280 S.W. 1081, 1926 Ky. LEXIS 502 ( Ky. 1926 ).

    Chief clerk of House of Representatives who hired assistants pursuant to house resolution was not entitled to credit for the salaries paid them in figuring his constitutional salary limitation, since their employment was not authorized by this section. Sanders v. Talbott, 255 Ky. 50 , 72 S.W.2d 758, 1934 Ky. LEXIS 185 ( Ky. 1934 ).

    Cited:

    Commissioners of Sinking Fund v. George, 104 Ky. 260 , 20 Ky. L. Rptr. 938 , 47 S.W. 779, 1898 Ky. LEXIS 211 ( Ky. 1898 ); Sibert v. Garrett, 197 Ky. 17 , 246 S.W. 455, 1922 Ky. LEXIS 639 ( Ky. 1922 ).

    Opinions of Attorney General.

    The officers and employees chosen by the General Assembly pursuant to KRS 6.150 are not exempt from the Frankfort occupational license tax as elected officers. OAG 68-66 .

    Since an employee of the Legislative Research Commission is not an employee of the legislative branch of the government under this section, he is not prevented by §§ 27 and 28 of the Constitution from serving as a trustee for the Kentucky retirement system. OAG 73-817 .

    The Legislative Research Commission and the interim committees under its auspices are to be considered part of the executive branch and not the legislative branch. OAG 75-142 .

    A statute properly drawn creating interim legislative committees of the general assembly would be constitutionally permissible, but since this section specifically limits the number and names of legislative employees, such committees could not employ or compensate other personnel to perform investigative or research functions and any such ancillary personnel would have to be members or employees of the executive branch of state government. OAG 75-391 .

    Research References and Practice Aids

    Cross-References.

    Number and compensation of officers and employees, KRS 6.150 , 6.230 .

    Officers of General Assembly, Const., § 34.

    Kentucky Law Journal.

    Snyder and Irland, The Separation of Governmental Powers Under the Constitution of Kentucky: A Legal and Historical Analysis of L.R.C. v. Brown, 73 Ky. L.J. 165 (1984-85).

    § 250. Arbitration, method for to be provided.

    It shall be the duty of the General Assembly to enact such laws as shall be necessary and proper to decide differences by arbitrators, the arbitrators to be appointed by the parties who may choose that summary mode of adjustment.

    NOTES TO DECISIONS

    1.Applicability.

    Home buyers did not demonstrate that KRS 417.045 et seq., regarding arbitration, violated the separation of powers doctrine in Ky. Const. §§ 27 and 28 because Ky. Const. § 250 specifically vested the legislature with the authority to create an arbitration system in Kentucky. Dutschke v. Jim Russell Realtors, Inc., 281 S.W.3d 817, 2008 Ky. App. LEXIS 248 (Ky. Ct. App. 2008).

    Home buyers did not demonstrate that KRS 417.045 et seq., regarding arbitration, violated the buyers’ right to a jury trial in Ky. Const. § 7 because Ky. Const. § 7 contemplated that there could be exceptions to the right, and Ky. Const. § 250, providing for the establishment of a system of arbitration, which, by definition, did not include a trial by jury, was such an exception. Dutschke v. Jim Russell Realtors, Inc., 281 S.W.3d 817, 2008 Ky. App. LEXIS 248 (Ky. Ct. App. 2008).

    Trial court properly denied the nursing homes' motions for relief from judgments because, while arbitration was not only sanctioned, but indeed promoted, by the Kentucky Constitution, the arbitration agreements at issue were never validly formed where the powers vested in the attorneys-in-fact did not encompass the power to enter into an arbitration agreements regarding the claims of their decedents, the authority to waive the decedents' constitutional rights of access to the courts by court or jury and to appeal to a higher court were not explicitly set out in the power-of-attorney document, and the attorneys-in-fact were not authorized to enter into arbitration agreements on behalf of the wrongful death beneficiaries. Extendicare Homes, Inc. v. Whisman, 478 S.W.3d 306, 2015 Ky. LEXIS 1867 ( Ky. 2015 ), rev'd in part, vacated, 137 S. Ct. 1421, 197 L. Ed. 2d 806, 2017 U.S. LEXIS 2948 (U.S. 2017).

    2.Workmen’s Compensation.

    The members of the Workmen’s Compensation Board are arbitrators within this section of the Constitution. Greene v. Caldwell, 170 Ky. 571 , 186 S.W. 648, 1916 Ky. LEXIS 126 ( Ky. 19 16 ). See Ashland Iron & Mining Co. v. McDaniel's Dependents, 202 Ky. 19 , 258 S.W. 943, 1924 Ky. LEXIS 663 ( Ky. 1924 ).

    3.Class Action Waiver.

    Class action ban was enforceable, because in cases governed by the Federal Arbitration Act, the decision of the United States Supreme Court in Conception precluded enforcement of a state policy invalidating upon grounds of unconscionability, a contractual waiver of class action participation, where the unconscionability was based solely upon the fact that the dispute involved a large number of de minimis claims which were unlikely to be individually litigated. Schnuerle v. Insight Communs., Co. L.P., 376 S.W.3d 561, 2012 Ky. LEXIS 104 ( Ky. 2012 ).

    Cited:

    Fite & Warmath Constr. Co. v. MYS Corp., 559 S.W.2d 729, 1977 Ky. LEXIS 559 ( Ky. 1977 ); Valley Constr. Co. v. Perry Host Management Co., 796 S.W.2d 365, 1990 Ky. App. LEXIS 128 (Ky. Ct. App. 1990).

    Opinions of Attorney General.

    The Legislature could not constitutionally require the arbitration of medical negligence cases but could create a method of arbitration whereby parties could agree in advance to arbitrate medical negligence claims. OAG 75-543 .

    Research References and Practice Aids

    Cross-References.

    Arbitration and award, KRS ch. 417.

    Kentucky Law Journal.

    Kentucky Law Survey, Warner, Remedies, 67 Ky. L.J. 665 (1978-1979).

    § 251. Limitation of actions to recover possession of land based on early patents.

    No action shall be maintained for possession of any lands lying within this State, where it is necessary for the claimant to rely for his recovery on any grant or patent issued by the Commonwealth of Virginia, or by the Commonwealth of Kentucky prior to the year one thousand eight hundred and twenty, against any person claiming such lands by possession to a well-defined boundary, under a title of record, unless such action shall be instituted within five years after this Constitution shall go into effect, or within five years after the occupant may take possession; but nothing herein shall be construed to affect any right, title or interest in lands acquired by virtue of adverse possession under the laws of this Commonwealth.

    NOTES TO DECISIONS

    1.Application.

    The limitation herein provided applies only when defendant is holding under a patent issued by the Commonwealth and not violating the Compact with Virginia. Golden v. Blakeman, 223 Ky. 517 , 3 S.W.2d 1095, 1928 Ky. LEXIS 371 ( Ky. 1928 ), overruled, Warfield Natural Gas Co. v. Ward, 286 Ky. 73 , 149 S.W.2d 705, 1940 Ky. LEXIS 1 ( Ky. 1940 ).

    The limitation may be pleaded against a claimant who relies on a paper title traceable to a Kentucky or Virginia patent issued before 1820 by one who shows (a) possession by himself or a predecessor under a recorded title founded on a later grant from Kentucky when the Constitution became effective, or (b) five (5) years’ possession prior to commencement of action against him. Warfield Natural Gas Co. v. Ward, 286 Ky. 73 , 149 S.W.2d 705, 1940 Ky. LEXIS 1 ( Ky. 1940 ).

    2.Pleading and Proof.

    When in a case the issue of proving title from Commonwealth is res adjudicata, or the issue is confined to the location of a single dividing line rather than of an entire boundary, title from Commonwealth need not be proved. Reynolds v. Cobb, 286 Ky. 329 , 150 S.W.2d 702, 1941 Ky. LEXIS 254 ( Ky. 1941 ).

    3.Adverse Possession.

    In action to quiet title wherein defendants claimed under a Virginia patent and plaintiffs claimed that defendants’ claim was unenforceable because of limitation, case presented a question of adverse possession, with burden resting upon plaintiffs to establish title by prescription. Warfield Natural Gas Co. v. Ward, 286 Ky. 73 , 149 S.W.2d 705, 1940 Ky. LEXIS 1 ( Ky. 1940 ).

    Invocation of this section reduces the issue to one of adverse possession. Warfield Natural Gas Co. v. Ward, 286 Ky. 73 , 149 S.W.2d 705, 1940 Ky. LEXIS 1 ( Ky. 1940 ).

    4.Defective Title.

    Possessor may recover though his title be defective if it is sufficient to give color of title. Warfield Natural Gas Co. v. Ward, 286 Ky. 73 , 149 S.W.2d 705, 1940 Ky. LEXIS 1 ( Ky. 1940 ).

    5.Five-year Period.

    Where land was occupied by plaintiff’s predecessors and possession continued for over 15 years under deed describing land by metes and bounds, expansion of plaintiff’s claim under subsequent deeds to adjacent lands did not cause cessation of limitation running in favor of original boundaries. Pioneer Coal Co. v. Taylor & Crate, 5 F.2d 770, 1925 U.S. App. LEXIS 2751 (6th Cir. Ky. 1925 ).

    This section was adopted in 1891, and there could be no recovery of land after the lapse of five (5) years, during which time appellee and those claiming under him were in peaceable possession of the land. Steele v. Jackson, 140 Ky. 821 , 131 S.W. 1032, 1910 Ky. LEXIS 379 ( Ky. 1910 ).

    6.Statutes.

    Law providing that no action shall be maintained for recovery of land under this section unless plaintiff has paid taxes for 20 years preceding action was unconstitutional. Flinn v. Blakeman, 254 Ky. 416 , 71 S.W.2d 961, 1934 Ky. LEXIS 90 ( Ky. 1934 ), overruled, Warfield Natural Gas Co. v. Ward, 286 Ky. 73 , 149 S.W.2d 705, 1940 Ky. LEXIS 1 ( Ky. 1940 ).

    7.Title of Record.

    This section protects only persons in possession under a patent from the Commonwealth issued to them or their vendors, the words “title of record” meaning a title from the Commonwealth. Shaw v. Robinson, 111 Ky. 715 , 64 S.W. 620, 23 Ky. L. Rptr. 998 , 1901 Ky. LEXIS 242 ( Ky. 1901 ). See Golden v. Blakeman, 223 Ky. 517 , 3 S.W.2d 1095, 1928 Ky. LEXIS 371 ( Ky. 1928 ), overruled, Warfield Natural Gas Co. v. Ward, 286 Ky. 73 , 149 S.W.2d 705, 1940 Ky. LEXIS 1 ( Ky. 1940 ), Warfield Natural Gas Co. v. Ward, 286 Ky. 73 , 149 S.W.2d 705, 1940 Ky. LEXIS 1 ( Ky. 1940 ).

    A record title otherwise valid is affected hereby only when superiority of title is based upon a Kentucky or Virginia patent issued before 1820. Warfield Natural Gas Co. v. Ward, 286 Ky. 73 , 149 S.W.2d 705, 1940 Ky. LEXIS 1 ( Ky. 1940 ).

    The function of a title of record is to support possession and describe its extent. Warfield Natural Gas Co. v. Ward, 286 Ky. 73 , 149 S.W.2d 705, 1940 Ky. LEXIS 1 ( Ky. 1940 ).

    Title of record means a title emanating from the Commonwealth of Kentucky but not necessarily a title dependent for its validity upon seniority of origin as between a pre-1820 Kentucky or Virginia patent and a later Kentucky patent. Warfield Natural Gas Co. v. Ward, 286 Ky. 73 , 149 S.W.2d 705, 1940 Ky. LEXIS 1 ( Ky. 1940 ).

    8.Virginia Compact.

    This section does not violate the Compact with Virginia nor impair vested rights. Warfield Natural Gas Co. v. Ward, 286 Ky. 73 , 149 S.W.2d 705, 1940 Ky. LEXIS 1 ( Ky. 1940 ).

    Cited:

    Eastern Kentucky Coal Lands Corp. v. Commonwealth, 127 Ky. 667 , 106 S.W. 260, 1907 Ky. LEXIS 166 (1907).

    Research References and Practice Aids

    Cross-References.

    Effect of invalidity of prior entry, survey or patent, KRS 56.190 .

    Interest in lands derived from Virginia not to be impaired by Kentucky, Compact with Virginia, §§ 7 to 10.

    Limitation of actions relating to real property, KRS 413.010 to 413.070 .

    § 252. Houses of reform to be established and maintained.

    It shall be the duty of the General Assembly to provide by law, as soon as practicable, for the establishment and maintenance of an institution or institutions for the detention, correction, instruction and reformation of all persons under the age of eighteen years, convicted of such felonies and such misdemeanors as may be designated by law. Said institution shall be known as the “House of Reform.”

    NOTES TO DECISIONS

    1.Maintaining of Inmates.

    Section 254 of the Constitution does not apply to inmates of the house of reform but only to persons confined to the penitentiary as provided in Const., § 253, and neither this section nor Const., § 253 or 254 require the Commonwealth to maintain the inmates of the house of reform and the Legislature may constitutionally require, by law, counties to maintain the inmates of the house of reform sentenced thereto by them. Lang v. Commonwealth, 190 Ky. 29 , 226 S.W. 379, 1920 Ky. LEXIS 543 ( Ky. 1920 ).

    Under this section the Legislature is within its authority to require each of the counties of the state to maintain the inmates of the house of reform who may be sentenced to confinement there from the county. Lang v. Commonwealth, 190 Ky. 29 , 226 S.W. 379, 1920 Ky. LEXIS 543 ( Ky. 1920 ). See Tincher v. Commonwealth, 208 Ky. 661 , 271 S.W. 1066, 1925 Ky. LEXIS 362 ( Ky. 1925 ).

    2.Pre-establishment.

    Until the Legislature obeyed the mandate of this section, it was proper to adjudge the confinement of offenders under the age of 18 years in the state penitentiary. Willard v. Commonwealth, 96 Ky. 148 , 28 S.W. 151, 16 Ky. L. Rptr. 343 , 1894 Ky. LEXIS 105 ( Ky. 1894 ).

    Cited:

    Stone v. Board of Trustees of Houses of Reform, 44 S.W. 984, 19 Ky. L. Rptr. 1977 (1898).

    Research References and Practice Aids

    Kentucky Law Journal.

    Snyder and Irland, The Separation of Governmental Powers Under the Constitution of Kentucky: A Legal and Historical Analysis of L.R.C. v. Brown, 73 Ky. L.J. 165 (1984-85).

    § 253. Working of penitentiary prisoners — When and where permitted.

    Persons convicted of felony and sentenced to confinement in the penitentiary shall be confined at labor within the walls of the penitentiary; and the General Assembly shall not have the power to authorize employment of convicts elsewhere, except upon the public works of the Commonwealth of Kentucky, or when, during pestilence or in case of the destruction of the prison buildings, they cannot be confined in the penitentiary.

    That Section 253 of the Constitution be amended so that the Commonwealth of Kentucky may use and employ outside of the walls of the penitentiaries in such manner and means as may be provided by law, persons convicted of felony and sentenced to confinement in the penitentiary for the purpose of constructing or reconstructing and maintaining public roads and public bridges or for the purpose of making and preparing material for public roads and bridges, and that the Commonwealth of Kentucky may, by the use and employment of convict labor outside of the walls of the penitentiary by other ways or means, as may be provided by law, aid the counties for road and bridge purposes, work on the State farm or farms.

    History. Amendment, proposed Acts 1914, ch. 93, ratified, November, 1915.

    NOTES TO DECISIONS

    1.In General.

    Section 254 of the Constitution does not apply to inmates of the house of reform but only to persons confined to the penitentiary as provided in this section. Lang v. Commonwealth, 190 Ky. 29 , 226 S.W. 379, 1920 Ky. LEXIS 543 ( Ky. 1920 ).

    2.Destruction of Prison Building.

    Under the exceptions in this section, when a workshop in the penitentiary has been burned, the convicts employed there may be temporarily employed outside the walls in another building until the burned building can be replaced, as the exception is not to be limited to the case of destruction of all the prison buildings. Harris v. Commonwealth, 64 S.W. 434, 23 Ky. L. Rptr. 775 (1901).

    3.Lease of Labor.

    In accordance with this section, where a law authorized the leasing of convict labor to be performed within the walls of the penitentiary, a contract thereunder was not against public policy, and such contract by board of prison commissioners leasing convict labor and authorizing the assignment of the lease subject to all regulations concerning government of convicts was valid. Reliance Mfg. Co. v. Board of Prison Comm'rs, 161 Ky. 135 , 170 S.W. 941, 1914 Ky. LEXIS 67 ( Ky. 1914 ).

    4.Paid Employment Outside Prison.

    Subdivision (4) (now (1)(d)) of KRS 439.600 , which permits prisoners convicted of felony to work outside prison walls in paid employment, is contrary to this section, which only authorizes the use of prison labor on county roads and bridges. Commonwealth ex rel. Hancock v. Holmes, 509 S.W.2d 258, 1974 Ky. LEXIS 555 ( Ky. 1974 ), (decision prior to 1982 amendment of KRS 439.600 ).

    5.Work Release Programs.

    Plaintiff’s contentions that the wages paid through the work release program were unfair and that the unavailability of work release programs violated the Fourteenth Amendment, were denied on the basis that convict’s labor belongs to the state and he has no federally protected right to outside employment. Preston v. Ford, 378 F. Supp. 729, 1974 U.S. Dist. LEXIS 7329 (E.D. Ky. 1974 ).

    Cited:

    Briskman v. Central State Hospital, 264 S.W.2d 270, 1954 Ky. LEXIS 665 ( Ky. 1954 ).

    Opinions of Attorney General.

    The Department of Corrections (now Corrections Cabinet) may enter into a contract with the federal bureau of prisons to permit the confinement of a person under sentence of confinement, issued by the Jefferson Circuit Court, within the institutions of the federal bureau of prisons under the provisions of the Interstate Corrections Compact (KRS 196.610 ). OAG 71-328 .

    The Interstate Corrections Compact (KRS 196.610 ) does meet the constitutional requirements of this section “within the walls of the penitentiary.” OAG 71-328 .

    Kentucky law precludes the utilization of state prisoners for employment by federal contractors; KRS 439.600(1)(d) and (2) as drawn and implemented by KRS 439.620 are contrary to this section. OAG 84-295 .

    Assumption of the prison function by a county is not consistent with the mandate of the Constitution, vis-a-vis prisoners who have been sentenced to the penitentiary; such responsibility rests with the state. OAG 90-115 .

    Long-term housing of prisoners of the state of Kentucky is a function constitutionally mandated to the state, and the role sought to be assumed by a county in housing not only state prisoners, but prisoners of jurisdictions outside Kentucky, is not provided for by statute and is not a function necessary for operation of the county; accordingly, the county may not lawfully lease and operate a 336-bed detention center or prison for such purpose. Such action is not necessary for operation of the county and handling the types of prisoners envisioned under this project is otherwise provided for by statute and the Kentucky Constitution. OAG 90-115 .

    Research References and Practice Aids

    Cross-References.

    Working of prisoners, KRS 197.070 , 197.110 to 197.160 , 197.200 .

    § 254. Control and support of convicts — Leasing of labor.

    The Commonwealth shall maintain control of the discipline, and provide for all supplies, and for the sanitary condition of the convicts, and the labor only of convicts may be leased.

    NOTES TO DECISIONS

    1.Construction.

    It is the duty of the Commonwealth to furnish the convict with all supplies and look to the convict’s condition of health. Department of Welfare v. Brock, 306 Ky. 243 , 206 S.W.2d 915, 1947 Ky. LEXIS 983 ( Ky. 1947 ).

    2.Application.

    This section applies only to persons confined to the penitentiary under Const., § 253 and not to inmates of the house of reform established under Const., § 252. Lang v. Commonwealth, 190 Ky. 29 , 226 S.W. 379, 1920 Ky. LEXIS 543 ( Ky. 1920 ).

    3.Convicts.

    One held in jail awaiting trial for murder but, before trial, found to be of unsound mind and committed to a state hospital was not a convict within the meaning of this section or a prisoner within the meaning of subsection (3) of KRS 202.380 (repealed); thus his estate was not relieved from the statutory liability for board and maintenance furnished him during his confinement in the state hospital. Briskman v. Central State Hospital, 264 S.W.2d 270, 1954 Ky. LEXIS 665 ( Ky. 1954 ).

    The word “convict” as used in this section refers to one who has been found guilty through a confession, plea, or verdict of a felony crime proscribed by the state and has been sentenced to serve time in a state penal institution. Kentucky County Judge/Executive Ass'n v. Justice Cabinet, Dep't of Corrections, 938 S.W.2d 582, 1996 Ky. App. LEXIS 135 (Ky. Ct. App. 1996).

    The word “convicts” as used in this section means one who is convicted and sentenced to a state facility for a felony and not one who has confessed or pled guilty or one who has been found guilty by a jury. Kentucky County Judge/Executive Ass'n v. Justice Cabinet, Dep't of Corrections, 938 S.W.2d 582, 1996 Ky. App. LEXIS 135 (Ky. Ct. App. 1996).

    KRS 431.215(2) is unconstitutional under Const., § 254 to the extent that it allows the Commonwealth to delay reimbursement to county jails for five (5) days after entry of judgment. Kentucky County Judge/Executive Ass'n v. Justice Cabinet, Dep't of Corrections, 938 S.W.2d 582, 1996 Ky. App. LEXIS 135 (Ky. Ct. App. 1996).

    4.Leasing Contracts.

    Under a law authorizing the leasing of convict labor the control of which is in accord with this section, a contract thereunder cannot be attacked as against public policy, the public policy of state being fixed by law. Reliance Mfg. Co. v. Board of Prison Comm'rs, 161 Ky. 135 , 170 S.W. 941, 1914 Ky. LEXIS 67 ( Ky. 1914 ).

    5.Supplies.

    A city ordinance regulating sale and inspection of milk is inapplicable to supply of milk for inmates of state penitentiary, as state prisons are matters of state, not local jurisdiction. Board of Councilmen v. Commonwealth, 243 Ky. 633 , 49 S.W.2d 548, 1932 Ky. LEXIS 168 ( Ky. 1932 ).

    6.Transfer of Custody.

    Rule of Criminal Procedure 11.22, KRS 431.215 and 532.100 , and this section, dictate the Correction Cabinet must accept custody or transfer of convicted felons and parole violators, despite that body’s promulgation of a controlled intake policy pursuant to KRS 196.030 and 197.110 . Campbell County v. Commonwealth, Kentucky Corrections Cabinet, 762 S.W.2d 6, 1988 Ky. LEXIS 50 ( Ky. 1988 ).

    Correction Cabinet’s defense to contempt charges based on its inability to comply with orders to take custody of certain prisoners was fundamentally flawed; this section assigns the responsibility for care and custody of convicted felons to state government as a whole; therefore, state government, which bears the burden for correcting overcrowding in prisons, was not unable to perform, even if this individual agency of the government could claim otherwise. Campbell County v. Commonwealth, Kentucky Corrections Cabinet, 762 S.W.2d 6, 1988 Ky. LEXIS 50 ( Ky. 1988 ).

    Opinions of Attorney General.

    This section and KRS 196.070 and KRS 196.135 do not permit the Corrections Cabinet and the Commonwealth to contract with a private vendor to operate a community residential correctional center under KRS 439.590 , free from the supervision, administration and disciplinary control of corrections officials; neither the Constitution nor statutes of Kentucky permit such extraordinary delegation of authority. OAG 84-356 .

    Assumption of the prison function by a county is not consistent with the mandate of the Constitution, vis-a-vis prisoners who have been sentenced to the penitentiary; such responsibility rests with the state. OAG 90-115 .

    Long-term housing of prisoners of the state of Kentucky is a function constitutionally mandated to the state, and the role sought to be assumed by a county in housing not only state prisoners, but prisoners of jurisdictions outside Kentucky, is not provided for by statute and is not a function necessary for operation of the county; accordingly, the county may not lawfully lease and operate a 336-bed detention center or prison for such purpose. Such action is not necessary for operation of the county and handling the types of prisoners envisioned under this project is otherwise provided for by statute and the Kentucky Constitution. OAG 90-115 .

    Research References and Practice Aids

    Cross-References.

    Penitentiaries, KRS ch. 197.

    § 255. Frankfort is state capital.

    The seat of government shall continue in the city of Frankfort, unless removed by a vote of two-thirds of each House of the first General Assembly which convenes after the adoption of this Constitution.

    NOTES TO DECISIONS

    Cited:

    Leep v. Kentucky State Police, 340 S.W.2d 600, 1960 Ky. LEXIS 57 ( Ky. 1960 ).

    Opinions of Attorney General.

    A state employee who was required to use his car several times daily to travel from a warehouse outside of Frankfort to his office in Frankfort was entitled to charge for mileage between the warehouse and the city limits of Frankfort but not between the city limits and his office. OAG 61-896 .

    MODE OF REVISION

    § 256. Amendments to Constitution — How proposed and voted upon.

    Amendments to this Constitution may be proposed in either House of the General Assembly at a regular session, and if such amendment or amendments shall be agreed to by three-fifths of all the members elected to each House, such proposed amendment or amendments, with the yeas and nays of the members of each House taken thereon, shall be entered in full in their respective journals. Then such proposed amendment or amendments shall be submitted to the voters of the State for their ratification or rejection at the next general election for members of the House of Representatives, the vote to be taken thereon in such manner as the General Assembly may provide, and to be certified by the officers of election to the Secretary of State in such manner as shall be provided by law, which vote shall be compared and certified by the same board authorized by law to compare the polls and give certificates of election to officers for the State at large. If it shall appear that a majority of the votes cast for and against an amendment at said election was for the amendment, then the same shall become a part of the Constitution of this Commonwealth, and shall be so proclaimed by the Governor, and published in such manner as the General Assembly may direct. Said amendments shall not be submitted at an election which occurs less than ninety days from the final passage of such proposed amendment or amendments. Not more than four amendments shall be voted upon at any one time. If two or more amendments shall be submitted at the same time, they shall be submitted in such manner that the electors shall vote for or against each of such amendments separately, but an amendment may relate to a single subject or to related subject matters and may amend or modify as many articles and as many sections of the Constitution as may be necessary and appropriate in order to accomplish the objectives of the amendment. The approval of the Governor shall not be necessary to any bill, order, resolution or vote of the General Assembly, proposing an amendment or amendments to this Constitution.

    History. Amendment, proposed Acts 1978, ch. 433, ratified November, 1979.

    Compiler’s Notes.

    The General Assembly in 1978 (Acts 1978, ch. 433, § 1) proposed an amendment to the Constitution which amendment was ratified by the voters at the regular election in November, 1979.

    NOTES TO DECISIONS

    1.In General.

    The right of the General Assembly to propose constitutional amendments is plenary but its exercise is an executive and not a legislative function and differs widely from the law-making function. Hatcher v. Meredith, 295 Ky. 194 , 173 S.W.2d 665, 1943 Ky. LEXIS 191 ( Ky. 194 3).

    A proposed constitutional amendment providing a method of financing veterans’ bonus from retail sales tax was not a proper amendment, since it neither repealed, changed nor added anything to the Constitution. Stovall v. Gartrell, 332 S.W.2d 256, 1960 Ky. LEXIS 141 ( Ky. 1960 ).

    2.Purpose.

    This section is intended to prevent the submission of two (2) or more unrelated propositions having no logical interdependence as a single constitutional amendment and prevent the submission of two (2) provisions which are integral parts of a single plan. Hatcher v. Meredith, 295 Ky. 194 , 173 S.W.2d 665, 1943 Ky. LEXIS 191 ( Ky. 194 3).

    3.Construction.

    The provisions of the Constitution as to how it may be amended are mandatory and, unless complied with, the amendment is invalid. McCreary v. Speer, 156 Ky. 783 , 162 S.W. 99, 1914 Ky. LEXIS 202 ( Ky. 1914 ).

    4.Judicial Review.

    It is a judicial prerogative to determine whether a proposed constitutional amendment is, in fact and in law, valid as such and, where the question is properly raised, the court will inquire into the manner in which the amendment was proposed and passed even though it already has finally been voted on by the electorate. Stovall v. Gartrell, 332 S.W.2d 256, 1960 Ky. LEXIS 141 ( Ky. 1960 ).

    5.Next General Election.

    An amendment which was not submitted to a vote at the next general election for members of House of Representatives because of failure of Secretary of State to advertise amendment more than 90 days before election could not be submitted to a vote at the following regular November election, since constitutional provision is mandatory. Harrod v. Hatcher, 281 Ky. 712 , 137 S.W.2d 405, 1940 Ky. LEXIS 104 ( Ky. 1940 ).

    6.One Subject.

    Constitutional amendment for repeal of prohibition amendment and restoration of repealed local option provisions of Constitution was not violative of this section requiring that amendment must not relate to more than one subject. Curry v. Laffoon, 261 Ky. 575 , 88 S.W.2d 307, 1935 Ky. LEXIS 704 ( Ky. 1935 ).

    Proposed constitutional amendment removing salary limitations as to public officials and giving General Assembly power to regulate such salaries, which by implication might affect other sections of the Constitution or statutes, is not void under this section as relating to more than one subject. Hatcher v. Meredith, 295 Ky. 194 , 173 S.W.2d 665, 1943 Ky. LEXIS 191 ( Ky. 194 3).

    A single amendment may cover several propositions if they are not essentially unrelated and are congruous and germane to a general object or purpose and all are legitimately connected or related to one subject. Funk v. Fielder, 243 S.W.2d 474, 1951 Ky. LEXIS 1128 ( Ky. 1951 ).

    Where constitutional amendment proposed by Legislature in first paragraph stated “that Const., § 256 be amended by repealing said section in its entirety and enacting in lieu thereof the following” but proposed amendment itself did not indicate that its adoption would repeal part of the Constitution, it did not relate to more than one subject in contravention of this section. Funk v. Fielder, 243 S.W.2d 474, 1951 Ky. LEXIS 1128 ( Ky. 1951 ).

    Whether a proposed amendment complies with this section initially is a matter for General Assembly to determine. Funk v. Fielder, 243 S.W.2d 474, 1951 Ky. LEXIS 1128 ( Ky. 1951 ).

    7.Publication.

    The “good roads amendment” (Const., § 157a) was duly proclaimed and published, as required by this section, by a publication in two (2) daily papers of the result of the vote as the Legislature provided, and a message of the governor to the General Assembly calling attention to the adoption of the amendment. Denton v. Pulaski County, 170 Ky. 33 , 185 S.W. 481, 1916 Ky. LEXIS 9 ( Ky. 1916 ).

    Publication of an amendment 73 days before an election was not a substantial compliance with this section and taxpayer was entitled to a perpetual injunction preventing submission of amendment to vote. Arnett v. Sullivan, 279 Ky. 720 , 132 S.W.2d 76, 1939 Ky. LEXIS 352 ( Ky. 1939 ).

    The provision requiring that a proposed constitutional amendment be published at least 90 days before the vote thereon is mandatory. Arnett v. Sullivan, 279 Ky. 720 , 132 S.W.2d 76, 1939 Ky. LEXIS 352 ( Ky. 1939 ).

    8.Special Revision Assembly.

    This section and Const., § 258 do not provide exclusive methods for changing the Constitution and, under Const., § 4, the Legislature could by law provide for the revision of the Constitution by a special revision assembly. Gatewood v. Matthews, 403 S.W.2d 716, 1966 Ky. LEXIS 348 ( Ky. 1966 ).

    9.Submission to Voters.

    Where amendment proposed that certain school officers and employees be appointed or elected for reasonable term of years and have such qualifications and salaries and such duties of local or statewide nature as may be prescribed by law, question on ballot stating that amendment empowered board to establish qualifications and tenure of school officers and employees and to provide for fixing of their compensation and filling of vacancies was too general. Ferguson v. Redding, 304 S.W.2d 927, 1957 Ky. LEXIS 291 ( Ky. 1957 ).

    Ky. Const. § 256 imposes a mandatory constitutional directive on the General Assembly to submit the amendment, in its entirety, to the electorate for a vote, and leaves to the discretion of the General Assembly only the way the vote must be taken. Strict compliance with such textual directives pertaining to constitutional amendments is required. Westerfield v. Ward, 599 S.W.3d 738, 2019 Ky. LEXIS 215 ( Ky. 2019 ).

    Proposed constitutional amendment as submitted to the voters in the form of the ballot question was invalid under Ky. Const. § 256 because it was something less than the full text. Westerfield v. Ward, 599 S.W.3d 738, 2019 Ky. LEXIS 215 ( Ky. 2019 ).

    Ky. Const. § 256 imposes a mandatory constitutional directive on the General Assembly to submit the amendment, in its entirety, to the electorate for a vote, and leaves to the discretion of the General Assembly only the way the vote must be taken. Strict compliance with such textual directives pertaining to constitutional amendments is required. Westerfield v. Ward, 599 S.W.3d 738, 2019 Ky. LEXIS 215 ( Ky. 2019 ).

    Proposed constitutional amendment as submitted to the voters in the form of the ballot question was invalid under Ky. Const. § 256 because it was something less than the full text. Westerfield v. Ward, 599 S.W.3d 738, 2019 Ky. LEXIS 215 ( Ky. 2019 ).

    Cited:

    Belknap v. Louisville, 99 Ky. 474 , 36 S.W. 1118, 18 Ky. L. Rptr. 313 , 1896 Ky. LEXIS 122 ( Ky. 189 6 ); Montgomery County Fiscal Court v. Trimble, 104 Ky. 629 , 47 S.W. 773, 20 Ky. L. Rptr. 827 , 1898 Ky. LEXIS 210 ( Ky. 189 8); George Schuster & Co. v. Louisville, 124 Ky. 189, 89 S.W. 689, 28 Ky. L. Rptr. 588 , 1905 Ky. LEXIS 165 ( Ky. 1905 ); Gollar v. Louisville, 187 Ky. 448 , 219 S.W. 421, 1920 Ky. LEXIS 143 ( Ky. 1920 ); Seiler v. Dillon, 190 Ky. 779 , 228 S.W. 688, 1921 Ky. LEXIS 512 ( Ky. 1921 ); Gaines v. O'Connell, 305 Ky. 397 , 204 S.W.2d 425, 1947 Ky. LEXIS 820 ( Ky. 1947 ); Farnsley v. Henderson, 240 S.W.2d 82, 1951 Ky. LEXIS 951 ( Ky. 1951 ); Stagg v. Board of Education, 303 S.W.2d 313, 1957 Ky. LEXIS 260 ( Ky. 1957 ); Chenault v. Carter, 332 S.W.2d 623, 1960 Ky. LEXIS 162 ( Ky. 1960 ).

    Opinions of Attorney General.

    The 1981 amendment to Const., § 170 applies to the ad valorem tax of a fifth-class city, since it is not limited in its application to the state or county, but applies to all taxing districts; moreover, since the amendment was approved at the 1981 general election, which, under this section, is the final step in amending the Constitution, the amendment is effective in 1981. OAG 82-49 .

    The requirements that all proposed amendments to the Constitution be presented to the voters for ratification or rejection at the next regular election for members of the House of Representatives and that the number of proposed amendments that may be voted upon at any one time be limited to four (4) are mandatory. OAG 82-72 .

    Where there are two (2) intervening regular sessions between general elections, once the General Assembly has proposed four (4) constitutional amendments, irrespective of whether or not it reaches this number during the first session or the second session, it has exhausted its constitutional authority to propose any additional amendments until the four (4) have been submitted to the voters in accordance with this section. OAG 82-72 .

    Research References and Practice Aids

    Cross-References.

    Elections on constitutional amendments, KRS 120.280 to 120.300 .

    Kentucky Bench & Bar.

    Tobergte, The Impact of Kentucky’s Present Constitution Upon Business Growth & Development, Volume 51, No. 3, Summer 1987 Ky. Bench & B. 21.

    Howerton, Kentucky’s Constitution: An Antique in Need of Repair, volume 51, No. 4, Fall 1987 Ky. Bench & B. 34.

    Wyatt, Reform by Amendment, Volume 55, No. 4, Fall 1991 Ky. Bench & B. 24.

    § 257. Publication of proposed amendments.

    Before an amendment shall be submitted to a vote, the Secretary of State shall cause such proposed amendment, and the time that the same is to be voted upon, to be published at least ninety days before the vote is to be taken thereon in such manner as may be prescribed by law.

    NOTES TO DECISIONS

    1.Construction.

    This section is mandatory and not directory. Arnett v. Sullivan, 279 Ky. 720 , 132 S.W.2d 76, 1939 Ky. LEXIS 352 ( Ky. 1939 ).

    It is impossible to construe Ky. Const. § 257 in a way that is different from Ky. Const. § 256. Both §§ 256 and 257 require that such proposed amendment be submitted or published. And, like § 256, the phrase in such manner as may be prescribed by law plainly modifies the word published. Had the Framers intended for these provisions to be construed differently, i.e., for such proposed amendment to mean the entirety of the amendment in one provision but not the other, then it would almost certainly have used different language. But it did not, and, like § 256, the directive in this provision is clear: The Secretary of State must cause the amendment to be published at least 90 days before it is submitted to the people for a vote, but the General Assembly has discretion over the way that publication may take place. Westerfield v. Ward, 599 S.W.3d 738, 2019 Ky. LEXIS 215 ( Ky. 2019 ).

    Ky. Const. § 257 requires the Secretary of State to publish the entirety of the proposed amendment at least 90 days before the vote is to be taken thereon but leaves to the General Assembly the discretion to determine in what manner that publication may occur. Strict compliance with this constitutional procedural directive is required. Westerfield v. Ward, 599 S.W.3d 738, 2019 Ky. LEXIS 215 ( Ky. 2019 ).

    It is impossible to construe Ky. Const. § 257 in a way that is different from Ky. Const. § 256. Both §§ 256 and 257 require that such proposed amendment be submitted or published. And, like § 256, the phrase in such manner as may be prescribed by law plainly modifies the word published. Had the Framers intended for these provisions to be construed differently, i.e., for such proposed amendment to mean the entirety of the amendment in one provision but not the other, then it would almost certainly have used different language. But it did not, and, like § 256, the directive in this provision is clear: The Secretary of State must cause the amendment to be published at least 90 days before it is submitted to the people for a vote, but the General Assembly has discretion over the way that publication may take place. Westerfield v. Ward, 599 S.W.3d 738, 2019 Ky. LEXIS 215 ( Ky. 2019 ).

    Ky. Const. § 257 requires the Secretary of State to publish the entirety of the proposed amendment at least 90 days before the vote is to be taken thereon but leaves to the General Assembly the discretion to determine in what manner that publication may occur. Strict compliance with this constitutional procedural directive is required. Westerfield v. Ward, 599 S.W.3d 738, 2019 Ky. LEXIS 215 ( Ky. 2019 ).

    2.Application.

    This section does not apply to election on question of calling a convention to revise the Constitution. Gaines v. O'Connell, 305 Ky. 397 , 204 S.W.2d 425, 1947 Ky. LEXIS 820 ( Ky. 1947 ).

    3.Time.

    A proposed amendment to the Constitution which was published less than 90 days before the election was not ratified, although a majority voting on the question voted for it. McCreary v. Speer, 156 Ky. 783 , 162 S.W. 99, 1914 Ky. LEXIS 202 ( Ky. 1914 ).

    4.Secretary of State.

    This section prevails over law purporting to impose such duty upon the secretary of state and others. Hatcher v. Meredith, 295 Ky. 194 , 173 S.W.2d 665, 1943 Ky. LEXIS 191 ( Ky. 194 3).

    5.Substantial Compliance.

    Publication of an amendment 73 days before an election was not a substantial compliance with this section, and taxpayer could enjoin submission of amendment to vote. Arnett v. Sullivan, 279 Ky. 720 , 132 S.W.2d 76, 1939 Ky. LEXIS 352 ( Ky. 1939 ).

    Proposed constitutional amendment as submitted to the voters in the form of the ballot question was invalid under Ky. Const. § 257 because the entire amendment had not been published. Westerfield v. Ward, 599 S.W.3d 738, 2019 Ky. LEXIS 215 ( Ky. 2019 ).

    Cited in:

    Seiler v. Dillon, 190 Ky. 779 , 228 S.W. 688, 1921 Ky. LEXIS 512 ( Ky. 1921 ); Harrod v. Hatcher, 281 Ky. 712 , 137 S.W.2d 405, 1940 Ky. LEXIS 104 ( Ky. 1940 ); Funk v. Fielder, 243 S.W.2d 474, 1951 Ky. LEXIS 1128 ( Ky. 1951 ).

    § 258. Constitutional Convention — How proposed, voted upon, and called.

    When a majority of all the members elected to each House of the General Assembly shall concur, by a yea or nay vote, to be entered upon their respective journals, in enacting a law to take the sense of the people of the State as to the necessity and expediency of calling a Convention for the purpose of revising or amending this Constitution, and such amendments as may have been made to the same, such law shall be spread upon their respective journals. If the next General Assembly shall, in like manner, concur in such law, it shall provide for having a poll opened in each voting precinct in this state by the officers provided by law for holding general elections at the next ensuing regular election to be held for State officers or members of the House of Representatives, which does not occur within ninety days from the final passage of such law, at which time and places the votes of the qualified voters shall be taken for and against calling the Convention, in the same manner provided by law for taking votes in other State elections. The vote for and against said proposition shall be certified to the Secretary of State by the same officers and in the same manner as in State elections. If it shall appear that a majority voting on the proposition was for calling a Convention, and if the total number of votes cast for the calling of the Convention is equal to one-fourth of the number of qualified voters who voted at the last preceding general election in this State, the Secretary of State shall certify the same to the General Assembly at its next regular session, at which session a law shall be enacted calling a Convention to readopt, revise or amend this Constitution, and such amendments as may have been made thereto.

    NOTES TO DECISIONS

    1.Construction.

    The provisions of the Constitution relating to revision should be liberally construed. Gaines v. O'Connell, 305 Ky. 397 , 204 S.W.2d 425, 1947 Ky. LEXIS 820 ( Ky. 1947 ).

    2.Application.

    This section and Const., § 256 do not provide exclusive methods of amending or revising the Constitution. Accordingly, a revised Constitution prepared by an assembly created by law is properly submitted for a vote by the people. Gatewood v. Matthews, 403 S.W.2d 716, 1966 Ky. LEXIS 348 ( Ky. 1966 ).

    3.Approval of Voters.

    The Legislature had power, in acts providing for submission to voters of question of calling a convention to revise the Constitution, to provide that any Constitution agreed upon by the convention should not become operative unless submitted to and approved by the voters; where the acts contained such a provision, the convention would be so limited, notwithstanding that provisions of present Constitution do not require that action of convention be approved by the voters. Gaines v. O'Connell, 305 Ky. 397 , 204 S.W.2d 425, 1947 Ky. LEXIS 820 ( Ky. 1947 ).

    4.Delegates.

    Delegates to constitutional convention are agents not of Legislature but of people themselves, and the people may limit authority of such delegates. Chenault v. Carter, 332 S.W.2d 623, 1960 Ky. LEXIS 162 ( Ky. 1960 ).

    5.Formal Call.

    Formal call by General Assembly for constitutional convention is a ministerial duty enjoined upon it by Constitution in execution of public mandate, and inhering in that mandate are terms and conditions of the initial proposal. Chenault v. Carter, 332 S.W.2d 623, 1960 Ky. LEXIS 162 ( Ky. 1960 ).

    6.Type of Session.

    General Assembly, in proposing constitutional convention, is not required to do so at regular session. Chenault v. Carter, 332 S.W.2d 623, 1960 Ky. LEXIS 162 ( Ky. 1960 ).

    7.General Election.

    For the purposes of this section, an election at which United States senator and members of congress were to be elected was a general state election. Chenault v. Carter, 332 S.W.2d 623, 1960 Ky. LEXIS 162 ( Ky. 1960 ).

    8.Legislative Discretion.

    Under this section choice of whether constitutional convention shall be called rests entirely with electorate and discretion of Legislature ends with its proposal. Chenault v. Carter, 332 S.W.2d 623, 1960 Ky. LEXIS 162 ( Ky. 1960 ).

    9.Limited Convention.

    Limitation on proposed constitutional convention to stated subjects set forth in successive enactments of general assemblies, if approved by people, constitutes valid limitation on authority of delegates for limited constitutional convention. Chenault v. Carter, 332 S.W.2d 623, 1960 Ky. LEXIS 162 ( Ky. 1960 ).

    10.State Officers.

    Election for presidential electors was an election for state officers within meaning of this section providing for submission of question of constitutional convention. Chenault v. Carter, 332 S.W.2d 623, 1960 Ky. LEXIS 162 ( Ky. 1960 ).

    11.Successive Assemblies.

    Actions of general assemblies at extraordinary session in 1959 and regular session in 1960 in proposing constitutional convention were actions of two (2) successive general assemblies within the meaning of this section. Chenault v. Carter, 332 S.W.2d 623, 1960 Ky. LEXIS 162 ( Ky. 1960 ).

    Cited:

    McCreary v. Speer, 156 Ky. 783 , 162 S.W. 99, 1914 Ky. LEXIS 202 ( Ky. 1914 ).

    Opinions of Attorney General.

    Where the Legislature has made provision in the initial acts calling a constitutional convention for the proposed Constitution to be submitted for ratification or rejection to the people, such position could not legally be changed by subsequent legislation. OAG 77-306 .

    Research References and Practice Aids

    Kentucky Bench & Bar.

    Vish, Constitutional Reform in Kentucky, Vol. 41, No. 4, Oct. 1977 Ky. Bench & B. 9.

    § 259. Number and qualifications of delegates.

    The Convention shall consist of as many delegates as there are members of the House of Representatives; and the delegates shall have the same qualifications and be elected from the same districts as said Representatives.

    § 260. Election of delegates — Meeting.

    Delegates to such convention shall be elected at the next general State election after the passage of the act calling the Convention, which does not occur within less than ninety days; and they shall meet within ninety days after their election at the Capital of the State, and continue in session until their work is completed.

    NOTES TO DECISIONS

    1.General Election.

    For the purposes of this section, an election at which United States senator and other members of congress were to be elected was a general state election. Chenault v. Carter, 332 S.W.2d 623, 1960 Ky. LEXIS 162 ( Ky. 1960 ).

    § 261. Certification of election and compensation of delegates.

    The General Assembly, in the act calling the Convention, shall provide for comparing the polls and giving certificates of election to the delegates elected, and provide for their compensation.

    § 262. Determination of election and qualifications of delegates — Contests.

    The Convention, when assembled, shall be the judge of the election and qualification of its members, and shall determine contested elections. But the General Assembly shall, in the act calling the Convention, provide for taking testimony in such cases, and for issuing a writ of election in case of a tie.

    § 263. Notice of election on question of calling convention.

    Before a vote is taken upon the question of calling a Convention, the Secretary of State shall cause notice of the election to be published in such manner as may be provided by the act directing said vote to be taken.

    NOTES TO DECISIONS

    1.Purpose.

    The object of this section is to see that the people are properly informed of the election. The object was sufficiently accomplished, notwithstanding failure of legislature to provide for notice in the act directing submission of the question to the voters, where secretary of state published notice 78 days before the election in two newspapers of general statewide circulation and where the question of calling a convention had received widespread newspaper and radio publicity. Gaines v. O'Connell, 305 Ky. 397 , 204 S.W.2d 425, 1947 Ky. LEXIS 820 ( Ky. 1947 ).

    2.Construction.

    The provisions of the Constitution relating to revision should be liberally construed. Gaines v. O'Connell, 305 Ky. 397 , 204 S.W.2d 425, 1947 Ky. LEXIS 820 ( Ky. 1947 ).

    3.Application.

    The provision of Const., § 257 for 90 days’ notice of election on amendment to Constitution applies only to amendments and does not apply to election on question of calling a convention to revise the Constitution. Gaines v. O'Connell, 305 Ky. 397 , 204 S.W.2d 425, 1947 Ky. LEXIS 820 ( Ky. 1947 ).

    SCHEDULE

    That no inconvenience may arise from the alterations and amendments made in this Constitution, and in order to carry the same into complete operation, it is hereby declared and ordained:

    First: That all laws of this Commonwealth in force at the time of the adoption of this Constitution, not inconsistent therewith, shall remain in full force until altered or repealed by the General Assembly; and all rights, actions, prosecutions, claims and contracts of the State, counties, individuals or bodies corporate, not inconsistent therewith, shall continue as valid as if this Constitution had not been adopted. The provisions of all laws which are inconsistent with this Constitution shall cease upon its adoption, except that all laws which are inconsistent with such provisions as require legislation to enforce them shall remain in force until such legislation is had, but not longer than six years after the adoption of this Constitution, unless sooner amended or repealed by the General Assembly.

    Second: That all recognizances, obligations and all other instruments entered into or executed before the adoption of this Constitution, to the State, or to any city, town, county or subdivision thereof, and all fines, taxes, penalties and forfeitures due or owing to this State, or to any city, town, county or subdivision thereof; and all writs, prosecutions, actions and causes of action, except as otherwise herein provided, shall continue and remain unaffected by the adoption of this Constitution. And all indictments which shall have been found, or may hereafter be found, for any crime or offense committed before this Constitution takes effect, may be prosecuted as if no change had taken place, except as otherwise provided in this Constitution.

    Third: All Circuit, Chancery, Criminal, Law and Equity, Law, and Common Pleas Courts, as now constituted and organized by law, shall continue with their respective jurisdictions until the Judges of the Circuit Courts provided for in this Constitution shall have been elected and qualified, and shall then cease and determine; and the causes, actions and proceedings then pending in said first named courts, which are discontinued by this Constitution, shall be transferred to, and tried by, the Circuit Courts in the counties, respectively, in which said causes, actions and proceedings are pending.

    Fourth: The Treasurer, Attorney-General, Auditor of Public Accounts, Superintendent of Public Instruction, and Register of the Land Office, elected in eighteen hundred and ninety-one, shall hold their offices until the first Monday in January, eighteen hundred and ninety-six, and until the election and qualification of their successors. The Governor and Lieutenant Governor elected in eighteen hundred and ninety-one shall hold their offices until the sixth Tuesday after the first Monday in November, eighteen hundred and ninety-five, and until their successors are elected and qualified. The Governor and Treasurer elected in eighteen hundred and ninety-one shall be ineligible to the succeeding term. The Governor elected in eighteen hundred and ninety-one may appoint a Secretary of State and a Commissioner of Agriculture, Labor and Statistics, as now provided, who shall hold their offices until their successors are elected and qualified, unless sooner removed by the Governor. The official bond of the present Treasurer shall be renewed at the expiration of two years from the time of his qualification.

    Fifth: All officers who may be in office at the adoption of this Constitution, or who may be elected before the election of their successors, as provided in this Constitution, shall hold their respective offices until their successors are elected or appointed and qualified as provided in this Constitution.

    Sixth: The Quarterly Courts created by this Constitution shall be the successors of the present statutory Quarterly Courts in the several counties of this State; and all suits, proceedings, prosecutions, records and judgments now pending or being in said last named courts shall, after the adoption of this Constitution, be transferred to the Quarterly Courts created by this Constitution, and shall proceed as though the same had been therein instituted.

    NOTES TO DECISIONS

    FIRST SUBSECTION

    1.Purpose of Constitution.

    The purpose of the adoption of the Constitution was to do away with all the special legislation as to government of the cities of the state and to have one uniform law for all cities of the same class. Louisville v. Vreeland, 140 Ky. 400 , 131 S.W. 195, 1910 Ky. LEXIS 284 ( Ky. 1910 ).

    2.Special Acts.

    Special acts of the legislature regulating the practice in the particular Circuit Courts under the old Constitution, except such courts as are in continuous session, stood unrepealed by new Constitution and remained in force until legislature passed a general law regulating the practice in Circuit Courts. Piper v. Guenther, 95 Ky. 115 , 23 S.W. 872, 15 Ky. L. Rptr. 462 , 1893 Ky. LEXIS 131 ( Ky. 1893 ).

    A special or local act prohibiting the sale of liquors in a general territory which was in force at the date of the adoption of new Constitution was not repealed by the provisions of Const., § 61 but, under this schedule provision, the legislature was required by a general law to provide means to take the sense of the people as to whether liquors should be sold therein. Thompson v. Commonwealth, 103 Ky. 685 , 20 Ky. L. Rptr. 397 , 45 S.W. 1039, 1898 Ky. LEXIS 106 ( Ky. 1898 ), rev’d, 103 Ky. 693 , 46 S.W. 492 (1898). See White v. Commonwealth, 50 S.W. 678, 20 Ky. L. Rptr. 1942 (1899); Mullins v. Lancaster, 63 S.W. 475, 23 Ky. L. Rptr. 436 (1901).

    A special act of March 29, 1878, establishing a system of public schools in Elizabethtown common school district was not repealed either by the Constitution or by act of 1893 relating to common schools. Louisville & N. R. Co. v. Trustees of Elizabethtown Dist. Public School, 64 S.W. 974, 23 Ky. L. Rptr. 1169 , 1901 Ky. LEXIS 593 (Ky. Ct. App. 1901).

    A special act of the legislature incorporating a taxing district with many of the governmental powers of towns and cities was not repealed by the Constitution, though that instrument prohibits passing of such special laws in the future and provides for repeal of laws inconsistent with its provisions. Covington v. District of Highlands, 113 Ky. 612 , 68 S.W. 669, 24 Ky. L. Rptr. 433 , 1902 Ky. LEXIS 89 ( Ky. 1902 ).

    Where a special act passed before the adoption of the present Constitution gave the sheriff as compensation for collecting a railroad tax, which must be treated as a part of the tax collected for county purposes, greater compensation than as allowed by the general law for collecting county revenue, the special act, though not expressly repealed, was repealed by implication and the sheriff’s compensation was governed by the general law. Madison County Fiscal Court v. McChord, 145 Ky. 727 , 141 S.W. 377, 1911 Ky. LEXIS 945 ( Ky. 1911 ).

    3.Local Act.

    A local act passed prior to the present Constitution regulating the practice in a court not of continuous session ceased to be operative after the expiration of six (6) years from the adoption of the Constitution. Morgan v. Wickliffe, 110 Ky. 215 , 61 S.W. 13, 22 Ky. L. Rptr. 1648 , 1901 Ky. LEXIS 66 ( Ky. 1901 ).

    4.Existing Statutes.

    A provision of the new Constitution cannot be regarded as repealing at once an existing law unless there is absolute inconsistency between the two. Wright v. Woods, 96 Ky. 56 , 27 S.W. 979, 16 Ky. L. Rptr. 337 , 1894 Ky. LEXIS 97 ( Ky. 1894 ).

    An act of 1890 prohibiting pools, trusts, combinations and agreements for purpose of regulating prices was not inconsistent with the Constitution nor repealed after lapse of six (6) years from adoption of Constitution under this section of schedule. Commonwealth v. Grinstead, 108 Ky. 59 , 55 S.W. 720, 1900 Ky. LEXIS 11 ( Ky. 1900 ).

    5.Inconsistent Statutes.

    Where a law prior to the present Constitution authorized a county by vote to subscribe to aid a railroad, a vote taken by a county after the Constitution was adopted favoring a subscription did not authorize the county to make such a subscription, being inconsistent with the present Constitution. Whitney v. Kentucky M. R. Co., 110 Ky. 955 , 63 S.W. 24, 23 Ky. L. Rptr. 472 , 1901 Ky. LEXIS 161 ( Ky. 1901 ).

    An act of 1882 creating a courthouse district and exempting property in that district from taxation for certain county purposes was inconsistent with provisions of present Constitution forbidding exemption from taxation, and requiring uniformity of taxation, and was therefore repealed either by that instrument at once or by revenue statute of 1892. Campbell County v. Newport & C. Bridge Co., 112 Ky. 659 , 66 S.W. 526, 23 Ky. L. Rptr. 2056 , 1902 Ky. LEXIS 208 ( Ky. 1902 ).

    6.Enforcing Legislation.

    In view of this schedule provision, Const., § 106, providing that in certain counties the clerks of courts shall be paid by salary to be fixed by law, requires legislation to carry it into effect. Norman v. Cain, 31 S.W. 860, 17 Ky. L. Rptr. 492 (1895).

    7.Statute of Limitations.

    Where statute of limitations accrued to bar right of action, such action was not revived, notwithstanding adoption of Constitution repealed such statute. Lawrence v. Louisville, 96 Ky. 595 , 29 S.W. 450, 16 Ky. L. Rptr. 672 , 1895 Ky. LEXIS 131 ( Ky. 1895 ).

    8.Taxes.

    Taxes due and payable prior to adoption of Constitution were preserved intact along with right of collection and action for recovery thereof. Long v. Louisville, 97 Ky. 364 , 30 S.W. 987, 17 Ky. L. Rptr. 253 , 1895 Ky. LEXIS 201 ( Ky. 1895 ).

    9.Criminal Code.

    Criminal Code and statute law prior to the adoption of the new Constitution that conferred the power to hear and punish the offense of contempt on certain ministerial officers were repealed by the Constitution either at once or after six (6) years therefrom. Roberts v. Hackney, 109 Ky. 265 , 58 S.W. 810, 22 Ky. L. Rptr. 975 , 1900 Ky. LEXIS 205 (Ky.), modified, 109 Ky. 269 , 59 S.W. 328 ( Ky. 1900 ).

    SECOND SUBSECTION:

    SECOND SUBSECTION

    1.Taxes.

    Neither the new Constitution nor charter for cities of first class passed in 1893 was intended to relieve taxes assessed under charter of city of Louisville theretofore in force or to destroy any existing remedies for their recovery. Long v. Louisville, 97 Ky. 364 , 30 S.W. 987, 17 Ky. L. Rptr. 253 , 1895 Ky. LEXIS 201 ( Ky. 1895 ).

    2.Existing Indebtedness.

    Under this schedule provision, the new Constitution did not affect an act of 1890 creating a road district in Kenton County and providing for bonds for construction of turnpikes, requiring half of bonds and interest to be paid by levy on property in the road district and the other half on all the property of the county outside of certain cities, it being an indebtedness incurred before adoption of present Constitution. Carpenter v. Central Covington, 119 Ky. 785 , 81 S.W. 919, 26 Ky. L. Rptr. 430 , 1904 Ky. LEXIS 130 ( Ky. 1904 ).

    3.Statute of Limitations.

    Where statute of limitations accrued to bar right of action, such action was not revived, notwithstanding adoption of Constitution repealed such statute. Lawrence v. Louisville, 96 Ky. 595 , 29 S.W. 450, 16 Ky. L. Rptr. 672 , 1895 Ky. LEXIS 131 ( Ky. 1895 ).

    THIRD SUBSECTION:

    THIRD SUBSECTION

    1.Practice Acts.

    The special practice arts, regulating the practice in Circuit Courts under the old Constitution except such courts as are in continuous session, were not discontinued and stood unrepealed by the new Constitution until the legislature passed a general law regulating the practice in Circuit Courts. Piper v. Guenther, 95 Ky. 115 , 23 S.W. 872, 15 Ky. L. Rptr. 462 , 1893 Ky. LEXIS 131 ( Ky. 1893 ).

    Cited:

    Edmonson v. Kentucky Cent. Ry., 28 S.W. 789, 16 Ky. L. Rptr. 459 (1884); Richie v. Peiper’s Ex’x, 99 Ky. 194 , 18 Ky. L. Rptr. 87 , 35 S.W. 279, 1896 Ky. LEXIS 69 ( Ky. 1896 ); Louisville R. Co. v. Commonwealth, 105 Ky. 710 , 20 Ky. L. Rptr. 1509 , 49 S.W. 486, 1899 Ky. LEXIS 261 ( Ky. 1899 ); Joyes v. Jefferson County Fiscal Court, 106 Ky. 615 , 21 Ky. L. Rptr. 199 , 51 S.W. 435, 1899 Ky. LEXIS 94 ( Ky. 1899 ); Louisville & N. R. Co. v. Spring-Water Distilling Co., 53 S.W. 275, 1899 Ky. LEXIS 610 , 21 Ky. L. Rptr. 769 (1899); Henning v. Stengel, 112 Ky. 906 , 23 Ky. L. Rptr. 1793 , 66 S.W. 41, 1902 Ky. LEXIS 187 ( Ky. 1902 ); Commonwealth v. Porter, 113 Ky. 575 , 24 Ky. L. Rptr. 364 , 68 S.W. 621, 1902 Ky. LEXIS 81 ( Ky. 1902 ); Ruby Lumber Co. v. K.V. Johnson Co., 299 Ky. 811 , 187 S.W.2d 449, 1945 Ky. LEXIS 820 , 166 A.L.R. 1215 (1945).

    FIRST SUBSECTION:

    ORDINANCE

    We, the representatives of the people of Kentucky, in Convention assembled, in their name and by their authority and in virtue of the power vested in us as Delegates from the counties and districts respectively affixed to our names, do ordain and proclaim the foregoing to be the Constitution of the Commonwealth of Kentucky from and after this date.

    Done at Frankfort this twenty-eighth day of September, in the year of our Lord one thousand eight hundred and ninety-one, and in the one hundredth year of the Commonwealth.