[1995/oagheade.htm]

OAG 95-35

November 6, 1995

Subject: Dividing or Striking A Portion of a County and Attaching It to Another County.

Written by: Gerard Gerhard

Requested by: Hon. John C. Price, Fleming County Attorney

Syllabus: County's vote, in favor of a portion of the county being divided or stricken and attached to an adjoining county, does not, in and of itself, result in such change, which may occur only upon direction of the legislature. Other related questions are addressed in the Opinion.

OAGs cited: 67-37.

Statutes construed: KRS 67.030, 67.030(1), 67.030(4), 67.270.

Constitutional provisions cited: �� 64 and 65, Constitution of Kentucky.

OPINION OF THE ATTORNEY GENERAL

Several questions related to the division or striking of territory of one county, and attaching it to an adjoining county, have been presented. The questions, in substance, followed by responses to them, are set forth below.

1. Does the Receiving County Vote on Whether to Accept Territory Stricken from Another County?

In direct answer to the question, no. The statutes do not provide for a county that might receive territory divided or stricken from another county to vote upon Hon. John C. Price whether to accept such territory. The question, however, appears to emanate from what we believe is a misconception that, upon a county's vote in favor of division or striking a portion of the county, and attaching it to an adjoining county, such transfer occurs automatically. We believe this misconception should be addressed here, for such assistance as it may provide.

In our view, counties and their boundaries are creatures of the legislature, and they can only be changed by legislative action. A vote taken pursuant to KRS 67.030 can serve only as an indication to the legislature as to the sense of a county concerning a possible division or striking of a portion of a county's territory. Such vote does not, in and of itself, result in a division or striking of the territory of a county and its attachment to an adjoining county. A county to which territory is proposed to be attached would presumably have an opportunity to make its views on such action known to the legislature. Discussion follows.

Applicable Constitutional and Statutory Provisions

Two provisions of Kentucky's Constitution (Sections 64 and 65), and one statutory provision (KRS 67.030), govern the possible division or striking of a portion of territory from a county and its attachment to an adjoining county.

Section 64 of the Constitution of Kentucky

Section 64 of the Constitution of Kentucky provides:

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.

Section 65 of the Constitution of Kentucky

Section 65 of the Constitution of Kentucky provides:

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.

(Emphasis added.)

KRS 67.030

KRS 67.030 is the current codification of language which has remained substantially unchanged since its original enactment in 1893 (Acts, 1893, ch. 214). The provision is obviously intended to provide the detailed procedures for carrying out the general direction of Sections 64 and 65 of the Constitution. It provides:

(1) When a petition, describing a particular territory of a county and signed in person by not less than a majority of the voters living in that territory, is filed with the county judge/executive, asking for an election on the proposition of dividing the county or striking the described territory from the county and attaching it to an adjoining county, the county judge/executive, by order entered of record, shall call an election on that proposition to be held on the day of any regular election held in the county for other than county officers that does not occur within less than ninety (90) days from the filing of the petition. No order calling such an election shall be legal unless it contains a specific description of the territory proposed to be stricken or divided.

(2) The county judge/executive, by order entered of record, shall direct the sheriff to advertise the election and its object by publication pursuant to KRS Chapter 424, and by printed handbills posted at the courthouse door and at not less than four (4) places in each precinct.

(3) The proposition shall not be adopted unless a majority of all the legal voters of the county voting on the question vote in favor of it.

(4) Any portion stricken off and added to another county as a result of the election shall be bound for all costs expended.

(Emphasis added.)

A Possible Misconception

Section 64 (above) directs, in part, that no territory shall be divided or stricken from a county (except in the formation of a new county) without submitting the question to a vote of the people of the county. Section 65 directs, again in part, that territory shall not be stricken from a county unless a majority of the voters living in such territory petition for such division. One might get the impression from these provisions that if these requirements are satisfied, a division or striking of territory from a county will thereby be achieved. Confusion is perhaps added by KRS 67.030(1), which calls for a petition to be submitted to the county judge/executive. By contrast, in Opinion of the Attorney General (OAG) 67-37, this office observed, in part, “It is necessary that a majority of the voters living in the territory to be stricken off petition the Legislature for such division.” (Emphasis added.) KRS 67.030(4), in providing that any portion stricken off and added to another county “as a result of the election” (referring to an election on such question), certainly might also reinforce the view that the question of division or striking of territory from a county, and adding it to an adjoining county, is determined solely by a vote within a county pursuant to KRS 67.030. Such cannot be the case.

Counties and Their Boundaries are Creatures of the Legislature

Kentucky's counties and their boundaries are creatures of legislative action (see, for example, the listing of the dates of enactment of the laws creating Kentucky's respective counties in An Historical Atlas of Kentucky and Her Counties, Wendell H. Rone, Sr., 1965, pp. 41-44, copy attached). Fleming County, for example, and its boundaries, were established by “An Act for the Division of Mason County,” approved February 10, 1798 (Acts, 1798, ch. LXXXIX, copy attached). Lewis County and its boundaries were established by “AN ACT For the division of Mason County” approved December 2d, 1806. (Acts, 1806, p. 145-147, copy attached).

Surely it will be recognized as a matter of legal principle that an act of the legislature may only be modified by an act of that body. Changing the boundaries of counties, as by dividing or striking territory from one county, and attaching it to another, obviously involves the overriding of a prior legislative enactment.

The Meaning of Sections 64 and 65 of the Constitution of Kentucky

Did the framers of the Constitution intend, by the language set forth in Sections 64 and 65, that the question of whether territory would be divided or stricken from one county, and attached to an adjoining county, would be determined solely by a petition of the voters of such territory and a subsequent vote in such regard of the county in which such territory is located? In our view the answer is clearly no.

Debates of the Constitutional Convention of 1890

A review of the Official Report of the Proceedings and Debates in the Convention to Adopt, Amend or Change the Constitution of Kentucky (1890), which resulted in the language of Kentucky's present constitution as quoted above, indicates that it was well recognized that the transfer of territory of one county to another was a legislative prerogative, but that there should be a “check” or limitation placed on the legislature's power in such regard, except where it determined to create an entirely new county. That “check” was that before the legislature could divide or strike territory from one county, and attach it to another, a majority of the voters living in such territory must petition for such division (Constitution � 65, above), and, thereafter, a majority of the voters of a county voting upon such question must vote for the same (Constitution � 64, above). There is no basis for concluding that Sections 64 and 65 of the Constitution were intended to empower the voters of one county to override the authority of the legislature to fix the boundaries of a county, as a basic subordinate unit of state government, and to impose their will upon an adjoining county.

As an example, Mr. Brents, one of the delegates to the Convention, commenting upon his proposed amendment to the language that became sections 64 and 65, is quoted as follows:

It seems to me that the restriction that no county line shall be changed until a majority of the voters of that part proposed to be stricken shall first petition the Legislature, and then the proposition shall be submitted to the voters in that district, or that part, and the change shall not then be made until three-fourths of the people within that part vote in favor of it, is best. According to my amendment, a county line cannot be changed until a majority of the voters in the part proposed to be stricken off petition the Legislature, and then the Legislature must submit that to the people within that particular district, and the vote must be taken. That will delay the matter until another session of the Legislature, and if those people still insist upon it at that time, the members of the Legislature can duly deliberate and duly consider the matter.

(1 Debates of Constitutional Convention of 1890, pp. 331-332, emphasis added.)

At another point, Mr. Brents is quoted:

It is unanimously agreed that the Legislature of the State may create new counties. It is also agreed that the Legislature may change county lines or adjust the lines between counties. These matters are propositions which seem to be very generally agreed upon in the Convention.

(Id., 369, emphasis added.)

Mr. Young, the chairman of the Committee on Municipalities in the 1890 Convention, is quoted as follows:

Wherever you dismember a county, by the Committee's report you shall consult that dismembered county, and the whole county shall have the right to vote upon the question. The Committee is prepared to stand by that principle. The Committee does not believe that a county should be dismembered without the consent of the whole county.

* * *

The Committee is of the opinion that there should be some general principle which shall control dismemberment of counties. That principle are (sic) that the county itself shall consent and the dismembered parts shall consent.

(Id., p. 395, emphasis added.)

From a reading of the quotations set forth above from the debates of the Constitutional Convention of 1890, it can be seen that it was well recognized that it is the legislature that must cause the division or striking of the territory of a county. In the quotations from Mr. Young (immediately above) it will be recognized that the term “you” refers to the legislature. Further, the references to a county giving its “consent” to a division or striking of its territory is directed to a county consenting to the Legislature. Obviously a county does not consent to itself. The comments cannot be read as suggesting that a vote of a majority of the people voting on the question of whether to strike or divide territory from their county will operate as a mandate, in and of itself, that such change must occur.

2. Does KRS 67.030 Control?

The question is posed as to whether KRS 67.030, which does not provide for a county that might receive territory divided or stricken from an adjoining county to vote on whether to receive such territory, controls (meaning that if the vote is in favor of division or striking, such must automatically occur).

For the reasons set forth above, in our view the answer is no. In our view, the question of whether territory shall be divided or stricken from one county, and attached to an adjoining county, is one for the legislature, subject to compliance with Sections 64 and 65 of the Constitution.

3. Does the Twelve Thousand Inhabitant Requirement (for establishment of a new county) (Constitution of Kentucky � 64), Bear Upon the Fact Situation here Involved?

No. The language of � 64 of the Constitution (above) pertinent to the question here, states:

[N]or shall any new county be established which will reduce any county to less than twelve thousand inhabitants.

(Emphasis added.)

As we understand the facts at issue here, they involve the possible division or striking of territory of Lewis County, and the attachment of that territory to Fleming County. Such facts do not involve the “establishment of a new county.” Accordingly, the twelve thousand inhabitant requirement of � 64 of the Constitution of Kentucky has no bearing upon the proposal in question.

4. What is the Procedure for Collection of Indebtedness Owed Former County?

Given the requirement of section 65 of the Constitution of Kentucky, that a portion of a county stricken and added to another county shall remain bound for its proportion of the indebtedness of the county from which it is removed, how is the collection of such indebtedness carried out? Is KRS 67.270 read in conjunction with � 65?

First, there currently are no procedures detailing how the proportionate share of a county's debt that would be attributed to territory divided or stricken from a county is to be collected. Hopefully the legislature, should it approve the division or striking of territory from a county, would at such time specify the procedures to be followed for such debt collection. The discussion of the Court in Whitley County v. Wood et al., 161 Ky. 234, 170 S.W. 622 (1914) (copy enclosed), might provide some guidance on this question.

Second, KRS 67.270 is not “read in conjunction with � 65” in connection with the facts at issue here. KRS 67.270 is among the statutory provisions regarding “consolidation of counties.” It comes to bear when there is a literal consolidation of two entire counties. It does not apply in relation to the division or striking of a portion of the territory from one county and its attachment to another, which does not involve a “consolidation of counties” within the meaning of KRS 67.190 to 67.310.

5. Are Provisions Concerning Consolidation of Counties Applicable?

The question is posed as to whether KRS sections 67.190 to 67.310, regarding consolidation of counties, are applicable to the circumstance of the striking of a portion of the territory of one county and its attachment to another county.

No. As explained above, KRS 67.190 to KRS 67.310 address the literal consolidation of two entire counties under the specific procedures set forth in those sections. Those provisions have no bearing upon the possible division or striking of a portion of the territory of one county, and its attachment to an adjoining county.

CHRIS GORMAN

ATTORNEY GENERAL

Gerard R. Gerhard

Assistant Attorney General