Request By:
Mr. Gary C. Johnson
County Attorney Elect
Box 231
Pikeville, Kentucky 41501
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
In April of 1976, the Pike County Fiscal Court, upon the recommendation of the Budget Commission and the Pike County Attorney, entered an order setting the salaries for the magistrates during the term 1978 through 1981. The salaries were set at the maximum payable to an elected county official under KRS 64.527 [the maximum rubber dollar amount]. The intent was to make their salaries equivalent to that of other county officials. You ask if this was legal. The answer is "yes".
KRS 64.530(6) retains the old monthly maximum of $260 for magistrates. You have written that Pike County presents a somewhat unique situation, in that being a magistrate on fiscal court involves a full-time job. You explained it as follows:
"Pike County is unlike other counties in our state because we have such a large area and large population. Our entire county is semi-urban in that we have numerous villages and small towns that are between a hour and a hour and a half drive from our county seat. For these areas to be served, it is necessary for our magistrates to work at this job on a full-time basis. Pike County is listed with the Federal Government as one of the ten (10) growth areas in our nation, and substantial sums of Federal money is pouring into Pike County, all of which must be administered by our local fiscal court.
"In light of the durties and responsibilities that are imposed upon our four (4) magistrates, the maximum compensation allowable to any elected county official is really inadequate."
In the regular session of 1976 (Ch. 283, Section 1) KRS 64.527, which is the annual rubber dollar adjustment maximum statute, was amended by adding justices of the peace, county commissioners, and coroners to the operative provisions of the statute.
The rubber dollar principle of equating current salaries with the purchasing power of the 1949 dollar [when § 246, Constitution, was amended] is applied where the legislature has enacted specific legislation "adjusting" the dollar. The monetary level of $7200 appearing in § 246, Constitution, applies to county constitutional officers, for purposes of considering adjusting legislation. KRS 64.527 is this adjusting legislation applying to all officers named therein, and which included in the 1976 regular session amendment justices of the peace, county commissioners, and coroners. See
Commonwealth v. Hesch, Ky., 395 S.W.2d 362 (1965), dealing with the rubber dollar adjustment formula. The rubber dollar maximum in 1976 under this statute was $16,768.80. And it literally applied to justices of the peace for the calendar year of 1976.
In the 1976 Extraordinary Session two bills were passed amending KRS 64.527: (1) S.B. 15, Ch. 14, Section 38 and (2) H.B. 17, Ch. 17, § 19. The amendment of S.B. 15 carried forward the justice of the peace, county commissioners, and coroners. However, the amendment of H.B. 17 did not contain the justice of the peace, county commissioners, and coroners. No deletion, however, of the justices of the peace, county commissioners, and coroners appears in H.B 17, although deletion is required to take out such elements. The Statutes Revisor, in noting the failure of H.B. 17 to include the justices of the peace, county commissioners, and coroners, sent a copy of the enrolled bill to Bobbs-Merrill, the official publishers of the Kentucky Revised Statutes, noting thereon that the enrolled bill had, by way of a clerical error, failed to include justices of the peace, county commissioners and coroners, there being no deletion of the latter officials as required by statute [KRS 446.145].
In view of the fact that since S.B. 15 became effective in 1977 and H.B. 17 becomes effective on January 1, 1978, the Statutes Revisor in an L.R.C. note stated that KRS 64.527 was amended by the two bills in the 1976 Extraordinary Session and that they would later be read together and finally compiled as one statute, since they did not appear to be in conflict.
Bobbs-Merrill's 1977 Supplement showing the two printed versions of KRS 64.527 on p. 114, in connection with the H.B. 17 amended version, failed to show the inclusion of the justices of the peace, county commissioners and coroners. However, Banks-Baldwin's Kentucky Statutes correctly shows the inclusion.
It is our opinion that, in spite of KRS 64.530(6) [$260 monthly maximum, which retention is an oversight, we think], Mrs. Schwab's correction of H.B. 17 to include the justices of the peace was clearly authorized under KRS 7.136, since the failure to include justices of the peace in H.B. 17 was a manifest clerical error. The legislative rule is that in amendments of statutes in order to eliminate words or phrases they must be deleted by placing a bracket around the deleted words or phrases. H.B. 17 simply omitted the justices of the peace from the text. The retention in KRS 64.530(6) as to a $260 per month maximum salary for justices of the peace on fiscal courts simply is wholly repugnant to the placing of justices under the rubber dollar maximum in KRS 64.527; and to make sense, it (KRS 64.530(6)) should be disregarded. In fact, we believe KRS 64.530(6) should be considered repealed by implication.
Commonwealth v. Porter, 242 Ky. 561, 46 S.W.2d 1096 (1932).
While there may be difficulty in applying the rubber dollar maximum to justices of the peace in many counties, since the work load is not substantial, it is our opinion that the courts would uphold the application of KRS 64.527 to the justices of the peace in Pike County, under the assumption that they will work full time, i.e., at least a five day work week. If they work full time, then the payment of the rubber dollar maximum would not be discriminatory concerning the other county officials who work full time or nearly so. See