Request By:
Mr. Grant M. Helman
Attorney at Law
603 Marion E. Taylor Building
Louisville, Kentucky 40202
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your question concerns a local option election. The factual situation arises out of an election held in Louisville in the 7th precinct, 1st ward, on December 13, 1977. The County Board of Election Commissioners certified the election as being 85 for prohibition and 7 against. On January 9, 1978, an order was entered by the county judge/executive pro tem.
Your question: Since KRS 242.190 and 242.200 require the certificate of election to be entered in the order book of the county court, was the above order properly entered?
Under the Judicial Amendment of the Kentucky Constitution, there is no longer a "county court." See § 109, Constitution. This was effective January 2, 1978. However, in Acts of 1976 (Ex. Sess.) Ch. 20, § 6, effective January 2, 1978, the words county judge/executive are to be substituted for "county judge" or "county court" appearing in previously enacted statutes, provided that the statutory function involved is essentially of a nonjudicial character.
It is our opinion that the proper construction of KRS 242.190 and 242.200 is that the certificate of election on booze should be recorded in the county judge/executive's order book. The book should be maintained in the county clerk's office and labeled "Executive Order Book of County Judge/Executive." This matter of recording such certification is purely a ministerial and administrative act. If the county judge/executive pro tem entered the certification in such executive order book, it was legal and proper.
There is no constitutional objection to the mere administering of a law. In Keller v. Kentucky Alcoholic Beverage Control Bd., 279 Ky. 272, 130 S.W.2d 821 (1939), the court held that the discretionary power of the Kentucky Alcoholic Beverage Control Board in holding hearings and revoking A.B.C. licenses, while being quasi-judicial, was not essentially judicial in nature as to usurp the function of the judiciary. A fortiori the mere act of recording a certification of an A.B.C. election is not judicial in nature. It is merely an administrative or ministerial act necessary in the administering of the law. See § 28, Kentucky Constitution.