Request By:
Honorable Charles M. Cox
Attorney at Law
112 Locust Street
P.O. Box 306
Carlisle, Kentucky 40311
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of January 4 in which you relate that Mr. James Coy contacted you on or about December 1 to determine his eligibility to qualify for the office of constable in a particular district in which he lived in May at the time he was nominated unopposed at the May primary. However, before the November election, he moved into another district where he now resides. You further relate that another individual who received several "write-in" votes in the November election now desires to qualify as constable in the district in which Mr. Coy ran unopposed. The question is whether or not Mr. Coy is qualified to serve as constable in the district in which he no longer resides.
Section 100 of the Constitution requires constables to reside within the district from which they are elected and, of course, remain residents of said district throughout their term of office. Assuming that Mr. Coy was duly elected in November to the office of constable though he no longer legally resides within the district, means that he is not legally qualified to hold the office during the ensuing term beginning this January, 1978.
In view of this fact, Mr. Coy should resign from the office or be subject to removal as a usurper by the commonwealth attorney under KRS 415.040, which would create a vacancy to be filled by the county judge/executive [KRS 62.220 (1)], subject to an election for the unexpired term pursuant to § 152 of the Constitution either this coming November or in November, 1979. We might point out that there must be a regular election embracing the area in which this vacancy occurs in order for the vacancy to be filled pursuant to the referred to section of the Constitution, and the only regular election this coming November in your county is a school board election, which may or may not embrace the magisterial district in question.
The individual who received several "write-in" votes at the November election and who now desires to qualify for the office in question could, of course, be appointed to fill the vacancy but he has no claim to the office by virtue of his receiving "write-in" votes. In other words, the candidate coming in second can never assume the office even though the winner becomes disqualified or the election is declared void. His only possible right to the office would evolve from a contest suit where the courts declare that he was in fact the winner by virtue of the fact that he received more legal votes than his opponent.