Request By:
Ed W. Hancock, Esq.
Deputy Secretary for Legal Affairs
Department of Transportation
State Office Building
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, ESQ., Attorney General; Mark F. Armstrong, Esq., Assistant Attorney General
We are in receipt of your letter in which you ask our opinion of whether the permit provided in KRS 164.720(1) may be issued to a state agency. In a letter to R. Berle Clay, Ph.D., we concluded that the permit may only be issued to a natural person.
The statute in question, KRS 164.720(1), reads as follows:
"No person shall explore, excavate, appropriate or remove from land owned or leased by the Commonwealth or any state agency or any political subdivision or municipal corporation of the Commonwealth, any archaeological site or object of antiquity without first obtaining a permit from the department of anthropology upon the recommendation of the agency owning or having control of the land upon which the same is situated."
You correctly point out that under KRS 446.010(21), the word, "person", when used in a statute, may extend and be applied to bodies-politic, such as a state agency. This statute, KRS 446.010, permits the broader meaning, "unless the context requires otherwise." Thus, the question initially proposed resolves itself into a question of whether the exception provided in KRS 446.010 applies in the interpretation of "person", as it is used in KRS 164.720. If the exception does not apply, the extended meaning of "person", as found in KRS 446.010(21) should be used in interpreting "person" as it is used in KRS 164.720.
Because the meaning of "person" in KRS 164.720(1) is unclear, it is appropriate to use the rules of statutory construction, compare, Griffin v. City of Bowling Green, Ky., 458 S.W.2d 456 (1970). The primary rule of statutory construction is to determine legislative intent, cf. Lunsford v. Commonwealth, Ky., 436 S.W.2d 512 (1969). In this regard, we refer to KRS 164.705 which provides as follows:
"It is hereby declared to be the public policy of the Commonwealth to preserve archaeological sites and objects of antiquity for the public benefit and to limit exploration, excavation and collection of such matters to qualified persons and educational institutions possessing the requisite skills and purpose to add to the general store of knowledge concerning history, archaeology and anthropology. "
The purpose expressed in this statute must control the interpretation of "person", cf. Kentucky Region Eight v. Commonwealth, Ky., 507 S.W.2d 489 (1974). It clearly reveals a legislative intention that only qualified (natural) persons explore and excavate archaeological sites and collect objects of antiquity. We reach the conclusion, because in the words of the Court, it would be an "unreasonable" result to hold that an artificial creature of law is qualified by training or education to explore an archaeological site, cf. City of Frankfort v. Triplett, Ky., 365 S.W.2d 328 (1963). In our view of the matter, the word, "qualified," is not synonymous with the word, "authorized." For example, a state agency may be authorized to perform a specific task. Whether the state agency is qualified to perform the task rests not upon its authority to do so but upon the qualifications of its agents or employees who actually perform the task.
We obtain support for this conclusion because KRS 164.705 refers to "qualified persons and educational institutions." The expanded meaning given to "person" in KRS 446.010(21) would include educational institutions. Thus, if "person" were to be given an educational institutions. Thus, if "person" were to be given an expanded meaning, it would be unnecessary for the statute to refer to educational institutions. It is presumed that the legislature did not intend to enact useless legislation, cf. George v. Sceat, Ky., 346 S.W.2d 784 (1961). Therefore, because educational institutions are specifically named, the legislature intended that "persons" be restricted to natural persons.
You mention that when a permit is issued to a person such as an archaeologist, the person does not perform every specific task on the site but has assistants for whom he is responsible. We are of the opinion that the statute, KRS 164.720(1) requires each helper or assistant or worker at an archaeological site to be issued the required permit. Otherwise, unqualified persons will be working at the site which defeats the purpose and intent of the statute, cf. Kentucky Region Eight v. Commonwealth, supra. This does not preclude the use of an assistant who is not academically trained and, thus, not qualified, but whose services are necessarily required, e.g., the operator of earth-moving equipment. Rather, a restricted permit may be issued under KRS 164.720(3) so that an academically unqualified but nevertheless essential person may perform specific tasks on a site which will not damage or impair its archaeological value.
SUMMARY: We are of the opinion that the permit specified in KRS 164.720(1) may only be issued to a natural person. We are of the further opinion that no person may perform any of the tasks specified in KRS 164.720(1) at an archaeological site unless he has issued the required permit. The extent our opinion goes is no further than the expression of it in this Summary.