Request By:
Mr. Lloyd T. Russell
Franklin County Clerk
Franklin County Court House
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of February 7 in which you refer to the recent redistricting of Franklin County thereby creating a sixth magisterial district. You desire to know when this office must be filled by election for the unexpired term. You further point out that there are no countywide elections in 1978 except for members of congress. School board members are to be elected in two districts within the county; however, the sixth magisterial district and the school board races do not encompass the same precincts.
As you know, § 152 of the Constitution requires all vacancies in elective offices to be filled at the next regular election embracing the area in which such vacancies occur. See
Smith v. Ruth, 308 Ky. 60, 212 S.W.2d 532 (1948); and
Brumleve v. Ruth, 302 Ky. 513, 195 S.W.2d 777 (1946). Since federel elections do not qualify under § 152 as state elections (see cases cited previously) and the school board elections [which are required to be held this year] do not embrace the entire magisterial district in question, no election can be held this coming November, 1978 to fill the unexpired term. Thus, the appointee would hold office until the November election in 1979 which, of course, is a statewide election for state offices qualifying, of course, as an election embracing the magisterial district in question within the meaning of Constitution § 152.
Whoever is elected at the 1979 election would assume the office of magistrate of the sixth magisterial district immediately after the election or as soon thereafter as he receives his certificate of election and is able to qualify. See