Request By:
Mr. Buddy R. Salyer, P.S.C.
Attorney at Law
151 East Main Street
Morehead, Kentucky 40351
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
The members of the Rowan County Bar Association wish to adopt the county law library financing provisions of KRS 172.180.
KRS 172.100 provides in part that the county law library shall be in a room in the courthouse or in a building of good construction adjacent to the courthouse, as designated by fiscal court. You say, however, that neither the courthouse nor adjoining building has proper facilities for the library.
Your question is whether the county law library can be located in the Morehead State University Library which is approximately 300 yards from the courthouse.
The circuit clerk is the ex officio librarian of such county law library. KRS 172.110. The statute relating to the location of the county law library was apparently designed to accomodate the circuit clerk, who has the duty to perform the usual librarian functions.
The county law library trustees, upon the adoption of KRS 172.180, are in charge of the library, and they make book purchases, etc., and direct the ex officio librarian in the exercise of his or her duties. KRS 172.200(3).
Under the proposed M.S.U. library housing plan, the funds collected under KRS 172.180 would be delivered to the trustees of the county law library, who would purchase necessary books for the library, and would then turn the books over to the circuit clerk, who in turn would deliver them to the Morehead State University's librarian. The University would charge the Bar Association no fees for handling and maintaining the books. The county law library books would be located in the reference section of the Morehead State University library. Thus these law books would be available for the use of anyone who desires to use them, except that the books can only be checked out to officials and attorneys who wish to take them to the courthouse for use in arguments in pending cases. The clerk would be paid $50 per month for the clerk's services.
Under the circumstances we are of the opinion that the strict language as to location of the library found in KRS 172.100 is permissive only, and the housing of the county law library in the Morehead State University library would be legal if agreed upon by the trustees of the county law library and the appropriate university official or officials. While the statute uses the term "shall" designate a room in the fourthouse, etc., the term "shall" is considered mandatory except where the context requires otherwise. KRS 446.010(29). There is a line of cases holding that the certifying of assessments by a stated deadline is directory only. This is under the theory that the public purpose to be subserved [orderly governmental administration] controls, especially where the delay in certification results in no deprivation of the taxpayer's right to be heard and no prejudice to him in any way. Johnson v. Fordson Coal Co., 213 Ky. 445, 281 S.W. 472 (1926) 473, 474. By way of analogy, in this case where the basic purpose of the legislation can be subserved [orderly system for a county law library] without prejudicing any officer or individual affected by the county law library, the permissive application of KRS 172.100(1) is allowed.
While KRS 172.110 provides that the circuit clerk shall be ex officio librarian, where the circuit clerk receives new books from the county law library trustees and delivers them to the Morehead State University librarian, and where the circuit clerk keeps a record of all books and other property received into the county law library system, and takes the annual inventory of such library property, it is our opinion that this would amount to substantial compliance with KRS 172.110.