Request By:
Mr. William N. Wiley
Committee Administrator
Interim Joint Committee on
Counties and Special Districts
Legislative Research Commission
Capitol Building
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your question is this: "Does KRS 67.710(8) [appointment to boards] amend by implication those statutes [on this same subject] which come before it, or does the specific take precedence over the general?"
In the extraordinary session of 1976 [Ch. 20, § 3, eff. January 2, 1978], KRS 67.710(8) was enacted. It provides a general procedure for appointing of persons to various boards and commissions. The county judge/executive, under that statute, nominates a person to fill such office, then the fiscal court as a body either accepts or rejects the nomination.
In OAG 78-353 we concluded that KRS 67.710(8) and 97.035(2) [parks board appointment] were irreconcilable and that the later statute, KRS 67.710(8), governs.
In OAG 78-466 we concluded that KRS 67.710(8) and 216.323 [hospital board appointment] were irreconcilable and that the later statute, KRS 67.710(8), governs.
You will note that in the above two opinions two elements were present in applying the doctrine of amendment by implication: (1) The two statutes on the appointment must be irreconcilable; and (2) The later statute then governs, since a choice is dictated. See Washburn v. Paducah Newspapers, Ky., 121 S.W.2d 911 (1938) 914, construing two conflicting statutes on the same subject. There the court wrote this at page 914:
"If a later statute accomplishes the same purpose intended to be accomplished by a previously enacted statute but by obviously different methods and in a different manner, the later statute supersedes and repeals the earlier one. Com., etc., v. Hargis Bank & Trust Co., 233 Ky. 801, 26 S.W.2d 1045. This would be true even by implication; . . ."
In Washburn, above, the court emphasized that the use of the doctrine of the "later legislative expression", in construing conflicting statutes, arises out of the judicial reasoning that it will not be presumed that the legislature intended a useless or futile thing.
In OAG 79-290, regarding the appointment of viewers for determining certain effects of a proposed road or road alteration, we concluded that KRS 178.080 [appointment statute] governed over KRS 67.710(8), since the former was a specific type of statute. No mention was made of the amendment by implication and the principle of the "last legislative expression." You note that KRS 178.080(1) has been amended since KRS 67.710(8) was enacted, but you say the amendment is not one of substance. The purpose of the amendment was to substitute "fiscal" for "county court". Prior to the 1978 amendment of KRS 178.080, the "fiscal court" had no authority to establish a county road and appoint the viewers. Only the "county court" had that authority. So the amendment was one of substance. See Johnson v. Clark County, 258 Ky. 563, 80 S.W.2d 571 (1935) 572. Under the "later legislation" principle, KRS 178.080 would govern over KRS 67.710(8).
In Morton v. Auburndale Realty Company, Ky., 340 S.W.2d 445 (1960) 446, the court said this:
"Where two statutes deal with common subject matter, the one dealing with the subject in a minute way will prevail over the general statute. This is especially true where the special act is later in point of time. "
Thus OAG 79-290 stands for the proposition that where the two statutes are irreconcilable and the special statute [KRS 178.080] was later in point of time [KRS 67.710(8) being earlier], the special or specific statute will control. See City of Bowling Green v. Board of Education, Ky., 443 S.W.2d 243 (1969) 247.
To answer your question, KRS 67.710(8) generally will amend by implication earlier statutes dealing with the same subject matter and which are irreconcilable with the later statute. As noted above, OAG 79-290, while emphasizing the special versus the general, hinges on the final proposition that KRS 178.080 was later and substantially amended in 1978.