Request By:
Mr. Mark Fitzgerald
House of Representatives
Chairman, Interim Joint Committee
on Counties and Special Districts
P.O. Box 313
Cynthiana, Kentucky 41031
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
House Bill 33 [1978 Acts, Ch. 197, § 12, effective June 17, 1978] amended KRS 424.260, a legal notice statute, to provide for newspaper advertisement for bids, by cities and counties, where the expenditure exceeds five thousand dollars ($5,000) [the cutoff figure was originally $2,500]. At the same session [1978 Acts, H.B. 675, Ch. 110, § 78, effective January 1, 1980], the legislature, as a part of the Kentucky Model Procurement Code, enacted what is now KRS 45A.385, which provides that cities and counties may use small purchase procedures (without advertised bids) for the award of any contract or purchase which does not exceed $2,500. House Bill 675 was approved by the Governor two days before he approved H.B. 33.
In OAG 78-357 we took the view that, in considering the irreconcilable conflict between the two bills, the last enacted bill should govern on January 1, 1980, i.e., H.B. 33, controls. On and after that date city and county expenditures over $5,000 would continue to require advertised bidding.
Upon reconsidering this question, in OAG 79-429, we were of the opinion that H.B. 675, as of January 1, 1980, controls, since it involved the enactment of the Kentucky Model Procurement Law. That procurement law is a lengthy, detailed, and rather complete and specific kind of law, as contrasted with the skeletal and general legal notices law.
As Chairman of the Committee which reported H.B. 33 to the House of Representatives, you believe that OAG 78-357 accurately reflected the intent of the legislature in "adjusting bidding requirements for local governments to the realities of an inflationary economy . . . ." You would like this office to withdraw OAG 79-429.
We appreciate your concern about this problem. However, upon the reconsideration of the problem of conflicting legislation in the writing of OAG 79-429, we came headon to a principle of statutory construction which, in this kind of situation, we think, is of paramount importance. It is that where two statutes deal with common subject matter, the one dealing with the subject in a minute way will prevail over the general statute.
Morton v. Auburndale Realty Company, Ky., 340 S.W.2d 445 (1960) 446. See also
City of Bowling Green v. Board of Education, Ky., 443 S.W.2d 243 (1969).
In Sands, Sutherland Statutory Construction (4th Ed.) Vol. 2A, § 51.05, we find this statement of the principle:
"General and special acts may be in pari materia. If so, they should be construed together. Where one statute deals with a subject in general terms, and another deals with a part of the same subject in a more detailed way, the two should be harmonized if possible; but if there is any conflict, the latter will prevail, regardless of whether it was passed prior to the general statute, unless it appears that the legislature intended to make the general act controlling."
There was nothing in H.B. 33, Section 12, the later bill, which indicated that the legislature intended to make the general act, the legal notice statute on bidding, controlling over the Kentucky Model Procurement Act. In fact, there is no mention whatsoever of the Model Procurement Act.
The critical point was made in
American Medical Ass'n v. Mathews, (U.S. D.C., N.D. Ill., E.D. -1977) 429 F. Supp. 1179, 1196, that "In the case of competing and overlapping statutes, legislative intent is most reliably expressed in the statute where the attention to detail and to precision are the most manifest." (Emphasis added).
The federal courts recognize the canon of statutory construction that a later statute, general in its terms and not expressly repealing a prior particular statute, will ordinarily not affect the provisions of the earlier statute.
Rodgers v. United States, 185 U.S. 83, 22 S. Ct. 582, 46 L. Ed. 816 (1902).
The United States Court of Claims, in Abell v. United States, 518 F.2d 1369 (1975) 1378, reiterated the "recognized rule that special statutes will prevail over general statutes without regard to the priority of enactment", citing several supporting cases of the United States Supreme Court and United States Courts of Appeal.
As we pointed out in OAG 79-429, until January 1, 1980, the provisions of KRS 424.260 [$5,000 cutoff] will remain effective. As of January 1, 1980, the cutoff figure of $2,500 in KRS 45A.385 will apply. However, at such time the General Assembly, as you say, can deal with this problem of inconsistency. Further, the General Assembly will have a chance to move on that problem before it can have any trouble-some effect on local procurement.
In summary, it is our opinion that OAG 79-429 correctly applies the overarching principle that a specific and detailed statute governs over a general statute. Specifically, it is still our opinion that as of January 1, 1980, KRS 45A.385, providing a cutoff of $2,500, will govern over KRS 424.260 [$5,000 cutoff] , as to necessity for advertisement for bids.