Request By:
Honorable Paul W. Richwalsky, Jr.
First Assistant
Office of Commonwealth Attorney
30th Judicial District of Ky.
Jefferson Hall of Justice
Louisville, Kentucky 40202
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of September 10 in which you seek clarification of our position to the effect that a policeman of a city of the fifth class does not have to reside in the city or county containing said city. You cite KRS 61.300, 95.710 and 63.180 as a basis for the conclusion that at least county residence is required forall such policemen.
We agree that the issue is not free from doubt and should be clarified by the legislature but believe that our position is legally sound to the effect that policemen not only of cities of the fifth class but of any other class are no longer required to reside either in the city or county.
In 1968 the legislature enacted KRS 15.335 [which has not been subsequently amended] providing, in effect, that no person shall be disqualified from holding a position as a peace officer by reason of his residency or voting eligibility except as provided in the Constitution [meaning § 234]. The obvious legislative intent in passing this statute was to eliminate any and all residency requirements for elected and nonelected peace officers as long as they are not mentioned in the Constitution; thereby permitting the employment of policemen in all classes of cities regardless of where they reside as long as it is in Kentucky. This makes for uniformity and permits small cities to obtain qualified officers. In 1970 the Court of Appeals held in the case of City of Newport v. Schindler, 449 S.W.2d 17, that § 234 of the Constitution requiring all officers of the city to reside in the city as not being applicable to city policemen since they were not officers named in the Constitution. This opinion clarified the residency issue and since the enactment of the referred to statute and the Schindler case, our position has been, as you well know, that policemen are no longer required to reside in the city or county irrespective of any city statute to the contrary. KRS 61.300, to which you refer, setting the qualifications for nonelective peace officers along with KRS 95.710 which required city residency, if possible, or at least county residency, was thereby, in our opinion, impliedly repealed [OAG 75-315].
As you have indicated, KRS 61.300 was amended in 1974 and subsequently in 1976, however, the initial amendment was merely a correction in the wording of the statute not affecting residency; also, the amendment in '76 amended (c) only to eliminate "under indictment." In 1976 KRS 63.180, which is the penalty section governing KRS 61.300, was amended both in the General and Extraordinary Sessions, but merely to change the court in which the violation would be tried and the proceedings in said court. KRS 95.710 was likewise amended in '76 to delete the citizenship requirement and six months residency in the county and city, leaving intact the county residency requirement.
The point that we are trying to make is the fact that the amendments to the various statutes did not in any way effectively change the residency requirements as they were simply reenacted with the exception of the deletion found in the amendment to KRS 95.710. This brings us to the general rule of statutory construction to the effect that the courts will presume that where the legislature intends for a subsequent statute to repeal a former one, it will clearly so express itself and such repeals should not be adjudged unless it appears that the legislature intended to nullify a previous act. Oldham County v. Arvin, 251 Ky. 317, 64 S.W.2d 907 (1933); and State Board of Election Com'rs. v. Coleman, 235 Ky. 24, 29 S.W.2d 619 (1930). Also referring to the case of Schultz v. Ohio County, 226 Ky. 633, 11 S.W.2d 702 (1928), we find the following rule expressed.
"It is an elementary rule of construction that the repeal of an existing law by implication is not favored by the courts, and a legislative enactment will never be interpreted as inferentially repealing a prior statute or part thereof unless the repugnancy is so clear as to admit of no other reasonable construction. . . ."
Next referring to Sutherland on Statutory Construction, Vol. 1A, § 23.29, we find the following general rule expressed concerning amending statutes which simply reenact certain segments of the previous statute, to wit:
". . . Consequently, an intermediate statute which has been superimposed upon the original enactment as a modification of its provisions is likewise not repealed by the reenactment of the original statute, but is construed as being continued in force to modify the reenacted statute in the same manner that it did the original enactment. . . ."
In other words, the reenactment is to be read as part of the original enactment and therefore the intermediate act (KRS 15.335) continues to modify the later enactment. Commonwealth v. Meyers, 290 Pa. 573, 139 A. 374 (1927).
Thus, it is our position that KRS 15.335 remains effective irrespective of the subsequent amendments to the referred to statutes and consequently controls the residency requirements for police officers in cities of the fifth class, at least until such time as the courts hold otherwise, or until the legislature clarifies the law on the subject by specifically indicating that its residential terms are an exception to KRS 15.335.