Request By:
Honorable R. C. Hamilton
County Judge/Executive
Crittenden County Courthouse
Marion, Kentucky 42064
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of October 2 in which you request an opinion concerning the following questions:
Question No. 1:
If no person has filed or been elected in a district for the office of Constable, does this create a vacancy?
Question No. 2:
How long does a person have to be a registered voter in order to run for or be appointed to the office of Constable?
Question No. 3:
If a person is registered in a certain district and has a mailing address in that district, but lives there only part-time, is he still qualified for the office of Constable in said district?
The office of constable is a constitutionally elective office under § 99. There must be an election every four (4) years; the next regular election being November, 1981. Any vacancy occurring in the office of constable should initially be filled by appointment subject to an election for the unexpired term.
Section 152 of the Constitution requires every vacancy in an elective office to be filled at the next regular election embracing the area in which the vacancy occurs.
Thus, if no one has been elected to the office of constable in the district to which you refer, an automatic vacancy exists which should first be filled by appointment by the county judge/executive (KRS 63.220) subject to an election at the next regular election in November. Assuming that the vacancy in question occurred over three (3) months prior to the coming November election, it would have to be filled at the said election for the unexpired term. We might add that regardless of whether anyone files for the unexpired term within the time prescribed by statute, the clerk is required to list the office on the ballot for "write-in" purposes.
In answer to your second question, an individual is not required to be a registered voter in order to run for and hold the office of constable. He is, however, required to possess the qualifications set out in § 100 of the Constitution. This section requires legal residency in the state for two (2) years, and one (1) year next preceeding the election in the district in which he is a candidate. There is also an age requirement of twenty-four (24) years in order to legally hold the office in question.
The answer to your third question is one that only the courts can determine as a person's legal residence is dependent upon two major factors: (1) The intent of the individual; and (2) factual evidence of actual residence at a place in Kentucky. See Nunn v. Hamilton, 233 Ky. 662, 26 S.W.2d 526 (1930). However, legal residence is distinguished from actual abode and is not lost by temporarily departing with the intention of returning. See Elam v. Maggard, 165 Ky. 733, 178 S.W. 1065 (1915). Thus, the answer to your question must be based on all the factual evidence involved, and this can only be determined, as we have previously said, in a court of law.