Request By:
Honorable Bill Klapheke
Barren County Attorney
Courthouse - Second Level
Glasgow, Kentucky 42141
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of December 20 in which you raise the following question:
"We have a constable who was elected, but who has never taken the oath of office and who has never executed the required bond. What procedure is necessary to declare the office vacant and after that has been done, what are the steps concerning a replacement constable?"
In response to the above question, we wish initially to point out the constable is required to execute bond pursuant to § 103 of the Constitution. He is also required to execute said bond on or before he takes office under the terms of KRS 62.050. The oath is required pursuant to KRS 62.010. The statutory deadline for executing the bond is mandatory and failure to do so vacates the office as held in a number of cases, among them being
Commonwealth v. Yarbrough, 84 Ky. 496, 2 S.W. 68 (1886);
Barnett v. Hart, County Judge, 112 Ky. 728, 66 S.W. 726 (1902);
Lewin v. Ft. Mitchell, 148 Ky. 816, 147 S.W. 922 (1912); and
Clark v. Anderson, 300 Ky. 727, 190 S.W.2d 342 (1945).
We also refer you to KRS 62.990 (2) which provides that any person violating the terms of KRS 62.050 (2) forfeits his office and creates a vacancy. This penalty provision would appear to indicate that the vacancy is not automatic but would require some action to be taken of a judicial nature in order to remove the officer, if he fails or refuses to resign and continues to attempt to execute the duties thereof. See
Hermann v. Lampe, 175 Ky. 109, 194 S.W. 122 (1916). As you know, the removal of unqualified county officers is the sole responsibility of the commonwealth attorney under KRS 415.050 involving the usurpation of office.
On the other hand, there is an old case indicating that the county judge can enter an order declaring a vacancy to exist and proceed to appoint an individual to fill the vacancy pursuant to KRS 63.220. See