Request By:
Ms. Cattie Lou Miller
Deputy Secretary for
Administration
Department of Finance
Capitol Annex
Frankfort, Kentucky 40601
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You request our opinion with regard to KRS 440.090, relating to returning fugitives from justice to Kentucky.
Your specific question reads:
"If an agent's travel is by plane, should the distance traveled be computed on the basis of 'air' miles? " The answer is "no", which we shall explain hereinafter.
KRS 440.090 reads in part:
"When the governor of this state makes requisition upon the governor of another state for a fugitive from justice, the person named in the requisition as the agent of this state shall, unless a different condition is contained in his commission, be allowed as compensation from the state treasury for his services a mileage allowance at the same rate fixed by regulations adopted by the commissioner of the executive department for finance and administration pursuant to KRS 44.060, plus an additional sum calculated at the rate of five cents (5 ) per mile for the distance he travels to and from the jail of the county designated in the proclamation to the place where the fugitive is arrested, and any other necessary expenses he pays in reclaiming and returning the fugitive. " (Emphasis added).
The mileage allowance mentioned in KRS 440.090 for extradition purposes does not specify any particular mode of travel. The statute does refer to KRS 44.060 as to a rate to be established by regulations of the Finance Department. KRS 44.060 relates to reimbursement of state officers and employees for the expense of operating a privately owned vehicle on state business. KRS 45.180 deals generally with reimbursement of state officers and employees for expenses incurred while on state business. It is our view that both statutes must be read together, since they relate to essentially the same subject. In Dieruf v. Louisville & Jefferson County Bd. of Health, 304 Ky. 207, 200 S.W.2d 300 (1947) 302, the court observed this as relates to statutes dealing with the same subject [pari materia] :
"It is written in 50 Am.Jur. Sec. 349, p. 345, that statutes in pari materia are not to be considered as isolated fragments of law, but as a whole or as a part of a connected system, unless a different purpose is clearly shown, as it will be presumed, in the absence of words specifically indicating to the contrary, that the Legislature did not intend to 'innovate on, unsettle, disregard, alter or violate a general statute or system of statutory provisions the entire subject matter of which is not directly or necessarily involved in the act.'"
In the absence of reading KRS 44.060 and 45.180 together, the reference to KRS 44.060 alone in KRS 440.090 might suggest that the agent for returning a fugitive to Kentucky is restricted to travel in his own vehicle. We do not believe that was the legislative intent. In reading KRS 44.060 and 45.180 together, travel by air, railroad, automobile, and water are possible. In other words, KRS 45.180 contemplates travel by air, water, and ground [motor vehicle and train].
The current Department of Finance regulation on "Travel Expense and Reimbursement" [200 KAR Chapter 2] does restrict the mode of travel in providing in Section 2 that "Each agency head is responsible for insuring that all travel expense from that agency is as economical as is feasible."
Section 5 of the travel regulation provides in part:
"Transportation. (1) Economy required. State officers, agents, and employees traveling on State business shall use the most economical, standard transportation available and the most direct and usually-traveled routes. Expenses added by use of other transportation or routes must be assumed by the individual.
"Round-trip, excursion or other reduced-rate rail or plane fares shall be obtained if practical.
"(2) State vehicles. State-owned vehicles with their credit cards shall be used for State business travel when available. No mileage payment shall be claimed when State-owned vehicles are used.
"(3) Privately-owned vehicles. Mileage claims for use of privately-owned vehicles may be disallowed if a State vehicle was available and feasible. No reimbursement shall be paid for travel between residence and work-station.
* * *
"(5) Airline travel. Commercial airline travel shall be coach/ tourist class and on this country's airlines. Additional expense for first-class travel will not be reimbursed by the State."
Where the agent in extradition goes by land in his own motor vehicle, the mileage reimbursement is at the rate of 18 per mile, that is, actual road miles, and such payment cannot exceed airplane coach fare. Section 8 of the regulation provides that in computing mileage, the out-of-state mileage will be based on Rand McNally mileage maps. The intrastate mileage will be based upon the Department of Transportation official mileage map. Then such mileage is subject to the overall restriction of the "most direct and usually-traveled routes" [Section 5 of 200 KAR Chapter 2].
Although KRS 440.090 was historically designed to emphasize land travel, it is our opinion that the statute is so broad, when read in its entirety, to cover any kind of transportation authorized under current travel regulations. The state travel regulation [200 KAR Chapter 2] provides for a mileage reimbursement for state officers, employees, and agents, only in connection with privately owned motor vehicles. However, where air travel is properly authorized under the state travel regulation, the reimbursement of the agent, for coach/ tourist class airline travel, is authorized under the phrase "any other necessary expenses he pays in reclaiming and returning the fugitive" , as it appears in KRS 440.090.
The answer to your specific question is that where the extradition agent's travel is properly by plane under the state travel regulation, the agent should be reimbursed for the cost of coach/ tourist class airline travel, including the similar air travel cost for the prisoner. We are referring to the actual cost of the airfare or air flight tickets purchased. Thus the air travel cost is not based upon a mileage factor.
It should be pointed out that the use of the terms "allowed as compensation for his services" and "any other necessary expenses" are incongruous, since compensation is money paid for performing a service, while reimbursement for expenses is entirely another matter. The two expressions are mutually exclusive. The overall purpose of the statute is merely to reimburse the agent for his expenses in reclaiming and returning the fugitive. Judge Thomas, for the court, wrote this in Oates v. Simpson, 295 Ky. 433, 174 S.W.2d 505 (1943) 507:
"The rule for the interpretation of statutes is that literal language contained in some parts of its, in apparent conflict with the general scheme should surrender to the general purpose and intent of the legislature as gathered from all parts of the statute."
Here the literal language, "compensation for his services", must give way to the general scheme of the statute, that is, the general intent to reimburse the agent for his travel expenses incurred in reclaiming and returning the fugitive. He is not supposed to be making any money out of the trip; he is only supposed to recoup his expenses.
Of course, this opinion relates only to the air fare question. It does not concern any other reimbursable expense provided in KRS 440.090.