Request By:
Mr. William R. McDaniel
Big Sink Road
Route # 1
Versailles, Kentucky 40383
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter raising questions concerning KRS 249.183, 249.187 and 249.190 and the eradication of Canada and nodding thistles.
You first refer to KRS 249.183 and the use of the word "may" in subsections (2)(c) and (d) thereof. You ask whether the Commissioner of Agriculture may perform these functions at his discretion or whether the word "shall" in KRS 249.183(2)(a) controls. You also refer to the use of the word "may" in KRS 249.187 and 249.190.
At the outset we direct your attentrion to KRS 446.010(20) and (29) where the words "may" and "shall" are defined. "May" is permissive while "shall" is mandatory.
Next we need to briefly examine the provisions of KRS 249.183 dealing with the eradication of Canada and nodding thistles and the authority and duties of the Commissioner of Agriculture relative thereto. KRS 249.183(1) provides that the fiscal court of any county may, after notice (pursuant to KRS Chapter 424) and hearing, declare that a threat exists to the natural resource development and the agricultural economy because of the growth and infestation of Canada or nodding thistles. If after the hearing the fiscal court finds that thistles are a threat in the county, it shall by resolution so declare and make a request to the Department of Agriculture for assistance to eradicate thistles. A copy of the resolution shall be promptly certified and sent to the Commissioner of Agriculture.
KRS 249.183(2)(a) states that upon receipt of the fiscal court's resolution, the Commissioner of Agriculture shall promptly undertake the eradication of thistles in the county for which the resolution was adopted. Since "shall" is mandatory, the Commissioner of Agriculture must undertake a thistle eradication program.
KRS 249.183(2)(c) provides that the Commissioner of Agriculture, in connection with a thistle eradication program, may enter upon any lands for inspection purposes and to insure compliance with the program. He may also enter into cooperative agreements with state and federal agencies and departments for the control and eradication of thistles. KRS 249.183(2)(d) states that the Commissioner of Agriculture may give the notice authorized by KRS 249.190 to any landowner which requires the landowner to cut and destroy the thistles.
While the Commissioner of Agriculture is required to undertake a thistle eradication program under KRS 249.183(2)(a) if the fiscal court has complied with the requirements of KRS 249.183(1), he has some discretion in the carrying out of the program. He may utilize some or all of the provisions of KRS 249.183(2)(c) and (d), depending upon how he believes the purposes and requirements of the thistle eradication program can best be achieved. Thus, he may, but is not required to, enter upon lands for purposes of inspecting same, enter into cooperative agreements with state and federal agencies and departments and give the notice authorized by KRS 249.190. The use of the word "may" in KRS 249.187 allows but does not require the Commissioner of Agriculture to bring suit to enjoin the public nuisance of the growth of thistles. Under KRS 249.190 the Commissioner of Agriculture is allowed but not required to enter upon lands and cut down and destroy thistles.
You next ask about that part of KRS 249.190 which reads as follows:
". . . On the neglect or refusal of the person who holds the land to cut and destroy them (thistles) at the end of five days, any person aggrieved, or believing himself about to be injured, or the commissioner of agriculture may enter upon or hire other persons to enter upon the land and cut down and destroy the Canada or nodding thistles. The persons so employed may recover from the person who holds the land, compensation at the rate of fifteen dollars ($15.00) per day."
Your questions are whether any aggrieved person has the right to hire persons to cut the thistles or is this only the right of the Commissioner of Agriculture and whether each person hired may receive $15.00 per day or whether they collectively will receive $15.00 per day.
Another part of KRS 249.190 states:
"If any person who holds land on which Canada or nodding thistles are growing and likely to ripen seed, neglects or refuses to cut and destroy them, any person who considers himself aggrieved or about to be injured by the neglect or refusal, or the commissioner of agriculture pursuant to subsection (2) of KRS 249.183, shall give five (5) days' notice in writing to the person who holds the land, to cut and destroy the Canada or nodding thistles. . . ."
After considering KRS 249.190 in its entirety, it is our opinion that the statute authorizes either persons aggrieved or the Commissioner of Agriculture to enter upon the land or hire other persons to enter upon the land and cut down and destroy the Canada or nodding thistles. Of course before such entry takes place, the person who holds the land on which Canada or nodding thistles are growing and likely to ripen seed must be given five days' notice in writing to cut and destroy such Canada or nodding thistles.
While either aggrieved parties or the Commissioner of Agriculture may hire persons to cut down and destroy the Canada or nodding thistles, the persons hired may recover only $15.00 per day from the person who owns the land, regardless of how many persons have been hired. The statute does not state that each person hired may recover $15.00 per day or that recovery is set at $15.00 per person per day but only that persons employed may recover $15.00 per day.
Your last question asks whether the statute provides funding for the thistle eradication program.
The statute does not specify how much should be spent by the Department of Agriculture on a thistle eradication program in any particular county or in all the counties of the state. The Department of Agriculture, like any other department of state government, must operate within budgetary limits. However, since the Department through its Commissioner is required to undertake a program dealing with the eradication of Canada or nodding thistles or both if a fiscal court complies with the requirements of KRS 249.183(1), the Department, within reason, would have to undertake a good faith effort to eradicate thistles in the county when the fiscal court satisfied the requirements of KRS 249.183(1) and notified the Commissioner of Agriculture.