Request By:
Mr. Paul R. Tice
Planning Director
City Hall
111 West Dixie Avenue
Elizabethtown, Kentucky 42701
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in response to your letter of November 10, in which you relate that the city of Elizabethtown is currently involved in attempting to annex three tracts of unincorporated property pursuant to the terms of H.B. 20 which became effective July 15, 1980. You further relate that a number of questions have developed concerning the meaning of certain terms used in KRS 81A.420(2) which are as follows:
"1. What is the definition of the term 'resident voter' as compared to registered voter?
"2. Can said petition contain the signatures of both resident voters and property owners or must it be one or the other?
"3. Who is charged with ascertaining the validity of the signatures on said petition?"
The term "resident voter" means "registered voter" . The court of Appeals in the case of
Howell v. Wilson, Ky., 371 S.W.2d 627 (1963) held that registration is an essential element of the term voter, "legal voter" , or "qualified voter" . As a consquence where the statute refers to the phrase "resident voter" it means those voters who are registered to vote within the area proposed to be annexed.
Where the statute provides that the protesting petition is to be signed by the resident voters or owners of real property within the limits of the territory to be annexed, it means, in our opinion, that the petition can include both resident voters and owners of real property located within the territory who may not be legal residents of the territory. The word "or" signifies the conjunctive and disjunctive interchangeable if that is consistent with the legislative intent, which we believe is the case in this instance. See
Union Starch & Refining Co. v. N.L.R.B., 186 F.2d 1008. See also
Shinn v. Heath, Ark., 535 S.W.2d 57.
Your third question as to the officer charged with ascertaining the validity of the signatures on the petition is more difficult to determine as the statute [KRS 81A.420] is not clear on this and simply requires the petition to be given to the mayor who in turn delivers a certified copy of the annexing ordinance to the county clerk who shall then place the question on the ballot in conformance with subsection (2) of KRS 81A.420(2)(f).
It would thus appear that basically it is the mayor's duty and responsibility to check the petition to see if it contains the required number of signatures and that said signatures are voters qualified to sign the petition. However, since he does not have at his disposal the registration records, he would necessarily have to have the assistance of the County Board of Elections and particularly the county clerk in determining the validity of the petition. Also another problem developing from this statute is ascertaining whether a petitioner who is not registered, owns property within the area, which information would necessarily have to be obtained from the local tax records. This statute should be clarified by the legislature at its earliest opportunity.
Your last question has been answered by our response to your initial question.