Request By:
Mr. Robert M. Kirtley
Daviess County Attorney
Courthouse
Owensboro, Kentucky 42301
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 19 in which you related that you have been advised by the Daviess County Clerk that KRS 89.440 dealing with primary elections for city offices under the city manager form of government was repealed at the last session of the legislature and its place was taken by Section 17 of S.B. 26. More specifically your question is as follows:
"The Daviess County Clerk has requested that I seek an opinion of your office concerning the interpretation of Section 17, as it applies to primary elections of city commissioners. The former law, KRS 89.440(8), specifically provided that the eight candidates receiving the highest number of votes in the primary were thereby nominated. The provisions of Section 17 of S.B. 26 do not contain this language."
The 1980 legislative session reenacted KRS 89.440 in S.B. 324 (Chapter 100); however, subsequently thereto S.B. 26 was enacted which at the same time repealed KRS 89.440 and inserted its basic terms in Section 17, which is now coded as KRS 89A.170 and not only applies to second class cities operating under the city manager government but may be adopted by cities operating under the councilmanic form of government. See KRS 83A.050.
KRS 83A.170 fails, however, to detail adequate procedure for the nomination, not only of unopposed candidates [thereby eliminating the primary], but also the nomination of candidates for the general election under subsections (5) and (9) of the statute, which read as follows:
"(5) Subsection (4) of this section shall not apply if it appears, immediately upon expiration of the time for filing petitions, that there are not more than two (2) applicants for nomination for each city office to be filled. In that case, the applicants for nomination shall thereby be nominated and no primary election shall be held for that office."
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"(9) The two (2) applicants receiving the highest number of votes for nomination for each city office shall be nominated. " (Emphasis added).
You will note from reading subsection (5) that it failed to incorporate the former provision that if only twice the number of members of the legislature (commission) have filed an appropriate petition there will be no primary. As it is, it simply provides that where there are not more than two applicants for nomination for each city office to be filled, there would be no primary. However, as you know, candidates for membership on the city legislative body, whether it involves the councilmanic form or commissioner form, do not run for a particular office. As a consequence the only reasonable interpretation would be, that if, for example,, there are four commissioners to be elected and there are only 8 applicants [as under the old statute], two for each of the commissioners' seats, there will be no primary. In like manner, if there are not more than 12 applicants for six council seats, there will be no primary. Where there are more than six council seats, the minimum number of applicants necessary to eliminate a primary would vary.
A similar problem is found in the language under subsection (9) as there is no way to determine under the terms of this subsection the number to be nominated because the candidates do not run for a particular seat on the council or commission. Here again we feel it is necessary in order to create a workable nominating procedure that language from the old statute be substituted declaring that the 8 applicants receiving the highest number of votes for the four commission seats are thereby nominated. Similarily, those 12 candidates, receiving the highest number of votes for a council composed of 6 members, would be nominated; the number of nominees varying depending upon the number of councilmen to be elected; in other words, twice the number of council seats to be filled.
There are a number of rules of statutory construction which we believe would authorize the change in the language of KRS 83A.170 to arrive at a practical solution, at least until the legislature can correct the obvious omissions which failed to consider the multiplicity of the seats to be filled in the legislative body. The courts have declared that the letter of a statute will not be followed where it will lead to an absurd or impractical construction.
Martin v. Louisville Motors, 276 Ky. 697, 125 S.W.2d 241 (1939). Also it has been held that the courts may delete or interpolate words to prevent an absurd conclusion or to resolve an ambiguity in a statute.
Reeves v. Fidelity & Columbia Trust Co., 293 Ky. 544, 169 S.W.2d 621 (1943). Also as held in the case of
Neutzel v. Ryans, 184 Ky. 292, 211 S.W. 852 (1919), the court has declared that in order to effectuate the legislative intent, words may be supplied, omitted, substituted or modified.
Under the circumstances it would appear that the legislature inadvertently omitted language in the above referred to subsections of KRS 83A.170 that is essential in order to make the nominating procedure workable. Therefore, the above interpretation would seem to be proper under the rules of statutory construction.