Request By:
Mr. Herbert M. O'Reilly
Breckinridge County Attorney
Courthouse
P.O. Box 539
Hardinsburg, Kentucky 40143
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
In OAG 80-175 we concluded that the fiscal courts in Kentucky would have to appoint a county treasurer, pursuant to the current KRS 68.010, in the April term of 1981. The incumbents' term of four years expires at the April term, 1981. At the time that opinion was written, KRS 68.010 had not been amended; thus the anticipated new term was four years. We concluded in that opinion that KRS 67.710(8) applied to the April term, 1981 appointment. That statute provides that the county judge/executive must nominate persons for appointment to the various county boards and administrative positions. Such appointments require, to be effective, the approval of the fiscal court as a body. This statute applies to the county treasurer, since that is a county office. We also concluded in that opinion that since KRS 68.010, as currently effective and which provides that the fisal court shall appoint a county treasurer, and KRS 67.710(8) are irreconcilable, the later statute (KRS 67.710(8)) governs, as relates to the April 1981, appointment.
In OAG 81-11, we reiterated the position taken in OAG 80-175. We also pointed out that KRS 67.710(7), which requires the county judge/executive to appoint persons for county employment, subject to approval of the fiscal court, applies to county employees, but not to the county treasurer, since the latter is an office. In addition, in OAG 81-11, we observed that KRS 68.010 was amended in 1980 (1980 Acts, Ch. 90, § 1) to provide a term of two years, instead of four, for county treasurers. We concluded that, since the old provision that "the fiscal court shall appoint a county treasurer" was republished in that precise language, the statute as amended, effective April 1, 1982, the fiscal court should make the appointment of the county treasurer at the June, 1982, term, without the intervention of a nomination for appointment by the county judge/executive. In the latter case the amendment was the later expression of legislative will. See Butcher v. Adams, 310 Ky. 205, 220 S.W.2d 398 (1949) 400; and Galloway v. Bradburn, 119 Ky. 49, 82 S.W. 1013 (1904) 1016, on the point that the republishing of an old statute is construed as simply the continuance of the old law.
You request that we revise our view in OAG 80-175 and 81-11. You advance two reasons for your view: (1) You say in effect that there is no irreconcilable conflict between KRS 68.010 and KRS 67.710(7); and (2) That KRS 68.010 is a specific power, as contrasted with the general power given in KRS 67.710(7) and 67.710(8). In addition, you contend that even under KRS 67.710(7) and (8) the county judge/executive can make no nominations for appointment to fill county employee and officer posts until and unless an administrative code is adopted by fiscal court.
We pointed out in OAG 80-175 and 81-11 that KRS 67.710(8) applies to the appointment of a county treasurer, since KRS 67.710(7) applies to county employees, not to a county office. The reference to KRS 67.710(7) in a miscellaneous letter to Ms. Warren of the Washington County Fiscal Court was in error, since KRS 67.710(8) was intended.
THE TWO STATUTES IN QUESTION ARE IRRECONCILABLE.
KRS 68.010 [effective until April 1, 1982], provides in part that "the fiscal court of each county . . . . shall appoint a county treasurer. . . ." (Emphasis added). On the other hand, KRS 67.710(8) provides that the county judge/executive shall, "with the approval of the fiscal court, make appointments to or remove members from such boards, commissions, and designated administrative positions as the fiscal court, charter, law or ordinance may create. The requirement of fiscal court approval must be designated as such in the county administrative code or the county charter. " (Emphasis added).
Under KRS 67.710(8) the county judge/executive is required to nominate or designate a person for appointment as county treasurer, subject to the approval of such appointment by the fiscal court. But KRS 68.010 (current statute) provides that the fiscal court makes the appointment. The two statutes suggest two different methods of appointment of the county treasurer. Those two methods simply cannot be reconciled or harmonized. Either one method or the other could be practically used. The methods cannot be used together. Thus effect cannot be given to both methods. For example, in Campbell County Election Commission v. Weber, 240 Ky. 373, 42 S.W.2d 511 (1931), one statute provided that the counting of votes would be done by the precinct election officers. The other statute placed the responsibility for counting votes on the county board of election commissioners. The court simply stated that "The destructive repugnancy of the acts in question here cannot be doubted . . . Both acts cannot stand, because the execution of one would defeat the operation of the other act." That enunciated principle of conflict applies obviously to KRS 68.010 (current statute) and KRS 67.710(8).
Your argument that the specific nature of KRS 68.010, as contrasted with the general nature of KRS 67.710(8), renders the two statutes reconcilable is not valid, for the reason that the specific vs. general cases on statutory interpretation usually involve two conflicting and irreconcilable acts enacted in the same session, and the courts have held that the specific will prevail over the general. See City of Bowling Green v. Board of Education, Ky., 443 S.W.2d 243 (1969). That does not suggest reconciling. It suggests that one statute will apply instead of the other. However, the court gave its "specific over general" holding by adding: "This is especially true where the special act is later in point of time. " We shall deal elsewhere in this opinion with the principle that where two statutes are irreconcilable, the later in point of time governs, regardless of the specific vs. general concept. See also Washburn v. Paducah Newspapers, Ky., 121 S.W.2d 911 (1938), where the later and specific statute was held to control over the earlier and general statute. The court said that if a later statute accomplishes the same purpose as an earlier statute, but by an obviously different method, the later statute supersedes and repeals the earlier statute by implication. However, in this case since the later statute expressly repealed laws in conflict therewith, the later statute still governed, and by express repeal of conflicting statutes.
Contrary to what you say, the two statutes (KRS 68.010 and 67.710(8)) cannot be read together.
We pointed out in OAG 81-11 the distinction between KRS 68.010 (current) and 67.710(8) and KRS 68.010 (effective April 1, 1982) and 67.710(8). In the first situation, KRS 67.710(8) is the later legislative expression. In the second situation, the amended KRS 68.010 is the later legislative expression. In addition, in the second situation, KRS 68.010 was amended to republish the language that fiscal court would appoint the county treasurer, and by so doing made it clear that the appointment of the treasurer would be by the fiscal court instead of by the county judge/executive, with the approval of fiscal court.
You say that if the county judge/executive could appoint and remove the treasurer, that would jeopardize the checks and balances system of KRS 68.020(1) [county judge/executive and treasurer must co-sign checks]. The answer is that KRS 67.710(8) does not leave the appointment in the hands of the county judge/executive. He can only make the appointment with the approval of the fiscal court.
THE PRINCIPLE OF THE LATER LEGISLATION CONTROLLING, WHERE TWO CONFLICTING STATUTES ARE INVOLVED, AS CONTRASTED WITH THE SPECIFIC OVER THE GENERAL STATUTE CONCEPT, GOVERNS OVER THE SPECIFIC-GENERAL PRINCIPLE.
You contend that KRS 68.010 governs over 67.710(8).
As we pointed out above, there are no cases holding that the specific governs over the general where the later legislation was the general one. The case of City of Bowling Green, above, carefully adds to its holding that the special controls over the general, where the special act is later. Here the general act (KRS 67.710(8) was later. See Shannon v. Burke, 276 Ky. 773, 125 S.W.2d 238 (1939), where the later and specific act was upheld. Also see Morgan County v. Elliott, 260 Ky. 672, 86 S.W.2d 670 (1935), where the later and specific statute was upheld over the earlier and general statute. The cases clearly hold that the "later" principle controls over the "specific vs. general" concept.
Butcher v. Adams, 310 Ky. 205, 220 S.W.2d 398 (1949), is a leading case on the principle that where two statutes on any subject are apparently in conflict and cannot be reconciled, the later statute controls. Such a doctrine carries with it the concept of implied repeal of the earlier and conflicting statute. See these cases, of similar import:
Sumpter v. Burchett, 304 Ky. 858, 202 S.W.2d 735 (1947); Brown v. Hoblitzell, Ky., 307 S.W.2d 739 (1957); and Hallahan v. Sawyer, Ky., 390 S.W.2d 664 (1965). These cases reflect that repeal by implication, though not favored, will be invoked where it is impossible to permit both statutes to stand, as is the case here.
In the appointment of a county treasurer, it is clear that KRS 67.710(8) was intended to apply generally in connection with such county appointments. Only by this construction can the intent of the legislature be carried out. Fiscal Court of Jefferson County v. City of Anchorage, Ky., 393 S.W.2d 608 (1965) 612.
KRS 67.710(8) IS TO BE IMPLEMENTED, REGARDLESS OF WHETHER OR NOT THE COUNTY ADOPTS AN ADMINISTRATIVE CODE.
You mentioned the provision in KRS 67.710(8) that "The requirement of fiscal court approval must be designated as such in the county administrative code or county charter. "
While the statutes make provision for the fiscal court's enacting an administrative code, the county can still operate effectively without such a code. The provision in KRS 67.710(8) relating to a code simply means that if a code is enacted, it must contain appointment provisions which are not in conflict with KRS 67.710(8). They did not have to put that in, since county regulations must always be in harmony with existing statutes. KRS 67.710(8) in no way depends upon the enactment of an administrative code.
Where you appoint a person as treasurer, subject to the approval of fiscal court, and the vote of fiscal court on your suggested appointment results in a tie, then the provisions of KRS 67.040 apply. See subsection (3) for the details. Moreover, suppose that the fiscal court rejects two or more of your proposed appointments, then it is our opinion that the circuit court could grant you mandamus compelling the fiscal court to accept one of your proposed appointments, not a particular person as treasurer, but some one as treasurer. For example, in Morgan v. Champion, 150 Ky. 396, 150 S.W. 517 (1912), the Court of Appeals held that, under a statute providing that the county judge appoint a road engineer, with consent of the fiscal court, the fiscal court could be compelled by mandamus to appoint a county road engineer as required by law, if they arbitrarily refuse to do so. It would appear that after you nominate for appointment at least two persons, a failure to accept the appointment, without approval, would on its face be construed as being arbitrary. So this county treasurer "road" is a road that has an ending.
For reasons given above, we decline to modify the subject opinions of this office.