Request By:
Mr. Harold K. Botner
Madison County Judge Executive
Courthouse
Richmond, Kentucky 40475
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You have written us concerning H.B. 59 (1982 regular session), relating to reapportionment of magisterial or commissioner districts.
KRS 67.045, pertaining to magisterial districts for members of fiscal court, was declared by the Kentucky Supreme Court to be unconstitutional on the ground that the fixing of the boundaries for such electoral purposes by the district court was legislative in nature. See § 27, Kentucky Constitution, and Fawbush v. Bond, Ky., 613 S.W.2d 414 (1981) 415.
KRS 67.063, dealing with the reapportionment of commissioners' districts, was repealed by H.B. 59, Section 2. Instead of staying with the old KRS 67.063, the legislature decided to deal with reapportionment for both magisterial and commissioners' districts in one statute. Thus Section 1 of H.B. 59 amends KRS 67.045 to accomplish that duality. The act becomes effective on July 15, 1982, as ordinary legislation.
You gave us the following facts:
On June 15, 1982 the Fiscal Court of Madison County, Kentucky, voted to appoint three citizens to serve as commissioners to reapportion the county. No notice of the planned reapportionment was published as required in House Bill 59. The vote on these appointments was three to two with the county/judge and one magistrate voicing concern that this action was not legal. The county attorney was not present to advise the court.
Your question reads:
Our question is whether or not this action of June 15, 1982, was indeed legal and might this be successfully challenged in a court of law. Your immediate attention will be appreciated.
The present KRS 67.045, prior to the amendment, calls for your publishing a notice of the planned reapportionment proceedings in accordance with KRS Chapter 424. That statute was declared unconstitutional in its present form. The fiscal court, however, is apparently relying upon the procedure outlined in KRS 67.045, as amended by H.B. 59.
KRS 67.045(4), as amended by H.B. 59, reads in part as follows:
"To initiate a reapportionment proceeding, the fiscal court shall publish notice of the planned reapportionment in accordance with KRS Chapter 424." (Emphasis added).
It is our opinion that the publishing by fiscal court of the notice of planned reapportionment is mandatory. KRS 446.010(29) provides that "As used in the statute laws of this state, unless the context requires otherwise, 'shall' is mandatory. " (Emphasis added). Department of Revenue v. Oldham County, Ky., 415 S.W.2d 386 (1967).
We conclude that even if H.B. 59 was in effect (which it was not), the reapportionment action taken by fiscal court was a nullity, i.e., it was legally ineffectual.
Finally, no fiscal court can take effective action under KRS 67.045, as amended in 1982, until July 15, 1982. The Court of Appeals, in Board of Regents for Western Kentucky Normal School v. Engle, 224 Ky. 184, 5 S.W.2d 1062 (1928) 1063, pointed out that the courts would not consider a statute in any way where the statute was not yet in effect.