Request By:
Mr. John Doug Hays
State Senator
Capitol Building
Frankfort, Kentucky 40601
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
On January 1, 1982, you have written us, the Pike County Clerk was forced to close a branch office located in Elkhorn City, Kentucky. This branch office had been in operation in Elkhorn City for a number of years and provided a great service to citizens of Elkhorn and surrounding areas by enabling them to secure licenses without traveling to the county seat.
Some time prior to January 1, 1982, the Pike County Clerk was notified by the Department of Transportation that the department would not install a computer terminal in the branch office at Elkhorn City and cited Attorney General's Opinion 73-435, interpreting KRS 186.014, which allowed only one branch office per legislative district. The problem in this regard is that the county clerk had in place another branch office at Phelps, which is located at the same legislative district as Elkhorn City. The end result of the Department's action was to force the Pike County Clerk to close the Elkhorn City Branch Office, creating severe and undue hardships among the several thousand residents in that area.
You request clarification as to the rationale of Attorney General Opinion 73-435, issued May 23, 1973, insofar as that opinion restricts establishment of branch offices by circuit and county clerks to one such office per legislative district. In this regard you call our attention to KRS 186.014 which permits the clerk to maintain branch offices. You will note that this statute uses a plural of offices and there is no rationale in the aforementioned opinion which explains restricting to one office.
KRS 186.014 reads:
"In any county, the county clerk and the circuit clerk may maintain branch offices in each legislative district for the purpose of issuing motor vehicle registration plates and drivers' licenses. These offices may be located in volunteer fire department stations or in other buildings used for a public purpose."
In OAG 73-435, we were of the opinion that KRS 186.014 permitted any clerk to maintain one branch office per legislative district for the purpose of issuing motor vehicle registration plates. Of course we are referring to each state representative district in a county.
You have written that the Department of Transportation would not install a computer terminal in the branch office at Elkhorn City, since it took the view that our office, in OAG 73-435, had interpreted KRS 186.014 as authority for only one (1) branch office per legislative district.
No rationale was expressed in OAG 73-435, but we shall examine it now.
KRS 186.014 provides in essence that "In any county the county clerk and circuit clerk may maintain branch offices in each legislative district. " (Emphasis added). In considering the history of the legislation (1970 Acts, H.B. 205, § 2), it was first introduced in the House, and it covered only Jefferson County, which presently has twenty-two (22) state representative districts. Thus the affording of branch offices to the clerk (i.e., two or more) in each legislative district would be wholly compatible with reasonable necessity for the number of offices, based primarily upon the population concentration as affecting motor vehicle licensing and the concomitant convenient service to the public affected.
Note that KRS 186.014 does not say that the county clerk and circuit clerk may each maintain a branch office in each legislative district.
The language of the statute clearly suggests that the intent was that the county clerk or circuit clerk may maintain branch offices in each legislative district.
Judge Dietzman, in Moore v. Polsgrove, 219 Ky. 410, 293 S.W. 965 (1927), for the court wrote that the word "or" may be substituted for the word "and", when necessary to make a statute express the true legislative intent, as gathered from the context and the circumstances attending its enactment. Obviously, one branch office per clerk per legislative district affords no flexibility in effecting the issuance of motor vehicle license plates. Pike County now has a population of 81,123 (and is still growing) and has the largest square mile territory of any county. See also
Commonwealth v. Bartholomew, 265 Ky. 703, 97 S.W.2d 591 (1936), holding that when necessary to effectuate the obvious intention of the legislature, conjunctive words may be construed as disjunctive and vice versa.
Thus the intent in KRS 186.014 was to provide that the county clerk or circuit clerk may maintain branch offices (two or more, as needed) in each legislative district. In addition, it could be said that to not justify the interchanging of the word "or" for "and" (county clerk and circuit clerk in KRS 186.014) would thwart the intention of the
General Assembly. Boron Oil Company v. Cathedral Foundation, Inc., Ky., 434 S.W.2d 640 (1968).
The Old Court of Appeals, in McDaniel v. McDaniel, 292 Ky. 56, 165 S.W.2d 966 (1942), held that "where two terms are used conjunctively in the same sentence of a statute, separate effect should be given to the terms, if it may be done in reasonable construction. " Here, applying that principle, KRS 186.014 would mean that the county clerk may maintain branch offices in each legislative district; and the circuit clerk may maintain branch offices in each legislative district. And this is done in reasonable construction. The county clerk issues motor vehicle plates; and the circuit clerk issues motor vehicle operator licenses. These are two separate and distinct functions. Thus KRS 186.014 was not designed to mean that the county clerk and circuit clerk, considered conjunctively, can have the total sum of two branches in each legislative district.
Thus, it is our opinion, upon a reexamination of this matter, that population density and convenience to motor vehicle owners in licensing motor vehicles were at the forefront of legislative intent in enacting KRS 186.014. Thus the county clerk, depending upon the need for same under the above contextual criteria, may maintain branch offices (two or more) in each legislative district. OAG 73-435 is modified accordingly.
You say you have an additional question:
KRS 67.035 authorizes, in all counties with a land area of more than 750 square miles, the sheriff and county clerk, when authorized by resolution of the fiscal court, to maintain a branch office in any incorporated or unincorporated city of the county other than the county seat. It is my understanding that Pike County is the only county within the Commonwealth with more than 750 square miles.
The question is specifically:
In light of KRS 186.014 and Attorney General Opinion's 73-435, pertaining thereto, would KRS 67.035 permit the Pike County Clerk to establish more than one branch office in a legislative district so long as the branch office was maintained in an incorporated or unincorporated city other than the county seat?
KRS 186.014 narrowly relates to only the issuance of motor vehicle license plates, as concerns the county clerk. KRS 67.035 is designed to accommodate any other function of the county clerk in the county. Assuming that Pike County has a land area of more than 750 square miles, the fiscal court of Pike County may authorize the county clerk to maintain a branch office in any incorporated (other than in Pikeville) or unincorporated city of Pike County. Here there is no restriction as to legislative district. Obviously, the fiscal court would permit such branch offices only on a reasonable showing of the necessity for such branches.