Request By:
Mr. Frederick G. Neikirk
Pulaski County Attorney
104 W. Columbia Street
Somerset, Kentucky 42501
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Based upon your research of the question, you have found no basis in the law authorizing the creating of a county auxiliary police force. KRS 70.545, the statute authorizing such an organization, was repealed in 1978.
Your question is: Can the fiscal court, under the Home Rule statute, establish a county auxiliary police force?
Central in your situation is that law enforcement officials are very thin in number and your community is growing, entailing increased problems relating to law enforcement.
As we pointed out in OAG 80-13, the old statute, KRS 70.545, prior to its repeal, authorized the fiscal court to establish an auxiliary police force, to perform duties within the county upon the terms and conditions laid out in the fiscal court order. Such order was required to prescribe the number of officers of such force, the manner of appointment, rules and regulations governing the powers and duties of such members, including the power of arrest. There presently is no statute comparable to the old KRS 70.545. Of course, KRS 70.540 relates exclusively to the establishing of a regular county police force.
We have previously concluded in OAG 80-13 and 80-36 that the language of KRS 67.083(3)(u) is sufficient to authorize fiscal courts to create auxiliary police forces. That subsection provides that the fiscal court may enact ordinances treating the subject of police and fire protection. Thus that language suggests a "thoughtful, purposeful and deliberate delegation of a known power." See Fiscal Court v. City of Louisville, Ky., 559 S.W.2d 478 (1977) 482. The repeal of KRS 70.545 was with the intent that such a specific power would be replaced by the general authority given in the Home Rule statute, KRS 67.083(3)(u). Thus there is this compelling view that the legislature, knowing full well what the law enforcement problem is in Kentucky, would not have repealed KRS 70.545 unless it thought it was putting something in its place.
Since the repeal of KRS 70.545 was effected in the Home Rule Bill of 1978, it could be argued that the repeal and simultaneous re-enactment of substantially the same statutory provision is to be construed not as an implied repeal of the original, but a continuation thereof. Grieb v. National Bank of Kentucky's Receiver, 252 Ky. 753, 68 S.W.2d 21 (1934) 24; and Sutherland Statutory Construction, Vol. 1A, § 23.28, page 272.
Even if it were conceded that KRS 67.083(3)(u) is not a substantial re-enactment of KRS 70.545, the power granted by that section is not limited to that power expressly conferred thereby, but it includes such powers as are necessarily or fairly implied in, or incident to, the accomplishment of the things which are expressly authorized to be done. Long v. Mayo, 271 Ky. 192, 111 S.W.2d 633 (1937) 637. Thus a statute need not expressly state what is necessarily implied. National Surety Co. v. Commonwealth, 253 Ky. 607, 69 S.W.2d 1007 (1934) 1009. The main thing is that KRS 67.083(3)(u) spells out the express area of power: the subject of "police protection." Thus the implied power necessary to effectuate the express power comes into play. See also Sutherland Statutory Construction, Vol. 2A, § 55.04, page 384.
It is our opinion that any fiscal court may enact an ordinance providing for the creation of a county auxiliary police force. The fiscal court has the necessarily implied power, if KRS 67.083(3)(u) is to mean anything, in enacting such ordinance, to treat such matters as the duties to be performed in the county, upon such terms and conditions as the fiscal court deems proper. Further, the ordinance shall prescribe the number of officers and men of such force, the manner of their appointment, and the rules and regulations that shall govern the powers and duties of the members of such force, including the power of arrest. While a public office must be created by the constitution or statute, the authority for the creation of the offices of the county auxiliary police force are necessarily implied from the statute, KRS 67.083(3)(u). See Love v. Duncan, Ky., 256 S.W.2d 498 (1953) 501; and Board of Education v. Trustees of Buena Vista School, 256 Ky. 432, 76 S.W.2d 267 (1934) 268.
Since we have answered in a positive frame on auxiliary police, it is not necessary to consider other suggestions you mention in augmenting local law enforcement.