Request By:
Representative Herbie Deskins, Jr.
Legislative Research Commission
Capitol Building
Frankfort, Kentucky 40601
Opinion
Opinion By: Steven L. Beshear, Attorney General; Joe Johnson, Assistant Attorney General
In your letter to this office dated March 9, 1983, you asked the following questions:
(1) Whether the part of the exclusion from the definition of 'Roads' in 405 KAR 1:010. Definitions - which states 'or local roads' means roads which are maintained without public funds since the use of the disjunctive 'or' separates local roads from the preceding category of roads which are described as roads which are maintained with public funds.
(2) Whether, in the same definition, if the phrase 'or local roads' means roads maintained without public funds, the term 'local roads' means 'public roads' as 'public roads' are defined by the laws of the Commonwealth.
405 KAR 1:010(45) states as follows:
'Roads' means access and haul roads constructed, used, reconstructed, improved, or maintained for use in strip mining and reclamation operations, including use by coal-hauling vehicles leading to transfer, processing, or storage areas. The term includes any such road used and not graded to approximate original contour within forty-five (45) days of construction other than temporary roads used for topsoil removal and coal haulage roads within the pit area. Roads maintained with publicfunds such as all federal, state, county or local roads are excluded from this definition. (Emphasis added).
This office is of the opinion that the use of the disjunctive "or" does not separate local roads from the preceding category of roads and that the language of the regulation means local roads maintained with public funds.
The statutory construction doctrine of expressio unius est exclusio alterius provides that the enumeration of particular things excludes ideas of something else not mentioned. Smith v. Wedding, Ky., 303 S.W.2d 322 (1957); Bloemer v. Turner, 281 Ky. 832, 137 S.W.2d 387 (1940). For example, the doctrine was discussed in the case of Steinfeld v. Jefferson County Fiscal Court, 312 Ky. 614, 229 S.W.2d 319, 320 (1950), where a statute provided as follows:
The fiscal court shall, by order, fix the amount of the salary of all appointees within the limitations herein provided and may within their discretion provide for motor vehicles, stations, sub-stations, places of detention, telephone, wireless, radio or other means of communication within their discretion and make appropriate levy and appropriations therefor. . . . (Emphasis added).
The term "local roads" as used in 405 KAR 1:010(45) is simply one item in a series of enumerated items which are excluded from the definition of "roads."
While the word "or" is a disjunctive term, nevertheless we do not find that its use in this regulation separates local roads from federal, state and county roads. From a grammatical standpoint, the word "or" is inaccurate. The word "and" should be substituted. As stated in Black's Law Dictionary, Revised Fourth Edition:
Or is frequently misused; and courts will construe it to mean 'and' where it was so used.
As the Kentucky Supreme Court stated in Duncan v. Wiseman Baking Co., Ky., 357 S.W.2d 694, 698 (1962):
[S]ince the popular use of the words 'or' and 'and' is loose and frequently inaccurate, the courts may and should change 'and' to 'or,' and vice versa, whenever such conversion is required, inter alia, to effectuate the obvious intention of the legislature and to accomplish the purpose or object of the statute.
In the regulation under consideration herein, there is only one series of adjectives all modifying the word roads. The series consists of the adjectives "federal, state, county and local."
The fact that the word "or" is frequently misused accounts for the fact that the word often is found in cases involving the statutory construction doctrine expressio unius est exclusio alterius. Even though the term is often misused in such instances, this does not mean that the term which appears subsequent to the word "or" is excluded from the series of terms preceding it. The courts have never held that the use of the word "or" excludes the last item in a series from the preceding items in the series. On the contrary, the last item is always included with the other items. The word "roads" itself follows the word "or."
In summary, all roads maintained with public funds -- whether federal, state, county or local -- are excluded from the definition of roads in 405 KAR 1:010(45).
If we can provide any additional assistance, please let us know.