Request By:
Mr. Fred B. Creasey
Executive Director
Kentucky Association of Counties
205 Capital Avenue
Frankfort, Kentucky 40601
Opinion
Opinion By: David L. Armstrong, Attorney General; Walter C. Herdman, Asst. Deputy Attorney General
This is in response to your letter of April 12 in which you relate the following facts and question:
"Senate Bill 273 amends KRS 67.060 to require counties with a commission form of government and a city of the third class (as well as a county with a city of the second class) to have their commissioners run county-wide in the primary election. SB 273 passed both chambers with a committee amendment and a floor amendment and was signed by the Governor.
At that time, our research showed that this bill pertained only to four counties (Boone, Greenup, Graves and Mason); however, since that time, it has been called to my attention that Knox County contains a portion of Corbin, a city of the third class. Knox County voted last year to change their form of county government from magisterial to commission.
My question is, 'Does SB 273 require the Knox County commissioners to run county-wide in the 1985 primary?'"
Our response to your question would be in the negative. Senate Bill 273 which becomes effective July 13, 1984, and will of course be effective in 1985, amends KRS 67.060(3) to read as follows:
"Persons seeking the nomination of a political party as candidate for the office of county commissioner shall, where a primary election is required for such political party, be voted upon exclusively by the eligible voters of the district in which the person resides and seeks to represent. Persons seeking the nomination of a minor political party, persons who file as independent candidates or persons seeking the nomination in counties containing cities of the second or third but not a city of the first class shall not be subject to the provisions of this paragraph. They shall be nominated by the voters of the entire county. " (Emphasis added.)
The above statute requires all counties containing a city of the second or third class to nominate county commissioners by a county-wide vote. The key word is, of course, "containing" and thus the answer to your question depends on its interpretation as it may relate to a city of the third class such as Corbin that embraces only parts of several counties; more specifically, the counties of Whitley and Knox.
Under the construction of the statutes, particularly KRS 446.080(4), it is provided that all words and phrases shall be construed according to the common and approved usage of language. See Green v. Moore, 281 Ky. 305, 135 S.W.2d 682 (1939), Inter-County Rural Electric Coop. v. Reeves, 294 Ky. 458, 171 S.W.2d 978 (1943) and Commonwealth v. Trent, 117 Ky. 34, 77 S.W. 390 (1903).
The word "contain" in its usual and ordinary sense means to contain completely. State ex rel. Davis v. Clark, 188 N.W. 472, 108 Neb. 638. Again the word "contain" was held to mean to hold within fixed limits, to enclose, to hold as contained within four walls. Berlin v. Kirkpatrick Ohio Com. Pl., 172 N.E.2d 339. In Webster the word "contain" in its strict usage signifies an enclosing within or including as a component part or fraction. We find no Kentucky cases defining this word.
It would, therefore, appear that unless a county embraced or contained within its boundaries a city of the third class in its entirety, such county would not come within the requirement of KRS 67.060(3) that its county commissioners be nominated in the party primary by the voters of the entire county. The City of Corbin lies in only portions of the counties of Whitley and Knox and thus is embraced in neither. Commissioners of these two counties would continue to be nominated in party primaries by the eligible voters of the district in which they seek nomination and not by a county-wide vote.