Request By:
Mr. J. Gary Bale
Attorney
Office of Legal Services
Kentucky Department of Education
Capital Plaza Tower
Frankfort, Kentucky 40601
Opinion
Opinion By: David L. Armstrong, Attorney General; Kevin M. Noland, General Counsel
On behalf of the Superintendent of Public Instruction, you have requested an opinion regarding the proper interpretation of KRS 158.030 which provides that " . . . any child who is six (6) years of age or who may become six (6) years of age by October 1 shall attend public schools . . ." and that " . . . any child who is five (5) years of age or who may become five (5) years of age by October 1 may enter a public school kindergarten." Specifically your question is whether a child with an October 2 birth date, for purposes of KRS 158.030, actually becomes a year older on October 1 or October 2.
This situation, where a child's date of birth is one day after the statutory cut-off for attending school, was previously addressed in OAG 62-411. There, the statutory deadline in question was December 31. The child's birthday was January 1. In OAG 62-411, this office followed the reasoning of a similar Kentucky case
Erwin v. Benton, Ky., 87 S.W. 291 (1905), which held that a person is twenty-one years of age on the day preceding his twenty-first birthday, because on that day his life has encompassed twenty-one complete years. Using the Erwin rationale this office was of the opinion that the child born on January 1 became a year older on December 31, having completed a 365 day cycle. Thus, the child was deemed to be six years old on December 31, and was permitted to attend school,
At the time OAG 62-411 was written, KRS 446.030, the statutory provision on computation of time, provided:
"If a statute requires an act to be done a certain time before an event, the day on which the event occurs may be included in computing the time, but if the act is required to be done a certain time before the day on which an event occurs, the day on which the event occurs must be excluded; in either case the day on which the act is done may be counted as one day and as part of the time. The same principle shall apply when a certain time is required to elapse from the doing of an act, or the day of doing an act, before an event may take place."
This statute was judicially interpreted as requiring the day on which an event occurred to be included in the computation when time is to be computed from an event.
Dehart v. City of Olive Hill, 305 Ky. 864, 205 S.W.2d 351 (1947). Thus, the statute as it then existed was consistent with the opinion expressed in OAG 62-411. When the event (which is the day of birth) is included in the computation, a full 365 day cycle is completed the day preceding the birthday, making a person an additional year older on the earlier day.
However, KRS 446.030 was amended in 1970 and OAG 62-411 is inconsistent with the current version of that statute. KRS 446.030(1)(a) now provides, in pertinent part:
"In computing any period of time prescribed or allowed by order of court, or by any applicable statute or regulation, the day of the act, event or default after which the designated period of time begins to run is not to be included . . ."
The current KRS 446.030 mandates that the day of the event not be included in computing any period of time prescribed by statute. Accordingly, the day of birth should no longer be counted when computing age for purposes of 158.030, and thus a child whose birthday is October 2 does not actually become a year older until October 2. As a result, a child whose sixth birthday is October 2 is not required to attend school under the 158.030 deadline in the year he becomes six. He is required to attend school the following year.
OAG 62-411 is hereby withdrawn to the extent it is inconsistent with this opinion.