Request By:
Honorable Joseph W. Justice
Pike County Attorney
Courthouse
Pikeville, Kentucky 41501
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your question is whether a county police force can be created under KRS 70.540 on and after January 2, 1978, since the "Judge of the County Court" will not be in existence in Kentucky on and after January 2, 1978. See S.B. 183 (Ch. 84, Section 2, 1974 Acts).
KRS 70.540 reads as follows:
"The county courts of the respective counties shall have and are hereby given the power, jurisdiction and authority to establish, appoint and maintain a county police force within their respective counties, all of the members and officers of which shall have and are hereby given jurisdiction coextensive with the whole county for which they are appointed. Such police force may consist of a chief and such member, rank and grade subordinate to the chief, and such clerical and skilled employes as the county judge shall deem proper. All of the members and employes of the county police force shall be appointed by the county judge and shall serve for a term of one (1) year from the date of their respective appointments, unless sooner removed by the county judge for neglect of duty or improper conduct. All members of the force shall be citizens of the United States not less than twenty-one (21) years of age, and shall have been bona fide residents of the county in which they are appointed for not less than one (1) year before their appointment. None but discreet and sober persons shall be appointed to any position on said county police force. Each of the members of the said county police force shall take an oath, before the judge of the county court of their county, to faithfully, impartially and diligently perform the duties of their respective offices. Provided, however, That the chief officer of the county police force of any county may be designated, in the discretion of the county court of said county, as captain or any other appropriate title, and such county police force in any county may consist of one or more commanding officers, as the county court of such county may deem proper or adequate."
From the literal wording of the above statute it is clear that only the "judge of the county court" has the authority to establish, appoint and maintain a county police force. (Emphasis added.) The county court has authority to promulgate rules and regulations as to the personnel of a county police force. KRS 70.550. Of course, the fiscal court fixes the salaries of such personnel. KRS 70.560.
Senate Bill 18, of the Extraordinary Session of 1976, created a new statutory office: "county judge/executive." He is designated as the chief executive officer of the county. Of course, he has no judicial powers. In Section 6 of S.B. 18 it is provided:
" Wherever the words 'county judge' appear in previously existing statutes, the language shall be changed by the Revisor of Statutes to read 'county judge/executive.'" (Emphasis added.)
Since the original duties of a county judge in creating and appointing a county police force did not and do not involve a judicial function, it is our opinion that, in view of Section 6 of S.B. 18, on and after January 2, 1978, the county judge/executive, in lieu of the county judge as judge of the county court, can properly implement KRS 70.540 et seq. Thus the legislature, in the special session [S.B. 18], expressly indicated its intention to substitute in existing statutes the county judge/executive in lieu of the "county judge." This would not be constitutionally permissible where the statute deals with a judicial function of a county judge. But that is not the case in KRS 70.540 et seq. The presumption is that the legislature is cognizant of the Constitution, previously enacted statutes, and the common law. Cook v. Ward, Ky., 381 S.W.2d 168 (1964), 170. Thus S.B. 18 indicates an expressly revealed intent to amend KRS 70.540 et seq. so as to afford proper implementation on and after January 2, 1978.