Request By:
Mr. Bremer Ehrler
Jefferson County Clerk
Court House
Louisville, Kentucky
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of September 19 in which you request an opinion concerning the following:
"1) In the fourth class city of Saint Matthews and the fifth class city of Windy Hills, mayors were elected in November, 1975 for four year terms even though, according to the Constitution, these offices should not have been filled at that time. This off schedule election evidently began many years ago when the cities changed from lower classes and did not hold elections when they should have. Should nominating petitions be accepted for these offices even though only two years of this term have expired?
"2) Even if no nominating petitions for this office were filed, should the office be shown on the ballot as one to be voted on under the write-in provisions?"
Our response to your initial question would be in the affirmative. The time for electing municipal officers is basically controlled by § 167 of the Constitution which provides, in effect, that all city officers shall be elected beginning in 1893 and every two (2) years or four (4) years thereafter depending upon the length of their term as determined by § 160 of the Constitution. The term for mayor is of course four (4) years. In counting the four-year terms beginning in 1893, we find that the next regular election for the office of mayor in all classes of cities is this November, 1977. This date is confirmed specifically in KRS 87.170 relating to the election of city officers in cities of the fifth class. The charter for fourth class cities is silent in this regard but, of course, § 167 would control. Referring to 27 Am.Jur. 2d, Elections, § 183, we find the following principle of law stated regarding the holding of valid elections:
"It is fundamental that a valid election cannot be called and held except by authority of the law. These is no inherent right in the people, whether of the state or of some particular subdivision thereof, to hold an election for any purpose. Accordingly, an election held without affirmative constitutional or statutory authority, or contrary to a material provision of the law, is a nullity, notwithstanding the fact that such election was fairly and honestly conducted."
Next referring to § 185, we quote the following:
"An election should be called or ordered in the manner, by the authority, and for the time designated by the statutory or constitutional provisions which authorize holding the election. . . ."
We also refer you to the case of Beauchamp v. Rahm, 283 Ky. 50, 140 S.W.2d 683 (1940), in which the court declared that the term for the office of mayor elected in 1892 expired in November, 1893 pursuant to § 167 of the Constitution requiring all city officers to be elected for regular terms beginning in 1893.
Under the circumstances, we believe that the election held in 1975 for the office of mayor in the city of Saint Matthews, a fourth class city, and the city of Windy Hills, a fifth class city, was a nullity in so far as filling these offices for regular four-year terms. At most, the 1975 election should have been one to fill vacancies in these offices for the unexpired term ending the first Monday in January, 1978 pursuant to § 152 of the Constitution. Thus, in view of the requirements of § 167 of the Constitution, a regular election should be held this coming November 8 for the office of mayor for a regular four-year term beginning the first Monday in January of 1978, and nominating petitions should be accepted for these offices provided they were filed before the 55-day deadline, which was September 14.
Our response to your second question would also be in the affirmative, based on the premise that where the Constitution and related statutes require an office to be filled at a certain election [in this case the November 8 General Election of 1977] for regular terms, such election must be held irrespective of whether or not anyone files for the office to be filled in order to permit qualified voters to "write-in" the names of any candidate of their choice for such office. See OAG 73-685, copy attached.