Request By:
Ms. Dona Rains
Reporter
The Anderson News
Lawrenceburg, Kentucky 40342
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
From the figures you gave in your letter, it is obvious that the magisterial districts in Anderson County are not equally apportioned population wise, which equal population is expressly required by KRS 25.690. It is also required by the Supreme Court decisions as to one man, one vote.
Avery v. Midland County, 390 U.S. 474, 20 L. Ed. 2d 45, 88 S. Ct. 1114 (1968).
Senate Bill 15 (Ch. 14, Ex. Sess. 1976) §§ 491 and 492 repealed KRS 25.680, 25.690, and 25.700 [reapportionment of magisterial districts] as of January 2, 1978.
You ask whether the county court could presently proceed to reapportion under the reapportionment statutes, even though the legislature has enacted no statutes to replace the present ones.
As we pointed out in OAG 77-613, technically there will be no reapportionment statutes on January 2, 1978 and the present statutes will technically be repealed.
It is possible that the courts might, in view of the inevitable requirement of the Supreme Court, during this statutory hiatus, hold that the present reapportionment statutes would remain in effect until the General Assembly has a chance to deal with this technical vacuum created by S.B. 15. The legal theory would be that the General Assembly knowingly and deliberately would not repeal the reapportionment statutes without enacting something to replace it. The court has written that it will not be presumed that the legislature did a vain or foolish thing.
County Board of Education v. Fiscal Court, 221 Ky. 106, 298 S.W. 185 (1927) 187. It is also presumed that the legislature is acquainted with the current law.
Button v. Hikes, 296 Ky. 163, 176 S.W.2d 112 (1943) 117. Thus one could very well conclude that the repeal of KRS 25.680, et seq. , was merely a clerical error.
Our answer is that the county court may proceed to reapportion under the current statutes. Since the procedure will not be completed by January 2, 1978, the continued effectiveness of KRS 25.680, et seq. , during the hiatus period is purely up to the courts. We indicated to Anderson County officials informally, as we do here formally, that starting the procedure now in 1977 under the old statutes is a fair calculated risk. This would mean that the county judge/executive and the old commissioners appointed to reapportion would continue to complete the work in early January, 1978, unless stopped by an order of a court or new legislation.