Request By:
Mr. Scott Allan Wilson
Attorney
Kentucky Association of
Counties
323 Shelby Street
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You ask whether or not a county can close its county jail. The answer is "no".
KRS 67.080(4) provides that "The fiscal court may: . . . secure a sufficient jail . . ." (Emphasis added). KRS 446.010(20) provides that as used in the statute laws of this state, unless the context requires otherwise, "may" is permissive. However, the use of the auxiliary "may" in the context of KRS 67.080 is illusory. An earlier form of the statute [Carroll's Kentucky Statutes § 1840] simply reads: "The fiscal court shall have jurisdiction to . . . . secure a sufficient jail . . ." It was an affirmative statement of fiscal court powers without the presence of the auxiliary "may". As a parallel to the maintenance of a county jail, KRS 67.080 also provides that fiscal court "may erect, keep in repair and superintend bridges and other structures", and "provide for the good condition of the highways in the county." (Emphasis added). However, the Court of Appeals, in Shearer v. Hall, Ky., 399 S.W.2d 701 (1966), wrote that ". . . We think by the use of the work 'may' in KRS 67.080 the legislature clearly intended no only to empower the fiscal courts to repair and keep in good condition the roads and bridges, but by implication they are placed under the duty to exercise some degree of care and diligence in the performance of such duties." (Emphasis added).
The Shearer case nails down the proposition beyond any doubt that KRS 67.080 is basically a delegation of specific powers, which specific powers are deemed by the court to be duties. So if there is any one who believes that the providing of a county jail is a permissive power he should be disabused of such erroneous concept here and now.
It is our opinion, in view of the statute and the Shearer interpretation, that a fiscal court has a continuing duty to maintain an adequate county jail. Even if a county jail is closed down by the fiscal court or by a judicial court order for the reason of its being inadequate to house prisoners, the fiscal court within a reasonable time [as determined by the courts] must provide another and adequate county jail.
The duty to maintain a county jail involves a ministerial act, since the official duty here is absolute, certain, and imperative, involving merely execution of a specific act arising from fixed and designated facts. Shearer v. Hall, above, p. 704.
Next, you ask what are the consequences if they close a county jail.
If a fiscal court fails to furnish an adequate jail, its members are subject to a mandamus action in circuit court. action in circuit court. "Mandamus may be used, and is the appropriate remedy to compel a recalcitrant officer to perform a merely ministerial duty which the law requires at his hands." McFarland v. Withers, McFarland v. Withers, 274 Ky. 65, 118 S.W.2d 156 (1938) 157. Further, the members of fiscal court are subject to an indictment for wilful neglect in the discharge of official duties if they fail, after a reasonable period of time elapses within which they should have taken action, to secure a sufficient jail. KRS 61.170.
In summary, under present statutes, the fiscal court is saddled with the affirmative duty and responsibility for maintaining a sufficient county jail. We can find no legislation transferring such financial burden to the state.