Request By:
Honorable Charles R. Simpson, III
Attorney at Law
Suite 709 Ky. Home Life Building
239 South Fifth Street
Louisville, Kentucky 40202
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of January 3 in which you request an opinion concerning the following:
"A recent vacancy developed on the Jefferson County Fiscal Court with the resignation of Commissioner Kirchdorfer. The Governor has appointed an individual to take Mr. Kirchdorfer's place until an election can be held.
"I was previously under the impression that there were no local elections in 1978 which would enable an election to be held to fill this Fiscal Court vacancy. It thus appeared that the election would have to be held in 1979.
"It has recently come to my attention that there is a vacancy by death in the office of Railroad Commissioner for the district encompassing Jefferson County. It thus appears that an election will be necessary to fill this position."
Our response to your question would be in the negative. All vacancies in elective offices must be filled pursuant to the terms of § 152 of the Constitution. This provision requires that all vacancies be filled at the next regular election embracing the area in which such vacancies occur. See Smith v. Ruth, 308 Ky. 60, 212 S.W.2d 532 (1948); and Brumleve v. Ruth, 302 Ky. 513, 195 S.W.2d 777 (1946).
The fact that there is a vacancy in the office of railroad commissioner would in no way qualify as a regular election under the terms of § 152 since it involves the filling of a vacancy as does the fiscal court vacancy. Of course, federal elections, such as those of United States Senator and members of Congress, to be held this coming November, 1978 do not qualify under the terms of § 152 of the Constitution as held in many cases, among those cited above. The only regular elections to be held in 1978 in Jefferson County are school board elections, which of course do not embrace the entire county. As a consequence, such election would not qualify since your county commissioners are elected on a countywide basis under KRS 67.060 even though they run from districts. There is a regular Supreme Court election in the Third District, however, this district does not embrace Jefferson County.
Under the circumstances, whoever is appointed to fill the vacancy in question would serve until the November, 1979 election, which is a statewide election. If the regular term for this particular commissioner ends in January, 1980, the appointee would serve for the remainder of the present term. On the other hand, if the commissioner's term does not end where, for example, the last regular election was in 1977, whoever is elected at the 1979 election would go into office immediately after he can qualify following the election.