Request By:
Mr. Dale Wright
Anderson County Attorney
Main and Court Place
Lawrenceburg, Kentucky 40342
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your county is faced with a problem concerning reapportionment.
The problem centers around KRS 25.680, 25.690 and 25.700, which were all expressly repealed by the Acts of 1976 (Ex. Sess.), Ch. 14, § 491, effective January 2, 1978. The repealer contained no savings clause of any kind. Those three sections contained the procedure for reapportioning the county into justices' districts.
Prior to January 2, 1978, in your county all proper statutory steps were completed pursuant to KRS 25.680 and 25.690, and the county judge properly appointed three commissioners to reapportion. However, prior to January 2, 1978, those commissioners did not act nor take any steps to carry out their statutory function.
In the 1978 Session, H.B. 48 was enacted. That bill contains the procedure for reapportionment in the county. However, its terms are in substantial variance with the provisions of the old statutes.
Your question is:
"Can the three commissioners who were properly appointed to reapportion Anderson County under the old statute continue to act pursuant to the new law, or must the entire reapportionment process begin anew pursuant to the requirements of H.B. 48?"
You have advised the fiscal court that the reapportionment process must begin anew. In other words you must start off from scratch. We agree with your conclusion.
To begin, "The repeal of a statute has the effect, except to transactions passed and closed, of blotting it out as completely as if it had never existed, and of putting an end to all proceedings under it, as discussed infra § 439. Every right or remedy created wholly by statute subsequently repealed falls with the repeal of the act which created it." 82 C.J.S., Statutes, § 434, p.p. 1008-1009.
Elsewhere in 82 C.J.S., Statutes, § 439, p. 1012, this rule is stated:
"As a general rule the repeal of a statute without any reservation takes away all remedies given by the repealed statute and defeats all actions and proceedings pending under it at the time of its repeal. "
In line with the latter quotation of authority, see Boone County Court v. Snyder, 9 Ky. Op. 918 (1878) 921.
Compare Bandeen v. Howard, Ky., 299 S.W.2d 249 (1957) 254, in which the court ruled that the simultaneous repeal and the reenactment of substantially the same statute do not at common law work a repeal of the former act, but the substituted statute is construed as a continuation of the original provisions. However, as relates to county reapportionment, the 1976 repeal of KRS 25. 680, et seq., did not involve the simultaneous reenactment of substantially the same statute. Therefore, the possibility of continuity has no application here.
As an additional support for our conclusion, we note that § 2 of H.B. 48 expressly contains this language:
"Whereas, procedures for reapportioning justices districts have been repealed and there are now no statutory procedures for reapportioning such districts . . ."
This indicates that the legislature clearly recognized this gap in the law. It puts to rest any thought about the possibility of their being any continuity under the old law, even though the new law procedure might be invoked from here on out. Additionally, the provisions of the old law and the new law vary so substantially that there is no practical way in which their provisions can be integrated or meshed.
You point out that under the old law any citizen could actually initiate the reapportionment procedure. Section 1, subsection (3) of H.B. 48 provides in part that "To initiate a reapportionment proceeding, the county judge/executive shall publish notice of the planned reapportionment in accordance with KRS Chapter 424." This language however does not appear to rule out the possibility that a reapportionment proceeding may be initiated by any citizen, except that the language indicates that in order to complete the initiation of the proceeding the county judge/executive shall publish notice of the "planned reapportionment" in accordance with KRS Chapter 424. After all it will finally be up to the district court in a particular case as to whether or not the reapportionment will actually be effected.
In summary, it is our opinion that the old commissioners appointed under the old law lost any authority they had to proceed when these statutes in KRS Chapter 25 were repealed. Thus, if Anderson County is to be reapportioned, the reapportionment proceeding must be initiated and processed under the procedure outlined in H.B. 48. If this course is followed undoubtedly any possibility of litigation that might come about if the old commissioners were allowed to act would be obviated. House Bill 48, under the emergency clause therein, became effective on March 30, 1978, the day the Governor signed it.