Request By:
Honorable R. R. Thomas
Judge, Hardin County Court
P.O. Box 568
Elizabethtown, Kentucky 42701
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You raise questions concerning whether the County Judge/Executive will continue in 1978 and thereafter to perform certain statutory functions or whether the District Judge will perform them.
You specifically mentioned on the phone KRS 402.050 as to the solemnizing of marriages.
In S.B. 18, Chapter 20 of the 1976 Extraordinary Session, § 6, it is provided that wherever the words "County Judge" appear in previously existing statutes, the language shall be changed by the Revisor of Statutes to read "County Judge/Executive."
In the 1976 (Ex.Sess.) Acts, Ch. 14, § 401, effective January 2, 1978, KRS 402.050(1)(b) was amended to add "judges of the district court" to the list of judges permitted to solemnize marriages. However, the term "judges of the county court" was deliberately left in the statute, although in 1978 there is no "county court." There is a presumption that the legislature is cognizant of the Constitution, previously enacted statutes, and the common law. Cook v. Ward, Ky., 381 S.W.2d 168 (1964), 170. Here the legislature knew that as of 1978 the County Judge would have no judicial function [as well as the Justices of the Peace], and still they deliberately left the County Judges and Justices of the Peace in the statute. We are of the opinion that the legislature deliberately intended that County Judges and Justices of the Peace, the latter under the terms of the statute, could continue to solemnize marriages as a non-judicial function. As you say, where an under-age girl is pregnant, application for permission to get married is made to the District Court Judge under the express wording of KRS 402.020(4), as amended in the 1976 Extraordinary Session. The application for permission to marry under KRS 402.150 is filed with the District Judge under its express provisions.
Next, who issues licenses to solemnize marriages under KRS 402.060? The statute presently provides for a minister, etc., to obtain such a license from the "county court" of the county of the minister's residence.
Under S.B. 18 [Ch. 20, Ex.Sess. of 1976], § 6, above mentioned, the "County Judge/Executive" should be substituted for "county court," since it is our opinion that this licensing function is not a basically judicial function, it is administrative and executive in nature. Thus there is no constitutional problem of giving a judicial function to an administrative or executive officer. See § 28, Kentucky Constitution. The old Court of Appeals in Reeves v. Simons, 289 Ky. 793, 160 S.W.2d 149 (1942), 150, held that the function of the Kentucky State Alcoholic Control Board of conducting hearings and revoking liquor licenses of dealers did not involve the exercise of a judicial function within the meaning of the Constitution forbidding one branch of government from usurping the functions of another. See §§ 27-29, Kentucky Constitution.
The application for becoming a notary must be approved by the circuit judge, circuit clerk, "county judge," county clerk, justice of the peace or a member of the general assembly of the county of the applicant. (Emphasis added.) You ask if such approval of applications may be given by the County Judge/Executive. The answer is "yes." This is authorized by the substitution provision of § 6 of S.B. 18, Ch. 20 (Ex.Sess.) of the 1976 Acts. It is a non-judicial function.
You ask whether or not the County Judge/Executive under KRS 231.020 through 231.090 may conduct hearings and refuse or grant permits to operate certain places of entertainment in the unincorporated portions of a county.
In the 1976 Acts (Ex.Sess.) Ch. 14, § 213, KRS 231.090 was amended, but the "county court" was retained in the statute deliberately. We are of the opinion that since this function of "county court" of granting permits at most is only quasi-judicial, but not judicial, the County Judge/Executive was intended by the legislature to continue in performing that local function. Even though the word "judgment" is mentioned in KRS 231.090(2), the courts, and not the legislature, must determine whether a statutory function is judicial or not. See Reeves v. Simons, 289 Ky. 793, 160 S.W.2d 149 (1942), above, which held that similar licensing procedure was not judicial.