Request By:
Mr. William G. Mullins
Legal Counsel
Kentucky State Police
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
In your letter you raise the question as to whether or not KRS 61.300, relating to qualifications of nonelective peace officers or deputies, applies to the state police. It does not.
KRS 61.300(1)(b) and (e) reads:
"(1) No person shall serve as a deputy sheriff, deputy constable, patrol or other nonelective peace officer or deputy peace officer, unless:
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"(b) He has resided in the county wherein
"(b) He has resided in the county wherein he is appointed to serve for a period of at least two (2) years;
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"(e) He has filed his photograph with the county clerk of the county in which he is to serve, together with his affidavit stating his full name, age and residence address and that he is not prohibited from serving by this section."
Since the above statute deals with "nonelective peace officers" , it is pertinent to see generally what a "peace officer" is. KRS 446.010(24) defines a "peace officer" as including sheriffs, constables, coroners, jailers, marshals, "policemen" and other persons with similar authority to make arrests. (Emphasis added).
Actually the identical major specific categories of peace officers enumerated in KRS 446.010(24), i.e., sheriffs, constables, coroners, jailers, marshals and policemen, were listed as "peace officers" under § 26 of the old Criminal Code. See Commonwealth v. McCann, 123 Ky. 247, 94 S.W. 645 (1906) 647. In the old cases the court talked in terms of city policemen as peace officers. Section 36 of the old Criminal Code dealt with peace officers in the power to make arrests. This was the forerunner of KRS 431.005.
See the original enactment, of what was later to be KRS 61.300, in the 1938 Kentucky Acts (Ch. 49, §§ 1, 2, 4, and 5). The original 1938 legislation is almost identical with the present KRS 61.300, amended in 1974 and 1976.
KRS 61.300(1)(b) requires that the nonelective peace officer must have "resided in the county wherein he is appointed" to serve for a period of at least two (2) years. (Emphasis added). Subsection (1)(e) requires him to "file his photograph with the county clerk of the county in which he is to serve, together with his affidavit stating his full name, age and residence address . . ." (Emphasis added).
The state police legislation collected in KRS Chapter 16 was first enacted in 1948, some ten years after the original enactment of KRS 61.300.
It is the duty of state policemen to detect and prevent crime, apprehend criminals, "maintain law and order throughout the state," to collect, classify and maintain information useful for the detection of crime and the identification, apprehension and conviction of criminals and to enforce the criminal, as well as the motor vehicle and traffic laws of the Commonwealth. (Emphasis added). All state policemen are thus "individually vested with the powers of a peace officer and shall have in all parts of the state the same powers with respect to criminal matters and enforcement of the laws relating thereto as sheriffs, constables and police officers in their respective jurisdictions." KRS 16.060. (Emphasis added). KRS 16.120 contained some restrictions upon state policemen's powers within the limits of any incorporated city of the first to fifth class, but the statute was repealed in 1976 [Ch. 151, § 2].
Thus state policemen have state-wide jurisdiction.
When considering the history of KRS 61.300, it is our opinion that the nonelective peace officer categories specifically mentioned in that statute and in KRS 446.010(24) relate to peace officers of cities and counties only. Note that KRS 61.300(1)(b) states that the officer must have "resided in the county wherein he is appointed . . ." (Emphasis added). Subsection (1)(e) states the officer must file his photograph "with the county clerk of the county in which he is to serve. . ." (Emphasis added).
Actually, a state policeman is not appointed in a particular county [see KRS 16.050]; and he is not inevitably destined to serve in a particular county. His jurisdiction is state-wide, and he is subject to duty in any county in Kentucky. It is obvious to us that the qualifications of a non-elective peace officer under KRS 61.300 were not designed to fit or apply to state policemen. Otherwise, a state policeman would logically have to qualify in every county in Kentucky, since the potentiality for service is technically present. But such qualification would be impossible. Judge Cammack wrote in Swift v. Southeastern Greyhound Lines, 294 Ky. 137, 171 S.W.2d 49 (1943) 51, that "It is never to be presumed that the legislature intended to enact an absurd statute . . ."
We think the doctrine of ejusdem generis applies to KRS 446.010(24), which statute defines what is meant by "peace officer" as relates to KRS 61.300. Subsection (24) of KRS 446.010 provides that a "peace officer" includes sheriffs, constables, coroners, jailers, marshals, policemen "and other persons with similar authority to make arrests. " (Emphasis added). Under the doctrine of ejusdem generis the general language, "and other persons with similar authority," etc., is restricted to persons of the same kind or class specifically named in the preceding words. See City of Lexington v. Edgerton, 289 Ky. 815, 159 S.W.2d 1015 (1941) 1017. Thus the general phrase must necessarily relate to a local [city or county] peace officer. It would exclude state policemen.
Importantly, we do not have to look outside of KRS 16.060 for the principle that a state policeman is indeed a "peace officer" , as a sheriff is, in enforcing criminal laws in all of Kentucky. Moreover, the qualifications of state policemen are dealt with in KRS 16.040. Inter alia they are required to be citizens of the United States and the Commonwealth. Those qualificates relate specifically and exclusively to state policemen. They are controlling. A specific law governs over a general. City of Bowling Green v. Board of Education, Ky., 443 S.W.2d 243 (1969) 247.