Request By:
Philip D. McKenzie, Esq.
P.O. Box 635
Grayson, Kentucky 41143
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter raising numerous questions concerning the county dog pound, the county dog warden and the county's obligation to create and provide those facilities, positions and service in the county. You refer to KRS Chapter 258 providing in part for the creation of a dog pound and the appointment of a dog warden. These provisions have not yet been implemented by the Carter County Fiscal Court.
You ask whether KRS Chapter 258 requires the fiscal court to create a dog pound and to maintain it after its creation. You ask whether the fiscal court must appoint a dog warden and whether the fiscal court must provide the services of the dog warden and the dog pound to cities contained in the county. You ask whether the penalty provisions of KRS Chapter 258 apply to members of the fiscal court if they refuse to comply with that Chapter. You refer to KRS 61170 and the Kentucky Penal Code and ask whether those provisions apply or could apply to members of the fiscal court. You also ask who may initiate proceedings against the fiscal court for its failure to comply with the provisions of KRS Chapter 258. You further ask about the use of a mandamus action and the Department of Agriculture's responsibility in this matter.
At the outset we direct your attention to KRS 258.365 providing in part that KRS Chapter 258 does not prohibit or limit the right of any city to pass or enforce any ordinance with respect to the regulation of dogs, the provisions of which are not inconsistent with the provisions of KRS Chapter 258. See OAG 78-260, copy enclosed. If your city is encountering problems with dogs perhaps the above-mentioned statutory provision will enable it to alleviate such matters.
In connection with the county's obligations concerning a dog pound and a dog warden, KRS 258.195(1) provides in part that the fiscal court of each county shall employ a dog warden and that the fiscal court of each county shall establish and maintain a dog pound. The word "shall" is mandatory [KRS 446.010(29)] and, therefore, the fiscal court is required to employ a dog warden and to establish and maintain a dog pound. Furthermore, in Upchurch v. Clinton County, Ky., 330 S.W.2d 428, 430 (1959), the Court said in part as follows:
". . . It is our view there was a distinct duty expressly imposed by KRS 258.195(1) upon the members of the fiscal court of Clinton County to hire a dog warden and to bring into existence a dog pound. The duty required to be performed under this subsection was not of a discretionary nature; it was ministerial in character. The law states that a dog warden shall be appointed and a dog pound shall be established and maintained. The word 'shall' in each instance imparts the absolute necessity of carrying out these legal conditions according to their tenor." (Emphasis supplied by the court.)
While there are no express statutory provisions in KRS 258.195 requiring the county dog warden to pick up dogs anywhere in the county, the fiscal court pursuant to its regulatory powers under that statute may require the dog warden to pick up such dogs that are unlicensed and loose upon the public way. If the dog warden has been so instructed by the fiscal court, the service should be supplied to the entire county and not just to unincorporated areas, particularly where the city or cities in the county do not have a dog ordinance. See OAG's 64-383 and 63-856, copies enclosed.
As to penalties that may be imposed against fiscal court members and actions that may be brought against them for their failure to carry out mandatorily imposed duties under KRS 258.195, we first direct your attention to KRS 258.990(3). Any person violating or failing or refusing to comply with KRS 258.095 to 258.365 shall upon conviction be fined from $5.00 to $100.00 or be imprisoned for five to sixty days or both so fined and imprisoned for five to sixty days or both so fined and imprisoned. These penalty provisions are applicable to fiscal court members, Upchurch v. Clinton County, Ky., 330 S.W.2d 428, 430 (1959).
While the county itself is clothed with sovereign immunity, Cullinan v. Jefferson County, Ky., 418 S.W.2d 407 (1967), the same cannot be said for the individual members of the fiscal court. If a member of the public suffers livestock losses and his claim against the state livestock fund is denied by the Department of Agriculture because of the county's failure to appoint a dog warden and to establish and maintain a dog pound, the individual members of the fiscal court may be liable for the damages incurred. See OAG 66-191, copy enclosed.
KRS 61.170 provides in part that justices of the peace may be indicted in the county in which they reside for misfeasance or malfeasance in office, or willful neglect in the discharge of official duties. Conviction shall result in a fine of from $100 to $1000 and the judgment of conviction shall declare the office held by such person vacant. KRS Chapter 522 deals with "Abuse of Public Office" and among the offenses included therein is official misconduct in the second degree. This offense includes in part knowingly refraining from performing a duty imposed upon a public officer by low. You should check with the local prosecuting authorities to determine if any of the above-mentioned criminal penalties could be utilized against the fiscal court members under your particular fact situation.
While the State Department of Agriculture does have certain responsibilities in connection with KRS Chapter 258 (see KRS 258.105), the fiscal court, and not the department, is responsible for the appointment of a dog warden and the establishment and maintenance of a dog pound. See Tipton v. White, Ky., 287 S.W.2d 422 (1956). Thus, neither the Department of Agriculture nor this office are responsible for the implementation of KRS 258.195 (employment of dog warden and establishment and maintenance of dog pound) .
The only other method we can suggest to require the fiscal court to carry out the provisions of KRS 258.195 is a mandamus action whereby public officials are required to perform duties imposed upon them by law as a result of a suit brought by any citizen, taxpayer, property owner, etc., having sufficient interest in the matter. See OAG's 75-453 and 75-352, copies enclosed.