Request By:
Mr. Joe W. Johnson
Fulton County Attorney
207 Commercial Avenue
Fulton, Kentucky 42041
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You have written about district court misdemeanants being sentenced to a city jail. You gave these facts:
"The Fulton District Court holds its sessions at the county seat in Hickman, Kentucky one day a week and at the city hall in Fulton, Kentucky one day a week. Heretofore the District Judge, upon finding a party guilty of a crime while holding court in Fulton Kentucky has often required that the time to be served be in the Fulton city jail. This is usually done whenever the county jail is overcrowded. Of course I would like a clari fication as to whether or not it could be done regardless of the number of people in the county jail. "
Historically, prior to January 2, 1978, the advent of the new judicial system, city jails were necessary to incarcerate criminal defendants sentenced to a jail term by the city police court. On and after January 2, 1978, the office of police judge went out of existence, the old lower court system being supplanted by the district court. Section 109, Kentucky Constitution [see compiler's notes]. This raises a serious question as to the legitimacy of the city jail as an institution to house misdemeanants in a jail term. While the definition of "jail" in KRS 441.410 [enacted in 1974] included city jails and county jails, it can be seen that the city jail, as a place to serve a jail sentence, now is an anachronism. KRS 86.110(6) permits a city of the 4th class to erect a "workhouse" . KRS 26.480 reads:
"Upon any judgments of the police court in a city of the fourth class imposing a fine in favor of the state or the city, the city attorney may cause an execution to be issued and levied on the estate of the defendant, or may cause the defendant to be imprisoned in the city workhouse, if there is one, or the county jail, or compelled to labor at work not detrimental to health upon the streets or other public property of the city or in the workhouse or jail at the rate of one dollar ($1.00) per day until the fine and costs are paid, unless the rate of wages is changed by the city legislative body. The city council may by ordinance regulate such labor. When any fine or costs is paid by labor, the city shall not be liable to any officer for any part of the fine or costs. The defendant may at any time replevy the fine for three (3) months by executing a bond, with good surety, for the amount of the fine and costs and six per cent (6%) interest.
The two statutes, KRS 86.110 and 26.480, were interpreted in
City of Winchester v. Azbill, 225 Ky. 389, 9 S.W.2d 51 (1928) as permitting a city to maintain its own jail or have its prisoners committed to county jail. However, KRS 26.480 was repealed in the wake of the new judicial system [Ex. Sess. 1976, Ch. 14, § 491, effective January 2, 1978]. The express repeal of KRS 26.480 indicates the legislative intent that under the new judicial system there would be no use for a city jail, the retention of the definition of "jail" as including city and county jails in KRS 441.005 and 441.410 being an oversight. Thus the previous statutory option of a city to have its own jail or send its prisoners to county jail was eliminated in the express repeal of KRS 26.480.
In 1976 [Ex. Sess., § 14] the legislature amended KRS 64.150 [county jailer's fees] to provide, inter alia, a fee for the county jailer of $6.00 per day for each day a prisoner is transported to district court or circuit court. This indicates clearly that the legislature contemplated that the district court, as well as the circuit court, would order its misdemeanants sentenced to a jail term and misdemeanants and felons awaiting trial to be incarcerated in the local county jail, not a city jail. Thus by this statute the county jailer is required to attend district and circuit court by taking his prisoners to such courts as ordered. There is no statute requiring a city jailer to attend district court. Indeed H.B. 10 [Ex. Sess. 1976, Ch. 12], when read in its entirety seems to concern, as a practical matter, county jails, not city jails [except for the mere definitional statute, 441.005].
Since there is no need for a city jail [no city police court], and over and above the express repeal of KRS 26.480, it is evident that the law does not require the doing of a vain thing.
Kentucky Title Co. v. Hail, 219 Ky. 256, 292 S.W. 817 (1927) 821. There is no reason for a city legislative body's funding a city jail, and the city taxpayers could at this juncture question such city jail operation and financial support thereof.
Now, concerning the court's ordering a misdemeanant to the city jail or to the county jail, as an option, it is our opinion that such an option does not exist. He can only direct that such convicted misdemeanants be placed in the local county jail, for the reasons given above. Where the local county jail cannot adequately house them, resort would have to be made to another county jail. City jails are not supposed to be in existence. 1 In addition,
Judge Cullen, in Swanners v. Thomas, Ky., 387 S.W.2d 307 (1965) 2 wrote that "the designation of the institutions to which convicted felons may be sentenced is a legislative function." It logically follows that the same principle applies to sentenced misdemeanants. See also 72 C.J.S., Prisons, § 19, p.p. 875-876. The district court has no choice here. He must simply follow the statutes as to the proper place of incarceration. The statutes clearly point to the county jail as the misdemeanant institution in Kentucky. Thus county jails are required to "fulfill three basic functions: pretrial confinement of accused felons, confinement of misdemeanants both before and after trial, and confinement of convicted felons awaiting transfer to state facilities." 3
In summary, prior to the judicial amendment of the constitution, the quarterly courts and the circuit courts were required to use the county jail for convicted misdemeanants sentenced to a jail term and defendants [misdemeanants or felons] awaiting trial. The city prisoners sentenced to a jail term by police court could use a city jail if one existed. Now there is no police court and the district court must necessarily use the county jail. The option of KRS 26.480 no longer exists.
While we said above that city jails are not now needed and were not contemplated by the legislature, we must qualify that to the extent that city jails are permitted under KRS 95.787, for cities of the 4th or 5th classes, but only as a place of detention and safekeeping of persons, arrested for any bailable offense, prior to their being taken before the court for examination. That statute reads:
"Persons arrested for any bailable offense, in cities of the fourth or fifth class, may be placed in the station house, county jail or city jail for safekeeping until taken before the court for examination."
There is nothing in KRS 95.787, however, authorizing the city to operate such facility to incarcerate defendants sentenced to a jail term. OAG 78-539 is modified accordingly.
Footnotes
Footnotes
1 See KRS 95.787 suggesting a city jail for detention of arrested persons prior to being taken before the court for examination. Prior to the 1976 amendment it read "taken before the police court." (Emphasis added).
2 Cert. Den. 86 S. Ct. 131, 382 U.S. 865, 15 L. Ed. 2d 103.
3 65 Ky. L.J. 130, 131, County Jail Reform, by William A. Hoskins.