Request By:
Honorable R. L. Ballou
Attorney at Law
206 N. Main Street
Corbin, Kentucky 40701
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman Assistant Deputy Attorney General
This is in answer to your letter of November 27 in which you request an opinion concerning the following:
"Recently Mr. Terry Shelby was killed here in Corbin in an accident. Mr. Shelby was a commissioner elect due to take office as a city commissioner on January 1, 1980. Mr. Shelby had not yet begun to serve nor had he qualified by taking the necessary oath, etc.
"My question is, will the new commission be required to appoint a commissioner to take Mr. Shelby's place until the next general election in November, 1980, or will the next person who received the next largest number of votes in the past election be considered to have been a successful candidate for the position of commissioner."
In response to your questions we initially refer to KRS 89.520 (5) which provides, in effect, that in the event of a permanent vacancy in the office of any commissioner caused by death, the vacancy shall be filled by appointment by the other members of the board until the vacancy is filled by the election of a successor at the next general election of municipal officers.
The commissioner in question was duly elected at the past November election and was to enter the duties of office on the first Monday in January, 1980. At that time and because he is deceased, a vacancy will automatically be created which will be filled by the newly elected commissioners until an election can be held for the unexpired term pursuant to § 152 of the Constitution. You will note that KRS 89.520 (5) provides that the vacancy shall be filled at the next general election of municipal officers. This requirement, however, violates the terms of § 152 of the Constitution [which controls filling of all vacancies in elective offices] as held in the case of Scott v. Singleton, 171 Ky. 117, 188 S.W. 302 (1916).
Pursuant to § 152 of the Constitution there will be a regular election in November 1980 for presidential electors which are statewide officers which, of course, embraces the city of Corbin. Therefore, at that time there must be an election for city commissioner for the unexpired term in order to comply with Const. 152. Naturally there must be a special city primary next May to be conducted in the same manner as the city primary in 1979.
As you can gather from the above, the person who received the next highest number of votes below the four commissioners elected at the past November election [which would be the man coming in fifth] would not be entitled to take the deceased commissioner's place following his election and subsequent death. This question has been decided by the court in a number of cases, among them being, Bogie v. Hill, 286 Ky. 732, 151 S.W.2d 765 (1941); and Morgan v. Adams, 250 Ky. 441, 63 S.W.2d 479 (1933), from which we quote as follows
". . . It is a well-settled rule that one receiving less than a plurality of legal votes cannot be declared elected, and the only exception to this rule is where a successful candidate has violated the Corrupt Practice Act (Ky. Stats. § 1565b-1 et seq.) in a primary election. This exception cannot be applied in a general election. The candidate for an office who has not received a plurality of the legal votes cast is not entitled to the office, although the candidate who received a plurality of the legal votes is, for any reason, ineligible. . . ."
See also Wood v. Mills, Ky., 503 S.W.2d 706 (1974).
We hope the above sufficiently answers your question.