Request By:
Mr. Ray Elliott
Sheriff of McCracken County
McCracken County Courthouse
Paducah, Kentucky 42001
Opinion
Opinion By: Steven L. Beshear, Attorney General; Charles W. Runyan, Assistant Deputy Attorney General
Prior to the repeal of the statute by 1978 Acts (Ch. 118, § 19), KRS 70.545 authorized the fiscal court of any county to establish, or abolish, by an order, an auxiliary police force, to perform duties within the county upon terms and conditions laid out by fiscal county. The order was required to preseribe the number of officers of such force, the manner of appointment, rules and regulations governing the powers and duties of such members, including the power of arrest.
There is at present no statute comparable to the old KRS 70.545.
Your first question is whether a county auxiliary police force is authorized by KRS 70.540.
The answer is "no." That statute [KRS 70.540] relates exclusively to the establishing of a regular county police force. The statute uses the wording "a county police force." Nothing is said about a "county auxiliary police force. " The detailed language of the whole statute [KRS 70.540] is such as to indicate that only a regular county police force was intended. See Button v. Hikes, 296 Ky. 163, 176 S.W.2d 112 (1944), emphasizing that to ascertain legislative intent, the court must look to the letter of the statute and to it as a whole. In addition, in considering the great difference between a mere auxiliary police force [an emergency subsidiary and supplementary kind of force] and a regular police force, there is nothing, in KRS 70.540 suggesting authority for creating an auxiliary police force.
Question No. 2: "Does House Bill 152 give the County Judge Executive and the Fiscal Court authority to enact an ordinance authorizing the maintenance of a County Auxiliary Police Force? "
KRS 67.083(3)(u) provides that the fiscal court of any county may enact ordinances treating the subject of police and fire protection.
While the Supreme Court of Kentucky has ruled that all power exercised by the fiscal court must be expressly delegated to it by statute, it is our opinion that KRS 67.083(3)(u) is sufficiently express or explicit in its nature as to meet the Court's requirement. In fact, the language of KRS 67.083(3)(u) suggests a "thoughtful, purposeful and deliberate delegation of a known power." Fiscal Court, Etc. v. City of Louisville, Ky., 559 S.W.2d 478 (1977) 482. Thus, we conclude that KRS 67.083(3)(u) is explicit enough to authorize a fiscal court to establish by ordinance an auxiliary police force.
Lastly, the Home Rule Bill [H.B. 152, Ch. 118, 1978 Acts] indicates that the legislative purpose of KRS 67.083, as amended, was to "provide counties as units of general purpose local government with the necessary latitude and flexibility to provide and finance various governmental services within these functional areas specified in subsection (3) of this section. . . ." (Emphasis added.) KRS 67.083(1). Thus, it can be well argued that the idea of the express repeal of KRS 70.545 [the old auxiliary police statute], as contained in section 19 of H.B. 152, was with the implicit understanding that the home Rule powers, as expanded in KRS 67.083(3), would in practical effect take the place of KRS 70.545. The express repeal of KRS 70.545 can leave no doubt as to whether the statute was repealed. Sands, Sutherland Statutory Construction, Vol. 1A, § 23.07, p. 219. Transcending the express repeal is the compelling view that the legislature would not have repealed KRS 70.545, as a tool of county law enforcement, without leaving something in its place. They did leave something in its place, i.e., KRS 67.083(3)(u).