Request By:
Hon. Samuel Carlick
County Attorney
McCracken County Courthouse
Paducah, Kentucky 42001
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Several years ago the McCracken County Fiscal Court established an auxiliary county police force as then authorized by KRS 70.545. However, that statute was repealed by the 1978 Legislature. See H.B. 152 (Home Rule Bill) Ch. 118, § 19, 1978 Acts.
As a result of the express repeal of KRS 70.545, you have two questions on which you request our opinion.
Question No. 1:
"Did the repealing of this statute automatically vitiate the Fiscal Court's previous order establishing the auxiliary force?"
The effect of repeal is described in 73 Am.Jur.2d, Statutes, § 384, p. 505:
"Aside from matters and transactions past and closed, and aside from the use of repealed statutes as an aid in the interpretation of existing statutes, the general rule is that where a statute is repealed without a re-enactment of the repealed law in substantially the same terms, and there is no saving clause or a general statute limiting the effect of the repeal, the repealed statute, in regard to its operative effect, is considered as if it had never existed. Of course, the courts have no power to perpetuate a rule of law which the legislature has repealed. "
While KRS 70.545 was expressly repealed in H.B. 152 (1978), in the same bill involving the amending of the Home Rule statute, KRS 67.083, and in giving fiscal courts additional and detailed powers, the legislature in KRS 67.083(3) (u) gave the fiscal courts express power to enact ordinances relating to police protection. This is ample authority for fiscal courts to establish a county auxiliary police force. See OAG 80-13 on that point. However, KRS 67.083(3)(u) does not constitute a re-enactment of KRS 70.545 in substantially the same terms, and there is no saving clause or a general statute limiting the effect of the repeal. Thus, under the general rule stated above, it is our opinion that the repealed statute is considered as if it had never existed. It would then follow by logic that the original order of fiscal court establishing the auxiliary force is to be considered automatically vitiated by such repeal. Even in the absence of a clause, we believe the courts would probably uphold the policy that such repeal would not result in releasing or extinguishing any contract or tort liability arising out of auxiliary police activities prior to the statutory repeal. 73 Am.Jur.2d, Statutes, § 386, p. 507. See §§ 14, 19, 54 and 241, Kentucky Constitution.
Question No. 2:
"If in fact the McCracken County Auxiliary Police Force has been eliminated, can the Fiscal Court under the Home Rule powers granted to it by KRS 67.083(u) establish a McCracken County Auxiliary Police Force in conjunction with the existing McCracken County Police Force?"
As we concluded in OAG 80-13, copy enclosed, KRS 67.083(3)(u) authorizes a fiscal court in any county to establish an auxiliary county police force. Such an auxiliary police force is not to be confused in any way with a regular county police force established under KRS 70.540. See