Request By:
Mr. William D. Stephens
County Fee Systems
Department of Finance
Capitol Annex
Frankfort, Kentucky 40601
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You request our review of OAG 81-241 by way of an opinion interpretation and clarification. The opinion, you say, seems to indicate that pursuant to KRS 64.150 the jailer should be paid a fee of 75 for each instance of imprisonment and 75 for each instance of release.
KRS 64.150(1) provides in part:
"Jailers shall be paid out of the county treasury, except as provided in subsection (2) of this section, the following fees for the following services:
* * *
"Imprisoning and releasing a prisoner charged with an offense or contempt . . . 75 "
Subsection (2) of KRS 64.150 provides that the unit of government whose law or statute a prisoner is charged with or convicted of violating shall pay to the jailer the fees provided in subsection (1). Of course most prisoners are charged with violating state statutes.
In OAG 81-241, in response to the application of the work release statute, KRS 439.179, we concluded that the imprisoning and releasing of a prisoner on work-release would be a daily task, which would entitle the jailer to the fee of 75 cents for each instance of imprisonment and 75 cents for each instance of release. Where the prisoner is charged with violating a state statute, the state would pay the 75 cents fee, subject to reimbursement from the defendant's earned money. See KRS 439.179(3).
You have written that since the enactment of KRS 64.150, the state has paid a total fee of 75 cents for both imprisoning and releasing a prisoner. Thus under the doctrine of contemporaneous construction, the Finance Department has construed the 75 cents fee to embrace imprisonment and release as one combined action calling for a total fee of 75 cents instead of $1.50 for two separate actions.
You add that under the $1.50 construction, the annual cost to the state would be an additional $175,000.
Thirdly, you say that if OAG 81-241 is correct, then the phrase in KRS 64.150, "keeping and dieting prisoners in jail per day . . . $6.75," would be interpreted to break down "keeping" and "dieting" into two different actions or processes, resulting in doubling the fee, which would be $13.50 per day, instead of $6.75 per day. That interpretation would amount to an additional $8,000,000 per year.
First, the phrase "keeping and dieting" has consistently been interpreted by this office as involving only one daily fee (now currently $6.75). Thus the word "keeping" does not break down into two categories of fee assessment, i.e., a daily fee for "rent" and a daily fee for "food" or "dieting" . That phrase has historically been interpreted to mean only one fee for the combined concept of "keeping and dieting. " The courts have treated the phrase "keeping and dieting" as a one or total process calling for the one daily fee. They simply say "keep and feed." In its final pragmatism, the jailer is simply feeding prisoners placed in his custody.
Duff v. Mosley, 169 Ky. 61, 183 S.W. 231 (1916). In
Talbott v. Caudill, 248 Ky. 146, 58 S.W.2d 385 (1933), Judge Stanley, for the court, ruled, in apparent recognition of the combined concept of "keeping-dieting", that the jailer would be entitled to the then 75 cents daily dieting fee "for keeping a prisoner each day regardless of whether he remains in jail the whole of the day or a part of the day, or is given any diet at all." Thus the Court of Appeals refused, in its interpretive power, to break down keeping and dieting into two distinct phenomena. See also
Briskman v. Central State Hospital, Ky., 264 S.W.2d 270 (1954), in which the court adopted the one process view of "keeping and dieting. "
Let us look now to the phrase in KRS 64.150(1), "Imprisoning and releasing a prisoner charged with an offense or contempt. " (Emphasis added).
Upon re-thinking this matter, it is our opinion that under the express wording, "Imprisoning and releasing . . . 75 cents," there is no attempt and no intent to divide imprisoning and releasing into two separate and distinct actions. The legislature could so easily have done so with appropriate language. The terms "imprisoning and releasing" are joined together with the conjunction "and." The court, in
Boron Oil Company v. Cathedral Foundation, Inc., Ky., 434 S.W.2d 640 (1968), wrote that the words "or" and "and" can be interchanged in a statute where it is obvious that the intent of the legislature would be thwarted if the change were not made. We do not find that situation here. To the contrary, the use of the conjunction was apparently deliberate in making "imprisoning and releasing" one transaction. This means, for a particular imprisonment and the release which immediately follows that imprisonment, that they constitute one transaction, calling for a total fee of 75 cents.
In addition,
Judge Thomas, in O'Connell v. Duff, 276 Ky. 782, 125 S.W.2d 718 (1939) 720, pointed out that the doctrine of contemporaneous construction becomes available where the statute is ambiguous, thereby furnishing room for more than one interpretation. Elsewhere in O'Connell, Judge Thomas wrote this:
"In such cases parties to the instrument, or officials whose duty it is to administer the statute, may by their course of action adopt and follow an interpretation, which, if done and rights have become adjusted to that interpretation, will be upheld by the courts under the rule that has become known in the law as "contemporaneous construction. "
Since your department over the years has given the statute the interpretation as one transaction, we believe the courts will so interpret it, aspecially since the argument of one transaction and the argument of two transactions can be made; except that the better analysis comes up with the one transaction concept.
The courts have noted that the use of the connective word "and" can give trouble in interpretation, since the popular use of the words "and" and "or" are loose and frequently inaccurate. Thus the courts have been inclined to change "and" to "or" whenever the conversion is necessary to effectuate the obvious intention of the legislature.
Duncan v. Wiseman Baking Company, Ky., 357 S.W.2d 694 (1962) 698. However, here the context and the contemporaneous construction suggest that the word "and" is used in the precise sense intended, i.e., one complete transaction for the 75 cent fee.
Thus, in connection with the work release program under KRS 439.179, the daily release to work and then subsequent imprisonment in jail will be viewed, in terms of KRS 64.150, as one total event of release-imprisonment. That simply means that on a particular day of release and subsequent re-imprisonment, the total fee is 75 cents, and not $1.50. OAG 81-241 is modified accordingly.