Request By:
Mr. Dale Wright
Anderson County Attorney
Main and Court Place
Lawrenceburg, Kentucky 40342
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You request our opinion concerning KRS 134.250, which statute reads:
"The sheriff shall annually, before he proceeds to collect the county levy, execute bond to the Commonwealth, with the county judge/executive, with one (1) or more sufficient sureties and in a definite penal sum fixed by the county judge/executive, conditioned for the faithful performance of his duties and to pay over in due time to the proper person, as directed by the court, all money collected by him. This bond shall be approved by order of the county judge/executive, and when approved shall be recorded in the order book and safely kept by the county clerk. "
Your specific question is whether or not the county judge/executive must jointly execute with the sheriff the bond described in KRS 134.250?
The older form of the statute merely stated that the special county levy bond of the sheriff would be approved by order of the county court. The present statute explicitly states that the county judge executive shall approve the bond; and the approval shall be recorded in the executive order book kept in the county clerk's office.
It is our opinion that the expression "the sheriff shall execute bond . . . with the county judge/executive . . ." merely means that the county judge/executive will review and approve the bond if properly executed. The old statute referred to the county court as the approval officer. The constitutional amendment resulted, inter alia, in the present § 124 of the Kentucky Constitution, which provides in part that any remaining sections of the constitution as they existed prior to the effective date of amendment which are in conflict with §§ 110-125, Constitution, are repealed to the extent of the conflict. But such amended sections are not intended to repeal those parts of sections 140 and 142 conferring non-judicial powers and duties upon county judges. Section 124 then adds: "Nothing in such amended sections shall be construed to limit the powers otherwise granted by this constitution to the county judge as the chief executive, administrative and fiscal officer of the county . . ." Thus the "Judge of the county court," mentioned in § 99, Constitution, has become the "county judge executive" under the constitution, with administrative and executive functions, but having no judicial functions.
So much for the legislative and constitutional history. There are other reasons why the county judge executive is not required to jointly execute some other officer's bond. To begin, the county judge executive has no responsibility to collect the county tax levy. Thus there is no reason for his executing the tax collector's bond. "The law will not force any one to do a vain and useless thing." (Emphasis added). Kentucky Title Co. v. Hail, 219 Ky. 256, 292 S.W. 817 (1927) 821.
Now the county judge executive is required to execute a bond, but we refer to his own bond for faithful performance of the duties of his office, pursuant to KRS 67.720. He is not required to execute the bond of another officer covering the other officer's responsibilities.
KRS 71.010 states that the jailer shall execute bond with the county judge executive. But that means, as we said about the sheriff's bond, that the county judge executive is only the approving officer. Also note that the county judge executive must approve other bonds: the coroner (KRS 72.010), the sheriff (KRS 134.230 and 70.020), the county clerk (KRS 62.055), and the constable (KRS 70.310). But in all those situations the county judge executive is merely the approving officer.
To require the county judge executive to execute another's bond would be to engage in an absurdity. Judge Cammack wrote in Swift v. Southeastern Greyhound Lines, 294 Ky. 137, 171 S.W.2d 49 (1943) 51, that "It is never to be presumed that the legislature intended to enact an absurd statute. . .". It is also absurd to say that the county judge executive would in effect approve his own bond.
CONCLUSION
The county judge executive is required, by KRS 134.250 and 71.010, to review and approve, if properly executed, a sheriff's bond and a jailer's bond. He is not required to join in the execution of the bond himself.