Request By:
Mr. Leroy Hager
Jessamine County Sheriff
Courthouse
Nicholasville, Kentucky 40356
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
One of your deputy sheriffs, appointed in September 1983, has resided in Jessamine County and the State of Kentucky for eleven (11) months. You assumed he was eligible and qualified for that office under KRS 15.335, despite the two year county residency provision of KRS 61.300. You base your belief upon three opinions of this office.
KRS 61.300(2) requires that a deputy sheriff (among other nonelective peace officers) must have resided in the county wherein he is appointed to serve for a period of at least two (2) years.
KRS 15.335 provides that no person shall be disqualified from holding a position as a peace officer by reason of his residence or voting eligibility, except as provided in the constitution. Thus KRS 15.335, by implication, repealed the residential requirements of KRS 61.300(2), originally KRS 61.300(1)(b), as relates to a deputy sheriff. A deputy sheriff is not an officer as used in certain sections of the Kentucky Constitution. See §§ 161, 235 and 246, Kentucky Constitution; and City of Newport v. Schindler, Ky., 449 S.W.2d 17 (1970).
KRS 15.335 was enacted in 1968 and has not been amended. However, KRS 61.300 was amended in 1974 and 1976, leaving the provision, that a nonelective peace officer must have resided in the county of appointment for at least two (2) years, intact. In the 1980 amendment (Ch. 24, Section 1), KRS 61.300(1)(b) reads: "He has resided in the county wherein he is appointed to serve for a period of least two (2) years; subsection (b) shall apply only to deputy sheriffs, deputy constables, and to special local peace officers appointed pursuant to KRS 61.360." (Emphasis added). The statutory reviser now carries KRS 61.300(1)(b) as KRS 61.300(2).
It has been pointed out that "An intermediate statute (here KRS 15.335) which has been superimposed upon the original enactment (KRS 61.300) as a modification of its provisions is likewise not repealed by the reenactment of the original statute, but is construed as being continued in force to modify the reenacted statute in the same manner that it did the original enactment." Sutherland, Statutory Construction, Vol. 1A, § 23.29.
However, the amendment of KRS 61.300 in 1980 is not a mere reenactment. As pointed out above, there was added to KRS 61.300 the provision that the two year residence requirement was to only apply to deputy sheriffs, deputy constables, and special local peace officers appointed under KRS 61.360. This made it clear that "other" nonelective peace officers are not under the two years residence requirement of KRS 61.300. Such other nonelective peace officers include: deputy coroners, deputy jailers, marshals, and policemen (city and county). See KRS 446.010(24). This positive and new division of nonelective peace officers into two groups, one group falling under KRS 61.300(2) and the other group not falling under KRS 61.300(2), indicates to us that the General Assembly intended to repeal by strong implication KRS 15.335 as relates to deputy sheriffs, deputy constables and special local peace officers appointed under KRS 61.360. To that extent we are of the opinion that KRS 61.300(2), as amended in 1980, repealed by strong implication the waiver statute, KRS 15.335. In Sutherland Statutory Construction, Vol. 1A, § 23.28, we find this:
". . . Where a statute has been amended and changed by a later enactment, the reaffirmation of the statute in its original form operates to repeal any inconsistent amendments and modifications which have been engrafted upon the statute since its original enactment." (Emphasis added).
Thus the amendment of 1980 of KRS 61.300(2) is inconsistent with the earlier (1968) KRS 15.335; and the latter statute is repealed by implication, to the extent that it is inconsistent with KRS 61.300(2).
CONCLUSION
It is our opinion that KRS 61.300(2) is operative and repeals by implication KRS 15.335. Thus a deputy sheriff is required to have resided in the county of appointment for a period of at least two (2) years.