Request By:
William F. Ivers, Jr., Esq.
Henry County Attorney
P.O. Box 108
New Castle, Kentucky 40050
Opinion
Opinion By: David L. Armstrong, Attorney General; Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter asking whether the elected coroner may also hold the position of deputy jailer. The deputy jailer position is a 40 hour per week job while the post of coroner in your county is a part time position paying $2,400.00 annually. You have reviewed the incompatibility statute and in your opinion a person is not prohibited from holding both of the positions involved here at the same time.
KRS 61.080(2) provides as follows:
"The offices of justice of the peace, county judge/executive, surveyor, sheriff, deputy sheriff, coroner, constable, jailer and clerk or deputy clerk of a court, shall be incompatible, the one with any of the others. The office of county judge/executive and county school superintendent are incompatible. "
While the statute clearly prohibits a person from holding at the same time the offices of coroner and jailer, the statute does not list the office of deputy jailer. In the above-quoted statutory provision several deputy positions are mentioned, including the offices of deputy sheriff and deputy clerk of a court. However, the deputy positions relative to other officers such as jailers, coroners and constables, are not mentioned in KRS 61.080(2).
This office dealt with the position of deputy jailer in regard to the incompatibility provisions of KRS 61.080(2) in OAG 70-256, a copy of which is enclosed. The opinion noted that the statute prohibits a person from holding the offices of constable and jailer at the same time, and since the jailer and deputy jailer have the same powers and duties, the opinion concluded that the offices of constable and deputy jailer are incompatible under KRS 61.080(2).
The court in Louisville Water Co. v. Wells, Ky.App., 664 S.W.2d 525 (1984) and in part that, "A general rule of statutory construction is that the enumeration of particular things excludes other items which are not specifically mentioned." In Smith v. Wedding, Ky., 303 S.W.2d 322 (1957), the court said in part as follows:
"It is a primary rule of statutory construction that the enumeration of particular things excludes the idea of something else not mentioned. Bloemer v. Turner, 281 Ky. 832, 137 S.W.2d 387. A working interest is not mentioned specifically in KRS 292.010 (7), although there is no doubt that in 1926, when the statute was first enacted, it was, as it is now, a common means of financing oil exploration. We conclude that a working interest was not intended by the legislature to be covered by the provisions of the statute."
Finally, the court in Bloemer v. Turner, 281 Ky. 832, 137 S.W.2d 387, 390 (1940), stated in part:
". . . By specifying the publication only of the percentages of the nutritious quality of the whole and by confining the imposition of penalties to that, the legislaturte manifested the intent not to require other percentages to be stated on the label. Logic and experience developed the maxim expressio unius est exclusio alterius, - 'The enumeration of particular things excludes the idea of something else not mentioned.' This is a primary rule of statutory construction. Hughes v. Wallace, Ky., 118 S.W. 324; 25 R.C.L. 932."
Therefore, it is the opinion of the Attorney General that the list of offices set forth in KRS 61.080(2), which are incompatible, the one with any of the others, does not apply to a deputy jailer since that office is not listed in the statute. Thus, a person is not prohibited by KRS 61.080(2) from holding at the same time the offices of county coroner and conflicts with this opinion that prior opinion is overruled and withdrawn.