Request By:
Ms. Ann Z. Stewart
General Counsel
Office of Secretary of State
Frankfort, Kentucky 40601
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your question:
"Before whom should a notary public-special commission take his oath of office? "
KRS 423.110 at the outset provides in part that "Notarial acts may be performed outside this state for use in this state with the same effect as if performed by a notary public of this state by the following persons authorized pursuant to the laws and regulations of other governments in addition to any other person authorized by the laws and regulations of this state:"
There follows subsection (6) of KRS 423.110:
"A person, either a resident or a non-resident of Kentucky, who is appointed by the governor of Kentucky to perform notarial acts in or outside this state covering writings prepared for recordation in this state."
Your office has taken the position that a notary public-special commission is an officer required to take the official oath set out in KRS 62.020.
KRS 423.010 and 423.110 must be read together under the doctrine of in pari materia, since they both involve the appointment of notaries. See
Economy Optical Co. v. Kentucky Bd. of Optometric Examiners, Ky., 310 S.W.2d 783 (1958). KRS 423.010 provides in part that "Before a notary acts, he must take an oath before the county judge executive of his county that he will honestly and diligently discharge the duties of his office." KRS 62.020 provides that "The official oath of any officer may be administered by any judge, county judge executive, notary public, clerk of a court, or justice of the peace, within his district or county." The oath to be taken before one of the officers mentioned in KRS 62.020 is the oath contained in § 228, Kentucky Constitution.
In summary, all notary publics, residents of Kentucky, including those appointed under KRS 423.110, must take the oath mentioned in KRS 423.010 before the county judge executive of his county (where the notary resides) , and must take the oath prescribed in § 228, Constitution, before one of the applicable officers mentioned in KRS 62.020.
Section 165, Kentucky Constitution, characterizes a notary public as an "office", stating that a "notary public . . . . shall not be ineligible to hold any other office mentioned in this section." (Emphasis added). KRS 423.010 recognizes a notary public as an "office". It provides in part that "Before a notary acts, he must take an oath before the county judge executive of his county that he will honestly and diligently discharge the duties of his office." (Emphasis added). And finally, the courts have recognized that the notary public holds an office as such. In
Harbour-Pitt Shoe Co. v. Dixon, Ky., 60 S.W. 186 (1901) 188, the court observed: "The office of notary public is of legislative creation, and is filled by appointment of the governor. " (Emphasis added). See also
Sousley v. Citizens Bank, 168 Ky. 150, 181 S.W. 960 (1916) 961, in which the court refers to the expiration of the "notary's term of office." (Emphasis added).
However, we must point out that as relates to KRS 423.110(6), we are speaking only of residents of Kentucky who are appointed by the Governor of Kentucky as Special notaries. You see § 228 of the Kentucky Constitution requires an officer taking the oath of office to be a citizen or resident of
Kentucky. Wagers v. Sizemore, 222 Ky. 306, 300 S.W. 918 (1927) 920. In addition, § 234 of the Kentucky Constitution requires all civil officers of Kentucky to reside in Kentucky. That provision of KRS 423.110(6) relating to the appointment of a special notary living in a foreign jurisdiction is unconstitutional. However, under the principle of severability, as expressed in KRS 446.090, KRS 423.110, minus the offending language involving appointing non-residents, is constitutional.
State Property & Buildings v. Hays, Ky., 346 S.W.2d 3 (1961) 8. The appointed resident of Kentucky could engage in such notarial acts in a foreign jurisdiction, provided that such performance of that function was not in conflict with the law of that foreign jurisdiction. This is especially true, since it is established American law that the statutory law of one state, of its own force, can have no extraterritorial effect or force.
Louisville & N.R. Co. v. Burkhart, 154 Ky. 92, 157 S.W. 18 (1913) 19. In that case Judge Settle wrote that "The statute of another state has, of course, no extraterritorial force, but rights acquired under it will always, in comity, be enforced, if not against the public policy of the laws of the former." Subject to certain limitations, foreign laws will be recognized and given effect extraterritorially. 16 Am.Jur.2d, Conflict of Laws, §§ 7 and 8. See
JamesDickinson Farm Mortg. Co. v. Harry, 273 U.S. 119, 71 L. Ed. 569, 47 S. Ct. 308 (1926). Thus the special notary, who lives in Kentucky, may, under KRS 423.110, engage in notarial acts in a foreign jurisdiction, provided that such exercise of function does not violate the public policy of or is not in basic conflict with the law of the foreign jurisdiction. The extraterritorial recognition of KRS 433.110 is only based upon the principles of comity.
Hilton v. Guyot, 159 U.S. 113, 40 L. Ed. 95, 16 S. Ct. 139 (1894).
We believe that your instructions should be amended in conformity with the above conclusions.