Opinion
Opinion By: Chris Gorman, Attorney General; Thomas R. Emerson, Assistant Attorney General
Your recent letter asks whether a city of the sixth class may establish and maintain a police force. You refer to the repeal of KRS 95.790 and the enactment of KRS 82.082 (the municipal "home rule" provision).
KRS 95.790 and KRS 95.800, involving the city marshal in cities of the sixth class, were repealed in 1980 when the General Assembly enacted the new municipal code, including KRS 82.082.
This office said in part in OAG 81-48, a copy of which is enclosed, that under the new municipal code the establishment of a police department by a city is a legislative matter of a permanent nature which must be accomplished by the enactment of an appropriate ordinance.
In connection with the establishment of a municipal police department the following appears in 62 C.J.S. Municipal Corporations § 563:
The establishment of a police force in cities constitutes part of the measures adopted by the state or municipality to preserve peace and protect the legal rights of the citizens. The 'police force' of a city is a body of men appointed to preserve its peace and good order. A police force is peculiar in its formation and in its relation to the city government; it resembles a military force in many respects. The term 'police' has been defined as an organized civil force for maintaining order, preventing and detecting crime, and enforcing the laws; the body of men by which the municipal laws and regulations of a city, town, or district are enforced.
While the statutes dealing with the position of city marshal in a city of the sixth class were repealed in 1980, the enactment of the municipal home rule provision in 1980 gives sixth class cities the authority and flexibility to meet their law enforcement needs. Rather than restricting sixth class cities to the somewhat archaic position of a city marshal, the repeal of KRS 95.790 and KRS 95.800 enables these cities to enact ordinances to meet their specific law enforcement needs.
KRS 82.082, the municipal "home rule" provision, provides in part that a city may exercise any power and perform any function within its boundaries that is in furtherance of a public purpose of the city and not in conflict with a constitutional provision or statute. KRS 82.082(2) states:
A power or function is in conflict with a statute if it is expressly prohibited by a statute or there is a comprehensive scheme of legislation on the same general subject embodied in the Kentucky Revised Statutes including, but not limited to, the provisions of KRS Chapters 95 and 96.
There is no statute prohibiting cities of the sixth class from establishing and maintaining a police department. With the repeal of KRS 95.790 and KRS 95.800, there is no comprehensive scheme of legislation dealing with city marshals or police protection measures in cities of the sixth class. A city of the sixth class since 1980 has been able to invoke the municipal home rule provisions to meet its police protection and law enforcement needs.
With the repeal of KRS 95.800 the jurisdiction of a police force of a sixth class city would be confined to within the municipal boundaries. See OAG 80-385 and OAG 82-599, copies of which are enclosed.
Thus, since the providing of police services is a basic municipal function, and since KRS 95.790 and KRS 95.800 have been repealed, a sixth class city may utilize the provisions of KRS 82.082 to enact an ordinance which creates and maintains a municipal police department.