Request By:
David L. Harrington, Esq.
Calloway County Attorney
Opinion
Opinion By: Gregory D. Stumbo, Attorney General; James M. Herrick, Assistant Attorney General
Opinion of the Attorney General
Prior to 1994, KRS 69.300 required assistant county attorneys to reside in the county in which the county attorney was elected. OAG 92-9; OAG 82-418. The amended version of that section, enacted in 1994, provides that assistant county attorneys may also reside "within thirty (30) miles of the county line, or in a contiguous county."
The question presented is whether this 30-mile distance is to be calculated in a straight line "as the crow flies" or according to the mileage that would have to be traveled along existing roads to reach the county line. As there are no published cases or prior opinions interpreting the provision, this is an issue of first impression.
Although one Kentucky case,
Hunt Club, Inc. v. Moberly, 407 S.W.2d 148 (Ky. 1966), has interpreted a statute as requiring a distance measurement to be taken by following the streets, that case is instructive by what distinguishes it from the present situation. The statute construed in Hunt Club, KRS 243.220, prohibited the issuance of alcoholic beverage licenses for premises within 200 feet of a school or church building, and expressly stated: "The measurement shall be taken on the street on which the licensed premises are located." Accordingly, the Court noted: "By reading the latter part of the statute relative to making the 'measurement, ' it is apparent the Legislature means that the measurement should be taken 'on the street' where people travel, not as the crow flies. " Id. at 149.
By contrast, KRS 69.300 contains no express language or implication to the effect that the 30-mile perimeter around the county should be measured "on the street" or in any manner other than a straight line. "In the absence of any specific statutory provision governing the manner of measurement of distances, distance is to be measured along the shortest straight line, on a horizontal plane, and not along the course of a highway, or along the usual traveled way." 79 AM.JUR.2d, Weights & Measures, § 46, p. 73. 1 It is evident from Hunt Club that the General Assembly was capable of specifying street measurement if it wished.
The Appellate Court of Connecticut recently addressed this issue in construing a planning and zoning statute that prohibited more than one planned residential development from being located within one mile of another such development. Conducting a thorough analysis of cases from various state and federal courts on the subject of measuring statutory distances, the court found the straight-line method applicable, reasoning in part as follows:
In our view, the straight line method of measuring distance renders [the statute] effective and workable, and avoids the unreasonable and bizarre results that occur from the use of the roadway method. Using the roadway method could involve inconsistencies in its application that could result in impermissibly arbitrary enforcement. For example, is distance measured "building to building" or property line to property line? Is it measured using the center of the roadway, or the right or left boundary of the roadway? Additionally, a bizarre result could occur if a distance measured using the center of the roadway is less than one mile, but measured on the outside of the roadway, due to a curve, is greater than one mile. As the United States District Court for the Eastern District of Pennsylvania has noted, adopting a method of measurement other than the straight line method would create uncertainty, generate needless debate and thwart a readily ascertainable distance.
Trumbull Falls, LLC v. Planning & Zoning Comm'n of Town of Trumbull, 902 A.2d 706, 712 (Conn. App. 2006) (citing
U.S. v. Blount, 940 F.Supp. 720, 723 (E.D. Pa. 1996), aff'd sub nom.
U.S. v. Riddick, 100 F.3d 949 (3d Cir. 1996), cert. denied, 519 U.S. 1083 (1997)), certification denied, 908 A.2d 545 (Conn. 2006).
This result is in accord with the modern rule among the federal courts as to the interpretation of the so-called "100-mile bulge" where a district court's jurisdiction to issue a summons or subpoena can extend outside the boundaries of its district under Fed. R. Civ. P. 4(k)(1)(B) and 45(b)(2). The more recent cases hold that this distance is to be measured along a straight line on a map, rather than along an ordinary route of public travel. See, e.g.,
Cook v. Atchison, Topeka & Santa Fe Ry. Co., 816 F.Supp. 667 (D. Kan. 1993);
Langsam-Borenstein Partnership by Langsam v. NOC Enterprises, Inc., 137 F.R.D. 217 (E.D. Pa. 1990);
Hill v. Equitable Bank, Nat'l Ass'n, 115 F.R.D. 184 (D. Del. 1987);
SCM Corp. v. Xerox Corp., 76 F.R.D. 214 (D. Conn. 1977).
Although few published cases specifically discuss the calculation of distances contained in statutory residency requirements, the Supreme Judicial Court of Massachusetts has addressed the subject. In
Burke v. Chief of Police of Newton, 373 N.E.2d 949 (Mass. 1978), a statute required a newly appointed police officer or firefighter for a city or town to "establish his residence within such city or town or at any other place in the commonwealth that is within ten miles of the perimeter of such city or town." ( See companion case,
Doris v. Police Comm'r of Boston, 373 N.E.2d 944, 947 n.2 (Mass. 1978).) Faced with this substantially identical language to that appearing in KRS 69.300, the court reasoned as follows:
A "mile" is "a measure of distance. " [Dictionary citation omitted.] It is not a description of how to measure that distance. ? Had the Legislature desired the method of measurement to be by following existing roads we assume it would have used the term "road miles. " The use of the term "mile" without the qualifying adjective to mean "road miles" is to insert into the statute a word not found therein.
Nor is the construction urged on us by the defendant a reasonable one. To hold that conformity to the statutes depends on the road distance between an officer's home and the nearest boundary of the city or town of employment would be to subject such an officer to unpredictable future events over which he has no control. An officer could find himself suddenly in noncompliance by the closing of a road, the conversion of a road to one-way traffic, or perhaps even the installation of a rotary. Absent clear legislative language to work such a result, we interpret the statute in such a way as to avoid the substantial potential for confusion and uncertainty that would otherwise exist. We think that the term "ten miles" means miles as may be computed by measuring the straight line distance between two points on a map.
Burke, supra, 373 N.E.2d at 951. If this construction is reasonable for police officers and firefighters, who often have to respond promptly in emergency situations, it is a fortiori reasonable for assistant county attorneys, who are not emergency response personnel.
Conclusion
It is therefore our opinion that the 30 miles from the county line referred to in KRS 69.300 should be measured as a straight line on a map, rather than in terms of driving distance on existing roads.
Footnotes
Footnotes
1 The encyclopedia mentions an exception noted in Stark County v. Henry County, 158 N.E. 116, 118 (Ill. 1927), where "the distance is between cities, where mileage is to be computed, or where the context indicates that the distance is to be traveled. " None of these is the case with KRS 69.300, which simply sets forth a residency requirement among the qualifications for the office.