CHAPTER 446 Construction of Statutes

446.010. Definitions for statutes generally.

As used in the statute laws of this state, unless the context requires otherwise:

  1. “Action” includes all proceedings in any court of this state;
  2. “Animal” includes every warm-blooded living creature except a human being;
  3. “Attorney” means attorney-at-law;
  4. “Bequeath” and “devise” mean the same thing;
  5. “Bequest” and “legacy” mean the same thing, and embrace either real or personal estate, or both;
  6. “Business trust” includes, except when utilized in KRS Chapter 386, a “statutory trust” as organized under KRS Chapter 386A;
  7. “Case plan” means an individualized accountability and behavior change strategy for supervised individuals that:
    1. Targets and prioritizes the specific criminal risk factors of the individual based upon his or her assessment results;
    2. Matches the type and intensity of supervision and treatment conditions to the individual’s level of risk, criminal risk factors, and individual characteristics, such as gender, culture, motivational stage, developmental stage, and learning style;
    3. Establishes a timetable for achieving specific behavioral goals, including a schedule for payment of victim restitution, child support, and other financial obligations; and
    4. Specifies positive and negative actions that will be taken in response to the supervised individual’s behaviors;
  8. “Certified mail” means any method of governmental, commercial, or electronic delivery that allows a document or package to have proof of:
    1. Sending the document or package;
    2. The date the document or package was delivered or delivery was attempted; and
    3. The signature of the receipt of the document or package;
  9. “Company” may extend and be applied to any corporation, company, person, partnership, joint stock company, or association;
  10. “Corporation” may extend and be applied to any corporation, company, partnership, joint stock company, or association;
  11. “Criminal risk factors” are characteristics and behaviors that, when addressed or changed, affect a person’s risk for committing crimes. The characteristics may include but are not limited to the following risk and criminogenic need factors: antisocial behavior; antisocial personality; criminal thinking; criminal associates; dysfunctional family; low levels of employment or education; poor use of leisure and recreation; and substance abuse;
  12. “Cruelty” as applied to animals includes every act or omission whereby unjustifiable physical pain, suffering, or death is caused or permitted;
  13. “Directors,” when applied to corporations, includes managers or trustees;
  14. “Domestic,” when applied to a corporation, partnership, business trust, or limited liability company, means all those incorporated or formed by authority of this state;
  15. “Domestic animal” means any animal converted to domestic habitat;
  16. “Evidence-based practices” means policies, procedures, programs, and practices proven by scientific research to reliably produce reductions in recidivism when implemented competently;
  17. “Federal” refers to the United States;
  18. “Foreign,” when applied to a corporation, partnership, limited partnership, business trust, statutory trust, or limited liability company, includes all those incorporated or formed by authority of any other state;
  19. “Generally accepted accounting principles” are those uniform minimum standards of and guidelines to financial accounting and reporting as adopted by the National Council on Governmental Accounting, under the auspices of the Municipal Finance Officers Association and by the Financial Accounting Standards Board, under the auspices of the American Institute of Certified Public Accountants;
  20. “Graduated sanction” means any of a wide range of accountability measures and programs for supervised individuals, including but not limited to electronic monitoring; drug and alcohol testing or monitoring; day or evening reporting centers; restitution centers; reentry centers; disallowance of future earned compliance credits; rehabilitative interventions such as substance abuse or mental health treatment; reporting requirements to probation and parole officers; community service or work crews; secure or unsecure residential treatment facilities or halfway houses; and short-term or intermittent incarceration;
  21. “Humane society,” “society,” or “Society for the Prevention of Cruelty to Animals,” means any nonprofit corporation, organized under the laws of this state and having as its primary purpose the prevention of cruelty to animals;
  22. “Issue,” as applied to the descent of real estate, includes all the lawful lineal descendants of the ancestors;
  23. “Land” or “real estate” includes lands, tenements, and hereditaments and all rights thereto and interest therein, other than a chattel interest;
  24. “Legatee” and “devisee” convey the same idea;
  25. “Livestock” means cattle, sheep, swine, goats, horses, alpacas, llamas, buffaloes, or any other animals of the bovine, ovine, porcine, caprine, equine, or camelid species;
  26. “May” is permissive;
  27. “Month” means calendar month;
  28. “Oath” includes “affirmation” in all cases in which an affirmation may be substituted for an oath;
  29. “Owner” when applied to any animal, means any person having a property interest in such animal;
  30. “Partnership” includes both general and limited partnerships;
  31. “Peace officer” includes sheriffs, constables, coroners, jailers, metropolitan and urban-county government correctional officers, marshals, policemen, and other persons with similar authority to make arrests;
  32. “Penitentiary” includes all of the state penal institutions except the houses of reform;
  33. “Person” may extend and be applied to bodies-politic and corporate, societies, communities, the public generally, individuals, partnerships, joint stock companies, and limited liability companies;
  34. “Personal estate” includes chattels, real and other estate that passes to the personal representative upon the owner dying intestate;
  35. “Pretrial risk assessment” means an objective, research-based, validated assessment tool that measures a defendant’s risk of flight and risk of anticipated criminal conduct while on pretrial release pending adjudication;
  36. “Registered mail” means any governmental, commercial, or electronic method of delivery that allows a document or package to have:
    1. Its chain of custody recorded in a register to enable its location to be tracked;
    2. Insurance available to cover its loss; and
    3. The signature of the recipient of the document or package available to the sender;
  37. “Regular election” means the election in even-numbered years at which members of Congress are elected and the election in odd-numbered years at which state officers are elected;
  38. “Risk and needs assessment” or “validated risk and needs assessment” means an actuarial tool scientifically proven to determine a person’s risk to reoffend and criminal risk factors, that when properly addressed, can reduce that person’s likelihood of committing future criminal behavior;
  39. “Shall” is mandatory;
  40. “State” when applied to a part of the United States, includes territories, outlying possessions, and the District of Columbia; “any other state” includes any state, territory, outlying possession, the District of Columbia, and any foreign government or country;
  41. “State funds” or “public funds” means sums actually received in cash or negotiable instruments from all sources unless otherwise described by any state agency, state-owned corporation, university, department, cabinet, fiduciary for the benefit of any form of state organization, authority, board, bureau, interstate compact, commission, committee, conference, council, office, or any other form of organization whether or not the money has ever been paid into the Treasury and whether or not the money is still in the Treasury if the money is controlled by any form of state organization, except for those funds the management of which is to be reported to the Legislative Research Commission pursuant to KRS 42.600 , 42.605 , and 42.615 ;
  42. “Supervised individual” means an individual placed on probation by a court or serving a period of parole or post-release supervision from prison or jail;
  43. “Sworn” includes “affirmed” in all cases in which an affirmation may be substituted for an oath;
  44. “Treatment” when used in a criminal justice context, means targeted interventions that focus on criminal risk factors in order to reduce the likelihood of criminal behavior. Treatment options may include but shall not be limited to community-based programs that are consistent with evidence-based practices; cognitive-behavioral programs; faith-based programs; inpatient and outpatient substance abuse or mental health programs; and other available prevention and intervention programs that have been scientifically proven to produce reductions in recidivism when implemented competently. “Treatment” does not include medical services;
  45. “United States” includes territories, outlying possessions, and the District of Columbia;
  46. “Vacancy in office,” or any equivalent phrase, means such as exists when there is an unexpired part of a term of office without a lawful incumbent therein, or when the person elected or appointed to an office fails to qualify according to law, or when there has been no election to fill the office at the time appointed by law; it applies whether the vacancy is occasioned by death, resignation, removal from the state, county or district, or otherwise;
  47. “Violate” includes failure to comply with;
  48. “Will” includes codicils; “last will” means last will and testament;
  49. “Year” means calendar year;
  50. “City” includes town;
  51. Appropriation-related terms are defined as follows:
    1. “Appropriation” means an authorization by the General Assembly to expend, from public funds, a sum of money not in excess of the sum specified, for the purposes specified in the authorization and under the procedure prescribed in KRS Chapter 48;
    2. “Appropriation provision” means a section of any enactment by the General Assembly which is not provided for by KRS Chapter 48 and which authorizes the expenditure of public funds other than by a general appropriation bill;
    3. “General appropriation bill” means an enactment by the General Assembly that authorizes the expenditure of public funds in a branch budget bill as provided for in KRS Chapter 48;
  52. “Mediation” means a nonadversarial process in which a neutral third party encourages and helps disputing parties reach a mutually acceptable agreement. Recommendations by mediators are not binding on the parties unless the parties enter into a settlement agreement incorporating the recommendations;
  53. “Biennium” means the two (2) year period commencing on July 1 in each even-numbered year and ending on June 30 in the ensuing even-numbered year;
  54. “Branch budget bill” or “branch budget” means an enactment by the General Assembly which provides appropriations and establishes fiscal policies and conditions for the biennial financial plan for the judicial branch, the legislative branch, and the executive branch, which shall include a separate budget bill for the Transportation Cabinet;
  55. “AVIS” means the automated vehicle information system established and maintained by the Transportation Cabinet to collect titling and registration information on vehicles and boats and information on holders of motor vehicle operator’s licenses and personal identification cards;
  56. “Cooperative,” except in KRS Chapter 272, includes a limited cooperative association; and
  57. “Unmanned aircraft system” means an aircraft that is operated without the possibility of direct human interaction from within or on the aircraft and includes everything that is on board or otherwise attached to the aircraft and all associated elements, including communication links and the components that control the small unmanned aircraft that are required for the safe and efficient operation of the unmanned aircraft in the national airspace system.

HISTORY: 446, 451, 452, 456, 457, 458, 463, 467, 469, 575, 751, 1521: amend. Acts 1966, ch. 255, § 277; 1974, ch. 406, § 331; 1976 (Ex. Sess.), ch. 14, § 462, effective January 2, 1978; 1980, ch. 16, § 2; 1980, ch. 188, § 181, effective July 1, 1980; 1982, ch. 382, § 30, effective July 15, 1982; 1984, ch. 2, § 1, effective January 26, 1984; 1990, ch. 138, § 3, effective January 3, 1994; 1994, ch. 387, § 31, effective July 15, 1994; 1994, ch. 389, § 110, effective July 15, 1994; 1998, ch. 261, § 2, effective July 15, 1998; 2001, ch. 140, § 3, effective June 21, 2001; 2006, ch. 149, § 237, effective July 12, 2006; 2009, ch. 78, § 42, effective June 25, 2009; 2010, ch. 61, § 1, effective July 15, 2010; 2010, ch. 151, § 120, effective January 1, 2011; 2011, ch. 2, § 3, effective June 8, 2011; 2012, ch. 81, § 126, effective July 12, 2012; 2012, ch. 139, § 2, effective July 12, 2012; 2012, ch. 160, § 139, effective July 12, 2012; 2017 ch. 129, § 30, effective June 29, 2017; 2017 ch. 158, § 94, effective June 29, 2017; 2018 ch. 26, § 4, effective July 14, 2018.

Legislative Research Commission Notes.

(3/30/90). The definition of “animal” contained in subsection (2) of this section does not reflect the amendatory language contained in Senate Bill 263 of the 1980 Regular Session of the Kentucky General Assembly because the 1980 Senate Journal indicates that Senate Bill 263 was vetoed by Governor John Y. Brown, Jr., on April 9, 1980, and recommitted by action of the Senate to its Committee on Appropriations and Revenue on April 14, 1980. Senate Bill 263 proposed to change subsection (2) to read as follows: “‘Animal’ includes every warmblooded living creature except birds and human beings;”. By a letter dated March 16, 1990, the Attorney General has informally opined that Governor Brown’s veto of Senate Bill 263 was not timely; that letter has exhibits showing that the bill was received by the Governor on March 28, 1980, and that his veto was received by the Senate Clerk on April 10, 1980.

NOTES TO DECISIONS

  1. Application.
  2. Action.
  3. Animals.
  4. Any Other State.
  5. Bequeath.
  6. Cattle.
  7. Company.
  8. Corporation.
  9. — Association.
  10. — Joint Stock Company.
  11. Issue.
  12. Land or Real Estate.
  13. — Leases.
  14. Legatee.
  15. Month.
  16. Peace Officer.
  17. Penitentiary.
  18. Person.
  19. Personal Estate.
  20. Shall.
  21. State Funds.
  22. Sworn Statement.
  23. Vacancy in Office.
  24. — School Boards.
  25. Year.
  26. — Leap Year.
1. Application.

Though this section and KRS 446.020 applied only to the construction of statutes, it could be applied in the interpretation of contracts, when the facts clearly demonstrated the necessity therefor in order to carry out the plain intention of the parties. Cleveland Orphan Institution v. Helm, 74 S.W. 274, 24 Ky. L. Rptr. 2485 , 1903 Ky. LEXIS 310 (Ky. Ct. App. 1903). See Stephan v. Kentucky Valley Distilling Co., 275 Ky. 705 , 122 S.W.2d 493, 1938 Ky. LEXIS 479 ( Ky. 1938 ).

Rules of statutory construction require that this section be construed to carry out the intent of the legislature. Hardin County Fiscal Court v. Hardin County Bd. of Health, 899 S.W.2d 859, 1995 Ky. App. LEXIS 117 (Ky. Ct. App. 1995).

Courts are required to interpret the statutes in such a way as to carry out the intent of the Kentucky Legislature, while ensuring no part of the statutes are made meaningless and ineffectual. Commonwealth v. PSC of Ky., 2008 Ky. App. LEXIS 29 (Ky. Ct. App. Feb. 1, 2008), rev'd, 320 S.W.3d 660, 2010 Ky. LEXIS 217 ( Ky. 2010 ).

2. Action.

KRS 30.200 (repealed), giving an attorney a lien when an action is prosecuted to a recovery of money or property, applies to any kind of legal proceeding, including proceedings to enforce a judgment previously secured by the client. McIntosh v. Bach, 110 Ky. 701 , 62 S.W. 515, 23 Ky. L. Rptr. 74 , 1901 Ky. LEXIS 123 ( Ky. 1901 ).

Proceeding by revenue agent to assess omitted property is an action within the meaning of the statutes of limitation. Commonwealth v. Nute, 115 Ky. 239 , 72 S.W. 1090, 24 Ky. L. Rptr. 2138 , 1903 Ky. LEXIS 90 ( Ky. 1903 ). See Chicago, St. Chicago, S. L. & N. O. R. Co. v. Commonwealth, 115 Ky. 278 , 72 S.W. 1119, 24 Ky. L. Rptr. 2124 , 1903 Ky. LEXIS 94 ( Ky. 1903 ).

A proceeding for the probate of a will is an action within the meaning of the statutes of limitation. Cleveland Orphan Institution v. Helm, 74 S.W. 274, 24 Ky. L. Rptr. 2485 , 1903 Ky. LEXIS 310 (Ky. Ct. App. 1903). See Allen v. Froman, 96 Ky. 313 , 28 S.W. 497, 16 Ky. L. Rptr. 634 , 1894 Ky. LEXIS 115 ( Ky. 1894 ); Foster v. Jordan, 130 Ky. 445 , 113 S.W. 490, 1908 Ky. LEXIS 290 ( Ky. 1908 ).

Proceeding against personal representatives to assess for taxation omitted property of decedent was not an action within the meaning of KRS 395.270 , prohibiting the bringing of any action against a decedent’s estate for six (6) months (now two (2) months) after appointment of personal representative. Commonwealth ex rel. Cummins v. Ryan's Ex'rs, 126 Ky. 649 , 104 S.W. 727, 31 Ky. L. Rptr. 1069 , 1907 Ky. LEXIS 87 ( Ky. 1907 ).

A proceeding by way of indictment is an action. Commonwealth v. Spiller, 165 Ky. 758 , 178 S.W. 1089, 1915 Ky. LEXIS 610 ( Ky. 1915 ).

Statute authorizing recovery of a certain fine by action did not prevent recovery by indictment. Commonwealth v. Spiller, 165 Ky. 758 , 178 S.W. 1089, 1915 Ky. LEXIS 610 ( Ky. 1915 ).

3. Animals.

On review, defendant, who was charged with second degree cruelty to animals for having engaged in cockfighting activity, and whose earlier dismissal of the charge was reversed by the Circuit Court, failed to meet his burden of proof that the Governor’s veto of a 1980 amendment to this section, which would have excepted birds from the definition of “animals,” was untimely and invalid; courts of this state are bound to rely upon the text of this section as set forth in determining any issue regarding the precise wording of this section. Munn v. Commonwealth, 889 S.W.2d 49, 1994 Ky. App. LEXIS 146 (Ky. Ct. App. 1994).

4. Any Other State.

Statute applying to corporations “formed under the laws of this or any other state” does not include national banks formed under acts of congress. First Nat'l Bank v. Commonwealth, 33 S.W. 1105, 17 Ky. L. Rptr. 1167 (1896).

5. Bequeath.

Although this section, defining “bequeath,” “devise,” “bequest,” “legacy,” “legatee” and “devisee,” was more particularly applicable to questions involving the construction of statutes, yet it could be used in construing a will. Roberts v. Chenoweth, 112 S.W. 625, 33 Ky. L. Rptr. 1081 (1908).

6. Cattle.

The term “cattle” includes hogs, so that a statute imposing liability upon the owner of cattle running at large for damages done by such cattle will apply so that the owner of hogs is liable for damages done by his hogs while running at large. Woodford v. Hall, 257 S.W.2d 902, 1953 Ky. LEXIS 810 ( Ky. 1953 ). See Campbell v. White, 357 S.W.2d 849, 1962 Ky. LEXIS 146 ( Ky. 1962 ).

7. Company.

KRS 276.430 (now repealed), requiring company operating railroad to maintain comfortable waiting rooms, was applicable to a receiver of a railroad, company having same meaning as person. Commonwealth v. Felton, 107 Ky. 330 , 53 S.W. 1046, 21 Ky. L. Rptr. 1039 , 1899 Ky. LEXIS 175 ( Ky. 1899 ).

8. Corporation.

Word “individual,” as used in statute, may include partnerships and corporations, unless context of statute repels such meaning. National Accounting Co. v. Dorman, 11 F. Supp. 872, 1935 U.S. Dist. LEXIS 1484 (D. Ky.), aff'd, 295 U.S. 718, 55 S. Ct. 835, 79 L. Ed. 1673, 1935 U.S. LEXIS 347 (U.S. 1935).

The definition of corporation contained in Const., § 208 does not control in construing statutes. Commonwealth v. Adams Express Co., 123 Ky. 720 , 97 S.W. 386, 29 Ky. L. Rptr. 1280 , 1906 Ky. LEXIS 210 ( Ky. 1906 ).

A corporation cannot be guilty of homicide. Commonwealth v. Illinois C. R. Co., 152 Ky. 320 , 153 S.W. 459, 1913 Ky. LEXIS 665 ( Ky. 1913 ).

Statute authorizing waterworks corporations or companies to exercise power of eminent domain applied to an individual who operated a waterworks. Thomas v. Horse Cave, 249 Ky. 713 , 61 S.W.2d 601, 1933 Ky. LEXIS 588 ( Ky. 1933 ).

A corporation could be indicted for second-degree manslaughter, a class C felony based on wanton conduct, under KRS 507.040 since the legislature under subsection (12) of KRS 500.080 has expanded the definition of “person” to include corporations to parallel the treatment of corporations in civil actions under this section, has extended liability for criminal offenses to conduct or non-conduct of corporate officers, directors and agents under KRS 502.050 , and has created a penalty structure providing for corporate fines for all classes of crimes under KRS 534.050 . Commonwealth v. Fortner LP Gas Co., 610 S.W.2d 941, 1980 Ky. App. LEXIS 416 (Ky. Ct. App. 1980).

9. — Association.

A business association having 3,000 members was a quasi-corporation and was properly treated as a corporation for the purpose of service of process. Adams Exp. Co. v. Schofield, 111 Ky. 832 , 64 S.W. 903, 23 Ky. L. Rptr. 1120 , 1901 Ky. LEXIS 262 ( Ky. 1901 ).

10. — Joint Stock Company.

Statutes requiring corporations to maintain process agent in state do not apply to joint stock companies. Commonwealth v. Adams Express Co., 123 Ky. 720 , 97 S.W. 386, 29 Ky. L. Rptr. 1280 , 1906 Ky. LEXIS 210 ( Ky. 1906 ).

The general corporation laws did not, by virtue of this section and KRS 446.020 , apply to joint stock companies. Commonwealth v. Adams Express Co., 123 Ky. 720 , 97 S.W. 386, 29 Ky. L. Rptr. 1280 , 1906 Ky. LEXIS 210 ( Ky. 1906 ).

This section does not make a joint stock company a corporation to the extent of relieving members of the association from personal liability for the debts of the association. Roller v. Madison, 172 Ky. 693 , 189 S.W. 914, 1916 Ky. LEXIS 254 ( Ky. 1916 ).

Corporation may include joint stock companies so that joint stock companies may be sued as corporations. American Ry. Express Co. v. Asher, 218 Ky. 172 , 291 S.W. 21, 1927 Ky. LEXIS 123 ( Ky. 1927 ).

11. Issue.

The word “issue,” in KRS 394.400 includes the bastard child of its deceased mother. Cherry v. Mitchell, 108 Ky. 1 , 55 S.W. 689, 21 Ky. L. Rptr. 1547 , 1900 Ky. LEXIS 1 ( Ky. 1 900 ).

The word “issue,” in KRS 391.020 and 394.400 , is used in the same sense, and means any issue that, by statute, may inherit. Cherry v. Mitchell, 108 Ky. 1 , 55 S.W. 689, 21 Ky. L. Rptr. 1547 , 1900 Ky. LEXIS 1 ( Ky. 1 900). See Slone v. Mason Coal & Coke Co., 168 Ky. 697 , 182 S.W. 929, 1916 Ky. LEXIS 618 ( Ky. 1916 ).

The word issue as used in KRS 394.400 is not synonymous with the word “heir,” and hence, the surviving mother of an illegitimate child does not take under a will where the child predeceased the testator. Slone v. Mason Coal & Coke Co., 168 Ky. 697 , 182 S.W. 929, 1916 Ky. LEXIS 618 ( Ky. 1 916). See Cherry v. Mitchell, 108 Ky. 1 , 55 S.W. 689, 21 Ky. L. Rptr. 1547 , 1900 Ky. LEXIS 1 ( Ky. 1900 ).

The word “issue,” in KRS 394.400 , means lineal descendants. Dillender v. Wilson, 228 Ky. 758 , 16 S.W.2d 173, 1929 Ky. LEXIS 657 ( Ky. 1929 ).

“Children,” as used in a will making devise over to children of life tenants, is used in the same sense as “issue,” thereby including grandchildren. Hodge v. Lovell's Trustee, 262 Ky. 509 , 90 S.W.2d 683, 1936 Ky. LEXIS 45 ( Ky. 1936 ).

In a will, “children” will be construed as having the same meaning as “issue,” if such appears from the will to have been testator’s intent. Whittaker v. Fitzpatrick, 268 Ky. 120 , 103 S.W.2d 670, 1937 Ky. LEXIS 409 ( Ky. 1937 ).

12. Land or Real Estate.

Mineral rights are real estate within the meaning of the statutes of limitation. Pond Creek Coal Co. v. Hatfield, 239 F. 622, 1917 U.S. App. LEXIS 2247 (6th Cir. Ky. 1917 ).

Right of way, pipeline embedded in the ground and pumping machinery set in concrete rigidly attached to the ground, are real estate. Cumberland Pipe Line Co. v. Lewis, 17 F.2d 167, 1926 U.S. Dist. LEXIS 1652 (D. Ky. 1926 ).

Although a private passway or right of way is real estate within the meaning of this section, it is not “land” within the meaning of the champerty statute. (KRS 372.070 ). Hegan v. Pendennis Club, 64 S.W. 464, 23 Ky. L. Rptr. 861 , 1901 Ky. LEXIS 326 ( Ky. 1901 ).

A life interest in real property is “real estate,” and therefore an oral conveyance of a life estate is void under the statute of frauds. Miller v. Hart, 122 Ky. 494 , 91 S.W. 698, 29 Ky. L. Rptr. 73 , 1906 Ky. LEXIS 42 ( Ky. 1906 ). See Hampton v. Glass, 116 S.W. 243 ( Ky. 1909 ); Cannon v. Carr, 292 Ky. 793 , 168 S.W.2d 21, 1943 Ky. LEXIS 740 ( Ky. 1943 ).

The interest acquired by the purchaser at an execution sale of encumbered real estate is merely a statutory lien, and is not “real property” within the meaning of the statute of limitations relating to actions to recover real property. Due v. Bankhardt, 151 Ky. 624 , 152 S.W. 786, 1913 Ky. LEXIS 556 ( Ky. 1913 ).

A grant of coal in place, not made in contemplation of immediate severance, is a contract for the sale of land within the meaning of the statutes of frauds. Wakenva Coal Co. v. Johnson, 234 Ky. 558 , 28 S.W.2d 737, 1930 Ky. LEXIS 219 ( Ky. 1930 ).

Sale of standing trees not in contemplation of their immediate removal is a sale of real estate. Wakenva Coal Co. v. Johnson, 234 Ky. 558 , 28 S.W.2d 737, 1930 Ky. LEXIS 219 ( Ky. 1930 ).

An exclusive easement constitutes land. Anderson v. Norfolk & W. R. Co., 324 S.W.2d 413, 1959 Ky. LEXIS 373 ( Ky. 1959 ).

13. — Leases.

Interest of lessee in 99 year lease of real estate, with privilege of renewal in perpetuity, is taxable property whether considered to be real estate or personalty. Purcell v. Lexington, 186 Ky. 381 , 216 S.W. 599, 1919 Ky. LEXIS 226 ( Ky. 1919 ), writ of error dismissed, 253 U.S. 476, 40 S. Ct. 583, 64 L. Ed. 1021, 1920 U.S. LEXIS 1430 (U.S. 1920).

A lease for a term of years is personal property. Dyer v. Owens, 204 Ky. 59 , 263 S.W. 663, 1924 Ky. LEXIS 389 ( Ky. 1924 ). See Combs Lumber Co. v. Chinn, 90 S.W. 251, 28 Ky. L. Rptr. 715 (1906).

The interest of a married man in a one (1) year lease of farm land is personal property within the meaning of subsection (2) of KRS 404.020 . Dark Tobacco Growers' Co-op. Ass'n v. Alexander, 208 Ky. 572 , 271 S.W. 677, 1925 Ky. LEXIS 333 ( Ky. 1925 ).

Interest of lessee in leases running for 30 to 50 years, with privilege of renewal, giving lessee right to mine coal, cut and remove timber and building stone, use and consume wells and springs, and granting right of way over other property is real estate within the meaning of KRS 426.520 . Wakenva Coal Co. v. Johnson, 234 Ky. 558 , 28 S.W.2d 737, 1930 Ky. LEXIS 219 ( Ky. 1930 ).

The interest of a lessee in a coal mining lease running for a long term of years, and giving the right to remove coal, and the right to erect tipples, miners’ houses and other fixtures, is real estate for tax purposes. Commonwealth v. Elkhorn-Piney Coal Min. Co., 241 Ky. 245 , 43 S.W.2d 684, 1931 Ky. LEXIS 51 ( Ky. 1931 ).

14. Legatee.

“Legacy,” as used in KRS 394.510 , includes a devise of real estate, and where testator directs executor to sell real estate and from the proceeds pay his debts, his creditors have a lien on the real estate. Hurst v. Davidson, 116 Ky. 351 , 76 S.W. 37, 25 Ky. L. Rptr. 555 , 1903 Ky. LEXIS 192 ( Ky. 1903 ).

Will giving residue of estate to “all my legatees above named, in the proportion their respective legacies bear to the total of all such legacies,” is held to indicate testator’s intention to divide residue among legatees who are given money by other parts of will, and not to include persons who are given real estate or specific articles of personalty. Roberts v. Chenoweth, 112 S.W. 625, 33 Ky. L. Rptr. 1081 (1908).

15. Month.

Under statute fixing compensation of prison guard at $75 “per month,” guard is required to work on Sundays. Page v. O'Sullivan, 159 Ky. 703 , 169 S.W. 542, 1914 Ky. LEXIS 898 ( Ky. 1914 ).

As used in a contract, the meaning of “month” depends upon the wording of the contract, and not on the statute, but ordinarily it will be construed to mean a calendar month and not a period of days equivalent to a month, or a lunar month. Warfield Natural Gas Co. v. Clark's Adm'x, 257 Ky. 724 , 79 S.W.2d 21, 1934 Ky. LEXIS 568 ( Ky. 1934 ).

16. Peace Officer.

Because the definition of “peace officer” in KRS 431.005(3) is specifically limited to “domestic violence” situations, it had no application to defendant’s arrest for trafficking and possession of controlled substance; part-time county police officer was duly appointed under KRS 70.540 and was a peace officer empowered to make arrest under KRS 431.005(1). Adams v. Commonwealth, 931 S.W.2d 465, 1996 Ky. App. LEXIS 157 (Ky. Ct. App. 1996), overruled in part, Mills v. Dep't of Corr. Offender Info. Servs., 438 S.W.3d 328, 2014 Ky. LEXIS 328 ( Ky. 2014 ).

17. Penitentiary.

The operation of a jail, for the purpose of incarceration of convicted criminals or detention of accused, pending disposition of charges against them, is a component of and incidental to law enforcement. Home Indem. Co. v. Johnson County Fiscal Court, 682 F. Supp. 326, 1987 U.S. Dist. LEXIS 13208 (E.D. Ky. 1987 ).

18. Person.

Statute authorizing appointment of a discreet, fit person to act as public administrator authorizes appointment of a corporation to that office. Louisville & N. R. Co. v. Herndon's Adm'r, 126 Ky. 589 , 104 S.W. 732, 31 Ky. L. Rptr. 1059 , 1907 Ky. LEXIS 89 ( Ky. 1907 ).

A corporation can be granted a tavern license under a statute authorizing the granting of such a license to “persons.” Audubon Country Club v. Commonwealth, 169 Ky. 399 , 183 S.W. 911, 1916 Ky. LEXIS 693 ( Ky. 1916 ).

County board of education is a person within meaning of statute authorizing persons to become members of cooperative fire insurance company. Dalzell v. Bourbon County Bd. of Education, 193 Ky. 171 , 235 S.W. 360, 1921 Ky. LEXIS 209 ( Ky. 1921 ).

The Commonwealth is a person under a statute providing that any person who has sustained damages because of the violation of a statute by another may recover from the offender. Commonwealth ex rel. Keck v. Shouse, 245 S.W.2d 441, 1952 Ky. LEXIS 587 ( Ky. 1952 ).

The word “person” in subsection (26) (now (27)) includes a corporation unless the context indicates otherwise. Kentucky State Bar Asso. v. Tussey, 476 S.W.2d 177, 1972 Ky. LEXIS 376 ( Ky. 1972 ).

Neither the common usage of the word “person” nor case law and the statute dictate that the phrase “any other person” necessarily includes the Commonwealth. Stars Interactive Holdings (IOM) Ltd. v. Commonwealth ex rel. Tilley, 2018 Ky. App. LEXIS 321 (Ky. Ct. App.), sub. op., 2018 Ky. App. Unpub. LEXIS 980 (Ky. Ct. App. Dec. 21, 2018).

While Ky. Rev. Stat. Ann. § 446.010(33) permits the Commonwealth, as a body-politic, to be included as a “person” when the word is used in a statute, it does not mandate it; allowing the Commonwealth to recover under Ky. Rev. Stat. Ann. § 372.040 contravenes one of the stated purposes by allowing the Commonwealth to take what could, absent the Commonwealth’s suit, be recovered by a suit of the gambler’s own representative. Stars Interactive Holdings (IOM) Ltd. v. Commonwealth ex rel. Tilley, 2018 Ky. App. LEXIS 321 (Ky. Ct. App.), sub. op., 2018 Ky. App. Unpub. LEXIS 980 (Ky. Ct. App. Dec. 21, 2018).

Commonwealth qualified as a person under Kentucky’s Loss Recovery Act as nothing in Ky. Rev. Stat. § 372.040 suggested that it was limited to natural persons, and use of “any other person” showed an intent to confer standing on all classes of persons listed in Ky. Rev. Stat. Ann. § 446.010(33) without exception. Moreover, the Commonwealth had standing as an extension of its power to prosecute criminal cases, it could sue under civil laws to protect its citizens, and the website owners’ illegal online gambling harmed it. Commonwealth ex rel. Brown v. Stars Interactive Holdings (IOM) Ltd., 2020 Ky. LEXIS 450 (Ky. Dec. 17, 2020).

Since Ky. Rev. Stat. Ann. § 372.040 provides its own statutory remedy for violation of the civil statute, Ky. Rev. Stat. Ann. § 446.070 is neither necessary nor applicable. Therefore, since person is not defined in § 372.040 , Kentucky’s general definitions for statutes, Ky. Rev. Stat. Ann. § 446.010 , provides guidance for the court. Pursuant to that statute, person includes the Commonwealth. Commonwealth ex rel. Brown v. Stars Interactive Holdings (IOM) Ltd., 2020 Ky. LEXIS 450 (Ky. Dec. 17, 2020).

19. Personal Estate.

A leasehold for a term of years is the conveyance of an estate, a chattel real, which under our statutes is regarded as personal estate. Ashland v. Price, 318 S.W.2d 861, 1958 Ky. LEXIS 152 ( Ky. 1958 ).

20. Shall.

The principle of construction that “shall” is mandatory was recognized long before its inclusion in this section and will be applied to statutes enacted prior to its inclusion in this section. Department of Revenue v. Oldham County, 415 S.W.2d 386, 1967 Ky. LEXIS 318 ( Ky. 1967 ).

SCR 3.030(2) and McCracken, Ky., Circuit Court Local Rule 5G used the mandatory directive “shall,” and there was no indication that the drafters intended anything less than absolute compliance; since a motion for admission of an Illinois attorney pro hac vice lacked a proper order, denial of the motion was proper, and dismissal of a complaint was proper where it was signed by the Illinois attorney who had not been admitted pro hac vice. Brozowski v. Johnson, 179 S.W.3d 261, 2005 Ky. App. LEXIS 243 (Ky. Ct. App. 2005).

Where KRS 100.987 provided that the local planning commission “shall” do enumerated things regarding cell tower siting, the “shall” meant an action was mandatory. Ky. PSC v. Shadoan, 2008 Ky. App. LEXIS 193 (Ky. Ct. App. June 20, 2008), op. withdrawn, sub. op., 2008 Ky. App. LEXIS 382 (Ky. Ct. App. Dec. 31, 2008).

21. State Funds.

The premiums collected by Kentucky Reinsurance Association (KRA) are not state funds, but private funds; therefore, since subsection (1) of KRS 41.070 and subdivision (31) (now (32)) of this section are applicable only to state funds, the premiums collected by the KRA are not required to be deposited in the State Treasury; the method of operation is to collect premiums — in advance of liabilities — and to invest these funds, so that much of the liability can be met by investment income. Thompson v. Kentucky Reinsurance Asso., 710 S.W.2d 854, 1986 Ky. LEXIS 266 ( Ky. 1986 ).

Bond proceeds which were trust funds under the control of the bank as trustee and were not controlled by the Local Correctional Facilities Construction Authority or any state organization, were never placed or intended to be placed in the state treasury, and have not been held in any way on behalf of the Authority were not “state funds” as defined in subdivision (31) (now (32)) of this section. Wells v. Kentucky Local Correctional Facilities Constr. Authority, 730 S.W.2d 951, 1987 Ky. App. LEXIS 499 (Ky. Ct. App. 1987).

22. Sworn Statement.

Subdivisions (22) and (32) (now (33)) of this section indicate that a sworn statement is one given by the maker thereof under oath before one other than the maker who is authorized by law to administer an oath. Clifton v. Midway College, 702 S.W.2d 835, 1985 Ky. LEXIS 268 ( Ky. 1985 ).

23. Vacancy in Office.

This section defining “vacancy,” applies only to vacancies in public office, and has no application to a vacancy in the board of directors of a private corporation. Harris v. Brown, 6 F.2d 922, 1925 U.S. Dist. LEXIS 1184 (D. Ky. 1925 ).

Where a person elected to an office has received a certificate of election in due form and has qualified, a vacancy cannot be declared to exist, on the ground that he is not entitled to the election, except by judgment of a court in contest proceedings. Hopkins v. Swift, 100 Ky. 14 , 37 S.W. 155, 18 Ky. L. Rptr. 526 , 1896 Ky. LEXIS 135 ( Ky. 1896 ).

Where person elected to public office dies before qualifying, a vacancy exists which should be filled at once, and predecessor in office is not entitled to hold over by virtue of constitutional provision that incumbent of office should hold until election “and qualification” of successor. Olmstead v. Augustus, 112 Ky. 365 , 65 S.W. 817, 23 Ky. L. Rptr. 1772 , 1901 Ky. LEXIS 318 (Ky. Ct. App. 1901).

Although this section is in terms limited in application to construction of KRS 118.010 (repealed), it is proper to apply it in construing any statute in which the term “vacancy in office” appears. Dixon v. Caudill, 143 Ky. 623 , 136 S.W. 1043, 1911 Ky. LEXIS 468 ( Ky. 1911 ).

Where the chairman of the board of trustees of a sixth-class city served as mayor when the city became a fifth-class city, there is a vacancy in the office of mayor at the expiration of the term for which the chairman-mayor has been elected as a trustee. Warren v. Blatt, 280 Ky. 185 , 132 S.W.2d 933, 1939 Ky. LEXIS 95 ( Ky. 1939 ).

24. — School Boards.

Where it is impossible to ascertain results of school district election because poll sheet was stolen shortly before close of polls, there is no valid election and a vacancy exists. Dixon v. Caudill, 143 Ky. 623 , 136 S.W. 1043, 1911 Ky. LEXIS 468 ( Ky. 1911 ).

Removal of member of school board from school district creates a vacancy. Hollar v. Cornett, 144 Ky. 420 , 138 S.W. 298, 1911 Ky. LEXIS 625 ( Ky. 1911 ).

Where person elected to fill vacancy on county board of education waits an unreasonable length of time (33 days) to qualify, he loses his right to the office, and a vacancy exists in the office. Brown v. Rose, 233 Ky. 549 , 26 S.W.2d 503, 1930 Ky. LEXIS 611 ( Ky. 1930 ).

25. Year.

In computing a year from a given day in a month, the year will expire on the day before that day in the same month of the next year. Geneva Cooperage Co. v. Brown, 124 Ky. 16 , 98 S.W. 279, 30 Ky. L. Rptr. 272 , 1906 Ky. LEXIS 235 ( Ky. 1906 ).

“One year,” in statute of limitations, means one (1) calendar year. Geneva Cooperage Co. v. Brown, 124 Ky. 16 , 98 S.W. 279, 30 Ky. L. Rptr. 272 , 1906 Ky. LEXIS 235 ( Ky. 1906 ).

Provisions of Const., § 170 exempting from taxation “crops grown in the year in which the assessment was made” means crops grown in the calendar year in which the assessment is made, and not those grown within the 12 month period preceding the assessment date. Burley Tobacco Growers' Co-op. Asso. v. Carrollton, 208 Ky. 270 , 270 S.W. 749, 1925 Ky. LEXIS 268 ( Ky. 1925 ).

26. — Leap Year.

A calendar year is ordinarily considered to be 365 days, but if the particular year in question is a leap year the extra day will be counted. Geneva Cooperage Co. v. Brown, 124 Ky. 16 , 98 S.W. 279, 30 Ky. L. Rptr. 272 , 1906 Ky. LEXIS 235 ( Ky. 1906 ).

“Year” ordinarily means 365 days but if particular year in question is a leap year the extra day will be included. Rice v. Blair, 158 Ky. 680 , 166 S.W. 180, 1914 Ky. LEXIS 678 ( Ky. 1914 ).

Cited in:

Kendall v. Beiling, 295 Ky. 782 , 175 S.W.2d 489, 1943 Ky. LEXIS 337 ( Ky. 1943 ); Mason v. Seaton, 303 Ky. 528 , 198 S.W.2d 205, 1946 Ky. LEXIS 88 6 ( Ky. 1946 ); Commonwealth v. Brown Forman Distillers Corp., 307 Ky. 597 , 211 S.W.2d 858, 1948 Ky. LEXIS 800 ( Ky. 1948 ); Applegate v. Means, 311 Ky. 100 , 223 S.W.2d 572, 1949 Ky. LEXIS 1063 ( Ky. 1949 ); Cornett v. Chandler, 307 S.W.2d 918, 1957 Ky. LEXIS 122 ( Ky. 1957 ); Commonwealth ex rel. Breckinridge v. Marshall, 361 S.W.2d 103, 1962 Ky. LEXIS 228 ( Ky. 1962 ); Fleischer v. Jefferson County, 390 S.W.2d 895, 1965 Ky. LEXIS 379 ( Ky. 1965 ); Kentucky-Virginia Stone Co. v. Ball, 426 S.W.2d 455, 1968 Ky. LEXIS 650 ( Ky. 1968 ); Chapman v. Payne & Hager, Inc., 565 S.W.2d 167, 1978 Ky. App. LEXIS 508 (Ky. Ct. App. 1978); Bartrug v. Commonwealth, 582 S.W.2d 61, 1979 Ky. App. LEXIS 413 (Ky. Ct. App. 1979); Commonwealth v. Carroll County Fiscal Court, 633 S.W.2d 720, 1982 Ky. App. LEXIS 216 (Ky. Ct. App. 1982); Gilbert v. Gilbert, 652 S.W.2d 663, 1983 Ky. App. LEXIS 293 (Ky. Ct. App. 1983); Louisa v. Newland, 705 S.W.2d 916, 1986 Ky. LEXIS 246 ( Ky. 1986 ); Ratliff v. Phillips, 746 S.W.2d 405, 1988 Ky. LEXIS 17 ( Ky. 1988 ); Hutsell v. Sayre, 5 F.3d 996, 1993 U.S. App. LEXIS 24888 (6th Cir. 1993); Fiscal Court v. Brady, 885 S.W.2d 681, 1994 Ky. LEXIS 88 ( Ky. 1994 ); Commonwealth v. Fint, 940 S.W.2d 896, 1997 Ky. LEXIS 28 ( Ky. 1997 ); McNally v. DeWitt, 961 F. Supp. 1041, 1997 U.S. Dist. LEXIS 5569 (W.D. Ky. 1997 ); Stringer v. Realty Unlimited, Inc., 97 S.W.3d 446, 2002 Ky. LEXIS 181 ( Ky. 2002 ); N.L. v. Commonwealth, 323 S.W.3d 732, 2009 Ky. App. LEXIS 136 (Ky. Ct. App. 2009); Commonwealth v. Johnson, 423 S.W.3d 718, 2014 Ky. LEXIS 87 ( Ky. 2014 ); Helms v. Commonwealth, 2015 Ky. App. LEXIS 83 (May 29, 2015).

Opinions of Attorney General.

In order to qualify as a “ministerial officer” entitled to carry a concealed weapon under the exception of KRS 435.230(2) (repealed), a coroner must actually be engaged in some phase of law enforcement work involving the duties and powers of arrest exercised by sheriffs, constables, marshals and policemen. OAG 67-63 .

In the absence of a written demand as set out in KRS 43.050(2)(b), an audit by the auditor of public accounts of local officials in their handling of fines, forfeitures, and legal process taxes is permissive only. OAG 67-320 .

Since a constable is a peace officer he may execute a warrant of arrest as provided by RCr 2.10. OAG 70-131 .

A deputy constable is not disqualified from serving in that capacity because of his residing in a district other than that in which the constable resides. OAG 70-187 .

The appointment of a commissioner of a water district to a second term prior to the conclusion of his first term was not valid where the appointing judge died prior to the commencement of the second term and a successor judge was appointed in his place. OAG 70-422 .

A peace officer is a peace officer 24 hours a day, and he has a continuing right and duty to act in behalf of the people generally even during his off-duty hours. OAG 70-726 .

A peace officer’s right of arrest is not diminished by accepting private employment during his off-duty hours. OAG 70-726 .

An arrest, effected under the requirements of KRS 431.005 by a marshal of a sixth-class city, may be made outside of the subject city but within the marshal’s county. OAG 71-26 .

An ordinance granting and clothing the fire chief with all power and privileges of regular policemen would be invalid. OAG 71-322 .

If a warrant, or criminal summons, is issued by a justice of the peace and delivered to the sheriff or one (1) of his deputies, the sheriff, or a deputy, is required to execute it, since the sheriff and his deputies are peace officers. OAG 71-365 .

A special local peace officer at a state university would not be a peace officer as defined in this section but would merely be an employe of a state agency. OAG 72-315 .

A county jailer, as a peace officer, has the duty and authority to arrest a drunk who knocks on the door of the county jail and place him in jail, subject to his being taken before a magistrate without unnecessary delay. OAG 73-163 .

The semiannual filing with the workers’ compensation board approval of insurance form designated form 14 is mandatory since the statute uses the word “shall,” and under subsection (29) (now (30)) of this section, “shall” is mandatory and therefore until the legislature qualifies KRS 432.340(2) (repealed), any proposal to modify the reporting form by eliminating the semiannual filing would be illegal. OAG 73-258 .

Under the definition in subsection (24) (now (25)) state probation and parole officers cannot be considered “peace officers” and do not possess the power of arrest except when acting under KRS 439.430 or KRS 439.570 . OAG 73-405 .

The terms “town” and “city” mean the same thing under Kentucky law so that incorporation as a town constitutes a city of the sixth class and, unless said town has been dissolved by statutory procedure, such town is entitled to issue industrial revenue bonds. OAG 73-793 .

An ordinance establishing a county detective as a peace officer under KRS 67.083 is invalid as it is in conflict with subdivision (19) (now subdivision (25)) of this section. OAG 74-303 (Opinion prior to 1974 amendment).

High school girls under eighteen (18) years of age hired as meter maids to patrol metered parking areas and ticket automobiles whose parking time has expired and who are not sworn in as peace officers of the police department or bonded as such are not peace officers within this section. OAG 74-552 .

The extended meaning of “person,” as found in this section should not be used in interpreting “person” as it is used in KRS 164.720 . OAG 78-247 .

Since a mobile home or recreational vehicle permanently fixed to the land is considered part of the real estate, it follows that one which is not permanently fixed to the land, or has been or will be severed from the land, is no longer considered real estate but personal property. OAG 80-513 .

The statutory definition of “may”, which is defined as “permissive” under subdivision (20) of this section, does not apply to subdivision (1)(c) of KRS 67.080 , when viewed in its total context, since the courts have held that the fiscal court has almost unlimited control of the fiscal affairs of a county and the exercise of that control by fiscal court is mandatory. OAG 81-203 .

Nonstate officers, including federal officers, who qualify as “peace officers” under this section, are entitled to carry concealed weapons in the discharge of their official duties and if necessary for their protection, pursuant to subsection (2) of KRS 527.020 , since subsection (3) of KRS 527.020 is directed to state, county and city officers and thus, by implication, subsection (2) applies to all other peace officers. OAG 81-226 .

The word “shall,” is normally considered a mandatory word pursuant to subsection (29) (now (3)) of this section; however, this is not always the case as the word’s ultimate significance is to be determined from the act as a whole and its legislative intent. OAG 82-102 .

The only legal deputy sheriffs are those appointed by the sheriff to fill deputy positions authorized by the urban county council pursuant to KRS 64.530 , 67A.060 , 67A.300 , and unsalaried deputy sheriffs, called “courtesy special deputies,” are illegal; such illegal deputies are merely private persons and would have the power of arrest given to private persons under KRS 431.005(2), but they are not peace officers and they cannot carry concealed deadly weapons for any reason. OAG 82-105 .

The county jailer and his deputies are “peace officers” under this section. OAG 82-625 .

The fiscal court, in an ordinance creating an auxiliary county police force, has the authority to extend to such auxiliary county policemen the full powers of arrest of a statutory peace officer, including the right to carry a weapon; under these county legislative conditions, and once the auxiliary county policemen have been duly appointed and have taken oath, they become policemen and “peace officers” as long as they remain on the force. OAG 83-58 .

A regular county policeman is a “peace officer,” under KRS 431.005 and subdivision (24) (now (25)) of this section, at all times. OAG 83-90.

A county judge/executive cannot refuse to accept the full mandatory salary provided by KRS 67.705 and 64.527 , and he must be paid back pay for any year in which he was not paid the amount required by statute. OAG 84-381 .

The second sentence of KRS 66.480(1)(a) should not be read as restrictive, but rather as permissive; by the use of the term “may” defined in subsection (1) of this section, the provision would allow the method set forth therein but would also allow the use of other methods, such as purchase through brokerage firms. OAG 90-28 .

According to the definition of “animal,” a chicken is not an animal. OAG 92-97 .

Certain parties may experiment with the disposal of poultry carcasses by composting them. Since chickens are not animals under the definition of “animal”, the disposal of chicken carcasses is not subject to regulation under this section. OAG 92-97 .

“Volunteer” deputy sheriffs are, from a legal perspective, “special deputy sheriffs” (KRS 70.045 ). A “volunteer” (special) deputy sheriff, appointed for “general law enforcement” pursuant to KRS 70.045 (1) has the same powers, except in the case of a warrantless arrest pursuant to KRS 431.005(2), as a “regular” or paid deputy sheriff. A special deputy appointed for “emergency circumstances” under KRS 70.045(2) has the powers of a special deputy sheriff only during preparation for, or the occurrences of, emergencies such as fire, flood, storm, or other “such emergencies.” The sheriff must cause signification of the statutory provision under which a special deputy is appointed to appear on the county clerk order book together with the deputy’s name. OAG 95-22 .

Since officers and agents of the U.S. Fish and Wildlife Service are not listed among the particular federal authorities designated as peace officers under KRS 61.365 , they do not have such status for the purpose of making an arrest or issuing a citation for a violation of Kentucky law; furthermore, officers or agents of the U.S. Fish and Wildlife Service cannot be considered “peace officers” on the basis of being included among “others with similar authority to make arrests” described in subsection (24) (not (25)) of this section. OAG 95-30 .

For purposes of submitting an open records request or appealing to the Attorney General, the term “person” may extend to an unincorporated association. 95-ORD-9.

Research References and Practice Aids

Cross-References.

Construction of statute revisory acts which conflict with acts enacted at same session, KRS 7.123 .

“Will” defined, KRS 394.010 .

Kentucky Bench & Bar.

Young and Walker, Building the Ethical Infrastructure to Support Court-Connected Mediation: Kentucky Supreme Court Takes Important Steps, Vol. 70, No. 2, March 2006, Ky. Bench & Bar 12.

Rutledge, Recent Amendments to Kentucky Business Entity Laws, Vol. 71, No. 5, Sept. 2007, Ky. Bench & Bar 25.

Kentucky Law Journal.

Johnson, The Development of Labor Management Legislation in Kentucky, 45 Ky. L.J. 40 (1956).

Fortune, Venue of Civil Actions in Kentucky, 60 Ky. L.J. 497 (1971).

Kentucky Law Survey, Germain, Remedies: Contribution and Apportionment Among “Joint Tortfeasors,” 65 Ky. L.J. 286 (1976-77).

Kentucky Law Survey, Garvey and Dorris, Civil Procedure, 67 Ky. L.J. 489 (1978-1979).

Lester, Security Interests in Thoroughbred and Standardbred Horses: A Transactional Approach, 70 Ky. L.J. 1065 (1981-82).

Sales and Use Tax Planning for the Horse Industry, 78 Ky. L.J. 601 (1989-90).

Booth and Rutledge, The Limited Liability Company Act: Understanding Kentucky’s New Organizational Option, 83 Ky. L.J. 1 (1994-95).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Animals, § 140.00.

Kentucky Instructions To Juries (Civil), 5th Ed., Animals, § 15.03.

446.012. Inclusion of osteopaths within references to physicians in statutes — Inclusion of Bureau of Osteopathic Specialties within references to American Board of Medical Specialties in statutes.

  1. Any  reference in the Kentucky Revised Statutes to “medical doctor,”  “M.D.,” or “physician” shall be deemed to include  a doctor of osteopathy or D.O., unless any of those terms is specifically  excluded.
  2. Any  reference in the Kentucky Revised Statutes to the American Board of Medical  Specialties shall include the Bureau of Osteopathic Specialties, unless either  of those terms is specifically excluded.

History. Enact. Acts 2000, ch. 413, § 5, effective July 14, 2000.

446.013. Terms “mental retardation” and “mentally retarded” not to be used in statutes — Acceptable replacement terms.

  1. Except as provided in this section, the Kentucky Revised Statutes shall no longer utilize the terms “mental retardation” or “mentally retarded” or abbreviations that use the letters “MR” to signify mental retardation or mentally retarded.
  2. The terms “retarded” or “retardation” shall not be utilized in the Kentucky Revised Statutes to refer to an intellectual disability.
  3. Except as provided in subsections (4), (5), and (6) of this section, the terms “mental retardation” or “mentally retarded” shall be replaced in the Kentucky Revised Statutes, as appropriate, by the terms:
    1. “Intellectual disability”;
    2. “Intellectual disabilities”;
    3. “Individual with an intellectual disability”;
    4. “Individuals with an intellectual disability”;
    5. “Individual with a serious intellectual disability”; or
    6. “Individuals with a serious intellectual disability.”
  4. The names of state and local governmental agencies shall no longer contain the terms “mental retardation,” “mentally retarded,” “retardation,” “retarded,” or abbreviations that use the letters “MR” to signify mental retardation or mentally retarded, and shall be changed to describe the function of that agency without use of these terms.
  5. A nongovernmental entity named or seeking to be named in the Kentucky Revised Statutes that utilizes “mental retardation,” “mentally retarded,” “retarded,” “retardation,” or the letters “MR” to signify mental retardation or mentally retarded in the name it seeks to include in statute, shall be encouraged to modify its name so that these terms are not utilized in statute.
  6. To the extent permitted by federal law, ICF/MRs shall now be referred to as ICF/IDs.

These terms, when substituted for “mental retardation,” “mentally retarded,” or “MR” shall be understood to have the exact meaning as the terms that they replace.

History. Enact. Acts 2012, ch. 146, § 1, effective July 12, 2012.

446.015. Statutes to be written in nontechnical language.

All bills introduced in the General Assembly after June 17, 1978, shall be written in nontechnical language and in a clear and coherent manner using words with common and everyday meanings. Enactment of a bill by the General Assembly shall be a conclusive presumption that such bill conforms to this section.

History. Enact. Acts 1978, ch. 241, § 1, effective June 17, 1978.

NOTES TO DECISIONS

  1. Illustrative Cases.
  2. Broader Construction Proper.
  3. Taxing Statutes.
1. Illustrative Cases.

In accordance with the plain meaning of the statute, where a credit application included a guaranty agreement on the application in two (2) places, the agreements were not required to state either the debtor’s maximum liability or a termination date and the agreements were therefore valid and enforceable against the debtor. Wheeler & Clevenger Oil Co. v. Washburn, 127 S.W.3d 609, 2004 Ky. LEXIS 45 ( Ky. 2004 ).

2. Broader Construction Proper.

Phrase “communicated to a mental health professional” in KRS 202A.400(1) included both direct or indirect threats, and the lack of a direct communication to a psychiatrist concerning his patient’s potential violence toward a decedent did not entitle the psychiatrist to a directed verdict in a wrongful death action. DeVasier v. James, 278 S.W.3d 625, 2009 Ky. LEXIS 32 ( Ky. 2009 ).

3. Taxing Statutes.

Department’s change which raised state tax obligation of public service company (PSC) and made it subject to local taxes was upheld because general assembly did not intend for franchise of PSCs to be exempt from state and local taxes and intended for it to be taxed separately. KRS 136.115(2) directed that taxes were assessed on operating tangible property and franchise; franchise was separate and nothing in the statutes indicated that franchise was included in operating tangible property. Additionally, KRS 132.208 provides a state and local tax exemption for intangible personal property except that which is assessed under KRS ch. 136. Dayton Power & Light Co. v. Dep't of Revenue, 405 S.W.3d 527, 2012 Ky. App. LEXIS 232 (Ky. Ct. App. 2012).

Opinions of Attorney General.

“Private individuals,” in common and everyday meaning, means private human beings. Such phrase, would not, in common and everyday meaning, refer to a corporation. OAG 90-7 .

446.017. Conditions under which portion of bill may be void.

When a bill enrolled, either approved by the Governor or which became law without the Governor’s signature under the provisions of Constitution Section 88, and which has been filed with the Secretary of State, contains language which is not identical to that contained in the bill passed by the legislature, and when the variance is material, that language not conforming to the bill as passed shall be severed and shall be void.

History. Enact. Acts 1980, ch. 311, § 1, effective July 15, 1980.

NOTES TO DECISIONS

Cited:

D & W Auto Supply v. Department of Revenue, 602 S.W.2d 420, 1980 Ky. LEXIS 243 ( Ky. 1980 ).

446.020. Singular includes plural — Masculine includes feminine.

  1. A  word importing the singular number only may extend and be applied to several  persons or things, as well as to one (1) person or thing, and a word importing  the plural number only may extend and be applied to one (1) person or thing  as well as to several persons or things.
  2. A  word importing the masculine gender only may extend and be applied to females  as well as males.

History. 457.

NOTES TO DECISIONS

  1. Application.
  2. Number.
  3. Gender.
1. Application.

This section may be used in construing private documents, such as deeds or wills. Bray v. Ellison, 83 S.W. 96, 26 Ky. L. Rptr. 1039 , 1904 Ky. LEXIS 282 (Ky. Ct. App. 1904).

This section will not be applied unless necessary to carry into effect the plain and manifest intention of the legislature. Commonwealth v. Barnett, 196 Ky. 731 , 245 S.W. 874, 1922 Ky. LEXIS 600 ( Ky. 1922 ).

Though this section applies only to the construction of statutes, it may be applied in the interpretation of contracts when the facts clearly demonstrate the necessity therefor in order to carry out the plain intention of the parties. Stephan v. Kentucky Valley Distilling Co., 275 Ky. 705 , 122 S.W.2d 493, 1938 Ky. LEXIS 479 ( Ky. 1938 ).

2. Number.

Act providing that it is not intended to repeal any local or special law in effect for the benefit of any school does not repeal laws in effect for the benefit of several schools. Kirk v. Roberson, 76 S.W. 183, 25 Ky. L. Rptr. 633 (1903).

Where mortgage is signed by husband and wife, terms “I” and “my” will be construed as “we” and “our.” Bray v. Ellison, 83 S.W. 96, 26 Ky. L. Rptr. 1039 , 1904 Ky. LEXIS 282 (Ky. Ct. App. 1904).

Statute relating to officer and his deputies, and containing phrase “he is hereby given power to administer oaths,” is construed to mean that both officer and deputies can administer oaths. Henderson v. Commonwealth, 122 Ky. 296 , 91 S.W. 1141, 28 Ky. L. Rptr. 1212 , 1906 Ky. LEXIS 57 ( Ky. 1906 ).

Where one statute authorizes police judge of fourth-class city to appoint a deputy clerk, another statute directing city council to compensate police judge for “his” services can properly be construed to mean “their” services, thus including deputy clerk. Greenleaf v. Woods, 123 Ky. 306 , 96 S.W. 458, 29 Ky. L. Rptr. 723 , 1906 Ky. LEXIS 150 ( Ky. 1906 ).

Statute imposing punishment in case death or injury resulting from doing of any unlawful acts denounced in “the preceding section” is restricted to single preceding section, and not several preceding sections, notwithstanding rule that singular may include plural. Commonwealth v. Barnett, 196 Ky. 731 , 245 S.W. 874, 1922 Ky. LEXIS 600 ( Ky. 1922 ).

Statutes relating to furnishing of ballot boxes, although phrased in the singular, are construed to permit furnishing of more than one box to a precinct, where necessary. State Board of Election Comm'rs v. Coleman, 235 Ky. 24 , 29 S.W.2d 619, 1930 Ky. LEXIS 305 ( Ky. 1930 ).

Under statute punishing the stealing of “a hog” of the value of $4 or more, indictment charging stealing “four hogs of the value of more than $4” is not duplicitous. Adkins v. Commonwealth, 245 Ky. 503 , 53 S.W.2d 949, 1932 Ky. LEXIS 628 ( Ky. 1932 ).

Pursuant to subsection (1) of this section, a default as mentioned in KRS 342.760(4) must be a default of all of the employers and not just one of them before statutory liability attaches to the uninsured employers’ fund. The fund has only a secondary liability which comes into play only after execution is unsatisfied against those individuals who have primary responsibility. Davis v. Goodin, 639 S.W.2d 381, 1982 Ky. App. LEXIS 249 (Ky. Ct. App. 1982).

3. Gender.

Although statutes relating to notaries public are phrased in masculine gender, a woman can be a notary, and statutes will apply to her acts. Harbour-Pitt Shoe Co. v. Dixon Weaks Bros. & Co., 60 S.W. 186, 22 Ky. L. Rptr. 1169 , 1901 Ky. LEXIS 336 (Ky. Ct. App. 1901).

Subsection (2)(d) of KRS 436.520 (repealed) applies to female persons as well as to male persons, and the fact that subsection (1) of KRS 436.520 (repealed), which imposes the penalty, uses the pronoun “he” is of no significance since a word importing masculine gender may extend and be applied to females. Adamson v. Hoblitzell, 279 S.W.2d 759, 1955 Ky. LEXIS 531 ( Ky. 1955 ).

Cited:

Greene v. Slusher, 300 Ky. 715 , 190 S.W.2d 29, 1945 Ky. LEXIS 628 ( Ky. 1945 ); Milam v. Sears, Roebuck & Co., 554 S.W.2d 877, 1977 Ky. App. LEXIS 774 (Ky. Ct. App. 1977); Kuhnhein v. N. Ky. Area Planning Comm'n, 2015 Ky. App. LEXIS 136 (Sept. 11, 2015).

Opinions of Attorney General.

The department of finance could properly pay a state trooper and a matron both for returning a fugitive in accordance with appointment by the Governor although the statute authorizes payment to an agent in the singular, since under this section a word in the singular may be expanded to include the plural. OAG 60-1096 .

Under a statute authorizing the Governor to appoint an agent to return a fugitive from another state, the Governor is authorized to appoint more than one (1) agent, since under this section a word importing the singular number only may extend and be applied to several persons or things. OAG 63-62 .

Under the special circumstances surrounding the operation of the criminal courts in Jefferson County, KRS 70.140 and 64.090 may be extended to the plural payment by the state of the $7 fee for each deputy sheriff attending a particular criminal court upon the request of the particular Circuit Judge and, though this can mean more than one (1) deputy per Circuit Judge, this is justified under subsection (1) of this section as a logical and reasonable conclusion as to legislative intent. OAG 75-472 .

The Kentucky School Facilities Construction Commission can use a composite bond issue to provide funding for multiple school districts in one (1) bond issue, but each district should be identified separately in the issue. OAG 86-50 .

A statute importing the singular may extend to the plural, consequently KRS 121.180 does not by its terms limit the permissible construction to one (1) committee. OAG 91-146 .

446.030. Computation of time.

    1. In  computing any period of time prescribed or allowed by order of court, or by  any applicable statute or regulation, the day of the act, event or default  after which the designated period of time begins to run is not to be included.  The last day of the period so computed is to be included, unless it is a Saturday,  a Sunday, a legal holiday, or a day on which the public office in which a  document is required to be filed is actually and legally closed, in which  event the period runs until the end of the next day which is not one (1) of  the days just mentioned. When the period of time prescribed or allowed is  less than seven (7) days, intermediate Saturdays, Sundays and legal holidays  shall be excluded in the computation. (1) (a) In  computing any period of time prescribed or allowed by order of court, or by  any applicable statute or regulation, the day of the act, event or default  after which the designated period of time begins to run is not to be included.  The last day of the period so computed is to be included, unless it is a Saturday,  a Sunday, a legal holiday, or a day on which the public office in which a  document is required to be filed is actually and legally closed, in which  event the period runs until the end of the next day which is not one (1) of  the days just mentioned. When the period of time prescribed or allowed is  less than seven (7) days, intermediate Saturdays, Sundays and legal holidays  shall be excluded in the computation.
    2. When  a statute, regulation, or order of court requires an act to be done either  a certain time before an event or a certain time before the day on which an  event occurs, the day of the event shall be excluded in computing the time.  If the day thereby computed on which or by which the act is required to be  done falls on a Saturday, Sunday, legal holiday, or a day on which the public  office in which the act is required to be completed is actually and legally  closed, the act may be done on the next day which is none of the days just  mentioned.
  1. If  any proceeding is directed by law to take place, or any act is directed to  be done, on a particular day of a month and that day is Sunday, the proceeding  shall take place, or the act shall be done, on the next day that is not a  legal holiday.

History. 453, 454: amend. Acts 1970, ch. 98, § 1; 1984, ch. 32, § 1, effective July 13, 1984.

NOTES TO DECISIONS

  1. In General.
  2. Application.
  3. Days Counted in Period.
  4. — First Day.
  5. — — Act Commencing  Period.
  6. — — Limitation of  Actions.
  7. — — Appeal.
  8. — — Agreement of  Parties.
  9. — Sundays.
  10. Holiday.
  11. Partial Day.
1. In General.

The court held that the Rules of Civil Procedure govern the procedure and practice in all courts of this state except where the procedure and practice are set out under special statutes, that this section is not a special statute, and that the time for appeal from the workers’ compensation board should be computed under the civil rules, but the court was not prepared to hold that this section was repealed or superseded by the civil rules. Commonwealth Dep't of Highways v. Crutchfield, 365 S.W.2d 102, 1963 Ky. LEXIS 215 ( Ky. 1963 ).

2. Application.

Subsection (2) of this section applies only to acts directed to be done in the course of judicial proceedings. Geneva Cooperage Co. v. Brown, 124 Ky. 16 , 98 S.W. 279, 30 Ky. L. Rptr. 272 , 1906 Ky. LEXIS 235 ( Ky. 1906 ).

Where the language employed in an instrument denotes a contrary intent, the rule laid down in this section will not be followed. Pinson v. Bentley, 293 Ky. 490 , 169 S.W.2d 305, 1943 Ky. LEXIS 645 ( Ky. 1943 ).

This statute does not affect the appeal time limit because no proceeding or act is directed to take place or be done on a particular day. Sandlick Coal Co. v. Hughes, 239 S.W.2d 258, 1951 Ky. LEXIS 874 ( Ky. 1951 ).

The timeliness of an appeal from a judgment denying habeas corpus to a minor held by a jailer as an escapee from an institution for juvenile delinquents must be determined under this section rather than under the Rules of Civil Procedure. Bragg v. Kanuf, 275 S.W.2d 905, 1955 Ky. LEXIS 388 ( Ky. 1955 ).

The method of computing time prescribed by CR 6.01 is not applicable to an action for personal injuries that is barred before it is filed by the provisions of KRS 413.140 using the method of computation prescribed by this section. Randall v. L. L. Morris Transport Co., 380 S.W.2d 221, 1964 Ky. LEXIS 286 ( Ky. 1964 ).

In an election contest, once the action was properly filed the Rules of Civil Procedure governed the time for filing an answer. Shackleford v. Barnette, 445 S.W.2d 449, 1969 Ky. LEXIS 166 ( Ky. 1969 ).

Because the fifteenth day for filing exceptions as required by KRS 13B.110 from the date of mailing of the order was a Friday, the child care center’s argument that its filing was exended an additional three (3) days and therefore was timely by virtue of KRS 446.030 failed. Commonwealth v. Copper Care, Inc., 2008 Ky. App. LEXIS 136 (Ky. Ct. App. May 2, 2008).

3. Days Counted in Period.

Both the day on which the verdict is returned and the day on which a motion for a new trial is made are counted in determining the timeliness of the motion. Laven v. Lewis Dry Cleaning System, Inc., 289 Ky. 443 , 159 S.W.2d 16, 1942 Ky. LEXIS 580 ( Ky. 1942 ).

4. — First Day.

Under statute providing that “at least two weeks shall elapse between the passage” of an ordinance by the two (2) boards of a city legislative body, passage of an ordinance by one (1) body on April 5, and by the other on April 19, complied with statute, the day of passage by the first board being counted as one (1) day and as part of the time. Fehler v. Gosnell, 99 Ky. 380 , 35 S.W. 1125, 18 Ky. L. Rptr. 238 , 1896 Ky. LEXIS 96 ( Ky. 1896 ).

When a computation of time is to be reckoned from an act or event, the day of the act or event is to be included in the reckoning; but if the computation is to be made from a specific day and not from the occurrence of an event on that day, then the first day must be excluded. Verda Harlan Coal Co. v. Harlan Nat'l Bank, 229 Ky. 565 , 17 S.W.2d 718, 1929 Ky. LEXIS 808 ( Ky. 1929 ).

Where computation of time is from an act done, the day on which the act was done must be included in the count; but where the computation is made from the day itself, then that day must be excluded from the count. Salisbury v. Commonwealth, 254 Ky. 77 , 70 S.W.2d 987, 1934 Ky. LEXIS 23 ( Ky. 1934 ).

In determining the timeliness of a bill of exceptions required to be filed within a certain period after the overruling of a motion for new trial, the day on which the motion was overruled must be counted in the period. Nicholas v. Hook, 289 Ky. 406 , 158 S.W.2d 971, 1942 Ky. LEXIS 562 ( Ky. 1942 ).

If the basis of the action has been so completely consummated on the day of its commission or omission as to afford a right of action on that day, the day of its commission or omission must be included in the count; however, it may not be included in the count if the passing of the full day is a prerequisite to the determination that the cause of action has accrued. Preston v. Preston, 289 Ky. 552 , 159 S.W.2d 414, 1942 Ky. LEXIS 600 ( Ky. 1942 ).

In computing time from a particular day, that day is to be excluded, but, in computing time from an act done, day on which act occurs is to be included in the computation. Randall v. L. L. Morris Transport Co., 380 S.W.2d 221, 1964 Ky. LEXIS 286 ( Ky. 1964 ).

5. — — Act Commencing Period.

Time is usually computed from a day when there is some act that might, could or should have been done on that day, but was not done. Salisbury v. Commonwealth, 254 Ky. 77 , 70 S.W.2d 987, 1934 Ky. LEXIS 23 ( Ky. 1934 ).

Time is usually computed from an act done when there has been an act done which someone wants to undo, or else to take some step that will affect such act, be affected by it, or is in some manner dependent on it, since as soon as the act is done, anyone affected by it can at once take such steps as he desires to take. Salisbury v. Commonwealth, 254 Ky. 77 , 70 S.W.2d 987, 1934 Ky. LEXIS 23 ( Ky. 1934 ).

Where time is to be computed from an act or event, day on which act was done or occurred must be included in computation. Dehart v. Olive Hill, 305 Ky. 864 , 205 S.W.2d 351, 1947 Ky. LEXIS 902 ( Ky. 1947 ).

This section plainly states that the day on which the act is done “may be” counted as one day and part of the time. Treadway v. Miller, 354 S.W.2d 500, 1962 Ky. LEXIS 43 ( Ky. 1962 ).

Where an accident occurred on July 25, 1973, and the personal injury action arising from such accident was filed July 25, 1974, the action was timely since the day of the accident must be excluded in computing the limitation period. Derossett v. Burgher, 555 S.W.2d 579, 1977 Ky. LEXIS 510 ( Ky. 1977 ).

6. — — Limitation of Actions.

Under statute providing that action for personal injuries must be brought within one (1) year “after the accrual” of the cause of action, day on which injuries were received must be counted as first day. Geneva Cooperage Co. v. Brown, 124 Ky. 16 , 98 S.W. 279, 30 Ky. L. Rptr. 272 , 1906 Ky. LEXIS 235 ( Ky. 1906 ).

Under statute providing that petition to contest election must be filed within ten (10) days “after final action” of the canvassing board, the day on which the final action is taken must be counted as the first day. Lowry v. Stotts, 138 Ky. 251 , 127 S.W. 789, 1910 Ky. LEXIS 65 ( Ky. 1910 ).

In computing time for filing claim against state, day on which cause of action accrued must be counted. Commonwealth, Dep't of Highways v. Baker, 385 S.W.2d 192, 1964 Ky. LEXIS 146 ( Ky. 1964 ).

7. — — Appeal.

Under statute allowing appeal from order of workers’ compensation board if taken within 20 days after the rendition of such order, the day on which the order is rendered must be counted as part of the time, and where order was entered on May 15, appeal filed on June 4 was too late. Verda Harlan Coal Co. v. Harlan Nat'l Bank, 229 Ky. 565 , 17 S.W.2d 718, 1929 Ky. LEXIS 808 ( Ky. 1929 ).

Requirement that appeal from certain judgment be taken within 60 days after such judgment, the day on which the judgment was entered must be counted as one (1) of the 60 days; so where judgment was entered on May 16, the time for appeal expired at midnight on July 14. Dehart v. Olive Hill, 305 Ky. 864 , 205 S.W.2d 351, 1947 Ky. LEXIS 902 ( Ky. 1947 ).

8. — — Agreement of Parties.

Where purchaser at execution sale agreed to extend the time for redemption “to and including the 15th day after the decision of the Court of Appeals, upon the appeal herein, shall have become final,” the day upon which the decision of the Court of Appeals became final would not be counted in computing the time, and the time for redemption would not expire until midnight on the 15th day following the day on which the decision became final. Pinson v. Bentley, 293 Ky. 490 , 169 S.W.2d 305, 1943 Ky. LEXIS 645 ( Ky. 1943 ).

9. — Sundays.

Subsection (2) of this section does not apply to the statutes of limitation, and where time allowed for bringing action expires on Sunday, action cannot be brought on following day. Geneva Cooperage Co. v. Brown, 124 Ky. 16 , 98 S.W. 279, 30 Ky. L. Rptr. 272 , 1906 Ky. LEXIS 235 ( Ky. 1906 ).

If time allowed for doing an act exceeds a week, Sundays must be included. Lowry v. Stotts, 138 Ky. 251 , 127 S.W. 789, 1910 Ky. LEXIS 65 ( Ky. 1910 ).

Subsection (2) of this section does not apply to cases where no particular day of the month is designated for the doing of an act, but a certain period of time is allowed for doing the act, in such case, if the time allowed exceeds a week, and the last day falls on Sunday, the act cannot be done on the following day. Lowry v. Stotts, 138 Ky. 251 , 127 S.W. 789, 1910 Ky. LEXIS 65 ( Ky. 1910 ).

Appeal from judgment in election contest was not filed within 30 day period prescribed by KRS 122.070 (repealed) when it was presented to the clerk of the Court of Appeals on Sunday, the 30th day, and filed by him on Monday, the 31st day, since where time given exceeds a week, Sundays must be counted, and appeal could not lawfully be filed on Sunday. Shaver v. Sparks, 277 Ky. 581 , 126 S.W.2d 1110, 1939 Ky. LEXIS 705 ( Ky. 1939 ).

In determining the timeliness of bringing an action required to be brought within one (1) year, both Sundays were counted where the cause of action arose on a Sunday and the year expired on a Sunday. Fannin v. Lewis, 254 S.W.2d 479, 1952 Ky. LEXIS 1134 ( Ky. 1952 ).

Appeal from decision of board of tax appeals was timely when filed on Monday, the thirty-first day after final order of the board. Schenley Distillers, Inc. v. Commonwealth, 467 S.W.2d 598, 1971 Ky. LEXIS 391 ( Ky. 1971 ).

10. Holiday.

Where a record on appeal was filed a day late, this section does not apply to excuse the lateness on the basis that the 60th day was Labor Day, because the filing is not directed on a particular day of month but at anytime within 60 days after the bill of exceptions is made part of the record. Strickland v. Commonwealth, 329 S.W.2d 379, 1959 Ky. LEXIS 163 ( Ky. 1959 ).

A retiree’s appeal was not untimely on the ground that although the deadline for filing the appeal fell on a legal holiday under KRS 2.110 (1), the Circuit Court remained open on that day; the retiree was entitled to the extra day to file since Columbus Day was a legal holiday pursuant to KRS 2.110 . The language of KRS 446.030 “a Saturday, a Sunday, a legal holiday, or a day on which the public office is actually and legally closed” creates four classes of days, not three. Wilkins v. Ky. Ret. Sys. Bd. of Trs., 276 S.W.3d 812, 2009 Ky. LEXIS 13 ( Ky. 2009 ).

11. Partial Day.

Judicially a day is the whole or any part of the period of 24 hours from midnight to midnight. Talbott v. Caudill, 248 Ky. 146 , 58 S.W.2d 385, 1933 Ky. LEXIS 206 ( Ky. 1933 ).

Under statute allowing jailer certain sum “per day” for keeping prisoners, jailer is entitled to full sum even though prisoner was in jail only part of day. Talbott v. Caudill, 248 Ky. 146 , 58 S.W.2d 385, 1933 Ky. LEXIS 206 ( Ky. 1933 ).

Rule that law takes no account of fractions of a day operates only in cases where it will promote justice, and would not be applied where it would have an impracticable result. Burke v. Tartar, 350 S.W.2d 146, 1961 Ky. LEXIS 81 ( Ky. 1961 ).

Cited:

Mitchell v. Demunbrun, 300 Ky. 477 , 189 S.W.2d 682, 1945 Ky. LEXIS 58 0 ( Ky. 1945 ); Duncan v. Queenan, 259 S.W.2d 60, 1953 Ky. LEXIS 930 ( Ky. 1953 ); Skinner v. Morrow, 318 S.W.2d 419, 1958 Ky. LEXIS 136 ( Ky. 1958 ); Sergent v. J. P. Honeycutt Coal Co., 365 S.W.2d 734, 1963 Ky. LEXIS 225 ( Ky. 1963 ); Young v. Scotia Coal Co., 464 S.W.2d 796, 1971 Ky. LEXIS 496 ( Ky. 1971 ); Taxpayer’s Action Group v. Madison County Bd. of Elections, 652 S.W.2d 666, 1983 Ky. App. LEXIS 294 (Ky. Ct. App. 1983); Firestone Textile Co. Div., Firestone Tire & Rubber Co. v. Meadows, 666 S.W.2d 730, 1983 Ky. LEXIS 305 ( Ky. 1983 ); Jenny Wiley Health Care Center v. Commonwealth Cabinet for Human Resources, 828 S.W.2d 657, 1992 Ky. LEXIS 58 ( Ky. 1992 ).

Opinions of Attorney General.

Under the terms of law that provided that application for absentee ballot should be made at least 20 days before an election, election day would be counted as part of the 20 day period in determining the deadline for making application to file an absentee ballot. OAG 65-657 .

Where a city ordinance stated that the city’s first occupational license tax year began September 1, 1968, it actually began on September 3, 1968, since September 1 fell on a Sunday and September 2 was Labor Day, a legal holiday. OAG 69-263 .

Even though the office of the board of registration commissioners, as well as that of the county clerk, is kept open on Saturdays until 1 p. m., Saturdays are excluded in counting the 59 days prior to election. OAG 70-575 .

The computation of the ten (10) day period for filing security agreements under subsection (3) (now (2)) of KRS 186.045 is computed by the formula set out in this section. OAG 71-393 .

Where the elapsed period between the date a security agreement was executed and the date it was presented to the clerk was more than ten (10) days, the clerk was correct in refusing to file the security agreement or make a notation on the registration until the penalty of $2 was paid. OAG 71-393 .

In 1971, the last day that candidates for city office could have filed for the November election was September 20. OAG 71-447 .

Since the 1972 regular session of the Kentucky General Assembly adjourned sine die on Friday, March 17, 1972, ordinary legislation that was passed at the 1972 session became effective on June 16, 1972. OAG 72-195.

Under this section a candidate for county coroner who filed on April 10 may be placed on the party primary ballot but a candidate who filed on April 14 filed too late to be placed on the ballot. OAG 72-258 .

It has long been held that the language of this section and its statutory predecessors is applicable only to acts done in the course of judicial proceedings and the issuance and effect of gubernatorial executive order is not a judicial proceeding. OAG 78-482 .

Where a duly elected county attorney took office on January 2, 1978, he was covered by the provisions of Kentucky Employees Retirement System, KRS 61.510 et seq., which became effective January 1, 1978, and had no option to reject participation, since subsection (2) of this section was inapplicable, this section only applying to judicial proceedings, therefore placing him under the provisions of KERS when he took office and preventing him from having a choice; nor is he a part-time employe exempt under the provisions of KRS 61.510 (5), (8) and (21). OAG 78-482 .

Where charges were preferred against a police officer on a Friday, but a hearing was not scheduled until the following Tuesday, the three (3) day requirement of notice before a hearing, pursuant to KRS 95.450 , was properly met since the intervening Saturday and Sunday would not, under this section, be included in computing the three (3) day period. OAG 81-134.

Where a vacancy in an alderman position occurred on August 2, such day had to be excluded under this section, and thus August 3, would be the initial day that the three (3) months period would begin to run, which period would end at midnight on November 2 — election day; therefore three (3) months would not intervene as required by Const., § 152, and the vacancy could not be filled at the November, 1982, election. OAG 82-428 .

The effective date of ordinary legislation enacted during the 1987 special session of the General Assembly that adjourned sine die Thursday, October 22, 1987 is January 21, 1988. OAG 87-74 .

Ordinary legislation adopted at the 1988 regular session of the General Assembly became effective on July 15, 1988. OAG 88-21 .

In determining the effective date of ordinary legislation adopted at the 1988 Special Session of the General Assembly, December 14, 1988, the day of adjournment, must be excluded which means that March 14, 1989, would be the 90th day following adjournment which day must be included in computing the 90-day period of time provided in Const. § 55, thereby making all ordinary legislation effective March 15, 1989. OAG 89-1 .

For an opinion indicating the effective date of Senate Bill 7 (1993 [1st Extra. Sess.] Ky. Acts ch. 4), passed during the session with an emergency provision, as well as certain dates in a “transition schedule” contained in that legislation, see OAG 93-25 .

Research References and Practice Aids

Cross-References.

Appeals, computation and extension of time, SCR 76.40.

Civil procedure, time, computation, CR 6.01 to 6.03, 6.05.

Criminal procedure, computation of time, RCr 1.10.

Holidays, KRS 2.110 .

446.040. Adjournment of proceedings over weekend.

If the law authorizes a court, or the proceedings of any tribunal or officer, to be adjourned from day to day, an adjournment from Saturday until Monday shall be legal.

History. 455.

NOTES TO DECISIONS

Cited:

Louisa Coca-Cola Bottling Co. v. Pepsi-Cola Metro. Bottling Co., 94 F. Supp. 2d 804, 1999 U.S. Dist. LEXIS 21663 (E.D. Ky. 1999 ).

446.050. Majority may act for all.

Words giving authority to three (3) or more public officers or other persons shall be construed as giving such authority to a majority of such officers or other persons.

History. 448.

NOTES TO DECISIONS

  1. Contrary Intent.
  2. Election Boards.
  3. — School Elections.
  4. Board of Tax Supervisors.
  5. Viewers of Drainage District.
  6. School Boards.
  7. — State Board.
  8. Board of Teacher Examiners.
  9. Normal School Board of Trustees.
1. Contrary Intent.

The rule announced by this section controls unless there is, by express words or clear implication, a contrary intention indicated with respect to a particular law. Traylor v. Cummins, 222 Ky. 438 , 1 S.W.2d 530, 1927 Ky. LEXIS 943 ( Ky. 1927 ).

This section does not apply where by express words or clear implication a contrary intention is indicated with respect to a particular body. Childers v. Hackney's Creek Coal Co., 337 S.W.2d 680, 1960 Ky. LEXIS 365 ( Ky. 1960 ).

2. Election Boards.

The fact that an unauthorized person was allowed to serve on a three (3) member election contest board does not invalidate the action of the board, where the other two (2) members concur in the action. McLaughlin v. Wheeler, 38 S.W. 493, 18 Ky. L. Rptr. 860 (1897).

Under statute requiring four (4) election officers to hold school election, election held by only two (2) officers is void. Hughes v. Roberts, 142 Ky. 142 , 134 S.W. 168, 1911 Ky. LEXIS 172 ( Ky. 1911 ).

3. — School Elections.

In case of school election held by three (3) officers designated by statute, two (2) of such officers have power to certify returns. Carpenter v. Hale, 159 Ky. 465 , 167 S.W. 426, 1914 Ky. LEXIS 820 ( Ky. 1914 ).

4. Board of Tax Supervisors.

Although statute providing for city board of tax supervisors does not provide that quorum can act, quorum can act by virtue of this section. Corbin v. Board of Education, 206 Ky. 787 , 268 S.W. 560, 1925 Ky. LEXIS 1049 ( Ky. 1925 ).

5. Viewers of Drainage District.

Report filed by two (2) of three (3) viewers appointed in drainage district proceeding is valid. Bennett v. Knott, 112 S.W. 849 ( Ky. 1908 ).

Where one (1) member of three (3) member board of viewers for drainage district dies before completion of work, remaining two (2) members can complete work and make report. Lee v. Phelps, 191 Ky. 219 , 230 S.W. 44, 1921 Ky. LEXIS 304 ( Ky. 1921 ).

6. School Boards.

In the absence of express legislative authority, a board of education has no authority to enact a by-law providing that a two thirds (2/3) majority shall be required to elect a clerk of the board. Heyker v. Herbst, 106 Ky. 509 , 50 S.W. 859, 20 Ky. L. Rptr. 1983 , 1899 Ky. LEXIS 68 ( Ky. 1899 ).

Under statute providing that five (5) members of eight (8) member board of education shall constitute a quorum, a majority of a quorum has authority to act by virtue of this section. Ray v. Armstrong, 140 Ky. 800 , 131 S.W. 1039, 1910 Ky. LEXIS 382 ( Ky. 1910 ).

Where all of members of eight (8) member board of education are present, and four (4) vote in favor of proposition, three (3)against, and one (1) does not vote, the one (1) not voting will be considered as voting in favor of the proposition, thus giving the required majority. Ray v. Armstrong, 140 Ky. 800 , 131 S.W. 1039, 1910 Ky. LEXIS 382 ( Ky. 1910 ).

Where four (4) qualified members of a school board are present, three (3) of them can act for the board, but two (2) voting in favor of a proposal with the other two (2) abstaining is not sufficient. Craft v. Hall, 275 S.W.2d 410, 1954 Ky. LEXIS 1248 ( Ky. 1954 ), overruled, Commonwealth ex rel. Breckinridge v. Winstead, 430 S.W.2d 647, 1968 Ky. LEXIS 407 ( Ky. 1968 ).

7. — State Board.

Under statute requiring approval of certain bond by state board of education, which at time in question consists of three (3) members, approval is valid if made by two (2) members. Commonwealth v. Ginn, 111 Ky. 110 , 63 S.W. 467, 23 Ky. L. Rptr. 521 , 1901 Ky. LEXIS 191 ( Ky. 1901 ).

Under statute creating three (3) member state board of education, and providing that superintendent of public instruction, as ex officio member and chairman, “with one other member may control its corporate action,” other two (2) members cannot take valid action without concurrence of superintendent. Traylor v. Cummins, 222 Ky. 438 , 1 S.W.2d 530, 1927 Ky. LEXIS 943 ( Ky. 1927 ).

8. Board of Teacher Examiners.

Under statute requiring teacher to attain a certain grade in examination by board of examiners, in order to obtain a certificate, decision of two (2) members of three (3) member board that teacher has attained such grade is sufficient to entitle teacher to certificate. Northington v. Sublette, 114 Ky. 72 , 69 S.W. 1076, 24 Ky. L. Rptr. 835 , 1902 Ky. LEXIS 127 ( Ky. 1902 ).

9. Normal School Board of Trustees.

Where diploma is awarded to student of state normal school by action of majority of board of trustees, state superintendent of public instruction, as ex officio chairman of board, can be compelled by mandamus to sign diploma. Hamlett v. Reid, 165 Ky. 613 , 177 S.W. 440, 1915 Ky. LEXIS 566 ( Ky. 1915 ).

Cited:

Louisville & Jefferson County Planning & Zoning Com. v. Ogden, 307 Ky. 362 , 210 S.W.2d 771, 1948 Ky. LEXIS 714 ( Ky. 1948 ).

Opinions of Attorney General.

Where the water board consisted of three (3) members, two (2) members of the water commission could execute a contract employing a water district superintendent. OAG 69-311 .

Where a resolution has been introduced before the fiscal trial court with a motion to adopt it, or a motion has been made, and there is a second to either of them, the judge could not table the motion without a motion to table, a second to such motion and a majority vote to so table the motion. OAG 70-105 .

The right of the board to act through a majority applies to the conduct of its general business and to any procedure it may wish to establish for the issuance of licenses with the exception the right is restricted in regard to the issuance of licenses by KRS 312.125 (repealed). OAG 74-628 .

Since the total membership of the Kentucky Heritage Commission consists of 27 members under the rule of this section, a quorum is met when at least 14 members are present and voting. OAG 76-494 .

A Metropolitan Sewer District Board may assent to a contract term requiring a “supermajority” vote for certain matters, provided that the matter is not one delegated to the Board specifically by statute. OAG 2015-01

446.060. Writings — Signature must be at end — To be in English.

  1. When  the law requires any writing to be signed by a party thereto, it shall not  be deemed to be signed unless the signature is subscribed at the end or close  of the writing.
  2. Every  writing contemplated by the laws of this state shall be in the English language.

History. 468.

NOTES TO DECISIONS

  1. Application.
  2. Absence of Statute.
  3. Relative Physical Position.
  4. — Space Between Writing  and Signature.
  5. — Intervening Matter.
  6. — Preceding Writing.
  7. — In Middle of Writing.
  8. Appendages Following Signature.
  9. Attached Signature.
  10. Detached Sheets.
  11. Reverse Side of Paper.
  12. Check Indorsement.
  13. Incorporation by Reference.
  14. Substitute for Proper Placement.
  15. Uniform Commercial Code.
1. Application.

This section applies only to writings that must be executed by parties. Terrell v. Commonwealth, 194 Ky. 608 , 240 S.W. 81, 1922 Ky. LEXIS 212 ( Ky. 1922 ).

Deceased’s signature on a holographic will was sufficiently close to the end of the will to meet the requirements of KRS 446.060 because the only items that followed the signature were the date, directions for appointment of an executrix, and the signatures of the witnesses. The information following the signature did not contain information that was essential to the will’s validity or dispositive of the deceased’s estate. Bennett v. Ditto, 204 S.W.3d 145, 2006 Ky. App. LEXIS 294 (Ky. Ct. App. 2006).

When students signed a student enrollment agreement, they contemplated an obligation that could not be performed within a year; therefore, the Statute of Frauds applied, and the agreement was required to be in writing and signed, which then triggered the applicability of the statute. Dixon v. Daymar Colls. Grp., LLC, 483 S.W.3d 332, 2015 Ky. LEXIS 73 ( Ky. 2015 ).

2. Absence of Statute.

In absence of statute, a writing need not be signed at the end; it will be sufficient if the signature appears anywhere in the body of the writing or in immediate juxtaposition thereto, at the top, bottom or sides. Terrell v. Commonwealth, 194 Ky. 608 , 240 S.W. 81, 1922 Ky. LEXIS 212 ( Ky. 1922 ).

3. Relative Physical Position.

Where will is written on sheet of legal cap paper, which has ruled line down left margin, and there is not room at the bottom of the page for the testator to sign his name, signature written on vertical ruled line, near bottom of page, is sufficient to comply with this section. Graham v. Edwards, 162 Ky. 771 , 173 S.W. 127, 1915 Ky. LEXIS 152 ( Ky. 1915 ).

If the signature is sufficiently near to the end of the writing to afford reasonable inference that the signer intended to indicate that all he wished to authenticate and to which he purposed to be bound had been fully and completely expressed, the signature is sufficient. Gentry's Guardian v. Gentry, 219 Ky. 569 , 293 S.W. 1094, 1927 Ky. LEXIS 396 ( Ky. 1927 ).

In determining whether signature is sufficiently near end of writing, physical position of signature and internal structure of writing will be considered. Gentry's Guardian v. Gentry, 219 Ky. 569 , 293 S.W. 1094, 1927 Ky. LEXIS 396 ( Ky. 1927 ).

4. — Space Between Writing and Signature.

A will is sufficiently subscribed although the signatures of the attesting witnesses were separated by a small space from the signature of the testatrix, where such space was taken up by the words, “Signature,” “Witnesses sign here,” and “Sign here,” such words clearly explaining why the witnesses signed as they did. Ward v. Putnam, 119 Ky. 889 , 85 S.W. 179, 27 Ky. L. Rptr. 367 , 1905 Ky. LEXIS 56 ( Ky. 1905 ).

Ordinarily there should be no substantial amount of space between the body of a will and the signature, but it will be sufficient if the signature is near enough to the end of the writing to indicate that the testator had fully and completely expressed his testamentary dispositions. Lucas v. Brown, 187 Ky. 502 , 219 S.W. 796, 1920 Ky. LEXIS 154 ( Ky. 1920 ).

5. — Intervening Matter.

Grantor’s signature in the acknowledgement portion of a deed is sufficient under this section. Gentry's Guardian v. Gentry, 219 Ky. 569 , 293 S.W. 1094, 1927 Ky. LEXIS 396 ( Ky. 1927 ).

6. — Preceding Writing.

A title bond signed near the beginning of the instrument was not valid. Rowe v. Ratliff's Heirs, 225 Ky. 70 , 7 S.W.2d 852, 1928 Ky. LEXIS 720 ( Ky. 1928 ).

Signature appearing in inverted form on upper left-hand corner of writing, where signature would have been had the instrument been inverted, sufficiently complies with this section where there is no evidence of unauthenticated appendages. Zimmerman v. Segal, 288 Ky. 33 , 155 S.W.2d 20, 1941 Ky. LEXIS 40 ( Ky. 1941 ).

This section does not make the fact that jurors signed their verdict at the top rather than the bottom reversible error. Pardue v. Pardue, 312 Ky. 370 , 227 S.W.2d 403, 1950 Ky. LEXIS 640 ( Ky. 1950 ).

7. — In Middle of Writing.

A signature placed at the end raises the logical inference that the document expresses all which the signer desires to authenticate and to which he intends to be bound, whereas a signature in the middle of a writing gives no such assurance and gives no indication of an intent to be bound by matters which do not appear above the signature. R. C. Durr Co. v. Bennett Industries, Inc., 590 S.W.2d 338, 1979 Ky. App. LEXIS 484 (Ky. Ct. App. 1979).

8. Appendages Following Signature.

Where entire disposition of estate contemplated by testatrix was in that part of her will preceding her signature, the fact that she added another clause, following her signature, appointing executors and giving them power of sale, will not invalidate the part of the will preceding the signature. Ward v. Putnam, 119 Ky. 889 , 85 S.W. 179, 27 Ky. L. Rptr. 367 , 1905 Ky. LEXIS 56 ( Ky. 1905 ).

Clause in nature of attestation clause, following testatrix’ signature to will, does not invalidate will. Parrott v. Parrott's Adm'x, 270 Ky. 544 , 110 S.W.2d 272, 1937 Ky. LEXIS 115 ( Ky. 1937 ).

Matter following signature of testator and date on will, evidently added as an afterthought, is deemed to be an attempted codicil and does not invalidate will, whether added shortly after will was signed or after lapse of long period of time. Parrott v. Parrott's Adm'x, 270 Ky. 544 , 110 S.W.2d 272, 1937 Ky. LEXIS 115 ( Ky. 1937 ).

A signature at the end of a writing authenticates all matter appearing above it, and this section precludes unauthenticated appendages to writings. Zimmerman v. Segal, 288 Ky. 33 , 155 S.W.2d 20, 1941 Ky. LEXIS 40 ( Ky. 1941 ).

A signature, appearing at the close of a will but prior to the date thereof, meets the requirement of this section that the signature appear at the end of the writing. Fairweather v. Nord, 388 S.W.2d 122, 1965 Ky. LEXIS 413 ( Ky. 1965 ).

9. Attached Signature.

Printed signature of auctioneer on newspaper clipping of advertisement of sale, which was clipped to memorandum of sale, is not a sufficient signature to make memorandum binding on vendor under statute of frauds. Kaiser v. Jones, 157 Ky. 607 , 163 S.W. 741, 1914 Ky. LEXIS 331 ( Ky. 1914 ).

Court will be disposed to hold instrument to be a valid holographic will, where testator’s signature appeared at the end, even if proof should show that signature had been cut from a prior will and pasted on the instrument. Bennett v. Bennett's Ex'x, 303 Ky. 565 , 198 S.W.2d 301, 1946 Ky. LEXIS 899 ( Ky. 1946 ).

Even with liberal interpretation of the requirement that a will be signed by its maker at the end or close, the maker’s signature on a sealed envelope in which an unsigned will is found does not constitute substantial compliance with the requirement. Miller's Ex'r v. Shannon, 299 S.W.2d 103, 1957 Ky. LEXIS 389 ( Ky. 1957 ).

10. Detached Sheets.

Will consisting of two (2) detached sheets of paper, the first containing the body of the will and the second containing the attestation clause and signatures, is properly admitted to probate on proof of identity of papers by scrivener and attesting witnesses. Cole v. Webb, 220 Ky. 817 , 295 S.W. 1035, 1927 Ky. LEXIS 620 ( Ky. 1927 ).

Where a testatrix leaves three (3) sets of papers in no determinable order in an envelope which she refers to as her will, where only the second set is attested to by two (2) witnesses, and where the final set consisting of five (5) handwritten pages makes all of the testatrix’ purported dispositions, all of which pages are signed except page five (5) on which the testatrix has disposed of her home and jewelry, the testatrix has not complied with the requirement of this section that her signature be subscribed at the end or close of the will and the will cannot be admitted to probate. Teater v. Newman, 472 S.W.2d 696, 1971 Ky. LEXIS 215 ( Ky. 1971 ).

11. Reverse Side of Paper.

Where body of will and testimonium clause occupy all but three (3) lines of ruled legal cap sheet, and attestation clause is placed on first line of reverse side of sheet, immediately followed by signatures of testatrix and witnesses, the will is valid. Lucas v. Brown, 187 Ky. 502 , 219 S.W. 796, 1920 Ky. LEXIS 154 ( Ky. 1920 ).

Writing authorizing agent to sell “property described on the reverse side of this card” is sufficiently signed, where writing is signed at bottom of face of card, followed by word “over,” and description of property and selling price are given on reverse side. Kelley v. J. R. Rice Realty Co., 235 Ky. 643 , 32 S.W.2d 39, 1930 Ky. LEXIS 446 ( Ky. 1930 ).

A dispositive clause on the reverse side of the sheet of a will on which testator’s signature appeared does not invalidate the will. Parrott v. Parrott's Adm'x, 270 Ky. 544 , 110 S.W.2d 272, 1937 Ky. LEXIS 115 ( Ky. 1937 ).

Merger clause which appeared on reverse side of original purchase agreement that was signed on the front, was ineffective since it was not incorporated by reference on the front of the page. J.P. Morgan Delaware v. Onyx Arabians II, Ltd., 825 F. Supp. 146, 1993 U.S. Dist. LEXIS 8694 (W.D. Ky. 1993 ).

Where paragraph containing waiver of defenses appeared on reverse side of single page contract document which on the front page above the signatures contained language which incorporated the terms printed on the reverse relating to warranties, but there was no incorporation of “waiver of defenses” clause, the parties were not bound by it. J.P. Morgan Delaware v. Onyx Arabians II, Ltd., 825 F. Supp. 146, 1993 U.S. Dist. LEXIS 8694 (W.D. Ky. 1993 ).

12. Check Indorsement.

Indorsement, by vendor of land, on back of check given by vendee as part payment for land, does not make check sufficient memorandum under the statute of frauds. Rhinehart v. Kelley, 145 Ky. 470 , 140 S.W. 653, 1911 Ky. LEXIS 877 ( Ky. 1911 ). See Campbell v. Pursifull, 300 Ky. 108 , 188 S.W.2d 108, 1945 Ky. LEXIS 513 ( Ky. 1945 ).

13. Incorporation by Reference.

Subsection (1) of this section does not abolish the doctrine of incorporation by reference. Childers & Venters, Inc. v. Sowards, 460 S.W.2d 343, 1970 Ky. LEXIS 582 ( Ky. 1970 ).

Subsection (1) of this section does not abolish the doctrine of incorporation by reference; therefore where the signatures appear below the incorporating language, which must be conspicuous by being in larger or other contrasting type or color, then those additional provisions be they on the same page or the rear thereof, are binding upon the parties. Hertz Commercial Leasing Corp. v. Joseph, 641 S.W.2d 753, 1982 Ky. App. LEXIS 262 (Ky. Ct. App. 1982).

Where an equipment leasing agreement contained a paragraph to the effect that the parties agreed to abide by “terms and conditions” set out later in the agreement, and the incorporating language of that paragraph was printed in larger letters and darker ink than the balance of the contract, the defendant lessee was bound by the “terms and conditions,” even though they appeared below his signature on the first page of the agreement, and even though they covered the entire back of that page. Hertz Commercial Leasing Corp. v. Joseph, 641 S.W.2d 753, 1982 Ky. App. LEXIS 262 (Ky. Ct. App. 1982).

Subsection (1) of this section did not abolish the doctrine of incorporation by reference; when the signature is in the middle of a writing, it gives no assurance that the contracting parties intend to be bound by matters which do not appear above their signatures; however, when a signature is placed after clear language has expressed the incorporation of other terms and conditions by reference, it is a logical inference that the signer agrees to be bound by everything incorporated. Bartelt Aviation, Inc. v. Dry Lake Coal Co., 682 S.W.2d 796, 1985 Ky. App. LEXIS 493 (Ky. Ct. App. 1985).

Subsection (1) of this section does not abolish incorporation of terms and conditions by reference in commercial contracts; however, any incorporating language must appear above the signature line of the contract in order to be valid and enforceable in the courts. Consolidated Aluminum Corp. v. Krieger, 710 S.W.2d 869, 1986 Ky. App. LEXIS 1120 (Ky. Ct. App. 1986).

Where the terms and conditions of sale, which contained an express exclusion of consequential damages, appeared on the reverse side of the seller’s acknowledgment form below the signature line, and the language on the face of the contract incorporating those terms and conditions by reference also appeared below the signature line, those terms and conditions and the incorporating language were not part of the contract between the buyer and the seller; therefore, the lower court did not err in awarding the buyer consequential damages under subsection (2) of KRS 355.2-712 and KRS 355.2-715. Consolidated Aluminum Corp. v. Krieger, 710 S.W.2d 869, 1986 Ky. App. LEXIS 1120 (Ky. Ct. App. 1986).

Students who signed a student enrollment agreement midway through the document were not bound by the arbitration provision on the reverse side of the agreement because the incorporating language found in the agreement did not clearly and unmistakably evince the parties' intent to submit questions of arbitrability to the arbitrator; the college's language was not clear enough to overcome statute and the requirement that parties show assent to be bound by terms of a contract. Dixon v. Daymar Colls. Grp., LLC, 483 S.W.3d 332, 2015 Ky. LEXIS 73 ( Ky. 2015 ).

14. Substitute for Proper Placement.

Where a testatrix has not signed her purported will at the end of the writing, this section makes it clear that there is no substitute for the proper placing of the signature even though the intention of the testatrix may be clear from other evidence, such as an oral declaration that the writing is her will. Teater v. Newman, 472 S.W.2d 696, 1971 Ky. LEXIS 215 ( Ky. 1971 ).

15. Uniform Commercial Code.

The definition of “signed” contained in the Uniform Commercial Code relates to what constitutes a valid signature, not to where the signature must be placed. R. C. Durr Co. v. Bennett Industries, Inc., 590 S.W.2d 338, 1979 Ky. App. LEXIS 484 (Ky. Ct. App. 1979).

Cited:

Pugh v. Jackson, 154 Ky. 772 , 159 S.W. 600, 1913 Ky. LEXIS 176 ( Ky. 1913 ); Hensley v. O’Forest, 313 Ky. 789 , 233 S.W.2d 996, 1950 Ky. LEXIS 994 ( Ky. 1950 ); Whitcomb v. Whitcomb, 267 S.W.2d 400, 1954 Ky. LEXIS 837 ( Ky. 1954 ); State St. Bank & Trust Co. v. Heck’s Inc., 963 S.W.2d 626, 1998 Ky. LEXIS 27 ( Ky. 1998 ).

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Roeder, Commercial Law, 69 Ky. L.J. 517 (1980-81).

Kentucky Survey of Law, Nowka, Commercial Law, 72 Ky. L.J. 337 (1983-84).

Note: English Only?-The “Power” of Kentucky’s Official Language Statute, 98 Ky. L.J. 855 (2009/2010).

446.070. Penalty no bar to civil recovery.

A person injured by the violation of any statute may recover from the offender such damages as he sustained by reason of the violation, although a penalty or forfeiture is imposed for such violation.

History. 466.

NOTES TO DECISIONS

Analysis

  1. In General.
  2. Purpose.
  3. Applicability.
  4. Common-law Offense.
  5. Federal Statute.
  6. City Ordinances.
  7. Safety Statutes.
  8. Administrative Regulations.
  9. Workers’ Compensation Claims.
  10. Railroads.
  11. Class Protected by Statute.
  12. Corporations.
  13. Commonwealth.
  14. Right of Action.
  15. — Unfair Claims Practices  Act.
  16. —Statutory Provision.
  17. Absence of Penalty.
  18. Violation by Agent.
  19. Charitable Organizations.
  20. Specific Violations.
  21. — Banking Laws.
  22. — Building Code Violation.
  23. — Deceptive Practices.
  24. — Cattle Running at Large.
  25. — Fences.
  26. — Slander.
  27. — Fornication and Adultery.
  28. — Preventing Performance  of Duty by Officer.
  29. — Drug Sales.
  30. — Seed Labeling.
  31. — Unauthorized Insurance  Sales.
  32. — Plugging Wells.
  33. — Desecration of Grave.

26.5. —Forgery.

26.6. —Falsification of Business Records.

35. —Kentucky Wage and Hours Act.

35.5. —Harassment.

35.6. —Treatment of Prisoners.

35.7. —Negligence per se.

36. Bad Faith.

37. Proof of Violation.

38. Proximate Cause.

39. Contributory Negligence.

40. — Minor.

41. Violation as a Defense.

42. Jury Instructions.

43. Immunity From Damages.

44. Federal Preemption.

1. In General.

This section permits a person injured by the violation of a statute to recover damages by reason of the violation. Allen v. Lovell's Adm'x, 303 Ky. 238 , 197 S.W.2d 424, 1946 Ky. LEXIS 833 ( Ky. 1946 ).

This section provides a cause of action but does not establish a measure of damages. Michals v. William T. Watkins Memorial United Methodist Church, 873 S.W.2d 216, 1994 Ky. App. LEXIS 25 (Ky. Ct. App. 1994).

Federal District Court refused to apply direct-purchaser rule, which does not exist under Kentucky law, to Kentucky state-law claim for the first time, as whether the direct-purchaser rule should limit the class of injured parties able to recover for a violation of the commercial bribery statute was a decision best left to Kentucky courts. Big Rivers Elec. Corp. v. Thorpe, 921 F. Supp. 460, 1996 U.S. Dist. LEXIS 6365 (W.D. Ky. 1996 ).

This section authorizes a private cause of action against an alleged violator of a state statute, and does not apply to violations of federal regulations; this section allows a person for whose benefit the statute was enacted to recover civil damages even if the violated statute does not provide for a civil remedy. Alderman v. Bradley, 957 S.W.2d 264, 1997 Ky. App. LEXIS 71 (Ky. Ct. App. 1997).

Employee, who was terminated for preparing to report a clear medication error to an appropriate hospital regulatory authority, was entitled to front pay because it was just as much of a “damage sustained” as back pay where the front pay represented a reasonable estimate of damages that would accrue after the trial, the employee suffered a statutory reprisal, and could recover front pay as an element of compensable damages. Macglashan v. ABS LINCS KY, Inc., 448 S.W.3d 792, 2014 Ky. LEXIS 612 ( Ky. 2014 ).

2. Purpose.

This section is intended to remove any doubt that might arise as to the right of a person for whose protection a statute is passed to recover for a violation of that statute, where the statute is penal in its nature, or where by its terms the statute does not prescribe the remedy for its violation. Hackney v. Fordson Coal Co., 230 Ky. 362 , 19 S.W.2d 989, 1929 Ky. LEXIS 86 ( Ky. 1929 ).

Where damages or injuries result from the violation of a statute, the person sustaining the damage or injury may recover same from the offender. Pirtle's Adm'x v. Hargis Bank & Trust Co., 241 Ky. 455 , 44 S.W.2d 541, 1931 Ky. LEXIS 118 ( Ky. 1931 ).

This section is not limited to actions for personal injuries. Roberts v. Hargis, 265 Ky. 282 , 96 S.W.2d 691, 1936 Ky. LEXIS 466 ( Ky. 1936 ).

This section does not authorize recovery where the violation of a statute does not result in damage to the plaintiff. Langston v. Kelly, 272 Ky. 109 , 113 S.W.2d 471, 1938 Ky. LEXIS 72 ( Ky. 1938 ).

A person for whose benefit the statute is enacted may recover damages for injuries he sustained by reason of the violation thereof. Pike v. George, 434 S.W.2d 626, 1968 Ky. LEXIS 235 ( Ky. 1968 ).

3. Applicability.

This section is limited to where the violated statute is penal in nature, or where by its terms the violated statute does not prescribe the remedy for its violation. Where the violated statute both declares the unlawful act and specifies the civil remedy available to the aggrieved party, the aggrieved party is limited to the remedy provided by the violated statute. Grzyb v. Evans, 700 S.W.2d 399, 1985 Ky. LEXIS 279 ( Ky. 1985 ).

The Unfair Claims Settlement Practices Act does not provide the aggrieved party with a civil remedy and therefore this section applies to such a violation. State Farm Mut. Auto. Ins. Co. v. Reeder, 763 S.W.2d 116, 1988 Ky. LEXIS 78 ( Ky. 1988 ).

Plaintiff’s state-law causes of action for fraud, perjury, and outrage based on defendants’ having filed allegedly false proofs of claim in a bankruptcy proceeding and having given allegedly false testimony in a criminal trial were properly dismissed as protected under the judicial-proceeding privilege. The United States Court of Appeals for the Sixth Circuit did not accept plaintiff’s argument that KRS 446.070 applied to the conduct at issue (i.e., defendants violated the Kentucky statute that prohibited perjury and related offenses) because the Sixth Circuit concluded that KRS 446.070 did not abrogate the judicial-proceeding privilege. Heavrin v. Nelson, 384 F.3d 199, 2004 FED App. 0312P, 2004 U.S. App. LEXIS 19141 (6th Cir. Ky. 2004 ).

“Any statute,” as used in KRS 446.070 , is limited to Kentucky statutes, and is not applicable to federal statutes or local ordinances; the General Assembly did not intend for KRS 446.070 to embrace the whole of federal laws and the laws of other states, and thereby confer a private civil remedy for such a vast array of violations. T & M Jewelry, Inc. v. Hicks, 189 S.W.3d 526, 2006 Ky. LEXIS 102 ( Ky. 2006 ).

Since recovery allowed by KRS 446.070 did not extend beyond those public safety regulations which were enabled by and closely based on Kentucky statutes, the injured person could not rely upon that statute for recovery against the landlords where the injured person fell while stepping into a parking lot. Dutton v. McFarland, 199 S.W.3d 771, 2006 Ky. App. LEXIS 82 (Ky. Ct. App. 2006).

Private right of action for violations of the state constitution is not created by KRS 446.070 because the constitution is not a statute. St. Luke Hosp., Inc. v. Straub, 354 S.W.3d 529, 2011 Ky. LEXIS 160 ( Ky. 2011 ).

When the mother of a disabled child sued the estate of the child’s father regarding various statutory violations in the handling of the estate which allegedly resulted in denying the child the opportunity to present a child support claim against the estate, it was error to dismiss the complaint on summary judgment because Kentucky statutes were violated, presenting a genuine issue of material fact as to the child’s possible injury. Thompson v. Porter, 2012 Ky. App. LEXIS 248 (Ky. Ct. App. Nov. 30, 2012), op. withdrawn, sub. op., 2013 Ky. App. Unpub. LEXIS 418 (Ky. Ct. App. May 24, 2013).

Counties were not within the class of persons that the Kentucky General Assembly sought to protect under the statute. Boyd Cnty. ex rel. Hedrick v. Merscorp, Inc., 614 Fed. Appx. 818, 2015 FED App. 0410N, 2015 U.S. App. LEXIS 9458 (6th Cir. Ky. 2015 ).

Circuit court properly granted summary judgment in favor of a county and five corrections officers in defendant's action to recover damages for injuries she sustained when the officers used excessive force against her because she could not circumvent the one-year statute of limitations by characterizing her personal-injury tort claims as statutory violations, defendant waited nearly five years before she filed suit, and her plea agreement in the criminal action barred her subsequent claim of malicious prosecution as a matter of law. Goins v. LaFoe, 2016 Ky. App. LEXIS 89 (Ky. Ct. App. May 27, 2016), review denied, ordered not published, 2017 Ky. LEXIS 297 (Ky. Aug. 16, 2017).

Court rejected tenants' arguments that the statute gave them a cause of action under the Kentucky Consumer Protection Act and that the landlords' failure to adequately address the mold issue more quickly constituted unfair, false, misleading, or deceptive acts. Joiner v. Tran & P Properties, LLC, 526 S.W.3d 94, 2017 Ky. App. LEXIS 348 (Ky. Ct. App. 2017).

Statute addressed violations of a statute, not an ordinance, and thus the tenants' claim regarding the violation of an ordinance failed. Joiner v. Tran & P Properties, LLC, 526 S.W.3d 94, 2017 Ky. App. LEXIS 348 (Ky. Ct. App. 2017).

Claim alleging that an oil transportation company had aided and abetted securities violations as an agent failed as a matter of law because the company had not yet been created when the securities were sold. Moreover, this section was not shown to be applicable with regard to a securities fraud claim, nor was there any support for a contention that aiding and abetting liability should apply in the context of this section. Sierra Enters. v. SWO & ISM, LLC, 264 F. Supp. 3d 826, 2017 U.S. Dist. LEXIS 138436 (W.D. Ky. 2017 ).

Trial court properly denied the employee’s claim for front damages because the judgment clearly reflected the trial court’s consideration that the employee’s attorneys were not totally successful in the litigation and the employee could not search for remedies where the Whistleblower statute did not mention front pay as an available remedy. Univ. of Louisville v. Harper, 576 S.W.3d 595, 2019 Ky. App. LEXIS 62 (Ky. Ct. App. 2019).

4. Common-law Offense.

This statute does not apply where the violation on which recovery is sought is only a common-law offense, and not a violation of a statute. Reed v. Maley, 115 Ky. 816 , 74 S.W. 1079, 25 Ky. L. Rptr. 209 , 1903 Ky. LEXIS 158 ( Ky. 1903 ).

Because KRS 235.300 and 446.070 merely codified common law liability for watercraft accidents and did not create a new theory of liability, a passenger’s claim against a festival’s sponsor and organizers remained a common law personal injury claim; therefore, the trial court properly applied the one-year statute of limitations of KRS 413.140(1)(a). Toche v. Am. Watercraft Ass'n, 176 S.W.3d 694, 2005 Ky. App. LEXIS 237 (Ky. Ct. App. 2005).

5. Federal Statute.

Railroad company is civilly liable for damages to shipper resulting from failure of company to comply with federal statute as to care of cattle during shipment. Cincinnati, N. O. & T. P. R. R. v. Gregg, 80 S.W. 512, 25 Ky. L. Rptr. 2329 (1904).

Because Congress did not intend to permit a private cause of action under the F.T.C. Act and regulations, franchisees could not invoke this section to claim that franchisors’ violations of federal regulations regarding disclosure requirements and prohibitions regarding franchising opportunities created a private right of action to accrue. St. Martin v. KFC Corp., 935 F. Supp. 898, 1996 U.S. Dist. LEXIS 10268 (W.D. Ky. 1996 ).

Summary judgment was properly granted to a sporting goods store and its owner in a negligence per se action arising out of the sale of a handgun to an 18 year-old individual in violation of 18 USCS § 922(b) because KRS 446.070 did not reach federal statutes and did not give rise to a private cause of action for violation of the Federal Gun Control Act, 18 USCS §§ 922 et seq. Hicks v. T & M Jewelry, Inc., 2003 Ky. App. LEXIS 188 (Ky. Ct. App. Aug. 1, 2003), aff'd, 189 S.W.3d 526, 2006 Ky. LEXIS 102 ( Ky. 2006 ).

Since no civil remedy existed, either explicitly or implicitly, for a violation of the Gun Control Act of 1968, 18 U.S.C.S. § 922(b)(1), a store’s violation of that federal statute by selling a gun to a person it knew was under 21 could not support negligence per se; moreover, since KRS 446.070 was limited to violations of state statutes, and did not confer a private civil remedy for violations of federal statutes, summary judgment was proper on a claim of negligence per se. T & M Jewelry, Inc. v. Hicks, 189 S.W.3d 526, 2006 Ky. LEXIS 102 ( Ky. 2006 ).

Because the Health Insurance Portability and Accountability Act of 1996 (HIPAA), 42 USCS § 1320d et seq., was not a Kentucky statute, KRS 446.070 did not act to create a cause of action for HIPAA violations that a mother could assert based on the improper disclosure of the mother’s medical and psychiatric records to the father of the mother’s child during a child custody proceeding. Young v. Carran, 289 S.W.3d 586, 2008 Ky. App. LEXIS 317 (Ky. Ct. App. 2008).

6. City Ordinances.

This section does not apply to violations of city ordinances. Baker v. White, 251 Ky. 691 , 65 S.W.2d 1022, 1933 Ky. LEXIS 954 ( Ky. 1933 ). See Equitable Life Assurance Soc. v. McClellan, 286 Ky. 17 , 149 S.W.2d 730, 1941 Ky. LEXIS 207 ( Ky. 1941 ).

7. Safety Statutes.

Recovery for violation of safety statute is allowed because violation constitutes negligence. Illinois C. R. Co. v. McIntosh, 118 Ky. 145 , 80 S.W. 496, 81 S.W. 270, 26 Ky. L. Rptr. 14 , 26 Ky. L. Rptr. 347 , 1904 Ky. LEXIS 17 ( Ky. 1904 ).

Recovery may be had, in the case of a violation of a safety statute, by any person who has suffered special damage. Sutton's Adm'r v. Wood, 120 Ky. 23 , 85 S.W. 201, 27 Ky. L. Rptr. 412 , 1905 Ky. LEXIS 67 ( Ky. 1905 ).

Minor injured by failure of mine operator to provide statutory safeguards can recover damages from operator. Andricus' Adm'r v. Pineville Coal Co., 121 Ky. 724 , 90 S.W. 233, 28 Ky. L. Rptr. 704 , 1906 Ky. LEXIS 251 ( Ky. 1906 ).

Violation of a safety statute is negligence per se, and civil recovery may be had by anyone damaged by such violation. Andricus' Adm'r v. Pineville Coal Co., 121 Ky. 724 , 90 S.W. 233, 28 Ky. L. Rptr. 704 , 1906 Ky. LEXIS 251 ( Ky. 1906 ).

Although criminal penalty for violation of safety statute is recoverable only in case of willful violation, civil recovery may be had for negligent violation. New Bell Jellico Coal Co. v. Sowders, 154 Ky. 101 , 156 S.W. 1046, 1913 Ky. LEXIS 21 ( Ky. 1913 ).

Bank operating hotel as trustee under trust deed is liable in damages for death of guest proximately resulting from violation of statute requiring fire escapes and extinguishers. Turner v. Taylor's Adm'x, 262 Ky. 304 , 90 S.W.2d 73, 1936 Ky. LEXIS 28 ( Ky. 1936 ). See Pirtle's Adm'x v. Hargis Bank & Trust Co., 241 Ky. 455 , 44 S.W.2d 541, 1931 Ky. LEXIS 118 ( Ky. 1931 ).

This section allows a plaintiff to pursue an action under KRS 179.070 based on the failure of a county engineer to remove trees or other obstacles from a right-of-way because the $100 penalty prescribed in the latter statute does not give a remedy to the aggrieved party. Ezell v. Christian County, 245 F.3d 853, 2001 FED App. 0117P, 2001 U.S. App. LEXIS 6431 (6th Cir. Ky. 2001 ).

8. Administrative Regulations.

KRS 13.081 (repealed) does not stand for the proposition that KRS 446.070 allows recovery for violation of an administrative regulation. Ctr. College v. Trzop, 127 S.W.3d 562, 2003 Ky. LEXIS 263 ( Ky. 2003 ).

Regulations requiring due process procedures for private colleges, which were adopted under KRS 164.945 to 164.947 , did not authorize recovery under KRS 446.070 because they are not consistent with their enabling legislation; therefore, summary judgment was properly granted in favor of a private college in a student’s action that alleged that the college failed to provide due process protections before dismissing the student for the unauthorized possession of a knife. Ctr. College v. Trzop, 127 S.W.3d 562, 2003 Ky. LEXIS 263 ( Ky. 2003 ).

An injured worker did not have a private right of action under KRS 446.070 against the owner of the work site for violations of 803 Ky. Admin. Regs. 2:412 and 2:303 since: (1) the facility was not a regular job site, and the owner was not an employer with respect the plant or the renovation, (2) while the owner had ultimate control of the premises, it did not retain sufficient control of the subcontractor’s employees or the painting work to be regarded as an employer responsible for safety violations since the contract between the owner and the contractor conferred upon the contractor the responsibility to assure compliance with safety regulations, and (3) there was no public policy violation as the standards under the Kentucky Occupational Safety and Health Act, KRS 338.011 et seq., applied only to employers and employees. Pennington v. Meadwestvaco Corp., 238 S.W.3d 667, 2007 Ky. App. LEXIS 180 (Ky. Ct. App. 2007).

9. Workers’ Compensation Claims.

Claims covered under the workers’ compensation act are excluded from coverage under this statute. Simmons v. Clark Constr. Co., 426 S.W.2d 930, 1968 Ky. LEXIS 663 ( Ky. 1968 ).

Worker’s private cause of action against a workers’ compensation insurer was barred by the exclusive remedy provision of the workers’ compensation laws. Neither KRS 342.267 nor KRS 446.070 authorized the worker’s private cause of action against the workers’ compensation insurer for an alleged unfair claims settlement practice. Travelers Indem. Co. v. Reker, 100 S.W.3d 756, 2003 Ky. LEXIS 86 ( Ky. 2003 ).

10. Railroads.

Railroad section hand, injured by reason of failure of engineer to sound bell and whistle at crossing, as required by statute, can recover from company, even though statute is primarily for benefit of travelers and not railroad employees. Illinois C. R. Co. v. McIntosh, 118 Ky. 145 , 80 S.W. 496, 81 S.W. 270, 26 Ky. L. Rptr. 14 , 26 Ky. L. Rptr. 347 , 1904 Ky. LEXIS 17 ( Ky. 1904 ).

Fact that statute requiring spark arresters on railroad engines, and statute requiring right of way to be kept clear of combustible material, are intended only for protection of property adjoining right of way, will not prevent recovery of damages by remote property owner injured as result of fire started by failure to comply with statutes. Louisville & N. R. Co. v. Haggard, 161 Ky. 317 , 170 S.W. 956, 1914 Ky. LEXIS 73 ( Ky. 1914 ).

Railroad company is liable for personal injuries to buggy rider who was injured when horse ran away because of being burned by cinders and sparks from engine which did not have statutory spark arrester, as against contention that statute requiring spark arrester is intended only to protect property along right of way. Louisville & N. R. Co. v. Epley, 203 Ky. 461 , 262 S.W. 626, 1924 Ky. LEXIS 942 ( Ky. 1924 ).

11. Class Protected by Statute.

A cause of action arising out of the violation of a statute exists only in favor of such persons as belong to the class intended to be protected by the statute. Hackney v. Fordson Coal Co., 230 Ky. 362 , 19 S.W.2d 989, 1929 Ky. LEXIS 86 ( Ky. 1929 ).

Statute prohibiting employer from coercing employees to trade at company store is intended only for protection of employees, and violation of such statute would not give rise to cause of action in favor of competing merchant. Hackney v. Fordson Coal Co., 230 Ky. 362 , 19 S.W.2d 989, 1929 Ky. LEXIS 86 ( Ky. 1929 ).

The Kentucky Rules of Racing specifically outline those persons intended to be protected by the rules for eligibility of horses, and these include owners, trainers and jockeys; however, persons wagering on horse races are not intended to be protected by the rules for the eligibility of horses and as such, do not have a private cause of action under this section. White v. Turfway Park Racing Asso., 718 F. Supp. 615, 1989 U.S. Dist. LEXIS 8512 (E.D. Ky. 1989 ), aff'd, 909 F.2d 941, 1990 U.S. App. LEXIS 12648 (6th Cir. Ky. 1990 ).

Non-profit union multi-employer health and welfare trust funds were not within the class of persons intended to be protected by KRS 367.170 and, therefore, could not recover under this section. Kentucky Laborers Dist. Council Health & Welfare Trust Fund v. Hill & Knowlton, 24 F. Supp. 2d 755, 1998 U.S. Dist. LEXIS 16052 (W.D. Ky. 1998 ).

Where a regional airport authority (RAA) acquired real property as part of an airport project, then sued the prior landowner to recover the cost of cleaning up environmental contamination based on the theory of negligence per se, and the RAA cited violations of KRS 77.155 , Kentucky environmental regulations, and Environmental Protection Agency regulations, the harm for which the RAA sought to recover — the costs incurred in cleaning up contamination — was not the type of harm that the cited statutes and regulations intended to prevent but rather, to avoid air pollution and contamination. Reg'l Airport Auth. v. LFG, LLC, 2003 U.S. Dist. LEXIS 11904 (W.D. Ky. June 19, 2003).

KRS 186A.540 imposes an affirmative duty on motor vehicle dealers to disclose repairs exceeding $1,000, and a truck buyer who bought the truck for commercial purposes was within the class intended to be protected by KRS 186A.540 . Thus, it was error to dismiss the buyer’s claim against a dealership on grounds he did not allege the truck’s damages occurred while in the dealership’s possession. Keeton v. Lexington Truck Sales, Inc., 275 S.W.3d 723, 2008 Ky. App. LEXIS 226 (Ky. Ct. App. 2008).

Construction company did not owe an independent contractor’s employee any duty under the Kentucky Occupational Safety and Health Act where the independent contractor had contracted with the homeowners and had not reached out to the company to coordinate a time for the employee to perform the work, and thus, there was no pseudo employer-employee relationship contemplated by the case law interpreting Ky. Rev. Stat. Ann. § 338.031(1). Holder v. Paragon Homes, LLC, 2020 Ky. App. LEXIS 39 (Ky. Ct. App. Apr. 3, 2020).

12. Corporations.

The injury contemplated by this section is not confined to personal injury and a corporation may recover damages under this section. Maysville Transit Co. v. Ort, 296 Ky. 524 , 177 S.W.2d 369, 1943 Ky. LEXIS 161 ( Ky. 1943 ).

13. Commonwealth.

The Commonwealth can recover damages from an adjoining landowner for cutting trees on a highway right of way in violation of a statute imposing a fine for cutting trees on a right of way without permission. Commonwealth ex rel. Keck v. Shouse, 245 S.W.2d 441, 1952 Ky. LEXIS 587 ( Ky. 1952 ).

14. Right of Action.

The fact that certain conduct constitutes an indictable offense at common law does not make such conduct civilly actionable, where there is no common-law civil action for such conduct. Reed v. Maley, 115 Ky. 816 , 74 S.W. 1079, 25 Ky. L. Rptr. 209 , 1903 Ky. LEXIS 158 ( Ky. 1903 ).

This section does not create any right of action, but merely removes any bar to a common-law right of action that might be considered to exist because of the criminal penalty. Reed v. Maley, 115 Ky. 816 , 74 S.W. 1079, 25 Ky. L. Rptr. 209 , 1903 Ky. LEXIS 158 ( Ky. 1903 ).

Refusal to allow a bettor to maintain an action against a racetrack for failure to post the workout time of one winning horse did not violate this section; bettor was not within the class protected by Kentucky rule of finality that applied once the “official” results were posted. White v. Turfway Park Racing Ass'n, 909 F.2d 941, 1990 U.S. App. LEXIS 12648 (6th Cir. Ky. 1990 ).

Federal Department of Transportation regulations requiring drug and alcohol testing for safety-sensitive positions in transportation industries did not provide a private cause of action to aggrieved employees for a violation of the procedural protections; KRS 446.070 did not apply to the federal regulation. Jackson v. JB Hunt Transp., Inc., 384 S.W.3d 177, 2012 Ky. App. LEXIS 6 (Ky. Ct. App. 2012).

Court would not reconsider its finding that the counties lacked a private right of action to enforce the requirement of this section that mortgage assignments be recorded as they were not among the three categories of persons that the Kentucky General Assembly protected when it passed the statute because the counties merely reasserted the same arguments that the court considered and rejected based on controlling Sixth Circuit precedent. Boyd County ex rel. Hedrick v. MERSCORP, Inc., 985 F. Supp. 2d 823, 2014 U.S. Dist. LEXIS 59921 (E.D. Ky. 2014 ).

Circuit court properly granted summary judgment to a Medicaid managed care organization (MCO) and dismissed a hospital's cross-motion and cross-motion and petition seeking a declaratory judgment because the state anti-dumping statute did not provide the hospital with a private right of action to sue the MCO, the provider agreement contract between the hospital and the MCO stated that the hospital had to exhaust all administrative remedies and submit to arbitration before seeking any other remedy, and the private right of action statute did not give rise to a cause of action for violation of a federal statute, thus eliminating the Emergency Medical Treatment and & Women in Active Labor Act as a basis for the suit. Harrison Mem'l Hosp., Inc. v. Wellcare Health Ins. Co. of Ky., 509 S.W.3d 69, 2016 Ky. App. LEXIS 136 (Ky. Ct. App. 2016).

Circuit court properly granted the Louisville Metro Department of Corrections and its director summary judgment on an administratrix’s constitutional claims because Kentucky did not recognize a cause of action that arose from the violation of the State constitution. A.H. v. Louisville Metro Gov't, 2018 Ky. App. LEXIS 183 (Ky. Ct. App. June 8, 2018).

Kentucky Supreme Court will not create a Bivens-type action allowing a prisoner to seek money damages for a violation of the statute. A.H. v. Louisville Metro Gov't, 2020 Ky. LEXIS 445 (Ky. Dec. 17, 2020).

15. — Unfair Claims Practices Act.

Trial court did not err in instructing the jury that damages could be awarded for anxiety, mental anguish, and loss of consortium under KRS 304.12-230 . The right of a private citizen to maintain an action for violation of the Unfair Claims Practices Act is supported by this section and has not been nullified by the passage of KRS 304.12-235 . FB Ins. Co. v. Jones, 864 S.W.2d 926, 1993 Ky. App. LEXIS 92 (Ky. Ct. App. 1993).

Notwithstanding Phoenix Healthcare, a plaintiff alleging the late payment of basic reparation benefits is permitted to bring a private cause of action under KRS 446.070 for bad faith under the Kentucky Unfair Claims Settlement Practices Act, KRS 304.12-230 , and for punitive damages when alleging bad conduct on the part of the insurance carrier. Hartley v. Geico Cas. Co., 2004 Ky. App. LEXIS 270 (Ky. Ct. App. Sept. 17, 2004), vacated, 2006 Ky. LEXIS 340 (Ky. July 20, 2006).

Material question of fact as to when plaintiffs made their claim for medical expenses from an insurer precluded granting summary judgment to the insurer on plaintiffs’ bad faith claim filed under KRS 446.070 and 304.12-230 . Hartley v. Geico Cas. Co., 2004 Ky. App. LEXIS 270 (Ky. Ct. App. Sept. 17, 2004), vacated, 2006 Ky. LEXIS 340 (Ky. July 20, 2006).

Based upon the allegations contained in the complaint, it was clear that the insured asserted claims for more than late payments; in addition to seeking such payments, she alleged “bad conduct” on the part of the insurer under Kentucky’s Unfair Claims Settlement Practices Act. While the court could not address the merit of such claims, at this stage of the proceedings, it concluded that the claims fell outside the limited holdings of the cases cited by the insurer and the insurer’s motion for judgment on the pleadings was denied. Allstate Ins. Co. v. Blankenship, 2005 U.S. Dist. LEXIS 26275 (E.D. Ky. Oct. 31, 2005).

Plaintiff alleging the late payment of basic reparations benefits, is permitted to bring a private cause of action under KRS 446.070 for bad faith under the Unfair Claims Settlement Practices Act and for punitive damages when alleging bad conduct on the part of the insurance carrier. Allstate Ins. Co. v. Blankenship, 2005 U.S. Dist. LEXIS 26275 (E.D. Ky. Oct. 31, 2005).

16. —Statutory Provision.

Although statute prohibiting location of pest house within one (1) mile of city provides expressly for recovery of damages against city officers responsible for violation, this does not prevent recovery of damages against the city itself, by virtue of this section. Henderson v. Clayton, 57 S.W. 1, 22 Ky. L. Rptr. 283 , 1900 Ky. LEXIS 647 (Ky. Ct. App. 1900).

The legislature may fix a specific penalty for violation of a statute, and provide that the entire penalty go to the party injured and be recovered in a civil action, in addition to actual damages sustained. Whitaker v. Green River Coal Co., 276 Ky. 43 , 122 S.W.2d 1012, 1938 Ky. LEXIS 529 ( Ky. 1938 ).

KRS 304.12-230 does not specifically provide that any individual may maintain a claim for damages for violation of the Uniform Claims Settlement Practice Act. However, KRS 304.12-230 does not state that a violation of its terms is enforceable only by the insurance commissioner, and it does not prohibit a claim by an individual for damages for its breach and a person may maintain an action for damages resulting from the commission of such unfair practices only as a result of this section. State Farm Mut. Auto. Ins. Co. v. Reeder, 763 S.W.2d 116, 1988 Ky. LEXIS 78 ( Ky. 1988 ).

Administratrix of truck driver’s estate had a private right of action under federal and Kentucky law against interstate motor carrier to whom the truck was leased; the driver of such a truck was an intended beneficiary of federal statutes and regulations requiring lessee to assume control over the vehicle and bear responsibility for defects. Johnson v. S.O.S. Transp., 926 F.2d 516, 1991 U.S. App. LEXIS 2728 (6th Cir. Ky. 1991 ).

Although the Kentucky Unfair Claims Settlement Practices Act is a regulatory statute that does not, in itself, provide a private remedy, the Kentucky Supreme Court held that a private right of action is cognizable by operation of this section, which specifies a civil remedy upon the violation of a statute. Cummings v. Thomas Industries, Inc., 812 F. Supp. 99, 1993 U.S. Dist. LEXIS 1248 (W.D. Ky. 1993 ).

Where a home buyer claimed that a realty company and an auctioneer violated KRS 330.110(10) and (11) through various misdeeds associated with an auction, KRS 446.070 did not afford a private right of action for damages caused by a violation of KRS Ch. 330, because KRS Chapter 330 both declared the unlawful act and specified the civil remedy available to the aggrieved party. Thompson v. Breeding, 351 F.3d 732, 2003 FED App. 0433P, 2003 U.S. App. LEXIS 24606 (6th Cir. Ky. 2003 ).

Insureds’ private cause of action for civil damages for violation of KRS 304.12-190 via KRS 446.070 was neither preempted nor precluded by KRS 304.2-165 . The insureds’ failure to lodge a written complaint with the commissioner concerning the alleged unlawfully charged local premium taxes did not otherwise bar the action for failure to exhaust administrative remedies. Kendrick v. Std. Fire Ins. Co., 2007 U.S. Dist. LEXIS 28461 (E.D. Ky. Mar. 31, 2007).

District court refused to grant the city’s motion to dismiss plaintiff’s claim for failure to report child abuse, because the court was persuaded that a negligence per se claim could be brought under KRS 446.070 for a violation of KRS 620.030 for failure to report child abuse. Compton v. City of Harrodsburg, 2013 U.S. Dist. LEXIS 68690 (E.D. Ky. May 10, 2013).

KRS 446.070 , which codifies the doctrine of negligence per se, creates a private right of action for violations of KRS 214.181 . Mallard v. Wynn-Singer & Assocs. (In re Mallard), 2014 Bankr. LEXIS 974 (Bankr. E.D. Ky. Mar. 12, 2014).

17. Absence of Penalty.

The fact that there is no criminal penalty prescribed for violating a particular statute will not prevent recovery by one who has sustained damages by reason of such violation. Louisville & N. R. Co. v. Cooper, 164 Ky. 489 , 175 S.W. 1034, 1915 Ky. LEXIS 415 ( Ky. 1915 ) ( Ky. 1915 ). See Andricus' Adm'r v. Pineville Coal Co., 121 Ky. 724 , 90 S.W. 233, 28 Ky. L. Rptr. 704 , 1906 Ky. LEXIS 251 ( Ky. 1906 ); Graham v. John R. Watts & Son, 238 Ky. 96 , 36 S.W.2d 859, 1931 Ky. LEXIS 191 ( Ky. 1931 ).

18. Violation by Agent.

This section does not authorize recovery against anyone other than the offender. Bray-Robinson Clothing Co. v. Higgins, 210 Ky. 432 , 276 S.W. 129, 1925 Ky. LEXIS 697 ( Ky. 1925 ).

Violation of statute against drunken driving, by employee, cannot be made basis for recovery against employer by person injured when struck by truck driven by drunken employee. Bray-Robinson Clothing Co. v. Higgins, 210 Ky. 432 , 276 S.W. 129, 1925 Ky. LEXIS 697 ( Ky. 1925 ).

Drunkenness on the part of an agent is an act of negligence for which his master becomes liable if the servant otherwise is acting within the scope of his employment. Central Truckaway System, Inc. v. Moore, 304 Ky. 533 , 201 S.W.2d 725, 1947 Ky. LEXIS 681 ( Ky. 1947 ).

Where a pedestrian was injured by a truck driven by a minor, hired by the defendant, a corporate officer, in violation of KRS 339.230(2)(d) and KRS 339.240 (now repealed), there is a sufficient cause of action stated and the motion to dismiss should be overruled. Peters v. Frey, 429 S.W.2d 847, 1968 Ky. LEXIS 758 ( Ky. 1968 ).

19. Charitable Organizations.

Charitable organization operating hospital for indigent is not liable for injuries to child employed by organization in violation of child labor law, but manager who made employment and put child to work will be liable. Emery v. Jewish Hospital Ass'n, 193 Ky. 400 , 236 S.W. 577, 1921 Ky. LEXIS 243 ( Ky. 1921 ).

20. Specific Violations.

Because KRS 446.070 allowed a private cause of action for damages to any person injured by the violation of any statute, and KRS 525.070 and 525.080 prohibited harassment and harassing communications, the court did not dismiss the harassment and intentional infliction of emotional distress claims alleged by plaintiff in connection with the alleged reporting of adverse credit information by the bank. Massey v. MBNA Am. Bank, N.A., 2005 U.S. Dist. LEXIS 28756 (W.D. Ky. Nov. 17, 2005).

Because a truck driver violated KRS 189.450 by parking with his truck extended into a roadway as defined under KRS 189.010 , he was negligent as a matter of law under KRS 446.070 and his employer was vicariously liable for plaintiff’s injuries resulting from that negligence. Norton v. Canadian Am. Tank Lines, 2009 U.S. Dist. LEXIS 2184 (W.D. Ky. Jan. 12, 2009).

Even though the Health Insurance Portability and Accountability Act of 1996 (HIPAA) preempts state law in which KRS 446.070 is applicable, the Kentucky General Assembly does not intend to infer a right under a federal law where Congress has not; therefore, an estate executrix did not have a right of action against attorneys who disclosed medical information during the course of a child custody hearing based on HIPAA. KRS 446.070 did not give a private right of action, and such statutes were preempted by federal law; further, the attorneys were not covered entities to whom the HIPAA regulations applied. Yeager v. Dickerson, 391 S.W.3d 388, 2013 Ky. App. LEXIS 7 (Ky. Ct. App. 2013).

For purposes of an incitement to riot claim relating to a candidate's statement (“get 'em out of here”) at a campaign rally, it was not necessary to allege that a riot actual occurred. To the extent it was necessary to expressly allege the number of people involved or that there was tumult and violence, that requirement was satisfied by the allegation that the candidate directed supporters to eject peaceful protestors using harmful physical force and intended to create a public disturbance involving an assemblage of five or more persons which by tumultuous and violent conduct created grave danger of damage or injury. Nwanguma v. Trump, 273 F. Supp. 3d 719, 2017 U.S. Dist. LEXIS 49013 (W.D. Ky. 2017 ), modified, dismissed, in part, 2017 U.S. Dist. LEXIS 126039 (W.D. Ky. Aug. 8, 2017).

One-year statute of limitations could apply, but additional discovery had to be performed because it had to be determined determine if a mechanic’s lien was filed maliciously, thereby not falling under the one-year statute of limitations. RLB Props., Ltd. v. Seiller Waterman, LLC, 2018 Ky. App. LEXIS 179 (Ky. Ct. App. June 1, 2018), rev'd, in part, aff'd, 2020 Ky. LEXIS 218 (Ky. July 9, 2020).

21. — Banking Laws.

Creditors of bank can recover damages from directors arising out of violations of banking laws by directors. Roberts v. Hargis, 265 Ky. 282 , 96 S.W.2d 691, 1936 Ky. LEXIS 466 ( Ky. 1936 ).

22. — Building Code Violation.

A private cause of action for violation of KRS Chapter 198B and the applicable building code is not dependant on this section. KRS 198B.130 provides an independent statutory remedy, complete in itself, for violating any provision of KRS Chapter 198B or the uniform state building code enacted pursuant to this chapter. Real Estate Mktg. v. Franz, 885 S.W.2d 921, 1994 Ky. LEXIS 127 ( Ky. 1994 ).

Building code violations, if proved, constitute negligence per se, but the negligence per se theory did not apply where there was no destructive occurrence as necessary before a cause of action could accrue. Real Estate Mktg. v. Franz, 885 S.W.2d 921, 1994 Ky. LEXIS 127 ( Ky. 1994 ).

23. — Deceptive Practices.

This section provides a cause of action to a person injured by a violation of a statute which is penal in nature or which does not prescribe the remedy for its enforcement or violation. The cause of action exists only for those persons who belong to the class intended to be protected by the statute. The repair work performed on machinery which formed the basis for the complaint in this case was not done at the request of subsequent purchaser. The original seller of machinery did not “sell, offer, or expose for sale adulterated or mislabeled commodities” to subsequent purchaser. Subsequent purchaser was not a member of the class of persons intended to be protected by KRS 517.020 ; therefore, this section afforded him no private right of action under the deceptive business practices statute. Skilcraft Sheetmetal, Inc. v. Kentucky Machinery, Inc., 836 S.W.2d 907, 1992 Ky. App. LEXIS 175 (Ky. Ct. App. 1992).

24. — Cattle Running at Large.

Person permitting cattle to run at large in violation of statute is liable for personal injuries sustained by another as a result of the violation, as against contention that statute is intended only to protect against injuries to property. Wigginton & Sweeney & Bruce's Guardian, 174 Ky. 691 , 192 S.W. 850, 1917 Ky. LEXIS 248 ( Ky. 1917 ).

25. — Fences.

Railroad company was liable in damages for failure to fence its right of way as required by statute, resulting in injury to cattle of adjoining landowner. Parrish v. Louisville & N. R. Co., 126 Ky. 638 , 104 S.W. 690, 31 Ky. L. Rptr. 1020 , 1907 Ky. LEXIS 83 ( Ky. 1907 ).

Action can be maintained for damages resulting from erection of spite fence, in violation of statute imposing penalty for erecting such a fence. Humphrey v. Mansbach, 251 Ky. 66 , 64 S.W.2d 454, 1933 Ky. LEXIS 813 ( Ky. 1933 ).

26. — Slander.

Violation of statute imposing criminal penalty for spreading false rumor or slanderous report does not give rise to civil liability, unless words used are slanderous per se, or unless special damages are alleged. Shields v. Booles, 238 Ky. 673 , 38 S.W.2d 677, 1931 Ky. LEXIS 300 ( Ky. 1931 ).

26.5. —Forgery.

Terminated physician's negligence per se claims against a family practice were properly denied where the parties stipulated that the signature on a fifth amended shareholder agreement that purported to be the physician's was not made by him, the physician conceded that he did not have evidence to support his claim that the shareholder physicians forged his name on the fifth amended agreement, all shareholder physicians stated under oath that they were not present when the physician's signature was placed on the fifth amended agreement and did not instruct anyone to do so, and thus, there was no evidence of forgery under Ky. Rev. Stat. Ann. § 516.030 . Rogers v. Family Practice Assocs. of Lexington, P.S.C., 2017 Ky. App. LEXIS 692 (Ky. Ct. App.), sub. op., 2017 Ky. App. Unpub. LEXIS 944 (Ky. Ct. App. Nov. 9, 2017).

26.6. —Falsification of Business Records.

Terminated physician's negligence per se claims against a family practice were properly denied where even if the physician was able to show that that the signature on a fifth amended agreement constituted a false entry, he was unable to point to an offender as required under Ky. Rev. Stat. Ann. § 446.070 and thus, there was no evidence of falsification of business records under Ky. Rev. Stat. Ann. § 517.050(1)(a). Rogers v. Family Practice Assocs. of Lexington, P.S.C., 2017 Ky. App. LEXIS 692 (Ky. Ct. App.), sub. op., 2017 Ky. App. Unpub. LEXIS 944 (Ky. Ct. App. Nov. 9, 2017).

27. — Fornication and Adultery.

Attempted crime of fornication and adultery, when accompanied with taking and detaining of female against her will, is a violation of the criminal statutes and is civilly actionable by virtue of this section. Hatchett v. Blacketer, 162 Ky. 266 , 172 S.W. 533, 1915 Ky. LEXIS 58 ( Ky. 1915 ).

28. — Preventing Performance of Duty by Officer.

Check weighman is entitled to recover damages from mine operator for violation of KRS 352.530 (now repealed) in preventing weighman from performing his duties. Winco Block Coal Co. v. Stewart, 277 Ky. 125 , 125 S.W.2d 738, 1939 Ky. LEXIS 606 ( Ky. 1939 ).

29. — Drug Sales.

Person injured by poisonous drug, sold by druggist in violation of statutory regulations, has cause of action against druggist. Sutton's Adm'r v. Wood, 120 Ky. 23 , 85 S.W. 201, 27 Ky. L. Rptr. 412 , 1905 Ky. LEXIS 67 ( Ky. 1905 ).

30. — Seed Labeling.

Purchaser of agricultural seed has cause of action against seller for damages resulting from violation of labeling statute by seller. Graham v. John R. Watts & Son, 238 Ky. 96 , 36 S.W.2d 859, 1931 Ky. LEXIS 191 ( Ky. 1931 ).

31. — Unauthorized Insurance Sales.

Person who writes insurance policy in unauthorized foreign company without complying with statute governing agents of foreign companies is liable to policyholder for amount of loss sustained as a result of company’s refusing to meet its contractual obligations under the policy. Simons v. Vaughn & Blackwell, 165 Ky. 167 , 176 S.W. 995, 1915 Ky. LEXIS 501 ( Ky. 1915 ).

32. — Plugging Wells.

Although statutes relating to plugging of abandoned oil wells provide that adjoining owner can go on land of well owner and plug wells, in case of failure of well owner to do so, and recover cost thereof from owner of well, this does not preclude action for damages by adjoining owner resulting from failure of well owner to close wells as required by statute. Palmer Corp. v. Collins, 214 Ky. 838 , 284 S.W. 95, 1926 Ky. LEXIS 430 ( Ky. 1926 ).

33. — Desecration of Grave.

Next of kin have right to recover damages for mental anguish for unwarranted interference with grave of deceased person as well as for an act which affected body interred therein, if either act is done maliciously or wantonly or by gross negligence. R. B. Tyler Co. v. Kinser, 346 S.W.2d 306, 1961 Ky. LEXIS 305 ( Ky. 1961 ).

35. —Kentucky Wage and Hours Act.

Employer was not entitled to summary judgment in an employee’s action seeking compensation for off-the-clock work and for a denial of meal and rest breaks. A private cause of action exists under KRS 446.070 for damages suffered as the result of a denial of lunch and rest breaks in violation of KRS 337.355 and 337.365 . England v. Advance Stores Co., 263 F.R.D. 423, 2009 U.S. Dist. LEXIS 79329 (W.D. Ky. 2009 ).

Employee could assert a retaliatory termination claim for being discharged for complaining the employee was unlawfully denied overtime pay because (1) the employee was among the class of persons protected by the Kentucky Wage and Hour Act, and (2) Ky. Rev. Stat. Ann. § 337.990(9) did not provide the employee with a civil remedy. Williams v. King Bee Delivery, LLC, 199 F. Supp. 3d 1175, 2016 U.S. Dist. LEXIS 104001 (E.D. Ky. 2016 ).

35.5. —Harassment.

Former employee’s harassment claim failed because a supervisor’s two comments regarding a woman in heels and a dress and one hourglass gesture did not rise to the level of actionable harassment. Montell v. Diversified Clinical Servs., 969 F. Supp. 2d 798, 2013 U.S. Dist. LEXIS 120598 (E.D. Ky. 2013 ), aff'd in part and rev'd in part, 757 F.3d 497, 2014 FED App. 0135P, 2014 U.S. App. LEXIS 12125 (6th Cir. Ky. 2014 ).

35.6. —Treatment of Prisoners.

Where a pretrial detainee died in a jail cell during the course of alcohol withdrawal, plaintiffs did not establish negligence per se against deputy jailers, because a statutory violation of any regulation for the comfort and treatment of prisoners required purposeful or intentional conduct, and the record did not support the determination that each of them admitted a failure to follow the emergency medical services policy. Johney E. Finn v. Warren County, 768 F.3d 441, 2014 FED App. 0238P, 2014 U.S. App. LEXIS 17864 (6th Cir. Ky. 2014 ).

35.7. —Negligence per se.

Court of Appeals properly affirmed a circuit court order awarding summary judgment to the landlords in a tenant’s personal injury action because the tenant was aware of an old, loose, and poorly maintained railing surrounding a side porch based on her prior inspection, the lease agreement contained terms stating that the tenant had examined the property, that the premises were leased in the condition found, and that the landlords were not liable for property damage or personal injuries caused by or arising out of a condition on the premises, and the Uniform Residential Landlord and Tenant Act did not replace the common-law rules of landlord liability. Waugh v. Parker, 584 S.W.3d 748, 2019 Ky. LEXIS 379 ( Ky. 2019 ).

Circuit court properly held that the easement remained valid and that appellant’s failure to comply with the Dig Law, which then led to damages to appellee’s facilities, constituted negligence per se; appellee was a utility operator and thus a member of the class the statute was designed to protect, appellee had a valid easement for its underground facilities, and appellant failed to obtain a location marking of underground facilities, which made appellant liable to appellee. Frankfort Plant Bd. Mun. Projects Corp. v. BellSouth Telecomms., LLC, 2020 Ky. App. LEXIS 80 (Ky. Ct. App. July 2, 2020).

36. Bad Faith.

Private citizens are not specifically excluded by KRS 304.12-230 from maintaining a private right of action against an insurer by third party claimants. This section and KRS 304.12-230 read together create a statutory bad faith cause of action. State Farm Mut. Auto. Ins. Co. v. Reeder, 763 S.W.2d 116, 1988 Ky. LEXIS 78 ( Ky. 1988 ).

Where provisions of the Motor Vehicle Reparations Act, KRS 304.39-210 et seq., provided the exclusive remedy for an insurer’s late payment of an insured’s benefits, an assignee could not recover under KRS 304.12-230 of the Unfair Claims Settlement Practices Act or under KRS 446.070 for punitive damages. Phoenix Healthcare of Ky., L.L.C. v. Ky. Farm Bureau Mut. Ins. Co., 120 S.W.3d 726, 2003 Ky. App. LEXIS 296 (Ky. Ct. App. 2003).

37. Proof of Violation.

Person injured by horse running at large cannot recover damages from owner in absence of proof that such running at large is in violation of statute. Brady v. Straub, 177 Ky. 468 , 197 S.W. 938, 1917 Ky. LEXIS 609 ( Ky. 1917 ) ( Ky. 1917 ).

Although criminal penalty for violating law requiring labeling of agricultural seeds cannot be imposed unless sample of seeds are tested before prosecution, civil action for damages can be maintained without any previous test of samples. Graham v. John R. Watts & Son, 238 Ky. 96 , 36 S.W.2d 859, 1931 Ky. LEXIS 191 ( Ky. 1931 ).

Claim for children’s alleged exposure to asbestos could not be maintained under this section absent any present physical injury. Michals v. William T. Watkins Memorial United Methodist Church, 873 S.W.2d 216, 1994 Ky. App. LEXIS 25 (Ky. Ct. App. 1994).

Negligence per se claim of a regional airport authority, based on a previous property owner’s violation of a clean air statute, sought to recover costs incurred in cleaning up environmental contamination, which was not the harm that the statute intended to prevent. Because the complaint did not establish that the regional airport authority suffered the type of harm that the statute intended to prevent or that the regional airport authority was within the class of people the statute intended to protect, the regional airport authority was not entitled to relief for negligence per se. Reg'l Airport Auth. v. LFG, LLC., 255 F. Supp. 2d 688, 2003 U.S. Dist. LEXIS 5272 (W.D. Ky. 2003 ).

Assuming that the alteration of the mortgage was even a violation of KRS 516.030 , the bankruptcy trustee could not prevail under KRS 446.070 because he produced no proof that the mortgage holders altered the document. KRS 446.070 allowed recovery from the “offender” and it was undisputed that the mortgage holders had no role in the closing of debtors’ loans or in the recording of the mortgages. Rogan v. Wachovia Mortg. Corp. (In re Jacobs), 2012 Bankr. LEXIS 2217 (Bankr. E.D. Ky. May 17, 2012).

Trial court did not err by granting summary judgment to the occupants of a second vehicle in a negligence-per-se action filed by the driver of the first vehicle after they were involved in a road-rage incident because the occupants were not the legal cause of whatever loss the driver claimed to have sustained as a result of the criminal charge lodged against him and the trial court did not violate his federal or state constitutional rights by so holding. Readnour v. Gibson, 452 S.W.3d 617, 2014 Ky. App. LEXIS 153 (Ky. Ct. App. 2014).

City and its police chief were entitled to summary judgment when a former police detective alleged that the police chief threatened the former detective in an attempt to influence the former detective’s testimony in litigation concerning the police department because the former detective admitted in a deposition that the police chief did not use or threaten to use physical force against the former detective. Littrell v. Bosse, 581 S.W.3d 584, 2019 Ky. App. LEXIS 128 (Ky. Ct. App. 2019).

City and its police chief were entitled to summary judgment when a former police detective alleged that the police chief subjected the detective to communications which were intended to harass, annoy, or alarm because there was no evidence that the communication between the police chief and the counsel for the college which then employed the detective did not serve a legitimate purpose. Furthermore, the recipient of a communication was intended to be protected from being harassed, annoyed, or alarmed; not a third party like the detective. Littrell v. Bosse, 581 S.W.3d 584, 2019 Ky. App. LEXIS 128 (Ky. Ct. App. 2019).

City and its police chief were entitled to summary judgment when a former police detective alleged official misconduct by the police chief because the acts complained of were outside the scope of the police chief’s authorized or unauthorized exercise of the police chief’s official functions. Littrell v. Bosse, 581 S.W.3d 584, 2019 Ky. App. LEXIS 128 (Ky. Ct. App. 2019).

38. Proximate Cause.

In order for violation of statute to constitute basis of recovery of damages, the violation must have been the proximate cause of the injury. Conway v. Louisville & N. R. Co., 135 Ky. 229 , 119 S.W. 206, 1909 Ky. LEXIS 252 ( Ky. 1909 ). See Louisville & N. R. Co. v. Cooper, 164 Ky. 489 , 175 S.W. 1034, 1915 Ky. LEXIS 415 ( Ky. 1915 ) ( Ky. 1915 ); Louisville Trust Co. v. Morgan, 180 Ky. 609 , 203 S.W. 555, 1918 Ky. LEXIS 132 ( Ky. 1918 ); Pirtle's Adm'x v. Hargis Bank & Trust Co., 241 Ky. 455 , 44 S.W.2d 541, 1931 Ky. LEXIS 118 ( Ky. 1931 ); Phillips v. Scott, 254 Ky. 340 , 71 S.W.2d 662, 1934 Ky. LEXIS 83 ( Ky. 1934 ); Turner v. Taylor's Adm'x, 262 Ky. 304 , 90 S.W.2d 73, 1936 Ky. LEXIS 28 ( Ky. 1936 ); Langston v. Kelly, 272 Ky. 109 , 113 S.W.2d 471, 1938 Ky. LEXIS 72 ( Ky. 1938 ).

Violation of statute requiring train to sound bell and whistle at crossings is negligence per se, but is not actionable unless it was proximate cause of injury. Conway v. Louisville & N. R. Co., 135 Ky. 229 , 119 S.W. 206, 1909 Ky. LEXIS 252 ( Ky. 1909 ).

One cannot recover damages of another merely because such other has violated a statute, but the one seeking recovery must sustain some special injury other than that sustained by the public generally, and the injury must be the proximate result of the violation. Louisville & N. R. Co. v. Cooper, 164 Ky. 489 , 175 S.W. 1034, 1915 Ky. LEXIS 415 ( Ky. 1915 ) ( Ky. 1915 ).

Failure of hotel operator to provide fire escapes as required by statute will not render him liable for death of guest unless such failure is proximate cause of death. Louisville Trust Co. v. Morgan, 180 Ky. 609 , 203 S.W. 555, 1918 Ky. LEXIS 132 ( Ky. 1918 ).

This section does not give a right of action to every person against anyone violating a statute, but only to persons suffering injury as the direct and proximate result thereof; and then only for such damages as they may sustain. Shields v. Booles, 238 Ky. 673 , 38 S.W.2d 677, 1931 Ky. LEXIS 300 ( Ky. 1931 ).

In an action for fire damage based upon the defendant’s violation of statutes governing the control of sparks escaping from railroad engines, the failure of the plaintiff to prove that the fire originated from the engine is fatal. Clemons v. Dawkins Log & Mill Co., 266 Ky. 157 , 98 S.W.2d 472, 1936 Ky. LEXIS 624 ( Ky. 1936 ).

39. Contributory Negligence.

Contributory negligence of plaintiff will bar recovery for damages sought on basis of violation of statute by defendant. Conway v. Louisville & N. R. Co., 135 Ky. 229 , 119 S.W. 206, 1909 Ky. LEXIS 252 ( Ky. 1909 ). See Smith's Adm'r v. National Coal & Iron Co., 135 Ky. 671 , 117 S.W. 280, 1909 Ky. LEXIS 244 ( Ky. 1909 ); Louisville & N. R. Co. v. Cooper, 164 Ky. 489 , 175 S.W. 1034, 1915 Ky. LEXIS 415 ( Ky. 1915 ) ( Ky. 1915 ); Louisville Trust Co. v. Morgan, 180 Ky. 609 , 203 S.W. 555, 1918 Ky. LEXIS 132 ( Ky. 1918 ); Pirtle's Adm'x v. Hargis Bank & Trust Co., 241 Ky. 455 , 44 S.W.2d 541, 1931 Ky. LEXIS 118 ( Ky. 1931 ); Turner v. Taylor's Adm'x, 262 Ky. 304 , 90 S.W.2d 73, 1936 Ky. LEXIS 28 ( Ky. 1936 ).

Miner injured by falling roof could recover on ground that operator had failed to furnish roof props, unless danger in working without props was obvious and imminent to miner. Low v. Clear Creek Coal Co., 140 Ky. 754 , 131 S.W. 1007, 1910 Ky. LEXIS 371 ( Ky. 1910 ). See New Bell Jellico Coal Co. v. Sowders, 154 Ky. 101 , 156 S.W. 1046, 1913 Ky. LEXIS 21 ( Ky. 1913 ).

The defense of assumption of risk is not available where the employer violates a safety statute, but the defense of contributory negligence is available. Low v. Clear Creek Coal Co., 140 Ky. 754 , 131 S.W. 1007, 1910 Ky. LEXIS 371 ( Ky. 1910 ). See Thayer v. Kitchen, 145 Ky. 554 , 140 S.W. 1052, 1911 Ky. LEXIS 918 (Ky. Ct. App. 1911).

Violation of a safety statute is negligence per se, but recovery may be barred by contributory negligence. Low v. Clear Creek Coal Co., 140 Ky. 754 , 131 S.W. 1007, 1910 Ky. LEXIS 371 ( Ky. 1910 ). See New Bell Jellico Coal Co. v. Sowders, 154 Ky. 101 , 156 S.W. 1046, 1913 Ky. LEXIS 21 ( Ky. 1913 ).

Miner injured as result of operator’s failure to furnish statutory ventilation cannot be barred of recovery on ground of assumption of risk, and whether he is guilty of contributory negligence is a jury question. Thayer v. Kitchen, 145 Ky. 554 , 140 S.W. 1052, 1911 Ky. LEXIS 918 (Ky. Ct. App. 1911).

Woman seeking to recover damages from railroad company for cold incurred in standing on street on cold night waiting for train to be moved from crossing, where it had stood longer than time permitted by statute, is barred by her contributory negligence in not taking shelter in nearby restaurant. Louisville & N. R. Co. v. Cooper, 164 Ky. 489 , 175 S.W. 1034, 1915 Ky. LEXIS 415 ( Ky. 1915 ) ( Ky. 1915 ).

40. — Minor.

In action to recover for injuries sustained by minor employed in violation of child labor law, contributory negligence of the minor will be no defense. Emery v. Jewish Hospital Ass'n, 193 Ky. 400 , 236 S.W. 577, 1921 Ky. LEXIS 243 ( Ky. 1921 ). But see Smith's Adm'r v. National Coal & Iron Co., 135 Ky. 671 , 117 S.W. 280, 1909 Ky. LEXIS 244 ( Ky. 1909 ).

41. Violation as a Defense.

The fact that note is given in payment for stock sold in violation of Blue Sky Law is no defense as against holder in due course, since violation of such statute will only give injured person cause of action against offender. Davidson v. Falls, 215 Ky. 368 , 285 S.W. 209, 1926 Ky. LEXIS 739 ( Ky. 1926 ).

42. Jury Instructions.

Where petition does not allege negligence because of violation of certain statutes, court is not in error in refusing to give instruction under this section. Depp v. Martin, 243 S.W.2d 665, 1951 Ky. LEXIS 1152 ( Ky. 1951 ).

Trial court erred in admitting expert testimony concerning building code violations in a common law negligence action without instructing the jury as to the applicability of the code, but the error was not palpable, and because the jury instructions submitted were those of the complaining party, the error was not reversible under CR 61.02 and KRE. 103. Wright v. House of Imps., Inc., 381 S.W.3d 209, 2012 Ky. LEXIS 141 ( Ky. 2012 ).

43. Immunity From Damages.

School board was immune from damages sought under this section for failure to deduct union dues from employees’ wages. Clevinger v. Board of Educ., 789 S.W.2d 5, 1990 Ky. LEXIS 40 ( Ky. 1990 ).

When a nursing home owner moved to file an amended complaint against the Governor to assert claims of official misconduct under KRS 522.020 and KRS 522.030 , pursuant to KRS 446.070 allowing actions for statutory violations, the owner’s motion was properly denied because under Ky. Const. § 81 the Governor was absolutely immune for official acts taken while in office, and the owner was claiming that state agencies harassed the owner’s nursing home after the owner terminated an affair with the Governor. Conner v. Patton, 2007 Ky. App. Unpub. LEXIS 213 (Ky. Ct. App. Oct. 26, 2007), review denied, ordered not published, 2008 Ky. LEXIS 246 (Ky. Oct. 15, 2008).

Money damages are unavailable for an alleged violation of Ky. Rev. Stat. Ann. § 71.040 , which requires jailers to treat inmates humanely. A.H. v. Louisville Metro Gov't, 2020 Ky. LEXIS 445 (Ky. Dec. 17, 2020).

Inmate was a member of the class protected by statute and thus he, or an entity acting on his behalf, could seek relief from Louisville Metro Government for alleged inhumane treatment; however, merely filing a claim in conjunction with Ky. Rev. Stat. Ann. § 446.070 does not waive sovereign immunity. Thus, in the present case, the inmate’s widow could defeat the defense of sovereign immunity by merely joining the two statutes. A.H. v. Louisville Metro Gov't, 2020 Ky. LEXIS 445 (Ky. Dec. 17, 2020).

No penalty or forfeiture having been enacted for an alleged violation of Ky. Rev. Stat. Ann. § 71.040 , and money damages being unavailable due to immunity, the most that would be available to an inmate proving inhumane treatment is equitable relief; neither Ky. Rev. Stat. Ann. §§ 71.020 , 446.070 , alone, nor the two in tandem, expressly waives immunity, and the Louisville Metro Government is immune from a claim for money damages and immunity has not been waived. A.H. v. Louisville Metro Gov't, 2020 Ky. LEXIS 445 (Ky. Dec. 17, 2020).

44. Federal Preemption.

Because this section provides a remedy of general applicability for unfair and deceptive practices in the insurance business contained in KRS 304.12-010 and 304.12-020 , and the remedy conflicts with § 1132 of the Employee Retirement Income Security Act (ERISA), this section was therefore superseded by the remedy provided under ERISA. International Resources, Inc. v. New York Life Ins. Co., 950 F.2d 294, 1991 U.S. App. LEXIS 27950 (6th Cir. Ky. 1991 ), cert. denied, 504 U.S. 973, 112 S. Ct. 2941, 119 L. Ed. 2d 565, 1992 U.S. LEXIS 3424 (U.S. 1992).

Under Kentucky law, a negligence per se claim could only be brought under statute, and claims based on federal violations were not cognizable, thus, a cochlear implant patient’s negligence per se claim based on violations of the Federal Food, Drug, and Cosmetic Act were preempted by the Federal Act. Sadler v. Advanced Bionics, Inc., 929 F. Supp. 2d 670, 2013 U.S. Dist. LEXIS 32228 (W.D. Ky. 2013 ).

Cited in:

Finck v. Albers Super Markets, Inc., 136 F.2d 191, 1943 U.S. App. LEXIS 2994 (6th Cir. 1943); Nisbet v. Van Tuyl, 224 F.2d 66, 1955 U.S. App. LEXIS 4895 (6th Cir. 1955); Tomlin v. Taylor, 290 Ky. 619 , 162 S.W.2d 210, 1942 Ky. LEXIS 468 ( Ky. 1942 ); Upchurch v. Clinton County, 330 S.W.2d 428, 1959 Ky. LEXIS 200 ( Ky. 1959 ); First Nat’l Bank v. Gardner, 376 S.W.2d 311, 1964 Ky. LEXIS 447 ( Ky. 1964 ); Pari-Mutuel Clerks’ Union v. Kentucky Jockey Club, 551 S.W.2d 801, 1977 Ky. LEXIS 457 ( Ky. 1977 ); Pike v. Harold (Chubby) Baird Gate Co., 705 S.W.2d 947, 1986 Ky. App. LEXIS 1050 (Ky. Ct. App. 1986); Grayson Fraternal Order of Eagles v. Claywell, 736 S.W.2d 328, 1987 Ky. LEXIS 246 ( Ky. 1987 ); Simpson County Steeplechase Ass’n v. Roberts, 898 S.W.2d 523, 1995 Ky. App. LEXIS 74 (Ky. Ct. App. 1995); Thomas v. Grange Mut. Cas. Co., 2004 Ky. App. LEXIS 163 (Ky. Ct. App. 2004); Stringer v. Wal-Mart Stores, Inc., 151 S.W.3d 781, 2004 Ky. LEXIS 245 ( Ky. 2004 ); Pile v. City of Brandenburg, 215 S.W.3d 36, 2006 Ky. LEXIS 322 ( Ky. 2006 ); Bays v. Summitt Trucking, LLC, 691 F. Supp. 2d 725, 2010 U.S. Dist. LEXIS 16975 (W.D. Ky. 2010 ); Ford v. Faller, — S.W.3d —, 2014 Ky. App. LEXIS 114 (Ky. Ct. App. 2014).

Notes to Unpublished Decisions

Analysis

  1. Applicability.
  2. Right of Action.
  3. Specific Violations.
  4. — Kentucky Occupational Safety and Health Act.

45. Miscellaneous.

1. Applicability.

Unpublished decision: Plaintiff county’s action to recover taxes it claimed were owed by defendant insurance companies was properly dismissed under Fed. R. Civ. P. 12(b)(1) because the county’s exclusive remedy for the alleged underpayment was an administrative proceeding before the Kentucky Office of Insurance; the administrative-examination procedures of former KRS § 91A.080(7)(c), which were applicable to the county’s action, afforded a civil remedy sufficient to overcome the default presumption that a private cause of action would lie under KRS 446.070 . Franklin County v. Travelers Prop. Cas. Ins. Co. of Am., 368 Fed. Appx. 669, 2010 FED App. 0149N, 2010 U.S. App. LEXIS 5242 (6th Cir. Ky. 2010 ) (6th Cir. 2010).

2. Right of Action.

Unpublished decision: Court clerks had no private right of action to sue defendants for any alleged violation of Kentucky’s recording requirements because the clerks had no actionable claim directly under KRS 382.360 , and because the clerks were not within the class of persons intended to be protected by KRS 382.360 , they had no KRS 446.070 claim. Christian County Clerk v. Mortgage Elec. Registration Sys., 515 Fed. Appx. 451, 2013 FED App. 0177N, 2013 U.S. App. LEXIS 3526 (6th Cir. Ky. 2013 ).

3. Specific Violations.

Unpublished decision: Neither a national social fraternity nor individual local chapter members were negligent per se under KRS 530.070 and KRS 244.085 in connection with the death of a college student by a drunk fraternity member because there was no evidence that the national fraternity knowingly induced, assisted, or caused the drunk member to possess alcohol, and none of the members of the fraternity gave the drunk member alcohol. Shaheen v. Yonts, 394 Fed. Appx. 224, 2010 FED App. 0581N, 2010 U.S. App. LEXIS 18461 (6th Cir. Ky. 2010 ).

4. — Kentucky Occupational Safety and Health Act.

Unpublished decision: Former employee’s wrongful discharge suit was properly dismissed by a federal district court because the employee’s sole remedy was to seek relief pursuant to the Kentucky Occupational Safety and Health Act (KOSHA), KRS 338.010 et seq.: (1) under Kentucky law, a suit could be brought pursuant to KRS 446.070 , which allowed a person injured by a statutory violation to recover damages, only where the statute at issue was penal in nature or where, by its terms, the statute did not prescribe a remedy for its violation; (2) the KOSHA provided remedies for wrongful discharges, which was the wrong claimed by the employee as the basis for his suit; and (3) the employee was limited to the remedies provided by the KOSHA because that statute outlined the procedures for obtaining relief against wrongful, retaliatory discharges by employers and gave the Kentucky Occupational Safety and Health Review Commission authority to provide all appropriate relief, including compensatory and punitive damages. Maiden v. N. Am. Stainless, L.P., 125 Fed. Appx. 1, 2004 U.S. App. LEXIS 25998 (6th Cir. Ky. 2004 ).

45. Miscellaneous.

Unpublished decision: Where a franchisee appealed a district court's Fed. R. Civ. P. 12(b)(60 dismissal, its initial argument was without merit that Ky. Rev. Stat. Ann. § 446.070 , which provided that a person injured by the violation of any statute may recover from the offender such damages as he sustained by reason of the violation, allowed it to bring an action for a violation of Ky Rev. Stat. Ann. 367.170, even though it was not a purchaser or lessee for personal, family, or household purposes. 859 Boutique Fitness, LLC v. Cyber Franchising, LLC, 699 Fed. Appx. 457, 2017 U.S. App. LEXIS 11618 (6th Cir. Ky. 2017 ).

Unpublished decision: Since a franchisee advanced a negligence per se theory under Ky. Rev. Stat. Ann. § 446.070 for the first time on appeal, it had forfeited the right to have the argument addressed by the appellate court. 859 Boutique Fitness, LLC v. Cyber Franchising, LLC, 699 Fed. Appx. 457, 2017 U.S. App. LEXIS 11618 (6th Cir. Ky. 2017 ).

Research References and Practice Aids

Cross-References.

Commission of felony does not stay or merge civil remedy, KRS 431.080 .

Kentucky Bench & Bar.

Miller, An Overview of the No-Fault Act (KRS Chapter 304.39), Vol. 44, No. 2, April 1980, Ky. Bench & Bar 18.

Hopson, Wrongful Discharge — Whatever Happened To The Employment-at-Will Doctrine?, Vol. 49, No. 3, Summer 1985, Ky. Bench & Bar 12.

Kentucky Law Journal.

Kentucky Law Survey, Underwood, Insurance, 72 Ky. L.J. 403 (1983-84).

Comments, First Party Bad Faith in Kentucky: What Remains After Federal Kemper Insurance Co. v. Hornback?, 75 Ky. L.J. 939 (1986-87).

Northern Kentucky Law Review.

Miller, The Kentucky Law of Products LiabilityIn A Nutshell, 12 N. Ky. L. Rev. 201 (1985).

Notes, Nelson Steel Corp. v. McDaniel: DiscriminationAgainst Employees Who Have Filed Workers’ Compensation Claims Against PreviousEmployers, 23 N. Ky. L. Rev. 435 (1996).

Jackson and Crase, A Survey of Kentucky Workers’ Compensation Law, 30 N. Ky. L. Rev. 31 (2003).

McGrath & Edmonds, A Survey of Kentucky Insurance Law: A Look at the Bad Faith Cause of Action., 31 N. Ky. L. Rev. 139 (2004).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Invasion of Privacy Torts, § 128.00.

Caldwell’s Kentucky Form Book, 5th Ed., Complaint for Intrusion — Hidden Camera, Form 128.01.

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Negligence, § 130.00.

Caldwell’s Kentucky Form Book, 5th Ed., Complaint by Section Hand Injured in Collision of Hand Car with Train, Form 282.16.

Kentucky Instructions To Juries (Civil), 5th Ed., Insurance, § 44.10.

446.080. Liberal construction — Statutes not retroactive — Common usage — Technical terms.

  1. All  statutes of this state shall be liberally construed with a view to promote  their objects and carry out the intent of the legislature, and the rule that statutes in derogation of the common law are to be strictly construed shall  not apply to the statutes of this state.
  2. There  shall be no difference in the construction of civil, penal and criminal statutes.
  3. No  statute shall be construed to be retroactive, unless expressly so declared.
  4. All  words and phrases shall be construed according to the common and approved  usage of language, but technical words and phrases, and such others as may  have acquired a peculiar and appropriate meaning in the law, shall be construed  according to such meaning.

History. 459, 460.

NOTES TO DECISIONS

Analysis

  1. In General.
  2. Construction With Other Laws.
  3. Legislative Intent.
  4. — Determining.
  5. — Presumptions.
  6. — Whole Act.
  7. — Extraneous Factors.
  8. Derogation of Common Law.
  9. Inconsistent Provisions Within  a Statute.
  10. Conflicting Statutes.
  11. Exemptions and Exceptions.
  12. Provisos.
  13. Punctuation.
  14. Particular Statutes.
  15. Criminal Statutes.
  16. — Strict Construction.
  17. —Specific Statutes.
  18. Penal Statutes.
  19. Constitutionality of Statute.
  20. Retroactive.
  21. — Regulations.
  22. Prospective.
  23. Terms.
  24. —Meaning.
  25. — —Ordinary.
  26. — — Technical.
  27. —Particular.
  28. — — Heir.
  29. — — Legitimate.
  30. — — At Pleasure.
  31. — — Possession.
  32. Constitution.
  33. Court Decision.
  34. Workers’  Compensation.
  35. Taxing Statutes.
1. In General.

The common-law rule of strict construction of statutes no longer prevails in Kentucky. Scott v. Curd, 101 F. Supp. 396, 1951 U.S. Dist. LEXIS 2034 (D. Ky. 1951 ).

Clear and unambiguous language in a statute will be held to mean what it plainly expresses. Hawley Coal Co. v. Bruce, 252 Ky. 455 , 67 S.W.2d 703, 1934 Ky. LEXIS 810 ( Ky. 1934 ).

Rules of statutory construction require that KRS 446.080 be construed to carry out the intent of the legislature. Hardin County Fiscal Court v. Hardin County Bd. of Health, 899 S.W.2d 859, 1995 Ky. App. LEXIS 117 (Ky. Ct. App. 1995).

Failure to begin development, not the condemnation, triggered the redemption right, so where the eight (8) year development period ended after the 1980 amendment to KRS 416.670 , the condemnees acquired the right to redeem property condemned by the Kentucky Transportation Cabinet. Vandertoll v. Commonwealth, 110 S.W.3d 789, 2003 Ky. LEXIS 118 ( Ky. 2003 ).

KRS 533.250 , which established pretrial diversion in 1998, did not apply to defendant since he pled guilty well before the statute was enacted and because the general assembly did not make the statutes establishing pretrial diversion retroactive. Clements v. Commonwealth, 203 S.W.3d 710, 2006 Ky. App. LEXIS 254 (Ky. Ct. App. 2006).

2. Construction With Other Laws.

While subsection (3) deals with retroactive application of statutes in general, KRS 446.110 deals specifically with the procedure to be followed when a law is amended and, therefore, KRS 446.110 is more specific and will prevail over subsection (3). Commonwealth v. Phon, 17 S.W.3d 106, 2000 Ky. LEXIS 35 ( Ky. 2000 ).

3. Legislative Intent.

In order to effectuate the legislative intent, words may be supplied, omitted, substituted or modified. Neutzel v. Ryans, 184 Ky. 292 , 211 S.W. 852, 1919 Ky. LEXIS 65 ( Ky. 1919 ).

Words “tenth ward” were substituted for words “eleventh and twelfth wards” in a legislative redistricting law so as to avoid duplication, prevent elimination of certain territory, and effectuate the manifest legislative intent. Neutzel v. Ryans, 184 Ky. 292 , 211 S.W. 852, 1919 Ky. LEXIS 65 ( Ky. 1919 ).

In the construction of a statute the pole star by which the court must be guided is to ascertain and put into effect the legislative intention. Ross v. Board of Education, 196 Ky. 366 , 244 S.W. 793, 1922 Ky. LEXIS 520 ( Ky. 1922 ).

The intention of the legislature in enacting a law must be the controlling factor in its construction and interpretation, and where there is doubt as to the meaning of such laws the courts may look to the historical setting surrounding its enactment; the public policy of the state, the condition of its laws, the habits and manners of its people, and all other prior and contemporaneous facts and circumstances that throw intelligent light on the intention of the lawmaking body. Goodpaster v. Kenton & Campbell Benevolent Burial Ass'n, 279 Ky. 92 , 129 S.W.2d 1033, 1939 Ky. LEXIS 238 ( Ky. 1939 ).

In interpreting a statute the court must give effect to the intention of the lawmakers. Green v. Moore, 281 Ky. 305 , 135 S.W.2d 682, 1939 Ky. LEXIS 33 ( Ky. 1939 ).

The mechanics’ and materialman’s liens statutes are to be construed according to their common and approved language and the courts take a liberal view toward promoting the legislative intent and they are to be interpreted liberally to protect those who furnish labor and materials. Bee Spring Lumber Co. v. Pucossi, 943 S.W.2d 622, 1997 Ky. LEXIS 44 ( Ky. 1997 ).

When the Kentucky Legislature pronounced in subsection (3) that laws should not be applied retroactively, it is presumed to have done so with the knowledge that this would be interpreted to apply to laws of substance only, and not those dealing strictly with the extent of remedy. Kentucky Ins. Guar. Ass'n v. Jeffers, 13 S.W.3d 606, 2000 Ky. LEXIS 31 ( Ky. 2000 ).

Trial court erred in granting the marketer’s motion to dismiss the company’s breach of contract action on the ground that the breach occurred at a time when the company was administratively dissolved; the record showed that the company was later reinstated, that it filed its breach of contract action after it was reinstated, and that the intent of the General Assembly in enacting the reinstatement statute, KRS 271B.14-220 (3) (repealed effective January 1, 2011), was to allow a company that had been reinstated to carry on its business, including the pursuit of litigation, as though the administrative dissolution had never occurred. Fairbanks Arctic Blind Co. v. Prather & Assocs., 198 S.W.3d 143, 2005 Ky. App. LEXIS 221 (Ky. Ct. App. 2005).

4. — Determining.

The legislative will has to be determined by the meaning of the words of its enactment, and what it intended to do has to be determined from what it did do, giving to the former and later statutes the meaning and intendment which necessarily follows from their words and contexts. Head v. Commonwealth, 165 Ky. 603 , 177 S.W. 731, 1915 Ky. LEXIS 579 ( Ky. 1915 ).

Where the intention of the lawmaking body is so apparent on the face of a statute that there can be no question as to its meaning, there is no room for construction. Gilbert v. Greene, 185 Ky. 817 , 216 S.W. 105, 1919 Ky. LEXIS 380 ( Ky. 1919 ).

In search for the legislative will, the court starts with the pertinent conditions existing when the law was enacted, with their background and development, and looks toward the object sought to be accomplished. Those attendant circumstances, the context of the act and its consequences are controlling, even though it may be necessary to modify the language used in order to make it consistent. Green v. Moore, 281 Ky. 305 , 135 S.W.2d 682, 1939 Ky. LEXIS 33 ( Ky. 1939 ).

5. — Presumptions.

Where a statute has been construed by the courts, or by administrative officials, to have a certain meaning, and is subsequently reenacted in substantially the same terms, it will be presumed that the legislature was familiar with the construction and intended to adopt it as part of the law. Gilbert v. Greene, 185 Ky. 817 , 216 S.W. 105, 1919 Ky. LEXIS 380 ( Ky. 1919 ).

There is a presumption that the legislature in enacting a statute had knowledge of existing laws and the construction placed on them by the courts. Baker v. White, 251 Ky. 691 , 65 S.W.2d 1022, 1933 Ky. LEXIS 954 ( Ky. 1933 ).

Reading KRS 218A.275(9) in accordance with 446.080(1), the provisions of KRS 218A.275(9) apply to a first-time felony possession of cocaine offense under KRS 218A.1415 ; the limitations under KRS 218A.275(1), limiting the treatment program only to convictions under KRS 218A.1416 , 218A.1417 , are not applicable to KRS 218A.275(9). Commonwealth v. Bowles, 107 S.W.3d 912, 2003 Ky. App. LEXIS 132 (Ky. Ct. App. 2003).

6. — Whole Act.

In construing a statute, the court will look to the whole act, and the purpose of the makers in its enactment. Commonwealth v. Trent, 117 Ky. 34 , 77 S.W. 390, 25 Ky. L. Rptr. 1180 , 1903 Ky. LEXIS 276 ( Ky. 1903 ).

In interpreting statutes, the court should ascertain from their terms, as contained in the entire enactment, the intent and purpose of the legislature, and administer that intent and purpose. Seaboard Oil Co. v. Commonwealth, 193 Ky. 629 , 237 S.W. 48, 1922 Ky. LEXIS 50 ( Ky. 1922 ).

In interpreting a statute, the courts are not restricted to the language of the particular section, but may consider statute as a whole as well as conditions of law at time of its passage, and other prior or contemporaneous circumstances throwing light on the legislature’s intention. Baker v. White, 251 Ky. 691 , 65 S.W.2d 1022, 1933 Ky. LEXIS 954 ( Ky. 1933 ).

7. — Extraneous Factors.

It is only where the language of the statute is of doubtful meaning or where an adherence to the letter of it would lead to absurdity, injustice or to contradictory provisions, that resort may be had to extraneous evidence of legislative intent. Newport Benevolent Burial Ass'n v. Clay, 170 Ky. 633 , 186 S.W. 658, 1916 Ky. LEXIS 128 ( Ky. 1916 ). See Adams v. Bohon, 176 Ky. 66 , 195 S.W. 156, 1917 Ky. LEXIS 15 ( Ky. 1917 ).

Legislative history, including the manner in which amendments were offered and adopted during passage of bill, may be considered in construing a statute. Ross v. Board of Education, 196 Ky. 366 , 244 S.W. 793, 1922 Ky. LEXIS 520 ( Ky. 1922 ).

The courts will take judicial notice of the economic conditions existing at the time of enactment of a statute. Grieb v. National Bank of Kentucky's Receiver, 252 Ky. 753 , 68 S.W.2d 21, 1933 Ky. LEXIS 1030 ( Ky. 1933 ).

Where there is doubt as to the meaning of a statute, the court must look to the historical setting surrounding its enactment, the public policy of the state, the condition of its laws, the habits and manners of its people, and all other facts and circumstances that throw intelligent light on the intention of the legislature. Grieb v. National Bank of Kentucky's Receiver, 252 Ky. 753 , 68 S.W.2d 21, 1933 Ky. LEXIS 1030 ( Ky. 1933 ).

8. Derogation of Common Law.

Construction placed on similar statutes by courts of other jurisdictions, which follow rule that statutes in derogation of the common law will be strictly construed, will not be followed in Kentucky, where such construction is different than the one that would be reached by application of the rule of liberal construction. Deposit Bank of Carlisle v. Stitt, 107 Ky. 49 , 52 S.W. 950, 21 Ky. L. Rptr. 671 , 1899 Ky. LEXIS 130 ( Ky. 1899 ). See Montgomery v. Allen, 107 Ky. 298 , 53 S.W. 813, 21 Ky. L. Rptr. 1001 , 1899 Ky. LEXIS 171 ( Ky. 1899 ).

Although statutes in derogation of the common law are to be liberally construed, the question of whether a statute has impliedly repealed the common law as to a particular offense is still one of repugnancy and legislative intent. Commonwealth v. Kentucky Distilleries & Warehouse Co., 154 Ky. 787 , 159 S.W. 570, 1913 Ky. LEXIS 164 ( Ky. 1913 ).

The common law is impliedly repealed by a statute which is inconsistent therewith, or which undertakes to revise and cover the whole subject; but the common law is not repealed if there is no repugnancy between it and the statute and it does not appear that the legislature intended to cover the whole subject. Commonwealth v. Kentucky Distilleries & Warehouse Co., 154 Ky. 787 , 159 S.W. 570, 1913 Ky. LEXIS 164 ( Ky. 1913 ).

A remedial statute, intended to cure a defect in the common law for the better protection of property rights, must be construed liberally. Barth v. Fidelity & Columbia Trust Co., 188 Ky. 788 , 224 S.W. 351, 1920 Ky. LEXIS 353 ( Ky. 1920 ).

Although statutes in derogation of the common law are to be liberally construed, a statute will not be construed as impliedly repealing the common law unless there is a repugnancy, or unless it clearly appears that the statute was intended to cover the entire subject. Hill v. Halmhuber, 225 Ky. 394 , 9 S.W.2d 55, 1928 Ky. LEXIS 793 ( Ky. 1928 ).

Statute imposing penalty for false representation, in writing, concerning financial condition of a corporation, does not impliedly repeal common law right of recovery for oral fraud. Hill v. Halmhuber, 225 Ky. 394 , 9 S.W.2d 55, 1928 Ky. LEXIS 793 ( Ky. 1928 ).

The language of R. Cr. 8.08 and R. Cr. 8.12, as construed according to common and approved usage, expressly prohibits the use of any pleas in criminal cases except guilty or not guilty; any conflicting common rule allowing the acceptance of pleas of nolo contendere is without effect. Commonwealth v. Hillhaven Corp., 687 S.W.2d 545, 1984 Ky. App. LEXIS 638 (Ky. Ct. App. 1984).

9. Inconsistent Provisions Within a Statute.

All provisions of the statutes must be harmonized if it can be reasonably done, and effect and enforcement given to each clause, unless the provisions of the statute are irreconcilably incongruous. Ross v. Board of Education, 196 Ky. 366 , 244 S.W. 793, 1922 Ky. LEXIS 520 ( Ky. 1922 ).

Court may modify language of statute in order to make it consistent. Green v. Moore, 281 Ky. 305 , 135 S.W.2d 682, 1939 Ky. LEXIS 33 ( Ky. 1939 ).

10. Conflicting Statutes.

If a statute is manifestly intended to regulate the whole subject to which it relates, it supersedes and repeals all former statutes relating to the same subject, so far as it differs from them in its prescriptions. Head v. Commonwealth, 165 Ky. 603 , 177 S.W. 731, 1915 Ky. LEXIS 579 ( Ky. 1915 ).

If the two (2) statutes are repugnant to each other, the later statute must prevail. Head v. Commonwealth, 165 Ky. 603 , 177 S.W. 731, 1915 Ky. LEXIS 579 ( Ky. 1915 ).

The rule that the repeal of statutes by implication is not favored means that it is the duty of the court to construe the statutes, if possible, so that both will be operative, and if they can be read together without contradiction or absurdity they shall be read together and both given effect. Head v. Commonwealth, 165 Ky. 603 , 177 S.W. 731, 1915 Ky. LEXIS 579 ( Ky. 1915 ).

Where the provisions of two (2) statutes are not repugnant to each other, although dealing to some extent with the same subject matter, and can be enforced consistently with the provisions of each, the court must enforce the provisions of each. Newport Benevolent Burial Ass'n v. Clay, 170 Ky. 633 , 186 S.W. 658, 1916 Ky. LEXIS 128 ( Ky. 1916 ).

Courts will construe statutes if possible so that both old and new acts will be operative and effective if it can be done without contradiction or absurdity, and if any part of an existing law can be reconciled or harmonized with the provisions of a new law, it will not be deemed to have been repealed. Schultz v. Ohio County, 226 Ky. 633 , 11 S.W.2d 702, 1928 Ky. LEXIS 149 ( Ky. 1928 ).

The repeal and simultaneous reenactment of substantially the same statutory provisions is construed as a continuation of the original provisions and not as an implied repeal thereof. Grieb v. National Bank of Kentucky's Receiver, 252 Ky. 753 , 68 S.W.2d 21, 1933 Ky. LEXIS 1030 ( Ky. 1933 ).

11. Exemptions and Exceptions.

Provisions granting exemption from taxation must be strictly construed, and an exemption will not be allowed unless clearly given. American Tobacco Co. v. Bowling Green, 181 Ky. 416 , 205 S.W. 570, 1918 Ky. LEXIS 558 ( Ky. 1918 ).

In construing statutes relating to qualifications required of executors, court would not add disqualifications to those specified by the statutes, nor disregard testator’s wishes by too liberal an interpretation of the statutory disqualifications. Nunn v. Hamilton, 233 Ky. 663 , 26 S.W.2d 526, 1930 Ky. LEXIS 622 ( Ky. 1930 ).

Exceptions to a statute will not be recognized unless necessary to avoid injustice, oppression or absurd consequences. Hawley Coal Co. v. Bruce, 252 Ky. 455 , 67 S.W.2d 703, 1934 Ky. LEXIS 810 ( Ky. 1934 ).

When the legislature has made no exception to the positive terms of a statute, it will be presumed to have intended to make none, and the court cannot introduce an exception by construction. Hawley Coal Co. v. Bruce, 252 Ky. 455 , 67 S.W.2d 703, 1934 Ky. LEXIS 810 ( Ky. 1934 ).

12. Provisos.

The operation of a proviso is usually confined to the clause or provision immediately preceding it, and it will be so applied unless, in effecting the legislative intent, it is necessary to apply it to the other provisions of the section or to the entire act. Newport Benevolent Burial Ass'n v. Clay, 170 Ky. 633 , 186 S.W. 658, 1916 Ky. LEXIS 128 ( Ky. 1916 ).

13. Punctuation.

An error in punctuation will not be permitted to overthrow the obvious intention of a statute. Mechanics & Farmers' Sav. Bank v. Commonwealth, 128 Ky. 190 , 108 S.W. 263, 32 Ky. L. Rptr. 1022 , 32 Ky. L. Rptr. 1037 , 1908 Ky. LEXIS 55 ( Ky. 190 8).

Where statute requiring corporations to place word “incorporated” on place of business and on advertising matter concluded with clause exempting banks and insurance companies, the fact that the exempting clause was at the end of sentence relating to advertising matter, separated by a period from preceding sentence relating to place of business, did not prevent construction that exemption applied to entire section, and not merely to sentence in which exemption appeared, particularly since statute in question, prior to amendment, had consisted of only one (1) sentence, with semicolon separating the two (2) clauses. Mechanics & Farmers' Sav. Bank v. Commonwealth, 128 Ky. 190 , 108 S.W. 263, 32 Ky. L. Rptr. 1022 , 32 Ky. L. Rptr. 1037 , 1908 Ky. LEXIS 55 ( Ky. 190 8).

14. Particular Statutes.

Gambling statute would be liberally construed. Turner v. Thompson, 107 Ky. 647 , 55 S.W. 210, 21 Ky. L. Rptr. 1414 , 1900 Ky. LEXIS 147 ( Ky. 1900 ).

Statute imposing liability on city for damage resulting from riot will be liberally construed. Madisonville v. Bishop, 113 Ky. 106 , 67 S.W. 269, 23 Ky. L. Rptr. 2363 , 1902 Ky. LEXIS 25 ( Ky. 1902 ).

A statute intended to enlarge the property rights and contractual ability of a class will not be so construed as to destroy or impair the value of those very rights and privileges. Johnson v. Mutual Life Ins. Co., 113 Ky. 871 , 69 S.W. 751, 24 Ky. L. Rptr. 668 , 1902 Ky. LEXIS 113 ( Ky. 1902 ).

Married women’s property statutes will be liberally construed to accomplish intent to enlarge rights of married women with respect to their separate estates. Johnson v. Mutual Life Ins. Co., 113 Ky. 871 , 69 S.W. 751, 24 Ky. L. Rptr. 668 , 1902 Ky. LEXIS 113 ( Ky. 1902 ).

By virtue of this section, KRS 446.060 must be liberally construed. Ward v. Putnam, 119 Ky. 889 , 85 S.W. 179, 27 Ky. L. Rptr. 367 , 1905 Ky. LEXIS 56 ( Ky. 1905 ).

Statutes of limitation must be liberally construed. Knight's Adm'r v. Illinois C. R. Co., 143 Ky. 418 , 136 S.W. 874, 1911 Ky. LEXIS 423 ( Ky. 1911 ).

The statutes relating to the powers of the railroad commission should be liberally construed to promote their object. Southern R. Co. v. Louisville Cooperage Co., 205 Ky. 721 , 266 S.W. 382, 1924 Ky. LEXIS 213 ( Ky. 1924 ).

A recording statute must be liberally construed to protect purchasers for value. Payton v. Norris, 240 Ky. 555 , 42 S.W.2d 723, 1931 Ky. LEXIS 441 ( Ky. 1931 ).

Statute conferring the right to redeem land sold for taxes should be liberally construed. Grieb v. National Bank of Kentucky's Receiver, 252 Ky. 753 , 68 S.W.2d 21, 1933 Ky. LEXIS 1030 ( Ky. 1933 ).

Taxing statutes are construed most strongly against the government and in favor of the taxpayer. Kentucky Tax Com. v. Fourth Ave. Amusement Co., 293 Ky. 668 , 170 S.W.2d 42, 1943 Ky. LEXIS 699 ( Ky. 1943 ). See Commonwealth ex rel. Martin v. Stone, 279 Ky. 243 , 130 S.W.2d 750, 1939 Ky. LEXIS 270 ( Ky. 1939 ); Reeves v. Fidelity & Columbia Trust Co., 293 Ky. 544 , 169 S.W.2d 621, 1942 Ky. LEXIS 11 ( Ky. 1942 ), overruled, Kentucky Board of Tax Appeals v. Citizens Fidelity Bank & Trust Co., 525 S.W.2d 68, 1975 Ky. LEXIS 101 ( Ky. 1975 ).

Even with liberal interpretation of the requirement that a will be signed by its maker at the end or close, the maker’s signature on a sealed envelope in which an unsigned will is found does not constitute substantial compliance with the requirement. Miller's Ex'r v. Shannon, 299 S.W.2d 103, 1957 Ky. LEXIS 389 ( Ky. 1957 ).

The liberal construction mandate of this section is particularly applicable to the Workers’ Compensation Act which is often cited as an act to be liberally construed to effect its remedial purpose; all presumptions will be indulged in favor of those for whose protection the enactment was made. Firestone Textile Co. Div., Firestone Tire & Rubber Co. v. Meadows, 666 S.W.2d 730, 1983 Ky. LEXIS 305 ( Ky. 1983 ), limited, Nelson Steel Corp. v. McDaniel, 898 S.W.2d 66, 1995 Ky. LEXIS 48 ( Ky. 1995 ), limited, Maiden v. Clark Invs., 1995 Ky. App. LEXIS 179 (Ky. Ct. App. Oct. 20, 1995).

Where the legislature did not expressly declare that KRS 640.010 was to be construed to apply retroactively, this section prevented retroactive application. Dennison v. Commonwealth, 767 S.W.2d 327, 1988 Ky. App. LEXIS 185 (Ky. Ct. App. 1988).

In accordance with the plain meaning of the statute, where a credit application included a guaranty agreement on the application in two (2) places, the agreements were not required to state either the debtor’s maximum liability or a termination date and the agreements were therefore valid and enforceable against the debtor. Wheeler & Clevenger Oil Co. v. Washburn, 127 S.W.3d 609, 2004 Ky. LEXIS 45 ( Ky. 2004 ).

Workers’ Compensation Board erred when it rephrased the two prongs of KRS 342.0011(11)(a) in disjunctive terms of “or” when the statute was clearly written using the conjunctive “and;” in order to be entitled to temporary total disability benefits, a claimant must not have reached maximum medical improvement and not have improved enough to return to work. Magellan Behavioral Health v. Helms, 140 S.W.3d 579, 2004 Ky. App. LEXIS 68 (Ky. Ct. App. 2004).

The Legislature in amending KRS 342.125(5)(a) intended for the additional-exposure requirement to apply to all awards made under KRS 342.732 , just as the one-year limitation did, but inadvertently neglected to add the words “or progression” when amending the first sentence. Bolin v. T & T Mining, 231 S.W.3d 130, 2007 Ky. LEXIS 171 ( Ky. 2007 ).

By its plain language, KRS 403.190(4) was to be read in conjunction, not in conflict with, KRS 161.700(2); a ruling that a husband in a divorce case was allowed to exclude the full amount of his Kentucky Teachers’ Retirement System (KTRS) account from classification and division as marital property pursuant to KRS 161.700(2) was error because the wife’s SEP-IRA qualified as a retirement account under KRS 403.190(4), and, thus, the divisionary rules of KRS 403.190(4) limited the amount of KTRS funds that the husband was allowed to exclude. Shown v. Shown, 233 S.W.3d 718, 2007 Ky. LEXIS 192 ( Ky. 2007 ).

Under circumstances in which estate beneficiaries won a jury verdict against the estate’s executrix based on a claim that the executrix wrongfully spent estate monies, the trial court properly limited attorney fees awarded to the beneficiaries to be paid only from funds recovered from the executrix pursuant to the judgment because KRS 412.070(1) allowed the award of attorney fees only from recovered funds. Cummings v. Covey, 229 S.W.3d 59, 2007 Ky. App. LEXIS 202 (Ky. Ct. App. 2007).

Application of the temporary total disability (TTD) exception in KRS 342.125(3) to allow the reopening of a 1997 award for a low back injury did not violate the rule against retrospective operation of laws because the TTD exception concerned the procedure for reopening a workers’ compensation benefit award. Officeware v. Jackson, 247 S.W.3d 887, 2008 Ky. LEXIS 60 ( Ky. 2008 ).

Commission properly applied KRS 341.090 in finding that the extended base period included only four calendar quarters that immediately preceded the base period in calculating a claimant’s unemployment benefits; there was no ambiguity in the language of § 341.090 that permitted a court to expand the meaning of “extended base period.” Ky. Unemployment Ins. Comm'n v. Hamilton, 364 S.W.3d 450, 2011 Ky. LEXIS 176 ( Ky. 2011 ).

Employer’s argument that medical expenses paid to a worker’s compensation benefits claimant were subject to a $3,500 cap under former KRS 342.020 was improperly accepted because the amendments in 1964 and 1972 removing the statutory cap on future medical expenses represented a remedial, procedural change in the law. Schmidt v. S. Cent. Bell, 340 S.W.3d 591, 2011 Ky. App. LEXIS 88 (Ky. Ct. App. 2011).

15. Criminal Statutes.

A criminal statute must be construed as other statutes, with a view to carrying out the intention of the legislature. Commonwealth v. Trent, 117 Ky. 34 , 77 S.W. 390, 25 Ky. L. Rptr. 1180 , 1903 Ky. LEXIS 276 ( Ky. 1903 ).

Although criminal statutes should be construed the same as civil statutes, yet laws which create crime should be sufficiently explicit that men subject to their penalties may know what acts are forbidden, and before a man can be punished his case must be plainly within the statute. Crime is not to arise upon doubtful construction of a statute where a person of ordinary intelligence, reading the statute, would not understand that the act was forbidden and criminal statutes are not to be extended beyond the fair and natural meaning of the words used. Commonwealth v. Adams Express Co., 123 Ky. 720 , 97 S.W. 386, 29 Ky. L. Rptr. 1280 , 1906 Ky. LEXIS 210 ( Ky. 1906 ).

Everyday meaning of “glove compartment” in KRS 527.020(8) is the factory-installed compartment in the dash on the passenger’s side of a vehicle. Commonwealth v. Mohammad, 2004 Ky. App. LEXIS 268 (Ky. Ct. App. Sept. 17, 2004), aff'd, 202 S.W.3d 589, 2006 Ky. LEXIS 231 ( Ky. 2006 ).

16. — Strict Construction.

The rule of strict construction of criminal statutes is not in force in Kentucky. Commonwealth v. Jacobs, 126 Ky. 536 , 104 S.W. 345, 31 Ky. L. Rptr. 921 , 1907 Ky. LEXIS 73 ( Ky. 1907 ).

The common law rule that criminal statutes are to be strictly construed was modified by this section. Jones v. Commonwealth, 202 Ky. 88 , 258 S.W. 929, 1923 Ky. LEXIS 351 ( Ky. 1923 ).

17. —Specific Statutes.

Under statute prohibiting selling of examination questions “sent out” by superintendent of public instruction, selling of longhand copies of the printed questions sent out by the superintendent was a violation. Jones v. Commonwealth, 202 Ky. 88 , 258 S.W. 929, 1923 Ky. LEXIS 351 ( Ky. 1923 ).

Under statute imposing penalty for burning an insured storehouse, it was not a violation of the statute to burn a warehouse in which only the stock of goods therein, and not the warehouse itself, was insured. Dennison v. Commonwealth, 208 Ky. 366 , 270 S.W. 752, 1925 Ky. LEXIS 288 ( Ky. 1925 ).

Where the offense of which the defendant was accused was allegedly committed before the effective date of KRS 532.055 , and his trial began after the effective date, the application of KRS 532.055 to the trial of the defendant did not give retroactive effect to that section in violation of subsection (3) of this section. Commonwealth v. Reneer, 734 S.W.2d 794, 1987 Ky. LEXIS 232 ( Ky. 1987 ).

Since KRS 503.085 did not contain any language mitigating penalties since persons affected by the amended statute would never face prosecution and, thus, possible conviction and punishment, and it lacked language specifying its retroactive application, defendant could not avail himself of the immunity because it was not in force at the time he committed his offense. Worley v. Commonwealth, 2008 Ky. App. LEXIS 209 (Ky. Ct. App. July 3, 2008), review denied, ordered not published, 2009 Ky. LEXIS 230 (Ky. Aug. 19, 2009), cert. denied, 559 U.S. 1013, 130 S. Ct. 1898, 176 L. Ed. 2d 377, 2010 U.S. LEXIS 2718 (U.S. 2010).

Interpreted under KRS 446.080(1), the first-degree sexual abuse statute had lack of consent as an element; that element could be satisfied by evidence that the victim was under the age of 18 and thus unable to consent. Stinson v. Commonwealth, 396 S.W.3d 900, 2013 Ky. LEXIS 87 ( Ky. 2013 ).

18. Penal Statutes.

A penal statute must be sufficiently plain and exact to enable persons of ordinary intelligence to understand its provisions, and its mandate should be so clearly expressed that any ordinary person can determine what he may and may not do. Katzman v. Commonwealth, 140 Ky. 124 , 130 S.W. 990, 1910 Ky. LEXIS 199 ( Ky. 1910 ).

Every penal statute should be given a reasonable construction — one that will effectuate the legislative intent in its enactment; and if it describes the offense in language that can be understood by persons of ordinary intelligence, it will not be declared invalid on the ground of uncertainty for the established rules of construction do not require that the sufficiency of penal statutes be measured by a technical standard that would impair their efficiency and make their enforcement difficult or impossible. Katzman v. Commonwealth, 140 Ky. 124 , 130 S.W. 990, 1910 Ky. LEXIS 199 ( Ky. 1910 ).

Law does not favor penalties and will not exact them unless statute is clear and convincing, and, hence, if statute is so ambiguous as to leave reasonable minds in doubt, penalty will not be exacted beyond letter of statute. Commonwealth ex rel. Martin v. Tom Moore Distillery Co., 287 Ky. 125 , 152 S.W.2d 962, 1939 Ky. LEXIS 48 ( Ky. 1939 ).

19. Constitutionality of Statute.

Where words are susceptible of two (2) meanings, the court will give them the meaning which will uphold the constitutionality of the law. Gibson v. Commonwealth, 209 Ky. 101 , 272 S.W. 43, 1925 Ky. LEXIS 436 ( Ky. 1925 ). See Standard Oil Co. v. Commonwealth, 119 Ky. 75 , 82 S.W. 1020, 26 Ky. L. Rptr. 985 , 1904 Ky. LEXIS 146 ( Ky. 1904 ).

Validity of statute should not be tested by meticulous adherence to letter of constitution when it conflicts with spirit or intent thereof. Barker v. Stearns Coal & Lumber Co., 287 Ky. 340 , 152 S.W.2d 953, 1941 Ky. LEXIS 534 ( Ky. 1941 ).

There is nothing in Ky. Acts 1990, ch. 398 which expressly states the new definition of “urban area” shall be retroactively applied to a situation where penalties are sought for actions which took place in 1981 and which were then illegal based upon a definition which the Supreme Court in Diemer v. Commonwealth, Transp. Cabinet, Dep't of Highways, 786 S.W.2d 861, 1990 Ky. LEXIS 8 ( Ky. 1990 ).

20. Retroactive.

Statute imposing corporation organization tax was not retroactive, and did not apply to corporations organized before enactment of statute. Commonwealth v. Southern Pac. Co., 164 Ky. 818 , 176 S.W. 375, 1915 Ky. LEXIS 465 ( Ky. 1915 ).

Statute providing for removal of peace officers for neglect of duty was not retroactive. Holliday v. Fields, 210 Ky. 179 , 275 S.W. 642, 1925 Ky. LEXIS 645 ( Ky. 1925 ).

Retroactive effect or retrospective application of an act will not be given or made unless intent that it should be is clearly expressed or necessarily implied. Taylor v. Asher, 317 S.W.2d 895, 1958 Ky. LEXIS 117 ( Ky. 1958 ).

The death penalty sentence for a capital offense authorized by KRS 532.030 and KRS 532.035 (repealed) and the method for its imposition provided by KRS 532.025 are applicable only to capital offenses committed after the effective date of those statutes, December 22, 1976. Hudson v. Commonwealth, 597 S.W.2d 610, 1980 Ky. LEXIS 207 ( Ky. 1980 ).

Since the 1974 amendments to KRS 95.859 and KRS 95.862 , which increased certain pensions for police and fire fighters in second-class cities, contained no language expressly making the increases retroactive, the provisions governing the increases have prospective effect only, because KRS 95.879 and this section require that any retroactivity be specifically declared. Policemen's & Firemen's Retirement Fund v. Rothrock, 625 S.W.2d 577, 1981 Ky. LEXIS 304 ( Ky. 1981 ).

The rule against retroactive application of statutes is to be strictly construed. Sparks v. Craft, 75 F.3d 257, 1996 FED App. 0042P, 1996 U.S. App. LEXIS 1604 (6th Cir. Ky. 1996 ).

Where KRS 178.025(2), governing highway rights-of-way, was not enacted until 44 years after electric lines were constructed, and the legislature did not expressly direct that the statute should be retroactively applied, the court could not apply KRS 178.025(2), in order to determine whether the electric lines were in right-of-way, without violating subsection (3), which prohibits the retroactive application of statutes. Kentucky Utilities Co. v. Commonwealth, Dep't of Transp., Bureau of Highways, 665 S.W.2d 918, 1983 Ky. App. LEXIS 398 (Ky. Ct. App. 1983).

Where a District Court’s opinion which awarded arrearages in child support in a paternity suit was entered in the interim after the prior version of KRS 406.031 was held unconstitutional and before the passage of the current version of KRS 406.031 , but the appeal to the Circuit Court was decided after the current version became effective, the Circuit Court properly ruled that KRS 406.031 could not be retroactively applied. See Wigginton v. Commonwealth, 760 S.W.2d 885, 1988 Ky. App. LEXIS 166 (Ky. Ct. App. 1988).

KRS 411.182 , allocating fault in tort actions, does not have retroactive application pursuant to subsection (3) of this section. Ingersoll-Rand Co. v. Rice, 775 S.W.2d 924, 1988 Ky. App. LEXIS 207 (Ky. Ct. App. 1988).

The language in KRS 177.842 extending the definition of “urban area” to advertising devices erected after 1976 was intended only to identify the advertising devices to which the amendment applied, rather than to make the definition of urban area contained in KRS 177.830(10) retroactive to 1976. Commonwealth, Transp. Cabinet, Dep't of Highways v. Wayfara, Inc., 840 S.W.2d 211, 1992 Ky. App. LEXIS 105 (Ky. Ct. App. 1992).

Legislation that operates in furtherance of a remedy, commonly described as “remedial” legislation, is not normally considered to be retrospective when it is applied to transactions which occurred before it was enacted and is to be construed in a manner that will effectuate its purpose. Thornsbury v. AERO Energy, 908 S.W.2d 109, 1995 Ky. LEXIS 106 ( Ky. 1995 ).

KRS 342.197 is not remedial legislation nor intended to be retroactively applied by the employer to reopen a total disabilities award based on pneumoconiosis. King Coal Co. v. Overton, 907 S.W.2d 171, 9097 S.W.2d 171, 1995 Ky. App. LEXIS 168 (Ky. Ct. App. 1995).

KRS 342.120 addresses a method of payment and is procedural and operates to effectuate a remedy, therefore its application, as amended on April 4, 1994, to disabled worker’s claim did not constitute an impairment of a vested right and did not come within the legal concept of a retrospective law nor the general rule against the retrospective operation of statutes of subsection (3) of this section. Miracle v. Riggs, 918 S.W.2d 745, 1996 Ky. App. LEXIS 44 (Ky. Ct. App. 1996).

Even though subsection (3) of this section provides that no statute shall be construed to be retroactive unless expressly so declared, legislation has been applied to causes of action which arose before its effective date, in the absence of an express declaration that the provision is to be so applied, in those instances where the courts have determined that the provision was remedial or procedural in nature and that retroactive application of the provision was consistent with the legislative intent. Spurlin v. Adkins, 940 S.W.2d 900, 1997 Ky. LEXIS 34 ( Ky. 1997 ).

There was no improper retroactive application of KRS 416.670 where the court allowed the former owners of property condemned by the Transportation Cabinet to repurchase the unused part of condemned property, notwithstanding that the condemnation occurred prior to the amendment of the statute which allowed such repurchase; it was the failure of the Transportation Cabinet to begin development within eight years, and not the condemnation, which entitled the former owners the opportunity to repurchase the surplus property. Kelly v. Thompson, 983 S.W.2d 457, 1998 Ky. LEXIS 128 ( Ky. 1998 ).

KRS 278.183 was applied retroactively in violation of subsection (3) of this section by a Public Service Commission order which allowed a utility company to recover environmental expenditures incurred before January 1, 1993. Kentucky Indus. Util. Customers, Inc. v. Kentucky Utils. Co., 983 S.W.2d 493, 1998 Ky. LEXIS 165 ( Ky. 1998 ).

Under KRS 446.080(3), no statute shall be construed to be retroactive, unless expressly so declared. Dingo Coal Co. v. Tolliver, 2003 Ky. App. LEXIS 37 (Ky. Ct. App. Feb. 14, 2003), aff'd, 129 S.W.3d 367, 2004 Ky. LEXIS 75 ( Ky. 2004 ).

Because KRS 394.090 governed the revocation of wills at the time the decedent executed his will and remarried, and that statute unambiguously provided that marriage revoked the will, the fact that the statute was revised in 1998 did not change the result; hence, as the decedent never revived that will which had been revoked by operation of law, said will was void. Conn v. Conn, 2005 Ky. App. LEXIS 199 (Ky. Ct. App.), sub. op., 2005 Ky. App. Unpub. LEXIS 732 (Ky. Ct. App. Sept. 16, 2005), review denied, ordered not published, 2006 Ky. LEXIS 64 (Ky. Mar. 15, 2006).

Trial court did not err in the state employees’ lawsuit seeking declaratory and injunctive relief from the suspension of a statute that directed that they get at least a five percent annual raise in finding that the General Assembly could retroactively suspend that statute, KRS 18A.355 ; although the governor, the defendant in the lawsuit, did not have the power to suspend statutes, the General Assembly did have it and could exercise it because it had manifested an intent to do so. Baker v. Fletcher, 204 S.W.3d 589, 2006 Ky. LEXIS 153 ( Ky. 2006 ).

Where plaintiff sought a prescriptive easement over a roadway on property owners’ land which had been used for decades by hunters and fishermen to access a creek, pursuant to KRS 446.080(3), an amendment to KRS 411.190 that banned the creation of a prescriptive easement for recreational activities could not be applied retroactively, since the amendment did not state that it could be given retroactive effect, and doing so would affect the parties’ substantive rights with respect to prior events. Allen v. Thomas, 209 S.W.3d 475, 2006 Ky. App. LEXIS 206 (Ky. Ct. App. 2006).

Appellant was not entitled to pretrial diversion, as KRS 533.250 , which established pretrial diversion in 1998, did not apply to appellant’s guilty plea, which occurred long before 1998; KRS 446.080(3) prohibited a statute from being construed to be retroactive unless expressly so declared. Clements v. Commonwealth, 203 S.W.3d 710, 2006 Ky. App. LEXIS 254 (Ky. Ct. App. 2006).

County’s occupational license fee ordinance and KRS 68.197 were constitutionally valid because when the fee was first imposed under a public question ballot, the county was not required to give taxpayers credit for city fees and retroactive restoration of that provision had legitimate purpose and did not violate due process under the Kentucky Constitution or KRS 446.080 . King v. Campbell County, 217 S.W.3d 862, 2006 Ky. App. LEXIS 331 (Ky. Ct. App. 2006).

Although a recent amendment to KRS 382.270 which protected defectively acknowledged and previously recorded mortgages indicated that the amendment was intended to apply retroactively, the amendment could not be applied retroactively to protect a mortgage from avoidance by a bankruptcy trustee, since the trustee’s rights as a bona fide purchaser vested prior to enactment of the amendment and the amendment clearly provided for a change in the law regarding when the trustee was put on constructive notice of the mortgage. Select Portfolio Servs. v. Burden (In re Trujillo), 378 B.R. 526, 2007 Bankr. LEXIS 3786 (B.A.P. 6th Cir. 2007).

Petitioners were not entitled to adverse possession because KRS 411.190 applied retroactively, and even if their timber sale, as a non-recreational use, lay outside the scope of the statute, it would nonetheless apply to petitioners’ solely-recreational-use claim prior to 1999 and thus left them with a claim that fell far short of the requirement that the adverse possession continue for fifteen years. Moore v. Stills, 307 S.W.3d 71, 2010 Ky. LEXIS 50 ( Ky. 2010 ).

There was no merit to defendant’s argument that defendant should have received the benefit of retroactive application of the amendment to a sentencing statute and therefore, defendant’s underlying sentence for cocaine possession in the first degree, second or subsequent offense, should have been reduced; there was no retroactivity language in the statute, as required by KRS 446.080(3) for retroactive application. Goins v. Commonwealth, 2012 Ky. App. Unpub. LEXIS 1051 (Ky. Ct. App. Oct. 19, 2012), review denied, ordered not published, 2013 Ky. LEXIS 618 (Ky. Nov. 13, 2013).

21. — Regulations.

Where State Board of Registration for Professional Engineers and Land Surveyors adopted minimum standards of practice for surveyors, but the regulation which codified these standards was not effective until months after all of the surveys in question had been completed, the retroactive application of this regulation to such surveyor would be a violation of subsection (3) of this section. Kerr v. Kentucky State Bd. of Registration for Professional Engineers & Land Surveyors, 797 S.W.2d 714, 1990 Ky. App. LEXIS 155 (Ky. Ct. App. 1990).

22. Prospective.

Where applicable interest rate at time of decedent’s death on April 2, 1979 was six percent under KRS 360.010 and amendment effective April 1, 1980 changed rate to eight (8) percent, interest on proceeds from decedent’s insurance policy would be calculated at a six percent rate from April 2, 1979 to April 1, 1980 and at eight percent thereafter until the date of the court order, since the statutory amendment to KRS 360.010 did not provide for express retroactive application and thus could only be given prospective effect under this section. Metropolitan Life Ins. Co. v. Prater, 508 F. Supp. 667, 1981 U.S. Dist. LEXIS 12145 (E.D. Ky. 1981 ).

Since an amendment to this section, which shortens the presumptive abandonment period for traveler’s checks from 15 to 7 years, does not expressly declare that it was retroactive in nature, and it applies only prospectively from April 24, 2008. The amendment is considered substantive under Kentucky law based on the fact that it changes and redefines obligations and duties in traveler’s check transactions. Am. Express Travel Related Servs. Co. v. Kentucky, 730 F.3d 628, 2013 FED App. 0279P, 2013 U.S. App. LEXIS 19150 (6th Cir. Ky. 2013 ).

As the Kentucky Uniform Voidable Transactions Act did not state that it was retroactive, any transfer occurring prior to its enactment had to be considered under repealed chapter 378. Spradlin v. Pryor Cashman LLP (In re Licking River Mining, LLC), 565 B.R. 794, 2017 Bankr. LEXIS 805 (Bankr. E.D. Ky. 2017 ).

23. Terms.

Statutes are construed according to their meaning, rather than according to the letter. Words may be rejected when they are plainly useless and inappropriate and have no relation to the subject matter of the statute, and where it is plainly evident they were inserted by carelessness or inadvertence. Words may be read into a statute to prevent the statute from resulting in absurdity, and where they are plainly necessary to the legislative meaning and have been left out by carelessness or inadvertence. Collocation of words and phrases may be changed when the court is thoroughly convinced that the change is necessary to carry out the legislative will and to prevent an absurd conclusion or defeat the intention of the statute. Ross v. Board of Education, 196 Ky. 366 , 244 S.W. 793, 1922 Ky. LEXIS 520 ( Ky. 1922 ).

In a declaratory action by unsuccessful nominees from an initial list, KRS 12.070(3) applied to the Governor’s appointment of members of a state university’s board of regents because the phrase “administrative boards and commissions,” while not defined in KRS 12.010 , could be construed pursuant to KRS 446.080 to include governing bodies of state universities. Galloway v. Fletcher, 241 S.W.3d 819, 2007 Ky. App. LEXIS 324 (Ky. Ct. App. 2007).

24. —Meaning.

The legislature must be credited with a knowledge of the meaning of words. Standard Oil Co. v. Commonwealth, 110 Ky. 821 , 62 S.W. 897, 23 Ky. L. Rptr. 302 , 1901 Ky. LEXIS 143 ( Ky. 1901 ).

Although the construction of words and phrases in a statute is ordinarily for the court, where it is shown by evidence that words or phrases are susceptible of two (2) meanings, depending upon the state of facts to which they are applied, the court may instruct the jury in the terms of the statute and leave them to find from the evidence whether the statute has been violated. Katzman v. Commonwealth, 140 Ky. 124 , 130 S.W. 990, 1910 Ky. LEXIS 199 ( Ky. 1910 ).

Where the sense in which language was intended to be used can be clearly ascertained from the statute, resort to other means of aiding the construction will be unnecessary. Gilbert v. Greene, 185 Ky. 817 , 216 S.W. 105, 1919 Ky. LEXIS 380 ( Ky. 1919 ).

In construing a statute, words must be given their ordinary meaning, unless they have acquired a technical meaning. Baker v. White, 251 Ky. 691 , 65 S.W.2d 1022, 1933 Ky. LEXIS 954 ( Ky. 1933 ). See Seaboard Oil Co. v. Commonwealth, 193 Ky. 629 , 237 S.W. 48, 1922 Ky. LEXIS 50 ( Ky. 1922 ).

Words and phrases in a statute are to be construed according to their technical meaning, if any, otherwise in their popular sense. Hawley Coal Co. v. Bruce, 252 Ky. 455 , 67 S.W.2d 703, 1934 Ky. LEXIS 810 ( Ky. 1934 ). See Higginbothom v. Higginbothom, 177 Ky. 271 , 197 S.W. 627, 1917 Ky. LEXIS 558 ( Ky. 1917 ) ( Ky. 1917 ); Gilbert v. Greene, 185 Ky. 817 , 216 S.W. 105, 1919 Ky. LEXIS 380 ( Ky. 1919 ).

The court may delete or interpolate words to prevent an absurd consequence or to resolve an ambiguity in a statute. Fidelity & Columbia Trust Co. v. Meek, 294 Ky. 122 , 171 S.W.2d 41, 1943 Ky. LEXIS 404 ( Ky. 1943 ).

Ordinarily, all statutory words and phrases are construed according to common and approved usage of language; however, words which have acquired a peculiar and appropriate meaning in the law must be construed according to such other meaning. Revenue Cabinet v. JRS Data Systems, Inc., 738 S.W.2d 828, 1987 Ky. App. LEXIS 526 (Ky. Ct. App. 1987).

25. — —Ordinary.

A statute must be construed according to the common usage of the terms used, even though the result is to change a common-law rule. Dillehay v. Hickey, 71 S.W. 1, 24 Ky. L. Rptr. 1220 (1902).

All untechnical words and phrases should be construed according to the common and approved use of language. Commonwealth v. Trent, 117 Ky. 34 , 77 S.W. 390, 25 Ky. L. Rptr. 1180 , 1903 Ky. LEXIS 276 ( Ky. 1903 ).

Rule that words shall be construed according to common usage may be applied in construing a contract, such as an insurance policy. Life & Casualty Ins. Co. v. Metcalf, 240 Ky. 628 , 42 S.W.2d 909, 1931 Ky. LEXIS 466 ( Ky. 1931 ).

Unless there is something in the statute plainly indicating a contrary sense in which the language was employed, the usual and ordinary meaning of the words will be attributed to them. Green v. Moore, 281 Ky. 305 , 135 S.W.2d 682, 1939 Ky. LEXIS 33 ( Ky. 1939 ).

In the construction of statutes simple words must be given their ordinary meaning and cannot be given a strained interpretation for the purpose of effecting a result not contemplated by the general assembly. Inter-County Rural Electric Co-operative Corp. v. Reeves, 294 Ky. 458 , 171 S.W.2d 978, 1943 Ky. LEXIS 446 ( Ky. 1943 ).

Order allowing the Commonwealth to amend to reduce a fourth-offense operating a motor vehicle under the influence (DUI) charge to a second-offense DUI in order to avoid impermissible double enhancements was error because defendant had refused to submit to an alcohol concentration test, and, thus, such a motion to amend was prohibited by KRS 189A.120(1); clearly, by moving to amend, the Commonwealth had improperly agreed to the amendment. Nothing in KRS 189A.120(1) led to the conclusion that the Commonwealth was only prohibited from concurring in a defense motion to amend while remaining free to seek such an amendment on its own. Jones v. Commonwealth, 279 S.W.3d 522, 2009 Ky. LEXIS 65 ( Ky. 2009 ).

Based on the plain language of the marriage statutes pursuant to interpretation rules under KRS 446.080 , parties who entered into a purely religious marriage ceremony, solemnized pursuant to their religious faith, but who purposely chose not to obtain a civil marriage license pursuant to KRS 402.080 and 402.220 , did not create a legally valid civil marriage. Pinkhasov v. Petocz, 331 S.W.3d 285, 2011 Ky. App. LEXIS 18 (Ky. Ct. App. 2011).

26. — — Technical.

Words having a well-defined legal meaning must be given that meaning. London v. Franklin, 118 Ky. 105 , 80 S.W. 514, 25 Ky. L. Rptr. 2306 , 1904 Ky. LEXIS 19 ( Ky. 1904 ).

Statutes relating to printing, and using technical words of printers’ trade, must be construed according to their technical meaning in the trade, and not according to dictionary definitions. Commonwealth ex rel. Attorney Gen. v. Bacon, 111 S.W. 387, 33 Ky. L. Rptr. 935 , 1908 Ky. LEXIS 337 (Ky. Ct. App. 1908).

When words used in a penal statute have both a popular and a trade or technical meaning, and as used in the statute they have reference to a trade or profession, the words shall be given the meaning understood by the trade or profession to which they apply. Katzman v. Commonwealth, 140 Ky. 124 , 130 S.W. 990, 1910 Ky. LEXIS 199 ( Ky. 1910 ).

Where words applying to a particular trade or profession are claimed to have a technical meaning in such trade or profession, it is proper to allow experts to testify as to what things are intended to be embraced by such words. Katzman v. Commonwealth, 140 Ky. 124 , 130 S.W. 990, 1910 Ky. LEXIS 199 ( Ky. 1910 ).

Even if a term such as “broadcasting” has acquired a technical meaning, the court did not err in refusing to accept an expert witness’ testimony as to his own conception of broadcasting, rather than the meaning of the term in an accepted technical sense or as understood in the trade or profession. Owensboro-On-The-Air, Inc. v. Tinius, 551 S.W.2d 831, 1977 Ky. App. LEXIS 710 (Ky. Ct. App. 1977).

27. —Particular.

Words “railroad or other public improvement,” in lien statute, included a street railway. Montgomery v. Allen, 107 Ky. 298 , 53 S.W. 813, 21 Ky. L. Rptr. 1001 , 1899 Ky. LEXIS 171 ( Ky. 1899 ).

Word “principal,” in statute relating to “principal place of business” of corporations, is given its dictionary meaning. Standard Oil Co. v. Commonwealth, 110 Ky. 821 , 62 S.W. 897, 23 Ky. L. Rptr. 302 , 1901 Ky. LEXIS 143 ( Ky. 1901 ). See Commonwealth v. Cumberland Tel. & Tel. Co., 108 S.W. 262, 32 Ky. L. Rptr. 978 (1908).

According to common usage, and to technical meaning in particular business, words “in bulk or tank,” in statute imposing tax on oil depots, mean oil stored in large tanks, holding many barrels, and not oil stored in individual barrels in a warehouse. Standard Oil Co. v. Commonwealth, 119 Ky. 75 , 82 S.W. 1020, 26 Ky. L. Rptr. 985 , 1904 Ky. LEXIS 146 ( Ky. 1904 ).

Statute imposing franchise tax on certain public service corporations, and on any other corporation “exercising any special or exclusive privilege not allowed to natural persons,” does not apply to ordinary trading corporations. Standard Oil Co. v. Commonwealth, 119 Ky. 75 , 82 S.W. 1020, 26 Ky. L. Rptr. 985 , 1904 Ky. LEXIS 146 ( Ky. 1904 ).

Retail means the sale of commodities in small quantities or parcels. Katzman v. Commonwealth, 140 Ky. 124 , 130 S.W. 990, 1910 Ky. LEXIS 199 ( Ky. 1910 ).

Word “advice,” in city ordinance requiring city attorney to give advice to board of education, will be construed in its broad sense, thereby including duty to represent board of education in litigation. Board of Education v. Ritchie, 149 Ky. 674 , 149 S.W. 985, 1912 Ky. LEXIS 696 ( Ky. 1912 ).

Words “infant” and “parent,” in statute relating to descent of ancestral estates, includes adoptive children and parents. Lanferman v. Vanzile, 150 Ky. 751 , 150 S.W. 1008, 1912 Ky. LEXIS 988 ( Ky. 1912 ).

Under statute punishing any person who should feloniously break any warehouse, and take away anything of value, offense is committed whether breaking is in or out. Lawson v. Commonwealth, 160 Ky. 180 , 169 S.W. 587, 1914 Ky. LEXIS 408 ( Ky. 1914 ) ( Ky. 1914 ).

Where, in amending section of statutes, provision that “section” should not apply to certain religious societies was changed by substitution of “chapter” for “section,” it must be held that legislature intended that whole chapter should not apply to such societies. Adams v. Bohon, 176 Ky. 66 , 195 S.W. 156, 1917 Ky. LEXIS 15 ( Ky. 1917 ).

Words “trade or occupation,” in city charter statute authorizing imposition of license taxes, are synonymous with “the business,” according to common and approved usage of language. R. J. Reynolds Tobacco Co. v. Lexington, 181 Ky. 503 , 205 S.W. 592, 1918 Ky. LEXIS 568 ( Ky. 1918 ).

Word “abandonment,” in statute relating to plugging abandoned oil wells is given its ordinary dictionary meaning. Seaboard Oil Co. v. Commonwealth, 193 Ky. 629 , 237 S.W. 48, 1922 Ky. LEXIS 50 ( Ky. 1922 ).

The phrase, “and after deducting his commission for same, as now allowed by law and provided herein,” in statute relating to collection of school taxes, is construed to mean, “and deduct his commission as now provided by this law.” Ross v. Board of Education, 196 Ky. 366 , 244 S.W. 793, 1922 Ky. LEXIS 520 ( Ky. 1922 ).

Word “storehouse” should be given its ordinary dictionary meaning. Dennison v. Commonwealth, 208 Ky. 366 , 270 S.W. 752, 1925 Ky. LEXIS 288 ( Ky. 1925 ).

Word “operate,” in statute imposing certain duties on persons operating hotels, is given its ordinary dictionary meaning. Pirtle's Adm'x v. Hargis Bank & Trust Co., 241 Ky. 455 , 44 S.W.2d 541, 1931 Ky. LEXIS 118 ( Ky. 1931 ).

Words “personal property,” in statute relating to transfers of personal property between husband and wife, include intangible personalty as well as tangible. Hawley Coal Co. v. Bruce, 252 Ky. 455 , 67 S.W.2d 703, 1934 Ky. LEXIS 810 ( Ky. 1934 ).

Where the sense, purpose or policy of a statute requires, “may” is construed as “must” or “shall,” but otherwise it has its ordinary permissive or discretionary force. Dawson Springs v. Hamby, 273 Ky. 523 , 117 S.W.2d 204, 1938 Ky. LEXIS 675 ( Ky. 1938 ).

The words “street or avenue” will be construed to include a public highway outside a city or town, if the reason and spirit of the law so require. Dougherty v. Kentucky Alcoholic Beverage Control Board, 279 Ky. 262 , 130 S.W.2d 756, 1939 Ky. LEXIS 272 ( Ky. 1939 ).

Property owners’ failure to comply with all elements of the notice requirements in KRS 382.365(4), made mandatory by the word “shall” in accordance with KRS 446.080(4), precluded a statutory penalty against a lender for erroneous filing of a mortgage lien and failure to release the lien, even if the lender actually received the notice and knew of the problem with the mortgage lien. CitiFinancial, Inc. v. Bratton, 2012 Ky. App. Unpub. LEXIS 1020 (Ky. Ct. App. Aug. 31, 2012), aff'd on other grounds, 415 S.W.3d 625, 2013 Ky. LEXIS 650 ( Ky. 2013 ).

28. — — Heir.

The word “heir,” as used in statute authorizing heirs to erect tombstone and charge it to estate, does not include widow. Higginbothom v. Higginbothom, 177 Ky. 271 , 197 S.W. 627, 1917 Ky. LEXIS 558 ( Ky. 1917 ) ( Ky. 1917 ).

The word “heir” ordinarily does not apply to a surviving husband or wife, or to a person who takes by will rather than by descent. Higginbothom v. Higginbothom, 177 Ky. 271 , 197 S.W. 627, 1917 Ky. LEXIS 558 ( Ky. 1917 ) ( Ky. 1917 ).

29. — — Legitimate.

In prosecution under statute prohibiting sale of narcotic drugs except for legitimate use, it was proper to accept evidence of druggists and physicians as to whether particular use was a legitimate one, and to submit question of whether statute had been violated, by sale in question, to the jury. Commonwealth v. Gabhart, 160 Ky. 32 , 169 S.W. 514, 1914 Ky. LEXIS 395 ( Ky. 1914 ).

In statute prohibiting sale of narcotic drugs except for legitimate use, failure to define such words does not make statute void for uncertainty. Commonwealth v. Gabhart, 160 Ky. 32 , 169 S.W. 514, 1914 Ky. LEXIS 395 ( Ky. 1914 ).

Word “legitimate,” in statute prohibiting sale of narcotic drugs except for legitimate use, is not used in its original sense of “lawful,” but in its secondary sense of “proper” or “warranted.” Commonwealth v. Gabhart, 160 Ky. 32 , 169 S.W. 514, 1914 Ky. LEXIS 395 ( Ky. 1914 ).

30. — — At Pleasure.

Statute authorizing removal of certain officers at pleasure of appointing authority could not be construed to mean that removal could be for cause only. London v. Franklin, 118 Ky. 105 , 80 S.W. 514, 25 Ky. L. Rptr. 2306 , 1904 Ky. LEXIS 19 ( Ky. 1904 ).

Words of statute authorizing removal of appointed city officers “at pleasure” of city council will not be construed to require removal by impeachment. Rogers v. Congleton, 84 S.W. 521, 27 Ky. L. Rptr. 109 (1905).

31. — — Possession.

Word “possessed,” in statute imposing inheritance tax on property of which decedent died possessed, will be given its ordinary dictionary meaning, which makes it synonymous with “owned.” Bingham's Adm'r v. Commonwealth, 196 Ky. 318 , 244 S.W. 781, 1922 Ky. LEXIS 519 ( Ky. 1922 ), overruled, Citizens Fidelity Bank & Trust Co. v. Reeves, 259 S.W.2d 432, 1953 Ky. LEXIS 942 ( Ky. 1953 ).

Word “possession,” in statute relating to landlord and tenant will be given its ordinary dictionary meaning of “control” or “dominion,” rather than “occupancy.” Nevin v. Louisville Trust Co., 258 Ky. 187 , 79 S.W.2d 688, 1935 Ky. LEXIS 126 ( Ky. 1935 ).

32. Constitution.

In interpreting constitution, proceedings of convention may be examined to indicate meaning, but if words used naturally convey different meaning, language of instrument controls regardless of purpose disclosed in debates. Barker v. Stearns Coal & Lumber Co., 287 Ky. 340 , 152 S.W.2d 953, 1941 Ky. LEXIS 534 ( Ky. 1941 ).

33. Court Decision.

Since Court of Appeals’ decision holding that a wife had a cause of action for loss of consortium resulting from negligence of a third party in Kotsiris v. Ling, 451 S.W.2d 411, 1970 Ky. LEXIS 390 ( Ky. 1970 ), expressly applied retroactively whereas the prior statute did not, wife’s cause of action claiming for loss of consortium resulting from negligence of defendants which was filed prior to the effective date of KRS 411.145 stated a claim and hence defendant’s motion to dismiss the complaint on the ground of failure to state a claim was denied. Thomas v. Deason, 317 F. Supp. 1098, 1970 U.S. Dist. LEXIS 9915 (W.D. Ky. 1970 ).

34. Workers’ Compensation.

Employer was entitled to credit its liability for past due or future income benefits only to the extent that those benefits duplicated or overlapped workers’ compensation benefits because KRS 342.730(6) did not entitle the employer to credit the overpayment of voluntary benefits against future income benefits; the Loss of License benefit to which the parties agreed exceeded the claimant’s benefit under KRS 342.730(1) during the weeks that they overlapped. The purpose of KRS 342.730(6) is to avoid a duplication of income-replacement benefits with respect to injuries that occur after its effective date by permitting private contractual benefits that duplicate benefits awarded under KRS 342.730(1) to offset them. UPS Airlines v. West, 366 S.W.3d 472, 2012 Ky. LEXIS 62 ( Ky. 2012 ).

35. Taxing Statutes.

Department’s change which raised state tax obligation of public service company (PSC) and made it subject to local taxes was upheld because general assembly did not intend for franchise of PSCs to be exempt from state and local taxes and intended for it to be taxed separately. KRS 136.115(2) directed that taxes were assessed on operating tangible property and franchise; franchise was separate and nothing in the statutes indicated that franchise was included in operating tangible property. Additionally, KRS 132.208 provides a state and local tax exemption for intangible personal property except that which is assessed under KRS ch. 136. Dayton Power & Light Co. v. Dep't of Revenue, 405 S.W.3d 527, 2012 Ky. App. LEXIS 232 (Ky. Ct. App. 2012).

Circuit court erred in granting summary judgment to a board of education and declaring that the county clerk erred in certifying a tax recall petition because “petition committee” was merely a convenient way to refer to the individuals who initiated the petition and did not deprive them of standing, although there were technical flaws, given the liberal construction afforded to statutes, the petition substantially complied with the statutory requirements, and the county clerk properly determined that because the committee did not request publication of notice, none was required. Petition Comm. v. Bd. of Educ., 509 S.W.3d 58, 2016 Ky. App. LEXIS 109 (Ky. Ct. App. 2016).

Cited in:

Gillespie v. Schomaker, 191 F. Supp. 8, 1961 U.S. Dist. LEXIS 3164 (E.D. Ky. 196 1); Wood Oil Co. v. Commonwealth, 196 Ky. 196 , 244 S.W. 429, 1922 Ky. LEXIS 488 (1922); Kentucky Hotel, Inc. v. Cinotti, 298 Ky. 88 , 182 S.W.2d 27, 1944 Ky. LEXIS 843 ( Ky. 1944 ); Greene v. Slusher, 300 Ky. 715 , 190 S.W.2d 29, 1945 Ky. LEXIS 628 ( Ky. 1945 ); Queenan v. Louisville, 313 Ky. 816 , 233 S.W.2d 1010, 1950 Ky. LEXIS 998 ( Ky. 1950 ); Reeves v. Coldway Carriers, Inc., 240 S.W.2d 47, 1951 Ky. LEXIS 938 ( Ky. 1951 ); Barnes v. Crowe, 240 S.W.2d 604, 1951 Ky. LEXIS 992 ( Ky. 1951 ); Hodgkin v. Kentucky Chamber of Commerce, 246 S.W.2d 1014, 1952 Ky. LEXIS 657 ( Ky. 1952 ); Louisville & Jefferson County Planning & Zoning Com. v. Stoker, 259 S.W.2d 443, 1953 Ky. LEXIS 947 ( Ky. 1953 ); Arlan’s Dep’t Store v. Commonwealth, 369 S.W.2d 9, 1963 Ky. LEXIS 55 ( Ky. 1963 ); Johnston v. Staples, 408 S.W.2d 206, 1966 Ky. LEXIS 90 ( Ky. 1966 ); Crawford v. V. & C. Coal Co., 432 S.W.2d 403, 1968 Ky. LEXIS 328 ( Ky. 1968 ); Kentucky Unemployment Ins. Com. v. Anaconda Aluminum Co., 433 S.W.2d 119, 1968 Ky. LEXIS 259 ( Ky. 1968 ); Kentucky Board for Licensing Hearing Aid Dealers v. Rallo, 549 S.W.2d 825, 1977 Ky. LEXIS 415 ( Ky. 1977 ); Louisville & N. R. Co. v. Department of Revenue, 551 S.W.2d 259, 1977 Ky. App. LEXIS 721 (Ky. Ct. App. 1977); Roth v. Investment Properties of Lexington, Inc., 560 S.W.2d 831, 1978 Ky. App. LEXIS 45 9 (Ky. Ct. App. 1978); Commonwealth, Dep’t of Revenue v. Kuhlman Corp., 564 S.W.2d 14, 1978 Ky. LEXIS 347 ( Ky. 1978 ); Kinser Sheet Metal, Inc. v. Morse, 566 S.W.2d 179, 1978 Ky. App. LEXIS 51 8 (Ky. Ct. App. 1978); Fitzpatrick v. Crestfield Farm, Inc., 582 S.W.2d 44, 1978 Ky. App. LEXIS 678 (Ky. Ct. App. 1978); Ohio Sec. Ins. Co. v. Drury, 582 S.W.2d 64, 1979 Ky. App. LEXIS 414 (Ky. Ct. App. 1979); Kroger Co. v. Department of Revenue, 614 S.W.2d 705, 1981 Ky. App. LEXIS 237 (Ky. Ct. App. 1981); Tabor v. Commonwealth, 625 S.W.2d 571, 1981 Ky. LEXIS 301 ( Ky. 1981 ); Central Kentucky Production Credit Asso. v. Smith, 633 S.W.2d 64, 1982 Ky. LEXIS 248 ( Ky. 1982 ); Morse v. Alley, 638 S.W.2d 284, 1982 Ky. App. LEXIS 238 (Ky. Ct. App. 1982); Wells v. Paris, 640 S.W.2d 822, 1982 Ky. LEXIS 309 ( Ky. 1982 ); Claude N. Fannin Wholesale Co. v. Thacker, 661 S.W.2d 477, 1983 Ky. App. LEXIS 304 (Ky. Ct. App. 1983); Board of Trustees v. Brown, 665 S.W.2d 924, 1983 Ky. App. LEXIS 377 (Ky. Ct. App. 1983); Commonwealth v. Ball, 691 S.W.2d 207, 1985 Ky. LEXIS 231 ( Ky. 1985 ); Cutrer v. Commonwealth, 697 S.W.2d 156, 1985 Ky. App. LEXIS 62 1 (Ky. Ct. App. 1985); Hayes v. State Property & Bldgs. Com., 731 S.W.2d 797, 1987 Ky. LEXIS 217 ( Ky. 1987 ); Department of Alcoholic Beverage Control v. Liquor Outlet, Inc., 734 S.W.2d 816, 1987 Ky. App. LEXIS 527 (Ky. Ct. App. 1987); Knox v. Commonwealth, 735 S.W.2d 711, 1987 Ky. LEXIS 229 ( Ky. 1987 ), overruled, Lane v. Commonwealth, 956 S.W.2d 874, 1997 Ky. LEXIS 68 ( Ky. 1997 ), overruled, Lane v. Commonwealth, 949 S.W.2d 604 ( Ky. 1997 ), overruled in part, Tharp v. Commonwealth, 40 S.W.3d 356, 2000 Ky. LEXIS 200 ( Ky. 2000 ); Bryant v. Jericol Mining, Inc., 758 S.W.2d 45, 1988 Ky. App. LEXIS 90 (Ky. Ct. App. 1988); University of Louisville v. O’Bannon, 770 S.W.2d 215, 1989 Ky. LEXIS 12 ( Ky. 1989 ); Farris v. Huston Barger Masonry, Inc., 780 S.W.2d 611, 1989 Ky. LEXIS 102 ( Ky. 1989 ); E.W. Scripps Co. v. Maysville, 790 S.W.2d 450, 1990 Ky. App. LEXIS 71 (Ky. Ct. App. 1990); Nucor Corp. v. General Electric Co., 812 S.W.2d 136, 1991 Ky. LEXIS 54 ( Ky. 1991 ); Commonwealth v. Shivley, 814 S.W.2d 572, 1991 Ky. LEXIS 106 ( Ky. 1991 ); Peabody Coal Co. v. Gossett, 819 S.W.2d 33, 1991 Ky. LEXIS 180 (Ky. 1991); Puckett v. Miller, 821 S.W.2d 791, 1991 Ky. LEXIS 19 4 (Ky. 1991); Loid v. Kell, 844 S.W.2d 428, 1992 Ky. App. LEXIS 189 (Ky. Ct. App. 1992); Waggoner v. Waggoner, 846 S.W.2d 704, 1992 Ky. LEXIS 189 ( Ky. 1992 ); Newberg v. Thomas Indus., 852 S.W.2d 339, 1993 Ky. App. LEXIS 59 (Ky. Ct. App. 1993); Bowen v. Commonwealth ex rel. Stidham, 887 S.W.2d 350, 1994 Ky. LEXIS 110 ( Ky. 1994 ); Sanders v. Commonwealth, 901 S.W.2d 51, 1995 Ky. App. LEXIS 126 (Ky. Ct. App. 1995); Blair v. Peabody Coal Co., 909 S.W.2d 337, 1995 Ky. App. LEXIS 192 (Ky. Ct. App. 1995); Beach v. Commonwealth, 927 S.W.2d 826, 1996 Ky. LEXIS 60 ( Ky. 1996 ); Continental Marine v. Bayliner Marine Corp., 929 S.W.2d 206, 1996 Ky. App. LEXIS 152 (Ky. Ct. App. 1996); Cabinet for Human Resourcs, Interim Office of Health Planning & Certification v. Jewish Hosp. Healthcare Servs., 932 S.W.2d 388, 1996 Ky. App. LEXIS 171 (Ky. Ct. App. 1996); St. Martin v. KFC Corp., 935 F. Supp. 898, 1996 U.S. Dist. LEXIS 10268 (W.D. Ky. 1996 ); White v. Commonwealth, 32 S.W.3d 83, 2000 Ky. App. LEXIS 45 (Ky. Ct. App. 2000); Owens-Illinois Labels, Inc. v. Commonwealth, 27 S.W.3d 798, 2000 Ky. App. LEXIS 48 (Ky. Ct. App. 2000); Owens Corning Fiberglas Corp. v. Parrish, 58 S.W.3d 467, 2001 Ky. LEXIS 185 ( Ky. 2001 ); Hearn v. Commonwealth, 80 S.W.3d 432, 2002 Ky. LEXIS 135 ( Ky. 2002 ); Manns v. Commonwealth, 80 S.W.3d 439, 2002 Ky. LEXIS 114 ( Ky. 2002 ); Johnson Controls, Inc. v. Russell, 95 S.W.3d 921, 2002 Ky. App. LEXIS 1850 (Ky. Ct. App. 2002); Ridge v. VMV Enters., — S.W.3d —, 2002 Ky. App. LEXIS 1918 (Ky. Ct. App. 2002); Commonwealth v. Plowman, 86 S.W.3d 47, 2002 Ky. LEXIS 186 (Ky. 2002); Kingrey v. Whitlow, 150 S.W.3d 67, 2004 Ky. App. LEXIS 39 (Ky. Ct. App. 2004); DiGiuro v. Ragland, — S.W.3d —, 2004 Ky. App. LEXIS 188 (Ky. Ct. App. 2004); LWD Equip., Inc. v. Revenue Cabinet, 136 S.W.3d 472, 2004 Ky. LEXIS 145 ( Ky. 2004 ); Popplewell’s Alligator Dock No. 1, Inc. v. Revenue Cabinet, 133 S.W.3d 456, 2004 Ky. LEXIS 92 ( Ky. 2004 ); Faust v. Commonwealth, 142 S.W.3d 89, 2004 Ky. LEXIS 180 (Ky. 2004); Commonwealth v. Pendennis Club, Inc., 153 S.W.3d 784, 2004 Ky. LEXIS 285 (Ky. 2004); Revenue Cabinet v. O’Daniel, 153 S.W.3d 815, 2005 Ky. LEXIS 19 ( Ky. 2005 ); Realty Improvement Co. v. Raley, 194 S.W.3d 818, 2006 Ky. LEXIS 158 ( Ky. 2006 ); D.F. v. Commonwealth, 2006 Ky. App. LEXIS 81 (Ky. Ct. App. 2006); Huff v. Commonwealth, 2006 Ky. App. LEXIS 306 (Ky. Ct. App. 2006); Astro, Inc. v. Envtl. & Pub. Prot. Cabinet, 2007 Ky. App. LEXIS 175 (Ky. Ct. App. 2007); Kendrick v. Std. Fire Ins. Co., — F. Supp. 2d —, 2007 U.S. Dist. LEXIS 28461 (E.D. Ky. 2007 ); Lach v. Man O’ War, LLC, 256 S.W.3d 563, 2008 Ky. LEXIS 66 ( Ky. 2008 ); Richardson v. Louisville/Jefferson County Metro Gov’t, 260 S.W.3d 777, 2008 Ky. LEXIS 152 ( Ky. 2008 ); Consol. Infrastructure Mgmt. Auth., Inc. v. Allen, 269 S.W.3d 852, 2008 Ky. LEXIS 295 (Ky. 2008); Workforce Dev. Cabinet v. Gaines, 276 S.W.3d 789, 2008 Ky. LEXIS 300 (Ky. 2008); Gilbert v. Commonwealth Cabinet, 291 S.W.3d 712, 2008 Ky. App. LEXIS 43 (Ky. Ct. App. 2008); Kentucky PSC v. Shadoan, — S.W.3d —, 2008 Ky. App. LEXIS 193 (Ky. Ct. App. 2008); Kentucky PSC v. Commonwealth Ex Rel. Stumbo, — S.W.3d —, 2008 Ky. App. LEXIS 348 (Ky. Ct. App. 2008); Campbell County Fiscal Court v. Nash, — S.W.3d —, 2008 Ky. App. LEXIS 373 (Ky. Ct. App. 2008); Litteral v. Commonwealth, 282 S.W.3d 331, 2008 Ky. App. LEXIS 388 (Ky. Ct. App. 2008); MPM Fin. Group, Inc. v. Morton, 289 S.W.3d 193, 2009 Ky. LEXIS 146 ( Ky. 2009 ); Riley v. Flagstar Bank, FSB, 316 S.W.3d 884, 2009 Ky. App. LEXIS 43 (Ky. Ct. App. 2009); Karem v. Bd. of Trs. of the Judicial Form Ret. Sys., 293 S.W.3d 401, 2009 Ky. App. LEXIS 62 (Ky. Ct. App. 2009); Jarvis v. Nat’l City, — S.W.3d —, 2011 Ky. App. LEXIS 20 (Ky. Ct. App. 2011); Williams v. Commonwealth, 354 S.W.3d 158, 2011 Ky. App. LEXIS 172 (Ky. Ct. App. 2011); W. Ky. Rural Elec. Coop. Corp. v. City of Bardwell, 362 S.W.3d 351, 2011 Ky. App. LEXIS 239 (Ky. Ct. App. 2011); Jefferson County Bd. of Educ. v. Fell, 391 S.W.3d 713, 2012 Ky. LEXIS 148 ( Ky. 2012 ); Commonwealth v. Ballinger, — S.W.3d —, 2012 Ky. App. LEXIS 194 (Ky. Ct. App. 2012); Rogers v. Pennyrile Allied Cmty. Servs., Inc., — S.W.3d —, 2012 Ky. App. LEXIS 288 (Ky. Ct. App. 2012); Commonwealth v. St. Joseph Health Sys., Inc., 398 S.W.3d 446, 2013 Ky. App. LEXIS 11 (Ky. Ct. App. 2013); Kaletch v. Commonwealth, 396 S.W.3d 324, 2013 Ky. App. LEXIS 49 (Ky. Ct. App. 2013); William C. Eriksen, P.S.C. v. Gruner & Simms, 400 S.W.3d 290, 2013 Ky. App. LEXIS 77 (Ky. Ct. App. 2013); Commonwealth v. Johnson, 423 S.W.3d 718, 2014 Ky. LEXIS 87 ( Ky. 2014 ); Appalachian Racing, LLC v. Family Trust Found. of Ky., Inc., 423 S.W.3d 726, 2014 Ky. LEXIS 88 ( Ky. 2014 ); Sproul v. Ky. Props. Holding, LLC, — S.W.3d —, 2014 Ky. App. LEXIS 40 (Ky. Ct. App. 2014); Ky. Exec. Branch Ethics Comm'n v. Wooten, 2014 Ky. App. LEXIS 158 (Oct. 3, 2014); Dep't of Revenue, Fin. & Admin. Cabinet v. Shinin' B Trailer Sales, LLC, 2015 Ky. App. LEXIS 131 (Sept. 4, 2015); Consol of Ky. v. Goodgame, 2015 Ky. LEXIS 186 3 (Sept. 24, 2015); Commonwealth v. Kenley, 516 S.W.3d 362, 2017 Ky. App. LEXIS 51 (Ky. Ct. App. 2017); Commonwealth ex rel. Logan Cty. Atty. v. Williams, 2019 Ky. App. LEXIS 167 (Ky. Ct. App. Sept. 20, 2019); Univ. of Ky. v. Moore, 599 S.W.3d 798, 2019 Ky. LEXIS 437 ( Ky. 2019 ); Hauber v. Hauber, 600 S.W.3d 204, 2020 Ky. LEXIS 12 4 ( Ky. 2020 ); Poore v. 21st Century Parks, Inc., 2020 Ky. App. LEXIS 88 (Ky. Ct. App. July 31, 2020).

NOTES TO UNPUBLISHED DECISIONS

  1. Construction With Other Laws.
  2. Particular Statutes.
1. Construction With Other Laws.

Unpublished decision: Court clerks had no private right of action to sue defendants for any alleged violation of Kentucky’s recording requirements because the clerks had no actionable claim directly under KRS 382.360 , and because the clerks were not within the class of persons intended to be protected by KRS 382.360 , they had no KRS 446.070 claim; the fact that a statute should be liberally construed did not compel a finding that the Kentucky legislature intended to protect the clerks where there was no such indication to be gleaned from the statutory text, legislative history, or state-law authorities interpreting the recording statutes. Christian County Clerk v. Mortgage Elec. Registration Sys., 515 Fed. Appx. 451, 2013 FED App. 0177N, 2013 U.S. App. LEXIS 3526 (6th Cir. Ky. 2013 ).

2. Particular Statutes.

Unpublished decision: Kentucky Unclaimed Life Insurance Benefits Act’s requirements may only be applied to policies executed after January 1, 2013. In the absence of a clearer expression of the Kentucky General Assembly’s intention, courts cannot presume that the requirements of the Act apply retroactively to policies issued before its effective date. United Ins. Co. of Am. v. Commonwealth, 2014 Ky. App. Unpub. LEXIS 1046 (Ky. Ct. App. Aug. 15, 2014).

Unpublished decision: Common and approved use of language permitted the trial court to determine that KRS 121A.080(11)’s (now repealed) express provision for replacement of a candidate in the event of the candidate’s “disqualification to hold the office sought” included as a “disqualification” a judicial decision declaring a candidate not to be bona fide, and, thus, the candidate was entitled to name a replacement as a new running made because the previous running made was “disqualified” as a bona fide candidate when the trial court determined that the previous running mate did not meet the residency requirement for being a bona fide candidate. Heleringer v. Brown, 104 S.W.3d 397, 2003 Ky. LEXIS 97 ( Ky. 2003 ).

Opinions of Attorney General.

KRS 57.375 , relating to printing contracts, would not apply where there was an existing contract relating to a specified document, although the actual printing may occur after the effective date of the act. OAG 66-641 .

Where a teacher taught for slightly more than one half (1/2) day each day for seven (7) school years beginning in 1963 and ending in 1971 and was granted a full year of service credit for each year she remained on this teaching regimen by teacher’s retirement system, as was the custom at that time, a regulation adopted thereafter, which would give those teachers teaching only part of a day for the full year only a portion of the service credit for the full year, could not be applied retroactively and teacher could not be deprived of the prior year’s full service credit. OAG 73-270 .

The statutory lien provisions of KRS 134.230(4) and (5) repealed by the 1982 amendment to that section remain in effect for sheriffs currently in office, as the amending act does not expressly state that its provisions are to be retroactive so as to be applicable to sheriffs who have taken office prior to its effective date. OAG 82-371 .

The retrospective application of a law is not to be given unless the intent is clearly expressed or necessarily implied. It is necessarily implied that KRS 156.101 must be applied to those persons who received their certificates prior to 1984 to benefit our schools and is, therefore, retroactive. OAG 88-37 .

The deletion of Section 2 of House Bill 7, which requires that the amendment contained in Section 1 of the Bill apply only to criminal offenses committed after the effective date of the Bill, will not effect the application of the proposed revision of KRS 439.3401 because of the constitutional prohibition against ex post facto laws and because of the requirement of subsection (3) of this section that retrospective bills contain an express statement of retroactivity. OAG 91-26 .

When KRS 164.2841 makes available benefits as of July 13, 1991, regardless of when the disability of the officer occurred, that is not a retroactive application of the statute, prohibited by subsection (3) of this section. OAG 91-201 .

The office of the Attorney General opined that House Bill 182 (Acts 1992, ch. 376) operates prospectively to require that parent representatives who are elected after the act becomes effective (July 14, 1992), shall comply with the eligibility criteria imposed by House Bill 182; therefore, parent representatives who are elected prior to July 14, 1992, need not resign due to the change in eligibility criteria. OAG 92-88 .

The County Clerk does not have the authority to refuse to file amended mortgages. KRS 382.297 contemplates that amended mortgages may change dollar amounts, interest rates or terms of the original mortgage with the agreement of the parties to the transaction. If there is any question on the legitimacy of the filing it is for a court of law to make that ruling. OAG 2009-02 .

The Chairperson of the Kentucky Parole Board may not unilaterally implement a rotating schedule of panel assignments for Parole Board members. Policies and procedures for Parole Board assignments require action by the full Parole Board. OAG 13-0072013 Ky. AG LEXIS 89.

Although subsection (3) of KRS 61.878 does not contain a specific reference to former employees, its expansive wording, coupled with the state of legislative intent underlying the Open Records Act, codified at KRS 61.871 , that free and open examination of public records is in the public interest, and the rule of statutory construction, codified at subsection (1) of this section, that all statutes are to be interpreted with a view to promote their objects and carry out the intent of the legislature, compels the result that such subsection applies to former employees. 97-ORD-87.

Research References and Practice Aids

Kentucky Bench & Bar.

Davis, Recent Developments in Persistent Felony Offender Cases, Vol. 46, No. 3, July 1982, Ky. Bench & Bar 10.

Kentucky Law Journal.

Weber, The Extension of the Voidable Title Principle Under the Code, 49 Ky. L.J. 437 (1961).

Kentucky Law Survey, Basil, Workers’ Compensation, 69 Ky. L.J. 687 (1980-81).

Kentucky Law Survey, Underwood, Insurance, 72 Ky. L.J. 403 (1983-84).

Mank, Textualism’s Selective Canons of Statutory Construction: Reinvigorating Individual Liberties, Legislative Authority, and Deference to Executive Agencies, 86 Ky. L.J. 527 (1997-98).

Northern Kentucky Law Review.

Note, Facing the Economic Challenges of the Eighties — the Kentucky Constitution and Hayes v. The State Property and Buildings Commission of Kentucky, 15 N. Ky. L. Rev. 645 (1988).

Notes, University of Louisville v. O’Bannon: Retroactive Application of Board of Claims Act Amendments, 18 N. Ky. L. Rev. 121 (1990).

446.082. Published statement or restatement of law does not constitute law or policy of Commonwealth — Common law adopted in absence of constitutional or statutory treatment.

  1. A statement or restatement of the law in any legal treatise, scholarly publication, textbook, or other explanatory text shall not constitute the law or public policy of the Commonwealth of Kentucky. No Kentucky court shall treat any such publication or text as controlling authority.
  2. In the absence of a constitutional section or a statute on a given matter, Kentucky shall be deemed to have adopted the common law.

HISTORY: 2020 ch. 86, § 1, effective April 14, 2020.

446.085. Repeal or amendment in statutes by budget bill prohibited — Exception. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1984, ch. 410, § 1, effective July 13, 1984) was repealed by Acts 1994, ch. 387, § 32, effective July 15, 1994.

446.090. Severability.

It shall be considered that it is the intent of the General Assembly, in enacting any statute, that if any part of the statute be held unconstitutional the remaining parts shall remain in force, unless the statute provides otherwise, or unless the remaining parts are so essentially and inseparably connected with and dependent upon the unconstitutional part that it is apparent that the General Assembly would not have enacted the remaining parts without the unconstitutional part, or unless the remaining parts, standing alone, are incomplete and incapable of being executed in accordance with the intent of the General Assembly.

History. Enact. Acts 1942, ch. 208, § 1, effective October 1, 1942.

NOTES TO DECISIONS

  1. Inseparable Provisions.
  2. Separable Provisions.
  3. Separability Clauses.
  4. Ordinances.
1. Inseparable Provisions.

Where the legislature would not have enacted a statute without a particular part, the unconstitutionality of that part makes the entire act unconstitutional. Metcalf v. Howard, 304 Ky. 498 , 201 S.W.2d 197, 1947 Ky. LEXIS 666 ( Ky. 1947 ).

Where one (1) section of the act provided a new procedure for the incorporation of cities, and the other sections made harmonizing amendments to related statutes to conform to the new method of incorporation, and the one (1) section was void because it was not covered by the title of the act, the entire act was held unconstitutional, since it was apparent that the other sections would not have been enacted without the void section. Engle v. Bonnie, 305 Ky. 850 , 204 S.W.2d 963, 1947 Ky. LEXIS 865 ( Ky. 1947 ).

2. Separable Provisions.

Where provisions are not inseparably connected to or dependent on an unconstitutional provision, they are valid, although they are separated from the unconstitutional provision only by a semicolon. State Property & Bldg. Com. v. Hays, 346 S.W.2d 3, 1961 Ky. LEXIS 277 ( Ky. 1961 ).

Subdivision (10)(b) of KRS 242.1292 pro- viding that the city governing body in second-class cities should order a local option election in a dry precinct upon petition of 33% of the voters bears no relationship to the statutory purpose of helping the precinct’s economy and is unconstitutional as special and local legislation; however, because of the implied severability clause in this section, the remainder of KRS 242.1292 is constitutional. United Dry Forces v. Lewis, 619 S.W.2d 489, 1981 Ky. LEXIS 260 ( Ky. 1981 ).

Since the severability aspect of an act is not confined to different literary sentences or paragraphs but applies to various subjects in the act, where legislation providing for minimum wages (KRS 337.275 ) and overtime payments (KRS 337.285 ) was invalid as applied to municipal workers who were engaged in work of purely local concern, the provisions nevertheless were applicable to firefighters and other municipal workers engaged in work of statewide concern. Kentucky Municipal League v. Commonwealth, 530 S.W.2d 198, 1975 Ky. LEXIS 48 ( Ky. 1975 ).

Even though present subsection (5) of KRS 230.377 is unconstitutional as a special or local act since the remaining portions of the statute are not essentially and inseparably connected with the unconstitutional part and that there is no indication at all that the legislation would not have been passed absent this provision aforesaid nor is there any factor in this record to overcome the presumption of severability the act remains enforceable to the extent that it authorizes simulcasting and places its regulation and administration under the jurisdiction of the appropriate state racing commission. Tri-City Turf Club, Inc. v. Public Protection & Regulation Cabinet, 806 S.W.2d 394, 1991 Ky. App. LEXIS 2 (Ky. Ct. App. 1991).

The prior authorization by the Chief of Police required for officers to accept outside employment was held invalid but was separate from the general restrictions upon off-duty employment, as the restrictions were not essentially and inseparably connected with and dependent upon the prior authorization requirement and were complete and capable of standing alone; severance of the prior authorization provision did not affect the intent of the legislative body in enacting the remainder of the county police regulations. Puckett v. Miller, 821 S.W.2d 791, 1991 Ky. LEXIS 194 ( Ky. 1991 ).

Even if the charitable gaming defense contained in KRS 528.010 violates the Kentucky Constitution, it would not render the entire Kentucky gambling statute invalid since such exception is separable from the rest of the statute. United States v. Ford, 184 F.3d 566, 1999 FED App. 0267P, 1999 U.S. App. LEXIS 17701 (6th Cir. Ky. 1999 ), cert. denied, 528 U.S. 1161, 120 S. Ct. 1175, 145 L. Ed. 2d 1083, 2000 U.S. LEXIS 1129 (U.S. 2000).

State Supreme Court invoked KRS 446.090 to uphold the constitutionality of KRS 121.015(6) and 121.150(1) by severing therefrom KRS 121.015(6)(e) and 121.150(1) (1995). Martin v. Commonwealth, 96 S.W.3d 38, 2003 Ky. LEXIS 8 (Ky.), cert. denied, 539 U.S. 928, 123 S. Ct. 2586, 156 L. Ed. 2d 605, 2003 U.S. LEXIS 4633 (U.S. 2003).

3. Separability Clauses.

Where a separability clause of an amendment makes clear the legislative intent that all provisions of the amendment, not invalid alone, be deemed valid regardless of the invalidity of other sections in the amendment, the specific clause takes precedence over this section and the court will find sections not of themselves invalid to be valid, although in the absence of the separability clause such other sections would have been deemed dependent on the invalid portion and thus themselves invalid. Rash v. Louisville & Jefferson County Metropolitan Sewer Dist., 309 Ky. 442 , 217 S.W.2d 232, 1949 Ky. LEXIS 670 ( Ky. 1949 ).

In determining under KRS 446.090 whether an entire statute should be stricken because one section of it is stricken, unless the court finds an ambiguity in the statute, it errs in relying on legislative history to interpret the statute. Louisville/Jefferson County Metro Gov't v. Metro Louisville Hospitality Coalition, 297 S.W.3d 42, 2009 Ky. App. LEXIS 24 (Ky. Ct. App. 2009).

4. Ordinances.

The provisions of this section, although in terms applicable only to statutes, should be equally applicable to ordinances. Commonwealth v. Beasy, 386 S.W.2d 444, 1965 Ky. LEXIS 502 ( Ky. 1965 ).

Where a portion of an ordinance is unconstitutional, but the remaining portions of it are not so essentially and inseparably connected with and dependent upon the invalid part, or so incomplete and incapable of standing alone, as to make it apparent that the board of aldermen would not have enacted the remaining parts without the invalid part, the remaining portions are valid. Commonwealth v. Beasy, 386 S.W.2d 444, 1965 Ky. LEXIS 502 ( Ky. 1965 ).

Where a portion of a city ordinance reading “unless specifically authorized by a majority vote of the common council” was held unconstitutional and where it was apparent that the ordinance would not have been enacted by the council unless the clause had been included therein, the entire ordinance was held invalid. Commonwealth use of Erlanger v. Cullum, 494 S.W.2d 521, 1973 Ky. LEXIS 448 ( Ky. 1973 ).

Pursuant to KRS 446.090 , a preliminary injunction against enforcement of an entire ordinance relating to adult entertainment was modified to sever the unconstitutional licensing provisions from the constitutional provisions concerning the location of adult entertainment. Cam I, Inc. v. Louisville/Jefferson County Metro Gov't, 2003 U.S. Dist. LEXIS 13025 (W.D. Ky. July 18, 2003), aff'd, 460 F.3d 717, 2006 FED App. 0304P, 2006 U.S. App. LEXIS 21144 (6th Cir. Ky. 2006 ).

As a severability clause in an ordinance that was in part unconstitutional complied with KRS 446.090 , the trial court improperly invalidated the entire ordinance. As the court did not find any ambiguity in the ordinance, it erred in relying on legislative history to support its conclusion that the ordinance would not have been passed if the unconstitutional portion had been excluded. Louisville/Jefferson County Metro Gov't v. Metro Louisville Hospitality Coalition, 297 S.W.3d 42, 2009 Ky. App. LEXIS 24 (Ky. Ct. App. 2009).

Preempted portions of the Deer-Feeding Ordinance by construing the phrase “any public or private property” in Fort Thomas Code § 91.51(A) to exclude the curtilage of Fort Thomas homes—i.e., the area encompassing the grounds immediately surrounding any home or group of homes used in the daily activities of domestic life—were severed, as the remaining portions of the ordinance were not so essentially and inseparably connected with and dependent on the invalid part, or so incomplete and incapable of standing alone, as to make it apparent that the city would not have enacted the remaining parts without the invalid part. Sheffield v. City of Fort Thomas, 620 F.3d 596, 2010 FED App. 0285P, 2010 U.S. App. LEXIS 18437 (6th Cir. Ky. 2010 ).

Cited:

Graves County v. Graves Fiscal Court, 303 Ky. 707 , 199 S.W.2d 137, 1947 Ky. LEXIS 546 ( Ky. 1947 ); Manning v. Sims, 308 Ky. 587 , 213 S.W.2d 577, 1948 Ky. LEXIS 864 , 5 A.L.R.2d 1154 ( Ky. 1948 ); Cornett v. Clements, 309 Ky. 80 , 216 S.W.2d 417, 1948 Ky. LEXIS 1076 ( Ky. 1948 ); Lexington v. Hager, 337 S.W.2d 27, 1960 Ky. LEXIS 358 ( Ky. 1960 ); Cunningham v. Grayson, 541 F.2d 538, 1976 U.S. App. LEXIS 7450 (6th Cir. 1976), cert. denied, Board of Education v. Newburg Area Council, Inc., 429 U.S. 1074, 97 S. Ct. 812, 50 L. Ed. 2d 792, 1977 U.S. LEXIS 2129 (1977); McGuffey v. Hall, 557 S.W.2d 401, 1977 Ky. LEXIS 533 ( Ky. 1977 ); Griffin v. Commonwealth, 576 S.W.2d 514, 1978 Ky. LEXIS 457 ( Ky. 1978 ); Covington v. Beck, 586 S.W.2d 284, 1979 Ky. App. LEXIS 453 (Ky. Ct. App. 1979); Kentucky Milk Marketing & Antimonopoly Com. v. Kroger Co., 691 S.W.2d 893, 1985 Ky. LEXIS 224 ( Ky. 1985 ); State Bd. for Elementary & Secondary Educ. v. Howard, 834 S.W.2d 657, 1992 Ky. LEXIS 85 ( Ky. 1992 ); Mattingly v. Commonwealth, 878 S.W.2d 797, 1993 Ky. App. LEXIS 183 (Ky. Ct. App. 1993); Amelkin v. McClure, 168 F.3d 893, 1999 U.S. App. LEXIS 2501 (6th Cir. 1999).

Opinions of Attorney General.

Section 228 of the Constitution requires an officer taking the oath of office to be a citizen or resident of Kentucky, and Const., § 234 requires all civil officers of Kentucky to reside in Kentucky; therefore, 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 this section and KRS 423.110, minus the offending language involving appointing nonresidents, is constitutional; 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 functions does not violate the public policy of or is not in basic conflict with the law of the foreign jurisdiction. OAG 85-36.

Subsections (2) through (4) of KRS 230.377 can and should be severed from the remaining provisions of Acts 1988, ch. 376. The remaining provisions are not inseparably connected with and dependent upon those subsections and are capable of being executed in accordance with the intent of the General Assembly. Each racing commission may promulgate necessary and reasonable administrative regulations to provide for the conditions under which simulcasting may be conducted. Therefore, the remaining statutory provisions of Acts 1988, ch. 376 can and should remain in force. OAG 88-51 .

Section 119.025, in its entirety, is unconstitutional; it is not amenable to severability because the provisions are too intertwined, thus making it impossible to determine the intent of the legislature if one or the other of the two (2) subsections are deemed to be unconstitutional. OAG 89-84.

Research References and Practice Aids

Kentucky Law Journal.

Murphy, Uniform Support Legislation, 43 Ky. L.J. 98 (1954).

446.100. Effect of repeal of prior repealer or amendment.

  1. A  repealed section without a delayed effective date is revived when the section  or act that repealed it is repealed by another statute enacted at the same  session of the General Assembly.
  2. A  repealed section with a delayed effective date is revived by the enactment  of a repealer of the section or act that repealed it at the same or any subsequent  session of the General Assembly as long as it takes effect prior to the effective  date of the original repealer.
  3. An  amended section without a delayed effective date remains unchanged with respect  to an amendment which is repealed at the same session of the General Assembly  which enacted the amendment.
  4. An  amended section with a delayed effective date remains unchanged with respect  to that amendment if the section or the act making the amendment is repealed  at the same or at a subsequent session of the General Assembly as long as  the repealing act takes effect prior to the effective date of the original  amendment.
  5. No  other action of the General Assembly repealing a repealer or an amendment  shall have the effect of reviving the original language of the repealer or  amendment as the case may be.

History. 464: amend. Acts 1982, ch. 285, § 1, effective April 2, 1982.

Compiler’s Notes.

Section 2 of Acts 1982, ch. 285 provided that this section should be retroactive to January 1, 1982.

NOTES TO DECISIONS

  1. Repeal of Repealing Act.
  2. — Implied Repeal.
  3. Repeal of Amendment.
  4. Amending Repealed Act.
  5. Ordinances.
1. Repeal of Repealing Act.

Bank charters repealed by an 1886 act were not revived by the subsequent repeal of the 1886 act. Deposit Bank of Owensboro v. Daviess County, 102 Ky. 174 , 39 S.W. 1030, 19 Ky. L. Rptr. 248 , 1897 Ky. LEXIS 57 ( Ky. 1897 ), aff'd, 173 U.S. 636, 19 S. Ct. 530, 43 L. Ed. 840, 1899 U.S. LEXIS 1467 (U.S. 1899), aff'd, 173 U.S. 663, 19 S. Ct. 875, 43 L. Ed. 850, 1899 U.S. LEXIS 1469 (U.S. 1899), aff'd, 173 U.S. 662, 19 S. Ct. 875, 43 L. Ed. 850, 1899 U.S. LEXIS 1468 (U.S. 1899).

The repeal of a law repealing a former law does not revive the former law. Rice v. Commonwealth, 61 S.W. 473, 22 Ky. L. Rptr. 1793 , 1901 Ky. LEXIS 638 (Ky. Ct. App. 1901).

2. — Implied Repeal.

An act impliedly repealed by another act will not be revived by the subsequent repeal of the repealing act. Rice v. Commonwealth, 61 S.W. 473, 22 Ky. L. Rptr. 1793 , 1901 Ky. LEXIS 638 (Ky. Ct. App. 1901).

Where act consolidating offices of sheriff and jailer, but not repealing any of statutes relating to functions of jailer, was repealed by a subsequent act, it was not necessary for such subsequent act to reenact the statutes relating to the functions of the jailer, they never having been repealed. Stickler v. Higgins, 269 Ky. 260 , 106 S.W.2d 1008, 1937 Ky. LEXIS 592 ( Ky. 1937 ).

3. Repeal of Amendment.

Where an amending act simply added an additional provision to the old law, the repeal of the amending act left in force the old law as it was before the amendment. United States Fidelity & Guaranty Co. v. Steele, 241 Ky. 848 , 45 S.W.2d 469, 1932 Ky. LEXIS 7 ( Ky. 1932 ).

This section has no application to an amending act which simply added an additional provision to the old law, and in such case, the repeal of the amending act simply leaves the law as it was prior to the passage of the amending act. Sumpter v. Burchett, 304 Ky. 858 , 202 S.W.2d 735, 1947 Ky. LEXIS 749 ( Ky. 1947 ).

4. Amending Repealed Act.

A repealed act may be revived by a subsequent act which amends the repealed act. Kirkpatrick v. Commonwealth, 95 Ky. 326 , 25 S.W. 113, 15 Ky. L. Rptr. 671 , 1894 Ky. LEXIS 20 ( Ky. 1894 ).

5. Ordinances.

This section applies to municipal ordinances. Owensboro v. Board of Trustees, 301 Ky. 113 , 190 S.W.2d 1005, 1945 Ky. LEXIS 699 ( Ky. 1945 ).

Where city civil service ordinance was repealed by a repealing ordinance, a subsequent ordinance repealing the repealing ordinance did not have the effect of reviving the original civil service ordinance. Owensboro v. Board of Trustees, 301 Ky. 113 , 190 S.W.2d 1005, 1945 Ky. LEXIS 699 ( Ky. 1945 ).

446.110. Offenses committed and rights accruing prior to repeal of law.

No new law shall be construed to repeal a former law as to any offense committed against a former law, nor as to any act done, or penalty, forfeiture or punishment incurred, or any right accrued or claim arising under the former law, or in any way whatever to affect any such offense or act so committed or done, or any penalty, forfeiture or punishment so incurred, or any right accrued or claim arising before the new law takes effect, except that the proceedings thereafter had shall conform, so far as practicable, to the laws in force at the time of such proceedings. If any penalty, forfeiture or punishment is mitigated by any provision of the new law, such provision may, by the consent of the party affected, be applied to any judgment pronounced after the new law takes effect.

History. 465.

NOTES TO DECISIONS

Analysis

  1. In General.
  2. Construction.
  3. Rights Accrued Under Repealed  Statute.
  4. — Matters Not Constituting  Rights.
  5. Criminal Offenses.
  6. —Penalties.
  7. — — Mitigation.
  8. — — Method of Fixing.
  9. Indeterminate Sentence Law.
  10. Taxes and License Fees.
  11. Prohibitions.
  12. Retroactive Effect.
  13. Ordinances.
  14. Court Rules.
  15. Private Nature of Rights.
  16. Right of Initiative.
1. In General.

This section repealed the common-law rule. Commonwealth v. Louisville & N. R. Co., 186 Ky. 1 , 215 S.W. 938, 1919 Ky. LEXIS 153 ( Ky. 1 919 ).

2. Construction.

While KRS 446.080(3) deals with retroactive application of statutes in general, this section deals specifically with the procedure to be followed when a law is amended and, therefore, this section is more specific and will prevail over KRS 446.080(3). Commonwealth v. Phon, 17 S.W.3d 106, 2000 Ky. LEXIS 35 ( Ky. 2000 ).

Defendant is precluded from consenting to the imposition of a lesser penalty pursuant to KRS 446.110 where the defendant has already entered a valid plea agreement. Smith v. Commonwealth, 2011 Ky. App. LEXIS 244 (Ky. Ct. App. Dec. 16, 2011), rev'd, 400 S.W.3d 742, 2013 Ky. LEXIS 296 ( Ky. 2013 ).

Trial court erred in voiding defendant’s pretrial diversion agreement and sentencing her under the prior law because, while the trial court had authority to void defendant’s plea agreement in its entirety, no judgment had been entered against her when she violated the terms of her pretrial diversion and faced sentencing, and the sentence recommended by the Commonwealth became inappropriate due to the 2010 change to the drug paraphernalia statute. Smith v. Commonwealth, 400 S.W.3d 742, 2013 Ky. LEXIS 296 ( Ky. 2013 ).

3. Rights Accrued Under Repealed Statute.

This section does not prevent the legislature from taking away, by statute, a right given by an earlier statute. Western Union Tel. Co. v. Louisville & N. R. Co., 258 U.S. 13, 42 S. Ct. 258, 66 L. Ed. 437, 1922 U.S. LEXIS 2232 (U.S. 1922).

Statute, providing that acceptance of rentals by lessor should operate as waiver of lessor’s right to cancel oil and gas lease for nondevelopment, could not apply to lease executed before enactment of statute, thus giving lessor absolute right of cancellation for nondevelopment. Lyon v. Union Gas & Oil Co., 281 F. 674, 1922 U.S. App. LEXIS 2144 (6th Cir. 1922), same case, Lyon v. Union Gas & Oil Co., 291 F. 1019, 1923 U.S. App. LEXIS 2910 (6th Cir. Ky. 1923 ).

The repeal of a civil service ordinance did not and could not affect the vested rights and the inviolable contract of the employees who became such and qualified under the civil service ordinance in its operative life. Owensboro v. Board of Trustees, 301 Ky. 113 , 190 S.W.2d 1005, 1945 Ky. LEXIS 699 ( Ky. 1945 ).

Right of landowner, as party to suit by state to forfeit title to land for tax default, to move for order of sale of forfeited land was vested by judgment of forfeiture rendered therein and could not be abrogated or extinguished by subsequent repeal of forfeiture statute. Taylor v. Commonwealth, 246 S.W.2d 981, 1951 Ky. LEXIS 1278 ( Ky. 1951 ), cert. denied, 344 U.S. 830, 73 S. Ct. 34, 97 L. Ed. 646, 1952 U.S. LEXIS 1833 (U.S. 1952).

4. — Matters Not Constituting Rights.

This section did not apply where, pending action by telegraph company to condemn part of railroad right of way for telegraph line, statute was passed prohibiting condemnation of railroad rights of way for telegraph or telephone lines, thus telegraph company had no vested right that was taken away by such statute. Western Union Tel. Co. v. Louisville & N. R. Co., 258 U.S. 13, 42 S. Ct. 258, 66 L. Ed. 437, 1922 U.S. LEXIS 2232 (U.S. 1922).

Statute providing for payment of small per diem to convicts in penitentiary, for their labor, could be repealed without affecting any vested rights. State Board of Charities & Corrections v. Hays, 190 Ky. 147 , 227 S.W. 282, 1920 Ky. LEXIS 554 ( Ky. 1920 ).

This section does not protect a claim to a mere gratuity granted by statute. State Board of Charities & Corrections v. Hays, 190 Ky. 147 , 227 S.W. 282, 1920 Ky. LEXIS 554 ( Ky. 1920 ).

The grant of parole is not a right; it is a matter of grace by the parole board; consequently, subsequent legislation may repeal a provision which required period on parole to be counted as part of sentence served and this legislation will have retroactive effect. Lynch v. Wingo, 425 S.W.2d 573, 1968 Ky. LEXIS 427 ( Ky. 1968 ).

5. Criminal Offenses.

Where state statute imposed penalty for selling liquor in dry territory, person who violated statute in certain territory at time when it was dry was not relieved of punishment by reason of subsequent vote in such territory repealing local option. Commonwealth v. Overby, 107 Ky. 169 , 53 S.W. 36, 21 Ky. L. Rptr. 843 , 1899 Ky. LEXIS 149 ( Ky. 1899 ).

Where statute under which offense was committed was valid at time of commission of offense, subsequent act creating unconstitutional exceptions to statute, and resulting in statute being held unconstitutional because of such exceptions, would not relieve offender of punishment. International Harvester Co. v. Commonwealth, 124 Ky. 543 , 99 S.W. 637, 30 Ky. L. Rptr. 716 , 1907 Ky. LEXIS 214 ( Ky. 1907 ).

Where offense was committed prior to amendment which changed words defining offense, indictment in prosecution commenced after amendment took effect was properly phrased in language of old statute. Commonwealth v. International Harvester Co., 147 Ky. 573 , 144 S.W. 1068, 1912 Ky. LEXIS 301 ( Ky. 1912 ).

6. —Penalties.

If the legislature, in repealing a statute, expressly provides in the repealing act that no penalty under the repealed statute shall thereafter be recoverable, this section does not apply. Pannell v. Louisville Tobacco Warehouse Co., 113 Ky. 630 , 68 S.W. 662, 23 Ky. L. Rptr. 2423 , 1902 Ky. LEXIS 87 (Ky.), modified, 113 Ky. 640 , 82 S.W. 1141, 1902 Ky. LEXIS 248 (Ky. Ct. App. 1902).

Unless legislature, in enacting repealing statute, clearly indicates its intent to absolve prior offenders of punishment, they may be punished after repeal has become effective. Commonwealth v. Louisville & N. R. Co., 186 Ky. 1 , 215 S.W. 938, 1919 Ky. LEXIS 153 ( Ky. 1 919 ).

Where liquor law, at time of commission of offense, did not require convicted offender to execute bond for good behavior, offender who was prosecuted after such law had been replaced by a new liquor law which required such a bond, could not be compelled to give bond. Deskins v. Childers, 195 Ky. 209 , 242 S.W. 9, 1922 Ky. LEXIS 302 ( Ky. 1922 ).

Courts are required to sentence a defendant in accordance with the law which existed at the time of the commission of the offense unless the defendant specifically consents to the application of a new law which is “certainly” or “definitely” mitigating. Lawson v. Commonwealth, 53 S.W.3d 534, 2001 Ky. LEXIS 87 ( Ky. 2001 ).

Trial court was within its discretion when accepting the Commonwealth’s recommendation contained in a plea bargain agreement. Defendant, who had already received the benefit of her bargain by being afforded pretrial diversion, was bound to the remaining provisions of that contract, as she chose to violate the terms of her pretrial diversion. Smith v. Commonwealth, 2011 Ky. App. LEXIS 244 (Ky. Ct. App. Dec. 16, 2011), rev'd, 400 S.W.3d 742, 2013 Ky. LEXIS 296 ( Ky. 2013 ).

KRS 514.110 was retroactively applied in a receiving stolen property case because the amended version of KRS 514.110 was an example of an amendment to a penalty provision that mitigated punishment within the meaning of KRS 446.110 , and there was consent to the application. Blake v. Commonwealth, 2012 Ky. App. LEXIS 26 (Ky. Ct. App. Feb. 10, 2012).

7. — — Mitigation.

Mitigated penalty may be applied only where judgment is pronounced in trial court after new law mitigating the penalty has taken effect under Const., § 55. Jones v. Commonwealth, 104 Ky. 468 , 47 S.W. 328, 20 Ky. L. Rptr. 651 , 1898 Ky. LEXIS 182 ( Ky. 1898 ).

A defendant was eligible to take advantage of KRS 532.080(8) where the subsection became effective between the time he was indicted and tried as the amendment was mitigating. Bolen v. Commonwealth, 31 S.W.3d 907, 2000 Ky. LEXIS 147 ( Ky. 2000 ).

Punishment imposed by new law can be applied to offense committed before enactment of such law only where such punishment is clearly a mitigated one, and then only if the defendant consents. Coleman v. Commonwealth, 160 Ky. 87 , 169 S.W. 595, 1914 Ky. LEXIS 412 ( Ky. 1914 ).

Alleged mitigated punishment cannot be applied if defendant does not consent. Collier v. Commonwealth, 160 Ky. 338 , 169 S.W. 740, 1914 Ky. LEXIS 448 ( Ky. 1914 ). See Cockerell v. Commonwealth, 115 Ky. 296 , 73 S.W. 760, 24 Ky. L. Rptr. 2149 , 1903 Ky. LEXIS 98 ( Ky. 1903 ); Kinser v. Commonwealth, 181 Ky. 727 , 205 S.W. 951, 1918 Ky. LEXIS 622 ( Ky. 1918 ).

Where punishment fixed by jury was between maximum and minimum limits of law in force at time of commission of offense, and also of subsequent amending law which became effective before trial, defendant could not complain that he was not given opportunity to consent to mitigated punishment of new law. Sebree v. Commonwealth, 200 Ky. 534 , 255 S.W. 142, 1923 Ky. LEXIS 143 ( Ky. 1923 ).

Court of Appeals will not reverse case for failure of lower court to give defendant benefit of mitigated punishment unless it appears from the record that the defendant consented to the mitigated punishment. Earl v. Commonwealth, 202 Ky. 726 , 261 S.W. 239, 1924 Ky. LEXIS 790 ( Ky. 1924 ). See Cockerell v. Commonwealth, 115 Ky. 296 , 73 S.W. 760, 24 Ky. L. Rptr. 2149 , 1903 Ky. LEXIS 98 ( Ky. 1903 ).

Life without parole mitigates the penalty of death because it allows a convicted defendant continued survival, albeit with severely limited individual liberties, rather than the termination of his life and, therefore, upon the unqualified consent of the defendant, a sentence of life without parole may be retroactively imposed for capital crimes committed before July 15, 1998. Commonwealth v. Phon, 17 S.W.3d 106, 2000 Ky. LEXIS 35 ( Ky. 2000 ).

Since KRS 503.085 did not contain any language mitigating penalties since persons affected by the amended statute would never face prosecution and, thus, possible conviction and punishment, and it lacked language specifying its retroactive application, defendant could not avail himself of the immunity because it was not in force at the time he committed his offense. Worley v. Commonwealth, 2008 Ky. App. LEXIS 209 (Ky. Ct. App. July 3, 2008), review denied, ordered not published, 2009 Ky. LEXIS 230 (Ky. Aug. 19, 2009), cert. denied, 559 U.S. 1013, 130 S. Ct. 1898, 176 L. Ed. 2d 377, 2010 U.S. LEXIS 2718 (U.S. 2010).

8. — — Method of Fixing.

Statute authorizing court, rather than jury, to fix punishment, could not apply to offenses committed before statute took effect. Stewart v. Commonwealth, 141 Ky. 522 , 133 S.W. 202, 1911 Ky. LEXIS 22 ( Ky. 1911 ). See Dial v. Commonwealth, 142 Ky. 32 , 133 S.W. 976, 1911 Ky. LEXIS 127 ( Ky. 1911 ).

Statute providing that jury should fix punishment, although repealed by indeterminate sentence law, was still in force as to offenses committed before repeal took effect. Dial v. Commonwealth, 142 Ky. 32 , 133 S.W. 976, 1911 Ky. LEXIS 127 ( Ky. 1911 ).

9. Indeterminate Sentence Law.

Although sentence imposed by court under indeterminate sentence law would have been reversed on appeal because offense for which sentence was imposed was committed before enactment of such law, defendant who failed to appeal could not collaterally attack the judgment imposing the sentence. Board of Prison Comm'rs v. De Moss, 157 Ky. 289 , 163 S.W. 183, 1914 Ky. LEXIS 277 ( Ky. 1914 ). See Smith v. Bastin, 192 Ky. 164 , 232 S.W. 415, 1921 Ky. LEXIS 31 ( Ky. 1921 ), overruled in part, Gabbard v. Lair, 528 S.W.2d 675, 1975 Ky. LEXIS 70 ( Ky. 1975 ).

Where an offense was committed before indeterminate sentence law of 1914 went into effect, and while indeterminate sentence law of 1910 was in force, sentence should be pronounced under 1910 law, although prosecution was not commenced until after 1914 law went into effect. Coleman v. Commonwealth, 160 Ky. 87 , 169 S.W. 595, 1914 Ky. LEXIS 412 ( Ky. 1914 ).

Where offense was committed before repeal of indeterminate sentence law, punishment in subsequent trial must be imposed under such law. Teague v. Commonwealth, 172 Ky. 665 , 189 S.W. 908, 1916 Ky. LEXIS 252 ( Ky. 1916 ) ( Ky. 1916 ). See Kinser v. Commonwealth, 181 Ky. 727 , 205 S.W. 951, 1918 Ky. LEXIS 622 ( Ky. 1918 ).

Where defendant’s substantial rights were not prejudiced by being sentenced under a new law, he was not entitled to a reversal. Fuson v. Commonwealth, 173 Ky. 238 , 190 S.W. 1095, 1917 Ky. LEXIS 448 ( Ky. 1917 ).

10. Taxes and License Fees.

Repeal of statute authorizing institution of particular kind of suit for recovery of delinquent taxes did not take away the right to bring such a suit for taxes that became delinquent before the repeal. Louisville Water Co. v. Commonwealth, 34 S.W. 1064, 18 Ky. L. Rptr. 2 (1896), rev'd, 170 U.S. 127, 18 S. Ct. 571, 42 L. Ed. 975, 1898 U.S. LEXIS 1533 (U.S. 1898).

Liability for distiller’s permit fee, payable in advance, continued and was affected by repeal of the act providing for the fee during the permit year. Commonwealth v. H. E. Pogue Distillery Co., 285 Ky. 745 , 149 S.W.2d 508, 1941 Ky. LEXIS 464 ( Ky. 1941 ).

Repeal of a tax statute does not relieve taxpayer of amounts due thereunder. Board of Education v. Talbott, 286 Ky. 543 , 151 S.W.2d 42, 1941 Ky. LEXIS 283 ( Ky. 1941 ).

11. Prohibitions.

Enactment of city ordinance forbidding policemen to engage in outside work more than a prescribed amount of time does not have ex post facto effect. Hopwood v. Paducah, 424 S.W.2d 134, 1968 Ky. LEXIS 447 ( Ky. 1968 ).

12. Retroactive Effect.

Retroactive effect or retrospective application of an act will not be given or made unless intent that it should be is clearly expressed or necessarily implied. Taylor v. Asher, 317 S.W.2d 895, 1958 Ky. LEXIS 117 ( Ky. 1958 ).

Where the legislature did not expressly declare that KRS 640.010 was to be construed to apply retroactively, KRS 446.080(3) prevented retroactive application. Dennison v. Commonwealth, 767 S.W.2d 327, 1988 Ky. App. LEXIS 185 (Ky. Ct. App. 1988).

Pursuant to KRS 446.110 , KRS 532.110(1)(c), which includes a 70-year cap on consecutive sentences, governed the sentence even on those offenses defendant committed prior to the effective date of KRS 532.110(1)(c). Cummings v. Commonwealth, 226 S.W.3d 62, 2007 Ky. LEXIS 130 ( Ky. 2007 ).

Upon defendant’s conviction of two counts of trafficking in a controlled substance, second offense, pursuant to KRS 218A.1412 (2)(b) and one count of possessing a controlled substance, second offense, pursuant to KRS 218A.1415 (2)(b), defendant was sentenced as a first-degree persistent felony offender to a maximum term of twenty years in prison. Since judgment was pronounced against defendant in 2010 prior to the July 2011 effective date of amendments to the sentencing statutes—KRS 218A.1412 , 218A.1415 , 532.080 —he was not entitled to resentencing under KRS 446.110 . Rogers v. Commonwealth, 366 S.W.3d 446, 2012 Ky. LEXIS 72 ( Ky. 2012 ).

Trial court erred in denying defendant's motion to dismiss an indictment charging him with first-degree possession of a controlled substance and possession of drug paraphernalia because the retroactive application of all amendments or changes to statutory law were not all statutorily precluded, and the General Assembly created an immunity from prosecution that was a new procedural bar to prosecution and one that applied retroactively. Pomeroy v. Commonwealth, 509 S.W.3d 721, 2016 Ky. App. LEXIS 207 (Ky. Ct. App. 2016).

13. Ordinances.

The rule of this section applies to city ordinances as well as to statutes. Baker v. Lexington, 53 S.W. 16, 21 Ky. L. Rptr. 809 , 1899 Ky. LEXIS 388 (Ky. Ct. App. 1899).

Where city street improvement ordinance provided that cost should be apportioned as fixed by statute, subsequent amendment to statute relating to apportionment, although enacted before letting of contract under ordinance, did not affect the ordinance, and the apportionment would be controlled by the statute as it was when the ordinance was adopted. Reed v. Bates, 115 Ky. 437 , 74 S.W. 234, 24 Ky. L. Rptr. 2312 , 1903 Ky. LEXIS 125 ( Ky. 1903 ).

14. Court Rules.

An attorney who had been convicted of failure to file income tax returns could not be disbarred under a rule (former RCA3.320) requiring disbarment upon conviction of a felony or of a serious misdemeanor, where the offenses were committed before the effective date of the rule but the conviction came after the effective date. Kentucky State Bar Asso. v. Taylor, 516 S.W.2d 871, 1974 Ky. LEXIS 183 ( Ky. 1974 ).

15. Private Nature of Rights.

The rights to which this section refers are private rights and not public rights. Jacober v. Board of Comm'rs, 607 S.W.2d 126, 1980 Ky. App. LEXIS 374 (Ky. Ct. App. 1980).

16. Right of Initiative.

The right to place a question upon a ballot is a public statutory privilege given to citizens at large, not a private right of property; it is therefore not a “vested” right, and the legislature may properly alter or abolish the right of initiative on the legislatures’ own terms. Jacober v. Board of Comm'rs, 607 S.W.2d 126, 1980 Ky. App. LEXIS 374 (Ky. Ct. App. 1980).

Cited:

Crawford v. V. & C. Coal Co., 432 S.W.2d 403, 1968 Ky. LEXIS 328 ( Ky. 1968 ); Garland v. Commonwealth, 127 S.W.3d 529, 2003 Ky. LEXIS 233 ( Ky. 2003 ), cert. denied, Garland v. Kentucky, 125 S. Ct. 252, 160 L. Ed. 2d 63, 2004 U.S. LEXIS 5940, 73 U.S.L.W. 3208 (U.S. 2004), overruled in part, Lanham v. Commonwealth, 171 S.W.3d 14, 2005 Ky. LEXIS 244 ( Ky. 2005 ).

Notes to Unpublished Decisions

Analysis

  1. In General.
  2. Criminal Offenses.
  3. — Penalties.
1. In General.

Unpublished decision: Courts are required to sentence a defendant in accordance with the laws in effect at the time the offense was committed unless the defendant specifically consents to the application of the new law that mitigates his punishment, and it must be evident from the record that the defendant has consented to a punishment that is mitigated by a new law in order to benefit from the same; although the amendment to KRS 532.110 was in effect when defendant was tried and sentenced, there was no evidence in the record that he requested to be sentenced under the new law that would have mitigated his sentence, and he was correctly sentenced under KRS 532.110 as it read prior to its amendment in 1998. Neace v. Commonwealth, 2002 Ky. LEXIS 272 (Ky. Nov. 21, 2002).

2. Criminal Offenses.
3. — Penalties.

Unpublished decision: Defendant’s pretrial motion in his capital murder case, whereby defendant advised the trial court that he consented to the application of the 1998 amendments to KRS 532.030 and requested that the trial court include life without parole as a sentencing option available to the jury if the trial proceeded to a capital sentencing phase, satisfied the unqualified consent requirement; accordingly, defendant was entitled to an instruction on life without parole, and a new capital sentencing phase before the trial court was required because the trial court failed to so instruct the jury. St. Clair v. Commonwealth, 140 S.W.3d 510, 2004 Ky. LEXIS 44 ( Ky. 2004 ).

Opinions of Attorney General.

Where an act restricted the right to bring a paternity action, such action could be brought without meeting these new restrictions, if the action was allowable under the prior law and the child was born prior to the effective date of the new law. OAG 64-794 .

446.120. References to sections, subsections, and paragraphs — Citation of Acts of General Assembly.

  1. “KRS”  may be used as an abbreviation of “Kentucky Revised Statutes.”
  2. Wherever  in the statute laws of this state a reference is made to several sections  and the section numbers given in the reference are connected by the word “to,”  the reference includes both the sections whose numbers are given and all intervening  sections.
  3. Wherever  in the Kentucky Revised Statutes a reference is made to a subsection without  stating the section of which the subsection referred to is a part, the reference  is to the subsection of the section in which the reference is made.
  4. Wherever  in the Kentucky Revised Statutes a reference is made to a paragraph without  stating the section and subsection of which the paragraph referred to is a  part, the reference is to the paragraph of the subsection in which the reference  is made.
  5. Material  in the official edition of the Acts of the General Assembly shall be cited  in the following manner:
    1. For  acts of regular sessions, 19xx Ky. Acts ch. xxx, sec. xxx, e.g., 1990 Ky. Acts ch. 476, sec. 1; and
    2. For  acts of extraordinary sessions, 19xx (xxx Extra. Sess.) Ky. Acts ch. xxx,  sec. xxx, e.g., 1991 (2d Extra. Sess.) Ky. Acts ch. 5, sec. 101.

History. Enact. Acts 1942, ch. 208, § 1, effective October 1, 1942; 1992, ch. 431, § 4, effective July 14, 1992.

Compiler’s Notes.

This section was originally created by the Legislative Research Commission in order to clarify the chapter.

Opinions of Attorney General.

This section requires the reading of the word “to” in KRS 45A.335 to mean, in effect, “through,” so that KRS 45A.335 actually defines terms used in KRS 45A.330 through 45A.340 . OAG 82-406 .

446.130. Kentucky Revised Statutes speak for themselves — Conflicts — Ambiguities.

The Kentucky Revised Statutes of 1942 are intended to speak for themselves, and all sections of the Kentucky Revised Statutes of 1942 shall be considered to speak as of the same date, except that in cases of conflict between two (2) or more sections or of a latent or patent ambiguity in a section, reference may be had to the Acts of the General Assembly from which the sections are indicated to have been derived, for the purpose of applying the rules of construction relating to repeal by implication or for the purpose of resolving the ambiguity. Like reference may be had to any special acts or charters granted by the General Assembly prior to the adoption of the present Constitution, for the like purpose.

Compiler’s Notes.

This section was originally created to aid in the construction of the revision of the Kentucky Revised Statutes and to give full effect to the legislative intent in enacting the revision.

NOTES TO DECISIONS

  1. Constitutionality of Kentucky  Revised Statutes.
  2. Status of Kentucky Revised Statutes.
  3. Reference to History Authorized.
  4. — Act from Which Section  Derived.
  5. Reference Not Authorized.
  6. Conflicting Statutes.
  7. Reenacted Statutes.
  8. Section Derived from Repealed  Statute.
1. Constitutionality of Kentucky Revised Statutes.

The act (Acts 1942, ch. 208) revising the statutes did not violate Const., § 51 for the different chapters and sections were germane and related to the one object of gathering together a unified system of law in a clarified and concise form for convenient use and division among separate acts would not only have been contrary to the spirit of the constitution but would also have been embarrassing to honest legislation. Fidelity & Columbia Trust Co. v. Meek, 294 Ky. 122 , 171 S.W.2d 41, 1943 Ky. LEXIS 404 ( Ky. 1943 ).

2. Status of Kentucky Revised Statutes.

The Kentucky Revised Statutes were enacted as the law of the Commonwealth and not merely adopted as a compilation and the act revising the statutes is the law and not merely evidence of the law; the Kentucky Revised Statutes repealed all former statutes. Fidelity & Columbia Trust Co. v. Meek, 294 Ky. 122 , 171 S.W.2d 41, 1943 Ky. LEXIS 404 ( Ky. 1943 ).

3. Reference to History Authorized.

Resort may be had to the notes or reports of commissioners who drafted a revision of statutes in the case of an ambiguity in the revision, but not otherwise. Fidelity & Columbia Trust Co. v. Meek, 294 Ky. 122 , 171 S.W.2d 41, 1943 Ky. LEXIS 404 ( Ky. 1943 ).

The courts may not resort to legislative history for the purpose of construing a statute where there can be no question as to the intent of the legislature, but where the literal meaning of a statute makes it a substantial departure from the long-established legislative policy on the subject, known to the court, the doubt thereby arising as to the legislative intent requires an examination of available information bearing on the purpose to be accomplished by the legislation in question. Swift v. Southeastern Greyhound Lines, 294 Ky. 137 , 171 S.W.2d 49, 1943 Ky. LEXIS 405 ( Ky. 1943 ).

The Kentucky Revised Statutes are controlling where the proceedings in question arose after the Kentucky Revised Statutes became effective, but the court may examine the historical setting of the revised sections to aid in their construction. Morgan v. Fayette County Board of Education, 294 Ky. 597 , 172 S.W.2d 64, 1943 Ky. LEXIS 480 ( Ky. 1943 ).

Where a subsection was ambiguous as it appeared in the revised statutes, reference could be had to legislative history for the purpose of resolving the ambiguity or for the purpose of applying the rules of construction relating to repeal by implication. Burke v. Stephenson, 305 S.W.2d 926, 1957 Ky. LEXIS 352 ( Ky. 1957 ).

4. — Act from Which Section Derived.

In the case of an ambiguity in the Kentucky Revised Statutes, the court may supply omitted words that were contained in the original act from which the revised section was derived. Fidelity & Columbia Trust Co. v. Meek, 294 Ky. 122 , 171 S.W.2d 41, 1943 Ky. LEXIS 404 ( Ky. 1943 ).

Resort may not be had to the original acts from which the 1942 revision of the statutes was derived except in the case of an ambiguity in the revision. Ambiguity that will permit a reference to former statutes may exist on its face, or may develop when the statute is brought into contact with collateral facts, as where the consequences or results of a literal construction would be absurd or unreasonable, or may arise from a conflict between the provisions of one section and those of other sections in pari materia. Fidelity & Columbia Trust Co. v. Meek, 294 Ky. 122 , 171 S.W.2d 41, 1943 Ky. LEXIS 404 ( Ky. 1943 ).

If a section of the Kentucky Revised Statutes, as literally construed, would be absurd or unreasonable, the court may examine the original act from which the section was derived in order to find the true legislative intent. Swift v. Southeastern Greyhound Lines, 294 Ky. 137 , 171 S.W.2d 49, 1943 Ky. LEXIS 405 ( Ky. 1943 ).

5. Reference Not Authorized.

Where sections of the Kentucky Revised Statutes derived from earlier acts could be reconciled with sections enacted by separate acts in 1942, there was no need to apply this section. Cawood v. Coleman, 294 Ky. 858 , 172 S.W.2d 548, 1943 Ky. LEXIS 515 ( Ky. 1943 ).

Where there is no ambiguity in two (2) sections, reference to legislative history to show the precedence of one (1) over the other cannot be made. Heringer v. Rolf, 287 S.W.2d 149, 1956 Ky. LEXIS 442 ( Ky. 1956 ).

6. Conflicting Statutes.

Statutes passed at 1942 session of General Assembly should, if possible, be so construed with sections enacted in Act 1942, ch. 208 revising statutes as to give both effect. Cawood v. Coleman, 294 Ky. 858 , 172 S.W.2d 548, 1943 Ky. LEXIS 515 ( Ky. 1943 ).

Repeals by implication are not favored, and a statute will not be construed as repealing a prior statute unless it is so clearly repugnant as to admit of no other reasonable construction. Demunbrun v. Browning, 311 Ky. 71 , 223 S.W.2d 372, 1949 Ky. LEXIS 1058 ( Ky. 1949 ).

7. Reenacted Statutes.

On reenactment of a statute which had previously been construed by the courts, it will be presumed that the legislature intended to incorporate such interpretation into the reenacted statute. Cawood v. Coleman, 294 Ky. 858 , 172 S.W.2d 548, 1943 Ky. LEXIS 515 ( Ky. 1943 ).

8. Section Derived from Repealed Statute.

A section of the Kentucky Revised Statutes is the law, unless inherently invalid, even though the original statute from which the revised section is derived was impliedly repealed prior to the enactment of the Kentucky Revised Statutes. Mannini v. McFarland, 294 Ky. 837 , 172 S.W.2d 631, 1943 Ky. LEXIS 539 ( Ky. 1943 ).

Cited:

Thieman v. Hancock, 296 Ky. 223 , 176 S.W.2d 418, 1943 Ky. LEXIS 144 ( Ky. 1943 ); Kolb v. Ruhl’s Adm’r, 303 Ky. 604 , 198 S.W.2d 326, 1946 Ky. LEXIS 909 (1946); Thomas v. Spragens, 308 Ky. 97 , 213 S.W.2d 452, 1948 Ky. LEXIS 861 ( Ky. 1948 ); Fink v. Celletti, 616 S.W.2d 38, 1981 Ky. LEXIS 245 ( Ky. 1981 ).

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Bondurant and Arvin, Real Property, 69 Ky. L.J. 625 (1980-81).

Northern Kentucky Law Review.

Zielke, Public Sector Labor Law in Kentucky, 6 N. Ky. L. Rev. 327 (1979).

446.140. Titles, headings, and notes.

Title heads, chapter heads, section and subsection heads or titles, and explanatory notes and cross references, in the Kentucky Revised Statutes, do not constitute any part of the law, except as provided in KRS 355.1-107.

History. Enact. Acts 1942, ch. 208, § 1, effective October 1, 1942; 1958, ch. 77, § 10-108; 2014, ch. 71, § 12, effective July 15, 2014.

Compiler’s Notes.

This section was originally created by the Legislative Research Commission to make clear that mechanical aids to compilation are not intended to be part of the law.

NOTES TO DECISIONS

1. Headings.

A section is not limited to permanent partial disability simply because the heading is so worded when there is no reference to permanent partial disability in the body of the section. Holt v. West Kentucky Coal Co., 350 S.W.2d 155, 1961 Ky. LEXIS 87 ( Ky. 1961 ).

The heading of a section of the revised statutes is not the title of the act. Arciero v. Hager, 397 S.W.2d 50, 1965 Ky. LEXIS 57 ( Ky. 1965 ), overruled, Hicks v. Enlow, 764 S.W.2d 68, 1989 Ky. LEXIS 8 ( Ky. 1989 ).

Cited:

Fawbush v. Louisville & Jefferson County Metropolitan Sewer Dist., 240 S.W.2d 622, 1951 Ky. LEXIS 1002 ( Ky. 1951 ); Wheeler & Clevenger Oil Co. v. Washburn, 127 S.W.3d 609, 2004 Ky. LEXIS 45 ( Ky. 2004 ); Popplewell’s Alligator Dock No. 1, Inc. v. Revenue Cabinet, 133 S.W.3d 456, 2004 Ky. LEXIS 92 ( Ky. 2004 ); Popplewell’s Alligator Dock No. 1, Inc. v. Revenue Cabinet, 133 S.W.3d 456, 2004 Ky. LEXIS 92 (Ky. 2004).

Commonwealth Dep’t of Corr. v. Engle, 302 S.W.3d 60, 2010 Ky. LEXIS 17 ( Ky. 2010 ).

446.145. Manner of indicating amended, created, repealed, and repealed and reenacted sections and sections not intended to be codified.

  1. Bills  amending an existing section of the statutes shall indicate the material proposed  to be deleted by brackets and by striking through the material.
  2. Bills  amending an existing section of the statutes shall indicate new material by  underlining.
  3. Bills  creating a new section of the statutes shall begin with the phrase “A NEW SECTION OF KRS CHAPTER —— IS CREATED TO READ AS FOLLOWS:”  and shall contain underlining of all material in the section.
  4. Bills  repealing a section of the statutes shall list the statute number and headnote.
    1. Bills  repealing and reenacting a section of the statutes without change from the  text of that statute as it read at the time of its repeal shall begin with  the phrase “KRS —— is repealed and reenacted (or ‘reenacted  as a new section of KRS Chapter ——’, if appropriate) to  read as follows:” and shall not contain underlining of the reenacted  text. (5) (a) Bills  repealing and reenacting a section of the statutes without change from the  text of that statute as it read at the time of its repeal shall begin with  the phrase “KRS —— is repealed and reenacted (or ‘reenacted  as a new section of KRS Chapter ——’, if appropriate) to  read as follows:” and shall not contain underlining of the reenacted  text.
    2. Bills  repealing and reenacting a section of the statutes with changes from the text  of that statute as it read at the time of its repeal shall begin with the  phrase “KRS —— is repealed, reenacted (or ‘reenacted  as a new section of KRS Chapter ——’, if appropriate), and  amended to read as follows:”, shall indicate the material proposed to  be deleted by brackets and by striking through the material, and shall indicate  new material by underlining.
    3. Bills  repealing and reenacting a section of the statutes with text totally different  from the text of that statute as it read at the time of its repeal or so substantially  different that using the procedure set out in paragraph (b) of this subsection  is impracticable shall begin with the phrase “KRS —— IS  REPEALED AND REENACTED (or ‘REENACTED AS A NEW SECTION OF KRS CHAPTER  ——’, if appropriate) TO READ AS FOLLOWS:” and shall  indicate the reenacted text of the statute by underlining.
  5. Sections  of a bill not intended to be codified shall begin simply with the section  number within the bill without any further introductory phrase, and the text  of those sections shall be in normal type and not in all capitals or with  underlining. These not-to-be-codified sections shall ordinarily be placed  at the end of the bill or, in a bill having multiple parts, at the end of  a particular part of that bill. Unless expressly drafted in a manner indicating  codification is intended or unless determined by the reviser of statutes that  codification is appropriate and necessary, the following material shall not  be codified, in conformity with KRS 7.131(3):
    1. Repealers  and repeals of repealers;
    2. Appropriation  provisions;
    3. Temporary  provisions;
    4. Construction  clauses, including severability clauses;
    5. A  short title, if necessary, for an act that is not a distinct codifiable unit;  and
    6. Effective  date provisions.

History. Enact. Acts 1962, ch. 43; 1982, ch. 2, § 9, effective February 5, 1982; 1992, ch. 431, § 5, effective July 14, 1992; 1996, ch. 46, § 10, effective July 1, 1997.

Research References and Practice Aids

Cross-References.

Amended sections to be published at length, Const., § 51.

446.150. Kentucky Revised Statutes substituted for former laws.

The provisions of the Kentucky Revised Statutes of 1942 shall be considered as substituted in a continuing way for the provisions of the prior statute laws repealed by the act enacting the Kentucky Revised Statutes.

History. Enact. Acts 1942, ch. 208, § 1, effective October 1, 1942.

Compiler’s Notes.

This section was originally created by the Legislative Research Commission to make clear the effect of the revision of the Kentucky Revised Statutes.

446.160. Unconstitutionality of part of Kentucky Revised Statutes, effect.

If any provision of the Kentucky Revised Statutes, derived from an act that amended or repealed a pre-existing statute, is held unconstitutional, the general repeal of all former statutes by the act enacting the Kentucky Revised Statutes shall not prevent the pre-existing statute from being law if that appears to have been the intent of the General Assembly.

History. Enact. Acts 1942, ch. 208, § 1, effective October 1, 1942,.

NOTES TO DECISIONS

1. Section from Unconstitutional Act.

Where an amendment to a section of Carroll’s Statutes was unconstitutional, the original section remained operative and the section of the revised statutes based on it were valid. Commonwealth v. Malco-Memphis Theatres, Inc., 293 Ky. 531 , 169 S.W.2d 596, 1943 Ky. LEXIS 656 ( Ky. 1943 ).

446.170. Effect of 1942 act amending or repealing section of Carroll’s Statutes or of former legislative act.

Any act passed at the 1942 Regular Session of the General Assembly amending or repealing any provision of the statute laws by reference to a section number of the Session Acts or of Carroll’s Statutes shall be considered as amending or repealing, as the case may be, so much of the Kentucky Revised Statutes as is indicated in the Kentucky Revised Statutes as having been derived from the section of the Session Acts or of Carroll’s Statutes so amended or repealed, and shall not be considered as reviving any part of Carroll’s Statutes or of any Session Acts so amended other than the part set forth at length in the amending act.

History. Enact. Acts 1942, ch. 208, § 3.

NOTES TO DECISIONS

1. In General.

Statutes passed at 1942 session of General Assembly should, if possible, be so construed with sections enacted in Acts 1942, ch. 208 revising statutes as to give both effect. Cawood v. Coleman, 294 Ky. 858 , 172 S.W.2d 548, 1943 Ky. LEXIS 515 ( Ky. 1943 ).

446.180. Rules of construction applicable to Kentucky Revised Statutes and Criminal Code concerning Rules of Civil Procedure. [Repealed.]

Compiler’s Notes.

This section (Acts 1952, ch. 84, § 2) was repealed by Acts 1966, ch. 255, § 283.

446.190. Rules of Civil Procedure to govern taking of appeals — Statutes govern time of taking certain appeals.

Where a statute grants a right of appeal to the Court of Appeals in special civil cases, the Rules of Civil Procedure shall govern the taking of the appeal, unless in conflict with a specific provision of the statute, except that any notice of appeal required by the Rules shall be given within the time specified in the Rules. In all cases where the statute limits the taking of the appeal to a specific time the appeal shall be docketed in the Court of Appeals within the time so specified.

History. Enact. Acts 1952, ch. 84, § 3.

NOTES TO DECISIONS

1. Noncompliance.

Where the members of the Kentucky tax commission and the department of revenue filed a notice of appeal with the Circuit Court within ten (10) days from the date of the entry of judgment holding that the commission’s order equalizing assessments in Daviess County was invalid because the commission did not grant the county officials an adequate hearing in accordance with KRS 133.160 , but the record was not filed in the Court of Appeals until sixteen (16) days after entry of the judgment, the appeal was not timely, and was dismissed on motion. Allphin v. Daviess County Fiscal Court, 273 S.W.2d 359, 1954 Ky. LEXIS 1158 ( Ky. 1954 ).

Cited:

Matthews v. Ward, 350 S.W.2d 500, 1961 Ky. LEXIS 112 ( Ky. 1961 ).

446.200. Demurrer, motion to quash, construction.

As used in any statute that relates to criminal procedure, the terms “demurrer,” “motion to quash” or similar terms shall be construed to mean the motion raising a defense or objection as provided in the Rules of Criminal Procedure.

History. Enact. Acts 1962, ch. 234, § 58.

Research References and Practice Aids

Cross-References.

Defenses, motion for, RCr 8.16 to 8.24.

446.210. References to Criminal Code. [Repealed.]

Compiler’s Notes.

This section (Acts 1962, ch. 234, § 59) was repealed by Acts 1966, ch. 255, § 283.

Rules of Codification

446.250. Conflicting amendments — Last enactment to prevail.

In the event of a conflict between measures amending the same section of statutes, the one which passes the General Assembly last shall prevail. For purposes of codification only, a House bill shall be deemed to have passed the General Assembly when signed by the President of the Senate and a Senate bill shall be deemed to have passed the General Assembly when signed by the Speaker of the House of Representatives.

History. Enact. Acts 1982, ch. 2, § 1, effective February 5, 1982.

Research References and Practice Aids

Treatises

Petrilli, Kentucky Family Law, Juvenile Court, § 32.3.

Petrilli, Kentucky Family Law, Termination of Parental Rights and Adoption, § 29.1.

446.260. Repeal to prevail over amendment of same statute.

In the event of a conflict between a measure amending a statute and one repealing the same statute, the bill repealing the statute shall prevail unless the bill amending the statute specifically repeals the previous repeal.

History. Enact. Acts 1982, ch. 2, § 2, effective February 5, 1982.

446.270. Effect of failure to underline new language in amended statute.

In the event material is placed in a bill amending a statute which is not underlined and which is not contained in the original text of the statute, the material shall be considered as extraneous and shall have no force and effect and shall be deleted from any publication of the statutes by the statute reviser.

History. Enact. Acts 1982, ch. 2, § 3, effective February 5, 1982.

446.280. Effect of failure to indicate deleted material by brackets and strike through.

In the event material which was in the original text of a statute is deleted from the statute in a bill amending the statute but is not indicated by brackets and strike through, the deletion shall be considered in error and shall have no force and effect and shall be retained in any publication of statutes by the statute reviser.

History. Enact. Acts 1982, ch. 2, § 4, effective February 5, 1982.

446.290. Effect of delayed repeal.

In the event a bill with a delayed effective date repeals a statute amended at the same session of the General Assembly, the statute shall be considered to be amended at the date specified in the amending act and shall stand repealed as of the date specified in the repealing act.

History. Enact. Acts 1982, ch. 2, § 5, effective February 5, 1982.

446.300. Effect of delayed amendment.

In the event a bill with a delayed effective date amends a statute repealed at the same session of the General Assembly, the repeal shall prevail and the amendment shall have no force and effect.

History. Enact. Acts 1982, ch. 2, § 6, effective February 5, 1982.

446.310. Procedure for technical correction on face of bill to be presented to Governor.

When the House or Senate clerk or a member of his staff makes a change or correction on the face of the bill to be presented to the Governor for his approval or other action, he shall deliver a copy of the bill containing the change to the statute reviser and shall affix his signature and the date of making the change on the face of the original bill and the copy sent to the statute reviser in a position near the changed material. Any change not so indicated and signed shall be null and void and shall not be placed in the statutes by the statute reviser.

History. Enact. Acts 1982, ch. 2, § 7, effective February 5, 1982.

446.320. Amendment of section with delayed effective date.

When the General Assembly amends a section of the statutes which, due to a delayed effective date at the time of enactment, is not effective when the amendment is enacted, such amendment shall not hasten the effective date of the statute, unless the General Assembly has clearly indicated that such is its intention by a change in the effective date.

History. Enact. Acts 1982, ch. 2, § 8, effective February 5, 1982.

446.350. Prohibition upon government substantially burdening freedom of religion — Showing of compelling governmental interest — Description of “burden.”

Government shall not substantially burden a person’s freedom of religion. The right to act or refuse to act in a manner motivated by a sincerely held religious belief may not be substantially burdened unless the government proves by clear and convincing evidence that it has a compelling governmental interest in infringing the specific act or refusal to act and has used the least restrictive means to further that interest. A “burden” shall include indirect burdens such as withholding benefits, assessing penalties, or an exclusion from programs or access to facilities.

History. Enact. Acts 2013, ch. 111, § 1, effective June 25, 2013.

NOTES TO DECISIONS

Cited in:

Lexington-Fayette Urban County Human Rights Comm'n v. Hands on Originals, 592 S.W.3d 291, 2019 Ky. LEXIS 431 ( Ky. 2019 ).

Determination of Death

446.400. Determination of death — Minimal conditions to be met.

For all legal purposes, the occurrence of human death shall be determined in accordance with the usual and customary standards of medical practice, provided that death shall not be determined to have occurred unless the following minimal conditions have been met:

  1. When  respiration and circulation are not artificially maintained, there is an irreversible  cessation of spontaneous respiration and circulation; or
  2. When  respiration and circulation are artificially maintained, and there is a total  and irreversible cessation of all brain function, including the brain stem  and that such determination is made by two (2) licensed physicians.

History. Enact. Acts 1986, ch. 132, § 1, effective July 15, 1986.

NOTES TO DECISIONS

Cited:

Woods v. Commonwealth, 142 S.W.3d 24, 2004 Ky. LEXIS 187 ( Ky. 2004 ).

Research References and Practice Aids

Kentucky Bench & Bar.

The Right to Refuse Unwanted Health Care in Kentucky, Vol. 55, No. 3, Summer 1991, Ky. Bench & Bar 14.

CHAPTER 447 Public Laws in Force — Court Rules

447.010. Carroll’s Kentucky Codes adopted. [Repealed.]

Compiler’s Notes.

This section (2420a-2, 2420a-3) was repealed by Acts 1966, ch. 255, § 283.

447.020. Codes not to be copyrighted. [Repealed.]

Compiler’s Notes.

This section (Acts 1876, ch. 1020, § 10) was repealed by Acts 1966, ch. 255, § 283.

447.025. Repeal of statutes enacted prior to 1942.

All statute laws of the Commonwealth of a general and public nature enacted prior to the 1942 Regular Session of the General Assembly, except the Codes of Practice and such statute laws as are continued in force by express provision in the body of sections of the Kentucky Revised Statutes, are hereby repealed.

History. Enact. Acts 1942, ch. 208, § 2.

NOTES TO DECISIONS

  1. Constitutionality.
  2. Construction.
1. Constitutionality.

The act (Acts 1942, ch. 208) revising the statutes did not violate Const., § 51 for the different chapters and sections were germane and related to the one object of gathering together a unified system of law in a clarified and concise form for convenient use and division among separate acts would not only have been contrary to the spirit of the constitution but would also have been embarrassing to honest legislation. Fidelity & Columbia Trust Co. v. Meek, 294 Ky. 122 , 171 S.W.2d 41, 1943 Ky. LEXIS 404 ( Ky. 1943 ).

2. Construction.

The Kentucky Revised Statutes were enacted as the law of the Commonwealth and not merely adopted as a compilation and they repealed all former statutes; moreover the act revising the statutes is the law and not merely evidence of the law. Fidelity & Columbia Trust Co. v. Meek, 294 Ky. 122 , 171 S.W.2d 41, 1943 Ky. LEXIS 404 ( Ky. 1943 ).

The Kentucky Revised Statutes are controlling where the proceedings in question arose after the Kentucky Revised Statutes became effective, but the court may examine the historical setting of the revised sections to aid in their construction. Morgan v. Fayette County Board of Education, 294 Ky. 597 , 172 S.W.2d 64, 1943 Ky. LEXIS 480 ( Ky. 1943 ).

An act omitted from all compilations of the statutes since the date of its enactment is no longer in force. Menifee County Board of Education v. Fiscal Court of Menifee County, 329 S.W.2d 46, 1959 Ky. LEXIS 135 ( Ky. 1959 ).

447.030. Acts and compilations of former laws, evidence.

The Session Acts and Resolutions of the General Assembly heretofore or hereafter published, the editions of the Statutes of Kentucky by Daniel Bradford, by William Littell, by Littell and Swigert, by Morehead and Brown, and in part by Preston S. Loughborough, the edition of the Virginia Statutes by William Waller Henning, Richard H. Stanton’s new edition of the Revised Statutes of Kentucky, the supplement to the Revised Statutes by Harvey Myers, the General Statutes, the Codes of Practice, the various editions of Carroll’s Kentucky Statutes and supplements thereto published prior to 1940, and the various editions of Carroll’s Kentucky Codes and the supplements thereto, shall be received, in the courts and tribunals of this state, as evidence of the statute laws in force in this state at the time of their publication.

History. 2419, 2419a-1, 2419a-4, 2419a-5, 2419a-6, 2420a-1, 2420a-2, 2420a-3.

Compiler’s Notes.

This section was repealed by § 92 of Acts 1990, ch. 88 to contingently become effective as provided in § 93 of Acts 1990, ch. 88. However, such repeal was repealed by § 31 of Acts 1992, ch. 324, effective July 1, 1992, which provided that “The repeal of KRS 447.030 , ‘Acts and compilations of former laws, evidence,’ contained in 1990 Kentucky Acts Chapter 88, Section 92, is hereby repealed.”

447.040. Decisions of English courts — When authority.

The decisions of the courts of Great Britain rendered since July 4, 1776, shall not be of binding authority in the courts of Kentucky.

History. 2418.

NOTES TO DECISIONS

Cited:

Pryor v. Thomas, 361 S.W.2d 279, 1962 Ky. LEXIS 233 ( Ky. 1962 ), cert. denied, 372 U.S. 922, 83 S. Ct. 739, 9 L. Ed. 2d 727, 1963 U.S. LEXIS 2211 (1963).

Research References and Practice Aids

Cross-References.

Virginia laws in force in this state, Const., § 233.

Kentucky Law Journal.

Dukeminier, Kentucky Perpetuities Law Restated and Reformed, 49 Ky. L.J. 3 (1960).

447.050. Statutes Committee; organization. [Repealed.]

Compiler’s Notes.

This section (2438a-5, 2438a-10) was repealed by Acts 1942, ch. 86, § 9.

447.060. Functions of committee. [Repealed.]

Compiler’s Notes.

This section (2438a-6, 2438a-8, 2438a-9, 2438a-11) was repealed by Acts 1942, ch. 86, § 9.

447.070. Statute Revision Commission; organization. [Repealed.]

Compiler’s Notes.

This section (Acts 1942, ch. 86, § 1) was repealed by Acts 1954, ch. 48, § 5.

447.080. Office space and opinions of Court of Appeals to be furnished commission. [Repealed.]

Compiler’s Notes.

This section (Acts 1942, ch. 86, § 2; amend. Acts 1950, ch. 156, § 5) was repealed by Acts 1954, ch. 48, § 5.

447.090. Functions of commission. [Repealed.]

Compiler’s Notes.

This section (Acts 1942, ch. 86, § 3) was repealed by Acts 1954, ch. 48, § 5.

447.100. Use of type from which statutes are printed. [Repealed.]

Compiler’s Notes.

This section (Acts 1942, ch. 86, § 4) was repealed by Acts 1954, ch. 48, § 5.

447.110. Powers of commission in preparing editions of the statutes; certification of editions; admissibility of statute editions in evidence; legislative amendments. [Repealed.]

Compiler’s Notes.

This section (Acts 1942, ch. 86, § 5) was repealed by Acts 1954, ch. 48, § 5.

447.120. Reviser of Statutes. [Repealed.]

Compiler’s Notes.

This section (Acts 1942, ch. 86, § 6) was repealed by Acts 1954, ch. 48, § 5.

447.130. Employes of commission; compensation of reviser and employes. [Repealed.]

Compiler’s Notes.

This section (Acts 1942, ch. 86, § 7) was repealed by Acts 1954, ch. 48, § 5.

447.140. Transfer of functions and funds of Statute Committee. [Repealed.]

Compiler’s Notes.

This section (Acts 1942, ch. 86, § 8) was repealed by Acts 1954, ch. 48, § 5.

447.150. Civil Code, committee for revision of. [Repealed.]

Compiler’s Notes.

This section (Acts 1950, ch. 151, §§ 1 to 4) was repealed by Acts 1966, ch. 255, § 283.

447.151. Court of Appeals to promulgate Rules of Civil Procedure. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1952, ch. 18, § 1; 1968, ch. 152, § 165) was repealed by Acts 1976, ch. 62, § 135.

447.152. Bench and bar to receive proposed rules — Procedure for consideration of suggestions and amendments — Time for distributing rules. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1952, ch. 18, § 2) was repealed by Acts 1976, ch. 62, § 135.

447.153. Appointment and duties of advisory committee of judicial council. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1952, ch. 18, § 3; 1966, ch. 255, § 278) was repealed by Acts 1976, ch. 62, § 135.

447.154. Laws not to limit right of Court of Justice to promulgate rules.

No act creating, repealing, or modifying any statute shall be construed directly, or by implication, to limit the right of the Court of Justice to promulgate rules from time to time or to supersede, modify, or amend any rule so promulgated. Nor shall any statute be construed to limit in any manner the power of the Court of Justice to make rules governing practice and procedure in the courts.

History. Enact. Acts 1952, ch. 18, § 4; 1966, ch. 255, § 279; 1976, ch. 62, § 127.

NOTES TO DECISIONS

  1. Conflict with Statute.
  2. Verdict.
1. Conflict with Statute.

In event of any conflict between statute requiring action for relief or damages on ground of fraud to be commenced within five (5) years and civil rule requiring motion for relief from judgment on ground of fraud to be made not more than one (1) year after entry of judgment, civil rule would govern. Dean v. Gregory, 318 S.W.2d 549, 1958 Ky. LEXIS 145 ( Ky. 1958 ).

Where a conflict exists between a civil rule and a statute, the civil rule will prevail. Dean v. Gregory, 318 S.W.2d 549, 1958 Ky. LEXIS 145 ( Ky. 1958 ).

2. Verdict.

The form of the verdict in condemnation cases is a matter of procedure and not of substantive law, and the court has supreme authority in the field of judicial procedure. Commonwealth, Dep't of Highways v. Sherrod, 367 S.W.2d 844, 1963 Ky. LEXIS 33 ( Ky. 1963 ).

Cited:

Ex parte Auditor of Public Accounts, 609 S.W.2d 682, 1980 Ky. LEXIS 274 ( Ky. 1980 ); Meriwether v. Lexington-Fayette Urban County Gov’t, 2002 Ky. App. LEXIS 1 (Ky. Ct. App. 2002), review denied, 2003 Ky. LEXIS 60 ( Ky. 2003 ).

Opinions of Attorney General.

The records of a law firm hired to investigate charges brought against a state university official are not public records, but rather are the work product of the attorneys of that firm, and since such work product is confidential under a rule promulgated pursuant to this section, they are exempt from disclosure by subsection (1)(j) (now 1(l)) of KRS 61.878 as records made confidential by enactment of the General Assembly. OAG 81-291 .

KRS 431.420 , providing that city police officers must serve warrants within city limits, is unenforceable, since it is in direct conflict with the law dealing with the nature and service of warrants of arrest as reflected in RCr. 2.06 and RCr. 2.10 and, under this section, the statute must give way to the Criminal Rules. OAG 83-343 .

Records which are the work product of an attorney in the course of advising a client are not discoverable under the Kentucky Rules of Civil Procedure (CR 26.02(3)) and are therefore exempt from public disclosure under this section and KRS 61.878(1)(j) (now 1(l)). OAG 85-20 .

Documents which constitute the work product of an attorney and come within the attorney-client relationship may be excluded from public inspection; thus, correspondence between the legal divisions of Commonwealth and federal agencies pertaining to an ongoing investigation of the Commonwealth agency need not be made available for public inspection by the Commonwealth agency, and correspondence between two (2) agencies pertaining to an investigation of a Commonwealth agency need not be released by the Commonwealth agency when it consists of preliminary documents containing the observations, opinions, and comments of various personnel of the two (2) agencies. OAG 87-28 .

Records which are the work product of an attorney in the course of advising a client are not discoverable under CR 26.02(3); such records are therefore exempt from public inspection under this section, which provides in part that no act of the General Assembly shall be construed to limit the right of the Court of Justice to promulgate rules, and KRS 61.878(1)(j) (now 1(l)). OAG 91-53 .

Those specific documents which are actually generated in the course of the attorney-client relationship, and therefore fall squarely within the privilege, or are the work product of an attorney, may be withheld from public inspection pursuant to Kentucky Rules of Civil Procedure, CR 26.02(1) and (3), this section and KRS 61.878(1)(j) (now 1(l)). OAG 91-108 .

City must release the monthly statements prepared by the City’s attorneys which reflect the general nature of the legal services rendered to city, but should those invoices disclose substantive matters protected by the attorney client privilege, and exempt under KRS 61.878(1)(j) (now 1(l)), the exempt material should be separated from the nonexempt materials, and the nonexempt materials released for public inspection. OAG 92-14 .

The work product doctrine protects from discovery and from access under the Open Records Act, materials prepared or collected by an attorney in the course of preparation for litigation; however, travel expense records are not in the nature of attorney work product since they cannot be characterized as mental impressions, conclusions, opinions, or legal theories of an attorney concerning that litigation. OAG 95-ORD-18.

Records which are the work product of an attorney in the course of litigation or advising a client are not discoverable under CR 26.02 and are therefore exempt under this section and KRS 61.878(1)(l). OAG 00-ORD-99.

A city properly denied a request for records reflecting the amount of funds that the city area government self insurance trust reserved or recorded as a liability with respect to certain litigation since disclosure of the records would have revealed the mental impressions, thoughts, and conclusion of the attorneys in evaluating and estimating the value of the legal claim and thus was be nondiscoverable and exempt from disclosure. OAG 00-ORD-99.

Research References and Practice Aids

Kentucky Bench & Bar.

Mapother, Kentucky’s New Rules of Civil and Criminal Procedure, Vol. 42, No. 1, Jan. 1978 Ky. Bench & B. 22.

447.155. When Rules of Civil Procedure apply to criminal procedure. [Repealed.]

Compiler’s Notes.

This section (Acts 1952, ch. 18, § 5) was repealed by Acts 1966, ch. 255, § 283.

447.156. When laws of pleading, practice and procedure become effective as rules of court. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1952, ch. 18, § 6) was repealed by Acts 1976, ch. 62, § 135.

447.157. Printing and distribution of rules. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1952, ch. 18, § 7; 1966, ch. 255, § 280) was repealed by Acts 1976, ch. 62, § 135.

447.160. Constitution Review Commission; appointment; terms; vacancies; officers; meetings. [Repealed.]

Compiler’s Notes.

This section (Acts 1950, ch. 210, § 1) was repealed by Acts 1956 (1st Ex. Sess.), ch. 7, Art. XII, § 3.

447.170. Expenses of members; employment of assistants. [Repealed.]

Compiler’s Notes.

This section (Acts 1950, ch. 210, § 2) was repealed by Acts 1956 (1st Ex. Sess.), ch. 7, Art. XII, § 3.

447.180. Functions of commission; reports. [Repealed.]

Compiler’s Notes.

This section (Acts 1950, ch. 210, § 3) was repealed by Acts 1956 (1st Ex. Sess.), ch. 7, Art. XII, § 3.

447.200. Duties of Statute Revision Commission and Reviser of statutes in transfer of Civil Code sections to Kentucky Revised Statutes. [Repealed.]

Compiler’s Notes.

This section (Acts 1958, ch. 45, § 4, effective June 19, 1958) was repealed by Acts 1968, ch. 152, § 168.

447.310. Criminal Code Revision. [Repealed.]

Compiler’s Notes.

This section (Acts 1958, ch. 45, §§ 1 to 3, effective June 19, 1958) was repealed by Acts 1968, ch. 152, § 168.