Hallahan v. Sawyer , 1965 Ky. LEXIS 368 ( 1965 )

WILLIAMS, Judge.

This action was instituted in the Jefferson Circuit Court under the authority of KRS 418.020 and KRS 418.040. The sole question before the Court was whether HB 198 (1964, c. 53), by amending KRS 118.-040 extending the voting hours to 6:00 p. m., and fixing voting on Standard Time, applies to primary as well as other elections. The trial court held it did not; hence this appeal.

HB 198 reads as follows:

“AN ACT relating to voting hours. Be it enacted by the General Assembly of the Commonwealth of Kentucky: KRS 118.040 is amended to read:

“The polls shall be opened at 6 a. m., Standard Time, and kept open continuously until 6 [5] p. m., Standard Time, of the same day. Before receiving any ballots, the officers of election shall cause to be proclaimed that the election is opened.”

We take notice that the Legislature italicizes words which are added by amendment and places in brackets words which are deleted by amendment.

KRS 118.040 now reads as follows:

“The polls shall be opened at 6 a. m., standard time, and kept open continuously until 6 p. m., standard time, of the same day. Before receiving any ballots, the officers of election shall cause to be proclaimed that the election is opened.”

KRS 119.040 provides:

“The primary election for the nomination of candidates by political parties to be voted for at the next regular election shall be held on the first Tuesday after the fourth Monday in May of each year between the hours of 6:00 A.M. and 5:00 P.M., at the regular polling places in each election precinct.”

In order to effect a change in the voting time for primary elections it would be necessary to find that HB 198 amended by implication KRS 119.040. It is earnestly and ably argued by the appellant that the Legislature intended to change the voting hours of all elections, thereby avoiding confusion between general elections and primary elections.

In Dreidel v. City of Louisville, 268 Ky. 659, 105 S.W.2d 807 (1937), it was said:

“A statute may be repealed by the express provision of a subsequent statute or by implication when the provisions of the earlier and later statutes are repugnant to each other and irreconcilable, or when the subsequent statute covers the whole subject-matter of the former and is manifestly intended as a substitute for it. Exall v. Holland, 166 Ky. 315, 179 S.W. 241.

“It is a well-settled principle of statutory construction that repeals by implication are not favored and will not be declared except it be impossible to permit both statutes to stand. Louisville & N. R. Co. v. Jarvis, 87 S.W. 759, 27 Ky. Law Rep. 986.”

The same rules govern the construction of the amendment under consideration in this case.

Before a statute shall be considered amended by implication by a later statute, the two statutes must be repugnant to each other and be irreconcilable, or the later act must cover the whole subject of the earlier act.

The law pertaining to general elections is found in C. 118, Kentucky Revised Statutes. The law pertaining to primary elections generally is found in C. 119, Kentucky Revised Statutes. HB 198 specifically amended KRS 118.040, but made no reference to KRS 119.040. There are several dissimilarities between a general election and a primary election, and it cannot be said that holding the two at different hours is impossible. The fact that one statute provides certain hours for general elections does not cause it to be repugnant to one which provides different hours for primary elections. Although the title of HB 198 covers the whole subject, including primary elections, the body of the Act does not, so the “whole subject” rule is not applicable.

It is not apparent to us that the Legislature intended to change the voting hours of primary elections, else it would have amended that section of the statutes which specifically sets up primary election voting hours. Consequently, the polls at primary elections shall be opened at 6:00 a. m. and closed at 5:00 p. m. on standard time.

The judgment is affirmed.