Request By:
Mrs. George W. McQuown
Barren Circuit Court Clerk
Glasgow, Kentucky 42141
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
The Barren County Fiscal Court ceased to pay you as Law Librarian since June, 1974. Mr. Gilmer, State Law Librarian, has informed you that several counties have failed to budget properly for the county law librarian. You ask if budgeting a salary for the county law librarian is mandatory.
First, it is mandatory that a county law library be established in each county seat. KRS 172.100. Next, the circuit court clerk is the ex officio librarian of the county law library. KRS 172.110(1).
It is our opinion that the salary provision of KRS 172.110(1) is mandatory. The statute reads in part: "He [or she as the case may be] shall receive a salary of not less than fifty ($50) nor more than one hundred dollars ($100) per month for his services as librarian. " (Emphasis added). Except where the context requires otherwise, the term "shall" means that it is mandatory. KRS 446.010(29). There is nothing in the context of KRS 172.110 which suggests anything other than its being mandatory.
We must keep in mind, however, that the salary as law librarian must be considered as a part of the circuit clerk's total compensation for purposes of applying the constitutional and statutory maximum. The maximum, as set forth in § 246 of the constitution and as adjusted under the rubber dollar cases, must apply to the same person for public services, regardless of whether such services are rendered in one position or more than one.
Coleman v. Hurst, 226 Ky. 501, 11 S.W.2d 133 (1928) 137. See also KRS 64.527 and
Commonwealth v. Hesch, Ky., 395 S.W.2d 362 (1965).
Since a circuit clerk is at present required to pay over to the county any excess fees, it follows that if the payment of the law librarian's salary would of a certainty be excess fees, payable to the county after each year's operation, then the actual payment out of the county treasury would be academic. In such situation we do not believe the fiscal court would be required to pay it. There is a well know legal maxim that the law will not force anyone to do a vain and useless thing.
Kentucky Title Co. v. Hail, 219 Ky. 256, 292 S.W. 817 (1927) 821. A county officer who is compensated wholly or in part from fees is required to pay over to the county, each year, the excess of receipts over and above the amounts allowable for his personal compensation, the compensation of his legally authorized deputies, and authorized official expenses. Thus where the fiscal court has reason to believe that the payment of the county librarian's salary would be in excess of the clerk's personal compensation, the compensation of the clerk's deputies, and authorized official expenses of the clerk, the librarian's salary does not have to be paid. Where it is later determined in the calendar year in question that the librarian's salary will not be "excess fees" , then the salary should be paid to the clerk.
Rather than entertaining a guess as to whether the librarian's salary will or will not be "excess fees" , the better practice is for fiscal courts to pay the salary out of the county treasury as mandatorily required by the statute.
The fee system of circuit clerks will end on January 2, 1978, and they and their deputies will be paid personal compensation exclusively out of the state treasury. See H.B. 20 [Ch. 21, 1976 Extraordinary Session, Sections 5 and 19]. The clerk's earned fees as circuit clerk must be paid into the state treasury. On and after January 2, 1978, since KRS 172.110 was not amended nor repealed, the law librarian's salary will have to be paid out of the county treasury, but the money will ultimately have to be turned over to the Department for Finance and Administration to be deposited in the state treasury in the event that the librarian's salary exceeds the rubber dollar maximum for circuit clerks. See H.B. 20 [Ch. 21, 1976 Extraordinary Session]. The circuit clerk, under H.B. 20 and effective January 2, 1978, will be a state officer with duties co-extensive with the commonwealth and will be subject to the administrative control of the Chief Justice of the Supreme Court of Kentucky. The salaries of their deputies and office expenses will be funded out of the state treasury, since that office will be a part of the Court of Justice. Cf.