Request By:
Dr. Joe Uveges
860 Nutwood Avenue
Bowling Green, Kentucky
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You raised an earlier question about a magistrate (justice of the peace) drawing a salary without conducting criminal court trials. We responded to that in OAG 77-323, concluding that such salary is not legal where no cases are tried by the justice of the peace.
You now ask whether the issuing of warrants of arrest by the magistrate fulfills the requirements for compensation under KRS 64.255. The answer is "no".
KRS 64.255(2) conditions the setting of a salary for justices of the peace: ". . . each justice of the peace may be exclusively compensated for the performance of the duties of his office, insofar as they relate to the trial or decision of criminal cases, by a salary not to exceed . . ." (Emphasis added). The language and legislative intent are clear. The legislature framed the salary around the justice's trying criminal cases in the exercise of his criminal jurisdiction. It is just that clear and simple.
The acquisition of jurisdiction by a criminal court is one thing. In order to acquire jurisdiction, the court must have jurisdiction of the subject matter of the offense and of the person of the defendant.
Singleton v. Commonwealth, 306 Ky. 454, 208 S.W.2d 325 (1948) 326. In acquiring jurisdiction of the person a warrant of arrest can be used, but that is all the warrant accomplishes as relates to jurisdiction.
Now the exercise of jurisdiction is distinctly another matter. That simply means the use of the court's jurisdiction by trying the offender in the manner required by law. The term "jurisdiction" in criminal matters means the power to hear and determine a given case. 22 C.J.S., Criminal Law, § 107, p. 298. Thus the "exercise of jurisdiction" simply means "trying the case."
Commonwealth v. Wolfford, 253 Ky. 593, 69 S.W.2d 1012 (1934) 1014. In
Roberts v. Hickman County Fiscal Court, Ky., 481 S.W.2d 279 (1972) 282, the court, in referring to KRS 64.255 and the salary payable to justices of the peace, speaks in terms of the "exercise of criminal jurisdiction."
The Court of Appeals in Wilson v. Garner, Ky., 516 S.W.2d 333 (1974), held unequivocally that earning the requisite salary means the "trial of criminal cases." (Emphasis added).
In answer to your question, the only criterion for receiving compensation by the magistrates is the trying of criminal cases. If they do not try any cases then they cannot legally receive the money.
Secondly, the mere issuance of warrants will not qualify them for the salary, since that does not constitute the trial of cases or the exercise of criminal jurisdiction.