Request By:
Mr. Joe Tom Haltom
President
Kentucky Sheriffs Association
P.O. Box 20294
Louisville, Kentucky 40220
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
In representing the 120 sheriffs throughout the state of Kentucky, you would like an opinion regarding the sheriffs' duties in the new district court system recently established.
The sheriff is still a fee officer and in many counties the sheriff's sole source of revenue is his fees and commissions. Under the new district court system you say the sheriffs are requested to serve papers without compensation. Your question is whether the sheriff can be constitutionally required to render services without compensation.
When sessions of district court are held in the county courthouse or other county-owned facility, urban county facilities, state-owned facilities, special district facilities, or private facilities, the sheriff is responsible for attending court, keeping order, and providing the same services to district court as are provided to the circuit court. The sheriff shall be compensated for these services in the same manner and at the same rates as for similar services rendered to the circuit court. KRS 24A.140(1) and (2). In connection with the sheriff's fees generally, see the fee schedule for KRS 64.090.
Now you have written that the sheriff is required by district court to serve process without compensation. Actually KRS 24A.140 provides expressly that the sheriff's applicable fee schedules will apply to such court services. There is one catch to this. KRS 64.340 provides that no officer shall be entitled to a fee in misdemeanor cases unless the fee is recovered and collected from a convicted defendant. KRS 64.340 was originally enacted in 1893 [see § 1760, Carroll's Kentucky Statutes.] So the statute is of ancient vintage and has continued effective without any change. See
Bell County v. Minton, 239 Ky. 840, 40 S.W.2d 379 (1931) 381, as specifically relates to the interpretation of what now is KRS 64.340.
This contingency feature of the statute [KRS 64.340] has never been, to our knowledge, declared by the courts to be unconstitutional. It has even been held many times that ex officio duties may be imposed by law on public officials and it will be their duty to perform them without compensation if there is no provision of law to that effect.
Board of Drainage Com'rs v. Alliston, 198 Ky. 310, 248. In
Warner v. Commonwealth, Ky., 400 S.W.2d 209 (1966) 211, the court wrote that compensation is not an indispensable element of an officer, and there is no general constitutional requirement that every officer be compensated. The court, in Warner, held that an attorney (as an officer of the court) fulfilling an uncompensated duty of his public office cannot successfully invoke the argument that the lack of compensation is an illegal taking of the officer's property without just compensation, as mentioned in Amendment 5 of the Constitution of the United States. The point is that a sheriff taking office takes it subject to the contingency of KRS 64.340.
Warner v. Com., Ky., 400 S.W.2d 209, Cert. den., 87 S. Ct. 108, 385 U.S. 858, 17 L. Ed. 2d 85 and 87 S. Ct. 178, 385 U.S. 885, 17 L. Ed. 2d 112.
In summary, the sheriff in serving process and performing other services in district court is compensated under existing applicable fee schedules, subject to the contingency of KRS 64.340 [that a convicted defendant pays the fees in misdemeanor cases]. Such contingency is constitutional.
Specifically, in connection with the sheriff's services in returning process in district court, the fee is $3.00. The serving of an order of court and return is $3.00. The fee for summoning each witness is $1.00. The fee for summoning a garnishee is $3.00. The fee for an arrest or serving process in misdemeanor cases is $7.00. The fee for summoning and attending a jury in a case of forcible entry and detainer, besides fees for summoning witnesses, is $6.00. See KRS 64.090 for various additional fees.