Request By:
Mr. Joe Greene
Jefferson County Sheriff
6th Floor
Fiscal Court Building
6th and Court Place
Louisville, Kentucky 40202
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your specific question is whether or not the sheriff is entitled to retain the mileage fee and the process fee in the event that the paper is returned to the court as "unable to locate" ?
KRS 64.080 provides generally an advance fee for the sheriff, not to exceed $5.00, for execution of process in civil cases. However, that statute requires actual service to entitle the sheriff to such fees. In fact the statute provides that any portion of the deposit not used to pay fees for process actually executed shall be returned to the party who paid it.
KRS 64.095 provides a mileage fee for the sheriff's serving certain process. The payment of the mileage fee is collectible at the time of delivery of such notice, subpoena or summons.
In OAG 74-287, copy enclosed, we were of the opinion, as we are now, that the statute [KRS 64.095] implicitly means that the mileage must be paid to the sheriff or deputies for the "actual and necessary" mileage traveled in the service of process. See Funk v. Milliken, Ky., 317 S.W.2d 499 (1958), which speaks of "travel involved", and no restriction as to process actually served. See KRS 23A.200(2)(i), providing a mileage fee of fourteen cents ($0.14) per mile for service of process in civil cases. This in effect amends KRS 64.095. See the fourteen cents (14 ) per mile for mileage for service of process for civil cases in district court, as provided in KRS 24A.170(2)(h).
We are of the opinion that where the affidavit of the sheriff supports the idea that specific trips to serve process were actually made and necessary [and where the circumstances are outlined as to the reason for failure to serve the process on such trip or trips] , such advance mileage should be credited to the sheriff's account even though the paper is returned "unable to locate. "
The distinction between the process fee statute and the mileage statute is that the process fee statute is expressly conditioned upon actual service of process.
For services in summoning grand and petit jurors and performing his duties under KRS Chapter 29A, the sheriff shall be allowed, for each person so summoned, and paid out of the state treasury for constructive service the sum of $1.50 and for personal service the sum of $3.00. But this is not collected in advance.