Request By:
Mr. Laurin A. Morris
Sheriff of Todd County
P.O. Box 557
Elkton, Kentucky 42220
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter raising several questions, the first of which involves the following fact situation:
"When we have a civil summons with complaint, petition or order, etc. attached, we bill the attorney for $3.00 for the summons and $3.00 for the petition, order, complaint, etc., in addition to mileage. The local attorneys say that this fee should be only $3.00 for both documents combined."
In view of the disagreement between your office and the local attorneys you seek the opinion of this office concerning the matter.
As we stated in OAG 75-576, copy enclosed, Civil Rule 4.04 was amended, effective July 1, 1975, to require service of the complaint (or other initiating document) along with the summons. Thus, the summons and complaint (or other initiating document) must now be served together.
KRS 64.090, as amended, provides that the sheriff may now charge and collect the fee of $3.00 for executing and returning process. However, we still cannot find any statute authorizing an additional fee for serving a copy of the complaint or other initiating document. In absence of an express statutory provision covering an additional fee for serving the complaint, and since the Civil Rule requires that the summons and complaint be served together, the sheriff has no statutory authority to charge an additional fee for serving the complaint or other initiating document.
Again, as we said in OAG 75-576, no officer, including the sheriff, can demand or receive for his services any other or greater fee than is allowed by law. If the sheriff is to be paid for serving this extra document, the General Assembly will have to enact specific legislation relating thereto. Officers cannot be paid for their services unless express provisions of statutes so authorize. See KRS 64.410.
Your next question asks:
"When the sheriff's office serves a summons on a witness for the defense, who is liable for payment of our fee and mileage? "
KRS 64.095 deals with the sheriff's mileage allowance in connection with serving a notice, subpoena or summons and subsection (2) of that statute provides:
"The sheriff, deputy sheriff or constable shall be paid the mileage by the litigants in any criminal or civil action at the time of the delivery of such notice, subpoena or summons. "
Thus, the payment of the mileage fee is collectible at the time of delivery of such notice, subpoena or summons. There is also a provision in the statute that if the litigant is financially unable to make such payments, he may take the oath in "forma pauperis." See OAG 78-72, copy enclosed, at page one.
KRS 64.090 provides that the sheriff may charge and collect $2.00 for summoning each witness. However, KRS 64.340 states that no officer shall be entitled to a fee in a misdemeanor case unless the fee is recovered and collected from a convicted defendant. See OAG 78-193, copy enclosed, at page two. Furthermore, if a defendant is convicted of a felony, the fee for serving a summons on a witness for the defense, if properly taxed in the costs, is chargeable against the defendant and shall be collected by process as in civil cases. See KRS 453.020(2) and Frazier v. Toliver, 204 Ky. 79, 263 S.W. 713 (1924). If the service to which you refer is performed in a civil case, then usually the sheriff's fee for summoning a witness would be taxed as part of the costs and assessed against the unsuccessful party. See KRS 453.050.