Request By:
Mr. James Terry Hodges
City Attorney
108 North Reed Street
Columbia, Kentucky 42728
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
The city of Columbia is a 4th class city. You ask whether a city policeman (Columbia) may be allowed the $10 arrest fee [see KRS 67.090] in misdemeanor cases, even though sessions of district court are not held in city facilities?
When sessions of district court are held in city facilities, the city police shall be responsible for attending court, keeping order, and providing the same services to district court as are provided by the sheriff to circuit court. Compensation shall be the same as allowed to the sheriff for services rendered to the circuit court. KRS 24A.140(3).
City policement in 4th class cities have the same power of arrest for offenses against the state as a sheriff. Such policemen shall be entitled to the same fees allowed sheriffs, but the city legislative body may, by ordinance, direct that the fees be paid into the city treasury when the chief of police and the other members of the police force are employed on a salary. KRS 95.740(1) and (2).
It is our opinion that KRS 24A.140, where the district court is held in city facilities, requires the city policemen to wait on the district court. However, that statute in no way militates against KRS 95.740. Here KRS 24A.140(3) has no application, since district court is not held in city facilities. Thus the city policeman making such an arrest in a misdemeanor case may be allowed the arrest fee. If the city policemen are on a salary, the city legislative body may be ordinance direct that such fees be paid into the city treasury.
Such fee can be collected and paid to the arresting officer under these conditions: (1) The defendant is convicted; (2) The defendant, upon a judgment of conviction and costs being entered, pays the fee into the court clerk; (3) Then, if items (1) and (2) are satisfied, the clerk pays over the fee to the Department of Finance along with various fees, fines and costs paid into the state treasury through the Department of Finance pursuant to KRS 30A.190. See KRS 64.340 and 30A.090(2). Also see
Bell County v. Minton, 239 Ky. 840, 40 S.W.2d 379 (1931).
Your second question involves the purchase of real estate for the city of Columbia. KRS 86.110(3) requires a city purchase of land to have a vote of "two-thirds (2/3) of the members of the council." (Emphasis added). Columbia's city council consists of six members and the mayor. The council voted three for and three against the purchase. The mayor voted to break the tie. The mayor is permitted to break ties under KRS 86.070(3).
It is our opinion that KRS 86.110(3) required in this situation an affirmative vote of four of the membership of the council. Only three voted affirmatively, thus the proposed purchase failed to pass. The mayor's vote, as an attempt to break the tie, was of no validity, since the statute requires an affirmative vote of two-thirds of the members of the council. The mayor is not "a member of the council" in the strict statutory sense. See KRS 86.070 and