Request By:
Mr. Harold E. Howard
Harlan County Sheriff
P.O. Box 978
Harlan, Kentucky 40831
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
Your letter refers to OAG 79-372 where this office concluded that a sheriff, deputy sheriff, or any other peace officer entitled to the fee for serving criminal process cannot legally demand or require the complaining party to pay the fee in advance of the serving of the process. In your opinion OAG 79-372 is not correct because it fails to take into consideration the fact that the applicable statute (KRS 64.090), as amended effective January 2, 1978, provides that "Sheriffs may charge and collect for the following services the following fees: * * * Serving process or arresting the party in misdemenaor cases, to be paid by the plaintiff . . . $10.00." (Emphasis supplied by yourself.) You maintain that KRS 64.090, as amended, has by implication repealed KRS 64.340 which was relied upon in OAG 79-372.
The phrase "Sheriffs may charge and collect," does not support the conclusion that a sheriff may require payment in advance for service of process in a misdemeanor case. That phrase appeared in the predecessor statute to KRS 64.090 (see Kentucky Statutes 1726) as far back as 1893. § 1726 provided in part that, "Sheriffs shall be allowed to charge and collect the following fees: * * * For serving the process, or arresting the party in such cases, to be paid by the party convicted. . . $ .50." (1893, c. 226, p. 1131 & 3.) In 1942, KRS 64.090 provided in part as follows: "Sheriffs may charge and collect, for the following services the following fees: * * * Serving process or arresting the party in misdemeanor cases, to be paid by the party convicted . . . $ .05."
The statute was again amended in 1952 to provide in part as follows: "Sheriffs may charge and collect for the following services the following fees: * * * Serving process or arresting the party in misdemeanor cases, to be paid by the plaintiff . . . $6.00." While, as you will note, the fee was set at $6.00, the statute also provided that the fee was to be paid by the plaintiff, a change, which as will be noted later, makes little if any sense. As you have pointed out, the most recent amendment to KRS 64.090 provides in part that sheriffs may charge and collect $10.00 for serving process or arresting the party in misdemeanor cases, to be paid by the plaintiff. Thus, while KRS 64.090 has been amended numerous times over the years, generally to increase the fees allowed the sheriff for various services, and while the statute has also been renumbered, the phrase stating that "sheriffs may charge and collect," or a provision to that effect, has been in the statute since 1893.
Although KRS 64.090 permits the sheriff to charge and collect a fee for the service of process in a misdemeanor case, that statute does not authorize him to an advance payment for such a service. Furthermore, his right to the fee is contingent upon the provisions of KRS 64.340 being satisfied. KRS 64.340, originally enacted in 1893 as Kentucky Statute § 1760 (see 1893 Acts, c. 226, p. 1131, § 37) provides as follows:
"No officer shall be entitled to any fee in a proceeding for a misdemeanor unless the fee is recovered and collected from the defendant, in which case the fee allowed and taxed shall be the same as for similar services in civil cases."
In
Bell County v. Minton, 239 Ky. 840, 40 S.W.2d 379 (1931), the Court dealt with the interpretation of what is now KRS 64.340. This particular statutory provision, although of ancient vintage, has continued in effect without any change for approximately eighty-seven years. Furthermore, to our knowledge, the contingency aspect of KRS 64.340 has never been declared by the courts to be unconstitutional.
As previously indicated, KRS 64.090 was amended a number of years ago to provide that sheriffs may charge and collect for serving process or arresting the party in misdemeanor cases a fee which is to be paid by the plaintiff. If the phrase "to be paid by the plaintiff" is literally construed, the sheriff would not receive any fee for serving process as the plaintiff in most misdemeanor situations involving the sheriff is either the state or the county. KRS 453.010 renders the Commonwealth immune from costs in criminal matters which it prosecutes. Furthermore, there is no statute requiring or authorizing the county to pay such fees and costs.
Assuming that the convicted defendant is to pay the fees for serving process, as was specifically provided in KRS 64.090 prior to 1952, and since the statute does not authorize the advance payment of such fees, we again are confronted with the provisions of KRS 64.340. The contingency aspect of that statute is still valid and, therefore, the sheriff can only collect the authorized fees in misdemeanor cases, set forth in KRS 64.090, under the following conditions: (1) the defendant is convicted; (2) the defendant, upon a judgment of costs being entered, pays the fee into the court clerk; (3) the court clerk, assuming conditions (1) and (2) are satisfied, pays over the fee to the sheriff.
Finally, in response to your comment concerning repeal by implication, we direct your attention to
Fiscal Court of Jefferson County v. City of Anchorage, Ky., 393 S.W.2d 608, 612 (1965), where the Court said in part:
"We acknowledge and re-affirm the familiar policy of law that looks with disfavor on repeals and amendments by implication and recognizes them only when they are clear and when it is necessary in order to carry out the obvious intent of the legislature."
KRS 64.090 has not repealed by implication the provisions of KRS 64.340.
We have reexamined OAG 79-372 and we have again analyzed the factual situation set forth in your letter. In our opinion, OAG 79-372 correctly sets forth the law applicable to the question of whether the sheriff can legally demand in advance the payment of the fee for service of process in a misdemeanor case.