Request By:
Honorable John M. Lawrence
District Judge
Tenth Judicial District
P.O. Box 189
Bardstown, Kentucky 40004
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You have a problem concerning a reciprocal agreement among sheriffs involving the serving of criminal summonses and arrest warrants. Your letter reads:
Criminal summonses and arrest warrants issued from the District Court in County A (involving residents of County B) are delivered to the Sheriff of County A for execution. The Sheriff of County A forwards same to the Sheriff of County B to be served or executed. The Sheriff of County B returns the executed documents to the Sheriff of County A who in turn delivers them to the Clerk of the Court in County A along with a statement of services for which the fees are payable to the Sheriff of County A. And vice versa.
May the clerk properly honor such reciprocal agreements among the sheriffs, and pay fees to the sheriff of the county where the papers were issued but not actually served?
The sheriffs' fee schedule, KRS 64.090, as amended in the 1982 session, contains no provisions relating to the practice suggested.
It is axiomatic under the law that a sheriff cannot receive less than the statutes permit for performing a legal service nor can he receive more than the law permits. Hodges v. Daviess County, 285 Ky. 508, 148 S.W.2d 697 (1941) 699. The sheriffs' fees are fixed by statute and cannot be changed by the sheriffs. Further, §§ 3 and 171 of the Kentucky Constitution require that public money can only be given to men in consideration of public services. Talbott v. Thomas, 286 Ky. 786, 151 S.W.2d 1 (1941). Thus the fee schedule of KRS 64.090 is impressed with the public nature and purpose expressed in the Constitution.
In view of the above analysis, it is our opinion that a sheriff may constitutionally receive a fee for services (here serving legal process) which are and fully rendered by him. He cannot legally receive a fee which is actually earned by a sheriff in another county. Thus we know of no legal basis upon which the court clerk could honor such reciprocal agreements for sheriffs' fees. There is no statute authorizing such fee swapping. Moreover, if there were such a statute, it would be unconstitutional, as pointed out above, under §§ 3 and 171.
The clerk of the court (county A) issuing the process is required to pay the sheriff in B county, which sheriff actually served the process. However, note that in misdemeanor cases, under KRS 64.340, the fee cannot be collected from the defendant unless the defendant is convicted and he pays the fee over to the court clerk. KRS 453.020 provides in effect that a defendant is responsible for no costs in a criminal action unless he is convicted. Frazier v. Toliver, 204 Ky. 79, 263 S.W. 713 (1924) 714. Thus where the defendant is not convicted, whether it is a misdemeanor or felony charge, we are unaware of any statutory means by which sheriff B can collect his fee. This is a hiatus which only the legislature can remedy.