Request By:
Arnold Turner, Jr., Esq.
Floyd County Attorney
Floyd County Courthouse
Prestonsburg, Kentucky 41653
Opinion
Opinion By: Steven L. Beshear, Attorney General; Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter raising questions concerning the collection of court costs on behalf of a city of the sixth class.
You state that the city of Wheelwright, a city of the sixth class, has employed a city marshal who in the performance of his duties has issued citations and made arrests. The city council maintains that the city is entitled to $10.00 in costs for each citation and arrest. At the present time the district court is not assessing costs on citations but a $10.00 fee is being added to the costs for convictions arising out of arrests by the sheriff or his deputies.
Your questions are whether the district court may assess court costs to be paid to a sixth class city for citations issued by its marshal resulting in convictions and whether the district court may assess fees or costs to be paid to a city of the sixth class for arrests made by its marshal which result in convictions.
Your letter does not set forth any statutory citations, legal principles or even theories in support of the city's allegation that it is entitled to a $10.00 fee for each citation issued or arrest made by its "marshal" which results in a conviction in the district court. Furthermore, KRS 95.790 and 95.800, dealing with the city marshal in a sixth class city and authorizing him to receive fees for service of process, were repealed as of July 15, 1980. While a sixth class city is authorized to establish and maintain a police department there is currently no such position as a city marshal.
In connection with court costs we direct your attention to 20 Am. Jr. 2d Costs § 5 where the following appears:
"Under the rule stated in numerous cases, the right to recover costs exists only by virtue of statutory authority or a rule of court authorized by statute. Costs are thus 'the creatures of statute.' Courts have no inherent power to award costs. They have no power to award costs on merely equitable grounds or as an incident of their power over the parties or the subject matter of the litigation. A party claiming a judgment for costs against his adversary must bring himself within the operation of some statutory provision."
In addition, costs are defined in 20 Am. Jur. 2d Costs § 1 as the statutory allowances to a party to an action for his expenses incurred in the action. Costs are the sums prescribed by law as charges for the services enumerated in the fee bill. "They have reference only to the parties and the amounts paid by them, and only those expenditures which are by statute taxable and to be included in the judgment fall within the term 'costs.'" As to the terms "fees" and "costs," the term "fees" is generally applicable to the items chargeable by law between the officer or witness and the party whom he serves, while "costs" has reference to the expense of litigation as between the parties.
KRS 30A.090 requires the court clerk to collect the filing fee fixed by law, all other fees required by law or court rule or order and any charges which have accrued during the progress of the action. KRS 30A.100 requires the clerk at the termination of an action to assess the costs of each party and file it with the case. KRS 24A.170 sets forth the fees and costs for civil cases in district court while KRS 24A.175 sets forth the court costs for criminal cases. Note the circumstances dealt with in KRS 24A.175(2) relative to no court costs for a parking citation.
For your information and consideration we are enclosing a copy of OAG 82-140, dealing in part with fees earned by the sheriff for serving process or arresting a party in a misdemeanor case and the circumstances under which he can be paid for such services. Not only does the office of city marshal in a sixth class city no longer exist but police officers of such cities are not permitted to earn fees for the service of process. Even if the police officer could earn fees he could not retain them for his personal use as KRS 83A.070(4) states, "All fees and commissions authorized by law shall be paid into the city treasury for the benefit of the city and shall not be retained by any officer or employe."
In OAG 82-6, copy enclosed, at page three, we said a city does not receive fines imposed by the district court, and collected by the circuit court clerk but the city, pursuant to KRS 24A.190 through 24A.193, may have funds returned to it if it qualifies under those statutes. Furthermore, as to costs and fees, there is no statutory authority for a district court to make the assessments contemplated in your letter on behalf of a sixth class city in connection with convictions resulting in that court.
Thus, it is our opinion that in the absence of any statutory authorization to do so, a district court may not assess court costs, to be paid to a city of the sixth class, for citations issued by its police force and for arrests made by its police force, where those citations and arrests result in convictions in the district court. Only those costs and fees specifically authorized by statute may be recovered and recovery is limited to the person or entity so authorized.