Request By:
Mr. Marvin R. O'Koon
Assistant County Attorney
1129 Kentucky Home Life Building
Louisville, Kentucky 40202
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your problem was stated in your recent letter as follows:
"It has come to our attention in Jefferson County that because of the Judicial Amendment and the unification of the court system, there will be no further need for the constables to service the magisterial courts.
"The problem that has been created is that the Judicial Amendment did not abolish the constable position and thus it must remain on the ballot. Our problem is that we do not wish to pay someone for being an elected official with no task.
"We request an opinion as to whether the constitutional job of constable is one that remains and further, if people are elected to the position, do we by law have to pay them a salary and if so, what are the salary limits."
S.B. 15 [Ch. 14, Section 56, 1976 Extraordinary Session] amends KRS 70.430, effective January 2, 1978. Under the amendment the constables will be relieved from their previous duty of serving as bailiffs in the justices' courts. Such courts continue in existence until January 2, 1978. S.B. 183 [Ch. 84, 1976 session]. As you point out, the Judicial Amendment did not abolish the constable position. See § 99, Kentucky Constitution. Therefore that constitutional office is still in existence and will be in existence in 1978. Any qualified person can run for that office.
Now suppose in 1978 Jefferson County has elected constables. You ask about a salary for them.
KRS 64.200(1) requires the fiscal court to provide each constable with a salary of $9,600 per year, payable in monthly instalments out of the county treasury "for the performance of the duties of his office." (Emphasis added).
In 1978 the constables in Jefferson County can serve process, but only if a court places process in their hands. KRS 70.350. Thus the constables will be left with little to do. Under these circumstances, if the fiscal court pays them the salary called for in KRS 64.200 it would raise a serious constitutional and statutory problem. Section 3 of the Kentucky Constitution and KRS 64.410 prohibit the paying over of tax money to a citizen except in consideration of public service performed. Wilson v. Garner, Ky., 516 S.W.2d 333 (1974). In simple words, a person cannot be paid out of the public treasury for work not performed. To the extent that any salary paid out in 1978 and thereafter to constables under KRS 64.200 would not reflect payment for services rendered, such payment would be unconstitutional and in violation of KRS 64.410.
Fees authorized for constables are indicated in KRS 64.190. For any other services, the same fees allowed sheriffs for similar services are allowed constables. The fee schedule of KRS 64.190 is rather revealing of the legislative priority afforded constables. A constable, for making arrests for violations involving a motor vehicle on the public highways, is provided a fee of fifty cents (50 ). A sheriff would get $7.00 for the same thing. KRS 64.090.
Although the constitution provides that a constable shall be elected in each justice's district to serve a four year term, this is an office that has steadily declined in importance. A recent study indicates that several counties no longer elect the requisite number of constables. Less than a fourth of twenty-one counties reporting had the required number. In four of the counties there were no constables. See Informational Bulletin No. 99, Legislative Research Commission. One national authority on police systems concluded that in America the constable has outlived his usefulness and that his law enforcement activities have lapsed. 52 K.L.J. 29, 32.
The fact that 1978 will find constables with little or nothing to do may create a constitutional problem of another dimension. The court established, in Covington Bridge Commission v. City of Covington, 257 Ky. 813, 79 S.W.2d 216 (1935) 220, that an office created by the constitution cannot be divested by the legislature of its original and inherent functions. However, that strict proposition was somewhat watered down with the later rule that the legislature can create or take away functions relating to a constitutional office, but it cannot strip such an office of all duties and rights so as to leave it an emply shell. This simply means that the legislature cannot abolish a constitutional office directly or indirectly by failure to provide substantial statutory functions. Johnson v. Commonwealth, 291 Ky. 829, 165 S.W.2d 820 (1942) 829. The courts have never had the opportunity to determine precisely just what an "empty shell" situation would be.