Request By:
James Hite Hays, Esq.
Shelby County Attorney
501 Main Street
Shelby County Courthouse
Shelbyville, Kentucky 40065
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter in which you state that Shelbyville has enacted an ordinance requiring a vehicle license tax. A violation of the ordinance results in a fine and court costs in District Court. Purchase of the license after July 1st of each year results in a penalty payable to the city. In prosecuting violations under the ordinance, the city clerk signs a criminal complaint and a summons is issued on that complaint.
Your first question asks whether a violation of a city ordinance is considered a criminal action so that the style of the action would be Commonwealth of Kentucky versus the violator.
Section 123 of the Kentucky Constitution, the provisions of which were repealed effective January 1, 1976, formerly provided that the style of process shall be, "Commonwealth of Kentucky" and all prosecutions shall be carried on in the name and by the authority of the "Commonwealth of Kentucky." RCr 2.06 provides in part that a warrant of arrest and a summons shall be in the name of the Commonwealth but there is no reference to a requirement that prosecutions shall be carried on in the name and by the authority of the Commonwealth of Kentucky.
However, even before the provisions of Section 123 of the Kentucky Constitution were changed, the Court, in City of Louisville v. Wehmhoff, 116 Ky. 812, 76 S.W. 876, 879 (1903), said that the word "prosecutions" as used in the constitutional provision has been construed to mean only such transgressions as were at common law indictable offenses, or were punishable by imprisonment or other infamous mode. Thus, the style of the prosecution for the violation of a city ordinance punishable by a fine only should be in the name of the city against the accused. KRS 86.110(10), applicable to fourth class cities, provides that the city may fix by ordinance the penalty for the violation of any city ordinance and enforce the same by warrant or summons.
Therefore, in our opinion, the style of the prosecution for the violation of a city ordinance punishable by a fine only should be in the name of the city against the accused.
Your second question asks if the sheriff serving the summons can require payment of the fee in advance or should his fee be paid only upon conviction and payment of the court costs by the defendant.
KRS 24A.140 sets forth the services provided by the sheriff to the district court. Subsection (2) thereof states that the sheriff shall be compensated for such services in the same manner and at the same rates as for similar services rendered to the circuit court. However, KRS 64.340 provides that no officer shall be entitled to a fee in misdemeanor cases unless the fee is recovered and collected from a convicted defendant. This provision is discussed more fully in OAG 78-193, copy enclosed. See also OAG 78-403, copy enclosed, concerning the service of process by sheriffs.
Thus, the sheriff in serving a summons is compensated under the existing applicable fee schedule subject to the contingency of KRS 64.340 that a convicted defendant pays the fees in a misdemeanor case.
Your third question asks if a violator comes into court and pleads guilty, whether the court can require that the person buy his license before accepting his guilty plea.
RCr 9.84(2) provides that, "When the defendant enters a plea of guilty, the court may fix the penalty, except in cases involving offenses punishable by death." In OAG 71-209, copy enclosed, we said that the judge in an inferior court, where the defendant has pleaded guilty, may fix the penalty, involving a penalty of a fine or otherwise, anywhere within the limits of punishment prescribed by law. In 22 C.J.S. Criminal Law § 424(1) it is stated that a guilty plea is a formal criminal proceeding and leaves the court nothing to do but to give judgment and sentence.
Thus, if a person pleads guilty in district court to a violation of the city ordinance requiring payment of a vehicle license tax, the court can only render the judgment and sentence (in this situation the imposition of a fine) within the permissible limits. The court cannot impose other requirements and conditions outside the punishment specifically authorized for violation of the ordinance to which the defendant has pleaded guilty.
If the court decides, for example, to probate the defendant [probation of defendant where sentence imposed is only a fine - see Commonwealth v. Ballinger, Ky., 412 S.W.2d 576 (1967)], it could impose reasonable conditions (KRS 533.030) such as securing the necessary license form from the city, but it cannot fine the defendant for the violation and impose additional requirements and restrictions outside the prescribed penalty limits.
Your last question asks:
"If a violator is willing to plead guilty and purchase the overdue license, can the city impose their own penalty in the form of additional costs per month for overdue license against the violator and with subsequent fine and court costs being imposed on him by District Court?"
Since you have not furnished us with a copy of the municipal ordinance involved, it is somewhat difficult to respond to a question involving the interpretation of that ordinance. Apparently the ordinance imposes a penalty for not having the required license and another penalty if the past due license is purchased after July 1st of each year.
In 53 C.J.S. Licenses §§ 63 and 64, it is stated that the penalty for violation of a license ordinance frequently consists of an additional liability, the amount of which is measured by the amount of the unpaid license fee. Under some statutes a delinquent becomes liable to pay, sometimes in addition to other penalties, a specified rate of interest on the unpaid taxes. The amount of the penalty imposed, however, must be reasonable under the circumstances of the particular situation. Furthermore, the penalty for delinquent payment of a license tax has been held payable when the tax is paid.
We also direct your attention to OAG 78-682, copy enclosed, where we said that the enforcement of city ordinances is generally within the exclusive jurisdiction of the district court and all fees, fines, forfeitures and costs in any district court case shall be collected and accounted for by the circuit court clerk and paid into the state treasury. The 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.192, may have funds returned to it if it qualifies under those statutes.
Hopefully, some of the material set forth immediately above will be of some benefit to you in resolving your fourth question. In absence of a copy of the specific city ordinance involved or more information as to how it is supposed to operate, we can only respond in a general way to your question.