August 9, 1995

ATTORNEY GENERAL OPINION NO. 95- 81

Leigh Hood

Ford County Attorney

Ford County Government Center

100 Gunsmoke

Dodge City, Kansas 67801

Re:	Fees and Salaries--Fees in All Counties and Salaries in Certain Counties--Fees of All Sheriffs; Service of Process for Kansas Department of Human Resources

Synopsis:	A county sheriff may only charge the $1.00 fee allowed by K.S.A. 28-110 and actual and necessary mileage allowed by K.S.A. 75-3203a when serving subpoenas issued pursuant to K.S.A. 44-714(h). Cited herein: K.S.A. 28-101; 28-
110; 44-611; 44-625; 44-714; 75-3203a.

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Dear Mr. Hood:

As Ford county counselor, you request our opinion on whether the Ford county sheriff must abide by the schedule of fees set out in K.S.A. 28-110 when the sheriff serves subpoenas and other process for the Kansas department of human resources, an executive agency of the state.

You inform us that it is the policy of the Ford county sheriff's department to charge $15.00 for delivering all subpoenas and other process for the Kansas department of human resources. It is apparently the county's position that thesheriff need not comply with K.S.A. 28-110 unless serving subpoenas and other process in connection with a district court action. K.S.A. 28-110 states in pertinent part:

"The sheriffs of each county in the state shall charge for the services required by law to be performed by them the following fees:

"Serving or executing and returning any writ, process, order or notice, or tax warrant, including a copy of the same, whenever a copy is required by law, except as otherwise provided, for the first person . . . $1.00. . . . The sheriff shall charge, for miles actually and necessarily traveled each way in serving or endeavoring to serve any writ, process, or order, venire, notice or tax warrant, mileage in an amount set in accordance with K.S.A. 75-3203a, and amendments thereto, and rules and regulations adopted pursuant thereto. No mileage shall be charged when the distance does not exceed one mile. . . . If the writ contains the names of more than one person, no mileage shall be taxed or allowed and no person shall be required to pay any mileage unless at the time of making returns the sheriff makes and files with the returns, or as a part thereof, a statement showing the distance actually and necessarily traveled in making service on the first person named by the sheriff and the distance actually and necessarily traveled from the place of making the first service to the place of making service on the second person named by the sheriff and so on for each person served. If more than one process is served in the same case or on the same person, not requiring more than one journey from the office, the sheriff shall charge mileage for one service only. If more than one process for the same person, or in the same case, is issued and is in the hands of the sheriff at one time, it shall be the duty of the sheriff to make service of the processes, if possible, on the one trip. . . ." (Emphasis added).

The statute applies to those services which the sheriff's department is required by law to perform. See Attorney General Opinion No. 79-117. The issue thus becomes whether the law requires the sheriff to make the service in question.

K.S.A. 44-611 and 44-635 give the secretary of human resources the power to issue subpoenas. K.S.A. 44-714(h) provides:

"Upon request, service of subpoenas shall be made by the sheriff of a county within that county, by the sheriff's deputy, by any other person who is not a party and is not less than 18 years of age or by some person specially appointed for that purpose by the secretary of human resources or the secretary's designee." (Emphasis added).

The language of K.S.A. 28-110 allows $1.00 and actual mileage to be charged for "Serving or executing and returning any writ, process, order or notice, or tax warrant. . . ." (Emphasis added). The term "process" has been defined by the Kansas Supreme Court as a "'warrant, writ, order, mandate or other formal writing, issued by some court, body or official having authority to issue process. . . .'" (Emphasis added). State v. Sodders, 255 Kan. 79, 82 (1994), citing State v. Hennessee, 232 Kan. 807 (1983). A subpoena issued by the Kansas department of human resources is a formal writing issued by a body having the authority to issue it. We therefore believe such subpoenas are included in the class of "any writ, process, order or notice, or tax warrant" as set out in K.S.A. 28-110.

K.S.A. 28-101 restricts fees charged by sheriffs in situations wherein the service is required by law:

"That the officers and persons herein mentioned except in counties having a population of 90,000 or over, shall be entitled to receive for their services the fees and compensation herein allowed and no other,except as such as may be otherwise provided by law." (Emphasis added).

We recognize that most, if not all, authority discussing K.S.A. 28-110 focuses on service in connection with court cases. However, there is no language in chapter 28, article 1 which restricts its application only to those subpoenas and process associated with actions in courts or excepting service for executive agencies. Rather the language of K.S.A. 28-110 recognizes that process may be issued by bodies or officials other than the courts. "When a statute is plain and unambiguous the court must give effect to the intention of the legislature as expressed, rather than determine what the law should or should not be." State v. Sims, 254 Kan. 1, 10 (1993).

K.S.A. 44-714(h) requires a county sheriff to serve subpoenas and other process for the Kansas department of human resources. Because such process is a service required by law, the sheriff may not charge a fee other than that prescribed in K.S.A. 28-110, which allows $1.00 for service of this kind and any actual and necessary mileage over one mile.

Very truly yours,

CARLA J. STOVALL

ATTORNEY GENERAL OF KANSAS

Theresa Marcel Nuckolls

Assistant Attorney General

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