Kansas Attorney General Opinion 1992-084

ROBERT T. STEPHAN
ATTORNEY GENERAL
June 30, 1992
ATTORNEY GENERAL OPINION NO. 92- 84
Gene Barrett
Cherokee County Attorney
Cherokee County Courthouse
Columbus, Kansas 66725
Re: Fees and Salaries -- Fees in All Counties and
Salaries in Certain Counties -- Certain Officials
Not to Receive Witness Fees; City Police Officers
Synopsis: A city police officer is not entitled to a witness
fee for appearing in district court on behalf of
the state when the district court is in a city
other than the one where the officer is employed,
but still within the same county. To the extent it
conflicts with the principles stated herein,
Attorney General Opinion No. 75-266 is withdrawn.
Cited herein: K.S.A. 28-126.
Dear Mr. Barrett:
As Cherokee county attorney, you request our opinion as to
whether a city police officer is entitled to a witness fee for
appearing in district court on behalf of the state when the
district court is in a city other than the one where the
officer is employed, but still in the same county.
K.S.A. 28-126 addresses this issue by stating:
"No person holding any office or appointment
under any county, city or other municipality
shall be paid any witness fees in any case
whatsoever when such person is a witness for

the state of Kansas, county, city or other
municipality when such state, county, city
or other municipality is a party to said
suit; nor shall any sheriff or his
undersheriff or deputies, while attending
court as an officer, claim or be paid any
witness fees in such cases: Provided, That
this act shall not apply where such witness
is required to attend court at a place other
than where he resides or is employed, nor
shall it apply to any such witness who is
not a regularly employed and salaried
officer or employee of any such county, city
or other municipality."
The Kansas Supreme Court interpreted similar statutory
language when deciding whether Kansas City, Kansas city police
officers could receive compensation for being witnesses for
the state in Wyandotte county:
"The statute should be regarded as one
affecting the compensation of public
officers rather than as one relating to
witness fees. The legislature may give or
withhold compensation to a class of public
officers in any measure it sees fit, without
violating any constitutional principle of
equality, and a person accepting an office
must take it with all its limitations. In
this instance the legislature merely cut off
pay for time consumed by the officers
referred to in attending court as witnesses,
believing that sufficient recompense was
already made by way of official salary or
fees. By taking one of the designated
offices a person assents to this condition
and relinquishes all right to fees as a
witness for the state or the municipality of
which he is an officer." Claflin v.
Wyandotte County, 81 Kan. 57 (1909).
A few years later the Kansas Supreme Court in Anderson v.
Shawnee County, 91 Kan. 363 (1914) reaffirmed the analysis
stated in the Claflin case.
"The constitutionality of the statute was
affirmed in the case of Claflin .
Wyandotte County, 81 Kan. 57, 105 Pac.
19. In the same case it was held that the
statute is one affecting the compensation of

public officers and not one relating to
witness fees, the legislative purpose being
to cut off pay for attending court when
recompense for the time consumed is made by
way of official salary or fees. The statute
governs in all cases to which the reason for
its enactment extends. It is peculiarly
applicable to police officers who may be
called as witnesses in state cases.
Although such officers are chosen by local
municipal authority, the performance of
their duties is not a matter of local
concern only. They are not mere servants
and agents of the city, but are appointed
and act for the benefit of the public at
large. They are essentially state
functionaries. (The State, ex rel. v.
Hunter, 38 Kan. 578, 583, 17 Pac. 177;
Peters v. City of Lindsborq, 40 Kan.
654, 656, 20 Pac. 490; 1 Dillon,
Municipal Corporations, 5th ed., § 103.)
"The plaintiff's salary as a police officer
fully compensated him for that portion of
his time occupied in attending court as a
witness for the state."
The Kansas Supreme Court has interpreted this statute so that
the Baxter Springs city police officer in your example would
not be allowed a witness fee for appearing in the district
court in Columbus. We believe Attorney General Schneider's
opinion no. 75-266, which fails to cite these cases, is in
error.
Very truly yours,
ROBERT T. STEPHAN
ATTORNEY GENERAL OF KANSAS
Mary vane Stattelman
Assistant Attorney General
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