ENOCH GEORGE, Sheriff of Maury       )
County, Tennessee,                   )
                                     )    Maury County Circuit
      Plaintiff/Appellee,            )    No. 7285
                                     )
VS.                                  )
                                     )    Appeal No.
ED HARLAN, County Executive of Maury )    01A01-9712-CV-00692
County, Tennessee,

      Defendant/Appellant.
                                     )
                                     )
                                     )
                                                        FILED
                                                        September 30, 1998
                 IN THE COURT OF APPEALS OF TENNESSEE
                                                   Cecil W. Crowson
                            AT NASHVILLE
                                                 Appellate Court Clerk
          APPEAL FROM THE CIRCUIT COURT OF MAURY COUNTY
                     AT COLUMBIA, TENNESSEE

               HONORABLE JAMES L. WEATHERFORD, JUDGE



Robert L. Holloway, Jr., #6535
FLEMING, HOLLOWAY, FLYNN & SANDS
207 West 8th Avenue
Columbia, Tennessee 38401
ATTORNEY FOR PLAINTIFF/APPELLEE


William H. Dale, Jr.
611 North Main Street
Columbia, Tennessee 38401

Thomas W. Hardin, #2873
HARDIN & PARKES
102 West 7th Street
Columbia, Tennessee 38401
ATTORNEYS FOR DEFENDANT/APPELLANT



                            AFFIRMED AND REMANDED.



                                     HENRY F. TODD
                                     PRESIDING JUDGE, MIDDLE SECTION




CONCURS:
BEN H. CANTRELL, JUDGE

CONCURS IN RESULT:
WILLIAM C. KOCH, JR., JUDGE
ENOCH GEORGE, Sheriff of Maury       )
County, Tennessee,                   )
                                     )                Maury County Circuit
      Plaintiff/Appellee,            )                No. 7285
                                     )
VS.                                  )
                                     )                Appeal No.
ED HARLAN, County Executive of Maury )                01A01-9712-CV-00692
County, Tennessee,                   )
                                     )
      Defendant/Appellant.           )



                                    OPINION

       The County Executive of Maury County has appealed from a judgment of the Circuit

Court of Maury County authorizing the Sheriff of Maury County to employ additional assistants

and to increase the wages of some existing assistants.



       THE PLEADINGS

       On August 13, 1996, the Sheriff filed this suit against the County Executive and County

alleging:

       1.      He was last elected in August, 1994.

       3.      The suit is filed pursuant to T.C.A. §§ 8-20-101 et seq.

               5-16. Details of operation of the Sheriff’s office.



       The complaint prayed for the following relief:

       2.      Fifteen additional employees

       3.      Pay for jailors and transportation officers pursuant to “Schedule of Pay Ranges

               for Sheriff’s Department.

       4.      Pay for nurse pursuant to Grade 27, Step D of the Schedule of Pay Ranges for

               Sheriff’s Departments.

       5.      Fee for Sheriff’s attorney pursuant to T.C.A. § 8-20-107.




                                              -2-
       The answer specifically admitted that the Sheriff works full time and cannot personally

discharge all of the duties of his office. It denied that the requested additional personnel or

requested pay increases were required or justified and denied that the Sheriff was entitled to any

of the requested relief.



        By agreed order, the County was dismissed.



        The final order of the Circuit Court provided:

                        1.      The Plaintiff is granted three (3) additional
                deputies for the night shift, two (2) additional deputies for the
                day shift and two (2) court officers. Each of these additional
                positions shall be paid at the minimum salary per year per
                employee of $21,957.52, or at the Grade and Step applicable
                according to the most recent “Schedule of Pay Ranges”,
                whichever is greater, as produced by the Director of Accounts
                and Budgets for Maury County.

                       2.      The position of registered nurse at Maury
                County Sheriff’s Department shall be paid at Grade 21, Step
                D, according to the “Schedule of Pay Ranges” as produced by
                the Director of Accounts and Budgets for Maury County,
                Tennessee.

                        3.     All jailors and transportation officers shall be
                paid at Grade 9 of the “Schedule of Pay Ranges” as produced
                by the Director of Accounts and Budgets for Maury County,
                Tennessee, except that transportation officers shall be paid at
                a minimum Step C level of Grade 9.

                        4.      That attorney’s fees and expenses for the
                Plaintiff are approved in the amount of $26,703.93 incurred
                by the Sheriff relative to this litigation are also approved.


Historical Background

       The State Constitution, Art. VII, § 1, provides for a county Sheriff whose term of

office is 4 years. Originally, the office of sheriff was a one-man operation with limited

duties for performance of which the sheriff was entitled to collect specified fees as his

compensation. Statutes were passed fixing the annual pay of sheriffs who were required to

pay into the county treasury any surplus of fees not used for salary and expenses. Still other

statutes empowered circuit courts to approve the employment of deputies or assistants by



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sheriffs who could not, by working full time, perform all of their duties, and to fix the pay

of such employees. Still other statutes authorized county legislative bodies to appropriate

county funds to supply a shortage of fees to pay the expenses of the sheriff and/or to provide

non statutory services.



        Appellant’s First Issue is:

                I.     Whether the trial court erred by awarding pay
                increases to the nurse, jailers and transportation officers
                currently employed at the Maury County Sheriff’s Department
                because the plaintiff did not devote his entire time to the
                performance of his statutory duties.


        The answer admits that the Sheriff works full time and cannot personally discharge

all of the duties of his office.


        T.C.A. § 8-8-201 lists 34 statutory duties of sheriffs, one of which is:

        “Such other duties as may be imposed by law. However, no distinction is made for

ex officio duties.



        T.C.A. § 8-24-102 provides for a fixed salary for sheriffs.


        T.C.A. § 8-24-103 provides:

                        (a)(1) The County Legislative Body in any County
                shall make the necessary appropriation and pay to the sheriff
                of its county the maximum salary fixed by § 8-24-102, and
                the authorized expenses fixed by law for the operation of the
                sheriff’s office including the salary of all the sheriff’s deputies
                as authorized pursuant to Chapter 20 of this Title.


        Apparently, the county legislative body includes in its budget expenses of certain

specified services by the Sheriff’s Department which services are conceived to be “ex

officio,” i.e., not required by statute and therefore wholly within the control of the county

legislative body independent of any statutory jurisdiction of the Circuit Court.




                                       -4-
       Appellant does not define the expression, “ex officio duties.” Apparently, it refers

to non-statutory duties. However, the record does not disclose what percentage of the time

of the sheriff or his employees is spent in performance of ex officio duties.



       Upon review of the record on appeal, this Court is not able to determine that the

evidence preponderates against the finding that the sheriff’s heavy work schedule included

enough time spent in performing his statutory duties to satisfy the requirement that he

devotes his “full working time” to the duties of his office. TRAP Rule 13(d).



       No merit is found in appellant’s first issue.


Appellant’s Second Issue is:

               II.    Whether the trial court erred by awarding pay
               increases to the nurse, jailers and transportation officers
               currently employed at the Maury County Sheriff’s Department
               because the trial court did not authorize the employment of
               the nurse, jailers and transportation officers.


       Apparently, the appellant conceives that the jurisdiction of the Circuit Court to

authorize salaries is limited to the salaries of additional deputies or assistants whose

employment is authorized in the same order.



       T.C.A. § 8-20-104 reads as follows:

                       Decree - Modification. - The order of the court shall
               be spread upon the minutes of the court, as in the case of
               other judgments and decrees, and the petition and answer
               thereto shall be docketed, filed, and kept as permanent records
               of the court. The order or decree fixing the number of
               deputies and salaries may be changed or modified by
               increasing or decreasing the number of deputies and the
               salaries paid each, from time to time, upon application made
               in the manner above provided; or any such officers without
               such formal application may decrease either the number of
               deputies or assistants and the salaries of any of them where
               the facts justify such course. (Emphasis supplied)




                                     -5-
       Since the Sheriff was elected in 1994, a previous Circuit Court

proceeding in 1994 necessarily authorized employment of assistants required

at that time. Therefore the present proceeding, initiated in 1996, was a “mid-

term” supplemental proceeding.



       So far as this record shows, the employment of the particular

employees involved in the second issue was authorized by a previous order

of the Circuit Court. Since the Court is presumed to have acted legally and

within its jurisdiction, and there is no showing otherwise, the power of the

Circuit to adjust the pay of previously authorized employees is established by

Section 8-20-104. See Atkinson v. McClanahan, Tenn. App. 1974, 520

S.W.2d 348.



       No merit is found in appellant’s second issue.



       Appellant’s third and fourth issues are:

               III.    Whether the trial court erred by awarding pay
               increases to the nurse, jailers and transportation officers
               currently employed at the Maury County Sheriff’s Department
               because the nurse, jailers and transportation officers were
               performing ex officio services over which the county
               legislative body has complete control.

               IV.     Whether the award of pay increases to the nurse,
               jailers and transportation officers employed at the Maury
               County Sheriff’s Department was contrary to the weight and
               preponderance of the evidence.


       The Tennessee Constitution does not prescribe the sheriff’s duties even though

sheriffs are constitutional officers. See Tenn. Const. Art. VII, § 1; Shelby County Civil Serv.

Merit Bd. v. Lively, 692 S.W.2d 15, 16 (Tenn. 1985); White v. Davidson County, 210 Tenn.

456, 462, 360 S.W.2d 15, 18 (1962); McCully v. State, 102 Tenn. 509, 571, 53 S.W.134, 149

(1899) (Wilkes, J., dissenting). Their duties were originally defined by the common law,

State ex rel. Thompson v. Reichman, 135 Tenn. 653, 661-62, 188 S.W. 225, 227, reh’g

                                             -6-
denied, 135 Tenn. 685, 188 S.W. 597 (1916), but are now largely prescribed by statute.

Metropolitan Gov’t of Nashville & Davidson County v. Poe, 215 Tenn. 53, 70, 383 S.W.2d

265, 273 (1964).



        Over the decades, the sheriff’s responsibilities have expanded from being primarily

ministerial to include peacekeeping functions. Now, the sheriff’s statutory duties encompass

his common law duties and can be grouped into four broad categories: (1) serving the

process and orders of the courts; (2) attending the courts; (3) operating the jail; and (4)

keeping the peace.



        The duties of the sheriff generally fall into two categories:

        (1)     The duties imposed and defined by statute. The fee to be paid for the

performance of these duties generally is prescribed by statute.

        (2)     Duties which the common law annexes to the office of sheriff (some of which

are now covered by statute) for which no fee or charge is specified in payment. These duties

are generally referred to as “ex officio” duties or services. State ex rel. Windham v. LaFever,

486 S.W.2d 740, 742 (Tenn. 1972); see also Hagan v. Black, 159 Tenn. 290, 294, 17 S.W.2d

908, 909 (1929).


        Circuit Court has jurisdiction to authorize employment and pay of assistants needed by

the sheriff to perform his statutory duties, and appropriation of necessary expenses thereof is

enforceable by mandamus. The precise identificatipon of the activities of the various assistants

as statutory duties and “ex officio duties” is difficult, if not impossible.



        An unpublished opinion of this Court has stated that answering reports of law violations

is a statutory duty of the sheriff but that maintaining a patrol is an “ex officio duty” which must

be specially authorized and financed by the county legislative body. Just where the line is drawn

between the time spent by a patrolman cruising a section of the county and the time spent in




                                                -7-
responding to a radio call for help is not easily determined. In any event, the issues in the present

appeal do not require a resolution of this question.



       The appellant argues that the Circuit Court should not have approved pay for the jail nurse

because part of her work is unauthorized “ex officio” work. T.C.A. § 41-4-138 authorizes

county sheriffs to employ a male and a female nurse to make complete physical examinations

of all prisoners to prevent spread of diseases. T.C.A. § 41-4-115 states that “county legislative

bodies alone have the power and it is their duty to provide medical attendance (i.e., services of

a doctor) upon all prisoners confined in the jail of their respective counties.”



       It appears to this Court that the services of nurses to prevent the spread of disease, and the

services of a physician to treat illnesses are separate and distinct functions, the furnishing of the

former being a statutory duty of the sheriff, and the furnishing of the latter being a statutory duty

of the county legislative body. Nevertheless, it is clear that the Circuit Court has the power to

authorize employment of personnel necessary to properly perform the duties of the office of the

sheriff and the legislative body has the duty to provide the funds to carry out the order of the

Circuit Court.



       The appellant also takes issue with the decision of the Sheriff, approved by the Circuit

Court to combine the work and equalize the pay of dispatchers and transportation officers for

purposes of efficiency.      It is claimed that the County Commission “established” the

transportation officers and that they were performing “ex officio” services by transporting sick

people, mental cases and juveniles and assisting at the jail.



       The General Assembly is the supreme legislative body of this state, and local legislative

bodies and officers are subject to its direction and control. The General Assembly has prescribed

broad duties of county sheriffs and has conferred upon Circuit Courts the power to authorize

personnel to perform those duties, and upon the Circuit and Chancery Courts the power to



                                                -8-
require the county legislative body to provide funding for proper performance of the duties of

the sheriff.



       The County Legislative Body has the power to appropriate funds to enable the Sheriff to

perform public duties outside his statutory duties. To this extent, it does control the nature of

the non statutory duties. However, where the statutory services and non statutory services are

so closely intertwined, the County has the burden of showing that its control of non statutory

services has been seriously jeapardized. That burden has not been sustained by the present

record.



       No merit is found in appellant’s third and fourth issues.



       The judgment of the Circuit Court is affirmed. Costs of this appeal are taxed against the

appellant. The cause is remanded to the Trial Court for further appropriate proceedings.



                              AFFIRMED AND REMANDED.



                                                      _________________________________
                                                      HENRY F. TODD
                                                      PRESIDING JUDGE, MIDDLE SECTION




CONCURS:


____________________________
BEN H. CANTRELL, JUDGE



CONCURS IN RESULT:


____________________________
WILLIAM C. KOCH, JR., JUDGE

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