No. 81-87

INTHE SUPREME COURT OF THE STATE OF MONTANA 1981

STATE OF P!lONTANA, Plaintiff and Appellant,

HAROLD DeMERS, Jefferson County Sheriff, Defendant and Respondent.

Appeal from: DistrictCourt of the FifthJudicial District, In and for the County of Jefferson, The IIonorable Frank Blair, Judge presiding.

Counsel of Record:

For Appellant: Hon. Mike Greely, Atty. General, Helena, Montana Patrick F. Flahery, County Attorney, Boulder, Montana

For Respondent: Gene Picotte, Clancy, Montana

Submitted on Briefs: May 1, 1981 Decided: 

## JUN 2

# ]%IF

Filed: 

# dl&! 2

## I?@Mr. Chief Justice Frank I. Haswelldelivered the Opinion of the Court. In an action by the Stateagainst the Jefferson County sheriff seeking treble damages forreceiving prohibited fees, the District Court granted defendant sheriff summaryjudgment. The Stateappeals. We affirm. The salient factsdisclose thaton January 20, 1981, the Jefferson County attorney filed a complaint in the name of the Stateof Montana against the Jefferson County sheriff, alleging that the sheriff had received and appropriated 

### to hisown use a check for $100 drawn on StatePrison funds inviolation of section 7-4-2519, MCA. It appears from documents attached 

### to the complaint that the check was payable to "Harold DeMersn and



### was sent to the sheriff as reward money for 

### costs related to the search and apprehension of an escapee from the State Prison who was captured near Gold Creek inPowell County, Montana. The complaint sought judgment that the sheriff had received the $100 reward in violation of section7-4-2519, MCA, and that the sheriff repay treble the amount received 

### to the StatePrison. It appears from 

### a receipt attached to the complaint that the sheriff had refunded the $100 

### to the StatePrison prior to the filing of the complaint. The gistof the sheriff's answer to the complaint was a denial of the alleged violation, coupled with a 

### claim that the money was sent 

### to him 

### as a reward forhispersonal use. The sheriff submitted an affidavitgiving hisversion of the facts and moved for summary judgment. The Statecountered with an affidavitof the county attorney giving hisversion of the facts and seeking a continuance of the hearing on the sheriff's motion for summary judgment to enable him to utilize discoveryprocedures 

### to extract further facts from reluctant witnesses. We need not detail the evidentiary factsdisclosed bythese affidavits

# . We note, however, that the opposing affidavits of the county attorneyon the one hand and the sheriff on the other, disclose factual disputes concerning whether the money 

### was sent

### to the sheriff forhispersonal use, whether the sheriff used Jefferson County vehicle and equipment in searching for and apprehending the escapee, and whether the sheriff 

### was acting in the performance of his officialduties orsimply as a private citizen in searching for and apprehending the escapee. On February 23, 1981, the District Court denied the State's motion for a continuance, heard 

### oral argument on the defendant's motion for summary judgment, and granted defendant sheriff a summaryjudgment. The Statehas appealed from the summary judgment in favor of the sheriff. We frame the issues on appeal in thismanner: (1) Was the reward money a prohibited "fee" under section 7-4-2519, MCA? (2) Did a genuine issue of material factpreclude summary judgment? (3) Did the District Court 

### err indenying the Statea continuance? The county attorney contends that the reward money 

### is

a fee 

### as that 

### term is used in section 7-4-2519, MCA, and its receipt by the sheriff and appropriation to hisown use is prohibited by that statute. He cites Statev. Story (1917), 53Mont. 573, 165P. 748, as the leading Montana case for the proposition that anymoney collected by a public officer from any sourcewhatever without authority of 

### law

### is prohibited. The State

### also cites State ex 

### rel. Holt v. District Court (1936), 103Mont. 438, 63 P.2d 1026 and Stateex 

### rel. Matson v. O'Hern (1937), 104Mont. 126, 65 P.2d 619, in support of its contention that the word "fee" in section 7-4-2519, MCA, encompasses the reward money in this 

### case. The statute that the sheriff 

### is alleged 

### to haveviolated provides: "Prohibition upon receiving 

### -- otherfees. The officersnamed above may receive no other fees forany servicesperformed by them in any action 

### or proceeding 

### or for the performance of any 

### service forwhich fees 

### are allowed, and the party demanding 

### or receiving any fees not herein allowed is liable to refund the 

### same 

### to the party aggrieved, with treble the amount as damages, in addition 

### to costs of suit." Section 7-4-2519, MCA. This statute is found inpart 25 of Title7of the Montana Code Annotated relating to compensation and official fees of county officers. This section of the Code 

### sets up salary schedu

### les forcounty officers and deputies; provides formnthly affidavitsby each county officer of the fees he has collected, monthly remittance of such fees to the county treasurer, and a posting by each county officer of the fees allowed by 

### law; provides that each county officermay receive no other fees forhis services in any action

### or proceeding 

### or for the performance of any service forwhich fees 

### are allowed in the quoted statute; and finally provides that upon conviction of receiving illegal fees 

### or failing to account for fees collected, the county officer's officemust be declared vacant and a successor appointed. In determining the meaning of the 

### term "fees" in section 7-4-2519, MCA, the section of the Code summarized inthe preceding paragraph must be read inthe context of other sections of the Code dealingwith fees authorized to be charged and collected by county officers. This enables us 

### to construe and interpret the Code as a homogenous whole giving effect to each provision thereof rather than interpreting a specific statute in isolation without reference to other related statutes. Montana Ass'n of Tobacco & Candy Distributors v. StateBd. of Equalization (1970), 156Mont. 108, 476 P.2d 775. The fees authorized by 

### law to be charged and collected by the sheriff 

### are expressly set forth in sections 7-32-2141 and 7-32-2142, MCA. They include a feeof $2 for serving a summonsand complaint on each defendant; a fee of $2 for serving a body attachment ororder of 

### arrest; a feeof $2 for serving an affidavit, order and undertaking in claim and delivery; a feeof $1for serving a supoena on a witness; a fee of $4 for serving a 

### writof possession orrestitution; a fee of $5 fortrial of the right of property 

### or damages; a fee of $2 for taking bond 

### or undertaking; a fee of $2 for serving every notice, rule 

### or order;

a fee of 25 centsper page for a copy of any 

### writ, process 

### or otherpaper demanded orrequired by 

### law; a fee of $2 exclusive of publication 

### costs for advertising any property for sale on execution, under anyjudgment, 

### or under any order of sale; and a fee

### to be fixed by the court 

### or judge for taking, keeping 

### or preserving property under attachment, execution, 

### or otherprocess. These are the "feesn referred to in section7-4-2519, MCA. When a broader and 

### more inclusive prohibition 

### was intended by the legislature, appropriate language signifying such intent

### was used. For example, section 7-4-2511(a), MCA, provides thatno salaried county officermay receive forhisown use "any fees, penalties, 

### or emoluments of any kind" and section7-4-2512, MCA, provides that the monthly affidavit of county officers filed with the county treasurermust include a true statement indetail "of allfees and compensations of everykind and nature for official servicesrendered." The sheriff is not charged with violation of eitherof these statutes in thisaction. Additionally, there is a specific statutedealing with entitlement of the sheriff 

### to reward money. Section7-32-2301, MCA. This statuteuses the term "reward" and does not contain any reference to "fees." It authorizes the Board of County Commissioners to offer a reward not exceeding $500 forthe apprehension and conviction 

### of any person committing a felony inthe county and provides that "in no 

### case shall the

# .

# .. sheriff

# . .

# . be entitled to any part of such reward .I1 Although this statutedoes not apply 

### to a reward from the StatePrison, it indicates a legislative intent 

### to treat rewards specificallyand independently apart from sheriffIs"fees" authorized by 

### law. Story, supra, cited by the State, does not support the argument that "fees" as used in section 7-4-2519, MCA, includes reward money. That 

### case involved an action 

### to remove 

### a county 

### commissioner from office for charging the county $8per day for attending 

### to the business of the county and $8per day for inspecting and overseeing road work. The county commissioner 

### was charged under section 9006, R.C.M. 1907. This statute

### was entitled "Removal of public officers by summary proceedings" and generallyprovided for trial and removal from office of a public officer found guiltyof charging and collecting illegal fees for servicesrendered orrefusal 

### or neglect to perform the duties of hisoff

### ice. It is not a predecessor of section 7-4-2519, MCA, which the sheriff is alleged to have violated inthis

### case. The meaning of the word "fees" in that statute is a farcry from the meaning of the 

### term "feesn in section7-4-2519, MCA. Quitethe contrary. Storyrecognized the difference inmeaning between the 

### term "fees" as used in different statutesby thislanguage: "On the contrary, 

### we find in the Chapter on 'Salaries and Fees of Officerst

# . . .that it is used in almost everypossible sense. For example: 

# . .. in section

# .

# .. 3149, [now 

### section 7-4-2519, MCA] and others it imports specificcharges 

### to be collected from private individuals for particular services

# . .." Story, supra, 53 Mont. at 578, 165P. at 750-751. Neither Holtnor Matson is germane to the meaning of the 

### term "fees" 

### as used in section 7-4-2519, MCA. Halt, likeStory, involved interpretation of the term "fees" as used in the same statutedealingwith removal of public officersby summary proceedings and is inapplicable 

### to this case for the same reasons. Matson 

### relates to the meaning of the term "feesn in another context. Finally, the plain language of section 7-4-2519, MCAIindicates that it does not include rewards. Its language limits 

### its application 

### to fees for services performed by the sheriff "in any action 

### or proceeding" 

### or "for the performance of any services forwhich fees areallowed.I1 The search for and apprehension of a StatePrison escapee in another county can hardlybe said 

### to be a serviceperformed by the sheriff "in any action orproceeding". Neither can it be said that the sheriff's participation in the capture of the escapee 

### is "the performance of any service forwhich fees 

### are allowed." The language of the statutecould not apply to the reward in this case. For the foregoing reasons, 

### we hold that the 

### term "fees" as used in section 7-4-2519, MCA, is limited to charges authorized by 

### law

### to be made by the sheriff for the performance 

### of specific servicesenumerated in sections 7-32-2141 and 7-32-2142, MCA. It does not refer to or include reward money. Since section 7-4-2519, MCA, is the only statute the sheriff was charged with violating, the sheriff 

### was entitled to summary judgment as a matter of 

### law. The second issue is whether summary judgment is precluded by the existence of a genuine issue of 

### material fact. Wehave previously noted in thisopinion that factual issues 

### are present inthis

### case. These issues concern whether the reward money 

### was sent to the sheriff forhispersonal use, whether the county vehicle and equipment were used in the search 

### for and apprehensionof the escapee, and whether the sheriff 

### was acting inhis official capacity

### or as a private citizen. None of these 

### are "material factsvv within the meaning of Rule 56, M.R.Civ.P., precluding summary judgment. We have held that the reward money is not a fee as that term is used in section 7-4-2519, MCA, the only statutethe sheriff is alleged to have violated. Thus the foregoing factual issues 

### are not material 

### to a decision in this



### case as their resolution could not affect the result. The final issue is whether the District Court erred indenying the Statea continuance to pursue discoveryprocedures to

secure further facts from reluctant witnesses. In view of our previous holding thatreward money 

### is not a feewithin the meaning of 7-4-2519, MCA, the development of further factscould not change the result in this

### case and the Statecould not have been prejudiced by denial of further discoveryof facts. This

case turns on the 

### law, not on the facts, and no amount of discovery could affect the result. Affirmed.

Chief Justice