No. 81-87 

IN THE 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: District Court of the Fifth Judicial 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. Haswell delivered the Opinion of the 

Court. 

In an action by the State against the Jefferson County 

sheriff seeking treble damages for receiving prohibited fees, the 

District Court granted defendant sheriff summary judgment. The 

State appeals. We affirm. 

The salient facts disclose that on January 20, 1981, the 

Jefferson County attorney filed a complaint in the name of the 

State of Montana against the Jefferson County sheriff, alleging 

that the sheriff had received and appropriated to his own use a 

check for $100 drawn on State Prison funds in violation 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 in Powell County, 

Montana. The complaint sought judgment that the sheriff had 

received the $100 reward in violation of section 7-4-2519, 

MCA, and that the sheriff repay treble the amount received 

to the State Prison. It appears from a receipt attached to 

the complaint that the sheriff had refunded the $100 to the 

State Prison prior to the filing of the complaint. 

The gist of 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 for his personal use. 

The sheriff submitted an affidavit giving his version of 

the facts and moved for summary judgment. The State countered 

with an affidavit of the county attorney giving his version of 

the facts and seeking a continuance of the hearing on the 

sheriff's motion for summary judgment to enable him to utilize 

discovery procedures to extract further facts from reluctant 

witnesses. 

We need not detail the evidentiary facts disclosed by 
these af f idavits . We note, however, that the opposing aff idavits 

of the county attorney on the one hand and the sheriff on the 

other, disclose factual disputes concerning whether the money was 

sent to the sheriff for his personal 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 official duties or simply 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 summary judgment. The State has appealed from the summary judgment in favor of the sheriff. 

We frame the issues on appeal in this manner: 

(1) Was the reward money a prohibited "fee" under section 

7-4-2519, MCA? 

(2) Did a genuine issue of material fact preclude summary 

j udgmen t? 

(3) Did the District Court err in denying the State a 

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 his own use is 

prohibited by that statute. He cites State v. Story (1917), 

53 Mont. 573, 165 P. 748, as the leading Montana case for 

the proposition that any money collected by a public officer 

from any source whatever without authority of law is prohibited. The State also cites State ex rel. Holt v. District 

Court (1936), 103 Mont. 438, 63 P.2d 1026 and State ex rel. 

Matson v. O'Hern (1937), 104 Mont. 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 have 
violated provides : 

"Prohibition upon receiving -- other fees. The 

officers named above may receive no other fees 

for any services performed by them in any action 

or proceeding or for the performance of any service for which 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 in part 25 of Title 7 of the Montana 

Code Annotated relating to compensation and official fees of 

county officers. This section of the Code sets up salary schedules for county officers and deputies; provides for mnthly affidavits by 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 officer may receive no other fees for his services in 

any action or proceeding or for the performance of any service 

for which 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 

office must 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 in the preceding paragraph must be read in the context of other sections of 

the Code dealing with 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. State Bd. of Equalization (1970), 

156 Mont. 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 fee of $2 for serving a summons 
and complaint on each defendant; a fee of $2 for serving a body 

attachment or order of arrest; a fee of $2 for serving an 

affidavit, order and undertaking in claim and delivery; a fee of 

$1 for serving a supoena on a witness; a fee of $4 for serving a 

writ of possession or restitution; a fee of $5 for trial 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 cents per page for a copy of any writ, process or 

other paper demanded or required by law; a fee of $2 exclusive of 

publication costs for advertising any property for sale on 

execution, under any judgment, 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 other process. 

These are the "feesn referred to in section 7-4-2519, 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 that no 

salaried county officer may receive for his own use "any fees, 

penalties, or emoluments of any kind" and section 7-4-2512, MCA, 

provides that the monthly af f idavit of county officers filed with 

the county treasurer must include a true statement in detail "of 

all fees and compensations of every kind and nature for official 

services rendered." The sheriff is not charged with violation of 

either of these statutes in this action. 

Additionally, there is a specific statute dealing with 

entitlement of the sheriff to reward money. Section 7-32-2301, 

MCA. This statute uses 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 for the apprehension and conviction of any person committing a felony in the 

county and provides that "in no case shall the . . . sheriff . . . be entitled to any part of such reward .I1 Although this statute 
does not apply to a reward from the State Prison, it indicates a 

legislative intent to treat rewards specifically and 

independently apart from sheriff Is "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 $8 per day for 

attending to the business of the county and $8 per 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 proceed ings" and 

generally provided for trial and removal from office of a public 

officer found guilty of charging and collecting illegal fees for 

services rendered or refusal or neglect to perform the duties of 

his off ice. It is not a predecessor of section 7-4-2519, MCA, 

which the sheriff is alleged to have violated in this case. The 

meaning of the word "fees" in that statute is a far cry from the 

meaning of the term "feesn in section 7-4-2519, MCA. Quite the 

contrary. Story recognized the difference in meaning be tween the 

term "fees" as used in different statutes by this language: 

"On the contrary, we find in the Chapter on 

'Salaries and Fees of Officerst . . . that it 

is used in almost every possible sense. For 

example: . . . in section . . . 3149, [now section 7-4-2519, MCA] and others it imports specific charges to be collected from private 

individuals for particular services . . ." Story, 

supra, 53 Mont. at 578, 165 P. at 750-751. 

Neither Holt nor Matson is germane to the meaning of the 

term "fees" as used in section 7-4-2519, MCA. Halt, like Story, 

involved interpretation of the term "fees" as used in the same 

statute dealing with removal of public officers by 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, MCAI 
indicates 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 

for which fees are allowed .I1 The search for and apprehension of a 

State Prison escapee in another county can hardly be said to be a 

service performed by the sheriff "in any action or proceeding". 

Neither can it be said that the sheriff's participation in the 

capture of the escapee is "the performance of any service for which 

fees are allowed." The language of the statute could 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 

services enumerated 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. We have 

previously noted in this opinion that factual issues are present 

in this case. These issues concern whether the reward money was 

sent to the sheriff for his personal use, whether the county 

vehicle and equipment were used in the search for and apprehension of the escapee, and whether the sheriff was acting in his 

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 statute the 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 af fect the result. 

The final issue is whether the District Court erred in 
denying the State a continuance to pursue discovery procedures to 

secure further facts from reluctant witnesses. In view of our 

previous holding that reward money is not a fee within the 

meaning of 7-4-2519, MCA, the development of further facts could 

not change the result in this case and the State could not have 

been prejudiced by denial of further discovery of facts. This 

case turns on the law, not on the facts, and no amount of discovery could af fect the result. 

Affirmed. 

Chief Justice