The Weekly Kansas chief. [volume] (Troy, Kan.) 1872-1918, 1881-09-15
ofIn,erest to Publisher.

OF Interest TO Publishers.
[Frum the Topeka Commonwealth
In another place give the opinion in full of the
Supreme Court in q which is Of considerable in
terest to publishers of newspapers. Ii Is clear in
its statements that much comment is unnecessary.
The Commonwealth, during the time Mr. Wade was
Sheriff, published large number of notices of sale
made by him, and, usual, the charge our books
was made direct to him. From time to time. pay
ments were made particular sales, and credit
given to Mr., Wade rs having paid the amount due
On that particular notice
After his term of office expired, books showed
n thousand dollars due. The books Of the Sher-
i'll and the Clerk Of the District Court were in mex
tricable confusion. The Sheriff declared that the
money many of the sales had been paid to the
Clerk of tho Court, and not paid over to him. On
the other hand, the Clerk claimed that the Sheriff
had collected fees, not only the printers, but the
Clerks, and never paid them to him. After months
and years Of tnlk and examination of the books Of
difficulties than ut the first. This being the case
and acting under legal advice that the Sheriff and
his bondmen were liable. even If the fees had not
been collected by him, a suit was brought against
both The has been hanging fire about two
years, with the result shown in the opinion which
We publish. Ii will be seen that publishers must
the onus of proof If We understand the decision, is
thrown upon the publisher, TO show that the money
has actually been paid TO the Sheriff In this case,
this is practically nearly impossible. Even if il
could be shown that the fees hnd been paid the next
trouble is to ascertain who has them. Ii would
seem to the average mind that the Of proof
had
not been paid but it is not so.
In this connection, we desire TO say that If there
had been any way to have aseertaned that the Sher
id had received the fecs no suit would have been
brought against him. There was no desire to have
him pay money that he had not received. We could
not from the condition of his and the Clerks books
ascertain which, If either of them. had got the mon
ey This, thought, necesstated bringing the suit
At any rate, n question of interest to publishers
which has been mooted for years, is settled.
RIGHTS OF ruBLIsHERs AND sHERrFrs-orISIos OF
TIE SUPREME COURT.
F. p. Baker, ct al, Spencer p. Wade ct al The
opinion Of the Court delivered by Horton, c. J.
The question for our determination is whether n
Sheriff is primarily liable to the publishers of news
paper for notices of sales Of lands made by him up
executions and orders of sales. Section i5i of
the code makes the duty Of the Sheriff to advertise
and sell the real estate described in order of sale
or levied upon under execution. agrecably to the
provisions of article %, chapter 81. ccmp. laws of
1879. Section 461 of the code provides: Z" Land.
and tenements taken execution shall not be sold
until the officer cause public notice of the time and
place of sale to he given for at least thirty days be-
fore the day of the sale by advertising
paper printed in the County. ease no newspa-
per be printed in the County, in newspaper of
general circulation therein and by putting up AL
yertisement on the Court House door, and in live
other public places in the County, two of whch shall
be in the township where such lands or tenements
ie All sales made without such advertisement shall
be set aside motion by the Court to which the
ecution Is returnable.'
And sections i69 and 46l read Us follows: "The
and tenements or who is charged with the duty of
selling the same, by virtue of any writ of execution
may refuse to publish notice of the sale thereof by
advertisement in a newspaper, until the party for
whose benefit such execution is issued his agent or
attorney shall advance to such officer so much mon
ey will be sufficient to discharge the fees of the
printer for publishing such notice.
Before any officer shall be excused from giving
the notification mentioned in the last section he shall
demand of the party for whose benefit the execution
Issued his agent attorney, (provided either Of
them reside in the County, the fees in said section
specified.
section AZ prescribes among other matters. that
any Sheriff shall refuse neglect to execute any
writ of execution to him directed which has come
his hands, shall neglect to return any writ of
execution to the proper court on or before the return
day thereof, such Sheriff shall on notion be amerced
in the amount Of said debt, damages and costs. with
per cent thereon to and for the of the party
in whose favor such writ was issued. Under the
provisions of these sections, counsel for the plaintiff
contend that the Sheriff, by giving notices of sales Of
lands to the publisher, and ordering such notices
printed in his newspaper, became personally liable
for the legal fees. We do not understand the
purpOrt of the statute. The Sheriff acts in official
capacity. and as an agent in these matters. The
publisher accepts from him. us agent the notices of
sale, with the knowledge that they are to he pub
shed for the party for whose benefit the execution
order of sale is issued 1t is true the Sheriff may
demand Of the party for whose benefit the execution
order is issued, the fees for publishing notice of
sale, and may refuse to publish unless the fees are
advanced to him; but this is merely provision of
which he may or may not avail himself. If a pub
Usher refuses to publish the notices rendered until
he is paid, the Sheriff may demand the fees in al
vance. and, if not paid, need not have the notice
published. Unless, however, he makes himself per-
sonaliy liable by special contract he is not liable TO
the publisher under the statute for the fees for such
when such fees have not been advanced
him. simply because he officially hands the notice
TO the publisher and orders it printed for the time
required by the statute
Sec. IL, chap. 30, laws of 1879, provides that the
printer not the Sherry shall be entitled to receive
fees for publishing any legal notice order, ca
ton, summons. or any other proceeding or adver-
tisement required by law TO be published in any
newspaper, certain specified for each square Of
go for the first and each subsequent insertion.
these fees collected costs from the
proceeds of the sale Of lands from the judgment
debtor. But, if not collected the party for whose
benefit the advertisement is made, il he has nj.
ready advanced them. must pay them. The publish
receiving the notice Of sale, may refuse to pub
lish it until he is paid. But, in the absence Of
special contract if he does publish. he not look
TO the Sheriff personally liable therefor
The order and judgment of the District Court, in
sustaining the demurrer to the first, second and third
counts in the petition, will be sustained.
All the Justices cOncurring.