St. Paul daily globe. [volume] (Saint Paul, Minn.) 1884-1896, 1893-07-28


tons to the attorney general, the de-
cision OF which will prove of general
interest throughout the state. The
following is Mr.. Guilds reply:
You ask the following questions:
l. Does chapter 10. General Laws
1891, authorize the county commission
ers to appropriate money, less than
| 500, out of the county revenue or cOun-
ty ROAD and bridge fund, to be expend-
| Ell by the town supervisors OH town
| roads, or must the work where an APP
preparation is made under this act be
done on county roads only?
2. Can the board of county commits
sl0nerS use any part of the county road
I and bridge fund under any other act on
! town roads?
3. To what fee is the sheriff entitled
! from the county when he is unable to
| collect a personal property tax?
f. 10 what fee is the sheriff entitled
FOR summOning grand and petit jurors?
The only effect of chapter 10, General
Laws 1891, Is TO transfer from the board
| OF county commissioners to that of the
township supervisors the disbursement
OF money, not exceeding $500, appro-
prlated W the former for the constfoc-
tlon or repair of county roads. The
duty of keeping county roads in repair
| the SAID act, incumbent upon che tov0as
through which they may pass. eGen.
Stat. 1878. C. Is, S. So There Revar has
Deen any authority vested in the board
OF county commissioners to OK
! pend county moneys upon township
roads; nor is there manifest In
the act of 1891 any purpose on
the part of the legislature to
change the law in such regard; but that
no Such change IS contemplated is Oh
vlouS, upon moments consideration of
the terms of the act. Whenever it shall
De determined to eXpend the same in
excess OF $500, the supervision of such
expenditure falls upon the board of
county commissioners, and not upon the
| township board. No one would contend
| that the law authorizes an appropria-
ton of sum in excess of $500 in aid of
| township roads; yet, if we are to regard
the act OF 1891 as indicative of a change
| OF policy in the law, there is no reason
why much greater sum may not now be
! devoted to that purpose from the county
| treasury. The true purpose of the law
| Is TO confer upon the board of township
| supervisors, who were, and are now,
vested with the duty of supervising the
! care OF county roads, the additional duty
ana authority to supervise the eXDendi-
ture OF moneys to be expended thereon.
| IhlS was, no doubt, deemed conducive to
economy. 1t was believed that the local
authorities could more economically, or
less extensively, supervise the eXpendi-
ture than the board of county commits
| SlonerS; but when the sum to be thus
| expended exceeds the amount named,
the supervision becomes incumbent
upon the board of county commissioners.
lhe foregoing is sufficiently reSpOn-
slVe to your second, as we'll as your first
| question.
As to your third question, the answer
is to he found in the case of Schmid VS.
Brown county, II Mimi, 67. Unfort-
| unately, the court has left the ueStion
in quite as much doubt as attended it
! previous to the announcement of their
| decision. The court was misied by
| legislative oversight There is no ex-
| press provision of law fixing the fee of
constables ''for making levy and sale of
| property Oh execution" fact which
must have escaped the attention of the
| Trainer of the law in which the above
quoted words appear. The question
must be determined. if at all, by force
OF certain general provisions of statute.
| In the case of Davis vs.. County of LIE
| Sueur, 81 Mimi, 491, the question arose
as to the compensation of constable
| VINO was unable TO serve a criminal war
rant. He demanded therefor mileage
at the rate OF 10 cents per mile. There
! was no express provision of statute al
| lowing mileage Ill such case, whether
! service was or was not made. The
court held that by force of sections IL
and AZ, chapter 10, General Statutes
1878, the sheriff or constable is entitled
to mileage OF 10 cents for travelling 20
serve criminal warrant. although, if
without fault of the officer no service is
| a hot 1
supra, allows mileage in making any
service upon any writ or summons. An
execution Is writ within the meaning
| Of the above statute. WritS of eXecu-
ton were we'll known to the common
law, and are recognized by our statutes.
General Statutes 1878. C. 66. S. 294)
L think 1t may, therefore. be fairly held
that a constable is entitled To a mileage
of 10 cents per mile for travelling to levy
| under an execution when, without fault
| Oh his part, he is unable to effect a leuy.
The reasoning of the court in the Davis
case, supra, applies with equal force to
a constable when called upon to act
under writ of execution as to a sheriff
who is required 10 serve warrant.
The penal law likewise applies in one
case as in the other. 1t follows, then,
that sheriff is entitled to mileage at
the rate of ten cents per mile in at
leluplluS w COIltct PERSONAL tax.
The sheriff is entitled, for dllgent
search and inquiry and making return.
as provided by chapter 1876, General
Laws 1889. to fee of 81. There is no
escape, i'll my opinion, from this con-
cluSlOn. In the case OF Schmid VS..
Board of County Commissioners, supra,
the only question before the court as
disclosed by the record, was whether
the sheriff was entitled to compensation
for diligent search and inquiry and
mileage in attempting to collect delin-
quent personal property taxes, by virtue
OF warrants issued pursuant to law
The district court held that he was
entitled to compensation of 81 there
for, and, i'll SO deciding. the court
would seem to have overlooked the pro-
visions of chapter 1875 of the Laws of
1889. This last-named law. which is
amendatory of section of chapter , of
the General Laws of 1885, provides
that 1.-THE sheriff shall, at the time of
filing said list with the clerk, also re-
turn all the warrants with indorse-
ment thereon, showing his doings in
the premises, and the clerk shall file
and preserve said warrante in his Of
hce." 1t is provided in section II of
chapter TO- General Statutes 1878. that
the sheriff shall be entitled for dill
gent search and inquiry and return
of summons when parties cannot
be found, to 81" 1t is there
fore apparent that the sheriff is
entitled, for performing ali of said acts,
that is, for diligent search and inquiry
and returning warra hts with indorse-
ments thereon, TO the sum of 81. No
question was raised in the Schmid case
as to the compensation for return, and
the district court, adverting to an opn-
ion by eX-Attorney General Hahn. under
date of july s, 1885, approved the same.
wherein it was held that no return nulIa
bona of the separate warrants is re-
quired by the law, and no payment for
such returns can be allowed. But the
legislature in 1889 saw fit to amend
the law in such regard, by the
provision as to the return of war
rants, above quoted. The supreme court,
In the last-named case, affirmed the