St. Paul daily globe. [volume] (Saint Paul, Minn.) 1884-1896, 1893-07-28
CALLED FOR OPINION.
POWERS OF COUNTY COMMITS Sf0NERS
IN HANDLING BRIDGE FUNDS.
sHERIFF,s COLLECTION FEES.
Attorney General ChiIds Decides
Mooted ts-Commissioner
Cannot Expend Money on
Township Roads-Sheriffs Earn
Dollar for DiIigent Search.


county submitted number of Ques-
lions 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, ont of the county revenue or cOun-
ty road and bridge fund, to be eXpend-
ed by the town supervisors on town
roads. or must the work where an APP
! preparation is made under this act be
done on county roads only?
Z. Can the board of county commits
| slonerS use any part of the county road
/ 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 personal property tax?
4. 10 what fee is the sheriff entitled
| for summOning grand and petit jurors?
Ihe 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 appYO-
prlated ny the former for the cOnstPuc-
ton or repair Of county roads. The
duty OF Keeping county roads in repair
Is now. as 1T was prior to the passaue of
the said act, incumbent upon che Sog1as
through which they may pass. t9ep.
Stat, 1873, C. II, S. So There Eever has
been any authority vested i'll the board
OF county commissioners to ex-
pehd county moneys upon township
rOauS; HOr 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
pe 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
tnat the law authorizes an apprOpria-
tlOn or sum in excess of $500 in aid of
township roads; yet, if we are to regard
the act OF 1891 as indicative of change
or 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 10 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
lure or moneys to be expended thereon.
ms was, no doubt, deemed conducive to
economy. 1t was believed that the local
authorizes could more economically, or
less eXpenSlVelY, supervise the eXpendi-
lure 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.
Ihe foregoing is sufficiently respon-
SiVe TO your second, as we'll as your first
question.
AS to your third question, the answer
is to De found i'll the case of Schmid VS.
Brown county, II Mimi, g.. 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 a
legislative oversight. There is no ex-
press provision of law fixing the fee of
cOnSta0leS for making levy and sale of
property on execution" fact which
must baVe escaped the attention of the
Kramer 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, 49l, the question arose
as 10 the compensation of a constable
who was unable 20 serve a criminal war
rant. He demanded therefor mileage
at the rate Of 10 cents per mile. There
was no express provision of statue al
lowing mileage in such a case, whether
service was or was not made The
court held that by force of sections II
and AZ, chapter 70, General Statutes
1913, 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
made. 1t VIII be nOted that section IL,
supra, allows mileage in making anv
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)
Think 1t may, therefore. be fairly held
that constable is entitled To mileage
OF 10 cents per mile for travelling to lew
| under an execution when, without fault
on his part, he is unable to effect leuy.
The reasoning of the court in the Davis
| case, supra, applies with equal force to
| constable when called upon to act
under writ of execution as to sheriff
who is required TO serve a 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
tempting to collect personal tax.
HE sheriff Is entitled, for dlligent
! search and inquiry and making return.
as provided by chapter 1875, General
Laws 1889, to fee of 81. There is no
escape, III 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 dillgent 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, III 50 deciding. the court
would seem to have overlooked the pro-
visions of chapter 1876 of the Laws of
1889. This laSt-named law. which is
amendatory of section 6 of chapter , of
| the General Laws of 1885, provides
| that 1.-THE sheriff shall, at the time of
hing 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
ice" 1t IS provided in section II of
! chapter 70, 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 all of said acts,
| that is, for diligent search and inquiry
| and returning warrants 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 Opin-
ion by eX-AttOrney General Hahn, under
date Of July s, 1885, approved the same.
wherein it was held that no return nulla
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 sunrene conrt