The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1897-12-15
MUST EARN FEES FIRST
sHERIFFs HAVE NO RIGHT TO DE-
MAND THEM IN ADVANCE.
Supreme Courts Decision in McFar-
land Case-COunty Treasurers' Test
Case Brief Filed

preme Court rendered a decision of very
general Importance TO the attorneys and
sheriffs of the State. Sheriffs have been
in the habit, particularly in divorce cases,
Of declining to serve papers until the fees
are paid. Sheriff b. L. McFarlan did this
and the lower court fined him for contempt.
The sheriff appealed the case, but the SUI
preme Court yesterday affirmed the judg-
ment of the lower court in the following
opinion, prepared by Judge Monks:
ION June is, 1897, Nettie L. henner be
gan an action against Ralph III. henner IN
the Delaware Circuit Court A summons
was duly issued py the clerk OF said court
to appellant, as Sheriff of RUSH county, IN
diana, in which county the said Ralph Ken
ner resided, commanding said sheriff to
serve the same upon said kenner and make
due return thereof Upon receipt of sad
summons, appellant notified the clerk OF the
Delaware Circuit Court and the attorney
of Nettie l.. Kenner that he would not serve
said summons until his fees for the service
thereof, amounting to &.O5, We're IrSt pdlo.
Upon a proper showing of said facts the
Delaware Circuit Court entered an order
directing the appellant to appear on June %,
1897, and show cause why he should not De
adjudged in contempt of said court Tor re-
fusing to serve said summons and make
return thereof as commanded. On the DAY
named appellant appeared IN SAID court
and filed his answer, stating his reasons Tor
not serving the summons, which the court
held were insufficient, and adJudged the APP
for refusing to serve said summons, ana
assessed a fine against appellant, 1rom
which judgment appellant appeals Inc
only question presented by the record is
whether or not a sheriff has the rlgnt 10
demand payment of his fees before serV-
ing a summons issued to. him from announcer
county.
cat common law the sheriff cannot refuse
to execute a writ before his fees are PAID
In White VS.. Haugh, supra, the court SAID
that the court could not be making bar
gains with people to obey their process,
which they would enforce an obedience 10,
and leave the sheriff to his action of debt
for the fees, which was his legal remedy.
In Adams VS.. Hopkins, supra, the court said
that the sheriff has no discretionary power
whether to perform the service or not. tie
is bound to execute every legal process de-
livered to him before he can demand his
fees 1t is said in Allen on Sheritfs,' at
Page 1862, that the sheriff must execute the
process though his fees are not paid to him
before the service; he cannot require pay
ment of the fees as a condition precedent
to execute every legal process delivered to
him before he can demand his fees. 1t
was held in Williams VS.. State, Sneed
(Tenn.) 162, that no fees are due an ofncer
until the services are rendered.
1T is clear that unless there is statute
authorizing a sheriff to collect his fees IN
advance he is bound to execute every legal
process delivered to him before he IS en-
titled to demand and receive the fees there
for. 1t is well settled in this state that an
officer is only entitled TO SUCH feeS as tne
statute provides, and that he has no right
to tax and collect any fee for services un-
less he can produce a statute which a4thor-
ICES him to do So Section 1885, Burns X. =,
1894 (Section 1868 r. s., 1881, makes 1T the
duty of the sheriff to. execute all process
directed to him by legal authority; That the
process in this case was directed to appel
liant by legal authority Is not questioned.
The act of 1895 fixing the compensation or
state and county officers (Acts 1872 rage
310, fixes the compensation of sherinS, ana
there is nothing in said act, or any other
statute, authorizing a sheriff to exact the
payment of fees allowed by law Tor the per-
been performed but on the contrary, by
Section 12S, Page 356. of the Acts of 1880,
it is made unlawful for any sheriff to tax
any fees or make any charges for services
6545, Burns X. S., 1884 IL. S., 1927
1.-THE fact that Section 122 of the fee and
salary law of 1895 provides that in the exc
cution of all process issued from any other
county than that of his residence, the sher-
Same nls' fees for ike services in similar cases,
and which shall be his own adds nothing
to the force of appellants claim. Neither
the letter nor the spirit of the statute Sus-
tain appellants contention, and the courts
are not required to delay proceedings ana
wait for the execution of their mandates
while the officers chafg d with the execution
thereof collect or arrange for the payment
of their fees. 1t is true that the fees Tor
the service of the process issued to the APP
pellant from the Delaware Circuit Court
would be- when earned, the property of APP
pellant, but the statute did not authorize
him to name the conditions upon which ne
would discharge his official duty by execut-
ing the mandates of said court in serving
said summons. 1t was the duty of the APP
pellant, a sheriff, to serve said summons
promptly and make return thereof as COM
manded in the writ, and then, II his Tees
were not paid. he was entitled to collect
the same in the manner provided by the
statute.
ssAs the fees of sheriffs and all other Of
fcers are regulated by statute, and in many
of the States officers are authorized by
fofI IN dam nj a M
for official services before such services are
performed, the decisions in other jurisdic-
tons are not entitled to consideration in
this case unless 1t Is shown that they were
made under statutes substantially the same
as our own. Finding no available error in
the record, the judgment is affirmed"