186 Ind. 301 | Ind. | 1917
This case comes to this court from the Appellate Court with the recommendation that the case
From the complaint it appears that appellant, as the duly elected and acting sheriff of Boone county, for two years prior to January 1, 1913, charged as statutory mileage items aggregating $626.50; that of these items $543 was on account of mileage traveled in the service of writs, summonses,' subpoenas, venires and notices originating within the county, and $83.50 as mileage for summoning grand and petit juries; that these several items as collected were, through inadvertence and mistake, paid into the county treasury at the time of making quarterly, reports of fees collected. To this complaint in two paragraphs, a demurrer was addressed for .want of facts, and was sustained. From a judgment in favor of appellee, appellant appeals and assigns as error the ruling of the court on the demurrer.
Appellant contends that under the fee and salary law the legislature intended to allow sheriffs mileage as a personal reimbursement, and not as a fee for services; while appellee insists that such mileage is not the property of the sheriff, but belongs to the county, whether such mileage be characterized as a fee, compensation, or sum of money.
The question for decision involves the ownership of the statutory mileage taxed and collected by appellant in . serving certain processes» originating within the county of his residence. For more than sixty years prior to 1891, county sheriffs in this state were compensated through what is known as the “fee system”. The emoluments of that office depended upon the collection of certain fixed fees for services required in the discharge of the duties of the office. A brief reference
This system for compensating officials became so intolerable, through the custom of charging constructive fees, that the public generally throughout the state demanded relief and protection along this line. The legislature, responding to this general demand, in 1891 (Acts 1891 p. 424, §6405 et seq. Burns 1894), passed the first strictly salary law applicable to county officers. At the same time, and as a part of the same law, a schedule of fees was adopted for the purpose of creating a fund for the payment of these salaries, and in case of the sheriff of Boone county, under §27, he was given an annual salary of $2,100. Under §123 it was the duty of the sheriff, on behalf of his county, to tax and charge certain enumerated fees which were desig
In 1895 (Acts 1895 p. 319, §6405 et seq. Burns 1901) a new fee and salary law was enacted, which repealed all laws and parts of laws in conflict therewith. This law, in so far as it affects the compensation of the sheriff of Boone county, and in so far as it .affects the question now under consideration, re-enacted the old law, except that the new law gave him a salary of $2,400 and fees for certain specified services, which he was entitled to keep as his own. Section 122 of the new act had to do with the fees the sheriff was required to tax and charge on account of services. “The fees and amounts so charged, shall be designated ‘Sheriffs’ Costs’ ”. The second item in the list to be taxed and charged is, “For each mile necessarily traveled in going to serve process or notice and returning ten cents.” This section was amended in 1905. The amendment was a re-enactment of §122, supra, as to taxing mileage, and as to ownership of the fees the sheriff was required to tax and charge as “sheriffs’ costs”. This amended section was again amended in 1909 (Acts 1909 p. 8, §7335 Burns 1914), but without changing the provisions in the preceding amendment to which we have referred.
We cannot agree with appellant’s contention that the words, “They shall tax and charge the following amounts,” found in §7335, supra, must be given a broader meaning than the preceding language “tax' and charge the fees provided by law” and “the fees and amounts so charged”. In our opinion all must be considered together and, by so doing, “tax and charge the following amounts” refers to the items thereafter, which the sheriff is required to tax and charge as fees, and which expressly includes the mileage charge of ten cents for each mile actually traveled.
The case of Smith v. State, ex rel. (1907), 169 Ind. 260, 82 N. E. 450, involved, as stated in the opinion, the ownership of the amounts received by the sheriff for giving notices of elections under §6875 Burns 1908, §4679 R. S. 1881; and it held that the sheriff “was engaged in the performance of particular acts which involved going from place to place in the county and giving and serving notice * * *, that the compensation therefor, like compensation for service of process, miles traveled in serving the same * * *, falls within the meaning of the word ‘fees’ as used in the act of 1895.”
Upon a re-examination of the Smith case we conclude that it is in line with former rulings of this court. Seiler v. State, ex rel. (1902), 160 Ind. 605, 65 N. E.
Note. — Reported in 116 N. E. 304.