169 Ind. 260 | Ind. | 1907
Action by relator on the bond of Oliver P. Smith, ex-sheriff of Kosciusko county, and his sureties, to recover the amount alleged to have been received by said Smith, as sheriff of said county, for giving election notices under §6875 Burns 1908, §4679 R. S. 1881, since the taking effect of the act approved March 11, 1895 (Acts 1895, p. 319), fixing the compensation of public officers. Demurrer for want of facts was overruled to the breach alleged.
Appellant, the principal in the bond sued upon, filed an answer of set-off, to which a demurrer for want of facts was sustained by the court. Trial of said cause resulted in a finding and judgment on said bond in favor of appellee.
The errors assigned call in question the action of the court (1) in overruling the demurrer to the breach of the bond alleged; (2) in sustaining the demurrer to said answer of set-off.
Section 6528, supra, provides that “the sheriffs of the various counties of this State shall, on behalf of their respective counties, tax and charge the fees provided by law on account of services performed by such officers; the fees and amounts so charged shall be designated ‘sheriff’s costs,’ but they shall, in no sense, belong to or be the property of the sheriff, but shall belong to and be the property of the county, except that in the execution of all processes issued from any other county than that of his residence, the sheriff shall be entitled to charge and collect the same fees for like services in similar eases, and which shall be his own. ’ ’
Section 6540 Burns 1901, Acts 1895, p. 319, §136, provides: “Nothing herein contained shall be so construed in any event as to allow any of the officers herein named the salaries herein provided and also the fees required to be taxed except as otherwise specified.”
Under these sections of the act of 1895 it has been held by this court that all “fees” to be taxed and charged for the services of a public officer under said act belong, not to the officer, but to the county, and must, when collected by said officer, be paid into the county treasury, unless said act expressly provides that the same shall belong to such officer. Seiler v. State, ex rel. (1903), 160 Ind. 605, 620, 621; State, ex rel., v. Flynn (1903), 161 Ind. 554, 581, 582; Board, etc., v. Given, supra.
This court in Seiler v. State, ex rel., supra, on page 619, quoted with approval the following from Cowdin v. Huff (1858), 10 Ind. 83: “There are now, and were, at the adoption of our Constitution, at least three modes in use of
It is evident that the sheriff in giving notice of elections under §6875 Burns 1908, §4679 R. S. 1881, was engaged in the performance of particular acts which involved going from place to place in the county, and giving and serving notice, and not service by the day or week, and it follows, therefore, that the compensation therefor, like compensation for service of process, miles traveled in serving the same, or to post notices for the sale of real estate, and “in and out fees,” falls within the meaning of the word “fees” as used in the act of 1895, supra.
In Board, etc., v. Given, supra, this court said: “In the appeal of the State, ex rel., v. Flynn [1903], 161 Ind. 554, 581, in speaking in regard to the fees to be charged and accounted for under the statute of 1895 by the clerk of the circuit court, we said: ‘Of course, it must be conceded, and cannot be successfully denied, that the clerk, under the requirements of the act of 1895, must charge and tax, on behalf of the county, and account to the latter as therein provided for, all fees which arise out of official services performed by him for any person or for the county or any other municipality. The mere fact that the fees which the law exacts shall be charged and taxed by the officer are to be paid by the county does not exempt him from reporting them at-his quarterly settlement if collected, and returning or paying the money into the county treasury as provided by §124 of the statute in controversy. It is the fees that are required to be charged or taxed by law which, by the legisla
It is true that said fees for giving election notices are allowed and paid by the county out of the county treasury under §6528 Burns 1901, Acts 1895, p. 319, §122, but, as said act does not provide that such fees are the property of the sheriff, they, under the rule declared above upon the authority of Seiler v. State, ex rel., supra, State, ex rel., v. Flynn, supra, and Board, etc., v. Given, supra, belong to the county.
It follows that the court did not err in overruling the demurrer to the breach of the bond alleged. Judgment affirmed.