Kahn v. Locke

STONE, J. The true construction of our statutes, as ruled by this court, is, that for services rendered by ministerial officers, when the law fixes and defines the fees or commissions, the officer shall receive no other or greater compensation for the services thus enumerated, than the law declares. The legislature, in its wisdom, has fixed the rate on an average scale and while for some services he is required to render, his compensation may be inadequate, by reason of the particular circumstances attendant on that service, in others it will be found ample, if not bountiful, by reason of the light labor it imposes. The officer accepts the office with. its benefits and burdens. Code of 1876, §§ 5017, 5032 ; Chenault v. Walker, 15 Ala. 605 [334] Lee v. Smyley, 16 Ala. 773; Dent v. The State, 42 Ala. 514; Tillman v. Wood, 58 Ala. 578. The statute has declared what commissions the sheriff shall demand and receive for collecting money on a fieri faeias. This includes all the acts of levy and sale, if need be, required to effect the collection. His fees are the same, whether he receives the money from the defendant on demand, or whether he is put to the trouble of levying and selling, in order “ to make the money; ” and this rule prevails, whether the claim is large or small. And the rule of commissions in attachment suits is the same, with the exception that a small extra fee is allowed for making the levy. We can not think that clerk-hire, in the matter of perfecting the levy, or making the return, was ever contemplated as a special charge or allowance. It is the sheriff’s duty to perfect the levy and to make the proper return; and these are embraced in the command to “cause-to be made,” for which he receives certain commissions. If he may farm out all the labor attending the levy, sale and return, and charge that on the fund, what labor does he perform, for which he receives the commissions the statute allows? It is made the duty of the sheriff to safely keep goods levied on, and a strict measure of accountability rests on him, if he fails therein. He must employ such diligence as an ordinarily prudent man employs about his own, taking into the account the nature of the chattel to be preserved. — Freeman on Ex. § 270. A stock of merchandise requires more labor and care in its levy, preservation and sale, than ordinary chattels. When seized, its removal to some other custody is frequently necessary, and it needs relatively more capacious storage for its safe preservation. We think, too, that so movable and tempting a commodity as ordinary merchandise, will frequently, if not generally, justify the presence of a guard, or watchman at night, to guard it against theft and incendiarism. These two services, both, in their nature, somewhat peculiar to the character of the property, we think should justify a special, reasonable allowance to the sheriff, to be charged upon the product of the sale.—Walker v. Ham, 2 N. H. 238 ; Crocker on Sh’ffs, § 1144. The judgment of the circuit court is reversed, and proceeding to render the judgment the circuit court should have rendered, it is adjudged that, in addition to the items of cost and expense, to which moveant withdrew his objections, aggregating §309.01, the sheriff be allowed the following items of charge: [335] o O O CO O o iO rH ‘ o o CO $67 50 All other claims are disallowed. The judgment of the circuit court is reversed and here rendered, at the cost of the appellee.