County of Stutsman v. Wright

Christianson, J. This case involves the construction of chapter 275 of the Laws of 1911. Comp. Laws 1913, § 3520. The law, as enacted, was entitled: “An Act Providing for Salary for Sheriffs and Providing for Fees Collected by Sheriffs to be Turned in to the County Treasurer of Their Respective Counties, and Prescribing for a Penalty for Failing to do so.” The statute, in accordance with its title, prescribes the salaries to be paid to the sheriffs of the state. The second section of the act provides that “in addition to the salary prescribed by the preceding section, the sheriff or his deputy or deputies shall be allowed 10 cents per mile for each and every mile actually and necessarily traveled in the performance of any of their official duties.” Comp. Laws 1913, § 3521. The following section (§ 3522, Comp. Laws 1913) provides that the sheriff or his deputy or deputies shall be reimbursed for livery hire used in the performance of his official duties, not exceeding a maximum amount specified. The statute also provides for the appointment of deputies who are to be paid stipulated salaries by the county. Prior to the enactment of this law, the sheriff’s office was a fee office, and the sheriffs of this state received no salaries. In the instant case three questions are presented: (1) Is a sheriff, under this law, required to pay in to the county treasurer fees collected in making real estate mortgage foreclosure sales by advertisement? (2) Is he required to pay over to the county treasurer, the $1 fee allowed by § 2178, Comp. Laws 1913, for making collection of personal property taxes? (3) Is he required to turn over to the county treasurer fees collected by him in the malting of chattel mortgage foreclosure sales by advertisement? (No question is raised with respect to sheriff’s fees on the foreclosure of real or chattel mortgages by action, but merely as to such fees in cases where they are foreclosed by advertisement.) In our opinion the sheriff is required to pay over to the county all [170] fees collected by bim in making real estate foreclosure sales by advertisement, and also tbe fees collected by him under the provisions of § 2178, supra, and in collecting personal property taxes. It is part of the duties of a sheriff to make foreclosure sales of real estate mortgages by advertisement. Comp. Laws 1918, § 8081. It is also the duty of the sheriff to make collection of the personal property taxes. Section 2178, supra. The fees received by a sheriff upon foreclosure of real estate mortgages by advertisement and in collecting personal property taxes are fees which he receives and is required to collect in the performance of his official duties. In our opinion, chapter 275, Laws 1911, construed as a whole, evidences an intention on the part of the legislature to require the sheriffs of this state to turn the fees in question over to the county treasurers of their respective counties. We do not believe, however, that the sheriff is required to account for or to pay over any fees which he may have received upon the foreclosure of chattel mortgages by advertisement. It is no part of a sheriff’s duty to make foreclosure sales of chattel mortgages by advertisement. Under the provisions of the statute, such sales may be made by the owner of the mortgage or his agent or attorney. Comp. Laws 1913, § 8126. Manifestly, a sheriff who makes such foreclosure does not act in his official capacity as a sheriff. Surely there would be no liability upon his official bond for any neglect of duty in connection with the sale or failure to account for the proceeds. In making such sale, the sheriff acts as an individual. He does not act in his official capacity, and there seems to be no more reason why he should be required to account for what he receives in making such sales than to require him to account for moneys received by him for performing any other service which he performs in an individual capacity. Upon the record before us, it is impossible to say what amount of the moneys involved in this litigation are fees for the foreclosure of chattel mortgages by advertisement. Hence, it will be necessary to remand the cause' in order that this may be done in the court below. It should be noted that what we have said relative to chattel foreclosure sales has reference only to chattel foreclosure sales by advertisement and not to foreclosure of chattel mortgages by action. Where such mortgages are foreclosed by action and sale made upon execution, [171] tbe sheriff, of course, acts in bis official capacity and is required to account for tbe fees received. In order to obviate any possible misunderstanding, we deem it proper to say that this case in no manner involves any shortage upon tbe part of tbe defendant sheriff. It is undisputed that tbe moneys in controversy bare been kept separate and available for such disposition as tbe court may order. And it is conceded that no blame or censure of any kind whatever attaches to tbe defendant in connection with the matters involved in this litigation, but that bis conduct has, in every respect, been above suspicion. It follows from what has been said that tbe judgment in this case should be modified by allowing tbe defendant to retain tbe fees received by him upon tbe foreclosure of chattel mortgages by advertise-: ment, and, as so modified, tbe judgment should be affirmed. Tbe case is therefore remanded with directions that judgment be entered in accordance with the views expressed in this opinion. Neither party will recover costs on this appeal.