Comm'rs of Labette County v. Franklin

The opinion of the court was delivered by Brewer, J.: There is but a single question in this case which requires consideration, and that is, whether a sheriff is entitled to collect mileage on tax warrants which are returned by him indorsed “no property.” This is a mere question of the construction of the statute. The sheriff can collect just such fees as the law gives him, whether in the particular case they are adequate compensation for the work done or not. He is entitled to the same fees on tax warrants as on executions. (Gen. Stat., p. 1060, § 128.) He is given for “serving and returning any writ, process, order, or notice, except as hereinafter otherwise provided, for the first person ■ 50 cents; for return of no property found, 25 cents; for every mile necessarily traveled in serving any writ, process, order, venire, or notice, 10 cents.” (Gen. Stat., p. 476, §3.) In §32, page 485, Gen. Stat., it is provided that “no officer shall receive any fees for constructive services or mileage in any case.” These, are all the provisions to which our attention is directed, or which seem to bear upon the question. And under them, we think the sheriff is not entitled to mileage where he returns the warrant “no property found.” He [452] cannot' be said to have served the warrant when he has not found any property upon which to levy it; and mileage is only given when he has served a writ. There must be an actual service. Nothing is to be taken by construction. Service of a writ, is the actual performance of the duty commanded by it. If that duty is unperformed, there is no service. • It matters hot what has caused the non-performance, whether the negligence of the officer, or the departure of the party against whom the writ runs, or his want of property, there is still no service. Whether mileage ought to be given to encourage effort on the part of the officer, is a question for the legislature. The function of the courts is not jus dare, but jus dicere. The judgment of the court below must be reversed, and the case remanded with instructions to grant a new trial. All the Justices concurring.