Chapel v. Board of County Commissioners

CANTY, J. The claimant was sheriff of Ramsey county from 1893 to 1895, inclusive. On April 1, 1893, and again on April 1, 1894, the clerk of the district court issued to plaintiff, as such sheriff, a large number of warrants for the collection of delinquent personal property taxes, as provided in G. S. 1894, § 1567. There were in the two years a large number of these warrants, amounting in all to 5,154, which he was not able to collect, for the want of goods and chattels of the persons against whom the warrants ran, on which to levy. He presented to the county commissioners a verified bill for one dollar apiece for these warrants, amounting in all to $5,154, as his [21] fees in returning these warrants, “No property found.” On appeal from the action of the county commissioners thereon the court below disallowed the bill, and from the judgment entered thereon the claimant appeals to this court. Appellant relies on the case of Schmid v. County, 44 Minn. 67, 46 N. W. 145, as authority for the proposition that the sheriff! is entitled to the fees claimed. This case was impliedly approved in Grundysen v. Polk, 57 Minn. 212. We are of the opinion that Schmid v. County was not correctly decided. G. S. 1894, § 1574, provides: “The sheriff or his deputy shall be allowed the same fees for collecting the said tax and for making distress and sale of goods and chattels for the payment of taxes as are allowed by law to constables for making levy and sale of property on execution, * * which fees shall be added to the tax and collected by the sheriff.” In the Schmid case the court fell into the.error of supposing that this statute gave the sheriff the right to fees for collecting or attempting to collect a tax warrant in every case where, under like circumstances, a constable would be entitled to fees for executing or attempting to execute a writ. This is clearly erroneous. The statute allows the sheriff fees only in cases where the constable would be allowed fees “for making levy and sale,” and where the fees can “be added to the tax and collected by the sheriff,” and is no warrant for holding that the county must pay fees when the sheriff fails to collect. This construction is further strengthened by the language of section 1567, which provides that the clerk shall issue the warrants, “And if such taxes are not paid on demand, said sheriff shall distrain sufficient goods and chattels belonging to the person charged with such taxes, if found within the county, to pay the same with the said penalty of ten per cent., and all accruing costs, together with twenty-five cents from each delinquent, as compensation to said clerk: provided, that, in case the sheriff shall fail to collect the tax, such sum of twenty-five cents as compensation, shall be paid by the county. The sheriff shall immediately proceed to advertise,” etc. The above proviso is the only thing we can find in the statute [22] which provides for the payment of fees by the county to any one on the failure of the sheriff to collect the tax warrants; and, in the connection in which it is used, it implies, when construed with the provisions of section 1574, above quoted, that no one else is entitled to fees when the sheriff fails to collect them on the tax warrants. It seems to us plain that it was not the intention of the statute to offer the sheriff a premium on neglecting to perform his duties, by allowing him fees, to be paid by the county, on warrants which he failed to collect. If the sheriff negligently makes a return of nulla bona to a writ issued by private parties, he knows that, by reason of the greater vigilance of private interest, he may have to answer in damages for his negligence, so that the fee allowed him for the return is but little inducement for him to neglect his duty to use due diligence to discover property on which to levy. But the conditions are very different when he is serving the public in the collection of tax warrants. A public officer takes his office cum onere, and is not entitled to compensation for services performed unless the law expressly so provides.' 1 Dillon, Mun. Corp. (4th Ed.) § 230; Mechem, Pub. Off. §§ 855, 856. This disposes of the case, and renders it unnecessary to consider any other question raised. Judgment affirmed.