47 OAG 168 (1958)

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Motor Vehicle Department - Sheriffs -
State Patrol Officers    - Fees -

Sections 271.41, 271.45, 20.420 (91), and
110.07(1) discussed relative to right to fees
by sheriff, and state patrol officers and
official duty of serving papers.

July 2, 1958.

MELVIN 0. LARSON, Commissioner,
Motor Vehicle Department.

You inquire whether the sheriff is entitled
to fees for service of papers, mileages,
court appearances and the like, in state
traffic patrol cases where he takes no part
either in the service of the papers
or participation in the trial.

Your questions and my answers are as follows:

1.  Is the sheriff entitled to fees under
    conditions listed above?"             NO.

2.  If the answer to No. 1 is in the
    negative, are fees to be charged
    for these services?"                 YES,
    if the officer making service
    is performing an official duty.

3.  If the answer to No. 2 is in the
    affirmative, to what fund should
    these fees be allocated?"

          Answered, to the state or
          municipality if the officer
          is not on a fee system.

          To the officer making service
          if he is on a fee system.

Manifestly, if no service is performed, no
fees or mileage allowance may be charged.

23 O.A.G. 302.

Section 271.41(1), (2) and (3),
provide as follows:


     No judge, justice, sheriff or other
     officer or person to whom any fees or
     compensation  shall be allowed by law
     for any service, shall take or receive
     any other or greater fee or reward for
     such service than is allowed by statute.


     No fee or compensation shall be demanded
     or received by any officer or person for
     any such service unless such service was
     actually rendered, except when he is
     allowed by law to require prepayment
     and except in case of prospective
     costs allowed by law. "

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     Every officer or person violating this
     section shall be liable to the party
     aggrieved in the sum of twenty-five
     dollars damages and also for the
     actual damages sustained.

Indeed, such conduct is, under some
circumstances, a crime.

Section 946.12 (4) and (5),
provide as follows:


       Any public officer or public employe
       who does any of the following may be
       fined not more than $500 or imprisoned
       not more than one year or both:

       In his capacity as such officer or
       employe, makes an entry in an account
       or record book or return, certificate,
       report or statement which in a
       material respect he intentionally
       falsifies; or

       Under color of his office or
       employment, intentionally solicits or
       accepts for the performance of any
       service or duty anything of value
       which he knows is greater or less
       than is fixed by law.

The officer actually making service may
lawfully charge the fee allowed the sheriff,
provided he is required or authorized as part
of his official duty to make such service.

Section 271.45 provides as follows:

When a fee is allowed to one officer
the same fee shall be allowed to other
officers for the performance of the same
services, when such officers are by law
authorized to perform such services.

Zielica v. Worzalla (1916)
162 Wis. 603,
156 N.W. 623

the court said as follows, in part,
at pages 608-609:

     Several objections were made to the
     proposed bill of costs, which were
     overruled by the clerk. Upon motion to
     review the clerk's taxation but one item
     allowed was complained of, namely, an
     item of $9.80 "sheriff's fees." It
     appears by the record that the sheriff
     served no papers in the case; a
     constable served the summons and
     complaint on one defendant, a private
     individual served them on the other two
     defendants, another constable served a
     subpoena on four witnesses, and the
     aggregate fees and mileage for the three
     services make up the item complained of.

     In justification of these charges the
     plaintiff relies chiefly on Section
     2959, Stats., which  provides in
     substance that where a fee is allowed
     to one officer for the performance of a
     service, other officers who are
     authorized by law to perform the same
     service shall receive the same fee.

47 OAG 168 (1958)   TOP  168 169  170  END

     The difficulty with regard to the charge
     for service of the summons and complaint
     is that a constable is not in his
     official capacity required or authorized
     to serve them. The circuit court summons
     is not a writ or process issued out of
     court, but simply a notice given to
     defendant by the plaintiff.

     Mezchen v. More,
     54 Wis. 214,
     11 N.W. 534.

     The statute makes special provision that
     the summons and complaint in a circuit
     court action may be served by the
     sheriff "or by any other person not a
     party to the action" (Section 2635,

     The duties of a constable as prescribed
     by Section 842, Stats., do not in terms
     include the service of these papers, and
     we think that the provisions of Section
     2635 must be held exclusive.

     Hence in serving them the constable acts
     simply as a private person, not as an
     officer, and is not entitled to official
     fees therefor.

     As to the service of the subpoena the
     situation is different. There is no
     statute providing for the service of a
     circuit court subpoena by the sheriff
     alone, and the section prescribing the
     duties of a constable (Section 842)
     makes it his duty to serve any "writ,
     process, order or notice...lawfully
     directed to or required to be executed
     by him by any court or officer."

     This is substantially the same provision
     as subsection (4) of Section 725,
     defining the duties of a sheriff, and we
     think that a  constable in serving and
     returning a circuit court subpoena acts
     officially and hence is entitled to
     charge the fees therefor which the
     sheriff is entitled to charge. "

     See also: 7 O.A.G. 37; 20 O.A.G. 568;

     Musback v. Schaefer (1902)
     115 Wis. 357, 360-361,
     91 N.W. 966.

Allocation of the fees depends upon who
performed the service and upon whether
he is on a fee or salary basis.

State traffic patrol officers are given the
powers of the sheriff to enforce the chapters
enumerated in Section 110.07(1).

They are, therefore, authorized by law to
execute a warrant of arrest and perform like
services in state cases arising under the
laws they are required to enforce, and such
acts are, therefore, official acts.

Consequently, the state traffic patrol
officer may charge the same fee to which the
sheriff would be entitled for like service.

It is my opinion that such fees represent
monies "received in connection with
highway operations" and should therefore
be deposited in the highway fund pursuant
to Section 20.420(91).

See 45 O.A.G. 211, 212.


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