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County Boards - Sheriff's Fees

Chapter 618, Laws 1957, requires sheriff to
charge higher fees specified and to turn
over such increase to county treasury
until December 31, 1959, such increase
may be retained by sheriff thereafter
if he is entitled to do so.

October 13, 1959.

JACK D. STEINHILBER,

District Attorney, Winnebago County.

You have asked three questions which arise in
connection with ch. 618, Laws 1957, published
August 29, 1957 which modified Section 59.28,
Stats., relating to sheriff's fees.

This chapter raised the fees which the
sheriff is entitled to receive for services
and provides that the sheriff may require
advance payment if the county board approves
of advance payment

You state that your sheriff adhered to the
old fee schedule until the county board
instructed the county auditor to make an
accounting of the increase in sheriff's
fees beginning July 1, 1959 regarding
Winnebago county's share

You state that the sheriff interpreted this
action by the county board as a direction to
him to charge the increased fees which were
authorized, and accordingly the sheriff
has billed his fees for July on the
basis of the new schedule

Under the terms of the statute the amounts in
excess of the old fee schedule are to be paid
into the county treasury until December 31,
1959 at which time the provisions of
Section 59.15 (1) (a) shall prevail

Your sheriff is under a salary, plus fees,
and after December 31, 1959 most of the
increase in fees will be retained by
the sheriff and will result in an
increase in his compensation

The applicable statutes read as follows:

59.15

Compensation, fees, salaries and
traveling expenses of officials
and employes.

59.15(1) ELECTIVE OFFICIALS.

59.15(1)(a)

The board shall, prior to the earliest
time for filing nomination papers for
any elective office to be voted on in
the county (other than supervisors and
circuit judges), which officer is paid
in whole or part from the county
treasury, establish the total annual
compensation for services to be paid
him (exclusive of reimbursements
for expenses out-of-pocket
provided for in 59.15(3).

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The annual compensation may be
established by resolution or ordinance,
on a basis of straight salary, fees, or
part salary and part fees, and if the
compensation established is a salary,
or part salary and part fees, it shall
be in lieu of all fees, including per diem
and other forms of compensation for
services rendered, except those
specifically reserved to the officer
in  such resolution or ordinance.

The compensation established shall not
be increased nor diminished during
the officer's term and shall remain
for ensuing terms unless changed
by the board.

and

59.28 Sheriff; fees.

59.28(38)

Any increase in fees under this section
authorized by legislative act during the
year 1957 shall be payable to the county
treasury and shall not be reserved by
any sheriff whose annual compensation is
fixed by county board resolution or
ordinance on the basis of straight
salary, fees, or part salary and
fees notwithstanding any other
statutory provision to the contrary.

This subsection shall remain in effect
until December 31, 1959, after
which time the provisions of
Section 59.15(1)(a) shall prevail."

Your first question is whether the word
"entitled" has any mandatory connotation or
whether the statute only fixes a limitation
upon the amounts to be charged as fees for
certain services of the sheriff.

There is authority to the effect that
the sheriff may not charge more than the
statutory amounts but practically none in the
reported cases in regard to the authority of
the sheriff to charge less than the fees
prescribed by statute.

In the case of Crocker vs. Supervisors of
Brown County, (1874) 35 Wis. 284,
the court said:

     . . .Where a statute gives a fee to the
     sheriff or other officer for the service
     of process, and there is nothing in the
     same or some other statute showing a
     different intention, the fee so given
     is the sole compensation to the officer
     for the performance of the service,
     and no other or further can be
     charged or obtained.

I construe this language to mean that the
sheriff must charge what the statute
provides, no more and no less.

Where the statute provides for payment of the
fees to the county as in the instant
situation, the duty to charge the full amount
set out in the statute is even more explicit.

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Under Section 59.28(38) the increase
in fees authorized by Chapter 618,
Laws 1957, is to be paid to the county
treasury until December 31, 1959.

Accordingly, if the sheriff has failed to
charge the fees that are authorized by
statute where the increase over previous fees
is for the benefit of the county, he has been
violating a clear duty by charging less than
that authorized by statute.

This is especially so in view of Section
59.15(1)(b), which requires that the
officer collect the full fees
that are authorized by law.

The second sentence in this paragraph reads
as follows:

     . . .Any officer on a salary basis or
     part fees and part salary shall collect
     all fees authorized by law appertaining
     to his office and shall remit all fees
     not specifically reserved to him by
     enumeration in the compensation
     established by the board pursuant to
     paragraph 59.15(1)(a) to the treasurer
     at the end of each month unless a
     shorter period for remittance is
     otherwise provided.

See Section 946.12(5) and
Section 271.41(1), Stats.

Further, it is my conclusion that it is
against public policy to allow the sheriff
or any other public official who is paid
wholly or in part by fees to charge less
than the statutory amount set out
for services performed.

Such a procedure could conceivably result in
the office of the sheriff being held by the
lowest bidder and the mischief resulting
from such a situation need not be
further belabored.

Accordingly, my answer to your first question
is that the sheriff does not have any
discretion but must charge the fees
set out in Section 59.28 for
services enumerated therein.

Your second question is whether the sheriff
may retain the extra fees to be collected
after December 31, 1959 as a part
of his compensation.

The county board has previously fixed the
sheriff's compensation as a salary, plus
certain fees, under Section 59.28,
which the board anticipated would
be adequate compensation.

You point out that these provisions were
adopted by the county board on March 31, 1950
and amended October 23, 1956.

However, it appears that in the absence of
any provision in the county board's
regulations for changing the method of
compensating the sheriff where the state
statute authorizes an increase in the fees to
be charged, the extra fees may be retained by
the sheriff as part of his compensation.

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The board could have amended its own
provisions prior to the filing of nomination
papers in 1958 to provide that the increase
in fees be paid to the county.

In the absence of such action by the county
board and in view of the fact that they have
already provided that the sheriff may retain
his fees with certain exceptions, the new
higher fees authorized by Chapter 618, Laws
1957, may be retained by the sheriff after
December 31, 1959.

Your third question inquires as to whether
the county board has authority under Section
59.15(1)(a), to provide that a portion of a
given fee collected shall be payable to the
county treasury and the remainder to be
retained by the sheriff.

In view of the clear language of that section
which authorizes the board to decide the
compensation to be paid for any elective
office in the county, there would seem to be
no question but that the board could, if it
so chose, after the present term expires
limit the sheriff to fees prescribed under
the old statute and require that the excess
fees charged be turned over to the county
treasury.

LLD

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