Addington v. Sexton , 17 Wis. 327 ( 1863 )

By the Court,

Cole, J.

Tbe objection that there was an illegal and corrupt agreement to appoint tbe appellant deputy sheriff, is founded upon the following portion of tbe complaint; “ Tbe said plaintiff further shows that on the 13th day of April, 1861, Horatio T. Taylor was sheriff of the county of Racine in said state, duly elected, qualified and acting as such, and was and continued to be and act as sucb sheriff until tbe 4th day of January, 1863, and during all that time this plaintiff was deputy sheriff of and for said county, duly appointed qualified and acting as such by and under said sheriff, and residing at Burlington in said county; that by an agreement entered into by and between said sheriff and this plaintiff for and upon a valuable consideration, this plaintiff, as such deputy sheriff^ was to do all the business arising at Burlington aforesaid, and to have and receive as his own all fees and emoluments arising from such business; and that this plaintiff is the. full owner of and the only party interested in the claims hereinafter set up against the defendants.” It is contended that this shows that the sheriff was paid a reward or valuable consideration for appointing the appellant deputy sheriff, and that therefore such appointment was null and void. But according to our understanding of the complaint, it does not disclose an agreement within the statute against buying and selling offices. It is not alleged that the sheriff appointed the appellant deputy “ for any reward or gratuity paid or agreed to be paid.” As we understand it, tbe parties agreed that tbe deputy should do all tbe business of tbe sheriff arising at Burlington, and receive as bis own tbe fees and emoluments of such business. Was this a corrupt agreement for buying and selling an office, within tbe meaning of tbe law? We think not. The case of Mott vs. Robbins, 1 Hill, 21, is unquestionably a sound exposition of tbe law upon this subject, and is precisely in point. Justice BRONSON says: “When tbe principal, on appointing a deputy, takes an agreement for tbe payment of a gross sum, which is not to come out of tbe profits of tbe office, tbe contract is void.' But where be reserves a part of tbe fees of the office, or a sum certain which is to come out of tbe profits, tbe contract is good. And tbe reason why tbe principal may take a stipulation for a part of tbe fees or profits, is because the whole belongs to him: and, as has been said, it is only reserving a part of bis own and giving away tbe rest to another.’ But in this case they all belong to tbe sheriff and tbe agreement to divide them is only a mode of settling tbe compensation of tbe deputy for such services as be might render. Such an agreement tbe parties were at liberty to make.”

The obvious intent of tbe statute is, to prevent corruption in office; and it refers to corrupt bargains and sales of offices, and not to an arrangement like the one set up in tbe complaint, which is evidently a mere method of settling tbe compensation of tbe deputy for services rendered. 3 Kent, 455. Our statute requires tbe sheriff to appoint one or more deputies. Chap. 13, secs. 98 and 100. There is no law regulating tbe compensation of tbe deputy, and this circumstance distinguishes tbe case from that of Tappan vs. Brown, 9 Wend., 175. In Lewis vs. Knox, 2 Bibb, 453; Love vs. Buckner, 4 id., 506; Outon vs. Rodes, 3 A. K. Marshall, 433; and Davis vs. Hull, 1 Litt., 9, a gross sum of money was agreed to be given as a consideration for tbe sale or deputation of an office, and on this ground tbe contract was held to be void.

Another objection is, that the appellant seeks to recover not only the statutory fees for the service of the summons, complaint and attachment, but also on a quantum meruit for his services in taking care of the attached property. These, it is claimed, were official services, for which he is entitled to no extra compensation. Our statute provides that the sheriff shall be entitled to receive “all such neccessary expenses incurred in taking possession of any goods or chattels, and preserving the same, as shall be just and reasonable in the opin* ion of the court.” Subd. 25, sec. 1, chap. 133. In the complaint the appellant claims to recover $407 for his personal services in keeping possession of the attached goods, and taking care of the same for a period of fifteen months or more. We have no doubt that our statute allows the sheriff com-1 pensation for such services. The property attached was a stock of dry goods, and if they required care and attention to prevent them from spoiling or depreciating in value, it was the duty of the officer to give them. Suppose the sheriff had hired a clerk to look after the goods , would he not have been entitled to receive a reasonable sum for such services as being necessary expenses incurred -in preserving the property? Suppose the property attached had been a stock of cattle, a flock gf sheep,'or something of .the kind, which required constant care and attention: would not the officer be entitled to receive compensation for forage, and employing servants to look after them? And if he would be entitled to receive pijiy for employing a man to look after and take care of the property, would he not be entitled to compensation if he performed the services in person? , The provision of the statute was undoubtedly intended to apply to such a case, and to permit the officer who had incurred necessary expenses in taking care of and preserving attached property, either by bestowing his own care and attention upon it, or employing a person to do so, to receive such compensation as in the opinion of the court might be just and reasonable.

For these reasons, tbe order of tbe circuit court, sustaining tbe demurrer to tbe complaint, must be reversed, and tbe cause remanded for further proceedings according to law.