Judges: BRONSON C. La FOLLETTE, Attorney General
Filed Date: 3/4/1980
Status: Precedential
Modified Date: 7/6/2016
MARK E. MUSOLF, Secretary Department of Revenue
You advise that the Milwaukee County Sheriff's Department requires representatives of the Department of Revenue to advance fees for service of process connected with the collection, pursuant to sec.
You inquire whether the sheriff of Milwaukee County has a duty, pursuant to sec.
I am of the opinion that the sheriff of Milwaukee County does have such a duty. In my opinion, sec.
At the time of the American Wrecking Co. case, cited below, sec.
In spite of the fact that no statute authorized the sheriff to demand prepayment, it was stated in American Wrecking Co. v.McManus,
The fact that the sheriff is compensated by the county upon a salary basis rather than under a fee system does not affect our conclusions. His official responsibility and powers are the same. It should also be said that he has it within his power to protect himself against personal responsibility under such circumstances, as it is his privilege to demand his legal fees and charges in advance. Carlisle v. Estate of Soule,
44 Vt. 265 ; Jones v. Gupton,65 N.C. 48 ; Adams v. Dinkgrave, 26 La. Ann. 626; Atkinson v. Hulse,30 Ark. 760 ; Alexander v. State,42 Ark. 41 . Where, however, he undertakes the service of the writ without demanding his fees in advance he waives their prepayment. Carlisle v. Estate of Soule, supra.
In 24 Op. Att'y Gen. 508 (1935), it was argued that the conclusion of the supreme court in American Wrecking Co. was in error as the holdings in the Arkansas, Louisiana, and North Carolina cases cited were based on statutes of those states requiring or authorizing advance payment and that, by reason of a lack of such statute, the common law prevailed in Wisconsin. The opinion concluded that a sheriff could not insist upon payment of statutory fees before undertaking service of process.
Chapter
In reference to such language, it was stated in 53 Op. Att'y Gen. 218, 220, 221 (1964):
*Page 39This language is significant and makes it clear that in the case of the sheriff credit is the rule rather than the exception in the absence of specific action by the county board.
There are particularly strong reasons for extension of credit by the sheriff since he cannot know in advance whether or not he is going to be successful in effecting service of papers. There is a difference in fees where service is attempted but not effected and he cannot be sure of his mileage until he knows what it is going to be.
There appears accordingly to be no basis for concluding that either the clerk of court or sheriff must collect his fees when papers are offered for filing, recording, or service.
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Except as provided in subs. (2) (b) and (27), every sheriff is entitled to receive one-half of the following fees in advance for his services providing the county board approves advance payment. The remaining one-half shall be deposited into the county general fund and shall not be paid to the sheriff in lieu of salary.
(2)(b) In counties having a population of 500,000 or more, the charge for travel for the service or attempted service of process or pleading shall not exceed $1 for each party to be served in each action. If there is more than one person to be served at a given address, only one charge for travel shall be imposed. For summoning grand and petit jurors, no travel expense shall be charged for more than the distance actually and necessarily traveled in summoning such jurors. Sixty cents of the $1 travel charge shall be paid in advance to the sheriff providing the county board approves advance payment, and 40 cents shall be deposited into the county general fund and shall not be paid to the sheriff in lieu of salary.
The fees provided for in sec.
Section
All fees and compensation of officials or other persons performing any act or functions required in carrying out this section, except such as are by this section to be paid to such officials or persons by the taxpayer, shall, upon presentation to the department of revenue of an itemized and verified statement of the amount due, be paid by the state treasurer upon audit by the department of administration on the certificate of the secretary of revenue and charged to the proper appropriation for the department of revenue. No public official shall be entitled to demand prepayment of any fee for the performance of any official act required in carrying out this section.
Aside from changes in the department to whom the bills are to be submitted, the section has remained the same for over thirty years. See ch.
The collection of taxes is a governmental function of the state which should not be impeded by a statute such as sec.
I am of the opinion that the language, "[n] o public official," includes the sheriff in every county. That would include the sheriff in a county having a population in excess of 500,000 population, and specifically, Milwaukee County. I conclude that sec.
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