
    Augustus Kountze, plaintiff in error, v. George Francis Train, and Alfred Burley, sheriff of Douglas county, defendants in error.
    Sheriff’s Fees. Under the act of 1875, regulating fees of sheriff, Laws 1875, f. 81, that officer is entitled to the same commission as special master, where real property sold under a decree of the court is bid in by the plaintiff, as though the amount of the sale was received and disbursed by him. And the act is not prospective in such a sense, as to exclude decrees rendered before its passage, and upon which orders of sale are afterwards issued.
    Error from the district court for Douglas county.
    Ti-ie action in the court below was the foreclosure of a mortgage on real* estate. The decree was rendered in 1873, and the sheriff of Douglas county appointed a sjiecial master commissioner to make the sale. The order of sale was issued June 10, 1875, and at the sale, on the 20th day of July, 1875, the plaintiff bid in the property in his own name. In taxing up the costs of the sale, the sheriff taxed the sum of $698.50, as his commission on the purchase money, over and above all other costs. Motion was made to retax costs by striking out the item for commission, and allowing the sum of five dollars, as provided by Gen. Btat., 379, which motion was overruled. From the order overruling that motion, plaintiff' brought the cause here by petition in error.
    
      George I. Gilbert, for plaintiff in error.
    
      George W. Doane, for the sheriff.
   Gantt, J.

The plaintiff complains that there is error in the final order of the court below, overruling his motion to retax the sheriff’s costs, charged as commission on the sale of real estate under a decree of foreclosure. The only question in the case is, is the sheriff entitled to commission on the pxxrchase money, when the plaintiff bids in the property, as was done in this case?

Under the revised code of 1866, “all sales of mortgaged premises under a decree in chancery, shall be made by a sheriff, or other person authorized by the court, in the county where the premises, or some part of them is situated,” and in respect to officers’ fees, it was provided that “when persons in whose favor the execution or order of sale is issued, shall bid in the property sold on execution or decree, the sheriff or master making such sale, shall receive five dollars as his per cent, on such sale, and no more.” It seems very clear that in all other cases the sheriff was entitled only to “commission on all money received and disbxxrsed by him on execution, order of sale, order of attachment, decree, or sale of real or pex’sonal property.” But by act of February 25, 1875, it is provided that “in all, cases where real or personal property shall be in the hands of the shei’iff by virtue of execution, order of sale, order of attachment, or - decree of the court, and shall be taken in full or in part payment of the debt, or if the money shall be paid to the plaintiff, his agent or attorney, he shall be entitled to the same percentage as though the money was received and disbursed by him.” This act took effect from the tixne of its passage, and repealed all acts in conflict with it. The former acts referred to above, which only allowed commission on money received and disbursed, except the per cent of five dollars on sales upon execution or decree, are inconsistent with this latter act. Again this last act applies to all cases, in which the “property shall le vn the hands of the sheriff, by virtue of execution, order of sale, order of attachment, or decree of the court” and therefore it is not prospective in such sense as to exclxxde judgments, decrees and orders rendered before its passage, and upon which executions and orders of sale are after-wards issued. In respect of “property in the hands of the sheriff,” either upon execution or order of attachment, or upon order of sale or decree, we can perceive no dis-. tinction; for in each case it may be said that the property is in the custody of the law, and in each case the debtor has a right to redeem the property, by the payment of the debt before the sale. |

The last act may be unwise and exact too great a penalty from tbe debtor for the non-payment of bis • debt,' but it is alone witbin tbe province of the legislature’ to determine these questions, and as it does not in this act infringe the limitations of - the constitution, or violate those fundamental, natural rights, which are inherent in: the citizen or subject of every enlightened and responsible government, it is not tbe province of the courts by construction to subvert such legislative action.

Tbe statute having clearly allowed the commission charged in this case, the order of the court below must be affirmed.

Judgment accordingly.  