
    John B. Schmid vs. County of Brown.
    July 14, 1890.
    Sheriff — Fees on Tax-Warrants. — A sheriff is entitled to the same compensation upon a tax-warrant which he is unable to collect as a constable is entitled to upon an execution which he is unable to collect.
    Action brought in the district court for Brown county, by defendant, as sheriff of the county, to recover $141.55 for services in unsuccessfully attempting to execute warrants for collection of personal taxes. Appeal by defendant from an order by Webber, J., overruling its demurrer to the complaint.
    
      Geo. W. Somerville, for appellant.
    
      Jos. A. Eckstein, for respondent.
   Gilfillan, C. J.

Sections 58, 59, c. 11, Gen. St. 1878, provided that county treasurers should collect delinquent personal taxes by distraint of goods and chattels, and sale of so much thereof as should be sufficient to pay the taxes, and the costs of such distress and sale, but made no provision for fees of treasurers in making such distress and sale. These- two sections were amended by Laws 1885, e. 2, §§ 5, 6, making the sheriff collector of such taxes upon a warrant issued to him by the clerk of the district court, the collection, unless the taxes are paid, to be made by distress and sale of sufficient goods and chattels to pay the taxes and .the costs of the distress iáñd> sale. Section 12 of the same chapter provides that “the sheriff orpiWdep-uty shall be allowed the same fees for collecting the said tax * p* * as are allowed by law to constables for making levy and sale of property on execution, * * * which fees shall be added to the tax, and collected by the sheriff.” We do not think it was the intention of the sections of chapter 2 we have referred to, to require the sheriff to render the service required of him gratuitously, but that the intention, especially of section 12, was to allow him the same compensation as is allowed to constables upon executions, both when he collects, and when he fails to collect; and, as the constable is entitled to a compensation for the service he actually performs, when, without fault, he is unable to collect his execution, the sheriff, upon the tax-warrant, is entitled to similar compensation, even though he be^ unable to collect the tax.

Order affirmed.  