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AGO 1960 No. 170 - December 27, 1960
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John J. O'Connell | 1957-1968 | Attorney General of Washington

OFFICES AND OFFICERS - COUNTY - SHERIFF -FEE SCHEDULE.

(1) A sheriff may charge ten cents per mile in serving a summons and complaint where service is not obtained until the fifth trip.

(2) A $2.00 fee is applicable to returns of execution, personal and real, attachments, personal and real, and order of sale, personal and real.

(3) Under RCW 36.18.040 the fee for serving or executing any other writ or process in a civil action or proceeding not specifically covered by other provisions of the act is $2.00 and mileage; and for the execution of any process requiring or commanding something to be done in a criminal action the fee is $4.00.

(4) The sheriff may charge $3.00 for levying each writ of attachment or execution and $2.00 for filing the same with the auditor.

(5) In computing mileage traveled the sheriff may round off the mileage traveled at the nearest mile.

(6) The fees to be charged for processing of a sale under order of sale and execution are set forth in the opinion.

(7) Under RCW 6.16.020 (3) a television set may be included in the exemption from execution allowed a household.

                                                                  - - - - - - - - - - - - -

                                                               December 27, 1960

Honorable John J. Lally
Prosecuting Attorney
Spokane County
Spokane, Washington                                                                                             Cite as:  AGO 59-60 No. 170

Dear Sir:

            By letter previously acknowledged you requested an opinion of this office concerning the following questions relating to the sheriff's fee schedule, RCW 36.18.040:

            (1) Where a sheriff attempts to serve a summons and complaint and is successful on the fifth trip to the  [[Orig. Op. Page 2]] defendant's home, may he charge ten cents per mile for all five trips?

            (2) Is the following portion of the statute in question applicable to returns of execution, personal and real; attachments, personal and real; and order of sale, personal and real?

            "For the making of any return for which no other fee is provided herein, two dollars;"

            (3) What type of process is included in the following two provisions?

            "For serving or executing any other writ or process in a civil action or proceeding, besides mileage, two dollars;"

            "For the execution of any process for which no other fee is provided herein, four dollars;"

            (4) Are the following two provisions to be combined, or may the sheriff charge $3.00 for levying each writ of attachment or execution and $2.00 for filing the same with the auditor?

            "For levying each writ of attachment or writ of execution upon real or personal property, besides mileage, three dollars;

            "For filing copy of writ of attachment or writ of execution with auditor, two dollars plus auditor's filing fee;"

            (5) Can the sheriff charge a minimum mileage fee for serving papers on the various county officers, including persons in the county jail?

            (6) Please advise fees for complete processing of sale under Order of Sale and executions (real and personal).  Is mileage justifiable to and from sales?

             [[Orig. Op. Page 3]]

            (7) Does RCW 6.16.020 (3) allow a television set to be included in the exemption from execution by a householder?

            We answer questions 1, 2 and 7 in the affirmative.  The answers to questions 3, 4, 5 and 6 are found in the analysis.

                                                                     ANALYSIS

            Before considering the foregoing questions certain general rules must be kept in mind concerning fees collectible by public officers.  In Ring v. The Chas. Vogel Paint and Glass Co., 46 Mo. App. 374, 377 (1891), the court, in considering certain fees charged by the sheriff, held that:

            "Preliminary to the discussion of the items of cost here in controversy, it may be stated that the entire subject of costs, in both civil and criminal cases, is a matter of statutory enactment; that all such statutes must be strictly construed, and that the officer or other persons claiming costs, which are contested, must be able to put his finger on the statute authorizing their taxation.  [Citations omitted.]"

            It should be noted that in this state any fees collected by a sheriff are not a part of his compensation (see RCW 36.17.010 and 36.17.020 making the salary provided by law full compensation for all services rendered) and must be turned over to the county treasurer monthly (Article XI, § 15, Washington Constitution; RCW 36.18.140).

            The complete fee schedule provides as follows (RCW 36.18.040):

            "Sheriff's fees.  Sheriffs shall collect the following fees for their official services:  For service of each summons and complaint, and return thereon, on each defendant, besides mileage, two dollars;

            "For making a return of 'not found' in the county upon a summons, besides mileage actually traveled, two dollars;

             [[Orig. Op. Page 4]]

            "For levying each writ of attachment or writ of execution upon real or personal property, besides mileage, three dollars;

            "For filing copy of writ of attachment or writ of execution with auditor, two dollars plus auditor's filing fee;

            "For chattel mortgage foreclosure (short form), levy three dollars; posting notice, two dollars; service of notice, two dollars;

            "For serving writ of possession or restitution without aid of the county, besides mileage, three dollars;

            "For serving writ of possession or restitution with aid of the county, besides mileage, five dollars;

           "For service and return of subpoena, upon each person served, besides mileage, one dollar;

            "For summoning each juror, besides mileage, one dollar;

            "For serving an arrest warrant in any action or proceeding, besides mileage, four dollars;

            "For serving or executing any other writ or process in a civil action or proceeding, besides mileage, two dollars;

            "For taking and approving any bond, in a civil action or proceeding, required by law to be taken or approved by him, except indemnity bonds, two dollars;

            "For each mile actually and necessarily traveled by him in going to or returning from any place of service, or attempted service, ten cents;

            "For making a deed to lands sold upon execution or order of sale or other decree of court, to be paid by the purchaser, six dollars;

             [[Orig. Op. Page 5]]

            "For making copies of papers when sufficient copies are not furnished, two dollars for first page and one dollar for each additional page;

            "For the service of any process for which no other fee is provided for herein, two dollars;

            "For the making of any return for which no other fee is provided herein, two dollars;

            "For the execution of any process for which no other fee is provided herein, four dollars;

            "For the service of affidavit and bond in replevin, two dollars for each defendant; approval of bond, two dollars; taking property, two dollars;

            "For posting notices of sale, or postponement, two dollars besides mileage;

            "For certificate of sale of real property, five dollars;

            "For serving notice of redemption, two dollars; certificate of redemption, five dollars;

            "For making a return of no property found, two dollars;

            "For estray sales, crying sale two dollars, besides mileage.  (1959 c 263 § 8; 1951 c 51 § 6; 1907 c 56 § 1, part; 1903 c 151 § 1; 1893 c 130 §§ 1, 2; Code 1881 § 2086; 1866 pp 94-99; 1861 pp 34-42; 1854 pp 368-376; RRS § 497, part.)"

            Also RCW 36.18.070 provides:

            "Single mileage chargeable when.  When any sheriff, coroner, or other peace officer serves more than one process in the same cause, or on the same person, not requiring more than one journey from his office, he shall receive mileage only for the most distant service.  (Code 1881 § 2094; 1869 p 373 § 16; RRS § 501.)"

             [[Orig. Op. Page 6]]

            QUESTION 1:

            The 1959 amendment to the fee schedule for sheriffs simply doubled the fees collectible, but made no provision for the collection of new fees except for the following:

            "For each mile actually and necessarily traveled by him in going to or returning from any place of service, or attempted service, ten cents;" (Emphasis supplied.)

            The prior 1951 statute did not contain the above underlined phrase.  It is a well-settled rule that interpretation of statutes which reenact, with certain changes, earlier laws, resort to the prior law may be had for "where a material change is made in the wording of a statute, a change in legislative purpose must be presumed."  Graffell v. Honeysuckle, 30 Wn. (2d) 390, 399, 191 P. (2d) 858 (1949).  Therefore, by applying the foregoing rule it is apparent that the legislature also intended to allow a sheriff to collect ten cents for each mile actually and necessarily traveled by him in going to or returning from any place of attempted service.  See AGO 55-57 No. 318 [[to Prosecuting Attorney, Clallam County on September 18, 1956]]holding that under the prior statute a sheriff AGO 55-57 No. 318 holding that under the prior statute a sheriff could not collect mileage for unsuccessful attempts of service, unless a return of "not found" resulted, for which a specific fee was provided.

            Hence, it is our conclusion that the sheriff is entitled to receive mileage of ten cents per mile for each of the four attempted services as well as the successful service.

            QUESTION 2:

            This question resolves itself to a determination of whether there is a specific fee applicable to returns made on executions, attachments, or orders of sale.

            We find no provision for a fee to be charged for any of the specific returns above mentioned, hence the omnibus provision allowing a two dollar fee for any return not otherwise provided for is applicable.  It provides:

            "For the making of any return for which no other fee is provided herein, two dollars;"

             [[Orig. Op. Page 7]]

            Therefore, it is our opinion that the proper fee to be charged for returns (real or personal) made on an execution, attachment or order of sale, is two dollars.

            QUESTION 3:

            The question here requires a determination of the type of writ or process included in the following statutes:

            "For serving or executing any other writ or process in a civil action or proceeding, besides mileage, two dollars;"

            "For the execution of any process for which no other fee is provided herein, four dollars;"

            It is apparent that the legislature included the above two provisions to cover any writ or process for which no other specific fee was provided.  It appears that the legislature, perhaps through an overabundance of caution, included the above two provisions in the fee schedule so as to allow a charge to be made for any writ or process served or executed by the sheriff and not covered by another provision in the fee schedule.

            It is not apparent from the provisions quoted just what type of writ or process the legislature intended to be included therein.  Therefore, it is difficult to state categorically the specific writs or process the legislature meant to cover, except to say the provisions would cover any not specifically covered by other provisions.

            The first provision quoted may have application, in certain instances, to extraordinary writs such as habeas corpus, that the sheriff would be required to serve or execute.  With reference to the term "process," also mentioned in this provision, it has been defined as follows:

            ". . . A process, in its ordinary sense, is a judicial writ, issued out of a court, expressing the command of a court, which the person to whom it is directed is bound to obey. . . ."  State ex rel. Hagan v. Superior Court, 139 Wash. 454, 460, 247 Pac. 942 (1926).

             [[Orig. Op. Page 8]]

            RCW 6.04.020 also defines the three types of executions, as follows:

            "There shall be three kinds of executions; one against the property of the judgment debtor, the second for the delivery of the possession of real or personal property, or such delivery with damages for withholding the same, and the third, commanding the enforcement of or obedience to any special order of the court, and in all cases there shall be an order to collect the costs."

            A show cause order served by the sheriff in a civil action, since no other fee is provided therefor, would also appear to come within this provision.  Also any civil process directing the sheriff to execute the same would be included.

            The second provision quoted also contains the phrase, "execution of any process," but does not state that it be in "a civil action or proceeding," and hence would appear to cover any special order of the court (process) requiring or commanding something to be done in a criminal action and which the sheriff is required to execute.

            QUESTION 4:

            The legislature specifically provided a fee of three dollars for levying each writ of attachment or execution and also a fee of two dollars for filing the same with the auditor.  The pertinent provisions of the statute are the following:

            "For levying each writ of attachment or writ of execution upon real or personal property, besides mileage, three dollars;

            "For filing copy of writ of attachment or writ of execution with auditor, two dollars plus auditor's filing fee;"

            Hence, since the legislature specifically provided for the collection of both the above fees, we believe the sheriff must collect a  [[Orig. Op. Page 9]] fee of $3.00 for the levying of a writ of attachment and also collect a fee of $2.00 for filing the levy with the auditor.

            It follows that where the levy of the writ of attachment or execution is only against personal property, the following fee provision is applicable:

            "For levying each writ of attachment or writ of execution upon real or personal property, besides mileage, three dollars;"

            The above fee provision is the only applicable to personal property since it is not necessary in such proceedings to file a copy of the writ with the auditor.

            QUESTION 5:

            We find no express provision in the fee schedule granting the sheriff the right to charge a minimum mileage fee for serving papers on various county officers, including persons in the county jail.  We believe, however, that in computing mileage traveled the sheriff may, to avoid accounting difficulties, round off the mileage traveled to the nearest mile.

            QUESTION 6:

            The complete fees to be charged for processing of a sale under order of sale and execution are as follows.

            As before set forth in Question 4, initially the sheriff should collect a fee of $3.00 for the levying of a writ of attachment and also collect a fee of $2.00 for filing the levy with the auditor.  Again, the applicable fee provisions are the following:

            "For levying each writ of attachment or writ of execution upon real or personal property, besides mileage, three dollars;

            "For filing copy of writ of attachment or writ of execution with auditor, two dollars plus auditor's filing fees;"

             [[Orig. Op. Page 10]]

            RCW 6.24.010 (sales under executions) provides that three notices shall be posted, one on the principal building on the realty, stating the time and place of sale.

            The sheriff is entitled to two dollars besides mileage for posting three notices pursuant to the following:

            "For posting notices of sale, or postponement, two dollars besides mileage;"

            The sheriff is entitled to the fee of $2.00 for crying (auctioning) the sale, plus mileage to and from the sale, pursuant to the following fee provisions:

            "For estray sales, crying sale two dollars, besides mileage."

            RCW 6.24.030 provides for the issuance of a certificate of sale by the sheriff to the purchaser.  The following fee is provided for this service:

            "For certificate of sale of real property, five dollars;"

            RCW 6.24.090 provides for the sheriff to make a return of the execution to the clerk of the court for which a two dollar fee should be charged as a result of the following:

            "For the making of any return for which no other fee is provided herein, two dollars;"

            RCW 6.24.220 provides for a sheriff's deed to be issued the purchaser after the redemption period has expired for which the sheriff shall collect the fee of six dollars pursuant to the following:

            "For making a deed to lands sold upon execution or order of sale or other decree of court, to be paid by the purchaser, six dollars;"

            With regard to RCW 6.24.010, which provides for the newspaper publication of the sale for four weeks, the fee entailed for such  [[Orig. Op. Page 11]] publication should be included as part of the taxable costs of the sale pursuant to RCW 6.24.060.

            For the sale of personal property under similar execution the following fees should be charged:

            "For levying each writ of attachment or writ of execution upon real or personal property, besides mileage, three dollars;"

            "For posting notices of sale, or postponement, two dollars, besides mileage;"

            "For estray sales, crying sale two dollars, besides mileage."

            "For the making of any return for which no other fee is provided herein, two dollars;"

            RCW 7.12.090 allows the sheriff to also charge for his trouble and expense of keeping the personal property, but for only such costs "as shall be reasonable and just."

            There is no fee allowed for the bill of sale issued by the sheriff pursuant to RCW 6.24.050, when personal property is sold upon an execution.

            It is also well to remember that statutes other than the sheriff's fee schedule may allow the sheriff to collect certain expenses not mentioned in the fee schedule and one should look therefor in the specific statutes under which the sheriff is required to do certain acts.  For example, under the replevin statute in special proceedings, RCW 7.64.090 provides that:

            "When the sheriff shall have taken the property as herein provided, he shall keep it in a secure place and deliver it to the party entitled thereto, upon receiving his lawful fees for taking, and his necessary expenses for keeping the same."  (Emphasis supplied.)

             [[Orig. Op. Page 12]]

            QUESTION 7:

            We believe a television set may be included within the exemption allowed a household by RCW 6.16.020 (3).  This statute provides for the exemption of bed and bedding plus "other household goods and utensils and furniture . . ."  The term "Furniture" is defined, in part, in Black's Law Dictionary, Fourth Edition, as "whatever is added to the interior of a house or apartment, for use or convenience."  A television set could also be taken as an exemption under subdivision (4) of the same statute which allows a person to select in lieu of the exemption for domestic animals, any of his other property not exceeding $250.00 in value.

            It is hoped that the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

RICHARD M. MONTECUCCO
Assistant Attorney General

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