I wish to explain my vote in a few words.
As the court is not advised as to the amount of fees received by the sheriff of Erie county in civil causes and proceedings, in addition to his salary, we are not able to consider the statute of 1891 (Ch. 108) from the standpoint of the legislature, but presumably these fees are large and must have been taken into account in fixing the total compensation. *Page 158
If the aggregate compensation of the sheriff from salary and fees was deemed sufficient to warrant the legislature in requiring him to pay the salaries of the under sheriff and deputy sheriffs as he had always done, it was only necessary to leave the subject untouched by the act of 1891 to accomplish that result.
If the aggregate compensation was not deemed sufficient, then it is reasonable to suppose that so radical a change as to make these salaries a county charge, either directly or by way of disbursements allowed the sheriff, would have been expressed in apt language.
There is no such provision in the statute, and resort must be had to inference and forced construction to find legislative intention to that effect.
The compensation of the sheriff comes from two sources, public and private, and the act of 1891, dealing with the sheriff of Erie county, turned the public fees into the county treasury and gave the private fees to the sheriff.
The scheme of the statute seems to my mind clear. In lieu of the public fees the sheriff is given a salary of five thousand dollars, which is in full for all his services in those matters out of which the public fees arise, but he is permitted in that connection to collect his actual disbursements. It is also provided that the services of deputy sheriffs in these same matters shall be paid for at the rate allowed by law, except that where the deputy is a regular employee of the sheriff's department and under a salary from him or from the county, he is confined to actual disbursements.
In addition to his salary the sheriff is entitled to the fees in civil causes and proceedings, paid by litigants and individuals, as compensation for his services and disbursements rendered therein, and liabilities thereunder, and the services of the under sheriff and other employees of his office in such cases and proceedings.
It thus appears that the only disbursements allowed to be collected by the sheriff from the county are those he actually incurs in the matters out of which the public fees arise, as *Page 159 those made in civil causes or proceedings are paid by the litigants or individuals interested.
When we consider that the under sheriff and deputies are occupied to a very great extent in rendering services and incurring disbursements in civil causes and proceedings which are paid for by the parties, I cannot believe that it was the legislative intention to change the old rule in any way, but rather to leave the sheriff to take all the fees and pay his under sheriff and deputies as heretofore.
I vote for affirmance of the order appealed from.
PARKER, Ch. J., reads for reversal. GRAY, O'BRIEN and MARTIN, JJ., concur. BARTLETT, J., reads for affirmance, and HAIGHT and VANN, JJ., concur.
Orders reversed and proceedings remitted to the Special Term for further disposition, with costs in all courts.