[63] Opinion by
Beatty, C. J., Lewis, J.,
concurring.
This was an action brought by the plaintiffs as assignees of Wm. H. Howard, late Sheriff of Storey County, against the respondents, for official services rendered by the late Sheriff to the corporation of the City of Virginia.
The action was for $8,688.60, a part of that sum being for services and expenditures in the Probate Court, and the balance of the demand for services, etc., in a tax suit in the District Court.
A bill of particulars was demanded by defendants, and one was filed as required. The bill of particulars which we find in the transcript contains the items of charges for the services both in the Probate Court and District Court.
The Judge below, in making up his finding of facts, takes the bill of particulars as a basis. From this bill of particulars he deducts certain items and portions of items as improperly charged to defendants.
These deductions amount in the aggregate, as footed up in the transcript, to $5,951.65. There is, however, a mistake in carrying out the Judge’s figures in one line to the amount of $20.
The true deduction, on the Judge’s theory, should have been $5,971.65. But this $20 will not in any way affect the judgment in this Court. We will therefore adhere to the figures of the transcript, and say the deduction made from the bill of particulars was $5,951.65. The Judge then finds that while the complaint is for $8,688.60, the bill of particulars, after deducting the credits therein contained, is for only $7,273.60, showing a discrepancy between the complaint and bill of particulars of $1,415. He then adds this $1,415 to the amount of deductions made, (say $5,951. 65) which makes a total of $7,366.65. This latter sum he deducts from the amount claimed in the complaint, and renders judgment for the balance' in favor of the plaintiffs. That judgment was for $1,321.95. From this judgment plaintiffs appeal. This deduction of $1,415 for the discrepancy between the sum claimed in the complaint and the footing up of items in the bill of particulars, is evidently a mistake. The bill of particulars foots up on the debit side $8,042.90. From this amount is to be deducted a credit of $113, [64] leaving the actual amount claimed in the bill of particulars $7,929. 90, or $656.30 more than the Court below estimated.
If we deduct from this the clerical error of $20 made on the other side, still the judgment for plaintiffs is less by $636.30 than it should be on the theory of the Judge in whose Court it was rendered. This would entitle the appellants either to a reversal or modification of the judgment. As there are other matters at issue in this case, on which this Court is not able, from the confused statement of facts in the transcript, to arrive at a proper conclusion, we will reverse the judgment, and order a new trial.
But before sending back the case we will, as far as practicable, dispose of the points raised on this appeal. The bill of items in the transcript is for services in connection with several suits in favor of the city in the Probate Court, and one suit only in the District Court.
There seems to be no complaint as to the rulings of the Court below with respect to the costs in Probate Court. The only open question is, what should have been the costs allowed for services in the District Court suit. The facts in regard to this suit, so far as we can understand them, are as follows: Two hundred and seventy-eight lots in the City of Virginia, which were assessed to unknown owners, were delinquent for the taxes of the year 1863. The city Board of Aldermen passed an ordinance in regard to the collection of city taxes, the thirty-first section of which reads as follows:
“ After the publication, as in the last section provided, it shall be the duty of the City Attorney to institute proceedings in any Court of competent jurisdiction to enforce the payment of taxes due the city, and in every case in which suits are so brought, if judgment be obtained, the Court in which such judgment is rendered shall tax, as City Attorney’s fees, twenty-five per cent, on the amount recovered, which shall be collected from the defendant, but in no event to be a charge against the city; and shall also tax the same fees to other officers as are allowed such officers for similar services in civil cases.”
Acting under this ordinance, the City Attorney brought suit against John Doe, the unknown owner,'and the two hundred and seventy-eight lots. It seems however, that there was by mistake [65] one whole tier or range of lots included in this number which had no existence in the city. This reduced the number of delinquent lots, but to what extent is not clearly shown by the transcript. The statements of the Deputy Sheriff, who made the service, are not intelligible on this point. But the judgment was against two hundred and forty lots, and this was probably the true number of delinquent lots on which service was made, or attempted to be made. It is true, the Judge in his findings says that service was made by posting on two hundred and fifty-eight of the lots. But this is probably a mistake. The Under Sheriff, who kept the books of the office, charges for seven hundred and twenty copies of summons, complaint, etc., and he shows, if we understand his testimony, that there were three copies posted for each lot. This would make the number of lots served two hundred and forty, corresponding with the judgment.
The question for determination is, what compensation should be allowed the assignees of the Sheriff for services in connection with the suits against these lots.
It is contended on the part .of the city that there was no law authorizing this suit in rem against the lots, and therefore the charges made by the Sheriff for service on the lots should be totally disregarded : that they are not legitimate charges, and cannot be maintained against the city.
The City Attorney brought the suit in this way. It was within the sphere of his duty to determine in what manner suit for delinquent taxes should be brought. Having brought the suits and directed the manner of service, we think it was the duty of the Sheriff to serve the summons, as directed 'by the City Attorney. In this particular we think the attorney properly represented the city.
The Under Sheriff asserts that the City Attorney directed him to pursue the General Revenue Law in serving summons in this case, and that he acted under that instruction.
We will examine now what the General Revenue Law requires, and what fees the Sheriff could charge for such services.
The General Revenue Law provides that where there is a suit in rem against the delinquent property, service shall be made by delivering a copy of the summons to parties in possession of that property. [66] and posting a copy on the property. (See Section 40, Revenue Law 1862.)
It does not in such case provide for posting copies at the courthouse or any other public place. In regard to the unknown defendant, John Doe, one copy of the summons might have been posted at the court-house door to give him notice. But there was no pretense for posting two or three hundred copies of the summons at the court-house door or any other public place.
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[63] Opinion by
Beatty, C. J., Lewis, J.,
concurring.
This was an action brought by the plaintiffs as assignees of Wm. H. Howard, late Sheriff of Storey County, against the respondents, for official services rendered by the late Sheriff to the corporation of the City of Virginia.
The action was for $8,688.60, a part of that sum being for services and expenditures in the Probate Court, and the balance of the demand for services, etc., in a tax suit in the District Court.
A bill of particulars was demanded by defendants, and one was filed as required. The bill of particulars which we find in the transcript contains the items of charges for the services both in the Probate Court and District Court.
The Judge below, in making up his finding of facts, takes the bill of particulars as a basis. From this bill of particulars he deducts certain items and portions of items as improperly charged to defendants.
These deductions amount in the aggregate, as footed up in the transcript, to $5,951.65. There is, however, a mistake in carrying out the Judge’s figures in one line to the amount of $20.
The true deduction, on the Judge’s theory, should have been $5,971.65. But this $20 will not in any way affect the judgment in this Court. We will therefore adhere to the figures of the transcript, and say the deduction made from the bill of particulars was $5,951.65. The Judge then finds that while the complaint is for $8,688.60, the bill of particulars, after deducting the credits therein contained, is for only $7,273.60, showing a discrepancy between the complaint and bill of particulars of $1,415. He then adds this $1,415 to the amount of deductions made, (say $5,951. 65) which makes a total of $7,366.65. This latter sum he deducts from the amount claimed in the complaint, and renders judgment for the balance' in favor of the plaintiffs. That judgment was for $1,321.95. From this judgment plaintiffs appeal. This deduction of $1,415 for the discrepancy between the sum claimed in the complaint and the footing up of items in the bill of particulars, is evidently a mistake. The bill of particulars foots up on the debit side $8,042.90. From this amount is to be deducted a credit of $113, [64] leaving the actual amount claimed in the bill of particulars $7,929. 90, or $656.30 more than the Court below estimated.
If we deduct from this the clerical error of $20 made on the other side, still the judgment for plaintiffs is less by $636.30 than it should be on the theory of the Judge in whose Court it was rendered. This would entitle the appellants either to a reversal or modification of the judgment. As there are other matters at issue in this case, on which this Court is not able, from the confused statement of facts in the transcript, to arrive at a proper conclusion, we will reverse the judgment, and order a new trial.
But before sending back the case we will, as far as practicable, dispose of the points raised on this appeal. The bill of items in the transcript is for services in connection with several suits in favor of the city in the Probate Court, and one suit only in the District Court.
There seems to be no complaint as to the rulings of the Court below with respect to the costs in Probate Court. The only open question is, what should have been the costs allowed for services in the District Court suit. The facts in regard to this suit, so far as we can understand them, are as follows: Two hundred and seventy-eight lots in the City of Virginia, which were assessed to unknown owners, were delinquent for the taxes of the year 1863. The city Board of Aldermen passed an ordinance in regard to the collection of city taxes, the thirty-first section of which reads as follows:
“ After the publication, as in the last section provided, it shall be the duty of the City Attorney to institute proceedings in any Court of competent jurisdiction to enforce the payment of taxes due the city, and in every case in which suits are so brought, if judgment be obtained, the Court in which such judgment is rendered shall tax, as City Attorney’s fees, twenty-five per cent, on the amount recovered, which shall be collected from the defendant, but in no event to be a charge against the city; and shall also tax the same fees to other officers as are allowed such officers for similar services in civil cases.”
Acting under this ordinance, the City Attorney brought suit against John Doe, the unknown owner,'and the two hundred and seventy-eight lots. It seems however, that there was by mistake [65] one whole tier or range of lots included in this number which had no existence in the city. This reduced the number of delinquent lots, but to what extent is not clearly shown by the transcript. The statements of the Deputy Sheriff, who made the service, are not intelligible on this point. But the judgment was against two hundred and forty lots, and this was probably the true number of delinquent lots on which service was made, or attempted to be made. It is true, the Judge in his findings says that service was made by posting on two hundred and fifty-eight of the lots. But this is probably a mistake. The Under Sheriff, who kept the books of the office, charges for seven hundred and twenty copies of summons, complaint, etc., and he shows, if we understand his testimony, that there were three copies posted for each lot. This would make the number of lots served two hundred and forty, corresponding with the judgment.
The question for determination is, what compensation should be allowed the assignees of the Sheriff for services in connection with the suits against these lots.
It is contended on the part .of the city that there was no law authorizing this suit in rem against the lots, and therefore the charges made by the Sheriff for service on the lots should be totally disregarded : that they are not legitimate charges, and cannot be maintained against the city.
The City Attorney brought the suit in this way. It was within the sphere of his duty to determine in what manner suit for delinquent taxes should be brought. Having brought the suits and directed the manner of service, we think it was the duty of the Sheriff to serve the summons, as directed 'by the City Attorney. In this particular we think the attorney properly represented the city.
The Under Sheriff asserts that the City Attorney directed him to pursue the General Revenue Law in serving summons in this case, and that he acted under that instruction.
We will examine now what the General Revenue Law requires, and what fees the Sheriff could charge for such services.
The General Revenue Law provides that where there is a suit in rem against the delinquent property, service shall be made by delivering a copy of the summons to parties in possession of that property. [66] and posting a copy on the property. (See Section 40, Revenue Law 1862.)
It does not in such case provide for posting copies at the courthouse or any other public place. In regard to the unknown defendant, John Doe, one copy of the summons might have been posted at the court-house door to give him notice. But there was no pretense for posting two or three hundred copies of the summons at the court-house door or any other public place.
Perhaps the best way to express our views as to this case will be to take the bill of particulars, item by item, and compare it with the Fee Bill.
The first charge in this bill is for serving 720 copies of summons; if the law had been followed, only 241 copies could be charged for —one for each lot, and one for John Doe.
Next for making-720 copies ; this should have been for making 241 copies.
The next charge is $859.50 for mileage ; this is entirely extravagant. The mileage allowed by law is only forty cents a mile for going only to serve a summons. And if a number of summons could be served by the same travel, only one mileage can be charged. Here the most distant lot was only one mile, so if separate mileage was charged on each lot it would only amount to $96. But as a number of lots might be reached by traveling not over one mile from the starting point at the court-house, perhaps not more than one-tenth of that amount should be charged. This must be a matter of proof. If a party could on an average reach ten lots in a mile’s travel from the court-house, there should be allowed forty cents for each ten lots, and'so in proportion, if the distance to be traveled should exceed or fall short of one mile for each ten lots, for the entire two hundred and forty.
There is a charge of $1,240 for posting 620 notices of sale. The law required three such notices, and no more. There is nothing requiring a separate notice of sale to be posted for each separate piece of property.
Five hundred and sixty dollars is charged for advertising sale in newspaper. The law requires one notice to be published once a week for twenty days. The city would only be responsible for the reasonable [67] price of such advertisement — say for three weekly insertions of such notice. The Court, in allowing Í75 for this item, probably allowed a liberal price. But this will be the subject of proof. There is no dispute about Sheriff’s commissions.
The next charge is for making 386 certificates of sale. The Sheriff was only allowed here to charge for one certificate and a duplicate, say two copies in all. He charges $193 for filing duplicates. He was entitled to just fifty cents for filing one duplicate. He should have been allowed to charge for stamps on one certificate only.
We have stated in the foregoing part of this opinion, what we thought to be the legitimate charges for services in a case where a suit was brought, under the General Revenue Law, against one unknown owner and a number of delinquent lots.
There are however behind this several other questions. The Under Sheriff states distinctly that the City Attorney directed them, at the Sheriff’s office, to pursue the General Revenue Law in making service in this case. He then states that they did make service in the same manner as collectors did. In other words, if we understand him, other officers had been in the habit of serving three copies, when the law only required one; and if other officers had been in the habit of thus trebling the amount of fees the law allowed, the Sheriff might do the same. That the Sheriff would have been justified by many precedents in coming to such a conclusion, we are fully aware. But this Court is not yet prepared to hold that when one officer extorts illegal fees, all his successors will be justified in following the precedent.
The Under Sheriff also says that the City Attorney directed him to post copies on the court-house door, and in another public place in the city. These last statements, however, were made in response to leading interrogatories. Although asked several times about what were the directions of the City Attorney, he said nothing of this until led right up to that point by questions in the most objectionable form. We are charitably inclined to think the witness did not intend to say that the City Attorney gave instructions in this language; but merely that he instructed witness to serve as the General Revenue Law required in such cases; and the witness him[68] self concluded that the summons should be posted on the courthouse door and some other public place, because some other officer had pursued that course. Where there is no ambiguity in the law we cannot, without clear and satisfactory evidence, believe the City Attorney gave any such absurd instruction, which could have answered no other purpose but to run up an exorbitant bill against the city. If such instructions were given, (and we can but repeat that we think the thing highly improbable) there not being the slightest ambiguity in the law, it would then be a question for the jury or Court below to determine whether this was not evidence of fraud or combination to extort illegal fees from the city.
Again, if the Sheriff was directed to pursue the General Revenue Law, and he acted under that law, was there not an implied contract that he would be bound by the provsions of that law so far as his fees were concerned ? Or in other words, could he legally collect fees from the city for services which the very law under which he was proceeding declares shall only be collected from the delinquents or property on which the taxes are delinquent ? As this point has not yet been fairly presented in the case, and proof may be introduced as to what was the understanding on this point, we will not now attempt to determine it. The" law did not require the Sheriff to make any such services, and if the City Attorney required such to be made, the Sheriff might have refused without the payment of his fees in advance. Or he might have made the service, trusting to the promise of the City Attorney that his fees should he paid by the city at some future time; or he might have made them, trusting to his ability to collect from the delinquents.
The appellant contends the city was estopped from denying the validity of this claim, because after judgment the City Council authorized some person to bid in these lots at the Sheriff’s sale for the benefit of the city. That those bids were for the amount of the taxes due on each lot, and its proportionate share of the costs. That the city having thus had the benefit of these over-charges, cannot now say they were not legitimately a part of the judgment.
Had these lots been actually sold and the money for costs paid into the city treasury, perhaps there would have been some force [69] in this position. But the lots were not sold. The city derived no benefit from the illegal costs thus added to the taxes.
Besides, there was no law or authority allowing the city corporation to buy city lots sold for taxes, that we are aware of. That part of the proceeding was utterly void and without any authority. No rights were thereby conferred on the Sheriff that he did not before possess.
Judgment reversed, and a new trial granted.