Opinion No. Oag 32-84, (1984)

73 Op. Att'y Gen. 106

Opinion

RALPH E. SHARP, JR., Corporation Counsel Dodge County

You ask two questions concerning the fees a sheriff is entitled to receive in serving a summons.

You first ask whether section 814.70 (1), Stats., authorizes a sheriff to charge $8.00 for each attempt at service, as well as each successful service. It does. Section 814.70 states:

Fees of sheriffs. The sheriff shall collect the following fees:

(1) SERVICE OF PROCESS. For each service or attempted service of a summons or any other process for commencement of an action, a writ, an order of injunction, a subpoena or any other order, $8 for each defendant or person. If there is more than one defendant or person to be served at a given address, $4 for each additional defendant or person.

The initial inquiry in interpreting any statute is the statute's plain meaning. If the statute is unambiguous, resort to judicial rules of interpretation and construction is not permitted. State Historical Society v. Maple Bluff,112 Wis.2d 246, 252-53, 332 N.W.2d 792 (1983). The phrase "each service or attempted service" unmistakably requires payment for each attempted service of a summons, whether the service is ultimately successful or unsuccessful.

The predecessor statute to section 814.70 provided the sheriff one-half the usual fees "for attempting to serve." Sec. 59.28, Stats. (1979-80). Although this language could be interpreted as providing only a one time fee for unsuccessful service, present section 814.70 (1) has removed any ambiguity. The sheriff is entitled to the full fee for each service or each attempted service.

You next ask whether section 814.70 (3)(a) permits payment for mileage for attempted service. I conclude that it does not. That subsection states:

TRAVEL; CIVIL PROCESS. For travel in serving any summons, writ or other process, except criminal warrants:

(a) In counties having a population of less than 500,000, 20 cents for each mile actually and necessarily traveled.

In 53 Op. Att'y Gen. 44 (1964) this office interpreted section59.28 (2) which permitted a fee of 10 cents per mile "for each mile actually traveled going and returning" as permitting a sheriff to charge for mileage only when the sheriff is successful in making service.

Although the Legislature has amended the fees statute since that opinion and specifically amended section 814.70 (1) to provide for payment of fees for each attempted service, it has not changed the substance of present section 814.70 (3)(a). An attorney general's opinion is entitled to considerable weight when the Legislature amends a statute but makes no change in that part of the statute interpreted by the attorney general. Town ofVernon v. Waukesha County, 99 Wis.2d 472, 479, 299 N.W.2d 598 (Ct.App. 1980). Because the Legislature easily could have provided for payment of mileage for attempted service at the same time that it provided for payment of full service fees for attempted service, the conclusion expressed in 53 Op. Att'y Gen. 44 is still valid.

BCL:AL