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lected by the sheriff or other proper officer on order of execution, to be taxed against the party charged with the payment of such money, a commission of one per centum on the first one thousand dollars and one-fourth of one per centum on all exceeding one thousand dollars;
“Would this percentage apply to the receipts of alimony by the clerk, ordered by the court to be paid to the clerk and to be disbursed by him?
"If you hold in the affirmative, does the percentage, which the clerk would charge to the person paying the alimony in a court, be a cost which would entitle the clerk to charge the additional fee mentioned in Section 2901, General Code, which reads as follows:
*For entering on cash book costs received in each cause, twenty-five cents;' “and would this apply in instances where alimony is ordered paid in a court weekly? In other words, if you hold in the affirmative, would the commission and the entry fee have to be taxed on every payment of alimony?
“Would the commission mentioned in Section 2901, General Code, as quoted above, apply to deposits required by the court to be made in divorce cases to guarantee costs, and would same also apply to attorney fees ordered paid into court by the court at any time and in any kind of a case ?
"We think these questions are important because we believe that in no instance do clerks of courts tax this percentage for receiving and disbursing alimony."
Section 2900 G. C., provides in part:
“For the services hereinafter specified, when rendered, the clerk shall charge and collect the fees provided in this and the next following section and no more."
In the next following section (2901) is found the provision first above quoted in your inquiry. The language of the provision of Section 2901 G. C., quoted, when read in connection with that of Section 2900 G. C., supra, is clear, specific and unequivocal to the effect that the clerk of courts shall charge and collect a commission of one per centum on the first one thousand dollars and one-fourth of one per centum on the excess of that amount of all moneys received and disbursed by him, pursuant to an order of court or on judgments, except costs and fees and money collected by the sheriff or other proper officer on order of execution. Barring the specific exceptions, the language of the provision under consideration comprehends all money received and disbursed by the clerk in pursuance of an order of court or on judgments, so that unless payments of alimony come within such specific exceptions,
they would be within the requirement of this provision for the collection of the commission prescribed.
Alimony is clearly not within the exception of fees and costs and therefore when not collected by the sheriff or other proper officer on order of execution, but paid pursuant to an order or on a judgment of court to the clerk in the discharge of such order or judgment for distribution by the clerk, such payments seem to come clearly within the requirement that the clerk shall charge and collect the prescribed commission, to be taxed against the party charged with the payment of such money. I am therefore of opinion that your first inquiry must be answered in the affirmative and that it is the duty of clerks of courts to charge and collect the commission prescribed in that part of Section 2901 G. C., above quoted, upon all receipts of alimony ordered by the court to be paid to such clerk and by him disbursed.
The language quoted from Section 2901 G. C., in your second inquiry, is another of numerous specifically enumerated fees in which it is provided that clerks shall charge and collect.
It will be observed that the language here used is hardly susceptible of such construction as would require the collection of twenty-five cents for entry of each payment of costs received in each cause. On the contrary, it seems clear that the meaning of this provision is that the clerk shall charge and collect once in each cause for entering on the cash book the costs received by him in that cause. It will therefore follow that if the commission referred to is an item of costs in the cause at all, the fee of twentyfive cents for entering on cash book costs received would be chargeable but once in each cause.
Answering your second inquiry more specifically, I am of opinion that the commission should be taxed on every payment of alimony ordered by the court to be paid to the clerk and that the fee of twenty-five cents for entering on the cash book costs received may be charged but once in each cause.
The first part of your third and last inquiry, I assume, has reference to the pre-payment of costs in divorce cases, which is required in the provisions of Section 11981 G. C., following:
“No clerk of a court of common pleas shall receive or file a petition for divorce or alimony until the party named as plaintiff therein, or some one on his or her behalf, makes prepayment or deposit with the clerk of such an amount as will cover the costs likely to accrue in the action, exclusive of attorney fee, or gives such security for the costs as in the judgment of the clerk is satisfactory.
This pre-payment or deposit is only an advance payment of costs and fees and is, therefore, within the exception specifically made in the provision of 2901 G. C., relative to commission on money received and disbursed by the clerk.
I am, therefore, of opinion that commission may not be charged and collect on pre-payments or deposits for costs in divorce cases. Such money is not in any sense paid pursuant to an order of court or on judgment.
As to the second part of your third inquiry, it may be said that it is hardly practicable here to lay down a rule that would cover every conceivable case without exception. In the majority of those cases in which attorneys' fees, as such, are required to be paid into court for an opposite party, such attorney fees constitute a part of the judgment proper or are taxable as costs in the case. If such attorney fee is taxable as costs in the case, then under the exception as to fees and costs, no commission is chargeable thereon. If the attorney fees are a part of the judgment proper, then payments thereon to the clerk would be subject to the commission.
It may be observed that what are usually termed attorney fees in divorce and alimony cases are in fact a part of alimony pendente lite and if paid to the clerk on order of the court would be subject to the commission charge the same as other payments of alimony ordered by the court to be paid to the clerk.
The Sheriff of a County Having no Workhouse Transporting More
Than One Person to a Workhouse Provided by the County Commissioners, is Entitled Himself to Six Cents a Mile Going and Returning, and to Five Cents a Mile for Transporting Each Convict, and for the Services of Each Guard Five Cents Per Mile Going and Coming (Sec. 12385, G. C.) For All Practical Purposes the Provision in Section 12385, General Code, “to be Allowed as in Penitentiary Cases" Might be Deemed to Refer Solely to the Number of Guards That May be Employed.
No. 1259—(Opinion Dated February 10, 1916.) Bureau of Inspection and Supervision of Public Offices, Columbus,
Gentlemen: Under date of January 24th you submit for my opinion the following inquiry:
"We desire to call your attention to an opinion of attorney general Timothy S. Hogan, approving an opinion of Hon. Wade H. Ellis, attorney general, to be found in the Annual Report of Attorney General, 1913, Vol. 1, page 379, holding
that officers serving writs are entitled to mileage for the actual number of miles traveled in serving each writ.
“We desire your opinion as to whether this could be applied to the mileage of an officer conveying more than one prisoner to a work house at the same time, in view of the language of Section 12385, General Code. Does the clause in said section: "To be allowed as in penitentiary cases,' have reference to the number of guards that may be employed by the officer, as provided in Section 13725, General Code, or does it refer to the manner and method of allowance and payment for trasportation ?"
I have examined the opinion rendered by Mr. Hogan, referred to by you in your letter, and find that the same was rendered to your bureau under date of October 8, 1913. The inquiry as submitted in that opinion was as follows:
“May a sheriff serve two writs such as subpoenas, summonses, writs of conveyance to workhouse, either in civil or criminal cases, on the same trip and charge mileage upon each of such writs?
“If you hold that mileage is limited to the distance actually traveled, how should it be taxed ?
“May it be apportioned to the several writs in taxing costs ?
In that opinion reference was made to an opinion rendered by Hon. Wade H. Ellis, as attorney general, on February 2, 1905, and found reported in the report of the attorney general for 1905, at page 51. The opinion of Attorney General Ellis was relative to the construction of Section 1230b R. S. respecting the right of the sheriff of Champaign county to charge mileage on each of two writs served on William Wooley in the Ohio State Reformatory at Mansfield, when both writs were served at the same time.
Attorney General Hogan in his opinion calls attention to that part of Section 2845 G. C., which provides as follows:
"In addition for the fee for service and return the sheriff shall be authorized to charge on each summons, writ, order or notice, except as otherwise specifically provided by law, a fee of eight cents per mile going and returning, provided, that where more than one person is named in such writ, mileage shall be charged for the shortest distance necessary to be traveled."
and then states the law to be that the rule laid down by Mr. Ellis should be followed until otherwise provided by law. The rule laid down by Mr. Ellis was stated to be that the statutory mileage could be allowed on both writs referred to in the inquiry.
Mr. Hogan was undoubtedly endeavoring to answer the question submitted to him generally and did not take cognizance of the provisions of Section 12385 G. C., which provides as follows:
“The sheriff, or other officer, transporting a person to such workhouse shall have the following fees therefor: six cents per mile for himself, going and returning, and five cents per mile for transporting each convict, and five cents per mile going and coming for the services of each guard, to be allowed as in penitentiary cases, the number of miles to be computed by the usual routes of travel, to be paid in state cases out of the general revenue fund of the county on the allowance of the county commissioners, and, in cases for the violation of the ordinances of a municipality, by such municipality on the order of the council thereof."
From a reading of the above section it is plainly to be seen that the sheriff of a county having no workhouse transporting more than one person to a workhouse provided for by the county commissioners is entitled himself to six cents a mile going and returning and to five cents a mile for transporting each convict, and for the services of each guard five cents per mile going and coming.
In view of the language of Section 12385, supra, I am of the opinion that the opinion rendered by Mr. Hogan, as found in Vol. 1 of the 1913 reports of the attorney general at page 379, is not to apply to the conveyance of more than one person to a workhouse by the sheriff of a county in which there is no workhouse.
You further ask whether the clause in said Section 12385, supra, “To be allowed as in penitentiary cases,” has reference to the number of guards that may be employed to help convey the convicts to the workhouse, or does it refer to the manner and method of allowance and payment for transportation. You refer to Section 13725 G. C., which section provides as follows:
"In transporting convicts to the penitentiary, the sheriff may employ one guard for every two convicts transported; but the court may authorize a larger number, in which case a transcript of the order of such court shall be certified by the clerk thereof, under the seal thereof, and the sheriff shall deliver it to the warden of the penitentiary with such convict. The sheriff shall receive eight cents per mile for mileage, five cents per mile for transporting each convict and six cents per mile for the service of each guard, the number of miles to be computed by the usual route of travel.”
Section 12385 as originally enacted on March 19, 1883, 80 0. L., 220, provided that the sheriff or other officer transporting any person to such workhouse should have the same fees as al