July 22, 1977

Mr. Elroy Johnson 
Brown County Sheriff 
Post Office Box 308 
Aberdeen South Dakota 57401

Official Opinion No. 77-60

Mileage rates for sheriffs

Dear Sheriff Johnson:

You have requested an interpretation of subdivision (9) of SDCL 7-12-18 which authorizes the following mileage allowances for county sheriffs: 
    
For traveling expenses in cars or planes owned by the sheriff, or necessary emergency vehicles, not to exceed twenty cents for each mile actually and necessarily traveled by car, with any additional mileage allowances being set and paid by the county; twenty-five cents for each mile actually and necessarily traveled by single-engine aircraft over one hundred horsepower and forty cents for each mile actually and necessarily traveled by twin- engine aircraft with total horsepower in excess of three hundred; except by train, bus, plane, or other commercial vehicle; provided, however, that the sheriff shall be entitled to a minimum mileage allowance of at least three cents over and above the rate set for state employees by the state board of finance; . . .  (Emphasis added.)

The specific question you asked is:

QUESTION: 

What is the legal effect of the phrase, “with any additional mileage allowances being set and paid by the county?”

A review of the legislative history of subdivision (9) reveals that the language in question was added by the 1973 Legislature when the maximum mileage allowance was $.12 per mile.  The allowance was subsequently raised to $.20 per mile in 1974, and the minimum rate of three cents above the state employees' rate was established in 1976.

Therefore, one possible interpretation could be that the Legislature, by increasing the maximum rate and establishing a minimum allowance, intended to repeal that provision giving the county commissioners discretion to set and pay additional mileage allowances.  However, it is also a well established rule of statutory construction that all provisions of a statute are to be given full force and effect whenever possible (State v. Johnson, 121 N.W. 785), and repeal by implication will not be tolerated unless there is manifest and total repugnancy (Jacobi v. Clarkson, 224 N.W. 535).

Thus, until such time as the Legislature clarifies this provision it is my opinion that the board of county commissioners may, by appropriate official action specifying the reasons for a necessity of an additional allowance, authorize and pay a mileage allowance in excess of $.20 per mile for miles actually and necessarily traveled by the sheriff in the performance of his duties.  The $.20 per mile figure should be considered, however, as a legislative guideline and exceeded only when absolutely necessary.

Respectfully submitted,

William J. Janklow
Attorney General

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