August 4, 1976

Mr. John D. Manke, Sheriff
Fall River County
Hot Springs, South Dakota 57747

OFFICIAL OPINION NO. 76-74

County not authorized to pay expenses, other than mileage, of privately owned sheriff's vehicle

Dear Sheriff Manke:

You state that the Fall River County Sheriff and deputies use their privately owned vehicles as patrol cars. However, the mileage allowance received is insufficient to cover the total operating expenses.

The specific question you ask is whether the county commissioners may, in their discretion, furnish and pay for such items as insurance, fuel and maintenance in addition to a mileage allowance.

SDCL 7-12-18(9) authorizes mileage for sheriffs as follows:

(9) 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;

As an alternative, SDCL 7-12-12 authorizes the county commissioners to "furnish any motorcycle, automobile, truck or other vehicle, uniform and other equipment to the sheriff or his deputies." The last sentence of that provision then prohibits any mileage payments to sheriffs or deputies for whom motor vehicles are furnished.

Thus, the Legislature has provided county commissioners with two options. The county may: 1) provide, equip and maintain the patrol vehicles, or 2) authorize the use of private vehicles and provide a reimbursement for ex­penses within the limitations of subdivision (9) of SDCL 7-2-18.

In the latter case, it is my opinion that the commissioners may not reim­burse the sheriff or his deputies other than with the mileage payment specified in statute. If it were otherwise, the county commissioners would not be required to make a determination as to which option to exercise. They could, in fact, "furnish" the vehicle by paying a mileage allowance as well as all the actual operating expenses. Such would not be a very feasible approach for the county to take.

For the above-stated reason as well as the fact that I find no specific statutory authority for payment of actual expenses, it is my opinion that the answer to your question is NO. The Legislature, by setting a minimum and maximum mileage rate in SDCL 7-12-18(9) apparently felt there was suffi­cient flexibility to take care of any increase in operating costs. If, as you in­dicate, the present statutory maximum is unrealistic, it is a matter for the next legislative session to consider.

Respectfully submitted,

WILLIAM J. JANKLOW
ATTORNEY GENERAL

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