STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

April 19, 1968

Leo P. Flynn
State’s Attorney, Grant County
Milbank, South Dakota 57252

OFFICIAL OPINION NO. 67-68 pg. 470

Courts. Payment of Official Court Reporter’s meals, transportation, and mileage.

You have requested my official opinion based on the following facts:

“Judge Sigurd Anderson’s official court reporter’s residence is in Milbank, South Dakota. Judge Anderson’s residence is in Webster, South Dakota. It is required that the court reporter travel to Webster, South Dakota for the discharge of the Court’s duties, i.e., court proceedings, preparation of memorandum opinions, ruling on motions, etc., correspondence, general office functions, etc.”

You have called my attention to Chapter 157 of the Session Laws of South Dakota for 1965 and more particularly to the last paragraph thereof which states:

“Where a shorthand reporter is required in the discharge of his official duties, to leave the county of his residence, or leave the city or town of his residence, to perform such duties, he shall be paid his actual and necessary hotel and living expenses, and transportation expenses as shall be incurred, which account shall be itemized and approved by the Presiding Judge of the Circuit Court, and certified to the County Auditor of the county in which such expenses are incurred, and shall be paid out of the treasury of the county for which such services are performed.”

You then ask the specific question:

“We request your opinion as to whether or not the official court reporter is entitled to receive his actual and necessary living expenses (meals) and transportation expenses (mileage) for travel to and from Webster, South Dakota.”

It is my opinion that your question will have to be answered in the affirmative.

SDC 65.0202 (8) states:

“Whenever the meaning of a work or phrase is defined in any statute such definition is applicable to the same word or phrase wherever it occurs except where a contrary intention plainly occurs.” (emphasis added)

While I am unable to find any statute which clearly defines residence in the context which we have under consideration here, our Supreme Court has considered to question of residence. In the Appeal of Lawrence County, 21 N.W.2d 57, 58 the court stated:

“A residence is established by personal presence in a fixed and permanent abode, with the intent of remaining there.”

This decision was quoted and supported in Nelson v. Nelson, 24 N.W.2d 327.

In my opinion, the wording of Chapter 157 of the Session Laws of 1965 is clear and not ambiguous. Simply stated, it says that any time a reporter has to leave the place of his residence in the discharge of his official duties, he shall be reimbursed for such of his expenses as are approved by the Presiding Judge of the Circuit Court. In the facts you have given me, the court reporter, to perform his official duties, is forced to leave his residence in Milbank and travel to the residence of the Court in Webster. This plainly comes within the wording of the statute as it is now written and it is my opinion that the court reporter is entitled to the expenses he incurs making these trips.

I may add that as a matter of policy, it would appear to me that the term “residence” as used in this statute, should mean the “residence” of the court and not the residence of the reporter. It would appear that the statute, as it is now written, opens Pandora’s Box to all types of unnatural or unhealthy situations. It seems only natural that the court reporter would have his personal residence in the same place as the Court for reasons too obvious to go into here, but the Legislature has given us no hint as to its intention in this statute and we are bound by the words of the statute and the interpretation of the word “residence” as defined by our Supreme Court. It is my opinion that any different interpretation to be given this statute will have to come from the Legislature.