April 8, 1985

Sheriff David H. Hunhoff 
Yankton County Sheriff's Office 
Box 602 
Yankton, South Dakota 57078

OFFICIAL OPINION NO. 85-17

Sheriff's fees

Dear Sheriff Hunhoff:

You have requested the official opinion of this office regarding the following factual situation:

FACTS: 

1.  On August 27, 1984, the Minnehaha County Sheriff's Office served a subpoena sent to them for service by the Yankton County Sheriff's Office. The subpoena was served on a witness to a criminal offense being prosecuted in Yankton County and the individual served was a State's witness.  The prosecution was under the heading of 'State of South Dakota vs. Robert Collier.'  A $5.25 fee for the service was sent to Yankton County by Minnehaha County. 

2.  On January 21, 1985, the Gregory County Sheriff's Office served a Summons and Complaint sent to them by the Yankton County Sheriff's Office for service in the matter of 'State of South Dakota vs. License No. DAF746.'  The papers were to be served on the owner of the car (Violet Herman) in an action commenced by Yankton County under SDCL 32-32-9 and 32-32-10.  The Gregory County Sheriff's return was accompanied with a statement for service fees in the amount of $10.50 for service and $12.50 for mileage.

In regard to the above factual material, you have asked the following question:

QUESTION: 

You have asked, as to each of the factual situations, whether Yankton County should pay for service of process.

You have speculated that SDCL 7-12-20 may exempt these fees from payment for the reason the respective actions were commenced by the County.  SDCL 7-12-20, as last amended, and in full force and effect at all times referred to in your Fact situation, is as follows: 

7-12-20.  If any sheriff or other officer serves any summons, subpoena, bench warrant, venire, or other process in any action to which the state is a party, the officer shall be required to endorse upon the writ or process or upon a paper attached thereto, at the time he makes his return of service thereon, a statement of his fees for the service, the number of miles traveled, and the amount of his mileage; and in case he shall fail to make his return with the statement and file the same with the clerk of the court from which the process issued, before judgment shall be pronounced in the action to which the process relates, he shall receive no fees for the service, and the county commissioners of the county where the service is performed are prohibited from allowing the same.  No fee may be required of a county, its officers or board of county commissioners in any action commenced by the county.

SDCL 7-16-9 is as follows: 

7-16-9.  The state's attorney shall appear in all courts of his county and  prosecute and defend on behalf of the state or his county all actions or proceedings, civil or criminal, in which the state or county is interested or a party.  No state's attorney is required to appear in courts outside his county to prosecute and defend on behalf of the state or his county, any action or proceeding, civil or criminal, in which the state or county is interested or a party, except as required under §  7-16-15.  If a part-time state's attorney appears in courts outside his county to represent the state or his county, he may receive extra compensation for the legal services pursuant to §  7-16-6.

The office 'state's attorney' carries with it obligations to both the state and the particular county for which the officer is elected.  The title of the office is somewhat misleading, in that the officer's representation of the state is limited to the area of his county.  The designation of the same office, in many states, is 'county attorney,' which is likewise misleading in that the officer also represents the state within his county.  For the purpose of answering your question, it is necessary, to determine on a case by case basis, whether the process is 'in any action to which the state is a party.'

In the factual situation presented it is my opinion that, in both cases, the state is a party in that the offense involved is a violation of state law.

The answer to your question, as to each of the situations described, is 'yes,' Yankton County should pay the fee and mileage.

Respectfully submitted,

Mark V. Meierhenry
Attorney General