STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

October 2, 1973

Myles J. DeVine
States Attorney, Marshall County
Britton, South Dakota 57430

OFFICIAL OPINION NO. 73-35

Patrols of county sheriffs for combatting rural crime.

Dear Mr. DeVine:

You have requested an opinion based on the following facts:

County X has an increasing high rate of rural crime involving, but! not limited to, cattle rustling, theft of farm machinery, and vandalism of abandoned or isolated buildings. The Commissioners of County X want to initiate a roving patrol to combat such crime utilizing the county sheriff's office. The county does not provide its sheriff with a vehicle, but pursuant to statute, reimburse him with mileage and expenses.

Your questions are:

1. Does the sheriff have the authority to conduct such patrols, and

2. Can the sheriff recover mileage and expenses incurred?

In my opinion, it is clear that the sheriff of County X has authority to conduct such patrols. SDCL 7-12-1 mandates that "the sheriff shall keep and preserve the peace within his county." Certainly the high rural crime rate in County X would justify this method of preserving the peace.

Authorization to conduct these patrols is not the problem, however, pursuant to present statutes, SDCL 7-12-14 and 7-12-18(9), as amended, a sheriff using his own vehicle may recover reasonable expenses, including mileage that he incurs while on official business.

Parenthetically, any county that supplies its sheriff with a vehicle pursuant to SDCL 7-12-12, as amended, avoids the problem as mileage may not be recovered by the sheriff.

The crux of the matter is that a county sheriff may only recover mileage and expenses while on official business. There have been many opinions of the Attorney General, dating back to 1928 as to what constitutes official business. It should be pointed out, however, that the last of these opinions was handed down in 1969, and that is found in the RC 1919, §5903, as amended. That statute limited those activities specifically for which mileage could be recovered by the county sheriff. General or aimless searches were precluded as improper charges on the county funds. The reasoning behind the above statute was to prevent abuses by the county sheriff of the mileage recovery system by needlessly charging the county for unnecessary automobile trips.

The present statute was passed in 1963, and does not limit the sheriff's activities chargeable to the county in any specific way. SDCL 7-12-13 refers onl to reimbursement of the county sheriff for expenses incurred while on "official business." These expenses must be submitted to the county commissioners for their approval on itemized vouchers.

Obviously, commissioner of a county have considerable latitude to determine what is official business for the sheriff. In light of the act that RC 1919 §5956, as amended, had, as its foundation, a built-in safeguard to prevent abuses of the mileage recovery system, and also since the statutory scheme has been replaced, it would seem that if the incidents of rural crime warranted such a decision, the county commissioners could establish a rural patrol in County X. The previous opinions of the Attorney General regarding rural patrols of county sheriffs was aimed at preventing unnecessary claims on the county for mileage by an overzealous sheriff.

The older statute in no way deals with the present situation in County X where a high crime rate requires some affirmative action by the commissioners to protect property and preserve the peace. As 1927-28 AGR 237 at 239 notes, that while expenses and mileage claims should be closely scrutinized "it is also true that the sheriff and states attorney should not be deterred from making prompt, intelligent and strenuous efforts to apprehend and convict all perpetrators of crimes. Action may be based on any reasonable theory or expectation.'" 'This is not to say, however, that a general patrol would be a proper expenditure of county funds unless such activity has some justification in necessity and reality.

'Therefore, in light of the high rural crime rate in County X, if the sheriff applied for and received permission from the county commissioners to conduct a patrol, he would be entitled to recover mileage and expenses from the county funds. The same would hold true if the county commissioners, on their own initiative, requested the sheriff to conduct a patrol of rural areas.

Respectfully submitted,

Kermit A. Sande
Attorney General