STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

December 4, 1974

George S. Mickelson
State's Attorney
Brookings County
Brookings, South Dakota 57006

OFFICIAL OPINION NO. 74-48

Sheriff’s fees and travel expenses

Dear Mr. Mickelson:

You have requested an opinion based on the following factual situation:

A sheriff has been asked to serve a summons and complaint and attached to the complaint are four exhibits which are incorporated therein by reference.

You have asked whether the sheriff may charge (a) two dollars for each exhibit attached to the complaint, and (b) more than twelve cents per mile for miles traveled to serve the summons and complaint.

Sheriffs may charge specified fees for various services, as listed in SDCL 7-12-18. For service and return of items such as a summons, complaint, warrant of attachment, affidavit, order to show cause, etc., the sheriff may charge two dollars. When a sheriff is requested to serve two such documents, the statute clearly allows him to charge two dollars for each, regardless of how service is made. Thus, if the sheriff can serve both documents at the same time he is still entitled to charge the statutory fee for each.

However, where documents are attached to and made a part of other documents, there is only one item to be served, and only one fee may be charged. Thus, where a complaint has an affidavit, exhibit or other document as one of it parts, so that the other document could not properly be served by itself, there is really only one service made and only one fee may be charged. Thus, the answer to your first question is that the sheriff may not charge two dollars for an exhibit which is incorporated into and made part of a complaint.

With regard to your question concerning the mileage allowance, it should be noted that SDCL 7-12-18(9) has been amended, replacing the twelve cents per mile rate with various rates for different types of vehicles.

As to your question of whether more than the statutory rate may be charged for a complaint that contains various exhibits, the statute allows charges "for traveling expenses not to exceed twenty cents for each mile actually and necessarily traveled " Here, the statutory language makes it clear that the purpose of the fee is reimbursement for expenses. While the two dollar fee is charged per document, the mileage rate is charged per mile. To charge the mileage rate per mile per document when more than one document is carried would result in a fee of more than the statutory rate for each mile actually traveled.

This result would violate the statute. Where more than one service is made in one trip, the total mileage reimbursed to the sheriff cannot exceed the statutory rate times the number of miles actually traveled. Thus, the answer to your second question is that the mileage charged and received may not exceed authorized statutory rate for miles actually traveled.

Respectfully submitted,

Kermit A. Sande
Attorney General

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