STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

February 17, 1971

John L. Foley
States Attorney, Codington County
Watertown, South Dakota 57201

OFFICIAL OPINION NO. 71-7

Coroners Inquests. Fees for coroner's jury. Fees for witnesses at such inquest SDCL 23-14-7; 19-5-1; 16-13-46

Dear Mr. Foley:

You have requested an opinion relative to the proper fees to be paid to members of a jury properly called to act in a Coroner's Inquest and fees to be paid to witnesses appearing to testify at such Coroner's Inquest.

Your questions are:

1. Are members of such "coroner's jury" entitled to payment of jury fees as contemplated by SDCL 16-13-46?

2. Does SDCL 19-5-1 apply to witnesses appearing and testifying at such coroner's inquest?

3. If so, what is the proper fee for such witnesses?

In an opinion issued 1931-32 AGR 159, this office had occasion to discuss the then applicable statutes which have evolved in to SDCL 16-13-46 through 16-13-48 and it was determined that at such time there was no statutory provision authorizing the payment of fees to members of a coroner's jury. This opinion was proper, at the time it was issued. However, its effect was called to the attention of the South Dakota Legislature, who by Chapter 89 of the Session Laws of 1933 amended the statute relating to the summoning of jurors for a Coroner's inquest, by the addition of this significant language:

... and such electors impanelled as juror shall be allowed the same fees as in cases before the circuit court.

The title of the 1933 enactment provides that it is "An Act to Amend Section 10179 of the South Dakota Revised Code of 1919, providing for Pay for Coroner's Jurors." This addition of language to the statute was continued ill the 1939 Code and remains as an integral part of SDCL 23-14-3.

There can be no question that members of a coroner's jury, who are electors of the county wherein such coroner's inquest is convened, are entitled to the same fee as are paid to jurors in cases before the Circuit Court. I must assume that every sheriff or coroner in summoning jurors for a coroner's inquest will follow the mandate of the statute so that each juror so summoned and impanelled to act will be an elector.

Question No.1 must be answered YES. Members of a coroner's jury are entitled to the fees as set forth in SDCL 16-1346.

Witnesses at a Coroner's Inquest are summoned in accordance with SDCL 23-14-7 and paid as in cases before a justice of the peace.

SDCL 19-5-1 provides:

Every witness shall be entitled to receive, for each day's attendance before any court, board, or tribunal, except justices' courts and judges acting as committing magistrates, in all civil and criminal cases, four dollars, and for each day's attendance in justices' court or before any judge acting as a committing magistrate, three dollars, and for each mile actually traveled by the usual route of travel, one-way fifteen cents. Such mileage shall be limited to the distance from the place of trail to the point where such witness first entered the state, if he comes from without the state. In all criminal cases witness fees on the part of the state shall be paid by the proper county, and the fees of material witness on the part of the defendant shall be paid by the county unless otherwise ordered by the court.

It is apparent from the statute itself that a payment of four dollars a day as witness fees is not permissible in this matter, as such fees are payable for attendance "before any court, board, or tribunal except justices' court."

However, the statute then proceeds:

... and for each day's attendance in justices' courts ... three dollars, and for each mile actually traveled by the usual route of travel, one way fifteen cents.

Question No. 2 is answered YES, insofar as SDCL 19-5-1 provides fees for attendance in justice court.

Question No.3. SDCL 19-5-1 provides that witnesses attending a coroner's inquest receive three dollars for each day of attendance at such inquest together with mileage at the rate of fifteen cents per mile for each mile actually traveled by the usual route of travel one way.

Respectfully submitted,

Gordon Mydland
Attorney General