STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

December 28, 1972

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

OFFICIAL OPINION NO. 72-72

Sheriff's fees; service of process in private civil suit using county-furnished vehicle. Sheriff may charge mileage. SDCL 7-12-12; 7-12-18(9).

Dear Mr. Foley:

You have requested my official opinion in answer to the following question:

When the county furnishes the sheriff a motor vehicle in pursuance to SDCL 7-12-12, may the sheriff charge mileage for the service of summons, complaints, and other papers in civil actions in which the county or state are not parties?

The answer to your question depends upon the interpretation of the statutes, originating in Chapter 40 of the Laws of 1963 whereby the Legislature changed the office of the sheriff from a "fee" office to a "salaries" office, and the legislative intent in its enactment of such change.

Prior to the 1963 statute, the several sheriffs were guaranteed a "minimum" fee and a "maximum" fee. The sheriff was required to account for all "fees" required, and after the deduction of all allowable expenses he either remitted any excess over the maximum to the county, or collected from the county to receive the minimum salary for his official position.

During this period when the sheriff was a "fee" office, this office determined several basic philosophies.

One of these philosophies was that it was reasonable to presume that it was not the intention of the Legislature that the sheriff should perform or render gratuitous services. 1911-12 AGR 648; 1919-20 AGR 375; 1923-24 AGR 228.

Another principle of law developed by my predecessors is that in the accounting for fees collected, the sheriff was not required to include moneys collected as travel expenses. This philosophy was based upon a determination that the accountable fees were limited to those fees that were in the nature of compensation, and not reimbursement. This principle was first set forth in 1917-18 AGR 467, wherein my predecessor stated:

I think it clear therefore that the sheriffs' mileage under our law was intended for two purposes: to cover the sheriff's actual traveling expenses and to compensate him for his time while traveling on official business. In other words, I believe that the Legislature has always intended that the sheriff's mileage was both compensation and reimbursement.

In 1917-18 AGR 420, my predecessor has said:

It is well settled principle of law that where the statute makes no allowance for mileage or travel expenses, the officer is not entitled to recover his disbursements for the same from public funds.

This philosophy is consistent with the oft repeated statement, made applicable to sheriffs in the opinion reported in 1923-24 AGR 265, that a public officer can receive fees or other payments when such are authorized by statute, and only in the amounts provided by statute.

It is my opinion that while the Legislature has transformed the office of sheriff from a fee position to a salaried position, that the validity of these earlier rulings, when applicable, cannot be questioned.

Two existing statutes must be considered to determine the answer to your questions. These statutes are SDCL 7-12-12 and 7-12-18(9), (as both have been amended).

SDCL 7-12-12 provides:

Any county may, at the discretion of the board of county commissioners, furnish any motorcycle, automobile, truck or other vehicle, uniforms and other equipment to the sheriff or his deputies, or both, for law enforcement purposes only. In those counties furnishing motor vehicles, notwithstanding the provisions of this chapter for mileage payments in lieu of expenses, no mileage payments may be paid to sheriffs, deputy sheriffs or other county law enforcement personnel for whom motor vehicles are furnished.

SDCL 7-12-18(9) provides:

The sheriff shall be entitled to charge and receive the following fees and traveling expenses:

(9) For traveling expenses in cars or planes owned by the sheriff, or necessary emergency vehicles, twelve cents for each mile actually and necessarily traveled by car; fifteen cents for each mile actually and necessarily traveled by single engine aircraft over one hundred HP and twenty cents for each mile actually and necessarily traveled by twin engine aircraft with total horse power in excess of three hundred; except by train, bus, plane or other commercial vehicle;

It is apparent: from SDCL 7-12-12 that the motor vehicle furnished to the sheriff is "for law enforcement purposes only." The concluding sentence denying mileage payments for the use of such county-furnished vehicle is consistent with the two-fold purpose for mileage payment as found by my predecessor in 1917-18 AGR 467. The sheriff is being paid a salary for his services; the vehicle he is using is owned by the county. Any mileage payments to him for compensation and reimbursement would come from county moneys. The legislative intent to deny mileage payment in such county-furnished vehicle, in the performance of "law enforcement duties," is apparent and logical.

The service of civil process, and other papers are not done in the "performance of law enforcement duties." Rather, such service is made for the convenience of private litigants, the charges for which are proper taxable costs to the parties. SDCL 7-12-12 does not prevent the sheriff from charging and receiving traveling expense when making service of the summons and complaint and other papers in a civil matter in which the county or the state are not parties.

SDCL 7-12-18(9) puts another light upon the problem, inasmuch as it provides for traveling expenses in cars or planes owned by the sheriff, or necessary emergency vehicles.

It is my opinion that when such statutory provisions and the opinions of my predecessors are considered, there are three alternative solutions to the problem presented.

First alternative-When the sheriff is using the county-owned vehicle to effect service of process for private litigants, the mileage for such service is gratuitously furnished by the sheriff and the county to such private litigant;

Second alternative-The use of the county-owned vehicle is for "law enforcement purposes." Service of civil process is not within the purview of "Law enforcement purposes." Such vehicle can never be used to effect the service of process in private litigation;

Third alternative-As the county furnishes such vehicles and is responsible for the gasoline and maintenance, the sheriff may use such vehicle to make service of process in private litigation. At the same time he may charge and receive for mileage. The proceeds thus collected, however, must be remitted to the county and deposited with county funds.

Before examining the propriety of any or all of such alternatives, it is well to consider other basic principles affecting the sheriff.

SDCL 7-12-28 provides: "Every sheriff who shall wilfully fail or refuse to perform any official duty for which a fee is prescribed by law, or who shall fail or refuse to render a full and true report to the county of all fees received by his office shall be guilty of a misdemeanor."

SDCL 7-12-18 sets forth those official duties for which a sheriff may charge and receive a fee and traveling expenses. Subsection (4) thereof provides:

. . . for serving summons, complaints, warrant of attachment, affidavit, notice and undertaking in claim and delivery, or injunction, order to show cause, citation, or other mesne process, and return thereof, two dollars, and for each additional defendant, one dollar and fifty cents.

There can be no question that when any process mentioned above is delivered to the sheriff for service on a designated person, it is his official duty to make, or attempt to make, such service. His failure or refusal to act amounts to the commission of a misdemeanor. In some instances to make, or attempt such service of process, mileage will be involved.

We should also consider some basic principles of statutory construction, in selecting between the alternatives presented. As stated in Application of Summit and Elizabeth Trust Co. (1970) 111 N.J. Super, 154, 268 A. 2d 21:

Statutes are to be read sensibly, rather than literally, and the controlling legislative intent is to be presumed "consonant to reason and good discretion." Schierstead v. Prigantine (1959) 29 N.J. 220, 148, A. 591, 596.

Our own court, speaking through Judge Whiting, in State ex rel Cook v. Polley (1912) 30 S.D. 528, 139 N.W. 118, said:

Certain rules that should govern in the construction of statutes have became so fully established as a part of our law, by the decisions of every court, as to really need no citation of authorities in their support. The first and fundamental law is that the court should ascertain and give effect to the intention of those who enacted the law. To do this the court should bear in mind the object sought to be accomplished by the law; and to ascertain this object it should consider the occasion and necessity of its enactment, the defects or evils in the former law, and the remedy provided by the new one. The statutes should then be given that construction which is best calculated to advance its object by suppressing the mischief and securing the benefits intended. 36 Cyc. 1106 and 1110. It should always be remembered that a thing which is within the intention of the enactors of a statute is as much within the statute as if it were within the letter thereof; and a thing which is within the letter of the statute is not within the statute unless it be within the intention of the enactors thereof. Riggs v. Palmer, 115 N,Y. 506, 22 N.E. 188, 5 L.R.A. 340, 12 Am. St. Rep. 819; Wilson v. Donaldson, 117 Ind. 356, 20 N.E. 250, 3 L.R.A. 266, 10 Am. St. Rep. 48; Mayor, etc., v. Root, 8 Md. 95, 63 Am. Dec. 692.

The principle of law so expressed was affirmed in Schlim v. Gau (1963) 80 S.D. 403, 125 N.W. 2d 174.

The first alternative does not seem proper. The sheriff has a duty to make, or attempt such service, and travel is a necessary part thereof. Some private litigants are nonresidents of the county where they seek the service of process. It is impossible for me to reach the conclusion that when the sheriff has a statutory duty to make service, if the county furnishes him a vehicle to make such service, that the county is to furnish the necessary expenses required to make service for any private litigant. The first alternative may be within the letter of the statute, but it is not within the statute, as it is not within the intention of those who enacted such statutes.

The second alternative is also within the letter of the statute. However, to require a sheriff for whom the county has furnished a vehicle, to use his own vehicle or rent a vehicle to effect service of process in civil actions is "not consonant to reason and good discretion." This alternative, as the first, is not within the legislative intention and is not controlling.

It is only the third alternative, in my opinion, which not only satisfies the letter of the statute, but also the intention of the Legislature.

In the performance of his official duties, for the benefit of private litigants, the sheriff may use such county-owned vehicle. The Legislature never intended that such mileage would be furnished gratuitously by the county to the private litigant, or that the mileage fee, when collected, would inure to the exclusive benefit of the sheriff.

As between the sheriff and the private litigant, the county-owned vehicle is "his." No one could argue that it was the property of any private party. The sheriff is in lawful charge and possession of such vehicle, and may use it in the performance of official duties.

In this situation, while perhaps not completely within the letter of the statute, the charging of the appropriate mileage fee and the remittance thereof to the county was firmly within the legislative intent. Quoting Judge Whiting in State ex rel Cook v. Polley, supra:

It should always be remembered that a thing which is within the intention of the enactors of a statute is as much within the statute as if it, were within the letter thereof.

In answer to your question, it is my opinion that the sheriff may lawfully use a county-furnished vehicle to make service of process in litigation between private citizens, and which he must do in the performance of his official duties. The sheriff may collect mileage for the necessary miles traveled to make such service. When such mileage fees are collected, the sheriff must remit the same, with the costs of the service, to the county for deposit for the benefit of the county.

Respectfully submitted,

Gordon Mydland
Attorney General