STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

July 30, 1975

Mr. C. D. Kell
Jones County State's Attorney
Murdo, South Dakota 57559

OFFICIAL OPINION NO. 75-137

Sheriff not entitled to mileage for traveling from home to county seat

Dear Mr. Kell:

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

The Sheriff of Jones County lives in a town nine miles from the county seat. He furnishes his own vehicle for traveling to and from his office at the county seat and bills the county for mileage.

Based on the above factual situation, you have presented the following questions:

1. Is the Board of County Commissioners obligated to pay the Sheriff's mileage to and from his home to office?

2. May the County Commissioners be held personally liable for mileage previously paid if they are not authorized to approve such payments?

SDCL 7-12-18 provides, in part, as follows:

7-12-18. 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, not to exceed twenty cents for each mile actually and necessarily traveled by car, with any additional mileage allowances being set and paid by the county; twenty-five cents for each mile actually and necessarily traveled by a single-engine aircraft over one hundred HP and forty cents for each mile actually and necessarily traveled by twin-engine aircraft with total horsepower in excess of three hundred; except by train, bus, plane or other commercial vehicle; ...

SDCL 7-12-2 states as follows:

7-12-2. The sheriff shall keep his office at the county seat, serve or post all notices he may receive from the county auditor or the board of county commissioners, and perform such other duties as are prescribed by the laws of this state.

I refer to 1935-1936 AGR 343, wherein is was held that a state's attorney was not entitled to mileage for trips from his home town to the county seat for the reason that the law required an office to be maintained at the county seat.

The same reasoning applies to the situation in question and, therefore, the travel expense of the sheriff between home and office cannot be said to be reimbursable as incurred while on official business.

The answer to your Question No. 1 is “NO.”

With regard to your Question No.2, the general rule is that public officials may be held personally liable for their acts when performed outside the scope of their legal authority. (See 63 Am.Jur. 2d 798, Public Officers § 288; 67 C.J .S. 419, Officers § 126). In the question presented the claimant as well as the approving authority appear to have acted in good faith, although under a misapprehension of the law.

While this office cannot of course make a judicial determination as to the liability of the county commissioners, we feel this opinion should be given prospective application.

Respectfully submitted,

William Janklow
Attorney General

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