STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

July 2, 1969

Donald E. Eberle
State's Attorney, Pennington County
Rapid City, South Dakota 57701

OFFICIAL OPINION NO. 69-61

Mileage reimbursement authorized when sheriff executes criminal warrant in extradition by using his own private airplane. SDCL 1967 7-12-18(9)

Dear Mr. Eberle:

You have requested my official opinion to determine the mileage allowable to reimburse a sheriff using his own private airplane to return a criminal defendant from without South Dakota for prosecution under South Dakota law, and such travel is under an extradition warrant.

Originally, and for many years, a sheriff was reimbursed by the fees that he earned from the services he performed. In 1963 the Legislature changed its philosophy and placed the sheriffs on a salary. With such philosophical change, it is axiomatic that many of the fees formerly paid a sheriff for his services would either be abolished or directed to be paid to the county. Some of such fees, notwithstanding the payment of a salary, were directed to be paid to the sheriff over and above his salary.

It is not surprising, therefore, to find that prior to placing the sheriff on a salary basis, the Legislature authorized a specific fee to be paid to the sheriff for traveling with a criminal warrant in extradition matters. (See SDC 1960 Supp. 12.1003(11).) It is understandable that when the sheriff was placed upon a salary that the Legislature abolished such special fee. This was done by Section 8 of Chapter 40 of the Session Laws of 1963, the very act which placed the sheriffs on a salary basis. Such abolishment of such special fee should not seem unfair as traditionally one of the duties of! a sheriff is to execute criminal warrants. ·When such execution is made without South Dakota, by virtue of extradition proceedings, such remains a duty of such office notwithstanding that such arrest is made without South Dakota.

When a sheriff is placed upon a salary basis, there is no mandatory duty for the Legislature to authorize him any travel expenses over and above his salary. The granting or withholding of such expense money rests in the sound discretion of the Legislature. Any change in such authorized expense payments is justified by the transformation of the sheriff's position from a fee compensated position to a salaried position.

The Legislature has changed the authorized expense payments for the sheriff. The latest expression of the Legislature as to such fee that is now effective was made by Chapter 16 of the Session Laws of 1967, when the Legislature amended SDC 1960 Supp. 12.1003(9) (now SDCL 1967 7-12-18(9) ) which reads as follows:

"For traveling expenses in cars or planes owned by the sheriff, or necessary emergency vehicles, twelve cents for each mile actually and necessarily traveled; except by train, bus, plane or other commercial vehicle."

The sheriff is entitled to travel reimbursement only as authorized by the Legislature. The above statute is applicable to the factual situation you have given, and the legislative mandate is clear. Such sheriff is entitled to reimbursement for executing a criminal warrant in an extradition proceedings at the rate of twelve cents a mile for each mile actually and necessarily traveled in his own plane in order to perform such duties of his office.

You are, of course, aware that after July 1, 1969, Chapter 21 of the Session Laws of 1969 authorizes a higher rate of mileage for airplane travel than was previously allowed.

Respectfully submitted,

Gordon Mydland
Attorney General