37 P. 22 | Ariz. | 1894
Lead Opinion
This suit was brought in the district court of Gila County by J. H. Thompson, sheriff of said county, against said county, to recover upon an account for services as sheriff rendered in certain criminal cases, which account had been previously presented to the board of supervisors of said county, and by said board disallowed. Judgment was rendered in the court below for the plaintiff in the suit, from which judgment the county appeals.
The items of the account which were allowed by the coúrt, and for which judgment was given are with one exception
What we have said of the one item above set forth applies equally to the other items of the account allowed by the court below, with but one exception. There is a charge made in the account reading as follows: “Feb. 2d. To transportation for Benbrook, special guard, San Carlos to Globe, $5.” Inasmuch as this item is of the same date and appears in the account in connection with the charge made for mileage of a prisoner from San Carlos, place of arrest, to Globe, we infer that the expense of this special guard was incurred by the plaintiff in taking the prisoner from the place of his arrest to Globe. The facts, as admitted upon the trial, show that the sheriff was allowed by the board and paid for the expenses of transporting this prisoner, including a per diem and transportation of the guard. It is clear, therefore, that this is another attempt to sue for a part of a claim disallowed by the board after accepting payment for the amount of the claim
Upon no possible construction of plaintiff’s account against the county, as the same is made oat and sued upon, nor of the statute pertaining to fees to be paid the sheriff in executing criminal process, is the plaintiff entitled to recover, under the facts of this case, upon any of the items of the account allowed by the court below in the judgment. The judgment of the court below is therefore reversed, and judgment will be entered in this court for the appellant for costs.
I agree that the judgment of the lower court be reversed. I put it upon the ground that the sheriff ought not to recover upon any theory of the case. He cannot recover mileage for the prisoner, because no possible reading of the fee bill will authorize any allowance to the sheriff on account of that. This is conceded,. If the item sued upon is to be understood as a charge for mileage for the sheriff, he should not recover, because the statute allows him mileage one way only in serving criminal process, and this, the record shows, has already been paid him. He has been paid for going to the place of arrest.
I dissent from so much of the opinion as approves of the case quoted,—Yavapai County v. O’Neill, 3 Ariz. 363, 29 Pac. 430. That case should be expressly overruled. It holds that a sheriff is entitled to mileage for going to the place of arrest as well as for mileage in returning with the prisoner to the court; and the reason given is, that to execute a warrant of arrest is to do what it commands,—return the prisoner to court. Thus the sheriff is paid mileage two ways,—going and coming. The fee bill for sheriffs is as follows: “For removing a prisoner, for each mile necessarily traveled, to be charged one way only, thirty cents, and for each guard the same. Insane persons are prisoners within the meaning of this act. For each mile he may be compelled to travel in executing criminal process, summoning or attaching witnesses, to be charged one way only, thirty cent:; ’ ’ Rev. Stats., par. 1972, subd. 7. The legislature had in view but a single object in passing this law, and that was to fix a rate of compensation to the sheriff for executing criminal process, and not to define what should or should not constitute a complete execution
Dissenting Opinion
dissenting.—I dissent. I am of the opinion that the sheriff, if the bill had been properly made out, would he entitled to mileage for himself until the service of the writ was complete. The ease seemed to me to have been tried on that theory, and that while the account read ‘ ‘ for prisoner, ’ ’ it really meant “for the sheriff for taking the prisoner” from the place arrested to the place of trial. And that appearing to me to do no violence to construction of the manner the account was worded, the judgment ought to stand against the appellant.