3 Or. 488 | Or. | 1869
As tbe appellant filed no bill of exceptions, we must confine our examination of tbis' case to tbe second and third grounds alleged to bave been error; and, in fact, from the verdict of tbe jury, it seems tbat tbe only issue tried was whether tbe appellant was or was not entitled to constructive mileage for certain alleged services. As in tbe case of Crawford v. Abraham, 2 Oregon, 163, tbis court is to give a construction to certain sections ‘ in tbe code, and thus establish a certain rule, which shall operate alike in tbe different counties of tbis state. We are aware tbat great differences of opinion exist as to tbe true meaning and operation of such sections, and tbat tbe different county courts bave applied tbe law in their varying discretions.
Tbis case exhibits but a few of tbe questions tbat bave arisen in tbe different districts under tbe fee bill, and we regret tbat we cannot now give a full construction to tbat law, which should cover all those matters. Tbe sections mainly calling for construction here are these:
Sec. 14, p. 738: “Every officer or person whose fees are prescribed in tbis act, who shall be' required to travel in order to execute or perform any public duty, in addition to tbe fees hereinbefore prescribed, shall be entitled to mileage at tbe rate of ten cents per mile, in going to and returning from tbe place where tbe service is performed.”
Sec. 15, p. 739. Mileage for any service by sheriffs, shall in all cases be computed from tbe county seat or place
Sec. 31, p. 903. That the sheriff of each county shall be tax collector thereof.
Sec. 32, p. 904 — Proviso. The sheriff, before entering upon the duties of collector of taxes, shall execute an additional bond in such sum as the county court of the county may direct.
Sec. 33, p. 905. It shall be the duty of the sheriff upon receipt of the tax roll from the county clerk, immediately thereafter to give notice by posting up written or printed handbills, three in each precinct within his county, to the effect that he, or his deputy, will attend at the usual blace of voting in each election precinct in his countj, for the purpose of collecting taxes, etc.
Sec. 35, p. 905. The sheriff shall be allowed three per centum on all taxes collected by him, etc., which percentage shall be paid by the county.
It will be seen than sections 14 and 15 cited, undertake to declare the persons to whom mileage shall be allowed and the rate thereof, and the manner of compensation thereof as to the beginning and ending of travel. There is no general provision found elsewhere in the Code applicable to the mileage of a person whose fees are not named and fixed by chap. 18, in which these two sections are found. Other laws either provide specially for such compensation, or by their silence, lead to the conclusion that none was to be given.
By section 31, cited, a new duty is imposed on the person who may happen to be sheriff; he is made tax collector — is compelled to give a new bond, wholly different from his official bond as sheriff — and nothing is said in chap. 18, commonly called the fee bill, as to any fees as such tax collector. His office was created at the same time with the passage of the fee bill, but made no reference to it, and under said section 31, he has to perform certain duties invoking the necessity of traveling. That duty, however, abridges the necessity for far more extended journeyings, in
The question as to posting notices of election does not seem to have been submitted to the jury, probably from inadvertance; for, if the duty of serving notices of appointment upon judges of the election, could carry mileage, certainly that of posting notices of the election in each precinct is equally meritorious. Our decision, however, of the one, will be an indication of the construction on that point, upon which county courts may hereafter act.
Sec. 14, giving the right to mileage, applies its privileges to witnesses and sheriffs alike. Their fees are contained in the same act, and in similar cases, should have similar allowances. This court held in Crawford v. Abraham, our rule to be thus: “ The claim for disbursements must be for the number of miles actually traveled, and in the number of days in actual attendance as a witness only,” and as a rule still further delineating the fights of a witness, that “in two or more cases between the same parties, at the same term, a witness would be allowed but single mileage and attendance, etc.” The full force of those rules does not apply here, but the intention there manifested is plain, that the claim must be for the number of miles actually traveled, and serves some purpose in guiding our findings here.
Applying this construction to the case under consideration, the notice to the judges in each precinct is required. It is one act in which the county is the sole party made liable. In fact the notice to be served is but a single paper on which the returns must be made. While in the precinct the sheriff is where the three persons live who are to be served, and it is supposed he executes his duty speedily and carefully. He travels but once, with a single paper in his possession, sent by but one party, and following the spirit of our ruling, as cited, we think the’ law does not intend to pay him for labor which he does not perform. The services of no one can be required without just compensation, but unless plainly provided for, that which requires no service, no outlay of labor or expense, is not a claim upon which we ought to give an unusual construction to the law. We think the sheriff could claim his mileage for serving the notice belonging to, or necessary to be served in each precinct from the county seat, to the residence of the farthest one named in such notice, to be served. No evidence is here to show other than the truth of the finding of the jury, as to the actual number of miles traveled by appellant, and certainly the amount alleged to have been paid him by respondent, more than covers the claim due upon verdict.
The jury found that the sheriff actually traveled, in executing the duties specified in items two and three, 511 miles, which, at ordinary rates, would call for an allowance of $51.10, exclusive of the fee for serving. We may fairly presume that those services could have been made within nine days. Under the second part of the verdict, upon the same claims and the number of miles is' 5,896, calling for an allowance of $589.60, exclusive of service; in the one case about six dollars per day, and in the other about sixtv-six.
Under our construction, we think the court below was correct in its holding the law to be with the defendant, and we affirm this judgment.