Jenkins v. Hallstrom

138 N.W. 12 | S.D. | 1912

WHITING, J.

The appellant ,as plaintiff brought a proceeding in mandamus asking the circuit court to compel the defendants, as -county commissioners of Day county, to approve certain vouchers for claims against the game fund of said county, which claims he had presented to them, and they had either rejected in toto or approved in part only. The defendants demurred to the affidavit and petition for mandamus, and for grounds of demurrer set forth “that said affidavit and petition fail to state facts sufficient to entitle the plaintiff to the relief demanded or any relief.” The circuit court sustained the demurrer, and it is from the order sustaining -such demurrer that this appeal was taken.

Such demurrer admits -the fallowing facts: During the time covered by such vouchers, the plaintiff was the duly appointed and qualified county game warden in and for Day county, and per- . formed the duties of such position. From time to time, while he was such game warden, the plaintiff submitted to the state game warden a sworn itemized “statement of the costs and expenses, and of the compensation then due -to plaintiff as such officer, and which costs and expenses had been incurred in the necessary expenses of the office of county game warden. * * * S-uch compensation was determined by the state game warden and su-ch costs and expenses were approved by the state game warden, and were certified to by the state game warden, and the state game warden frorp time to time * * * did issue to plaintiff * * * a regular -and formal order or warrant upon the county game fund of Day county for the amount then due, which warrants were * * * signed and certified to by W. F. Bancroft, state game warden, and were executed all except the approval of the county commissioners.” Such certified vouchers or warrants were presented to the defendants for approval, and the defendants wholly failed and neglected and refused to approve such vouchers and warrants. Defendants assumed. to pass upon the correctness of plaintiff’s claims, and allowed some at a less amount than claimed by plaintiff and wholly rejected some. The amounts claimed and for which plaintiff had vouchers certified by the state game warden were in various sum-s ranging- from less than $50 a month up to greatly in excess of -$50 for some months. At the times the vouchers were presented for approval of defendants, and at the time this proceeding was initiated there was money sufficient in the county game fund of Day county to pay the amount of said vouchers in full. The petition and affidavit wholly failed to show what part of the amount of each voucher was for services, and what part for expenses. This action is based entirely upon chapter 240 of the Session Daws of 1909, the -part of said chapter material for our considération reading as follows: “Each eounty game warden shall receive such compensation as the state game warden shall determine, not to exceed ($50.00) per month, to be paid upon vouchers to be certified to by the state game warden and approved by the county commissioners, from the county game fund; provided, that no charge for any salary or expense connected with the enforcement of the provisions of this chapter except the fees of sheriffs, constables and other regular court costs, shall be at any time any charge upon any county or upon the state, but all such expenses shall be paid from the county game fund as herein provided; and provided further, that whenever the total of all such fees, salaries, per diems, shall exceed the total sum in the county game fund remaining after the payment of the necessary expenses of the office of the county game warden, such fee, salaries and per diems shall be paid pro- rata to each lawful claimant. County game wardens shall be nominated by the boards of count}' commissioners of each county and appointed by the state game warden.”

Appellant contends that there is n-o- authority vested in the county commissioners empowering them to- pass upon the correctness of the certified voucher presented to them under this law— ■that they can but approve the same as presented, and that it is their b-ounden duty so to do. Respondents contend that it is within their power and it is their -duty, to- p.ass upon the correctness of the claims presented, and also- that many of the vouchers were invalid upon -their faces as the amounts thereof were in sums exceeding $50 a month for the months covered thereby, and also that they did not show how much was allowed for each month when they purported to cover more than a month.

[1] We think respondents are right in both of their contentions. It surely cannot be presumed that the Legislature intended to impose upon the county commissioners of a county the mere formal act of approving a claim. What possible purpose could such an act serve? The county commissioners are in a much better position to know or ascertain- whether the county game warden has performed the services and incurred the expenses set forth in this statement than is the state game warden; and, while it was undoubtedly contemplated that the state game warden should fix the compensation to be allowed for a certain service or for an expense incurred thus leading to uniformity throughout the state for like service and like expense, it'certainly was not intended that the county commissioners should not have power to reject a voucher when the total for any month exceeded the amount fixed by statute, or to reject or correct any item where, to- their knowledge, the service had not been rendered or the expense incurred.

[2] Can the amount allowed a county game warden under -this law for services and expenses lawfully exceed the sum of $50 for any one month? The answer to this question depends largely upon the meaning.to be given the word “compensation” as used in the section from which we have quoted. Appellant contends that by “compensation” is -meant salary, and that this only is limited to $50 a month; while respondents contend that the word “compensation,” as here used, is broader than the word “salary,” and covers both what one is to receive for his services and also what he is to receive to compensate him for expenses incurred. An examination of the cases involving- a construction of the term “compensation” will reveal that such construction is invariably controlled by the context of the provision, wherein such word is used. It is well, then, to consider carefully the statute as quoted. What is it the game warden is to determine and to give a certified voucher for? The “compensation” of the county game warden. If, then, the word “compensation” includes only salary or pay for services rendered and does not include remuneration for expenses incurred, the state game warden has no power whatsoever to certify and approve expenses, and any attempt to include expenses in a voucher or warrant would invalidate such voucher or warrant and justify its rejection by the commissioners. Furthermore, unless the word “compensation” does include remuneration for expenses incurred, there is absolutely no provision of this statute under which a claim’ for such expenses can he audited and allowed. It would follow that, if a county game warden had rendered services for which he was entitled to and the state game warden was willing to allow $25 and also had incurred necessary expenses to the amount of $25, he could' only get a certified voucher for $25, the amount allowed for services, and would lose the balance. It is clear' to us that the term “compensation,” as used, includes pay for expenses incurred as well as for services rendered; that the amount of such compensation cannot in any one month exceed $50-; that the 'bill therefor must, in the first place, be passed upon by the state game warden, and, after he has certified to the correctness thereof and given a certified voucher therefor, it must be presented to the county commissioners and be by them passed upon; that such commissioners have power to reject it in whole or in-part if they find it incorrect, subject to the right of the county game warden to appeal from their decision or bring-an action to recover the amount claimed.

It follows that the demurrer was rightfully sustained, and the order sustaining same is affirmed.