11 S.D. 422 | S.D. | 1899
This is an appeal from an order sustaining a demurrer to .plaintiff’s complaint. Plaintiff states in his complaint that he was sheriff of defendant county; that a petit jury of 24 jurors was duly drawn from the body of the county and that the clerk of said county placed in said plaintiff’s hands an order to summon the same as said sheriff; that in obedience to such order, he did summon such jury; that in doing'so he necessarily traveled a distance of 750 miles; that he presented his bill for his services as such sheriff in summoning such jury, duly verified as required by law; in whiGh he claimed there was due him as mileage the sum of 1112.50; that the defendant county refused to allow plaintiff 15 cents per mile for each mile actually and necessarily traveled; and that the board of county commissioners of said county did allow and tender to the plaintiff mileage at the rate of 5 cents per mile, amounting to $37.50, which plaintiff declined to accept; and the plaintiff demanded judgment for the sum of $112.50. A demurrer was interposed to the complaint, on the ground that it did not state facts sufficient to constitute a cause of action, and was sustained by the circuit court.
The decision in this case involves the construction to be given certain parts of Sections 1409 and 1410 of the Compiled Laws.
“Sec. 1409. The sheriff shall be entitled to charge and receive the following fees: Serving capias with commitment or bail bond and return, two dollars. For each search on search warrant, one dollar. * * * Traveling expenses, for each
‘ ‘Sec. 1410. The sheriffs of all counties in the Territory of Dakota shall be entitled to receive five cents a mile for each mile 'actually and necessarily traveled for summoning a grand and petit jury, to be paid by the county in addition to the compensation now allowed by law; provided, that no additional mileage shall be allowed a sheriff for summoning talesmen, over and above that now fixed by law.”'
The plaintiff and,appellant contends that the fee for summoning a petit jury, including mileage, entitles him to mileage at the rate of 10 cents per mile in addition to $16 allowed him for summoning the jury; and that, by Section 1410, the legislature has added 5 cents per mile, making a total of 15 cents per mile for each mile necessarily traveled. The defendant, on the other hand, insists that the compensation for summoning the petit jury was originally only $16, and that the plaintiff was entitled to no mileage under Section 1409, and now is only entitled to the mileage provided by Section 1410.
The import of the language used in Section 1409, “including mileage,” seems to imply that the, $16 allowed the sheriff for summoning the jury was to be in full for his services. Webster defines “include” to mean “to confine within; to hold; to contain; to shut up;” and gives, hs synonyms, “to contain; inclose; comprise; comprehend; embrace; involve.” It would
We are of the opinion that the intention of the legislature was, by the original section, to limit the compensation of the sheriff for his services in summoning a petit jury to $16, and that no other mileage was to be allowed. It will be observed that the section prescribes the compensation of a sheriff for various services to be performed by him, but that no mention of mileage is made in connection with these services, except in one other instance in addition to the summoning of juries, and that the allowance of mileage is contained in a clause of the section by itself. It would seem clear, therefore, that in the .performance of those various .duties the sheriff would be en
Our conclusion is, from the language used in the clause we are considering, and the evident intention of the legislature as appears from other parts of the section, that the term “including” was used in its ordinary sense, and as intending to convey the idea that the $16 was to be the full compensation of the sheriff for summoning a petit jury, and $8 for summoning a grand jury. And we are further of the opinion that, in view of the hardships imposed upon the sheriff, the law of 1887 was enacted to partially, at least, compensate him. for his mileage. We further add that we cannot believe it was the intention of the legislature to impose upon the county the duty of paying 15 cents per mile mileage to the sheriff for summoning juries,