54 Ind. App. 316 | Ind. | 1912
Appellant by his complaint seeks to recover from appellee the sum of $495.70, which he alleges was paid by him into the treasury of Brown County, through inadvertence and mistake, at various times when he made his quarterly settlements, while serving as sheriff of that county. The money thus alleged to have been erroneously paid into the county treasury consists of various items which appellant had charged and collected as statutory mileage in the service of writs, summonses, subpoenas, venires and notices, originating within said county and served by him as sheriff. The trial court sustained a demurrer to the complaint and entered judgment for appellee, and the correctness of this ruling on demurrer, is the only question presented for review.
Our statute contains the following provision: “The sheriffs of the various counties of this state shall, on behalf of their respective counties, tax and charge the fees provided by law on account of services performed by such officers; the fees and amounts so charged shall be designated ‘sheriff’s costs’, but they shall in no sense belong to or be the property of the sheriff, but shall belong to and be the property of the county, except * * * That in the execution of all processes issued from any other county than that of his residence, the sheriff shall be entitled to charge and collect the same fees for like services in similar eases, and which shall be his own.” §7335 Burns 1908, Acts 1905 p. 451, §122. If the mileage allowed by law to sheriffs is to be considered as a fee provided by law on account of services rendered in the discharge of his official duties, such mileage belongs to the county and does not belong to the sheriff, and the demurrer to the complaint was properly sustained. On the other hand, if the mileage allowed by law is not intended as a fee or compensation to the officer for the performance of any official act, but is intended, as claimed by appellant, to reimburse him for his expenses incidently incurred in the service of such writs, then such mileage when collected would belong to the sheriff personally and not to the county.
The case of United States v. Smith (1895), 158 U. S. 346, 15 Sup. Ct. 846, 39 L. Ed. 1011, is cited by appellant as sustaining his contention as to the meaning of the word mileage. In this case a Federal statute was construed, which statute provided that certain fees should be allowed to district attorneys in addition to the salary of $2,500. In the
In every case in which mileage is allowed to the sheriff, a fee for the performance of the official act is also provided, except in three instances. The first instance is a provision for four cents per mile for each mile necessarily traveled for each prisoner, the sheriff and the necessary attendants to be allowed for removing persons to the penal institutions of the State, to be paid out of the State treasury; the second is a like provision for mileage to be paid out of the county treasury for removing persons to hospitals for the insane; and the third is a provision for three cents per mile for each mile necessarily traveled in going to and returning from comparing the vote for and giving a certificate to a joint senator or joint representative, to be paid by the county of such sheriff’s residence. The question as to whether the mileage allowed in the three instances to which we have referred is a fee to be taxed as sheriff’s costs and paid into the county treasury is, so far as we are advised, an open one. The Supreme Court, in effect, said, arguendo, in the case of State, ex rel. v. Flynn, supra, that the mileage allowed to the clerk for going to and returning from the office of the Governor to receive the State ballots, should be treated
If it were held that the mileage provided by this section was intended to reimburse the sheriff for his expenses of travel, such holding would not increase the salary of the sheriff or confer upon him an additional compensation. It would simply prevent the salary allowed by law from being depleted by the payment of the expenses incident to his official duties. In the case last cited it is said on page 580, The argument is further advanced that if the clerk be permitted to retain the money arising out of his per diem services in attending court, then his salary, by this method, will be increased. But this claim is no more reasonable or true than would be the contention that the salary of the judge of the court was in fact increased by a law allowing him his necessary expenses incurred in traveling over his circuit for the purpose of holding court. The clerk of the circuit court, as we have shown, is allowed no deputy, and he is required to be at his office each day, and attend all of the courts of his county when in session. These duties can not in reason be performed without incurring the expense of deputy hire. Especially is this true in many of the more populous counties of the State. If this per diem for attending court must be returned to the county, then his salary, in effect, is reduced to the amount at least which he is com
It must be admitted that the arguments advanced by appellant seem plausible, and that the authorities cited appear to sustain his position, but the question seems to have been settled adversely to appellant’s contention by a recent decision of the Supreme Court. The case of Smith v. State, ex rel. (1907), 169 Ind. 260, 82 N. E. 450, was an appeal from a judgment rendered in favor of the State on the relation of the Board of Commissioners of Kosciusko County and against Smith on his bond as sheriff. With the complaint upon which the judgment was based a bilL of particulars was filed stating the various items of fees which the county sought to recover from the sheriff. Among the items thus claimed by the county were several allowances made by the board of county commissioners to the sheriff for serving election notices under §6875 Burns 1908, §4679 R. S. 1881. As the only allowance authorized by law for services of this character is “mileage,” the question of the right of the sheriff to retain as his own, the mileage allowed to him for serving such notices, was squarely presented. The Supreme Court held that this was a fee which he was required to pay into the county treasury. The court said on page 264, “It is, evident that the sheriff in giving notice of elections under §6875 Burns 1908, §4679 R. S. 1881, was engaged in the performance of particular acts which involved going from place to place in the county, and giving and serving notice, and not service by the day or week, and it follows, therefore, that the compensation therefor, like compensation for the service of process, miles traveled in serving the same, or to
Judgment affirmed.
Note.—Reported in 99 N. E. 1015. See, also, under (1) 36 Cyc. 1114, 1118; (2) 35 Cyc. 1611.