Thomas v. Douglas County

13 S.D. 520 | S.D. | 1900

Fuller, P. J.

To recover statutory fees and expenses necessarily incurred in the pursuit and apprehension of certain extradited fugitives from justice, duly charged in Douglas county before a justice of the peace with the crime of adultery, this action was instituted by a sheriff, and the defendant appeals from an order overruling a demurrer to the complaint.

Whether it appears from the complaint that Section 1, Chap. 613, Laws 1895, has been substantially complied with, is the first question presented for consideration. So far as material to this case, the provision reads as follows: “No suit shall be instituted against any county of this state to enforce the collection of a claim against said county, unless said claim has been duly presented to and acted upon by the board of commissioners of such county.” The complaint embraces three separate causes of action of the same import, and in each irstance it-is alleged that duly-verified itemized accounts were filed with the county auditor, and presented to the board of county commissioners on the 29th day of April, 1899, for allowance, and at a regular meeting of said board held on the 5th day of June following the entire claim evidenced by said itemized bills was by the board acted upon and disallowed. These verified itemized bills or accounts attached to and made a part of the complaint are so very specific as to the respective official acts performed and items of expense incurred that no 'valid objection thereto can be urged; and the contention that the commissioners are, by Section 1413 of the Compiled Laws, prohibited from allowing any compensation to the sheriff for any item of his demand for the l’eason that it was not affirmatively shown that he has made the retuim there provided for, is without merit. Strictly speaking, respondent was not acting in his capacity as sheriff of Douglas county, but in the employ of the state pursuant to the following extradition statute, with which he fully complied: “Whenever the governor of this state shall demand from the executive authority of a state or territory of the United States, or of a. foreign government, the surrender to the authorities of this state of a fugitive from justice, the accounts of the persons employed by him for that purpose must be paid out of the county treasury of the county where the crime is alleged to have been committed and to which said fugitive is returned for trial. Provided, that the persons employed by virtue of this section shall receive for their services three dollars ($3.00) per diem and actual expenses while actually and necessarily employed and no more.” Section 1, Chap. 71, Laws 1891. From the complaint and the exhibits attached thereto, which must be considered in determining its sufficiency (Cranmer v. Kohn, 11 S. D. 245, 76 N. W. 937), it clearly appears that the persons named had been duly charged with an extraditable crime before a justice of the peace in Douglas county, who had issued a warrant for their arrest commanding any sheriff, constable, marshal, or policeman of the county to bring them before sugh magistrate forthwith at his office in the town of Armour, in said county. It is further shown that the accused were both fugitives from justice, having fled from Douglas county, S. D., to thé city of Galveston, in the state of Texas, from whence they were promptly brought by respondent under a requisition issued by the governor of this state, and pursuant to the direction thereof, to Douglas county, S. D., and on the 19th day of December, 1898, given into-the custody of the sheriff of that county. Finding the statements of account presented to the board of county commissioners and the complaint based thereon amply sufficient, the order overruling the demurrer is affirmed, and the case remanded for such further proceedings as may be deemed proper in the premises.