Scofield v. Wilcox

156 N.W. 918, 33 N.D. 239, 1916 N.D. LEXIS 73

• Court: North Dakota Supreme Court
• Decided: February 17, 1916
• Status: Published

Opinions

Bruce, J.

Tbe only question in this case is whether under tbe provisions of §§ 3520-3525 of tbe Compiled Laws of 1913, a sheriff is entitled to keep for himself tbe mileage paid for tbe distance traveled in tbe performance of tbe official duties of bis deputy, or whether such mileage belongs to tbe deputy, and to the deputy alone.

Tbe plaintiff in this case traveled 6,179 miles while in tbe employ of tbe sheriff as deputy, and tbe defendant sheriff allowed and paid him all bis expenses such as livery hire, gasolene, and other expenses, but collected and retained for himself tbe 10 cents per mile which is allowed by § 3521 of tbe Compiled Laws of 1913.

Section 3521 of the Compiled Laws of 1913 provides: “In addition io the salary prescribed in the preceding section the sheriff or his deputy ■or deputies shall be allowed 10 cents per mile for each and every mile actually and necessarily traveled in the performance of their official duties.” It would appear from the wording of the section that the deputy, and not the sheriff, is entitled to this mileage. Counsel for appellant, however, argues that there is no such office as that of deputy sheriff; that “the deputy is not an officer of the county, but is employed by the sheriff as his deputy, and the county paid him as such deputy the •sum of $90 per month for his services. Therefore he is the deputy of the sheriff and working for the sheriff, and the fees that he might make in the office would be handed to the sheriff, and the sheriff would pay them into the county, tog’ether with his fees, and any mileage that he might make would be made for the sheriff, and the sheriff would collect them and retain them as his mileage fees.” In support of this proposition he cites Wilson v. Russell, 4 Dak. 376, 31 N. W. 649, and might also have cited Summerville v. Sorrenson, 23 N. D. 460, 42 L.R.A.(N.S.) 877, 136 N. W. 938.

We do not believe, however, that he is correct in his contention. The ■cases cited merely hold that the official acts of a deputy sheriff are the acts of the sheriff, and that as an officer he is not known to the law. They fall far short of holding, however, that he is not to a certain extent a public employee, and that the public has not the right to fix his compensation and his emoluments.

That the legislature has done this, and that this is its intention, there can be but little question. Not only is the language of § 3521 of the Compiled Laws of 1913 clear upon its face, but the deputy sheriff is specifically recognized as an employee of the state or county, and not of the sheriff, by the fact that his salary is fixed by the legislature, which has provided that he shall be paid, not by the sheriff, but out of the public funds. See Comp. Laws 1913, § 3523. In commissioner districts that compensation is to be fixed by the commissioners at not less than $60 nor more than $100 per month, except in counties of more than 33,000 inhabitants, where the salary is fixed at $125 per month. It is true that such deputy is appointed by the sheriff, but a resolution •of the board of county commissioners is a prerequisite to such appointment, at any rate if the public funds are sought to be resorted to. It is also true that in these commissioner districts where a salaried deputy is not located or provided for, it is the duty of the sheriff to appoint at-least one deputy without any such resolution, but the statute strictly fixes-his compensation, and it is noticeable that such compensation is fixed at “such mileage and livery fees only as are now provided by law.” In addition to this, § 3524 provides that “in case of any emergency the-sheriff shall have the authority to appoint and qualify special deputies-in such numbers as, in his judgment, the conditions may require, and each of such special deputies shall receive as compensation for his services the sum of $3 per day and the same mileage as allowed to regular-deputies, to he paid by the county. The sheriff shall have the sole-power of appointing and removing them at pleasure.” The language of these two sections must be taken into consideration when construing § 3521, and no one can read them without coming to the conclusion that not only was the deputy sheriff considered by the legislature as a. public employee, but that the mileage was considered and provided as a means of compensation to him and to him alone. The closing paragraph of § 3523 says: “Whose compensation shall be such mileage and livery fees only as are now provided by law,” while in § 3524 we find the words: “And . . . such special deputy shall receive as compensation for his services the sum of $3 per day and the same mileage-as allowed to regular deputies to be paid by the county.”

When using the words, “as allowed to regular deputies,” the legislature must be deemed to have spoken advisedly, and to have given their-own construction to § 3521, which was part of the same genei*al act. (Chapter 275 of the Laws of 1911.) They said: “Allowed to regular-deputies.” They did not say: “Allowed to to the sheriff for the work and travel of his deputies.”

We are satisfied that the deputy is entitled to the mileage of 10 cents per mile for the distance actually and necessarily traveled, and that the judgment of the district court should be affirmed. In coming to this-conclusion we are not only stating our own opinions, but that expressed, by the legal department of this state in at least three written opinions. One of these opinions was filed on January 10, 1913, and signed by Assistant Attorney General C. L. Young; another was filed on January 12, 1914, and was signed by Attorney General Andrew Miller. The-other was filed on November 7, 1913, and was signed by Assistant Attorney General John Carmody and Assistant Attorney General Alfred Zuger concurring.

All of these opinions came to the same conclusion that we have reached in so far as the question as to whom the mileage belongs, and it is a fact worth noticing that all of them were filed in ample time for the legislature to have expressed itself upon the matter at the 1915 session if the opinions as filed misstated its intention. See Biannual Report of Attorney General for 1913-1914:, pages 175, 177 and 181.

The judgment of the District Court is affirmed.