Montana Attorney General Opinion 15-210

Opinion No. 210 Sheriffs-l\lileage-ActuaI Expenses -County ,Commissioners. HELD: As to the items covered in Chapter 121, Laws of 1933, the mile- age of sheriffs is fixed. As to the items of travel not covered by said chapter 01' other express statutes, the conclusion must be that a sheriff can recover for his reasonable expenses and the power to determine what is reasonable is vested in the county com- missioners and limited by the claim presented. Chapter 16. Laws of 1933, does not require the commissioners to allow a sheriff 7c pel' mile in lieu of actual expenses. This statute is a statute of Iimita tion. May 12, 193.'1. You ask for an opinion in relation to the mileage of "heriffs. This matter is largel~' covered b~' Chapter 121 of the Session IAlWS of 1!l33. which amends Section 4!llG n. C. 11. 1921, and is in part as follows: "In addition to the fees ahoye speci- fied, the sheriff shall re('eiYe for each mile actunll~' tra\'eled, in serving IIn~' writ, llrocess, order or other paper in- cluding a warrant of arrpst, or in con- veying a person under arrest before a magistra te or to jail. only his actual expenses when such travel is made by railroad and eight and one-half cents (8%c) when tra\'el is malle other than hy railroad. both going alHI returning. and he shall also be allowed mileage based upon the ahove rates for each person transported under an order of court. for the actual distan('e conveyed or transported within the ('ounty, 'the same to be in full payment for trans- ]lorting and dieting such persons dur- ing such transportation. "Proyided further, that this act shall not apply to the de!iyen' of prisoners at the state prison or at the reform school, or insane versons to the state insane asylum, for which he shall re- ceive the actual expense incurred as provided by Section 48R5 of the Re- \'ised Codes of ID21. Xor shall this act apply to trips made for the rl'tnrn of fugitives apprehended and arrested outside of the county for which the sheliff shall receh'e the actual neces- sary expenses incurred in going for and returning with such fugitiye." Thus as to the items covered by this section, the mileage is fixed. The for- mer act as amended, Chapter 121, Laws of ID2D, contained (after the words "ac- tually trayeled" in lines 2 and 3 as quoted) the words "in the performance of any official duty." This omission must be construed to be for a definite purpose. There is omitted fl'om this section any pro\'ision as to mileage or expenses of sheriffs in making inYesti- gations within or without their coun- ties, in maintaining the peace and in O1'IKIO);8 0}1'· THE A'l'TOH);EY GE);EHAL Hi performin;.; other duties which nece~­ sarily require tra \'el upon the part of the sheriff. In construing this matter I have very carefullv checked this law with the sec- tion pri~r to amendment and examined the opinions of prior Attorneys Gen· eral, and particularly opinions in Vol- ume 5, pages 173 and 588. holding an~' additional expense and mileage to sher- iffs im'alid, and Volume 13, page 298, that in the execution of a duty to pre- sen'e puhlic peace, the sheJiff is en- titled to be paid mileage. These opin- ions a re in conflict. Further, in Section 4885 R. C. )1. l!l21 is founo this provision: "'Yhile in the discharge of his duties. both ciyil and criminal, except as hereinbefore prm'ided, the sheriff shall receive 10c per mile for each and every mile ac- tually and necessarily tra \·eled." It would appear fair that the sheriff should be paid his expenses or mileage in the performance of his official du- ties other than those descrihed in Chap- ter 121, I~a ws of 1933. In the case of Brannin v. Sweet Grass County, 88 Uont. 412, that portion of Section 4&"5 quoted above was considered. and it \Va s held that such section did not authorize the payment of mileage un- less such mileage was elsewhere ex- pressly provided by law. The decision suggested that uuder certain conditions contingent expenses might be allowed to sheriffs. There are certainly other duties which require extensi\'e traYel· in;.; upon the part of sheriffs and not covered h.\' Chapter 121 of the Laws of H)33. In the Brannin case the bill of a sberiff was rejected but it was held that same was for an investigation outside of the state, which the sheriff was not required to make. As to ill\'es- tigations within his own county. a sheriff certainly must make them and if he is not entitled to mileage ullder this section, he is entitled to his ex- penses as contingent expenses. The following are county charges: "2. One-half of the salary of the county a ttorney, and all expenses necessarily incurred by him in criminal cases alis- ing within the county. 3. The salary and actual expenses for traveling when on official duty, and fOl' the board of prisoners allowed by law to sheriffs. • • •. " Section 4952 H. C. M. 1!121. The question is, how are such ex- penses of the sheriff to be determined? From the decision in the Brannin case. we conclude that Section 4885 R. C. 1'1. 1921 does not apply. If a sheriff, in performing such duties, trayels by rail. dearly his carfare is an item of neces- sary ~xpense and would not permit the recovery of mileage in addition to such expenses. As to items of travel not ('overed hy Chapter 121. Laws of 1!}33, or other express statutes. the conclu- sion must be tha t a sheriff (,lin recO\'er for his reasonahle expenses and thc power to determine what is reasonable is vested in the count~' commissioners and limited hy the claim pJ·esented. At- tention has "een ('allNl to subdi\'ision 1 of Section 3 of Chapter 16, Laws of l!l33 , amending Chapter SO, Laws of lH23, which pro,rides in part as fol- lows: ""Thenever it shall be necessary for any state or COlin ty officer to use his own automobile in the performance of anv official duty where traveling expense is allowed hY law. snch officer shall receive not to (~xceed se\'en cents (7c) per mile for each mile necessarily traveled unless otherwise specifically provided by law." This statute does not require the commissioners to allow a sheriff 7c per mile. He may be tra \'eling by horse, as well as his automobile, or other vehicle. or on foot, in making investigations or preserving peace. This statnte is a statute of limitation and as to items not elsewhere cO\'ered would forbid county commissioners fJ'om per- mitting a sheliff to reco\'er an expense of more thnn 7c a mile for the use of his automobile. It cannot be used to compel county commissioners to allow a mileage computed on that basis in Iiell of aetua I expenses. The rule is that when a sheJiff travels for the pur- poses last discussed, he may recover his actual expenses, the reasonableness of which is to be determined by the county commissioners. If their determi- nation appears unfair or arbitrary, a sheriff aggrie\'ed has his remedy by a ppea I to the courts.