Warner v. Fremont County , 4 Idaho 591 ( 1895 )

SULLIVAN, J.

This is an appeal from the judgment of the district court of Fremont county involving the claim of the sheriff for fees for mileage for taking a prisoner from the place of arrest before a magistrate. The sheriff of said county, who is appellant here, did, by virtue of a warrant of arrest issued-out of the probate court of said county, and placed in his hands for service, arrest the person named in the warrant, at a considerable distance from the county seat, and duly filed his claim against said county for mileage for going to make the arrest, and for mileage for taking the prisoner so arrested before the magistrate who issued said warrant. His claim for going to make the arrest was allowed by the commissioners of said county, and the claim for taking the prisoner from the place of arrest before the magistrate was not allowed, on the ground that it was not a legal charge. There are two items in appellant’s claim, both of which involve the same point of law, and what is said of one applies to both items.

The provisions of law regulating the fees of the sheriff in the matter under consideration are found in subdivision 18 of section 2 of an act entitled “An act concerning fees and compensations of county officers,” approved March 13, 1891 (1st Sess. Laws, 1890-91, p. 177). That subdivision, after making provision for certain services of sheriffs, provides that they shall receive “for traveling to execute any warrant of arrest, subpoena, venire or other process in criminal eases, or for taking a prisoner from prison before a court or magistrate or for taking the prisoner from the place of arrest to prison, or before a court or magistrate, for each mile actually and necessarily traveled, in going only, thirty-five cents.”

The question for consideration is, Was the sheriff entitled to á fee of thirty-five cents per mile for taking the prisoner from the place of arrest before a court or magistrate, he having been allowed thirty-five cents per mile for going to the place where said arrest was made? Appellant contends that the provisions of said act are too plain to admit of construction. That it declares that the sheriff is allowed, and may demand and receive, for taking a prisoner from the place of arrest to prison or before a court or magistrate, for each mile actually and necessarily traveled in going, only, thirty-five cents; while respondent contends the plain intent and purpose of said provisions were to allow the sheriff mileage in going, only, in executing a warrant of arrest, and the provision allowing him thirty-five cents per mile for taking the prisoner from the place of arrest to prison or before a court or magistrate only applies to eases where arrest is made without a warrant. Some of the acts for which a sheriff may demand and receive thirty-five cents per mile for each mile actually and necessarily traveled in going, only, as provided by said act,, are as follows: For traveling to execute any warrant of arrest; for traveling to execute subpoena or venire; for traveling to execute other process in criminal cases; for taking a prisoner from prison before a court or magistrate; for taking a prisoner from the place of arrest to prison or before a court or magistrate. The language used, stating each of said acts, is clear, plain and direct. The meaning is too obvious to be misunderstood, and the language too. plain to admit of construction. If the legislative intent was not to allow the sheriff mileage for taking a prisoner from the place of arrest to prison or before a court or magistrate except when arrested without a warrant, the legislature signally failed to confine it to that class of prisoners. As the law now reads, no distinction is made between a prisoner arrested with or without a warrant so far as the mileage of the sheriff is concerned in taking them from the place of arrest to prison or before a. court or magistrate.

The case of Yavapai Co. v. O'Neil (Ariz.), 29 Pac. 430, is cited as an authority sustaining the contention of respondent. That decision was under a statute different from ours. It contained no provision for mileage for taking a prisoner from the place of arrest to prison or before a court or magistrate, and provided for compensation for mileage one way only for executing a warrant of arrest. The court there held that to “execute a warrant” is to do what is in the writ commanded, and that included taking the prisoner from the place of arrest to prison, etc. Yery true, our statute declares that, for executing a warrant of arrest, the sheriff shall receive mileage for one way only. In the same sentence, it declares that he may demaud and receive mileage for taking the prisoner from the place of arrest to prison or before a court or magistrate, clearly indicating that it was not intended to include that act as a¡part of the execution of the warrant, or, if a part, to permit fees to be charged for it.

It is contended that the intention was not to permit double mileage. While I think that is true, I also think that the legislature knew that there might be expense in transporting the prisoner from the place of arrest to prison or before a court or magistrate, which expense the sheriff must pay, and the allowance of thirty-five cents per mile for that service was to cover ■that expense. In the service of a subpoena or venire, there is no expense of transporting prisoners, and the sheriff is allowed thirty-five cents per mile in going only. Executing a warrant of arrest, and taking a prisoner before a court or magistrate, are treated in said section as separate and distinct acts, and not as a single act, and compensation for each allowed. Under the statute of California, which is not as explicit as ours on the question under consideration, the supreme court of that state holds that the sheriff is entitled to mileage for executing a warrant of arrest, and also mileage for taking the prisoner so arrested before a magistrate. (Cunningham v. San Joaquin Co., 49 Cal. 323; Allen v. Napa Co., 82 Cal. 187, 23 Pac. 43; Monahan v. San Diego Co. (Cal.), 29 Pac. 417.) The act under consideration, instead of prohibiting mileage for said service, has' plainly stated that the sheriff may demand and receive thirty-five cents per mile for taking a prisoner from the place of arrest before a court or magistrate, whether such prisoner is arrested with or without a warrant, and, for each additional prisoner taken, the law allows fifteen cents per mile, thus providing, as I think, for the expense of transporting such prisoners.

The judgment of the court below is reversed, with instructions to enter judgment in favor of appellant, in accordance with the views expressed in this opinion. Costs awarded to appellant.

Morgan, C. J., and Huston, J., concur.