Remer v. Lawrence County , 13 S.D. 418 ( 1900 )

Haney, J.

In this action the sheriff of Lawrence county seeks to recover of the county certain fees for services rendered in summoning ■ grand and petit jurors. The complaint contains two counts. It is alleged in the first that the plaintiff necessarily and actually traveled 3,867 miles, for which he received compensation at the rate of 5 cents per mile. He contends he should have received 15 cents per mile, and that there is a balance due him of $386.70 It is alleged in the second court that the plaintiff, in Summoning jurors, actually and necessarily served upon persons so summoned.340 copies of venire and notice to come and attend as jurors, for which he claims he should receive compensation at the rate of 25 cents per copy, aggregating §85, no part of which has been paid. Defendant demurred to the complaint on the ground that it does not state facts sufficient to constitute a cause of action. The demurrer was overruled, and judgment rendered in favor of plaintiff for the entire amount claimed. This appeal is from such judgment.

Since the judgment of the circuit court was rendered, this court has decided the question raised by the allegations of the first count. It does not state a cause of action. Neher v. McCook Co., 11 S. D. 422, 78 N. W. 928. Nor does the second count contain a cause of action. Sheriffs are entitled to charge and receive for making a copy of any process, bend, or paper, other than in the statute provided, one cent for every 10 words. Comp. Laws, § 1409. It is not alleged that any copies were made by the sheriff, and the statute relied upon does not provide compensation for serving copies. Public officers are entitled only to such compensation as the law allows; but, if plaintiff had made the copies, he would not be entitled to compensation therefor. In construing Section 1409 this court said: “Our conclusion is, from the language used in the clause we are considering, and the evident intention of the legislature as appears from other parts of the section, that the term ‘including’ was used in its ordinary sense, and as intending to convey the idea that the $16 was to be the full compensation of the sheriff for summoning a petit jury, and $8 for summoning a grand jury.” Neher v. McCook Co., supra. Whatever doubt may have existed as to mileage, it is clear the legislature did not intend to include in the sheriff’s compensation for summoning jurors anything beyond the prescribed fee and mileage. When Section 1409 was adopted, the law required the clerk to issue venires, and the sheriff to serve them by reading or delivering a copy. Comp. Laws, §§ 449, 450. As the sheriff was at liberty to summon jurors by reading the original venire, no reason exists for inferring that he was to receive, compensation for making copies in addition to that specifically provided for summoning jurors. We think the complaint shows upon its face that plaintiff has received all the compensation to which he is entitled. The judgment of the circuit court is reversed, with directions to dismiss the action upon the merits.