Red Willow County v. Peterson

Reese, O. J.

This is an action by plaintiff, the county of Red Willow, against defendant, Hans I. Peterson, a former sheriff of said county, upon bis official bond, for tbe amount of certain mileage fees wbicb, it is alleged, be earned and collected while in office, but failed to report and pay into the county treasury. A general demurrer to tbe petition was filed by defendant, wbicb was overruled. Defendant declined to answer further, and stood upon bis demurrer, when a judgment was entered against him for tbe amount claimed. He appeals to this court.

Tbe petition alleges tbe failure of defendant Peterson to report and pay over tbe mileage fees for each quarter during tbe two years be held office. Tbe effect of the demurrer is an admission that be so failed, and that tbe amounts alleged to have been collected are correctly stated. The only question is as to whether it was bis duty to so report and pay- over tbe fees named. At tbe time be took upon himself tbe duties of bis office, tbe statute was, and still is, that on tbe first Tuesday in January, April, July and October of each year the sheriff shall “make a report to tbe board of county commissioners or supervisors under oath showing tbe different items of fees except mileage collected or earned, from whom, at what time and for what service, and tbe total amount of fees collected or earned by such officer since tbe last report and also tbe amount collected or earned for tbe current year and he shall then pay all fees earned, to tbe county treasurer.” Oomp. St. 1911, cb. 28, sec. 5. Tbe case turns upon tbe meaning of tbe words “except mileage,” and tbe intention of tbe legislature in incorporating them into tbe section. The legislative journals show that tbe amended act was passed in 1907. The bill was introduced without tbe quoted words, and was referred to tbe proper committees. (Senate File 319.) It was considered in the committee of tbe whole March 22,1907, and tbe committee .reported it back recommending a number of amendments, one of wbicb was, “after the word Tees’ insert tbe words ‘except mileage.’ ” (Senate Journal, p. 1003.) Tbe report of the committee was adopted (Senate Journal, p. 1007), and tbe bill, as thus amended, was passed by both houses and was signed by the governor. This is all the light given upon the subject, in so far as this language is concerned.* It is argued with considerable force and skill that other provisions of the law requiring all fees to be paid into the county treasury, as well as the fact that the salary of the sheriff is fixed by statute, do not indicate that the mileage fees are to be excluded. The intention of the legislature, in the absence of ambiguous terms, is to be drawn from the language used. It is very clear that it was the purpose to exclude mileage from the report, or it would not have been excepted. The record shows that the exception was incorporated by the deliberate act of the law-making power. It is a well-established rule of construction that all words used in a statute should be given some meaning, if it can be done. The words “except mileage” are not meaningless, and but one intention can be attributed to their use, and that is, that mileage fees are not to be reported. If not, they are not to be accounted for.

It follows that the judgment of the district court must be reversed, and the cause dismissed, which is done.

Reversed and dismissed.

Rose, J., took no part in the decision.