Hedrick v. Reeves

GATES, P. -J.

’This matter is before us upon an application for a peremptory writ of mandamus, an alternative writ baying heretofore issued. Defendant has demurred thereto, and moved to quash.

Plaintiff claims from the state reimbursement for his living expenses, viz., board and lodging, while in Pierre attending to the duties of his office as state game warden covering the period1 from December, 1921, to September, 1922, pursuant to vouchers presented to defendant and rejected by him- Plaintiff resides at Chamberlain, and asserts that the time necessarily spent at Pierre in the discharge of his official duties at the seat of government does not exceed an average of five days per month. His -claim to reimbursement is based upon the following clause of section 10454, Rev. Code 1919:

“And he shall be allowed his actual and -necessary traveling •expenses.”

The same section also provides:'

“The office of the state game warden shall be at the capitol.”

The question th-us presented is whether the expense of board and lodging of the state game warden while attending the duties of his office at the capitol, where the office must be kept, is embraced- within -the clause “actual and necessary traveling expenses.”

Plaintiff relies upon McCoy v. Handlin, 35 S. D. 487, 153 N. W. 361, L. R. A. 1915E, 858, Ann. Cas. 1917A, 1046, and State ex rel Payne v. Reeves, 44 S. D. 568, 184 N. W. 993, but those cases have no application. In those cases the question was. as to legislative authority. There the legislative intent was clear-Here there is no question as to legislative authority. It is a question of legislative intent. Plaintiff also cites the case of State ex rel Birmingham v. Hackmann, 276 Mo. 504, 207 S. W. 498, but that case is not in point because while the officer had established his office at the state capítol he was not required to do so by law,, and the court said;:

“If either the law or the Constitution required of relator a residence at the seat of government and the law (as it does not) required his office to be maintained at the seat of government,, there would be excqise for the” refusal to audit and allow these expenses.

Plaintiff also invokes by analogy section 10434, Rev. Code 1919, relating to deputy game wardens, but that section expressly allows traveling expenses “when absent from their homes.”

To our minds it seem-s entirely clear that plaintiff’s expense for board and lodging while he is attending the duties of his office at the capítol is not embraced within the term' “actual and necessary traveling expenses.” If, as he contends, it is only fair that he be reimbursed for these expenses,- the remedy is with the Legislature, and not with the courts.

The demurrer to the alternative writ will be .sustained.

ANDERSON, J., not sitting.

Note — Reported in 191 N. W. 7 61 . See American Key-Numbered Digest, (1) Game, Key-No. -6>, 27 C. J. Sec. 19; (2) Constitutional Law, Key-No. 70(3), 12 C. J. .Sec. 390. Reference to other statutes on kindred subjects in determining legislative intent, 25 R. C. L-1053.