Sargent v. Board of Com'rs of La Plata County

• Decision Date: 20 April 1895
• Citation: 40 P. 366,21 Colo. 158
• Parties: SARGENT v. BOARD OF COM'RS OF LA PLATA COUNTY.
• Court: Colorado Supreme Court

40 P. 366

21 Colo. 158

SARGENT v. BOARD OF COM'RS OF LA PLATA COUNTY.

Supreme Court of Colorado

April 20, 1895

Error to La Plata county court.

Action by Draper C. Sargent against the board of county commissioners of La Plata County for sheriff's fees. From a judgment against him, plaintiff brings error. Reversed.

The sheriff and the board of county commissioners of La Plata county disagreed as to the amount of fees to which the sheriff was entitled, and this case, embracing such differences, was submitted to the county court upon an agreed statement of facts, accompanied by the proper affidavit of merit. It involves the construction of an act of the legislature concerning fees, which was approved on the 6th of April, 1891 (see Sess. Laws, p. 200), and a portion of the salary act approved on the same day (Id. p. 307). There are seven causes of action set up in the complaint, each being for the recovery of fees alleged to have been earned by the plaintiff in error (plaintiff below) in his official capacity as sheriff of La Plata county. It is conceded that the sheriff performed the services in question. The only dispute is as to the amount of his compensation. Such additional facts as are necessary to an understanding of the case will be stated in the opinion, and it will tend to clearness briefly to state the different causes of action separately and then consider the controverted items in one discussion.

First Cause: '(1) For transporting prisoners from Durango to Canon City, 350 miles, at 20c. per mile, $70.00; (2) for mileage in serving mittimus, from Durango to Canon City and return, 700 miles, at 10c per mile, $70.00; (3) railroad fare for prisoner from Durango to Canon City, $19.10; (4) railroad fare for sheriff from Durango to Canon City and return $38.20; (5) sleeping-car fare for sheriff from Canon City to Durango, $3.50.' Of this bill there were allowed and paid by the commissioners (which action was approved by the county court) all of the foregoing items, except the fourth, fifth and one-half of item No. 2.

Second Cause: '(1) Paid by sheriff to his deputy for serving a special venire for jurors in a court of record, in a criminal case, $2.00; (2) paid for horse hire for deputy in serving said venire, $7.50; (3) paid for meals of deputy while serving venire, $.70.' The county commissioners allowed and paid to the sheriff the fees and the mileage which the statute prescribed for serving such writs, but the three items set out above were disallowed; both of which rulings the county court affirmed.

Third Cause: '(1) For similar items to those embraced in the second cause of action, $8.20; (2) mileage in transporting a prisoner 38 miles at 20c. per mile, $7.60; (3) mileage in serving a subpoena, 38 miles at 10c. per mile, $3.80; (4) mileage in serving warrant of arrest, 38 miles at 10c. per mile, $3.80.' Items 3 and 4 were allowed; 1 and 2 were disallowed. In this case all of the fees which were allowed were ordered by the county commissioners, and so ordered by the county judge, to be turned over to the county treasury.

Fourth Cause: The fees embraced in this bill were for services rendered by the sheriff at a preliminary examination before a justice of the peace, and were disallowed by the board and the court.

Fifth Cause: The fee claimed was for one day's attendance by the sheriff before a justice of the peace in a trial of a criminal action, and was disallowed by the board and the court.

Sixth Cause: 'For one day's services of a bailiff with a petit jury in a court of record, $3.00.' This bill was allowed, but the amount ordered to be turned over by the sheriff to the county treasurer. The sheriff was charged therewith, and the amount was deducted from the amount to be paid the sheriff for his deputy's salary for the year 1893.

Seventh Cause: For the same class of services as those embraced in the first cause, except that here the railroad fare for which the sheriff put in his bill was, as a matter of fact, paid by him, although at the time he had a free pass over the railroad. The board of commissioners disallowed this claim but the court allowed it.

From the judgment against him on the whole case the sheriff is here upon writ of error.

Russell & Ritter, W. A. Reese, and Wells, Taylor & Taylor, for plaintiff in error.

Galbreath & Searcy and Arthur Cornforth, for defendant in error.

CAMPBELL, J. (after stating the facts).

The plaintiff in error for the first time urges in this court that the fee act is unconstitutional, in that the manner of its passage, prescribed by the constitution, was not observed by the legislature; but this point was not raised in the court below, nor is it preserved in the record, or in the assignment of errors. Under the decision of Marean v. Stanley (Colo. Sup.) 39 P. 1086, plaintiff in error cannot now be heard to make this objection. Hence the questions to be determined in this controversy involve merely the construction of section 4 of the fee act and section 11 of the salary act. The provisions applicable to this case are as follows: From said section 4: First. 'Mileage for each mile actually and necessarily traveled, in serving each writ, subpoena or other process, in counties of the * * * fourth class, ten cents.' Second. 'For transporting prisoners, besides actual expenses, necessarily incurred, per mile, in counties of the * * * fourth class, twenty cents.' From section 11 of the following two excerpts: Third. 'The sheriffs in the several counties in this state shall receive as their only compensation for their services rendered, an annual salary, to be paid quarterly out of the fees, commissions and emoluments of their respective offices, and not otherwise.' Fourth. 'In counties of all other classes [than those of the first class] he [the sheriff] shall be allowed actual traveling expenses which shall be paid out of and not exceeding a mileage at the rate of ten cents per mile, actually and necessarily traveled in the performance of duty.' It must be remembered that in the discharge of his official duties the sheriff gets no per diem except for his attendance upon courts of record when in session, and even this is to be accounted for by him, and turned into his fee fund. He gets a salary, but whether or not that salary is paid depends upon whether the fees to be charged and collected by him will, in amount, be sufficient therefor. The fees which he is entitled to charge under the fee act are certain compensation by way of lump sums for the doing of the various things required of him, and mileage at a certain rate per mile necessarily traveled in the performance of such duties. There are many services performed by the sheriff, for which, if the fee act alone is considered, he gets either no compensation at all, or a fee less in amount than the actual cost to the sheriff in the rendering of such service. A large part of a sheriff's official duty consists in summoning jurors, serving process upon parties, and subpoenas upon witnesses in civil and criminal cases. To do this he must travel, frequently in counties where there are no railroads, and where the actual traveling expenses exceed the compensation which the fee act prescribes for such services. The fees for transporting prisoners and for certain other duties as prescribed in this act were doubtless based upon this fact, known to the legislature; and, while the compensation in a given case may seem disproportionately large to the service rendered in that case, yet, considering the fact to which we have just adverted, and the general nature and scope of the sheriff's official duties, the fees prescribed in this act, together with the provision for traveling expenses found in the salary act, may be considered as a fair way of equalizing his compensation.

Bearing these considerations in mind, we will proceed first to dispose of the controverted questions embraced in causes of action Nos. 2, 4, 5, and 6.

1. Under the second cause of action, the sheriff was paid by the county the fee and mileage prescribed by the fee act for serving a venire for jurors. A deputy sheriff served the writ. The compensation prescribed is given for the service, whether performed by the sheriff or his deputy; and out of such fees the sheriff must, if the writ is served by his deputy, compensate the latter. The first item was properly disallowed. The second and third items, if they were necessary parts of the traveling expenses paid, should have been allowed, but the facts given are too indefinite to enable us to pass upon this question.

2. Services such as were rendered and described under the fourth cause of action relate to a preliminary examination before a justice of the peace, and the costs thereof are to be paid or not by the county commissioners, in their discretion; and we are not at liberty to review the same. Mills' Ann. St. § 699; Sess. Laws 1889, p. 100; Board v. Graham, 4 Colo. 201.

3. The fee claimed by the sheriff as stated in the fifth cause of action was for one day's attendance by him before a justice of the peace in the trial of a criminal action. While a constable is allowed a per diem for his attendance at a trial before a justice of the peace, we find no statutory authority for giving to the sheriff any such compensation. He is allowed his per diem for attendance before a court of record, but not before a justice of the peace.

4. As to the sixth cause of action, it appears that at the trial of a criminal action in a court of record a bailiff was appointed to attend the jury in its deliberations. Three dollars were allowed by the board of commissioners as a per diem for such services; but this amount was ordered by the board to be covered into the county treasury, and the same was to be deducted...