Whittle v. Saluda County

• Decision Date: 22 March 1901
• Citation: 38 S.E. 168,59 S.C. 554
• Parties: WHITTLE v. SALUDA COUNTY.
• Court: South Carolina Supreme Court

38 S.E. 168

59 S.C. 554

WHITTLE v. SALUDA COUNTY.

Supreme Court of South Carolina

March 22, 1901

Appeal from common pleas circuit court of Saluda county; W. C Benet, Judge.

Action by M. A. Whittle against Saluda county. From a judgment in favor of plaintiff, on appeal from a decision of the board of county commissioners disallowing defendant's claim defendant appeals. Reversed.

Eugene W. Able, for appellant.

J. B Hunter, for respondent.

McIVER C.J.

The plaintiff presented a claim to the county board of commissioners for Saluda county, amounting to $12, for his costs as sheriff in serving subpoena writs for witnesses on behalf of the defendants in two cases in which the defendants were charged with misdemeanors. The board of commissioners disallowed the claim, and the plaintiff appealed to the circuit court from this action of the commissioners. The appeal was heard by his honor, Judge Benet, who rendered judgment reversing the action of the county commissioners and ordering judgment against the county of Saluda for the amount of said claim, with costs in favor of the plaintiff as sheriff of said county. From this judgment defendant appeals upon the grounds set out in the record, which need not be stated here, as they raise the single question whether the county is liable to pay the costs of the sheriff incurred in serving subpoena writs to secure the attendance of witnesses on behalf of a defendant who is indicted for a misdemeanor. The grounds upon which the circuit judge rested his judgment do not appear in the "case," and we are not otherwise informed upon what his judgment was based, as we have not been favored with any argument on the part of the respondent. We are therefore left to the determination of this question by our own investigation of the law upon the subject, aided by such suggestions as are found in the argument which has been submitted on behalf of the appellant.

Section 676 of the Revised Statutes of 1893 provides that "each county shall pay: *** (4) Fees of sheriffs and clerks of court provided by law." In section 2561 of the Revised Statutes provisions are made prescribing the amounts which the sheriff is entitled to as costs for performing the various services required of him, among which is the following: "Serving subpoena writs and mileage on each ticket, fifty cents." But there is no provision, either in that section or any other statute which has been brought to our attention, which requires such costs to be paid by the county. On the contrary, in that section, in reference to other services, there is a provision that such services shall be paid for by the county, if the defendant is not able to pay, viz.: "Bringing up prisoner under habeas corpus, to be paid by prisoner if able (if not, by county), besides mileage and necessary expenses, fifty cents." This shows that the legislature, when they intended that any services required of the sheriff should be paid for by the county were careful to say so. We infer, from what is said in the argument submitted by appellant, that the decision below was sought to be sustained by the provision contained in section 18 of article 1 of the present constitution, in these words: "In all criminal...