Santa Fe daily New Mexican. [volume] (Santa Fe, N.M.) 1885-1897, 1895-04-17
IMPORTANT OPINION.
Solicitor General Victory Oh Sheriff's
Fees for Conveying Prisoners
to the Penitentiary.

to the Penitentiary.
The appended opinion by the solicitor
general addressed to the territorial au
ditor in response to an inquiry by tina
official is of general interest to New Mex
leo residents:
Dear Sir:--I am in receipt of your let
ter, dated April II, in which you request
my official opinion as to your right tt
audit and issue warrant on the treasury
covering the account of Hon. Guadalupe
Ascarate, sheriff of Dona Ana county, fol-
S746.50, for conducting nine prisoners
from Las Cruces to the penitentiary il
this city. Your requeso practically calls
for an Interpretation of the net approved
February %, 1895, entitled San act fixing
the fees and compensation of sheriffs,
as the account presented to you by Sher
if Ascarate is made up of items which it il
claimed are authorized by the provisions
of that act. The sections of the act
deemed material to the consideration OF
the question presented to me are yer.
batim as follows
TEXT OF THE LAW QUOTED.
Sec. 5.--The sheriff shall be paid the
regular rates of mileage as herein pro
vided by this act by their respective
counties in all cases where the sheriff
upon warrant issued out of any court
within his county for the arrest of any
person or persons, being charged with
any crime even though the arrest be made
in another county than the one of which
he is sheriff, and shall also be paid mile
age for guards and prisoners. He shall
also be allowed and paid by the county
So per day for each guard actually en-
ployed in assisting with such prisoner,
but shall not employ more than one
guard unless there be more than three
prisoners; for every two additional pris-
oners he shall be entitled to one guard.
He shall also be entitled to $3.50 per day
for feeding each prisoner and guard
while in transit from one point to an
other. Provided that in cases originat-
except felony cases, he shall be allowed
only the same fees and mileage as are
now allowed constables for like serv-
ices"
Sec 6.--The sheriff shall be paid mile
age at the rate of 121 cents per mile, for
each mile actually and necessarily trav-
eled, in serving any process, order, cita-
ton, execution, summon or decree of any
court, and shall also be allowed and paid
the same rate of mileage for himself, for
each prisoner, and for each guard. In
conducting prisoners from one point to
another, to the county jail or to the peni-
Tertiary, and shall also be paid 81 per
day for feeding prisoners while en- route
to the penitentiary. But it is distinctly
provided that when more than one sub
p9na or summons or service ia made or
performed upon more than one person
in the same town or place, or when more
than one prisoner is conducted from one
place to another the sheriff shall not
charge more or receive any mileage in
excess of that which he would be en-
titled to for serving one subpoena in such
place, or conducting one prisoner from
one place to another; and provided fur
ther, that in service of subpoena or sum-
mons in more than one town or place
along the same route the sheriff shall not be
entitled to any greater mileage than that
of the most distant point actually and
necessarily travelled to in the discharge
Of his duties with the additional mileage
earned in actual and necessary travel
from, and in returning to, the place of
departure from, any general route as
aforesaid.
"Sec. ALI expenses in transporting
prisoners to the penitentiary shall be paid
by the territory.
"Sec. S.--For all other services and
expenses except those mentioned in this
act, the sheriff shall receive the fees and
compensation now fixed by law for such
services and expenses.
"Sec. $50 much of all acts or parts
of acts in conflict herewith are hereby re-
p ealed."
GRAMMATICAL INACCURACIES.
Grammatical inaccuracies, due doubt
less to the fact that the bill became law
during tho closing hours of the Legislative
session, throw some obscuritv upon the
meaning of sections and 6, but care
full consideration of those sections with
the view to ascertaining the legislative
intent seems to justify the conclusions
hereinafter set forth as the true meaning
OF the law. Section of the act seems to
refer entirely to the fees and compensa-
tion to be allowed sheriffs by their respect.
i've counties for services rendered in
accused persons from points
within such county Or from points
without said county to the county Jail. |
No reference is made in section to the
fees and compensation of sheriffs for
prisoners from points in the
territory to the penltentiary and the
whole wording of that section indicates |
disposition upon the part of the law
makers to consider each of these two |
classes of service parately and to legis-
late upon them in full view of the differ
ence in the charact er of the work per-
formed in each case. The legislature might
very we'll, AID probably did, take notice
of the fact that there are more difficulties
surrounding the arrest of a criminal at
large, his safe keeping, and his transport
tation to the county Jail than in the mere
and care of convlcts on
their way from the several county seats to
the penitentiary. This fact taken in con-
nection with the use of such terms as
paid by the county" throughout section
leads easily to the conclusion that Sec
lion 8 refers to and governs not services
rendered to the territory in transport
tation of its convicts to the peniten-
tiary but services rendered to the county
in connection with the care and tranpor-
tation Of parties accused of crime on
their way to the county Jail. For the
reasons just stated, therefore, it follows
chat the fees and compensation of sheriffs
for this last class of service, where fixed