Steenerson v. Board of County Commissioners

CANTY, J.

I concur in the result, but, as to the first point discussed, I am of the opinion that the rule that the expression of one thing in one clause of the statute is the exclusion of another thing in another clause of the statute, is not a proper rule to apply to the different provisions of our statute regulating sheriffs’ fee bills, and will often give the sheriff fees to which he is not entitled. Where the statute is silent, the test is whether the sheriff at the same time, and by one actual travel, performed service in several separate and independent proceedings, the fact that he was able to perform service in all the proceedings at once being a mere coincidence, or whether the proceedings were so connected that he would naturally and ordinarily be able to perform service in all the proceedings at once. As to the former case, it is fair to presume that the legislature intended that he should have full mileage in each separate proceeding, such a coincidence being merely his good luck. As to the latter case, it is fair to presume that the legislature intended that he should only have the mileage actually traveled.