Scovel v. Pennington County

*315 that such a construction would not give rise to title in the county to such over-charg-es. Title to excess payments of that character would remain in the Government. Aside from the foregoing possible aspects of the situation, the only basis for a claim of title on the part of the county resides in the provisions of §§ 5960 and 5961, supra, but it is stipulated and agreed that the amount of such additional expense of the county was not fixed by thfe county commissioners, nor charged nor collected by the sheriff. Therefore, to assume that the excess payments were received by the sheriff as such additional expense of the county would require a court to infer a fact contrary to the express terms of the stipulation of the parties. Whether a court may legitimately indulge any inferences of fact in dealing with a case submitted upon a stipulation of the character here involved need not be determined. Cf. 60 C. J. 85, Certainly it is never permissible for a court to do violence to the stipulation of the parties and indulge an inference of fact in direct contradiction to its express terms. Feniger et al, v. American Ry. Express Co., 226 Mich. 106, 197 N. W. 550; Slaughter v. Protective League Life Insurance Co., 205 Mo. App. 352, 223 S. W. 819. We are as firmly convinced that the claim of the county to payments made by the city in excess of the rate fixed by the board of county commissioners is without foundation. The statutes make the single following mention of the use of county jails by the cities of the state, in § 6169, Revised Code of 1919, subsection 34: “Every municipal corporation shall have power * * * to use the county jail for the confinement or punishment of offenders, subject to such conditions as are imposed by law, and with the consent of the board of county commissioners.” Although § 5960, supra, only makes mention of the “United States or of anj^ state or territory,” the county presents this phase of its claim on the theory that the provisions applicable to the care and custody of Federal prisoners govern the care and custody of prisoners of a municipality located within the county. We do not share in that view. Influenced by the thought that the tax payers of a municipality sustain a like relation to the county and contribute directly to the expense of maintaining the jail of their county, and by the fact that the Legislature has made no provision for *316 payment to the county of any part of the expense incurred in maintaining the jail for the use of municipal prisoners, we are convinced that the legislature intended to place this whole subject under the control of the board of county commissioners, and that it remains for them to say whether their consent to the use of a jail by a municipality shall be conditioned upon any payment to the county. In connection with this conclusion, it is noteworthy that the statutes do contain provision for the .payment of county expense by other counties and states, and by the United States. § 10206, Revised Code of 1919, and § 5960, supra. We need not now determine whether the rate fixed by the board of county commissioners for the care of prisoners constitutes a limitation upon the amount the sheriff may charge a city of his county for the board of its prisoners. For reasons set forth, supra, if the excess charge was legal, it became the property of the sheriff. If it was illegal and constituted an over-charge, no title to such excess inured to the county. It does not appear from the stipulation that the county made any charge to the city for the use of the jail, or that the sheriff collected any sum whatever on behalf of the county from the city. 'Such being the situation, there is no basis in fact for a conclusion that the county has title to any of the funds in the hands of the former sheriff. It follows that we are in accord with the result reached by the learned trial court, and that its judgment should be, and is, affirmed. All the Judges concur.