Mombert v. Bannock County

AILSHIE, J.- The question presented for determination in this case is: Is the county liable to a person who furnishes board to prisoners confined in the county jail and can such a person maintain his action against the county for the value thereof? The respondent furnished the sheriff of Bannock county board for prisoners detained by him in the county jail during the year 1902, and about January, 1903, and while the sheriff was indebted to respondent in the sum of $377.10 for such, board, it was discovered that the sheriff was a defaulter in a large sum, and thereupon the respondent filed his claim with the board of county commissioners for the amount due him, alleging that the same had been furnished the county at the instance and request of the sheriff. The board of commissioners rejected the claim and the claimant appealed to the district court. The matter was there heard and judgment was entered in favor of the plaintiff, and from such judgment the county has appealed to this court. It is the contention of appellant that the county is liable only to the sheriff for the board of prisoners, and that any person furnishing such board at the request of the sheriff must look to him directly for his pay and cannot maintain his action against the county. The respondent, on the other hand, insists that the sheriff is only the agent of the county for the procuring of such board and that the county is primarily liable directly to the person furnishing the same. In support of the position of the respondent we are cited to Jolly v. Woodward, 4 Idaho, 496, — 475 — 42 Pac. 512, and Neville v. Solano County, 29 Cal. 252. In Jolly v. Woodward the claim for which the plaintiff was seeking to recover was for the publication of the delinquent tax list, and an examination of the opinion in that case will disclose the fact that the question raised here did not arise in that case; and, indeed, it could not have arisen there for the reason that the statutes prescribing the duties of the assessor in the publication of the delinquent tax list and the method for the payment of the same are entirely different from the statutes governing in this case. The provisions of the statute as quoted in that opinion show that it was not the intention of the legislature to make the assessor liable for such publication nor to authorize him to present a bill to the county therefor. In Neville v. Solano County the supreme court of California, in 1865, held that under the provisions of an act of the legislature of 1851 prescribing the duties of sheriffs, the sheriff could not maintain his action against the county for the expense of a temporary guard employed by him for the protection of the county jail unless the claim had been duly assigned to him, and the court there decided that the sheriff was the mere agent of the county and that the county was directly liable to the guard for his pay. An examination of the statutes under which that case was decided will reveal the fact that they are not at all similar to the statutes of this state, and that they did not provide for the collection of such expense by the sheriff or the allowance of a claim to the sheriff for such an expense.. So far as we are able to find, that case has never been cited or referred to in California since it was announced by the court, and we conclude that it rests solely upon the peculiar statute existing in that state at the time the case arose. In this state we find the following statutes bearing upon the duties and liability of the sheriff as to the receiving, taking care of and providing for prisoners and collecting pay therefor: Section 8539, Revised Statutes, is as follows: “The sheriff must receive all persons committed to jail by competent authority, and provide .them with necessary food, clothing and bedding, for which he shall be allowed a reasonable compensation to be determined by the board of commissioners, and except as provided in the next section, to be paid out of the county treasury." — 476 — Section 2 of the act of February 9, 1899, concerning fees and compensation of county officers provides inter alia that: “The sheriff is allowed and may demand and receive the fees here^ inafter specified: . . . . Twentieth: The sum of not more than one (1) dollar per day for each prisoner confined in the county jail, as remuneration in full for the board, clothing and lights of such prisoner.” (Sess. Laws 1899, pp. 117, 118.) In section 3 of an act approved March 7, 1899, it is provided that: “The sheriff shall receive a salary of not less than eight hundred dollars ($800) per annum, and not to exceed two thousand dollars ($2,000) per annum; he shall be allowed in addition to such salary as fixed by said board, the actual and necessary expenses for care of each prisoner confined in the county jail.” And section 1 of the same act is as follows: “The salaries of county officers as full compensation for their services must be paid quarterly from the county treasury, upon the warrants, of the county auditor, and before being paid to such officers, must be allowed and audited by the board of commissioners as other claims against the county, and no officer or deputy must retain out of any money in his hands belonging to the county, any salary, but all actual and necessary expenses incurred by any county officer or deputy in the performance of his official duty shall be a legal charge against the county, and may be retained by him out of any fees which may come into his hands. All fees which may come into his hands from whatever source, over and above his actual and necessary expenses, shall be turned into the county treasury at the end of each quarter. He shall at the end of each quarter file with the clerk of the board of county commissioners a sworn statement, accompanied by proper vouchers, showing all expenses incurred and all fees received, which must be audited by the board as other accounts.” (Sess. Laws 1899, pp. 405, 406.) The duty to provide prisoners with board devolves upon the sheriff, and that duty is an official duty for which he is allowed compensation over and above his fixed salary. He'may furnish board himself or he may procure it from others. In either — 477 — event, it seems clear to ns that it was the purpose of the legisla-ture to make such claims and expenses payable by the county to the sheriff, and to him alone. As provided by the above statutes, “the sheriff is allowed and may demand and receive the actual and necessary expense” for the board, clothing and lights for prisoners. The law has made this expense payable to a certain person, namely, the sheriff of the county. It has imposed upon him the duty of taking charge of the prisoners; it requires him to board such prisoners and commands the board of commissioners to pay to him — the sheriff — the actual and necessary expense incurred “as remuneration in full for the board, clothing and lights of such prisoners”; provided, however, that such expense shall not exceed one dollar per day for each prisoner. It seems to us that the purpose of the statutes is to impose these duties and liabilities upon the sheriff and thereby relieve the county of the responsibility of dealing with any and every individual from whom the sheriff might be under the necessity of procuring board or other supplies for prisoners. The sheriff must secure these necessities; and it is to be presumed that he will do it to the very best possible advantage to the county, and he has the positive assurance of law that he will be repaid whatever sum is reasonable and necessary in the discharge of such duty. The county has no way of knowing what has been furnished or of the contract price therefor, except through the officer whose duty it is to secure the same. It will be seen from section 1 of the act of March 7, 1899, supra, that all fees collected by the - officer during the quarter are available at once for the payment by him of “all actual and necessary expenses -incurred” by him in the performance of his official duty. At the end of the quarter he is required to “file with the clerk of the board of county commissioners a sworn statement, accompanied by proper vouchers showing all expenses incurred,” and such report must be audited by the county commissioners. 1 Respondent argues that under the foregoing provisions a voucher is “a written acquittance or receipt showing the payment of a debt,” and in the course of his argument says: “Our conclusion is that the sheriff should never present a claim — 478 — against the county for the board of prisoners or any other legitimate expense that could be legally allowed, unless he presents to the board of commissioners his 'sworn statement accompanied by proper vouchers’ showing that he had paid such expense. We therefore respectfully contend that the phrase 'actual expense for the care of each prisoner confined in the county jail’ means the actual outlay or payment of money for benefits furnished such prisoners.” This view of the statute and interpretation of the language used seems to us correct. We do not understand how a board of commissioners could allow a sheriff for any such expenditure in the face of this statute until he has paid the same. But this argument leads us to the conclusion that the county is not liable to anyone but the sheriff, rather than that it is liable to the individual with whom the sheriff may contract. The supplies are furnished not upon the faith of the county’s credit, but rather upon the credit of the sheriff and the facts in this case are a practical illustration of the practice. The respondent had been furnishing the sheriff with board for prisoners for some years prior to the presentation of his claim in this case. He had never before presented his claim to the board of commissioners, but had always collected his pay from the sheriff. In this case the sheriff became a defaulter to the extent of nearly $3,000, and in the general misfortune which befell the county the respondent seems to have suffered the loss of his claim also. In other words, the claimant never saw fit to make a demand against the county for any of his bills until the time arrived when the county at large, as well as the respondent individually, became the victim of a misplaced confidence. In January, 1903, the sheriff presented his bill to the county for board furnished prisoners, but did not itemize the same or accompany it with proper vouchers. The board seems to have rejected the entire claim under the provisions of section 1771, Revised Statutes, which forbids the allowance of any account, or the payment of any claim where, an officer is in default or neglects or refuses to pay over funds in his hands belonging to the county. There seems to be some, dispute or controversy going on between the board of commissioners and the sheriff’s bondsmen as to the proper action to — 479 — be taken with reference to the settlement of the sheriff’s claims against the county, but with that we have nothing to do in this case. It seems to us, however, only the part of common justice to suggest that in their settlement with the board of commissioners the bondsmen as the representatives of the sheriff would be entitled to the allowance of respondent’s claim as an offset if they present the necessary voucher therefor required by law to be presented by the sheriff. Respondent appears to have a valid claim against the defaulting sheriff, and the bondsmen can protect him by settling with him and presenting the claim as an offset against the county. As before indicated, we conclude that the county is not liable to the respondent for meals furnished the prisoners under contract with the sheriff. These views are sustained by the supreme court of Kansas under statutes apparently less specific than ours in Hendricks v. County of Chautauqua, 35 Kan. 483, 11 Pac. 450, where the court says: “The facts stated in the petition fail to show a liability of the county of Chautauqua in favor of the plaintiff. The statute provides that jails shall be established and kept in every county, at the expense of the county, for the safekeeping of the prisoners lawfully committed. The sheriff of the county is required to keep the jail, and is responsible for the manner in which it is kept, and is required to supply the prisoners with proper food and drink at the expense of the county. (Comp. Laws 1879, c. 53, secs. 1, 3, 10.) In another chapter the liability of the county for the boarding and lodging of prisoners is fixed and limited. The sheriff is allowed forty cents per day, exclusive of fuel, lights, furniture, and bedding, where a jail is provided, and sixty cents per day, where no jail is provided. (Sess. Laws 1881, c. 107, see. 1.) The county commissioners are not compelled to allow or pay more than the fees above named for everything included within the terms ‘boarding and lodging,’ nor is the county liable to any other officer or person for the same than the sheriff. The duty and responsibility of keeping the jail, and supplying and caring for the prisoners, is devolved by law upon the sheriff. The care and safekeeping of the prisoners is committed to him, and, in regard to their board and lodging, the board of — 480 — county commissioners deals only with him. The only statute authorizing the payment of compensation by the county board provides that it shall be paid to the sheriff, and to him alone is the county liable for supplying board and lodging for the prisoners.” (See, also, Atchison County v. Tomlinson, 9 Kan. 167.) Judgment reversed and cause dismissed. Costs awarded to appellant. Sullivan, C. J., concurs.