Peeling v. York County

Opinion by Mjr. Justice Elkin, This appeal involves two questions arising under the Act of July 11, 1901, P. L. 663, which regulates and establishes the fees to be charged by sheriffs in the several counties of the commonwealth. The first point to be considered is whether a sheriff in the transportation of prisoners to the penitentiary or other penal institutions, should charge ten cents a mile direct or circular. The act provides that “ the sheriff shall be entitled to receive and have taxed as costs ten cents a mile, for "each mile actually traveled and necessary ” in the performance of [248] his official duties as therein specified. In this instance the duty was the taking of prisoners to penal institutions. The distance actually traveled by the sheriff in the performance of this duty was the number of miles from the county seat to the institutions in which the prisoners were committed, and return therefrom. It was just as necessary in the performance of this duty for the sheriff to travel one way as the other. It may be, as suggested by the learned counsel for appellant, that ten cents a mile direct is ample compensation for the officer who performs this duty, but that is a legislative and not a judicial question. It is not for the court to say whether the rate of mileage provided in the act is too great or too small. Our inquiry is limited to a consideration of the provisions of the act. It is clear the legislature intended the sheriff to charge mileage at the rate fixed therein for the number of miles actually traveled and necessary in performance of the duty for which he seeks to impose the charge, which means miles circular. The next point raised is whether the sheriff can charge for hack hire paid by him in conveying the prisoners from the railroad station to the institutions to which they were committed. Here again we must look to the act of assembly. No liability of this character can be placed upon the county without express legislative authority. The act of 1901, provides that the sheriff shall be entitled to charge “ for transportation of each prisoner, six cents per mile in addition to necessary help and expenses.” Under this provision of the act the sheriff can charge six cents per mile for the transportation of each prisoner, and in addition thereto such expenses for help and conveyances as may be found necessary to safely convey the prisoners to their place of confinement. The burden, however, is on the sheriff to affirmatively show that the help employed and the expenses incurred were actually necessary for this purpose. It is contended by the appellant that he failed to do so in this case. The questions in controversy were first raised before the county auditors, who refused to allow the claim of the appellee for these charges. An appeal was taken to the court below from the report of the auditors and a trial by jury followed. The appellant argues that the proceedings were then de novo, and that it was the duty of the appellee to affirma [249] tively make out a prima facie case. This is the proper practice and the rule is correctly stated. The appellee admits the correctness of this position, but insists that the rule was observed in the trial of the action in the court below by agreement and consent of the parties. After the jury was empanelled and before any testimony was taken, counsel for both parties agreed upon most of the material facts involved in the controversy and the method of procedure in the trial of the case. The only question of fact to be considered by the jury after the material facts had been agreed upon was whether the expenses paid for hack hire were necessary. The appellant called the appellee as a witness on cross-examination, and from him elicited the facts relating to the necessity of providing hacks in which to convey the prisoners from the railroad station to the institutions in which they were committed. He testified that the hacks had been hired, the amounts charged in his bill actually paid, and that it was necessaiy to do so in order to safely transport the prisoners. His testimony stands unimpeached, and is sufficient to justify the jury in returning a verdict in his favor. Under the agreement of the parties the case was tried de novo, and the defendant established the necessity by the witness called. No exception having been taken in the court below to this method of procedure, and no injury having been done the appellant by the irregularity complained of, it is not reversible error. ' The. whole case by agreement and consent of the parties was tried upon its merits in the court below and will not now be disturbed. Judgment affirmed.