Burr v. Norton

Hinman, J. This is an application for a mandamus by the sheriff of the county of Middlesex, to restore the applicant to his* control of the county jail, which is withheld by the defendant, a former deputy jailor, who was removed from office by the applicant. A mandamus lies to compel the admission [111] or restoration of a party to any office or franchise of a public nature. 1 Sw. Dig., 563. Fuller v. Plainfield Aca. School, 6 Conn. R., 532. It is a prerogative writ, and was introduced to prevent disorder from a failure of justice, and defect of police; and ought therefore to be used on all occasions where the law has established no specific remedy, and where injustice and good government there ought to be one. Rex v. Barker, et. ah, 3 Burr., 1262. If, as seems to be the case in England, it will be granted to restore an alderman to precedency, and an attorney to practice in an inferior court, it surely ought to protect the sheriff in the functions and emoluments of his office. But it is contended that, as the statute authorizes the county jails, to be used as county work-houses in certain cases, the jail is therefore devoted to two distinct purposes, under two sets of officers, who are independent of each other. We think this a perversion of the object of the legislature, in providing for the establishment of work-houses and houses of correction. The statute in relation to jails, p. 730, gives the charge and custody of them to the sheriffs. They alone are responsible for the safety of prisoners committed to them ; and it is therefore right that they should have the exclusive custody of them, which they can not have without the control of the jails. This is necessary to preserve good order. No one could safely accept the charge of the jail and the prisoners, without it; and the right of another independent officer to use the same jail for a different class of prisoners, is inconsistent with such control, and was never intended to be sanctioned. When, therefore, it is provided that the keeper of the jail, shall be the keeper of the work-house, it obviously refers to the deputy jailer, who is appointed by the sheriff, and must necessarily be his deputy; and being his deputy, he is necessarily under his control in the discharge of his duties. The employment of the jails as work-houses, is intended to be subordinate to their more usual employment, as is apparent from the whole scope of the statutes. And where there is a conflict, the authority of the sheriff must prevail. Subject to the approval of the commissioners, the sheriff appoints the deputy jailers. [112] Probably it was not anticipated that he would appoint improper persons, or that the commissioners would refuse to approve them if proper persons were appointed. Such a contingency therefore was not provided for. But this gives the commissioners no authority to appoint any other than the deputy jailer as the keeper, for the statute is imperative. “ The keeper of the jail, approved as is provided by this act, shall be the master or keeper of such work-house.” The jailer therefore, is ex officio made the keeper of the workhouse, and as he is appointed by the sheriff, whose deputy he is, we think it was intended that the sheriff should control him, not merely as the keeper of the ordinary prisoners, but as the keeper of the work-house prisoners, so long as the jail and the work-house remain the same. This control can not be taken from the sheriff, under color of refusing to approve a deputy appointed by him. The sheriff must continue to appoint until some one is approved, and in the mean time, he must, from the necessity of the case, take charge of the jail, and all the prisoners in it, so long as they remain there. It has not been questioned that the sheriff had power to dismiss his former deputy, and as he was the keeper of the work-house, only by virtue of his being deputy jailer, his dismissal from that office was of necessity a dismissal from that of keeper of the work-house. But it is claimed that the appointment of the defendant as assistant keeper by the county commissioners was valid, and gave him authority as such assistant keeper to take charge of the work-house. The authority to appoint an assistant, is given in the same section that declares that the keeper of the jail shall be the master of the work-house, (Stat. p. 741, § 59,) and, of course, is founded upon the supposition that there is such a master to be assisted in the discharge of his duties. This master must be the deputy of the sheriff, and as such subject to his supervision and control; and the statute never intended to authorize this supervision and control, to be taken from him, under color of the appointment of an assistant to his deputy. [113] Had there been a master keeper at the time of this appointment, assuming it to be a valid appointment, it might plausibly be said that from necessity, the assistant would hold over on the death or resignation of the master. But even then he must be subordinate to the sheriff; for we should require a very clear expression of the will of the legislature, before we should believe that two officers, each independent of the other, were intended to be placed over such an institution as a public prison. We do not feel called upon, therefore, to determine whether the commissioners, since the office of judge of the county court has been abolished, can alone appoint an assistant, being satisfied that under the circumstances of this case, the defendant has no authority under it to exercise power in opposition to the sheriff But a part of the jail has been used as a dwelling for the jailer and his family, and there is some land contiguous to the building, and used in connexion with it, which, with the jailer’s house, it is gravely claimed is county property, the possession of which, must be sought for in an action of disseisin. No argument can be necessary in answer to such a claim. If the public, through the public officers, can not obtain the control of the jails from out going keepers until after the end of an ordinary law suit, it is time that a remedy should be provided for such vexation. There can be no foundation for this claim; and if there is any property which is not a part of the jail or appurtenant to it, the finding does not show it. We therefore advise the superior court to grant the mandamus asked for. In this opinion, Stokrs, J. concurred.