Fernandez v. Winnebago County

Orton, J. The first question to be disposed of is, whether the sheriff was authorized to procure the publication of the first of said notices at the expense of the county. By section 17, R. S., the secretary of state is authorized and required “ to deliver a notice to the sheriff of each county in which such election is to be held, specifying the said officers [state officers] to be voted for in such county, and, in the case of senator, the num249 her of the district.” By section 18: “The sheriff thereupon shall forthwith cause a notice containing the substance of the notice so received by him to be delivered to each town clerk, etc., and shall also publish a copy thereof in a newspapei-,” etc. It may be very easily seen by these provisions that the secretary of state is neither authorized nor required to deliver to • the sheriff of any county a notice of election of any officers except those to be voted for in such eownty. Without this very reasonable limitation, it is very evident that the county of Winnebago is not directly or immediately interested in the election of any officer not to be voted for in such county. It is sufficient, however, that the statute does not authorize a notice of the election of any officers other than those to be voted for in such county to be sent by the secretary of state to the sheriff, and does not authorize the sheriff to publish in a newspaper the substance of any other notice. The second of the above notices was sufficient in either case, and the only one authorized to be published, and the only one for the publication of which any lawful claim against the county can be made. The liability of the county for such claim must rest upon strict legal right, and may not be enlarged by usage or other implication, or by argument of convenience. The claim . allowed by the county board in respect to the publication of these notices was the only one for which the county was liable, and that for the publication of the first of said notices was properly disallowed. The position assumed by the learned counsel of the appellant in his brief, that the county is not liable for this class of expenses when legally incurred by the sheriff, is untenable, especially in this case, where the county is estopped by their allowance. The sheriff is required by law to incur this expense, and he is provided with no fund out of which it can be paid, and the publication is in the interest and for the benefit of the county and the people thereof, and the expenses of such publication are in their very nature a' public claim against the [250] comity, even though no special statute is found making them such. To this effect is the following case,- closely in point: Eyster v. Bineman, 11 Pa. St., 147. By the Court.-7- The judgment of the circuit courtis reversed, and the cause remanded with direction to affirm the order of the county board from which the appeal was taken.