McShane v. Douglas County

Sedgwick, j. After the former opinion in this case (95 Neb. 699) a rehearing was allowed, and the case has been again exhaustively briefed and argued. Prior to the act of 1907 the statute fixed the fees of sheriffs in detail, and added a proviso: “For boarding prisoners per day, not exceeding seventy-five cents per day,, nor more than three and one-half dollars per week, when the prisoners are confined more than six days.” Comp.. St. 1905, ch. 28, sec. 5. This part of the proviso was considered by this court as early as Lancaster County v. Hoagland, 8 Neb. 36. It was then held to leave the matter to-the discretion of the county board to pay a reasonable amount for feeding the prisoners, and the law remained with this construction until the act of 1907. The act of 1907 (laws 1907, ch. 53) reenacted the detailed provision for the fees of sheriffs in general without change. In lieu of the general proviso for boarding prisoners, above quoted, it contained the following: “For boarding prisoners fifty cents per day, provided, that in counties having by the last preceding national or state census a population in excess of one hundred thousand (100,000) the sheriff shall receive for boarding prisoners, including jail supplies, thirty-nine cents per prisoner per day until January 1, 1908, and it shall be the duty of the board of county commissioners to advertise on or before December 1, 1907, and annually thereafter, for proposals for furnishing meals to prisoners in the county jail according to specifications set forth in said advertisement and on or before the first day of January in each year to contract with the lowest and best bidder for feeding prisoners in the county jail.” Thus the only changes made in the section were to require quarterly reports of fees and provide absolutely 50 cents a day for the state at large, instead of the maximum compensation, and to make a special provision for counties having a population in excess of 100,000 (Doug [666] las county). The provision that the feeding of the prisoners in Douglas county should he let by contract to the lowest and best bidder was held unconstitutional in State v. McShane, 93 Neb. 46. This cause of action arose before the revision of 1913 took effect. It seems clear that the provision of this statute relating to Douglas county and fixing the amount to be paid the sheriff for boarding prisoners in that county was an inducement to the act. The section amended by the act covers all of the fees of the sheriff. It is a very long section and occupies nearly a page of the Compiled Statutes (Comp. St. 1905, ch. 28, sec. 5) and no other change is made in this long section by the amendment except the changes above indicated. It is entirely manifest that the legislature did not intend by this amendment to provide that 50 cents a day should be paid to the sheriff in Douglas county. There are two substantial reasons for saying that the legislature did not so intend, either one of which would sufficiently show that the provision in regard to Douglas county was an inducement for the passage of the act: First, the section provides that from the time of the taking effect of the act the amount to be paid in Douglas county shall be 39 cents a day until the 1st day of the next succeeding January, and in the meantime the county commissioners shall malte preparations for letting the contract in January, thereby effectually precluding the sheriff from getting 50' cents a day in Douglas county for any time alter the act took effect; second, it also seems clear that the provision for letting to the lowest bidder was the most important part of the whole amendment and the principal inducement for the passage of the act. The history of the enactment of the statute of 1907 indicates it. Senate File No. 319 was a bill for “An act to amend section 5, of chapter 28, of the Compiled Statutes of Nebraska for the year 1905, and to repeal said section.” The only change made in the amended section was to provide for the filing by the sheriff of quarterly reports of fees collected by him. It was referred to the judiciary committee, and it reported an amendment chang-. [667] ing the cost for hoarding prisoners from “not exceeding 75 cents per day” to 50 cents per day. When it was first considered in the committee of the whole senate it was amended by adding the provision that in counties having 100,000 population the feeding of prisoners should be let by the county after January 1, 1908, and in the meantime compensation in such counties should be 39 cents a day. The house concurred in this important change in the bill, and added some minor amendments, which were rejected by a conference committee, and the bill was passed and approved by the governor with the provision that in the most important counties of the state, so far as population is concerned, the feeding of prisoners should be let by contract. , . It cannot be supposed that the legislature would have enacted a general statute providing for the feeding of prisoners and omit from its provisions the largest counties of the state. The inducement to the act was to provide for this service in all the counties of the state, and the provision for counties having 100,000 population was a part of that inducement. The wording of the statute itself shows this. “Fifty cents per day, provided (except)” that for Douglas county a different provision is made. When that provision was held to be unconstitutional, the whole act was annulled. The former statute is in effect, which has been decided by this court, to leave the matter to the discretion of the county board to fix a reasonable compensation. Unfortunately, however, it was' stated in the opinion in State v. McShane, supra, that “after eliminating the unconstitutional portion of it, the remainder of the act is complete in itself, and capable of enforcement.” This statement was wholly unnecessary in the case, and should be disregarded. However, we considered that the subsequent case of McShane v. State, 93 Neb. 54, was a reaffirmance of the statement that the remainder of the act could be enforced. This latter opinion would seem upon first reading to have that meaning, but upon careful examination it is not a reaffirmance of the dictum in the former opinion. In the latter case the opinion [668] says: “The record contains a stipulation that.the question presented for determination in this case is identical with the one recently decided by this court in State v. McShane, 93 Neb. 46.” This is not saying that it is in-fact the same, but the question in the latter case was considered to be the same as in the former case, acting on the stipulation that it should be so considered. It seems-that in former decisions this court had made a distinction between state prisoners and county prisoners, and the latter opinion related to state prisoners only, and not county prisoners. It was, perhaps erroneously, considered that this distinction still existed, and consequently the question as to the constitutionality of that part of the-act of 1907 which provided 50 cents a day for feeding county prisoners was not considered in the opinion. The-district court had decided that MeShane was “bound by the terms of the contract between the county board of Douglas county and Gardipee & Flanagan,” and this court held that, that contract being void, the plaintiff was not. bound by the terms of the contract. The opinion, however, contains a repetition of the dictum of the former case in these words-: “He was clearly entitled to the compensation mentioned in that part of chapter 53 remaining in force, by which it is declared that the sheriff shall receive the sum of 50 cents a day for furnishining meals to such prisoner.” 93 Neb. 54. It is beyond question that the-legislature intended that in Douglas county the sheriff should only have 39 cents a day until the county board could put in force the provision for letting the contract to-the lowest bidder, and that was the reason for fixing the compensation at 50 cents a day in the other counties of the state, and the legislature never intended so to fix the compensation at 50 cents a day in Douglas county. The judgment of the district court is reversed and the cause remanded. Reversed. Rose, J., not sitting. Barnes, J., dissents.