County of McDonough v. Thomas

Hr. Justice Harker delivered the opinion of the court. The only question submitted for our decision in this controversy is whether the right to employ a janitor for the county court house and jail rests with the sheriff of the county or with the county board. The sheriff contends for the right, under the common law powers incident to his office and Section 14, Chapter 125, Rev. Stat., entitled “Sheriff,” which reads as follows: “ He shall have the custody and care of the court house and jail of his county, except as otherwise provided.” The county board contends for the right under Sections 23, 24 and 25, Chapter 34, Bev. Stat., which provide that the “ powers of a county as a body corporate or politic shall be exercised by a county board; ” that “ each county shall have power * * * to make all contracts and do all other acts in relation to the property 'and concerns of the county necessary to the exercise of its corporate powers,” and that “ the county boards of the several counties shall have power, first, to take and have the care and custody of all the real and personal estate owned by the county; second, to manage the county funds and county business, except as otherwise provided.” We are clearly of the opinion that the care and custody of the county court house and jail fall within the common-law powers and duties of the sheriff, and that the employment of a -necessary janitor to assist him was a right incident to his office. That right continues with him to-day in this State unless it has been taken from him by some constitutional or statutory provision. It is not contended that there is any constitutional provision which has that effect; and the nearest approach to it by any statutory provision is found in the first paragraph of Section 25, Chapter 34, Rev. Stat., which states that the county board shall have power “ to take and have the care and custody of all the real and personal estate owned by the county.” That power is contained in the general enumeration of powers given to county boards in the chapter entitled “ Counties,” and there is nothing in the section, nor in any other section of the chapter, showing a legislative intent to curtail the common law powers of the sheriff as custodian of the court house and jail. In determining the question before us the paragraph quoted must be'construed in connection with section 14, chapter 125, which provides that the sheriff “ shall have the custody and care of the court house and jail of the county,” which section, as we think, is but declaratory of the common law. Invoking the familiar rule of construction that when there are two statutory provisions in apparent conflict, one general and applying to general subjects, and the other particular and applying to only one subject, the particular provision must prevail, it does not seem difficult to discover the legislative intention in the matter. The power of the county board as contained in the first provision relates to all the real and personal estate of the county generally, while the other provision relates to the jail and court house specifically. The intention of the legislature not to interfere with the common law right of the sheriff as custodian of the court house and jail, is further manifested by a provision contained in section 24 of the chapter entitled “ Sheriffs,” which requires him on going out of office to deliver to his successor “ the possession of the court house and jail of his county.” The above views are in harmony with those of the Supreme Court as expressed in the opinion of Mr. Justice Magruder in Dahnke v. The People, 168 Ill. 102. Decree affirmed.