State ex rel. Baird v. McIntyre

Berry, J. Gen. St. c. 120, contains the following provisions, viz.: “§ 2. The sheriff of the county, by himself or deputy, .shall keep the jail and be responsible for the manner in which the same is kept.” “§ 5. All sheriffs and jailors to whom any person is sent or committed by virtue of 'any legal process issued by or under the authority of the United States, shall be and they are required to receive such person into custody, and to keep him safely until discharged by due course of law; and all such sheriffs and jailors offending in the premises shall be liable,” etc. “§ 18. All instruments of every kind * * * by which a prisoner is committed or liberated * * shall be * * safely kept in a suitable box by such sheriff, or by his deputy acting as a jailor.” From these provisions of statute, (and there are others in the same chapter of a like tendency,) it is apparent that it was intended by the legislature that a jailor 'should be a deputy of the sheriff. Gen. St. c. 8, § 178, enacts that “Every sheriff shall appoint, under his hand and seal, a sufficient number of persons as deputy sheriffs, for whose acts he shall be responsible, and whom he may remove at pleasure. ” The effect of this is [386] to vest sheriffs with the exclusive power of appointing and removing deputy sheriffs, including jailors as such deputies. In this state of the law, an act was passed in 1873, (Laws, 1873, c. 43; Gen. St. 1878, c. 8, § 209,) which provides, in section 2, that “the judge of the district court for each county shall also determine, from time to time, the compensation that shall be allowed for the service of a jailor or turnkey in the county jail, which compensation shall be paid monthly out of the county treasury, upon the warrant of the county auditor; such jailor or turnkey to be appointed by the sheriff of such county, subject to the approval of the judge.” The effect of this is that the appointment by a sheriff of a deputy to act as jailor is not effectual and complete until it is approved by the judge of the district court for the county; but otherwise the sheriff’s exclusive right, under the pre-existing statutes, to appoint 'a deputy to act as jailor, and to remove him at pleasure, is not disturbed or in anywise affected. His right tQ appoint is changed, in effect, to a right to nominate; but his exclusive right to remove at his own sovereign will and pleasure remains wholly unchanged. When a person has been duly appointed by a sheriff his deputy, to act as jailor, and the appointment has been approved by the judge, and he has duly qualified, he is in office as jailor de jure and de facto. He can be removed by the sheriff only. If the compensation which he is to be allowed for his services as jailor has been determined by the judge of the district ■court for the county, the act of 1873 authorizes such judge, from time to time, to redetermine the same — that is.to say, to increase or diminish it. But it does not authorize him to ■deprive the jailor of all compensation, by determining that ■he shall not receive any compensation at all. Such a de•termination is wholly unauthorized and void, and therefore it ■does not affect the determination previously made, but the -same remains in force, and, until it is properly changed, continues to fix the compensation to which the jailor is entitled. From these views, it follows that the orders of Judge Page [387] removing the relator from the place of jailor, and determining that he should be entitled to no compensation for his services as jailor, were void, and that, notwithstanding the same, the relator is entitled to the compensation previously fixed, and, upon proper showing and demand, to a warrant from the ■county auditor upon the county treasury for the amount due him as such compensation. Let a peremptory mandamus .issue accordingly.