Slotts v. Rockingham County , 53 N.H. 598 ( 1873 )

Ladd, J.

Section 2, chapter 267 of the General Statutes, imposes upon the county commissioners, among other things, the duty of taking all necessary precautions against sickness or infection in the common jails of the county. The case shows that the dead body of Eelch, who had died of small-pox, remained in the jail thirty-two hours, because the jailer could not get any one to bury it; and further, that, when it was ascertained that his sickness was small-pox, the county commissioners ordered his discharge from jail, although humanity to the prisoner, as well as the safety of the public, forbade a compliance with tbe order. Ordinarily, such conduct on the part of public officers, especially in view of the fact that county commissioners are not by law entrusted with the power of discharging prisoners from jail, would call for comment; but we forbear, because there may be, and it is to be hoped are, other facts hearing.upon the matter, which are not reported for the information of the court.

Under the statute above referred to, there can be no doubt hut that it was the duty of the county commissioners to have the infected dead body removed from the jail and buried ; and this, of coarse, implies that it shall bo done, in the first instance, to say the least, at the expense of the county. Eor some reason, the county commissioners did not do it, hut the jailer, after the lapse of thirty-two hours, em>yed tlie persons to do it who are here now seeking remuneration for sir services.

It is true, the statute docs not, in terms, give to the jailer author-to take precautions against infections, as it does to the county eomnssioners ; but lie is to have the custody of tlie jail and of the prisners, and is to keep the prisoners in the jail. Gen. Stats., ch. 267, sec. Under these circumstances, if lie in good faith performs a public uty, as urgent and imperative as that shown in the case before us, alhongh that duty is required by law at the hands of other county officers, we think there can be no doubt but that lie should be paid for such service from the county treasury. This claim, in substance, stands no differently from a claim by the jailer for the same service. It comes to tlie same tiling as though the jailer liad paid for the service, and was now seeking to recover it back from the county.

As to tlie claim of the jailer for extra services, under sec. 4, chap. 267, Gen. Stats., if extra services were rendered by him, we see no reason why they should not be allowed in this case the same as in other cases'.

We consider it entirely immaterial that Eelch was a pauper, and had a settlement in Seabrook, or anywhere else. Public officers are in the first place to discharge their public duties, in the custody and treatment of prisoners, and in the care of the jails ; and the expense necessarily incurred in the discharge of such duties is, in the first instance, to bfc borne by the county. Whether, in the case of a poor person, some town may ultimately be liable for such expense, is another thing, and has nothing to do, so far as we can see, with any question presented here.

The claim of the plaintiff is to bo allowed at $150; and as to tlie claim of tlie jailer for extra services, that matter must be presented to the county commissioners, who should be governed in tlieir action upon it by the views herein expressed.