Nickell v. Waukesha County , 62 Wis. 469 ( 1885 )

Cassoday, J.

The services here claimed by the plaintiff as sheriff in serving process, making arrests, and attending with prisoners before the justice of the peace, were all performed in prosecutions for the violation of the village ordinance in the same eases mentioned in Chafin v. Waukesha Co. ante, p. 463, in which an opinion is herewith filed. It was there determined that such prosecutions were not for the offenses prescribed,in sec. 1561, R. S., nor misdemeanors, but civil actions merely. Under the charter, the village marshal was charged with the duty of serving such process, making such arrests, and attending before the justice with prisoners. Secs. 10, 11, ch. 30, P. & L. Laws of 1859. Being civil actions merely, the sheriff was no more bound to perform such services without pay from the village, than he would have been to perform similar services for any private party. Having voluntarily performed them, he is relegated for his pay to the party for whom they were performed.' Of course, he is entitled to his pay from the village, for the reasons given in the opinion filed herewith in the case above cited. Ch. 176, Laws of 1882; Fernandez v. Winnebago Co. 53 Wis. 247; subd. 4, sec. 725, aud secs. 731, 843, 844, 3594, R. S. But no statute has been cited, and we are not aware of any, making the county liable to the sheriff for such voluntary services. It follows that the judgment improperly included compensation for the services above mentioned. Pillsbury v. Brown, 47 Cal. 477.

The items of the plaintiff’s account for the board of and washing for such prisoners, and for receiving and discharging such prisoners, stand on a different basis. As sheriff the plaintiff was bound to take the charge and custody of the jails of his county and the persons therein, and to keep them himself, or by his deputy or jailer; to keep a true and exact register of all prisoners committed to any jail under his charge. Subd. 1, 2, sec. 725, R. S.; sec. 4945, R. S. He was entitled to receive pay for his actual and necessary disbursements for board and conveyance of such prisoners, and for committing them to and discharging them from prison. Subd. 27-29, sec. 731, R. S. The statutes made the county liable for “ the expense for maintaining persons charged with offenses, and duly committed for trial, and of those who are confined in the county jail, or who may be committed for the nonpayment of any fines and expenses for safe-keeping.” Sec. 4947, R. S.; Bell v. Fond du Lac Co. 53 Wis. 433.

It is true, the section of the charter giving to the village authority to enact the ordinance in' question, also, for the purpose of imprisoning offenders thereunder, gave to the village the use of the jail of Waukesha county, and provided that “ all persons committed to said jail by the marshal or any other officer shall be under the charge of the sheriff of said county, and said village shall be liable for the expenses of keeping such persons in said jail.” Sec. 18, ch. 30, P. & L. Laws of 1859. Under this provision there would seem to be no doubt but what if the county pays the plaintiff for such expenses, it would have a right of action over against the village for the amount so paid therefor. But this does not take away the primary liability of the county to the plaintiff for such expenses, nor compel him to separate the items of such expense from the other items of his bill. We must therefore hold that the county is liable to the plaintiff for the amount of such items of his account included in the judgment as were for the board of and washing for such prisoners, and for receiving and discharging such prisoners; and for such amount, with interest thereon from the time it should have been allowed by the county board, he is entitled to judgment against the county.

By the Oov/rt. — -The judgment of the circuit court is reversed, and the cause is remanded with direction to enter judgment in favor of the plaintiff and against the defendant for the amount found due upon the principles above indicated.