| Mo. | Jul 15, 1845
delivered the opinion of' the court.
John Layton was indicted for murder in the county of Perry, and afterwards the cause was removed, by a change of venue, to the county of .St. Francois. Whilst Layton was confined in the jail of St. Francois county, a guard was employed for his safe keeping. Layton was convicted and executed. The account of the guard was allowed by the circuit court of St. Francois county, but upon the presentation •of it to the county court of that county, its payment was refused. On proceedings on mandamus, the circuit court sustained the judgment of the county court, and Berry has brought his cause to this court.
It seems that the grounds assumed by the county court for refusing to pay the demand, were, that the county of Perry and not St. Francois county, was laible for the expense of the'guard, and that the jail of St. Francois county was sufficient.
The question to be determined first, is which of the two counties is liable to the expense of the guard? The-law makes it the duty of each county in this State to build, and keep in repair, a good and sufficient jail. Whenever any expense is incurred in consequence of there being an insufficient jail in a county, that is a county and not a State burden. The law making it the duty of every county to build a jail, some counties have incurred that expense, and it would be manifest injustice to those counties which have built jails, to take the common funds and apply them to the payment of expenses incurred by the neglect of a county to build and keep in repair a sufficient jail. The object of the law in requiring a jail to be built, is, that there may be a place of confinement whenever imprisonment is imposed on an individual. Counties are to keep jails for the confinement not only of those who commit offences within their respective limits, but for the imprisonment of all those who are detained by authority of law within their several boundaries. When a cause is removed from one county to another, by a change of venue, it is as much a cause of the county to which it is removed, (so far as the present question is involved,) as if the indictment had been found in it; and there is as much justice and propriety in making the latter county pay the expense of a guard as if the offence had been committed within its limits- The county to which a cause is removed to-day, may in its turn to-morrow send a cause to the county from which one has been received. The injustice in making the county of Perry liable, is obvious. That county may have had a jail entirely safe; the cause is removed from it without its consent, and without its fault, yet it is to be mulcted with the-expense of a guard, merely be
As to the objection that the jail of the county of St. Francois was sufficient, we are of opinion that such an inquiry is precluded from the examination of the county court. The law entrusts a discretion to certain officers to authorize the employment of a guard, under particular circumstances; when that discretion is exercised, and the expenses of a guard have been incurred on the faith of an order of those officers,' the propriety of the exercise of that discretion cannot be questioned by another tribunal.
The judgment will be reversed and the cause remanded, the other Judges concurring.