146 Ill. 268 | Ill. | 1893
delivered the opinion of the Court s
The principal question presented, and the only one we deem it necessary to consider, is, whether the board of county commissioners of Cook county has the right, under section 61 of the act relating to counties, as amended by the act of 1887, (3 Starr & Curtis, 305-308,) to require the sheriff to apply to the superintendent of public service for supplies for dieting the prisoners confined in the jail, and to make application to ilie board for the necessary help to prepare and serve the food to such prisoners, and whether the county is liable only when the said supplies are furnished by such superintendent. Counsel for appellant relies mainly, for the support of his theory, upon the following provisions of subdivision 7 of said section 61 of said act: “It shall be the duty of the superintendent, under authority of the board of commissioners, to purchase, receive and distribute all supplies necessary for the use and service of Cook county and its various institutions, of whatever nature, except those which are by law otherwise expressly provided for.” It was evidently in contemplation of this provision that the resolutions of the board were adopted.
The Jailers act (2 Starr & Curtis, chap. 75,) provides that the sheriff of each county shall be keeper of the jail and have custody of the prisoners therein. By the 16th section of the act he is required to “furnish each prisoner, daily, with as much clear water as may be necessary for drink and personal cleanliness, and serve him three times a day with wholesome food, well cooked, and in sufficient quantity.” And by section 19 he is required to furnish the necessary bedding, clothing, fuel and ipedical aid for all prisoners under his charge, and keep an accurate account of the same.. By section 23 it is provided, that “any sheriff or jailer, who shall fail or refuse to comply with either of sections 16, * * * 19, * * * shall be fined not exceeding $100.” ’ Section 24 of the act provides: “The cost and expense of keeping, maintaining and furnishing the jail of each county,” having reference to the necessary expense of keeping the jail in the condition and repair in which it is required by law to be kept,” (Goff v. Douglas County, 132 Ill. 323,) “and of keeping and maintaining the prisoners thereof, "* * * shall be paid from the county treasury,” etc.
It seems clear that the legislature intended, by the 16th and subsequent sections of the act, to commit to the sheriff, -as jailer, the' performance of the various duties prescribed. The sheriff must, as we have seen, under the penalty prescribed, serve the prisoners in the jail, three times a day, with wholesome food and in sufficient quantity. The authority is given to the sheriff, and he is required to discharge the duty. It can not be supposed that the legislature intended the substitution of another will or judgment for that of the sheriff, in serving the food to prisoners in his charge.
It is said, however, that the requirement of the statute is, that he shall “serve” the food, and not that he shall provide or furnish it. The legislature has also provided (Rev. Stat. chap. 53, sec. 19,) that the sheriff shall receive, “for dieting each prisoner, such compensation, to cover the actual cost, as may be fixed by the county board.” It is manifest that this provision does not mean that he shall receive pay for serving the food, in the restricted sense of that word contended for,—that is, for conveying or serving the food to the prisoner, —for that would be part of his duty as jailer, and is compensated for by his salary as sheriff, and the pay of jailers and deputies by the county. Dieting, as here used, means providing and furnishing to the prisoners their daily food. The legislature, understanding that it was the duty of the sheriff, under the law, to provide food for prisoners confined in the jail, gave the county board the right of fixing the price, not less than the actual cost, as a matter of protection to the county. In respect of all other items to be furnished by the jailer he is required to keep an accurate account, and they become a proper county charge for the actual money expended by the sheriff. (LaSalle County v. Milligan, 143 Ill. 321.) But the legislature has seen fit to select out the matter of furnishing the food, and to give the county board the right to fix the price, in their discretion, at such sum as will cover the actual cost of dieting the prisoners, and require the sheriff, as jailer, to furnish and serve it.
In our opinion, provision had already been made by law, prior to the passage of the amendment of 1887 referred to, for providing the necessary supplies for keeping and maintaining prisoners in county jails. If, therefore, power was conferred upon the board of commissioners to commit the furnishing of such supplies to a superintendent of its own choosing, by the amendment of 1887, it is because that act operates as a repeal, by implication, of the special provisions of chapter 75 of the Revised Statutes before referred to. Repeal by implication is not favored, and will not be held, if both acts, by reasonable construction, may be continued in force. (Bruce v. Schuyler, 4 Gilm. 221; Board of Supervisors v. Campbell, 42 Ill. 490; City of Chicago v. Quimby, 38 id. 274; Butz et al. v. Kerr, 123 id. 659.) Nor will a subsequent general law, by implication, operate as a repeal of a special law on the same subject. Town of Ottawa v. County of LaSalle, 11 Ill. 654; Butz et al. v. Kerr, supra.
There is here no possible difficulty of construction. The act of 1887 provides, only, that the superintendent appointed by the president of the board of county commissioners, with the advice and consent of the board, shall purchase, receive and distribute all supplies necessary for the use and service of Cook county and the various institutions, “except those which are by law otherwise expressly provided for.” The furnishing of supplies necessary for dieting the prisoners of the common jail of the county having been “by law otherwise expressly provided for,” the amendment of 1887 had no application. The county board can exercise such powers, only, as are expressly given by law, or such as arise by necessary implication from the powers granted, or indispensable to carry into effect the objects and purposes of the creation of the municipal corporation. Dillon on Mun. Corp. sec. 89; Cook County v. McCrea, 93 Ill. 236; Am. and Eng. Ency. of Law, 389, note 7; 15 id. 1041, and note 2.
The acts may, in our opinion, be reasonably construed so that both may stand, the responsibility in respect of dieting the prisoners resting upon the sheriff, as jailer, under the provisions of chapter 75, and the amendment of 1887 be held applicable to the furnishing of all supplies necessary for the use and service of the county and its other institutions which are not by law otherwise expressly provided for.
We are of opinion that the Appellate Court decided correctly, and its judgment must be affirmed.
Judgment affirmed.
