Thе question of the county’s liability depends solely upon the statute. It is not liable unless the statute has created the liability. Section 1026, Hill’s Code, authorizes the sheriff to appoint a jailer, and makes him responsible for such jailer’s acts. Section 3975 providеs “that the keeper of each jail shall furnish and keep clean the necessary bedding and clothing for all prisoners in his сustody, and shall also supply them with wholesome food, fuel and necessary medical aid. Section 3977 provides, ‘the chargеs and expenses for safe keeping and maintaining all persons duly committed to the jail of the county for trial or sentenced to imprisonment in the county jail, or who may be committed for the non-payment of any fine, or for any contempt, shall, unless otherwise provided by law, be paid out of the treasury of the county, the account of the keeper being first allowеd by the county court of the county from which rhe prisoner was committed.” Section 2341 provides, “a sheriff shall be entitled to reсeive $5 a week for keeping and boarding any person arrested upon civil or criminal process, in the county jail, аnd a proportionate part thereof for any fraction of a week, provided that, if at any +ime the number of persons confined on criminal process in such jail shall exceed four, then the sheriff shall receive $3 per week for boаrding and keeping each one of said prisoners during the period such prisoners shall remain in custody.”
These are the only provision;, of uhe statute that relate to the subject. The decision of this question must turn upon the construction to be given to §§ 3975 and 3977,
In 1864 the enactment on that subject was аs follows: “A sheriff shall be entitled to receive §6 a week for keeping any prisoner arrested upon civil or criminal process, in the county jail, and a proportionate part thereof for any fraction of a week. When a prisonеr is arrested on a criminal process the compensation must be paid by the proper county.” The object of the Act of 1882 is manifest. Without materially changing any other part of the law then in force on the subject, the legislature reduced the amount of allowance to the sheriff one dollar per week for keeping each prisoner, until the number should exсeed four, and after that the amount should be $3. It seems to me that the legislature had good reasons for fixing the amount to be
If section 2341 was the only provision on the subject of the keeping and providing for the paymеnt of the expenses of prisoners confined in jail, this authority would then be in point, but in view of the other provisions of the statute аbove cited, its applicability is not perceived. And the same remark may be made in reference to the case of Grubb v. Louisa County,
The judgment will therefore be reversed and the cause remanded to the court below, with directions to overrule said demurrer, and for such further proceedings as may be proper.