95 Neb. 699 | Neb. | 1914
Lead Opinion
The plaintiff is the sheriff of Douglas county. He filed with the county clerk a claim against the county for feeding prisoners confined within the county jail from February 6, 1913, to February 28,1913 — 3,045 days, at 50 cents a day, making a total of $1,522.50, upon which he credited for gas and water $42.43, leaving a net claim of $1,480.07. The claim was rejected by the board of county commissioners. Shortly afterwards he filed a petition in the district court based upon the same claim and for the samé amount. The defendant answered, pleading that chapter 53, laws 1907, purporting to amend section 5, ch. 28, Comp. St. 1905, was void; that it violated section 11, art. Ill of the constitution ; that a portion of said chapter 53 had been declared unconstitutional by the supreme court, and that said portion was a material inducement to the adoption of the remainder, and that the legislature would not have passed the law had the part rejected not.been included therein; that the sheriff’s fees are fixed by section 5, ch. 28, Comp. St. 1905; that the meals furnished by the sheriff were not
Previous to April, 1907, the statute governing the compensation of sheriffs for feeding prisoners was as follows': “For boarding prisoners per day, not exceeding seventy-five cents per day, nor more than $3.50' per week when the prisoners are confined more than six days.” Section 5, ch. 28, Comp. St. 1905. The legislature of 1907 passed an act amending the foregoing section so as to read as follows: “Section 5. (Sheriff.) Serving capias with commitment or bail bond and return, one dollar. * * * For boarding prisoners, fifty cents per day; provided, that in counties having by the last preceding national or state census a population in excess of one hundred thousand (100,000) the sheriff shall receive for boarding prisoners, including jail supplies, thirty-nine cents per prisoner per day until January 1,1908, and it shall be the duty of the board of county commissioners to advertise on or before December 1, 1907, and annually thereafter, for proposals for furnishing meals to prisoners in the county jail according to specifications set forth in said advertisement, and on or before the first day of January in each year to contract with the lowest and best bidder for feeding prisoners in the county jail.” The validity of the provisions authorizing the board of county commissioners to contract with the lowest bidder
A stipulation was filed in McShane v. State, 93 Neb. 54, that the question in the two cases was identical, and the opinions came down at the same time. Appellant now argues that, on account of this stipulation, the opinion in the latter case must have been rendered under a misapprehension of the question involved, and that, since Douglas county was not a party to the suit, it is not bound by the decision. Of course, the county, not being a party to the suit, is not bound by the judgment, but it is equally bound with all other persons by the principles of law announced. But, in the brief of the county of Douglas in tbe former case, it was argued that “That clause is: ‘For boarding
These excerpts from the brief clearly show that the questions raised in this case were expressly raised and decided in the former case, and that, if any relief is to come, it must come through the legislature. The legislature has been in
We are not inclined to interfere with their prerogative. For these reasons, the judgment of the district court is-
Affirmed.
Dissenting Opinion
dissenting.
I am not quite able to agree with the majority opinion. It is said in the syllabus of that opinion that the identical questions presented were presented and argued in McShane v. State, 93 Neb. 54, and that this case is controlled by the decision in that one. Oh referring to that case I find it stated in the syllabus that- “The question decided-therein was identical with the one determined in State v. McShane, ante, p. 46.” On turning to that case, I find the statement in the syllabus that “So much of chapter 53, laws 1907, as authorizes the county board of counties having-more than 100,000 inhabitants to contract with the lowest and best bidder for feeding prisoners in the county jail is violative of the provisions of section 11, art. Ill of the constitution.” It may be well to run over these cases, with a view to ascertaining what has been decided.
In the first case (State v. McShane 93 Neb. 46) it is said that the relator brought the action in the district court for-Douglas county for a writ of mandamus to compel the respondent as sheriff of that county, to allow the relator and the firm of Garnipee & Flanagan admission to the jail of Douglas county in order to furnish meals to the prisoners confined therein for and during the year 1912, under a-contract entered into for that purpose between the county commissioners and said firm under the provisions of section 5, ch. 28, Comp. St. 1905, as amended by chapter 53, laws, 1907. The respondent filed an answer to the alternative writ, which the district court held stated no defense, and the writ of mandamus was allowed as prayed, and the-respondent appealed. The appellant in that case con-~ tended that so much of the amendatory act of 1907 as provided that “it shall be the duty of the board of county com
The second McShane case being McShane v. State, 93 Neb. 54, is a second reversal of the judgment of the district court, and is said to cover the same question, except that the item under consideration was : “Board of prisoners from date of conviction, August 27, 1912, to August 30, 1912, 4 days, at 50 cents a day, $2.” Time seems to be the main difference. The county is always Douglas county, except that in the last case (McShane v. State, 93 Neb. 54), there was a trial in the district court for Lancaster county, but it was the consideration of an appeal from a judgment of the district court sustaining the action of the auditor of public accounts in disallowing a portion of a claim presented by the plaintiff in that case to the auditor for allowance against the state. It was for “board of prisoners from date of conviction, August 27, 1912, to August 30, 1912, 4 days, at 50 cents a day, $2.” This particular claim was allowed “at only 19 cents a day.” In that case it was stipulated that the question presented for determination was identical with the one decided “in State v. McShane, 93 Neb. 46, and the two cases have been consolidated and argued as one.” In that case it was said that “the provision contained in chapter 53, laws 1907, by which the legislature attempted to authorize the county commissioners in counties having more than 100,000 inhabitants to let contracts for feeding prisoners in the county jail to the lowest and best bidder, is unconstitutional and void.” It was said, therefore, that, as the plaintiff had “furnished the meals in question to a state’s prisoner, *- * he was clearly entitled to the compensation mentioned in that part of chapter 53 remaining in force, by which it is declared that the sheriff shall receive the sum of 50 cents a day for furnishing meals to such a prisoner.” It will be seen that the legislature adopted the sum of 19 cents a day,
In the instant case it is said that the claim is 3,045 days at 50 cents a day. There was a small credit for gas and water of $42.43. The claim in the majority opinion is alleged to be “a net claim of $1,480.07.” “The defendant answered, pleading that chapter 53, laws, 1907, purporting to amend section 5, ch. 28, Comp. St. 1905, was void; that it violated section 11, article III of the constitution; that a portion of said chapter 53 had been declared unconstitutional by the supreme court, and that the said portion was a material inducement to the adoption of the remainder, and that the legislature would not have passed the law had the part rejected not been included therein; that the sheriff’s fees are fixed by section 5, ch. 28, Comp. St. 1905; that the meals furnished by the sheriff were not worth to exceed 7% cents a meal; that defendant has equipped a new jail with all the modern conveniences, and that the only expense incurred and service rendered by the plaintiff had been in the supplying, preparing and serving food to the prisoners, using the rooms and equipment of the defendant.” The majority opinion in the instant case recites the fact that “previous to April, 1907, the statute governing the compensation of sheriffs for feeding prisoners was
It may be said with a good deal of force that, if this court sees fit to do so, it may say that part of an act is unconstitutional, and that the part of the act which is unconstitutional is no inducement to the passage of that part of the act which is constitutional, and it may further say that the part remaining is complete in itself, and capable of being-enforced. It is the opinion of the writer that we are on very dangerous ground whenever a court condemns part of an act as unconstitutional, and then proceds to say that
Of course, it can be further said that it might be made the duty of the sheriff to run a boarding house of this size in a clean, capable and. efficient manner, so that the prisoners would get good food. The sheriff should be pro