Bd. of Com'rs of Franklin Co. v. Bunting

• Decision Date: 24 May 1887
• Citation: 12 N.E. 151,111 Ind. 143
• Parties: Board of Com'rs of Franklin Co. v. Bunting.
• Court: Indiana Supreme Court

111 Ind. 143

12 N.E. 151

Board of Com'rs of Franklin Co.

v.Bunting.

Supreme Court of Indiana.

May 24, 1887.

Appeal from circuit court, Fayette county.

Berry & Berry and Urmston & Carter, for appellant. Hill & Martz and Claypool & Son, for appellee.

Elliott, J.

The principal question in this case is this: Is the board of commissioners of a county invested with authority to build a jail and sheriff's residence? This question appears in various forms, but it is not necessary to discuss in detail the various phases it assumes, for a decision upon the principal question settles all phases of it. The board of commissioners represents the county, and by express statute, as well as by necessary implication, is invested with very comprehensive powers. Board v. Saunders, 17 Ind. 437;Halstead v. Board, 56 Ind. 363;O'Boyle v. Shannon, 80 Ind. 159;Hoffman v. Board, 96 Ind. 84;Nixon v. State, Id. 111. Some of the cases go so far as to say that it is the county. State v. Clark, 4 Ind. 315;Levy Court v. Coroner, 2 Wall. 501. Whether the board does or does not constitute the county may admit of question; but that it is invested with very extensive discretionary powers in the management of county affairs cannot be doubted. The discretion vested in it is comprehensive enough to authorize it to build a sheriff's residence in connection with a county jail, for such an act is within the scope of its authority. The statute makes it the duty of the board of commissioners to provide and maintain a county jail, and the law enjoins upon the sheriff as an official duty that he shall keep the jail. It results, as a necessary implication, that he must be provided with the means of discharging this duty, and this involves the authority of providing him with a residence as part of the prison structure, leaving it to the discretion of the board of commissioners to devise and secure the erection of a suitable building. It was not intended that the jail should be composed entirely of prisoners' cells, but it was intended that it should be provided with such rooms or apartments as will enable the sheriff, by himself or deputy, to properly and efficiently discharge his duties.

We know judicially that it has always been the custom to make suitable provision for the sheriff's residence, and this custom has given a construction to the law which could not be disregarded, even if there was doubt as to the meaning of the statute. In speaking of a practical construction given to a statute, the supreme court of Illinois said: “It has always been regarded by the courts as equivalent to a positive law.” Bruce v. Schuyler, 4 Gilman, 221. By another court the principle was stated, and it was said: “We cannot shake a principle that has so long and extensively prevailed.” Rogers v. Goodwin, 2 Mass. 478. There are many cases which declare and enforce this principle. Among them are Stuart v. Laird, 1 Cranch, 299;Martin v. Hunter's Lessee, 1 Wheat, 304;Cohens v. Virginia, 6 Wheat, 264;Ogden v. Saunders, 12 Wheat, 290;Minor v. Happersett, 21 Wall. 162;State v. Parkinson, 5 Nev. 15;Pike v. Megoun, 44 Mo. 491;People v. Board, 100 Ill. 495;State v. French, 2 Pin. 181.

One of the subordinate questions in the case arises on the ruling of the court refusing to permit the appellant to prove that one of the commissioners, in a conversation with the appellee, after the plans and specifications had been accepted, requested him to make a change in the plans and specifications prepared by him under his contract with the board. In that contract the appellee undertakes, as an architect, to prepare plans and specifications for a jail and sheriff's residence, and it is stipulated, among other things, that “it is hereby agreed, by and between the said parties, that the party of the second part shall have said plans and specifications made and drawn in a good and sufficient manner, and present the same to the party of the first part at their June session, 1881, and that it shall be at the option of the said party of the first part whether the same be received and accepted, and that the party of the first part is to have the right to alter and change said plans and specifications in such manner as they may at any time deem it proper and best to make such alteration or...