Foster v. Board of Com'rs of Harper County

• Decision Date: 07 March 1936
• Docket Number: 32619.
• Parties: FOSTER v. BOARD OF COM'RS OF HARPER COUNTY.
• Court: Kansas Supreme Court

55 P.2d 349

143 Kan. 361

FOSTER v. BOARD OF COM'RS OF HARPER COUNTY.

No. 32619.

Supreme Court of Kansas

March 7, 1936

Syllabus by the Court.

County board could reduce sheriff's fee for jail attendance from $1 to 50 cents per day without resolution, since emergency fee and salary act of 1933 superseded prior statute prescribing fees and authorized county board to make discretionary allowance within specified limits of emergency act (Rev.St. 1923, 28--110; Rev.St.Supp.1933, 28--410).

Emergency fee and salary act, providing that sheriffs "may" be allowed $1 per day for attending jail, did not require payment of such amount; word "may" not meaning "shall" or "must" (Rev.St.Supp.1933 28--410).

Emergency fee and salary act, intended to supersede regular fee and salary act for 2-year estimated period of emergency, held not unconstitutional (Rev.St.Supp.1933, 28--410).

In an action by a sheriff to recover an alleged balance due for attending the county jail, where his claim was based upon the statute of 1913, R.S. 28--110, which prescribed $1 per day for such service, it is held:

The emergency fee and salary act of 1933, R.S.Supp.1933, 28--410 superseded the earlier statute for the period specified in the later enactment; the county board were authorized to deal with the sheriff's claim according to their discretion within the specified limits of the act of 1933; the word "may" in the later statute did not mean "shall" or "must"; and the later statute is subject to no constitutional infirmity.

Appeal from District Court, Harper County; Geo. L. Hay, Judge.

Action by C. H. Foster against the Board of County Commissioners of Harper County. From a judgment for defendant, plaintiff appeals.

E. C Wilcox and J. Howard Wilcox, both of Anthony, for appellant.

Guy Neal, of Anthony, for appellee.

DAWSON Justice.

This appeal is concerned with the validity of a provision of the emergency fee and salary act of 1933, which temporarily superseded the preexisting statute touching the sheriff's per diem allowance for attending the county jail.

Plaintiff was elected sheriff of Harper county at the November election in 1932 and was inducted into office in January, 1933. At that time, and for many years prior thereto, the statute (Laws 1913, c. 197, § 12, R.S. 28--110) contained a provision which read:

"The sheriffs of the several counties in the state shall charge for the services required by law to be performed by them the following fees: ***

"For attending jail when occupied by prisoner or prisoners, per day, to belong to the sheriff ...... $1.00."

Plaintiff's charges for jail attendance were regularly paid by the defendant board of county commissioners at the statutory rate until June 1, 1933.

On April 1, 1933, an emergency statute relating to fees and salaries of county officers enacted by the Legislature took effect. Laws 1933, c. 186, R.S.1933 Supp. 28--401 et seq. It provided as follows:

"Section 1. In lieu of the fees and/or salaries heretofore paid certain county officers and employees during the period commencing April first, 1933, and ending March thirty-first, 1935, there shall be paid to or collected by said officers and employees, the fees and/or salaries set forth and provided for in this act." Rev. St. Supp.1933, 28--401.

"Section 10. ***

"For attending the jail when occupied by prisoner or prisoners per, day, there may be allowed by the board of county commissioners, to belong to the sheriff, one dollar." Rev.St.Supp.1933, 28--410.

After June 1, 1933, the sheriff's bills for jail attendance were paid by the county board at the rate of 50 cents per day.

The sheriff brought this action pleading the material facts and prayed judgment for $122.50, being the claimed balance due him for jail attendance until February 1, 1934, about which time this action was begun.

No issue of fact was raised by the defendant commissioners. Some matters went into the record by stipulation, which may be summarized thus:

No resolution was adopted by the county board reducing the accustomed allowance of $1 per day for jail attendance.

The sheriff's bills for jail attendance itemized at $1 per day had been approved by the county attorney and audited by the county board, but only paid at half the amounts specified.

The sheriff's acceptance of those reduced allowances was not received by him in full satisfaction of his itemized charges.

The sheriff's attendance at the county jail personally or by deputy was necessary to the proper discharge of the county's business.

During the interval of present concern, the county jail served also as a city jail for the city of Anthony by agreement between the city and county authorities. Two further stipulations were added by counsel for the parties:

"1. Most of counties in the State of Kansas of size and location similar to Harper County allow $1.00 per day for jail fees.

"2. The evidence now available will be to the effect that $1.00 per day is a reasonable fee for services as jail attendant, and evidence considered introduced." The trial court gave judgment for defendant. Hence this appeal.

Defendant first propounds the question whether the county board can change the fees of the sheriff "arbitrarily without reason or a resolution of the board to that effect." The adverb "arbitrarily" is gratuitous. The record does not justify its use. The same remark should dispose of the phrase "without reason." There were reasons in plenty--low prices, crop failures, financial stringency, and nonpayment of taxes. Of such calamitous...