Virtue v. Bd. of Freeholders of Essex County

• Decision Date: 17 November 1901
• Citation: 50 A. 360,67 N.J.L. 139
• Parties: VIRTUE, Sheriff v. BOARD OF FREEHOLDERS OF ESSEX COUNTY.
• Court: New Jersey Supreme Court

50 A. 360

67 N.J.L. 139

VIRTUE, Sheriff

v. BOARD OF FREEHOLDERS OF ESSEX COUNTY.

Supreme Court of New Jersey.

Nov. 17, 1901.

Certiorari, on the relation of George Virtue, sheriff, to the board of freeholders of the county of Essex, to review a resolution of such board. Reversed in part and affirmed in part.

Argued February term, 1901, before GUM—MERE and FORT, JJ.

Riker & Riker, for prosecutor.

Joseph L. Munn, for defendants.

GUMMERE, J. The prosecutor, by this writ, attacks the validity of a resolution of the board of freeholders of Essex county, by which they decide to assume the custody of the common jail of the county, and of the county penitentiary at Caldwell, and of the prisoners confined in those institutions. The object of the proceeding is to bring about a determination of the conflicting claims of the board of freeholders and of the sheriff to the custody of the jail and the penitentiary; the contention of the board of freeholders being that it is vested in them by statute, while the sheriff claims it as a function of his office, which cannot be taken away from him by legislative enactment.

By article 13 of the constitution of 1776, the inhabitants of each of the counties of the state are required to "annually elect one sheriff," and authority is given to re—elect the same person to the office until he should have served three years. No attempt, however, is made in that instrument to define the duties and functions of the office. Twenty years after the adoption of this constitution, on March 18, 1796, the legislature of the state passed an act entitled "An act concerning sheriffs," by the eleventh section of which it was provided that "the sheriff in each county of this state shall have the custody, rule, keeping and charge of the gaol or gaols within such county, and of all prisoners in such gaol or gaols." Pat. Laws, p. 201. This statute has ever since remained, and still is, in force, although amended in some particulars. In the year 1844 the present constitution was adopted, and, by article 7, § 2, pars. 7, 8, it is declared that "sheriffs * * * shall be elected annually by the people of their respective counties," and that "they may be re—elected until they have served three years, but no longer." Up to this time no change had been made in the eleventh section of the act of 1796, and it continued to remain unchanged until February 27, 1857, when it was impliedly repealed, so far as it related to the counties of Essex and Hudson, by an act passed on that day, entitled "An act to transfer the charge and keeping of the jails, and the custody of the prisoners, in the counties of Essex and Hudson, from the sheriffs to the boards of chosen freeholders, and for the employment of the prisoners, and to regulate their term of service therein." P. L. 1857, p. 10. It remained in full force and effect, however, in the other counties of the state, until the year 1887, when the legislature passed an act entitled "An act to authorize the boards of chosen freeholders in the several counties of this state to assume and exercise the custody, rule, keeping and charge of the county jails in their respective counties, and of the prisoners in such jails, and for the regulation and management of such jails, and of the prisoners therein." P. L. 1887, p. 42. By the provisions of this statute the boards of freeholders of the several counties of the state were authorized to assume and exercise the custody and control of the county jails in their respective counties, and of the prisoners therein, whenever any such board should decide, by the affirmative votes of two—thirds of all its members, so to do, and should file a certificate of such decision in the office of the secretary of state; and it was provided that, when such certificate should have been so filed, the custody, rule, keeping, and charge of the county jail in such county should no longer be in the sheriff of that county, but in the board of chosen freeholders thereof, and in such jailer, keeper, or warden as they should appoint for that purpose. Prior to the enactment of this lastmentioned statute, however, and in the year 1875, the constitution of 1844 was amended; but no change was made therein with relation to the provision concerning the office of sheriff, except that the term of the office was extended to three years. Three other acts of the legislature have been passed since 1887, bearing upon the custodianship of the common jails of the counties of the state. The first of those acts is entitled "An act to amend 'An act concerning sheriffs.'" It was passed May 16, 1894, and by it section 14 of the act concerning sheriffs (which is the eleventh section of the original act of 1796) was amended so as to restore to the sheriffs of the several counties of the state the custody of the common jails therein, and of the prisoners confined in such jails, with a proviso that the section should not apply to counties of the second or third classes, where the boards of chosen freeholders had theretofore or might thereafter appoint a warden or keeper of such jail, and with the further proviso that the sheriff of any county might transfer such custody to the board of freeholders of his county, who should thereupon appoint a warden or jailer for the same. P. L. 1894, p. 378. The second of these acts was passed on the same day (May 16, 1894), and is a simple repealer of the act of February 27, 1857, hereinbefore referred to, entitled "An act to transfer the charge and keeping of the jails, and the custody of the prisoners, in the counties of Essex and Hudson, from the sheriffs to the boards of chosen freeholders, and for the employment of the prisoners, and to regulate their term of service therein," and of all the supplements thereto. P. L. 1894, p. 597. The third of these acts was passed on May 25, 1894, and is entitled "An act to regulate the custody of jails and prisoners therein in counties of the first class of this state, and to repeal an act entitled 'An act to repeal an act entitled "An act to transfer the charge and keeping of the jails, and custody of the prisoners in the counties of Essex and Hudson, from the sheriffs to the boards of chosen freeholders, and for the employment of prisoners, and to regulate their terms of service therein," approved February twenty—seventh, one thousand eight hundred and fifty—seven,' and the supplement thereto which was passed May sixteenth, one thousand eight hundred and ninety—four." P. L. 1894, p. 534. By this act the sheriffs in all the counties of the state of the first class are vested with the custody, rule, keeping, and charge of the jail or jails within their respective counties, with the proviso, however, that the act shall not apply to any jail or penitentiary upon any county farm in any of such counties. The act then provides, by its third section, that the sheriff of any' county of the first class may surrender the custody of the jail of his county to the board of freeholders of such county, and that upon such surrender the board of freeholders shall take charge of such jail, and appoint a jailer or warden thereof, and such keepers as may be necessary. By the fourth section of the statute the act repealing the special law transferring the charge and keeping of the jails of Essex and Hudson counties from the sheriff to the boards of chosen freeholders is itself repealed.

The foregoing is a history of the constitutional and statutory proceedings regulating the subject of the custody of the county jails of the state. The following facts, bearing upon the questions at issue, appear in the state of the "case" returned with the writ: Immediately upon the passage of the act of February 27, 1857, the board of freeholders of Essex county assumed the custody and charge of the county jail of that county and of the prisoners confined therein, and remained in the custody and control thereof continuously until May 25, 1894, when Herman Lehlbach, the then sheriff of the county, took charge of the jail and its prisoners in pursuance of the provisions of the act passed on that day, and hereinbefore cited. He continued in charge, however, for only a few days, and then, acting under the authority of the third section of the act last referred to, surrendered the custody of the jail and its prisoners to the board of freeholders, which body thereafter remained in charge thereof until November 1899, when they were ousted by the prosecutor, the present sheriff of the county.

The principal...