Case 55 — Action by.J. Morgan Gentry against the City of Lexington to Recover Fees as Jailer of Fayette County.

Oct. 22.

#### City of Lexington v. Gentry.

APPEAL FROM FAYETTE CIRCUIT COURT.

Judgment for plaintiff and Defendant Appeals.

Judgment Modified.

City — Keep of Prisoners — Liability to Jailer.

Held: 1. Under Kentucky Statutes, 1899, section 1730, fixing the liability of a city for the keep of prisoners confined for a breach of the by-laws or ordinances of a city and for the violation of a statute where the city gets the benefit of a fine, and section 3155, providing that all fines and penalties collected in a police court ¡shall be for the benefit of the city, a city is liable for the keep ■of all prisoners convicted in the police court where there is a ¡fine imposed and the prisoners are sent to the county jail, though section 3151 forbids prisoners for 'whose maintenance the city would be liable from being confined except in the city workhouse.

2. A county jailer can not refuse to receive prisoners committed to his custody by a judgment of the .police court of a. city, where the court had jurisdiction to try the offense and of the person charged therewith, though the commitment should have been to tbe city workhouse.

.3. A city is not liable to the sheriff of the county for the keep of prisoners1 committed to his care either for appearance or under sentence when a finé constitutes no part of the punishment, un*529der Kentucky Statutes, 1899, section 1730, making the city liable for the keep of prisoners wheré it gets the benefit of a fine.

W. S. BRONSTON, city solicitor, for appellant.

To sum up our conclusion on the question involved, we find:

1. Under section 143 of the Constitution a .police court is established.

2. It has penal jurisdiction concurrent with the magisterial courts.

3. This jurisdiction is limited to a fine not to exceed $100, and imprisonment not exceeding fifty days in jail.

4. The judge of the police court in cities of the second class sits in a dual capacity: (10 To enforce the statutory law within the limits of the city, ior to sit as an examining court for offenses committed within the city limits; (2) as a judge of the city to punish infractions against the by-laws and ordinances.

5. Section 3151, Kentucky Statutes, says that all persons convicted in said police court shall be sent to the city jail or workhouse; otherwise, the conclusion follows that the city, receiving no benefit from their confinement in the county jail, shall not be liable for the expense of their board and keeping.

6. The mittimuses under which the prisoners were sent to the courts were signed by the clerk of the police court who had no authority to sign them and conferred no authority on the jailer to receive them.

,7. If appellee’s contention be sustained in the coming years, cities of the second class will be crushed with the enormous expense in maintaining a city prison and workhouse with a jailer ■and assistants, and in addition be compelled to pay the county jailer for keeping all the prisoners convicted in the police courts of these cities.

GEORGE C. WBBB, attorney for appellee.

The facts admitted in this case are:

1. That appellee is jailer of Fayette county and has served from January 1, 1S9S, to January 1, 1902.

2. That during said time a large number of persons were brought before the police court of the city of Lexington 'in said county, and in default of bail, or upon final conviction, were sent by the court to be confined in the county jail.

3. These orders of commitment ran in the name of the Commonwealth when the offense was against the Commonwealth, and in the name of the city of Lexington when in violation of the city laws.

*5304. That appellee received and kept said prisoners in the county jail. '

,.We'contend that under the law the city is liable for the keep and diet of prisoners in two cases:

1. When confined for a breach of the by-laws or ordinances-of the city.

2. When confined for a violation of a statute where the city-gets the benefit of the fine.

AUTHORITIES CITED.

Constitution, sec. 148; Ky. Stats., secs. 1093, 1730, 3155; Van- . fleet on Collateral Attack, sec. 3; Shackelford v. Hiller, 9 Dana, 1277; Mcllvoy v. Speed, 4 Bibb, 85.

Opinion op the court by

JUDGE BARKER

Reversing.

The appellee, J. Morgan Gentry, instituted this action in tbe Fayette Circuit Court to recover of tbe city of Lexington (a city of tbe second class) tbe sum of $436.50, tbe aggregate amount of fees) claimed, to be due bim as jailer of Fayette county, for tbe beep of certain classes of prisoner^ committed to bis custody by tbe police court of Lexington. Tbe validity of this claim depends upon tbe construction of tbe following sections of tbe Kentucky Statutes:

> Section 1730: “Tbe fees of tbe jailer shall be as follows: . . . For keeping and dieting prisoners in jail, when confined for an offense other than a felony or contempt of court, fifty cents per day; to be paid out of tbe county levy, unless confined for a breach of tbe by-laws or ordinances of a city or town, or for tbe violation of a statute, where the city or town gets tbe benefit of the fine; in that case to be paid by such city or town. For imprisoning and releasing a prisoner charged with a misdemeanor, sixty cents, to be paid out of tbe county levy, unless confined for a' breach of tbe by-law-s or ordinances of a city or town, or for a violation of statute, where tbe city or town gets tbe benefit of tbe fine; in that case to be- paid by such city or town. . . .”

> *531Section 3147: “Said court (police court of cities of the second class) shall have exclusive original jurisdiction in all prosecutions for the violation of the ordinances of the city, and jurisdiction concurrent with the circuit court and justices of the peace of all pleas of the Commonwealth arising within the limits of the city, except cases of felony; and said court shall have power and authority- to take recognizances, from persons charged with offenses recognizable before said court, to appear and answer the same as the circuit courts-have, and a like power to enforce compliance with the same, and as to committing criminal offenders and sending them on for trial. Said court shall have all power given by the general law to examining courts.”

> Section 3151: “That all persons committed by said court for default of surety for good behavior or t'o keep the peace, and all others whom the city is bound to maintain when committed to jail, shall be confined in the pity workhouse or prison, and they may be compelled to labor as many days, at such sum per day as may be necessary to defray the reasonable cost of their board, to be, from time to time, determined by the mayor and general council.”

> Section 3155: “All fines and penalties and costs collected in the police court shall he for the use and benefit of the city, and the officer collecting such fines and penalties shall make daily reports of such collections to the treasurer, taking duplicate receipts therefor, one of which shall be delivered'to the auditor.”

Appellee, in his petition, sets out an itemized account of his claim, showing the names of the prisoners, the offenses with which they were charged, and of which they were convicted, and the number of days they were kept in jail. For appellant it.is contended that section 3151 forbids prisoners, for whose maintenance and keep the city would be liable *532under section 17-30, from being confined, except in-the city workhouse or prison, and therefore it is not responsible for the maintenance of any prisoners confined in the county jail. Appellee contends that, as the jailer of Fayette county, it was his duty to receive and keep any prisoners committed, to his custody by order of the police court; and that hei could not look behind the order of commitment ;• that, having kept the prisoners in question, and been put to the expense of their, maintenance, he is entitled to a judgment for the whole claim sued for.

Section 1730 fixes the liability of the city for the keep of .prisoners confined for a breach of the by-laws or ordinances of a city or town, or for the violation of a statute, where the city or town gets the benefit of the fine; and section 3155 provides that “all fineé and penalties and costs collected in the police court shall be for the use and benefit of the city.” It is therefore clear that the city is liable for the keep of all prisoners convicted in the police court, where there is a fine imposed, unless section 3151 protects it from such liability. Section 2226 of the Kentucky Statutes provides that “the jailer of each county shall receive and keep all persons in the jail who shall be lawfully committed thereto, until they are'lawfully discharged. I-Ie shall treat them with humanity,' and furnish them with proper food and lodging during their confinement. . . .” Where the court has jurisdiction of the subject-matter and of the person, the judgment can not be questioned collaterally, and therefore the jailer could not refuse to receive prisoners committed to his custody by a judgment of the police court, .where the court had jurisdiction to try the offense and of the person charged therewith. He could not go behind the judgment, and determine that the court should have sentenced the prisoner.to confinement in the city workhouse. *533While we are of opinion that section.3151 clearly requires, the court to sentence all prisoners for whose keep the city is liable to the city workhouse, still this was a matter wholly beyond the control of appellee, and, as these prisoners were sentenced to confinement in the city jail, and were kept by him, as it was his duty to do, the ■ provision of sectiorf 1760 fixes the liability of appellant to appellee. But there are a large number of prisoners (for whose keep appellant was made liable by the judgment for which it was not responsible. An examination of the' itemized account of appellee’s claim shows that many of the prisoners were charged with and convicted of offenses which are not punishable in whole or in part by fine. Section 1730 makes the city liable for the keep of prisoners only in cases where it gets the benefit of the fines, it being doubtless assumed by the Legislature that in the aggregate the fines collected would remunerate the city for the cost of the keep of the prisoners; but it was not intended that the city should be liable for' the keep of any prisoners where from the nature of the case it could not, in any way, be remunerated. Appellee’s account shows that many of the prisoners were charged with petit larceny, an offense for the punishment of which a fine, constitutes no part,- and therefore the city, under the provisions of section 1730, is not liable for their keep by the county jailer, when in his. custody either for appearance or* under sentence. The same conclusion applies to vagrancy, fugitives from justice, and to all statutory misdemeanors for the punishment of which no fine was or could be imposed. The trial judge should have disallowed the claim of appellee to the extent herein indicated.

Wherefore the judgment is reversed for proceedings consistent with this opinion.