#### COUNTY OF LEWIS AND CLARKE v. UNITED STATES.

(District Court, D. Montana.

November 20, 1896.)

No. 58.

■ 1. Federal Prisoners in State Jails — Keeping and Subsistence — State Statute.

Tbe Montana statute provides that persons may be committed under authority of the United States to any jail in the state “upon payment of the expenses of supporting such prisoners, ten dollars per month to the county, for the use of the jail, and all legal fees to the jailer.” *Held,*that this means $10 per month for all the prisoners so confined, and not $10 per month for each one of them.

2. Same — Effect of State Statutes.

A state statute authorizing the use of county jails for the confinement of United States prisoners on certain terms as to charges and fees is not binding on the United States, as, by Rev. St. § 5547, the keeping and subsistence of such prisoners is made a matter of contract, under the control of the attorney general.

R. R. Purcell, for plaintiff.

P. H. Leslie, U. S. Atty.

*733KNOWLER. District Judge.

This is an action brought by the county of Lewis and Ciarlo», state of Montana, against the United Btates. It was instituted for the purpose of recovering a judgment against the United Btates for the rent of the county jail of said county. The United Btates, by its attorney, demurred to the petition, alleging that it did not slate facts sufficient to constitute a cause of action. The chief difficulty, perhaps, in the case arises over tin» construction of the following statute of the state of Montana, to wit:

> “Persons may be committed under the authority of the United ¡átalos to any jail in this territory upon payment of the expenses of supporting such prisoners, ten dollars per month to the county, for the use of the jail, and all legal foes to the jailer, and the sheriff shall receive such prisoners and subject them to the same discipline and treatment, and be liable for any neglect of duty, as in the case of other xirisoners; hut the county, in no case shall be liable for the escape of such prisoner or prisoners.” Comp. St. § 1275.

liy tin; constitution of Montana the term “territory” in this statute was changed to that of “state.” It is claimed that the $L0 per month in this statute means $10 per month for each and every United Btates prisoner confined in any county jail. This meaning is only readied by the adding of additional words to the statute. It cannot be derived from the words as originally used in the statute. There is no such ambiguity in Mu» statute as would, in ray opinion, justify any court in adding any terms to the same. If the court should resort to the construction placed upon the statute by ihose who have been called to act thereunder, I think no such construction as is claimed was ever put upon its terms. The statute» provides that persons may be committed to such jail. There is a provision providing for the payment of “the expense of supporting such prisoners” as may be confined in such jail, and then it is provided that there shall be paid “ten dollars per month to the county' for tire use of the jail.” This evidently' means for the use of the» jail for the persons committed to it. and for the prisoners confined in it, not for each person committed or confined. Again, this statute would not bind the United Btates, unless it in some way consented to its provisions. There sire no allegations in the petition showing such consent. It seems to be assumed that the United Btates would be bound by the provisions of this statute in all cases. Bection 5547, Rev. Bt. U. B., provides:

> “The attorney genera,! shall contract with the manager or proper authorities having control of such prisoners for the imprisonment, subsistence and proper emyloymont of them and shall give the court having jurisdiction of such offenses notice of the jail or penitentiary where such prisoners shall be confined.”

in the preceding section of said statute it is provided that a court may sentence a criminal, when no United Btates jail or penitent iary is provided, to such state or terj-itori'al jail or penitentiary as the attorney general of the United Btates shall designate. It is evident from these two sections that it is expected the United Bt ates, by its attorney general, shall contract for the keeping and custody', under certain circumstances, of United Btates prisoners, in some state or territorial jail or penitentiary. It was not con*734templated that any state or territory by a statute could dictate to the United States what it should pay for the rent of any county jail. What the United States must pay for the rent of any jail must rest in contract, express or implied. No such contract is set forth in the petition. The demurrer is therefore sustained.