Section 4588, C. G. L., 2891, R. G. S., entitled "Manner of Payment and Amount" of Compensation of Sheriffs in this State provides for two items of compensation as follows:
"Guards, not more per day than ............... $2.00
"Servants, not more per day than ............. 1.00"
The items in question, in their present form, or in lesser amounts, have been in force in this State for many years and by a long settled administrative interpretation of the statute for more than thirty years, has been understood to mean that when the sheriff of a county, in the exercise of his honest judgment, based upon a fair necessity therefor, employs guards or servants in connection with the county jail, which is county property, and which the law requires him to manage and look out for, the county shall thereby become liable to him for reimbursement for guards and servant hire at the statutory rates.
I am unable to see wherein precedents of nearly a half century's standing should now be disregarded and a revolutionary construction adopted by the sheriff's fee statute, which will result in the creation of a hazardous condition at some jails by reason of the cutting off of the sheriff's allowance for a night guard to prevent prisoners from being burned to death should fire break out in a small jail where they are confined alone without some guard near at hand to release them should emergency demand.
The majority opinion undertakes to write into the statute a requirement that allowances for guard hire and servant hire be approved by the judge having jurisdiction "in such cases," — a provision I am unable to find here. But assuming that such provision exists, just what judge would have jurisdiction over the county jail in a county which had a *Page 795 county judge's court, a county court of crimes, a criminal court of record and a circuit court, all with prisoners confined in the same jail under the processes of each?
In State, ex rel. Comfort v. Leatherman, 99 Fla. 899,128 So. 21, this Court said:
"The practical construction placed upon a statute by an administrative department of the State government, when not in conflict with the Constitution or the plain intent of the Act, is of great persuasive force and efficacy, especially when established by long usage."
The record here is replete with a showing that the practical construction placed upon the aforementioned items in Section 4588, C. G. L., supra, for many years has been that a county sheriff is entitled, in the exercise of his fair and honest judgment, based upon a real necessity, to employ guards and servants deemed by him to be essential for the proper protection and management of the county jail, and when he exercises his perogatives in that regard, he is entitled to claim, and have paid, by the county, just as any other legal claim, reimbursement at the statutory rate for his actual outlay for the statutory items, without the condition precedent approval of either the county commissioners, or of any judge thereof.
I think the judgment should be reversed, the employment and the necessity for it having been admitted by the pleadings in this case.