I cannot concur with my associates in the conclusion reached in this case. It is conceded by all parties that respondent furnished the meals for which he files.his bill; that the parties to whom they were furnished were county charges at the time so furnished; that the county is liable therefor. It is also conceded that the sheriff who made the contract with respondent for the meals so furnished was legally authorized to make the contract. It is also conceded that under the statute he could collect from the county only the actual and necessary expense of the care of the prisoners in his custody as sheriff. In other words, that the sheriff could not speculate off of this class of business. I fully agree that under the provisions of our law cited in the opinion in this case that the sheriff is the proper party to make these contracts. The legislature evidently had in mind the fact that the county commissioners only met in regular session four times annually for the purpose of transacting business of this character, and hence made the sheriff the agent of the county to look after such matters. It is immaterial to the county whether it pays the sheriff or the party who actually furnishes the meals. It must recognize the fact that it is the paymaster, and whether it pays the sheriff for the party or the party directly is of no importance to the county. The law requires the sheriff to file his voucher showing payment before it will settle with him, and such statements and vouchers must be filed each quarter for the quarter preceding. If the sheriff fails or refuses to file such statement and voucher, then the county can pay the party furnishing the items with safety; and if it settles with the party who has to furnish the itemized *481bill either to the sheriff or the county, it has his bill on file, and when it issues and delivers its warrants it is an end of any question of payment to the sheriff if the time for filing voucher by the sheriff has elapsed. For instance, if the county had paid this bill to respondent, and thereafter- the defaulting sheriff or his bondsmen should file a bill against the county covering the same items, is it possible that the county could not plead the payment in bar of a recovery by either? I think it could, and that it would be a good defense to the action. If this is true, then the sheriff is merely the agent of the county as well as the party with whom he contracts. This seems to me to be the reasonable and fair construction of the statutes. This court has repeatedly held that the sheriff was only entitled to his salary and reasonable expenses in the performance of his duties; that the salary fixed by law was all he could receive. If this is true he had no interest in the bill of respondent excepting to see it paid. If he failed to file the proper voucher within the prescribed time and his bondsmen cannot do it only as they may get it from respondent, must he lose his claim against the county, or await the pleasure of the bondsmen of the defaulting sheriff to collect his money for him? They have no interest in it whatsoever. The county is certainly in a very comfortable and safe position so long as it refuses to pay respondent, for the reason that the sheriff has not filed the proper voucher — has never paid the bill, and is beyond their reach.
It may be that respondent could maintain an action against the sheriff — or his bondsmen. I express no opinion as to this, but the county is primarily liable to respondent and should be required to pay him. The case of People ex rel. Caldwell v. Board of Supervisors Saratoga County, 45 App. Div. 42, 60 N. Y. Supp. 1122, is very interesting on some of the questions here involved. At page 1126 it is said: “The contention of the relator is that there was no contract between himself and the board of supervisors, by which he was to be paid at the Tate of $3.01 per week for each prisoner confined in jail, and he bases that contention upon the fact that years ago during the encumbency of another person in the office of sheriff a reso*482lution was passed fixing the price to be paid for the board of prisoners at $3.01 per week, and such resolution had never been repealed, and that such action of the board of supervisors constituted a contract between the county and the sheriff to pay him that amount. I- do not think that contention can prevail. Boards of supervisors possess only limited powers; they only have such powers as are expressly conferred upon them by statute, and such implied powers as are necessary to carry into effect those powers expressly granted or such as are necessary to-enable them to discharge the duties and liabilities, imposed upon them.....The county is chargeable with, and it is the duty of the board of supervisors to audit and allow, the expenses necessarily incurred in the support of persons charged with or convicted of crime and committed to the jail of the county. This means money actually paid out. Expenses means that which is spent.” It is there held that “The board of supervisors had the power to make a contract with the sheriff for the board of prisoners at a fixed sum regardless of the expense. It is the duty of the board of county commissioners-of this state to audit all bills coming before them for allowance, and when the bill of respondent was presented it was their duty to determine whether the items charged for had been-furnished and whether they were reasonable and necessary. No one could furnish them this information more readily or correctly than respondent, and when this fact was ascertained it was their duty to allow the bill or reject it for some statutory reason other than that the county was indebted to the defaulting sheriff rather than the man who had actually furnished the meals.
For the foregoing reasons I cannot concur in the majority-opinion, in the entire conclusion reached.