On Petition for a Rehearing.
Crumpacker, J.Counsel for appellee have filed a very earnest petition for a rehearing of this cause, and in view of the importance of the question involved we have concluded to give it further consideration at the hazard of traversing some of the ground covered in the original opinion.
It is insisted that there must be express authority to justify the commissioners of a county in allowing and paying a public officer for services out of the county treasury. The law upon this subject was well stated by Coffey, J., for the court in the case of State, ex rel., v. Roach, 123 Ind. 167. *287He said: “ The rule is that before*a public officer can demand and receive compensation for services rendered for a county, in the absence of a contract, he must show : First. A statute authorizing him to receive compensation for such services, and fixing the amount thereof; and Second. A statute authorizing the commissioners to pay for such services out of the county treasury.”
Section 6115, R. S. 1.881, provides for the establishment of a county jail for the safe keeping of prisoners and that it shall be kept at the expense of the county. Section 6118 constitutes the sheriff the keeper of the jail. Section 5873 allows the sheriff twenty cents for each person committed to the jail and a like sum for each person discharged therefrom. Thus we have a positive statute requiring the sheriff to keep the jail, one authorizing him to receive compensation for receiving and discharging inmates, in which the amount of such compensation is specified, and another imposing'upon the county the expense of keeping the jail. If the compensation of the sheriff for receiving and discharging the inmates is part of the expense of keeping the jail, within the meaning of the law, there is express authority for its payment by the county. It is said the sheriff does not act for the county in keeping the jail, but it must be admitted that he does that which the law expressly declares the county shall bear the expense of. It is not county business, strictly speaking, to prosecute offenders or confine them in jail, but the business of the State, yet the Legislature has delegated these functions of government, in a large measure, to the several counties, and imposed upon them the expense thereof. No more is it the business of the counties in their corporate character to dispense public charities, this being likewise a function of government, but such business is expressly imposed upon them by law, and they are compelled to bear its expense.
The superintendent of the county asylum for the poor is no more engaged in the business of the county than the *288keeper of the jail, but the expenses of the asylum are imposed upon the county, and no one will deny that the compensation of the superintendent is a necessary part of such expense. In a broad sense, everything is county business which the law requires counties to do. Because the jail is kept by a public officer is no reason why the compensation the law prescribes for such service should not be regarded as part of the expense of keeping it. This duty might have been imposed upon such officer without compensation, and no liability therefor would have arisen against the county by implication, but the Legislature has expressly declared that such service should not be performed gratuitously. It is sufficiently demonstrated in the original opinion that the receiving and discharging fees are not to be charged to the inmates of the jail, and if the county is not liable for such fees the Legislature must stand charged with the folly of having enacted a nugatory law. Since the original opinion was filed the Supreme Court, in the case of Board, etc., v. Weeks, 130 Ind. 162, again intimated the opinion that counties are liable for the payment of the receiving and discharging fees. In the ease of Miller v. Boone County, ante, p-225, recently decided by this court, the governing principle of this case was settled adversely to the appellee.
Filled Oct. 15, 1892.The conclusion that counties are liable by express statutory provision for the payment of the fees in question can not be avoided.
The petition is overruled.
Black, J., dissents.