The opinion of the court was delivered by
Valentine, J.:On the 3d of December 1870 the *172defendant in error P. M. Tomlinson filed in the office of the county clerk of Atchison county a claim against said county for supplying prisoners. On the 2d of January 1871 he presented said claim to the board of county commissioners for their examination and allowance. The board examined the same but disallowed it. Tomlinson then appealed to the district court. In the district court the parties in addition to said claim filed a written stipulation admitting the truth of certain facts, and presenting to the court only two questions for consideration—one of law for the court, and one of fact for the jury. The question of law was, whether upon the claim presented by Tomlinson, and the facts admitted by the parties, taken together, there was any liability on the part of the county to Tomlinson, and if there was, then, as a question of fact, what was the amount of that liability? The question of law was presented to the court and decided before the jury were impanneled, and proper exceptions were taken to the decision of the court. This was sufficient to enable the party excepting to bring the question to this court. But as the decision was against the county the counsel for the county thought proper to again present the question to the court, which he did at two or three other and different times, and at each time the decision was against the county. The court decided the question a second time by admitting evidence over and against the objections of the defendant below, and again in charging the jury, first, by giving the first instruction asked for by the plaintiff Tomlinson, and second, by. refusing to give the first and sixth instructions asked for by the defendant below. The question of fact was found by the jury. They found that the amount .of the liability of the county to Tomlinson was $1,072. Judgment was rendered against the county and in favor of Tomlinson for that amount, and from that judgment the county now appeals to this court.
The question of law is now presented to us. "With the question of fact we have nothing to do. We think the court below decided the question of law erroneously. Upon the *173Jln.im presented to the county commissioners they (the commissioners) decided correctly. The claim did not show upon its face any liability on the part of the county to Tomlinson. It did not make out a prima fade case in his favor. And even if it had done so, it was not in such a form that it could legally be allowed. First, it showed that Tomlinson was only the undersheriff and jailor of said county, arid that he was not the sheriff, to whom only the county is liable for supplying prisoners. Nor did it show any agreement on the part of the county to pay Tomlinson for supplying prisoners, nor that the sheriff had in any manner transferred his right to compensation for supplying prisoners to Tomlinson. Second, the claim was not properly itemized as prescribed by law r Gen. Stat., 259, ch. 25, § 28. Said claim showed that it was a claim for supplying certain prisoners on certain days at two dollars per day. But it did not show what kind of supplies was furnished, nor what was the nature of the service or labor in furnishing them. No pleadings in form were filed in the district court by either party. The said claim and the said written stipulation were intended by the pai’ties to answer for pleadings. If they showed a cause of action in favor of the plaintiff and against the county then the court decided correctly in submitting the question as to the amount of the claim to the jury; but if they did not prima fade show such a cause of action, then of course the court erred in its decision. We have already seen that the claim alone did not show such a cause of action. The question now is whether the claim and stipulation taken together did. We think they did not. The mitten stipulation did not assist the claim where the claim was defective. In fact it had rather the effect to show that if the claim had been itemized and presented by the sheriff himself it could not legally have been allowed. The stipulation showed that the county had already paid sixty ' cents per day (all that the law allows,) for boarding each of said prisoners, and had paid in full for washing, for soap, and for lights and had furnished fuel, and rooms in the county jail for the jailor, free of charge. For Avhat then was *174Tomlinson’s claim? Was it for furnishing such articles only .as were mentioned in the claim and stipulation, or was it for furnishing other articles? Was it for the value of the articles furnished, or was it for the value of the service or labor performed in furnishing the same? It could not be for furnishing articles not mentioned in the claim or stipulation, for the law requires that no account against a county shall be allowed •“ unless the same shall be m.ade out in separate items, and the nature of each item stated. And where no specific fees are ¡allowed by law,” (and we suppose that no one will claim that the claim of Tomlinson was for specific fees,) “the time actually and necessarily devoted to the performance of any ¡■service charged in such account shall be specified.” (Gen. Stat. 259, ch. 25, § 28.) This law we suppose governs the district court in cases taken there on appeal as well as the board of county commissioners from whom the appeal is taken. We hardly suppose that the district court is authorized to allow a claim or account so defective in form or substance that the board of county commissioners could not allow it when presented to them. Neither could Tomlinson’s claim be for the value of the articles furnished, for the county had ■already paid for such articles their full value. The claim .seems to be for an additional allowance to the plaintiff below for his time and personal services in the procuring of the supplies mentioned in the stipulation, and for furnishing the same to the prisoners, and the personal care and attention connected therewith. (See latter part of the stipulation— the question of law.) If such is the claim, then he certainly cannot recoveiwfirst, because ho is not the sheriff, and .does not show any right from the sheriff Second, because the sheriff himself would not be entitled to recover on such a bill ©r claim. The county had already paid the statutory price, or fees, for boarding the prisoners. And boarding prisoners within the meaning of the statute (Gen. Stat., 477, ch. 30, § 3,) probably includes .everything necessary for the prisoners to have in eating, drinking, and sleeping, and everything necessary for them to have to properly *175prepare themselves for eating, drinking, and sleeping, such as •soap, towels, plates, knives and forks, and the like. And it probably not only includes the articles furnished, but also the service and labor in furnishing them. If this is the proper construction of the law, then of course the plaintiff cannot recover. Section 10 of the act concerning county jails (Gen. Stat., 531, ch. 53,) which provides that “the county board shall allow the sheriff his reasonable charges for supplying prisoners,” does not repeal the other statutes fixing the fees of the sheriff for supplying prisoners. The fee for boarding prisoners is fixed by law at sixty cents per day, and no additional allowance can be made therefor, either for the articles furnished or for the labor in furnishing them. Said section 10 does not apply to such a case. It only applies to cases where the legislature have not fixed the fees for supplying prisoners, as for furnishing a prisoner with a bible or new testament, or medical aid, etc.
There was some evidence introduced and permitted to go to the jury tending to show that by an arrangement between the sheriff and the plaintiff below that the plaintiff should receive everything that should be paid by the county for .supplying prisoners, but as there was no issue of this kind presented to the jury no question as to who was entitled to recover from the county for supplying prisoners, but only the question as to how much should be recovered, this evidence was wholly irrelevant and incompetent, and can now have no effect in the decision of this case.
The question as to whether the plaintiff could recover was a question of law for the court to determine upon the facts alleged in the claim and stipulation. And as we think the plaintiff did not make out a prima fade case by the allegations contained in said claim and stipulation, the court below erred in its decision. It should not have submitted the case to a jury at all. The judgment of the court below is reversed.
All the Justices concurring.