The plaintiff in this habeas corpus proceeding alleged that he is being held and imprisoned in the Clatsop County Jail while awaiting trial on Aggravated Murder and Robbery I charges pending in Linn County. He claims his imprisonment is illegal “in that the conditions of his imprisonment are violative of his statutory and constitutional rights.” We do not reach his constitutional claim, because we resolve these proceedings on other grounds. In response to the writ issued by this court, the Sheriff of Linn County filed a return in which he asserts that he transferred the plaintiff to the Clatsop County jail because of overcrowding conditions and security problems at the Linn County jail. The sheriff specifically relies on an order by the United States District Court for the District of Oregon which restricts the population of the Linn County correctional facility to 24 persons and requires him to segregate “violent inmates from non-violent” inmates. He is also ordered to segregate the prisoners among three cell blocks within the facility. The defendant sheriff concludes his return by claiming that the transfer to Clatsop County was necessary because “it was determined not to be feasible, consistent with my lawful obligations, and my duty to provide safety and security and available space in the Linn County Facility” to retain the plaintiff prisoner in Linn County.
ORS 135.215 reads:
“The commitment shall be directed to the sheriff of the county in which the magistrate is sitting. Such sheriff shall receive and detain the defendant, as thereby commanded, in the jail of his county or, if there is no sufficient jail in the county, by such means as may be necessary and proper therefor or by confining him in the jail of an adjoining county.”
Although this statute is addressed to commitment after a preliminary hearing and does not specifically apply to the pretrial detention of this prisoner, it reflects legislative policy that prisoners be confined in jails in or adjoining the county where they are awaiting trial when space is available.
We judicially note that Clatsop County is not adjoining Linn County, and there is no dispute that the plaintiff prisoner was committed to the custody of the sheriff of Linn County by the circuit judge of Linn County. We therefore *438consider the narrow issue “if there was no sufficient jail in the county,” and whether the continued confinement of the prisoner in Clatsop County is necessary.
During oral argument counsel for both sides agreed that this court should accept as part of the record in this case daily logs of the jail population prepared by the Linn County Sheriffs staff. These logs demonstrate that from June 3 to the date of argument, June 28, 1985, if the prisoner had been imprisoned in Linn County, at no time would the daily population of the Linn County jail have exceeded the 24-person limit set by the federal court. On only three days in June would the population have reached 24. On the day of argument the jail population was only 16. The defendant sheriff did not segregate for this court the “violent” and “nonviolent” prisoners, except by reference to the charges pending against certain prisoners. Those serving county time were misdemeanants or probation violators.
We find that the continuation of custody in the Clatsop County jail was not required because of insufficiency of Linn County jail space. Thus, the defendant sheriff is ordered to return the plaintiff prisoner to the Linn County correctional facility. ORS 34.700.