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[60 Mont. 608.]

United States paid for the subsistence of such persons seventyfive cents per day, amounting to $5,914.50; that this amount was received by the defendant county and was the reasonable compensation for the services rendered and the actual amount expended by plaintiff therefor; that the county has paid to plaintiff only $3,942 or at the rate of fifty cents per day per person so confined, and has retained the balance, the equivalent of twenty-five cents per day, and has refused to pay the same or any part thereof to plaintiff. The prayer is for $1,971.50. A general demurrer was sustained to this complaint, judgment entered dismissing the action, and plaintiff appealed.

The trial court proceeded upon the theory-indicated in a memorandum opinion-that since the statutes of this state then in force limited the compensation of the sheriff for board of prisoners to fifty cents per day per prisoner, plaintiff could not recover more than that amount.

The one question presented for determination is: To whom does the money paid by the United States for the subsistence of federal prisoners belong? It is beyond controversy that the United States cannot compel any state or territory to care for federal prisoners and that the consent of the state or territory, as the case may be, to do so for the accommodation of the federal government is necessary. By joint resolution of the first Congress (September 23, 1789) the several states were requested to consent to the use of their common jails for the detention of federal prisoners and to require their proper officers to receive, support and safely keep such prisoners until discharged in due course of law, the United States to pay for the support of such prisoners and also pay fifty cents per month for each prisoner so confined therein for the use and upkeep of every such jail so used.

So far as our information goes, every state has acceded to the request expressed in the joint resolution above, to the extent that federal prisoners may be confined and cared for in local jails. By an Act approved January 12, 1872 (5th Div.,

[60 Mont. 608.]

Comp. Stats., sec. 1275), the territory of Montana expressed its consent, but undertook to define the terms upon which the privilege might be exercised, viz., that the United States should pay for the support of such prisoners and the legal fees of the jailers and also ten dollars per month to the county whose jail was so used for the use and upkeep of the jail.

Whatever may be said of the legislative policy expressed in these early statutes, the attempt by either the federal government or the territorial legislature to prescribe specific compensation for the use of local jails was abandoned. Section 5547, United States Revised Statutes, provides: "The Attorney General shall contract with the managers or proper authorities having control of such prisoners, for the imprisonment, subsistence and proper employment of them." Section 3026, Political Code, 1895, provided: "The sheriff must receive and keep in the county jail any prisoner committed thereto by process or order issued under the authority of the United States, until he is discharged according to law, as if he had been committed under process issued under the authority of this state; provision being made by the United States for the support of such prisoner." The provisions of section 3026 have been in effect continuously since their enactment and are now found in section 9763, Revised Codes.

This state might have refused to permit its jails to be used for the incarceration of federal prisoners unless compensation was made therefor, but it saw fit, as it had the right to do, to relinquish the claim asserted in the territorial statute above [1,2] and to limit its demand to the single item included in section 9763, viz., provision for the support of such prisoners, and since Lewis and Clark county is but a political subdivision of the state and subject to legislative supervision and control (Hersey v. Neilson, 47 Mont. 132, Ann. Cas. 1914C, 963, 131 Pac. 30), it is bound by the statute and cannot complain that it is required to furnish the use of its jail, without

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compensation, for the accommodation of the general govern

ment.

It is perfectly apparent from this brief history that the term "support" is employed in section 9763 as synonymous with the term "subsistence" employed in section 5547, United States Revised Statutes. Indeed, the two terms are synonymous according to all standard reference works. Neither argument nor authorities can fortify the conclusion which is compelled that it was the intention of the United States and this state that by contract the former should pay for the support or subsistence only, of federal prisoners confined in a county jail. [3] The statute (section 5547) above requires that such contract shall be made by the Attorney General for the United States, on the one part, with the person or body having the management and control of such prisoners, on the other. By this process of elimination the controversy before us is reduced to an answer to the inquiry:

To whom is reference made in the phrase "the managers or proper authorities having control of such prisoners?" It cannot be contended that there is any subtle meaning concealed in the language employed. The terms are in common use and generally understood, but any possible controversy over the construction of the phrase is obviated by express legislative declaration. Section 5539, United States Revised Statutes, provides that whenever any federal prisoner is confined in a county jail, he shall be under the exclusive control of the officer having charge of such jail pursuant to the law of the state in which the jail is situated. Section 3010, Revised Codes, imposes upon the sheriff the duty to "take charge of and keep the county jail and the prisoners therein." Section 9759, Revised Codes, provides that "the common jails in the several counties of this state are kept by the sheriffs of the counties in which they are respectively situated," etc. Section 9764 provides that a sheriff to whose custody a federal prisoner is committed is answerable for his safekeeping in the courts of the United States according to the laws thereof. Under like

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statutory provisions this court declared that the sheriff has the custody of the jail of his county and the prisoners therein. He is to keep the prisoners and he is personally liable for their escape if it occurs. (Lloyd v. Board of Commrs., 15

Mont. 433, 39 Pac. 457).

From these considerations it follows as of course that the sheriff is the proper party with whom the contract is to be made for the subsistence of persons committed to the jail by federal authority, and this is the conclusion reached by the courts which have been called upon to construe statutes similar to our own. (In re Kays, 35 Fed. 288; Avery v. Pima County, 7 Ariz. 26, 60 Pac. 702.) It is altogether immaterial that in [4] this instance the contract was made in the name of Lewis and Clark county. It inured to the benefit of the plaintiff. The funds received from the United States were not in any sense public funds and had no place in the county treasury. They were received to the use of the plaintiff to whom they belonged under the contract and upon whom the burden was imposed to provide the subsistence for the person so incarcerated.

The trial court fell into error in assuming that section [5] 3138, Revised Codes, relates to the support of persons confined in a county jail by federal authority. That section has to do only with the board of such prisoners as are confined by state authority. No one could contend seriously that the term "board" used therein means the same as the term "support" employed in section 9763, Revised Codes, or the term "subsistence" used in section 5547, United States Revised Statutes.

The complaint states a cause of action and the court erred in sustaining this demurrer. The judgment is reversed and the cause is remanded for further proceedings not inconsistent with the views herein expressed.

Reversed and remanded.

MR. CHIEF JUSTICE BRANTLY and ASSOCIATE JUSTICES REYNOLDS, COOPER, and GALEN concur.

OF

DECISIONS RENDERED WITHOUT EXTENDED OPIN-
IONS DURING THE PERIOD EMBRACED
IN THIS VOLUME.

No. 4,556.-DAN J. DONOHUE, RESPONDENT, v. PRAIRIE COUNTY, APPELLANT.

Appeal from District Court, Prairie County; Geo. P. Jones, Judge.

Decided May 10, 1921.

PER CURIAM.-Upon motion of respondent, the appeal in the above-entitled cause is dismissed.

Mr. Jos. C. Tope and Mr. George W. Farr, for Appellant. Mr. N. A. Rotering, for Respondent.

No. 4,365.-THAD. S. SMITH, RESPONDENT, v. JACOB MILLER, APPELLANT.

Appeal from District Court, Yellowstone County; A. C. Spencer, Judge.

Decided May 11, 1921.

PER CURIAM.-Pursuant to praecipe for dismissal filed herein, the appeal in the above-entitled cause is dismissed as settled.

Mr. B. L. Price and Messrs. Dillavou & Moore, for Appellant.

Mr. Thad. S. Smith and Mr. Scott S. Smith, for Respondent.

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