
    COUNTIES — SHERIFFS.
    [Wood (6th) Circuit Court,
    May 13, 1910.]
    Parker, Wildman and Kinkade, JJ.
    State ex rel. Lake Erie, B. G. & N. Ry. v. F. W. Toan, Aud.
    County Denied Power to Pay Electric Lights for Sheriff's Residence.
    County commissioners have no authority to provide for the expense of lighting that part of the county jail which is used by the sheriff as a residence.
    This is a suit in mandamus brought by the Lake Erie, B. G. & N. By. for the payment of $94.92 on a bill for electric lights, furnished to the Wood county court house, jail and sheriff’s residence. The bill was ordered paid by the commissioners, but the auditor refused to issue his warrant therefor, claiming that the. sheriff’s residence was not a part of the county jail and therefore it would be illegal to pay this bill.
    
      This case was submitted to the common, pleas court on an agreed statement of facts and the mandamus was sustained.
    
      B. F. James and J. E. Kelley, for relator.
    
      WilUam Dunipace, Pros. Atty., for respondent.
   KINKADE, J.

In this action the relator, the Lake Erie, B. G-. & N. Ry. on January 26, 1910, filed its petition and made application for the allowance of a writ of mandamus against .Fred W. Toan, as auditor of Wood county, Ohio, and an alternative writ was issued and the defendant was required to show cause why a warrant should not be issued by the auditor upon the treasurer of said county for the sum of $94.82 in favor of said relator.

The respondent filed his answer and set up that while the bill for lighting was correct in other respects, it was not correct in respect to the ten dollars, in that it covered the lighting of the entire jail building, and inasmuch as a considerable portion of the jail building was occupied by the sheriff as a residence, that that portion of the jail building should not be included in the bill, and that this ten dollars so charged made the bill erroneous, and for that reason the auditor should not be required to draw his warrant for the amount of the bill as presented.

To this answer a demurrer was filed, and the demurrer was sustained, and the defendant not caring to plead further, the case was submitted, and the court of common pleas held in favor of the .relator and ordered the auditor to draw his warrant for the full amount of the bill, $94.82.

It was stated that when the case was to be submitted it would be submitted on a brief furnished by the prosecuting attorney on behalf of the auditor, and that the relator would rest his case on the opinion of the court of common pleas. Counsel for the relator was not able to get the written opinion of the court of common pleas, nor was the court able to find it, so we simply heard from Judge Baldwin himself the grounds upon which this order was entered. No authorities were cited in support of the opinion rendered.

Judge Baldwin treated the term “jail” as described in the statute as being broad enough — comprehensive enough in its proper definition. — to include that portion of the jail building used as the residence of the sheriff, and consequently the statutory authority for furnishing light for the jail was broad enough to justify furnishing light for the residence portion of the jail, and that being his view of the situation, he ordered the writ to issue.

There is no case in Ohio that we know of in which this question has been directly raised and decided. We do not know of any authority under the statute for authorizing the lighting of any portion of the jail, other than that which is properly designated as a jail, and while we might be in accord with Judge Baldwin’s opinion as to what the definition of “jail” is, at the same time we are inclined to think that the decision reached in this ease is not warranted under the statute. As I have said, we know of no statute, no authority that would justify the lighting of the sheriff’s residence. It is true, that in most counties the jail buildings are so built as to furnish a residence for the sheriff, and so far as our information goes in no county is the sheriff expected to pay anything as a rental for the building which he occupies. It is furnished to him by the county in that way, but we can see no reason why the county should pay for the lighting of the residence part of the jail simply because it happens to be under the same roof, any more than the county should pay for it if it were in a separate building.

It might be wise for the legislature to so provide, but they have not done so, and without some authority upon the subject we do not feel warranted in entering the order here that the auditor should issue his warrant for the full amount of the bill.

We think the plaintiff should have leave to reply to this answer if it wishes to and present the question as to whether the amount set up here in the answer is applicable to the residence portion of this jail is in fact the correct amount or not. It is not apparent to us whether it is or not because there is no reply to the allegation.

The demurrer will be overruled and the plaintiff can file a reply.

Parker and Wildman, JJ., concur.  