
    STRINE VS. NORTHUMBERLAND COUNTY.
    A law limitin' the sum allowed a Sheriff for boarding prisoners is constitutional.
    Error to Common Pleas of Northumberland County; No. 358 January Term, 1885.
    The chai’ge of the Court was as follows per
    Rockefeller, P. J.
    Gentlemen of the Jury : — This is an action brought by George ~W. Strine, late Sheriff of Northumberland County, against the County of Northumberland to recover a balance due him as an allowance for boarding prisoners, kept by him in the Northumberland County jail, from the first of March, 1878, to the 1st of October of the same year.
    A bill has been offered in evidence and admitted by both parties to be correct so far as it shows what prisoners were furnished their board by the Sheriff and the number of days that he boarded each one, and about that there is no dispute. The only dispute in the case is, the amount per diem the Sheriff is entitled to recover from the County for the board of these prisoners.
    On the 11th day of April, 1856, the Legislature passed a law enacting that the Sheriffs of the several Counties of this Commonwealth, excepting the Counties of Allegheny and Philadelphia, to whom ai-e committed the custody of prisoners, shall receive such allowance for boarding said prisoners as may be fixed by the Courts of Quarter Sessions of the respective Counties not exceeding twenty-five cents per day for each prisoner. Any provision in any other Act of Assembly to the contrary notwithstanding.
    The counsel on both- sides have stated to the Court that they are unable to find any other act of Assembly passed since that, time changing the amount to be allowed the Sheriff for the keeping or boarding of prisoners. This is a general law and applies through the whole State. Acts of Assembly have from time to time been passed providing for the payment or allowance to the Sheriffs of different- Counties for the boarding of prisoners,, but there does not seem to be any special law for this County ever to have been passed, either before or since 1856. Therefore so far as any Act of Assembly is concerned, this County is subject to the provisions of the Act of 11th of April, 1856.
    "We are told that in 1859, three years after the passage of this general law the Court fixed an allowance of thirty cents per diem for the boarding of prisoners to be paid to the Sheriff', and there is in evidence in this ease an order of Court, made on the 14th day of August, 1867, fixing the daily allowance at the sum of fifty cents per diem. Doubtless the Court supposed there was a law of this State, or at -least a special law, applicable to this County, authorizing the Court to make that order. But so far as the Court is aware at present no such Act of Assembly exists. "When this order of Court was made by my predecessor, Judge Jordan, Sheriff Beckley tells me, that the price of provisions was very high ; that he was obliged to pay one dollar and seventy-five cents a bushel for potatoes, and send to Philadelphia for them at that. No doubt the Court thought at that time it was but an act of justice to the officer that he should be paid this amount, and the people of this County no doubt were satisfied with the action of the Court.
    It seems that from that time until the time that the present Sheriff now claims, the Sheriffs were uniformly allowed this amount, fifty cents per diem, by the County without objection. But whilst this is so, we cannot see that an order of Court, or the act of the County Commissioners in paying more than the amount fixed by law, makes legal the plaintiff’s claim in this case.
    Therefore for the present I charge you, that all the Sheriff of this County has the right to receive for the boarding of prisoners is twenty-five cents per day, providing the Court makes an order fixing that amount.
    The bill and the receipt upon it in evidence shows that the Sheriff has received the whole amount of his bill, less the sum of $1,280:85. A bill was made out at the rate of fifty cents per day, the County Commissioners refused to pay at that rate, and deducted from it the sum of fifteen cents per day, allowing the Sheriff the sum of thirty-five cents per day, and the Sheriff having received pay for the boarding of the prisoners at the rate of thirty-five cents per day, if by the law he is not entitled, and was not at the timo to receive more than twenty-five cents per day, it follows, of course, that he has been paid in full.
    Therefore we instruct you to find a verdict in favor of the defendant.
    The verdict was for the defendant. Strine then moved for a new trial, but the Court refused a new trial in the following opinion per
    Rockefeller, P. J.
    The only question in this case is whether the act of 11th of April, 1856, P. L. 314 has become obsolete, at least as to Northumberland County. That it was overlooked by the Court in 1867, is clear, and the Commissioners of the County have disregarded it ever since. The order was made and practice continued about ten years before the puesent claim arose. On the 29th of March, 1819, 7 Sm. L. 228, the Legislature enacted a law providing for the compensation of auditors. That law was never adhered to in practice in the Courts of this State. And says Woodward, Justice, in Porter’s Appeal, 6th Casey-498, “it seems it was overlooked by the Supreme Court in the case of Baldwin’s Estate, 4 Barr 248, and perhaps in other cases.” Yet in Porter’s Ap>peal it was decided that the act was 'not obsolete. This was a case of nonuser and overlooking by the Courts of a statute, for forty years. Compensation for board of prisone Is is part of the officers emoluments of office and when fixed by law, neither the County Commissioners or Courts have any power to change it. Because the same officer and his-predecessors in office have for a few years been allowed more than the amount fixed and limited by law, is, we think, no reason why the County is to continue payment of such excess. There was a time just after the war when perhaps the rate of compensation as fixed before the war, was unjust and insufficient. But now provisions are low again. In 1865, P. L. 39, 1866, P. L. 88,1867, P. L. 31 and April 1,1868, P. L. 52, the Legislature increased the fees of County officers twenty per cent.., but in each year, the time fixed for such in creases was limited to one year. Doubtless that was to meet the wants and requirements of the times for the time being.
    
      I cannot say therefore, that the act of 1856 is obsolete and invalid, and is not the law in this County, notwithstanding all that has been done by the Court aud County Commissioners. In the case of Wright, surviving partner of Wright,'deceased, vs. Crane, 13 S. & R,, 417, decided in 1825; the Supreni) Court held, that an act passed the. 22d May, 1722, is not obsolete. That act was more than one hundred years old. Chief J ustice Tilghman says:. “It must bo a very strong case to justify the Court in deciding, that an act standing in the statute book, unrcpoaled, is obsolete and invalid.” ' This remark is quoted by the late Chief Justice Woodward in the ease of Porter’s Appeal. It seems that it is only, “when from a change of times and manners, an ancient sleeping statute would do great mischief if suddenly brought into action. When a long practice, inconsistent with it, has prevailed, and especially where, from other and later statutes, it might fairly be inferred, that in the apprehension of the legislature the old one was not in force, that a statute can be regarded as obsolete. I do not think this is the case with the act of 1856. It cannot be said that a practice for ten years is a long practice. It cannot be said that its provisions are unsuited to the present times, with wheat at the prison door at 75 cents per bushel; potatoes, &c., in proportion. However, such, perhaps, was not the ease when the plaintiff’s claim accrued in the present case, but we are now considering the question of an ancient statute obsolete on account of nonuser, a change of times, manners, &c. I am of opinion, that unless an act of assembly can be found changing the law of 1856, as to this County at least, the plaintiff will have to be content with what he has already received, which is' more than the law allows.
    The motion for a new trial is overruled.
    G. & J. N. Hill, Esqs. for plaintiff in error
    argued that the act of 1856 was unconstitutional, and cited: Norman vs. Heist, 5 W. & S. 171; Calder vs. Bull, 3 Ball. 386; Commonwealth vs. Maxwell, 27 Pa. 444; Vanhorne vs. Dorrance, 2 Ball. 312; Commonwealth vs. Mann, 5 W. & S. 415.
    
      T. H. Purdy and L. H. Case, Esqs., contra,
    argued that the act of 1856 is constitutional, and cited: Apple vs. Crawford County, 14 W. N. C. 322; Jefferson County vs. Slagle, 66 Pa. 202.
   The Supreme Court affirmed the judgment of the Common Pleas on May 18, 1885, in the following opinion:

Per Curiam.

We have no doubt whatever- that the sum to be allowed a eritf for the boarding of prisoners may be fixed by general law. Such an act is not in conflict with the Constitution, nor can it be superseded by any order of Court. The Court therefore committed no error in instructing the jury to return a verdict in favor of the defendant.

Judgment affirmed.  