
    Dakota County v. Charles M. Borowsky.
    Filed February 4, 1903.
    No. 12,237.
    1. Sheriff: Prisoners: Services: Guarding: Compensation: Recovery erom County. A sheriff who has, either in person or by deputy, guarded prisoners in the county jail, is, if the services were actually necessary, entitled to recover from the county compensation f.or such services at the rate of $2 per day.
    2._; -: -: -: -; -: County Board: Judgment oe Siieriee: Question eob Court, The right to determine the necessity ior such services before they are rendered, does not belong' to the county board. Neither is the judgment of the sheriff upon, the matter conclusive. Ultimately the question is for the courts.
    
      Syllabus by court; catch-words by editor.
    
      3. Specific Fees: Sheriff's Eight. The specific fees provided for in section i>, chapter 28, Compiled Statutes, 1901 (section 9031, Annotated Statutes), pertain to the office of sheriff, and’ the sheriff is entitled to them whether they were earned by himself or his deputy.
    4. Appeal Vacates Decision In Toto. An appeal by a claimant from a decision of the county board upon a claim presented for adjustment and allowance vacates the decision, even though it be in part favorable to the claimant.
    5. Decision an Entirety. When a claim is by the county board allowed in part and rejected in part, the claimant must deal with the decision as an entirety. He can not accept the part that is in his favor and appeal from the remainder.
    Erkok from the district court for Dakota county. Appeal from an order of the hoard of county commissioners disalloAving certain claims of a sheriff for fees. Tried on appeal before Graves, J., without a jury. Judgment for claimant.
    
      Reversed.
    
    
      William P. Warner, for plaintiff in error.
    
      Daniel Sullivan j Mell O. Bech and Thomas F. Griffin, contra.
    
   Sullivan, C. J.

Borowsky, who was sheriff of Dakota county in 1899, presented to the county hoard of said county two claims for sendees rendered by Mm in his official capacity. One was a claim of $60 for guarding prisoners; the other a claim of $483, part of which was for guarding prisoners and part for services as jailer. The hoard rejected the first claim in toto. It also rejected the charge in the second claim for guarding prisoners, hut alloAved the charge for services as jailer. From both orders Borowsky appealed, but he received from the county clerk, and still retains, a Avarrant drawn in his favor for the amount allowed him as jailer’s fees. In the district court the ac-lions Avere consolidated and tried Avithout a jury. The validity of plaintiff’s claim for services rendered in guarding prisoners and the legal consequence of receiving and retaining the warrant covering the charge for jailer’s fees, were the only questions raised by the pleadings and contested at the trial. There Avas a general finding in favor of the plantiff and upon this finding judgment Avas rendered.

In disposing of the case, the only points we shall consider are those AAhich counsel have discussed. The first contention of the county attorney is that the eAÚdence does not show an actual necessity for a prison guard. We are inclined to think it does. The jail was insecure and prisoners had previously escaped. The suggestion that the persons confined in the jail were not charged with serious crimes is not without weight, but we can not regard it as being decisive of the question. It is the duty of a sheriff to prevent the escape of prisoners in his custody whether they are charged Avith great or small offenses. If the services rendered were actually necessary, the plaintiff is entitled to recover the specific compensation fixed by the statute. The services, Avhich consisted for the most part in occupying a room in the court-house next to the jail, Avere neither arduous nor exhausting, but it can not be said that they were Avithout value. Those Avho are actively engaged are not the only servants Avorthy of their hire. “They also serve Avho only stand and Avait.” The jail guard did not exert himself, but he Avas ready for action; his time was given to the public, and it is quite probable that his nearness to the prisoners had a restraining influence upon them. At any rate the trial court was warranted in finding, as it did, that the fees charged for guarding prisoners had been earned. The plaintiff was under no legal obligation to consult with the county board before incurring the expense in question. The duty of preventing a jail delivery was his, and if he did not err in his conclusion as to the necessity for a guard, he earned, and became entitled to recover, the fees claimed. The contention that there can be no recovery because Ihe deputy who earned the fees liad not assigned them to Borowsky is manifestly without merit. The, fees pertain to the office; they belong to the sheriff; the statute makes them his. The deputy had no claim upon them and had, therefore, nothing to assign. The sheriff was entitled to the statutory fees and the county was bound to pay them, regardless of the compensation received by the deputy for his services. The cases cited by the county attorney — Phœnix Ins. Co. v. McEvony, 52 Nebr., 566, and Porter v. Booth, 47 N. W. Rep. [S. Dak.], 960 — are, it seems to us, entirely irrelevant.

The final argument for a reversal of the judgment is that the plaintiff, by accepting the warrant in satisfaction of the charge for jailer’s fees, lost the right to prosecute an appeal from the decision of the county board disallowing part of the second claim. This question was considered and decided in the recent case of Weston v. Falk, 66 Nebr., 198. It was there held that an order like the one here in question is indivisible, and that a claimant can not accept the part of it that is in his favor and appeal from the remainder. Section 37, chapter 18, article 1, Compiled Statutes, 1901 (section 4455, Annotated Statutes), provides that the claimant “may appeal from the decision of the board to the district court.” The next section gives the right of appeal to any taxpayer, and section 39 provides that “such appeal shall be entered, tried, and determined the same as appeals from justice courts.” It is entirely clear from these provisions of the statute that the right of appeal given to dissatisfied claimants and taxpayers is the right to appeal from the whole decision, not from part of it. If the appeal in this case had been taken by a taxpayer, its effect upon the order of the county board would, perhaps, be more readily perceived by counsel for plaintiff.

The judgment of the district court is reversed and the cause remanded for further proceedings.

Reversed and remanded.

Note. — Appeal—Vacation of Decision Ipso Facto. — As to effect of appeal in vacating' judgment, Minneapolis Harvester Works v. Hedges, 11 Nebr., 46, 48; O’Leary v. Iskey, 12 Nebr., 136, 137; Creighton v. Keith, 50 Nebr., 810, 814; Jenkins v. State, 60 Nebr., 205.

Fees of County Officers — Ministerial Function of Board. — Where the compensation for services rendered for the county is definitely fixed by law, the audit of the same and [the] drawing- a warrant therefor. by the board, arc merely ministerial duties, unattended with the exercise of any official discretion, and therefore, in such case, the board can not make such compensation any greater or any less than that fixed by the law. Opinion by Gantt, C. J. Kemerer v. State, 7 Nebr., 130. Judge Barnes, in an opinion filed October 5, 1904, points out the distinction between the judicial and ministerial functions of county boards so clearly that this heretofore puzzling question ought to give no further trouble to attorneys or clients. Maurer v. Cage County, not yet reported. — W. F. B.  