The opinion
Mr. Justice Scholfield delivered the opinion of the Court:
We are unable to distinguish this case, in principle, from Seibert v. Logan County, 63 Ill. 156 , where the facts were the same that they are here. The decision there is expressly upon the ground that the appointment of a jailer is decretionary with the sheriff, and, when appointed, he is but the deputy of the sheriff, and accountable to the sheriff. (See, also, Union County v. Patton, 63 Ill. 458 .) The statute affecting this question has undergone no material change since that case was decided. See 1 Gross’ Comp. 1873, chap. 55, sec. 2; 2 Starr & Curtis, chap. 75, secs. 2, 3, p. 1372.
Under the statute, (2 Starr & Curtis, chap. 75, secs. 2, 3, supra,) “keeping the jail” is an official duty of the sheriff, and when this is established, since the act of the deputy is, in legal estimation, only the act of his principal, and the sheriff can only be compensated therefor out of the amount fixed by the county board for his compensation, with the amount of his necessary clerk hire, stationery, fuel, and other expenses, (Const, art. 10, see. 10, Marion County v. Lear, 108 Ill. 343 ,) it is impossible that the sheriff can be entitled to recover from the county a distinct amount for compensation paid by him to .his deputy for keeping the jail,—that is, for doing only what, in legal contemplation, he does himself, by virtue of his office.
Counsel, however, insist, that under the language of section 24, chapter 75, (2 Starr & Curtis,) the cost of “keeping the jail” is made a county charge. But this does not assume to modify or repeal sections 2 and 3 of the same act, and clearly, therefore, must have reference to the necessary manual acts of mechanics or laborers to preserve the jail in the condition in which the jail is required by law to be,—and this is one of the well recognized senses of the word “keeping.” But “keeping,” in the sense contemplated by sections 2 and 3, means to have in custody or charge, and so includes that kind of serTice for which fees are allowed the sheriff by different clauses ■of section 19 of chapter 53, (1 Starr & Curtis, p. 1128 et seq.,) ■and which go to increase the fund from which his compensation is to be paid.
The judgment is affirmed.
Judgment affirmed.