Ex Parte Jackson

• Decision Date: 04 January 1937
• Docket Number: 32403
• Court: Mississippi Supreme Court
• Parties: Ex Parte Jackson

171 So. 545

177 Miss. 509

Ex Parte Jackson

No. 32403

Supreme Court of Mississippi

January 4, 1937

(In Banc.)

1 STATUTES.

Statute imposing mandatory duty on public officers to do certain thing beneficially concerning interests or rights of persons under their charge and authorizing such officers to procure certain facilities or means to perform thing enjoined, is also mandatory that they shall procure or avail themselves of such means.

2 PRISONS.

Convict sentenced to imprisonment in county jail and payment of fine and costs, being required by statute to work each day that he is able, is entitled to credit of one dollar for each day on which he is physically able and willing to work until full payment of fine and costs, though county board of supervisors fails to furnish him work and facilities or means therefor, as required by statute (Code 1930, secs. 4059, 4062, as amended by Laws 1936, chap. 269, secs. 1, 2; secs. 4060, 4061, 4063-4065).

3. PRISONS.

Code sections associated with section containing provision, stricken by amendatory act, that no convict shall be credited with wages while in jail and not at work held to entitle convict to credit of one dollar on his fine and costs for each day spent in jail when ready, able, and willing to work, regardless of title of amendatory act, "An Act to amend [such section] so as to credit convicts with time served in jail" (Code 1930, sec. 4058; secs. 4059, 4062, as amended by Laws 1936, chap. 269, secs. 1, 2; secs. 4060, 4061, 4063-4065; sec. 4067, as amended by Laws 1932, chap. 246). ETHRIDGE, J., dissenting.

HON. R. W. CUTRER, Chancellor.

APPEAL from the chancery court of Adams county HON. R. W. CUTRER, Chancellor.

Habeas corpus proceeding by Ned Jackson against the sheriff of Adams county for discharge from further confinement in the county jail. From a judgment sustaining the petition and ordering petitioner's discharge from custody, respondent appeals. Affirmed.

Affirmed.

Webb M. Mize, Assistant Attorney-General, for appellant.

The decision in this case will depend upon a construction of chapter 98 of the Mississippi Code of 1930 and the amendments made to said chapter by the Laws of 1932 and the Laws of 1936. Section 4058 of the Code of 1930 is as follows: "4058--HOW SENTENCES ENFORCED.--Every convict sentenced to imprisonment in the county jail, or to such imprisonment and the payment of a fine, shall be committed to jail, and shall remain in close confinement for the full time specified for imprisonment in the sentence of the court, and in like confinement until the fine, costs and jail fees be duly paid, unless discharged in due course of law, or as hereinafter provided. But no convict shall be held in continuous confinement under a conviction for any one offense for failure to pay fine and costs in such case for a period of more than two years."

Our construction of the last sentence under the above quoted section is that a prisoner would have to remain in jail, for a period of two years, unless the fine and costs were paid. Section 4059 of the Code of 1930 was amended by chapter 269 of the Laws of 1936. This section, as amended, provides that it is the imperative duty of the board of supervisors to require a convict, sentenced to imprisonment in the county jail and the payment of a fine and costs, to work out the sentence on the county farm, or on some public work of the county.

The prisoner had a remedy by which he could have been provided with a means to work out his fine and costs. Sections 4059 and 4062 of the 1930 Code, as amended, make it mandatory on the board of supervisors to provide a means and method whereby a prisoner may work out his fine and costs. Mandamus lies to compel a board of supervisors to perform a duty imposed on them by law.

Leflore County v. State, 70 Miss. 769, 12 So. 904; Montgomery Co. v. State, 71 Miss. 153, 15 So. 28.

The prisoner in the case at bar admittedly made no formal demand on the board of supervisors, or any other authority, for a means of working out his fine and costs. He should have made this formal demand and if the authorities refused to provide him with work, then his remedy was to proceed by mandamus under section 2348 of the Mississippi Code of 1930.

Monroe County v. McDaniel, 68 Miss. 203, 8 So. 645; Morris v. Waldrup, 151 Miss. 553, 118 So. 621.

We respectfully submit that the court below erred in holding that the prisoner was entitled to one dollar per day credit toward his fine and costs while being in jail and not at work, and we submit that under section 4058 of the Code of 1930 the appellee was not entitled to his discharge and would not be entitled to his discharge until he had served a period of two years in jail.

W. A. Geisenberger and J. H. Keyer, both of Natchez, for appellee.

Appellant states that, regardless of the amount of fine and costs, said convict should remain in jail for a period of two years. This does not seem to be a reasonable construction of section 4058, and it is submitted that it is not the intent of the same. Just suppose that a person were fined ten dollars and costs and even though he had made diligent effort to procure the money with which to pay the fine and costs, had been unable to do so, can it be advanced that this man would have to remain in jail for the full period of two years, particularly in instances as in this one where the board of supervisors of a county had totally failed to provide any way in which a convict could work out said fine and costs. The construction as placed on this section by the appellant is not a reasonable construction and is not the view that this court would take of same in this appeal.

Under the law of this state, and particularly section 4059, Code of 1930, and the amendments thereto, it is provided that it is the imperative duty of the board of supervisors in each county in this state to require each convict sentenced to imprisonment in the county jail and the payment of costs, or to payment of fine and costs, to work out the sentence on the county convict farm or on the public roads or other public works of the county. The board of supervisors of the county have no discretion in this matter. The law does not say that they shall or they will or that they may require or work county convicts, but says that it is their imperative duty to do so.

We submit that under the circumstances of this case and under the law of this state, it was not a duty imposed on said appellee under any of the laws of this state to make any formal demand upon any officer in the county to provide means whereby he could have worked out and have credited to him a per diem credit to apply toward the payment of fine and costs. The board of supervisors and the other officers of the county failing in their duty towards appellee and providing no means whereby he could work out his fine and costs, they then should have allowed him the credit given him by law to apply towards the payment of his fine, regardless of whether or not any demand was made, and regardless of whether or not he was required to do any work.

Section 4067, Code of 1930.

It was the clear intent of the Legislature and of this law as amended to allow credit to convicts for wages during the time they remain in jail and not at work; and we submit that under this section as amended, appellee was entitled to the dollar a day credit to apply on his fine and costs regardless of whether or not he was required to do any work, even though he remained in jail.

Morris v. Waldrop, 151 Miss. 553; Parker v. Tullos, 150 Miss. 680, 116 So. 531; Lee v. Hudson, 165 Miss. 756, 144 So. 240.

Griffith, J., Ethridge, J., dissenting.

OPINION

Griffith, J.

The petitioner was convicted in the circuit court of Adams county of an assault and battery, and was sentenced to serve thirty days in jail and to pay a fine of one hundred dollars and costs, which costs were twenty-three dollars and fifteen cents. The petitioner was put in jail on November 27, 1935, in said county, and there continuously remained. On June 2, 1936, he filed his petition in habeas corpus, alleging that he had then been in jail for more than a sufficient number of days, not including the thirty- day sentence of imprisonment, to pay his fine and costs at one dollar per day; that he had not been given work by the county, as required by law, and was and is unable to pay his fine, except by such work. He averred that he was entitled to the credit provided by statute on his fine and costs, which, as said, if allowed, would be more than sufficient to pay all of his fine and costs, and that he was, therefore, entitled to a discharge from further confinement. The case was heard by the chancellor on an agreed statement of facts, wherein those above stated were admitted to be true, and that the board of supervisors of the county "has failed to provide a means or method by which a county convict is given an opportunity to work," the agreement stating no reason why the board had so failed. The chancellor sustained the petition and ordered the convict discharged from custody, from which judgment an appeal is brought to this court.

Section 4059, Code 1930, amended by chapter 269, sec. 1, Laws 1936 in a particular not here involved, provides as follows. "It is the imperative duty of the board of supervisors in each county in this state to require each convict sentenced to imprisonment in the county jail and the payment of a fine and costs, or to imprisonment and payment of costs, or to payment of fine and costs, to work out the sentence on the county convict farm or on the public roads or other public works of the county, or in a contiguous county, as herein provided." Sections 4060 and 4061 authorize and direct the board of supervisors,...