In re Burrow

• Decision Date: 02 January 1892
• Citation: 18 S.W. 170,55 Ark. 275
• Parties: In re BURROW
• Court: Arkansas Supreme Court

18 S.W. 170

55 Ark. 275

In re BURROW

Supreme Court of Arkansas

January 2, 1892

APPEAL from Pulaski Chancery Court, DAVID W. CARROLL, Chancellor.

N. F Lamb for petitioner.

J. W House for Craighead County.

John M Moore for respondent.

MANSFIELD J. COCKRILL, C. J., did not sit in this case.

OPINION

MANSFIELD, J.

The petitioner, A. V. Burrow, was convicted of a misdemeanor before a justice of the peace of Craighead county, and, having failed to pay the fine and costs adjudged against him, he was committed to the jail of that county, pursuant to a provision of the criminal code. Mansf. Dig., sec. 2318. Thereafter an order was made by the Craighead county court, under sections 1226 and 1227 of the Digest, directing that the county prisoners be hired out, and directing the publication of an advertisement for proposals to keep and work them. In the same court an order was subsequently entered, reciting that the advertisement had been duly published, and that no proposals had been received in response to it; that the court had been unable to make a contract with any person in the county for keeping the prisoners, and that it was "to the best interest of the county to make a contract for that purpose with a contractor of some other county." The order then proceeds with an additional recital in the following language: "And J. C. Cross, the county contractor of the county of St. Francis, comes here in open court and proposes to enter into such contract, which is in words and figures as follows." Following this last recital the record sets out in full a contract purporting to be made "between the county court of Craighead county * * * of the first part, and James C. Cross, a county contractor of St. Francis county, * * * of the second part," and containing the stipulations required by the statute in contracts for the keeping and working of county prisoners. The contract is signed by the county judge and by Cross as contractor, and is followed by an order of the court approving it. Under this contract and by the court's direction, the sheriff of Craighead county carried Burrow, as one of the county prisoners, to the city of Little Rock, and there delivered him into the custody of Cross, who it is admitted resides in Pulaski county. Burrow afterwards filed in the Pulaski chancery court his petition for habeas corpus, alleging that he was illegally restrained and confined by Cross under the contract referred to, and that Cross was not, at the time the contract was made, the county contractor or lessee of the county prisoners of St. Francis county, or of any other county of this State. The writ was issued, and Cross filed a response thereto, stating that he held and detained Burrow by virtue of the commitment of the justice before whom Burrow was tried and under his contract with the county. He also stated that, at the time that contract was executed, he was working the convicts of St. Francis county under a contract between himself and the judge of the county which the county court had since approved and ratified. The contract with St. Francis county and the order ratifying it are made part of the response. The cause was heard on the petition, response and exhibits, and this appeal is prosecuted from a judgment remanding the petitioner to the custody of the respondent.

The appellant contends that the contract under which he is held is void, and that he is therefore entitled to be released from the custody of the respondent. The ground on which the invalidity of the contract is insisted upon is that the appellee Cross was not capable of becoming the lessee of the prisoners of Craighead county for the reason that he was neither a resident of that county nor the contractor for keeping the prisoners of any other county.

Section 1226 of the Digest is as follows: "The county court is hereby authorized and empowered to make a contract with some responsible person or persons for the maintenance safe-keeping and working of persons committed to the county jail, and for the purpose of making such contract and for carrying out the provisions of this act said county court shall have full and plenary powers." Section 1227 provides that when it shall be deemed advisable to enter into such contract a notice that proposals for keeping the prisoners will be received shall be given by advertisement in some newspaper printed in the county, and if no such paper is published there, then by posting notices at ten public places in the county for thirty days. The same section directs that a contract shall be closed with the person who shall undertake the duties imposed by the statute upon terms most advantageous to the county, and requires such person to enter into a bond to the State conditioned that he will faithfully comply with the terms of his contract. But it expressly provides that the county judge may reject all proposals thus received. By section 1238 it is made the duty of the sheriff to examine into the condition of prisoners in the custody of the contractor, and to see that they are treated with humanity and furnished with sufficient clothing and wholesome food, and that they receive proper medical attention. And if he believes there is a default in this respect, he is required to file written charges against the contractor in the county clerk's office on which a summons is to be issued, warning the contractor to appear and show cause why the contract should not be cancelled. Section 1239 provides that the court shall investigate such charges and may render judgment cancelling the contract or make such further order for securing the proper treatment of the prisoners as may seem to be proper. And section 1242 empowers the county judge to institute like proceedings against the contractor upon his own knowledge or the information of others. Section 1245 contains the following provision: "In case the county court is unable to make a contract with any person in the county, as provided in section 1226, the court may contract for the work of its prisoners with the contractor of any other county, according to the provisions of this act." These sections are all provisions of the same act, and are to be...