Jefferson County v. Truss

• Decision Date: 06 December 1888
• Parties: JEFFERSON COUNTY v. TRUSS ET AL.
• Court: Alabama Supreme Court

5 So. 86

85 Ala. 486

JEFFERSON COUNTY v. TRUSS ET AL.

Supreme Court of Alabama

December 6, 1888

Appeal from city court of Birmingham; H. A. SHARPE, Judge.

Bill for injunction, filed by the county of Jefferson against S R. Truss and others. The bill was dismissed for want of equity, and complainant appeals.

Hewitt, Walker & Porter, for appellant.

T N. McClellan, for appellees.

SOMERVILLE J.

The purpose of the bill, which was dismissed by the chancellor for the want of equity, is to enjoin the sheriff of Jefferson county from enforcing an order of the probate judge of that county, made by the direction of the governor of Alabama under the authority conferred by section 4591 of the present Code of 1886. This order, made on April 25, 1888, declares a certain contract made between one James M. Lovelace and the county of Jefferson, the complainant in the present bill, under which Lovelace then held the county convicts of said county, to be annulled, and adjudges that said convicts be removed from the place where they were at labor on April 9, 1888, and from the control of said Lovelace, their hirer. The record shows that the order has been made in strict accordance with every requirement of the statute. It is made to appear that the board of inspectors of the state convicts had officially reported to Gov. Seay that these particular convicts, who had been duly sentenced to hard labor for the county of Jefferson, should, in their judgment, be removed from the place where they were then at labor, and from the control of said Lovelace, to whom they were then hired. Upon the faith of this report, the governor issued an order, as directed by the statute, instructing the probate judge of Jefferson county to remove these convicts from such place, and to annul the contract under which they were hired. The action of the probate judge is merely a strict obedience of this executive order, which is mandatory in its character. It is insisted by appellant's counsel that this order is void, on the ground that section 4591 of the Code, under which it was made, has no application to Jefferson county, in view of certain special legislation by which this hiring to Lovelace was authorized. The section of the Code, upon a proper construction of which this case turns, is as follows; the portions of it more applicable to this case being put in italics, for the purpose of more ready reference: "4591. When convicts are sentenced to hard labor for the county, and hired out by the court of county commissioners, it shall be the duty of the inspectors of state convicts to visit such convicts whenever they shall deem it necessary; and they shall rigidly scrutinize and inquire into the treatment and management of such convicts, and shall report to the judge of probate, in writing, the condition and treatment of such convicts. No contract shall be made by such court for hiring county convicts, without a stipulation therein that the contract shall end if the bond, in the opinion of the judge of probate, becomes insufficient, or if any convict is treated cruelly or inhumanly by the hirer or his employe. Whenever the board of inspectors shall notify the governor that convicts, who have been sentenced to hard labor for the county, should be removed from the place where they are at labor, or from the control of the person who has them hired, it shall be his duty to order the probate judge of the county where said convicts were convicted to remove them from such place, or to annul such contract, as the case may be; and any probate judge neglecting or refusing to obey such order shall be liable to impeachment and removal from office, as provided for in other cases." Crim. Code 1886, § 4591.

The convicts in question were undoubtedly county, as distinguished from state, convicts, having been duly sentenced to hard labor for the county. They had also been "hired out by the court of county commissioners," although employed by the hirer, Lovelace, to work the public roads, under the contract which he had made with the county officials to prosecute this work for a stipulated compensation and for his own private gain. They were none the less hired out by the county because hired out under contract to work certain public roads of the county. It was presumptively the duty, therefore, of the board of inspectors, to visit these convicts thus hired out, to inquire into their treatment and management, and to make a report as to these matters to the probate judge of Jefferson county; and also to notify the governor as to their best judgment, in reference to the propriety of removing them from the place where they were at labor, owing to unhealthfulness or other good reason, or from the control of Lovelace, unless it is shown that this general law has no application to Jefferson county, by reason of its repugnancy to special legislation applicable to this county. Two special acts are relied on to support this contention,-the act approved February 17, 1885, (Acts 1884-85, pp. 709, 710,) and the later act of February 18, 1887, (Acts 1886-87, pp 818-821,)-both of which relate to the working of the public roads in Jefferson county by contract, with the use of the county convicts sentenced to hard labor for that county. The former act provided for the letting out to contract, by the court of county commissioners, of the work on certain public roads in the county, and authorized the court, in their discretion, to hire said convicts to the contractors who might undertake the work. The latter act made it mandatory on the court of county commissioners to employ all male convicts, sentenced to hard labor for the county, to work on the public roads of the county. It also authorized them to appoint "a superintendent of public works," whose duty it is, among other things, to faithfully carry out the orders of the commissioners' court; to see that the convicts labor efficiently; that they have proper food, clothing, shelter, and medical attention, and are not overworked or maltreated; and generally to exercise a superintendence over the work and the convicts. It is also made the duty of the county commissioners to see that these convicts are well fed, clothed, and humanely treated, and to this end each one of them is required to visit the convicts at least once in every 30 days. Acts 1886-87, p. 818. The maltreatment of any convict, either by the superintendent,...