Ossie v. State

• Decision Date: 06 July 1906
• Citation: 147 Ala. 152,41 So. 945
• Parties: OSSIE v. STATE.
• Court: Alabama Supreme Court

41 So. 945

147 Ala. 152

OSSIE v. STATE.

Supreme Court of Alabama

July 6, 1906

Appeal from Criminal Court, Jefferson County; S. L. Weaver, Judge.

"To be officially reported."

Habeas corpus proceedings by Charles Ossie.From an order denying discharge, petitioner appeals.Reversed and remanded.

George A. Sullivan and Charles L. Bromberg, for appellant.

Massey Wilson, Atty. Gen., and Tillman, Grub, Bradley & Morrow, for the State.

TYSON J.

The appellant sued out a writ of habeas corpus before Hon. Samuel L. Weaver, associate judge of the criminal court of Jefferson county, complaining that he was unlawfully imprisoned or restrained of his liberty by the Sloss-Sheffield Steel & Iron Company, hereafter called the "Sloss Company."On the hearing he was remanded to the custody of the Sloss Company, from which order this appeal is prosecuted.

The case-made is that appellant was convicted and sentenced in Mobile county to hard labor, and under a contract with the authorities was hired and delivered to the Sloss Company, and was in its custody under said contract working out his unexpired sentence when the writ was sued out.Pretermitting all consideration of the insistence that the contract was not made by the board of revenue and road commissioners because not fully and completely shown by the minutes of the board and that the bond never went into effect because not actually approved by the judge of probate, we will consider only the construction of the statute(section 4525 of Code of 1896) in respect to the annulment of the contract of hiring, as in our opinion it is decisive of the cause.After the delivery of the petitioner to the contractor, the judge of probate of Mobile county annulled the contract on two distinct grounds One, that the bond "is insufficient"; the other that the convicts had been treated inhumanly; and also by general order not specifying any cause.One of the orders however, was made after the writ was sued out, but before the trial--one on May 14th, the day of the date of the writ; the third on the 30th of April.After such annulment the board of revenue and road commissioners of Mobile county hired the convicts, including petitioner, to a third party.The trial judge, on the objection of the state and of the Sloss Company, excluded all evidence of the annulment of the contract by the judge of probate.This ruling of the court is sought to be justified on several grounds: First, that the orders were in two instances made by the judge after the institution of this proceeding; second, that the annulment on the ground of the insufficiency of the bond does not show that it proceeded on the bond having become insufficient since it was given, but on the ground that it was then insufficient; and, third, that the judge was without authority to annul contracts as to convicts worked out of the county on the ground of ill treatment except on the order of the Governor, and that no such requisition was here shown.

We shall consider the last point first.There can be no doubt of the general aversion of courts to summary proceedings, and especially where they are entirely ex parte.But necessity on principles of public policy may reasonably call for the application of such remedies, and, where they relate entirely to executory contracts, the dangers of application to property rights is minimized.When a continuous contract is entered into there can be no injustice in either or both parties reserving an unqualified right to put an end to the contract in the future at pleasure.So, here, the welfare of the convicts subjected to penal servitude, of whom the state is guardian as it were, could well dictate the policy of reserving the right to terminate the contract for the employment of state criminals.Such matters, like many others, cannot await the tedious termination of ordinary adversary legal proceedings.The question then is: First, whether this right was reserved in this instance to be exercised by the judge of probate; and, second, whether it has been duly exercised?

As to convicts not sentenced to hard labor for the county contracts for their hire may be terminated summarily and wholly ex parte, under section 4475andsection 4509 of the Code of 1896, by the president of the board of inspectors, for cause, on the approval of the Governor or by the Governor "without assigning any reason therefor."As to convicts sentenced to hard labor for the county, the system is somewhat different from that applicable to convicts in the penitentiary.As to the latter the county authorities have no authority or responsibility, but as to the former there is a dual case.Jefferson County v. Truss,85 Ala. 486, 5 So. 86.Section 4525 of the Code of 1896 prescribes that the inspectors of state convicts shall visit county convicts whenever they shall deem it necessary, and shall rigidly scrutinize and inquire into their treatment and management, and report to the judge of probate, in writing, as to their condition and treatment.Then follows the provision that the contract of hiring by the county authorities must contain a provision "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 employés."Then follows another provision that: "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 work, or from the control of the person who has them hired, it shall be his duty to order the judge of probate of the county where said convicts were convicted, to remove them from such place, or to annul such contract as the case may be," etc.It thus appears that as to county convicts the president of the board of inspectors has no power to annul contracts, and that the Governor has the power only...