People Ex Rel. the Nat'l Cigar Co. v. Dulaney

• Decision Date: 17 November 1880
• Citation: 96 Ill. 503,1880 WL 10138
• Parties: THE PEOPLE ex rel. The National Cigar Companyv.ROBERT DULANEY et al.
• Court: Illinois Supreme Court

96 Ill. 503

1880 WL 10138 (Ill.)

THE PEOPLE ex rel. The National Cigar Company

v.ROBERT DULANEY et al.

Supreme Court of Illinois.

Filed at Ottawa Nov. 17, 1880.

OPINION TEXT STARTS HERE

This is an application for a writ of mandamus, by the National Cigar Company against the Commissioners of the Illinois State Penitentiary at Joliet, to compel the performance of a contract for the hiring of convict labor. The material facts appear in the opinion of the court.

Mr. E. F. BULL, and Mr. S. K. DOW, for the relator.

Mr. JAMES K. EDSALL, Attorney General, for the respondents.

Mr. JUSTICE SCOTT delivered the opinion of the Court:

This is an original suit in this court. It is a petition in the name of the People of the State, on the relation of the National Cigar Company, to compel the Commissioners of the State Penitentiary, located at Joliet, to perform a contract or contracts which, it is alleged, relators have with such commissioners for convict labor.

Two contracts are set forth in the amended petition. One is dated July 12, 1876, and is between the Commissioners of the Penitentiary of the first part, and Ashmond Fox, George A. Head and Aurelius E. Stevens of the second part, and by that agreement the parties of the first part obligated themselves to manufacture, with convict labor, from a minimum of fifteen thousand to a maximum blank number mould made or hand made cigars per day, for each and every day for a term of five years from the date of the contract, and in consideration thereof the party of the second part agreed to pay therefor, on or before the 10th day of each month during the existence of the agreement, for all mould made cigars manufactured during the next preceding month, at the rate of two dollars per one thousand cigars, and for all hand made cigars so manufactured, at the rate of three dollars per one thousand cigars, and to furnish, at their own expense, all foremen and instructors, material and machinery to manufacture such articles.

Substantially, this was the contract between the parties, but the written agreement sets forth, with particular definiteness, what each party was to do and furnish in the performance of the contract. It will not be necessary to an understanding of the case, to state the minor matters contained in the agreement. By consent of the acting commissioners, the parties named as the party of the second part afterwards assigned their interest in this contract to the relator--the National Cigar Company--and that company, with their consent, entered upon the further performance of the agreement instead of the original parties thereto.

The second contract is dated December 23, 1878, is between the then acting Commissioners of the Penitentiary and the National Cigar Company, and by its terms obligated the commissioners to furnish the National Cigar Company, for the term of five years, beginning on the first day of January, 1879, with the labor and services of two hundred convicts, to be employed in the manufacture of cigars. It was stipulated in one clause of the agreement, that of the convicts to be employed under this contract, at least forty per cent should be of the average mental and physical capacity, and should have not less than two years' time to serve, provided a sufficiently large number of convicts sentenced for two or more years should be received, to be detailed at the same proportion under other existing contracts.

On the part of the cigar company it was agreed twenty-four cents per day per convict should be paid on or before the 10th day of each month, during the existence of the agreement, for each and every day's labor performed by such convicts in the next preceding month. This agreement, like the former one, provided what each party should do and furnish in its performance.

As respects the first contract, respondents admit its validity and their willingness to perform it, so far as it is practicable for them to do it. Waiving, for the present, the question made as to the jurisdiction of this court to award a mandamus to compel the execution of such a contract, there can be no occasion for a writ to compel respondents to do that which they admit, on the record, they are willing to do without coercion. The law will not do a useless thing. It will be observed the original petition only set up the contract of December, 1878, and asked to have the Commissioners of the Penitentiary compelled to furnish relator with the labor of two hundred convicts of the kind and quality called for and specified in that agreement. The original answer made the question, whether respondents were under any obligation to perform that contract. Two principal reasons were assigned: First, the contract was not written according to the understanding of the parties to it; and second, it was not made in pursuance of any advertised letting of convict labor, as the law requires.

The agreement, as written and executed, contains a clause which provides that all convicts whose labor was to be furnished under the contract should be what “are generally denominated able-bodied men, and of the average capacity of convicts,” and should be selected by the warden “with reference to their adaptation to the business of the agreement.” No such understanding was within the contemplation of the parties, and the presence of that clause in the written agreement is accounted for in this way:--In attempting to reduce the agreement to form, a blank was used which had a printed paragraph containing the provision cited, and by mistake and inadvertence it was signed without erasing that paragraph. Written in the blank used was this provision: “That of the whole number of convicts employed under this contract a proportion of at least forty per cent shall be of the average mental and physical capacity, and shall have not less than two years' long time to serve.” That was the agreement of the parties.

The two provisions are inconsistent. The prayer of relator, as we have seen, is, that the commissioners shall be compelled to assign to relator two hundred convicts of the “kind and quality” called for and specified in the agreement. In this respect the petition is uncertain and indefinite, and it can not be known what specific act is sought to be coerced. In regard to the other objection made by respondents to executing the agreement of December 23, 1878, they say, in their answer, they were advised no contract for convict labor, except temporary arrangements until...