State Board of Charities and Corrections v. Hays

• Decision Date: 05 November 1920
• Citation: 227 S.W. 282,190 Ky. 147
• Parties: STATE BOARD OF CHARITIES AND CORRECTIONS v. HAYS ET AL. STATE BOARD OF CHARITIES AND CORRECTIONS v. COMBS ET AL.
• Court: Kentucky Court of Appeals

227 S.W. 282

190 Ky. 147

STATE BOARD OF CHARITIES AND CORRECTIONS v. HAYS ET AL.

STATE BOARD OF CHARITIES AND CORRECTIONS v. COMBS ET AL.

Court of Appeals of Kentucky.

November 5, 1920

Rehearing Denied Jan. 28, 1921.

Appeal from Circuit Court, Franklin County.

Separate actions by Nelson Hays and others and J. O. Combs and others against the State Board of Charities and Corrections for writs of mandamus. Judgments for plaintiffs, and defendant appeals. Reversed.

Charles I. Dawson, Atty. Gen., and W. T. Fowler, Asst. Atty. Gen for appellant.

Hazelrigg & Hazelrigg, Guy Briggs, and Hobson & Hobson, all of Frankfort, for appellees.

CLARKE J.

These two actions by different groups of prisoners against the board now in control of the state penitentiaries seek by mandamus to enforce the mandatory provisions of section 7, c 36, Acts of 1916, being subsection 7 of section 3828a, Ky St. Supp.

For defense upon the merits the board in both actions contends that the section of the act involved is unconstitutional for many reasons, and was repealed by a later act of the Legislature. Before considering these questions, one of practice will be disposed of briefly.

The petitions state only a cause of action for mandamus, but plaintiffs pray not only that a writ of mandamus be awarded them and other prisoners for whom they sue, but also "for a judgment on behalf of them for all arrearages, for their costs, and all proper relief." Defendants insist that there is a misjoinder of actions, one for a mandamus, and the other for money judgments, and that the court erred in overruling their motion to elect. A complete answer to this complaint is found in the fact that no cause of action is stated, and no judgment could have been entered upon a default, for any sum of money in behalf of any plaintiff. There is therefore no misjoinder, and the mere fact that plaintiffs prayed for more than they were entitled to recover upon the facts alleged in their petition is immaterial.

The act in question is said to be unconstitutional because:

(a) It relates to more than one subject.

(b) It is an encroachment upon the pardoning power of the Governor.

(c) The money necessary to make it effective is not appropriated, but, if so, the act did not receive the number of votes necessary under the Constitution for its passage.

(d) It delegates to the prison board legislative powers.

(e) It confers special and exclusive emoluments upon individuals not in recognition of public service, and diverts taxes collected by the state to other than public purposes.

(a) Section 51 of the Constitution provides in part:

"No law enacted by the General Assembly shall relate to more than one subject, and that shall be expressed in the title."

The act in question relates in its first six sections to working convicts outside of prison walls and upon the public roads, while section 7 provides for the payment of all convicts, whether employed outside of or within prison walls, of not less than 5 nor more than 15 cents per day for their labor. The title specifically covers every provision of the act, so that the act, if violative of section 51 of the Constitution, is wholly void. Hind v. Rice, 10 Bush, 528. This is necessarily true because one part of the body of the act cannot be saved rather than the other where both are covered alike by the title, as may be done where a portion of the body of the act alone is violative of this section of the Constitution. In the former case to hold one portion of the act rather than the other valid would require of the judiciary the selection of the subject-matter of the act upon a mere guess and without legislative guide to determine which, if either, of the two subjects would have been considered alone by the Legislature. Upon the other hand, where the body of the act contains a departure from a valid title, such portion of the act may be declared void, and all that is pertinent to the title selected by the Legislature may be enforced by the judiciary as a legitimate exercise of legislative authority under its own selection of the subject-matter of the enactment. In other words, the selection of the subject-matter of an act is a legislative, and not a judicial, prerogative.

We must therefore in this case either declare the act wholly void or wholly valid so far as section 51 of the Constitution is concerned, and hence cannot restrict our view alone to section 7 thereof, which provides for payment of all convicts in small part for their labor.

Thus considering the act, we find that by section 8 the board is given full power to provide means and methods of employing all convicts retained within prison walls, and by section 9 is empowered to lease a farm or farms and work the prisoners thereon. Hence the act deals comprehensively in detail with where and how all prisoners shall be worked both inside and outside of prison walls, and not simply of working them upon the public roads. It treats of working some prisoners on the roads, others on farms, and others within prison walls, and provides for the payment of all, whether they labor on the roads of the state, or upon farms, or within prison walls, a small per diem for their labor.

Certainly this is one comprehensive act dealing with the one subject-matter of prison labor wherever performed; and, unless labor and remuneration therefor are unrelated matters, the act treats of but one subject. Surely labor and pay therefor are not unrelated matters that must be dealt with in separate acts. Whether the Legislature had the power to pay convicts for their labor is another matter to be hereinafter determined, but, if it had that power, it clearly could make the provision for paying all convicts therefor in an act which provided the method and means of employing all convicts.

We are therefore of the opinion the act is not violative of section 51 of the Constitution.

(b) Nor is it an encroachment upon the powers of the Governor conferred by section 77 of the Constitution to remit fines and forfeitures, commute sentences, grant reprieves and pardons, etc. That this is true is apparent from the fact that the Governor has no power whatever to grant pay to convicts for their labor or withhold same or prescribe methods or means for their labor, and may still, notwithstanding this act, exercise as fully as before his every power to remit forfeitures, commute sentences, grant reprieves and pardons for any and all of the convicts. This act only affects prisoners to the extent they have not received executive clemency and subject to any such clemency that may be conferred upon them at any time.

(c) It is next contended the act violates section 230 of the Constitution in so far as it provides pay for convicts because there is no appropriation of money for the purpose. Section 230 provides:

"No money shall be drawn from the state treasury, except in pursuance of appropriations made by law."

Hence, if it is true, as contended, that there is no appropriation of the funds necessary to pay convicts for their labor, so much of the act as provides therefor is void. However, in section 7 of the act it is provided:

"At the end of each month the board of Prison Commissioners shall certify to the Auditor of Public Accounts the amount due each prisoner for that month, and he shall draw warrant on the State Treasurer for the amount so certified."

A similar provision for the payment of pensions to disabled Confederate veterans was held in Bosworth v. Harp, 154 Ky. 559, 157 S.W. 1084, 45 L. R. A. (N. S.) 692, Ann. Cas. 1915C, 277, to be an appropriation within the meaning of this provision of the Constitution; and so, too, must we hold here.

It is also contended under this head that, if the act does carry the necessary appropriation, it is yet invalid because it did not receive the necessary majority of the entire membership of both branches of the Legislature as required by section 46 of the Constitution. For proof of this assertion we are asked to look to the journals of the House and Senate. But this we cannot do. The enrolled bill was signed by the proper officers and approved by the Governor, and cannot be impeached by the journals. This is the settled law of this state and supported by the weight of outside authority, though not unanimously. Lafferty v. Huffman, 99 Ky. 80, 35 S.W. 123, 18 Ky. Law Rep. 17, 32 L. R. A. 203; Commonwealth v. Shelton, 99 Ky. 122, 35 S.W. 128, 18 Ky. Law Rep. 30; Commonwealth v. Hardin County Court, 99 Ky. 190, 35 S.W. 275, 18 Ky. Law Rep. 113; Wilson v. Hines, 99 Ky. 228, 35 S.W. 627, 37 S.W. 148, 19 Ky. Law Rep. 233; O. & N. Ry. Co. v. Barclay's Adm'r, 102 Ky. 20, 43 S.W. 177, 19 Ky. Law Rep. 997; Taylor v. Beckham, 108 Ky. 300, 56 S.W. 177, 21 Ky. Law Rep. 1735, 49 L. R. A. 258, 94 Am. St. Rep. 357; Waller v. Murray, 53 S.W. 25, 21 Ky. Law Rep. 783; Stone v. Dispatch Co., 55 S.W. 725, 21 Ky. Law Rep. 1475; Zimmerman v. Brooks, 118 Ky. 101, 80 S.W. 443, 25 Ky. Law Rep. 2284; Vogt v. Beauchamp, 153 Ky. 67, 154 S.W. 393. See, also, 25 R. C. L. 897; Atlantic Coast Line R. Co. v. State, 135 Ga. 545, 69 S.E. 725, 32 L. R. A. (N. S.) 20, and note.

(d) It is next insisted that the act is invalid because it delegates to the prison board authority to fix the amount within certain limits that shall be paid to convicts for their labor. Before attempting to pass upon this contention, we deem it expedient, if not necessary, to consider briefly the status of convicts and the character of the proposed payments, whether they are gratuities, as contended by appellants, or wages, as contended by appellees. Originally at the common law felons were without civil rights or capacities of any kind. They could not own or inherit property during life nor be the means...