State ex rel. Davis v. Mortensen

• Citation: 95 N.W. 831,69 Neb. 376
• Decision Date: 11 June 1903
• Docket Number: 13,207
• Parties: STATE OF NEBRASKA, EX REL. EDWARD D. DAVIS, RELATOR, v. PETER MORTENSEN ET AL., CONSTITUTING THE BOARD OF PUBLIC LANDS AND BUILDINGS OF THE STATE OF NEBRASKA, RESPONDENTS
• Court: Supreme Court of Nebraska

95 N.W. 831

69 Neb. 376

STATE OF NEBRASKA, EX REL. EDWARD D. DAVIS, RELATOR, v. PETER MORTENSEN ET AL., CONSTITUTING THE BOARD OF PUBLIC LANDS AND BUILDINGS OF THE STATE OF NEBRASKA, RESPONDENTS

No. 13,207

Supreme Court of Nebraska

June 11, 1903

ORIGINAL application for a writ of mandamus to compel the state board of public lands and buildings to perform a contract for the hiring of convict labor. Writ denied.

WRIT DENIED.

George E. Hager, for relator.

Frank N. Prout, Attorney General, and Charles O. Whedon, contra.

OPINION

SULLIVAN, C. J.

In this case the relator, Davis, seeks by means of the writ of mandamus to compel respondents, who constitute the state board of public lands and buildings, to perform a contract for the hiring of convict labor. Two members of the board Mr. Mortensen and Mr. Folmer, admit the execution of the alleged contract, assert its validity, and say they are ready and willing to comply with its terms. The other two members Mr. Marsh and Mr. Prout, in effect, deny that the contract is valid and insist that, if valid, it cannot be enforced by mandamus. The Lee Broom & Duster Company, a corporation having a prior contract for convict labor, has intervened in the action, on the theory that the allowance of the writ would be prejudicial to its rights. The intervener's contract is in part as follows:

"Articles of agreement made in duplicate and entered into this first day of April, A. D. 1902, by and between E. D. Davis, Warden of the Nebraska State Penitentiary, party of the first part, and Lee Broom & Duster Co., incorporated, of Davenport, Iowa, party of the second part, witnesseth: That said parties agree as follows:

"1. That party of the first part shall furnish to said party of the second part, one hundred and twenty-five (125) convicts, in the Nebraska State Penitentiary, to carry on the broom and whisk-broom business for manufacturing purposes.

"2. That should party of the second part have use for more than 125 convicts, then, at its option, party of the first part shall furnish party of the second part additional convicts not exceeding in number 250, in preference to any other employment of such convicts, save for such work as convicts are now employed in and about the prison, in the performance of menial prison duties."

It can hardly be doubted that by the second clause of this contract the option is given to the intervener and not to the warden, who is described as the party of the first part. It would be an exceedingly awkward and inaccurate use of language to say that the warden shall, at his option, etc. Besides such a construction is, on practical grounds, inadmissible. Give the warden the option and the intervener the right to determine whether it has use for additional convicts, and the clause is completely emasculated.

There are now in the penitentiary 280 convicts, 100 of whom are performing menial prison duties. The others are in the service of the intervener. The contract which the relator is seeking to enforce is as follows:

"This article of agreement made in triplicate copies and entered into this first day of April, 1903, by and between A. D. Beemer, Warden of the Nebraska State Penitentiary, party of the first part, and Edward D. Davis, party of the second part, witnesseth:

"1. That said party of the first part shall furnish to said party of the second party thirty-five (35) convicts now confined in the Nebraska State Penitentiary, to carry on the business of a button manufacturing company.

"2. That during the continuance of this contract no convict assigned to said party of the second part shall be taken away from him and assigned to other trades without the consent of both parties hereto.

"3. That during the continuance of this contract whether or not party of the second part shall be working convicts in excess of this contract or not, no convict once assigned to said second party shall be taken from him and assigned to other work without the consent of the party of the second part.

"4. The said party of the second part shall have the exclusive control of convicts assigned to this contract subject to the rules and regulations and discipline of the Nebraska State Penitentiary.

"5. Convicts who shall be sick or undergoing punishment shall be returned to second party when fit for duty.

"6. A day's labor between October first and April first shall be eight hours and between April first and October first shall be ten hours provided, that when convicts are doing task work, then whenever any convict shall have completed his day's work, if it be before the end of the day's work, it is agreed that he has completed a full day's [work] and payment shall be made by the said second party for the same as a full day's work.

"7. That when any convict is withdrawn from this contract by reason of death or pardon or expiration of time of sentence, the party of the first part shall assign an equal number of other convicts, which shall be selected by said party of the second part from those unemployed.

"8. That the day's labor under this contract shall be each day of the year excepting Sundays and all legal holidays.

"9. The party of the second part shall have the exclusive right to maintain a button factory for manufacturing purposes in said penitentiary with said convict labor.

"10. The party of the first part shall assign to the party of the second part, suitable room, in which to manufacture buttons, to card and prepare them for shipment and furnish steam and heat and power not to exceed one-horse power to each five (5) men employed, which shall be furnished said party of the second part free of charge, but any additional horse power furnished at the request of the second party, shall be furnished at the rate of fifty cents per horse power, per day, over and above the one horse power to each five convicts.

"11. That all work performed under this contract shall be under the supervision of a foreman furnished by party of the second part, and the party of the first part guarantees unto the party of the second part, that all work shall be executed as directed by said foreman, and that under no circumstances will the warden allow prisoners to slight their work or turn out poor careless work; party of the second part shall not be compelled to pay for such slighting of the work, or for careless work so as aforesaid.

"12. That should any convict employed by the party of the second part be unable to learn and master the button trade or should any convict turn out poor work, he shall be transferred and the party of the second part shall have the privilege of selecting a suitable convict from those unemployed to fill his place.

"13. That should any convict employed by the party of the second part be or become unable to perform his daily task on account of sickness, inability or other reason, or that when convicts are first taken to work and are unable to complete their daily task, party of the second part shall pay party of the first part only for that portion of the task or day's work, performed by said convict on that day.

"14. That said party of the first part shall provide necessary guard and keepers for the supervision of the convicts employed under this contract free of expense to the party of the second part, which said guards and keepers shall at all times remain under the official control of the warden of said penitentiary, and are to be selected, retained or discharged by said warden.

"15. Party of the first part shall keep a runner in said shop to perform duties for the state, such as carrying reports, books, etc., to deputy warden's office; gathering and distributing laundry for convicts, carrying around wash water twice a day; cleaning up shops and closets daily and other necessary jobs that the guard may have for them to do, and should the state runner have any surplus time he shall perform similar duties for the party of the second part.

"16. That said party of the second part shall pay to said party of the first part as full compensation for the labor of the convicts employed under this contract, and power to operate the machinery used in the manufacture of buttons, and to properly heat the room occupied by such manufactory in said prison the sum of fifty-five (55) cents per day for each and every convict, which sum shall be received as satisfaction in full except for additional power furnished as provided for in section 10 of this article.

"17. The party of the second part agrees to pay the party of the first part for the labor of convicts hired under this contract on the 10th day of each month succeeding the one in which the labor or service has been performed.

"18. TASK FOR CUTTERS.

"That the daily task on the different grades of buttons shall be as follows:

CUTTING DISKS OR BLANKS OUT OF SHELLS.

16 line

117 OZ

task.

18 line

124 OZ

"

20 line

130 OZ

"

22 line

148 OZ

"

24 line

160 OZ

"

"Provided always that all the cutting of disks or blanks of shell shall be done so that there shall be no waste of good material of shell. The cutting shall be close and no disk or blank shall be cut out of the shell under thickness of three lines, known in button manufacturing rules.

FACING BUTTONS, EXTRA FINE, 45 GROSS TASK.

No. 2

supers

40

gross

task.

No. 3

"

35

"

"

DRILLING.

All 2 holes

60

gross

task.

All 4 holes

50

"

"

"19. All tasks or day's work not herein above mentioned or all new tasks or day's work needed by party of the second part shall be fixed in same proportion as the foregoing tasks by the warden, and party of the second part shall have the right at any time to put in any new or improved machinery, and the warden shall arrange a task satisfactory to the party of the second part to be performed on such machines...