State ex rel. Greaves v. Henry

• Decision Date: 05 March 1906
• Citation: 87 Miss. 125,40 So. 152
• Court: Mississippi Supreme Court
• Parties: STATE OF MISSISSIPPI, EX REL. J. B. GREAVES, DISTRICT ATTORNEY, v. JOHN J. HENRY, WARDEN OF THE PENITENTIARY

40 So. 152

87 Miss. 125

STATE OF MISSISSIPPI, EX REL. J. B. GREAVES, DISTRICT ATTORNEY, v. JOHN J. HENRY, WARDEN OF THE PENITENTIARY

Supreme Court of Mississippi

March 5, 1906

FROM the circuit court of, first district, Hinds county, HON DAVID M. MILLER, Judge.

The state of Mississippi, suing upon the relation of J. B Greaves, district attorney, appellant, was plaintiff in the court below; Henry, warden of the penitentiary, appellee, was defendant there. The court below sustained the defendant's demurrer to plaintiff's petition for a mandamus and dismissed the suit, and plaintiff appealed to the supreme court.

The object of the suit was to compel the warden of the penitentiary to remove all state convicts from Sandy Bayou, a plantation leased by the state from Horace J. McLaurin, and to place and keep them, on a farm owned by the state. This suit was begun after, and in consequence of, the dissolution of the preliminary injunction issued in the suit of The State on the relation of James K. Vardaman, Governor, v. Henry Warden of the Penitentiary, et al., and which injunction was dissolved by the supreme court. See Henry, Warden, et al., v. State, ante, 1 (s.c., 39 South Rep., 856). The averments of the bill in equity in the first case were practically the same as those of the petition in this case. Counsel requested the court to pass upon the following questions: First--Is the board of control beyond the power of the courts in respect to the subject-matter of the contract in question? Second--Has the board of control the power to work convicts on leased lands, and is the contract in question one of leasing of land or one of hiring of convicts? Third--The contract being already made, is it valid under the averments of the petition? The facts are otherwise fully stated in the opinions.

Affirmed.

J. A P. Campbell, for appellant.

Convicts are, under the constitution, permitted to be worked on public roads or other public works, or public levees, or tilling the soil on state farms, or manufacturing. This is exclusive of every other disposition of them. The legislature may place them on state farms, not on private farms. They may be employed, under state supervision and the officers and employes of the state, on public works, or public levees, or on state farms, but never on a private farm. The language of the constitution and all its implications plainly mean that, and nothing else.

The penitentiary ordinance of the convention did not change the constitution in any respect. It was to further its purpose and aid in effectuating it. To hold otherwise would impute folly to the convention. The constitution was framed for permanency. The ordinance was to aid in carrying it into effect as to state farms. It must be so interpreted, and not as modifying any of the specific provisions of art. 10. The expression, "or some other system," in the ordinance, means something within the terms of the constitution--as, for instance, manufacturing instead of farming, or working on public roads or other public works, or on public levees. It certainly did not mean to undo what the convention had done by the emphatic language of art. 10.

The constitution plainly forbids the working of convicts anywhere except in the penitentiary, as it existed and was known to the convention, or out of it on public roads or other public works, or public levees, or state farms. Its prohibitions and permissions are limited to these and exclude employment on any private farm. No ingenuity can torture the language of art. 10 so as to permit employment of convicts elsewhere than as stated, without shocking every logical mind, as it seems to us.

Grant that the constitution is permissive to the legislature as to the establishment of state farms, it is indisputable that its prohibitions and permissions to the legislature must govern it. It must be true that no convict can ever be leased or hired or worked anywhere except on public roads or other public works, or on public levees, or on a state farm, or at manufacturing. The penitentiary at Jackson was known to the convention. It refused to dispose of it. It contemplated its continuance as a home for convicts from which they could be sent forth for work on authorized public works unless farms were provided to take its place.

Laws 1900, p. 63, provides for the purchase of another farm or farms, and that, "when purchased, they shall be occupied as soon as practicable with as many convicts as may be necessary to occupy and manage the same" (as soon as practicable, in fact, and not as the board of control may determine); "shall at once take such steps as may be necessary to properly prepare said land for the use and occupation of convicts;" "when so occupied shall be cultivated and shall be opened up for cultivation as rapidly as practicable" (showing that the fact that not land enough is open for cultivation by all is no ground for keeping convicts elsewhere, and that it was to be occupied by them and prepared for cultivation as rapidly as practicable). Of course the convicts might be placed on any state farm, but not on a private one for any purpose.

Contemporaneous construction and official action and legislation and codification by eminent lawyers, who were members of the convention, go for nothing in the face of plain provisions of the constitution.

It will not do to permit the constitution to be violated because of the action of legislatures or eminent lawyers or governors, auditors, or other officials. Many instances of erroneous action by legislatures, officials, and even courts, may be cited, which this court corrected after years. The clause of sec. 3201 of the code, which authorizes leasing farms, is violative of the constitution, and all leasing void; and, tried by the act of 1900, as well as the constitution, placing convicts on any farm except a state farm is unauthorized and prohibited. It matters not what the contract may be, none but a state farm can be the place for employment of convicts, if the constitution is to govern.

J. B. Greaves, district attorney; Alexander & Alexander, and George B. Power, on the same side.

A lease is defined to be "a contract for the possession and profits of lands and tenements, on the one side, and the recompense of rent or property, on the other; or, in other words, a conveyance to a person for life, years, or at will, in consideration of a return of rent or other recompense." 18 Am. & Eng. Ency. Law, 597.

What is a hiring? It is defined to be "a contract by which the use of a thing or labor or services about it are stipulated to be given for a reasonable compensation expressed or implied." 2 Kent's Com., 585; 7 Am. & Eng. Ency. Law, 300.

It would seem that a glance at the resolution of the board in the light of these definitions would be sufficient to show its true character. The contract, looking to its language, is "that the board of control will Work with the convicts for the year 1906 Sandy Bayou plantation." This is also the language of the contract. To recur to the definition, the contract is one by which the labor or services of seventy convicts are stipulated to be given about a certain plantation. If we omit the word "leased" in the fourth section of the contract, where it is stated, "in addition to the land leased and furnished" by McLaurin, there is not one clear earmark of a lease in this contract. It is well settled that the use of the word "rent" or "lease" is not controlling as to the character of the contract. 1 Wash., Real Property, 365, 605.

Where there is a division of crops between the owner and the cultivator of land, uncertain in amount, or where there is no clear demise, or where there is no exclusive occupation agreed upon, but services to be paid for in part of the crops, the occupant is not even a tenant in common, but merely a cropper. Taylor, Landlord & Tenant, sec. 24a and note.

Joint occupancy, or occupancy on shares, is not a tenancy. Where landowner contracts with one to crop his land and to give him a part of the crop after paying all advances, the latter is a mere employe. Taylor, Landlord & Tenant, 24.

A tenant to be such must have an interest in or possession of the premises. Moser v. Lower, 48 Mo. App., 85; Alwood v. Ruckman, 21 Ill. 200.

The cases of Schlicht v. Callicott, 76 Miss. 487 (S.C., 24 So. 869), and Alexander v. Zeigler, 84 Miss. 560 (S.C., 36 So. 536), are at first glance in seeming conflict with several previous Mississippi cases and with almost universal current of authorities of other states, but when these two cases are examined it will be seen that they do not in any way involve the distinction between a contract of tenancy and a contract of hiring.

In order to constitute a lease the occupant must have an interest in the soil. 1 Wash., Real Property, 365, 496; 1 Hill, Real Estate, ch. 16, sec. 24; 7 N.W. (Minn.), 142.

"If the agreement amounts only to an agreement on the part of the one who is to do the labor, to take charge of and manage the land on shares, it is not regarded as a lease, but more in the nature of payment of services rendered by the crop raised." 1 Wash., Real Property, 365, 604. "Where the owner of the farm was to furnish teams and fodder for them, seed and farming implements, and the other party to do the work, cultivate and secure the crops, and these were to be divided between them in certain shares, or proportions, it was held to constitute a tenancy in common of the crops, not a demise of the premises." 1 Wash., Real Property, 365, 605. To the same effect, see 18 Am. & Eng. Ency. Law, 173.

Frank Johnston, also on same side.

That the courts may prevent the execution of illegal acts and contracts of municipal boards, and boards of a similar character, is a doctrine of law...