State ex rel. Horner v. Atkinson

• Decision Date: 28 June 1941
• Citation: State ex rel. Horner v. Atkinson, 177 Tenn. 660, 152 S.W.2d 620 (Tenn. 1941)
• Parties: STATE ex rel. HORNER v. ATKINSON, Sheriff.
• Court: Tennessee Supreme Court

152 S.W.2d 620

177 Tenn. 660

STATE ex rel. HORNER v. ATKINSON, Sheriff.

Supreme Court of Tennessee.

June 28, 1941

Error to Circuit Court, Hickman County; Wallace J. Smith, Judge.

Mandamus proceeding by the State of Tennessee, on the relation of Nicus Horner, against Walter V. Atkinson, Sheriff, for an order on the sheriff to deliver to the relator, from day to day, for work on the county roads, such prisoners as were confined in the county jail. To review a judgment awarding the writ of mandamus, the sheriff brings error.

Judgment affirmed.

Logan Beasley and James R. Brown, both of Centerville, for plaintiff in error.

C. B Stephenson and W. L. Pinkerton, both of Centerville, and Cornelius, McKinney & Gilbert, of Nashville, for defendant in error.

CHAMBLISS Justice.

A petition for mandamus was filed by the relator Horner, a workhouse guard in Hickman County, appointed by the County Highway Commission, seeking an order on the sheriff to deliver to him, from day to day, for work on the County roads, such prisoners as were confined in the County jail serving out fines or sentences. The trial Judge overruled a demurrer and granted the writ. The defendant sheriff appeals.

The rights of the parties depend primarily on construction of an act passed in 1927, Priv. Acts Chapter 196, providing for a Board of Highway Commissioners of three for Hickman County and a County Road Superintendent, with the usual powers of supervision. Power was conferred to work the inmates of the County workhouse on the County roads. By Subsections 3 and 4 of section 8 of the Act the duties and powers of the Road Superintendent were thus set forth:

"He shall have the management and control, and subject to his orders, all laborers, whether hired labor, Work House Prisoners, or free hands, and wagons and teams, and may require any or all of such labor to work on any road, bridge, or culvert in the County, as may be deemed best and advisable by him; provided however, no free labor or road hand, or wagon and team shall be required to do work or duty on any road in the county outside of the district in which said free hands reside, as to the free hands or labor, or the district where said wagon and team is located, as to the wagon and team.

"He shall have the right and authority to appoint or employ as many overseers or foremen to aid and assist him in carrying out the purposes of this Act, as deemed advisable by him, who shall, at all times, be subject to his orders and be under his control."

And by Section 20 it was provided:

"Be it further enacted, That it shall be the duty of the County Road Superintendent to work all able-bodied workhouse prisoners on the public roads, or in the quarries, and at the crushers, on the bridges and on the culverts in said counties, until such prisoners have worked out their sentences, fine and costs.

"He shall call for said prisoners for work each morning at the jail or workhouse, and receive from the Sheriff as keeper of the workhouse all able bodied workhouse prisoners, and at the close of the day re-deliver them to the Sheriff, and during the time they are being removed from the jail or workhouse, and until they are returned in the evening, said prisoners shall be in the exclusive custody of said County Road Superintendent, or some overseer or foreman appointed or employed by him, or guard, and shall be responsible for them until they are redelivered to the Sheriff, provided that when the number of County convicts is so few that it would in the judgment of the Road Superintendent be impracticable to take them out and work them, considering the costs incident thereto, he will not be required to work prisoners at all.

"The purpose of this Act in regard to the County convicts is only to provide a method for working them on the county roads, bridges, culverts and in the quarries, and in all other respects the general law in regard to county convicts is not to be affected, and nothing in this Act is to be construed as altering it other than hereinabove stated."

Code, Section 12004, et seq., provides that any county which has not provided the lands and buildings for a separate workhouse, "may, through its quarterly court, declare its jail to be a workhouse." The petition alleges that this step had been taken in Hickman County, so that the jail is also the County workhouse. The provisions of the Act of 1927 above quoted are, therefore, applicable, specifically those requiring the sheriff to deliver daily "all able-bodied workhouse prisoners" into the custody of the County Road Superintendent for road work under his supervision and direction.

However, the present controversy appears to center around Chapter 610 of the Private Acts of 1939, which expressly provides (1) that the Highway Commission shall have exclusive power to appoint all guards for the prisoners working on the roads, and (2) that said appointments shall be approved by the sheriff of the County. This act reads:

"Section 1. Be it enacted by the General Assembly of the State of Tennessee, That in all counties having a population [applicable only to Hickman County] *** the Highway Commission of such county shall have the exclusive power to appoint any guard or guards necessary for the working of prisoners upon the public roads of the county. Provided, however, that no guard or guards shall be appointed by the Highway Commission unless and until their appointment is approved by the sheriff of the county.

"Section 2. Be it further enacted, That any guard or guards appointed and employed by the Highway Commission to supervise the working of prisoners upon the public roads of the county shall be capable of performing the duties of foreman and overseer on behalf of the Highway Department, and shall be men of sound judgment, approved by the sheriff as capable of just and humane treatment of prisoners and the efficient working of such prisoners.

"Section 3. Be it further enacted, That the compensation of any guard or guards so employed by the Highway Commission and approved by the sheriff be fixed by the Highway Commission and paid by them in like manner as other employees of the Highway Commission."

The controversy is as to the right to name the guard or guards for the prisoners while being worked on the roads by the County Road Superintendent. The petitioner, Horner, was elected, or appointed, (to succeed himself) by the Hickman Highway Commission at a meeting held on August 10th, 1940 "to work the prisoners for the next two years." His appointment was duly approved by the Sheriff, and he proceeded with the discharge of his duties. September 1st thereafter, the defendant, Atkinson, having been elected to the office of Sheriff, took office, and refused to recognize Horner as the appointee of the Commission, and has refused to turn over to him the prisoners eligible for road work, insisting (1) that...