State ex rel. Leidigh v. Holcomb

• Decision Date: 09 January 1896
• Docket Number: 8057
• Citation: 65 N.W. 873,46 Neb. 612
• Parties: STATE OF NEBRASKA, EX REL. GEORGE W. LEIDIGH, WARDEN OF THE STATE PENITENTIARY, v. SILAS A. HOLCOMB, GOVERNOR, ET AL
• Court: Nebraska Supreme Court

65 N.W. 873

46 Neb. 612

STATE OF NEBRASKA, EX REL. GEORGE W. LEIDIGH, WARDEN OF THE STATE PENITENTIARY, v. SILAS A. HOLCOMB, GOVERNOR, ET AL

No. 8057

Supreme Court of Nebraska

January 9, 1896

ORIGINAL application for mandamus to compel the members of the state board of purchase and supplies to meet with the relator and make estimates, and purchase provisions and supplies for the penitentiary. Writ allowed.

WRIT ALLOWED.

Darnall & Kirkpatrick, for relator:

Reference was made to the following cases: White v. City of Lincoln, 5 Neb. 505; City of Tecumseh v Phillips, 5 Neb. 305; Ives v. Norris, 13 Neb 254; Miller v. Hurford, 11 Neb. 381; Dawson County v. McNamar, 10 Neb. 276; Trumble v Trumble, 37 Neb. 340; People v. Denahy, 20 Mich. 349; Weigel v. City of Hastings, 29 Neb. 379; State v. Nomland, 3 N. Dak., 427; State v. Bartley, 41 Neb. 277; State v. Wallichs, 12 Neb. 407, 15 Neb. 457, 609; State v. Board of Public Lands & Buildings, 7 Neb. 42; State v. Bacon, 6 Neb. 286; In re Board of Public Lands & Buildings, 18 Neb. 340, 37 Neb. 425; Lawson v. Gibson, 18 Neb. 137; State v. Babcock, 21 Neb. 599; Stone v. Green, 3 Hill [N. Y.], 472; State v. Maccuaig, 8 Neb. 215; State v. Howe, 28 Neb. 618.

A. S. Churchill, Attorney General, and George A. Day, Deputy Attorney General, contra, cited: State v. Stout, 7 Neb. 89; State v. Lancaster County Bank, 8 Neb. 218; In re Appropriations, 25 Neb. 665; Van Horn v. State, 46 Neb. 62; State v. Whittemore, 12 Neb. 252; State v. Ream, 16 Neb. 681; Stricklett v. State, 31 Neb. 674; Smails v. White, 4 Neb. 353; Sovereign v. State, 7 Neb. 409; People v. Mahaney, 13 Mich. 481; State v. Bemis, 45 Neb. 724; Lewis v. Stout, 22 Wis. 236; Commonwealth v. Green, 58 Pa. 226; Board of Supervisors v. Heenan, 2 Minn. 281; Bright v. McCullough, 27 Ind. 223; Indiana C. R. Co. v. Potts, 7 Ind. 681; City of St. Louis v. Tiefel, 42 Mo. 589; Curry v. Elvires, 3 Vroom [N. J.], 363; State v. Squires, 26 Iowa 345; State v. County Judge of Davis County, 2 Iowa 280.

OPINION

POST, C. J.

This is an original application for a writ of mandamus, on the relation of George W. Leidigh, as warden of the state penitentiary, to compel the respondents, as members of the board of purchase and supplies, to meet with the relator as such warden and make an estimate of the supplies necessary for the maintenance of said penitentiary for the current quarter, to advertise for bids therefor, and make contracts for such supplies in accordance with the provisions of the act approved February 15, 1877. (Compiled Statutes [ed. 1895], sec. 2, art. 12, ch. 83.) It is by the act mentioned made the duty of said board, consisting of the governor, commissioner of public lands and buildings, secretary of state, treasurer, and attorney general, at least one month previous to the first days of January, April, July, and October of each year, to meet with the warden of the penitentiary and superintendent of each of the asylums or other public institutions and determine the supplies necessary for such institutions for the quarter next ensuing, and which shall be contracted for by said board in the manner therein prescribed after advertisement in a newspaper having a general circulation in the state. It is further provided that no bids shall be considered unless accompanied by the bonds of the proposed contractors in such amount and with such conditions as the board may prescribe, and that all supplies not furnished in accordance with the provisions of said act shall be purchased under the written instructions of said board. The respondents, except the governor (who refuses to join in resisting the relator's demand) having waived the issuance and service of the alternative writ, have filed a pleading in the nature of an answer, in which it is in substance alleged that the board of public lands and buildings, in the exercise of the authority conferred by the constitution and statutes of the state, on the 3d day of September, 1895, leased to A. D. Beemer, until the last day of the next session of the legislature, all of the convict labor in said prison, together with the grounds, yards, shops, and machinery pertaining thereto; that one of the considerations for said lease was the agreement by the said Beemer to suitably feed and clothe the convicts confined in said prison. It is further alleged that said lessee has been since the date named, and now is, ready and willing to furnish all of the supplies required for said prison and the convicts therein as by his lease provided, but that the relator has ever since said date refused, and still refuses, to accept from said lessee any supplies, or to permit him to employ any of said convicts. The lease above mentioned is here set out at length:

"This agreement, made and entered into at Lincoln, Nebraska, on this 3d day of September, A. D. 1895, by and between the state of Nebraska and H. C. Russell, J. A. Piper, A. S Churchill, and J. S. Bartley, for and on behalf of said state, as the board of public lands and buildings of the state of Nebraska, parties of the first part, and A. D. Beemer, of Beemer, Cuming county, Nebraska, party of the second part,

"Witnesseth, that the said parties of the first part hereby grant, let, and lease to A. D. Beemer all of the property inventoried by the appraisers and umpire and purchased of William H. Dorgan for the use and benefit of the Nebraska state penitentiary, also the labor of the prisoners confined in the penitentiary of the state of Nebraska, and all the grounds, shops, yards, and buildings and outbuildings connected with the same, and the appurtenances thereunto belonging (not hereinafter reserved), and all property belonging to the state, and the machinery for running the several branches of industry and used for the care and maintenance of the convicts therein until the last day of the session of the next session of the legislature, and agree to pay to the said A. D. Beemer the cost of feeding, clothing, and necessary expense for the care of said prisoners, and to pay the salaries of the warden, deputy warden, surgeon, and chaplain, turnkeys, usher, night watch, cell-house keepers, keeper in kitchen, and all necessary guards for the care and control of said prison and prisoners, for which the said first party agrees to pay not to exceed forty cents per day for each convict. In consideration whereof the said A. D. Beemer is to secure and furnish all possible labor for the convicts confined in said prison and to keep said convicts employed at the best possible wages, and to use his best energy and endeavor to keep them so employed, and to conduct the business of the prison in an energetic and economical manner, and to make all necessary improvements in said prison that the board of public lands and buildings may direct, to keep all the buildings, shops, yards, and grounds in a good condition, and to preserve the same from all possible damages. That the said A. D. Beemer is to have and exercise exclusive right to assign convicts to trades and occupations, to the running and management of all machinery belonging to the state and under his control, and shall see that the food furnished said prisoners is wholesome, and the clothing furnished is suitable to the comfort and health of the prisoners. For all purposes between the parties to this contract ten (10) hours shall be regarded as constituting a day's labor.

"The said A. D. Beemer, party of the second part, shall make a report on the 1st and 15th days of each month to the chairman of the board of public lands and buildings of all moneys received and paid out by him, of all his acts and doings connected with his management and control of said prison and prisoners, and to pay over to said chairman all moneys in his hands on the 1st day of each month when required by the board, less $ 250 per month; provided that not more than $ 3,000 shall be retained in any one year; and provided further, that said Beemer shall keep and have a competent book-keeper, to be paid out of the $ 3,000 retained by him. He shall keep an inventory of all property coming into his hands as lessee and turn over or account for the same at the expiration of his lease in as good condition as the same now is, reasonable damage by use, wear and tear, loss by fire, the acts of God, and public enemies excepted. He shall [have] the full right to control and manage all property and machinery necessary for the employment, care, and maintenance of the convicts.

"The employment of outside labor by the lessee shall be subject to the approval of the board of public lands and buildings.

"The state reserves the right to make any and all temporary or permanent improvements and buildings pertaining in any manner to the penitentiary or any part or portion thereof, and the right to use any of the prisoners, grounds, and buildings free of charge during the time of construction.

"This contract shall take effect and be in force from and after the 3d of September, A. D. 1895, and the execution of a bond by said A. D. Beemer, with good and sufficient surety to the satisfaction and approval of the board of public lands and buildings of the state of Nebraska, in the penal sum of one hundred thousand ($ 100,000) dollars, conditioned for the faithful performance by the said A. D. Beemer of all the stipulations and agreements on his behalf in this contract contained. The state reserves for the use of the officers and guards the following rooms, to-wit: Rooms used by the warden in 1894, two rooms for the use of the deputy warden, the warden's office and library, and necessary rooms for the guards, said rooms to be in the main building.

"Either party reserves the right to cancel and annul said contract at any time, upon giving thirty (30) days' notice. The...