State v. Banks

• Citation: 66 Miss. 431,6 So. 184
• Court: United States State Supreme Court of Mississippi
• Decision Date: 06 May 1889
• Parties: THE STATE, USE, ETC., v. R. W. BANKS ET AL

6 So. 184

66 Miss. 431

THE STATE, USE, ETC., v. R. W. BANKS ET AL

Supreme Court of Mississippi

May 6, 1889

FROM the circuit court of Lowndes county, HON. LOCK E. HOUSTON Judge.

The opinion of the court contains a statement of the case.

Foote &amp Foote, for appellant.

1. The law required the county contractor to settle with the clerk of the board of supervisors, who is county auditor, and obtain his receipt warrant, to pay the amount due by him into the county treasury, and he is to pay the money accordingly. On. doing this he is entitled to credit. In no other way can he get it. Code 1880, §§ 3158, 3161. This is a wise provision. It prevents speculation and holds the officer to a prompt and strict account. The plea of payment does not show a compliance with this statute, and therefore the demurrer to it should have been sustained.

2. As to the convicts who were pardoned, it may be that the contractor was entitled to credit after the pardons were granted; but this is questionable. Certainly the plea should show whether labor had been performed by these prisoners prior to being pardoned. the defendant was in any event liable for the time that these prisoners actually labored.

3. The record shows that the prisoners, Johnson and Davis, were carried to Meridian, in another district, where they escaped from the contractor. But no matter where or how they escaped the contractor is not relieved of liability. Only the death of a prisoner, without the contractor's fault, relieves him. Code, §§ 3152, 3153. As in the case of a sheriff, he is excused by the escape of a prisoner only where it is caused by the act of God or other irresistible force. Shattuck v. The State, 51 Miss. 575. The statute charges the contractor in case of every prisoner delivered to him. Death of the prisoner, only, relieves him from this liability. Code, § 3167. Tiffs is the only exception given by the statute, and it negatives all others. To relieve the contractor in any other case, is to violate the letter and the policy of the law.

M. R Butler, district-attorney, on same side.

Reversed and Remanded.

Orr & Sims, for appellees.

It is the duty of a sheriff to keep his prisoner in jail; it is the duty of a county contractor not to keep prisoner in jail. Hence the principle involved in the case of Shattuck v. The State has no application here.

The pardon of some of the prisoners was a contingency by which the contractor was injured, and it is not provided for by the statute. The contract by which Banks took the prisoners was broken by the pardon, and this released him entirely from paying the fine and costs.

The policy of the law is to punish convicts of misdemeanors at small cost to the county, but in a humane manner. the contractor makes his arrangements for keeping prisoners, and it is unjust to him to deprive him of his laborers, and charge him notwithstanding.

The contract is an entirety, and when it is annulled by the pardoning power, it is neither just nor lawful to state an account, and hold the contractor liable for the labor during any part of the time.

Two of the prisoners escaped before rendering any service whatever. The plea which was demurred to sets up that the escape was "forcible," the defendant "using every possible care and caution;" that the prisoners broke jail where they were temporarily confined, and fled. This sets up a good defense, and if such a defense had been made in the Shattuck case, it would have availed the sheriff.

Escapes are contemplated by the statute, and the whole penalty against the contractor in a case like this is given by § 3154 of the code, which provides that he shall be liable for all the expenses of recapture.

If Banks is liable for the fine and costs, he satisfies the record, and the convicts go free. A subsequent contractor, on recapturing the parties, could not work them, for the record would be satisfied.

These escaped prisoners are yet liable to the county for their fines and costs, and, if captured, may be compelled to labor. A construction that would impose the penalty for their crimes on Banks would be monstrous.

The bill of exceptions sets out none of the testimony. The court will presume that the plea of payment was sustained, and that the court below ruled properly. No error is shown in overruling the motion for a new trial, and the judgment should not be disturbed.

Humphries & Sykes, on the same side.

1. In the case of Shattuck v. The State, the court was dealing with a sheriff who was indicted for an escape. The prisoners intrusted to such officers are often felons, dangerous to society, and the sheriff is provided with a jail and guards at the public expense, and is therefore required to safely keep the persons put in his custody. Even in that case the court thought the penalty imposed by the constitution harsh.

No such rule applied to the defendant in this case for the following reasons: He is not a constitutional officer, and he has not been indicted. The law does not impose a similar penalty. Prisoners in his custody are only there for misdemeanors, and it is not the policy of the state to surround them with like safeguards, or to deal so rigorously with them as in case of felons. The contractor has no jail, and may not employ guards at the public expense. A law giving him these would be inexpedient and burdensome to the county. the persons in the custody of the contractor are not of that class considered dangerous to society. A very severe penalty is provided for aiding a felon to escape, because a felon at large endangers society. Not so in cases of persons convicted of misdemeanors. Hence we contend there is no analogy between the case of a sheriff under indictment and this case.

Section 3154, code 1880, provides how a county contractor shall keep his prisoners, and fixes the only penalty for an escape--payment of the expenses of capture and return. Plaintiff below did not proceed under this section, but sought to hold defendant liable for labor that was never performed.

The statute provides that a prisoner shall be compelled to labor for the contractor; that if he escapes he shall be liable to punishment and upon recapture he is still liable to work out his fine and costs. All this contemplates that the fine and costs are to come out of the prisoners, and never out of' the contractor in a case like this. Construing the different provisions of the statute all together, it is the manifest purpose to charge the contractor in the first instance with the fines and costs of all the prisoners, and that he shall be entitled to credit for the fine and cost of prisoners who die and of those who fail to labor for other unavoidable cause not attributable to the negligence of the contractor. It was simply intended to require him to pay for services rendered.

Notwithstanding the credit given, the sheriff is not discharged from further effort...