State v. Rev Is, (No. 547.)
| Decision Date | 26 January 1927 |
| Docket Number | (No. 547.) |
| Citation | 136 S.E. 346 |
| Court | North Carolina Supreme Court |
| Parties | STATE. v. REV IS. |
Appeal from Superior Court, Buncombe County; Stack, Judge.
L. E. Revis was convicted of an assault, and he appeals. Reversed and remanded, with directions.
Criminal prosecution tried upon an indictment charging the defendant with an assault upon one Lee Cody, August 16, 1926.
It was shown on the trial:
(1) That the defendant is now, and has been for the past six years, superintendent of the prison camps of Buncombe county.
(2) That all prisoners confined in the prison barracks or prison camps of said county are divided into three classes, based on their conduct, as follows:
This classification is identical with that set out in C. S. 7723, for the governance of penitentiary convicts. As a reward for good behavior, prisoners are entitled to be promoted from a lower to a higher class with progressively larger freedom; and, as evidence of demerit for bad conduct, they aresubject to demission from a higher to a lower class.
(3) That only convicts assigned to Class C under the above rules are subject to corporal punishment as provided by chapter 328, Public Local Laws 1923, and only then 'after all other means of discipline have failed of proper results.
(4) That Lee Cody was convicted of highway robbery, assault, and prison breach, sentenced to the common jail of Buncombe county for a term of 12 months, and assigned to work upon the public roads of said county, and on March 22, 1926, was sent to the prison camp of which the defendant is superintendent.
(5) That on or about July 1, 1926, the said convict, who was strong and able-bodied, well and capable of working, having previously been assigned to Class C, as above designated, became mutinous and unruly, refused to work or labor as he was required to do, refused to obey orders of the guards (used obscene language in the hearing of women travelers on the highway), declined to observe the prison rules, and contended that the superintendent had no right to whip him or to discipline him for his misconduct.
(6) That the rules of the camp, adopted and promulgated by the county board of commissioners, under authority of and agreeable with the provisions of the statute, were well known to the recalcitrant prisoner, and he was duly warned of the results to follow if he continued to persist in his course of mischievous wrongdoing.
(7) That after all other means of discipline had failed, it being apparent that the prisoner, by his unruliness, was determined to test the right of the defendant to whip him, thereby rendering it necessary to do so in order to maintain authority in the camp, the defendant, in strict conformity with the provisions of the statute and the rules adopted in pursuance thereof, proceeded to whip the prisoner privately, in the presence of two persons of good moral character, with a leather strap two feet in length, two inches wide and one-eighth of an inch thick, striking the prisoner, who was dressed in his prison clothes, six licks across his back and hips.
(S) That the whipping so administered was not done in a cruel or unmerciful manner.
(9) That the superintendent made and kept a record of the offenses for which the prisoner was whipped, the number of blows inflicted, the names of the witnesses present, and reported the same, within ten days thereafter, to the board of commissioners of the county for preservation as a public record and to be kept open to public inspection, as required by the statute.
Upon the facts found and declared by the jury, a special verdict of guilty was rendered under appropriate instructions from the court, not because the whipping was cruel or unmerciful, but for the reason that, in the opinion of the presiding judge, all corporal punishment of convicts is illegal, even when administered under statutory authority and in strict compliance therewith. From the judgment entered on the verdict, the defendant appeals, assigning error. C. S. 4649.
J. W. Haynes and Mark W. Brown, both of Asheville, for appellant.
D. G. Brummitt, Atty. Gen., and Frank Nash, Asst. Atty. Gen., for the State.
STACY, C. J. (after stating the facts as above). The immediate question presented is whether the Legislature has the power to authorize the whipping of convicts as a necessary means of discipline in the management of able-bodied men convicted of crime and assigned to work on the public roads of Buncombe county. In its ultimate effect, the case involves the power of the Legislature to deal, in a similar manner, with the management of incorrigible and unruly convicts throughout the state. The constitutionality of sections 8 and 9 of chapter 328, Public Local Laws 1923, is the only point raised by the appeal.
Let it be observed in the outset that the question for decision is not one of wisdom or policy, but one of power. The Legislature alone may determine the policy of the state, and its will is supreme, except where limited by constitutional inhibition, which exception or limitation, when invoked, presents a question of power for the courts to decide. Marbury v. Madison, 1 Cranch, 137, 2 L. Ed. 60. But even then the courts do not undertake to say what the law ought to be; they only declare what it is. Wood v. Braswell, 192 N. C. 588, 135 S. E. 529. To interpret, expound, or declare what the law is, or has been, and to adjudicate the rights of litigants, are judicial powers; to say what the law shall be is legislative. Chisholm v. Georgia, 2 Dall. 432, 1 L. Ed. 440; Kilbourn v. Thompson, 103 U. S. 192, 26 L. Ed. 377.
This results necessarily from the character of the structure which has been ordained and established by the people for the government of the state. Every student knows that, in North Carolina, those who make the laws determine their expediency and wisdom, but they do not administer them. The chief magistrate, who executes them, is not allowed to judge them. To another tribunal, the judiciary, is given the authority to pass upon their constitutional validity, to the end that it be "a government of laws and not of men." Long v. Watts, 183 N. C. 99, 110 S. E. 765, 22 A. L. R. 277.
It can make no difference whether the judges, as individuals, think ill or well of the manner in which the Legislature has dealt with a given subject, for, so long as the lawmaking body stays within the bounds of the Constitution, its acts are free from judicialinterference. Muskrat v. United States, 219 U. S. 346, 31 S. Ct. 250, 55 L. Ed. 246. It is only when the General Assembly undertakes to exceed the grant of legislative authority, made to it in the organic law, that the courts are directed to restrain its action. State v. Lewis, 142 N. C. 626, 55 S. E. 600, 7 L. R. A. (N. S.) 669, 9 Ann. Cas. 604. Such is one of the functions of the judiciary under a constitutional form of government like ours, but it can go no further in this respect. Person V. Doughton, 186 N. C. 725, 120 S. E. 481.
Speaking to the question in State v. Burnett, 179 N. C. 735, 102 S. E. 711, Hoke, J., said:
"It is the accepted position in this state that our Constitution in vesting the General Assembly with legislative authority, conferred and intended to confer upon that body all the 'legislative powers of the English Parliament or other government of a free people, ' except where restrained by express constitutional provision or necessary implication therefrom"—citing Thomas v. Sanderlin, 173 N. C. 329, 91 S. E. 1028; State v. Lewis, 142 N. C. 626, 55 S. E. 600, 7 L. R. A. (N. S.) 669, 9 Ann. Cas. 604; Black Constitutional Law (3d Ed.) § 351, as authorities in support of the position.
The courts are limited to the exercise of judicial power by the same instrument which limits the Legislature to a given field of operation. Railroad v. Cherokee County, 177 N. C. 86, 97 S. E. 758. Unconstitutional acts of the Legislature may be rendered harmless by the courts in individual cases, when properly presented, but for the courts to strike down valid acts of the Legislature would be wholly repugnant to, and at variance with, the genius of our institutions. For this reason, every presumption is indulged in favor of the validity of an act of the lawmaking body. Adkins v. Children's Hospital, 261 U. S. 525, 43 S. Ct, 394, 67 L. Ed. 785, 24 A. L. R. 1238.
Again, it should be remembered that we are dealing with a case where all other means of discipline had failed of proper results, and it is the judgment of the Legislature, as well as of the responsible authorities in charge, that, in such a case, corporal punishment should be administered as a necessary means of maintaining order and authority in the convict camps. It seems to have been the deliberate purpose of the refractory prisoner to defy the law and to challenge its authority. Boone v. State, 8 Lea (76 Tenn.) 739. His conduct was highly reprehensible, and, if the statute be valid, the treatment accorded him was not unlawful. (See paragraphs 5 and 6 of statement of facts above.)
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