Holland v. State ex rel. Duval County

Mr. Justice Raney delivered the opinion of the court í The alternative writ alleges that at a regular meeting held January 4th, 1886, the Board of County Commissioners of Duval county adopted a resolution authorizing the chairman of the board and Commissioner L’Engle to take such action as- in their judgmeut might be necessary to-utilize the labor ot county prisoners on public works ; that in pursuance of said resolution and under the authority thereof Ii. Robinson, the chairman, and Commissioner L’Engle, demanded of the appellant, Sheriff of the county? on the second day of August, 1886, that he deliver to Titus Tilnian, foreman of the guards of county convict gang? the following named prisoners, confined in the jail of the county under sentence to imprisonment therein, or imprisoned therein for failure to pay a fine imposed upon conviction for crime, to-wit: Reuben Hamilton, sentenced June 12th, for six mouths; William Robinson, sentenced May 28th, for three months ; II. J. Hagarty, sentenced — 133 — .June 12th, for four months, and James Todd, sentenced May 18th, for three months; and that said Sheriff has refused to comply with the demand ; and the writ commands him to deliver the prisoners to Tilman, foreman of the guards of the county convict gang, or show cause. The Sheriff demurred to the writ on several distinct grounds, and, after argument, the demurrer was overruled .and there was final judgment awarding the peremptory writ. The Sheriff appealed and an order staying the issue of the writ pending such appeal was made. Chapter 2090, approved March 7th, 1877, p. 320, McClellan’s Digest, provides that the Board of County Commissioners of the several counties of this State may employ all persons imprisoned in the jails of the several counties in this State under sentence of conviction for crime or for failure to pay a fine and costs imposed upon conviction for crime, at labor upon the streets of incorporated cities ■or towns, upon the roads, bridges and public works in the several counties where they are so imprisoned, and to make all needful rules and regulations for their safe-keeping government and.discipline while so employed. The convicts so employed are not to be required to labor more than ten hours per day, and are entitled to a credit at the rate of thirty cents per day with subsistence for such labor, which shall be credited on the amount of fine and costs charged against them. Section 31 of the act to regulate criminal proceedingsbefore Justices of the Peace (chapter 2093), approved at the same session, but five days before the above statute, provided that every male person convicted of any offence in a Justice Court and sentenced to imprisonment in the county jail, or imprisoned for the non-payment of a fine or costs under the provisions of the act of which it is a part, may be employed at such manual labor as may be directed by the County Commissioners — 134 — of the county, in or upon any buildings, grounds, streets,, roads, bridges or public works of any kind within their county, and under such regulations as they may prescribe, but not to exceed ten hours’ labor in each twenty-four hours, and any person imprisoned for the non-payment of any fine or costs, shall be credited on account thereof with the sum of fifty cents for each day’s labor so performed in addition to the charge for subsistence. t We think the statute first set out (chapter 2090) which, as stated, was enacted subsequently to the other (chapter 2093) was intended as a revision and operates as a repeal of the other. This point was not passed on in Ex Parte Hunter, 16 Fla., 676. It, (chapter 2090), covers the case, not only of the male convicts from Justice of the Peace Courts, but of convicts of both sexes from any court, and not only supplies the place of section 31 of chapter 2098, but makes other provisions to effect the general purpose of the employment of convicts confined in the county jail under sentence of imprisonment, or on default in payment of fines and costs. Under section 14 of chapter 2093 a prisoner committed to prison because of his failure to pay “ fine and costs,” adjudged against him by a Justice of the Peace Court, cannot be kept in prison longer than three months. It is perfectly clear that it never was the intention of the law-makers that the provisions of section 31 of chapter 2093, or those of chapter 2090, which replace the former, should be announced in court as a part of the judgment or sentence, or be set out in the record entry of the judgment or sentence as a part thereof. Section 38, p. 451, McO.’s Digest, provides that in all cases in which persons may be convicted of any offence and sentenced to imprisonment in a county jail, the court may also sentence such persons to be employed at hard labor, and in such case the prisoner — 135 — may be employed at such manual labor as may be directed by the County Commissioners of the county in or upon any public buildings, yards, streets, alleys, bridges, or public work of any kind within their county, and under such regulations as they may prescribe, but not to exceed ten hours labor in each twenty-four hours. This section was enacted in 1868 as a part of the general crimes act. Its purpose was to authorize the court in its wise discretion to add to a sentence of imprisonment in the county jail the additional punishment of manual labor, .if the circumstances of the commission of the crime seemed to call for such additional punishment, but it provides for no allowance to the convict of any credit on the costs adjudged against him. Though he had labored each day of the period of his sentence, he would, under this section, still be detained in the jail for the non-payment of the costs adjudged against him. We are not now inclined to think that chapter 2093 applies, at least during the period of the sentence, to a convict sentenced under the above section of the act of 1868. The purpose of chapter 2090 (which alone we need now mention) was that whenever a sentence to imprisonment in the county jail, upon conviction of crime, should be rendered, or wherever a sentence of fine and costs should be rendered, and the convict in the latter case should be committed to, and held in the county jail on account of his failure to pay such fine and costs, the sentence in the former case and the sentence and default and consequent commitment aud imprisonment in the latter case, should in law subject the convict to be employed or put at work by the County Commissioners as provided by the statute. Whenever any express sentence of imprisonment in the county jail, or any sentence of fine and costs, for the non-payment of which he will be confined in the county jail, is rendered, the convict becomes as much .subject to the enforcement of the — 136 — provisions of the act in question as if such provisions were ■set out in the sentence; the judgment of the law is, as a result and legal consequence of the judgment or sentence ■of imprisonment, that he is liable to the provisions stated, if the County Commissioners see fit to so employ him, and as a legal consequence of the sentence of fine and costs, that he will, if he does not pay them, be liable to the enforcement of such provisions upon being put in the county jail to keep him until he does pay them. It is contended that as the statute does not provide for an express sentence by the court to such labor, it is unconstitutional and void; that it is beyond the power of the Legislature to annex to a crime of which one has been duly convicted, another or different punishment from that pronounced by the Judge to be the sentence of the law as it stands recorded in the particular case; that it is a function wholly judicial to pronounce judgment. Uo one will deny that it is a judicial function to pronounce judgment upon a person charged with crime, or that a sentence passed by a court is, though pronounced by the Judge, the judgment or sentence of the law. After the passage of this act the pronouncing of a sentence of imprisonment in the county jail, or of fine and imprisonment, was the performance of a judicial function, and such sentence was the judgment of the law with all the effect which the laws of the State as they stood gave to it, and this statute was a part of these laws, and the rendition of the judgment, by its legal effect, made the provisions of the statute operative according to its terms upon the prisoners as a legal result of the judgment. Both the Judge and the prisoner understood, in the eyes of the law, the sentence as having such effect. That the Legislature can provide that persons who may be so convicted of crime shall be sentenced and made to labor is not denied; and we know of no' reason why the Legisla — 137 — ture cannot provide that a legal sentence shall have, as to offences committed subsequently to its enactment, a certain legal effect, although the effect is not declared in the body of the sentence. To so provide is not the exercise of a judicial function, but is purely a legislative act. There is nothing in the case of Bradley vs. State, 69 Ala., 318, to sustain the appellant’s position. Iu it the sentence complained of was that the prisoner perform hard labor “ for such period, not to exceed eight months, as will be sufficient to pay said costs, at the rate of forty cents per day,” and then recited the amount of the costs and fees, and concluded, “it is ordered that said defendant perform hard labor for the county for three hundred and eleven days, at forty cents per day, to pay costs.” This was a sentence imposed by the court. The point made against this sentence was the inconsistency upon its face growing out of the two periods of imprisonment italicised. The latter period exceeds the statutory period, but of it the opinion says: “ This clause of the sentence may be void, an excess of jurisdiction, yet it renders the sentence inconsistent and uncertain. The inconsistency and uncertainty may be made a pretence for keeping the appellant iu servitude a longer period than that to which the law subjects him,” and for this reason it was held “irregular and erroneous.” The point of the validity of a statute like that before us is not involved or discussed in the opinion nor in any case cited by counsel. II. Where the sentence is one of imprisonment and costs, the credit of thirty cents per dayis applicable to costs alone, and no credit that may be given the convict on his costs will operate to limit the power of the County Commissioners to employ him during the period of his sentence. If we can assume a conviction without costs then the convict can still be employed during the period for which he was sentenced. The expense of subsisting a person after he is — 138 — sentenced to imprisonment is not a part of the costs. The “costs” for which he may be put at labor are in any case those “imposed upon conviction,” those legally adjudged against him by the sentence, and none others; those for which he is held under the warrant of conviction. III. It is claimed that the alternative writ should have issued only on the application of the Attorney-General; that the county of Duval was interested in no other way than any other county in the State. It is evident that the convicts may be employed on county buildings, county roads, county bridges, county yards, or other public works in which the county of Duval is much more interested than any other county, and of which she is the sole owner or only party interested, even admitting that they may be employed on public works in the county belonging to the State, and in which consequently the people of all the counties have a common interest as constituting the body politic. For this reason the position of the appellant is not tenable, but besides this the duty or power of enforcing the statute devolved expressly upon the Board of County Commissioners of the county in whose jail the convicts are imprisoned, and they are properly the parties who should apply for the alternative writ. The application has been made by them in fact, and such being the case, though they have used the name, of the county, which of itself is evidence that the application was made by their authority, we think the proceeding sufficient even though it be true, as it may be, that an application in a case of this kind, and for a writ which runs in the name of the State, is not a suit within sections 21, 22 or 23, McC.’s Digest, p. 319. FTo objection is made however upon this ground, even if it be tenable. IV. The alternative .writ is sufficient in its. material averments, showing the resolution or action of the Board — 139 — of County Commissioners deciding to enforce the statute,, also that the prisoners or convicts, naming them, are confined in the county jail under sentence of imprisonment, and giving the dates and terms of sentence. That the execution of the resolution was left to a committee is not objectionable. It is apparent that the Commissioners had determined to enforce the statute and had not left or delegated the decision ot this point to any other authority. The details of carrying out this determination were properly assigned to a committee, whose action is of course not beyond the supervision or control of the board. The writ also shows that a demand was made on the Sheriff and he refused to comply with it. None of the questions which are discussed iti appellant’s brief, as arising in case of an imprisonment of a convict sentenced to pay a fine and costs are involved, as it does-not appear that either of the convicts mentioned have been, so sentenced. Judgment is affirmed.