Phillips County v. Arkansas State Penitentiary

McCulloch, C. J. The Board of Commissioners of the State Penitentiary filed for allowance in the county court of Phillips County a verified account against the county for the keep of certain prisoners held in the State Penitentiary under conviction of capital offenses. The statute under which the right to recover from the county is asserted is a section of act No. 44 of the General Assembly of 1921 (General Acts, 1921, p. 50), which reads as follows: “Section 8. The county from which any person is brought for confinement in the death-chamber and for electrocution shall pay to the penitentiary the sum of one dollar ($1) per day for each day each such person is so confined, and shall pay twenty-five dollars ($25) for the electrocution of each such person.” The Attorney General appeared on behalf of the commissioners in the prosecution of the claim, which was disallowed by the county court, and an appeal was duly , prosecuted to the circuit court, where there was a trial anew and a judgment against the county. The case was tried in the circuit court upon an agreed statement of facts showing that the convicts mentioned in tlie claim were sent to the penitentiary under sentence of death, and were held there for that purpose a certain number of days, sufficient to make out the amount of the claim as provided in the statute. It is contended, in the first place, that the commissioners of the State Penitentiary have no right to maintain a suit for the collection of the amount. It was within the power of the Legislature to prescribe the form in which an action for the benefit of the State may be maintained, and the language adopted by the lawmakers in this instance clearly indicates their purpose to authorize a claim to be filed and prosecuted in the name of the Penitentiary Commissioners. The statute provides that the counties of the State shall pay the amount named “to the penitentiary,” and'a subsequent section of the same statute (section 11) declares the purpose of the statute to confer upon the Commissioners “the management and operation of the penitentiary.” This clearly shows that all matters relating to the management of the penitentiary are placed in the hands of this board, and that it is necessarily their duty to present and prosecute claims which accrue under the statute. The question whether or not the money is to be paid into the State treasury is another matter altogether, and does not arise at this stage of the proceedings, and the only question we have now to deal with is whether or not the suit for the recovery may be maintained in the name of the Commissioners of the State Penitentiary. The suit is, in effect, one on behalf of the State, and the Attorney General appeared not only here, but in the trial below, to prosecute the case for the benefit of the State. We are of the opinion therefore that the claim has been properly filed and prosecuted. The principal contention here is that the statute imposing upon a county the expense of keeping prisoners under death sentence is void because it is'an expense of the maintenance of the State Penitentiary, which the Legislature has no right to impose upon the counties. Counsel for appellant rely upon the following cases in support of their contention: Cotham v. Coffman, 111 Ark. 108; State use Agricultural School Dist. No. 1 v. Craighead County, 114 Ark. 278; Fort Smith Dist. of Sebastian County v. Eberle, 125 Ark. 350; Dobbs v. Holland, 140 Ark. 398. Those cases merely establish the principle that the cost of paying salaries of State officers, or the expense of maintaining State institutions, cannot be imposed upon the counties. The expense imposed by the present statute is not, we think, a contribution towards a State institution, or towards tlie pajnnent of the salaries of State officers, but is an expense in enforcing the criminal laws of the State, which has always been held to be a matter within the power of the lawmakers. Prior to the year 1913, the cost and expense of the execution of a death sentence by hanging was imposed upon the county where the prosecution was had, but the General Assembly of that year enacted a statute changing the method of imposing the death penalty from hanging to electrocution. The statute provided that the superintendent of the State Penitentiary should prpvide a permanent death-chamber for the execution of the death sentence by electrocution, and that all persons sentenced to electrocution should immediately be conducted to the penitentiary and there kept until the imposition of the sentence or the reversal of the judgment. Acts 1913, p. 171, Crawford & Moses’ Digest, § 3253 et seq. There is no constitutional restriction upon the imposition of costs of prosecution, and it has always been held by this court that this was a matter regulated entirely by statute. Lonoke County v. Reed, 122 Ark. 111. This being true, the Legislature could have provided for electrocution of a convict by the sheriff of th e county and at the expense of the county, as had theretofore been the law with respect to execution of sentence of death by hanging. The fact that the execution of the death sentence is within the walls of the State Penitentiary does not make it any the less a part of the expense of the enforcement of the criminal laws. It is not a part of the maintenance of the State Penitentiary, but it is the expense of imposing the death penalty. It has been decided by this court that the Legislature has no right to impose upon a county,a contribution towards the salary of a State officer. Cotham v. Coffman, supra; Dobbs v. Holland, supra. But the court has also decided that a county may be required to pay the fees of the prosecuting attorney as a part'of the cost of enforcing the criminal laws. Phillips County v. Clayton, 29 Ark. 246; Lonoke County v. Reed, supra. The distinction to be drawn from these cases is applicable in the present case, and justifies the conclusion that the requirement for the county to pay the amount estimated to be the cost of keeping prisoners held for execution is not, in effect, a requirement that the county shall contribute to the maintenance of the penitentiary as a State institution. The statute constitutes no invasion of the jurisdiction of the county court in fixing the amount to be paid by the county as the expense of keeping the convicts and carrying out the sentence of the court. Cain v. Woodruff County, 89 Ark. 456; Dobbs v. Holland, supra. This answers the contention of counsel with respect to the validity of the statute, and we are of the opinion that none of the attacks upon the validity of the statute are well founded. The judgment is therefore affirmed.