Ex parte Buck

| Miss. | Mar 15, 1913

Heed, J.,

delivered the opinion of the court.

E. E. Buck was committed to the jail of Choctaw county to satisfy sentences upon three convictions of the offense of the sale of intoxicating liquors. The total time of his imprisonment amounted to about ten months, and the fines against him aggregated nine hundred dollars. On February 26,1913, after the term of the circuit court at which he was sentenced had adjourned, and during vacation, the circuit judge issued to the sheriff of Choctaw county the following order: “For good and sufficient reasons appearing to the court, you are hereby ordered to transfer E. E. Buck, who is a prisoner now in the Choctaw county jail, to Grenada jail, Grenada, Miss., and delivr him, the said E. E. Buck, to the sheriff, R. West, of Grenada county, Miss., who is hereby authorized and ordered to retain him, the said E. E. Buck, in custody of the jail of Grenada county until he, the said E. E. Buck, has satisfied judgments of the court now in force against him in Choctaw county, a certified copy of which judgments the clerks of the circuit court of Choctaw county will transmit to the sheriff of Grenada county forthwith, together with a certified copy of this order, and certified copies of the writs, capias pro finems, therein.” Thereupon the prisoner was transferred to the Grenada county jail, at Grenada, Miss., where he has since remained. This appeal is from the action of the circuit judge in denying his habeas corpus petition, praying for the annulment of the order and for his return to the Choctaw county jail.

Upon the hearing of the petition it was shown that the jail in Choctaw county, which had been erected within two years past, was safe and in good condition; that Buck gave the sheriff no trouble, and was the only prisoner in the jail at the time of the issuance of the order. The county of Grenada does not adjoin that of Choctaw. The distance between the two jails, by the usual railroad route, is about one hundred and ten miles. It appears from the testimony appellant has been convicted a number of times for unlawful retailing; that “he has been engaged in that business for twenty-five years,” and that “his business” was organized so that it would run for a time even while he was absent; that while he was in Choctaw county jail he was called on by the patrons of “his business;” and that it would be better for Choctaw county for him to be somewhere else. When the sheriff of the county was questioned concerning the effect of his being in the county, even though in jail, he answered: “I think the community would be better satisfied with him away; his presence there will help to encourage the blind tiger business.”

We may conclude from the testimony that the purpose ■of the judge in ordering Buck removed from Choctaw ■county was to discourage “blind tigerism” and make it ■easier for the officers to enforce the law against unlawful retailing. He doubtless believed that Buck’s absence would be generally helpful to law enforcement. We apreeiate his motives, and commend his desire to promote obedience to the law and to suppress the sale of liquor, which is so demoralizing in all of its effects. However, we are unable to find any law to authorize him to make such order of removal. In all of the judgments rendered upon his convictions appellant was sentenced to imprisonment in the county jail. He was convicted in the circuit court of Choctaw county, and the county jail referred to in the judgments is the jail of that county.

By chapter 109 of the Acts of 1908, which was passed in place of chapter- 22 of the Code of 1906, repealed, a convict sentenced to imprisonment in the county jail shall be committed to jail, there to remain in confinement until the full sentence of the court is satisfied. Section 4 of that chapter authorizes the board of supervisors to make ■disposition of the county prisoners by working them on the county farm, keeping them in jail, or by working them ■on public roads or other works of public character. Chapter 168 of the Acts of 1908 imposes upon the board of supervisors certain duties relative to county prisoners. The sheriff is the jailer of the county, and it is made his ■duty to safely keep prisoners committed to jail, and properly provide for them. The testimony in this case shows that the sheriff of Choctaw county was not in default as to this.

Sections 1467,1477, and 1478 of the, Code of 1906 were referred to in argument. We do not see that these sections confer authority upon the judge to transfer the prisoner. Section 1476 relates to the safe-keeping of the prisoner before trial and conviction. Section 1477 provides that a prisoner shall not be removed from his place of confinement into the custody of any other officer, unless by habeas corpus or other legal writ, except for trial,, or in case of fire, or infection, or through necessity, or in. accordance with the express provision of law. There is. nothing in this statute giving any power to the circuit judge to make the order of removal as in the case before us. The testimony does not show' any case of necessity such as fire or infection. Section 1478 provides that if an infectious or contagious disease appears in the vicinity of the jail, or if such appearances should be apprehended, the board of supervisors, or, if the board should not meet in time, the sheriff, with the cocnurrence of two> members of the board, or circuit judge, or chancellor,, could remove the prisoner to a suitable place of security until the threatened danger should be over. The testimony does not disclose any such condition in that county,, unless blind tigerism be considered a contagious or infectious disease." It will be noted that the power to remove'the prisoner is given in this section to the board of supervisors, or to the sheriff, and that the only duty of a circuit judge is to in certain cases concur in the removal.

It is argued that the judge acted in a discretionary manner in this case, and that his action should not be-reviewed, unless a manifest abuse thereof appears. We know 'he acted in all good conscience and with the best interest of the citizens at heart, but we cannot find that any authority or discretion was given him in the statutes to make such transfer of a prisoner.

Appellant only seeks to be returned to the Choctaw county jail. He claims to be illegally confined in the jail of Grenada county. He is not asking to be discharged generally from prison. The writ of habeas corpus is. applicable to this ease.

Reversed, and judgment here, directing the return of appellant to the jail of Choctaw county.

Reversed.