90 W. Va. 220 | W. Va. | 1922
Petitioners by babeas corpus seek tbeir discharge from imprisonment, alleging that they are being illegally held in custody and required to work on the public roads of McDowell County by the Sheriff of that county.
The petitioners admit that they were both tried and convicted of misdemeanors in Monroe County, Vass by confession, and Lucas by trial and .conviction by the verdict of a jury; and it is not denied that they might have been, as they in fact aver, both adjudged to pay fines and be imprisoned in the county jail of Monroe County and to work on the public roads, but being citizens and residents of Monroe County, they deny the right and authority of the circuit court of that county, after adjudging them to pay fines and be imprisoned in the county jail of that county, to further order that they be delivered to the jailor of McDowell County and required to work on the roads of that county until their terms of imprisonment shall be ended and the fines and costs imposed upon them respectively should be paid.
In his return the sheriff of McDowell County answers that
By the judgments of the circuit court of Monroe County so exhibited it appears that the judgment against the petitioner Vass was that he be confined in the jail of Monroe County for the period of nine months from the date of the judgment, pay a fine of $5.00 and the costs, and that he work on the county roads at hard labor; and that the petitioner Lucas pay a fine of $50.00 and costs, and be confined in the county jail at hard labor for the period of sixty days.. And the judgment in each case, in addition to impcsino' the fine and imprisonment aforesaid, also further recited and ordered that, as the county court of Monroe County by the contract aforesaid had agreed with the county court of McDowell County for working the prisoners sentenced by the circuit court of said county on the roads of McDowell County, it was further ordered in each case that the said petitioner should be removed from the county jail of Monroe County to the jail of McDowell County and there confined and required to work on the county roads of that county, as by the statute of this state it is provided, and under the supervision of the sheriff and road officials of said county.
The facts are not controverted; but the sufficiency of the return of the sheriff is challenged, mainly upon two grounds: First,. that the alleged contract between the county courts of the two counties involved was manifestly made pursuant to section 18, chapter 39A Barnes’ Code of "West Virginia 1918, the so-called Workhouse Statute, and that in passing sentence upon the prisoners the court undertook to' follow
• What specific provisions of prior statutes may have been amended or repealed by chapter 112, Acts 1921, it will be unnecessary for us to decide for the purposes of this case. Both propositions of counsel just stated assume that'the contract between the county courts of Monroe and McDowell counties referred its authority to sections 18 and 19 of chapter 39A of the code, the so-called Workhouse Statute. But that agreement was made after chapter 112, Acts 1921, took effect,- and it may as well be referred to that act perhaps -as- to any prior authority. It provides in effect that thereafter the county court of Monroe County would have all prisoners who might be sentenced by the circuit court of that county or by any magistrate thereof whose confinement under such sentence should be thirty days or more, worked on the county roads of said McDowell County during their term of confine -
While neither section 48 nor section 49 of chapter 112, Acts 1921, authorizes the circuit court to sentence prisoners to confinement in the jail or to work on the public roads of any county other than the county where convicted, said proviso of section 49 makes it lawful for the county court to employ such prisoners outside of the county where convicted, under the same rules and regulations as govern their employment in the county where convicted, that is, as provided by said section 48, “under the direction of the county road engineer, or other representative of the county court having such work in charge, during the time of such imprisonment, and until said fine and costs are satisfied, ’ ’ and any other provision of the law applicable, if any.
It is true, that after sentencing the prisoners to pay fines and costs and to 'be imprisoned and to work on the county roads, the court proceeded to recite in .its orders the existing contract between the two counties respecting the working of prisoners, and also to order that the sheriff of Monroe County remove the prisoners from the jail of that county to the jail' of McDowell County, where they should be held for the period of their confinement and requiring them to work on the roads of that county under thé supervision of the sheriff and road officials of that county. Properly construed these supplemental orders should be interpreted as amounting to no more than that the judgments and sentences pronounced against the accused might be executed and satisfied in McDowell County, in accordance with the provisions of the contract between the two counties.
Counsel refer us to the case of State v. Austin, (N. C.), 128 S. E. 361, in support of their contention, that the circuit court was without authority to sentence petitioners to work on the public roads other than in the county where convicted. A North Carolina statute specifically provided that no convicts should be hired, sent or sentenced by any court to work
The writ prayed for will therefore be denied, and the petitioners stand committed to the custody of respondent.
Writ refused and petitioners remanded.