39 So. 856 | Miss. | 1905
Lead Opinion
delivered the opinion of the court.
A question sleeps on the doorsill of this case of much graver importance to the state and her people than anything involved in the controversy. That question is whether a governor may, officially or in the name of the state, originate this litigation in
The board of control of the state penitentiary is the creation of legislative enactment, and is composed of the three railroad commissioners and the governor and the attorney-general, five in all, and to this board the people have intrusted the management of the convicts and the affairs of the state penitentiary. The board passed the following — viz.: “Resolved, That the board of control work with the convicts for the year 1906 Sandy Bayou plantation, owned by BE. J. McLaurin, and shall receive for their share of the crop and for the labor of the convicts $25,000.00 (twenty-five thousand dollar’s), which sum the said McLaurin guarantees to the state certain and in all events for said pear; the number of convicts to be employed on same to average seventy (70), if so many be necessary to the proper cultivation and harvesting of the crop thereon.” According to it the contract was made as follows — viz.: “First — That the board of control has agreed to work the plantation in Sharkey county, state of Mississippi, owned by said McLaurin, and known as ‘Sandy Bayou,’ for the year 1906. Second — That the said board of control shall pay to the said McLaurin, for the use of said plantation for said year, all the crops grown, raised, and gathered on said premises for said year, after the sum of $25,000.00 shall have been reserved therefrom, and the said McLaurin guarantees that the said crop raised on the said premises shall amount to $25,000.00, and binds himself to the said board of control in that sum, promising to make up whatever the crops grown on the said premises may fall short of that amount. Third— That the said board of control shall have absolute authority over
Thereupon a bill in equity was presented, beginning thus: “The state of Mississippi, acting at the instance of the governor of the state, and by its solicitors specially employed to assist in bringing and prosecuting this suit; files this bill of complaint,” etc. Accompanying this bill is a letter, addressed to the law firm appearing as solicitors to the bill, as follows: “I wish, in behalf of the state of Mississippi and .in its name, to have suit brought to enjoin the execution of any order of the board of control looking to leasing any farms for the corning year; and, believing that the interests of the state require it, I hereby retain your firm to assist in the case or cases to be brought for that purpose. Yours respectfully, (Signed) Jas. 3L Vardaman, Governor.” The bill is sworn to by “Jas. K. Vardaman, Governor of Mississippi,” and on it a fiat for injunction was granted, resulting in a writ restraining three members of the board of control, the warden of the state penitentiary, and H. J. Mc-Laurin, a party to the contract, “from making or executing a léase of the Sandy Bayou place from H. J.. McLaurin, or using or working any convicts thereon-during 1906, or from carrying out the order of the board for said leasing.” The bill avers that the board “voted to lease” the place, “over the protest and against the vote of the governor,” -by a vote of three for and two against, and that this action of the board is “violative of the constitution and statutes of this state,” states the reasons for this view, and prays for the injunction; and in the bill are these words: “The governor, acting under the powers given him by
This section 2156 of the code of 1892 is in the following-words :
“Section 2156. Powers Generally. — In addition to the powers conferred and duties imposed on the governor by the constitution and by the laws as elsewhere provided, he shall have the powers and perform the duties following — viz.: (a) He is the supreme executive officer of the state, (b) He is the commander in chief of the militia of the state, and may call out the militia to execute the laws, to suppress insurrections or riots, and to repel invasions. (c) He shall see that the laws are faithfully executed. (d) He is to supervise the official conduct of all executive and ministerial officers, (e) He is to see that all offices ar¿ filled and the duties thereof performed, or, in default thereof, ajsply such remedy as the law allows; and if the remedy be imperfect, he shall acquaint the legislature therewith at its next session, (f) He shall make appointments and fill vacancies as prescribed by law. (g) Whenever any suit or legal proceeding-is pending which affects the title of the state to any property, or which may result in any claim against the state, he may direct the attorney-general to appear on behalf of the state and protect its interest, (h) He may require the attorney-general or district attorney of any district to inquire into the affairs or management of any corporation existing- under the laws of this state or doing- business in this state under the laws thereof, (i) He may require the attorney-general to aid any district attorney in the discharge of his duties, (j) He may offer rewards, not exceeding two hundred dollars, for escaped insane persons who are dangerous, and such other rewards as are authorized by law. (k) He may require any officer or board to make special reports to him upon demand in writing. (1) He shall transact all necessary business with state officers, shall require them to be present at their respective offices ¿t all reasonable business hours, and may require information, in
An amended bill, not sworn to, makes exhibits of the order and the pursuant contract, as hereinbefore set out, and also a further resolution of the board accepting the signed contract, and sets up that the contract was in fact a hiring of the labor of the convicts, and that it is void, .whether a leasing of the lands or the labor. The two bills were demurred to. The defendants below, appellants here, made a motion to dissolve the injunction, which was overruled, and they appeal to' this court.
The attorney-general is not made a party to the bill, either officially or in any other capacity. As stated, the governor’s right to use the name of the state in suits in her own courts is based, in the bill, on the constitution generally, and specifically on Code 1892, § 2156. This section is in part a rehearsal of the constitution, and we find nowhere in either any such power expressly granted. It surely cannot be gravely urged, since the people in solemn convention ordained the organic law; that any of the servants they there provide for and assume to instruct can exercise powers not derived from that instrument by express grant or by necessary implication from the grant.- It is undeniable that the attorney-general is the officer provided by° the people as the legal adviser of the state, and it is agreed on all hands that he has the express statutory power to sue in its name, just as district attorneys have in the matters which the legislature has committed to them. ' But it is said the governor may also sue, because of necessary implication from the constitutional and statutory provisions that he is the “chief executive,” that he is the “commander in chief of the militia to execute the laws,” etc.-, and that “he shall see that the laws are faithfully executed,” etc. In other words, the position seems to be that the attorney-general may sue by express warrant of law; but the
Certain it is that it would not be done by the present distinguished executive. But who can speak for all who may follow him ? Great publicists all agree that populations are happiest in absolute despotisms where the despots are wise and good. The difficulty is in the tenure. The successor may be bad, and there must, therefore, be stability of rights or the opportunity of ruin and slavery. We can imagine governors who would cheerfully lend themselves, for political ends, to influential factions who
May the attorney-general dismiss the bill now before us ? It is said he cannot, because the governor is commander in chief and required to “see that the laws are faithfully executed.” In other words, the governor can do in this state what the president cannot do in the courts of the United States. If the governor can so 'act under his powers as commander in chief, and under the duty to see that the laws are faithfully executed, why may he not nullify the decrees of the courts because he thinks they do not comport with the constitution? Alexander v. Georgia, 56 Ga., 479, cited by appellee, has no pertinency, exeept that by implication it is an authority in favor of the appellants, in that the governor’s right to sue is based only on an express statute making it his duty, which statute is to be found on p; 483 of the volume, and confines the duty to particular specified property. The same may be said of the case of State v. Dubuclet, 25 La. Ann., 161, cited by appellee. On p. 162 it is shown that the governor’s right to appeal a case, already brought and lost by the attorney-general below, is sustained in these words: “The letter as well as the spirit of the law gives us the required jurisdiction.” That it was on the letter, see 27 La. Ann., 30, citing the statute. And see hereafter in this opinion. The case of Governor v. Allen, 8 Hum. (Tenn.), 176, is also produced. That merely holds that a governor may sue, as governor, on bonds made pay
It seems plain that the general words of the constitution, which always and everywhere must be construed strictly against powers, cannot carry by any sort of implication the power claimed here. We are warned against drawing such far-fetched conclusions by elementary law Writers. It is “thumb-paper” law. It is drilled into the youth of the republic. In Walker’s American Law, p. 104, we find this wise clause: “Power of General Supervision.— It is a duty enjoined upon the federal and state executives To see that the laws be faithfully executed.’ It would be dangerous, however, to treat this clause as conferring any specific power which they would not otherwise possess. It is rather to be regarded as a comprehensive description of the duty of the execu
It is not easy to understand the pertinency of the many references to federal decisions as to how states may sue and be sued in the United States courts, the service of process on them, etc. The United States constitution and laws provide for such suits, but fail to provide how they should be brought, in whose name, etc., and how process should be served on them as defendants. And so the supreme court of the United States, having the jurisdiction conferred on it, properly determined that it was not to remain |>owerless, and adopted rules to apply in such cases. Among them is this: “1. Ordered, that when process at common law or in equity shall issue against a state, the same shall be served upon the governor, or chief executive magistrate, and the attorney-general, of such state.” Grayson v. Virginia, 3 Dall., 320 (1 L. ed., 619). This was in 1796. As late as 1860, in Kentucky v. Dennison, 24 How., 66 (16 L. ed., 171), these rules are referred to as in force, and that case shows that service on the governor and attorney-general is enough to make the state a party, and that in these foreign jurisdictions the governor may
Under the laws of Mississippi the governor may sue in foreign jurisdictions. Code 1892, § 2167. Under other laws the revenue agent may sue in'matters pertaining to his province. May the governor sue, regardless of him ? So as to the land commissioner in matters pertaining to his functions. May the governor sue, regardless of himi ? He ought to be able to do so, under the argument of appellee, as chief executive, with the duty to see that the laws are executed. In People v. Navarre, 22 Mich., 1, the court says (p. 4) : “The state can only be recognized by the courts as a suitor in legal proceedings through the agents or representatives appointed by law to speak and act in its name.” This is reiterated in Benalleck v. People, 31 Mich., 200, and in Babcock v. Hanselman, 56 Mich., 27 (22 N. W., 99), holding the attorney-general to be the proper representative of the state in legal proceedings. So in People v. Pacheco, 29 Cal., 210, holding that the attorney general is the only person authorized. So in State v. Railroad Co., 22 Neb., 313 (35 N. W., 118). The case of Succession of D’Aquin, 9 La. Ann., 402, after hoMing the same, uses this language: “The power for appearing for another in judicial proceedings is a very grave power, and one
Recurring to State v. Dubuclet, 25 La. Ann., 161, to which we have referred and which was cited for appellee, we now refer to State v. Dubuclet, 27 La. Ann., 30, wherein the court says, through the same judge: “Looking to act No. 21 of the acts of 1872 (p. 61), the statute under which the governor acted in this case, we find that he has the right in case of the absence, death, resignation, or inability to act in any particular case of the attorney-general or proper district attorney, or where either of then! may be directly interested, to designate an attorney for such case to act in behalf of the state, for the protection of the public interest. Was the governor authorized under this statute to consent to the transfer of the case
On the functions of the attorney-general and their exclusive character, we refer to Commonwealth v. Burrell, 7 Pa., 39; State v. Baker, 38 Wis., 71-80. In State v. Lord, 28 Ore., 529 (43 Pac., 479; 31 L. R. A., 473), we find this: “But do we find here what may be termed an information or bill by the law officer of the state ? As such an officer is the only person competent to institute a proceeding of the nature under consideration, the information should show upon its face in no uncertain manner that he is the officer instituting and prosecuting the suit, and the sole person responsible for its inception and maintenance. The most common form of instituting like proceedings, it seems, has been in the name of of the attorney-general. Coosaw Mining Company v. South Carolina, 144 U. S., 565 (12 Sup. Ct., 689; 36 L. ed., 537). less frequently they are brought in the name
In the case of In re Fire, etc., Commissioners, 19 Col., on p. 503 (36 Pac., 241), it is said: “In.this provision of the constitution, the phrase, To execute the laws/ contemplates the enforcement of a judicial process — that is, the enforcement of a right or fem'edy provided by the law and judicially determined and ordered to be enforced, and not an arbitrary enforcement by the executive of what he may consider the law to be.” People v. Martin, 19 Col., 573, et seq. (36 Pac., 543; 24 L. R. A., 201). That a governor cannot employ counsel without express legislative authority, see Randall v. State, 16 Wis., 362, and Cahill v. Board, 127 Mich., 487 (86 N. W., 950; 55 L. R. A., 493).
In view of the authorities and of the fact that we have a written constitution undertaking to define powers, and in view of the spirit and genius of the government of these states of the American union, we utterly repudiate any suggestion of any power in the governor or any other officer over and above the constitution. We say, too, that if the power sought to be exercised here could be thought a matter of doubt even, it must be decided that it does not exist. No court has ever deviated from the position of rejecting powers claimed which are doubtful. The constitutional or statutory grant must be plain. The whole people are vitally concerned in this principle, as much so as in that very mudsill of the republic that the three departments must be kept inviolably coequal and independent- each of the other. No argument can be based on the evils which might
If there could be any foundation for the argument that the power to sue is inherent in the mere office of governor at common law, as in the case, possibly, of the attorney-general, which we deny, still a new order of things clearly appears in the constitution of Mississippi, which devotes many sections in article 5 to defining ■ executive powers. There is no break in the authorities that where there is an undertaking to set forth powers,' all must be presumed to be included, and that the charter only can be looked to, with its necessary implications, for the limit of authority. There can be no inherent power to sue, unless in the attorney-general; even if in him, without statute. On careful examination it will be found that not one of the cases cited by the counsel or in the dissent of the chief justice sustains, even remotely, the contention of appellee. The only thing they find looking that way is the dissenting opinion of a judge in a Louisiana case, and he cites no authority and shows no investigation of the question, but makes merely a tentative suggestion. No constitution of any of the forty-five states gives the executive the power to ignore the attorney-general, the common-law adviser, and sue at his own will in the state courts;
There is no decree of the court below overruling the demurrer to the bill. The appeal is from a decree overruling a motion to dissolve the injunction. The attorney-general was not made a party defendant in the suit, if this could affect the matter. On the contrary, his right to sue is recognized in the bill, and he is expressly omitted as a defendant. My views, condensed as much as possible for me, are submitted with the utmost confidence to an unbiased profession, and yet it pains me to differ radically from the conclusion of the superior powers of one of my distinguished associates. Proceeding by the light before me, I should regard myself as betraying the people if I considered as a judge any case where the name of their state is used by any bne unauthorized by their constitution or by the enactments of their legislature. None but the elect may tread this holy ground. I have an opinion, of course, as a citizen — a very distinct opinion — on the merits; but I represent the people, not as a citizen, but as their
Reversed, injunction dissolved, and bill dismissed.
Concurrence Opinion
delivered the following specially concurring opinion:
I am in hearty accord with many of the sentiments expressed in the vigorous, able, and eloquent opinion delivered by my associate, Judge Oalhoon — an opinion every syllable and word of which evidences the love for the rights of the people which fills the great heart of the writer. Many of the legal propositions advanced therein c'ommand my unqualified assent, and in the conclusion reached I concur specially. But as the ground of my concurrence and the considerations upon which my conclusion is based are, in the main, different from the ideas there advanced, I shall content myself with a few general observations upon the subject-matter of that opinion, and then proceed to a discussion of those questions which I deem decisive of this controversy. I deny that there is any official above the law. I affirm that every officer, whether high or low, must find warrant for every official action in the plain mandate of a constitutional or legislative provision, save only the bare exception that where a duty is expressly enjoined on an officer, or where the office originated under the common law (such as attorney-general), there may be, in addition to those enumerated in the constitution or statutes, certain implied powers necessary to the execution of the duties imposed upon the official. But in the case of a constitutional officer, like the elective governor of a free people, the chart of power is the constitution which creates the office, or the statute which expressly amplifies its powers, and the implied power must be a necessary, not a conjectural or argumentative, one. Field v. People, 2 Scam., 79. The people are sovereign. All power is vested in the people; no power can be exercised by any one, unless by the express grant of the people.
It is contended by the appellee that the warrant of power of
It is not unworthy of note in this connection that in 1860, when the political horizon of the nation was already blackened by the clouds of that impending storm of-sectional fury which eventually culminated (if the principle was righteous for which our fathers battled, and the abstract justice of which I dare still maintain), involving a nation in Titanic fratricidal strife, sweeping from its moorings the federal constitution and destroying those landmarks of constitutional rights which had been established by the wisdom of the jurists of old, this same question of the power of a chief executive under the general mandate to see that the laws “be faithfully executed” was submitted for the consideration of the great lawyer who then occupied the position of attorney-general of the United States. The effort was being made to induce President Buchanan to distort the general language of this phrase into a grant of power to the president of the United States to coerce the actions of subordinate officials in the discharge of legal duties. The attorney-general repudiated the idea, and announced, heedless of conditions confronting him, the true doctrine and the true interpretation of that provision of the federal constitution: “To the chief executive magistrate of the union is confided the solemn duty of seeing the laws faithfully executed. That he may be able to meet this duty with a
But it is useless to' extend my remarks upon this branch of the case. It is a work of supererogation to advance arguments to strengthen the well-fortified position maintained in the opinion of Judge Oalhoon. And I pass from this branch of the subject to another; for, while I believe as an abstract proposition it is the imperative duty of the attorney-general to represent the state in all prosecutions involving her interest, yet I am not satisfied to announce as a positive conclusion that, should a contingency arise where the private and personal interest of the individual occupying the office of attorney-general would be antagonistic to that of the state, the governor would be absolutely powerless or the state remediless in the premises. But that is clearly not this case, for it is not intimated that the attorney-general has either personal or private interest in the instant case, and there is no
But, as preliminary to a logical judicial consideration of the power of the board of control and the validity of the contract, it is necessary to decide whether its action, within the scope of its authority, is subject to review in any other tribunal. And this is, in my judgment, the pivotal point in the case. If the constitutional provisions treating of the penitentiary submitted to the legislature the power of determining for itself the proper method of handling the penitentiary and disposing of the convicts, it is an elementary principle of law that the manner in which the legislature exercised its discretion is absolutely unquestionable by the courts. “It is not for us to define the limits of legislative discretion, nor, in the absence of constitutional inhibition, to declare laws void because, in our opinion, they are morally wrong or practically unjust.” Cooley’s Const. Lim., 168, 172, 182; Potter’s Dwarris, 368, 369; Martin, v. Dix, 52 Miss., 64 (24 Am. St. Rep., 661). To quote the words of the greatest authority on this subject: “The moment a court ventures to substitute its own judgment for that of the legislature in any ca.se where the constitution has vested the legislature with power over the subject, that moment it enters upon a field where it is impossible to set limits to its authority and where its discretion alone will measure the extent of its interference. The rule of law upon this subject appears to be that, except where the constitution has imposed limits upon the legislative power, it must be considered as practically absolute, whether it operate according to natural
I will not attempt to elaborate the proposition just stated, because there is no well-reasoned adjudication of any court of last resort which, after exhaustive research, has been brought to my notice, even expressing’ a doubt of its soundness. I do not understand that there is any attempt to dispute that if the legislature was vested with power of action, clothed with discretion, given choice of lines of conduct, its action in the premises is conclusive. If there be such attempt, it is readily refuted by a bare reference to authorities.. Again, if the legislature, in the legitimate exercise of its law-making function, delegated to the board of control a similar discretionary power in dealing with the convicts, its action, within the scope of its power and authority, is above judicial scrutiny. A power in the courts to supervise the discretion of executive bodies legislatively clothed with power to act has never been maintained where the action complained of was within the scope of the powers vested in them. It is manifest that this must be true; for if the discretion vested in a board be subject to review and control by the courts, the result would be the substitution of the judgment of the courts for the judgment of the legislatively chosen power. If the board of control in the instant case had the authority to make the contract in question, for any reason to permit this court or the chancery court to substitute the individual judgments of the judges for the judgment of the members of the board of control would be to destroy the power of the board and usurp its functions for the courts. “There is,” says Mr. Oooley, “a certain class of cases in which the decision, when made, must from the nature of things be conclusive and subject to no appeal or review, however erroneous it may be in the opinion of other departments or officers. . . . The first of these classes is where, by the constitution, a particular question is plainly
The case of People v. Inspectors and Agent of State Prison, 4 Mich., 187, is strikingly similar in its salient features to the one at bar. In that state the constitution and statute provided that: “No mechanical trade shall hereafter be taught to convicts in the state prison of this state, except in the making of those articles of which the chief supply for the consumption of the country is imported from other states or countries.” Under this provision, the power of dealing with the convicts of the state being vested in a board, that board entered into a contract hiring to certain manufacturers the services of certain convicts “to be employed in the business of wagon, sleigh, and carriage making in the state prison or within the walls of the yard thereof.” It will be observed that upon the face of the contract it was apparently in open and palpable violation of the express mandate and inhibition of the constitution. It cannot be contended with any show of reason, in my judgment, that the making of wagons, sleighs, and carriages is not a mechanical trade, and the relator averred that he had been injured by the result of the contract; and yet, the contract having been made in the discretion of the board of inspectors, the supreme court held that the general supervisory power given to the board was beyond the control of any other tribunal. The court adverted to the
But it is not necessary to go beyond our own court to find decisions bearing out in reason the conclusion reached by courts of other jurisdictions. In an opinion rendered by Judge Terral, a jurist whose rugged integrity impelled him ever onward in an unswerving line to the discharge of his duty, in Branton v.
But, it is said, granting the accuracy of the general and abstract legal propositions stated, they are inapplicable to the concrete case, for two reasons: First — The legislation by which
But, aside from this, is it a lease of land or is it a hiring of convicts? "What, under our law and the decisions of this court, establishes the relation of landlord and tenant? What is a lease contract ? Does the mere fact that the owner of the land is directly interested in the result of the labor of every individual who works in the crop make it a hiring of the person instead of a leasing of the land ? Assuredly not. In Schlicht v. Callicott, 76 Miss., 487 (24 South. Rep., 869), and in Alexander v. Zeigler, 84 Miss., 560 (36 South. Rep., 536), the exact contract involved in the instant case in every of its important conditions was upheld as establishing the relationship of landlord and tenant. We are told that by “stripping this contract of its verbiage” the truth is then seen that this is a hiring of convicts, because the landlord gets the fruits of their labors and is directly and -personally interested therein. The cardinal rule of construction first instilled into the mind of the student is that a contract is to be construed in accordance with its terms, and the intent of the parties arrived at by an interpretation of its provisions. Can it be possible that at this late day discredit is to be cast upon an axiomatic expression so firmly established as that ? Cuvier, we are told, from the smallest fragment of a
But I will consume no further time in demonstrating the obvious. Interpreted according to every rule of construction known to the law, interpreted according to the intention of the parties, interpreted according to the views of every man connected with the transaction, whether opposed to or favoring the contract, it was a leasing of land. It is admitted that any attempt to invoke the restraining power of a court of chancery to coerce the discretion of any board before final action taken would not’be permissible; but, ignoring the averments and prayer of the sworn bill on which the order herein was issued, it is insisted that this action was instituted after the contract was entered into, but before it was complied with, and hence, it is
In construing constitutions, as well as all other written instruments, whether statutes or contracts, there are certain fundamental rules which must be adhered to — lighthouses established by the-wisdom of years, marking out the channel which must be followed to arrive at the safe haven of a true construction. First, the intent of the parties must be ascertained. In constitutions that intent must be ascertained in view of known conditions:' the old law, the evil which existed, the remedy which was applied. Such intention, if manifest from the plain language of the constitution, must be followed, regardless of other considerations. The will of the people must be carried out as expressed in the organic law of the state, framed by their chosen representatives. The true meaning once established, the- constitution must be maintained inviolate. But where the language employed, as in this casé, is vague and uncertain, susceptible of .two interpretations, there are certain other rules and potential
As shedding additional light on this question, it must' be borne in mind that all legislation concerning the subject-matter treated of by the constitution must be construed in pari materia with the constitutional provisions themselves, and this, showing the legislative construction placed upon the constitution, will of itself be most powerful in influencing a court in arriving at its conclusion. Says the supreme court of the United States in Cooper Mfg. Co. v. Ferguson, 113 U. S., 727 (5 Sup. Ct., 739; 28 L. ed., 1137) : “As the clause in the constitution and the act of the legislature relate to the same subject, like statutes in pari materia, they are to be construed together. Eskridge v. State, 25 Ala., 30. The act was passed by the first legislature that assembled after the adoption of the constitution, and has been allowed to remain on the statute book until the present time. It must, therefore, be considered as a contemporary interpretation, entitled to much weight. Stuart v. Laird, 1 Cranch, 299 (2 L. ed., 115); Martin v. Hunter, 1 Wheat., 304 (4 L. ed., 97); Cohens v. Virginia, 6 Wheat., 264 (5 L. ed., 257); Adams v. Storey, 1 Paine, 90 (Fed. Cas. No. 66).” And in the case of Board of Railroad Commissioners v. Railway
In addition to these sources from which the courts are directed to seek light, it has long been recognized that the contemporaneous construction placed upon a constitutional provision by the departmental officers of the government will be upheld, and, even though apparently wrong, will not be deviated from, unless for most potent reasons. Nowhere, perhaps, is this canon of construction and the weight to be given it more plainly stated than in Story on Constitution, sec. 408, from
Turning, now, from the abstract propositions which must
“Penitentiary Ordinance.
“Be it ordained by the people of Mississippi in convention assembled:
“Section 1. With the view of enabling the legislature at its next session to have before it the necessary information upon which to act, if it should determine to establish a penitentiary farm, it is made the duty of the governor to appoint five commissioners, who shall, prior to the next session of the legislature, carefully inspect such bodies of land as may be thought suitable for such location, and who shall make report to the governor as to the several advantages of the bodies of land inspected by them, and as to the propriety of establishing such farm or some other system, and as to the advantages of each, cost, and other proper matters, to be laid by the governor before the legislature, with such recommendation as he may see proper to make.
“Adopted by the convention November 1, 1890.”
It will be seen from this that it was expressly left to the decision of the legislature whether it (the legislature) “should determine to establish a penitentiary farm” — not that the legislature must establish it, but that it should decide if such a farm
The next step shedding light on the constitutional provisions treating of the penitentiary was taken by the governor of the state in his address to the legislature of 1892, the first session after the adoption of the constitution. At that time, it must not be lost sight of, the constitutional provisions with regard to the penitentiary were already in force so far as concerned the repeal of conflicting laws. Section 275 of the schedule of the constitution says: “All laws of this state which are repugnant to the following portions of the constitution shall be repealed by the adoption of this constitution — to wit: Laws repugnant to (c) the provisions of secs. 223 to 226, inclusive, of article 10, prohibiting the leasing of penitentiary convicts.” Remembering, then, that these constitutional provisions were in force; remembering that the laws repugnant thereto were repealed, and that affirmative action on the part of the legislature was imperative, it is interesting to note that in his biennial address to the legislature in 1892, Gov. John M. Stone, in discussing the report of the commission
By sec. 2/T8 of the schedule the governor was required to appoint a code commission of three men learned in the law, whose duty it was “to prepare and draft such general laws as are contemplated in this constitution, and such other laws as shall be necessary and proper to put into operation the provisions thereof and as may be appropriate to conform the general statutes of the state to the constitution.” The public history of the state shows that the governor selected for this arduous and responsible duty three of the most learned and prominent practitioners who graced the legal profession of the state; and in order that they might be better able to draft such general laws as would conform the géneral statutes of the state to the constitution, the governor selected men all of whom had been members of the constitutional convention, the impress of whose genius was made upon that instrument and is now in its wise provisions crystallized and preserved for the admiration of coming generations. What interpretation did these men place upon the constitutional provisions dealing with the penitentiary and convicts ? The answer is to be found in the provisions of Code 1892, ch. 101, and especially in sec. 3201 of that code. And that section, sanctioned, approved, and adopted by the legislature, provided, as the constitution required, that the penitentiary convicts should not be leased or hired out, but that they should be worked in the peni
But it is insisted that the section is, and was at the time of its adoption, unconstitutional. Courts should not, says every text writer of any respectability, condemn any action of the legislative department as unconstitutional, unless, in the case of a state statute, the express provision of the constitution can be cited. Though the státute be “unjust or oppressive, impolitic or unwise,” this-will not justify the interposition of the courts. Cole v. Humphries, 78 Miss., 163 (28 South. Rep., 808). No unwritten public policy can control to overthrow a solemn declaration of one of the three coordinate departments of government. Cooley’s Const. Lim., p. 239. To doubt the -validity of a statute is to affirm its validity. Harmon v. Board, 153 Ind., 76 (54 N. E., 105). Adopted as was the code of 1892, having been framed with the express purpose of making the general statute laws conform to the mandates of the constitution and to effectuate all the provisions of the constitution, having received the sanction of the legislative department, and acted on for a long term of years as constitutional, no provision contained in it should now be overturned unless its invalidity be demonstrable beyond question or quibble.
In addition to these considerations we must also note the practical construction placed upon the constitutional provisions by the departmental officers of the government. Since by the adoption of sec. 27 5 of the schedule to the constitution all laws repugnant to the constitutional provisions treating of the penitentiary and convicts were rejiealed, four governors have graced the chair of chief executive of this state: Stone, McLaurin, Longino, and Vardanian — names illustrious in the history of this commonwealth. Each of these statesmen in the discharge of official duty was called on to pass on the validity of contracts made by the board of control, leases of farms to be worked with convicts on shares, either by approving statute laws tacitly acquiescing in or expressly recognizing the existence of such contracts, or, as chairman of the board of control, by affixing his official signature to the contracts. No of
We are told, and correctly so, that contemporaneous legislative construction and the practical interpretation of departmental officers, while entitled to great force and respect, so as to be conclusive upon the courts in cases of doubtful or ambiguous wording, cannot control the decisions of courts where the lan
It will, I apprehend, fall as a distinct shock on the ear of the humanity-loving people of the state to hear the statement sol
Section 22-3 of the constitution provides: “No penitentiary convicts shall ever be leased or hired to any person or persons, or corporations, private or public or quasi public, or board, after December the thirty-first, A.D. 1894, save as authorized in the next section, nor shall any previous leasing or hiring of convicts extend beyond that date; and the legislature shall abandon the system of such leasing or hiring as much sooner than the date mentioned as may be consistent with the economic safety of the state.” And sec. 224, while permitting the legislature to authorize the employment of convicts “under state supervision and the proper officers and employes of the state” on certain public works, also places certain limitations upon the power of the legislature in this regard, by stipulating that such working of convicts on public works should never “inter
The attempt is made to construe the expression “leasing or hiring of the convicts,” as used in the constitution, as being synonymous with “leasing of farms to be worked by the con
But it is said that Code 1892, § 3201, even if valid at the time of its enactment, cannot subsist without destroying subsequent legislation upon this question. Acts 1894, ch. 75, p. 65, is referred to as warrant for that position. But it must be observed that, while the act in question does provide for the purchase and establishment of a penitentiary farm, and does impose upon the board of control the duty “as soon as practicable with the available means and force at their command” to “erect necessary buildings and walls for the safe-keeping and working of the convicts,” also in the very next section the act provides that, if the board should “determine that all the convicts cannot be profitably worked on the lands and in industrial pursuits connected therewith, they are authorized to employ such convicts as cannot be used in such manner, not prohibited by the constitution, as may be deemed most advisable and to the best interests of the. state, but shall never part with their control and management;” thus recognizing the power of the board to work the convicts in any manner not prohibited by the constitution, expressly clothing the board with discretion as to their employment, and again emphasizing the dominant idea of the constitution that the convicts should be worked “under state supervision exclusively.” It should also be noted, as tending to show the purpose of the legislature in adopting the act of 1894, that the official journal (house
Finally, in this connection, it is not amiss to note that the present legislature at its last session had its attention specially directed to the fact that the system of cultivating leased farms with convict labor was still in vogue. The retiring governor in his message spoke of the manner in which the convict labor had been utilized in the past, was then being used, and foreshadowed the policy of the board of control in the future, in the following language, which is quoted from that message: “The board of control is, and has been, of the opinion that the hasty concentration of the prisoners from leased property to the new lands would, for obvious reasons, endanger the financial success of the penitentiary. In other words, to secure with more certainty the self-sustaining capacity of the prisoners, the board has thought it best not to discontinue at once all leases, but to gradually work away from them by putting the prisoners on the state’s property as the land would be cleared and made ready for them without curtailing other farming operations.” Differing with the policy thus forecast, but. recognizing the power and discretion of the board of control in the premises and the validity of the leases which might be made, a bill was introduced (house bill 558) absolutely prohibiting the working of convicts on lands not owned by the state.
Ordinarily I-might content myself with a bare statement of my special concurrence in the conclusion reached by my associate, Judge O'alhoon; but the importance of the case, the gravity of the issues involved, and other attendant circumstances not necessary to' recite, all admonish me that a failure to express my views would be, in this instance, a failure of duty. In response, therefore, to the request of the state officials concerned, I have set out fully and frankly my conclusions on every important legal question involved herein. They are in harmony with the views heretofore expressed and the course heretofore uniformly followed by every state official whose duties connected him with the matter; they are supported by the interpretation placed on the constitution by the framers thereof as voiced in solemn ordinance; they are strengthened by the construction of the code commissioners, indorsed by the wisdom of the legislature, and confirmed by the solemn adjudication of this court. This unanimous concurrence of the past, rendered calmly and in deliberate discharge of official and judicial duty, joined to my own solemn convictions, removes from my mind the last vestige of doubt as to their correctness.
Por the reasons stated, I concur in the conclusion that the case should be reversed and bill dismissed.
Dissenting Opinion
delivered the following dissenting opinion:
The first essential to a precise and accurate understanding of the exact points at issue in this cause is to have a clear comprehension of the exact case made by the bill. The substantial averments make by the bill are as follows:
“Second — The original bill was prepared and filed before the order of the board of control had been entered and upon the information that the board of control of the penitentiary had voted to make a contract with II. J. McLaurin leasing hi’s Sandy Bayou plantation, in Sharkey county, from him for the year 1906, for the purpose of working the state convicts upon the same for the benefit of the state.
“Fourth — Your orator now states that when the order of the board of control was drawn and entered upon its minutes on December 5, 1905, it was, and is, in legal effect, an order for a contract by which the said McLaurin was to pay the state $25,000 for the hire and labor of the state convicts necessary for the cultivation of said plantation for the year 1906, the number of said convicts to average seventy for the year.
“Fifth — A copy of said order is filed with this amended and supplemental bill as exhibit A, and prayed to be taken and considered as a part of this bill. This action was taken over the protest and against the vote of the governor, and was passed by the following vote of three for and two against: those voting for the order being William Williams, R. L. Bradley, and I. C. Kincannon, and those voting against being J. K. Vardaman and S. D. McNair.
“Sixth — Thereupon, on December 5, 1905, three members of the board of control — viz., E. L. Bradley, William Williams, and S. D. McNair — signed, as members of said board, a contract drawn in pursuance of said order, and the same was signed at the same time by H. J. McLaurin. Said contract provides for the working of an average of seventy of the state convicts,
“Seventh — The governor of the state is advised, and accordingly submits unto your honor, that said contract, in legal operation and effect and aside from its phraseology, .is a contract leasing an average of seventy of the state convicts to If. J. Mc-Laurin for the gross sum of $25,000 for the year 1906, and out of which the state is to maintain, feed, clothe, guard, and care for said convicts. But whether it is a contract by leasing or hiring these convicts or a contract for the renting of Sandy Bayou plantation, the governor of the state is advised, believes, and charges that this action of the board in making said order, and the action of the three members of the board of control who signed said contract, is violative of the constitution and statutes of the state touching the employment and disposition of convicts of the penitentiary, and that the members of the board and the warden and H. J. McLaurin should be enjoined from executing such order and from forming said contract made in pursuance of said order; and so impressed is he with this conviction, that this action of the board is unlawful and violative alike of- the 'letter and the spirit of the constitution and statutes of the state, that he has directed this suit for and in behalf of the state to invoke a judicial decision of said question and to restrain said legal action. The governor is further advised, and now respectfully submits to your honor, that the state is entitled to' have a decree made by this honorable court for the delivery up by the defendants of said contract .and for
“Ninth — This leasing was seen to be an evil, and in 1894 the legislature provided for the purchase of state farms; but it provided that the convicts should carry on, in connection with the farms, industrial pursuits; and sec. 5 authorizes the board to employ such convicts as ‘could not be profitably worked on such lands and industrial pursuits connected therewith in any manner not prohibited by the constitution and to the best interests of the state.’ Pursuant to' this act, the board bought three large plantations, and in 1900 owned the Rankin farm, in Rankin county, consisting of 3,100 acres; the Oakley farm, in Hinds county, of 2,700 acres; and the Belmont farm, in Holmes county, consisting of 2,080 acres. Notwithstanding the ownership of said large places, the board, acting with a mistaken view of its powers, continued to lease certain farms on the idea that those owned by the state did not furnish enough employment for all the convicts.
“Tenth — This course being deemed an evil by the legislature, the act of 1900 was enacted, providing for the purchase of an additional farm or farms, to comprise n,ot less than 8,000 nor more than 15,000 acres. This act contemplated that the lands purchased might be uncleared, and it -was therefore provided in sec. 2 that they should ‘be occupied as soon as practicable by the board of control with as many convicts as may be necessary to occupy.and manage the same,’ and in sec. 4 it was required that the lands ‘shall be opened up for cultivation as rapidly as practicable.’ Said act did not authorize the leasing of lands, but clearly contemplated that there should be no further leasing, and as the lands were able to furnish employment at a profit for all the convicts, the further leasing was by clear implication prohibited. Section 6 of the act declared that it should not affect contracts for leasing of lands for the year
“Eleventh — ‘Complainant states and charges that the action of the board of control in attempting to make this contract for working the Sandy Bayou place is illegal because such a contract is altogether prohibited; but if complainant be mistaken in this view, then it is illegal because all the convicts of the penitentiary can be profitably employed on the state farms. There is ample land in cultivation on said farms to give profitable employment to all the convicts in cultivating, ditching and draining them, and, if these will not, there are thousands of acres of valuable land not needed for timber, but to be opened for cultivation; and as the board is required to open said lands as 'rapidly as practicable, the board cannot legally refuse to so employ the convicts. In any view, the only condition on which the board could ever be deemed to have such power is that all the convicts cannot be profitably employed on said farms in cultivating and opening them or in industrial pursuits, as required by law. This condition does and did not exist. Complainant states further that said contract interferes with the preparation and cultivation of crops on the state lands, and will necessarily cause an illegal expenditure of the state’s finances, and interferes with the good management of the state’s farms, and is in violation of sec. 224 of the constitution, and it retards the opening up of the uncleared land on the state’s farms, and is in violation in this respect of the act of 1900.
“Twelfth — The attorney-general of the state, as a member of the board of control, favored and voted for said lease, and, in view of the provisions of law as to his duty to prosecute actions and suits for the state, he is not joined as a defendant therein.
“Thirteenth — The governor, acting under the powers given him by the constitution and laws, and specially the powers con
“Fourteenth — Since the filing of the original bill, the board of control has met, and, all being present, unanimously passed an order (filed as exhibit 0 herewith) asking the courts to speedily pass on the question of the validity of said contract, the obvious intent being that all technical questions and questions of procedure be waived and the power of the board to make the contract be speedily passed on. Complainant joins in this request.”
Exhibit A to the Amended and Supplemental Bill.
“Resolved, That the board of control work with the convicts, for the year 1906, Sandy Bayou plantation, owned by IT. J. McLaurin, and shall receive for their share of the crop and for the labor of the convicts $25,000.00 (twenty-five thousand dollars), which sum the said McLaurin guarantees to the state certain and in all events for said year; the number of convicts to be employed on same to average seventy (70), if so many may be necessary to the proper cultivation and harvesting of the crop thereon.”
Exhibit O.
"Resolved by the board of control as follows — to wit: First —That a contract has been made and entered into at this term of the board, by and between the said board of'control, acting for and on behalf of the state of Mississippi, and H. J. Mc-Laurin, which said contract is in the following words and figures — to wit:
“ ‘Jackson, Miss., Dec. 5, 1905.
“ ‘This contract, made and entered into on the date above written, by and between the state of Mississippi, acting through and by the board of control of the state penitentiary of said state, and H. J. McLaurin, witnesseth:
“ ‘Second' — That said board of control shall pay to the said McLaurin, for the use of said plantation for said year, all the crops grown, raised, and gathered on the said premises for said year, after the sum of twenty-five thousand dollars ($25,000) shall have been reserved therefrom; and the said McLaurin guarantees that the said crops raised on the said premises shall amount to $25,000.00, and binds himself to the said board of control in that sum, promising to make up whatever the crops grown on the said premises may fall short of that amount.
“ ‘Third — That the said board of control shall have absolute authority over the labor employed in working the said lands, and said labor shall be under the direction of the said board of control and of the persons appointed by the board.
“ ‘Fourth — That the said McLaurin, in addition to the land leased and furnished by him, shall also furnish the necessary mules and teams for the working of said plantation, and feed for same, and shall also furnish all wagons and farming implements and planting seed.
“ ‘Fifth — The said board of control shall have said crops made, harvested, and gathered. This act executed in duplicate.
(( C_ _ _
“ ‘President of the Board of Control;
“ ‘B. L. Bradley,
“ 'Wm. Williams,
“ ‘S. D. McNair,
" 'Members of the Board of Control;
“ Tí. L McLaurin/ "
These are the averments of the bill, and the case, to put it in plain, intelligible language, made by this bill is simply this: That the board of control, acting by a majority of three to two,
It is made perfectly clear that the contract was completely made, and that both the governor, for the state, and the board of control, on its own behalf, had requested this court to pass upon the legality of this contract. And, further, it will be noted that the prayer of the bill is that the contract be delivered up for cancellation. The letter of the governor, employing counsel, is as follows:
“December 5, 1905. Messrs. Alexander & Alexander, Jackson, Miss. — Gentlemen: I wish, in behalf of the state of Mississippi and in its name, -to have suit brought to enjoin the execution of any order of the board of control looking to leasing any farms for the coming year; and, believing that the interests of the state require it, I hereby retain your firm to assist in the case or cases to be brought for that purpose. Yours respectfully, Jas. K. Vardanian, Governor.”
A demurrer to the amended bill was filed, being the same as the demurrer to the original bill in substance, and a motion to dissolve the injunction was made. Upon hearing, the chancellor overruled the demurrer and the motion to dissolve, and retained the injunction, filing an opinion which the reporter will set out in full as part of the record in this cause. It will thus be seen that the governor in the bill, and the board of control in their written request to this court and to the chancellor, both joined in earnestly requesting this court to pass upon the one essential thing contained in this record — to wit: the legality of this contract. It will further be seen from the letter of the governor, as well as from the averments of the bill and the language of the prayer, that the injunction did not in the slightest degree seek to prevent the board from voting as they pleased
First, can the chancery court by injunction control or direct the exercise of discretion on the part of the board of control as to whether or not it would make this contract? Most mani
The argument made here by the learned counsel for appellant for the exemption of the board of control from the power of the chancery court to make it conform in its contracts to the constitution and laws of the state, followed to its logical conclusion, would result in boundless confusion and utter anarchy. The board of control is dealt with, by this line of argument,, as if it were omnipotent. One would suppose that it had some divine patent of impeccability. It is as if some minor star, which had hitherto eluded all telescopic search, had suddenly been discovered, all at once, describing about us the orbit of Saturn with the splendor of Sirius, in the dazzling glory of whose beams governor, legislature, supreme court, constitution, one and all alike, “pale their ineffectual fires.” I speak, of course, not of the personnel of the board of control. I am not dealing with individuals, but with principles. Boards of control come and go; but the eternal principles which make the constitution, which set it apart as a holy thing, to be implicitly obeyed and universally revered, which place it far above the clamor and passion of the passing hour, high over every department of government — these principles, I trust, are to remain forever. The proper subordination to the constitution,
But it is said that the governor of this state has no power to even initiate litigation, where the matters are fublici juriSj too, where the interests of the entire people of this commonwealth are involved, where the constitution, the supreme law of the land, is being trampled under foot, and that, too, in a case where the attorney-general voted to make this unconstitutional contract, and, as was stated at the bar, and not denied by the attorney-general, who was present, refused to initiate the litigation. when applied to; for it was stated at the bar that the governor applied to the attorney-general to bring the suit, and
There are some preliminary statements to be made about tbis .preliminary proposition on wbicb it is proposed to turn tbis case off. It is stated, in tbe opinion of tbe chancellor, tbat it was conceded in tbe court below tbat tbe governor bad tbe power to institute tbe suit. It is certain tbat bis power was not questioned in tbe first oral argument, except in tbe closing argument for the appellants. It is also certain that so little was thought of tbe contention tbat tbe governor could not sue tbat in tbe written briefs submitted in tbis cause on tbe first argument very little attention was given to tbe power of tbe governor to sue — so little, indeed, tbat it was. found necessary, at tbe instance of one of tbe members of tbe court, to remand tbe case to tbe docket for reargument orally on tbis solitary proposition. Tbis preliminary statement as to tbis proposition is
Let us proceed now to the consideration of this proposition on principle and authority. In the first place, there are two classes of suits for the state which may be instituted by the governor of the state — one class embracing suits outside the state; the other class, suits within the state. Here it is to be specially noted that the majority opinion concedes, without reservation, that the governor may institute suits in the name of the state in any other state or foreign jurisdiction. But it is said this power rests exclusively on Code 1892, § 2167. Notwithstanding this solution, the court cites the cases of Texas v. White, 7 Wall., 700 (19 L. ed., 227), and State of Kentucky v. Dennison, 24 How., 66 (16 L. ed., 717).
The suit of Texas v. White Tvas a suit at the instance of the governor for the state, and -was not a suit on bond to recover any debt, but was a suit in the federal court of Texas to compel certain parties to surrender to the state of Texas bonds the possession of which had been illegally obtained. It was not a suit maintained, therefore, because the bonds were payable to the governor, and does not fall within that class of cases; in fact, the bonds were payable to the state of Texas. Now what, exactly, did the supreme court of the United States say about this suit instituted by the governor? Just this — to be found in Texas v. White, 7 Wall., 718, 719 (19 L. ed., 227): “The first inquiry to which our attention was directed by counsel arose
In Kentucky v. Dennison, 24 How., 66 (16 L. ed., 717), the suit was again brought on behalf of the state of Kentucky, in the name of the governor of the state, against the governor of Ohio, defending for the state. There, as here, the defense insisted — see p. 70 of 24 How. (16 L. ed., 717) — that the court had no- jurisdiction to maintain the suit, which was one for mandamus, and upon that proposition the court said: “As early as 1792, in the case of Georgia v. Brailsford, 2 Dall., 402 (1 L. ed., 433), the court exercised the original jurisdiction conferred by the constitution, without any further legislation by congress to regulate it than the act of 1789. And no question was then made, nor any doubt then expressed, as- to the authority of the court. . The same power was again exercised without objection in the case of Oswold v. State of Georgia, in which the court regulated the form and nature of the process against the state and directed it to be served on the governor and attorney-general. But in the case of Chisholm v. Georgia, at the February term, 1793, reported in 2 Dall., 419 (1 L. ed., 440), the authority of the court in this respect was questioned and brought to its attention in the argument of counsel; and the report shows how carefully and thoroughly the subject was considered. Each of the judges delivered a separate opinion, in which these questions, as to the jurisdiction of the court and the mode of exercising it, are elaborately examined. Mr. Chief Justice Jay, Mr. Justice Cushing, Mr. Justice Wilson, and Mr. Justice Blair decided in favor of the jurisdiction, and held that process served on the governor and attorney-general was sufficient. Mr. Justice Iredell differed, and thought that further legislation by congress was necessary to give the jurisdiction and regulate the manner in which it should be exercised. But the opinion of the majority of the court upon these points has
Mark specially the latter part of this quotation, where the court says, in the case of Governor of Georgia v. Madrazo, 1 Pet., 110 (7 L. ed., 73): “It was decided that in the case where the chief magistrate of a state is sued, not by his name as an individual, but by his style of office, and the claim made upon him is entirely within his official character, the state itself may be considered a party on the record. This was a, case where the state was the defendant. The practice where it is plaintiff has been frequently adopted in suing by the governor on behalf of the state, and was, indeed, the form originally used and always recognized as the suit of the state.” And, again, the case referred to leaves no question open for controversy as to the jurisdiction of the court. They say that it has been the established doctrine upon this subject ever since the act of 1789 that in all cases where the original jurisdiction has been given by the constitution the court has authority to exercise it without any further act of congress to regulate its process or confer jurisdiction, and that the court may regulate and mold the process it uses in such manner as in its judgment will best promote the ends of justice, and that it has also been settled that where the state is a party, plaintiff or defendant, the governor represents the state, and the suit may be in form a suit by him as governor in behalf of the state where the state is plaintiff, and he must be summoned or notified as the officer representing the state where the state is defendant. In both of these cases it is perfectly obvious that the suits were brought by the governor for and on behalf of the state, and were maintained, not because of any statute of Texas or Kentucky, but because of the inherent power which the governor had, as an incident to his office as the supreme executive of the state, “to see that the laws were faithfully executed” and that the rights and interests of
How is it as to the power of the governor to sue on behalf of the state, in the state ? This power rests directly upon the language of the constitution that the governor “shall see that the laws are faithfully executed.” Every one of the provisions of sec. 2156 of the code is a mere effort to define what is meant by this clause of the constitution. They were wholly unnecessary, and it surely is clear that, if this attempted definition has failed to enumerate all the instances in which the governor, in the execution of his duty to see that the laws are faithfully executed, may institute a suit, such legislative omission does not abridge his constitutional power. Suppose, for example, sec. 2156 had never been passed. Will any one be so bold as to maintain that the governor could not have done .every single thing named in this section by authority of this constitutional power “to see that the laws are faithfully executed?” -And, if so, can any one fail to see that the basis of his power is constitutional, and not legislative — directly traceable to the clause we have considered, and not to the superfluous provisions of sec. 2156 ? Great stress is laid, in this connection, upon the perfectly familiar proposition, which does not need the citation of a single authority, that ordinarily the attorney-general, the law officer of the state, should bring suits for the state. Where did the attorney-general get his power to sue for the state ? There is not a statute authorizing him to bring this suit, not one. On the contrary, it is settled by a thousand decisions that the powers of the attorney-general are those he had at common law (People v. Miner, 2 Lans., N. Y., 397), and that the right of the attorney-general to bring suits where the act to be restrained is detrimental to the public interest is inherent in the nature of his office (3 Am. & Eng. Ency. Law [2d ed.], 483, with
Now, what authorities are cited by the majority of the court besides those referring to suits by the governor in a foreign jurisdiction? .They are, one and all, without exception, cases which lay down the familiar proposition that ordinarily the attorney-general, as the law officer of the state, has the right to sue for the state. Some cases are referred to which deal with the right of the governor to employ additional counsel, not the right to bring suit himself. The Compton case, 38 Ark., 602, is a type of this class, which merely holds that, without an act of
To show that tbe whole scope of tbe opinion as to tbe form in wbicb tbe action was brought was simply a decision, first, that tbe chief executive could not be enjoined, and, second, that as between a private citizen and tbe attorney-general tbe attorney-general was tbe person to bring tbe suit, where is there, in this case, tbe slightest discussion of tbe right of tbe governor to bring a suit on behalf of tbe state under circumstances such as confront us in this case ? It must be remembered that tbe attorney-general, in this case, as shown by tbe bill, voted for this lease, and that, as stated at tbe bar, be was requested by tbe governor to bring this suit, and declined to do so upon tbe ground of bis peculiar situation in tbe case. What sort of an attitude would tbe attorney-general have been in if be bad filed this bill as complainant against tbe board of control as defendant, when tbe record shows him to be voting for tbe contract and affirming its legality by bis opinion ? For it must be kept steadily in mind in this discussion that tbe opinion of tbe majority of tbe. court goes to tbe whole length of maintaining, to me, tbe extraordinary position that under no circumstances whatever that can possibly exist — not even in a case like this, where tbe attorney-general has, as stated at tbe bar, positively refused to bring suit — can tbe governor, for tbe state, in any way, in any court, initiate litigation wbicb will protect tbe state against tbe enforcement of a contract plainly and palpably violative of tbe constitution and tbe laws. It is said by the majority that this is a “hiatus” in tbe law, wbicb tbe legislature must supply. Is it possible that any more need
So true is it that tbe attorney-general derives bis powers, not from any statute, but from tbe inherent nature of bis office, that it was expressly decided in People v. Miner, supra, “that a grant by statute of certain powers, would not operate to deprive the attorney-general of those belonging to the office at common law, unless tbe statute either expressly or by reasonable intendment forbade tbe exercise of powers other than those expressly conferred.” And so exactly is McQuesten v. Attorney-General, 72 N. E., 965—a very recent Massachusetts ease. If tbis is true of tbe attorney-general’s powers, bow much stronger is tbe case as to tbe governor’s powers, which rest upon the constitutional provision referred to, beyond tbe reach of legislative diminution! Throckmorton’s case, 98 U. S., 70 (25 L. ed., 93), so confidently relied on, decides nothing in tbe world except (for every decision is limited by tbe facts of tbe case) that the attorney-general of the United States is the proper party to bring an action where the validity of a patent issued by tbe government is involved, and not local district attorneys charged only with tbe ordinary duties of those offices; and tbe reason for tbis decision is plainly set forth in 3 Am. & Eng. Ency. Law, at p. 477, where the authority and powers of tbe attorneys-general of tbe United States are classified. See
But it would be very naturally and properly asked, Are there no decisions, have there been no adjudications, on the precise point here involved — to wit, whether the governor of a state has the right simply to institute a suit on behalf of the state where great public interests are involved, and where the attorney-general, as stated at the bar, refuses to sue? There are many such cases, some of which I shall now consider, and I affirm, without the slightest fear of contradiction, that not a single authority in the United States, either federal or state, can be produced denying this power. Are there any affirming the power? Many. In 14 Am. & Eng. Ency. Law—recognized as a standard authority everywhere — at p. 110, it is said (paragraph 2, “Litigation”): “The governor, as the special guard-i an of the state’s interests, is the proper party to initiate necessary litigation. Ilis right to do so is a part of his general power of supervision over the property and welfare of the state.” Note, supervision, not only over the property, but “over the welfare, of the state.” Again: “Where the governor brings a suit in behalf of the state in his official title, the state, and not the governor individually, is the real litigant.” Again: “The governor is the proper relator in a proceeding to compel, by
In Alexander v. State, 56 Ga., 478, the suit was brought by the governor for the state, and the point was made by demurrer to the declaration that the governor had no authority to> institute suit in behalf of the state. And what did the court say in response to this contention? This: “The demurrer to the plaintiff’s deelaration on tire ground that the governor had no authority to institute suit in behalf of the state was properly overruled. The contention of the plaintiff was not objected to until after the defendant had pleaded to the merits of the action, and, if good, should have been taken advantage of at the first term by plea in abatement. But we do not think the objection would have been good at any time. The governor had the power and authority to institute suit against the defendant under the general power granted by the general supervision over all property of the state, with power to make all necessary regulations for the protection thereof, if not otherwise provided for, and to engage the services of any competent person in the discharge of any duties required by the laws and essential to. the interests of the state or necessary in an emergency to preserve the property or funds of the state.” This decision then cites Code Ga. 1873, §§ 61-74. But a reading of those provisions and of the constitution of Georgia, which has, like our own, a provision that the governor shall see that the laws are faithfully executed, would show that, if the provisions of the statute had not been passed, the governor had by the constitution the same general power of super
In Governor v. Allen, 8 Hum. (Tenn.), 176, the suit was in the name of “A. V. Brown, governor of Tennessee.” There was a demurrer to* the declaration, which was sustained in the court below, and judgment, given for the defendant. The bond in the case was made payable to the governor, and, because there was no statute authorizing such bond, it was said the governor could not sue for the state. What did the court say, at p. 181 ? That “the governor of this state is the executive of it. It is one of his duties, among many others, to see that the laws of the state are executed and obeyed. This is a great and fundamental duty. Without the proper observance of it society might, and would necessarily, be greatly distracted, and the proper security of life, liberty, and property seriously endangered. For the purpose of enforcing the execution of the laws and the protection of the state from rebellion and invasion, he is the commander of the forces of the state. To- hold that there can be an interregnum in this office would he to hold to the temporary anarchy of the state, and in order to hold that there is no such interregnum we must hold that the governor as such never dies. To do this he must be the corporation sole, with succession in office. Such we think he is, and constituted -so by the organization of our state government, and not by any particular statute or statutes.” Here, again, is a second decision squarely affirming the power of the governor to sue, and resting it, not on “any particular statute or statutes,” but upon the constitutional power and duty conferred-upon him of “seeing that the laws are faithfully executed and obeyed.”
In State of Louisiana on the relation of Francis C. Mahan v. Dubuclet, 22 La. Ann., 602, the suit was a mandamus by a state tax collector against the state treasurer, and the court below directed a mandamus to issue. Afterward the attorney-gen
But the majority say that these two cases which involve that precise question are modified by a third and different case, State of Louisiana on the relation of Albert Baldwin v. Dubuclet, State Treasurer, 27 La. Ann., 29. What are the facts in this last ease ? There was a mandamus proceeding, and after decision in the court below an appeal was taken by the attorney-general, made returnable at the session of the supreme court to be held at New Orleans, on the first Monday of November, 1874. Before the return-day, on July 20, 1874, the plaintiff procured the consent of the governor for the transfer of the case
How, then, stands the case as to this precise point whether the governor has the power .to sue when the attorney-general, as was' stated at the bar was the ease here, refuses to act for the state? I have produced five authorities — first, the general statement of the text of the Encyclopedia of Law; second, the case from Georgia, supra; third, the case from Tennessee, supra; fourth, the case of 27 La. Ann., supra; and fifth, the case in 26 La. Ann. — all holding, without a dissenting voice, that the governor has the power to institute a suit for and on behalf of the state where the interests of the’entire people are concerned and the attorney-general is unable or, as was stated at the bar was the case here, refuses to act, by virtue expressly of the power and duty conferred upon him by the constitution, “to see that the laws are faithfully executed,” and that this power rests on. the constitution, without reference to any particular
The real matter thus submitted for our decision by the bill and by the request of the board of control and of the governor— the one controlling, fundamental matter for decision — is, Was the contract thus made an illegal contract? To that question, which has been from first to last the thing around which public interest centered, I shall now address myself. Before passing to that precise point it may be well simply to note the elementary proposition that where a sovereign state is seeking to enforce its rights — •the rights of the entire people — no pecuniary interest is required to be shown. This is fully settled by Missouri v. Illinois, 180 U. S., 208 (21 Sup. Ct., 331; 45 L. ed., 497), and Debs’ case, 158 U. S., 564 (15 Sup. Ct., 900; 39 L. ed., 1092). In order to determine whether this contract violated the provisions of the constitution hereinafter noted, a preliminary statement as to the history of events leading up to the adoption of these provisions is absolutely essential. Dor some twenty years prior to the constitution of 1890 it may be said, in short, that the history of the treatment of the convicts was a history of cruelties and horrors and infamies such as, fortunately for humanity, have rarely characterized the dealings of any state with its convicts. The convicts had been hawked about over the state during these twenty years and ■worked on farms and railroads operated by lessees. In both instances, the element of private gain on the part of the lessees was the dominant and controlling factor in the 'situation. The natural result followed. The insatiable cupidity of the lessees —the auri sacra fames — blotted out all feeling of humanity,
"Article X. The Penitentiary and Prisons.
“Section 223. No penitentiary convict shall ever be leased or hired to any person or persons, or corporation, private or public or quasi public, or board, after December 31st, A.D. 1894, save as authorized in the next section, nor shall any previous lease or hiring of convicts extend beyond that date; and the legislature shall abandon the system of such leasing or hiring as much sooner than the date mentioned as may be consistent with the economic safety of the state.
“Section 224. The legislature may authorize the employment, under state supervision and the proper officers and employes of the state, of convicts on public roads or other public works, or by any levee board on any public levees, under such provisions and restrictions as it may from time to time see proper to impose; but said convicts shall not be let or hired to'any contractors under said board, nor shall the working of con•victs on public roads., or public works, or by any levee board, ever interfere with the preparation for or the cultivation of any crop which it may be intended shall be cultivated by the said convicts, nor interfere with the good management of the state farm, nor put the state to any expense.
“Section 225. The legislature may place the convicts on a state farm or farms and have them worked thereon under state supervision exclusively, in tilling the soil or manufacturing, or both, and may buy farms for that purpose. It may establish a reformatory school or schools and provide for keeping of juvenile offenders from association with hardened criminals. It may.provide for the commutations of the sentences of convicts for good behavior, and for the constant separation of the sexes, and for the separation of the white and black
The first thing that strikes one is the imperative command that no convict should ever be leased or hired to any person or persons, or corporations, private or public or quasi public, after December 31, 1894, four years after the 'adoption of the constitution. . The second thing which arrests attention is that no previous leasing of convicts is permitted to last beyond that date, and so extremely quickened was the public conscience to the immediate necessity of putting a summary end to the leasing of convicts that the last clause of sec. 223 commanded the legislature to abandon the leasing system as much sooner than December 31, 1894, as would be consistent with the economic safety of the state. The one great thing, standing out as a mountain in the landscape, was the imperative command to the legislature to fix its eye on a positive date— December 31, 1894 — and to forever cease the leasing of convicts from 'and after that date. That was the polestar of the constitutional convention for these sections. Section 224 expressly names the only mode in which convicts could be worked after the date referred to — that is to say, on public roads, or other public works, or public levees: — in each and every instance shutting out all private gain by limiting the labor of convicts to employment on public works. And so sedulously careful were the constitution makers to shut out every form and species of hiring out the convicts for private gain that they expressly forbade the hiring of the convicts to any contractors under the levee board, and in addition thereto further stringently and strictly declared: “Nor shall the working of convicts on public roads, or public works, or by any levee board, ever interfere with the preparation for or cultivation of any crop which it may be intended shall be cultivated by the said convicts, nor interfere with the good management of the state farm.” The crops referred to here are plainly and manifestly the crops to be cultivated on the convict farm or farms pro
Let us summarize what the constitution meant, in the order of importance: First — There never should be any hiring of convicts to any private person, under any pretext whatever, after December 31, 1894. Second — All convicts should be concentrated on state farms after December 31, 1894, which farms the legislature must buy. In the interim until these farms should be bought — the interim between December 31, 1894, and the 'purchase of such farms — the convicts might be worked on strictly public works, under exclusive state super-. vision. Third — But such working-of convicts on purely public works, even, must never interfere with the primary object of
I shall refer to but two cases. The first is Beck v. Allen, 58 Miss., 143, in which Judge Campbell, speaking for the court, said: “Subtlety and refinement and astuteness are not admissible to explain away the expression of the sovereign will. The framers of .the constitution and the peoifie who adopted it must be understood to have intended the words employed in that sense most likely to arise from them on first reading them.” This doctrine is reaffirmed in Y. & M. V. R. Co. v. Adams, 77 Miss., 194 (24 South Rep., 200, 317; 28 South. Rep., 956). The second is the magnificent opinion of Cooper, C. J., in Ratliff v. Beale, 74 Miss., 247 (20 South. Rep., 865; 34 L. R. A., 472), where he says: “In construing the constitution we are to resort to such rules.as would aid in the construction of the statute, keeping always in view the fact that, while statutes descend into particulars and details, constitutions deal usually in generalities and furnish along broad lines the framework of government. To find the true meaning of the language of the constitution we are to look to the existing body of the law, whether common or statutory; to former constitutions, to existing evils, to the object and purposes to be ac
I conclude that there has never been any constitutional authority under which the legislature has ever had, at any time since the adoption of the constitution of 1890, any right whatever to lease any farm from any private lessor. It follows, as a matter of course, that Code 1892, § 3201, in so far as it authorizes the leasing of convict farms, is a palpable violation of the provisions of the constitution which we have been considering. This is made clearer by a consideration of the last clause, providing “that all the provisions of the law relating to the penitentiary” shall apply to a leased farm and to any farm' provided by the legislature “as a penitentiary or a part of it.” And yet how utterly incongruous it is to contend that the various provisions contained in the statute relating to the regulation of the penitentiary and to the state farms could be applied to these leased farms! The act of 1894 (Laws 1894, p. 65, ch. 75) was in execution of sec. 225 of the constitution. It looked to the purchase of as much land as
“Section 6. Nothing in this act shall affect or impair any contract made by the board of control for the renting or leasing of land for the year 1900; said contract to be executed as heretofore contracted.”
It certainly is too plain for disputation that the purpose of
In all that I have so far said, it will be observed that I have dealt with the contract, treating it as a lease of land. I have done so because to treat it as a lease of land is to put the matter in the strongest light possible for the appellants. But there is another view of this contract, taken by the learned chancellor in the court below, and which a fair construction of all its terms fully warrants, and that is that this contract has been
