6 Ga. App. 339 | Ga. Ct. App. | 1909
(After stating the foregoing facts.)
It will be seen by reference to the action of the court in excluding from evidence the contract between Turner county and Conolly & Pinson, and also the order of the ordinary of the county appointing the defendant whipping-boss of the convict camp, and in instructing the jury in the manner set out above, that the judge took the view that all misdemeanor convicts in this State in 1908 and prior thereto could not be employed otherwise than upon public works; that to employ them otherwise would be so wrongful that the officials of the county chain-gang who attempted to carry out the direction of the ordinary (or other tribunal having county matters in charge) could not justify their acts in enforcing discipline. We think that the judge erred in his view of the law. By tbe Penal Code, §1039, persons convicted of a misdemeanor are punishable “by a fine not to exceed one thousand dollars, imprisonment not to exceed six months, to work in the chain-gang on the public works, or on such other works as the county authorities may employ the chain-gang, not to exceed twelve months, and any one or more of these punishments may be ordered in the discretion of the judge.” In this same section there is. a proviso as follows: “That nothing herein contained shall authorize the giving the control of convicts to private persons, or their employment by the county authorities in such mechanical pursuits as will bring the products of their labor into competition with the products of free labor.” By the Penal Code, §§1146-1149, the county authorities are authorized to appoint a whipping-boss for misdemeanor convicts, to fix his compensation, and to define his duties. This officer is authorized to administer punishment
By looking to the contract between the ordinary of Turner county and Conolly & Pinson it will be seen that the proper authority in that county had organized a chain-gang; that the convicts were not to be given into the control of private persons; that the chain-gang was to be managed exclusively by the county authorities, through regularly appointed guards and officers under the supervision, rules, and regulations of the prison commission; but that the convicts were to be worked, not on public works, but upon what may be called private works, that is to say, upon the turpentine farm of Conolly & Pinson. The ordinary did not hire or lease the convicts to that firm, but did contract that the labor of the convicts should be employed for their use and benefit. This presents the question squarely whether, prior to September 19, 1908, it was lawful for the county authorities to employ the county chain-gangs in doing work for private persons, where the control of the prisoners was'fully retained by the county authorities, and where no private person directly or indirectly had any authority over the convicts themselves.
The statute (Penal Code, §1039) provides that the misdemeanor convicts shall be sentenced to work “on the public works, or on such other worlcs as the county authorities may employ the chain-gang and the Supreme Court has held that the trial court should follow this formula in sentencing prisoners to the chain-gang. Screen v. State, 107 Ga. 715 (33 S. E. 393). Since works are usually either public or private, it would seem that there is but little need to resort to construction to determine the meaning of the statute. A person looking merely to the language of the code section itself would easily and naturally reach the conclusion that the legislative intent was that convicts should be put to labor on the public works unless the county authorities should ,see fit to employ them in other work; and as works other than
The rule is well recognized, of course, that the history of a statute may give to its words a meaning they otherwise might not have, and, on the other hand, that it may emphasize the fact that the words are to retain their common and ordinary sense. See Acree v. State, 122 Ga. 144 (50 S. E. 180). We shall first look to see whether these words “on such other works,” etc., were in the statute originally or were added by amendment. Going back to the Code of 1873, we find section 4310 (corresponding to section 1039 of the Penal Code of 1895) providing, as to this subject, only for work in a chain-gang on the “public works.” By cognate sections of the Code of 1873 (§§4814, 4815, 4820) the ordinaries of the counties of the State were given authority to organize chain-gangs, and to cause the prisoners to be put to work on the public roads, or to turn over the county convicts to the Governor, to be employed on the Western & Atlantic Bailroad, or to hire them out to private individuals and other contractors engaged in doing public work. Under this plan, while the convicts were to be employed only in public works, their physical custody and control might be delivered into the hands of private persons, engaged in that form of work. In 1874 two acts were passed. One of them, approved February 28, 1874 (Acts 1874, p. 24), amended section 4814 of the Code of Í873, and authorized the ordinary or other county authorities to work the convicts on the public works of the county in chain-gangs or otherwise, “or to hire out such convicts, upon such terms -and restrictions as may subserve the ends of justice.” This act, after having been subjected to certain mutations, now appears in the Penal Code of 1895,
If it had not been for the proviso created by the Senate amendment to the act of 1879, the county authorities, under other code sections and statutes then in existence (see Code of 1882, ; §§4814, 4815, 4820, 4821 (e)), might not only have employed the convicts upon private works but also have turned over the physical custody of the prisoners to private hirers. The effect of this proviso was to repeal so much of those laws as authorized the hiring out of the convicts and the delivery of their custody and control to private persons. County of Walton v. Franklin, 95 Ga. 538 (22 S. E. 279).
There is nothing to which we are unaccustomed in the retention of the control of convicts by the public authorities while their labor is sold to private persons. This plan was pursued as to the felony convicts from 1897 to April 1, 1909. Mason v. Hamby, ante, 131 (64 S. E. 569). See Acts 1897, p. 71; Acts 1903, p. 65. Under these acts the prison commission organized the penitentiary system, and employed wardens, guards, etc., who had the immediate control of the prisoners, but leased the labor of the felony convicts to private lessees. Under the acts of 1897 and 1903, cited above, the prison commission was given general supervisory powers over the misdemeanor chain-gangs, but the particular control was left with the county authorities and the officers by them employed.
In no case (if we except the palpable obiter in the case of Rountree v. Durden, 95 Ga. 221, 22 S. E. 149), has the Supreme Court ever held that a bona fide arrangement by which the county authorities organized the chain-gang, employed the proper officers, and through them retained actual control of the men but employed their labor for private individuals, was illegal. Such work in a very fair sense is indeed quasi public work, for the county receives the benefit of the labor, as the amounts realized from the contracts to do the labor for individuals is paid into the county treasury and is used for public purposes. In all of the opinions rendered by the Supreme Court on the subject there is a negative pregnant that such an arrangement would be legal. In Russell v. Tatum, 104 Ga. 332 (30 S. E. 812), it is said: “That convicts can not be worked in chain-gangs controlled by private individuals is well-settled law of this State.” Also, in the same case: “The detention of the convict by the private individual who had him in custody was therefore illegal.” In that case the
The General Assembly seems to have recognized that the language of section 1039 of the Penal Code allowed the county authorities to employ the convicts in private works; for at the special session of 1908, after a lengthy report had been received from a special investigating committee, inveighing against the employment of convicts otherwise than upon public works, an act was .adopted striking the words “'or on such other works,” etc., from that section and leaving it so that the sentence of the court should read in future “to work in the chain-gang on the public roads, or on such other public works as the county or State authorities may employ the chain-gang.” Acts 1908, p. 1119.
One other point deserves attention. One of the provisos in section 1039 of the Penal Code is that the convicts shall not be ■employed by the county authorities “in such mechanical pursuits as will bring the products of their labor into competition with the products of free labor.” The contract between the ordinary •of Turner county and Conolly & Pinson provided that the chain-gang should work in the turpentine business of that firm. The ■court charged the jury that convicts could not be employed in the turpentine business. We hardly think that work on a turpentine farm is a mechanical pursuit, according to the definitions which have been given that phrase. See the definitions of this phrase-
If the eyes of one, a citizen of another State, or yet of a future generation, should chance to fall upon these pages, he will perhaps wonder why questions of such apparent juristic simplicity should have engaged the pains of the court to such a length. However, we have deemed it necessary to go into the question lengthily and with much painstaking. Indeed we may state, in fairness to the trial judge, that the view of the law presented in the rulings complained of is in accord with that current largely among the bench and bar of the State. A cognate phase of this great question, its legislative aspect, held the General Assembly of this State in extraordinary session for many days last year. Outcry, resolutions, investigation, and even the able report of the investigating committee (see Acts 1908, pp. 1059 et seq.) have tended to raise the question to such importance as to make the research we have given it worth the while. The old system is gone; a new system is in vogue. Any word as to the wisdom of either is not within our province to say. The case arose under the old law, and is to be administered accordingly. Judgment reversed.