25 S.E. 796 | N.C. | 1896
"I. That the Board of County Commissioners of Union County, North Carolina, have regularly established according to law a chain-gang for *549 the purpose of working the convicts of said county on the public roads of the said county; that your respondent is the superintendent of the said chain-gang for Union County, and as such superintendent he has in his custody and under his control the said Richard Z. Yandle.
"II. That the said Richard Z. Yandle is retained in custody by your respondent and worked upon the public roads of said county with other prisoners under authority as follows:
"That the Board of Commissioners of said county, in pursuance of law, as your respondent is advised and believes, have made provision for the employment on the public highways of Union County of all persons imprisoned in the jail of said county upon conviction of any crime or misdemeanor, and who fail to pay all the costs which they are adjudged to pay, or to give good and sufficient security therefor; and the said board of commissioners have appointed your respondent superintendent of such work, and charged him with the duty of (876) working such convicts upon the public roads of said county. That the said Richard Z. Yandle, as your respondent is informed and believes, was convicted of some crime or misdemeanor at the last term of Union County Superior Court, and sentenced by the presiding judge to imprisonment in the county jail of Union County for a period of three months, or ninety days. That the said Richard Z. Yandle, as your respondent is informed and believes, failed to pay the costs of said prosecution, or to give good and sufficient security therefor. That the said Richard Z. Yandle, being imprisoned in the jail of said county under said sentence of the Court, was delivered by the board of commissioners of said county to your respondent as superintendent of said chain-gang with instructions to work him upon the public roads of said county as other prisoners are worked.
"III. That the said Richard Z. Yandle is not detained by virtue of any writ, warrant or other written authority, except the judgment and sentence of the Court in which he was convicted, and a copy of said judgment and sentence is hereto attached, marked `A' and asked to be taken and considered as a part of this return.
"IV. That the said Richard Z Yandle, having been convicted of a crime as aforesaid, and being in jail under said sentence of the Court, was placed in the custody of your respondent to work him upon the public roads of said county, and the said Yandle is now retained by your respondent under the authority of said order of the commissioners of said county, and under no other authority."
The respondent offered the certificate of J. M. Bivens, Register of Deeds, as follows: "It is ordered by the board of commissioners that chapter 194, Acts 1895 (for the improvement of public roads in North Carolina), be adopted and accepted by the county of Union, and, *550 (877) with all its provisions, is hereby declared to be of full force and authority in said county. The board finds as a fact that the revenue of the county for ordinary purposes, and within the limitations prescribed by the Constitution, is insufficient to meet the necessary expenses of improving the public roads, and that, to meet said expenses, it is necessary to levy a special tax on the polls and property of the county not exempt from taxation. It is therefore ordered that a special tax be levied at the regular meeting of the board on the first Monday in June, 1896, not to exceed 15 cents on $100 worth of property and 45 cents on each poll, for the purpose of improving the public roads, and that the amount of tax on each poll and upon each $100 worth of property be fixed at the regular meeting on first Monday in June, 1896, and that in fixing the same the equation prescribed between the poll and property by the county commissioners shall be observed, and that the special levy aforesaid be placed in a separate column of the tax books, under the heading of `Special Road Tax.'" This certificate was admitted without objection.
"The cause coming on to be heard, and upon consideration of the certificate, and the return thereto by James Howie, and the evidence offered, the Court finds that he facts set forth in the return are true, and that the commissioners failed to enter on the minutes a record of their proceedings in regard to the working of convicts on the public roads, except as appears in the certificate of J. M. Bivens, Clerk of the Board, introduced in evidence. And the Court, being of opinion that the detention complained of by the petitioner is legal, it is ordered that the petitioner, Yandle, be remanded into the custody of the said James Howie. H.R. STARBUCK, Judge."
(878) Defendant excepted to the findings of fact and conclusions of law by his Honor, and assigned as grounds therefor: "(1) That he erred in finding the answer of Howie to be true, there being no proof in support of the facts therein set forth. (2) That his Honor erred in finding the evidence adduced that the commissioners of Union County had made provision according to law for working prisoners in jail. (3) That his Honor erred in holding, as a matter of law, that petitioner, Yandle, was in the rightful custody of Howie, and in remanding him to the custody of Howie, to be worked on the public roads. (4)That his Honor erred in failing to hold that the commissioners had no right to work petitioner on the public roads, and that he is in the unlawful custody of the respondent, Howie. (5) For such other and further errors as are apparent upon the face of the record."
The boards of commissioners of the several counties have power to provide for employing on the public streets, public highways or public works, of persons committed to jail by any magistrate or judge of a Superior or Criminal Court having jurisdiction to try the accused upon conviction of any crime or misdemeanor, or upon their failure to enter into bond to keep the peace or for good behavior, or to pay or properly secure the payment of costs or fines. That the authority to make the order complained of was granted by section 3448 of The Code, and was not withdrawn by any subsequent act, is settled in the well-considered opinion of Justice MacRae, in Myers v. Stafford,
The principle governing this case is in no sense analagous to that upon which the decision hinged in ex parte Lange, 18 Wall., 163, 175. The order to work the defendant upon the public roads was in no proper sense a second sentence, imposed after a part of the punishment provided for by an original judgment had been inflicted, but was an (880) incident to the punishment, in contemplation of which he committed the offense. It has been expressly held also, that the provision of *552
section 3448 of The Code, which forbids the hiring out of convicts except under order of the Court embodied in the sentence, applied only to farming out convicts to individuals or corporations, and did "not extend to labor employed upon public works, and under the supervision and control of public agents." S. v. Sneed,
NO ERROR.
Cited: S. v. Nelson, ante, 801; Herring v. Dixon,