*1 undisputed the evidence Unless

susceptible reasonable infer- of but one

ence, whether the driver of vehicle contributorily negligent negligent or

was respect to lookout for vehicles rear, negligence and whether such subsequent proximate cause of a

was

accident, ordinarily of fact questions jury.”

for the set aside the verdict

The trial court being An examina- jury excessive. reveals that of the record this case

tion my opinion question. It was a close dis- certainly some

that trial courts respect. I not think in this do

cretion would, therefore, affirm the I abused. resetting the trial court

action majority As for trial.

case trial in this the second

does not deal with subject pursue in this

matter will I

dissent. reasons, respectfully foregoing I

For

dissent. T., in this dissent. joins Ed ex rel. General, HANCOCK, Attorney al., Appellants, et Commissioner, Depart- HOLMES, J.

Charles Corrections, al., Appellees. et ment

Court *2 Constitution, the Hancock, Gen., Robert 253 of the Atty. Section Ed W. Frankfort, Gen., amendment, as follows: Willmott, Atty. Asst. Jr., appellants. for sen- and of “Persons convicted penitentiary Prichard, Frankfort, for in the Jr., to confinement tenced Edward F. the labor within shall confined at appellees. be penitentiary; and the Gen- the walls of Assembly shall not the eral STEINFELD, Justice. employment of convicts elsewhere, except upon the works Assem- of the General The session Kentucky, or of of the Commonwealth an Act passed bly of the Commonwealth the pestilence or in case when, during of release to as the “work is referred buildings, they the of destruction aof felo- program” for penitentiary.” in the be confined cannot The through 439.630. ny. the Attor- on relation of 1915amendment: enjoin brought ney General, this action 253 of the Constitution “That section and to of the this installation be that the Commonwealth so amended repugnant of part the Act as have declared employ Kentucky may of use and Kentucky Constitu- to section 253 penitentiaries of in such the walls tion. provided means as manner and involved statutory language herein law, persons felony and convicted of is as peniten- follows: in the sentenced to confinement constructing or tiary the of for

KRS 439.590: reconstructing maintaining public and department may pur- com- public bridges establish or for the “The roads and centers at munity pose making preparing correctional residential and material legislative approved by the bridges, locations for and and that roads places as body Kentucky may, by of the area where located Commonwealth for of confinement felons convicted convict labor use » penitentiary outside of the walls of the means, may ways other KRS 439.600: law, for vided aid the counties road purposes, on bridge work commissioner, person State “The such farm or farms.” delegates, may said commissioner extend place the limits of the confinement of complaint circuit court dismissed as to whom there is reason- that, holding, among things, other trust, his able cause to believe honor will prescribed authorizing him, Kentucky challenged “The Statute conditions, to: herein does 253 of violate Section Kentucky under the Constitution specifically designated “(1) Visit interpretation places of Kentuc- boundaries already has given Section period not ky for a exceed seven Ky.Law Rep. Lillard [21 days return to same 1899).” 483], (C.A.Ky., appeal From lodged. affirm in We reverse “(4) paid employment doTo work at in the basis Attorney

returning to institution or the fa- General claims cility night.” at 253 of our 439.600(1) violates section Con- intended to be reme- That was the evil argues that KRS vigorously stitution prohibition in the contained contrary to the died legislation section. spirit and intent of language, legislature that the no There is contention Originally the autho- Commonwealth was op- construction may not authorize pris- rized to use convict labor outside in addition penitentiaries eration *3 works, during a its or on walls on appellants existing, nor do those now buildings pestilence, if prison time of or of “correction- the establishment claim that not destroyed were and confinement could vio- 439.590 KRS al centers” authorized Commonwealth, Harris v. continued. if 253 these provisions section lates the 775, (1901); 434 Reli- 23 K.L.R. 64 S.W. with used in connection centers Mfg. ance Co. Board Prison Commis- v. par- to convicts allow grams which 135, sioners, Ky. (1914). 161 170 941 outside ticipate in non-work activities stated, Harris not attack Appellants do facilities. those “ * * * system1 or parole KRS of the the section While be sent quoted to permits requires a constitution the convicts at- for medical the correctional to be of the worked within walls penitentiary, they required tention not available are not to be challenge 439.600(3) They always kept walls, may do not KRS within the ” * prisoners “(partici- which authorizes guard sent out at times. training pate in an educational Mfg. decision in Our Reliance Co. v. ba- in Commissioners, supra, Board of Prison * * therefore, do not con- sis we said, invalidity of validity or sider decide the “ * un- * are not the sections of the Act which * that convicts shall be con- der attack. fined at labor within the walls of the

penitentiaries, Assembly and the General shall not have the opinion that KRS areWe employment elsewhere, their except upon section 253 is violative of 439.600(1) commonwealth, works of the as that section of the Constitution Lillard, pestilence case of Ky. or the George 106 destruc- v. construed prison tion of the building. (1899), 793 21 K.L.R. 51 S.W. and other cases. The 1915 amendment to section Constitution liberalized its provisions by employment deals with 439.600(4) authorizing prison the use of labor to by section 253. other than that allowed “ * * * aid the counties for road and clearly reveal debates * * bridge purposes, designed prohibit 253 was that section thereof, Commonwealth, any division Appellees argue that this is a meri private enterprise working any from torious progressive program, there walls, prison outside the convicts fore we should not strike it down. It is In exceptions will mention. we not for this judge benefits, court to if said, supra, we any, to be derived legislation, from but “ * * rather to determine the enact- whether is pro hibited Constitution. Viewing ment of section of constitution it in light, we hold that prevent working of convicts felony, except the state outside of the walls.2 parole system appears overly It A was held valid Wilson have been an broad statement. S.W. 557 (1910). amended, authorized that KRS

impermissible and 439.- implemented

as drawn and the Con- that section of contrary

stitution. is affirmed in

reversed in JONES, MILLI-

KEN, STEINFELD STEPHENSON, JJ., sitting. STEINFELD, JJ., concur.

JONES *4 STEPHENSON,

J., dissent from so much of the

which holds constitutional 439.600(1).

PALMORE and JJ., dissent (dissenting part). Justice parole system passed

muster in George 793 (1899), in ef- years.

fect for The work release

gram here in dispute is even restric- more prisoner’s

tive liberty parole. than

If Lillard is still the law I do not see how can declared invalid.

REED, J., concurs this viewpoint, BYRD, Appellant, Ray

David Kentucky, Appellee.