Haralson v. State , 123 Ala. 89 ( 1898 )

TYSON, J.

On the 8th day of February, 1897, the commissioners’ court entered on its minutes the following- order: “It is ordered that E. A. Phillips, agent of hard labor for Clay county, be and he is hereby authorized to contract Avith the Sloss Iron and Steel Company for the hire of the convicts of said county at the rate of five dollars per month per head for each convict.” This order involved the finding and decision by the court that the interest of the county required that such convicts be hired out of the county and Avas sufficient.—Ex parte Small, 81 Ala. 85.

It was unnecessary for the order to determine in what specific manner the convicts should he employed, or to regulate the details of such employment. Section 4521 of the Code which provides that the court of county commissioners or hoard of revenue shall determine “in what manner and on what particular works the labor shall be performed” has no application to this case. It applies only where there has been established a system of hard labor for a county and convicts are employed in laboring on the public works of such county. The order here made only authorizes a hiring of convicts to a particular person or corporation, out of the county. “This is not a system of hard labor for the county, which is placed by the statute under the superintendence and control of the court of county commissioners.” — Code, § § 4521, 4528; Ex parte White, 81 Ala. 80; Ex parte Crews, 78 Ala. 457.

Nor was it required of the court of county commissioners at their first meeting in 1898, or as soon thereafter as practicable, to re-determine whether the convicts sentenced to hard labor shall be employed in laboring On the public works of the county or shall be let to hire, and. their decision to be entered on the records of the court. The statute making this requirement, which existed under the Codes of 1876 and 1886 (§§4594,' 4468), was repealed by the act of February 18, 1895 (Acts, 1894-95, p. 849), and was not in force when this order was entered, and was not re-enacted by the Code of 1896. The commissioners’ court had the right to recognize this order as a, valid, subsisting one and to continue to recognize and act under it so long as in their judgment they think it is wise to do so; and' in the absence of any other, the hiring of the. convicts by them out of the county to tl\e Sloss, Iron & Steel Company under it is regular and proper. And the fact that the contract of hiring with the company is from year to year cannot affect the validity of the order involving their determination to hire them out of the county and to this company.

Section 4535 imposes the duty upon the court of county commissioners, or board of revenue by themselves, or by some member of their body, or other person to be appointed by them, to make the contract of hire. The contract of hire in this casé was made by the probate judge who was and is a member of the court. His authority to do so need not have been in writing.—Jack v. Moore, 66 Ala. 184.

The petitioner cannot be heard to complain that he was not put to hard labor earlier. His detention in the county jail after conviction was at his request in order that he and his counsel might find some one in the county who would hire him and to obviate his being sent away out of the county.

The judgment refusing to discharge on the writ of habeas corpus must he affirmed.

Affirmed: