Ex parte White , 81 Ala. 80 ( 1886 )

SOMERVILLE, J.

— The petitioner was convicted, on January 26th, 1887, of playing at cards in a public place, which is an offense not involving moral turpitude, and on the same day was sentenced to hard labor for the county.

The order of the Commissioners’ Court of Hale county, authorizing him and others to be hired to persons out of the county, and under the authority of which the petitioner is held in custody, bears date December 6th, 1886, having been made and reduced to writing on that day.

1. It is first urged that this order was void and of no effect because it was never entered upon the final records of the court as required to be done by section 4468 of the present Code. We do not think this position is maintainable. The statute contemplates, it is true, a formal and permanent record entry of the minutes or proceedings of the Court of County Commissioners in reference to this subject-matter, and the duty of the judge of probate to make such a final record is clear. But it no where appears that his neglect to transcribe such minutes, already reduced to writing and in due form, was intended by the law-making power to entirely vitiate the legal validity of the order. This writing itself is a quasi record, being a written memorial made by the public officers authorized by law to perform the

__function exercised, and intended to serve as evidence of what was tobe done more formally,and to be permanently recorded. This involves every essential essence of a record, the validity of which is not dependent on its final character. Not only was it a valid memorial of such proceeding, but was competent evidence of the facts properly recited in it, until the final record had been completed.

2. It is further insisted that the order fails to show that, in the opinion of the Court of County Commissioners, the interest of the county required that convicts of the class to which the applicant belongs, should be hired out of the county. It is true that section 5 of the act of February 22, 1883, regulating the hiring of convicts, provides that they shall be employed or hired in the county where convicted, unless the Commissioners’ Court, or other body having charge of such hiring, entertain such opinion. In Ex parte Small, decided at the present term, we held that the act of the court in making an order of this kind was equivalent to a direct finding by them that the interest of the county required that such convicts be hired out of the county. The record or order need not specially recite this fact.

3. It was unnecessary, moreover, for the record or the order to determine in what specific manner the convicts should be employed, or to regulate the details of such employment. Section 4465 of the Code (1876), which provides that the Court of County Commissioners shall determine “ in what manner and on what particular works ” hard labor for the county 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, though it purports to establish such a system, does not do so in fact, and legal effect. It merely 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, 1876, §§ 4465, 4468; Ex parte Crews, 78 Ala. 457.

4. The order of hiring, and the contract made pursuant to it, are sufficiently certain and definite in their terms. It provides that those convicted of crimes not involving moral turpitude, to which class the petitioner belongs, shall not be worked in the mines, but may be worked by the hirer at such mines, near Birmingham, at “ the ordinary labor required of those working above ground.” It was not necessary to specify that those hired should not be employed on railroads. The statute prohibited this, and the prohibition impliedly entered into the contract as fully as if expressly inserted in words. Nor were two separate and distinct orders of hiring necessary — one of those convicted of crimes involving moral turpitude, and the other for those convicted of offenses not involving moral turpitude. There might well be one order, involving the terms of hiring for two separate and distinct classes. The order conforms fully to this requirement. There is no objection to a unity of contract, if the terms of hiring each class of convicts are independent and distinct, and the contract otherwise conforms to the statutory regulations governing the subject. The case of Ex parte Crews, 78 Ala. 457, was not intended to go further than this.

The application for habeas corpus must be denied.