State v. Banks , 66 Miss. 431 ( 1889 )

Cooper, J.,

delivered the opinion of the court.

This is a suit brought by the state for the use of Noxubee county against the contractor for county prisoners, B. W. Banks, and the sureties upon his official bond. The declaration, after setting out the bond upon which suit is brought, assigns as breach thereof that certain prisoners, whose fines and costs adjudged against them amounted in the aggregate to the sum of two thousand eight hundred and eighteen dollars and sixty-five cents, were delivered by the proper officers to the contractor, who thereby became liable to pay to said county said sum, but that he has only paid the sum of one thousand six hundred and eighty-four dollars and ninety-five cents, part thereof, leaving due and unpaid the sum of one thousand one hundred and thirty-three dollars and seventy cents. The defendants, among other things, pleaded that the said Banks was not chargeable with certain items in the account filed with the declaration, viz.: with the item of one hundred and forty-six dollars and seventy-five cents charged as the fine and costs due by one Fed. Davis, nor with the item of one hundred and fifty-six dollars and seventy-five cents as the fine and costs due by June Johnson, nor with the item of three hundred and sixty-two dollars and sixty-two cents charged as the fine and costs due by Robert Morris, nor with the item of three hundred and nine dollars and fifty-five cents charged as the fine and costs due by Count Nicholson, for the reason that the said Fed. Davis and June Johnson immediately aft.er they had been delivered to the said contractor escaped from his custody without his fault or negligence, not having performed any labor for said contractor, and as to the fine and costs charged agaist Robert Morris and Count Nicholson for the reason that said persons were pardoned by the governor of the state and released from custody before they or either of them had worked out the fine and costs charged against them respectively. To this plea a demurrer was-interposed by the state which was overruled. This action of the court presents the first assignment of error.

The demurrer should have been sustained.

By the contract made between the county of Noxubee and the contractor, Banks, he became and was liable to pay to the county the fine and costs of all persons convicted of misdemeanors, upon delivery to him of such persons by the proper officer of the countyr or upon notification by such officer that such persons were “ subject” to his control. By § 3158 of the code it is made the duty of the sheriff on delivering prisoners to the contractor to take his receipts in duplicate, and to deliver one of them to the clerk of the board of supervisors, “ with a true statement of the amount of the fine, if any, due in each case, and all costs, including jail fees due from such prisoners, and such clerk shall charge such contractor on the book kept by him for such purposes with the amount of the fine and costs, including jail fees, in each case, and shall credit the sheriff accordingly.”

Section 3161 declares that, “ on or before the first Monday of June and December of each year, the said contractor shall obtain from the clerk of the board of supervisors of the county his receipt-warrant for payment into the county treasury of the amount of his liability on account of prisoners delivered, or offered to be delivered to him by the sheriff of the county, prior to that time, and shall make payment of said amount at once ' into the county treasury, failing in which, suit shall be brought on his bond, which shall be triable at the first term of the court, and shall be a preference case.”

By § 3150 it is provided that the county contractor shall not be bound to receive any convict who, from bodily infirmity, apparently permanent, shall be unable to labor, and by § 3167 it is provided that upon the death of a convict without fault of the contractor, he shall be relieved from liability to pay a greater sum for the fine and costs of the deceased convict than the value of his labor up to the time of his death, computed under the act.

Section 3162 declares that any prisoner sentenced to imprisonment as a punishment for his offense shall labor for the contractor during that time without compensation, apd shall also labor for him at a compensation fixed by the act until he shall pay thereby the full amount of the liability of the contractor for fine, costs, and jail fees on his account.

These sections of the code, contained in the chapter in relation to contractors for county prisoners, indicate the terms on which the labor of the convicts is secured by one desiring to contract therefor. The contractor becomes instantly liable for all fines, costs, and jail fees upon delivery of the convict, and must semi-annually obtain from the clerk of the board of supervisors a pay warrant for the sum charged against him on the books of such clerk, and pay the sum into the treasury of the county. The single exception contained in the law by which the contractor is relieved of liability to pay the fine, costs and jail fees of a prisoner committed to his custody, is the event of the death of the convict; in all other cases he must, under the law, which is a part of his contract, pay into the treasury the full sum charged against the convict. Neither an ■escape nor a pardou is specified as a ground upon which the contractor is to be absolved from his obligation to pay. The county and the contractor must be held to contract with reference to the constitutional power of the governor to pardon, and of the danger' ■of occasional escapes. It is not to be supposed that either pardons or escapes will be of frequent occurrence, and we must assume that the contractor in securing the labor of all convicts free of charge for the terms for which they may be sentenced as a part of their punishment, is more than recompensed for the occasional losses he will incur by reason of the pardon of the convict before he shall work out the amount of his fine and costs. In any event, there is-no provision of law relieving' the contractor from liability in such cases, and the courts cannot supply the defect (if it be a defect) by adding a new provision to the law.

The plea of set-off is not maintained. It does not appear that the account sought to be set off had ever been presented to the-board of supervisors for allowance and rejected. It is only after a claim has been so rejected that an action may be maintained against the county. Code,§ 2175; Lawrence Co. v. Brookhaven, 51 Miss. 68.

Treating the plea as one of payment instead of set-off, it is invalid, because no right or authority is shown in the persons to whom the sums were paid to receive the same.

The judgment is reversed, the demurrer of the county sustained, and cause remanded.