State ex rel. Greaves v. Henry , 87 Miss. 125 ( 1905 )

Calhoon, J.,

delivered the opinion of the court.

Had the board of control of the state penitentiary the power, under the constitution, to work convicts on leased lands ? This is the chief question in the agreement of counsel on both sides in their request for adjudication. If the legislature had such power, the board, which it created, has it; otherwise, not. So the real question is, Did the legislature have it ? Before proceeding to the examination of this subject, it- is proper to say that the writer is in full accord with the reasoning and conclusions in the concurring opinion of Justice Truly in the case of Henry et al. v. State (decided January 22, 1906), ante, 1—(39 South. Rep., 856), on that and all other matters it discusses except one. I do not agree with him in the doubt expressed in it that any officer or person can use the name of the state in the institution of legal proceedings without express warrant of the constitution or laws, or necessary implication, from them, even if corruption be charged. My agreement with that concurrent opinion on the other matters lessens investigation now; in fact, I might rest on it if I did not feel impelled to make some additional observations pertinent to the inquiry.

In solving the question first to be considered, the interpreter of the language used must carry along with him the elementary principle that, if there be a well-founded, reasonable doubt of the constitutionality of a legislative act, it must be held constitutional. This is a well-recognized rule of the courts, ever vigilant, as they should be, of the rights and prerogatives of each branch of the governmental body politic. This rule is based on common sense. Each branch represents the people. Each branch, legislative, executive, or judicial, is the people, by the intendment of the organic law, in its proper sphere, and must be presumed to act within its powers under the constitution, unless the contrary plainly appears. To the courts only is the authority given to determine this, and great caution should be, and always is, exercised by them in such delicate inquiries. Otherwise, instead of being the final refuge of liberty, they would be its grave. Loose construction 'would eventually mean ruin. Another principle to be carried along is that, if the language be plain, the announcement must enforce it, to whatever evil it may apparently lead; and a state legislature is an absolute despot, its acts on all subjects being free from any restriction whatever not found in the state or federal constitution. Congress has no power not confided to it. A legislature has all power not withheld from it. Another principle is that, where the constitution deals with a subject, its words must be the sole boundary, and sacred from the legislatures, except where it permits expressly or by necessary .implication. Another is that, where the constitution schedules powers, giving or taking away, it must be presumed to have scheduled all, and it only must be looked to, with its necessary implications, for the limit of authority or restriction. Still another is that, where the language is plain, subsequent action by the departments, or contemporaneous or antecedent history of the subject, cannot be appealed to for interpretation; but these may all be delved into to ascertain the meaning and force of terms or words — the real intent, from the language, being the very thing at last to be ascertained. Lastly, where the legislature had powers precedent to the constitution, it will continue to enjoy them to the full extent as before, up to the point of restriction by that instrument

It.is certain that the courts should not lightly declare void the leasing system, which for twelve years had netted the state an enormous sum of money and saved it an enormous loss monthly in outlay which would have been necessitated without it. It is of the highest importance to the appellant, and, in my judgment, vital to its success, that the word “may,” in sec. 225 of the constitution, should be construed as “shall.” Pages of argument are devoted to this. The particular words are: “The legislature may place the convicts on a state farm, or farms, an'd have them worked thereon, under state supervision exclusively, in tilling the soil, or manufacturing, or both, and may buy farms for that purpose.” (The italics are ours, as they will be ours whenever used in any quotation throughout this opinion.) Very clearly, if “may” here must be read “shall,” the appellee has no shadow of a case; and if the learned judge below had thought that, his judgment would have been the reverse of what it is. He did not think so. Neither do we. The constitutional convention was never guilty, in the then situation, of the grotesque absurdity of meaning, when they said “may,” that the legislature “shall” place' the convicts on a farm or farms, and “shall bity farms for that purpose.” To any plain, sane mind this view is instantly and palpably ridiculous on the face of it. There are many scores of cases in the law books, applied to a great variety of facts, and of infinite shades of reasoning, on the subject of when “may” is mandatory and when permissive. It would take several volumes to intelligently present them; but, on a thorough churning, the cream of them is 'that “may” means “may,” unless from the whole context the purpose plainly appears that it should be mandatory, and then, and not until then, it is construed to mean “shall.” We might.stop here on this branch; but to throw all the light possible on it, and, as the citations will be needed for reference in the consideration of other points made, we reproduce everything, pertinent from the journal of the proceedings of the constitutional convention.

Bear in mind that the legislature had unlimited power, before the constitution, to do with the convicts as it saw fit. It could work them in the penitentiary,- or hire them to any one it pleased, or lease lands and work them on these, or buy lands and work them on those. In fact, it did not either lease or buy lands. It hired out the convicts bodily to individuals and corporations, with the result of great inhumanity — brutality, in fact, in its most hideous proportions. This system began with a leasing out of the penitentiary property, the convicts being included with the lease of the property. This gave rise to the popular confusion of terms in applying the word “lease,” applicable to the penitentiary and the land it inclosed only, and the word “hire,” applicable alone to the convicts. It is a fact that there never was a lease of land to work the convicts on until after the constitutional convention, thus making it certain that there never could have been any complaint of that before, and demonstrating that the words “leasing or hiring of convicts,” appearing in the proceedings of that convention, refer, as they plainly do from the context, to the convicts, and not to the land.

The first appearance of the subject is on pp. 56, 57, of the journal, as follows: “Mr. Dean offered the following resolution, which was adopted: 'Resolved, That the president of this convention appoint a committee of seven members to whom all .ordinances or resolutions relating to the penitentiary or convict-leasing system shall be referred.’ The president appointed the following on said committee, to be known as the ‘committee on penitentiary:’ Messrs. Dean, Featherston, Dillard, Jones, Love, Alcorn, and Sexton. Mr. Dean offered the following ordinance, which was read, ordered printed, and referred to the committee on penitentiary: ‘Be it ordained by the people of the state of Mississippi in convention assembled, That from and after the 1st day of January, A.D. 1895, the system commonly known in this state as the “convict-leasing or hiring system” shall be unlawful, and from and after that date the hiring of state convicts to individuals or corporations is hereby prohibited and shall forever cease. The legislature shall provide, by appropriate legislation, for the abandonment of this system and practice by the above-mentioned date, or sooner if practicable.’ ”

It is plain that Mr. Dean’s resolution and proposed ordinance had reference only to the leasing (hiring) of convicts, and not to the leasing of lands as state farms. In fact, there never had been any state farm, leased or bought, but a hiring out of convicts only, and there could never have been any complaint about leasing lands by the state. There has never been any complaint, since the constitution, of leasing land during the more than ten years the legislature has been leasing it, until within the last ninety days, and that in the chancery suit of State v. Henry, Warden; and neither in that nor in the case at bar is there, or could there be, any complaint of ill usage, or bad treatment of any sort, or any sort of evil arising out of the system. This is mentioned to show that we are invited to decide a mere dry, bare constitutional question, with no evil to remedy. In essence we are simply to say whether a leased farm may be a state farm, whether land must be bought and owned in fee simple before it can be a state farm, whether a lease for one or five hundred years would be void.

So far from there having been any condemnation of the system, it has received very high commendation by this court in State v. Levee Commissioners, 75 Miss., 136, 137 (21 South. Rep., 662), as follows: “But it may be said that when the state enters upon-the business of cotton planting, its property employed in, or created by, and resulting from, such mere business employment is, as to these bondholders and the levee board, then to be regarded and treated as all other cotton raised by planters in pursuit of their vocation. The plain answer'to this is that the state, in discharge of its governmental duties of looking after, caring for, and suitably employing its penitentiary convicts, has ivisely deemed it best to distribute its convicts and establish penitentiary farms in'several localities in the state. These farms are parts of the state’s penitentiary system of employing its convicts and caring for them.' They are, in fact, local and movable penitentiaries, under the sole management and control of the state authority, and the products of these farms, thus .established to promote the welfare of the convicts and to provide them with labor to which they are adapted and for which their previous training and habits of life peculiarly fit them, are parts and parcels of the property of the state, just as shoes, wagons, and furniture made by convicts are. The prime object of the state in maintaining a penitentiary, under whatever system adopted, is to properly guard and care for the convicts, and to lessen the public burden of feeding, clothing, sheltering, and properly carvng for them. The raising of cotton, the making of shoes, the making of furniture, are merely incidents to the discharge of the functions of government in maintaining and managing its penitentiary.” A farm leased by the state is, therefore, a “state farm,” and not a “private farm.” The cotton referred to was grown by the state on leased lands.

Becurring now to the journal of the constitutional convention, on pp. 671, 672, we find the constitutional clauses in point finally adopted, as follows:

"Article X. The Penitentiary and Prisons.

“Section 223. No penitentiary convict shall ever be leased or hired to, any person or -persons, or corporation, private or public or quasi public, or board, after December the 31st, A.D. 1894, save as authorized in the next section, nor shall any previous lease or hiring of convicts extend beyond that date; and the legislature shall abandon the system of such leasing or hiring as much sooner than the date mentioned as may be consistent with the economic safety of the state.

“Section 224. The legislature may authorize the employment, under state supervision and the proper officers and employes of the state, of convicts on public roads or other public works, or by any levee board on any public levees, under such provisions and restrictions as it may from time to time see proper to impose; but said convicts shall not be let or hired to any contractors under said board, nor shall the working of convicts on public roads, or public works, or by any levee board, ever interfere with the preparation for or the cultivation of any crop which it may be intended shall be cultivated by the said convicts, nor interfere with the good management of the state farm, nor put the state to any expense.

“Section 225. The legislature may place the convicts on a state farm or farms and have them worked thereon under state supervision exclusively, in tilling the soil or manufacturing, or both, and may buy farms for that purpose. It may establish a reformatory school or schools, and provide for keeping of juvenile offenders from association with hardened criminals. It may provide for the commutation of the sentences of convicts for good behavior, and for the constant separation of the sexes, and for the separation of the white and black convicts as far as practicable, and for religious worship for the convicts.

“Section 226. Convicts sentenced to the county jail shall not be hired or leased to any person or corporation, outside the county of their conviction, after the first day of January, A.D. 1893, nor for a term which shall extend beyond that date.”

And on p. 692 an important ordinance, as follows:

"Penitentiary Ordinance.

"Be it ordained by the people of Mississippi in convention assembled:

“Section 1. With the view of enabling the legislature at its next session to have before it the necessary information upon which to act, if it should determine to establish a penitentiary farm, it is made the duty of the governor to appoint five commissioners, who shall, prior to the next session of the legislature, carefully inspect such bodies of land as may be thought suitable for such location, and who shall make report to the governor as to the several advantages of the bodies of land inspected by them, and as to the propriety of establishing such farm or some other system, and as to the advantages of each, cost, and other proper matters, to be laid by the governor before the legislature, with such recommendation as he may see proper .to make.

“Adopted by the convention November 1, 1890.”

From art. 10 of the constitution it is clear that the hiring of any convict after December 31, 1894, would have been unconstitutional and void, if not as authorized in sec. 224. They have not been' so hired, as we assume, unless it appears in the record before us, and this we will presently consider. It seems to us manifest, also, that there was no intention to interfere with the legislative poAver to lease land for penitentiary farms. The absolute denial of this right and the requirement that the eonAÚcts shall all be worked on one state farm is not to be thought of. One epidemic of cholera might destroy the whole scheme of profitable work, and sec. 225 expressly permits the placing of “the convicts on a state farm or farms.” These farms may be bought in fee simple or for one or more years, as we confidently think. That “may” cannot be held to mean “shall” we think apparent from the whole article. To demonstrate this it is only necessary, throughout the whole four sections, to read the Avord “shall” wherever the word “may” appears, and see to what absurdities the reader will be conducted. That it Avas designed to mean “may” — that is, permissive — and not “shall,” which is mandatory, is plain from the ordinance, before recited, in the use of the language “if it should determine to establish a penitentiary farm” and the words “and as to the propriety of establishing such farm or farms or some other system.” The legislature did establish the system of leasing, and its constitutionality has never been questioned in all these years, until two or three months ago, notwithstanding it has been under the notice of the supreme court repeatedly, and acted on by all the departments of the state government, under the administration of all the governors, attorneys-general, legislatures, boards of control, auditors, treasurers, and the whole people, without a murmur or cause for a murmur. If the word “may” be mandatory in sec. 225, then sec. 224 is annulled, because sec. 225 would read: “The legislature shall place the convicts on a state farm or farms and . . . shall buy farms for that purpose.” If that be right, what becomes of the authority in sec. 224 to employ them on roads, public works, levees, etc. ? It is hardly probable that any unbiased lawyer or citizen would say, at the least, that the lease is unconstitutional beyond reasonable doubt. This is enough, but we think it clearly not in conflict with the constitution.

Another question is whether the contract before us “is one of leasing lands or one of hiring of convicts.” It would be enough to express agreement with the concurrent opinion of Judge Truly mentioned above. It is full on this subject. But we prefer to set out the contract for the consideration of the reader. The board of control passed the following — viz.:

“Resolved, That the board of control work with the convicts, for the year 1906, Sandy Bayou plantation, owned by H. J. IVIcLaurin, and shall receive for their share of the crop and for the labor' of the convicts $25,000 (twenty-five -thousand dollars), which sum the said McLaurin guarantees to the state certain and in all events for said year; the number of convicts to be employed on same to average seventy (70), if so many may be necessary to the proper cultivation and harvesting of the crop thereon.”

Thereupon the contract, signed and approved by the board, was made, as follows — viz.:

“First — That the board of control has agreed to work the plantation in Sharkey county, state of Mississippi, owned by the said McLaurin, and known as ‘Sandy Bayou,’ for the year 1906.

“Second — That the said board of control shall fay to the said McLaurin, for the use of said-plantation for said year, all the crops grown, raised, and gathered on said premises for said year, after the sum of $25,000 shall have been reserved therefrom; and the said McLaurin guarantees that the said crops raised on said' premises shall amount .to $25,000, and binds himself to the said board of control in that sum, promising to make up whatever the crops grown on the said premises may fall short of that amount.

“Third — That the said board of control shall have absolute authority over the labor employed in working said land, and that said labor shall be under the direction of said board and of the persons appointed by the board.

“Fourth — That the said McLaurin, in addition to the land leased and furnished by him, shall also furnish the necessary mules-and teams for working of said plantation, and feed for same, and shall also furnish all wagons and farming implements and planting seed.

“Fifth — That the said board of control shall have said crops made, harvested, and gathered. This act executed in duplicate.”

If the contract signed in duplicate and ratified by the formal official action of the board, thus interpreting the resolution, be not a lease of land, under the adjudications of this court, the farmers of the state are in a very uncertain situation.

On. the matter of the insistence that Code 1892, § 3201, has been repealed, the writer is in full accord with Judge Truly’s concurrent opinion heretofore referred to, and thinks it unnecessary to enlarge upon it. That section, in my opinion, stands unrepealed.

Two other questions are propounded by counsel — viz.: “Is the board of control beyond the power of the courts in respect to the subject-matter of the contract in question? The contract being already made, is it valid under the averments of the petition ?” These questions are cognate and may be considered together. " We shall answer the first, presuming, of course, that it has reference to the action of the board in the current case. If it should ever depart from the plain law — as, for instance, hire out convicts- — -the act would be unconstitutional and void and subject to the power of the courts. The real and only question here can be whether its action may be controlled when it is in the exercise of the discretion committed to it by the legislature. Answering this, we say, “Undoubtedly, no.” In such'case the courts can no more substitute their discretion for that of the board than it could for that of the legislature; and this is true, in my judgment, even though corruption be charged. The correction of that must lie only in the ballot boxes and grand jury rooms. This position is impregnable and supported by decisions everywhere, and nowhere more than in this state. Shotwell v. Covington, 69 Miss., 738 (12 South. Rep., 260); Board v. Grant, 9 Smed. & M., 90 (47 Am. Dec., 102); Swann v. Buck, 40 Miss., 290; Swan v. Grey, 44 Miss., 397; Vicksburg R. R. Co. v. Lowry, 61 Miss., 102 (48 Am. St. Rep., 76); Mayor v. Rainwater, 47 Miss., 550; Monroe Co. v. Strong, 78 Miss., 570 (29 South. Rep., 530); Rotenberry v. Yalobusha Co., 67 Miss., 472 (7 South. Rep., 211); Ham v. Levee Board, 83 Miss., 556 (35 South. Rep., 943).

The board of control is, beyond question, a governmental board duly established by the legislature. To it, and to no other, is confided a determinative, judicial discretion. By Laws 1894, p. 66, ch. 75, sec. 3, after providing for the selection and purchase of land for penitentiary farms, 'this language is used: “Aind the board of control shall remove the convicts, or so many as may be profitably employed, to the land so purchased as soon as the same may be in a condition to receive them.” In sec. 4 the board is directed to act in reference to the land bought “as soon as practicable.” Section 5 is: “Should the board of control determine that all the convicts cannot be profitably worked on said lands and in industrial pursuits connected therewith, they are authorized to employ such convicts as cannot be used in such manner, not prohibited by the constitution, as may be deemed most advisable and to the best interests of the state, but shall never part with their control and management Laws 1900, p. 64, ch. 56, sec. 2, after providing for the purchase of other lands for a penitentiary farm “in addition to those already owned by the .state,” proceeds thus: “Said land when jrarckased shall be occupied as soon as practicable by the board of control with as many convicts as may be necessary to occupy and manage the same.” As late as 1902 (Laws 1902, p. 54, ch. 57, sec. 1) it is provided how money shall be disposed of which is received from sales of products of the “state farm or farms worked by the state on the lease or share systemIt is too plain for argument that the legislature lodged the discretion as to all these matters, not in the judicial department, not in the executive department, but in the board of control, and with that board it must remain until the legislature makes some other disposition of it. In the condition where discretion was given the president of the board of supervisors to approve official bonds, this court said, in Shotwell v. Covington, 69 Miss., 738 (12 South. Rep., 260): “Holding, as we must, that it is settled that the power given to the approving officer is judicial, we are unable to perceive upon what principle we can decide that an arbitrary, or even corrupt, abuse of the power can be corrected by mandamus In the case of People v. Attorney-General, 22 Barb. (N. Y.), 114, the effort was to compel the attorney-general by mandamus to consent to an action to try the right to a public office. The court refused to do so, and says (on pp. 117, 118) : “I know it may be said, perhaps in this very case, that with a fair show of right to an office a party may be entirely remediless against an intruder. This may be so. It is quite possible that cases may arise to which the disturbing inñuence of party feeling may so affect the action of the attorney-general as to result in great injustice to individuals. But this is a question for the consideration of the legislature, not for the court. The power of determining whether the action shall be commenced must exist somewhere. As we have seen, it has sometimes been vested in the court and sometimes in the public prosecutor. Our legislature has seen fit to invest the attorney-general with this discretion. His office is a public trust. It is a legal presumption that he will do his duty; that he will act with strict impartiality. In this confidence he has been endowed with a large discretion, not only in cases like this, but in other matters of public concern. The exercise of such discretion is, in its nature, a judicial act, from which there is no appeal and over which courts have no control. The motion for a mandamus must, therefore, be denied.”

It is not for the judiciary to act because of- evils which may flow from the unwise, or even improper, exercise of discretion in cases where it is lodged by the legislature. Evils and mistakes occur in all departments of government and in all human institutions. They are common even in the courts themselves in all the states and in all countries. Does it follow, therefore, that the departments and their legal agencies should be abolished? In private life every man is, and always was, bound by the acts of his agent in the exercise of discretionary powers granted to him. Yet the courts cannot interfere, even there, unless active fraud and collusion are shown. Shall men therefore be denied the right to appoint ágents ? But, conceding that the doubt expressed by Justice Truly, in the concurring opinion referred to — as to the power of the court to intervene where corruption is showm — be well founded, still, here the answer must be the same, because the petition does not intimate any corruption. It implies the contrary, in that, when it makes the specific charge, it is that the board acted on the plea that the convicts , can be more profitably employed on the Sandy Bayou place. The board, and no other power on earth, had the right to determine this and to say when the farms owned by the state were in shape to receive all the convicts without unnecessary loss to the state. If this be a public evil, it is the legislature alone which can correct it. The .averments that the board is not having the timbered land “opened as rapidly as practicable” and that all the convicts can “easily and profitably be employed” carry no legal force. They are not statements of facts, but merely conclusions of the pleader, not admitted by demurrer. Even under known and admitted conditions, whether a certain course is “practicable,” or “profitable,” or “necessary,” will depend on the individual judgments of men. Whether it is practicable to employ all the convicts on the lands of the state, how many convicts, are necessary to occupy the land, whether it is profitable or wise to destroy the timber or convert it into lumber, are matters submitted to the unrevisable discretion of the board of control.

If we are right that this lease is warranted by law, there is no trouble or fear about the appropriation extending to the convicts who are worked on the leased land.' But for the leasing system, at least until quite recently, there would have been an enormous money loss to the state. We add that our consideration has been based on the constitution as adopted, and we have examined the precedent action of the convention in order simply to throw light on the meaning of the word “may” as used; and the use of the word “shall” in the substitute offered by Mr. Muldrow (journal, p. 158), not crystallized in the constitution, is conclusive of the correctness of our view, as we think. If we are to go behind the instrument as adopted, in order to take from it, or add to it, or nullify it, we must reverse and overthrow the jurisprudence of Mississippi and other states. Ex parte W. V. Wren, 63 Miss., 512 (56 Am. St. Rep., 825). Otherwise no act of the legislature would ever be safe. Green v. Weller, 32 Miss., 650. It seems certain that “may” means “may,” and not “shall.” Otherwise Mr. Muldrow’s suggestion would have appeared in the constitution as finally passed on and given to the people.

The contention of the appellant is that the word “may,” where it appears in the article on the penitentiary, must be read “shall.” Let us make a practical test of the argument and note the irresistible conclusion. Adopting this contention, the clause dealing with state farms would then read as follows: “The legislature shall place the convicts on a state farm or farms and have them worked thereon under state supervision exclusively in tilling the soil, or manufactures, or both, and shall buy farms for that purpose.” If this were the legal reading of the constitution, it would have been mandatory upon the legislature to establish state farms and to buy them as well. The constitution would have gone into operation immediately upon adoption. The necessary effect of this provision would, have been that the legislature would have had no discretion at all in reference to the management of the convicts; there would have been no four methods of working the convicts, but only this exclusive method of working them on farms to be bought for that purpose. As the system of hiring convicts was continued in force until December 31, 1894, there would have been no necessity for any constitutional provision vesting the legislature with power between the adoption of the constitution and the date stated; this power the legislature already had. Then, had this constitutional mandate required at all events the purchase of the farm, the other provisions of the constitution in reference to employing convicts on public works, public roads, or levees would have been absolutely nugatory. Between the adoption of the constitution and December 31, 1894, the legislature already had the power so to employ the convicts. After that date, if the construction of appellant is correct, the legislature would have had no such authority/ because the exclusive method permitted to the legislature was that of working them on a state farm purchased for that purpose. . In this view the employment of the state convicts about the state’s property in the city of Jackson since December 31, 189-1, has been illegal and without any right or warrant of law. How much more reasonable is it to follow the construction placed by this court under different circumstances on this provision, and adhere to the interpretation that a state farm is a farm managed, conducted, controlled, and worked exclusively under state supervision, whether the title to the land be in fee simple or a leasehold!

The condition of the bill in the legislature referred to in the dissenting opinion is as follows: “Senate amendment to house bill No. 22. Amended by adding to sec. 1 the following: 'Provided, That nothing herein contained shall in any manner affect or apply to any valid contract heretofore made and entered into by the board of control of the Mississippi penitentiary for the leasing of any lands belonging to a private individual or for the working of the state convicts during the year ipoó upon lands not belonging to the state of Mississippi/ " It will be seen that the constitutionality of the leasing system for the past, and for this year, is in no degree questioned. If the dissenting opinion had instanced cases in the history of the state where the management of leased farms, worked by the state, has been characterized by brutality, it would be valuable as a moral argument, but would not then touch the case now under investigation in a legal point of view.

Affirmed.