Opinion
(January Term, 1878.)
Hiring Out Convicts — Hiring to Wife.
Under the provisions of chapter 196, Laws 1876-7, the commissioners of a county have the power to hire out a man imprisoned in the county jail upon a conviction for fornication and adultery, to his wife, upon her giving bond with sureties for the price.
SMITH, C. J., dissenting.
MOTION to remand the defendant to jail, heard at Fall Term, 1877, of BUNCOMBE, before Schenck, J.
At Spring Term, 1877, of said court the defendant was convicted of fornication and adultery, and sentenced by Judge Furches to imprisonment for six months in the county jail. After the defendant had been in prison about two months, the county commissioners hired him to his wife (under Laws 1876-77, ch. 196), who, with her husband and two sureties, entered into a contract with the commissioners to pay $5 per month for the unexpired term of said imprisonment. The defendant was thereupon released, being required by the contract only to return to the jail at night. Whereupon the solicitor moved to remand him to jail, and his Honor, being of opinion that the effect of the contract was an evasion of the law and a prevention of the bona fide execution of the sentence, allowed the motion and ordered the defendant to be imprisoned for the balance of said term. From this order the defendant appealed, and was allowed to give bond for his appearance at the next term of said court.
Attorney-General for the State.
No counsel for the defendant.
As this is the first case under chapter 196, Laws 1876-77, we have carefully considered it. The act makes an important change in the treatment of convicts sentenced to imprisonment (465) in the county jails. It authorizes the county commissioners or such other county authorities therein as may be established by law, and also the mayor, etc., of cities and towns, under such rules and regulations as they may deem best, to provide for the employment of such convicts on the public streets and highways, on public works, "or other labor for individuals or corporations": Provided, that they shall not be detained longer than the term for which they are sentenced, and that the sums realized from hiring them out shall be applied to pay the fines and costs.
We need not notice the provisions in the subsequent sections of the act. It will occur at once that the act is not clear as to who shall make the regulations, and says nothing as to what is to be done in case the county commissioners, and the other county authorities, whoever they may be, and the mayor, etc., make different regulations. No question upon that, however, arises in this case, for here the county commissioners alone have acted.
At Spring Term, 1877, of Buncombe the defendant was convicted of fornication and adultery, and sentenced to be imprisoned for six months. After having been in prison for about two months, the county commissioners hired him out to his wife for the remaining four months of his term at $5 per month, requiring (or allowing) him to return to the jail every night. The wife gave what purports to be her bond (which the husband signs also), with two sureties, agreeing to pay the $5 per month, or at that rate for the time that Shaft might work. The proceeding seems to conform to the act, and it is not said to be irregular, except in that he was hired to his wife. On this point it is said that her contract was void. So it was; but her sureties were bound. Again it is said, that to permit the wife of a prisoner to hire him is (466) substantially to allow him to escape punishment. That may sometimes be so; and it may be so even when the person who hires him is not his wife. And, on the other hand, if the master be a harsh one, the service may be a severer punishment than simple imprisonment. But neither the Superior Court nor this Court can annul a hiring by the county commissioners because it is suggested that the master may be or is either too kind or too hard. The selection of the master is confided to the commissioners. The idea of the Attorney-General is, and perhaps that of the judge below was, that the punishment was evaded. But, considering the nature of the defendant's crime, it may be that the commissioners ingeniously devised to aggravate the punishment by arming his wife, in addition to the usual and acknowledged powers of a wife in such cases, with those of a master paying for his work, and entitled thereby to keep him in sight and hearing. In this view, the permission to return to the jail after sunset and remain until sunrise looks like a merciful alleviation of what would otherwise have been a cruel and unusual punishment.
The actual effect of the act in the present case may be taken to be to commute imprisonment into the payment of $20, if the costs amount to so much. The Legislature may certainly do this if it thinks proper, and in many cases where the offense is petty, the propriety of doing so would be generally conceded. But it will be as generally conceded that there are cases in which the only adequate punishment is actual imprisonment. "In arcta et salva custodia." The Legislature may see fit to amend the law by leaving it to the judge to say in his sentence whether the prisoner may be hired out or not, or by allowing the hiring only when the prisoner shall be in prison for nonpayment of a fine.
We think that the judge erred in undertaking to annul the action of the county commissioners, and his order to that effect must be reversed.