Bibb County v. Ward

This case was tried in the circuit court on an agreed statement of the facts. The court gave the general affirmative charge for the plaintiff, and refused a like charge to the defendant. The only two assignments of error on the record are based on these rulings of the court.

The appellee, plaintiff in the case, sued the county of Bibb in assumpsit “for money had and received for the use and benefit of the plaintiff.” The money claimed in this action was proceeds arising from the hard-labor sendee of the plaintiff under conviction for misdemeanor and sentence to work out the costs .of conviction. The conviction and sentence was in all respects regular under the statute; the sentence being for' a certain specified number of days at 30 cents per day, less than 10 months, to pay the duly ascertained amount of costs. — Code 1896, § 5426. The plaintiff was hired to the Sloss-Sheffield Steel & Iron Company under a contract made with the county of Bibb, by said Company, for the hire of convicts sentenced to hard labor for said county. The rate of the hire of said convict, un*475der the terms of said contract, was $1.08 per day. The plaintiff performed the hard-labor' service under his sentence for the entire number of days specified in the sentence. The proceeds of his hard-labor service under the contract of hire was more than sufficient to pay the costs of his conviction, and after the payment of the costs out of the same the balance was paid into the treasury of the county. It is for this balance so paid into the county ¡treasury — the difference between 30 cents a day, the rate fixed by the judgment of the court, in the sentence, and $1.08, as fixed by the terms of the contract of hire between the county, and the Sloss-Sheb field Steel & Iron Company, the hirer — that the plaintiff sues, claiming same as money had and received for his use and benefit.

It is made the duty of the court of county commissioners, under the convict system (article 3, c 139, p. '216, Cr. Code 1896), to make provision in reference to hard labor of county convicts, and to this end to enter into contracts for the hire of such convicts. The convict is no party to the contract, and can have no interest in the proceeds arising out of the same for hard-labor service performed, except as he may be affected by the provisions of section 5426 of the Criminal Code of 1896 when working out the costs of conviction. In the case before us the status of the plaintiff as a convict was fixed, not by the contract of hire, but by the judgment and sentence of the court trying him, as to his hard-labor service for the payment of the costs under the provisions of said section 5426. After providing for judgment to be rendered for hard labor to pay the costs, specifying that the term for which he may be required to work shall not exceed 10 months, and fixing the rate per day at 30 cents for the discharge of costs, .this section then further provides: “And such convict *476must be discharged from the sentence against him for costs on the payment thereof, or any balance due thereon, by the hire of such convict, or otherwise; and the certificate of the judge or clerk of the court in which the conviction was had, that the costs, or the residue thereof, after deducting the amount realized from the hire of the convict, have been paid, or that the hire or labor of the convict, as the case may be, amounts to a sum sufficient to pay the costs, shall be sufficient evidence to authorize such discharge.”

It is on the quoted provision of the statute that the present action is sought to be maintained. That the hard-labor service performed by the plaintiff was under the judgment and sentence of the trial court, and hence involuntary on the part of the plaintiff, there can be no doubt. The plaintiff worked out his term of service, and at the rate per day specified in the sentence of the court. It is true that the proceeds of his hire, under the contract of the county with the hirer for the term of his service, were in excess of the amount fixed in the sentence; but there is nothing in the statute which contemplates the payment of such excess over to the convict. The statute merely provides for the discharge of the convict from the hard-labor service for the payment of the costs, under the conditions and circumstances mentioned in the statute. It is a matter of grace to the convict, to be enjoyed by him at his election and upon his action in the manner provided. There is no decision of this court directly in point on the question, but the principles laid down in the case of Ex parte Pierce, 89 Ala. 177, 8 South. 74, and in that of Moore v. State, 149 Ala. 66, 42 South. 996, have some bearing, and are, we think, persuasive to the correctness of the views we have expressed.

*477Our conclusion is that the circuit court erred in giving the general affirmative charge for the plaintiff, and in refusing a like requested charge to the defendant.

Reversed and remanded.