The amount earned by the petitioner, as a farm laborer on the state farm at Kilby prison, should be paid to him. The following appears in the answer of respondent, and was the agreed statement of facts, upon which the case was tried in the lower court. *Page 669
"From March 10, 1923, to and including October 5, 1923, petitioner was employed at Flat Top mine in mining coal under a contract which the state had with Sloss-Sheffield Steel Iron Company; that, under this contract the state undertook the expense of keeping, maintaining, and caring for the convicts; that for petitioner's service at Flat Top mine the state received the sum of $349.58, and expended in keeping, maintaining, and caring for petitioner, the sum of $130.20. The expense of transferring petitioner to and from Flat Top mine was $17.36. From October 1, 1923, to and including July 31, 1924, petitioner did general farmwork at Kilby prison, for which the state received no payment. It is estimated that his labor was worth, during said last-mentioned period, the sum of $126, and the state during said period incurred an expense in the sum of $239.20 in keeping, maintaining, and caring for petitioner."
Section 1 of an act approved August 13, 1907 (Acts 1907, p. 718) incorporated in the Code of 1907 as section 6577 and brought forward in the Code of 1923 as section 3672, provides:
"When any person is convicted of a felony and takes an appeal from said judgment of conviction to the Supreme Court of Alabama, and pending said appeal he elects to not have said judgment and sentence suspended, pending said appeal, and goes to the penitentiary and performs labor as directed under said sentence of judgment, if the case be reversed and remanded or rendered, the state of Alabama must at once pay him or his attorney of record the amount earned while performing said labor under said sentence. * * * The amount to be paid him is the amount which the state would have received from the proceeds of his labor, if said judgment of conviction had not been reversed and remanded or rendered."
Section 3673, Code 1923, provides that the earnings of the convict mentioned in section 3672, Code 1923, shall be paid by the state treasurer upon warrant issued by the state auditor "for the amount earned by said person for said services." A correct interpretation of the statute must be gathered from a consideration of its provisions, as a whole, in the light of the conditions existing at the time of the original enactment and down to the adoption of the Code of 1923.
At the time of the passage of the act of 1907, supra, when a person was convicted of a felony, and was sentenced to a term in the penitentiary, if he appealed to the Supreme Court from the judgment of conviction and sentence, he was not allowed to give bail pending his appeal, but had to remain in jail until the determination of his appeal by the Supreme Court. After conviction and sentence, the state furnished the convict a place of lodging (the county jail) and paid his feed bill. In order to relieve the state of the heavy financial burden, imposed upon it for feeding convicts confined in jail pending appeal to the Supreme Court, this statute was passed to encourage the convict to elect to perform the hard labor imposed, by paying to him the amount of his earnings while in the penitentiary, in case of the reversal or rendering of his case on appeal. Had the convict remained in jail, it was at the expense of the state, if he elected to perform the hard labor imposed it was still at the expense of the state, but the convict was rewarded by paying to him the amount of his earnings while serving the state. In those cases, which were affirmed on appeal, the state was saved the expense of feeding the convicts in the jails. It was also advantageous to the convict who elected to perform hard labor instead of remaining in jail, as in case of affirmance he was given credit on his sentence for the time served pending the appeal.
Later a statute was enacted allowing bail in felony convictions where the sentence imposed did not exceed 5 years, and in 1923 this was extended to sentences not exceeding 10 years. Notwithstanding that all convicts sentenced to a term not exceeding 10 years in the penitentiary now have the right to give bail pending appeal to the Supreme Court, it is a matter of common knowledge that many are not able to give the required bond, and but for section 3672, Code 1923, would remain in jail at the expense of the state pending such appeal.
It is clear that the Legislature intended that the earnings of the convict should be paid to him in case of a reversal or rendering of his case on appeal. By earnings is meant all of his earnings, and not his net earnings after deducting from the gross earnings the cost of his board, lodging, clothing, and removal fees, and his proportionate cost of administration. It was never contemplated that the convict department or the state board of administration should be required to calculate to a mathematical certainty the cost of maintaining the convict, and deduct such cost from his earnings. No better illustration than the instant case is required to show the complete emasculation of the statute by such a proceeding. The convict in this case worked for the state 480 days without receiving one cent, and earned in the mines $349.58, which was paid to the state, and at farmwork $127.50, still the state figures that the convict owes it $40.03.
Of course, if the convict was sick and unable to work and earned nothing, the state should pay nothing. But, where, as in the instant case, the convict performed labor for the state, the statute requires the state to pay him the amount he earned. The amount earned by the petitioner was $477.08, as we find is shown by the agreed statement of facts.
It follows that the judgment of the circuit court must be affirmed.
Affirmed.