The majority opinion is a new application of the maxim that equity considers that as done which ought to be done. It has always been my understanding that this principle was only applicable to equity courts, and confined to contract or property rights, and that it could not be extended to habeas corpus courts, or courts of law, nor to statutes dealing with penal systems enacted by the Legislature.
I think the majority opinion is directly contrary to the principles announced in the case of Ex parte Parker, 94 Miss. 899, 48 So. 297, where it was held that in the absence of any action by the board, the defaulting misdemeanant must remain in jail. It was there contended, *Page 519 as here, that, because the board of supervisors had not provided any system for the working of convicts, the person imprisoned for failure to pay fine and costs should be discharged, and that it was the imperative duty of the board of supervisors to do one of the things provided by chapter 109, Laws of 1908, either work the convicts on a county farm or farms, on the public roads, or any other work of an exclusively public character. See, also, Buck v. State, 103 Miss. 276, 60 So. 321.
These cases hold that the failure of an officer to do his duty does not discharge a prisoner. The board of supervisors may be subject to indictment, or mandamus, or a suit for damages for such failure.
Section 4065, Code of 1930, among other things, provides that every convict, for each day's work he is required to do, shall receive credit on his fine and costs assessed against him of one dollar until such fine and costs are fully paid. And in case the convict is serving such sentence of imprisonment, each day that he works in serving such sentence shall entitle him to credit for equal time on his sentence of imprisonment, but in no instance shall a convict receive credit on the fine and costs, and on the time sentenced to imprisonment, for the same work.
This provision clearly gives the convict credit only when he is required to work. The complaint in the petition for habeas corpus is that he was not required to work, and that, consequently, he did not work, and this section is, in no wise, affected by the amendment to section 4067, Code of 1930.
The title to a statute does not govern. It is no part of a statute itself, and, at most, is but an indication of what is being dealt with therein. It is true that the constitution provides that every bill shall have a title which ought to be an indication of its substance, but here, the title does not indicate the substance of the act, but is directly contrary to the body of the law. *Page 520
Of course, we do not know what was originally in the bill when introduced. It may have been very different, when it was brought from the committee room, from what it was when introduced.
In seeking the intention of the Legislature, a court must look to the statute itself, and is not empowered to make a new law by judicial construction. Abbott v. State, 106 Miss. 340, 63 So. 667, Holly Springs v. Marshall County, 104 Miss. 752, 61 So. 703, and Prather v. Googe, 108 Miss. 670, 671, 67 So. 156.
An interesting discussion of the laws dealing with convicts is found in Ex parte Dig, 86 Miss. 597, 38 So. 730, 731, wherein Judge Truly, speaking for the court, held that when a convict is sentenced, and the amount of his fine becomes known, the law gives him the privilege of paying in money the amount of such penalties. He can satisfy and discharge this portion of the judgment of the court imposed upon him as a punishment for his crime immediately upon sentence, and before delivery to the contractor if he so desires. It was further said that, "If, however, he fails to avail himself of this opportunity, and the fine, costs, and jail fees `be not promptly paid,' as an additional penalty imposed by warrant of law, he forfeits the right to take advantage of this method of securing his release, and is then only entitled to his discharge when he shall have worked out the amount of such fine, costs, and jail fees in one of the lawful modes prescribed. The Legislature, if it chose, could make this rule absolute, and could, if in its wisdom it should seem wise or best, provide that any convict failing to promptly pay upon conviction all the penalties fixed by the judge should thereafter only procure his release by laboring for whatever period and under whatever humane provisions the law might fix. But no such harsh rule has been adopted by the Legislature of our state. The statute here under review provides that even after the convict has forfeited his right to procure his release *Page 521 by paying in cash the fine imposed and the costs incurred, and has become, by reason of his default, subject to the other penalty of being required to pay the same by labor instead of in money, by section 22 of chapter 76, p. 72, Acts 1894, it is provided that a convict in the custody of a contractor, who has served out his imprisonment sentence, may pay out and secure his liberty at any time by paying to the contractor or into the county treasury the amount `unearned by him and the reasonable value of all clothing furnished to him, the amount to be ascertained and determined by the sheriff, in case of disagreement.' . . . Not only is this required, but the law is mandatory that the convict shall be furnished with fuel and bedding and sufficient wholesome food. . . . If the convict desires to procure his freedom on a day earlier than that stated in his warrant of detention, he can only do so by complying with the provisions and satisfying the conditions set out in the law granting him the privilege."
Section 4058, Code of 1930, brought forward chapter 109, Laws of 1908, and, among other things, provides that every convict sentenced to imprisonment and the payment of a fine shall be committed and confined to jail for the full time specified for imprisonment until discharged in due course of law. It further provides that no convict shall be held in continuous confinement under a conviction for any one offense, for failure to pay fine and costs in such case, for a period of not more than two years.
From a comparison of all the provisions of law upon this subject, it is plain to my mind that it was the purpose of the Legislature to require a payment of the time and costs before a prisoner can be released, unless such prisoner was required to work his sentence out, which was not done in this case, and that he should be entitled to a credit on his fine and costs at the rate of one dollar per day. The elimination of the provisions prohibiting *Page 522 his getting credit for the time he is in jail by the amendment of section 4067, Code of 1930, by chapter 246, Laws of 1932, does not affect the duty of the sheriff to hold the prisoner until the fine and costs have been paid. There is no provision to meet this hardship in the law itself. The law, however, gives the Governor the power to pardon, which he, no doubt, would have done had the facts, as stated in the petition, been brought before him.
We, as judges, should indulge the presumption that such power will be promptly and rightfully exercised whenever the conditions call therefor.
In my opinion, the constitutional system of dividing the government into three departments, and prohibiting one department from exercising the power of another, does not warrant the conclusion reached in the majority opinion. It is not for the judiciary to supply deficiencies in legislative action.
A bad precedent is sometimes laid down to establish a worthy end in hard cases, but the law must operate upon general principles, and the Legislature, and not the courts, must be looked to in order to secure proper changes in statutes.
I therefore think that the judgment of the court below should be reversed.