Hall v. O'Neil Turpentine Co.

Parkhill, J.

(dissenting.)—I am of the opinion that the contract sued upon is i'n violation of the statute and void as against public policy.

In Atlantic Coast Line R. R. Co. v. Beazley, 54 Fla. 311, 45 South. Rep. 761, it is said that the public policy of a State must be determined by its constitution, laws and judicial decisions; not by the varying opinions of laymen, lawyers or judges as to the demands of the interests of the public..

I have looked in vain for any statutory authority for the lessee of county convicts to sub-let them. The only authority given to. any one to let such convicts to hire is that conferred by section 4109 of the General Statutes of 1906, on the Board of County Commissioners. In considering’ a statute very similar to this one, the Supreme Court of Alabama in Arlington v. Morgan, 75 Ala. 606, text 608, speaking through Mr. Justice Somerville, expressed clearly the views I entertain, as follows: “This statute is strictly penal in its nature, being designed to enforce a species of involuntary servitude in the nature of legalized slavery, incurred by the commission of crime. Being in restriction of the citizen’s liberty, such a statute can not be enlarged by implication, or extended to' cases not obviously within its words and purport. The servitude legalized is that incurred by the act of the commissioners’ court in letting -the convicts to some person whom they are authorized to select, and who may be selected because of his good standing and peculiar fitness to take custody of the hirelings. The statute nowhere permits, expressly, or by the remotest *339implication, a sub-hiring to another and distinct person. This would be tantamount to' 'allowing an assignment of the contract of hiring, without permission of the commissioners’ court. It would not only be contrary to the policy of the law, as tending obviously to results in violation of the purpose and spirit of the whole system of hard labor, but it is unauthorized by the plain words of the statute, and, therefore, prohibited by implication.”

This statute was first enacted in 1877, and for thirty years the legislature has not seen fit to authorize a different policy. The language of this statute, as well as the other provisions requiring the county commissioners to advertise their intention to hire said prisoners so that those desiring to hire convicts may be present and submit their bids, and providing for the enforcement of rules for the humane treatment and protection of the convicts seems to cry aloud against a policy of permitting a private citizen to> put unfortunate and helpless human beings, though they may be transgressors, into the hands and control of strangers to the law.

In one part of the contract between the lessees and sub-lessees there is an attempt on the part of the lessees to retain the direction and control of the convicts, while in another part of the said contract it is plain that the sub-lessees are to have the custody of the convicts and to use the same, for the contract contains this language: “you (sub-lessees) should have the use and benefit of the services of the convicts,” and in another part of the said contract the convicts are referred to as “convicts of which you (sub-lessees) are given custody.”

In my opinion it makes no difference that the contract sued upon contains provisions like those in the contract between'the county commissioners and the lessees of the convicts. In the case of Arrington v. Morgan, 75 Ala. 606, the contract there held to be illegal and void con*340tained “covenants substantially the same as those contained in the bond exacted under the statute from the plaintiff, as original hirer.”