on rehearing.
Bunn, C. J.This is a motion for new hearing; and is as follows, to-wit: “That the court inadvertently overlooked the fact that the cases of St. Louis, I. M. & S. Ry. Co. v. Loftin, 30 Ark. 693; Files v. Fuller, 44 Ark. 273; Crenshaw v. United States, 134 U. S. 99; Illinois Central Ry. Co. v. Illinois, 146 U. S. 387, and New Orleans Gas Company v. Louisiana Light Company, 115 U. S. 650, were not cited by them (appellants) to the point that the officer could not bind his successor in the making of a contract beyond his term, except so far as they declared a principle that no official body could tie up the hands of its successor.”
We would regret very much to find that the citations of counsel were intended to be authorities for one purpose, and that we made the mistake of applying them to another. This citation is that an officer or board of officers cannot make a contract binding on his- or its successors; that is to say, that a board of officers cannot make a contract valid against the state which runs, in its operation and effect, beyond their term of office. It is not easy to perceive the difference, in this connection, between a contract of an officer or board of officers which will be binding on his or their successors and a contract which will tie up the hands of the successor. They mean one and the same thing, according to our view of it.
The act of the legislature under which the contract involved purports to have been made puts no limitation upon the running of the contract, and the contention of the appellants now is to show that, as a matter of law, a question of the kind is involved where the contract shows on its face that it runs beyond the official terms of the officers of the state who made it; that is, that the contract which they themselves made, and permitted to be acted upon, for eighteen months, was invalid because on its face it appears to run beyond their term of office. The contract on its face, in fact, runs ten years, but, according to the contention of appellants, it would be as valid for ten years as. for three years, as a matter of law. And so it would be. But why invalid for either period of time ?
The able and industrious counsel have undoubtedly made the most minute, critical and exhaustive research for authorities in support of their contention, and as a result we have about twenty-five citations made by them. Citations, however, are helpful only when applicable to the case in hand.
The case in 30 Arkansas, referred to above, was a tax exemption case, and the only principle decided was that where the legislature exempted property from taxation, when it could do so, it amounted to a contract, and is binding on all afterwards. If the exemption is granted after the charter, however, it is a matter which succeeding legislatures can abrogate. The case in 44 Arkansas simply holds that the legislature cannot assume judicial functions in the enactment of laws, nor can it prescribe rules of interpretation for the courts, nor fix for future legislatures any limits of power as to the mere effect of their action. The case in 134 U. S. is a mere reaffirmance of the well-established doctrine that an appointment or election to a public office is not a contract; and that it is not within the power of the legislature to deprive its successors of the power of repealing an act creating an office. The case in 146 U. S. 387, lays down the rule that there can be no “irrepealable contract in a conveyance of property by a grantor in disregard of a public trust, under which he was bound to hold and manage it.” The case in 115 U. S. 650 held that “in granting the exclusive privilege of supplying gas to a municipality and its inhabitants a state legislature does not part with the police power and duty of protecting the public health, the public morals and the public safety, as one or the other may be affected by the exercise of the franchise by the grantee.” A surrender of the police power of the state by the legislature would be per se void; but, beyond this, whether or not the exercise of a franchise that could be otherwise lawfully granted involves the public health or safety is a matter of fact, and should be suggested in an answer, if true, and cannot be assumed to exist on demurrer.
Counsel say, in their motion for a new hearing, “that they cited the case of Porter v. Haight, 45 Cal. 631, to the point that under the law the power to revoke contracts was expressly reserved in the statutes on the subject of letting out convict labor, and that this could not be parted with by the superintendent of the penitentiary or the financial agent or the board of commissioners.” Our attention has not been called to any clause or provision of the statute in which any or all of these officers are authorized to revoke contracts at will, which they have made in the hiring of the labor of the convicts, which is, of itself, expressly within their power to make. Judge Niles, in delivering the opinion of the court in that case, said: “We have not been referred to, nor can we find, any statute which directly authorizes the board of directors to enter into any contract for the employment of convict labor. The act of April 24, 1858, prescribing the powers and duties of the board, contains no such authorization.” But, continuing, he said: “This power may be inferred from the general power, given to the board by this act, to manage and control the convicts and prison labor, and from an implied recognition” in the act of April 4, 1869, relating to the-pardon of criminals; and then he proceeds to discuss the case, conceding for the sake of argument that the statutes in this way authorized, the hiring of the labor of convicts. His language then in this: “Section 3 (of the act) provides that said board.shall have full and exclusive control of all the state prison grounds, buildings, prisoners, prison labor, prison property, and all other things belonging or pertaining to said state.prison. It is evident that the board would have no power to enter into any contract for the employment of convict labor, or for any other purpose, that would deprive them in any degree of the .full and exclusive control of the prisoners and prison labor, or of the grounds, buildings and property with which they are charged by the act. To that extent, at least, any such contract would be inoperative and void.”
Differing from the California statute, our statute expressly authorizes the superintendent of the penitentiary and the financial agent to enter into contracts for the hire of convict labor, and, agreeing with the California statutes, requires the penitentiary officials to keep personal oversight of the convicts while laboring, showing that the hiring under our system does not imply that this personal management and control can be relinquished at all. The learned judges, moreover, were careful to say that, “to that extent, at least, any such contract would be inoperative and void.” Well, should it go to the extent of depriving the state’s agent of this personal control and management, if that was the intention of the California contract, it would certainly be void in this state. But the contract involved here was not so designed or intended, from all that appears on its face and the pleadings in the case.
Counsel say further, in their motion for rehearing, “that they cited the following case to the point that an officer could not make a contract to extend beyond his term of office.” That is the real point in issue, but do the citations sustain the motion on that ground? The first of this list of cases, Trask v. State, 3 Vroom, (N. J. L.), 478, is truly more nearly analogous in its facts than any other cited by counsel, but it is a more or less novel case in its determination and in the reasoning of the court on the subject. The facts were that the prison keeper had, under an agreement (whether written or verbal is not stated), at the instance of defendants, furnished them with the labor of 250 prisoners, at the state prison of New Jersey, from the 1st day of December, 1861, up to the day of the commencement of the action in assumpsit by the state against the hirers of this labor, which was on the 17th day of March, 1864, a period of two years and four months nearly, at the rate of 31 cents per day for each prisoner. It was agreed that 31 cents per day from December 1, 1861, to October 5, 1863, was a fair compensation for the labor of each convict, and from that time until the institution of the suit 35 cents would be a fair compensation; the defendants contending that the agreement or contract fixed the former rate, and that this contract should hold good throughout, while the state contended that the contract could run no longer than the official term of the keeper, who made the same, which term expired in the spring of 1862, and that for the remainder of the time the price of the labor should not be regulated by stipulation in the contract, but by the rule of quantum meruit, and under that rule it was agreed that 35 cents was a fair price for the labor. The suit was for the difference, $4,917.98. In this way it was determined under the statutes of New Jersey whether in such case a contract of hiring convict labor could not run longer than the official term of the officer making it.
The case was tried in the supreme court of New Jersey, which in that state appears to have original jurisdiction to try cases. In delivering the opinion of the court, Yredenburgh, J., said: “It appears, by the case submitted, that on the 25th of November, 1861, Mr. Stoll, the then keeper of the state prison, by agreement farmed out to the defendants the labor of 250 prisoners for four years, from the 1st of December, 1861, at prices therein specified. Stoll went out of office in the spring of 1862, and was then succeeded by Mr. Hoagland, who in turn was succeeded by J. B. Walker, the present incumbent, in the spring of 1863. The different keepers went on under the contract until October 5, 1863, when it was.claimed on behalf of the state that the said agreement was not then binding upon the state, and an agreement was then entered into between Walker and the defendants that the rate of wages should be increased, if it should be judicially determined that said agreement was not then valid. The validity of the contract on the 5th of October, 1863, is claimed by the defendants under the statute which provides that the “keeper may, with the consent of the acting inspectors, contract with any person for the labor of the prisoners or any part of them.”
The construction of this clause of the statute of 1846, defining the power and duties of the head keeper of the state prison, was the sole question before the court. The question was determined in favor of the state, to the effect that the prison keeper could not make a contract to run longer than his official term. The defendant appealed to the court of appeals, where the cause was heard, but, the court being equally divided, four for affirmance and four for reversal, on motion of the plaintiff in error, it was ordered that a reargument should be had at the June term following, at which term, the parties having been again heard by .their respective counsel, the judgment of the trial court was affirmed, live judges voting for the affirmance and four for reversal. No authorities were cited in either court. The majority, speaking through Judge Green, said: “I think it is clear, from the provisions of the act, that there must be a limitation as to the time during which the contract may be made to extend. The contract for the employment of the prisoners is not a contract merely for the sale of their services, and the question involved is not a mere question how much pecuniary advantage can be extracted from the labor. An important trust is committed to the keeper and inspectors, touching the care and government of the inmates of the prison. They are to have regard to the physical, mental, moral and religious culture of the prisoners. They are to see that undue tasks are not exacted from them. Each convict is to be employed by the keeper, and at his discretion, with the approval of the inspectors, every day except Sundays, as far as may be consistent with their sex, age, health and ability, strictly at hard labor of some sort, in which the work is least liable to be spoiled by ignorance, neglect or obstinacy, and in which the material cannot be embezzled or destroyed. These trusts are reposed in each keeper, and in each board of inspectors. The trust is committed to them to be executed according to their judgment, and cannot be delegated to others. * * * It is not because the keeper cannot, under the terms of the statute, make any contract extending beyond his term of office, but because, as is clearly shown in the opinion of the supreme court, the binding power of such contract must inevitably interfere with the discharge of the duties of their office by the acting keeper and inspectors.”
In all the discussion in both courts we are unable to discover whether or not the effect of the contract was to permit the convicts to work beyond the walls and prison cells, and not under the eye and strict supervision of the keeper, made a requirement in other parts of the statutes of that state at the time. But from the argument of both courts one would naturally infer that the contract permitted the hired prisoners to be worked outside the penitentiary. It is impossible for us to examine all the statutes of that state on the subject, and therefore we cannot determine, as was said by the trial court in that case, from the section under consideration, “as well as from all legislation upon the subject of the state prison,” what really should have been decided by the courts of that state. The argument of the court, looking at the matter from the standpoint of the rules as applied to the construction of statutes in this state, is not by any means satisfactory to us. If the court otf appeals meant to say that any contract which relieves the keeper of the personal oversight of the prisoners of that state is null and void ipso facto, we will have to agree with them; but if it meant to say that a keeper is relieved of this oversight because his predecessor has deprived him of it by a contract running into his term, we have only to say we do not understand the court’s meaning, since every keeper has the same qualifications, the same duties and obligations resting upon him, as had his predecessor, to overlook the prisoners. The mere matter of who is paying for their labor is nothing, so it be enough.
In Board of Commissioners v. Taylor, 123 Ind. 148, a retiring board of, county commissioners, before retiring and making way for their successors, appointed an attorney for the county, whose term should commence with that of the incoming board. It is everywhere held that such an appointment is invalid, and not binding on the new board; it sometimes being held to be contrary to public policy, and sometimes it is little less than a fraud upon the law and incoming administration.
There is some peculiar circumstance connected with all the other cases cited that renders them inapplicable to the case in hand,
In this state the official term of penitentiary commissioners is the same as the executive offices they hold for the time being; in fact, in filling certain of the chief executive offices of the state, they are penitentiary commissioners by operation of law, and their terms are coexisting and contemporaneous. So also are the terms, substantially, of their appointees and subordinates. They are not authorized by statute to hire the labor of convicts, unless they cannot be made self-sustaining by being worked on the system known as “state account.” When that condition does exist, however, they must resort to the contract system, for one.of the prime objects of the state is to make the penitentiary self-sustaining. The commissioners are clothed with a sound discretion to determine when they shall hire the labor of the convicts or any number of them. They evidently have the discretion to determine upon the time which the contract shall run, for they are to do the very best for the state, the convicts having really no interest in this particular matter, and it may be, and frequently is, to the interest of the state to contract for long terms. To say that these contracts can only run for two years and less time is to put an obstacle in the way that might defeat the whole object and purpose of the statute. The other contracting party necessarily must be consulted as to this matter. Under the law great expense must be incurred to provide a place and machinery and appliances where convicts may be profitably worked under the supervision of the penitentiary officials, and private persons are not disposed to incur these heavy outlays unless the labor can be secured for periods that will in some sort repay them for the outlay. These are. matters for the contractors and penitentiary officials, and not the courts, to determine, at least as matters of law, and as the statute puts no limit of time upon them, their discretion in that regard can only be controlled by proper allegation and proof of an abuse of it.
The old contract system was such that a contract running less than ten years could not be made. The long time had a reason in it, and hence was enjoined by law. While the system has been changed, and the lease system abolished in some respects, the reason as to the time contracts ma}'1 run remains the same.
Motion overruled.
Battle and Riddick, JJ., dissent.