delivered the following dissenting opinion:
So far as the discretion of the chancery court to enjoin or mandamus the board of control, under the facts set out in the *159former suit of Henry v. State, ante, 1 (s.c., 39 South Rep., 856), or this suit is concerned, I simply desire to emphatically reaffirm all that I said on that subject in my opinion in the former suit. Subsequent reflection has simply confirmed my judgment as to the correctness of those views in every particular. To come at once to the heart of the controversy, the only question of any moment ever presented by either of these two suits is the single question whether the board of control has, under the constitution of 1890 or the laws of this state thereafter passed, the power to lease a farm from a private individual and work thereon, even under state supervision, the state convicts. I wish also here to emphatically reaffirm all that I said on that subject in my dissenting opinion in the former suit. Arguments subsequently made, and research subsequently made by myself, only tend to show that the conclusion reached by me in that opinion is the only true and sound conclusion. I shall, however, add to what I said in that opinion a very few observations as to the proceedings of the constitutional convention on this subject, which to my mind demonstrate beyond any possible doubt that the board of control had no such power.
Let us now notice briefly the proceedings of the constitutional convention, which it is conceded may be looked to, to ascertain the intent of the constitutional provisions. I will then notice the ordinance. The view which has been pressed upon us by learned counsel for the appellee is a very limited view. While journals of the legislature have been referred to copiously, the proceedings of the constitutional convention seem to have been carefully ignored. I assert with absolute confidence that this journal shows that the makers of the constitution expressly rejected the idea that the legislature might provide for the working of convicts in any manner deemed by it expedient, not inconsistent with the section forbidding hiring. Let us look at all the steps taken in the convention relative to the penitentiary. The printed proceedings of the convention *160are inadequately indexed, and must be found by searching consecutively the pages of the minutes. I find on p. 56 that a committee on penitentiary was appointed, consisting of Messrs. Dean, Featherston, Dillard, Jones, Love, Alcorn, and Sexton. Mr. Dean (p. 57) at once introduced an ordinance prohibiting convict leasing or hiring after January 1, 1895, and requiring the legislature to provide for the abandonment of the system by that time, or sooner if practicable. Nothing more seems to have been done until the committee made its report, which will be found on p. 123. Section 1 of the report provided that the convict leasing or hiring should cease January 1, 1895, or sooner if practicable. Section 2 provided for the abandonment of the penitentiary in Jackson and provided “that the legislature shall make timely provision for and establish and maintain a prison farm” and also provided for manufactures thereon. Section 3 provided for a board of control to manage such prison farm; also provided for a reformatory, commutation in sentence, separation of sexes, etc. The committee also submitted an ordinance for the appointment by the governor of commissioners, who, prior to the next session of the legislature, should inspect lands and report as to the advantages of the bodies of land inspected. This report came on for consideration (see p. 134). A substitute was introduced, providing in effect for committing’ the whole management of convicts to a board of control, which evidently permitted hiring of convicts if the board of control saw proper. It seems to have been voted down or not passed. Mr. Outrer offered an amendment permitting their employment on levees. The whole matter came up again for consideration (p. 156), and the report of the committee was considered by sections, some minor amendments being offered. The amendment of Mr. Outrer as to working on levees was adopted, and sec. 1 was passed with this amendment. The second section of the report of the committee was afterwards called up (p. 158) and adopted. Note that this *161section provided for the abandonment of the penitentiary in Jackson and that the legislature should make timely provision for the establishment and maintenance of a penitentiary farm or farms. It also contained as its last clause the following significant provision: “Or the legislature may provide for the working of such convicts in such other manner as may be deemed expedient, not inconsistent with the first section of this article.” As stated, this section was, when separately considered, adopted. Thereupon Mr. Muldrow offered a substitute .for the entire report of the committee, and amendments (p. 158), and this substitute practically embraced secs. 223 and 224 of the constitution as they now stand, with the exception that a clause was added, on the motion of Mr. Kennedy (p. 160), that the section should “not interfere with the preparation for or the cultivation of any crops which it may be intended shall be cultivated by the said convicts, nor interfere with the good management of the state farm, nor put the state to any expense.” With this amendment added, the Muldrow substitute was adopted (p. 161), and in the hands of the revision committee became secs. 223 and 224. Section 3 was adopted with some slight amendments, and the whole matter went then to the committee on revision, which, of course, had no power to change the meaning of any section, but dealt only with arrangement, forms of expression, and phraseology.
It will thus be seen that when the matter went to the revision committee the convention- had adopted a substitute which struck out that provision of sec. 2 which gave the legislature authority to work convicts in any manner not unconstitutional and deemed expedient. It will also be seen that when the revision committee took hold of the matter there was a distinct declaration in favor of the establishment and maintenance of a penitentiary farm, and accordingly Mr. Kennedy introduced his amendment (p. 160). It was natural and altogether proper that no one of the constitutional methods which might *162be adopted for employing. convicts should interfere with the good management of the state farm. The scheme of buying a state farm had, at that time, been definitely approved. We cannot assume that the committee on revision, when it used the words “may buy,” intended to nullify the positive action of the convention in rejecting the clause giving the legislature discretion as to the manner of working convicts, provided they did not hire them out In the light of the foregoing, the ordinance adopted (p. 161) becomes perfectly plain as to its meaning. The convention had rejected the amendment of Hr. Dillard (p. 161) for the abandonment of the penitentiary proper. Therefore the convention had determined that there were four ways in which convicts might be employed — first, confinement in the penitentiary 'proper; second, employment, under state supervision, on public roads, levees, or public works; third, employment on the state farm or farms; fourth, in manufacturing on state farms.- The legislature might employ convicts in any one of- the four schemes permitted by the constitution; and, therefore, the ordinance, when it provided that “if the legislature should determine to establish a penitentiary farm,” merely meant that if it should at that time anticipate what it must do after 1894, establish a penitentiary farm, or if' at any time before or after 1894 it'should decide to work all the convicts on penitentiary farms, instead of-on public works, levees, roads, and the like, the legislature would have the necessary data before it to decide intelligently. It is clear that the haste of the convention in providing for the committee and its report to the next legislature manifested a purpose that the scheme would be complete and operative and exclusive by the time fixed in the constitution.
It is as clear as day, therefore, whether we look to the face of the constitutional provision or the subsequent statutes or to the journal of the constitutional convention, that the purpose was to abolish the leasing of land and employment thereon *163of convicts. I make it as a special request and appeal to the splendid” bar of this state to read carefully every one of the pages I have referred to in the journal of the proceedings of the constitutional convention; and I assert, without the slightest fear as to what the judgment of the bar will be, that this review of those provisions demonstrates that the makers of the constitution, in rejecting the following proposed addition to sec. 2 of the report of the committee, found on p. 158 et seq., repudiated emphatically, once and forever, the idea that the legislature could, under the constitutional provisions, provide for the working of the convicts in any other manner deemed expedient, not inconsistent with the first section of that report. That proposed addition is in the following words: “The legislature may provide for the working of such convicts in such other manner as may be deemed expedient, not inconsistent with the first section of this article.” What, exactly, was it that was proposed by this addition ? Why,. that the -legislature might deal with the convicts as it deemed expedient, provided only that it did not hire them out; in other words, that it might lease the farm of a private individual and work the state convicts thereon. That is exactly what counsel for appellee have from first to last insisted on as the true sense of secs. 223, 224, 225, of art. 10 of the constitution. That is their whole contention; that is their exact contention. And yet this identical contention was emphatically repudiated by the constitution makers when they rejected the above-recited proposition. And with, the rejection of that proposition went down, once more and forever, the whole basis of the argument so earnestly insisted on by learned counsel for appellee in this cause. Aind yet this proposition, and the action of the convention in repudiating it, is ignored in the opinion of the majority. Marvelous indeed! They give us “ ‘Iiamlet’ with the prince left out!”
And yet, ignoring this vital and controlling fact, the opinion *164of my brethren has sought to find comfort for their view in the language of the ordinance adopted at p. 167, which is as follows:
“Section 1. That, with the view of enabling the legislature at its next session to have before it the necessary information upon which to act, if it should be determined to establish a penitentiary farm, it is made the duty of the governor to appoint five commissioners, who shall, prior to the next session of. the legislature, carefully inspect such bodies of land as may be thought suitable for such.location, and who shall make report as to the several advantages of the bodies of land inspected by them, and as to the propriety of establishing such farm or some other system, and as to the advantages of each, cost, and other proper matters, to the governor, to be laid before the legislature, with such recommendations as he may see proper to make.”
The particular language on which they count is this: “if it [the legislature] should determine to establish a penitentiary farm.” And the argument is that it is thus shown that it was left to the.absolute discretion of the legislature whether to establish a penitentiary state farm at all or not; and the deduction is sought to be drawn that, if the legislature should determine not to establish the state farm in the exercise of this supposed discretion, then it might employ the convicts in any way it saw proper — provided, only, that it did not hire them out. As to the first proposition, let it be carefully noted that the scheme of buying a state farm — not leasing it — at the time this section was modified and adopted, had already been definitely approved. All on earth that was meant by the words “if the legislature should determine to buy a farm” was if the legislature should determine to buy a farm immediately, for the 1st of January, 1895. • Section 223, aft. 10, of the constitution, had already fixed as the polestar of the whole matter, for the guidance of the legislature, the exact date, *165December 31, 1894, after which there could never be any dealing with convicts, except in four modes — first, employment of convicts in the penitentiary proper; second, employment, under state supervision, on public roads, levees, and public works; third, in manufacture, on state farms; fourth, employment on the state farm or farms. The period from the adoption of art. 10 of the constitution until the 1st of January, 1895 — a period of some four years — was deemed by the makers of the constitution ample time in which the legislature could, through the commissioners, buy a farm or farms and put the convicts to work on said farm or farms.
But as there were four years of this interim during which the legislature should, with conservative judgment and careful deliberation, put into effect the constitutional scheme — the great, paramount, constitutional scheme of buying farms and putting the convicts on them to labor there — it was a very proper thing to provide in this section that the legislature might determine not to buy the farms and put the convicts on them immediately. If one will keep in view — as one manifestly should — the great dominating purpose of the constitution makers to forever end the system of hiring convicts out to private individuals and to concentrate them on said farms to be bought, there is not the slightest difficulty in understanding that these words, “if the legislature should determine,” etc., were not, of course, meant to give the legislature the absolute discretion to buy farms or not to buy them at all, but simply to allow them to determine whether they should put this constitutional scheme into effect at once or at the end of the four years allowed for its inauguration. It would be a reduclio ad absurdum — nothing short of it — to hold that the great constitutional scheme of buying farms and of putting the convicts on farms, so carefully framed by the makers of the constitution, was at last nothing but brutum fulmen, absolutely nullified by the mere ancillary provision in this section — if it should de*166termine, etc. — which, was nothing but a mere ancillary clause, relating-, not to the command that they should buy farms, but to the particular time within four years when the legislature should determine to buy farms. And yet such is the desperáteness of the strait in which my brethren find themselves that they are driven to construe this merely incidental, ancillary clause — administrative clause; clause relating to time, and to time alone — into a provision absolutely superseding and blotting-out the great paramount scheme of buying farms and working convicts on the farms, standing out in bold relief, clear as a mountain in the landscape.
Another patent fallacy in the reasoning of my brethren is this: That they pivot the whole argument as to the power of the board of control to lease the farm of a private individual upon whether the word “may” buy farms in sec. 225 of the constitution is permissive or mandatory. This is a. complete non sequitur. I think I have demonstrated above, and also demonstrated in my dissenting opinion in the former suit, that the word “may” is here plainly mandatory, because the enforcement of the constitutional scheme, which is the thing which should dominate the entire construction of these constitutional sections, imperatively requires the word “may” to be treated as mandatory. Certainly it is perfectly obvious that the constitution makers themselves used the word “shall,” and it was the revision committee only which substituted “may” for “shall.” No revision committee had the power, by mere revision of the phraseology of a. provision already adopted by the constitution, to change in the least respect the real, effect of what the constitution makers had so already done; and I apprehend that no thought was further from the minds of this revision committee than to make any such changes, but that they simply meant to indicate, by the use of this word “may,” not that the legislature was at liberty not to buy farms at all, but that, since they must choose between the four modes named *167in which they might deal with the convicts, the legislature might postpone the buying of the farms, not buying immediátely — provided, only, it bought them in time to put into effect the great constitutional scheme by the 1st of January, 1895.
But suppose, for the sake of argument, notwithstanding the awful wrench of logic and of constitutional construction which such a supposition tiecessarily involves, that the word “may” was permissive, and that the legislature had absolute discretion granted, by such permissive use of the word “may,” whether to buy farms at all or not; in what conceivable way does this admission work out power on the part of the legislature to authorize the board of control to lease a private farm? The only effect on earth such permissive use of the word “may” could possibly have would be to cut out one of the four modes which the constitution had expressly and imperatively prescribed as the only modes in which convicts could be dealt with, and leave the legislature its choice between the three other modes — to wit: first, confinement in the penitentiary proper; second, employment, under state supervision, on public roads, levees, and public works; and, third, the hiring of convicts until, and only until, the 31st of December, 1894. There is not the slightest hint, not the faintest adumbration, in these three sections of the constitution (223, 224, and 225)- of any power in the legislature to lease, or to authorize any board of control to lease, the farm of a private individual — none whatever; and yet, with the great statesmen and the great lawyers who composed the membership of the constitutional convention of 1890 with the greatest care and particularity definitely setting forth only four modes in which the convicts could be dealt with, and as definitely and emphatically excluding the power to lease the farm of any private individual, my brethren are in the desperate situation of having to resort to the words “if the legisla*168ture shall determine,” and the permissive construction of the word “may” in the phrase “may buy farms,” as their only hope to escape enforcement of the positive mandate of the great constitutional scheme plainly set down in the three sections of the constitution above referred to. With all deference to my brethren, I refuse most emphatically to subscribe to any such doctrine.
Let us, in conclusion, test their construction by the result to which it plainly may lead. All men know that the one great object of art. 10 of the constitution was to put an end, once and forever, to the horrors and unspeakable brutalities of the system of hiring out convicts to private individuals which had obtained for thirty years past, and to put an end to it by constitutional mandate, so as to place it forever out of the power of any legislature to revive that system, with its infamies, directly or indirectly. And this was placed in the constitution for the very reason pointed out in my dissenting opinion in the former suit — to wit, that previous legislatures, in the past, in the face of investigations disclosing these infamies, had strangely enough persisted in refusing to right this great wrong. That being the object of the constitution makers in adopting this art. 10 of the constitution, how will that object be accomplished by the construction adopted by the majority of the court? Their conclusion is, expressly and necessarily, that whenever the legislature, sees proper it may authorize the leasing of the lands of a private individual and the working of the convicts on such lands, if only the working be under state supervision. Is it not open and level to the simplest understanding that under this system there may occur in the future the very same outrages and brutalities which have covered with unspeakable obloquy the state’s treatment of the state convicts in the past? What more is necessary to revive, in all its horrors, the system which the people of this state, justly shocked and outraged, attempted forever to put an end *169to by this great constitutional scheme, except that some succeeding legislature, in the future, shall repeal the act now pending, if adopted by this legislature, forbidding the leasing of the lands of a private individual? Most manifestly, with that act repealed at any time in the future, the very system which the constitution repudiated and which, so far as this feature is concerned, the present house of representatives of this legislature with but two dissenting votes, and the present senate of this legislature unanimously, have repudiated, and most wisely and righteously repudiated, may be again put in force in this state.
So far as the case of State of Mississippi v. Board of Levee Commissioners, 75 Miss., 132 (21 South. Rep., 661), strongly relied on by the majority of the court, is concerned, I desire simply to say — what is perfectly obvious — -that the question as to the power of the board of control to lease a private farm was not in the slightest degree involved in that case; nor, for that matter, has it ever been presented for decision in any case in this state until the former suit herein- — the injunction suit- — • and this present suit. The sole question argued and decided in that case was, as stated in the syllabus, that “cotton produced by convicts under the control and management of the state, upon the penitentiary farms in a levee district, is not subject to the cotton tax or other levee’ taxes.” That exactly, and nothing else, was the point, and the only point, involved or decided in that case. The casual' expressions thrown out arguendo in that case to the effect that “the state farms are local and movable penitentiary farms,” etc., are entirely beside the point involved here, and furnish no sort of aid in this decision. It is too elementary law for serious observation that the language of a court is to be taken strictly with reference to the precise point adjudicated. And the precise point adjudicated there has not the most distant relation to the point presented here for the first time in the history of this state.