As this is the first case under Chapter 196, of
We need not notice the provisions in the subsequent sections of the Act. It will occur at once that the Act is not •clear as to who shall make the regulations, and says nothing as to what is to be done in case the County Commissioners, and the other County authorities whoever they may be, and the Mayor &c., make different regulations. No question upon that however arises in this case, for here, the County Commissioners alone have acted.
At Spring Term, 1877, of Buncombe Superior Court, the ■defendant was convicted of fornication and adultery, and sentenced tobe imprisoned for six months. After having been in prison for about two months, the County Commissioners hired him out to his wife for the remaining four months •of his term at $5 per month, requiring (or allowing) him to return to the jail every night. The wife gave what purports to be her bond (which the husband signs also) with two sureties, agreeing to pay the $5 per month, or at that .rate for the time that Shaft might work. The proceeding seems to conform to the- Act, and it is not said to be irregular, except in that he was hired to his wife. On this point it is said that her contract was void. So it was, but her sureties were bound. Again it is said, that to permit the
The actual effect of the Act in the present case may betaken to be, to commute imprisonment into the payment of $20 if the costs amount to so much. The Legislature may certainly do this if it thinks proper, and in many cases-where the offence is petty, the propriety of doing so would be generally conceded. But it will be as generally conceded that there are cases in which the only adequate punishment is actual imprisonment. “ In areta et salva custodia. ” The Legislature may see fit to amend the law by leaving it to-the Judge to say in his sentence whether the prisoner may be hired out or not; or, by allowing the hiring only when the prisoner shall be in prison for non-payment of a fine..
We think that the Judge erred in undertaking to annul the action of the County Commissioners, and his order to that effect must be reversed.