GEORGE K. PORTER v. HENRY H. HAIGHT, WILLIAM HOLDEN, and H. L. NICHOLS, 45 Cal. 631

By the Court, Niles, J.: 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 24th, 1858, prescribing the powers and duties of the Board, contains no such authorization. This power may, perhaps, 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 by the Legislature of the validity of such contracts contained in

section three of the Act of April 4th, 1864, relating to the pardon of criminals, which provides that “ every contractor employing convict labor shall keep a record of the conduct of all prisoners employed by them,” etc. (Stats. 1863-4, p. 356.) Conceding, for the purposes of this case, the existence of the power, its extent, being undefined by any statute especially relating to that matter, must be limited by the requirements of the Act creating the Board, and prescribing its powers and duties. (Stats. 1858, p. 259.)

Section one constitutes the Governor, Lieutenant Governor, and Secretary of State a Board of Directors, and makes it their duty to take charge of the State Prison, and have the management and control of “ State Prison convicts.”

Section three 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. It seems to us equally clear, that if at any time after the making of a contract originally free from the vice we have mentioned, circumstances should arise which would, in the judgment of the Directors, render the continuance of the contract incompatible with the safety of the convicts, or the proper management of the prison, it would be their right and duty to terminate it. This is a power of which they cannot deprive themselves by contract. It is imposed upon the Board by the Act which created it.

For instance ground within the prison walls, and for manufacturing purposes under contract with the Board, might be required for the erection of prison buildings, or a conspiracy might be detected, which, in the judgment of the Board, required the separation or close confinement of prisoners whose labor had been contracted for; would it be said in either case, that it was not in the power of the Board to resume possession of the ground, or control of the prisoners, and thereby effectually annul the contract? By

section seven of the Act the Board ate required to remove to the site of the Branch Prison, when selected, such a number of convicts as they may deem proper. The performance of this duty might result in the virtual annulment of many contracts; yet it would hardly be claimed that it should not, for that reason, be performed.

In entering into a contract for the employment of prison labor, the contractor must be held to bargain in view of the right of the Directors, acting in behalf of the State, to annul the contract whenever the paramount obligation to execute the powers conferred upon them by the Legislature may require it. Whether the exigence of a particular case requires such action is a question which addresses itself to the discretion and judgment of the Board.

It is in the nature of a judicial and not of a ministerial act, and the liabilities of the Board are those which attach to the judicial officers in the exercise of judicial functions. There is no question at this day as to the nature and extent of this liability. In Martin v. Mott, 12 Wheaton, 31, it was said by Mr. Justice Story that “ whenever the statute gives a discretionary power to any person, to be exercised by him upon his own opinion of certain facts, it is a sound rule of construction that the statute constitutes him the sole and exclusive judge of the existence of these facts.” In Jenkins v.

Waldron, 11 Johns. 121, it was said: “It would, in our opinion, be opposed to all the principles of law, justice, and sound policy to hold that officers, called upon to exercise their deliberate judgments, are answerable for a mistake in law, either civilly or criminally, when their motives are pure and untainted with fraud or malice.” In Kendall v. Stokes, 3 Howard, 98, Taney, C.

J., says: “A public officer is not liable to an action if he falls into error in a case where the act to be done is not merely a ministerial one, but is one in relation to which it is his duty to exercise judgment and discretion, even though an individual may suffer by his mistake.” The same doctrine is held in numerous cases both in England and America, and is settled by authority as well as supported by sound reasoning. In this case no fraud or malice upon the part of the defendants is alleged or proven.

The act of which the plaintiff complains was the withholding of the convict labor to which he claims to have been entitled under the terms of his contract with the former Board. This act the Directors might lawfully do, whenever, in théir judgment, it became necessary. It was within their jurisdiction to determine upon this course. Whether their discretion is properly exercised is not a question for review by the Courts. The plaintiff is not left without remedy. His remedy, however, as was held by the Court below, is, in fact, only against the State.

In a case of hardship (as, from the evidence found in the record, this appears to be) the State, by its Legislature would probably, and very properly, relieve a party from a loss occasioned by the act of its own agents. Judgment and order affirmed.