Perkins, J.
J.— Willian Helton, and three other persons, applied to the Floyd Circuit Court for a mandate to the warden and directors of the state prison at Jeffersonville, commanding them to withdraw the convicts belonging to said prison from the surrounding cities and country, where they were hired out to labor, and to confine them within the prison limits.
It is alleged that a part of the convicts are employed in a brick-yard near the prison, and a part among the community at remote distances from it; that the brick-yard adjoining the prison is upon the ten acre tract of ground purchased and owned by the state for prison purposes, which ground is enclosed by a common board fence, with [578]*578suitable guard-houses, and that bricks have been made there by the convicts, a fact of general notoriety, for the last fifteen years. '
The whole number of convicts belonging to the prison is five hundred and seventy-six, of which number but two hundred and twenty-three have found work inside the state’s inclosure. The shops belonging to the prison will only accommodate two hundred and seventy-five laborers, and there is room to erect no more shops. There are but three hundred and forty-three single cells, and there is no building or inclosure within the walls where idle men can be kept during the day, especially in summer, without great danger of sickness and insurrection, nor is there any room for the,erection of such building or inclosure. The cost of feeding and clothing each convict is 31i cents per day, and the prison has no income but the proceeds of convict labor. The convicts have been publicly and notoriously worked outside of the prison bounds for the last fifteen or twenty years. They are worked under guards, returned and locked up in the prison at night, have the same opportunities for receiving instruction and medical treatment as though worked inside, &c. Such is a full statement of the facts of the case; and upon it counsel on both sides have furnished very able and thorough arguments.
The ground on which the mandate was asked is, that the law does not allow the working of convicts beyond the prison limits; that, it is injurious to citizen laborers with whom they come in contact, and competition; and that the presence of the convicts is offensive and demoralizing to the community among whom they are permitted to mingle as laborers.
The disposition to be made of convicted criminals—the treatment that should be meeted out to them—has presented a uniformly embarrassing question to government, since the time when Howard, the philanthropist, aroused public attention to the subject by publishing the results of his explorations of the “mansions of sorrow and pain,” in which such criminals were confined by the governments of Europe.
[579]*579Transportation, solitary confinement, silent labor, and social labor, have all been tried, but without satisfactory results, in the punishment of convicts.
Later has sprung up the idea of reform of the convict, pari passu,- with punishment and profit through his labor.
In the present state of society and condition of things, it is to be feared this latter idea will fail of realization but to a very limited extent; the buddings of reform, commenced in prison, if, indeed, they are commenced, will not be protected and fostered till they shall blossom in the convict free, but will be withered and blighted by the chill of neglect and scorn which will greet him on Ms return to the community. He will not be received into respectable society. Confidence will not be extended to him. Employment will not be given to him by respectable men, for respectable men will not labor in company with him. And we have no penitentiary-convict-employment societies to step forward and receive him in their embraces. He becomes, therefore, almost necessarily an Ishmaelite, his hand against every man in community. He resumes his marauds. He inveigles and seduces others, especially of the young, into his schemes and his overt acts of crime; and in a little while he leads back a sad company from sadder homes to experience the reforming influences of the state prison-Thus it is that every discharged convict becomes but a mere recruiting officer for the penitentiary; and such convicts are issuing from it and overflowing upon the community in an incessant stream.
In view of these facts the writer of this opinion would hold, that a part of the policy of punishment for infamous crime, committed under circumstances indicating great moral turpitude, should be the removal, and forever, of the polluted criminal from society, that it might, in future, be saved from his contaminating touch; and to this end he would have but two measures of punishment for this class of crimes, to-wit, capital and imprisonment for life. No man should ever be permitted to return from the penitentiary—a man of depravity—to prey upon the community, or demoralize it by contact. Lesser offenses, and such as do [580]*580not involve great moral turpitude, should be punished in a way that may not attach infamy to the individual.
From what has been said it will be manifest that if the statute of the state does authorize the working of penitentiary convicts outside of the prison limits, and among the community, the statute is a bad one, considered as a permanent regulation. Such working for a temporary object, as •the erection of a public building by.the state, might be tolerated. But as a permanent measure of policy, the state should, in our judgment, provide herself with grounds and buildings sufficiently extensive to accommodate at work and at repose all her convicts.
But the question submitted to us is, not what the law should be, but what it is; and if the legislature has seen fit to authorize the working of the convicts outside of the prison bounds, no one, save ,the convicts themselves, can, we take it, dispute the validity of the law, and refuse to obey it while it remains upon the statute book; and as such working would undoubtedly be held a mitigation rather than an aggravation of the punishment of the convicts, they could not withhold obedience to the law. Strong v. The State, 1 Blackf. 193.
'Does, then, the statute law of this state authorize the working of penitentiary convicts outside of the prison limits?
The code of 1852 provides, as the general rule, that when any person is convicted of a felony, he “ shall be imprisoned in the state prison” for the time he is to undergo punishment. 2 R. S. p. 396, et seq.
Such has been the law since the organization of the government; and by 2 R. S. p. 424, § 59, it is enacted that “whenever any person is imprisoned in the state prison, he or she shall be kept at hard labor therein, during the period forwhich such person was sentenced.”
These provisions not only do not allow, they in effect forbid, the working of the convicts outside of the prison limits.
We have found no subsequent statute that permits such [581]*581working of the convicts, except for some special temporary purpose named in the statute (but we have found those that expressly forbid it), till we come to the act of 1857. Does that act depart from the line of previous legislation, and from what, in our judgment, is sound public policy?
All the sections of that act except two clearly harmonize with previous legislation on the subject. Two of those sections create some doubt.
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Perkins, J.
J.— Willian Helton, and three other persons, applied to the Floyd Circuit Court for a mandate to the warden and directors of the state prison at Jeffersonville, commanding them to withdraw the convicts belonging to said prison from the surrounding cities and country, where they were hired out to labor, and to confine them within the prison limits.
It is alleged that a part of the convicts are employed in a brick-yard near the prison, and a part among the community at remote distances from it; that the brick-yard adjoining the prison is upon the ten acre tract of ground purchased and owned by the state for prison purposes, which ground is enclosed by a common board fence, with [578]*578suitable guard-houses, and that bricks have been made there by the convicts, a fact of general notoriety, for the last fifteen years. '
The whole number of convicts belonging to the prison is five hundred and seventy-six, of which number but two hundred and twenty-three have found work inside the state’s inclosure. The shops belonging to the prison will only accommodate two hundred and seventy-five laborers, and there is room to erect no more shops. There are but three hundred and forty-three single cells, and there is no building or inclosure within the walls where idle men can be kept during the day, especially in summer, without great danger of sickness and insurrection, nor is there any room for the,erection of such building or inclosure. The cost of feeding and clothing each convict is 31i cents per day, and the prison has no income but the proceeds of convict labor. The convicts have been publicly and notoriously worked outside of the prison bounds for the last fifteen or twenty years. They are worked under guards, returned and locked up in the prison at night, have the same opportunities for receiving instruction and medical treatment as though worked inside, &c. Such is a full statement of the facts of the case; and upon it counsel on both sides have furnished very able and thorough arguments.
The ground on which the mandate was asked is, that the law does not allow the working of convicts beyond the prison limits; that, it is injurious to citizen laborers with whom they come in contact, and competition; and that the presence of the convicts is offensive and demoralizing to the community among whom they are permitted to mingle as laborers.
The disposition to be made of convicted criminals—the treatment that should be meeted out to them—has presented a uniformly embarrassing question to government, since the time when Howard, the philanthropist, aroused public attention to the subject by publishing the results of his explorations of the “mansions of sorrow and pain,” in which such criminals were confined by the governments of Europe.
[579]*579Transportation, solitary confinement, silent labor, and social labor, have all been tried, but without satisfactory results, in the punishment of convicts.
Later has sprung up the idea of reform of the convict, pari passu,- with punishment and profit through his labor.
In the present state of society and condition of things, it is to be feared this latter idea will fail of realization but to a very limited extent; the buddings of reform, commenced in prison, if, indeed, they are commenced, will not be protected and fostered till they shall blossom in the convict free, but will be withered and blighted by the chill of neglect and scorn which will greet him on Ms return to the community. He will not be received into respectable society. Confidence will not be extended to him. Employment will not be given to him by respectable men, for respectable men will not labor in company with him. And we have no penitentiary-convict-employment societies to step forward and receive him in their embraces. He becomes, therefore, almost necessarily an Ishmaelite, his hand against every man in community. He resumes his marauds. He inveigles and seduces others, especially of the young, into his schemes and his overt acts of crime; and in a little while he leads back a sad company from sadder homes to experience the reforming influences of the state prison-Thus it is that every discharged convict becomes but a mere recruiting officer for the penitentiary; and such convicts are issuing from it and overflowing upon the community in an incessant stream.
In view of these facts the writer of this opinion would hold, that a part of the policy of punishment for infamous crime, committed under circumstances indicating great moral turpitude, should be the removal, and forever, of the polluted criminal from society, that it might, in future, be saved from his contaminating touch; and to this end he would have but two measures of punishment for this class of crimes, to-wit, capital and imprisonment for life. No man should ever be permitted to return from the penitentiary—a man of depravity—to prey upon the community, or demoralize it by contact. Lesser offenses, and such as do [580]*580not involve great moral turpitude, should be punished in a way that may not attach infamy to the individual.
From what has been said it will be manifest that if the statute of the state does authorize the working of penitentiary convicts outside of the prison limits, and among the community, the statute is a bad one, considered as a permanent regulation. Such working for a temporary object, as •the erection of a public building by.the state, might be tolerated. But as a permanent measure of policy, the state should, in our judgment, provide herself with grounds and buildings sufficiently extensive to accommodate at work and at repose all her convicts.
But the question submitted to us is, not what the law should be, but what it is; and if the legislature has seen fit to authorize the working of the convicts outside of the prison bounds, no one, save ,the convicts themselves, can, we take it, dispute the validity of the law, and refuse to obey it while it remains upon the statute book; and as such working would undoubtedly be held a mitigation rather than an aggravation of the punishment of the convicts, they could not withhold obedience to the law. Strong v. The State, 1 Blackf. 193.
'Does, then, the statute law of this state authorize the working of penitentiary convicts outside of the prison limits?
The code of 1852 provides, as the general rule, that when any person is convicted of a felony, he “ shall be imprisoned in the state prison” for the time he is to undergo punishment. 2 R. S. p. 396, et seq.
Such has been the law since the organization of the government; and by 2 R. S. p. 424, § 59, it is enacted that “whenever any person is imprisoned in the state prison, he or she shall be kept at hard labor therein, during the period forwhich such person was sentenced.”
These provisions not only do not allow, they in effect forbid, the working of the convicts outside of the prison limits.
We have found no subsequent statute that permits such [581]*581working of the convicts, except for some special temporary purpose named in the statute (but we have found those that expressly forbid it), till we come to the act of 1857. Does that act depart from the line of previous legislation, and from what, in our judgment, is sound public policy?
All the sections of that act except two clearly harmonize with previous legislation on the subject. Two of those sections create some doubt. One of them, viz., § 22, is this:
“ It shall be lawful for the directors, if in their opinion justice and good faith require it, to continue the existing contracts for the hire of the convicts, with the present contractors, for a period not exceeding four years from and after the first day of Jme, 1857.”
It is not shown, in this case, that any of those “existing contracts” involved the removal of the convicts beyond the prison limits, and, hence, the section is perfectly consistent with the close labor practice. Had it been shown that “existing contracts” for outside labor were recognized by the legislature, a different view of the section might have been taken.
The other section referred to is this:
“ Sec. 10. The convicts may be levied [or hired] in any number not exceeding one hundred in any one contract, in such manner as the directors, in their judgment, may consider to be most conducive to the interests of the state. All contracts for working convicts shall be given to the highest and best responsible bidder. The directors shall cause such notice to be given by publication, of the time and place of letting to hire said convicts, as they may deem most beneficial to the state. All contractors shall be required to give security to the state for the faithful per- • form anee of their contracts, in such amount as the directors, in their judgment, may think proper. In allotting convicts whose labor is thus contracted for, the warden shall do it in such manner as he shall consider will give the convict such knowledge of any mechanical art as will be most conducive to his [their] interests after his [their] discharge.” Acts of 1857, p. 103.
R. Crawford, for the appellants (1).
J. H. Stotsenberg and T. M. Brown, for the appellees (2).
Now, this section does not, in terms, authorize the contracting of the convicts to labor outside of the prison bounds; and when we proceed to the question of construction, we are bound to harmonize it with other legislation on the subject, if it can reasonably be harmonized. We must construe it in connection with the previous section quoted, providing that convicts shall be kept at labor in the prison. There is no difficulty in reconciling the two provisions. The commissioners can hire out the convicts at their discretion within the prison bounds. We may observe here that we do not mean by prison limits the space enclosed by the walls of the prison. We think they may properly be defined to include that space, and also the secret enclosure around the prison, be it larger or smaller, which is owned by the state, and appropriated to the uses of the prison. The prisoners, in such enclosure, can be kept separate and secluded from the community at large, and may, while thus kept, be regarded as in prison.
We think the prisoners cannot, under the present statutes, be worked outside of the state grounds adjoining the prison, except such as are taken to Michigan City under the act of 1859.
But, as the cause of complaint arose in Clark county, we do not think the Floyd Circuit Court had jurisdiction of the suit, and, hence, the judgment below dismissing it, is affirmed with costs.
Per Curiam.
The judgment is affirmed with costs.