SAM LANG, PLAINTIFF IN ERROR,

v.

GEORGE WARKER, DEFENDANT IN ERROR

Taylor, C. J.

(after stating the facts). — It is not contended here that the plaintiff in error was noli regularly tried, convicted and sentenced to imprisonment for crime, but, on the contrary, it is admitted that he was so legally tried, convicted and sentenced to imprisonment in the county jail for one year at hard labor by a court having complete jurisdiction so to try, convict and sentence, but the contention solely is that George Walker, the respondent, has no authority or right to the possession and custody of his person under such sentence; that the appointment of said Walker to the position of superintendent of guards over county convicts employed at work upon the public county roads was without authority of law and void. We do not think that the questions raised and argued in the briefs of counsel for the plaintiff in error touching the right of the said Walker to the custody of the plaintiff in error are presented by the record, or are at all involved therein. It is contended that the said Walker is an officer and received his appointment to such office by virtue of the provisions of chapter 4595, laws of 1897, entitled: “An act for the Improvement of the Public Roads and Bridges in Hillsborough County, Providing for the Employment of Convicts Under Certain Conditions, and for the Levy and Collection of a Road and Bridge Tax, and the Means of its Expenditure,” and that this act is unconstitutional and void for various reasons.

It is also contended that the said Walker, if not appointed to his office of “Superintendent of Convict Guards” under the provisions of the above mentioned act, was appointed thereto under the provisions of chapter 4769, laws of 1899, entitled “An Act to Provide for the Working of Public Roads of the State and the Working of Convicts Thereon,” and that this latter act is unconstitutional and void because it provides for the appointment of a “County Road Superintendent,” by the board of county commissioners, and that such County Road Superintendent is a county officer who can be constitutionally appointed only *by the Governor or elected by the people.

Unfortunately for these contentions, as before stated, they have no foundation in the record. There is nothing in the return of the respondent Walker to show that he is an officer, or that he was appointed under the provisions of either of the acts of the legislature mentioned above. But so far as said return of the. respondent shows to the contrary he is a mere agent or employe of the board of county commissioners, hired by them to superintend the labor of the county convicts upon the county’s roads, and to properly care for, guard, feed and keep such convicts while at work.

The motion to quash such return was equivalent to a demurrer thereto, and admitted its truth. That the county commissioners, independently of said questioned acts above mentioned, have the right and authority to employ county convicts at labor upon the public roads, etc., of the county, there can be no question under the provisions of section 3032, Revised Statutes (Holland v. State ex rel. Duval County, 23 Fla. 123, 1 South. Rep. 521), and under the provisions of chapter 4391, laws of 1895, they are expressly authorized to appoint guards and keepers over such convicts and to provide for their feeding, etc., and by the provisions of the last mentioned act such guards are clothed with the authority of sheriffs and constables as to the care and custody of such prisoners.

It is further contended that under the constitution of this State the custody, care, keeping and feeding of county convicts is a duty devolving upon the sheriff of the county, and that he is entitled to the emoluments flowing therefrom, and that he can not constitutionally be deprived thereof. There is no merit in this contention. The sheriff has no exclusively inherent or constitutional right to the custody, care and keeping of county convicts or to the emoluments to be derived therefrom. Our constitution, section 6, article VIII, expressly makes the powers, duties and compensation of sheriffs dependent upon legislative action.

The judgment of the Circuit Court in said cause is hereby affirmed at the cost of the plaintiff in error.