by John Marshall Harlan

“ If no bond was executed as required by the statute, the plaintiff was not in a position to ask relief by mandamus. The superintendent of the prison may not have been charged by law with knowledge of the provisions of the statute; but he was aware of its provisions, and was bound not to allow the convicts to go beyond his control, under an agreement that did not conform to the statute. An agreement unaccompanied by the required bond would not justify him in surrendering custody and control of the convicts or any of them. ”

“ Nugent also filed an answer, alleging, among other things, that there was a want of proper parties defendant; that the territory had no power to hire out the convicts confined in the territorial prison who had not been sentenced to punishment with hard labor, nor to authorize the convicts to be taken out and away from the territorial prison, where punishment and sentence were by confinement in such prison; that the board of control had no power to make the contract sought to be enforced ”

“ A good and sufficient bond must be given by the person or persons leasing the labor of inmates of the aforesaid institutions for the faithful performance of such contract; said bond to be approved by the board of control.' Laws Ariz. 1895, pp. 20, 22.
This statute being in force, a written agreement was made D cember 2, 1896, between 'the territory of Arizona, by L. C. Hughes, governor, C. P. Leitch, auditor, and M. H. McCord, constituting the board of control of the territory of Arizona,' of the first part, and the State of Arizona Improvement Company, of the second part. ”