106 Ky. 820 | Ky. Ct. App. | 1899
Lead Opinion
delivered the opihton oe the court.
The questions here involved are: (1) Is the act known as the “Parole Law” still in force? If so, is it to be executed by the Board of Penitentiary Commissioners or by the Commissioners of the Sinking Fund? (2) Is it constitutional?
Until 1898 the control and management of the penitentiaries of the State was vested in the Commissioners of the Sinking Fund; the Governor, Auditor, Treasurer, Secretary of State, and Attorney General ex officio constituting the commissioners. By the act of May 2, 1888, upon specified conditions, the commissioners of the sinking fund were authorized to allow persons confined in the penitentiaries, except those who were convicted of certain offenses, to go on parole outside of the buildings and the inclosure of the penitentiaries, free from the custody and control of the warden, but to remain in the legal custody and control of the commissioners, subject at any time to be taken back and confined in the penitentiary. Full power to enforce rules and regulations for retaking and reimprisoning any convict upon parole existed. To retake such prisoner, the written order of the commissioners, when signed hy the Governor and attested by the Secretary of State, constituted a sufficient warrant to authorize sheriffs and other officers to arrest such convict and deliver him to the custody of the warden. The expense of rearrest was to be paid by the State Treasurer when
It is contended that this law is no longer in force, because it has been repealed by the act wliich became a law in 1898, entitled “An act to create a Board of Penitentiary Commissioners and regulate the penal institutions of this Commonwealth.”
It is true that under that act the management and control of the penitentiaries was taken from the commissioners of the sinking fund, and placed in the hands of the Board of Penitentiary Commissioners, but there is nothing in the act which makes any reference whatever to the parole law. That subject is not referred to in any way in the act. Repeals by implication are not favored.
We are of the opinion that the parole law has not been repealed.
It is contended, however, that, because the control and management of the penitentiaries was placed in the hands of the Board of Penitentiary Commissioners, the power to execute the law is vested in them. We do not think this is true, in the first place, because no express authority was conferred upon them, and, in the second place, the act provides for the reimprisonment of parole convicts. By the terms of the act, they can only be arrested and imprisoned upon the order of the Commissioners of the Sinking Fund, when signed by the Governor and attested by the Secretary of State. As the act denounces a penalty only for disobeying the orders of the Commissioners of the Sinking Fund, it would follow that no penalty could be imposed on any officer for disobeying the orders of the pen
We are of the opinion that the Board of Penitentiary Commissioners have no power to parole a prisoner under the law, and that that power is vested in the Commissioners of the Sinking Fund. Section 77 of the Constitution, in reference to the power of the Governor, reads: “He shall have power to remit fines and forfeitures, commute sentences, grant reprieves and pardons.”
If paroling a prisoner is not a pardon of the prisoner, or commutation of the sentence, then the power vested in the Governor is not attempted to be interfered with. “A ‘pardon’ is an act of grace, proceeding from the power intrusted with the execution of the laws, which exempts the individual on whom it is bestowed from the punishment the law inflicts for a crime he has committed.” United States v. Wilson, 7 Pet., 150. “A full and absolute pardon releases the offender from the entire punishment prescribed for his offense, and from all the disabilities consequent on his conviction.” Com. v. Bush, 2 Duv., 264. A pardon discharges the individual designated from'all or some specified penal consequence of his crime. It may be full or partial, absolute or conditional. Bouvier Law Diet, title, Pardon; 1 Bishop’s Crim. Law (6th Ed.) section 914. It can not
The judgment is affirmed.
Dissenting Opinion
dissents.
The appellants, who are commissioners in control of, and managing the penitentiaries of the State, assumed the right to parole one John Dugan, a prisoner convicted' of the offense of manslaughter. The authority to parole Dugan is claimed under the act of May, 1880, and amendments thereto.
It will be seen, by examination of the statutes in force prior to 1889, that the Governor, Attorney General, Auditor, Secretary of State, and Treasurer constituted the board of Sinking Fund Commissioners, and as such had the control of the penitentiaries, and were by law authorized to parole prisoners.
The appellants in this case claimed and attempted to exercise the power to parol said Dugan, but the appellee Lillard, who is warden of the prison, refused to discharge Dugan, and appellants brought this suit to obtain a mandamus requiring appellee to respect the parole aforesaid.
The court below sustained a demurrer to the petition, and dismissed the action, and appellants prosecute this appeal.
The majority opinion affirms the judgment, and I concur in the affirmance. But the majority opinion takes up the question of the constitutionality of the so-called “Parole Law’,” and decides that it is constitutional, and may be enforced by the commissioners of the sinking fund.
I dissent entirely from the opinion in so far as it holds the act in question to be' constitutional.
I am also of the opinion that the parole law stands repealed.
The acts of 1891-92-93 provided for the government of the penitentiaries,and it seems to me that under the rule announced in Broaddus v. Broaddus the parole law stands repealed.
The act of 1898 took the control and management of the penitentiaries from the sinking fund commissioners, and
If, however, the parole law has not been repealed, I am of opinion that it is unconstitutional and void.
Section 77 of the Constitution provides that the Governor shall have power to commute sentences, grant reprieves and pardons.
Bouvier’s Law Dictionanr adopts Blackstone’s definition of “reprieves,” as follows: “The withdrawing of a sentence for an interval of time, which operates in delay of execution.”
The parole provided for by the act under consideration is clearly a reprieve, and nothing else, and is therefore an invasion . of the power vested in the Governor, and it is no answer to say that he is one of the commissioners. If the parole law is valid, a majority of the commissioners can exercise the power, although the Governor might oppose it.
Yr. Webster defines “reprieve” as follows: 1st. “To delay the' punishment of; to suspend the execution of sentence; . . .” 2d. “To relieve for a time, or temporarily.”
It is perfectly manifest that the so-called “Parole Law” is in law and in fact a reprieve, and also a conditional or partial pardon and therefore in conflict with section 77 suvra.
It seems to me that section 253, supra, is absolutely conclusive of the question. It is so plain and positive that any attempt to explain the meaning is futile.
It is not claimed in the majority opinion that the paroled person is not still a convict.
The majority opinion says that the purpose of 'section 253 was to prevent the working of convicts by the State outside of the prison walls, etc. But it will be seen that the State may work the convicts on public works, and it is a canon of construction that, where a number of exceptions are made, all other exceptions are absolutely prohibited or disallowed.
It seems to me that a court should never construe a constitutional provision contrary to the express language thereof.
For the reasons given, and others not necessary to mention, I respectfully dissent from all that part of the opinion which holds the so-called “Parole Law” to be valid or constitutional.