A writ of habeas corpus directed to the warden of Great Meadow Prison to inquire into the cause of the detention of relator was *Page 176 dismissed by the County Judge of Washington county on June 12, 1936. Upon appeal, the Appellate Division, third department, reversed upon both the law and the facts, sustained the writ and discharged the relator. The Attorney-General has appealed to this court.
We have before us the petition, writ, return and traverse and nothing else. No evidence was taken on the return of the writ. If there was a dispute as to matters of fact concerning which inquiry might be made in this proceeding, it was the duty of the judge before whom the writ was returned to take such evidence. (Matter of Lee, 220 N.Y. 532.) It must be assumed that there was no dispute as to the facts. Relying upon the record before us, the decision of the Appellate Division must be sustained.
In the petition, relator asserts that he "is now illegally held without due process of law, in flagrant violation of his constitutional rights, and contrary to law, in custody, imprisoned and deprived of his liberty without his consent" by the warden of Great Meadow Prison; that the sole authority claimed by virtue of which he is detained, imprisoned and deprived of his liberty by the warden is the commitment issued by the County Judge of Bronx county on February 11, 1921, for a definite term of twenty years and that "said commitment is null and void in continuing petitioner in prison" because his term expired and he was duly discharged on June 5, 1931, after a total confinement of ten years and five months, allowing for credit for commutation and compensation pursuant to article 9 of the Prison Law; that he was conditionally discharged by the Governor on June 5, 1931, and has not violated any condition of his discharge nor is he held because of any such claimed violation. He alleges that he has been returned to prison by virtue of some order of the Parole Board for the alleged violation of a rule of the Parole Board relating to the despatch of New Year's greetings to his family. Attached to the petition are copies of the commitment of February 11, *Page 177 1921, and of the certificate of release dated May 26, 1931, and of the agreement of relator on release dated June 4, 1931.
The only parts of the return which purport to show the cause of relator's detention are paragraphs II and III. From those clauses it appears that the warden is holding relator under the commitment of February 11, 1921, on a declaration by the Parole Board of delinquency on August 21, 1933. This the relator admits, and there were no facts to traverse, but, by a traverse, relator reasserts his reasons why he is illegally detained. The record contains a copy of the compensation sheet and the commutation of sentence by the Governor.
It appears that on February 11, 1921, the relator was sentenced to a term of twenty years imprisonment after conviction of grand larceny in the first degree as a second offender. The relator was not subject to the jurisdiction of the Board of Parole, as he was sentenced as a second offender for a definite term. On January 19, 1931, as required by the provisions of section 233 of the Correction Law, the officers of Great Meadow Prison, where relator was then confined, constituting the board provided by section 236 for the purpose of determining the amount of commutation and compensation to which relator was entitled under said law, reported to the Governor that relator was entitled to a reduction of forty-six days in jail before sentence and had earned a reduction of nine years, six months and twenty-three days, and such reduction would fix the date for discharge as June 5, 1931. Thereupon, on March 30, 1931, in pursuance of the power conferred by article IV, section 5, of the State Constitution, the Governor conditionally commuted his sentence to expire June 5, 1931. The commutation was in the following words:
"Now, therefore, in pursuance of the provisions of the Prison Law, I do hereby reduce the sentence of each of the said convicts as recommended by said Board, under *Page 178 the conditions that prior to his release from imprisonment by virtue of this reduction of sentence, he does not offend against the Laws of the State or the rules of the prison, and under the further condition that such convict shall live and remain at liberty without violating the law, and be subject to the jurisdiction and control of the Board of Parole for State Prisons as provided in Article Eight of the Prison Law, excepting section Two Hundred and Eighteen thereof, and also under the further condition that if any convict whose sentence is so reduced shall, during the period between the date of his release by reason of such reduction and the date of the expiration of the full term for which he was sentenced, be convicted of any felony committed in the interval, as aforesaid, he shall, in addition to the sentence which may be imposed for such felony and before beginning the service of such sentence, be compelled to serve in the prison or penitentiary in which he may be confined for the felony for which he is so convicted the remainder of the term without commutation, which he would have been compelled to serve but for the reduction of his sentence, but, he may, however, earn compensation in reduction of the remainder of such term, and provided further that he willingly and efficiently performs the duties assigned to him prior to his discharge."
There were three specific conditions fixed by the Governor upon which commutation of sentence was granted: (1) That prior to his release from prison the relator shall not offend against the laws of the State and the rules of the prison. (2) That he shall live and remain at liberty without violating the law, and be subject to the jurisdiction and control of the Parole Board, as provided in article 8 of the Prison Law, excepting section 218 thereof. (3) That in the event he shall be convicted of a felony prior to the expiration of his unexpired maximum term, he shall be required first to serve the unexpired portion of that term without commutation. The return of the warden states that the *Page 179 relator was released on June 5, 1931. By the express terms of the Governor's commutation, he reduced the sentence so that it would conditionally expire on that date. The return necessarily shows that there was no violation by relator of the condition of release first above mentioned. Inasmuch as the relator was sentenced for a definite period, no action by the Board of Parole was required prior to his release. The situation would have been different had relator been sentenced to an indefinite term and had it been reduced merely to the minimum. (Correction Law, § 223; People ex rel. Cecere v. Jennings, 250 N.Y. 239.) Article 8 of the present Correction Law applies only to prisoners sentenced to an indeterminate period subsequent to July 1, 1928 (§ 223) and the relator is thus specifically excluded from the provisions of that article. (People ex rel. Cecere v.Jennings, 250 N.Y. 239, 241.)
The functions of the Board of Parole for State Prisons, together with all the jurisdiction, powers and duties pertaining to such functions as of January 1, 1927, were transferred to the Department of Correction to be exercised and performed therein by or through the appropriate board. (State Departments Law, § 401 [Cons. Laws, ch. 78]; Laws of 1926, ch. 606.) Out of subsequent legislative enactments (one of which repealed § 401 above) emerged the Parole Board in authority at the time of relator's release. (See Laws of 1928, ch. 485, § 2; Laws of 1929, ch. 243, § 11; Laws of 1930, ch. 824, § 5.) So far as relator is concerned, the powers of this Board were expressly limited by the Governor as provided in the second above mentioned condition of commutation. The Governor could attach such conditions as he saw fit and commutation was not subject to legislative restrictions, limitations or extensions. (People ex rel. Atkins v.Jennings, 248 N.Y. 46.) Notwithstanding, the Board proceeded to attach terms and conditions to the release not imposed by the Governor. Among them was the condition in effect that he should *Page 180 be subject to the same broad jurisdiction and control by the Board as that exercised over prisoners sentenced to indeterminate sentences. They also extended their jurisdiction to the limits permitted by article 8 of the Correction Law, in spite of the fact that that article of the Correction Law could have no application to this relator. The extent of the jurisdiction was that of supervision within the limitation imposed by the Governor and did not extend to rules and regulations enacted to govern parolees to whom the Board itself was authorized by law to grant parole. The fact that relator agreed to the conditions imposed by the Parole Board does not change the situation, for he could not be compelled to agree to forego a right which was given him by law or contract himself into servitude. The result is that the Board had no jurisdiction to parole and reparole as was done in this case or to return the relator to prison for violation of any rules, regulations or conditions imposed by it and not included within the express conditions of release imposed by the Governor. The provisions of section 218 of the Prison Law before amendment in 1928 (Laws of 1928, ch. 485) extends the jurisdiction of the Parole Board to grant an absolute discharge in a case under their control on conditions therein stated. The purpose of the Governor in excepting section 218 as then in force was to limit the Board's jurisdiction and control over this relator.
Section 696 of the Code of Criminal Procedure provides for the effect of violation of the conditions imposed by the Governor and also provides that determination of such violation shall be had in the manner prescribed in the Correction Law. The Governor placed control of relator in the hands of the Board of Parole as provided in article 8 (except as to section 218). The practice required for retaking in the event of violation of the conditions imposed by the Governor is laid down in sections 216-220 of article 8 of the Correction Law. The record is barren of any evidence that any determination *Page 181 was made or practice followed as required by the provisions of those sections. It must be presumed that relator was reincarcerated by virtue of the declaration of delinquency made by the Parole Board on August 21, 1933. It is so stated in the return, but the proceedings before the Parole Board are not in the record and there is nothing to indicate what the delinquency was. There was nothing before the court upon which any conclusion could be based that a violation of the terms and conditions imposed had occurred. Thus, there was no evidence that the Parole Board had jurisdiction to order his reincarceration. No matter how broad a jurisdiction the Parole Board may have had, Ross could not be reincarcerated unless it was upon evidence of violation of conditions of parole or commutation. In People exrel. Atkins v. Jennings (supra, at p. 53) it is said: "On a question so vitally affecting personal liberty, the record should establish that the right to remain outside prison walls had been forfeited. Nothing should be left to surmise or conjecture." Under section 1245 of the Civil Practice Act, the return must state the authority and true cause of the imprisonment or restraint, setting it forth at length, and this provision requires that the facts upon which the order of reincarceration was made should be set forth. (People ex rel. Tweed v.Liscomb, 60 N.Y. 559; People ex rel. Trainor v. Baker,89 N.Y. 460; People ex rel. Stumpf v. Craig, 79 Misc. Rep. 98.) There is no evidence in the record that Ross has violated any law since June 5, 1931. The Parole Board could not act arbitrarily and was without jurisdiction to make a decision unfavorable to the relator requiring his reincarceration unless based upon facts showing violation of the conditions imposed. Action on undisclosed grounds may not avail, for those grounds, if any existed, might be no grounds at all. Retaking without a warrant and an opportunity to be heard is authorized by no law. Such arbitrary power is nowhere committed to that Board. The situation is in no wise changed by the statement of relator in the petition *Page 182 that he was recommitted by the Parole Board three times for infractions of its rules. For that ground he could not be recommitted. The law provides that if he violated the conditions imposed by the Governor, the "commutation shall be void and he shall be remanded to the place of his former imprisonment and there confined for the unexpired term for which he had been sentenced." (Code Crim. Proc. § 696.)
Exhibit A, attached to the brief of the Attorney-General, certifying that on May 3, 1931, one Peter Criscuolo was convicted and given a suspended sentence and returned to Sing Sing Prison on August 28, 1931, has no place in the record on this appeal. This exhibit did not appear in the record upon which the case has been heard nor is there a scintilla of evidence in the record connecting the relator with the person mentioned in that exhibit.
The order of the Appellate Division should be affirmed.
LEHMAN, O'BRIEN, HUBBS, LOUGHRAN and FINCH, JJ., concur with CRANE, Ch. J.; RIPPEY, J., dissents in opinion.
Ordered accordingly.