Dante placed on the gate to inferno the motto "Abandon hope all ye who enter here." Without parole and good conduct statutes, much of the despair of that motto must attend a prisoner upon entering the penitentiary. These statutes, that is, indeterminate sentence, parole and good conduct statutes, substitute for that feeling of hopelessness, on the part of such prisoners, the encouragement reflected in the expression, "Virtue hath its reward, even here."
The writer sickens at the thought that this hope, this inspiration toward reform and good citizenship, after seventeen years of its realization and effectiveness *Page 483 on the part of the administrative officers, should be shattered and rendered nugatory by a court, the members of which are unable to agree upon the reason why it is to be thus destroyed.
Aside from this somewhat sentimental attitude, the writer thinks that there are four reasons why plaintiff's position should be upheld.
First. It is consonant with practical, substantial, man to man justice. When the plaintiff entered the penitentiary the rules of the prison, which were then placed in his hands, told him that good conduct on his part would reduce the maximum of his sentence as he is now asking the court to say that it should be reduced. He conformed to those rules, he was a model prisoner, and he did just that which in other cases secured such reduction and final release because of it. In the view of the writer, withholding a final release from the plaintiff, under these circumstances, results in injustice. In saying this, it is not meant that the writer's associates are in any degree less anxious that justice be done than the writer. The writer thinks that the principles of statutory construction and constitutional limitations justify plaintiff's position. Except Mr. Justice BELT, those of the writer's associates, who heard this case, do not think so. It is because of this difference of opinion that the writer feels warranted in expressing his dissent and not in any sense for want of respect for the distinguished jurist, who wrote the prevailing opinion, or for the other members of the court who concur therein.
Second. The writer thinks that a consideration of four sections of the Oregon Code 1930, being sections 13-1905, 13-1906, 13-1129 and 13-1916 require the construction of the good conduct provision of section 13-1906 to be mandatory in such a case as the one at bar, *Page 484 where no question of parole is involved, but, where the prisoner has served such a length of time that when the time of service is considered in connection with the good conduct credit to which, if the statute applies to cases of final release, the prisoner is entitled, the two terms, that is, the term of actual service and the term allowed for good conduct equal the full term of his maximum sentence.
One of these four sections is section 13-1906, Oregon Code 1930, which employs the word, may, with respect to paroles, but uses the word, shall, in reference to deductions for good conduct, etc. The writer thinks that the use of the word, shall, implies that under some state of the record the deduction for good conduct is mandatory. Not being mandatory, with respect to a parole, which is a conditional release, the writer thinks that it is reasonable to conclude that it is mandatory with respect to an unconditional release or final discharge.
The other three sections, which in the writer's view support plaintiff's right to an unconditional final release are section 13-1905, which, until 1933, provided for paroles for those sentenced to determinate sentences prior to 1919, and did not provide for a parole for prisoners sentenced to definite terms subsequent to 1919; section 13-1129, which provides that prisoners, sentenced to determinate terms, shall be entitled to deductions for good conduct, etc., and section 13-1916, which provides that parole violators shall be entitled to deductions for good time, etc.
The writer thinks that it is clearly manifest that in cases of those sentenced to determinate sentences subsequent to 1919 and prior to 1933, the only purpose for which good conduct credit could be allowed would be to reduce the term of actual incarceration required before *Page 485 a final release or discharge would be given. The 1933 amendment, which provided for paroles for such prisoners, is in the writer's view a legislative construction of the prior statutes to the effect that no parole had theretofore been available for them.
From a common sense viewpoint, the advisory effect upon the parole board of a credit for good conduct, on the part of a parole violator after his return to the prison, would be so infinitesimal as to be practically nil.
The writer thinks that the mandatory word, shall, employed in section 13-1916, has reference to an allowance which affects a shortening of the maximum for such parole violator's sentence.
In the clause of section 13-1906, referring to the allowance of deduction for good conduct, etc., those sentenced to indeterminate sentences to which plaintiff belongs, the language is mandatory. It reads:
"* * * a record of good conduct, industry and evidence of general reformation certified to by the warden of the penitentiary shall entitle such person to a deduction," etc.
In the opinion of the writer, this mandatory language should not be disregarded, neither should it be given effect to compel the issuance of a parole, because, as to that, the language is permissive.
The writer concludes that it is consonant with logic, justice and approved principles of statutory construction to give mandatory effect to the word, shall, in section 13-1906 so that the maximum of the sentence of one serving under an indeterminate sentence, as well as those serving under determinate sentences, shall be lessened by credits for good conduct, and, when so lessened, a final release should be given. *Page 486
In the case at bar, the plaintiff does not seek a parole. He seeks to annul the purported parole granted to him. The question here presented is whether he should have been finally discharged as a prisoner who had fully served his term.
Despite the mandatory language of the statute, that those sentenced indeterminately shall be entitled to deduction for good conduct, etc., the writer thinks that this does not confer a vested right. It is inchoate and defeasible until the time actually served added to the time earned by good conduct attested by the certificate of the warden equals the full maximum term of the sentence.
As said by United States Circuit Judge Sibley:
"The credit is not a vested right, but only contingent until a time arrives such that its allowance will end imprisonment. The prisoner's record of conduct which is carefully kept under rules of the penitentiary is then to be inspected, and, if found such as the statute prescribes, the prisoner is entitled to the credit and to discharge, and has often been granted it on habeas corpus." Aderhold, Warden, v. Perry, 59 F.2d 379, 380.
The third reason in support of the writer's view is that, —
"The tendency of courts seems to be, if possible, to construe good conduct statutes as entitling the prisoner to the benefits of the statute as a matter of right and not as a favor." 21 R.C.L. Subject: Prisons and Prisoners, p. 1192, Art. VIII, par. 29 citing Murphy v. Com., 172 Mass. 264 (52 N.E. 505, 70 A.S.R. 266, 43 L.R.A. 154, note of 34 L.R.A. 511).
"Good conduct statutes are framed with the intention of improving prison discipline and have that effect if their enforcement is allowed." Ibid Par. 28.
The fourth reason is that for nearly seventeen years the administrative authorities, having the duty to administer *Page 487 these statutes, have construed them in accordance with the views of the writer in respect to the issuance of final releases or discharges.
The question of the propriety or impropriety of granting a parole is not in this case; but the writer ventures to say that, in his opinion, the language of the statute in that respect is not mandatory and he is unwilling to be influenced by administrative construction to the contrary.
It appears from the complaint that the rules and regulations of the penitentiary, which have been in effect since 1919, show, among other things, that the length of a maximum sentence of four years, after allowing good time, which is allowed for good behavior, is two years and eight months. This discloses that for more than seventeen years the contemporaneous construction placed upon the statute in question by the officers charged with the duty of executing them has been in accord with the construction here given. Such construction, having been observed and acted upon for a long period of time, should not be disregarded or overturned, except for the most cogent reasons and unless it be clear that such construction is erroneous. 59 C.J., Subject: Statutes, p. 1025, et seq. § 609, note 48 and authorities there cited, among which is Spencer v. Portland, 114 Or. 381 (235 P. 279), wherein numerous authorities sustaining the rule are collated. This rule is also recognized in Kelsey v. Norblad,136 Or. 76, 79 (298 P. 199).
The prevailing opinion holds that if the acts under consideration are to be given the effect of shortening the time of a sentence and also authorizing the governor of the state to parole a prisoner, such acts contain two subjects of legislation and not one subject and matters properly connected therewith and hence, if given *Page 488 such construction, are in violation of section 20 of article IV of the constitution.
The specially concurring opinion holds that the titles referring to paroles, indeterminate sentences, creating a parole board, defining its duties and extending the power of the governor to grant paroles embrace only one subject, namely, that of paroles and that deduction for good conduct, on the part of prisoner whether sentenced to a determinate or, as in the case at bar, to an indeterminate sentence, is a subject wholly foreign to those titles and hence, to construe them as the writer does, is to render them unconstitutional.
The view of the writer is that taking the titles together they deal with but one general subject, namely, the manner of carrying into effect the punishment provided by law of persons convicted of certain offenses.
In Illinois, the parole act of 1908 was construed by the supreme court of that state. The act was entitled:
"An act to revise the law in relation to the sentence and commitment of persons convicted of crime, and providing for a system of parole, and to provide compensation for the officers of said system of parole."
The titles of the Oregon acts under consideration here, namely, the act of 1905 and the act of 1911, "provide for sentencing certain persons convicted of felonies to imprisonment for indeterminate periods;" (General Laws of Oregon 1905, ch. 187, p. 318) "to extend and define the indeterminate sentence; to create a parole board and provide its powers and duties." (General Laws of Oregon 1911, ch. 127, p. 172.)
With reference to the title of the Illinois act, the Illinois court, in the prevailing opinion, say:
"The general subject dealt with by the act is the manner of carrying into effect the punishment, provided *Page 489 by law, of persons convicted of certain offenses. All of its provisions relate to that subject and are reasonably connected therewith." People v. Joyce, 246 Ill. 124 (92 N.E. 607, 20 Ann. Cas. 472).
The writer thinks that a deduction from the term of actual incarceration is inseparably connected with the subject of eligibility for parole. In his opinion, instead of good conduct deduction being foreign to and dissociated from parole, it is part of the warp and woof of the principle upon which all paroles after commitment are considered or granted. The writer thinks that in this state, where both determinate and indeterminate sentences are imposed, it is impossible to think of the class of offenders upon whom indeterminate sentences must be imposed without thinking of the class to which determinate sentences apply. So, too, is it impossible for the writer to think of the terms and conditions rendering prisoners eligible for conditional release without thinking of those who have only an unconditional release for their objective.
As the writer views it, all these matters are inseparably connected with the manner of carrying into effect the punishment of felons provided by law.
The trial courts of this state have observed the provision requiring determinate sentences; and scores, if not hundreds, of offenders have thus been sentenced since the act of 1920. Until the present case was heard, no one has ventured to suggest that such provision is unconstitutional. The writer thinks, therefore, that it has been judicially approved by conformity thereto during such a long period of time.
The title of chapter 149 of the General Laws of 1919 is "An act extending the power of the governor to grant paroles in certain cases." The act provides that all persons theretofore sentenced for a definite term of *Page 490 years may be allowed deductions from their term of service in the same manner and with like effect as in the case of persons who have received an indeterminate sentence and may be paroled by the governor whenever the certificate of the warden shall show that their prison records entitle them to be considered for parole.
It is argued that to apply the terms of this act to the subject of a final discharge is to render it unconstitutional, because it is said that the title of the act is restricted only to paroles.
It is true that the term, final discharge, is not mentioned in the title, but certainly it is germane to the phrase, — "extending the power of the governor to grant paroles." It is impossible to conceive of the extension of a power to grant a conditional release, without thinking of the field into which such extension must necessarily be made, and that is the field or sphere of unconditional release or final discharge. Before the enactment of this law, the prisoners affected by it had only one statutory form of release, namely, final discharge.
A parole from prison is a conditional release; while a final discharge therefrom is an unconditional release. It follows therefore that the title of an act providing for paroles by the governor or extending the right of the governor to issue paroles is germane to the subject of the final discharge of prisoners for the reason that such legislation changes the law which formerly provided only for an unconditional release by giving to some of the prisoners the privilege of a conditional release within the discretion of the governor and withholding such privilege from other prisoners. It is impossible to consider the term, conditional release from prison, without considering its counterterm, unconditional release or final discharge therefrom. *Page 491
In 1869, more than sixty-seven years ago, this court in considering the constitutional provision that the subject of an act shall be expressed in the title, (Article IV, section 20, Constitution of Oregon) stated
"The object of the provision evidently was to prevent matters wholly foreign and disconnected from the subject expressed in the title from being inserted in the body of the act." Simpson v.Bailey, 3 Or. 515, 517.
Subsequent cases approve this statement: McWhirter v.Brainard, 5 Or. 426; O'Keefe v. Weber, 14 Or. 55 (12 P. 74);Singer Mfg. Co. v. Graham, 8 Or. 17, 21 (34 Am. Rep. 572);Lawrey v. Sterling, 41 Or. 518 (69 P. 460); State ex rel. v.Richardson, 48 Or. 309, 318 (85 P. 225, 8 L.R.A. (N.S.) 362).
This court is also committed to the rule that a liberal construction should be given to the constitutional provision under consideration: State v. Shaw, 22 Or. 287 (29 P. 1028);Calder v. Orr, 105 Or. 223 (209 P. 479); State v. Putney,110 Or. 634, 646 (224 P. 279).
We have also declared that, in order to comply with this constitutional provision, it is not necessary to expressly mention in detail in the title each phase of the subject treated in the body of the act: Hansen v. Harris, 145 Or. 487 (28 P.2d 649); Idleman v. State, 146 Or. 13 (27 P.2d 305).
The writer thinks that determinate sentences are not wholly foreign or disconnected from the subject prescribing indeterminate sentences in certain cases, and that the term unconditional release or final discharge is not wholly foreign to or disconnected from the term parole or conditional release when the latter term is employed in connection with extending the privilege of parole or conditional release to some of the prisoners having the privilege only of final discharge or unconditional release. *Page 492
For these reasons the writer concludes, that with respect to final discharge, the construction which the warden has heretofore given the statutes in question does not violate the provision of the constitution requiring that the subject of the act shall be expressed in the title.
The other argument is that those sentences to serve definite terms are entitled only to deductions "provided for in this act" and since there is no express provision, as in the federal statute, declaring that upon the expiration of a sentence for a definite term the prisoner shall be discharged, we must hold that the legislature intended to restrict the deduction thus prescribed to the purpose of a possible parole only.
There is no express provision so limiting the effect of deductions for good time in cases of determinate sentences.
There being an ambiguity and vagueness arising, because the act under consideration, as passed in 1920, on the one hand, did not expressly provide for a discharge of those serving determinate sentences when allowance for good conduct and actual time of service reached the term of the sentence; and, on the other hand, said act did not expressly limit the effect upon determinate sentences to matters of possible parole, we are justified in resorting, as we have and do, to a consideration of legislation on allied subjects, and to executive, legislative and judicial construction.
It would have been easy to have provided for a parole of prisoners sentenced to a definite term subsequent to the enactment of the statute of 1919 (Chapter 149, General Laws 1919, p. 206); but it is very evident that subsequent to 1919, and prior to 1933, the legislature did not deem those so sentenced to be eligible to parole by virtue of legislative enactment under any *Page 493 circumstances. This makes it plain that during that time the provision for deduction for good conduct on the part of such prisoners could not have had reference to parole.
Whatever the plaintiff herein attempts to do with a so-called proviso, whether to lift it bodily from its context or to construe it in the light of the three other sections on the subject of allowance for good conduct, the very same thing was done about fourteen years before plaintiff was committed to the institution; and, at that time, it was not done by any prisoner, but by the very efficient, faithful and competent authorities charged with the administration of those laws.
The prevailing opinion holds that a parole is a conditional pardon; and, if that is so, the constitutional power of pardoning vested in the governor is not subject to legislative control.
With due respect for his learned associates who thus differ, the writer is unable to concur in either of these statements.
While there are authorities justifying the definition of a parole which the majority of this court now approve, the writer thinks there is a distinction between a parole and a pardon.
In an early case in Pennsylvania, it is said that "a pardon operates directly on the crime and only indirectly on the criminal. He is discharged from further punishment under the operation of a pardon, because the offense is blotted out for which he was consigned to punishment": Com. ex rel. Johnson v.Halloway, 42 Pa. 446 (82 Am. Dec. 526). A parole does not have the effect of effacing the offense, it does not restore to citizenship, it merely releases from incarceration.
In Kansas, this distinction has been recognized, in a case holding that the power conferred upon the board *Page 494 of managers of the State Reformatory by Kansas General Statute 1897, Chap. 134, to grant an absolute release before the expiration of the sentence, in view of good conduct of the prisoner, is not the executive power of pardon not being the power to remit guilt nor to restore to civil rights: State v.Page, 60 Kans. 664 (57 P. 514).
The same distinction has been noted by the supreme court of Indiana: Miller v. State, 149 Ind. 607 (40 L.R.A. 109, 49 N.E. 894).
The following cases hold that legislative paroles are encroachments upon the pardoning power of the governor: In reConditional Discharge of Convicts, 73 Vt. 414 (51 A. 10, 56 L.R.A. 658); Oliver v. Oliver, 169 Mass. 592 (48 N.E. 843);Murphy v. Com., 172 Mass. 264 (52 N.E. 505, 43 L.R.A. 154, 70 Am. St. Rep. 266); Fuuer v. State, 122 Ala. 32 (26 S. 146, 82 Am. St. Rep. 17, 45 L.R.A. 502); State v. State Board ofCorrection, 16 Utah 478 (52 P. 1090); People v. Cummings,88 Mich. 249 (50 N.W. 310, 14 L.R.A. 285).
The following cases adopt the theory herein stated, namely that statutes vesting the power to parole convicts in persons other than those in whom the constitution vests the exclusive power to pardon are merely regulative of punishment for convicts and hold that such statutes are not unconstitutional as infringements upon the pardoning powers: People ex rel. Joyce v. Strassheim,242 Ill. 359 (90 N.E. 118); People v. Joyce, supra; Miller v.State, supra; State v. Page, supra; State v. Stephenson,69 Kan. 405 (76 P. 905, 105 Am. St. Rep. 171, 2 Ann. Cas. 841);George v. Lillard, 106 Ky. 820 (51 S.W. 793); Wilson v. Com.,141 Ky. 341 (132 S.W. 557); Berry v. Com., 141 Ky. 422 (132 S.W. 1030); Board of Prison Commissioners v. DeMoss, 157 Ky. 289 (163 S.W. 183); In re Marlow, 75 N.J.L. 400 *Page 495 (68 A. 171); People ex rel. Clark v. Warden, 39 Misc. 113 (78 N Y Supp. 907); People v. Madden, 120 App. Div. 338 (105 N.Y. Supp. 554); People ex rel. Bettram v. Flynn, 55 Misc. 22 (105 N Y Supp. 551); Com. ex. rel. v. McKenty, 52 Pa. Super. 332; Woods v. State, 130 Tenn. 100 (169 S.W. 558, L.R.A. 1915F, 531); State ex rel. Greene v. Rimmer, 131 Tenn. 316 (174 S.W. 1134).
Whether the pardoning power of the governor is subject to legislative control depends entirely upon whether we give effect to the clause, —
"Subject to such regulations as may be provided by law." The first sentence of section 14 of Article V of the Oregon Constitution is as follows:
"He" [the governor] "shall have power to grant reprieves, commutations, and pardons, after conviction for all offenses, except treason, subject to such regulations as may be provided by law."
In a case decided in 1907, this court gave a very clear intimation that this clause should be considered and given effect. After quoting the above quoted sentence of said section 14 of Article V, this court said:
"There have been no regulations governing the exercise of the pardoning power provided by law, except the declaration in section 1572, B C Comp., that reprieves, commutations and pardons may be granted by the Governor upon such conditions and with such restrictions and limitations as he may think proper, which is but a restatement of the law as it exists without legislative action." Ex parte Houghton, 49 Or. 232 (89 P. 801, 9 L.R.A. (N.S.) 737, 13 Ann. Cas. 1101).
To the writer, this expression recognizes that there is legislative control to which the power of pardoning, on the part of the executive, is subject.
It must be conceded that the power to regulate does not ordinarily include the power to prohibit; but it is *Page 496 very clear to the writer that so regulating the matter that only in a certain class of cases shall a conditional release, not rising to the dignity or effect of a pardon, be granted, is not in any sense prohibiting the governor from pardoning.
The federal constitution in its grant to the president of the power to pardon does not limit or restrict that power: People v.Bowen, 43 Cal. 439 (13 Am. Rep. 148). Hence, in the writer's view the case of Ex parte Garland, 4 Wall. 333 (18 L.Ed. 366), is not in point.
A very interesting discussion of this question is to be found in Laird v. Sims, 16 Ariz. 521 (147 P. 738, L.R.A. 1915F, 519). In the annotation thereto the editor of L.R.A. adversely criticises the case. We quote an excerpt of that criticism:
"In the third place, the court seemed to think that it could not sustain the right of the governor to grant pardons without destroying the power of the legislature to establish a parole system. If it entertained this idea (see last paragraph of opinion), it would seem to have been mistaken. It correctly stated that `with perhaps one or two exceptions the courts of this country have recognized the validity of legislative boards vested with the power and duty of administering parole laws (State ex rel. Kelly v. Wolfer, 119 Minn. 368, 42 L.R.A. (N.S.) 978, 138 N.W. 315, Ann. Cas. 1914A, 1248, 6 R.C.L. 173) and, we think, rightly so.'"
The most exhaustive case, coming to the attention of the writer, on the subject is from Kansas. There effect is given to the restrictive clause in the Kansas constitution granting the pardoning power to the governor: Jamison v. Flanner,116 Kan. 624 (228 P. 82, 35 A.L.R. 973).
The constitution of Kansas grants the pardoning power to the governor under regulations and restrictions *Page 497 prescribed by law. The writer ventures to quote two paragraphs from the opinion last cited.
"We have summarized the constitutional provisions of the several states and the changes made therein and the decisions of the courts thereon, for the reason that they demonstrate, more forcibly than anything we could say, (1) the purpose of the pardoning power of a government, (2) that in our country it is a power inherent in the people, who may place its exercise in any department or official of the government, (3) that its proper use is beneficial, its improper use is detrimental and (4) that to avoid its improper use the people may restrict and regulate it by constitutional provision or may by their Constitution provide that it may be restricted and regulated from time to time by the Legislature. And this is what was done in our state."
"We have been prompted to make this summary because of the argument made on behalf of the appellee, and the loose notion which sometimes prevails that the pardoning power is an executive power, to be exercised by the Governor in his discretion, and that no other official or department of the government can interfere with it. But, as has been seen, that is so only when made so by the Constitution."
In an early Indiana case, a provision of the Indiana constitution was construed granting to the governor power to remit fines and forfeitures, "under such regulations as may be prescribed by law." It was there held that the power thus granted could not be exercised in the absence of statutory regulation. While this case was decided in 1857, it has been followed by subsequent decisions. One of these subsequent decisions was rendered in 1911.": Ryan v. State, 176 Ind. 281 (95 N.E. 561). Another in 1928, State v. Shumaker, 200 Ind. 716 (164 N.E. 408, 63 A.L.R. 218).
The writer ventures to quote from the opinion in the early case:
"As to remissions, the constitution says: `He shall have power to remit fines and forfeitures, under such *Page 498 regulations as may be prescribed by law.' This is the whole grant of power as to remissions. Is it an absolute grant of authority to remit; of a power that can be exercised without regulations prescribed?
Would an authority to a mechanic to build a house under such regulations, and pursuant to such plan, as an architect should prescribe, authorize him to build it as he pleased, without waiting for any plan or regulation from the architect?
It is plain, we think, that the power of remission is not granted absolutely to the governor, but only the power of exercising it pursuant to legislative direction." State v.Dunning, 9 Ind. 20.
Applying this construction to language almost identical in the Oregon constitution granting to the governor the power to pardon, reprieve and commute, it is obvious that such power is subject to legislative direction.
The writer firmly believes that as above construed the four sections of our code herein discussed are not in whole or in any part unconstitutional; and that when so treated the result entitles plaintiff to the relief he seeks.
For these reasons, the writer dissents. *Page 499