Earl H. Fehl was, on or about August 7, 1933, found guilty of the crime of burglary not in a dwelling and on that date was sentenced to serve an indeterminate period of imprisonment in the Oregon state penitentiary for a term of not exceeding four years. Thereafter, on August 15, 1933, Fehl began to serve his sentence in the penitentiary and continued serving until May 29, 1936, when he accepted a conditional parole issued by the governor, dated April 16, 1936.
This suit was filed by Fehl as plaintiff on June 15, 1936, against the governor, members of the parole board, the parole officer and Ralph E. Moody, assistant attorney general, as defendants, to have declared null and void the "pretended parole" and to have the court declare that the plaintiff had served his maximum sentence in said penitentiary, less good time deductions, and that he should be unconditionally released therefrom by the warden. This appeal is prosecuted from a decree dismissing the suit, entered after the trial court sustained defendants' general demurrer to the complaint.
Plaintiff's initial pleading alleges in effect that during the course of Fehl's imprisonment his record had been one of good conduct and industry and had shown evidence of general reformation and that the warden of the penitentiary had issued a certificate as to his good behavior, pursuant to § 13-1906, Oregon Code 1930. It is plaintiff's contention that because of his record in the penitentiary, as above stated, he is entitled as a matter of right to a deduction of sixteen months from the maximum sentence of four years imposed upon him by the circuit court, and that he had fully served his sentence on April 15, 1936. In support of this argument *Page 462 he relies principally upon § 13-1906, supra, which is a part of the act of 1905 (chapter 187, Laws 1905) as subsequently amended.
Before discussing that section of the code, it is well to review briefly the historical background of legislation affecting the subject before us. The title of chapter 187, supra, as far as material here, is as follows: "An act to provide for sentencing certain persons convicted of felonies to imprisonment for indeterminate periods, and to provide for the parole of such persons by the governor, and for the keeping of records of such cases, and for the revocation of such paroles."
It is by this act (chapter 187, Laws 1905, supra) provided that when any one is convicted of a felony for which the maximum penalty does not exceed twenty years' imprisonment, the court may, in its discretion, sentence such person to imprisonment in the penitentiary without limitation of time, and any person so convicted and sentenced may be paroled for good conduct, by the governor, upon such terms and conditions as may to him seem wise, after such person shall have served the minimum term of imprisonment provided by law for his offense: § 1, chapter 187,supra. Before the governor is permitted to grant a parole under said act, he is required to procure from the superintendent of the penitentiary a report of the behavior and conduct of the prisoner, and otherwise to satisfy himself that there is a reasonable probability that the prisoner will, if paroled, be and remain a law-abiding citizen: § 2, chapter 187.
Sections 3 and 4 of the act are substantially the same as §§ 13-1907 and 13-1908, respectively, Oregon Code 1930, and will hereinafter be considered in detail. *Page 463
The 1905 act was amended by chapter 127, Laws 1911, the title of which amending act was as follows:
"To extend and define the indeterminate sentence; to create a parole board and to provide its powers and duties; to repeal Sections 1723 and 1731 of Lord's Oregon Laws, and to amend Sections 1592, 1724, 1725, 1726, 1727, 1728, 1729, and 1730 of Lord's Oregon Laws, all of the foregoing named sections being various parts and sections of Chapter 187, General Laws of Oregon for 1905."
Section 1 of the 1905 act is by the 1911 act amended so that it is made mandatory upon the court, whenever any person is convicted of a crime for which the maximum punishment is a definite term of years in the penitentiary, to sentence such person to imprisonment in the penitentiary without limitation of time, and to state in the judgment of sentence the minimum and maximum penalties provided by law for such crime. Such sentence is designated as "indeterminate": § 7, chapter 172, supra.
Section 8 of the 1911 act provides that the governor may, upon his own motion or upon recommendation of the parole board, at any time after a prisoner has served the minimum term of imprisonment prescribed by law, parole such prisoner upon such terms and conditions as may seem to the governor just or expedient. It is further provided by the 1911 enactment that in no event shall a person be paroled under that act unless such person has served the minimum penitentiary sentence prescribed by law for the crime of which he or she was convicted, and that no person shall serve a longer term of imprisonment than the maximum sentence prescribed by law.
In 1917, by chapter 302, Laws 1917, the legislature further amended certain provisions of the 1905 act as *Page 464 amended in 1911. By section 7 of the 1917 act it is provided that except for the crimes of murder and treason the minimum period of imprisonment in the penitentiary theretofore provided by law for the punishment of felonies is abolished, and that except for the crimes of murder and treason the court shall impose a sentence of "imprisonment in the penitentiary without limitation of time, stating in such judgment and sentence, both the minimum penitentiary penalty, which shall be fixed by said court and shall not exceed one-half the maximum term of imprisonment established by law, and also the maximum penitentiary penalty for such crime, which shall not exceed the maximum term of imprisonment provided by law."
Section 8 of chapter 302, supra, provides for the parole of a prisoner upon the recommendation of the parole board, at any time after the prisoner has served the minimum term in the penitentiary fixed by the judgment of the court. Section 16 of this act is almost identical with § 16 of the 1911 enactment, except that the phrase "minimum penitentiary sentence prescribed by law" in the 1911 act is changed to read, "the minimum penitentiary sentence fixed and ordered by the court".
The legislature in 1919 further amended the indeterminate sentence law so as to provide that the judgment and sentence should merely state the maximum penitentiary penalty imposed by the court, eliminating the provision as to minimum sentence contained in the then-existing law and providing that the maximum term imposed by the court should not exceed the maximum term of imprisonment provided by law: § 1, chapter 150, Laws 1919. In the 1919 amendment we see introduced for the first time reference to allowance for good behavior, in a provision for computation of time similar *Page 465 to that contained in § 13-1906, supra, except that the 1919 amendment provides that the deduction be computed for each month of one-fourth the maximum sentence, instead of each month ofone-half the maximum sentence.
At the same session, the legislature enacted chapter 149, Laws 1919, now codified as § 13-1905, Oregon Code 1930, and hereinafter to be considered in detail.
Further amendment of the 1905 act as subsequently amended was effected by the legislature at the special session of 1920 (chapter 8, Laws Special Session 1920), by removing from the operation of the provision for indeterminate sentence, in addition to murder and treason, crimes of homicide in any degree, rape where violence is an element of the crime, robbery of any kind, burglary when armed with a dangerous weapon, and assault with intent to kill while being armed with a dangerous weapon. The 1920 amendment further provided that as to crimes so removed from the operation of the indeterminate sentence law, except where the penalty by law is life imprisonment, the court should fix a definite term to be served in the penitentiary, not exceeding the maximum term provided by law for such offense. After the foregoing specifications there is then added for the first time this clause: "Persons sentenced to serve such definite terms shall be entitled to the good-time deductions for good behavior and general reformation provided for in this act" [italics supplied].
Section 2 of chapter 8, supra, is similar to § 13-1906,supra, with the exception that its provision as to record of good conduct is based upon "five days for each month of said one-half of the maximum sentence" and contains no differentiation between instances in which the maximum sentence is one year or less and those *Page 466 in which it is for a period of more than a year, as provided in § 13-1906, supra.
No further amendments, so far as the question now before us is concerned, were made to the indeterminate sentence and parole law, with the exception of that made in 1921 to what is now § 13-1906, supra, which has already been noted.
Let us now direct attention to a more detailed consideration of the sections of the code applicable to the question under discussion, all of which sections are, with the exception of § 13-1905, supra, amendments of sections which were originally parts of chapter 187, Laws 1905. The interpretation of § 13-1906 is of utmost importance. The second paragraph of that section provides that the governor may, upon his own motion or upon the recommendation of the parole board, parole any person under the age of 20 years at the time of conviction and sentence, at any time after he has been committed to the penitentiary, and therefore it is not important in this discussion. That section, with the said paragraph omitted, reads as follows:
"Any person sentenced to serve an indeterminate sentence in the penitentiary may be paroled by the governor upon his own motion, or upon the recommendation of the parole board, in accordance with the provisions of this section set forth, to wit:
* * * * * "Any person over the age of twenty years at the time of conviction and sentence who has not been previously convicted of a crime may be paroled by the governor upon his own motion, or upon recommendation of the parole board, at any time after such person has served one-half of the maximum term for which such person has been sentenced; provided, however, that a record of good conduct, industry and evidence of general reformation certified to by the warden of *Page 467 the penitentiary shall entitle such person to a deduction of five days for each month of said one-half of the maximum sentence, when said one-half of maximum sentence is one year or less, and a deduction of ten days for each month of such period beyond one year. The effect of this `good time' deduction is intended to be as follows: When the one-half period of the maximum sentence is six months, a parole may be granted when five months have been served; when the one-half period is twelve months a parole may be granted when ten months have been served; when the one-half period is eighteen months, a parole may be granted when twelve months have been served; when the one-half period is two years a parole may be granted when sixteen months have been served, and so on proportionately for any term."
It will be observed that the first paragraph of this section provides that the governor may parole any person sentenced for an indeterminate period, "in accordance with the provisions of this section set forth", with conditions mentioned upon which the parole may be granted. The conditions upon which such parole may be granted are set forth in the last paragraph above quoted, to the effect that the governor may, upon his own motion, or upon the recommendation of the parole board, parole a prisoner at any time after he "has served one-half of the maximum term for which such person has been sentenced" [italics supplied]. Following that is the statement relied upon by Fehl, around which this controversy is centered, reading thus: "provided, however, that 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 of five days for each monthof said one-half of the maximum sentence, when said one-half of maximum sentence is one *Page 468 year or less, and a deduction of 10 days for each month of such period beyond one year" [italics supplied].
Fehl attempts to lift the above proviso bodily from its context and construe it without reference to what precedes or follows it, and in order to arrive at the computation of a credit of 16 months on a term not exceeding four years he computes his deduction at the rate of 10 days for each month of the maximum sentence, thereby arriving at the conclusion that he is entitled to 480 days' deduction from a maximum sentence of four years. He thus would ignore the plain language of the statute that the deduction from a maximum term of over one year shall be at the rate of 10 days for each month of said one-half of the maximum sentence. We can not, however, by any rule of statutory construction which has been recognized by the courts, interpret this proviso without considering what precedes it and the explanation of its meaning which follows.
The legislature in the enactment of this section was attempting to provide when and under what conditions paroles might be granted by the governor. After specifying that the governor might, upon his own motion or the recommendation of the parole board, grant a parole to any person sentenced for an indeterminate period, after such person had served one-half of the maximum term for which he was sentenced, the proviso is attached to the effect that for good behavior, record of which is to be certified by the warden of the penitentiary, the governor might grant a parole prior to the prisoner's serving one-half the maximum sentence. That this is what was intended by the legislature is apparent from what immediately follows the proviso, to wit: *Page 469
"The effect of this `good time' deduction is intended to be as follows: When the one-half period of the maximum sentence is six months, a parole may be granted when five months have been served; when the one-half period is twelve months, a parole may be granted when ten months have been served; when the one-halfperiod is eighteen months, a parole may be granted when twelve months have been served; when the one-half period is two years, a parole may be granted when sixteen months have been served, and so on proportionately for any term" [italics supplied].
In Olson v. Heisen, 90 Or. 176, 178 (175 P. 859), with reference to the different parts of a legislative act, this court said:
"When we speak of the purview of a statute we mean the enacting part or body of the act as distinguished from other parts of it, such as the preamble, the title, saving clauses and provisos:" citing authorities.
"The appropriate function of a proviso is to restrain or modify the purview of the statute in which the proviso is found:" citing authorities.
This statement is found in 2 Lewis' Sutherland on Statutory Construction, (2d Ed.) 670, § 351:
"Provisos and exceptions are similar; intended to restrain the enacting clause; to except something which would otherwise be within it, or in some manner to modify it. A proviso is something engrafted upon a preceding enactment, and is legitimately used for the purpose of taking special cases out of a general class, or to guard against misinterpretation. * * * A proviso is so identified with the text of a statute which it qualifies that if such enacting part is repealed by a subsequent statute repugnant to it, the proviso will fall also."
The proviso in the section of the code under consideration merely modifies what precedes it and does not inject into it anything foreign to the purview or enacting clause of the section. If the enacting clause, providing *Page 470 the conditions under which paroles may be granted, were to be repealed by a subsequent act repugnant to it, the proviso would also be repealed.
Section 13-1909, Oregon Code 1930, provides that "the superintendent of the penitentiary wherein said prisoner is confined shall, at least every month, make full report to the parole board concerning all prisoners who are eligible or are about to become eligible to parole". Section 13-1907, supra, is as follows:
"In granting any parole to any person under indeterminate sentence, the governor shall not hear or entertain any petition or any argument of attorneys for the parole of such prisoner, but he shall consider the prisoner's general demeanor and record for good conduct at the penitentiary, and such findings and recommendations in the case as may be made by the parole board. This shall not, however, preclude the governor from obtaining other information in regard to said prisoner and in regard to the circumstances likely to surround him if paroled, or from considering any recommendation in regard thereto, made by the court in which said prisoner was convicted."
Section 13-1908, Oregon Code 1930, reads thus:
"A parole of any prisoner shall be certified by the governor to the superintendent of the penitentiary wherein the prisoner was confined, and said prisoner shall thereupon be discharged on parole, and the governor may, in his discretion, upon the final discharge of said prisoner, restore him to all the rights and privileges of citizenship. Said superintendent shall keep a record of all such paroles and discharges."
The three last quoted sections of the code provide the procedure to be followed in regard to reports to be made concerning prisoners confined in the penitentiary, what is to be done by the governor in considering applications for parole, and the certification to be made by him when the prisoner has been paroled. By § 13-1907, *Page 471 supra, the governor is not limited to the findings and recommendations of the parole board, but is given authority to obtain other information in regard to the prisoner and "in regard to the circumstances likely to surround him if paroled".
When the proviso regarding "good time" was added to what is now § 13-1906, supra, there was in the federal statutes what is now 18 U.S.C.A., § 710, which expressly provides that a prisoner "whose record of conduct shows that he has faithfully observed all the rules and has not been subjected to punishment, shall be entitled to a deduction from the term of his sentence", to be estimated as thereinafter provided.
Several of the states, at the time of the amendment of our law in 1919 providing for deduction for good time, had statutes similar to the federal law. Such statutes either provided for a deduction from, or credit on, the time of sentence to be served. Many decisions at that time had been reported, construing said statutes: Chattahoochee Brick Company v. Goings, 135 Ga. 529 (69 S.E. 865; Ann. Cas. 1912A, 263); Ex parte Darling, 16 Nev. 98 (40 Am. Rep. 495); Stephens v. Conley, 48 Mont. 352 (138 P. 189; Ann. Cas. 1915D, 958); In re Blocker, 69 Colo. 259 (193 P. 546); In re Kness, 58 Kans. 705 (50 P. 939). A number of other cases also could be cited, construing statutes providing for reduction in sentence for good behavior. In all the decisions on this subject which have come to our attention wherein the courts have held that the prisoner was entitled as a matter of right to a deduction from the term of sentence for good behavior, the controlling statutes have expressly provided that there should be a deduction of certain time from the sentence.
Had the Oregon legislature at the time of the amendment in 1919 relating to good conduct intended to give *Page 472 to prisoners confined in the penitentiary a deduction from sentence because of good conduct, it seems reasonable to assume that it would have used the language employed by other states to effect that purpose, and would not have incorporated the measure in the proviso of a parole statute, the enabling clause of which defines the terms and conditions under which a parole may be granted.
In support of Fehl's contention that our statute grants to him a deduction from his maximum term for good conduct, In reKness, supra, is cited and quoted extensively. A part of the statute there involved, as quoted from the decision, is as follows: "Every convict whose name does not appear upon such record of reports for violation of the prison rules shall beentitled to a deduction from his sentence of three days per month for the first year or fraction of a year * * *" [italics supplied].
Section 13-1905, supra, has been referred to and quoted as showing an intention on the part of the legislature to grant to prisoners under determinate and indeterminate sentences deduction from their time of sentence, for good conduct. This act was passed in 1919 (chapter 149, Laws 1919), with entire title reading thus: "Extending the power of the governor to grant paroles in certain cases." The act as originally passed and as codified in § 13-1905, reads as follows:
"All persons heretofore convicted of felonies and sentenced to the penitentiary for a definite term of years may be allowed deductions from their term of service in said penitentiary 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 on his own motion or upon recommendation of the parole board, whenever the certificate of the warden of the penitentiary shall show that the *Page 473 prison records of such persons entitle them to be considered for parole."
The original act referred to persons theretofore convicted, and in 1933 (chapter 44, Oregon Laws 1933), it was amended by adding after the word "heretofore" the words "or hereafter", so as to apply to sentences imposed in the future. It is apparent from the title of the act that the legislature did not intend to grant to those sentenced for a definite term in the penitentiary the right to a deduction from time to be served, for good behavior. The title of the act does not cover that subject, and the presumption is that the act is constitutional and the enacting clause must, if possible, be so interpreted as to come within the title of the act.
When an act is susceptible of two interpretations, one of which would render the act constitutional, and the other unconstitutional, that interpretation which would give effect to the act as constitutional must be adopted. Were said § 13-1905 to be construed to reduce the term of sentence of those prisoners committed to the penitentiary for a determinate period, it would be necessary to hold the entire act unconstitutional, since that subject is not expressed in the title of the act, nor can it be inferred therefrom, and the entire act is so constructed that it can not be dismembered and held constitutional in part and unconstitutional in part.
The last-mentioned statute, § 13-1905, supra, has been brought into this discussion as lending support to the theory that the legislature intended by the proviso included in § 13-1906, supra, to grant to a prisoner confined in the penitentiary, as a matter of right, for good behavior, a certain deduction of time from the maximum sentence imposed upon him. In other words, it has been suggested as a legislative construction of *Page 474 what was meant by the language used in the proviso of § 13-1906,supra. If § 13-1905, supra, aids us in any way at all, it is by demonstrating that the proviso mentioned is limited to paroles. Even the title of § 13-1905 restricts the act itself to paroles and does not cover the release of prisoners prior to termination of sentence except by parole. There is nothing contained in the enacting clause of the statute now codified as § 13-1905 which purports to grant to the prisoner as a matter of right a reduction of time to be served, for good behavior.
The title of the original parole law enacted in 1905 and the subsequent title of the amendment to that act in 1911, both of which have been fully discussed, are not sufficiently broad or comprehensive to cover the object asserted by defendant to have been intended, i.e., that the proviso of § 13-1906, supra, should effect automatically a shortening of the term of sentence imposed by the court, based upon good conduct of the prisoner. One reading that title would expect the act to mention matters concerning conditional release of prisoners by the governor, and would not have in mind the final termination of prison sentences by any other means than parole. It can not be said that because the title of the act refers to a release of prisoners, although specified as parole, every manner of release from prison was contemplated by the legislature. In other words, courts can not ignore, when interpreting the statute, the limitation placed thereon by the legislature through the words used by it in the title of the act.
In State v. Perry, 77 Or. 453 (151 P. 655), involving chapter 151, Laws 1913, attempt was made to enlarge the meaning of the act beyond the scope of the title, which read as follows: "An act to prevent the barter, sale, trading, giving or furnishing of intoxicating *Page 475 liquors * * * to any convict or prisoner in the Oregon state penitentiary. * * *" The enacting clause imposed a penalty upon the giving, selling, furnishing or aiding in selling, giving or furnishing of intoxicating liquor to any person sentenced to serve a term in the state penitentiary. The defendant was indicted for and convicted of furnishing intoxicating liquor to a convict sentenced to serve a term in the state penitentiary, who had not yet been received at that institution. The contention of the attorney for the state was expressed by the court in the opinion therein, and commented upon, as follows:
"Counsel for the state earnestly contend that this act reaches every convict sentenced to confinement in the penitentiary, whether in or out of that institution, and that the general subject mentioned in the title of furnishing liquor to a convict is sufficient to uphold the act; but we can not agree with this. The title contains the words, `to prevent the furnishing of liquor to any convict or prisoner in the penitentiary,' and nowhere in the title is this subject enlarged, confining the legislation to convicts in the prison. No one on reading this title would dream that it was intended to or did go beyond those so confined."
The court in that case in discussing the purpose of § 20, article IV, of the state constitution, which provides that every act shall embrace but one subject and matters properly connected therewith, which subject shall be expressed in the title, referred to and quoted from two Oregon cases, as follows:
"Mr. Justice Wolverton, in Clemmensen v. Peterson, 35 Or. 47 (56 P. 1015), says: This provision `was designed by the framers of the constitution that in every case the proposed measure should stand upon its own merits, and that the legislature should be fairly satisfied of its purpose by an inspection of the title, *Page 476 when required to pass upon it, so as not to be surprised or misled by the subject which the title purported to express.'
"Spaulding Logging Co. v. Independence Imp. Co., 42 Or. 394 (71 P. 132), holds: `The intention of the constitution plainly is that the subject of the proposed legislation shall be stated in the title, so that the members of the legislature and the public may thereby be informed of the subject on which the former are invited to vote and legislate, without the necessity of studying the entire bill; and the courts can not reject as surplusage any material part of the title in order to make it conform to some other or different legislation.'"
It may be said that the legislature in enacting laws affecting prisoners within the penitentiary must necessarily have in mind those who have already been convicted and committed to the penitentiary but have not yet been received there, just as well as that the legislature in considering indeterminate sentences must also have in mind determinate sentences, or in legislating as to paroles must intend to include final discharge. But in any case the mere mention of one subject in the title of the act would not include another as necessarily inferred. In the language of the court in State v. Perry, supra, "No one on reading this title [here, one relating to paroles] would dream that it was intended to or did go beyond" prisoners under consideration for parole purposes.
Section 20 of article IV of the Oregon constitution is identical with § 19, article IV, constitution of Indiana, and it is generally believed that our article IV was adopted from the Indiana organic act. In construing § 19, article IV, of the latter constitution, the Indiana supreme court in Crabbs v.State, 193 Ind. 248 (139 N.E. 180), said: "Under this clause of the constitution the title becomes an indispensable part of every act." *Page 477 The opinion then quoted from Sutherland on Statutory Construction in part as follows: "The title can not be enlarged by construction when too narrow to cover all the provisions in the enacting part, nor can the purview be contracted by construction to fit the title." Continuing, the court quoted with approval from Cooley on Constitutional Limitation, (6th Ed.) 178, as follows:
"As the legislature may make the title to an act as restrictive as they please, it is obvious that they may sometimes so frame it as to preclude many matters being included in the act which might with entire propriety have been embraced in one enactment with the matters indicated by the title, but which must now be excluded because the title has been made unnecessarily restrictive. The courts can not enlarge the scope of the title. They are vested with no dispensing power. The constitution has made the title the conclusive index to the legislative intent as to what shall have operation. It is no answer to say that the title might have been made more comprehensive, if in fact the legislature have not seen fit to make it so."
If the question were properly before us of including in the same statute provisions both for granting paroles and for reducing sentences for good behavior, we should be constrained to hold that such a statute would not be violative of article IV, § 20, supra, as containing more than one subject and matters therewith properly connected. The entire title of the Oregon code of criminal procedure adopted in 1864 was: "An act to provide a code of criminal procedure and define crimes and their punishment." Surely the methods of release from the penitentiary by parole and by other termination of sentence are as closely related as are the matters contained in the 1864 code of criminal procedure. However, that question is not here for determination, for the *Page 478 reason that the title under consideration is restricted to paroles and we are not at liberty to enlarge its scope.
The plaintiff asserts that the contention now advanced by him,i.e., that he had with good time allowance fully served the maximum sentence imposed upon him, on April 15, 1936, two years and eight months after he began serving, is strengthened by the construction placed upon the statute in question by the prison officials. In this connection he alleges:
"That on August 15, 1933, and for more than 14 years prior thereto, there was in full force and effect at said penitentiary certain rules and regulations printed and published in a booklet under the seal of the state of Oregon entitled `General Rules for the Inmates of the Oregon State Penitentiary. J.W. Lewis, Warden, E.C. Halley, Deputy Warden,' and on August 15, 1933, plaintiff was given a booklet of said rules and regulations by the warden of said penitentiary, which booklet contained the following statement, to-wit:
"`Length of sentences with credits showing actual time to serve in connection with various sentences from one year to ten years, after allowing good time, which is allowed for good behavior.
*Page 479Minimum Maximum Sentence With With Credits Credits
1 year 5 mos. 10 mos. 2 years 10 mos. 16 mos. 3 years 1 year 2 years 4 years 1 yr. 4mo. 2 yrs. 8 mo. 5 years 1 yr. 8mo. 3 yrs. 4 mo. 6 years 2 years 4 years 7 years 2 yrs. 4 mo. 4 yrs. 8. mo. 8 years 2 yrs. 8 mo. 5 yrs. 4 mo. 9 years 3 years 6 years 10 years 3 yrs. 4 mo. 6 yrs. 8 mo.
The above quoted excerpt would indicate that the construction contended for by plaintiff was first placed upon the act by warden Lewis and his deputy, Halley. Mr. J.W. Lewis first became warden of the penitentiary in 1922, at which time E.C. Halley became deputy warden. Mr. Lewis served until January, 1923, and his deputy until February of the same year. Mr. Lewis and Mr. Halley again became warden and deputy warden, respectively, in April, 1927. Of these facts we take judicial knowledge: Butts v.Purdy, 63 Or. 150 (125 P. 313; 127 P. 25); State v. Lee Chue,130 Or. 99 (279 P. 285). Therefore, any construction which these officials may have placed upon the law relating to paroles and final discharge of prisoners could not have been effective until at least May, 1922, rather than "more than fourteen years prior to August 15, 1933". Moreover, any construction which was given the law affecting final discharge, "more than fourteen years prior to August 15, 1933," would have antedated the amendments of 1920 and 1921 and would have had effect under a statute essentially different as to computation of time for good behavior from the present law.
It is further alleged that the procedure referred to in the paragraph of the complaint above quoted was continued until April 15, 1936, at which time, it is asserted, plaintiff was entitled to release from the penitentiary. Yet it is alleged that at the time of the filing of the complaint herein, to wit, June 15, 1936, "over a hundred prisoners are held within said penitentiary who under the rules and law hereinbefore alleged, and under the interpretation thereof and practice thereunder, for over fourteen (14) years, would have been released by the warden." It is apparent from the matters just alluded to that the construction placed upon the act under consideration could not have been of *Page 480 more than fourteen years' duration at the time when plaintiff was received at the prison. We are therefore left without definite data as to when such construction of the act was first given effect, if at all.
Reverting now to the minimum and maximum sentences set forth in the allegations of the complaint above quoted, we notice that opposite the sentence of four years is a minimum, with credit, of one year and four months, and the maximum, with credit, is designated as two years and eight months. There can be no contention that the warden and his deputy have a right, under any statute that has been called to our attention, without the action of the chief executive, to discharge a prisoner serving a determinate or indeterminate sentence of four years, when the prisoner has served only one year and four months. Likewise, there is no provision in the law permitting the warden and his deputy, or either of them, to release a prisoner under a four years' sentence, after he has served but two years and eight months thereof, regardless of how exemplary his conduct has been. Even if the full effect contended for by plaintiff could be given to the proviso § 13-1906, supra, we could not construe the language which allows ten days' deduction for each month ofone-half the maximum sentence to mean ten days for each month of both halves of such sentence.
It is undoubtedly true that when an act is susceptible of two interpretations both of which would be constitutional, the court in construing it will give some weight to the interpretation which has been followed for a long period of time by the department charged with administration of the act. It is axiomatic, however, that the court will not give weight to that interpretation of an act by a department which would render it *Page 481 unconstitutional, if the act is equally susceptible of an interpretation which would render it constitutional.
In State Board of Administration v. Jones, 212 Ala. 380 (102 So. 626), it was contended by the prisoner that he was entitled as of right to a certain reduction of sentence based upon good conduct. He predicated the right upon the wording of the statute and the departmental construction placed upon the act. In holding adversely to the prisoner, the court said:
"Moreover, departmental construction of statutes, however long continued, is not controlling, but merely an aid to courts in cases otherwise doubtful. `Contemporary construction, and official usage [for 70 years there] are among the legitimate aids in the interpretation of statutes.' Wetmore v. State, 55 Ala. 198; and, `where the meaning of such laws is doubtful, official and popular interpretation, as exemplified in practice for a number of years, may be given some weight as a factor in their judicial construction.' Shepherd v. Sartain, 185 Ala. 439, 456,64 So. 57, 64. So where the language of the statute is reasonably plain in its meaning, such interpretation and practice will not be accorded the effect of an amendment or repeal, and the legislative intent will be nevertheless declared and enforced as expressed."
The conclusion is inevitable, from what has been said, that § 13-1906 in its entirety refers exclusively to the issuance of paroles by the governor and does not have any bearing upon the shortening of the term of a prisoner's sentence otherwise than by parole. The statute does not provide for the early release of a prisoner except through action of the governor in granting a parole.
The legislative history of the indeterminate sentence law indicates an intention on the part of the legislature to aid and assist the prisoner who is not a *Page 482 hardened and habitual criminal, to make him subject to parole at the earliest possible time and to assist him while under parole. It must be assumed that the prison officials, the parole board and the chief executive of the state have not acted and will not act arbitrarily or capriciously in such matters, and that they will carry out the spirit of our parole law.
In the instant case the governor has issued a conditional parole to Fehl, which has by him been accepted. Under the law as here interpreted Fehl is not entitled to his freedom as a matter of right until he has served the sentence of not exceeding four years imposed upon him by the trial court.
There is not involved in this appeal the question of whether the parole statute is in contravention of § 14, article V of the Oregon constitution, which confers upon the governor exclusive authority to grant reprieves, commutations and pardons.
For the reasons hereinabove expressed, the decree appealed from should be affirmed.