If the good conduct statute be construed as mandatory, thereby curtailing or controlling the discretion of the Board of Pardons, then I would concur with Mr. Justice MOFFAT that such legislation is an unauthorized intrusion by the Legislature into a field wherein the Board of Pardons has exclusive power under the Constitution. However, I am impressed with the view that such was not the legislative intent or purpose, but that the statute was intended as directory only and not mandatory. I think this becomes evident when we construe the present statutes in the light of their history and progressive development. At the time of statehood, the good conduct statute of the Territory (Comp. *Page 335 Laws Utah 1888, § 5268) provided that a prisoner not guilty of violation of prison discipline "shall be entitled to a reduction of the period of sentence, as hereinafter provided." When the case of In re Clawson, 5 Utah 358, 15 P. 328, was decided, the above statute was in force. That decision did not directly pass on it, but held merely that the statute in force at the time of sentence was the one which determined the reduction in time to which the petitioner was entitled. At the first session of the State Legislature after statehood, an act was passed placing the power of parole of prisoners in the Board of Corrections. This court declared the law unconstitutional and held that parole was in effect a commutation and that the Constitution had placed the exclusive right of commuting punishments and granting pardons in the Board of Pardons. State v. State Board of Corrections,16 Utah 478, 52 P. 1090. After that decision was announced, the Legislature made a significant change in the good conduct statute by dropping the language above quoted and, in lieu thereof, enacting the following; "The board of pardons is hereby authorized to extend to each convict" a reduction of "the period of sentence, as hereinafter provided." Laws Utah 1899, chap. 39, p. 56, § 1. The balance of the section was substantially the same. In the same chapter provisions for parole were re-enacted with substitution of the Board of Pardons for the Board of Corrections. In the 1933 revision, section 67-0-10, the language above quoted was slightly changed in phraseology, though not in meaning, to read, "The board of pardons may extend to each convict sentenced," etc. The change of language in 1899 following the holding by this court that the power of commutation was exclusively a matter for the Board of Pardons argues the intent of the Legislature to make the statute conform to the court's construction of the Constitution and to leave the matter of reduction of sentences for good behavior exclusively to the Board of Pardons. The entire subject matter was put by the Legislature in a separate chapter under the heading of "State Board of Pardons," and the good behavior statute *Page 336 is now contained in the 1933 revision under title 67, "Pardons, Board of."
In 1919 the indeterminate sentence statute was enacted which grafted a new innovation on the old system. In doing so, there was minimum of verbal changes. It presented a new principle in penology. Under the terms of this statute, the trial court after conviction, if prison sentence is pronounced, must sentence the convict for an indeterminate term of not less than the minimum nor more than the maximum of incarceration provided by law for the particular offense The law further provides that the sentence of a prisoner "shall continue in full force and effect until the maximum period has been reached, unless sooner terminated or commuted by the Board of Pardons, as hereinafter provided." Section 9062, Comp. Laws Utah 1917, as amended by chapter 132 p. 353, Laws of Utah 1919, (now section 105-36-20, Rev. Stat. 1933). In the same chapter it is further provided that any person sentenced may apply to the board to "have the sentence terminated or commuted" and "the board [of pardons] may obtain information from any and all available sources respecting such matters, and if in its judgment the applicant has served a sufficient length of time for the offense for which he was convicted, the board [of pardons] may terminate or commute the sentence and order the applicant discharged from further imprisonment under such sentence. In no event shall a prisoner be retained in prison beyond the maximum term fixed by law for the particular crime for which he stands convicted." Rev. St. 1933, 67-0-5. The intent of this act would seem to be to vest entire power in the Board of Pardons, even if it were not already vested in that board by the Constitution, to fix the bounds of a prisoner's incarceration within the maximum fixed by law, the only limitation being that he may not be held beyond that maximum period of time.
The old system was a rigid one. The trial judge fixed a definite prison term which the prisoner might reduce, by observance of prison discipline, by a definite and fixed *Page 337 time each month. This definite term was the price the prisoner paid for his crime and, when the price was paid, he and society were quits and he would go his way without restraint. Under the new system vengeance and retributive punishment are no longer chief ends to be served, but instead the principal aim is the safety of society by incarceration and reformation of the offender with a view to his restoration to society as a law-abiding and self-supporting member thereof. The philosophy behind the indeterminate sentence is that, the Legislature having determined what acts shall be condemned as criminal, the trial court in a given case will try the defendant to determine whether the criminal act was committed by him, and, if so, to condemn the act by the judgment of imprisonment. The offender is then turned over to the prison authorities for incarceration, and the pardon board will determine, within the limits of its powers, what treatment is best suited to the convict as an individual. In other words, it will fit the punishment or treatment to the prisoner rather than fitting punishment to the crime. The pardon board has better facilities and better opportunity than the trial court to learn about the offender, and as to his character, experience, training, the past criminal record, if any, former associations, family connections, condition of his health, etc. The board will learn about the man from the prison authorities who daily observe his conduct in prison, at work, in school, and his association with other convicts, as to how he behaves, what he reads, with what persons he associates, etc. The case worker will obtain information of his prior life, his family, friends, and previous conduct. Any previous prison record is of course obtainable from official sources. It must be admitted this system is still in its experimental stage and that not all is done that can be done to make its operation successful. One thing is certain that the old methods were not greatly successful, either in protecting society or in reforming persons convicted of crime. The new methods do give promise of being an improvement over the old one. The parole is a vital *Page 338 and indispensable part of this system. When all information obtainable is before the Board of Pardons, it then is in a position, to determine when, if at all, parole should be granted, and, after parole or without it, when the sentence should be terminated, if at all, prior to the expiration of the maximum term fixed by statute. The letter as well as the theory of the indeterminate sentence act is thus inconsistent with the good behavior statute if it be construed as mandatory. The fixed and rigid characteristics of the good conduct statute fit perfectly into the former system of sentences for definite terms pronounced by the trial court, but are wholly inconsistent with the very flexible system provided for by the indeterminate sentence law.
The precise question before us has not heretofore been decided by this court. However, certain language in decisions involving cognate matters show the view held by members of this court with respect to the validity or effect of the good conduct statute after the passage of the indeterminate sentence law. Such statements, while not controlling, certainly are persuasive. InConnors v. Pratt, 38 Utah 258, 112 P. 399, 400, the court referred to the good conduct statute and said:
"It seems that, while the statute fixes the maximum amount of time that a sentence may be reduced for good conduct, the board nevertheless must determine whether in a particular case such or some other deduction of time less than the maximum shall be allowed or not."
In the same case the court recognized the necessity for an exercise of discretion by the Board of Pardons by saying the petitioner's sentence would be terminated "if the board of pardons reduced that sentence for the maximum period of time fixed by the statute."
Again in Mutart v. Pratt, 51 Utah 246, 170 P. 67, 69, involving the validity of the indeterminate sentence act, the court said:
"Neither is the sentence to be imposed under this act left in doubt as to its duration. It is, in effect, a sentence for the maximum period fixed by law subject to the rights to have that sentence reduced or *Page 339 terminated at an earlier date under rules established by the board of pardons, a body created by the Constitution for that very purpose."
In other jurisdictions it has been held that the good conduct statute is inconsistent with the subsequently enacted indeterminate sentence law, which supersedes its inflexible conditions and places the authority in the Board of Pardons to exercise a plenary supervision with respect to the reduction of sentences. McCoy v. Reid, 172 Ind. 182, 87 N.E. 1086; In reLee, 177 Cal. 690, 171 P. 958; In re Daniels, 106 Cal. App. 43,288 P. 1109; Pareses v. California State Board of PrisonDirectors, 208 Cal. 353, 281 P. 394.
I am of the opinion, therefore, that the statute in question is not an inherent part of the sentence but is a directory and not a mandatory provision and does not control the discretion of the Board of Pardons; that the petitioners are not entitled to be discharged until the end of the maximum period of their sentence as fixed by the statute, unless such period is terminated or commuted prior thereto by action of the Board of Pardons.