DisseNtiNG Opinions.
Appleton, C. J.The plaintiff "was sentenced to be punished by confinement to hard labor,” in the state prison for the term of four years, and the warden was ordered that he "there cause him to be punished by confinement to hard labor, pursuant to the sentence aforesaid, and conformably to the special provisions of law respecting the same.” For known and willful violations of *253the rules and regulations of the prison he iras kept in solitary confinement one hundred and forty-one days. He was allowed for good behavior, twenty-seven days, but owing to an error in the computation, he ivas detained in prison but four years and sixty-eight clays • — the time he ivas in solitary confinement for a violation of the rules and regulations being excluded from the full term of his sentence in pursuance of K. S~, c. 140, § 40.
This suit is brought against the warden for his detention of the plaintiff, as required by § 40.
By R. S., c. 140, § 11, the inspectors of the state prison shall " establish such rules and regulations, consistent with the laws of the State, as they deem necessary and expedient for the direction of the officers, agents and servants of the prison in the discharge of their duties . . . shall establish rules for the government instruction, and discipline of the convicts and for their clothing and subsistence.” These rules and regulations are to be laid before the Governor and Council, "who may approve, amend, or modify them, and make and establish such other rules and regulations consistent with the laws of the State, as they see fit; and the Governor shall communicate all rules and regulations, thus approved, to the next legislature,” &c.
In pursuance of the authority thus given, rules and regulations have been established and approved. They are " consistent with the laws of the State. They must be stringent, else there could be no order nor discipline, but they are wise and humane. The prisoner who conforms has no cause of complaint. The prisoner who violates or disobeys them, will and should suffer the penalty of disobedience. These rules and regulations have the force and effect of law.
These rales and regulations to be of any avail must be enforced. How and by whom ? By criminal proceedings before a magistrate ? Must the warden or other officer on any infraction of the rules and regulations of the prison, enter a complaint before a magistrate, and process issue, and the convict under charge of an officer, or officers be brought before the magistrate and a trial had to determine whether the accused has been guilty of disobedience and misconduct? If found guilty, is he to have the right of *254appeal and a trial by jury? Tbe proposition is absurd. The convict is there for purposes of discipline within the authority and limitations conferred by the State.
Within the powers conferred by the statute, and the rules and regulations in conformity therewith, the authority of the warden is discretionary and despotic. Exceeding his authority he is liable to punishment. Within it he is to be protected. By § 13, "he may punish any convict for disobedience, disorderly behaviour, or indolence, as directed by the inspectors or prescribed in the rules and regulations, and shall keep a register of all such punishments, and the cause for which they are inflicted.”
The warden has charge of the prisoners. "He shall inspect and oversee the conduct of the prisoners, and cause all the rules and regulations of the prison to be strictly and promptly enforced.” Within a limited extent his power is and must be absolute. He is to determine if a rule or regulation has been violated. He must determine as a preliminary to their strict and prompt enforcement. There is no appeal from his determination; for he is to inflict the punishment consequent on his determination if a rule or regulation has been violated.
The check upon the warden is found in the record, he is required by § 14, to keep of the conduct of each convict, and which is to be reported by § 15, to the Governor and Council once in three months.
The inspectors by § 10, may "order such corporal punishment as they may deem necessary to enforce obedience, not inconsistent with humanity, and authorized by the rules and regulations established for the government of the prison.” In the rules and regulations furnished us, we find no order for corporal punishment. The warden is therefore left to the authority given by § 2, that "solitary imprisonment may be used as a prison discipline for the government of the convict.” By § 35, the diet of the convict is prescribed when solitary imprisonment "is inflicted for the violation of the rules and regulations of the prison.”
The punishment inflicted was for a violation of the rules and regulations of the prison. It was inflicted by an officer, clothed with authority so to punish. It was in accordance with the statutes *255of the State. It was a lawful punishment, and one appropriate to the offence.
By § 40, no convict is to "be discharged from the state prison until he has remained the full term for which he was sentenced . excluding the time he was in solitary confinement, for any violation of the rules and regulations of the prison, unless he is pardoned or otherwise released by legal authority.” The section assumes that rules and regulations may be made, that solitary confinement may be a punishment for their violation, and that time so spent shall not be deemed part of the fall term of the convict.
The convict was sentenced for larceny. His sentence was subject "to the special provisions of law respecting the same.” It was incident to and part of the sentence that he should be subject to the rules and regulations of the prison, and liable to the penalties for their violation. It is his own act that he violates them. If the rules and regulations, and the statute authorizing them are constitutional, then is the punishment inflicted for their violation legal. If so, then the legislature may well say that time spent for that punishment shall not count on the time for another and different punishment. Solitary confinement for violation of the rules and regulations of the prison, was the punishment for such violation. It was not for or on account of the larceny for which he was sentenced.
The punishment for violation of prison discipline must be within the walls of the prison. It cannot be elsewhere. The convict is not at hard labor. He is suffering punishment for an omission or commission of some act, which was a part of the sentence imposed, that he should do, i. e. obey the prison rules.
It is urged that the sentence must be fixed and definite. True. It is fixed and definite. In the present case it was four years. The time is certain. The time to be deducted for solitary imprisonment as a punishment is certain. In Clerk v. Commonwealth, 21 Grattan, 777, the plaintiff escaped from jail before the expiration of his sentence. After its expiration he was indicted for the escape. It was held that he was to be held in prison for the time he was out when he escaped. It was argued that it *256would be dangerous to give a man ministerial power to prolong the imprisonm ent for the purpose of obtaining compensation for so much of it as may have been avoided by an escape. "But,” says the court, "there would be no difficulty in ascertaining the measure of such compensation. The jailer would know the precise period of the escape, and the recapture ; and would act at his peril. If he erred, the party aggrieved would have a prompt and efficient remedy by habeas corpus, in which the facts on which the legality of the act of the jailer would depend, could be easily and clearly ascertained.” If during his term of punishment a prisoner escapes, he may be retaken after the term, and held to answer for the residue of the time for which he was imprisoned. Haggerty v. The People, 6 Lansing, (N. Y.) 332. So if a prisoner under sentence, be imprisoned for a term expressed only by the length of escapes during the term, the period during which he remains at large does not abridge the term of imprisonment, which remains for him to suffer before fully performing the sentence. Dolan’s Case, 101 Mass. 219. It is obvious that so far as regards definiteness and certainty of sentence, it is equally certain whether the absence from hard labor, which was the sentence, arises from a disobedience of prison rules, and the consequent punishment, or from an escape. In either event the time so lost can be deducted without impairing the definiteness of the sentence.
There must be punishment for the violation of prison rules. Nobody supposes that uttering moral platitudes to convicts, will be very efficacious in its effect on their conduct. Liberty is given under certain conditions to punish informally. Authority to inflict solitary confinement is conferred. It is a part of the necessary discipline of the prison. One so imprisoned is not at hard labor. Pie is not punished for the offence for which he was committed. His confinement is for another offence. The time when not serving in execution of his sentence is time lost, equally, whether the absence from labor arose from an escape or from the punishment consequent on disobedience. In either event it is the consequence of his own acts, and the time spent as a punishment *257should not be allowed to do double service as a punishment at one and the same time for two distinct offences. As was said by MoNCUre, P., in Clark v. Commonwealth, "the two offences are distinct, and each is subject to its appropriate punishment.”
The plaintiff was sentenced for larceny. His sentence was to be executed, subject to the laws of the State and the rules and regulations of the prison. While undergoing his sentence he violated one of the rules and regulations prescribed. The legislature say, that the time of the prisoner when suffering imprisonment as and for a violation of prison discipline — as disciplinary punishment- — shall not be allowed as part of the term of his original commitment. But if the warden had the right to impose the punishment then there can be no valid reason against the legislative prohibition of - its allowance as part of the term of commitment.
It was held in Commonwealth v. Johnson, 42 Penn. 446, that an act allowing deduction from the term of imprisonment on account of good conduct was unconstitutional, as interfering with the judgment of the judiciary. But the case is not applicable. The section under consideration does not enlarge the time of the prisoner’s sentence. It merely gives effect to the rules and regulations established for the promotion of prison discipline. "The danger,” observes Woodward, J., in the case cited, "is not -in the direction of a too vigorous punishment of perverse criminals, but rather to letting of the guilty go unwhipped of justice.”
It may be urged that officers may err, be oppressive, tyrannical and abusive. That may all bo. But if the argument is good, it tends to the destruction of all government, for there is no government and no officers under any government, of whom possible error and oppression may not he predicated. But is there then to be no government, and if a government are there to be no officers, because they may abuse their trusts ? Governments cannot be administered without committing powers in trust and confidence.
The abuse of a trust is no argument against the existence of trusts, but it is a good reason for the punishment of one who abuses a trust. So here the warden is pgnishahle for a violation of law.
*258It is begging the question to say the prisoner is held beyond Ms term. The time spent as a punishment for violation of prison rules is not to be counted as part of the term, • during which, he was to be at hard labor. That excluded from the computation, he is only held for the term of commitment.
It all comes back to this : Has the State a right to prescribe rules and regulations for the government of its state prison, to entrust the warden with power to determine their violation, and to impose, within the statute, the punishment for such violation ? If so, there would seem to be no infringement of the constitution in the enactment that time spent in confinement for disobedience of lawful rules, by way of prison discipline, should not be allowed as part of the term which the prisoner is required to serve.
By c. 282, § 16, of the acts of 1824, it was provided that time spent in solitary confinement for any misconduct or violation of the regulations of the prison, shall not be deemed a part of the time for which he was sentenced. TMs provision has been preserved in all the revisions of our statutes. Its constitutionality has never been denied or questioned. It has been in force and acted upon for more than half a century. When an act has been passed with all the forms of law, the presumptions are in favor of its constitutionality, and no court will declare it void, unless its invalidity is beyond all reasonable doubt. Such is not the case with the statute under discussion.
There have been two revisions of the statutes in which Chief Justice MelleN, and Chief Justice Sherley took part, and the statute, under consideration, received their sanction by its reenactment in the several revisions over which they presided.
To pronounce a law of a State unconstitutional, demands the greatest consideration; and such a law should never be so denominated, if it can upon any other principle be correctly explained. Fletcher v. Peck, 6 Cranch, 87; Butler v. Pennsylvania, 10 How. (U. S.) 402.
SymoNLS, J., concurred.