concurring in part, dissenting in part.
I concur that there is sufficient evidence to support the finding that the prisoner engaged in the wilful destruction of tires as charged.
For the reasons hereinafter stated,- I do not agree that the superintendent or the disciplinary committee had authority on the basis of this record to require that the prisoner make restitution.
Here the findings of fact are silent concerning the value, if any, of the tires damaged or destroyed. Examination of the transcript discloses no evidence relating to that matter. Neither the disciplinary committee nor the superintendent in their respective orders set forth any amount the prisoner is required to pay, nor, as stated, is there any evidence to support it if the order had so stated, nor is any procedure established for its determination.
Thus in my view it is unnecessary to decide whether, in a disciplinary proceeding pursuant to ORS 421.180 to 421.195, authority is granted to the superintendent to require restitution under ORS 179.360, or as a sanction under either Rule V(l)① or Rule VI(3)② *539of Procedures for Disciplinary Action within Correctional Institutions, or as “remedial treatment” under *540Rule 11(3).③ I would accordingly reserve decision on the second point decided by the majority until the question is squarely presented.
Since, however, the court has here elected to decide the question, I wish to express my dissent therefrom for the reasons hereinafter stated.
The court and the concurring opinion conclude the superintendent has authority under ORS 179.360 to order a prisoner to make restitution, although conceding there is no such express authorization therein.
It has been urged that the general power of the superintendent is analogous to the authority of a circuit judge in a criminal case to require restitution as a condition of probation. This argument in my view is fallacious for at least two reasons. ORS 137.540(10) provides expressly that in imposing probation the judge may order that the defendant:
“Make reparation or restitution to the aggrieved party for the damage or loss caused by offense, in an amount to be determined by the court.”
Thus not only is the sentencing judge given express authority to require restitution but the statute directs that the court determine the amount.
Furthermore, both the amount and the imposition of the condition are required to be determined in a judicial proceeding. And finally, the enforcement *541of the provision through the power to revoke the probation and the procedures requisite therefor are expressly provided in ORS 137.550, and must be done in a judicial proceeding.
Juvenile proceedings are civil in nature. ORS 419.474(1). ORS 419.507(1) provides:
“* * * Restitution for property taken, damaged or destroyed by the child may be required as a condition of probation.”
There too the existence of the power is expressly granted to the court. Thus the legislature in the context of both a criminal and a civil proceeding has seen fit to provide expressly when the right to require restitution from a person in custodio legis is to be allowed, and what sanctions, if any, may follow from noncompliance therewith and the procedures requisite to the imposition thereof. I find this highly persuasive in construing ORS 179.360 and would conclude that had the legislature intended the superintendent to have the power to order restitution here, it would have said so.
Thus I do not agree that in construing the meaning of both ORS 421.180 and Rule 11(3) (b) it is proper to reject consideration of the rule of statutory construction described by the court as inclusio unius est exclusio alterius.
Independently of ORS 179.360, the court also concludes that the disciplinary committee had the power under Rule 11(3) (b) to require restitution as “remedial” treatment.
ORS 421.180 authorizes the Corrections Division to “adopt procedures to be utilized in disciplining persons committed to the physical and legal custody of the division. * *
*542Pursuant to this authority the Division in Rule V(l) has set forth at length what by way of disposition the disciplinary committee may impose by way of sanctions. Nothing in that rule authorizes entry of an order of or describes a procedure for the exaction of restitution nor a method for the determination of the amount thereof. The state concedes that the rules are otherwise silent thereon.
Rule 11(3), relied upon by the majority, in defining the powers of the disciplinary committee limits its powers to:
“b. Imposing remedial treatment or sanctions in accordance with this code.”
Pursuant to ORS 421.180 the Corrections Division has promulgated rules. It is obvious these relate only to sanctions. The majority then holds that this covers anything short of imposition of cruel and unusual punishment “tending to correct or improve the inmate’s conduct in the area involved.”
Oregon Constitution, Art I, § 15, states:
“Laws for the punishment of crime shall be founded on the principles of reformation, and not of vindictive justice.”
One clear import from it is that sanctions or other impositions imposable by law upon the convicted offender have as a major objective his reformation— and thus are remedial in purpose.
Under the majority’s definition it seems to me “remedial” is at least as much subject to attack on grounds of vagueness as was former ORS 167.210, which was condemned as void for vagueness in prohibiting “any act which manifestly tends to cause any child to become a delinquent child.” State v. Hodges, 254 Or 21, 23, 457 P2d 491 (1969).
*543Here, if the Corrections- Division had intended that the disciplinary committee, or the superintendent pursuant to its recommendation, have authority to require restitution, it would have so provided. Neither in Rule V(l) nor, so far as I am aware, in any of its rules has it chosen to do so. As with any statute or regulation imposing sanctions or consequences, one of the purposes of Rule V(l) is to advise an inmate of the nature and extent of what can happen to him if he violates established rules. Nothing in Rule V(l) tells an inmate that restitution may be required of him nor under what circumstances it may be imposed or its amount determined. Whether viewed in that light the court’s opinion is consonant with principles of due process required in disciplinary proceedings under Wolff v. McDonnell, 418 US 539, 94 S Ct 2963, 41 L Ed 2d 935 (1974), and Bonney v. OSP, 270 Or 79, 526 P2d 1020 (1974), I do not find it necessary to consider.
Here the Corrections Division in its rules adopted under ORS 421.180-421.195 nowhere authorizes restitution either as a sanction or as “remedial.”
In Bonney v. OSP, 16 Or App 509, 519 P2d 383, aff’d 279 Or 79, 526 P2d 1020 (1974), and Fowler v. OSCI, 18 Or App 280, 525 P2d 191 (1974), wide latitude was extended to the Corrections Division in providing rules authorized under ORS 421.180. We held there that a necessary corollary to that is insistence that it comply with its own rules. That does not mean, however, that this court should uphold as authorized acts or procedures not reasonably inferable from the rules it has adopted or from the statute itself.
Finally, in view of the concurring opinion of Langtry, J., it is difficult for me to identify what the court’s holding here is. If I correctly understand the *544concurring opinion, it upholds the ordering of restitution in an ORS 421.180 proceeding on the basis that it makes no difference whether it can he ordered in a disciplinary proceeding. The superintendent can do it on his own under ORS 179.360(1) (e).
Thus it seems to me it implies the superintendent was right in ordering restitution hut for the wrong reason. I do not understand that to he the holding of the court’s opinion.
Accordingly, I respectfully dissent.
Rule V(l) of Procedures for Disciplinary Action within Correctional Institutions provides:
“DISPOSITION (WHAT THE COMMITTEE MAY DO) “Sanctions
“The committee may find the resident did not commit the misconduct, in which case he shall be returned to the same status and privileges as before he was charged. If the committee finds the resident did not commit the misconduct, the report will be processed and recorded with final action subject to the superintendent’s review. The reporting employe will be promptly notified of the committee’s disposition.
“The committee may impose discipline sanctions of the following order in accordance with the rules of the institution.
*539Sanctions imposed for refusal to obey a direct order will be based on the reasonableness of the order.
“a. Issue a reprimand to the resident including an appropriate delineation of expected future conduct.
“b. Restrict privileges with written instructions as to the length of restrictions and precisely which privileges are restricted.
“c. Temporary or permanent change in programming, i.e., work assignment, housing, educational plan or any other facet of specific programming.
“d. Confiscation of contraband.
“e. Place the resident in isolation status and set a maximum period the resident will remain in isolation status.
“f. Place the resident in segregation status and set a maximum period the resident will remain in segregation status.
“g. Recommend reprogramming of the resident’s probable release date by indication of a reduction in the probable suggested allowance of good time reported by the Corrections Division to the Governor.
“h. Suspend imposition of any of the above informing the resident of expected conduct to avoid imposition.
“i. A combination of ‘a’ through ‘h’.”
Rule VI(3) of Procedures for Disciplinary Action within Correctional Institutions provides:
“Superintendent’s Review
“The superintendent shall personally review each case within a reasonable time thereafter and he shall:
“a. Affirm the sanction or order recommended by the decision, if he is in agreement with the disciplinary committee; or
“b. Modify the sanction or order recommended by the committee if he disagrees with appropriateness of the committee’s decision; or
“c. Direct that no sanction or order be imposed when he disagrees with the decision.
“d. The superintendent shall have the power to increase the sanction imposed. When he does so, he shall state in writing his reasons why and immediately inform the resident, the disciplinary committee and reporting employe of his action and reasons.”
Rule 11(3) of Procedures for Disciplinary Action within Correctional Institutions provides:
“Committee Powers
“The powers of the disciplinary committee shall be limited to
“a. Determining at a hearing if any of the rules for inmate conduct have been broken by a particular inmate, and, if so,
“b. Imposing remedial treatment or sanctions in accordance with this code.”