dissents.
The appellants, who are commissioners in control of, and managing the penitentiaries of the State, assumed the right to parole one John Dugan, a prisoner convicted' of the offense of manslaughter. The authority to parole Dugan is claimed under the act of May, 1880, and amendments thereto.
It will be seen, by examination of the statutes in force prior to 1889, that the Governor, Attorney General, Auditor, Secretary of State, and Treasurer constituted the board of Sinking Fund Commissioners, and as such had the control of the penitentiaries, and were by law authorized to parole prisoners.
*826The effect of the parole was to discharge the prisoner from actual custody, and give him complete freedom of action. He could ■ go where he chose to go, and laber for himself, and was allowed to dress as other citizens. He was, however, required, if he remained in the State, to report, through the county judge, twice a year, to the commissioners. The commissioners also had the right to order the arrest and return of the convict to prison.
The appellants in this case claimed and attempted to exercise the power to parol said Dugan, but the appellee Lillard, who is warden of the prison, refused to discharge Dugan, and appellants brought this suit to obtain a mandamus requiring appellee to respect the parole aforesaid.
The court below sustained a demurrer to the petition, and dismissed the action, and appellants prosecute this appeal.
The majority opinion affirms the judgment, and I concur in the affirmance. But the majority opinion takes up the question of the constitutionality of the so-called “Parole Law’,” and decides that it is constitutional, and may be enforced by the commissioners of the sinking fund.
I dissent entirely from the opinion in so far as it holds the act in question to be' constitutional.
I am also of the opinion that the parole law stands repealed.
The acts of 1891-92-93 provided for the government of the penitentiaries,and it seems to me that under the rule announced in Broaddus v. Broaddus the parole law stands repealed.
The act of 1898 took the control and management of the penitentiaries from the sinking fund commissioners, and *827vested it in appellants, and no reference was made to the parole law. If the parole law could be defended at all, it seems to me that it’ could only he for the reason that the officers in control of the prisoner would be able to exercise the power wisely; but now the power, according to the majority opinion, is vested in officers who have no knowledge of the conduct of the prisoners, nor any means of information except through other officers.
If, however, the parole law has not been repealed, I am of opinion that it is unconstitutional and void.
Section 77 of the Constitution provides that the Governor shall have power to commute sentences, grant reprieves and pardons.
Bouvier’s Law Dictionanr adopts Blackstone’s definition of “reprieves,” as follows: “The withdrawing of a sentence for an interval of time, which operates in delay of execution.”
The parole provided for by the act under consideration is clearly a reprieve, and nothing else, and is therefore an invasion . of the power vested in the Governor, and it is no answer to say that he is one of the commissioners. If the parole law is valid, a majority of the commissioners can exercise the power, although the Governor might oppose it.
Yr. Webster defines “reprieve” as follows: 1st. “To delay the' punishment of; to suspend the execution of sentence; . . .” 2d. “To relieve for a time, or temporarily.”
It is perfectly manifest that the so-called “Parole Law” is in law and in fact a reprieve, and also a conditional or partial pardon and therefore in conflict with section 77 suvra.
*828Section 253 of the Constitution x>rovides that: “Persons convicted of felony and sentenced to confinement in the penitentiary shall be confined at labor within the walls of the penitentiary; and the General Assembly shall not have power to authorize employment elsewhere, except upon the public works of the Commonwealth of Kentucky, or when during pestilence or in case of the destruction of the prison buildings, they can not be confined in the.penitentiary.”
It seems to me that section 253, supra, is absolutely conclusive of the question. It is so plain and positive that any attempt to explain the meaning is futile.
It is not claimed in the majority opinion that the paroled person is not still a convict.
The majority opinion says that the purpose of 'section 253 was to prevent the working of convicts by the State outside of the prison walls, etc. But it will be seen that the State may work the convicts on public works, and it is a canon of construction that, where a number of exceptions are made, all other exceptions are absolutely prohibited or disallowed.
It seems to me that a court should never construe a constitutional provision contrary to the express language thereof.
For the reasons given, and others not necessary to mention, I respectfully dissent from all that part of the opinion which holds the so-called “Parole Law” to be valid or constitutional.