(concurring specially) : I concur in the judgment rendered. The legislature undertook to realize in the parole law some of the modem ideas respecting the treatment of persons who have been guilty of infractions of the social order. Fines and imprisonment are no longer regarded as compensations to offended society, and the whole theory of punishment has changed and has been placed upon a scientific and humanitarian basis which regards both the protection of society and the welfare of the delinquent. When a person incarcerated for crime has fairly demonstrated that he intends to live an orderly and correct life, and has capacity to do so, the purpose of imprisonment has been substantially accomplished. Society will not suffer from his release, and his own welfhre will best be promoted if he be allowed to serve the remainder of his sentence outside the prison walls. Upon these considerations is based the original form of the “parole,” which has been defined as follows:
“A parole is a form of conditional pardon, by which the convict is released before the expiration of his term, to remain subj ect, during the remainder thereof, to supervision by the public authority and to return to imprisonment on violation of the condition of the parole.” (29 Cyc. 1562.)
It has long been recognized that few records should ever be made in criminal courts against young persons, or even adults who, although they may have offended, are not criminals. Besides this, it is well demonstrated by criminologists and expert welfare workers that some substitute should be found for incarceration in as many cases as possible where antisocial conduct is not a habit and the offender possesses a fair measure of self-control, self-respect, and other *403moral and spiritual resources to draw upon. In. numerous cases the simple fact of conviction is moré than enough punishment, and fine and imprisonment/ have no legitimate or efficacious purpose to subserve.. The foregoing doctrines form the foundation of the statute involved in these cases, which provides that if the judge be satisfied that an offender will not again violate the law he need not be fined or imprisoned but may be allowed to go at large upon such conditions and restrictions as the judge may impose. - '
It needs no argument to demonstrate that the legislature did not confer unlimited authority to impose conditions and restrictions. It did not mean that the offender might be required to curry the judge’s horses or vote for him or some one favored by him for an office. The conditions and restrictions contemplated are those germane to the problem presented as to whether or not the hard-and-fast penalty affixed by the law should be enforced. It is not a matter of grace or of bargain between the judge and the offender but a matter of the best interest of society and of the offender under the particular circumstances of the particular case. Neither was it.intended that by the parole a general guardianship should be established. The question always is whether the statutory penalty will best accomplish in the case of a particular person-guilty of a specific breach of law, the true purpose for which alone the penalty should be inflicted. If not there should be a discharge with suitable guaranties against lapses, in lieu of the penalty. This being true, an invented surveillance extended indefinitely by a police judge would violate the fundamental theory of the parole system. Such authority over an individual, perhaps to be sprung upon him in after years when the police court incident has been entirely forgotten, will not be inferred from general language. It must be' granted in specific terms.
*404“Indiscreet attempts to extend the measure beyond its legitimate and restricted sphere have provoked reaction and imperilled the whole movement.” (Henderson, Preventive Agencies and Methods, [Russell Sage Foundation] p. 259.)
The legislature must be credited with knowledge of this fact derived from experience in the use of the parole expedient. In the case of district judges the power was limited to two years, and it is not reasonable to suppose that petty judicial officers having cognizance of- minor offenses only were clothed with larger discretion, extending even throughout the period of the natural life of an offender.
No specific time having been stated in the statute, the legislature evidently intended that the accepted views of the nature and purpose of the parole should prevail.. Applying those views to the cases of the petitioners, their paroles were in the nature of probations. They were permitted to serve their sentences, not in jail, but.at large under the condition of strict law observance and under the condition that a misstep would entail actual incarceration for the full period of their sentences and payment of fine and costs. Whether or. not the petitioners were persons to whom .the principle of the parole should be extended was, of course, a matter' for the police judge to determine. That the principle has been both misapplied and abused in many cases in this state is a matter of common knowledge.