(dissenting). Upon conviction for the crime of larceny, the respondent was sentenced by the court—
“ To be confined in the State House of Correction and Reformatory, at hard labor, for a period of not less than two, nor more than four, years, from and including this date, in the discretion of the board of control of prisons of the State of Michigan.”
In imposing this sentence, the court evidently intended a compliance with Act No. 228, Laws of 1889. I do not *264think this conforms'to the statute. The sentence there provided is a general one, and does not confer upon the court the power to fix a minimum sentence. The only-sentence provided in this act is that the convict be confined in one of the places mentioned. He can then only be released before the expiration of the maximum term of confinement fixed by law by the board of control, unless pardoned by the Governor. The sentence, however, is au absolute one for two years, is therefore legal, and must be sustained.
While the constitutionality of this act is not necessarily involved, yet as it has been presented by counsel, and a speedy determination of the question seems to be required by public interests, we have concluded to dispose of it. Its constitutionality is challenged on two grounds:
1. Because it interferes with the pardoning power, which is alone possessed by the Governor.
2. Because it confers judicial powers upon the board of control, which, by the Constitution, are solely vested in the courts.
Sentence under this act is not made compifisory, nor does it take away the discretion lodged by the Constitution in the courts. It but gives to the courts the power to sentence under this act if, in their judicial discretion, they choose to do so. They may still impose a determinate sentence under other statutes, in which cases the provisions of this act do not apply. But if, in their judgment, in view of the circumstances of the particular crime, and the character of the criminal, they deem it for the interests of the criminal, as well as of society, they may impose sentence under this act. The constitutional power of the courts is neither abridged nor enlarged. The character and extent of the punishment are clearly within the exclusive control of the Legislature. If, therefore, the act is to be declared unconstitutional, *265it must be because it warrants an unconstitutional interference with the judgments of the courts. A careful examination, therefore, of the power conferred, upon the board of control, is necessary to a proper determination of the question.
We may pass without discussion the claim that it interferes with the pardoning power of the Governor. The act does not attempt to confer any power upon the board to pardon.
“A pardon is an act of grace, proceeding from the power intrusted with the execution of the laws, which exempts the individual on whom it is bestowed from the punishment the law inflicts for a crime he has committed.” U. S. v. Wilson, 7 Pet. 150.
Section 6 expressly declares that nothing in the act shall be construed to impair the power to grant a pardon or commutation in any case.
This act was copied from that enacted in Ohio in 1884, which was held constitutional by the supreme court of that state. State v. Peters, 43 Ohio St. 629. Other states have also adopted similar provisions. The object of this law is well stated in the opinion in the Ohio case, viz.:
“It is evidently prompted by a desire to reform, as well as to punish; to make better those under sentence, us well as to protect society.”
A similar law has been sustained by the supreme court of Massachusetts. Conlon’s Case, 148 Mass. 168 (19 N. E. Rep. 164).
The only additional power conferred upon the board by this act is to allow prisoners sentenced, under it to go upon parole outside the buildings and inclosures, remaining while on parole in the legal custody and under the -control of the board, subject at. any time to be taken back within the inclosure of the prison. This is the power, if any, which is judicial, and therefore unconsti*266tutional. The term of his release depends upon the observance of the conditions of his parole. This is left with the board to determine, but I do not think this a-judicial act. . If the power exists to let a convict out on parole, upon such terms and conditions as the board shall and the convict agree to, I think it competent to clothe the board with the power to determine when his parole is broken. The convict agrees to this as one-of the terms of his parole.
The power of the Legislature to interfere with and modify the sentences of prisoners by the courts has long-been recognized in this and other states, and in so doing it has never been thought that the legislative authority was encroaching upon the judicial authority. The following are illustrations from our own statutes: The law requires the courts to sentence murderers of the first degree to solitary confinement at hard labor in the State-prison for life. The law also confers upon the inspectors of the State prison the power to release such convicts-from solitary confinement, to employ them as other convicts, and to allow them to correspond with their relatives- and friends; For 14 years the law of this State has provided that every prisoner, who shall have no infraction of the rules of the prison or laws of the State recorded against him, shall be entitled to a deduction for each-year of his sentence. The validity of this act has been recognized in mandamus proceedings brought to this-Court by a prisoner in the Jackson prison, and the board directed to allow the prisoner his good time. In re Walsh, 87 Mich. 466. This deduction is two months each year for the first two years, and finally amounts to six months each year. How. Stat. § 9704. This record must be kept by the warden, and then the inspectors are-required to determine how much of the good time earned shall be forfeited for one or more violations of the prison *267rules. Is it not apparent that these two acts of the Legislature constitute as much of an interference with the judgments of the courts as does the act now under consideration? The effect .of both is to modify the sentence of the court. In both, discretion is lodged with the prison managers. Yet the validity of the former acts-has never been questioned. The power invested in our prison managers is just as “despotic” in the one case as jn the other. In fact, all these laws are humane, and their tendency is to reform criminals and protect society. Such laws should only be held unconstitutional when, there is a clear infraction of the Constitution.
It is clearly the prerogative of the Legislature, under the Constitution, to fix all punishments for crime, and to provide for a minimum and maximum punishment. It is only limited by the Constitution to the rule that they must not be cruel or unusual. The Legislature by this act has given the courts the power and discretion to-sentence a dangerous criminal to prison for the maximum term, and conferred the power and discretion upon the board of control, whose duty it is to watch the conduct and character of the convict, so to modify that sentence as to give him temporary and conditional liberty. I am unable to see in this any cruel or unusual punishment, or any usurpation of, or encroachment upon, judicial powers as fixed by our Constitution. If the constitutional power exists in the Legislature to provide for the absolute discharge of a prisoner before the expiration of his term of imprisonment fixed by the court, it must follow that the right exists to provide for his conditional release. No constitutional right of the prisoner is infringed, for his term of imprisonment may be thereby shortened, while society may be benefited by his reformation. The' right to shorten terms of imprisonment was sustained by *268íhe supreme court of Massachusetts, Chief Justice Shaw-being then upon the bench. 13 Gray, 618.
To declare this act unconstitutional would result in the •abrogation of our most salutary laws, holding out wise inducements for the reformation of criminals. It would .result in the discharge of many prisoners who have been •sentenced under this act, the validity of which appears -to have been generally recognized by the circuit judges.
It should be accordingly certified to the State House •of Correction and Reformatory at Ionia that the sentence of the court is valid for two years, subject to the deduction provided in How. Stat. § 9704