dissenting:
I respectfully dissent from the holding of the majority inasmuch as I believe that the transfers of the petitioners from the federal correctional facility at Alderson, West Virginia, to the federal correctional facilities in California did not constitute “banishment” or “transportation” as those terms *7should be defined under W. Va. Const, art. Ill, § 5. That constitutional provision provides, in part: “No person shall be transported out of, or forced to leave the State for any offense committed within the same_” •
“Banishment” is generally defined as “punishment by forced exile either for years or for life; [or] a punishment inflicted on criminals, by compelling them to quit a city, place, or country, for a period of time, or for life.” 8 C.J.S. Banishment (Cum.Supp.1984); see McBride v. State, 484 S.W.2d 480 (Mo.1972); State v. Culp, 30 N.C.App. 398, 226 S.E.2d 841 (1976). See generally Black’s Law Dictionary 131 (5th ed. 1979). Historically, “banishment” was “ ‘inflicted principally upon political offenders, “transportation” being the word used to express a similar punishment of ordinary criminals.’ ” United States v. Ju Toy, 198 U.S. 253, 270, 25 S.Ct. 644, 649, 49 L.Ed. 1040, 1047 (1905) quoting Black’s Law Dictionary (Brewer, J., dissenting).
The “transportation” clause, as it presently exists in W.Va. Const, art. Ill, § 5, was first included in our Constitution that was adopted by the Constitutional Convention of 1872, held in Charleston. However, a detailed study of the proceedings of that 1872 convention offers little insight into the reason for the clause’s appearance.
The majority and concurring opinions cite the leading cases in this subject area. Although both the majority and concurring opinions distinguish, for various reasons, the cases of Sayles v. Thompson, 99 Ill.2d 122, 75 Ill.Dee. 446, 457 N.E.2d 440 (1983), and Girouard v. Hogan, 135 Vt. 448, 378 A.2d 105 (1977), as being inapplicable to the situation now before us, when read together, I believe they offer sufficient reasoning to deny relief to the petitioners inasmuch as they both represent the modern and common practice of interstate prisoner transfers. Citing Girouard v. Hogan, supra, the United States Supreme Court noted in Olim v. Wakinekona, 461 U.S. 238, 103 S.Ct. 1741, 75 L.Ed.2d 813 (1983), that the “conviction, not the transfer, deprived ... [the prisoner] ... of his right to freely inhabit the State. The fact that his confinement takes place outside ... [the state of the offense] ... is merely a fortuitous consequence of the fact that he must be confined, not an additional element of his punishment.” 461 U.S. at 248 n. 9, 103 S.Ct. at 1747 n. 9, 75 L.Ed.2d at 822 n. 9.
I further disagree with the concurring opinion to the extent that the term “of-fence,” as that term is used in this constitutional provision, “is broad enough to embrace prison infractions which result in disciplinary penalties.” The petitioners in this case were transferred to the California facilities for violating federal requirements governing conduct and discipline in federal correctional facilities. See Exhibits 1 and 2, Response to Petition for Writ of Habeas Corpus. Carried to the extreme, if the petitioners have a State “constitutional right” to serve their punishment for federal prison infractions within the borders of this State, then so must all other persons who commit federal offenses within the borders of this State.
In the case now before us, petitioners Schofield and Ray were not “exiled,” “transported,” “banished” or forced to “quit” this State as a punishment for committing offenses under our State laws, they were sentenced to terms of life without mercy and one to ten years, respectively. Their transfers to California facilities were merely consequences of their behavior in the federal correctional facility at Alder-son, West Virginia.
Based upon all of the above, I respectfully dissent from the result and reasoning of this case.