OVERLADE, WARDEN, ETC. v. Wells

Dissenting Opinion

Emmert, C. J.

The maximum sentence of the judgment entered by the Gibson Circuit Court on January 12, 1940, expired by its specific terms at the end of fourteen (14) years, to-wit: January 12, 1954. Ap-pellee never escaped, and unless this court can find some statute which was in force at the time the judgment was pronounced that extended the term by operation of law, appellee’s term could not be changed or modified by *453any executive or administrative agency of the state. “It is only by virtue of the judgment of a court of competent jurisdiction that a citizen can be condemned to imprisonment, and when the time expires for which the sentence runs, as given in the judgment, the prisoner is entitled to his discharge.” Woodward v. Murdock (1890), 124 Ind. 439, 444, 445, 24 N. E. 1047.

Since my dissent in Gilchrist v. Overlade (1954), 233 Ind. 569, 122 N. E. 2d 93, 99, in which Judge Gilkison concurred, additional research has fortified our position as to the proper construction of the statutes involved. The opinions of other jurisdictions relied on to extend the sentence here are based on different statutes which permit an extension by operation of law of the maximum term of the judgment.

Like all penal statutes, the parole statutes are to be construed in favor of the citizen and against a restriction of liberty. Dowd, Warden v. Johnston (1943), 221 Ind. 398, 47 N. E. 2d 976. Chapter 143 of the 1897 Acts provides the causes and procedure for parole and revocation. Section 5 of the Act, (§13-248, Burns’ 1942 Replacement) provides the parole shall be “until the expiration of the maximum term specified in his sentence . . . .” Section 6 (§13-249, Burns’ 1942 Replacement) authorizes the issuance of the warrant “at any time prior to the maximum period for which such prisoner might have been confined within the prison walls upon his sentence . . . .” Section 8 of the Act (§13-251, Burns’ 1942 Replacement) states that the board may “declare said prisoner to be delinquent, and he shall, whenever arrested by virtue of such warrant, be thereafter imprisoned in said prison for a period equal to the unexpired maximum term of sentence of such prisoner, at the time such delinquency is declared . . . .” There is not a word in any of these sections *454which countenances a construction that the board could order the prisoner held beyond the end of the maximum term of the judgment. But if there could be any doubt of this, two years later the General Assembly made it doubly clear the maximum term of the judgment was the end of the imprisonment by the enactment of Chapter 113 of the 1899 Acts (§13-255, Burns’ 1942 Replacement) , which provided:

“That the maximum time for which said prisoners may be imprisoned under said Indeterminate Sentence Law shall not exceed the full term for which he was sentenced originally.”

This subsequent act was not noticed in the Gilchrist case, nor in the majority opinion on the appeal at bar.

With this latter act still in full force and effect, how can it be reasoned that a statutory board has authority to change the terms of a judgment. “Over and over again this court has held that public officers in Indiana exercise but delegated powers—‘naked powers’ they have been called. Even constitutional officers have been held to this rule of delegated powers. Branham v. Lange (1861), 16 Ind. 497; Matlock v. Strange (1856), 8 Ind. 57. . . . The decisions of this court have always indicated a strict adherence to the rule that public officers exercise only delegated authority.” State ex rel. v. Home Brewing Co. (1914), 182 Ind. 75, 91, 92, 105 N. E. 909. The parole board is statutory only, and as was said of the Public Service Commission, it “derives ■its power and authority solely from the statute, and unless a grant of power and authority can be found in the statute it must be concluded that there is none.” Chicago & E. I. R. Co. v. Public Service Comm. (1943), 221 Ind. 592, 594, 49 N. E. 2d 341.

The federal cases are based on the federal statutes which are entirely different as to the maximum term. *455Title 18, §4205, U.S.C.A., commands that, “The unexpired term of imprisonment of any such prisoner shall begin to run from the date he is returned to the custody of the Attorney General under said warrant, and the time the prisoner was on parole shall not diminish the time he was sentenced to serve.” An earlier act noted in Anderson v. Corall (1923), 263 U. S. 193, 44 S. Ct. 43, 68 L. Ed. 247, stated, “If such order or parole shall be revoked and the parole so terminated, the said prisoner shall serve the remainder of the sentence originally imposed; and the time the prisoner was out on parole shall not be taken into account to diminish the time for which he was sentenced.”1

This court ought to put a stop to the parole authorities of this state playing cat and mouse with these prisoners. *456When a paroled prisoner commits an act or omission that is a violation of his parole, they ought not be permitted to stand by and refuse to act promptly to rearrest the prisoner or declare the delinquency. Our Constitution commands that, “Justice shall be admininstered . . . speedily and without delay.” This is self-executing, and it is idle to contend that our parole system is not a part of the administration of justice. Parole officers are not judges or prosecuting attorneys, and they cannot institute prosecutions or enter judgments. They have a constitutional duty to act promptly and rearrest a delinquent prisoner by any lawful means. The evidence discloses they did not in this case. Prisoners are not common law outlaws, and they are still entitled to the protection of our Constitution.

In this case rhetorical paragraph No. 4 of the complaint for the writ alleged:

“Petitioner further avers that on the ........ day of February, 1951, petitioner was arrested in Mt. Carmel, Wabash County, Illinois, charged with issuing fraudulent checks and when arraigned before Circuit Court Judge B. W. Eovaldi petitioner informed the said judge that he was on parole from the Indiana State Prison; that the said Judge advised Sheriff M. M. Mobley of Wabash County, Illinois to contact the petitioner’s parole officer, Joe Welton, and to advise said parole officer that if the Indiana authorities would accept this petitioner, the Illinois authorities would turn the petitioner over to the Indiana authorities as a parole violator. Petitioner further avers that the Indiana parole authorities by A. J. Cooley, Assistant Supervisor of Parole, Department of Public Welfare, State of Indiana, advised Sheriff Mobley of Wabash County, Illinois that they did not wish his return and recommended his prosecution by the Illinois authorities.

This was not denied by the return and stands admitted of record by the pleadings.

*457This is the same sort of a parole picture we had in Gilchrist v. Overlade (1954), 233 Ind. 569, 122 N. E. 2d 93, supra,. The provisions of Chapter 143 of the 1897 Acts do not supersede the provisions of our Constitution. It is my opinion that the state may waive its right to rearrest a parolee under the statutory terms, but assuming the statute does not authorize a waiver, the statute cannot eliminate the constitutional mandate that justice be administered speedily and without delay, and that the penal code shall be based on reformation and not vindictive justice. Sections 12 and 18 of Art. I, Constitution of Indiana. When a constitutional mandate is violated, the absence of a specific statutory provision for waiver of the act or omission cannot make the act or omission constitutional, and the Constitution by its superior force prohibits the state and its agents from depriving the individual of such rights, which are placed above and beyond the power of any legislature to abolish or impair.

Note.—Reported in 127 N. E. 2d 686.

. “When any paroled prisoner shall be rearrested on order of said Commission for violation of the conditions of his parole, or otherwise, he may be required by said Commission to serve the remainder of his original sentence; time paroled may or may not be considered or calculated as a part of the original sentence, in the discretion of the Commission.” (Acts 1908, pp. 1115,1116.) Section 77-505 Georgia Code of 1933.

“A prisoner violating the provisions of his parole and for whose return a warrant has been issued by the said director shall, after the issuance of such warrant be treated as an escaped prisoner owing service to the state, and shall be liable, when arrested, to serve out the unexpired portion of his maximum imprisonment, and the time from the date of his declared delinquency to the date of his arrest shall not be counted as any part or portion of the time to be served.” Section 791.36, Michigan Compiled Laws, 1948.

“From and after the suspension or revocation of the parole of any prisoner and until his return to custody he shall be deemed an escapee and fugitive from justice and no part of the time during which he is an escapee and fugitive from justice shall be a part of his term.” Section 3064, Penal Code of California of

1949.

“If any prisoner shall violate the conditions of his parole or release as fixed by the prison board, he shall be declared delinquent, and shall thereafter be treated as an escaped prisoner owing service to the state, and shall be liable, when arrested, to serve out the unexpired term of his maximum possible imprisonment, and the time from the date of his declared delinquency to the date of his arrest shall not be counted as any portion or part of time served; . . . .” Section 62-1528, General Statutes of Kansas (Anno.) 1949.