Commonwealth Ex Rel. Banks v. Cain

Dissenting Opinion by

Me. Justice Drew:

There is nothing more fundamental or basic in constitutional law, or more uniform in interpretation, than that any statute which seeks to transfer any of the duties, powers or prerogatives appertaining to one branch of our tripartite form of government to another branch thereof, is absolutely void and of no effect whatsoever. That such is extremely well established is demonstrated by a unanimous line of decisions in this and the other states, and also by decisions of the federal courts in protection of the United Stales Constitution. One of the best expressions on the subject is that of Chief Justice Gibson in

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De Chastellux v. Fairchild,

15 Pa. 18 , where, speaking for this Court, he said: “The functions of the several parts of the government are thoroughly separated, and distinctly assigned to the principal branches of it, the legislature, the executive, and the judiciary, which, within their respective departments, are equal and coordinate. Each derives its authority, mediately or immediately, from the people; and each is responsible, mediately or immediately, to the people for the exercise of it. When either shall have usurped the powers of one or both of its fellows, then will have been effected a revolution, not in the form of the government, but in its action. Then will there be a concentration of the powers of the government in a single branch of it, which, whatever may be the form of the constitution, will be a despotism — a government of unlimited, irresponsible, and arbitrary rule. It is idle to say the authority of each branch is defined and limited in the constitution, if there is not an independent power able and willing to enforce the limitations.” It is crystal clear that where a statute does violence to the constitution the court has no alternative but must declare the legislation unconstitutional and refuse to enforce it, regardless of the wisdom, expediency or necessity for its enactment. The majority, in my judgment, has completely ignored this well-settled law in concluding that the Parole Act of 1941 is constitutional.

The majority is of the opinion that by authorizing the Board of Parole to release a prisoner from confinement after he has served but his minimum sentence, the legislature has not attempted to confer upon that body a power expressly and exclusively vested in the executive branch of the government by Article IY, section 9,

1

of

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the Pennsylvania Constitution. With this conclusion, I cannot agree. This view overlooks entirely the fact that it is well settled in this Commonwealth that it is the maximum sentence which, in contemplation of law, is the actual sentence of the court, and the only portion which has legal validity; not the minimum:

Commonwealth v. Kalck,

239 Pa. 533 ;

Commonwealth v. Sweeney, 281

Pa. 550. If this were not so, the indeterminate-sentence statutes enacted in this State would be unconstitutional, in that sentences imposed thereunder would be uncertain and indefinite. Under such circumstances, it is a waste of time to contend that a release of a prisoner from confinement on parole before the expiration of his actual sentence — the maximum term pronounced by the court — is not in fact the granting of a qualified or conditional pardon. This Court said, in

Flavell's Case,

8 W. & S. 197 , 199: “. . . the governor may annex to a pardon any condition whether precedent or subsequent not forbidden by law, and it lies upon the grantee to perform the condition. . . . The propriety or wisdom of granting such pardons, or of the terms and conditions annexed, must rest with the executive, to whom the constitution entrusts this authority.” The executive has the authority under Ms constitutional powers to grant a pardon with all the conditions intended by the Act of 1941 to be imposed by the Board of Parole. This definitely puts this Parole Act in conflict with the constitution. The two cannot stand together without at least sharing powers given exclusively by the constitution to the Governor.

It was said, in

In Re Conditional Discharge of Convicts,

73 Vt. 414 , wherein were reviewed authorities in many jurisdictions, including some of those relied upon

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by the majority,

2

(p. 429): “. . . when a prisoner is paroled or has received a commutation of his sentence, the judgment against him remains, and neither is a remission of guilt; but each, being a conditional release of a part of the punishment, is a partial conditional pardon, the power to grant which rests exclusively with the executive.” In

People v.

Cummings, 88 Mich. 249 , where a statute quite similar to the Parole Act of 1941 was held

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to be unconstitutional, it was said (page 252) : “Yet if it be considered that the only power conferred [upon the board of control of prisoners by the act in question] is a conditional release upon parole, still, if the prisoner keeps his parole, or, rather, if the board are of the opinion that he does, the release is in fact an absolute one. By what refinement of reasoning it can be made to appear that this is not in effect a pardon of the prisoner, is beyond my comprehension . . . [p. 260]. In looking upon this law, it is difficult to see in what respect this system of parole differs from a pardon by the Governor upon conditions. Is it not in fact a pardon, — a release upon conditions? If it is not, if the faith of the board of control is not to be kept, and the convict has no certainty that if he keeps the conditions he will not be again imprisoned, then the whole scheme is a delusion and a snare, and unworthy a place upon the statute-books. But, as it is, the only guaranty of a person so released of such good faith is the pleasure of the board. This system of parole is either a pardon upon conditions, and therefore unconstitutional, or it is no release at all, and only a permission to go outside of the walls, and stay as long as the board may will. If it is the latter, — a simple leave to stay outside until the board see fit to call them in, — the law evidently does not meet the intention of the Legislature, and is not only undesirable, but indefensible. If it is a pardon upon conditions, as the Legislature no doubt intended it should be, then it is open to all the constitutional objections mentioned. . . .”

While it is obvious, as stated in the majority opinion, that there is a marked distinction between an absolute pardon and a parole, it is equally clear that there is no difference whatever between a qualified or conditional pardon and a parole:

State v. Asher

(Mo.), 246 S. W. 911 ;

People v. Cummings,

supra. This latter fact the majority opinion completely ignores, despite the following appropriate expression of President Judge Sulzberger, in

Com. v. McKenty,

21 Pa. Dist. R. 589, 593,

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which was quoted with approval by Mr. Justice Elkin, in

Commonwealth v. Kalck,

supra, and by President Judge Keller recently, in

Com. v. Ashe,

145 Pa. Superior Ct. 26 : “. . . the minimum sentence is merely an administrative notice by the court to the executive department, Calling attention to the legislative policy that when a man’s so-called minimum sentence is about to expire, the question of

grace and mercy

ought to be considered and the propriety of granting a

qualified pardon

be determined.” (Italics added.)

The majority in its earnest endeavor to differentiate between a pardon and a parole, states that parole “is not an act of clemency.” This statement is in direct conflict with the above quoted language of President Judge Sulzberger, as well as the holding of this Court, in

Commonwealth v. Ashe,

320 Pa. 341 , wherein we said, speaking through Mr. Justice Maxey (p. 344) : “The granting of a parole is a matter of grace . . . ,” and again, in

Commonwealth v. Sweeney,

supra, wherein Mr. Justice Sadler quoted the following language from

Commonwealth v. Kalck,

supra (p. 558: “. . when the sentence is for an indefinite term, and the law prescribes a maximum punishment for the crime committed, the prisoner in contemplation of that law is committed for the full term, but may secure a release at a much earlier period if by his deportment and good conduct he proves himself worthy of

the clemency

which it is the policy of indeterminate-sentence laws to extend him.’ ” (Italics added.)

Assuming, but not admitting, that a release on parole is not in fact a pardon on condition, then how can it possibly be concluded that such a release is not at least a commutation of sentence? No amount of sophistry can gainsay that to permit a prisoner to be liberated from confinement at any time prior to the expiration of his maximum sentence is a lessening or changing of the actual sentence imposed, even though he may be still technically in custody of the state and subject to be returned

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to prison if he violates the conditions of his release. Ih this regai*d, the Supreme Court of Utah, in

State v. State Board of Corrections,

16 Utah 178 , speaking through its then Chief Justice, said (p. 182) : “In effect, the parole substitutes the punishment imposed, by it for that imposed by the sentence. The actual punishment is changed. One punishment known to the law is changed to another punishment known to the law, and this is commutation. But it may be said that the punishment imposed by the parole tinder the statute, if valid, i8 conditional. It is true that the continuance of the substituted punishment depends upon certain Conditions,— the observance of the rules of conduct prescribed by the parole, and the "reports by the prisoner exacted by its terms. But whether the commutation is unconditional or conditional, as to time, it can make no difference. In either case the power to make the commutation is vested in the board of pardons. Raplje and Lawrence, in their Law Dictionary, define ‘commutation’ to be ‘the substitution of a lesser grade of punishment for that inflicted by the sentence pronounced upon conviction.’ Again, commutation has been defined to be ‘the change of a punishment to which a person has been condemned, to a less severe one.’ And it is added that ‘this can be granted only by the authority in which the pardoning power resides.’ 6 Am. & Eng. Enc. Law (2d Ed.) p. 356; We hold that the statute . . . [is] absolutely void, because [it is] contrary to the provision of thé constitution. . . The majority opinion states that “The sentence is in no wise interfered with” by the granting of the parole, yet cites

Anderson v. Corall,

263 U. S. 193 ) 196, where it is said “While [parole] is ah

amelioration

of punishment, it is in legal effect imprisonment.” (Italics added.)

The majority reaches its conclusion that parole is not a commutation of sentence within the meaning of that term in the constitutional provision, because “When oiir present constitution was adopted, parole, as a peno

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logical expedient, was unknown to American jurists and legislators, and ‘commutation’ was then generally understood as meaning a reduction in the length of the sentence, effecting a discharge of the prisoner without any further supervision over him by the state authorities.” This is a non sequitur. Such reasoning overlooks the fact that “commute” is derived from the Latin word “commutare”, which means to “change”: Webster’s New International Dictionary (2d Ed.). “Commutation” meant at the time the constitution of this Commonwealth was adopted in 1874, as it does now, “The change of a punishment to which a person has been condemned into a less severe one”: Bouvier’s Law Dictionary (14th Ed., 1870). It is a mistake to suppose that only a shortening of the term of imprisonment is commutation. Any change of the sentence which lessens the punishment, such as absolving prisoners from serving “at hard labor” or “in solitary confinement”, when such was a part of the sentence, is a commutation. Such alterations in the terms of sentences were obviously not unknown to the framers of the present constitution.

The only ground upon which statutes in this Commonwealth permitting parole of prisoners after service of their minimum terms have been held to be constitutional is that they merely give the prison authorities power to recommend to the executive that the prisoners be released on parole:

Com. v. Ashe,

145 Pa. Superior Ct. 26 . The Parole Act does more than that, for it attempts .to confer upon that body the absolute authority to release the prisoner upon parole before the expiration of his maximum term, in entire disregard of the executive, and for that reason, if for no other, the. statute violates the constitutional provision vesting the power to pardon and to commute sentences exclusively in the executive 'department of the Commonwealth. In an Article by James M. Kerr, Esquire, an eminent legal writer and editor,, entitled “The Indeterminate-Sentence Law Unconstitutional”, which appeared in 55 Am. Law Rev. 722 ,

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it was said in this connection (p. 731-3) : “The courts holding the indeterminate-sentence law to be constitutional do so on the express ground that any judgment of sentence under such law is, in legal effect, a sentence to imprisonment for the maximum term provided by the law, and not for a minimum or any intermediate term; declaring that it is on this theory, only, that such sentences can be held to be certain and definite, and therefore not void, for otherwise the indeterminate-sentence law would be unconstitutional because of the uncertainty and indefiniteness of the sentence thereunder. It being conceded that the term is certain and definite for the maximum term, . . . and being fixed and determined, it follows as night follows day, that the prisoner must serve that term in full . . . ; and can be discharged or paroled by act of the governor only; any statute attempting to confer that power upon another person or body is plainly unconstitutional under a proper and intelligent construction of the provisions of the constitution, where those provisions are administered as written and the opinion of the individual is not set up against the fundamental law as to what the provision should be. . . . The prison directors, or board of parole, or other body provided by statute, are not given the power of pardon, and cannot be given the power of pardon, by the indeterminate-sentence law; the utmost that they can do, or can be constitutionally authorized to do, is to recommend the prisoner to the governor for pardon.”

Furthermore, it is held by the majority opinion that the Parole Act does not encroach upon the constitutional powers and prerogatives of the judiciary in violation of Article Y, section 1,

3

of our Constitution. While the legislature has the power to define crime and fix the pun

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ishment, it is nevertheless the court’s exclusive province to hear and adjudge under the law so enacted;

Com. v. McKenty, 52

Pa. Superior Ct. 332. “The whole judicial power of the Commonwealth is vested in courts. Not a fragment of it belongs to the legislature. The trial, conviction, and sentencing of criminals are judicial duties, and

the duration or period of the sentence is an essential part of a judicial judgment in a criminal record”

(italics added) :

Commonwealth ex rel. Johnson v. Halloway,

42 Pa. 446, 448 . It seems to me that by the Act here in question, the legislature has attempted to invade the province of the judicial branch of the government by endeavoring to allow the Board of Parole to fix the term of confinement. In this connection it was said in

People v. Cummings,

supra (pp. 252-3) : “It is in the power of the Legislature to fix all punishment for crime, and to provide for a minimum and maximum punishment, and to give the courts in which the prisoners are convicted a discretion to fix a term between these limits, but it cannot be contended for a moment that this discretion can be given to any other person or persons. To do so would imperil the liberties of the citizen by putting his punishment for wrongs committed into the arbitrary power of unauthorized persons, without any right of remedy in the courts.”

Citing a number of cases in other jurisdictions,

4

the majority further states that “The granting of parole and the supervision of parolees are purely administrative functions, and accordingly may be entrusted by the legislature to non-judicial agencies”. The reasoning of these cases, in my opinion, is merely evasive; it is not

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sound in law or logic. Tlie sound view is well expressed in the Article of Mr. Kerr, supra, as follows (p. 738) : “. . . a duty is ministerial in those cases only in which the law exacting the discharge of the duty prescribes and defines the time, mode and occasion of its performance, with such certainty that nothing remains for judgment or discretion; where such discretion and judgment enter into the act, it is judicial. Where a duty imposed or a power delegated is one lying in the discretion or judgment of an officer other than a judge, it is a quasi-judicial and not a ministerial duty; and when such officer is charged with the duty of looking into and acting upon facts not in a way in which the law specifically directs, but after a discretion in its nature judicial, as is the case under the indeterminate-sentence statutes, the function is a quasi-judicial function. An act is judicial when it requires the exercise of judgment or discretion by one or more persons, body or board, when acting as public officers in an official capacity, in a manner which seems to them just and equitable, or for the general pub-lie welfare — as is the case under the indeterminate-sentence statutes. This being the case the act can in no sense be termed ministerial, and a law conferring the right, power or function is not within the protection as to constitutionality of laws conferring purely ministerial duties and functions. . . .”

Nor can I agree in the majority view that as applied to sentences imposed before its effective date, as in the instant case, the Parole Act of .1941 does not interfere with or change a final judgment of a court. In holding the Act of May 1, 1861, P. L. 462, unconstitutional, this Court said, in

Commonwealth ex rel. Johnson v. Halloway,

supra (p. 448) : “In respect to one of the relators who was convicted and sentenced before the law was passed, it is considered very clear that it is a legislative impairing of an existing legal judgment.” See also

Ex parte Darling,

16 Nev. 98 .

I do agree with the majority, however, that section 21 of the Act (which provides that the Board of Parole may

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extend the period of parole beyond the maximum term imposed by the court), and section 24 thereof (which provides that the Board may discharge from parole before the end of the maximum term imposed), are invalid. To allow the Board to extend the period of parole beyond the term imposed by the court would obviously permit a nonjudicial body to perform judicial functions, since the pronouncement of a sentence undoubtedly is the prerogative of the courts exclusively, and cannot be delegated to any administrative board. If the Board has power to reduce the maximum sentence, by releasing from parole before the expiration of that sentence, it has power to commute sentences, which authority, as heretofore indicated, has been placed exclusively in the hands of the executive department by the constitution. And to permit such action on the part of the Board would clearly interfere with a lawful judgment of a court.

But even under the majority view that the Act is constitutional, it does not follow that the Board of Parole can parole a convict before his fine and costs have been paid. Although the statute by section 31 specifically states that it shall not apply to persons committed in default of payment of fines, it is silent regarding persons committed to serve a prison term and to pay a fine as well. If the Legislature had intended to allow parole in the latter case without the fine and costs first being paid, it would have said so. As to sentences imposed prior to the effective date of the Act, however, such a pronouncement would have been an áttempt to change a judicial judgment in opposition to the constitution. It cannot be denied that the fine and costs are as much a part of the sentence as the term of imprisonment and that the sentence intended that they be paid before any release from confinement. To say that the prisoner would owe the amount, and that it could be collected from him by some other method is no answer. The point is that he cannot be released from imprisonment until the fine and costs are actually paid, without changing

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the sentence, except by taking advantage of the insolvency laws. That this is a matter of great moment to the various counties of the Commonwealth is shown by the statement of the learned judge of the court below that in one year $114,000 was collected in Delaware County in fines and costs. The amount collected in the sixty-seven counties of the State is very considerable; and most of this money would be lost if fines and costs were not collected before parole. As to sentences imposed after the statute’s effective date, however, it may be true that the Legislature could validly permit prisoners to be released on parole without having paid their fine and costs. But it has not done so. Its silence on this point is tantamount to an express provision that the law shall remain as it has been.

It should be added that the Parole Act of 1941 is materially different from that proposed by the commission of eminent citizens appointed by the Governor to investigate and report on the application of criminal penalties in the Commonwealth and the operation of its probation and parole systems and to make recommendations for the improvement and strengthening thereof. The law as enacted needlessly creates an extravagantly expensive system of parole, by permitting the present costly county parole system as well as that of the Board of Pardons, to continue to function although it calls for an “exclusive” system of parole; it places the appointment of an unlimited number of parole officers and employees in political hands; and it is so inartistically drawn that, even if its many and serious defects are now overlooked, it is bound to result in confusion and litigation before its true character is ascertained. A real service would be done the Commonwealth in maintaining the integrity of the Constitution, if this Act were declared invalid and the General Assembly given an opportunity to propose a constitutional amendment, to provide a legal and model parole law, for the rehabilitation of our unfortunates.

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I would declare the Parole Act of 1941 unconstitutional and affirm the final decree of the learned court below.

Mr. Justice Patterson joins in this dissent.

1

“He [the Governor] shall have power to remit fines and forfeitures, to grant reprieves, eommuntations of sentence and pardons, except in cases of impeachment; but no pardon shall be granted, nor sentence commuted, except upon the recommendation in writing of the Lieutenant Governor, Secretary of the Commonwealth, Attorney General and Secretary of Internal Affairs, or any three of

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them, after full

hearing, upon due pubUc notice and in open session, and such recommendation, with the reasons therefor at length, shall be recorded and tiled in the office of the Secretary of the Commonwealth.”

2

(pp. 426-7) “But the authorities are not in harmony upon this question. In

State v. Peters,

43 Ohio St. 629 , a law providing that the prison board of managers may paroie convicts was held not an encroachment upon the pardoning power and valid. The court said it was not a commutation, adding that a ‘commutation is the change of a punishment to which a person has been condemned into a less severe one;’ and further said, ‘It is not a conditional pardon, but the substitution of a lower for a higher grade of punishment.’ Thus in avoiding a conditional pardon, the court defined a parole to be just what it had in the sentence before correctly given as the definition of a commutation, which, according to all authorities, is within the pardoning power; 4 Black. Com. 401;

Lee v. Murphy, supra

[ 22 Gratt. 789 , 12 Am. Rep. 563 ] ;

Ex parte

Wells,

supra

[ 18 How. 307 ].

“In

Miller v. State,

149 Ind. 607 , in upholding a similar law, the court said, ‘Nor is it the exercise of the pardoning power. Pardon is remission of guilt; amnesty, oblivion or forgetfulness. The act of the board only shortens the terms prescribed by the sentence and leaves the conviction of guilt unaffected.’ That such is the effect of a full pardon, is not controverted; and that a parole is not a full pardon is not debatable. But in that case, neither commutation, nor a partial, nor a conditional pardon is considered. Therefore the case is of little force as authority upon the question here involved.

“In

George v. Lillard,

51 S. W. (Ky.) 793, a law which gives the commissioners of the sinking fund, consisting of the governor, auditor, treasurer, secretary of state and attorney general

ex officio,

the power to grant paroles was under consideration, and by a divided court, the law was held not to interfere with the pardoning power vested in the governor. But a strong dissenting opinion was filed in the case, by Judge Guffy (page 1011), holding a parole under the law, to be a conditional or partial pardon, and the law in conflict with the constitutional grant. In carefully examining the two opinions, the reasoning of the latter more fully commends itself to our judgment.”

3

“The judicial power of this Commonwealth shall be vested in a Supreme Court, in courts

of

common pleas, courts

of oyer

and terminer and general jail delivery, courts of quarter sessions of the peace, orphans’ courts, magistrates’ courts, and such other courts as the General Assembly may from time to time establish.”

4

People v. Hale,

64 Cal. App. 523 , 222 P. 148 ;

Miller v. State,

149 Ind. 607 , 49 N. E. 894 ;

State v. Page,

60 Kan. 664 , 57 P. 514 ;

George v. Lillard,

106 Ky. 820 , 51 S. W. 793 ;

Board of Prison Commissioners v. DeMoss,

157 Ky. 289 , 163 S. W. 183 ;

Ex parte Marlow,

75 N. J. L. 400, 68 A. 171 ;

State v. Peters,

43 Ohio St. 629 , 4 N. E. 81 ;

Woods v. State,

130 Tenn, 100, 169 S, TV. 558;

Sims v. Rives,

84 Fed, (3d) 871, 879,