The opinion
Mr. Justice Vickers, dissenting:
I do not concur in that portion of the majority opinion which holds that the Parole law provides for a hearing before the board of pardons. The majority opinion holds that the Parole law, which authorizes the warden of a penitcntiary to issue his warrant for the arrest of a paroled prisoner for the alleged violation of his parole contract, under which a prisoner is arrested and re-committed to the penitentiary, is unconstitutional unless there is in said law a provision for a hearing before some lawfully constituted authority which is authorized to determine the question whether the prisoner is guilty of having violated his parole contract. It would seem that this view is too clear for serious controversy. Assuming, therefore, upon the reasoning of the majority opinion and the authorities therein cited, that the petitioner is entitled to be discharged unless there is a provision in the Parole law for a hearing touching the question whether he has violated any of the conditions of his parole, I will express my views in regard to the 'question whether there is any hearing provided for, such as is required under the constitution, in the Parole law before petitioner can lawfully be deprived of his liberty.
The petition avers, and the return of the respondent admits, that Joseph A. Joyce, the petitioner, was paroled from the Illinois State penitentiary on November 6, 1908, by the State Board of Pardons; that he has not been ordered returned to the penitentiary by said board; that he has not violated his parole contract; that he has not had a hearing of any kind to ascertain whether he has violated his parole contract; that he has had no notice or opportunity to be present at a hearing of any kind to determine whether he has violated his parole, and that he has not been found guilty of violating his said parole. With these facts admitted in the record, it is clear that the petitioner has had no hearing and that he is confined in the penitentiary and restrained of his liberty without due process of law. Even if it be conceded that there is some provision in the Parole law under which petitioner might have a hearing before the board of pardons, as held in the majority opinion, this petitioner has had no such hearing, and it is manifest that no hearing in the future, such as the constitution requires, is contemplated. • But in my opinion there is nothing in the Parole act which can, even by implication, be construed to provide for a constitutional hearing of a pároled prisoner. The only provision in the act which can be held to have any possible connection with a hearing is found in section 4 of said act, which requires the warden of a penitentiary, im-, mediately upon the return of any conditionally released or paroled prisoner, to make report of the same to the board of pardons, giving the reasons for the return of the paroled prisoner. Of this provision the majority opinion says: “This provision appears to be for the purpose of providing for a review by the board of the action of the warden, and if he has acted arbitrarily and without good cause' it would be the duty of the board to overrule his action and permit the prisoner to remain upon the parole from which he was recalled.” There is nothing further in said act prescribing the manner of a hearing before the board of pardons. In point of fact, the act does not require the board of pardons to hear the matter at all. It merely requires the warden to report to the board of pardons that he has caused the prisoner to be recommitted to the penitentiary, giving the reasons for the return. It does not impose upon the board of pardons any duty whatever to institute an inquiry in regard to the truth of the alleged violation of the parole agreement. The provision requiring the warden to report to the board of pardons never was intended for any purpose except to enable the board of pardons to keep a record of the conduct of prisoners who have been paroled by said board.
If, as the majority opinion holds, the requirement that the warden shall notify the board of pardons that the prisoner has been re-committed to the penitentiary is designed to give the board of pardons jurisdiction and power to review the action of the warden, the question arises as one of practical administration, what is to be the character of the procedure and the nature of the. hearing before the board of pardons? The board of pardons is a statutory board, and has no powers except such as are clearly given by the statute or necessarily implied from those which are granted. Is this supposed hearing to be upon ex parte affidavits in the absence of the accused party, or is it to be upon evidence of witnesses in his presence? Must the finding of the three members of the board of pardons be a unanimous verdict, or shall a majority be sufficient to determine the question submitted? Shall the trial be with or without a formal specification or written charge? Has the accused the right to be present and to be represented by counsel at such hearing? These and many other questions relating to the alleged hearing will necessarily arise if'the board of pardons is held to be charged with the duty of reviewing the action of the warden.
It cannot be reasonably supposed that the legislature intended to provide for a hearing by the board of pardons and at the same time make no provisions for carrying the power into execution. A law which provides for a hearing before depriving one of life, liberty or property must provide for due notice of a constitutional hearing. The duty to give such hearing must be so clear that its performance is compellable by mandamus. It is not enough that the persons affected may by chance have notice, or that they may, as a matter of favor, have a hearing. The law must require due notice to them and give them the right of a hearing and a chance to be heard. (McGehee on Due Process of Law, p. 82, and cases there cited; Stuart v. Palmer, 74 N. Y. 183 ; Philadelphia v. Miller, 49 Pa. St. 440.) In the case last above cited it is said: “Notice, or at least the means of knowledge, is an essential element of every just proceeding which affects rights of persons or property.”
It seems to be trifling with constitutional liberty to hold that the petitioner in this case obtained all hearing that he was entitled to when the warden of the penitentiary notitied the board of pardons that he had re-committed petitioner to the penitentiary for a violation of his parole. To call such a proceeding a hearing, or as anything in the nature of a hearing, such as the constitution requires, seems to me to be a misnomer. In my opinion it would be more reasonable to hold that the petitioner was not entitled, to any hearing of any kind than to hold that he is entitled to a hearing and remand him to the penitentiary when he has had no semblance of a hearing.
There is another reason why petitioner’s imprisonment is illegal. He was arrested on a warrant issued by E. J. Murphy, warden of the penitentiary, without any affidavit or complaint made under oath. Section 6 of the bill of rights provides that “no warrant shall issue without prob- , able cause, supported by affidavit, particularly describing the place to be searched, and the persons or things to be seized.” If it be conceded that the paroled prisoner is entitled to his liberty under the constitution while on parole, then it follows that he cannot be deprived of that liberty without due process of law or arrested and confined in prison under a warrant issued by the warden without an affidavit showing prima facie that he has violated his parole contract. If the power granted the warden under the Parole law is abused or used arbitrarily the prisoner has no redress. It is a dangerous thing to the liberty of the people to grant the power to anyone to issue warrants without anyone becoming liable to a prosecution for perjury in case the warrants should be improperly issued. An affidavit upon which perjury can be assigned should precede the issuance of a warrant upon which a person is to be arrested and restrained of his liberty. I think the petitioner is entitled to be discharged.