The opinion
Dissenting Opinion.
Howard, C. J.
(Dissenting.) — I am unable to concur in the conclusion that the Indiana Reformatory Act, as interpreted by the majority of the court, is constitutional. That act, as construed by the court, requires that the appellant, for the crime of burglary, should receive an indeterminate sentence of imprisonment, not to be for less than two years nor more than fourteen years. The best defense that can be made of the legality of such a sentence is that it is, in effect, a sentence of imprisonment for fourteen years. Yet it must be plain that the legislature did not intend this result, else it would have said so, and omit *625 ted all reference to the minimum time. The clear meaning of the act, if indeed, it does provide for an indeterminate sentence, is, rather, that the sentence should be for some time more than two years, and less than fourteen years, such time to be finally determined by the board of managers of the reformatory. That, however, would be to substitute for the judgment of the court trying the case the judgment of the administrative officers appointed to carry out the sentence. Such an interpretation of the act makes it a plain invasion of the constitutional functions of the judiciary. If, on the other hand, it should be conceded that the sentence is, in effect, a sentence of imprisonment for the maximum period of fourteen years, then we have the anomaly that there is no gradation in the crime of burglary; that the ragged boy who lifts a latch and steals a loaf of bread for his suffering mother, brothers, and sisters is to receive his fourteen years, quite the same as the crime-hardened reprobate who breaks into a banking house and carries off the life earnings of aged and helpless depositors. Such a construction, however, cannot be in harmony with the provisions of the constituion, that “All penalties shall be proportioned to the nature of the offense.”
As I look upon it, the law may be upheld by an obvious construction, and one in harmony with every provision of the constitution; and, if this can be done, it is, of course, our duty to give to the act such construction. The act provides for confinement in the reformatory “for a term not less than the minimum time prescribed by the statutes of this State, as a punishment for such offense, and not more than the maximum time prescribed by such statutes therefor.” Is it not a reasonable interpretation of these words to *626 say that their meaning is, that the court, after hearing and considering all the facts and circumstances, should fix a definite term of imprisonment, somewhere between the minimum and maximum times prescribed by the statutes ? /That would be quite in harmony with the practice under the law as it was formerly understood. The statute in relation to burglary prescribes as a part of the punishment that the convicted person “shall be imprisoned in the state prison not more than fourteen years nor less than two years.” No one ever knew a court, under this statute, to say to a defendant, “You have been convicted of burglary, and you will be imprisoned therefor not more than fourteen years nor less than two years.” It was, on the contrary, well understood that, while the statute made the punishment indeterminate, between certain limits, the court, in its sentence, must name a determinate term of imprisonment within such limits, so that, in every case, as required by the constitution, the penalty “shall be proportioned to the nature of the offense.” So interpreted, the act of 1897 would be in harmony with the constitution, and would also serve to accomplish all the beneficial designs intended by the-legislature. As interpreted by the court, the act seems to me to make a mere figure-head of the trial judge, and to transfer the constitutional discretion and judgment of the judiciary to officers of the administrative department of the government; punishing also the culprit, not according to the degree of the offense of which he is convicted, but according to his conduct in the reformatory and the probability of his receiving remunerative employment after he gets out.