The opinion
ARNOLD, Associate Justice
(dissenting).
I concur in the result only. It is clear that the petition for mandamus should be dismissed because it is an attempt to compel the Parole Board to exercise its discretionary power over its own warrants. This court has no power to review the action of the Parole Board. The real issue in this case is the validity of appellant’s confinement at Steilacoom, Washington. That issue can only be tried in a habeas corpus proceeding against the persons who are actually confining, him.
But the opinion of the majority considers and decides the substantive issue of the legality of the confinement of a prisoner in spite of the fact that the officers who are detaining him are beyond the jurisdiction of this court. In doing so it establishes the novel precedent that a petition for mandamus can be used as a substitute for the traditional writ of habeas corpus. Such a precedent is not only unsupported by authority; it also sows the seeds for future procedural confusion. And further, on the issue of substantive law which the opinion of the majority purports to decide in spite of lack of jurisdiction, it reaches the palpably unjust conclusion that appellant must serve almost two years longer than the sentencing judge intended. I feel so strongly that the views •of the majority combine an error in assuming jurisdiction with erroneous obiter dicta that I dissent from them with some •emphasis.
I take up first the jurisdictional point. We have before us, as appellant, a prisoner seeking release from confinement by the warden of a Federal prison at Steilacoom, Washington, thousands of miles from the> jurisdiction of this court. The majority opinion assumes (perhaps correctly, though it does not appear from the record) that the action of the warden at Steilacoom will be governed by instructions or advice from the Parole Board here. The opinion further assumes that if the Parole Board is ordered to serve its warrant on the prisoner it will be put in a position, the logic of which will impel it to instruct the warden to release him. On this assumption the substantive issue of the validity of appellant’s imprisonment is considered and decided against him by the majority. The only basis for the attempt of the majority to decide this issue in a mandamus proceeding brought in the District of Columbia, in the absence of the necessary parties to a writ of habeas corpus, is the fact that the Parole Board has been served here.
This assumption of jurisdiction is clearly erroneous. In the first place, this court has no statutory power to review the action of the Parole Board in issuing or withholding parole violator’s warrants. 1 In the second place, a writ of mandamus against persons advising or instructing a warden to retain a prisoner cannot be used as a substitute for a writ of habeas corpus in determining the legality of the imprisonment. I am not raising a mere question -of form. If legality of confinement can be determined by mandamus of government officials who issue instructions to prison wardens, then all such cases arising from the revocation of parole may be shifted to Washington, D. C, because the Parole Board can be served there. In addition, all other cases of alleged invalid Federal imprisonment can be shifted to this court, because the Attorney General, whose instructions are followed by Federal prison wardens, can also be served here.” This court cannot assume such a roving and footloose jurisdiction over the custody of all Federal prisoners. 2
Since this court lacks jurisdiction to determine the issue of the legality of the imprisonment in this case, it follows that the observations of the majority on that issue are obiter dicta. I emphasize this because *694 it is important to make it clear that if a court of competent jurisdiction is asked to pass on the issues in a future habeas corpus proceeding, it will not be bound by the dicta of the majority.
I will now discuss the substantive issue which these obiter dicta purport to determine. This requires a brief restatement of the facts. In October, 1939, while appellant was at liberty on parole from the Federal prison at Leavenworth, he was convicted of a second offense in the United States District Court for the Eastern District of Texas. His unexpired sentence at Leavenworth had approximately two years to run. Taking this fact into consideration Judge Allred, who tried the case, gave him a four year sentence with the condition that it should run concurrently with his unexpired term in the event the Parole Board revoked his parole. The intention of the sentencing judge is plain beyond dispute. On the one hand he wished to forestall any decision of the Parole Board which would allow appellant his liberty at the end of two years. On the other hand he wanted to make it certain that appellant would serve no more than four years in all-, including his unexpired term. This sentence was beyond the power of Judge Allred to impose. 3
4 It was an attempt to control the discretion of the Parole Board in two ways: (1) by preventing them from freeing the prisoner at the end of two years; and (2) by preventing them from compelling the prisoner to serve a total of six years.
Appellant was taken to the Federal prison at Steilacoom, Washington. The Parole Board issued its warrant for violation of parole and lodged it with the warden at Steilacoom, with instructions that it be served after the expiration of the sentence imposed by Judge Allred.
It is apparent from these facts that appellant’s service of his unexpired term for violation of parole could not begin until the sentence for his second offense had terminated. It is equally apparent that after the termination of Judge Allred’s sentence the only justification for holding him in prison was the unexpired term on account of which the Parole Board had issued its warrant. As the Supreme Court has said: “The prisoner is detained, not by virtue of the warrant of commitment, but on account of the judgment and sentence.”*
The crucial question, therefore, is— When did Judge Allred’s sentence terminate? The Parole Board and warden, construed it as an unconditional four year term and delayed service of the parole violator’s warrant on that theory. If this construction of the sentence is not a proper one the imprisonment which the appellant served after the actual termination of Judge Allred’s sentence must be credited on appellant’s unexpired term. The reason is that in such a case the unexpired sentence would be the only justification for that imprisonment. The suggestion that imprisonment in the interim between the expiration of Judge Allred’s sentence and the service of a warrant by the Parole Board would be attributable to no sentence whatever is the sort of perversion of justice which this Court in a different situation repudiated in the following language: “The Government’s brief suggests, in the vein of The Mikado, that because the first sentence was void appellant ‘has served no sentence but has merely spent time in the penitentiary;’ that since he should not have been imprisoned as he was, he was not imprisoned at all. The brief deduces the corollary that his non-existent punishment cannot possibly be ‘increased.’ As other corollaries it might be suggested that he is liable in quasi-contract for the value of his board and lodging, and criminally liable for obtaining them by false pretenses. We cannot take this optimistic view.” 5
For these reasons the validity of appellant’s confinement depends upon construing Judge Allred’s sentence as an unconditional four year term. The majority opinion so construes it, using a simple method which may be designated as interpretation by subtraction. It is first decided that the condition in the sentence that it should run concurrently with the unexpired term must be subtracted because it is void. That leaves an unconditional sentence as a remainder. After arriving at an unconditional four year term by this method the majority opinion regretfully concludes “Tippitt (the appellant) is very clearly *695 serving a sentence which Judge Allred did not intend that Tippitt should serve.” This result, says the opinion, is a “tragic fact for Tippitt.”
I had heretofore thought that such tragedies were impossible in law because no written instrument, be it a contract, will, decree or judgment, can properly be enforced contrary to its admitted intention and purposes. 6 Suppose that in the second paragraph of a contract to sell an automobile there is a written condition that the automobile must be new and equipped with new tires. Assume the condition to be void because of wartime regulations. If the method of interpretation by subtraction adopted by the majority were used the buyer would be compelled to pay the contract price for a second-hand automobile. Neither can a judgment be construed in this fashion. Liberty is as important as property, and it can hardly be argued that there is a special rule of interpretation for criminal sentences which permits the court to enforce them against their plain intent. 7
There can be no question that in this case the condition is so intertwined with and so much a part of the sentence that it cannot be separated without in effect resentencing the prisoner to a different term than the one actually imposed on him. Therefore, if the condition fails for want of authority the portion of the sentence which is subject to the condition must fail for the same reason. Hence, if the issue were properly before us we would be compelled to hold that so much of Judge All-red’s sentence as was intended to run concurrently with the confinement for violation of parole was void. 8
What is the result? Where a sentence is given in excess of the power of the court the better view is that only the excess is void. 9 Therefore, if we interpret Judge Allred’s sentence to mean what it says, the part affected by the illegal condition is void and the legal term is approximately two years. 10 When that term has expired, service of the sentence for revocation of parole must be held to begin, since the only justification for confinement of the *696 prisoner is the parole violator warrant lodged with the warden.
The result reached by the majority is made the more unnecessary because it is clear that the District Court in Texas still has the power to resentence the prisoner by substituting a valid sentence for the void one. It may even increase that sentence without running counter to the rule against double jeopardy. But that power is in that court. 11 It is not the function of this court to resentence the appellant.
The opinion closes with a message of “real sympathy for Tippitt, the victim of good intentions expressed all too unfortunately.” The court is apparently sorry that it must make appellant vicariously atone for the mistake of the Texas court. The opinion suggests that perhaps the Board wished to make a test case “thus compelling Tippitt to assume the temporary (but painful) role of a juristic guinea-pig for jurisdictional experimentation.” If all this be true, it is suggested that such unpleasant facts of judicial life be kept from our prisoners. They do not fit into a picture of justice under law. Some day the prisoner must be released and asked to respect the law in the future.
The opinion concludes by advising the prisoner that he may perhaps escape the admittedly unjust result imposed by the obiter dicta of the majority by an appeal for executive clemency. But I had always thought the courts rather than the executive are the guardians of liberty against arbitrary judicial action. It is true that there are cases where courts have failed in that function. But these are not the brighter pages of the law. Rather are they examples where the courts have fallen into the vice ordinarily attributed to “bureaucrats”, allowing red tape to bind them to an absurd conclusion. In this case there is no procedural red tape to unwind. All we need do is to construe Judge Allred’s sentence according to its plain intention.
I, therefore, concur that the petition should be dismissed for want of jurisdiction in the hope that if this case comes before a court with jurisdiction to try the issue of the validity of appellant’s confinement, that issue will not be unduly obscured by the obiter dicta against which this dissenting opinion is written.
“The Parole Board and its members have been granted sole authority to issue a warrant for the arrest and return to custody of a prisoner who violates his parole.” Zerbst v. Kidwell, 1938, 304 U.S. 359, 361 , 58 S.Ct. 872, 873 , 82 L.Ed. 1399 , 116 A.L.R. 808 .
“* * * The party, on whose behalf the petition has been presented, is not an inhabitant of the District of Columbia; he was not arrested or committed, and has never been confined, within its limits. Jurisdiction to issue the writ on his behalf, then, depends upon the single circumstance that the Secretary of the Navy is alleged to have the final control over his imprisonment. It is to this broad claim of jurisdiction that we deny our assent.” McGowan v. Moody, 1903, 22 App.D.C. 148, 163 .
Zerbst v. Kidwell, supra, note 1 .
Hill v. United States ex rel. Wampler, 1936, 298 U.S. 460, 465 , 56 S.Ct. 760, 762 , 80 L.Ed. 1283 .
King v. United States, 1938, 69 App.D.C. 10, 12-13 , 98 F.2d 291, 293 .
“In construing the provisions of a judgment the usual canons of construction should be applied.” I Freeman on Judgments, § 76, p. 132 (5th Ed., 1925).
“A sentence must be construed the same as any other judgment and the usual canons of construction should be applied.” Fredericks v. Snook, 5 Cir., 1925, 8 F.2d 966, 967 .
“When the jury have rendered their verdict, the court has to pronounce the proper judgment upon such verdict — and the law, in prescribing the punishment, either as to the extent, or the mode, or the place of it, should be followed. If the court is authorized to impose imprisonment, and it exceeds the time prescribed by law, the judgment is void for the excess. If the law prescribes a place of imprisonment, the court cannot direct a different place not authorized; it cannot direct imprisonment in a penitentiary when the law assigns that institution for imprisonment under judgments of a different character. If the case be a capital one, and the punishment be death, it must be inflicted in the form prescribed by law. Although life is to be extinguished, it cannot be by any other mode. The proposition put forward by counsel that if the court has authority to inflict the punishment prescribed, its action is not void, though it pursues any form or mode which may commend itself to its discretion, is certainly not to be tolerated.” In re Bonner, 1894, 151 U.S. 242, 258 , 14 S.Ct. 323, 326 , 38 L.Ed. 149 .
“There has been a great deal said and written, in many cases with embarrassing looseness of expression, as to the jurisdiction of the courts in criminal eases. From a somewhat extended examination of the authorities we will venture to state some rule applicable to all of them, by which the jurisdiction as to any particular judgment of the court in such cases may be determined. It is plain that such court has jurisdiction to render a particular judgment only when the offense charged is within the class of offenses placed by the law under its jurisdiction; and when, in taking custody of the accused, and in its modes of procedure to the determination of the question of his guilt or innocence, and in rendering judgment, the court keeps within the limitations prescribed by the law, customary or statutory. When the court goes out of these limitations its action, to the extent of such excess, is void. Proceeding within these limitations, its action may be erroneous but not void.” Id., 151 U.S. 256 -257, 14 S.Ct. 325 , 38 L.Ed. 149 . See Annotation, 1932, 76 A.L.R. 468 .
The result in Hammerer v. Huff, 1939, 71 App.D.C. 246 , 110 F.2d 113 , is not inconsistent with the above statement. In that case the District Court imposed an unconditional sentence for a second offense on a prisoner at large on parole. He orally indicated that the sentence should run concurrently with the unexpired term for violation of parole. Obviously such an oral direction to the Parole Board should *696 be disregarded except perhaps as gratuitous advice. In its opinion this court was induced by stipulation of the government to incorporate the oral direction into the written sentence. However, the question which we are considering here, whether such a condition made the sentence partially void, was not argued or discussed.
Murphy v. Massachusetts, 1900, 117 U.S. 155 , 20 S.Ct. 639 , 44 L.Ed. 711 ; King v. United States, supra, note 5.