Fehl v. Martin

In Banc. Suit by Earl H. Fehl against Charles H. Martin, governor of Oregon, and others. From a decree dismissing the suit, plaintiff appeals.

AFFIRMED. REHEARING DENIED. On August 15, 1933, Earl H. Fehl was committed to the Oregon state penitentiary under an indeterminate sentence of four years. Subsequently and on May 29, 1936, after having served two years, nine months and 14 days, he was paroled by the governor under certain conditions stated in the parole. He now brings these proceedings, claiming that, under section 13-1906, Oregon Code 1930, his term had expired and he was entitled to a final discharge.

That section reads as follows:

"Any person sentenced to serve an indeterminate sentence in the penitentiary may be paroled by the governor upon his own motion, or upon the recommendation of the parole board, in accordance with the provisions of this section set forth, to wit:

"Any person under the age of twenty years at the time of conviction and sentence, who has not previously been convicted of a crime, may be paroled by the governor upon his own motion, or upon the recommendation of the parole board at any time after said person is committed to the penitentiary.

"Any person over the age of twenty years at the time of conviction and sentence who has not been previously convicted of a crime may be paroled by the governor upon his own motion, or upon recommendation of the parole board, at any time after such person has served one-half of the maximum term for which such person has been sentenced; provided, however, that a record of good conduct, industry and evidence of general reformation certified to by the warden of the penitentiary shall entitle such person to a deduction of five days for each month of said one-half of the maximum sentence, when said one-half of maximum sentence is one year or less, and a deduction of ten days for each month of such period beyond one year. The effect of this ``good time' deduction is intended to be as follows: When the one-half period of the maximum sentence is six months, a parole may be granted when five months have been served; when the one-half period is twelve months a parole may be granted when ten months have been served; when the one-half period is eighteen months, a parole may be granted when twelve months have been served; when the one-half period is two years a parole may be granted when sixteen months have been served, and so on proportionately for any term."

It seems obvious from a mere reading of the section, that that section was intended to apply to the granting of paroles and was not intended by the legislature, where no parole was granted, to shorten the term for which a prisoner had been sentenced. That the legislature had the power to provide that, because of the good behavior of a prisoner in the penitentiary, his sentence should be shortened and to determine to what extent it should be shortened is not questioned. If such had been the intention of the legislature, it is reasonable to infer that the legislature would have said so in some plain and unmistakable manner without any reference to the granting of paroles and, if the act has the meaning now contended for by the plaintiff, it seems plain that it contains two subjects of legislation and not one subject and matters properly connected therewith, as is required by section 20 of Article IV of the state constitution, and, hence, is in violation thereof. That an act shortening the time of a sentence which has already been passed and an act authorizing the governor of the state to parole a prisoner while serving such sentence are two entirely distinct matters having no connection with each other is clear. One is not germane to the other, nor is there any proper connection between the two, and nothing is said in the title of the act or in the title to any of the amendatory acts in respect to the shortening of the terms of the sentences of prisoners in the penitentiary for good behavior or otherwise. That subject, therefore, is not expressed in the title of any of said acts.

While it is true that the legislative assembly may, by a general statute, fix the terms of imprisonment of persons convicted of crime and may also, by a general law applicable to all prisoners alike, shorten the term for which they have previously been sentenced because of their good behavior during confinement, yet the legislature, except in treason cases, is, under our constitution, wholly devoid of any pardoning power.

Section 14 of Article V of the state constitution provides:

"He [the governor] shall have power to grant reprieves, commutations, and pardons, after conviction, for all offenses except treason, subject to such regulations as may be provided by law. Upon conviction for treason, he shall have power to suspend the execution of the sentence until the case shall be reported to the legislative assembly, at its next meeting, when the legislative assembly shall either grant a pardon, commute the sentence, direct the execution of the sentence, or grant a further reprieve. He shall have power to remit fines and forfeitures, under such regulations as may be prescribed by law; and shall report to the legislative assembly, at its next meeting, each case of reprieve, commutation, or pardon granted, and the reasons for granting the same; and also the names of all persons in whose favor remission of fines and forfeitures shall have been made, and the several amounts remitted."

It will thus be seen from a mere reading of this provision of the constitution that the whole power to grant reprieves, commutations and pardons after conviction for all offenses except treason, subject to such regulations as may be provided by law, is committed to the governor. Under the statute above referred to the governor is vested with the exclusive authority to grant paroles. At the time our constitution was adopted, the granting of a parole to a person who had been convicted of a crime and was being imprisoned in the penitentiary was unknown to our law. The word "parole" at that time meant an agreement of persons who had been taken prisoners by an enemy that they will not again take up arms against those who captured them, either for a limited time or during the continuance of the war. See Bouvier's Law Dict. According to that author, statutes authorizing the granting of paroles were first passed in certain of the states in 1897, and such provisions were not adopted in this state for several years thereafter.

According to Bouvier, "reprieve" is the withdrawing of a sentence for an interval of time, which operates in delay of execution, 4 Bla Com. 394. And "commutation" is a change of punishment to which a person has been condemned to one less severe. A pardon, says Bouvier, may be absolute or conditional, an absolute pardon being one which frees the criminal without any condition whatever, while a conditional pardon is one to which a condition is annexed, performance of which is necessary to the validity of the pardon.

Our statute provides for conditions to be annexed to the granting of paroles. See section 13-1910, Oregon Code 1930. It is fair to assume from the provisions of our statutes, that a parole is a conditional pardon. If that is so, the constitutional power of pardoning vested in the governor is not subject to legislative control, either to limit the effect of a pardon or to exclude from its operation any class of offenders: Ex parte Garland, 4 Wall. 333 (18 L.Ed. 366). And, therefore, no act of the legislature could take away from the governor the power to grant an absolute or a conditional pardon at any time after sentence has been pronounced.

It has been argued that a prisoner in the Oregon penitentiary ought not to be deprived of the hope of having his term of imprisonment shortened by good behavior as would result from our holding that the statute applies to the granting of paroles only and has no application generally to the shortening of the terms of imprisonment in all cases where the prisoners' conduct during their confinement has been exemplary.

Every one will agree that good conduct, when actuated by good motives, is always commendable and should be encouraged even in the case of persons convicted of crime. A modicum of common sense, however, teaches every inmate of the penitentiary that good conduct upon his part during his term of confinement is not only the best but also the only sensible course for him to pursue and, hence, good conduct of a prisoner alone is not necessarily any evidence of his fitness for a parole. The warden and other officers of the penitentiary — who come into daily contact with the prisoner and have an opportunity to judge of his true character — are the best judges of whether his character is such that he should be paroled before the expiration of his term or be compelled to serve his full sentence. The law contemplates that these officers shall exercise judgment in determining whom they shall recommend to the governor for parole and who shall be compelled to serve their entire term. Hence, that argument, if it could have any weight in the construction of a statute, must, in this case, fail since the language of the statute itself shows that it was intended to apply to the time in which a parole may be granted by the governor and was to have no application to the shortening of any term where no parole was granted.

The numerous cases where the most dastardly crimes have been committed in this and other states by persons under parole or pardoned before the expiration of their terms shows the necessity of using great care and caution in the exercise of the pardoning power. In all such cases, it is not the liberty of the criminal but the safety of the public which should first be considered.

For the reasons stated, the decree of the lower court is affirmed.

BEAN, C.J., and ROSSMAN, J., concur.

BAILEY, J., specially concurs.

KELLY, J., dissents; BELT, J., concurring in dissent.

CAMPBELL, J., not sitting.