Citation Numbers: 28 A.2d 897, 345 Pa. 581
Judges: OPINION BY MR. JUSTICE STERN, November 23, 1942:
Filed Date: 9/28/1942
Status: Precedential
Modified Date: 1/13/2023
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 States Constitution. One of the best expressions on the subject is that of Chief Justice GIBSON in *Page 592 De Chastellux v. Fairchild,
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 IV, section 9,1 of *Page 593
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,
It was said, in In Re Conditional Discharge of Convicts,
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.),
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,
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 *Page 597
to prison if he violates the conditions of his release. In this regard, the Supreme Court of Utah, in State v. State Board ofCorrections,
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 our present constitution was adopted, parole, as a penological *Page 598 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,
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 V, section 1,3 of our Constitution. While the legislature has the power to define crime and fix the punishment, *Page 600
it is nevertheless the court's exclusive province to hear and adjudge under the law so enacted: Com. v. McKenty,
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 *Page 601 sound in law or logic. The 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 public 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, inCommonwealth 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,
I do agree with the majority, however, that section 21 of the Act (which provides that the Board of Parole may *Page 602 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 attempt 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 *Page 603 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. *Page 604
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.
"In Miller v. State,
"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."
Com. v. Sweeney , 281 Pa. 550 ( 1924 )
Commonwealth v. Ashe , 320 Pa. 341 ( 1935 )
Anderson v. Corall , 44 S. Ct. 43 ( 1923 )
Commonwealth Ex Rel. Lycett v. Ashe, Warden , 145 Pa. Super. 26 ( 1941 )
United States Ex Rel. Bogish v. Tees , 211 F.2d 69 ( 1954 )
Pa Prison Society v. Cortes , 622 F.3d 215 ( 2010 )
john-m-geraghty-individually-and-on-behalf-of-a-class-in-77-1679-v , 579 F.2d 238 ( 1978 )
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In Re Casella , 313 Mich. 393 ( 1946 )
Rhyne v. K-Mart Corp. , 358 N.C. 160 ( 2004 )
Jernigan v. State , 279 N.C. 556 ( 1971 )
Commonwealth v. Cannon , 386 Pa. 62 ( 1956 )
Commonwealth v. Harris , 423 Pa. Super. 190 ( 1993 )
Commonwealth v. Brittingham , 442 Pa. 241 ( 1971 )
Com. v. JCK , 438 Pa. Super. 1 ( 1994 )
Martin v. Pennsylvania Board of Probation & Parole , 576 Pa. 588 ( 2003 )
Winklespecht v. Pennsylvania Board of Probation & Parole , 571 Pa. 685 ( 2002 )
Parker v. Children's Hospital of Phila. , 483 Pa. 106 ( 1978 )
Armbruster v. Pennsylvania Board of Probation & Parole , 919 A.2d 348 ( 2007 )
Singleton v. Shafer , 313 F. Supp. 1094 ( 1970 )
Mickens-Thomas v. Vaughn , 217 F. Supp. 2d 570 ( 2002 )
Commonwealth Ex Rel. Green v. Keenan , 176 Pa. Super. 103 ( 1954 )
Commonwealth Ex Rel. Davidson v. Maroney , 177 Pa. Super. 82 ( 1955 )