In re Carroll

137 P. 975, 91 Kan. 395, 1914 Kan. LEXIS 43

Opinions

The opinion of the court was delivered by

Johnston, C. J.:

The petitioners, who are confined in the city jail of Wichita, ask to be released in separate proceedings in habeas corpus brought by them. At different times each was convicted of the violation of an ordinance which provided for prohibiting and punishing the sale of intoxicating liquors and the maintenance of a liquor nuisance in the city. The penalty adjudged in each case was a fine of $500 and imprisonment for six months in the city jail. After-wards the petitioners applied to the police judge for paroles under chapter 116 of the Laws of 1909 and in the application each promised, substantially, that he would not sell or give away intoxicating liquors or keep any on his person or in any place under his control, and would not violate the ordinances of the city or the laws of the state. He further promised that he would report to a certain person on Monday evening of each week for a period of two years from the time of the parole. Upon the application and the conditions-named the police judge, on January 2, 1913, granted a parole to Carroll under which he was at liberty until" May 19, 1913. At that time a complaint was made that he had violated his parole, and in a hearing-wherein the petitioner and his counsel were present, and upon the evidence produced, the police court found that he had violated the term of his parole and ordered that he be recommitted. It was accordingly adjudged that Carroll should serve out the sentence and pay the fine imposed the same as if no parole had ever been, granted. A parole was likewise granted to Welsh on. January 2, 1913", upon similar conditions, and it was-revoked by the police court upon a hearing duly had upon September 16,1913. As in the Carroll case, Welsh was held to have violated his parole and was adjudged to serve his sentence and pay his fine as though no-parole had been granted. The petitioners were re committed to the city jail and were confined there when these proceedings were brought.

In behalf of Carroll it is contended that Clyde Souders, who was acting as police judge and revoked the parole, was not in fact a police judge and had no authority to recommit him to jail. It appears that Wichita is a city of the first class operating under the commission form of government. On April 11, 1911, the boaxd of commissioners appointed Souders as police judge and he duly qualified and has since cohtinued to hold the office. On April 7, 1913, his term having ended, he was reappointed and again qualified by taking the oath of office and giving .a bond, and he was serving under that appointment when the order revoking the parole was made. The contention is that' Wichita had no police judge and that there was no authority in the commission to appoint one because no ordinance had been.enacted fixing the term and salary of the police judge. The statute relating to the appointment is as follows:

“The board of commissioners may appoint; by a majority vote of all the members thereof, the following officers, to wit: A city attorney, a city clerk, a city treasurer, a city auditor, a city engineer, a superintendent of streets, a superintendent of waterworks, a secretary of waterworks, a fire marshal, a chief of police, a city physician, a judge of the police court, a superintendent of public parks, a city assessor, and such assistants and other officers and servants as they may deem necessary for the best interests of the city; but no such officer shall be appointed until his term, and salary shall have been fixed by ordinance. The terms of all appointive officers shall expire with the term of office of the board appointing them: Provided, That they shall hold their respective offices until their successors are appointed and qualified: Provided, That in case of appointment to fill a vacancy, such appointee shall only serve' for the remainder of the term for which his predecessor was appointed.” (Gen. Stat. 1909, § 1304.)

' It is argued that the passage of ah ordinance fixing the term and salary of the police judge was a condition precedent to the creation of the' office by the commission. The provision that no such officer shall be appointed until' thé passage of an. ordinance fixing the term and salary applies to the Other unnamed officers provided for in the section quotéd which the board may deem necessary in addition to those specifically enumerated.' The offices of city clerk, city treasurer, city assessor, police judge and the others that are definitely designated in the act were 'created by the legislature itseif. ' They were deemed by the legislature to be absolutely necessary for the govérnment of the city and hence were directly created. "Recognizing that assistants and other subordinate officers and servants might become necessary the board was authorized to appoint them from time to time as they were needed, with the limitation that they should not be appointed until their terms and salaries had been fixed by an ordinance. This has been the interpretation placed upon the section, and it was so recognized in Jagger v. Green, 90 Kan. 153, 133 Pac. 174. Whether a subordinate officer appointed by the commissioners without the passage of an ordinance fixing his term and salary, would have any validity or whether having a potential existence he would not be a de facto officer and his acts not open to question in a collateral proceeding we need'not determine. The office of police judge was created by the- legislature and as to its existence the board had no discretion. It may- also be added that as to the police judge there was an ordinance fixing his salary, and so far as the term is concerned the statute provides that his term as well as that of all ot'hfer appointive officers shall expire with the term of the board appointing them. (Laws 1907, ch. 114, § 88, Gen, Stat. 1909, § 1304; Jagger v. Green, supra.)

When and by whom may a parole be revoked, is the next question presented. The legislature of 1909 passed an act empowering the judge of the policé court in cities of thé first and second cláss to parole persons convicted of the violation óf' ordiiiances (Laws 1909, ch. 116), and section 2 of the act is as follows:

“The judge of the court named in section 1 of this act, subject to the' restriction's hereinafter provided, may, in his discretion, when satisfied that any person against whom a fine has .been assessed or a jail sentence imposed by the court, or. any person actually confined in the..city jail under the judgment.of said court, will if permitted to"go at large not again violate the law or ordinance, parole such person and permit him to go at large, upon such conditions and under such restrictions.as the judge granting the parole shall see fit to impose. .Such judge may at any time, without, notice, to such person, terminate such parole, by. simply directing execution to issue on the judgment; or, in case the person shall have been actually confined :ifi jail, the parole may be terminated' by directing' the chief or captain of police or any police officer to retake such person .under the commitment already in • his hands. After a parole has been terminated, as above, provided, the judge may, in his discretion, grant a second parolé, but no more than two parolés shall' be granted' the same'person under the same judgment of conviction; If a'parole shall" be . terminated-the time such person shall have -been-at large on parole-shall not be deducted.from .the. time he shall.be required to serve, but the full amount of the fine sháíl fe collected or the full time in jail be served, the same as if no parole had been granted.”

In section 3 it is made unlawful for an officer to release from custody one who has been convicted unless such person has been paroled as . the. act provides or pardoned by the mayor. . Section 4 provides, that any one who commits an offense, against the laws of the state or the ordinances of. the. city when under a parole may be arrested and tried in the same manner as if he had not been convicted and paroled. . .Section .5 provides: ’. . ...... .-...... ...

- “Thg action of. the. judge in ref using,. granting,. or terminating a parole shall not be subject to review by an appellate court.”

It is argued that the expression “such judge,” in section 2, means the judge granting the parole and that only the one then in office can terminate the parole, and further, that he can not do so in the succeeding term even should he be reappointed and remain in office. In the preceding provisions of the statute the legislature had spoken of the judge of the police court, and the phrase “such judge” manifestly means the judge of that court and not the individual who had been holding the office at some earlier time.

But is there no limit to the period of a parole ? Can it have been the purpose of the legislature that a- police judge who, having imposed a sentence of imprisonment for ten days, can issue a parole upon the condition that the paroled person shall be under surveillance for ten years, or even longer, and subject to be recommitted at any time for a violation of the parole? It is true the statute provides that the parole shall be granted upon such conditions as the police judge may see fit to impose, but the view of the court is that it was not the legislative intent that the parole period might be indefinitely extended. A limit is fixed in the act authorizing the district courts to parole persons convicted of violating the criminal laws of the state, and this to some extent indicates the policy of the state respecting the absolute discharge of paroled persons. Although the statute relating to paroles granted by police judges does not expressly declare a limit, one is doubtless contemplated, and since provision is made for imprisonment for a fixed time, that should be regarded as the limit of time for the termination of a parole and the absolute discharge of the paroled person. It is argued that a parole is a matter of grace and discretion, but could it be regarded as a gracious act to hold over the head of a convicted person the unexecuted sentence for a lifetime with the uncertainty that he might be recommitted to prison without notice at any time when the police judge chose to order it ? When the time'for imprisonment is adjudged, the expiration of that period, whether the person is on parole or in jail, ends all punishment and satisfies the sentence. While a parole may be granted on such conditions as the judge may prescribe, they must be such as may be performed within the term for which the prisoner has been sentenced. The conditions which a judge may lawfully impose in granting a parole are to be determined from the statute itself, and being a matter of interpretation of our own statute pertinent authorities are not numerous, but as having some bearing on the question involved the following cases are cited: In re Prout, 12 Idaho, 494, 86 Pac. 275, 5 L. R. A., n. s., 1064; Woodward v. Murdock, 124 Ind. 439, 24 N. E. 1047; Scott v. Chichester, 107 Va. 933, 60 S. E. 95, 16 L. R. A., n. s., 304; West’s Case, 111 Mass. 443; Scott Huff v. B. F. Dyer, Warden Ohio Penitentiary, 4 Ohio Cir. Ct. 595, 2 Ohio Dec. 727.

It appears that neither of the petitioners ever served any part of the prescribed terms of imprisonment prior to the granting of the paroles on January 2, 1913. Each had taken an appeal from the judgment rendered against him, to the district court, and the appeal was dismissed on his application just prior to the time he applied to the police judge for the parole. Carroll was sentenced to imprisonment in the city jail for a period of six months, and that period had not expired when the parole was terminated by the police judge. Time began to run when the parole was granted on January 2, 1913, and the parole was terminated on May 19, 1913, less than five months after the parole was granted. The order terminating the parole as to him and recommitting him to jail is held to be valid, and therefore he must be remanded. The petitioner Welsh was out on parole from January 2, 1913, until September 16, 1913, and as more than six months, the term fixed by the sentence, had expired when the parole was revoked the judge was without authority to recommit him to jail under the judgment of conviction. He will therefore be discharged.