On rule to show cause why a writ of mandamus should not issue.
For the relator, Harry Heher.
For the respondent, William A. Stevens, attorney-general, and Theodore Backes, second assistant attorney-general.
Before Justices Trenchard, Lloyd and Case.
The opinion of the court was delivered by
CASE, J. The relator, John O. Lindsley, on June 26th, 1917, entered a plea of "nolo contendere" to an indictment for a murder committed on June 9th, 1917, and received a sentence of "life imprisonment in the state prison." It is stipulated that "on July 1st, 1928, the said relator had served in said prison, by virtue of said sentence and judgment, a term of fifteen years less earned commutation thereof," and that at a meeting of the board of managers of the state prison held in the month of December, 1928, the principal keeper of the state prison presented to the board of managers for its consideration the matter of the parole of the relator under the act which vested in said board the power to parole prisoners confined in state prison under the Indeterminate Sentence act, and that thereupon the said board, in accordance with an opinion of the attorney-general, refused to consider the case of the relator for parole and has ever since refused and still refuses to consider the matter. The relator, submitting that he is entitled of right to have his application considered and acted upon by the board of managers, caused a rule to issue directing the respondent to show
cause why a peremptory writ of mandamus should not issue commanding and enjoining the board to consider and act upon his application for parole. The matter is now up on the return of that rule. The only facts before us aside from those already stated are that the relator, having been conveyed to the state prison on July 13th, 1917, has since been and is now incarcerated therein, that the relator was brought before the board for parole consideration, in accordance with the "laws of 1918," at the said meeting held in December, 1928, and the opinion of the attorney-general upon which the board acted is set forth. The opinion appears to have been given in December, 1927, and was not rendered with respect to this particular case. Without passing on the legal sufficiency of that opinion, we proceed to consider whether it clearly appears that the relator, at the time of presenting his application for parole, was entitled as of right to have the same considered and acted upon.
The relator rests his case on the act entitled "A supplement to an act entitled 'An act relating to courts having criminal jurisdiction and regulating proceedings in criminal cases (Revision of 1898),' approved June fourteenth, one thousand eight hundred and ninety-eight," being chapter 191 of the laws of 1911 and generally known as the Indeterminate Sentence act, and upon the act originally entitled "An act concerning the charitable, correctional, reformatory and penal institutions, boards and commissions, located and conducted in this state, which are supported in whole or in part from county, municipal or state funds," approved February 28th, 1918, being chapter 147 of the laws of 1918 and generally known as the Institutions and Agencies act, and upon the several supplements to and amendments of those acts.
The Indeterminate Sentence act was amended by chapter 214 (Pamph. L. 1914), to provide in the second paragraph that "every such sentence to confinement * * * shall set forth a maximum term * * * likewise a minimum term * * * provided further every prisoner who * * * if sentenced for the term of his natural life, has served not less than fifteen years, may be released on parole as herein
provided." Such part of section 2 as related to the release on parole of a person under life sentence after he had served not less than fifteen years was repealed by chapter 50 (Pamph. L. 1922); and the entire statute was repealed by chapter 214 of the laws of 1926, with this proviso, however: "Any person convicted of an offense which was committed prior to the day on which this act shall take effect shall be punished as if this act had not been passed and any such person shall retain and have all the rights and privileges conferred by the acts herein repealed." The relator contends that either of these repealers, if held to deprive him of his alleged rights under the statute, is, as to him, ex post facto. We do not, however, feel impelled to consider this contention as the relator had not, either when he applied for parole or when he made application for the writ of mandamus, and has not yet, served that period of time, namely, fifteen years, which would entitle him, under the statute, to be considered for parole.
It is true that the Institutions and Agencies act contained in section 205, until the words were amended out by chapter 196 of the laws of 1927, the following: "In case of a life sentence the minimum term shall be taken to be fifteen years," and in section 306 certain deductions from the minimum term for good behavior and the like; but we do not read these words into the Indeterminate Sentence act; neither do we read the Indeterminate Sentence act into the above-mentioned provision of the Institutions and Agencies act. We do not consider that the statutes are sufficiently in pari materia as to relator to justify this method of construction. They represent different schemes and different legislative conceptions. A marked distinction between them is that the former is impressed with a mandatory aspect ...