For the petitioner, Louis C. Friedman.
For the State, Walter D. Van Riper, Attorney-General, and Eugene T. Urbaniak, Assistant Deputy Attorney-General.
Before Justice Heher, at chambers.
HEHER, J. Upon the representation that he is illegally confined in the state prison, petitioner Huyler was granted a writ of habeas corpus under R.S. 2:82-1, Et seq.
The return made by the principal keeper of the prison sets forth that petitioner entered the prison on January 3d, 1940, under separate sentences on two convictions in the Passaic Quarter Sessions for "breaking, entering, larceny and receiving," each for the maximum term of five years and the minimum term of three years, to run consecutively, or a sentence in the aggregate of six to ten years; that this was petitioner's "third sentence" to the state prison, and he is therefore a "third offender" within the intendment of section 30:4-106.2, and ineligible for parole until he shall have served three-quarters of the current maximum sentence; that petitioner "has been allowed commutation time of 648 days and work time of 236 days on his third sentence which establishes the minimum release date of January 30th, 1945, * * * computed by deducting the commutation time and work time from July 3d, 1947, which is the date upon which three-quarters of the maximum sentence would normally expire;" that as a third offender, petitioner "is now held in confinement and is presently being required to serve a period of 1,149 days, which represents commutation time allowed him on a previous second sentence to the state prison;" that on April 5th,
1929, he was sentenced to the state prison for the term of twelve years on a conviction for "assault with intent to kill" in the Passaic Quarter Sessions, and was "released" on September 6th, 1937; and that on November 16th, 1923, he was sentenced to the prison for the maximum term of seven years and the minimum term of four years on a conviction for "breaking, entering and larceny" in the Morris Quarter Sessions, and was released on December 21st, 1927. The return has not been traversed by the prisoner. He maintains that his continued confinement is in violation of section 30:4-142, and he is therefore illegally restrained of his liberty.
The question is one of statutory construction. Is the prisoner now being detained in excess of the sentence prescribed by law?
It is a primary canon of construction that the provisions of statutes in pari materia shall be reconciled and harmonized, if possible, into a consistent, homogeneous whole. Crater v. County of Somerset, 123 N.J.L. 407; Broderick v. Abrams, 116 Id. 40. This rule is in aid of the discovery of the legislative intent, and its application is circumscribed accordingly. The effectuation of the legislative will is the end to be served in the exposition of statutes; and this of necessity calls for an accommodation of apparent conflicts to advance the essential statutory policy, giving to each clause a meaning not in opposition to the related provisions, if that is reasonably consonant with the terms employed to voice the legislative design. The literal import of the terms ofttimes gives way to the outstanding legislative purpose, considering the particular statute in relation to statutes in pari materia. Implied repealers are not favored in the law; the intention to effect the repeal of an earlier statute must be free from reasonable doubt. Hartman v. Board of Chosen Freeholders, 127 Id. 170. The earlier statute is modified by a later inconsistent enactment only to the extent of the repugnancy.
It is basic in the statutory scheme here that a third offender shall be ineligible for parole by the prison board of managers unless he shall have served "at least" three-fourths of the maximum sentence imposed. Section 30:4-106.2 Section 30:4-106.1 authorizes the managers to release a prisoner on
parole upon the expiration of the minimum term, except as provided in section 30:4-106.2. The source of section 30:4-106.2 is chapter 194 of the Laws of 1936, as amended by chapter 38 of the Laws of 1937. Pamph. L. 1936, p. 474; Pamph. L. 1937, p. 80. It was the latest of the provisions under review, prior to their incorporation in the Revision. And section 2:103-9 provides that a third offender shall serve the sentence imposed for such third offense, without "commutation * * * on the third sentence," and shall also serve "the commutation time earned and allowed under his second sentence." It derives from chapter 218 of the Laws of 1927. Pamph. L., p. 413. These provisions are not incongruous, when taken and compared together. In such circumstances, the prisoner is not entitled to commutation of the third sentence and, moreover, he is ...