
    The People of the State of New York ex rel. Joseph Schali, Respondent, v. George Deyo, as Warden of Clinton State Prison, Appellant.
    1. Crimes—Indeterminate Sentence—Minimum, under Section 687a, Penal Code. In applying the statute (Penal Code, § 687a) relating to the minimum of indeterminate sentences, the words “ shall not be lesi than one year ” cannot be held to be a mistake and interpreted to read “shall not he more than one year.”
    
      2. Same — Indeterminate Sentence Not Erroneous Because the Minimum of Term May Exceed Maximum After Deducting Commutation. Where the maximum of the term of a convict sentenced for a felony, while the Commutation Law of 1886 (Chap. 21) was in force, was four years and seven months and the minimum four years, the sentence is not illegal because the convict may earn commutation entitling him to his discharge before the expiration of the minimum for which he was sentenced, since he may never earn it.
    
      People ex rel. Schali v. Deyo, 103 App. Div. 126, reversed.
    (Argued April 14, 1905;
    decided May 30, 1905.)
    Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered March 23, 1905, which' reversed an order of Special Term quashing and dismissing a writ of habeas corpus.
    The facts, so far as material, are stated in the opinion.
    
      Julius M. Mcuyer, Attorney-General (James G. Grahann and Charles O. Pratt of counsel), and George Addington, District Attorney of Albany County, for appellant.
    The sentence as imposed by trial court was legal and proper. (Penal Code, § 687a.)
    
      William Travers Jerome, District Attorney of New York County (Robert C. Taylor of counsel) intervening.
    The minimum sentence is not required to be one year. (Penal Code, § 687a.) The minimum sentence is not required to expire before the period of commutation begins. (Penal Code, § 687a; People ex rel. v. Court of Sessions, 141 N. Y. 288; Riglander v. Star Co., 98 App. Div. 101; People v. Adelphi Club, 149 N. Y. 5; U. S. v. Graham, 110 U. S. 219 ; U. S. v. Finnell, 165 U. S. 236 ; People v. Lichtman, 173 N. Y. 63.) Even upon the assumption that the court did not have the power to deprive Schali of his right to commutation, his application is necessarily premature. He should have waited until the time came when his commutation began to run, and then applied, by way of habeas corpus, for release, or by way of mandamus, to compel the board to fix his commutation. (People ex rel. v. Sage, 11 App. Div. 4; People ex rel. v. Liscomb, 60 N. Y. 559; People ex rel. v. Baker, 89 N. Y. 160; People ex rel. v. Kenney, 23 App. Div. 309.)
    
      Gha/rles J. Herrick for respondent.
    The sentence imposed on Prank Schali is illegal and void. The sole authority for imposing an indeterminate sentence is found in section 687a of the Penal Code, and, according to the letter of this section, the minimum term of such a sentence may not exceed one year; hut assuming that a minimum term of more than one year is not in violation of the strict letter of the statute, still it is in violation of the spirit of the statute and of the intention of the legislature in passing it, and, therefore, of the statute itself. (Riggs v. Palmer, 115 N. Y. 509 ; Bond v. Finn, 51 Hun, 507; Smythe v. Fiske, 90 U. S. 380 ; Lionberger v. Rouse, 9 Wall. 475 ; L., etc., R. R. Co. v. U. S., 92 U. S. 742; Heydenfeldt v. D. G., etc., Co., 93 U. S. 638 ; Lau Ow Bew v. U. S., 144 U. S. 59 ; Matter of Chapman, 166 U. S. 667 ; Beley v. Naphtsly, 169 U. S. 361; Knowlton v. Moore,. 178 U. S. 77; H. T. Church v. U. S., 143 U. S. 458.) The legislature intended that the minimum term of' an indeterminate sentence, in such a case as this, should be one year, neither more nor less; and the maximum term five years, less such a period as would make it expire in other than the winter months. (L. 1887, ch. 711, §9; L. 1901, ch. 260; L. 1902, ch. 500.) As this crime was committed in January, 1903, the prisoner has the right to earn commutation of his sentence for good behavior in prison, and the minimum term of his sentence interferes with this right. (L. 1886, ch. 21; L. 1903, ch. 137; Opinion of Justices, 13 Gray, 618; People ex rel. v. Page, 11 App. Div. 4; People ex rel. v. Johnson, 44 Misc. Rep. 554; Hartung v. People, 22 N. Y. 104; Calder v. Bell, 3 Dall. 386; People v. Hayes, 140 N. Y. 491; Gillin v. Canary, 19 Misc. Rep. 594; McCartee v. Orphan Asylum, 9 Cow. 437; People v. Charbineau, 115 N. Y. 433; People v. Fitzgerald, 180 N. Y. 275.) The relator sought the proper remedy and at the proper time. (People ex rel. v. Liscomb, 
      60 N. Y. 591; People ex rel. v. Gilbert, 96 N. Y. 631; People v. Bork, 96 N. Y. 188; People ex rel. v. Kelly, 97 N. Y. 215.)
   Wernek, J..

The writ herein was issued on behalf of one Frank Schali, who is now serving a term in Dannemora state prison, under a sentence imposed after his conviction of the crime of assault in the second degree. At Special Term the writ was quashed and the prisoner remanded. The Appellate Division reversed the order entered upon that decision, reinstated the writ and directed the prison authorities to produce the prisoner in the trial court to be resentenced. The question is whether Schali was legally sentenced, and the facts involved in the inquiry are as follows: Schali, who had been indicted for the crime of robbery in the first degree, charged to have been committed on the 25th day of January, 1903, pleaded guilty to the crime of assault in the second degree, and on the 6th day of May, 1903, was sentenced to Dannemora prison for a term of not less than four years, and not to exceed four years and seven months. While Schali was serving his term under that sentence, and on September 9th, 1904, the writ herein was issued, upon a petition alleging that the sentence and commitment were illegal because, in violation of the statute, the minimum of the sentence imposed exceeded one year in duration. At Special Term it was held, as above stated, that the sentence was legal and writ was quashed. The Appellate Division did not agree with the petitioner in his contention that the minimum of Schali’s sentence should not have exceeded one year, but held that it was illegal because the minimum exceeded the term for which he could have been held under the maximum, after deducting the commutation provided for by statute. Upon that ground the writ was reinstated and the County Court was directed to resentence the prisoner.

The general subject out of which the question at bar arises is one of considerable academic interest, as is clearly shown by the learned and voluminous briefs of counsel, but its practical importance is restricted by two considerations that will necessarily limit and direct our discussion upon the questions presented. The first of these considerations is that the only claim of illegality as to Schali’s sentence set forth in the petition is that the minimum exceeds one year, and the other is that since the time when this sentence was pronounced, the law has been amended so as to obviate one of the legal incongruities with which we have to deal in the case at bar.

The crime whereof Schali stands convicted was committed on the 25th day of January, 1903. He was to be sentenced, therefore, under the law as it then stood; (People v. O’Neil, 109 N. Y. 251.) At that time the Penal Code (Sec. 687a) provided that “A person never before convicted of a crime punishable by imprisonment in a state prison, who is convicted in any court in this state of a felony, the maximum penalty for which exclusive of fines, is imprisonment for five years or less, and sentenced to a state prison, shall be sentenced thereto under an indeterminate sentence, the minimum of which shall not be less than one year. * "x" Counsel for the relator contends that the statutory direction, that in such a case the minimum of an indeterminate sentence “ shall not be less than one year,” is evidently a mistake, and that it was probably intended to read, “ shall .not be more than one year.” In support of this contention the present case is cited as one of the absurd possibilities that may arise under a literal construction of the letter of the statute. The reports of the prison commission, containing pertinent recommendations to the legislature, are also referred to as showing that the legislature must have intended to say “ more ” instead of “less” in the statute under consideration. Then the various canons of statutory construction are invoked, and altogether the relator’s counsel has built up an apparently strong argument. But the trouble with ■ it is that it lacks foundation. What is there to rest it on ? We fully agree with counsel as to the rules of statutory construction which he cites, and it is also obvious that the prison commissioners have made certain recommendations. But behind and beneath all this there is the statute, framed in language too clear for construction, and retained after the attention of successive legislatures has been called to the subject. Speculations upon the possible reasons for the continuance of such a statute could be as numerous as they would be unprofitable, and so we leave the subject with the simple suggestion that it is not our province to decide that the legislature said “ less ” when it meant to say more,” where the context does not unmistakably point to that conclusion and to no other.

We now come to the question injected into this proceeding by the decision of the learned Appellate Division. In reinstating the writ and directing the resentence of Seliali, that court held against the relator upon the contention that the sentence was invalid because its minimum exceeded one year; but it also decided that the minimum was too long because it exceeded the period to which the term would be reduced by the commutation that could be earned by the prisoner. This feature of the case, like the one first discussed, presents a wide field for ¿cademimwriting, but recent radical changes in the law, as well as economy of time, suggest the wisdom of limiting our review, directly and briefly, to the point involved. When Schali’s crime was committed the Commutation Law of 1886 (Chap. 21) was applicable to indeterminate sentences. Under that law a convict confined in a state prison or penitentiary for a term of at least one year, or a term the maximum of which is fixed by law, was given the right to earn a commutation of two months for the first year,.two months for the second year, four months each for the third and fourth years, and five months for each subsequent year. As the maximum of Schali’s term was four years and seven months, it was possible for him to earn a commuta^on of one year and two months, and this, if earned, would entitle him to his discharge seven months before the expiration of the minimum for which he was sentenced. Undoubtedly it was the effort to evolve a just result out of this incongruous situation that led the learned Appellate Division into what we believe to be an untenable decision. It cannot be gainsaid that, under the law as it stood when Schali committed his crime, the Commii-. tation Law was applicable to indeterminate sentences. It may also be admitted that the privilege of earning commutation was a substantial right of which Schali could not be deprived. But he was not entitled to commutation until he had earned it, and non constat he may never earn it. When he has earned it he will be entitled to his discharge. If that is then withheld by the prison authorities, an application therefor may properly be addressed to the courts.

As we have already intimated, this precise question cannot arise under the law as now amended. In the light of experience it is obvious that commutation ” is inherently and logically as inapplicable to indeterminate sentences as parole” is to definite sentences. Many, if not all, of the difficulties resulting from the attempt to apply each of these privileges to botli forms of punishment are now, however, interesting only as history and they may safely be relegated to the realm of things past without further comment.

We think the Special Term was right in quashing the writ and, therefore, the order of the Appellate Division should be reversed.

Cullen, Oh. J., O’Brien, Bartlett, Haight and Vann, JL, concur; Gray, J., absent.

Order reversed, etc.  