
    The People ex rel. Charles Bettram, Relator, v. William Flynn, Warden of the City Prison, Respondent.
    (Supreme Court, New York Special Term,
    June, 1907.)
    Constitutional law — Distribution of powers — Legislative encroachment on judicial powers.
    The provision of law relating to imprisonment in the New York State Reformatory at Elmira, authorizing the release of prisoners on parole by the State board of managers of reformatories and their subsequent re-arrest upon violation of the parole, does not violate the constitutional principle of the separation of the judicial, legislative and executive departments of government.
    Return to a writ of habeas corpus.
    
    Fischer-Hansen & Michaelson, for relator.
    William Travers Jerome, by Robert S. Johnstone, for respondent.
   MacLean, J.

The return to the writ of habeas corpus discloses that the relator is under custody ” pursuant to an arrest by order of the State board of managers of reformatories, signed by the secretary and countersigned by the superintendent of the State Reformatory at Elmira, wherein is the direction: “ It appearing to the State Board of Managers of Reformatories that Chas. Bettram (13805), an inmate of said reformatory, conditionally paroled and in the legal custody of said managers outside the reformatory inclosure, has violated the conditions of his parole, it is hereby ordered that the said Bettram (13805) he retaken and returned forthwith to our actual custody within the reformatory inclosure.” By section 700 of the Penal Code it is provided that a male between the ages of sixteen and thirty, convicted of felony, who has not theretofore been convicted of a crime punishable by imprisonment in a State prison, may, in the discretion of the trial court, he sentenced to imprisonment in the New York State Reformatory at Elmira, to be there confined under the provisions of law relating to that reformatory,” and section 9 of chapter 711 of the Laws of 1887, provides that any person who shall be convicted of an offense punishable by imprisonment in the New York State Reformatory at Elmira, and who, upon such conviction, shall he sentenced to imprisonment therein, shall he imprisoned according to this act and not otherwise, and the courts of this State imposing such sentence shall not fix or limit the duration thereof. The term of such imprisonment of any person so convicted and sentenced shall be terminated by the managers of the reformatory as authorized by this act; hut such imprisonment shall not exceed the maximum, term provided by law for the crime for which the prisoner was convicted and sentenced.” As stated in People ex rel. Duntz v. Coon, 67 Hun, 523, 525, “ it has never been suggested that section 700 of the Penal Code providing that persons between sixteen and thirty years of age committing a felony may be sent to the reformatory at Elmira was unconstitutional.” Resort must, therefore, he made particularly to section 9 of chapter 711 of the Laws of 1887 (supra), and to sections 20, 21 and 24 of chapter 378 of the Laws of 1900 in order to support the present contention for the prisoner that the statute creating the New York State Reformatory at Elmira is unconstitutional in that it violates “ the fundamental principles of our system of government, both State and national, that is, that the three coordinate departments of our government, judicial, legislative and executive, should he kept separate and distinct.” Besides the readiness of the court of first instance to defer in terms to every statutory deliverance of the Legislature not manifestly unconstitutional, consideration of the provision now mooted is approached with something of predilection, inasmuch as it authorizes a course in accordance with the betterment in prison discipline and treatment of convicted offenders, begun in 1840 under the Anglican system of probation, whereby, without losing from view the desirability of leaving upon the mind the salutary dread of the recurrence of punishment, which may be the means of deterring him and through his example others from the commission of crime, the person convicted may obtain enlargement under a license to go and come much as he pleases, subject, however, to forfeiture upon conditions distinctly stated and well known to the recipient and associated classes. By accepting the license the prisoner morally pledged compliance with its conditions and so, upon their breach, his own surrender. If such modest examples of the Regulus type he not expectable in these days, repudiation of his tacit undertaking lessens the basis for sympathetic appeals as for the hardship of the situation in which he has placed himself. While similar statutes providing for indeterminate sentences and the disposition, control and release of prisoners have been, by the Supreme Court of Michigan in People v. Cummings, 88 Mich. 249, where, as has been said, the reasoning commends itself as worthy of the most careful consideration of the courts and bar of the country, declared an unlawful invasion of the judicial and of the executive powers of the State, beyond the power of the Legislature to make lawful, and so unconstitutional; the Supreme Court of Indiana (Miller v. State, 149 Ind. 607) and the Supreme Court of Illinois (George v. People, 167 Ill. 447) have upheld them as not in violation of constitutional rights. Although our court of last resort appears not to have passed directly upon the constitutionality of the provisions under present consideration it may he said to have done so indirectly by passing upon the provisions of the Penal Code relating to indeterminate sentences, that is, the fixing, as here, of a maximum and minimum sentence, considered ip conjunction with the law relating to prisons and prisoners and their release by the board of commissioners on parole after service, at least of the minimum sentence, and liability to rearrest upon violation of the parole. “ This,” says the court, “ is a merciful exercise of legislative power which has been repeatedly approved by the Supreme Court. This form of legislation has been sustained by the courts of many other states. * * * The legislation complained of is constitutional and in the interest of the defendant who stands before the court charged with a first offense.” People v. Adams, 176 N. Y. 351, 363. The writ will be dismissed.

Writ dismissed.  