Hodgeman v. Olsen

• Decision Date: 11 August 1915
• Docket Number: 12687.
• Citation: 150 P. 1122,86 Wash. 615
• Court: Washington Supreme Court
• Parties: HODGEMAN v. OLSEN, Superintendent State Reformatory.

150 P. 1122

86 Wash. 615

HODGEMAN v. OLSEN, Superintendent State Reformatory.

No. 12687.

Supreme Court of Washington

August 11, 1915

Department 2. Appeal from Superior Court, Snohomish County; Guy C Alston, Judge.

Suit by William R. Hodgeman against Donald B. Olsen, Superintendent State Reformatory, for an injunction. From a decree for defendant dismissing the action, plaintiff appeals. Affirmed.

Blair &amp Blinn, of Seattle, for appellant.

W. V Tanner and L. L. Thompson, both of Olympia, for respondent.

ELLIS J.

In this action the plaintiff seeks to compel the destruction of certain pictures held by the defendant, as superintendent of the state reformatory at Monroe, and to enjoin their retention and circulation.

It is alleged that the plaintiff was convicted of grand larceny and sentenced to serve a term of not less than 2 nor more than 15 years in the reformatory; that he began serving his term in January, 1912, was paroled in February, 1913, and was granted a full pardon by the Governor in January, 1914; that when he was received at the reformatory he was compelled by the officers in charge, and against his consent, to submit to the taking of two photographs of himself, and again on his discharge to submit to the taking of two other photographs; that the officers in charge of the institution indorsed on the photographs a physical description of plaintiff, including his age, weight, height, color of hair and eyes, and such other information as is usually used in the description of convicts confined in the state penitentiary; that the negative plates of these photographs, with a number of pictures produced therefrom and the indorsements thereon, are in the possession of the defendant, as superintendent of the reformatory, and are kept by him as a part of the public records of the institution, open to the inspection of its employés and to others generally; that the defendant and employés of the institution under him, at divers times since the plaintiff's pardon, have sent copies of these photographs and the information indorsed thereon to the police department of the city of Vancouver, British Columbia, and to various cities in the state of Washington, causing the plaintiff great humiliation and embarrassing him in his business, and otherwise causing him to suffer irreparable damage; that the board of managers have not by any rule provided for the taking, keeping, or circulation of such photographs, and the same is unwarranted by any law of this state. The defendant demurred to the complaint upon two grounds: (1) Insufficiency of facts; (2) lack of jurisdiction in the court of the subject-matter. The demurrer was sustained. The plaintiff abiding his pleading, the action was dismissed. He appeals.

Passing for the nonce the question of jurisdiction, let us inquire whether the facts stated show any invasion of a legal right. It is conceded that there is no statutory provision expressly authorizing the taking and preservation of photographs of inmates of the state reformatory, but it is urged that this power arises by necessary implication from those expressly conferred. The statute (2 Rem. & Bal. Code, tit. 68, c. 5) governing the creation and management of the state reformatory so far as bearing upon the question here involved contains provisions as follows:

Section 8577 vests in the board of managers the 'general charge and supervision' of the reformatory.

Section 8580 empowers the board to appoint as superintendent a person of 'the executive ability essential for the proper management of the officers and other employés under his jurisdiction and to enforce and maintain proper discipline in every department.'

Section 8590 reads:

'The board of managers shall have the power to make all rules and regulations necessary and proper for the employment, discipline, instruction, education and removal of all prisoners of said Washington state reformatory.'

Section 8593 provides:

'It shall be the duty of said board of managers to maintain such control over all prisoners committed to their custody, as shall prevent them from committing crime, best secure their self support and accomplish their reformation. When any prisoner shall be received into the Washington state reformatory upon direct sentence thereto, they shall cause to be entered in a register the date of said admission, the name, age, nativity and nationality, with such facts as can be ascertained of parentage, or early education and social influences as seem to indicate the constitutional defects and tendencies of the prisoner, and the best probable plan of treatment. Upon such register shall be entered quarterly, or oftener, minutes of observed improvement or deterioration of character, affecting the standing or situation of such prisoner, the circumstances of the final release and any subsequent facts of the personal history which may be brought to their knowledge.'

It is manifest from these provisions, and indeed from the entire statute, that the Legislature has made no attempt to lay down a complete system of specific rules and regulations for the management of the institution or the care and treatment of the inmates, but has only undertaken to outline the powers and duties of the board of managers and superintendent in the broadest of terms. It is obvious that, if these officers were required to look to the statute for specific rules of conduct, they would find none. They would be powerless to inaugurate any adequate executive system for carrying out the general powers conferred or performing the duties so broadly imposed. The Legislature has deemed it inexpedient to attempt any promulgation of specific rules, doubtless because of their necessary manifold scope, and because to do so would, on the principle expressio unius exclusio alterius, deny to the officers in charge the power to employ those means which practical experience might demonstrate as best calculated to meet the full purpose of the law. It would be practically impossible to enumerate in the statute all of the powers necessary to the management of such an institution and the control of its inmates. By conferring general powers and imposing general duties the Legislature has by necessary implication accorded to the officers in charge all those powers which experience has proven necessary and such as are customarily employed in the management of penal institutions. In this connection we call attention to the fact that the Legislature has been little more specific in promulgating rules for the penitentiary than it has for the reformatory. Rem. & Bal. Code, tit. 68, c. 2. In both statutes there is left by necessary implication a wide latitude of discretionary power to the officers in charge.

It is a matter of common knowledge of which this court cannot feign ignorance that the taking and preservation of photographs, physical measurements, and characteristics of prisoners is a measure adopted in nearly all penal institutions. This is not only necessary in order to facilitate the recapture of escaped prisoners and the investigation of their past records and personal history, expressly made incumbent by the reformatory statute, but is also as necessary to preserve the means of identification for that future supervision after discharge which, by the very theory of reformatory restraint, is assumed by the state for the prisoner's good, as it is for the protection of society in all cases of prisoners discharged from any penal institution whether reformatory or not. The protection of society, whether by reformation or punishment is the real end in any case. As an aid to the enforcement of our habitual criminal law the preservation of such data is an obvious necessity. The Legislature is also presumed to have had this common knowledge when it passed the reformatory act. By failing to prohibit these commonly employed measures and by imposing general duties to which their use is plainly an appropriate aid, it has by implication conferred upon the officers in charge the power to continue their use as a part of the ordinary powers of management. Had such measures been deemed inimical to the benign purpose of the reformatory law, as is strenously asserted by the appellant, the Legislature would certainly have so declared. This implied power is supported by ample authority.

In Freund, Police Power, § 103, p. 102, we find the following:

'Measures which in their effect reach beyond the term of imprisonment are often especially authorized by statute. This is especially true of processes serving the purpose of identification; the taking of measurements and photographs, copies of which are distributed among other penal institutions and police offices. Since these are appropriate means of making escape more difficult, and of facilitating the recapture of an escaped convict, they may perhaps be regarded as implied in the ordinary powers of management; in a considerable number of states they have, however, in recent years, been made the subject of special statutory enactment.'

In Owen v. Partridge, 40 Misc. 415, 82...