in re Conlon

• Decision Date: 01 January 1889
• Citation: 148 Mass. 168,19 N.E. 164
• Parties: In re CONLON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

148 Mass. 168

19 N.E. 164

In re CONLON.

Supreme Judicial Court of Massachusetts, Suffolk.

January 1, 1889

COUNSEL

T. Henry Pearse, for petitioner.

A.J Waterman, Atty. Gen., and H.C. Bliss, Asst. Atty. Gen., for the Commonwealth.

OPINION

HOLMES J.

On December 28, 1878, the petitioner was sentenced to nine years' imprisonment in the state prison, the sentence expiring December 28, 1887. On January 31, 1885, under the alleged authority of St.1884, c. 255, § 14, he was removed with the consent of the governor and council, from the state prison, then at Boston, to the reformatory at Concord. At that date his sentence, as shortened for good behavior expired July 23, 1886. Pub.St. c. 222, § 20. On December 24, 1885, he received a permit to be at liberty, under St.1884, c. 255, § 33, issued with the approval of the governor and council. On December 20, 1887, the permit was revoked, and on December 23d the petitioner was arrested. He now applies for a habeas corpus, on the ground that the removal, permit, and arrest were all contrary to law.

St.1884, c. 255, § 14, purports to authorize the removal. It applies to "any prisoner," and is not inconsistent with the exclusion of prisoners held on a sentence of five years or more in section 3, because section 3 had reference only to the disposition of the prisoners in the first instance at the time the state prison was removed from Concord to Boston, and the old state prison building was occupied by the reformatory. The petitioner had been removed to Boston, and the subsequent removal of him back to Concord, to the reformatory, was within the words of section 14, and was not affected by section 3.

It is argued that the act of 1884 could not be applicable to the prisoner, because section 33 impaired the vested right which he had under Pub.St. c. 222,§ 20, to a deduction from the term of his imprisonment. But, whichever section applied, his rights were not impaired, because the prisoner had no vested right under section 20. It is true that section 20 contains the words, "shall be entitled to a deduction," and "shall receive a written permit to be at liberty," etc. But it goes on: "The board issuing a permit, as aforesaid, may at any time revoke the same," and the context shows that there was no limit set upon the discretion of the board. Under Pub.St., as under St.1884, the petitioner's permit was subject to revocation by the board of prison commissioners without cause shown. These considerations dispose of the main objection to the arrest. An arrest upon the revocation of a revocable release from the imprisonment under a sentence is not subject to the rules which are laid down for arrests under proceedings against persons not yet convicted. See Kennedy's Case, 135 Mass. 48.

The prison commissioners, having revoked the permit, directed their secretary to issue an order for the petitioner's arrest, which he did. This was not a delegation of power to the secretary, but merely a direction to perform a ministerial duty. The commissioners are not a court. They have no official seal, and there...