In re Penitentiary Com'rs

• Decision Date: 05 March 1894
• Citation: 35 P. 915,19 Colo. 409
• Court: Colorado Supreme Court
• Parties: In re PENITENTIARY COM'RS.

35 P. 915

19 Colo. 409

In re PENITENTIARY COM'RS.

Supreme Court of Colorado

March 5, 1894

The opinion of the court is in response to the following communication and question from the governor:

'To the Honorable, the Supreme Court of the State of Colorado--Sirs: A question of serious import has arisen in the executive department of the state, upon the following facts: The seventh general assembly, April 19, 1889, passed an act to establish the Colorado State Reformatory, which was afterwards established at Buena Vista. The question of serious import referred to arises wholly from the different manner in which the act to establish the state reformatory (Laws 1889, commencing page 418) is construed by the state executive and by the penitentiary commissioners in reference to the paroling of prisoners transferred from the state penitentiary to the state reformatory. There is no intention, on the part of the executive, to question the right of the board of commissioners to make requisition upon the warden of the state penitentiary to transfer convicts in the penitentiary to the state reformatory for education and treatment, and that, while confined in the reformatory, such transferred convicts should be subject to the rules and regulations of the reformatory; but, in the opinion of the executive, prisoners so transferred should be detained in the reformatory during 'the term of their sentence at the state penitentiary,' as is provided in section 24 of the reformatory act, and subject also, to the penitentiary rules as to the commutation of time of imprisonment. The penitentiary commissioners maintain, notwithstanding the provision in section 24 referred to, that convicts thus transferred become so subject to the rules and regulations of the reformatory that the board of commissioners may exercise the same powers as to the absolute release of such transferred convicts from imprisonment as is provided in sections 25 and 26 of the reformatory act. This view of the board of commissioners is fully sustained by an opinion of Atty Gen. Maupin, a copy of which opinion is hereto attached. Such a construction of the law seems, to the executive unwarranted by the terms of the reformatory act, and the past and present policy of the board of commissioners in paroling convicts transferred from the penitentiary to be an unconstitutional invasion of the prerogative of the governor of the state in relation to reprieves commutations, and pardons of criminals after conviction; and therefore I certify that the question submitted is important, and arises upon a solemn occasion, wherein I, as the executive of the state of Colorado, in defense of the prerogatives which appertain to my office, and to prevent further violations of the constitution and laws in this respect by the board of penitentiary commissioners, require the opinion of the supreme Court. I respectfully request the opinion of the honorable supreme court in answer to the following question: Are the board of penitentiary commissioners, in paroling convicts transferred from the penitentiary to the state reformatory, obliged to comply with the requirements of section 24 of the reformatory act, and detain such convicts in the reformatory during the term of their sentence at the state penitentiary, less commutation according to penitentiary rules?

'Very respectfully yours.

'Davis H. Waite.'

'State of Colorado, Attorney General's Office.

'Denver, Colo., June 3rd, 1891.

'Hon William A. Smith, Warden Colorado State Penitentiary, Canon City, Colorado--Dear Sir: I beg leave to acknowledge receipt of your letter of May 31, wherein you request an opinion from me as to whether or not the commissioners have authority, under the law relating to the state reformatory, to parole any prisoners who are now inmates of that institution. Upon careful examination of the act creating the state reformatory I find that section 24 of the act authorizes the commissioners to make requisition upon the warden of the state penitentiary, who shall thereupon select, from among the convicts of the state penitentiary who are well behaved and most promising, the number required by the commissioners, and transfer them to the reformatory for education and treament 'under the rules and regulations thereof.' Section 23 of the same act provides that 'said commissioners shall also have power to establish rules and regulations under which prisoners in the reformatory may be allowed to go upon parole outside the reformatory buildings and inclosure, but so remaining while on parole in the legal custody and under the control of the board of commissioners, subject at any time to be taken back within the inclosure of such reformatory.' There is nothing in this language last quoted above which indicates that the rules and...