Moore v. Buchko

Decision Date04 December 1967
Docket NumberNo. 3,3
Citation379 Mich. 624,154 N.W.2d 437
PartiesWillie B. MOORE, Plaintiff-Appellant, v. Frank G. BUCHKO, Chairman Michigan Parole Board, Defendant-Appellee.
CourtMichigan Supreme Court

William H. Culver, Kalamazoo, for Willie B. Moore, plaintiff-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., James D. Mueller, Asst. Atty. Gen., Lansing, for defendant-appellee.

Erwin B. Ellmann, Gen. Counsel, by Norton J. Cohen, Legal Director, Detroit, for American Civil Liberties Union, of Michigan, amicus curiae.

Before the Entire Bench.

SOURIS, Justice.

Plaintiff, by original action, sought from the Court of Appeals its writ of mandamus to compel the Michigan parole board to assume jurisdiction over him for the purpose of considering his entitlement to release from imprisonment on parole. Upon plaintiff's application to review denial of the writ by the Court of Appeals (4 Mich.App. 261, 144 N.W.2d 670), we granted leave to appeal.

Moore, without the assistance of counsel, pled guilty to first degree murder in 1938 and was convicted and sentenced therefor to life imprisonment in solitary confinement at hard labor as required by our statute. C.L.1948, § 750.316 (Stat.Ann.1954 Rev. § 28.548). In 1950 the successor of the sentencing judge denied a delayed motion to vacate sentence and for new trial and this Court affirmed. People v. Moore (1955), 344 Mich. 137, 73 N.W.2d 274. The United States Supreme Court, however, reversed on the ground that petitioner had sustained his burden of proving that his guilty plea was invalidly accepted because obtained without the benefit of counsel and absent an intelligent waiver of his right to counsel. Moore v. State of Michigan (1957), 355 U.S. 155, 78 S.Ct. 191, 2 L.Ed.2d 167. In 1958, on remand, Moore was tried for first degree murder, this time with counsel's assistance, and was convicted by jury verdict of second degree murder. The trial judge, in sentencing Moore to imprisonment for 25 to 40 years, commented that he had considered, 'but not by way of reduction of sentence', the fact that Moore had spent nearly 20 years in prison under the sentence invalidated by the United States Supreme Court.

This action in mandamus was commenced in 1964. Under our statute (C.L.S.1961, § 791.234 (Stat.Ann.1965 Cum.Supp. § 28.2304)), prisoners sentenced to imprisonment for indeterminate terms become subject to the jurisdiction of the parole board when they have served time equal to their minimum sentences less allowances made for regular and special good time service. Unless plaintiff prevails herein, he claims that he will not be subject to the board's jurisdiction, and thus not eligible for parole, until at the earliest 1970 when his minimum term of 25 years less regular and special good time allowances since his 1958 conviction will have been served. It is his contention in this proceeding that the nearly 20 calendar years he served under his invalidated conviction and sentence from 1938 to 1958, and the regular and special good time credit he earned during that time, should be credited to him for the purpose of determining the parole board's jurisdiction to consider him for parole and, we assume, for the purpose of determining the expiration of his maximum sentence.

Had Moore's second conviction occurred after June 22, 1965, the date P.A.1965, No. 67 was adopted and given immediate effect, it is agreed that the sentencing judge would have been required to credit him for the time he had served under the sentence imposed for the prior erroneous conviction by reduction of the maximum sentence to be imposed. 1 In 1958, however, when Moore was convicted the second time, the statute's language was permissive only and not, as it has been since 1965, mandatory.

Moore contends that the statute has been construed to be retroactively applicable, relying upon a statement appearing in one of our earlier decisions before the 1965 amendment (Attorney General v. Recorder's Court Judge (1954), 341 Mich. 461, 475, 67 N.W.2d 708), and, furthermore, that the 1965 amendment did not adversely affect the statute's retroactivity. In the Attorney General's Case this Court said, 'By its language this enactment was made retroactive.' It is this statement the plaintiff relies upon to support his contention that the statute, before and after its amendment, is retroactively applicable and that, therefore, it permitted, and now requires, the parole board to credit a prisoner with time served and earned during prior imprisonment under an erroneous conviction.

The contention, however, does not fit the language of the statute which grants power only to the sentencing judge and not to the parole board. Furthermore, if it be argued that the statute authorizes the sentencing judge now to reduce a prior valid sentence to the extent of time served during imprisonment under an erroneous conviction, prior decisions of this Court suggest that the statute so construed would impinge impermissibly upon the power of pardon and commutation of sentences granted exclusively to the Governor by article VI, section 9 of our Constitution of 1908 and article V, section 14 of our Constitution of 1963. People v. Freleigh (1952), 334 Mich. 306, 54 N.W.2d 599, and cases cited therein. For these reasons we cannot give to the statute the meaning urged upon us by plaintiff, nor do we believe this Court's statement in the Attorney General's Case, quoted above, means other than that the statute is retroactive only in the sense that time served under erroneous convictions before, as well as after, its enactment thereafter could be considered by a sentencing judge and credited against the sentence to be imposed upon conviction after retrial.

An alternative contention made by plaintiff is that the statute, even in its original form, requires a sentencing judge to allow credit for past time served under an erroneous conviction, and we agree. In numerous cases, in this State and in other jurisdictions, the word 'may' when used in legislation or in contracts has been construed to mean 'shall', the context of its use considered. See, for example, the following cases from this Court: McBrian v. City of Grand Rapids (1885), 56 Mich. 95, 22 N.W. 206; Grand Lodge of Ancient Order of United Workmen v. Fisk (1901), 126 Mich. 356, 85 N.W. 875; Gitchel v. Whipple (1901), 126 Mich. 646, 86 N.W. 144; Freud v. Wayne Circuit Judge (1902), 131 Mich. 606, 92 N.W. 109; and Brooke v. Brooke (1935), 272 Mich. 627, 262 N.W. 426. Cf. Smith v. School District No. 6, Fractional, Amber Township, Mason County (1928), 241 Mich. 366, 217 N.W. 15. See, also, Supervisors Rock Island Co. v. United States ex rel. State Bank (1867), 4 Wall. (71 U.S.) 435, 18 L.Ed. 419 (relied upon pertinently by this Court in Corliss v. Village of Highland Park (1903), 132 Mich. 152, 160--161, 93 N.W. 254, 610, 95 N.W. 416), where the Supreme Court, in construing a statute which provided that a board of supervisors 'may, if deemed advisable', levy a special tax when the county owed debts its current revenues were not sufficient to pay, held the quoted phrase to require a tax levy, the statutory condition existing. It expressed the reasons for its decision, singularly applicable to the decision we reach, as follows:

'In King v. Inhab. of Derby, Skin. 370, there was an indictment against 'divers inhabitants' for refusing to meet and make a rate to pay 'the constables' tax.' The defendants moved to quash the indictment, 'because they are not compellable, but the statute only says that they may, so that they have their election, and no coercion shall be.' The court held that 'may,' in the case of a public officer, is tantamount to 'shall,' and if he does not do it, he shall be punished upon an information, and though he may be commanded by a writ, this is but an aggravation of his contempt.'

'In Rex and Regina v. Barlow, 2 Salk. 609, there was an indictment upon the same statute, and the same objection was taken. The court said: 'When a statute directs the doing of a thing for the sake of justice or the public good, the word 'may' is the same as the word 'shall:' thus, 23 Hen. VI., says 'the sheriff may take bail.' This is construed he shall, for he is compellable to do so.'

'These are the earliest and the leading cases upon the subject. They have been followed in numerous English and American adjudications. The rule they lay down is the settled law of both countries.

'In Mayor of N.Y. etc. v. Furze, 3 Hill (612) 614, and in Mason v. Fearson 9 How. 248, 13 L.Ed. 125, the words, 'it shall be lawful' were held also to be mandatory. See Atty. Gen. v. Lock, 3 Atk. 164; Blackwell's Case, 1 Vern. 152; Dwar.Stat. 712; Malcom v. Rogers, 5 Cow. 188; Newburg Turnpike Co. v. Miller, 5 Johns.Ch. (101) 113; Js. of Clark Co. Ct. v. Paris, W. & K.R. Turnpike Co., 11 B.Mon. 143; Minor v. Mech. Bank of Alexandria, 1 Peters 64, 7 L.Ed. 47; Com. v. Johnson, 2 Binn. 275; Virginia v. Justices, 2 Va.Cas. 9; Ohio ex rel. Whiteman v. Gov. Chase, 5 Ohio St. 528; Coy v. City Council of Lyons City, 17 Iowa, 1.

'The conclusion to be deduced from the authorities is, that where power is given to public officers, in the language of the act before us, or in equivalent language--whenever the public interest or individual rights call for its exercise--the language used, though permissive in form, is in fact peremptory. What they are empowered to do for a third person the law requires shall be done. The power is given, not for their benefit, but for his. It is placed with the depositary to meet the demands of right, and to prevent a failure of justice. It is given as a remedy to those entitled to invoke its aid, and who would otherwise be remediless.

'In all such cases it is held that the intent of the legislature, which is the test, was not to devolve a mere discretion, but to impose 'a positive and absolute duty.'

'The line which separates this class of cases from those which involve...

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