State ex rel. Menard v. Nichols, 34441
| Decision Date | 18 July 1958 |
| Docket Number | No. 34441,34441 |
| Citation | 167 Neb. 144,91 N.W.2d 308 |
| Parties | The STATE of Nebraska ex rel. John Paul MENARD, Appellee, v. Robert E. NICHOLS, Superintendent of the Nebraska State Reformatory, Appellant. * |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. All statutes relating to the same subject should be construed and considered together for the purpose of giving effect to the legislative intention.
2. All statutes in pari materia must be considered together and construed as if they were one law, and, if possible, effect given to each provision.
3. Sections 83-440 and 83-450, R.R.S.1943, are in pari materia, and the limitation of 2 months for each year contained in section 83-450, R.R.S.1943, is the maximum credit that can be allowed under either or both of these sections of the statutes.
4. A certificate of good time by the Board of Control, based on an erroneous computation under earned-good-time statutes, is subject to correction and will not afford a prisoner a basis for release in a habeas corpus proceeding.
Clarence S. Beck, Atty. Gen., Gerald S. Vitamvas, Asst. Atty. Gen., for appellant.
Wagener, Marx & Galter, Lincoln, for appellee.
Heard before SIMMONS, C. J., CARTER, MESSMORE, YEAGER, WENKE, and BOSLAUGH, JJ., and NEWKIRK, District Judge.
This is a habeas corpus proceeding brought by the relator, an inmate of the Nebraska State Reformatory, against the respondent, the superintendent of the reformatory, claiming that he was illegally held in and was entitled to an immediate release from such institution. A return to the writ was filed by the respondent which put in issue the allegations contained in the writ. The trial court found for the relator and directed his immediate release. The respondent has appealed.
The evidence shows that relator was sentenced by the district court for Lancaster County to serve a term of 3 years in the Nebraska State Reformatory for robbery. He entered the reformatory on April 3, 1956, and in the absence of any allowance for good time would be subject to release on April 2, 1959. Under section 29-2632, R.R.S.1943, relator was entitled to an allowance of 7 months good-time credit at the time he entered the reformatory. The diminution of his 3-year sentence by this 7 months could be taken from him only for disciplinary reasons. Relator gave no cause for the deprivation of this good time authorized by the statute, and the parties are in agreement that it was properly deducted from his sentence.
The issue raised by the proceeding is the proper computation of credits for good time authorized by sections 83-440 and 83-450, R.R.S.1943. A construction of these two statutes is necessary.
Section 83-450, R.R.S.1943. This statute was enacted in 1915 and was the first statute authorizing good-time credit in addition to the statutory good time granted by section 29-2632, R.R.S.1943. It being the only earned-good-time statute in existence at the time of its enactment, the limitation on the diminution of time contained therein applied only to that section at that time.
In 1921 the Legislature enacted section 83-440, R.R.S.1943, which provides: This section of the statute does not appear to have been amended, although unimportant changes in language resulted from the 1943 revision. Previous statutes had provided for the working of inmates, but it is the first statute authorizing and fixing the rate of allowance of good time for work performed in road camps and other places outside the prison enclosure.
The history of section 83-450, R.R.S.1943, appears important in determining if it should be construed in pari materia with section 83-440, R.R.S.1943, as contended by the respondent. The original act of 1915 provided:
'The Board of Commissioners of State Institutions is hereby authorized to grant to prisoners employed outside of the prison enclosure and to prisoners making satisfactory progress in the prison school, a diminution of time from their sentences, in addition to that provided for in Section 657 of the Criminal Code of Nebraska [now S. 29-2632, R.R.S.1943], such grants to be conditioned on good behavior, a cheerful compliance with rules, diligence in work and fidelity to trust; but such additional diminution shall not exceed the rate of one month for each year of the sentence.' Laws 1915, c. 240, s. 1, p. 558.
In 1937 the act was amended as to the amount of diminution of sentence to be allowed as follows: '* * *; but such additional diminution shall not exceed the rate of one month for each year of the sentence for satisfactory progress and attendance in the prison school and an additional diminution not to exceed the rate of two months for each year to prisoners employed outside the prison enclosure.' Laws 1937, c. 206, s. 1, p. 831.
In 1949 the statute was amended to read in its present form and as we have hereinbefore quoted it. Laws 1949, c. 303, § 1, p. 1016. In proposing the amendment of the statute in 1949 the legislative committee recommending its passage included the following in the committee statement on the bill: 'The purpose of the bill is to give prisoners who are engaged inside the penitentiary the same opportunity to gain a diminution of time from their sentences by good behavior, a cheerful compliance with rules, diligence in work and fidelity to trust as is now granted to prisoners employed outside the prison enclosure.'
We think the two sections of the statute dealing with earned good time must be construed in pari materia. The Legislature has so treated them. Section 83-450, R.R.S.1943, the first of the two enacted by the Legislature, provides for a diminution of time for those in classified positions in addition to the statutory good time provided for in section 29-2632, R.R.S.1943, and fixes the maximum at 2 months for each year. The 1949 amendment to section 83-450, R.R.S.1943, eliminated the allowance of 1...
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