Thomas Reilly, Trustee v. Timothy C. Dale, Commissioner of Public Welfare,

• Decision Date: 04 November 1942
• Citation: 28 A.2d 637,113 Vt. 1
• Parties: THOMAS REILLY, TRUSTEE v. TIMOTHY C. DALE, COMMISSIONER OF PUBLIC WELFARE, ET AL
• Court: Vermont Supreme Court

28 A.2d 637

113 Vt. 1

THOMAS REILLY, TRUSTEE v. TIMOTHY C. DALE, COMMISSIONER OF PUBLIC WELFARE, ET AL

Supreme Court of Vermont

November 4, 1942

October Term, 1942.

Authority of Commissioner of Public Welfare and of Superintendent of House of Correction over Conditionally Pardoned Convicts.

1. The Commissioner of Public Welfare and the Warden of the State Prison are State officers and not officers of the County Court.

2. The granting of conditional pardons is within the constitutional prerogative of the Governor; the Commissioner of Public Welfare has no authority therein, his duty being only, upon the Governor's request, to investigate and report upon the application.

3. A pardon is effective upon acceptance by the prisoner, and when accepted by him he must be released.

4. Any control given the Commissioner of Public Welfare over the Superintendent of the House of Correction by P. L. 5509 does not authorize the former to direct the latter to disregard the order of the Governor given in a pardon.

5. After release under a conditional pardon neither the Commissioner of Public Welfare nor the Superintendent of the House of Correction may recommit the prisoner to prison or jail, in the absence of a warrant issued by the Governor for breach of conditions of the pardon.

6. The powers of a police officer given the Commissioner of Public Welfare by P. L. 8875 have to do only with persons on probation, and do not apply to persons conditionally pardoned.

7. Violations of duty which are not alleged in the pleadings are not for consideration.

PETITION FOR CONTEMPT brought to the Orleans County Court September Term, 1941, Cushing, J., presiding. The demurrer of the petitioner to the answer was sustained by a pro forma order.

The pro forma ruling sustaining the demurrer to the answer is reversed, and the petition is dismissed.

Alban J. Parker, Attorney General, for the petitionees.

Lee E. Emerson and E. J. Smith for the petitioner.

Present MOULTON, C. J., SHERBURNE, BUTTLES, STURTEVANT and JEFFORDS, JJ.

OPINION

MOULTON

This is a petition for contempt brought to the Orleans County Court alleging the following: George Urie was confined in Orleans County jail for contempt in refusing to comply with an order of the County Court requiring him to pay a sum of money for the benefit of Hazel Urie, his divorced wife and his minor children, to Thomas Reilly as trustee, petitioner herein. While so confined, Urie broke out of jail but was retaken and was later convicted of the crime of escaping from a penal institution, and sentenced to serve a term of not less than two years and six months or more than four years in the House of Correction, the mittimus providing that at the conclusion of the sentence he was to be recommitted "to the County jail of Orleans County, to continue in said jail." This petition alleges that the respondents, Timothy C. Dale, Commissioner of Public Welfare of the State of Vermont, and Lawrence McGovern, Keeper of the House of Correction, have knowingly and wilfully and without lawful excuse or authority permitted Urie to leave the House of Correction and to go at large, and have wilfully refused and neglected to return him to the House of Correction so that he might be recommitted to the Orleans County Jail, and have wilfully refused so to recommit him, in contempt of the order of the Orleans County Court, which is still in full force and effect.

The respondents' answer alleges that the Hon. George D. Aiken, then Governor of this State, granted a conditional pardon to George Urie for the crime of an escape; that Urie was released from the House of Correction by virtue of the order of the Governor, based upon his constitutional and statutory authority; that the release was mandatory upon the respondents, who acted as instruments of the Executive in carrying out the terms of the conditional pardon. It is denied that the terms of the mittimus conferred upon them any authority to hold Urie in custody after his pardon became effective or to recommit him to the Orleans County Jail.

This answer was met by a demurrer, which was sustained pro forma by the trial court. The respondents excepted and the cause was passed to this Court before final judgment, under the provisions of P. L. 2072.

The petitioner's argument runs in this way: The Commissioner of Public Welfare, who is, by virtue of P. L. 471, amended by No. 59 Acts 1941, the state probation officer, has supervision over prisoners who...