Woodring v. Whyte
| Decision Date | 28 February 1978 |
| Docket Number | 14046-14048,Nos. 14038,14057,14058 and 14078,s. 14038 |
| Parties | Cecil V. WOODRING v. William WHYTE, Superintendent, Huttonsville Correctional Center. Lewis Dale METZ v. William WHYTE, Superintendent, Huttonsville Correctional Center. STATE of West Virginia ex rel. Gerry Lee HITT v. William WHYTE, Superintendent, Huttonsville Correctional Center. John CASTO v. William WHYTE, Superintendent, Huttonsville Correctional Center. Joe D. BALL v. William WHYTE, Superintendent, Huttonsville Correctional Center. Jack Edward HARPER v. William WHYTE, Superintendent, Huttonsville Correctional Center. Robert L. RINEHART, Jr. v. William WHYTE, Superintendent, Huttonsville Correctional Center. |
| Court | West Virginia Supreme Court |
1. Whether a statute is mandatory or directory must be determined from the intention of the Legislature.
2. "The word 'shall,' in the absence of language in the statute showing a contrary intent on the part of the legislature, should be afforded a mandatory connotation." Syllabus Point 2, Terry v. Sencindiver, 153 W.Va. 651, 171 S.E.2d 480 (1969).
3. "A subsequent statute, which revises the entire subject matter of a former statute and which is evidently intended as a substitute for such former statute, operates to repeal the former statute, even though such subsequent statute does not contain express words to that effect." Syllabus Point 1, State v. General Daniel Morgan Post No. 548, V.F.W., 144 W.Va. 137, 107 S.E.2d 353 (1959).
4. "When the constitutionality of a statute is challenged, every reasonable construction must be resorted to by the courts to sustain its validity and any reasonable doubt must be resolved in favor of the constitutionality of the legislative act in question." State ex rel. Metz v. Bailey, 152 W.Va. 53, 159 S.E.2d 673 (1968).
5. Before a delegation of legislative power to an administrative agency will be held to be unconstitutional as a violation of Article VI, Section 1 of the West Virginia Constitution, such delegation must be of purely legislative power.
6. Those portions of W.Va.Code, 28-5-28, which provide for the classification of and the allowance of good time credit to prisoners, are mandatory and do not violate Article VI, Section 1 of the West Virginia Constitution, since the statute contains adequate standards to guide the administrative agency charged with its implementation.
7. Under settled rules of statutory construction, W.Va.Code, 28-5-28, relating to good time, confers a substantive right and therefore is not retroactive.
8. Commutation of time for good conduct is a right created by the Legislature. It is not recognized as a fundamental right or a part of a constitutional freedom. Consequently, the Legislature's decision to allow good time credit to be awarded under W.Va.Code, 28-5-28, only after July 1, 1977, need only be tested by whether it has a rational basis under the Equal Protection Clause of the Federal and West Virginia Constitutions.
9. The Legislature's decision to adopt new and different standards which cannot be applied to prior conduct for the awarding of good time credit, provides a sufficient rational basis to uphold the prospective application of W.Va.Code, 28-5-28, against a claim that it violates the Equal Protection Clause of the State and Federal Constitutions.
10. Under W.Va.Code, 28-5-28, a prisoner who earns good time credits during a month is entitled to have the same credited at the end of such month.
11. A prisoner is not entitled to good time credits while on parole.
James Kauffelt, Charleston, for relators.
Chauncey H. Browning, Jr., Atty. Gen., Gregory W. Bailey, Asst. Atty. Gen., Charleston, for respondent.
Seven inmates of the Huttonsville Correctional Center filed original proceedings in habeas corpus which we have consolidated, since they contain the same issues. The central question is the construction of W.Va.Code, 28-5-28 (1977), 1 relating to partial commutation of a sentence for good behavior. Briefly, under this particular section, which became effective on July 1, 1977, two classes of prisoners are entitled to receive good time credit against their sentences. This statute also creates a classification committee which is directed to classify all prisoners "as soon as practicable."
The chief complaint made by the relators is that the statutory scheme is mandatory and the respondent warden has done nothing to implement it. Relators claim that under the statute they are entitled to release from confinement. Several defenses are raised by the warden. The first is that the section is not mandatory, but merely directory, and for this reason no action has been taken. Pertinent portions of the statute are set out in the margin. 2
The warden points to the first sentence of W.Va.Code, 28-5-28, where the word "may" is found, as indicative that this section is directory and not mandatory.
Whether a statute is mandatory or directory must be determined from the intention of the Legislature. State ex rel. Board of Education of the County of Kanawha v. Melton, W.Va., 198 S.E.2d 130, 136 (1973). Moreover, in the absence of a contrary intent on the part of the Legislature, the use of the word "shall" in a statute imparts a mandatory duty. Terry v. Sencindiver, 153 W.Va. 651, 171 S.E.2d 480, 483 (1969); Board of Trustees of Policemen's Pension or Relief Fund of City of Huntington v. City of Huntington, 142 W.Va. 217, 96 S.E.2d 225 (1956).
When we read the statute as a whole, as we must, 3 it appears that the first sentence serves as a preamble expressing a general legislative policy and establishing the reason why classification of prisoners is desirable. This sentence contains no language prescribing any action.
It is in those portions of the statute which provide for the establishment of the system of commutation of good time that we find the word "shall." The heart of the system is the third sentence, which reads:
"Commutation of time for good conduct, industry and obedience shall be granted by the warden and twenty days per month deduction shall be made from the term or terms of sentences of all prisoners in Class I, and ten days per month deduction shall be made from the term or terms of sentences of all prisoners in Class II as hereinafter provided, when no charge of misconduct has been sustained against a prisoner."
That the Legislature was aware of the distinction between the words "shall" and "may" is demonstrated in that portion of the statute where the forfeiture of good time is accomplished by using the term "may." A further delineation was made by inserting the word "shall" in restoring forfeited good conduct time if an escaped prisoner returns without expense to the State.
Also, we observe that the Legislature established both a classification and disciplinary committee. It left no discretion on this matter, as it not only established the committees but also designated their membership.
The only leeway as to implementation permitted under the statute is that classification of prisoners shall be accomplished "as soon as practicable." Obviously, this relates to the time when the act of classification must be completed, and does not imply there is discretion as to whether the classification may be made. Indeed, if the Legislature had intended the statute to be entirely discretionary, there would have been no need for this time of performance language.
We, therefore, are of the opinion that the statute is mandatory and requires the classification of prisoners according to its terms.
The warden claims that if W.Va.Code, 28-5-28, is determined to be mandatory, then we must find that it impliedly repealed W.Va.Code, 28-5-27. 4 As a general rule the law does not favor repeal of a statute by implication. Zigmond v. Civil Service Commission, 155 W.Va. 641, 186 S.E.2d 696 (1972); Smith v. Siders, 155 W.Va. 193, 183 S.E.2d 433 (1971); State ex rel. Warder v. Gainer, 153 W.Va. 35, 167 S.E.2d 290 (1969). However, it is also firmly established that if a later statute comprehensively covers the same subject, and by its terms is completely inconsistent with an existing statute, then the earlier statute must be deemed to be repealed. State v. General Daniel Morgan Post No. 548, V.F.W., 144 W.Va. 137, 107 S.E.2d 353 (1959); Harbert v. County Court of Harrison County, 129 W.Va. 54, 39 S.E.2d 177 (1946). This general rule is stated in Vol. 1A, Sutherland Statutory Construction (Sands 4th ed.) § 23.09:
"When a subsequent enactment covering a field of operation coterminous with a prior statute cannot by any reasonable construction be given effect while the prior law remains in operative existence because of irreconcilable conflict between the two acts, the latest legislative expression prevails, and the prior law yields to the extent of the conflict."
Here we are confronted with two separate provisions relating to computation of good time. Both sections provide for mandatory good time credits if the prisoner meets the standards provided. Yet the amount of good time credit is completely different under the two statutes.
There is an irreconcilable difference in one of the fundamental aspects of the statute with the method by which the good time is computed. Under W.Va.Code, 28-5-27, the earlier statute, it is based on the length of the prisoner's sentence. Under the new statute, W.Va.Code, 28-5-28, it is based upon the prisoner's classification, which in turn is determined "by his industry, conduct and obedience."
We are unable to perceive any method whereby the two sections can be harmonized and, therefore, are compelled to conclude that the Legislature, by enacting W.Va.Code, 28-5-28, intended to repeal W.Va.Code, 28-5-27. 5
The warden next contends that to construe W.Va.Code, 28-5-28, as mandatory, would render the statute unconstitutional under Article VI, Section 1 of the West Virginia Constitution. The argument...
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