The Hawaiian gazette., 1901-08-09

never nave seen u ITIsVu vi II piisVhNi'
is fully eligible for appointment on this
board.
3 Though the board tby reason, OBJ
yiously, of the presumptive lack of
special knowledge upon the part of lis
members Is called upon to consult with
the jailor, and though this prison ofii-
cial is the only person who, by reason
of his direct relations with the pris-
oners, can definitely ascertain the fact
of good conduct, yet it is for the board
and not for the jailor, to decide who
are entitled TO, or shall be deprived OF,
the communication provided by law. In
other words. ii becomes apparent that
although the behavior of convict may
be above criticism, and although tn"
TAILOR may certify to the excellence or
his conduct while in custody, yet the
decision is not left to the prison otlt-
cial. and the board may refuse to grant
the communication. And similarly. or
course, the board may, in the pleni-
tude of its unregulated power, grant
combinations against the recommen-
dalton of the jailor; the law under dis
cussion nowhere concludes the board
by the judgment of the jailor.
}. Chapter 10 nowhere necessarily
implies a fixed and ascertained sys-
tenn independent of Judgment or ca
price, and applicable upon definite
principles to all of Il given class. No
definite rules intended to control the
action vi the board, are enacteS; there
/ is nothing in this chapter to guide the
action of the board; the chapter lays
down no rules by which it's impartial
execution can be secured or Partially
! prevented; II establishes IA government
Of men and not of laws; and under Its
! terms, the operation of the authority
! of the board is obnoxious to the rule,
I fundamental to our institutions which
repudiates the exercise or arbitrary
power or uncontrolled discretion.
! When We consider the nature and the
! theory of our institutions or govern
ment. the principles upon which they
are supposed to rest and review the
/ history of their development. we arr
constrained to conclude that they do
1 not mean to leave room for the play
and action of purely personal and ar
bitrary power Gick No VS.. hopkins,
, lis T.. s. $50.
! A. In the last analysis. the granting
: or Withholding. by this board. of the
communication provided by law, rests in
the unreyulated and uncontrolled dis
erection of the board. Whether tn
communication might constitute "A 'ruic
of credit" within the meaning of sec
tion 5j44, L. :. K. S, supra, if the only
discretion as to the allowance of the
| Communication were that of the Jailor.
who by reason Of his office. could as
certain with reasonable certainty the
A fact of good behavior, I do not feel
called upon to say, for the obvious
reason that section 1851 of the civil
Laws of 1897 distinctly limits the
function of decision to the board, and
excludes the jalor from participation
therein.
The views above suggested touching
the discretionary character of this
/ communication are enforced by con-
SideratiOn of chapter 80. This chapter
it,f he mn t,4ti ian IN
prisoners under sentence of hard la
Dor, imposed by any court of the re-
public" and. i'm section 1887 expressly
, provides, in direct terms, that The
; granting. Withholding. fOrfeiting and
restoring of the Communication provided
: by this act shall be discretionary with
the board of prison inspectors. As tt
! prisoners confined in the prisons ~
! the republic other than Oahu prison,
the board of prison inspectors may
, delegate to such prison officers or other
persons as they deem best the power
, to grant. withhold. forfeit and restore
5 Communication of prisoners confined in
+ such prisons, and such power to re-
= woke at their discretion
1t thus results that we have here no
$ fixed rule of credit within any prop
z ar sense of that phrase. If, ""n con-
e sultation with the jailor' (section l0Sl.
r civil Laws. 1870. that official should
/
for communication. yet, although the
| conditions may be quite similar, the
. board may deny to the one the re-
= mission II sentence which II grants 10
2 the oth,l such a discretionary cNer-
I else of clomency cannot, in my upi. ln.'
] Nr regarded as rule of credit with
\ in the meaning of section 554i of the
= Revised Statutes.
= Even If the system OF Communication
n created by chapters - and 40 of the
e local civil Laws We're within the pur-
b view of section 554i of the Revised
I Statutes, one should BE- disposed I,
h question its constitutionality, for ii is
t not perceived upon what principle 1t ID
. competent for Congress either itself tC
= trespass by Legislative enactment. up
h on the power of the President under
= article II, section ., paragraph ], Of the
+ constitution. ito grant reprieyes anC
pardons for offenses against the Unit
{ ed States" or to delegate power
r, which in no substantial respect differs
g from that of executive clemenCy, to
I State Legislature, or to "A minor Terri
II torial board. Upon principle and au
Il thority, Communication is. in effect
the exercise of the pardoning power
r it is a species of pardon, any commu
= tation which is Independent of the ac
II tion of the executive, would be an un
e due trespass upon his high prerogatIv
z of executive clemency; and the powe
: of the legislative department of tn
government thus to affect the action
II of the judicial department (by the al
= teraton of sentences), or the preroga
J. tive of the executive, has been repeat
= eddy denied Com. VS., Holloway, AZ Pa
g St, Az Diehl VS.. Rodgers. 1863 ID, $40
d In re Victor, 81 Ohio St, 206; Lee vs.
$ Murphy, 20 Graft, 1893; Haley VS.. Clark
i 26 Ala. 429; People VS. Moore, 81 Mich
J. 496; State vs.. Sloss, % Mo-, POI; Ten
II nessee vs. Fleming. Humphrey, 1922
II If statute be susceptible of tw'
II constructions, that should be preferre'
e which preserves the cOnstitutionalit.
o of the act: and within this well-settle'
II rule of construction, l prefer so L
!; construe r. S. 5544 as to exclude from
/ its purview any system for the re
It mission of sentences which is depend
v ent upon the pleasure of a subordinate