The times dispatch. [volume] (Richmond, Va.) 1903-1914, 1914-04-05
Governor Will Apply for
Injunction in Prison
Test Case.
BRING QUESTION
TO FINAL ISSUE
Attorney-Generaps Opinion That
Penitentiary Board Is Without
Parole Power Will Be Put
Squarely Before Supreme
Court-Agreed On
at Conference.

After q three-hour conference yes
tcrday between Governor Stuart and
members OF tho State Penitcntiary
Board, II WAS agreed to mako test
case to determine the stntus of the
parole law OF 1904 which Attorney
General Pollard. in an opinion TO the
Governor, has held to be unconstitu-
tional. On Saturday afternoon tho
Pcnitentinry Board Will select some
deserving convict who has served half
Of HE term and order him paroled
Governor Stuart will at once apply to
tho courts for an Injunction to restrain
Major James b. w God. superintendent
OF the prison, from releasing tho man
until no has served tho term for which
he was committed. or has been par
doned In the manner provided by law.
In this way the parole law will be
brought squarely before the Supreme
Court OF Appeals of Virginia for final
determination an TO it's validity. 1t is
possible that It may be given prefer
ence the court docket, and be
argued at the June term at Wythe-
Vile. In tho agreement reached yes
terday, the Penitentiary Board ohi-
gates itself not TO attempt to exercise
the parole power othor than In the
agreed test case. until the matter has
been finally determined BY the courts.
Mann Considered Removal.
yesterday was entirely friendly. and
was merely TO reach clear determine
ton as TO the requirements Of the law.
but IL Is known that both the Gov
cruor ard the prison board arc dis
posed to. stand firmly OH their rights.
IN fact. the prison board points to an
cponion rendered by former Attorney
General Samuel W. Williams under date
of April Q. 1919, in which II was held
that Governor Mann did not have the
right To remove members OF tho board
from Office, but could suspend indi-
vidual members for constitutional Of
lenses after due notice. The request
for the opinion grew out of the alleged
efforts OF certain members of the board
to secure the freedom of the Allen
outlaws while the Governor was tern
porarily out OF the state.
Calls Act uncons Il tional.
The recent session OF the General
ASS emily passed what has come to
be known as the Allen bill--Scnate
bin 4i2-providinE that the Peniten-
tiary Board might In its discretion pa
roie prisoner after he had served
three years or his sentence. II has been
frequently stated that the bill was In
tended to provide 4 loophole of escape
for members OF tho Allen gang
tonced to from eighteen TO thirty-six
years in prison. but the bill was amend
ed to exempt from It's provisions those
convicted OF murder In the first de-
gree or of criminal assault. Governor
Stuart described this bill as misleading
In its title. II should have been he
aaid. IAN act to increase the powers
OF the board of directors OF the peni-
Tertiary ut the expense OF the consti-
tutional powers and prerogatives OF
the executive"
The Governor referred II to Attor-
ney-General Pollard, who. in an ex-
~ til nlt
ties, held not only that Senate bill
4<2 was unconstitutional. but that the
parole act of 1904 which Il sought to
almond. was likewise unconstitutional.
On this advice tho Governor vetoed II.
Prison hoard Not Court.
In view OF the opinion holding the
parole law OF 1904 unconstitutional,
the question arose as to the future
conduct OF the prison directors In a
statement issued at the time, Cover
nor Stuart expressed the view that IT
was certainly not contemplated in tho
Constitution that the prison board
should sit sort OF superior court,
TO review and reverse IN criminal cases
not only the verdicts OF trial juries
and the judgments of Circuit Courts,
but the deliberate opinions OF the SUI
preme Court OF Appeals as we'll. The
Attorney General upheld the view that
any action releasing n prisoner before
no had served the specific term for
which he was sentenced by due process
OF law was TO upset and reverse the
trial court. This power. il was held.
was vested by the Constitution exclu-
svely in the Governor. who may grant
absolute pardons or may grant par
dons with conditions attached. which
arc in effect paroles.
Prior TO the act OF 1904 under the
statute Of S96 and subsequent acts.
there was Il parole system, under
which the prison board from time to
time made recommendations to the
Governor OF those convicts who were,
in their judgment. suitable for condi-
tiona1 pardonS or paroles, thus acting
In an advisory capacity. The act OF
1904, which is the one now in qucs-
ton, eliminated this report TO the Gov
crnor and made Il possible for the
prison hoard, In Its own discretion. at
any time TO release any convict after
he had scrved one-half of the term
for which he had been sentenced
Under this act tho prison board has
been from time to time paroling con-
victs at its own discretion. acting en-
tirely independent OF and without con-
motion with the actions of the Gov
ernor In granting pardons or condi-
tonal pardons. which are In effect pa
roles.
VIII Test Validity OF Act.
Under tho agreement effected yes
tcrday afternoon the prison board will
at It's meeting on Saturday afternoon
select a convict whose prison record
is good and who under the act OF
1903, If VALID would be n proper sub
5ect for parole. and will order such
convict conditionally released. Gov
ernor Stuart Will forthwith apply
either to tho Judge of tho City Cir
cult Court or to ono of tho Judges Of
the Supreme Court, which court has
CONTINUED on Fifteenth PaseJ