Conlon's Case

Holmes, J. On December 28, 1878, the petitioner was sentenced to nine years’ imprisonment in the state prison, the sentence expiring on December 28, 1887. On January 31, 1885, under the alleged authority of St. 1884, c. 255, § 14, he was re-, moved, with the consent of the Governor and Council, from the state prison then at Boston to the reformatory at Concord. At that date, his sentence, as shortened for good behavior, expired on July 23, 1886. Pub. Sts. c. 222, § 20. On December 24, 1885, he received a permit to be at liberty, under St. 1884, c. 255, § 33, issued with the approval of the Governor and Council. On December 20,1887, the permit was revoked, and on December 23 the petitioner was arrested. He now applies for a habeas corpus, on the ground that the removal, permit, and arrest were all contrary to law. St. 1884, c. 255, § 14, purports to authorize the removal. It applies to “ any prisoner,” and is not inconsistent with the exclusion of prisoners held on a sentence of five years or more in § 3, because § 3 had reference only to the disposition of the prisoners in the first instance, at the time when the state prison was removed from Concord to Boston, and the old state prison building was occupied by the reformatory. The petitioner had been removed to Boston, and the subsequent removal of him back to Concord to the reformatory was within the words of § 14, and was not affected by § 3. It is argued that the act of 1884 could not be applicable to the prisoner, because § 33 left the granting of permits absolutely to the discretion of the prison commissioners, and this impaired the vested right which he had under Pub. Sts. e. 222, § 20, to a deduction from the term of his imprisonment. But even if his case was governed by the latter section, his rights were not impaired, because the prisoner had no vested rights under § 20. It is true that § 20 contains the words “ shall be entitled to a [171] deduction,” and “ shall receive a written permit to be at liberty,” etc. But it goes on, “ The board issuing a permit as aforesaid may at any time revoke the same,” and the context shows that there was no limit set upon the discretion of the board. Under the Pub. Sts., as under the St. of 1884, the petitioner’s permit was subject to revocation by the board of prison commissioners without cause shown. These considerations dispose of the main objection to the arrest. An arrest upon the revocation of a revocable release from imprisonment under a sentence, is not subject to the rules which are laid down for arrests under proceedings against persons not yet convicted. See Kennedy’s case, 135 Mass. 48. The prison commissioners, having revoked the permit, directed their secretary to issue an order for the petitioner’s arrest, which he did. This was not a delegation of power to the secretary, but merely a direction to perform a ministerial duty. The commissioners are not a court, they have no official seal, and there is no requirement in the statutes that their warrant should be under seal. St. 1884, c. 255, § 34. The same observations apply to their previous warrant for removal. It is expressly provided that this warrant “ shall be signed by the secretary of the ” board. § 16. When the permit was revoked and the petitioner was rearrested, he was held under his original sentence by force of the statute, subject to the plain provision, which does not need interpretation, that “ the time between his release upon said permit and his return to the reformatory shall not be taken to be any part of the term of the sentence.” St. 1884, c. 255, § 34, and Pub. Sts. c. 222, § 21, are to the same effect, and just the opposite of the provision construed in West’s case, 111 Mass. 443. The prisoner received his original sentence, and accepted his permit subject to this liability. See Dolan’s case, 101 Mass. 219. The warrant simply incorporates the statute by reference. The fact that the permit does not show on its face that it was issued with the approval of the Governor and Council gives to the petitioner no ground for complaint. It is an instrument which enlarges, not one which abridges his liberty, and is not to be governed by the same rules as a warrant for arrest. He accepted it, and took all the benefits of it without objection. [172] As we are of opinion that the petitioner has no case on the merits, we have not considered whether habeas corpus would be the proper remedy if his views were correct. Petition dismissed.