source: Caselaw Access Project

author: Follett, J.

license: Public Domain

text:
    Valley Railway Co. v. Franz.

      Damages — Diverting stream — Statute of limitations.

    A railway company, like an individual, may, on its own land and for its own benefit, lawfully cut a new channel for a stream of water, and turn such stream into such new channel, if thereby no damage is caused to another; but when it so controls and directs the course of the stream that, as the stream leaves the company’s premises and control, the water is thus thrown across the old channel and against and upon the land of another, and thereby causes damage to such other, the company is liable for such damage; and while the company, after thus causing great damage, and promising to repair the damage done and stop future damage, continues so to control and direct the stream, and the stream continues to cause additional damage, the company becomes liable for the additional damage, and will continue so to become liable until the company acquires a right to cause such damage; and, until such right is acquired by the company, the four years statute of limitations will not bar a proper recovery for damages.
    Error to the District Court of Cuyahoga county.
    The original action was brought August 27,1881, in the court of common pleas, against the plaintiff in error, to recover damages the defendant in error claims he sustained through the diversion of the Cuyahoga river from its natural channel.
    Upon the land of the latter the river made a sharp bend in the form of an ox bow, the two sides of which were within one hundred and fifty feet of each other.
    Across this ox bow and the land of the plaintiff, the Valley railroad was located in 1872. To avoid the construction of two bridges, it became necessary to divert the river. To accomplish that, on November 4, 1874, the railway company proceeded to construct a dam and an artificial channel on the land of the railway company across the river from the plaintiff’s land, and, after the completion of the dam and channel, it commenced in the probate court of the county, appropriation proceedings for the right of way, in which damages were awarded him, the said defendant and his mother ; they being the owners of the land from which the stream was partially diverted, as well as land upon which the road was located. After passing through the artificial channel, the water returned to the old bed of the river at an obtuse augle to the former channel, and so as to run across the old bed and against the bank of the river on the land of Franz. This caused but little damage for some time, as the bank was high and protected by small trees.
    But the bank and trees were slowly worn away by the stream of water, and thé bed of the channel was changed on to the land of Franz. As more and more damage was done, on complaint of Franz, the officers of the railway company frequently promised Franz to protect the property from further damage; but nothing further, was ever done by them, and Franz commenced his action for damages.
    A general demurrer to the amended petition was overruled, an answer was filed, and on trial judgment was rendered for Franz for his damages. A bill of exceptions was filed, and on error the district court affirmed the judgment of the court of common pleas; and plaintiff in error now seeks to reverse that judgment.

      W. J. Boardman, for plaintiff in error.

      Robison ‡ White, for defendant in error.
   Follett, J.

The amended petition shows that the artificial channel was made on the land of the Valley Railway Company on or about the 4th day of November, 1874, and that at that time the running stream was turned against the land owned by Franz, and that such stream afterwards wore away the bank and overflowed the land of Franz.

The general demurrer to the amended petition could raise the question of the statute of limitation. Sturges v. Burton, 8 Ohio St. 215. The action was commenced August 27, 1881, and plaintiff’ in error insists that Revised Statutes, § 4982, must apply, as more than four years had, passed since the stream was changed and flowed against the land. The court overruled this claim and the demurrer. This is the only error claimed that we deem necessary to examine.

Plaintiff in error claims that this petition shows the only act the railway company ever did to cause the injury, was done in November, 1874, by changing the channel of the river, and then turning the running stream against the bank; and the plaintiff in error claims that the running water caused the damage, and that the statute limiting actions to four years prevents recovery in this case.

The company owned the land through which the channel was cut, and it could divert the river as it did, provided it so used its own that it did not injure another.

When a man commits an act of trespass upon another’s land, and thereby injures such other at once and to the full extent that such act will ever injure him, he is liable at once for this one act and all its effects; and the time of the statute of limitations runs from the time of such act of trespass. To this extent only is the case of Kansas Pacific Railway v. Mihlman, 17 Kan. 224, cited here, as the court found that the trespass upon complainant’s land was a single completed act. And the same is true of the case of Williams v. Pomeroy Coal Company, 37 Ohio St. 583.

But where the act of trespass is a permanent trespass, as the erection of buttresses to support a turnpike road (as in Holmes v. Wilson, 10 Ad. & El. 503), or the erection and maintenance of a permanent building (as in Thompson v. Gibson, 7 M. & W. 456), it may be said to be a continuing trespass or nuisance for which a cause of action accrues, and may be brought at anytime until, by adverse use-or possession, the trespasser has enforced an adverse claim that has ripened, and has become a presumptive right or a valid estate. “ Where the trustees of a turnpike road built buttresses to support it on the land of A, and A thereupon sued them and their workmeu in trespass for such erection, and accepted money paid into court in full satisfaction of the trespass: Held, that after notice to defendants to remove the buttresses, and a refusal to do so, A might bring another action of trespass against them for keeping and continuing the buttresses on the land, to which the former recovery was no bar.” Holmes v. Wilson, supra.

“The defendants were liable for continuing the nuisance, although they had no right to enter upon the land to remove it, and that the action was therefore maintainable.” Thompson v. Gibson, supra.

An owner of land can rightly do, on his own land, any act that does not interfere with another’s rights; and such act is not illegal. But whenever such act causes injury to another, such owner is liable for the damage so caused, and the cause of action accrues at the time of such damage, and not before.

In Bonomi v. Backhouse, 96 Eng. C. L. 622, 654, Willes, J., states the.case as follows: “ The plaintiff was the owner of the reversion of an ancient house. The defendant, more than six years before the commencement of the action, worked some coal mines 280 yards distant from it. No actual damage occurred until within the six years. Question : Is the statute of limitations an answer to the action? Or, in other words, did the cause of action accrue within six years?” He also says: “We think that the right which a man has is to enjoy his own land in the state and condition in which nature has placed it, and also to use it in such manner as he thinks fit, subject always to this : that if his mode of using it does damage to his neighbor, he must make compensation. Applying these two principles to the present case, we think that no cause of action accrued for the mere excavation by the defendant in his own laud, so long as it caused no damage to the plaintiff; and that the cause of action did accrue when the actual damage first occurred.” The court held that the statute did not bar the action. See Butler v. Peck, 16 Ohio St. 334.

And when the owner of land rightly and lawfully does an act entirely on his own land, and by means of such act puts in action, or directs a foi’ce against, or upon, or that affects another’s land, without such other’s consent or permission, such owner and actor is liable to such other for the damages thereby so caused the latter, and at once a cause of action accrues for such damages; and such force, if so continued, is continued by the act of such owner and actor, and it may be regarded as a continuing trespass or nuisance; and each additional damage thereby, caused is caused by him and is an additional cause of action; and until such continued trespass or nuisance by adverse use ripens inte and becomes a presumptive right and estate in the former, the latter may bring his action.

In the case of The Delaware and Raritan Canal Co. v. Lee, 2 Zab. 243, the court held, “An actionable nuisance may be caused by an act perfectly lawful in itself when the nuisance complained of is only a consequence of that act.” It also held, “ The statute of limitations is no bar to allowing damages done within six years, by a nuisance erected before the six years, in cases where the nuisance has not been so long continued as to raise presumption of a grant.”

In the case of Stroyan v. Knowles, 6 Hurl. & Nor. 454, the plaintiff purchased lands, and thereafter the working of mines under lands near to, but not adjoining the close on which buildings stood, occasioned a further subsidence. “No damage was done by the working of the mines subsequently to July, 1852, but the subsidence of the ground continued, the consequence of the previous mining operations. The mining Avas skillfully conducted, and the buildings did not contribute to the subsidence. In August, 1855, the plaintiff brought an action against the defendant. Held, that he rvas entitled to recover damages.” See also Holmes v. Wilson, supra, and Thompson v. Gibson, supra.

In Whitehouse v. Fellows, 100 Eng. C. L. 765, the court held, “If the cause of action be, not the doing of the thing, but the resulting of damage only, the period of limitation is to be computed from the time Avhen the plaintiff sustained the injury.”

And to the same effect is Baldwin v. Calkins, 10 Wend. 167; McConnel v. Kibbe, 29 Ill. 485; Ang. Lim., sec. 300; Wood Nuis., sec. 719; Wood Lim., see. 180, and cases cited. Also Ramsdale v. Foote, 55 Wis. 557; Miller v. Keokuk & D. M. Ry. Co., 63 Iowa, 680.

The facts stated in the amended petition show that the Valley Railway Company diverted the stream and turned its course and current against and over the lands of Franz, and thereby caused the injury complained of. The company remained upon its own land, and cut the new channel and took control of the stream, and directed its course when the same passed from its land and its control, and has ever since so controlled and directed the stream that has caused the damage complained of.

The amended petition states a cause of action that is not barred by the statute of limitations provided for such cases.

In overruling the demurrer the court did not err. Neither did the court error in any other matter presented to us.

Judgment affirmed.


author: Johnson, J.

text:
    The State ex rel. Attorney-General v. Peters.

      Parole of prisoners from penitentiary — Act of May 4, 1885 — Constitutionality.

    “An act to amend an act entitled, ' an act relating to the imprisonmentvof convicts in the Ohio Penitentiary, and the employment, government, and release of such convicts by the board of managers,’ passed March 24, 1884,” passed May 4, 1885 (82 Ohio L. 236), authorizes the board of managers to establish rules and regulations under which certain prisoners then or thereafter under sentence, who had served the minimum term provided by law for the crime for which they were convicted, may be allowed to go upon parole outside of the buildings and inclosures, but to remain while on parole in the legal custody and under the control of the board, and subject at any time to be taken back within the inclosure of the institution, is not an interference with the executive or judicial powers conferred on these departments by the constitution of the state.
    QUO WARRANTO.
    George S. Peters, W. L. Robinson, D. E. Eee, D. E. Rempel, and D. C. Coolman constitute the board of.directors of the Ohio penitentiary.
    The petition by the attorney-general charges that they, as such board, have since May 4, 1885, usurped and unlawfully assumed to hold and exercise the following franchises, powers, and privileges, to wit:
    1. That of establishing rules and regulations, under which any prisoner who, on the 4th of May, 1885, was or might thereafter be imprisoned in the Ohio penitentiary under a sentence other than for murder in the first or second degree, and who may have served the minimum term provided by law for the crime for which he was convicted, and who has not previously been convicted of á felony and served a term in a penal institution, may be allowed to go upon parole outsi.de of the buildings and inclosures of said Ohio penitentiary.
    2. That of establishing rules and regulations, by which prisoners, confined under sentences for a definite term of imprisonment imposed prior to May 4, 1885, and whose terms have not expired, and who have not been pardoned by the governor, may be released, and allowed to go outside of the buildings and inclosures of the prison, subject only to such conditions as the board may prescribe.
    3. That of releasing prisoners who are under sentences fo,r a definite term imposed prior to May 4, 1885, and who have not been pardoued, and of allowiug them to go upon parole outside of the buildings and inclosures until retaken, or re-imprisoned by order of the board.
    4. That of parcloning prisoners duly imprisoned under sentences imposed prior to May 4, 1885.
    The answer of defendants denies that they usurp or unlawfully assume the powers, privileges and franchises stated, but justify doing the acts charged by virtue of “ an act to amend an act relating to the imprisonment of convicts in the Ohio penitentiary, and the employment, government and release of such convicts by the board of managers passed March .24, 1884,” passed May 4, 1885. 82 Ohio L. 236. They admit that they have adopted rules and regulations under which convicts who were confined in the penitentiary at the time said act was passed, under previous conviction .and sentence, as well as those thereafter convicted of a felony less than murder in the second degree, who have not served a previous term' for felony, might go at large upon parole under the law and said rules and regulations, but to remain in the legal custody and control of said board of managers. These rules and regulations were, on June 19, 1885, approved by the governor, and read as follows :
    “Resolved, That in the matter of paroling prisoners, under section 1 of the act passed by the general assembly of the state of Ohio, May 4, 1885, the board of managers shall be governed by the following rules and regulations:
    1. No prisoner shall be.paroled who has not been in the first grade, continuously, for a period' of at least four months.
    2. No prisoner shall be released on parole until satisfactory evidence is furnished the board of managers, in writing, that employment 'has been secured for such prisoner, from some responsible person, certified to be such by the auditor of the county where such person resides.
    3. No prisoner shall be paroled until the managers are satisfied that he will conform to the rules and regulations of his parole.
    4. Every paroled prisoner shall be liable to be retaken and again confined within the inclosure of said institution for any reason that shall be satisfactory to the board of managers, and at their sole discretion; and shall remain therein until released by law.
    5. It shall require the affirmative vote of at least four of the managers to grant a parole.
    6. The parole provided for in said act shall be in the following form, signed by the president and secretary of the board of managers:
    MANAGERS.
    George S. Peters, Columbus, Pres’t. P. P. Remple, Logan.
    W. L. Robinson, Cincinnati. D. C. Coolman, Ravenna.
    D. B. Pee, New Richmond. Eugene Powell, Columbus, Sec'y.
    The act of 1885, passed May 4, section 8, is as follows, viz ;
    Section 8. That said board of managers shall have power to establish rules and regulations under which any prisoner who is now, or hereafter may be, imprisoned under a sentence other than for murder in the first or second degree, who may have served the minimum term provided by law for the crime for which he was convicted, and who has not previously been convicted of a felony, and served a term in a penal institution, may be allowed to go upon parole outside of the buildings and inclosures, but to remain, while on parole, in the legal custody and under the control of the board, and subject at any time to be taken back within the inclosure of said institution; and full power to enforce such rules and regulations, and to retake and reimprison any convict so upon parole, is hereby conferred upon said board, whose written order, certified by its secretary, shall be a sufficient warrant for all officers named therein, to authorize such officer to return to actual custody any conditionally released or paroled prisoner; and it is hereby made the duty of all officers to execute said order the same as ordinary criminal process.
    OHIO PENITENTIARY
    AT
    COLUMBUS, OHIO.
    PAROLE OF PRISONER.
    Know All Men By These Presents, That the board of managers of the Ohio penitentiary, desiring to test the ability of.......................................

      .......................................................-a prisoner of said institution, to refrain from crime and lead an honorable life, do by virtue of the authority conferred upon them by law, hereby parole the said................................. ...............................................................and allow him to go on parole outside the buildings and inclosures of said institution, but not outside the state of Ohio, subject however, to the following rules and regulations:
    1. He shall proceed at once to the place of emploj'ment provided for him, vi?:.................................................and there remain, if practicable, for a period of at least six months from this date.
    2. In case he finds it desirable to change his employment or residence, he shall first qbtain the written consent of the secretary of said board of managers.
    3. He shall on the first day of each month until his final release, according to law, forward by mail to the secretary of said board, a report of himself, stating whether he has been constantly under pay during the last month, and if not, why not, and how much he has earned, aud how much he has expended, together with, a general statement of his surroundings and prospects.
    4.. He shall in all respects conduct himself honestly, avoid evil associations, obey the law, and abstain from the use of intoxicating liquors as a beverage.
    5. As soon as possible after reaching his destination, he shall report to...... .....................show him his parole, and at once enter upou the employment provided for him.
    6. He shall, while on parole, remain in the legal custody, and under the control of said board.
    7. He shall be liable to be retaken, and again confined within the inclosure of said institution for any reason that shall be satisfactory to the board of managers, and at their sole discretion.
    The management of said institution has a lively and friendly interest in the subject of this parolo, and he need not fear or hesitate to freely communicate with the secretary in case he loses his situation, or becomes unable to labor by reason of sickness or otherwise.
    DESCRIPTION.
    Name......... Crime...................
    Age............ Date of sentence.....
    Height........ Date when admitted.
    Weight........ Date of parole........
    Complexion. County..................
    Eyes........... Court....................
    Hair........... Occupation............
    Marks......... Residence..............
    The board of managers:
    By---............. ■President.
    .................................... Secretary.
    7. No alteration or amendment shall be made to these rules and regulations, unless at least four of the managers vote therefor.”
    The defendants disclaim the right to exercise the pardoning power, and assert the right to parole prisoners under the provisions of said act, and the rules and regulations above set forth. This is the question presented for decision.

      James Lawrence, attorney-general, for the state.
    Section 8 of the act relating to the imprisonment of convicts in the Ohio penitentiary, as amended May 4, 1885 (82 Ohio L. 236), is in conflict with both section 11, article 3, and section 1, article 4 of the constitution, at least in so far as it undertakes to confer power upon the board of managers to establish and enforce rules aud regulations under which prisoners imprisoned in the penitentiary by virtue of sentences for a definite term of imprisonment imposed prior to the passage of said act, and whose terms of imprisonment have not expired, may be released and allowed to go upon parole outside of the buildings and inclosures of said institution.
    By section 11, article 3 of the constitution, the whole pardoning power, except as to treason and cases of impeachment, is vested in the governor exclusively, and can not be exercised directly or indirectly by any other authority.
    As to the nature and extent of the pardoning power, see Ex parte Victor, 31 Ohio St. 206; Osborn v. U. S., 91 U. S. 474; 2 Story on the Constitution (4th ed.), sec. 1504; State v. Twitty, 4 Hawks (N. C.), 193; Cooley’s Const. Lim. (3d ed.), 115; State v. Sloss, 25 Mo. 291; Kennedy’s case, 135 Mass. 48; Perkins v. Stevens, 24 Pick. (Mass.), 277; Cook v. Freeholders, 26 N. J. L. (2 Dutch.), 326; Holliday v. People, 5 Gilm. (Ill.), 214; Jones, v. Harris, 1 Strob. (Law), 160; U. S. v. Wilson, 7 Pet. 150; Bouvier’s Law Dict., title “Pardon”; 1 Bishop’s Cr. Law (6th ed.), sec. 914; Ex parte Garland, 4 Wall. 380; State v. Foley, 15 Nev. 64; Com. v. Bush, 2 Duv. (Ky.), 264; Wells’ case, 18 How. 307; Opinion of Judges, 14 Mass. 472; State v. Rose, 29 La. Ann. 755; Lee v. Murphy, 22 Gratt. (Va.), 789.
    When a court exercises the power conferred upon it by the constitution and laws, aud sentences a prisoner to be confined at hard labor in the penitentiary for a definite number of years, the punishment to be inflicted upon such prisoner is determined by the only authority authorized to determine it. By section 1, article 4 of the constitution the judicial power of the state is vested in a supreme court, circuit-courts, courts of common pleas, etc., and the jurisdiction of each is provided for in the subsequent sections of said article. The sentencing of persons convicted of crime is universally considered to belong to the judicial power.
    I do not deny that it is within the province of the legislature to prescribe the amount and character of the punishment to be imposed upon persons convicted of crime, and that when a mitigated form of punishment is provided for an offense, offenders subsequently sentenced are to receive the benefit of such mitigation. "What I claim is that, when the general assembly has fixed the punishment for a given case, the courts alone can impose such punishment. The act of May 4,1885, leaves the existing statutes prescribing the punishment for the various crimes as they were. Courts are still authorized to seutence convicts to solitary confinement or imprisonment at hard labor in the penitentiary for a given number of years. The new law authorizes another authority, not judicial, to come in after the sentence and relieve, a convict from a portion of the punishment imposed on him by his sentence, and to do this not with reference to the character of the offense, but solely with reference to the conduct of the prisoner subsequent to his imprisonment. By thus conferring upon the board of managers power to intervene between the convict and the punishment imposed by law for his offense, the statute affords substantially the advantage and benefit of a pardon. The constitutionality of a statute depends upon its operation and effect, and not upon the form it may be made to assume. State v. Hipp, 38 Ohio St. 199.
    The conditions precedent to the granting of paroles, as set forth in the rules adopted by the board of managers, are restrictions voluntarily -imposed by the board upon its own action under the statute. The governor might in any case require to be satisfied as to the same matters ^before granting a pardon.
    Under the system adopted by the board of managers the release on parole is really granted during and on condition of good behavior, for it can not be supposed that the board will act arbitrarily and reimprison a man without reason. But even if this were so, it would not affect the present question. Can the naked authority be conferred upon such a board to discharge a convict at its pleasure, subject only to the arbitrary condition that the board may reimprison .him at its pleasure? This is where the question comes. Under such a system the board has absolute power to release, and no other authority has power to reimprison. Hence the board has power to release and never reimprison. Thus it has power to do what a pardon alone can do: that is, to relieve a convict from the punishment imposed upon him for his crime.
    The essential thing to be considered is, that the convict is released from imprisonment before the expiration of the term of his sentence. Though he is liable to be brought back before the expiration of his sentence, yet, while he is at large, he is freed from the punishment imposed upon him. He has the benefit in any case of the time between his release and his subsequent detention, and can be remanded only for so much of his term as remains, counting the time he was at large.
    Under the general statutes relating to crimes, courts are authorized to sentence a person convicted of felony to serve a specified term of imprisonment in the penitentiary, which is a penal institution definitely located in the city of Columbus, and as such is recognized and designated in our laws.
    Section 6799, Revised Statutes, provides that, when any person is sentenced to imprisonment in the penitentiary, the court shall declare in its sentence for what period he shall be kept at hard labor, and for what period, if any, he shall be kept in solitary confinement without labor; and there are various statutes which provide for and regulate the hard labor by convicts in the penitentiary. It is clear that all prisoners must be thus sentenced either to solitary confinement or to imprisonment at hard labor in the penitentiary, or to both. The two kinds of imprisonment make up the sum total of the term. This is in accordance with the uniform practice in Ohio. See, also, Ex parte Geary, 2 Bis. 485; Ex parte Karstendick, 93 U. S. 396.
    By section 7330, Revised Statutes, it is provided that a person sentenced to the penitentiary shall within thirty days after sentence, unless the execution thereof be suspended, be conveyed to the penitentiary and delivered into the custody of the warden of the penitentiary, together with a copy of the sentence of the court, there to be safely kept until the term of his confinement expires, or he is pardoned.
    These provisions of the statutes operate upon and are a necessary part of the sentence of every prisoner. ITe is required to be safely kept there: that is, wfithin the penitentiary, and is to be placed-in solitary confinement or imprisoned at hard labor, as the case may be, within the penitentiary until the term of his confinement, according to his sentence, expires, or he is pardoned by the governor. Both the imprisonment and the solitary confinement and hard labor are constituent parts of the punishment inflicted upon the criminal. It would require an act of pardon to relieve him from either.
    It is clear that a convict, who has been released on parole, no longer endures such imprisonment as is contemplated by the law under which he is sentenced. At most his status is that of constructive imprisonment alone; but I maintain that it is not even this. When the prison gates open to release him, he is free to go whithersoever he pleases. Neither the statutes nor the rules of the board of managers require him to remain within the state of Ohio. The rules simply require him to proceed at once to the place of employment provided for him, which place may be either within or without the state. But suppose the prisoner concludes that he will not go to the designated place. He is free to take any train leaving Columbus, and may in a few hours be beyond the borders of the state, and indeed beyond the borders of the United States. Or if, after going to his place of employment, he concludes at any time to leave, he is free to do so. The only thing to prevent.him is his parole : that is, his promise to abide by the conditions of his release. In other words, the sole restraint upon him is a mere moral restraint.
    That restraint of this character is not sufficient to constitute imprisonment, see Wales v. Whitney, 20 Reporter, 289, and cases there cited; Bird v. Jones, 7 Q. B. 742; Wright v. Wilson, 1 Lord Raym. 739.
    It will be contended, however, that, by a sort of fiction, the limits of the penitentiary may be extended throughout the state. This I deny, at least so far as prisoners sentenced under the existing laws are concerned. There is no analogy, in this respect, between the imprisonment of convicts in the penitentiary, and the so-called liberty of the jail-yard, formerly allowed to persons imprisoned for debt. The extension of the jail limits in the case of imprisoned debtors was by the grace of special statutory provisions, clearly and definitely designating the jail limits. The prisoner in such case, not being imprisoned as a punishment for crime, but being detained in custody merely as a security for the payment of the debt, no question as to the interference with the exclusive pardoning power of the governor could arise.
    Neither is there any analogy between the present case and the extension of the jail limits under section 6801 Revised Statutes. The act of March 15,1860 (57 Ohio L. 33), of which section 6801 Revised Statutes is a revision, was by express terms limited to persons, who, after the passage of said act, should be convicted of a criminal offense thereafter committed. It will scarcely be claimed that such an act could be made applicable to an offense committed prior to its passage, where the prior statutes merely prescribed imprisonment in the county jail as the punishment for such offense. Cooley’s Const. Lim. (3d ed.) 265.
    The extension of the jail limits, under section 6801 Revised Statutes, is also limited to the purpose of compelling prisoners to perform labor under the direction of the county commissioners, and the prisoners remain in the actual custody of the sheriff. That kind of custody and that kind of hard labor, by the passage of the act of March 15,1860, became a part of the punishment to which subsequent offenders were liable. It was an increase, not a mitigation, of punishment, The question arising under the act of Maj 4, 1885, is altogether different. Here there has been no attempt made to extend the limits of the penitentiary or to provide for the labor of convicts outside of the inclosures of that institution. The statute does not purport to be enacted for that purpose. Neither has any attempt been made to change the location of the penitentiary. Undoubtedly the general assembly could do this, as perhaps it could, also provideforthe erection of an additional penitentiary, and direct the removal of certain convicts to the new institution. To this extent the state has a right to regulate the custody of its prisoners. But, as I say, nothing of this kind has been attempted here. The penitentiary is still definitely located at the city of Columbus, and its boundaries are marked by walls and inclosures. Under our laws it is still the designated place where persons convicted of felonies are to be imprisoned, and where hard labor is to be performed by them, until the expiration of their sentences or they are pardoned.
    What the act of May 4, 1885, undertakes to'do is to break down the prison walls and open the cell doors, to exchange bolts and bars for a convict’s word of honor, to give liberty instead of imprisonment, to furnish association and companionship instead of solitary confinement, to afford the opportunity for idleness instead of hard labor, in short, to substitute the mere nominal control of the prison managers for the penalty prescribed by law and imposed by the courts as a punishment for crime.

      The present case is also different from the case of the diminution of a convict’s term of imprisonment by "reason of good conduct. The statute authorizing such diminution expressly prescribes the rules and regulations under which each convict who is sentenced for a definite term, other than life, shall be entitled to diminish the period of his sentence. It is by force of the statute itself, and not by the discretion of the prison authorities, that the sentence is diminished. See 81 Ohio L. 187.
    The case of Scott, 19 Ohio St. 581, in which the court held that the act of February 1, 1853 (S. & O. 708), giving to parties imprisoned for non-payment of fines the benefit of laws for the relief of insolvent debtors, and authorizing their discharge as such, is not an attempt to place the pardoning power in hands other than those of the governor of the state, really depended on the relation of debtor and creditor. The imprisonment was not strictly speaking imposed as a punishment for crime, but resulted from the nonpayment of a fine imposed as such punishment. Against that indebtedness the prisoner might properly be relieved as well as from indebtedness of any other character.
    Furthermore, the relief given to an insolvent under the act of February 1, 1853, does not proceed from the grace of any officer or other authority, but results from the statute itself, which provides that he should be entitled'to all the benefits of the act for the relief of insolvent debtors, in the same manner as though the amount of said fine, penalty, or costs had been recovered against such person in any civil action, etc. It must have been in this view of it that the statute is said to be merely the modification of penalties prescribed for certain offenses. At most the Scott case is applicable here only to the question in respect to prisoners sentenced since the passage of the act of May 4, 1885, for, after judgment, the execution of a sentence can not be affected by the enactment of a mitigated punishment for the offense. Slate v. Addington, 2 Bailey (S. C.), 516.

      George Hoadly and George S. Peters, for defendants.
    The" section of the Revised Statutes which is supposed to be interfered with by the power of parole is: “ Sec. 7330. A person sentenced to the penitentiary shall ... be conveyed to the penitentiary . . . and delivered into the custody of the warden of the penitentiary . . . there to be safely kept until the term of his confinement expires, or he is pardoned.”
    The word “ there ” refers to the “ custody of the warden,” in analogy with the familiar rule of grammar that a relative refers to the next previous antecedent; but if this be not so, and the adverb “there” is held to relate to the more remote antecedent “ penitentiary,” then we say that a prisoner remains not only in the legal “custody of the warden,” but in prison, even if actually permitted to go outside the walls of the prison.
    It has always been held that a prisoner within prison bounds is, nevertheless, imprisoned. Buttles v. Carlton, 1 Ohio, 32.
    In Bonafous v. Walker, 2 Term, 131, Mr. Justice Ashurst says: “ By 8 & 9 Wm. 3, the rules are to all intents and purposes the same as the walls of the prison.”
    In Holmes v. Lansing, 3 John. Cas. 73-76, it was held that the jails are “ to be considered as enlarged, from the four walls of the ancient law, to the assigned limits; and so long as the prisoner was within those limits, so long he was to be considered, in judgment of law, as in prison.” See Peters v. Henry, 6 John. 121, 124.
    See also Hayden v. Palmer, 24 Wend. 364, in which a prisoner on the limits was held entitled to the benefits of an act for the discharge of insolvents “in prison.”
    See also, to the same effect, a full consideration of the subject in Coman v. Storm, 26 How. Pr. 84.
    Should the penitentiary be rendered uninhabitable by flood, fire, or pestilence, the prisoners could not, on the theory we are resisting, be confined elsewhere. Should the increase of population and corresponding increase of crime, or the decay of morals without increase of population, render the present penitentiary inadequate, so that more land must be bought, then, on the theory we are combat-ting, the new portions of the prison can only be used for prisoners sentenced after the purchase of the land, and a prisoner of older date can not be put at work or lodged in the newly acquired territory without making a case of escape.
    The exercise of the power of parole under the act in question does not amount to the power to pardon, and is not excluded by the fact that the power to pardon is conferred on the governor only. Opinion of Judges of Supreme Judicial Court, 13 Gray, 618. This, for the reason that “pardon operates directly on the crime, and only indirectly on the criminal.” Commonwealth v. Holloway, 42 Pa. St. 448.
    Pardon cleanses the prisoner from guilt, and puts him in statu quo ante crimen. Or, otherwise stated, but with the same result and practical effect, it gives the prisoner “ a new credit and capacity.” On either theory, he is to be henceforth treated as innocent, and as having been innocent, except that the pardon “ does not restore offices forfeited, or property or interests vested in others in consequence of the conviction and judgment.” Ex parte Garland, 4 Wall. 333; Carlisle v. United States, 16 Wall. 151; Osborn v. United States, 91 U. S. 478; Knote v. United States, 95 U. S. 153; Knapp v. Thomas, 39 Ohio St. 377, 381.
    Nor is a parole the exercise of the power of commutation. Bouvier describes “ commutation ” as : “ The change of a punishment to which a person has been condemned into a less severe one” But it can not be said here that the punishment is less severe. It is the same, viz.: restraint of liberty by the officers of the penitentiary. No order which leaves the prisoner in the legal custody of the warden or board of managers for the same period can be said to be the commutation of the sentence to imprisonment.
    The pending objection can not be made by the state. It is personal to the prisoner. If any one has the right to complain, it is he. He might say that the parole deprives him of a home, and the means of support provided by law. This would rather be a grim joke than an argument. But, seriously, who is injured by the parole? Not the state, for the general assembly has given its consent, and volenti non jit injuria. Not the prisoner, for he is benefited, not injured. This parole is a mere inter-penitentiary regulation for the temporary disposition and employment of the prisoners for the mutual benefit of themselves and the • state.

      Grogan $ Price, also for defendants.
    Courts have done their duty, and their power is exhausted when they have adjudged against the prisoner the penalty affixed to the offense, which penalty then becomes a species of obligation due to the state which the legislature may modify or release. Board of Education v. McLandsborough, 36 Ohio St. 227.
    The “ hard labor ” part of a sentence — the only part having any semblance of value to the state — is not strictly a part of the penalty attached to the offense. Revised Statutes, sec. 6799.
    Section 8 of the act in question does not confer legislative authority upon the board of managers. The plain intent of the language is to confer authority upon the board to grant certain privileges to prisoners upon their parole, and to prescribe the manner in which this authority shall be exercised, to-wit: in accordance with fixed rules and regulations, so as to be uniform and definite.
    The court will look to the substance more than to the form in determining the constitutionality of a statute. State ex rel. Attorney-General v. Kennon, 7 Ohio St. 559.
    There is no difference in fact or effect between granting authority to the board to parole prisoners by an official act, and granting to them authority to establish rules and regulations under which they may parole them. The results aimed at and accomplished are the same, and the rights affected and powers exercised are equivalents.
    The exercise of the power of paroling under the authority of this act, is not, in fact, pardoning or its equivalent. To pardon is “ to remit the penalty of; ” “ to suffer to pass without punishment.” Nothing of this sort is pretended to be done by the board. It simply makes new prison rules for these cases, and allows this class of convicts to go upon the outside of the prison walls, but not beyond its authority, nor free from the restraints imposed by its rules; and while out they remain subject, at the discretion of the board, to be returned within the walls at any time. Prisoners thus on parole are in no sense free. Their deportment aud industry are, as before release, under the control of the board.
    Section 7 of this act authorizes each convict to diminish the period of his sentence by good conduct. This plan has been in successful operation for many years, and, although it releases absolutely, it has never been objected to as a pardoning power filched from the governor, but has been regarded as a modification of the penalty'by the legislative authority.
    The effect of section 8 is to make the penitentiary, for the purpose of paroled prisoners, coextensive with the boundaries of the state. A prison does not necessarily consist of an inclosure. The “ parole ” is a substitute for the armed guards aud high walls.
    The fact that the statute applies as well to convicts sentenced prior to its passage as to those sentenced subsequently thereto, does not make it retroactive. The state has no vested right in the service of prisoners under the prison rules in force at the date of sentence. The convicts are not imprisoned for pecuniary profits, nor has the state contracted with them for their services by having permitted them to commit so much crime for so much service.
    The prohibition of retroactive legislation does not apply to the modification of penalties, but only prohibits the sovereign power from disturbing the vested rights of individuals. In no case does it hinder the state from divesting itself of any right or claim of its own. Walker’s Am. Law, 213 note, and 491. See Board of Education v. McLandsborough, supra.

    Courts of justice are authorized to declare a legislative act unconstitutional and void only when it violates the constitution clearly, palpably, plainly, and in such manner as to leave no reasonable doubt. Stewart v. Supervisors, 30 Iowa, 9; Tonnage Tax Cases, 62 Pa. St. 286; Gilpin v. Williams, 25 Ohio St. 293, 294; West. Union Telegraph Co. v. Mayer, 28 Ohio St. 521, 546.
   Johnson, J.

The constitutionality of this act is challenged on two grounds.

1. Because section 11, article 3 of the constitution of Ohio vests in the governor the exclusive right, “to grant reprieves, commutations, and pardons, for all crimes and offenses, except treason and cases of impeachment, upon such conditions as he may think proper; subject, however, to such regulations, as to the manner of applying for pardons, as may be prescribed by law.”

2. Because this act and these regulations provide for the. exercise of judicial power, and therefore are in conflict with section 1, article 4 of the constitution, which vests judicial power in the courts therein named.

By section 5 of the original act, passed March 24, 1884 (81 Ohio L. 72-76), it was provided that every sentence to-the penitentiary of a person thereafter convicted of a fel'ony, except for murder in the second degree, who had not previously been convicted of a felony and served a term in a penal institution, shall be, if the court thinks it right and proper, a general sentence of imprisonment in a. penitentiary. That is what is called an indeterminate sentence.

The term of such 'sentence may be terminated by the board of managers as authorized by the act, but no prisoner should be released until he has served at least the minimum term provided by law, nor can he be held longer than the maximum term so provided.

By section 6 the clerk of any court pronouncing a deter-' mínate sentence is required to furnish to the warden, or other officer having such criminal in charge, a record containing a copy of the indictment and of any special plea, and the name and residence of the j udge; also the names of the j urors and witnesses, with a statement of any facts which the judge may deem important or necessary to a full comprehension of the case, and of the judge’s reasons for the sentence inflicted.

By section 7 the board of managers are required to, ■“ subject to the approval of the governor, make such rules and regulations for the government .of the prisoners as shall best promote their reformation ; ” by separation and classification of prisoners, division into grades, with promotion and degradation according to their merit, employment and instruction, and industry, their education, their conditional and absolute release. It is also provided that in no case shall a prisoner be released unless the managers have reasonable ground to believe he will, if released, live and remain at liberty without violating the law, and that his release is not incompatible with the welfare of society.

Section 8 of that act is in its main features the same as amended section 8 above quoted, but was limited to persons “hereafter convicted,” who had received an indeterminate sentence,.while amended section 8 applies to any prisoner “ who is now or hereafter maybe under sentence.” By this amendment the power of the board of managers to establish rules and regulations for the parole of prisoners outside of the buildings and inelosures of the penitentiary was extended to all prisonei’s serving a determinate sentence, whatever its date, except only those sentenced for murder in the first or second degree, or who had not previously been convicted of a felony and served a term in a penal institution.

Sections 5 and 7 of the original act were amended April 14, 1884. (81 Ohio L. 186.)

The amendment of section 7, “in order that good behavior may be properly rewarded,” requires that the daily record of behavior be kept of the conduct of each prisoner; provides that a convict who passes the entire period of his imprisonment without violating the rules and discipline, shall, upon his release or discharge, be restored to his rights and privileges, forfeited by conviction, and shall receive from the governor, under the great seal of state, a certificate as evidence of such restoration. It is further provided for such restoration to convicts who have conducted themselves in an exemplary manner for not less than twelve consecutive months, upon application of ten or more citizens where the prisoner last resided. It is further provided under specific rules for the diminution of all determinate sentences, other than for life, by deductions for good conduct. It is also provided that for a violation of the rules and discipline, or want of fidelity and care in the performance of work, for a deduction from the time gained by good conduct.

A liberal discretion is vested in the board in administering this system of merit and demerit accounts of convicts who are under determinate sentences.

The new feature of this act is that providing for a parole of convicts.

It marks a new experiment in the management and discipline of prisoners, whether serving under fixed or indeterminate sentences. It is evidently prompted by a desire to reform, as well as to punish, to make better those under sentence, as well as to protect society.

It is declared that “ the board of managers shall, subject to the approval of the governor, make such rules and regulations for the government of the prisoners, as shall best promote their reformation.”

This legislation makes it the duty of the board of managers, while executing the penalties for crime to seek the improvement of the criminal. The paramount object is the welfare of society, hence the sentence to imprisonment of those convicted, and hence, also, the effort to educate and reform the convict so that he may, if possible, become a good member of society when he is released or his term expires.

Whether this legislation is wisely adapted to that end, or whether it is practicable, it is not the province of this court to determine. It is conceded that the rules and regulations are such as the act authorizes, so the sole question is, is the act itself as amended, valid? Are the powers conferred an infringement of those conferred upon the executive or judicial depai’tmeuts ? The sovereign power of the state is vested in three departments — legislative, executive, and judicial. Whatever power is vested in either the executive or judicial departments can not be exercised by the legislative. What are legislative powers, or what executive or judicial powers is not defined or expressed in the constitution, except in general terms.

The boundry line between them is undefined, and often difficult to determine. May decisions are reported growing out of this general division of powers, and eminent writers upon constitutional law have endeavored to mark the line. To these sources we must refer without quoting.

It must suffice for our present purpose to say that it is among the admitted legislative powers to define crimes; to prescribe the mode of procedure for their punishment; to fix by law the kind and manner of punishment, and to provide such disciplinary regulations for prisoners, not in conflict with the fundamental law, as the legislature deems best.

In many instances the legislature fixes the penalty, as for instance in murder in the first and second degree, and this has never been regarded as an infiringement of the judicial power.

The law might fix a definite sentence for each crime without such infringement. The statute vests in the courts in some instances a discretion between a maximum and minimum penalty, or between alternative penalties, but this discretion might be taken away without infringing upon the exclusive power of the judiciary.

Revised Statutes, section 6799, authorizes and requires the court in sentencing a prisoner to declare for what period he shall be kept at hard labor, and for what in solitary confinement without labor, and in all eases of conviction the defendant shall pay the cost of prosecution. The trial, verdict and sentence provided bylaw are judicial functions, yet no one doubts the power of the legislature as the representative of the state to mitigate the penalty by abolishing hard labor or solitary confinement, and substituting therefor a less severe form of executing the sentence. The manner in which the discipline of the prison shall be enforced must necessarily be left to the board of managers under appropriate legislation. Section 7330 of the Revised Statutes is relied on. It requires the sheriff to deliver the convict to the warden of the penetentiary, there to be safely kept until the term of his confinement expires, or he is pardoned. Emphasis is laid upon the word “there” as meaning within the walls of the penitentiary, and as part of the judicial sentence.

This is no part of the judicial act of the court, but as a duty imposed upon the sheriff and warden in the execution of the sentence. It does not interfere with the power of the legislature in case of flood, fire, or pestilence, or for other sufficient cause to establish prisons elsewhere, and transfer convicts thereto. Nor with power to extend the limits of the.penitentiary to any part of the state without its walls for the employment of the convicts. Thus the act of March 12, 1831 (3 Chase’s St. 2010), provided: See. 7. That the penitentiary is hereby declared to extend to any brick-yard or other place or places of employment of the convicts without the walls of the prison, at which such convicts may be employed by order of the directors.”

By act of February 11, 1832 (30 Ohio Local Laws, 294; Swan’s St.' of 1841, note to p. 257), it was provided (sec. 12), that the jail of Hamilton county should extend—

“ To any stone quarry or any quarries, road or roads, or other place or places within the limits of the county of Hamilton, at which the convicts may be advantageously employed without the walls of the prison.” •

This provision was extended to Cuyahoga county by act of February 16,1839 (37 Ohio Local Laws, 54; Swan’s St. of 1841, note to p. 259.)

The act of March 12,1845 (43 Ohio Laws, 79; 2 Curwen’s Stat. 1139), contains the same provisions (sec. 3), but limited by section 4, to the counties of Montgomery, Muskingum, Meigs, Scioto, and Lake.

On January 13, 1846 (44 Ohio L. 9; 2 Curwen Stat. 1193), this limitation was repealed with a saving of Hamilton and Cuyahoga counties. Thus the jail extension was made applicable throughout the entire state, Hamilton and Cuyahoga counties being provided for by the special acts above referred to.

By the act of February 23, 1833 (Swan’s St. of 1841, 735), prison bounds were made eo-terminous with counties.

Revised Statutes, section 6801,’ makes county jails for the purpose of confining prisoners committed for non-payment of fines or costs, and convicts sentenced to hard labor in jail, extend “ throughout the county.” ,

“ The penitentiary,” as the term is used in the statute, does not mean the place, geographically limited, which, at the moment of the sentence, may be legally designated, or in use for the confinement of criminals. No such narrow limitation is admissible. The words refer to the place or places which, for the time being, the legislature may provide for the incarceration of criminals. Reed v. Fullum, 2 Pick. 158; Re Hartwell, 1 Lowell, 536; Walton v. State, 88 Ind. 9; Brown v. The People, 75 N. Y. 437.

If this be not so, then the laws for the transfer of prisoners from the penitentiary to the two industrial schools have reference only to those minors who were sentenced before their passage. Revised Statutes, sections, 761, 772.

And there will be no possibility of transfer to the proposed intermediate penitentiary, except perhaps of prisoners sentenced after its establishment.

Likewise deductions from imprisonment by way of rewards for good conduct can not apply to prisoners undergoing imprisonment at the passage of the acts permitting them, or between their repeal and re-enactment. Revised Statutes 7432, repealed March 24, 1884 (81 Ohio L. 77 — re-enacted April 14, 1884, 81 Ohio L. 187).

Nor will it be lawful to relax the severity of a'sentence to imprisonment at hard labor even in case of disability of Bickness, or to modify the rigor of a sentence to solitary confinement.

Revised Statutes section 7427, provides that the board may modify the sentence of the court to solitary confinement when necessary to prevent serious injury to health, and section 7428 provides for a transfer of insane convicts to the Columbus^ insane asylum.

This legislation applies to convicts who becamé such before as well as after the passage of the act. It can not seriously be contended that this is an interference with the judicial functions of the court, but is rather the exercise of that guardianship and power of discipline, which is vested in the state, to be exercised through the legislative department, for the safe-keeping, proper punishment, and welfare of the prisoner. Neither is it an interference with the exclusive power vested in the governor to grant reprieves, commutations, and pardons. While on parol the convict remains “ in the legal custody and under the control of the board, and subject at anytime to be taken back within the inclosure of said institution, and with full power to enforce such rules and regulations, and to retake, and to re-imprison any convict so upon parole.” This is not. a pardon.

“ A pardon is an act of grace, proceeding from the power intrusted with the execution of the laws, which exempts the individual on whom it is bestowed from the punishment the law inflicts for a crime he has committed.” United States v. Wilson, 7 Pet. 150.

A pardon discharges the individual designated from all or some specified penal consequences of his crime. It may be full or partial, absolute or conditional. Bouvier’s Law Dict., title, Pardon; 1 Bishop’s Cr. Law (6th ed.), sec. 914.

A full and absolute pardon releases the offender from the entire punishment prescribed- for his offense, and from all the disabilities consequent on his conviction. Ex parte Garland, 4 Wall. 380; State v. Foley, 15 Nev. 64; Commonmonwealth v. Bush, 2 Duv. (Ky.) 264.

Section 8 does not purport to discharge the prisoner or shorten his term of service. It simply authorizes the board of managers to allow the prisoner to go outside the buildings and inclosures of the penitentiary, but he is to remain in their legal custody and under their control. Neither is it a commutation of the sentence; commutation is “ the change of a punishment to which a person has been condemned into a less severe one.” Bouvier Law Diet.

It is not a conditional pardon, but the substitution of a lower for a higher grade of punishment, and is presumed to be for the culprit’s benefit. Ex parte Victor, 31 Ohio St. 206.

Section 7 of the act under consideration provides for a system of credits whereby the term of sentence may be diminished. In Commonwealth v. Holloway, 42 Pa. St. 448, it was held that such legislation was not an interference with the pardoning power, for the reason that “ pardon operates directly on the crime and only indirectly on the criminal.” But it was further held by a divided court that such diminution of sentence, by reason of good conduct, was an interference with the judicial power, and therefore void. The reasoning of the majority is by no means satisfactory; it fails to distinguish between the judicial duties proper and those acts relating to the mode and manner of executing a sentence. The same question came before the supreme court of Massachusetts, 13 Gray, 618, where a like law as that in Pennsylvania was Upheld.

This court, in Ex parte Scott, 19 Ohio St. 581, held that “ giving to parties imprisoned for non-payment of fines the benefit of laws for the relief of insolvent debtors, and authorizing their discharge as such, is 'not an attempt to place the pardoning power in hands other than those of the governor of the state. It is merely a modification of penalties prescribed for certain offenses, and is not in conflict with the constitution.” Surely, nothing more can be said of the exercise of the powers of the board herein complained of.

It may be claimed that this act, so far as it affects past sentences, is retroactive, and therefore unconstitutional. This can not be, as by this provision the legislature is only prevented from interfering witb tbe vested rights of individuals.

It does not hinder the state from divesting itself of any right of claim of its own. The only party who could object is the prisoner, and he can not, where it is clearly for his benefit. If the provisions of the law are not ex post facto in their nature, he cán not complain.

Whether, under this act and the regulations adopted by the board, a case might not possibly arise in which the personal rights of the prisoner would be infringed, it is impossible to say. Until such a case does arise we need not consider the question.

So far as the state has a right to inquire, we hold this legislation valid.

Writ refused.