clusion of all other considerations? In such case there is no market price, and evidence of a fair market price or a fair market value is clearly admissible. In the absence of an agreement, a price fixed by a combination of dealers does not bind the purchaser, nor will the law so far countenance such combinations as to regard prices fixed by them as even evidence of value. The argumentative portion of the charge, relating to the letters written by defendant, was clearly erroneous. It could not fail to convey to the jury the impression formed by the trial judge regarding that testimony, and to give direction to their judgment. All inferences to be drawn from the testimony are exclusively for the jury, and not for the court. Richards v. Fuller, 38 Mich. 656; People v. Gastro, 75 id. 132, and cases cited. It is no part of the duty of the court to convince the jury as to matters of fact. The judgment must be reversed, and a new trial ordered, with costs to defendant. MORSE, J., Concurred with MCGRATH, J. 64 ised or agreed to pay the price so established, it follows that he may be obliged to pay a highly unreasonable price. I do not think a price so fixed by a combination of manufacturers or dealers is competent evidence to show a reasonable price of goods sold by the members of such combination. Such combinations to control prices are intended to stifle competition, which is a stimulus of commercial transactions, and to substitute therefor the stimulus of unconscionable gain, whereby the participants in such combinations become enriched at the expense of the consumer, beyond what he ought legitimately to pay, under a healthy spirit of competition in the business community. The effect of such combinations to control prices is the same as that other class of contracts which has always been denounced as vicious, namely, contracts in re straint of trade. Public policy places its reprobation upon one equally with the other. These combinations to control prices are becoming very numerous, and affect not only the staples of human sustenance, but nearly all the necessaries of life and the necessaries of business. Such combinations to control prices are against public policy, and void, on the ground that they have a mischievous tendency, so as to be inju rious to the best interests of the State. The best interests of the State require that all legitimate business should be open to competition; that the current price of commodities should by controlled by the law of demand and supply; that the laws of commerce should flow in their accustomed channels, and should not be diverted by combinations to control prices fixed by the arbitrary decision of interested parties. Of course what is said above does not apply to monopolies authorized by law; as for instance, to patented articles. The odious features of illegal monopolies are plainly apparent. These can absolutely control the prices which the public shall pay, and it is this monopolistic stamps them as odious, because they exercise the franchises of the monopoly without the legal right. These views are supported in the following cases: Anderson v. Jett, 89 Ky. ; Railroad Co. v. Closser (Ind. Sup.), CHAMPLIN, C. J. In executed contracts of sale upon credit, where the price is not agreed upon at the time of sale, the law implies an understanding to pay what the commodity is reasonably worth. 1 Benj. Sales, p. 102, § 85. In Acebal v. Levy, 10 Bing. 376, the declaration alleged that the plaintiff had sold to the defendants a cargo of nuts, at a certain value, namely, the then usual and common shipping price for nuts at the port where the cargo was shipped, and that in consideration thereof defendants undertook and faithfully promised to accept the said nuts, and pay the plaintiff for the same on delivery thereof to the defendants. The declaration then alleged that the usual and common shipping price and value of the nuts at the port of shipment was at a certain rate, naming it; and that they were ready to deliver, and offered to de-feature of such combinations to control prices which liver, the nuts to the defendants, but they refused to accept. In deciding the case, Chief Justice Tindal said: Whether in all cases of executory contracts of purchase and sale, where the parties are altogether silent as to the price, the law will supply the want of any agreement as to the price by inferring that the parties must have intended to sell and to buy at a reasonable price, may be a question of some difficulty. Undoubtedly the law makes that inference where the contract is executed by the acceptance of the goods by the defendant, in order to prevent the injustice of the defendant taking the goods without paying for them. But it may be questionable whether the same reason applies to a case where the contract is executory only, and where the goods are still in the possession or under the control of the seller." And he further says: "A contract to furnish a cargo at a reasonable price means such a price as the jury upon the trial of the case shall, under all the circumstances, decide to be reasonable. This price may or may not agree with the current price of the commodity at the port of shipment at the precise time when such shipment is made. The current price of the commodity may be highly unreasonable, from accidental circumstances, as on account of the commodity having been purposely kept back by the vendor himself, or with reference to the price at other ports in the immediate vicinity, or from various other causes. This case is cited and approved in James v. Muir, 33 Mich. 223. The principle underlying the decision is that the vendor cannot be permitted, by withholding the commodity from market or otherwise, to fix the current price of the commodity, and thus fasten upon the purchaser an implied agreement to pay such price. If the plaintiffs in this suit, by combining with | goods, the evidence to establish the reasonable worth other manufacturers or dealers, can thus arbitrarily establish the current price of the commodity sold, and 26 N. E. Rep. 159; People v. Refining Co., 7 N. Y. Supp. 406; Richardson v. Buhl, 77 Mich. 632; Carbon Co. v. McMillin, 119 N. Y. 46; Stanton v. Allen, 5 Den. 434; Morris Run Coal Co. v. Barclay Coal Co., 68 Penn. St. 173; Arnot v. Coal Co., 68 N. Y. 558; Salt Co. v. Guthrie, 35 Ohio St. 666; Association v. Koch, 14 La. Aun. 168; Denver, etc., R. Co. v. Atchison, etc., R. Co., 15 Fed. Rep. 650; Hilton v. Eckersley, 6 El. & Bl. 47; West Va. Trans. Co. v. Ohio River Pipe-Line Co., 22 W. Va. 600, 617; W. U. Tel. Co. v. American Union Tel. Co., 65 Ga. 160; Craft v. McConoughy, 79 Ill. 346; Raymond v. Leavitt, 46 Mich. 447; Faulds v. Yates, 57 Ill. 416; Wright v Ryder, 36 Cal. 342. I have no doubt that in executory contracts of sale, where the goods have not been accepted, such price so fixed cannot be recovered; and I am also of opinion that such price so fixed is no criterion of the market value or current price in an action brought for goods sold and delivered, where no price has been agreed upon. In this case the goods have been ordered and accepted without any reference to the price to be paid. The law presumes that the defendant intended to pay what the knives were reasonably worth. As pointed out in James v. Muir, 33 Mich. 223, the market value and the reasonable worth of a commodity are not always the same. Ordinarily the market value is evidence of what goods are reasonably worth. Kountz v. Kirkpatrick, 72 Penn. St. 376, 386; Benj. Sales, p. 103, § 86. If there be no market value of manufactured must necessarily be the cost of production, which would include the cost of labor and material, and a if the purchaser can be held to have impliedly prom- | reasonable profit on the cost of production. The tes timony must be submitted to the jury, and it is their province to determine from such testimony the reasonable worth of such goods. It does not rest with the witnesses to swear what they are reasonably worth, but they may state the facts from which the jury may determine the reasonable worth. Nor can this court pass upon that question. It is one of fact, and not of law. Becker v. lecker, 9 Ind. 497. Generally speaking, it is competent for a witness,afte. he has been shown to be qualified to express an opinion as to value of the thing in dispute, to state to the jury what his opinion as to value is. But such opinions are not absolutely binding upon the jury, but only as persuasive, and may be considered by them in arriving at their own conclusion. Thomp. Trials, § 380. [Omitting statement of facts.] The court further charged the jury as follows: "On the part of the defendant, it is further contended that there was an unlawful combination between the manufacturers of such articles as these, for the purpose of enhancing their price or putting their price beyond the real market value. If that is so, such a combination is unlawful, and the mere fact that the price is fixed in an arbitrary manner like that is not binding upon the jury in determining the real market value of the property. On the part of the plaintiff it is admitted that there was such an association or organization of the manufacturers of knives or edge-tools of this country; that they got together, and put reasonable prices only upon their goods. Well, if that is a fact, then there would be nothing unlawful in such a combination as that. If they combine for the purpose of putting a fictitious value upon their goods, or for the purpose of driving small manufacturers out of the business by putting their goods down to a lower price than the market price, and below what they can be made for, and do this for the purpose of ruining such other manufacturers, such a combination is unlawful. It is a question of fact, to be determined from what took place between these men, whether the association was unlawful or not. The fact that there is an association would not justify the inference that it was unlawful or that it was formed for a purpose contrary to law. If, without any reason, they put an additional twenty per cent upon these knives, merely using this power that they had arbitrarily for the purpose of controlling the market, that would be unlawful on their part; but if, on the other hand, as it is claimed, there was a great risk connected with the making of these particular knives, and on account of the nicety of the work required, and the extreme risk, these manufacturers felt that it was just and right and proper, for the purpose of protecting themselves against loss, to fix a fair market price for this work, and they put this twenty per cent on it, I should say it was a legitimate act." other hand, competition is disarmed by combination, and the price is fixed arbitrarily by the sellers, to which all engaged in selling must conform. The judgment should be reversed and a new trial granted. GRANT, J. [Omitting minor" matters.] The price charged was $72.86 per set, with twenty per cent extra. From the total bill a discount of twenty per cent was allowed, leaving the amount claimed $139.89. Defendant admitted his liability for all except the extra twenty per cent, amounting to $29.14. This price was fixed by the Machine Knife Makers' Association of the United States, of which plaintiffs were members, and which then embraced all the knife-makers in the United States. Under its rules its members were required to charge association prices, under a penalty of $100 for neglect to do so. These knives were what were called " special knives," so made as to form in reality one knife. Evidence on the part of the plaintiff showed that greater care was required in their manufacture than in that of ordinary knives, and that the price charged afforded a reasonable profit. Defendant's counsel requested the court to instruct the jury that this combination was unlawful. This the court refused, but did instruct them that "an arbitrary price fixed by such an association was not binding upou them in determining the market value of the property, but that there was nothing unlawful in their combining and putting reasonable prices upon their goods; that the fact that there is an association would not justify the inference that it was unlawful, or that it was formed for a purpose contrary to law; that if, without any reason, they put an additional twenty per cent upon these knives, merely using this power that they had arbitrarily, for the purpose of controling the market, that would be unlawful on their part; but if, as it is claimed, there was a great risk connected with the making of these particular knives, and on account of the nicety of the work required, and the extreme risk, these manufacturers felt that it was just and right and proper, for the purpose of protecting themselves against loss, to fix a fair market price for this work, and they put this twenty per cent on it, I should say it was a legitimate act." Associations of manufacturers are not necessarily unlawful. The evidence does not show that the sole object of this association was to control prices. The association might be entirely lawful, while an arbitrary price fixed by it would not bind a purchaser who had not expressly agreed to pay it. The court would certainly have been justified, under the plaintiffs' evidence, in instructing the jury that this twenty per cent so fixed by this association did not bind the defendant, and did not make a market price. But in addition to the instruction I have above quoted, the court instructed the jury that the combination was unlawful, if formed for the purpose of enhancing the price, or putting it be What I have said in the beginning of this opinion need not be repeated; much that is said in the in-yond the real market value. There was no evidence struction is a correct statement of the law, but testimony was ruled out that would have thrown light upon the question as to whether the purposes of the association are only "to put reasonable prices upon their goods." The testimony of the members of the association cannot be taken as undisputed or indisputable. On the contrary, the testimony in the case before referred to was sufficient, in my judgment, to condemn the object of this association as unlawful. The reasonableness of the prices must depend upon the cost of production, the cost of material used, the risks of the business, the labor of producing, the demand for the goods, and all those facts which tend to show the reasonable worth of the articles, and there can be no market value of the article where its current price is not affected by competition, but on the that the price was unreasonable, or afforded more than a fair profit. The only error in these instructions was in not informing the jury that as to this twenty per cent there was no evidence of a market value, for a combination cannot fix a price arbitrarily, and make it the market price, and that the only question for them was the reasonable worth of the knives. But the failure to so instruct the jury is not complained of. it the case made was one for a jnry to determine the "fair" or "real" market value, I think the charge fairly submitted that question to the jury, and that no error was committed in refusing to charge that the association was unlawful. LONG, J., concurred with GRANT, J. CONSTITUTIONAL LAW-JUDICIAL POWERS -RELEASE OF CONVICT ON PAROLE-SENTENCE. MICHIGAN SUPREME COURT, NOV. 13, 1891. PEOPLE V. CUMMINGS. Act No. 228, Public Acts of Michigan of 1889, which provides that the court may in its discretion impose " a general sentence" of imprisonment upon any person thereafter convicted of a crime, and that the board of control of prisons may establish rules and regulations, under which a person so sentenced, who has served the minimum term provided for his crime, may be allowed to go on parole outside of the prison 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 upon being "declared a delinquent" for violation of his parole, "by a formal order entered in the board's proceedings," to be treated as an escaped prisoner," and made, when arrested," to serve out the unexpired period of the "maximum possible imprisonment," etc., is void, as it clothes said board with authority tantamount to judicial and pardoning powers, which the Constitution of Michigan, article 6, section 1, and article 5, section 11, vests exclusively in special courts and the governor, respectively. A sentence thereunder for "not less than two nor more than four years," in the discretion of said board, is good for the minimum period. James E. McBride, for appellant. A. A. Ellis, Atty.-Gen., and W. J. Turner, Pros. Atty., for the people. MORSE, J. This case involves the constitutionality of Act No. 228, Public Acts of 1889. The act in full is as follows: "An act to provide for indeterminate sentences, and disposition, management and release of criminals under such sentence. Section 1. The people of the State of Michigan enact that every sentence to State prison at Jackson, the State house of correction and reformatory at Ionia, and the State house of correction and branch of the State prison in the Upper Peninsula, of any person hereafter convicted of a crime, except of a person sentenced for life, or a child under fifteen years of age, may be in the discretion of the court a general sentence of imprisonment in that one of the prisons provided by law for the offense of which he is convicted. The term of such imprisonment of any person so convicted and sentenced may be terminated by the board as authorized by this act, but such imprisonment shall not exceed the maximum term provided by law for the crime for which the prisoner was convicted and sentenced, and no prisoner shall be released until after he shall have served at least the minimum term provided by law for the crime for which he is convicted. Sec. 2. Every clerk of any court by which a criminal shall be sentenced to any prison, whenever the term of sentence may not be fixed by the court, shall furnish the warden or other officer having such criminal in charge a record containing a copy of the information or complaint, of any such plea, the name and residence of the judge presiding at the trial, also of the jurors and witnesses sworn on the trial, with a statement of any fact or facts which the presiding judge may deem important or necessary for the full comprehension of the case, and of his reasons for the sentence inflicted, and such copy, statement and abstract, signed by the clerk of the court, shall be prima facie evidence against the convicted person in all proceedings for the relief of such person by a writ of habeas corpus or otherwise. The clerk of the court shall be entitled to such compensation in every case in which he shall perform the duties required by this act as shall be certified to be just by the presiding judge at the trial, and shall be paid by the county in which the trial is had, as a part of the court expenses. The clerk shall also, upon any conviction and sentence, forthwith transmit to the warden of the prison to which sentenced notice thereof. Sec. 3. The board of control of prisons shall have power to establish rules and regulations under which prisoners sentenced under this act 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 prison, and full power to enforce such rules and regulations and to retake and re-imprison any convict so upon parole, is hereby conferred upon said board, whose written order by its clerk shall be 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 such order the same as in any ordinary criminal process. Sec. 4. The board shall make such rules and regulations for the separation and classification of prisoners sentenced under this act into different grades, with promotion and degradation, according to the merits of the prisoners, their employment and instruction in industry, and generally as may from time to time appear to be necessary or promotive of the purposes of this act. Sec. 5. And it is hereby provided that when any prisoner violating the conditions of his parole or conditional release (by whatever name) is, by a formal order, entered in the board's proceedings, declared a delinquent, he shall thereafter be treated as an escaped prisoner, owing service to the State, and shall be liable when arrested to serve out the unexpired period of the maximum possible imprisonment, and the time from the date of his declared delinquency to the date of his arrest shall not be counted as any part or portion of the time served, and any prisoner at large upon parole or conditional release, committing a fresh crime, and upon conviction thereof being sentenced anew to the prison, shall be subject to serve the second sentence after the first sentence is served or annulled, to commence from the date of the termination of the first sentence. Sec. 6. Nothing in this act contained shall be construed to impair the power to graut a pardon or commutation in any case. Approved July 1, 1889." It is not clear from the reading of the statute whether the board of control is given the power of absolute discharge from imprisonment or not. If so, it would be clearly unconstitutional, as the exercise of such power would be certainly one of two things. It would be either the exercise of judicial power in determining the term of imprisonment of a citizen, or an act of grace, to-wit, the bestowing of a pardon and release of a prisoner before the term of imprisonment had expired. The judicial power of this State, by the Constitution, is vested in certain specified courts (section 1, article 6), and the pardoning power is vested absolutely in the governor of the State. Section 11, article 5. The first section of the act provides that "the term of such imprisonment of any person so convicted and sentenced may be terminated by the board as authorized by this act, but such imprisonment shall not exceed the maximum term provided by law for the crime for which the prisoner was convicted and sentenced, and no prisoner shall be released until after he shall have served at least the minimum term provided by law for the crime for which he is convicted." But from the other clauses of the statute it may be inferred perhaps that this release is in all cases to be a conditional one, and that it is a system of parole that is contemplated by the law. Yet if it be considered that the only power conferred is a conditional release upou parole, still if the prisoner keeps his parole, or rather if the board are of the opinion that he does, the release is in fact an absolute one. By what refinement of reasoning it can be made to appear that this is not in effect a pardon of the prisoner, is beyond my comprehension. And in my opinion this act also confers upon the board judicial power. The term of imprisonment is fixed by the board and not by the court. The sentence is to confinement in the prison generally; no term is fixed by the judge. How long that term shall be rests entirely in the will of the board. It may be one day or fifteen years, as they see fit, in some cases. It is in the power of the Legislature to fix all punishment for crime, and to provide for a minimum and maximum punishment, and to give the courts in which the prisoners are convicted a discretion to fix a term between these limits, but it cannot be contended for a moment that this discretion can be given to any other person or persons. To do so would imperil the liberties of the citizen by putting his punishment for wrougs committed into the arbitrary power of unauthorized persons, without any right of remedy in the courts. Nor can the Legislature authorize a circuit judge to delegate his power and discretion in such a case to any other person or persons than himself. Under this act the general sentence, withou. interference from other parties, must stand for the length of time fixed by the maximum term. The court imposing this sentence has no discretion. It may be truly said that he has a discretion in the first place as to whether he will sentence under the act or not. But this discretion is whether he will delegate his power and authority in the premises to the board of control or not, and we are now dealing with a case where he has exercised this first discretion. It is said that this act "is evidently promoted by a desire to reform as well as to punish, to make better those under sentence as well as to protect society." Let us see how it will work in the interest of reform, and what will be the discretion of the trial judge, the one person best calculated, from his knowledge of all the incidents and circumstances of the commission of the crime and of the character of the prisoner, to exercise a discretion in fixing the term of imprisonment. Take for instance a person convicted of manslaughter. The maximum penalty is imprisonment in the State's prison for fifteen years, the minimum a fine not exceeding $1,000; the sentence may be one day's imprisonment, it may be a fine of one cent. If the crime appears to be somewhat of an aggravated character, and the prisoner a bad man and an old offender, the circuit judge may reason: "There is no hope of reforming this man, so I will sentence him to ten years in State's prison." At the end of ten years the prisoner is released unconditionally. In another case the nature of the crime may be such that the circuit judge may think the prisoner ought not to be let off with a fine, but deserves some imprisonment, but there is hope for reform, and he therefore concludes to sentence him under the indeterminate law. The moment he pronounces this sentence the term of imprisonment is entirely, not only at the discretion of the board of control, but at their will and pleasure. No court can review their action. They may discharge him the next day after he arrives at the prison, but worse than this, they may keep him confined for fifteen years. If the board are honest men the term of imprisonment depends on his behavior after he enters the prison. If they are not honest it depends solely on their will. When the convict, in whose interest so-called humanitarians have devised this manner of intermediate sentence for his reform, enters the prison he becomes the servant and slave of the prison board, and no court in the country has any power to protect his rights or redress his wrongs. Their discretion is not reviewable by the courts; it is arbitrary. The supposed action of the judge in manslaughter cases is exemplified by the action of the circuit judge in the case before us. He was desirous of sentencing Cummings under the indeterminate law. If he had imposed the sentence in accordance with the statute, the maximum term would have been five years, and the minimum imprisonment for one day, or a fine of one cent. The court thought however he ought to go to prison two years at least, and not more than four years, so the sentence was to be "confined in the State house of correction and reformatory at hard labor for a period of not less than two nor more than four years, from and including this date, in the discretion of the board of control of prisons of the State of Michigan." The court fixed the minimum and maximum, and gave the board a leeway between in which to use their discretion. Here the circuit judge used some discretion and delegated some to the board, but under the act he must delegate it all to them, or not sentence under the statute at all. We have held that a Circuit Court commissioner could not, although going through the forms of a judicial proceeding, release a prisoner from confinement by a writ of habeas corpus, because no judicial power is vested in such officer. Buddington's Case, 29 Mich. 472; Burger's Case, 39 id. 203. The Legislature cannot confer judicial power upon any officers not specified in the Constitution. Chandler v. Nash, 5 Mich. 409. It was held in People v. Brown, 54 id. 15, that the pardoning power in this State belongs to the governor alone, and that no judge can exercise it by indefinitely suspending the sentence of a convicted criminal, yet under the law before us the circuit judge by his sentence may delegate the power to the prison board to release a prisoner, and in effect pardon him in many cases the first day that he is imprisoned. But it is claimed that the pardoning power is not granted to the board of control by this statute, because there is no authority to discharge prisoners absolutely conferred upon the board. It is argued that the power granted by this act is only to permit prisoners sentenced under it to go upon parole in the legal custody and control of the board, subject at any time to be taken back within the inclosure of the prison. If this be so, what is meant by this parole, and what is the power of the board? Can they let one man out, not to go beyond a five-mile limit, another to keep within the county where the prison is located, the third to keep within the congressional district, the fourth not to go outside the State, the fifth to keep himself within the limits of certain States of the Union, the sixth not to leave the United States, and the seventh not to visit England, and the others confined to certain localities, at the will and pleasure of this board? Or does the law contemplate that this parole shall be in fact a release from prison, with only the condition that the board may bring the person on parole back again if they see fit, and make him serve his whole unexpired maximum term within the prison walls? In any event this parole system is as obnoxious to the Constitution as an unconditional release by the board would be, and if they have the power to release on conditions, those conditious may be made so trìfling as in fact to be no conditions at all. In the case of People v. Reilly, 53 Mich. 263, the present chief justice of this court, in speaking of the action of the circuit judge in permitting a convicted person to go upon his own recognizance for over a year, and then calling him into court and sending him to State's prison for four years, said: "If the judge entertained serious doubts of his guilt, he should have recommended the governor to pardon the respondent, and if he entertained no serious doubt of his guilt, he should have pronounced judgment instead of setting the criminal at large upon his own recognizance. If such power can be exercised by a judge, it incorporates into our ad any other penal institution, to arrest and detain such person in his prison or house of correction, without complaint or warrant, and to keep him there without bail, and without preliminary examination, as a convict, until the prosecuting attorney of the county may choose, when the next term of court opens, to file an information against him, cannot be tolerated or permitted under our Constitution, and is repugnant to the spirit of our institutions. By the operation of this statute the person pardoned and absolved from the penal consequences of his crime, we must presume for a good cause, is not free upon his release. He is subject to the will of a master. The warden or other official cau reach out his hand at any moment and pull him back into prison, governed by no restrictions save the will of the officer. When the warden's hand is laid upon the released convict he becomes his absolute servant and prisoner until the prosecuting attorney gets time or sees fit to move. This arbitrary power over the liberty of another is possessed by no other officer in our government, in times of peace. It cannot lawfully exist in a free country." This language applies with still more force to the act before us, for here neither the prosecuting attorney nor the court can intervene between the board and the convict. This law is subject to the same infirmity and is more pernicious. Any convict thus released on pa upon the written order of the board, which all officers must obey. All that is necessary is for the board to enter a formal order that the convict is a delinquent, has violated the conditions of his parole, and that is the end of it. The convict is not to have a hearing, and no court has power to interfere in his behalf, if the law is constitutional. Nor is this all. He is to be treated thereafter as an escaped prisoner, owing service to the State, and loses the time even that he has earned by keeping the conditions of his parole perhaps for years, and if he commits another crime while he is at large upon his parole, and is convicted thereof, his new sentence is deferred until he has served out his old, meting out to him double punishment for his last crime. I have not sufficient words at my command to use in condemnation of this statute. It would fill our State with convicts-they could not be called freemen ministration of the criminal law the 'ticket-of-leave' system of the English judicature, without its surveil lance and checks, and places the criminal at the caprice of the judge, subject to be called up for sentence at any time. If the judge can delay the sentence one year, I do not see why he may not fifteen years. An exercise of such power in this age would be no less revolting to our sense of justice than was the exercise of such power in the reign of James I, when he sent Sir Walter Raleigh to the block fifteen years after his conviction." This law introduces the "ticket-of-leave" system, and places despotic power in the hands of the prison board over the persons sentenced under this statute. If all there is to this law is this system of parole, as contended by the counsel for the people, then it cannot stand under our ruling in People v. Moore, 62 Mich. 497. In that case it was held that the agent or keeper of a prison could not arrest and bring back into the prison a convict pardoned by the governor on conditions, for a violation of such conditions, without such convict was arrested, held and tried for such violation in the same manner as other offenders against the criminal laws. The governor has the undoubted right to pardon. He may pardon on conditions, but neither he nor any other person can have, under our laws, the sole right to determine whether or not such conditions have been violated. This must be determined by the courts by the usual and proper proceed-role can at any time be brought back into the prison ings. The act of the Legislature in that case, authorizing the arrest of such a pardoned convict, without a warrant, for an alleged violation of the conditions of his pardon, was held unconstitutional and void. The writer of this opinion said in that case: "When a person has been set at liberty under the pardon or the commutation of his sentence by the executive, he becomes once more a full citizen, clothed with all the rights, privileges and prerogatives that belong to any other freemau. He cannot be sent out half free and half slave. He is not to be let out with a rope around his body, as it were, with one end in the hands of the warden, to be hauled back at the caprice of that officer. He must go out a free man, and remain a free man until he breaks the condition of his pardon. He must enjoy the blessings and benefits that belong to an American citizen until he has violated the law of his release. His character may be tarnished and his rep-running at large outside of our prison walls, all liautation soiled by his imprisonment, but his rights as a citizen are unimpaired. He is clothed, as he passes out of the prison door, with the same garb of freedom that was removed from him when he went in. He has a right to his liberty the same as any other citizen, so long as he keeps the conditions of his pardon, and he cannot be deprived of that liberty save in the mode prescribed by the Constitution and laws of our State, as applied to any other citizen. If the breaking of the condition is in the nature of a crime, or punished as such, with penal consequences, that crime or act punished as a crime must be established as any other crime would be. He is presumptively innocent until proven guilty, and his guilt must be established under the due forms of law, and by the same processes applied to others. There can be no special legislation separating him, in his rights and privileges, from his fellows, and shackling some of his prerogatives. As none under our institutions are entitled to special privileges, so none can be shorn by special legislation of any portion of their rights and franchises as freemen. If a condition is imposed that he shall not do any thing or things, this does not hamper or abridge his rights or liberties until the condition is broken, and in order to remand and confine him in prison again, the fact of the violation of such condition must be established by the due administration of the law, as in other cases of the violation of the penal statutes. The authority conferred upon the agent of the State prison, or the keeper of ble at any moment to be taken back inside at the will of four individuals, no better probably in their impulses and caprices than the average man. These people thus at large would not only be subject to the will and pleasure of their masters, without hope of redress if wronged by them, but they would be out of prison under various conditions, and such as the board might impose upon them, without regulation or restriction from any other power or authority, one under the condition that he shall drink no intoxicating liquor, and another that he shall not chew tobacco, and still another that he shall not use opium or drink strong coffee. There is no limit or qualification to the conditions that may be imposed. In looking upon this law it is difficult to see in what respect this system of parole differs from a pardon by the governor upon conditions. Is it not in fact a pardon, a release upon conditions? If it is not, if the faith of the board of control is not to be kept and the convict has no certainty that if he keeps the conditions he will not be again imprisoned, then the whole scheme is a delusion and a spare, and unworthy a place upon the statute books. But as it is, the only guaranty of a person so released of such good faith is the pleasure of the board. This system of parole is either a pardon upon conditions, and therefore unconstitutional, or it is no release at all, and only a permission to go outside of the walls, and stay as long as the board may will. If it is the latter-a simple leave to stay outside until the |