¶2While I yield due respect to the majority opinion of this court, still I cannot concur therein so far as it sustains the constitutional validity of the provisions of the act of 1897 herein involved, which require the court, without exercising any judicial discretion whatever, to impose an indeterminate sentence on a person convicted of a felony. Or which, rather, command the court, in effect, to turn the convicted person over to the custody of the board of managers of the Indiana Reformatory Prison, there to be confined as provided, not beyond the maximum limit of imprisonment fixed by the statute defining the offense. Article three of our constitution distributes the powers of the government into three separate departments, the legislative, the executive, including the administrative, and the judicial, and denies the right of any person charged with official duties under any one of these departments to exercise any of the functions of another, except as in the constitution expressly provided. Any attempt to deprive one department of its rights and powers under the constitution must be carefully watched and guarded, and no encroachment of one upon the powers of the other can be permitted; otherwise, the constitutional rights of the citizen may be frittered away, and the maintenance of a republican form of government be impaired.
¶3The statute defining the offense of which the prisoner in the case at bar was convicted, provides, as a part of the punishment to be inflicted, imprisonment for a term not less than two nor over fourteen years. The law involved recognizes the existence of the provisions of this penal statute, but nevertheless proceeds to’devest both the jury and the court of the power of exercising judicial functions, in determining, *628between the minimum and maximum limits, what the term of imprisonment shall be. Not only are the trial, conviction, and sentencing of a person convicted of the commission of a crime, a judicial duty, but also, in my opinion, is the right to assess the punishment, and thereby fix the term of imprisonment provided, within the limits of the statute, a judicial function, of- , which the court wherein- the accused is tried, cannot be deprived by the legislature.
¶4The provisions of the various sections of our penal code relating to crimes classified as felonies by the law are expressly recognized by the statute in question as still existing; especially is this true in regard to the limits of imprisonment. Certainly, the right to apply the law as it then exists is the peculiar province of the court or jury in the trial of a criminal cause. Consequently, the right to determine and decide as to the extent to which a convicted person shall be punished by imprisonment under and within' the limits of an existing law cannot be wrested from the court and jury and lodged elsewhere. The provisions of the statute under consideration wholly rob the court of all judicial discretion in regard to the term of imprisonment, and in imperative language require it to sentence' the prisoner to the custody of the board of managers of the reformatory, for an indefinite term.
¶5/While the constitutional validity of a statute which /simply lodges in the court, where a person accused of crime is tried, the power of assessing the punishment, instead of leaving it with the jury trying the case, may be conceded; but when a law goes beyond this, and deprives both the jury and the court of this power, as does the one in dispute, certainly it must be held to infringe upon the constitutional rights of the accused, which he has, to demand, in the event of his conviction, *629that his punishment be judicially determined under the existing law, which he has been convicted of violating, and which prescribed the penalties for its violation. The trial cannot be said to have ended until his punishment is determined and adjudged by the court. A statute of the state of Michigan which did not go to the extent of the one here involved, leaving, as it did, the question of an indeterminate sentence to the discretion of the court, was held to be invalid. People v. Cummings, 88 Mich. 249, 50 N. W. 310. A similar statute in Ohio, which also made the question of imposing an indeterminate sentence one of judicial discretion, was upheld. State v. Peters, 43 Ohio St. 629, 4 N. E. 81.
¶6The decisions of the supreme court of Illinois, cited in the majority opinion, whereby the validity of a law similar in some respects to the statute now in controversy was sustained, are, in my opinion, neither satisfactory nor convincing in their reasoning. The effect of these decisions is also impaired by the fact that they were rendered by a divided court.
¶7That the validity of a law providing for the parole, under prescribed rules and regulations, of prisoners who have been sentenced for a definite term of imprisonment, before the expiration of their terms, may be sustained, I think, may be conceded; but that is not the vital question presented for decision in the case at bar. _____
¶8The feature in the statute which leads me to condemn it as antagonistic to the constitution is that which unquestionably devests the judiciary of its rights and powers, to a certain extent; and to this extent, and in this respect, the law, in my- judgment, is invalid, and cannot be sustained; and this must be true without regard to the question of whether it invests some ministerial board or person with judicial *630functions. The doctrine is universally affirmed that courts, being a co-ordinate branch of the government, are not, within their sphere, subject to legislative control. Cooley, Constitutional Limitations, 114 and 116. But, under this statute, the court, in respect to the term of imprisonment, is wholly controlled by the will of the legislature. It is not permitted to decide what, in its judgment, under the circumstances in the particular case, ought to be the term of imprisonment within the limits provided by law. The man who is convicted of the theft of a plug of tobacco of the value of ten cents must be turned ov&r to the prison officials to be restrained of his liberty for the same period as one who has committed the heinous offense of stealing his neighbor’s hogs or sheep of the value of $24.00. The court can exercise no discretion and decide in accordance with the dictates of his own judgment. This is so evident that a mere reading of the statute is sufficient to condemn it in this respect.
¶9It is insisted that the legislature has the power to provide that the term of imprisonment for the crime of burglary shall be fourteen years and no less, and that the judgment of the court in the case at bar in effect inflicted the maximum term of imprisonment, which was fourteen years. While the power of the legislature to declare that the punishment for the crime of burglary shall be imprisonment for the term of fourteen years in the state prison, and no less, may be conceded, but how, or in what manner can this concession lend any support to sustain the validity-of the statute? As heretofore stated, the law under which appellant was convicted extends the limitation of imprisonment from two to fourteen years, and, if it can in reason be said that the trial court in this case simply inflicted the maximum punishment provided by the law defining the offense of burglary, then it certainly may be *631asserted that in doing so the court responded solely to the command of the statute in controversy, and not, under the circumstances in the particular case, to the dictates of its own judgment as to what the term of imprisonment should be within the limitation provided by an independent statute.
¶10The law may be said to be crude and half-baked in its provisions, and possibly open to objections which have been urged against it, that it will in some cases result in great injustice. While these are matters which do not address themselves to a court, still, as the law is to be upheld, they may be mentioned as proper for legislative consideration in the future.
¶11As to whether, in the event a minor is convicted, imprisonment for his offense in the county jail may be substituted for imprisonment in the state prison, as provided by section 1833, R. S. 1881, is a question wddch, under the act in controversy, is left to judicial construction. Equally so is the question as to whether a fine and disfranchisement shall be adjudged as a part of the punishment by the act, where the same are provided as a part of the punishment by the penal statute of which the accused person has been convicted of having violated.
¶12This law is certainly more sweeping in its provisions than any other on the same subject enacted by sister states which has come under my observation. It seems to be impressed with the impracticable and sentimental idea of certain theorists who believe that a greater justice will be meted out to the convict, and his condition bettered, by incarcerating him within the walls of a prison for an indeterminate period, without any regard to the circumstances surrounding the offense of which he has been convicted, there to remain until he can secure his liberty by ingratiating himself into the good graces of the board of parole.
¶13I have endeavored somewhat briefly to state the *632reasons which. I consider the cardinal ones for holding the law invalid, and, in my opinion, it should be so adjudged, without any regard to the question of expediency or the results which may follow. These are questions which as a general proposition should exert no control over courts in reaching a conclusion in a case involving constitutional rights.