Laird v. Sims

147 P. 738, 16 Ariz. 521, 1915 Ariz. LEXIS 165

• Court: Arizona Supreme Court
• Decided: April 12, 1915
• Docket: Criminal No. 374
• Status: Published

Opinions

ROSS, C. J.

The petitioner, Knox Laird, was serving in the state prison a term of not less than ten years commencing September 29, 1913, as punishment, after conviction, of the crime of murder. On February 25, 1915, the Governor of the state granted him an unconditional pardon. He accepted the pardon, but the appellee, superintendent of prison, refused to discharge him. In his petition he set forth the above facts, and prayed for a writ of habeas corpus directed to the appellee. The writ was issued.

In his return to the writ, the appellee admitted the allegations of the petition, and stated that he declined to recognize the pardon for reason that the application for such pardon was not passed upon or recommended by the board of pardons and paroles, nor was any application for a pardon ever presented to said board. The petitioner demurred to the return and the sufficiency thereof to show that his detention was legal. The demurrer was overruled, and judgment dismissing the petition and remanding petitioner was entered, from which judgment this appeal is prosecuted.

While the facts of the case are simple and easily understood, the question they present for our determination is a serious one. It is: Who, under our Constitution and laws, is empowered and authorized to grant pardons. Every civilized country recognizes, and has therefore provided for, the pardoning power to be exercised as an act of grace and humanity in proper cases. As was said by Justice WAYNE in Ex parte Wells, 18 How. 307, 310, 15 L. Ed. 421:

“Without such a power of clemency, to be exercised by some department or functionary of government, it would be most imperfect and deficient in its political morality, and in that attribute of Deity whose judgments are always tempered with mercy.”

The state, in adopting a Constitution, recognized it as a fixed and desirable institution, a'nd, accordingly, incorporated it in its fundamental law. It is not a power, under our system of government, inherent in any officer of the state, or any department of the state. The people, in framing and adopting their Constitution, could have lodged the power in the' legislature, or in the Governor, Secretary of State, and auditor, or either of them, or in the members of this court, or either of them, or as has been done in some of the state Constitutions, in a board of pardons.

The provision in our Constitution concerning the pardoning power is in the following language:

“The Governor shall have power to grant reprieves, commutations and pardons, after convictions, for all offenses except treason and cases of impeachment, upon such conditions and with such restrictions and limitations as may be provided by law.” Article 5, sec. 5.

Omitting from this section such words as have no effect or bearing upon the question here involved, it would read:

“The Governor shall have power to grant . . . pardons, after conviction, . . . upon such conditions and with such restrictions and limitations as may be provided by law.”

It is contended by the Attorney General that the “conditions, restrictions, and limitations” here mentioned bear upon and qualify the power to grant pardons, and it is contended by appellant that those words bear upon and qualify the pardon itself. The Attorney General would paraphrase it thus: ‘ ‘ The Governor shall have power, upon such conditions and with such restrictions and limitations as may be provided by law, to grant pardons.”

And appellant would have it read:

“The Governor shall have power to grant conditional pardons; that is, pardons containing conditions, restrictions and limitations upon the conduct of the grantee thereof.”

Neither contention is unreasonable; both are plausible. The legislature evidently took the former view. At its first session it passed, over the Governor’s veto, an act that was subsequently referred to the people, and by them approved at the 1914 November election, which undertakes to limit and restrict the Governor’s pardoning power. We conceive it to be the duty of this court to sustain such law if possible. We will not seek excuses to declare it invalid, but rather strive to find reasons to sustain it. If; after a comparison of its terms with the terms of the Constitution, we entertain any doubt of its invalidity, we should and will resolve that doubt in its favor and sustain it. So much is due to a co-ordinate branch of the government; especially so when the legislative act has been submitted to, and received the approval of, the people.

The act referred to is found in the Penal Code of 1913, as “Title XXI—Pardons and Reprieves,” and is subdivided into sections 1297 to 1307, inclusive. Section 1297 reads:

“The Governor has power to grant reprieves, commutations, and pardons, after conviction, for all offenses, except treason, and cases of impeachment, upon such conditions and with such restrictions and limitations as he may think proper, subject to the regulations provided in this chapter.”

“The regulations provided in this chapter” that are material are contained in section 1301, which creates a board of pardons and paroles consisting of the state superintendent of public instruction, the Attorney General, and a third member, to be selected by those two, and section 1302, which provides that:

“Said board shall have exclusive power to pass upon and recommend reprieves, commutations, paroles and pardons, and no reprieve, commutation, parole or pardon shall be granted by the Governor unless the same has first been recommended by said board. All applications made for reprieves, commutations, paroles and pardons made to the Governor shall be at once transmitted by the Governor to the chairman of the said board, and the said board shall return the same with their recommendation to the Governor. ’ ’

It is a cardinal principle of constitutional construction to give to a Constitution and its provisions the meaning; if possible of ascertainment, intended by its framers. It is a perversion to give it any other meaning. If the language used is plain and easily understood, it should be looked to without extrinsic aid for the meaning intended. In this instance the qualifying words used in section 5, article 5, of the Constitution may refer to and modify the “power” as reasonably as they may be said to refer to and qualify the “pardon.” Did the men who wrote the Constitution intend that the Governor of this state should have unlimited and unrestricted power to issue pardons? It is a matter of common knowledge that at the time or just prior to the convening of the constitutional convention considerable feeling and criticism were indulged by the people of the territory over what was generally thought to be an abuse of the pardoning power, and no one knew it better than the members of the convention. The language used in our Constitution defining the pardoning power is not to be found in any other Constitution of any other state of the Union, and the difference is significant. It is not unreasonable to assume that the convention endeavored to so word section 5 of article 5 as to prevent a recurrence of an indiscriminate exercise of the pardoning power. There is a manifest lack of intention to follow the language of the organic laws of the territory. The pardoning power of that act was placed in the Governor in these words:

“lie may grant pardons and reprieves and remit fines and forfeitures, for offenses against the laws of the territory. 99

Comparing our constitutional provision with that of Michigan, the language used is in the main identical, but the difference in meaning is so pronounced as to strike one with surprise and wonder. This difference is not accidental or inadvertent. It is evidently for a purpose. We give the Michigan constitutional provision:

“He [the Governor] may grant reprieves, commutátions and pardons after conviction, for all offenses except treason and cases of impeachment, upon such conditions, and with such restrictions and limitations, as he may think proper, subject to regulations provided by law, relative to the manner of applying for pardon.” Article 5, sec. 11.

In the Michigan Constitution the pardoning power is given to the Governor to be.exercised “as he may think proper”; while under our Constitution it is lodged in the Governor with conditions and restrictions and limitations to be provided by law. The appellant, in support of his contention that our legislative act is repugnant to the Constitution, among other eases, relies upon Rich v. Chamberlain, 104 Mich. 436, 27 L. R. A. 573, 62 N. W. 584. This ease involved the constitutionality of an act of the legislature creating a board of pardons whose duty it was to investigate petitions for pardons, and make reports thereof to the Governor with recommendations, but it was not attempted to make the recommendations binding upon the Governor. The act was sustained. In the opinion it was held that the pardoning power was exclusively vested in the Governor, and any law restricting the power would be unconstitutional; but “at the same time” the court said, “and with equal clearness [the Constitution] vests in the legislature the power to provide by law, regulation relative to the manner of applying for pardons.” It seems that no other conclusion was possible under the Michigan Constitution, and, if oiir constitutional provision was the same, giving the Governor the right to exercise the power “as he may think proper,” the question we have would be easily determined.

Another ease relied upon by appellant is In re Ridley, 3 Okl. Cr. 350, 26 L. R. A. (N. S.) 110, 106 Pac. 549. This case involves the constitutionality of an act creating a board of pardons and paroles, and conferring on it the duty to investigate petitions for pardons, and prohibiting the exercise of the power of pardon by the Governor, except upon its recommendation or advice. The Oklahoma Constitution (article 6, section 10) is as follows:

“The Governor shall have power to grant, after conviction, . . . pardons for all offenses, . . . upon such conditions and with such restrictions and limitations as he may deem proper, subject to such regulations as may be prescribed by law.”

Th"e Oklahoma court, in the Eidley case, followed the reasoning of the opinion in the Rich v. Chamberlain case, supra, as it might well do, the language of the two Constitutions of Michigan and Oklahoma being, in the former, that the Governor may grant pardons “as he may think proper,” and the latter “ as he may deem proper. ’ ’

The California Constitution (article 7, section 1) is the same as the Michigan constitution; the provision being that the Governor may grant pardons “as he may think proper.’’ Of course, when language of that kind is used, it forecloses all debate and all controversy. It is too plain to quibble over. The constitutional convention did not, however, copy the language of the Constitution of California or Michigan or Oklahoma, nor is the language used equivalent in. meaning to that used in those Constitutions or the Constitution of any other state of the Union.

The first legislature of the state, very soon after the promulgation of the Constitution, with the language of section 5, article 5, before it, language not to be found in any other Constitution, and therefore without judicial construction, passed the act in question, and in doing so construed the iCconditions, restrictions and limitations” as qualifying the pardoning power, and not the pardon itself.

A reference to the journals of the third session of the legislature, at page 300, discloses that on May 16, 1913, the Senate, over the Governor’s veto, passed House Bill No. 1, of which the sections creating the board of pardons and paroles were a part, with but one dissenting vote. In the Senate were members voting for the measure who had distinguished themselves as leaders of the constitutional convention. In the House the measure was approved notwithstanding the veto by a vote of 25 in the affirmative and 6 in the negative; one of those voting in the affirmative and one voting in the negative having been members of the constitutional convention. The president of the Senate, lately deceased, perhaps contributed more than any single individual in the making of the Constitution, as well also the laws enacted at the first session of the legislature, and his well-known probity, ability and fidelity to the fundamental law forbid the thought that he would vote for any legislative act inimical to that sacred instrument. He and those other members of the convention that wrote the Constitution, and later as lawmakers voted for the creation of the board of pardons and paroles, must have endeavored only to carry out the intention of the convention .as they wrote it into the Constitution. This measure was later referred to the people. After the delegated authority had passed it, the action of the delegates was approved, affirmed and ratified by the source of all authority—the people themselves. At the polls, after a thorough campaign of publicity, both by proponents and opponents of the measure, the people, the ultimate and final source of all power in a democratic form of government, placed their construction on section 5, article 5, of the Constitution by approving the creation of the board of pardons and paroles and the power lodged in it. The sovereign people have said that the power of pardon may be conditioned, restricted and limited to the extent of forbidding its exercise except upon the recommendation of the board of pardons and paroles. In Frost v. Pfeiffer, 26 Colo. 338, 349, 58 Pac. 147-151, the court had occasion to consider what effect, if any, should be given to legislative construction made immediately after the adoption of the Constitution of Colorado. It was said:

“Another matter which it is proper to notice in connection with the construction of the constitutional provision under consideration is the contemporaneous construction thereof given by the legislative department of the state. It is a fact of which we take judicial notice, for it appears in the laws of the state, that the first legislature which convened after the adoption of our Constitution created no less than four new counties, without in any manner submitting the question to the people directly interested. It is a matter of history that several members of this General Assembly had been members of the constitutional convention. ■. . . Contemporaneous legislative construction of the fundamental law, while not controlling upon the courts, yet, in ease of doubt or ambiguity, is entitled to great weight, as expressive of the views entertained by those of the meaning of that law whose mandates they are bound to observe.”

Endlich’s Interpretation of Statutes, section 527, says: “The deference due to such legislative exposition is said to be all the more signal when the latter is made almost contemporaneously with the establishment of the Constitution, and may be supposed to result from the same views of policy and modes of reasoning that prevailed among the framers of the instrument thus expounded.”

In Manufacturing Co. v. Ferguson, 113 U. S. 733, 28 L. Ed. 1137, 5 Sup. Ct. Rep. 741, the supreme court of the United States said:

‘ ‘ The act was passed by the first legislature that assembled after the adoption of the Constitution, and has been allowed to remain upon the statute book to the present time. It must therefore be considered as a contemporary interpretation, entitled to much weight.”

8 Gyc. 737 states the rule as follows:

“Practical construction of constitutional provisions by the legislative department, in the enactment of laws, necessarily has great weight with the judiciary, and is sometimes followed by the latter when clearly erroneous.”

6 R. O. L., section 60:

“The principle of contemporaneous construction may be applied to the construction given by the legislature to the constitutional provisions dealing with legislative powers and procedure. Though not conclusive, such interpretation is generally conceded as being entitled to great weight, and should not be departed from unless manifestly erroneous.”

In view of the exceptional novelty of the provision in our Constitution, and its susceptibility of two interpretations, one as reasonable as the other, and the legislature and the electorate of the state having adopted the construction limiting and restricting the pardoning power to cases recommended by a board of pardons created by legislative act, we must confess we entertain most serious doubts of the invalidity of the act, and following the rule universally followed in such case, we think the judgment of the trial court should be sustained.

In another case recently decided by this court we had occasion to state what we conceived to be the duty of the court in passing upon the validity of a statute attacked for repugnancy to the Constitution. In that ease we said:

“That legislation of such a character may to some seem unwise, unjust or impolitic does not authorize the courts to interfere. "When the law-making power has determined such matters, such questions are thereby foreclosed. Nor is the purpose and motive for the exercise of such legislative power a subject for judicial inquiry. Questions relating to the wisdom, policy, and expedience of such enactments are addressed to the law-making branch of the government. Likewise we may not concern ourselves with a consideration of the evils which, it is suggested, may or may not arise from the execution of the law, whether they be real or imaginary. Unless there be some constitutional provision which prohibits the enactment, the power is with the.people to determine from time to time the occasion, and what laws and regulations are necessary and expedient for their benefit. The judicial department does not make the laws, but is confined to ascertain if the power to pass them exists, and, when such power is found, then to construe and enforce them as made. A pronouncement of the invalidity of an act or any part of an act of the people in their legislative capacity is, and must always he, approached with a delicacy which the situation invites. Under our oaths as judges, this power must be exercised in cases; but neverthless it is our plain duty to uphold an act of the law-making power whenever it is possible to do so. Every presumption is in favor of its validity, and the conflict between the legislative act and a constitutional provision must be very clear and utterly irreconcilable by any reasonable interpretation before this court would be called upon to annul the act or any separable part of it.” Gherna v. State, ante, p. 344, 146 Pac. 494, 501.

Our lawmakers, keeping step with the advance thought concerning the treatment of prisoners, have provided a scheme or system of paroles. The duties of carrying out and effectuating this system is lodged in the board of pardons and paroles. This board is provided a clerk appointed by the Governor at a stated salary of $1,200 per year, with duties as provided by law and the board. The board is required to meet at the state prison from time to time, at which meetings all prisoners who have served the minimum sentence, when it is an indeterminate sentence, as well as those serving definite or fixed sentences, may appear and apply for a parole or an absolute discharge. The legislature has not authorized the Governor to grant paroles except upon the recommendation of the board of pardons and paroles. Section 5, article 5, of the Constitution does not mention paroles. If the board of pardons and paroles has no legal existence, and may not exercise the powers granted it by the legislature, there is no power vested in anyone to release convicts, however deserving, upon parole. See Pen. Code 1913, secs. 1449-1458. But, if the board has a legal existence, it may administer this very meritorious feature of modern and enlightened prison reform. If the legislation here assailed should be declared void, and the contention of appellant sustained, he and others might seek and receive pardons at the Governor’s hands; but the Governor would be powerless to-release on parole. With perhaps one or two exceptions, the courts of this country have recognized the validity of legislative boards vested with the power and duty of administering parole laws (State v. Wolfer, 119 Minn. 368, Ann. Cas. 1914A, 1248, 42 L. R. A. (N. S.) 978, 188 N. W. 315, 6 R. C. L. 173), and, we think, rightly so.

Judgment affirmed.

FRANKLIN, J., concurs.