State v. Kirby

51 So. 811, 96 Miss. 629

• Court: Mississippi Supreme Court
• Decided: March 15, 1910
• Status: Published

Opinion

Mayes, L,

delivered the opinion of the court.

Kirby was convicted of unlawfully selling intoxicating liquors by the circuit court of Lawrence county, and sentenced to serve three months’ imprisonment in the county jail and to pay a fine of $500. He served one month of his sentence of imprisonment, but paid no part of the fine. After serving one month, he made application to the board of supervisors to disr charge him, under section 3, c. 109, of the Laws of 1908. The application in all respects complied with tlie requirements of tlie section, and tlie board ordered bis release. Afterwards tbe circuit judge of tbe district ordered Kirby rearrested and imprisoned, in order to compel bim to- serve out tbe sentence imposed by the court. After Kirby was arrested as above, and while in custody thereunder, be'applied for a writ of habeas corpus, and was released under tbe writ on tbe ground that tbe board has ordered bim discharged under tbe section above referred to.

Tbe particular question presented is as to the constitutionality of tbe above section of tbe act, which is as follows: “If any convict, when be otherwise ought to be put to work, should be unable to labor from bodily infirmity apparently permanent, tbe board of supervisors may discharge bim from tbe jail after tbe expiration of thirty days from tbe date of sentence. But in no case shall a convict be discharged, unless there be produced to tbe board a certificate of tbe sheriff, a physician, and another reputable person as to such infirmity, and tbe sheriff shall make tbe fine, costs, and j ail fees out of tbe property and effects of the' convict, if be have any.”

It is claimed on tbe part of tbe state that the above section of tbe act violates section 124 of tbe Constitution of tbe state, in that it constitutes a pardon by tbe board of supervisors, a power which is exclusively delegated to tbe governor. We do not deem it necessary to set out here tbe section of tbe Constitution above referred to, further than to say that it is provided therein that in all criminal and penal cases, except treason and impeachnlent, tbe governor shall have tbe power to grant reprieves and pardons, to remit fines, etc. An examination of this section of tbe Constitution convinces us that section 3, p. 105, of tbe Acts of 1908, is an invasion of tbe power of tbe governor, and tbe section in question is unconstitutional. Tbe sole power to pardon is confided by tbe Constitution to tbe governor, and cannot be delegated elsewhere by the legislature. 8 Cyc. 829. The provisions of the act are humane and praiseworthy, but with this we have no concern, when engaged in determining its validity.

The decree is reversed, petition dismissed, and it is directed that appellee be rearrested and confined under the sentence already imposed. Reversed.