Laird v. Sims

• Decision Date: 12 April 1915
• Docket Number: Criminal 374
• Citation: 147 P. 738,16 Ariz. 521
• Parties: KNOX LAIRD, Petitioner and Appellant, v. ROBERT B. SIMS, Superintendent of the State Prison of Arizona, Respondent and Appellee
• Court: Arizona Supreme Court

147 P. 738

16 Ariz. 521

KNOX LAIRD, Petitioner and Appellant, v. ROBERT B. SIMS, Superintendent of the State Prison of Arizona, Respondent and Appellee

Criminal No. 374

Supreme Court of Arizona

April 12, 1915

APPEAL from a judgment of the Superior Court of the County of Pinal. O. J. Baughn, Judge. Affirmed.

The facts are stated in the opinion.

Mr. S L. Pattee, for Appellant.

Mr Wiley E. Jones, Attorney General, for Appellee.

OPINION

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, and, 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:

"He may grant pardons and reprieves and remit fines and forfeitures, for offenses against the laws of the territory. . . ."

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, 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 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 cases, relies upon Rich v. Chamberlain, 104 Mich. 436, 27 L.R.A. 573, 62 N.W. 584. This case 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 Constitutional] 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...