Mason v. State
| Decision Date | 06 March 1958 |
| Docket Number | 5 Div. 660 |
| Citation | 103 So.2d 341,267 Ala. 507 |
| Court | Alabama Supreme Court |
| Parties | Ernest MASON v. STATE. |
Certiorari to Court of Appeals.
Glen T. Bashore and Walter Hayden, Jr., Clanton, for petitioner.
John Patterson, Atty. Gen., and Geo. Young, Asst. Atty. Gen., opposed.
Petition of Ernest Mason for certiorari to the Court of Appeals to review and revise the judgment and decision of that Court in Mason v. State, 103 So.2d 337.
We originally denied the writ in this case, but on application for rehearing the rehearing was granted and the writ was granted, thus bringing up for review the opinion and judgment of the Court of Appeals.
On a careful and studious consideration we are of the opinion the judgment of the Court of Appeals should be affirmed. So ordered.
Affirmed.
All the Justices concur except STAKELY, J., not sitting and COLEMAN, J., who dissents as shown by his opinion hereafter appearing.
Prior to 1939, the Constitution of 1901, § 124, placed the pardoning power in the governor, by the following language:
In construing the Constitution of 1875, § 12 of Article V, where the grant of pardoning power was given to the governor in substantially the same language, this court said:
'It is the settled law that this grant includes power to grant conditional pardons, the condition to be either precedent or subsequent, or of any nature so long as it is not illegal, immoral, or impossible of performance, and that a breach of the condition avoids and annuls the pardon. * * *
'The power to grant pardons, absolute or conditional, cannot, of course, be taken away from the executive, nor limited by legislative action, but the general assembly may enact laws to render its exercise convenient and efficient. * * *' Fuller v. State, 122 Ala. 32, 37, 26 So. 146, 147, 45 L.R.A. 502.
It thus appears that prior to ratification of Amendment XXXVIII, proclaimed July 21, 1939, which date was subsequent to the conviction of the defendant, Mason, the legislature had no power to impose conditions on an unconditional pardon granted by the governor. Prior to Amendment XXXVIII, § 174, Title 14, could only apply to a convict who had not received an unconditional pardon from the governor.
Section 174, Title 14, originated in an act known as the Uniform Firearms Act, approved April 6, 1936, Acts 1936, Extra Session, page 51. At that time, the legislature had no power to limit an unconditional pardon granted by the governor.
We ought not to attribute to the legislature an intent to usurp the power of the governor contrary to the Constitution, and, therefore, ought not to construe the Act of 1936 as applying to convicts who had been pardoned unconditionally by the governor. Prior to 1939, § 174, Title 14, could not apply to a convict who had received an unconditional pardon.
Since 1939, the power to place conditions on pardons rests in the legislature. It does not affirmatively appear, however, that the legislature has undertaken to enlarge the effect of the 1936 Act in its application to a person granted an unconditional pardon with restoration of civil rights.
If, in twice amending the Act of 1936, the legislature intended to give § 174, Title 14, an effect it did not have and could not have in 1936, the language employed does not express that intention. An intention to enlarge the scope of a criminal statute ought to be clearly expressed.
It would further appear that an intention to limit the pardoning power of the Board of Pardons and Paroles would more properly appear as an amendment to § 16, Title 42, instead of as an amendment to the Firearms Act at § 174, Title 14.
It will be noted that § 124 of the Constitution of 1901, and Amendment XXXVIII both provide that no pardon shall relieve from civil and political disabilities unless 'expressed in the pardon'. Section 16 of Title 42, Code of 1940, contains the same provision. This proviso must mean that when the pardon does expressly restore civil rights, then the person pardoned is relieved from all loss of civil rights, unless and except as the pardon itself may limit the restoration. The pardon, as pleaded in the instant case, appears on its face to be full and unconditional by its express terms, and recites in pertinent part as follows:
'Ernest Mason is hereby granted a full Pardon, and it is...
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