Montgomery v. State

Decision Date31 January 1935
Docket Number8 Div. 52
Citation231 Ala. 1,163 So. 365
CourtAlabama Supreme Court
PartiesMONTGOMERY v. STATE.

Question certified by the Court of Appeals (163 So. 371) to the Supreme Court under Code 1923, § 7322.

Question answered.

See also, Montgomery v. State (8 Div. 648) 163 So. 377.

Certification to Supreme Court.

To Honorable John C. Anderson, C.J., and Associate Justices:

Presiding Judge.

WM. H SAMFORD

JAMES RICE

Associate Judges.

January 2, 1935.

Response to Certified Question by the Court of Appeals of Alabama.

To the Honorable Court of Appeals of Alabama:

KNIGHT Justice.

In reply to your inquiry as to whether or not the act of the Legislature of Alabama entitled "An Act To provide for the suspension of imposition or execution of sentences and the placing of defendant upon probation; and to prescribe and give power to the State Courts to suspend imposition or execution sentences and to place defendant upon probation and to give said Courts power of revocation and modification of probation; and to prescribe the duties of probationers," passed over the Governor's veto July 14, 1931, Acts 1931 p. 444, as amended by the act of the Legislature approved September 28, 1932, Acts Extra Session 1932, p. 54, offends sections 43 and 124 of the Constitution, or either of said sections:

We note that the judges of the Court of Appeals were of the opinion that the act, as amended, was unconstitutional and void, in that it was but an effort on the part of the Legislature to transfer to the courts power to grant paroles and commutations of sentences, a power expressly conferred upon the Governor.

The state government, as pointed out in the case of State ex rel. French et al. v. Stone, County Treasurer, 224 Ala. 234, 139 So. 328, is divided into three coordinate branches, legislative, judicial, and executive; each has a sphere of action, and within that sphere each is, and must be regarded, as, supreme. Powers confided to the one cannot be exercised by the others. That the Legislature, in the absence of constitutional restraint, is all-powerful in dealing with matters of legislation, it must be conceded, but the Legislature can at no time usurp the functions of either the executive or judicial department, and when it attempts to do so, its acts are abortive. Nor can it, in the exercise of its legislative powers, transfer from the executive department to the judicial department power expressly and exclusively conferred upon the executive department by the Constitution. Any attempt to do so would be just as abortive as if the Legislature itself had attempted to exercise that power in the first instance.

It is too clear to require argument, or citation of authority to demonstrate the proposition, that courts in this state, clothed with jurisdiction to try criminal actions, have no inherent power to suspend indefinitely sentences imposed on persons convicted of crime. The limit of such courts' powers to suspend sentences is reached when the courts suspend the sentence for the purpose of giving effect to an appeal, writ of error, or certiorari, and to preserve the status quo of the parties pending such proceeding. Ex parte Knight, 61 Ala. 482.

If the courts, therefore, rightly exercise power to suspend sentences indefinitely, or to do otherwise than to put their sentence into execution, such power must be conferred upon them either by statute, or by constitutional enlargement of their jurisdiction and powers. And, of course, if the Legislature is prohibited by constitutional limitation from conferring this power, any effort on its part to do so would be abortive.

There is no pretense that this power of suspension is conferred by any provision of the Constitution. Then, was it within legislative competence to do so?

Section 43 of the Constitution provides: "In the government of this state, except in the instances in this Constitution hereinafter expressly directed or permitted, the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them; to the end that it may be a government of laws and not of men."

From this provision of our organic law, it is clear and manifest that the powers of government are distributed to three departments, each of which is confided to a separate body of magistracy (the legislative, the executive, and the judicial), and that each of these departments is emphatically forbidden to exercise any of the powers belonging to either of the others, "unless expressly directed or permitted by the constitution." (Italics supplied.) Haley v. Clark, 26 Ala. 439; State ex rel. French et al. v. Stone, County Treasurer, supra; Dorman v. State, 34 Ala. 216, 230, 231; Alabama Life Ins., etc., Co. v. Boykin, 38 Ala. 510; Carleton v. Goodwin's Ex'r, 41 Ala. 153; Sanders v. Cabaniss, 43 Ala. 173.

The Legislature has no power to grant reprieves, paroles, commutations of sentences, and pardons, except in cases of impeachments. Having no such power itself, can it confer such power upon the courts? Can it by indirection do what is forbidden to it by the Constitution?

Section 124 of the Constitution provides: "The governor shall have power to remit fines and forfeitures, under such rules and regulations as may be prescribed by law; and, after conviction, to grant reprieves, paroles, commutations of sentence, and pardons, except in cases of impeachment."

It is here noted that the power to grant paroles was not conferred upon the Governor by the Constitution of 1875, or by any of its predecessors. This power was conferred by the Constitution of 1901. It may be, though we have no occasion to so decide, that prior to the adoption of the Constitution of 1901, the Legislature could have conferred this power to parole upon the courts, inasmuch as the power was not expressly conferred upon the Governor.

In 12 Corpus Juris, § 322, p. 838, the author makes the following broad statement of the law, supported in the notes thereunder with citations of many authorities, among the number being our own case of Haley v. Clark, supra: "The pardoning power is not necessarily an executive function, and, to the extent that it is not vested by the constitution, it belongs no more to the executive branch of the government than to the legislative. But where the pardoning power is conferred on the executive without express or implied limitations, the grant is exclusive, and the legislature can neither exercise such power itself nor delegate it elsewhere, nor interfere with or control the proper exercise thereof, as by imposing conditions to the full enjoyment of the rights conferred by such pardon. If the constitution limits the pardoning power to cases of convicted criminals, the legislature may pass a general act of amnesty of offenses committed prior to a certain date, the perpetrators of which offenses have not been tried and convicted." (Italics supplied.)

It will be noted that, by the act now before us for consideration, the Legislature has attempted to confer upon courts of original jurisdiction of criminal actions power to suspend the imposition or execution of sentences, in all cases where the punishment is fixed by the judge or jury at not more than ten years in the penitentiary, and in all cases where the defendant is sentenced to hard labor for the county to suspend the imposition or execution of sentence and to place the defendant upon probation for such period and upon such terms and conditions as they may deem best. The power is given the court to revoke or modify any condition of probation or may change the period of probation. The period of probation together with any extension thereof shall not exceed five years.

Was this enactment within legislative competence, under our Constitution?

In the case of Haley v. Clark, supra, the appellants had become liable to pay, and had paid, to the county treasurer, for the use of Marion county, a fine of $500, as the securities of the late clerk, and then procured an act of the Legislature to be passed (Acts 1849-50, p. 452), by the first section of which it was enacted: "That the treasurer of Marion county be, and he hereby is, directed to pay to Allen Haley John M. Frederick, John T. Sanders and William Warren, the securities of John Douglass, the late clerk of the Circuit Court of Marion County, the sum of five hundred dollars, that being the amount of a fine which they have paid for said Douglass, in consequence of said Douglass having failed to comply with the requisition of the second section of the Act of 1834." The treasurer refused to pay the money, as required by the act, and the sureties attempted by mandamus to require him to do so. On appeal, this court held the act unconstitutional and void, because the Legislature, in its passage, attempted to exercise an executive and not a legislative power; that it was impossible for any one to read the act without seeing that its purpose was identical with a pardon. In concluding the opinion the court used this pertinent language: "This is the case here: certain parties have been fined; it is not pretended the fine has been remitted by the Governor; it is conceded that the Legislature has not the authority to remit; but after payment, it is insisted, that body may legitimately refund the fine. To sustain this position would be to allow one department of the government to trench upon the powers of another, and to defeat the purpose which the constitution...

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