89 P. 801 | Or. | 1907
delivered the opinion.
“shall have power to grant reprieves, commutations and pardons, after conviction, for all offenses except treason, subject to such regulations as may be provided by law”: Const. Or. Art. V, § 14.
There have been no regulations governing the exercise of the pardoning power provided by law, except the declaration in Section 1572, B. & C. Comp., that reprieves, commutations and pardons may be granted by the Governor upon such conditions and with such restrictions and limitations as he may think proper, which is but a restatement of the law as it exists without legislative action. It has everywhere been held, so far as we have been able to ascertain, that under a constitution like ours a pardon is a mere act of grace, and the pardoning power may attach to it any condition precedent or subsequent that is not illegal, immoral or impossible of performance; and, if the pardon is accepted by the prisoner, he will be bound to a compliance with the conditions imposed, and has no right to contend that the pardon is absolute: Fuller v. State, 122 Ala. 32 (26 South. 146: 45 L. R. A. 502: 82 Am. St. Rep. 1); Ex parte Prout, 12 Idaho, 494 (86 Pac. 275: 5 L. R. A., N. S., 1064); Arthur v. Craig, 48 Iowa, 264 (30 Am. Rep. 395); People v. Marsh, 125 Mich. 410 (84 N. W. 472: 51 L. R. A. 461: 84 Am. St. Rep. 584); Ex parte Reno, 66 Mo. 266 (27 Am. Rep. 337); State v. McIntire, 1 Jones’ Law, 1 (59 Am. Dec. 566, note); Lee v. Murphy, 22 Grat. 789 (12 Am. Rep. 563); Ex parte Wells. 59 D. S. (18 How.) 307 (15 L. Ed. 421). A commutation is governed by the same rule: People v. Burns, 77 Hun, 92 (28 N. Y. Supp. 300); affirmed, 143 N. Y. 665 (39 N. E. 21); In re Whalen, 65 Hun, 619 (19 N. Y. Supp. 915).
Now, the conditions imposed by the Governor in this case were not illegal, immoral or impossible of performance, and to enforce them does not deprive the petitioner of any legal right. At the time the commutation was issued the petitioner was lawfully in prison, serving a sentence imposed by law for a crime
2. Some adjudications are cited as holding that a violation of a conditional pardon must be judicially determined, and that a convict cannot be rearrested or remanded to suffer his original sentence because of an alleged nonperformance of the conditions upon a mere order of the Governor: Alvarez v. State, 50 Fla. 24 (39 South. 481: 111 Am. St. Rep. 102); State v. Wolfer, 53 Minn. 135 (54 N. W. 1065 :19 L. R. A. 783: 39 Am. St. Rep. 582); People v. Moore, 62 Mich. 496 (29 N. W. 80). But in neither of the cases referred to did the pardon provide that it might be revoked and the convict rearrested and remanded on order of the pardoning power for a violation of the condition. In the Alvarez Case, it is expressly'stated that such a stipulation would be valid and enforceable in the manner provided, and it was so intimated in the Wolfer Case. People v. Moore, 62 Mich. 496 (29 N. W. 80) involves merely the constitutionality of a statute authorizing an agent of the prison to arrest and remand without warrant a pardoned convict when it comes to the knowledge of such officer that he has violated the conditions of his pardon.
When a conditional pardon is issued and accepted which does not provide how it shall be determined whether the prisoner has violated the conditions imposed, the law seems to be that he is entitled to a hearing before some competent judicial tribunal before he can be remanded to serve his original sentence: 24 Am. & Eng. Ene. Law (2 ed.), 595. But, where the pardon provides upon its face that the Governor may summarily de
Judgment of the court below is affirmed. Affirmed.