Frеd Freleigh, defendant, was convicted of-a -felony, and on supplemental information charging him with being a second offender, he was fomld guilty and: sentenced to serve a term of -not less' than 2 years, 4 months, 3 days to years, the/statutory mаximum, with a recommendation of 1 year. Although the conviction was over 10 years ago, he has not fully served his sentence .owing to the fact that hp was released on parole for an interim period and later, returned to custody for parole violation. He presented,a petition for review on October 4,1951, pursuant to CL 1948, § 769.14, as added by PA 1951, No 159 (Stat Ann 1951 Cum Supp § 28.1085[1] ), which provides:
’ “Any person now. incarcerated in any State prison, or on parole from-а sentence thereto, .who was sentenced under the terms of sections 10, li, 12 or 13 of this chapter’ as in effect prior to the effective date of Act No 56 of the Public Acts of 1949, Shall be entitled.to a. review of sentence uрon-application to the court in which he was sentenced.,. tJptm.'srich application any judge of such court mafc vacate thb previous sentence and impose any lesser sentence which in his judgment might have ffeen imposed' under sections 10, 11, 12 or 13 of this chapter, as •amended by Act No 56 of the .Public Acts'of 1949, had such sections as аmended been, in.- force at the date of the previous sentence imposed upon said prisoner: ■ Provided, That any sentence so imposed shall be deemed to have begun as of the date of the ■previous sentence, and the rights of such prisoner *308 under the laws shall be governed by the lesser sentence as then imposed.”
The Hоn. George Murphy, judge of the recorder’s court for the city of Detroit, doubting the validity of Act No 159 and basing his decision оn an opinion of the attorney general of the State of Michigan, held the act to be unconstitutional and dеnied appellant’s petition. We allowed an appeal.
Article 6, § 9, of the Constitution of 1908 provides:
“He [the governor] may 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 he may think proper, subject to regulations provided by law relative to the manner of applying for pardons. Upon conviction for treason, he mаy suspend the execution of the sentence until the case shall be reported to the legislature at its next session, when the legislature shall either pardon or commute the sentence, direct the execution of the sеntence or grant a further reprieve. He shall communicate to the legislature at each session information of each case of reprieve, commutation or pardon granted and the reasons therefor.”
Article 5, § 28, of the Constitution of 1908 provides :
“The legislature may provide by law for indeterminate sentences, so called, as a punishment for crime, on conviction thereof, and for the detention and release of persons imprisoned or detained on said sentences.”
This latter section was added to the Constitution after this Court, in the absence of such a provision, had held the indeterminate sentence law unconstitutional.
*309 PA 1927, No 175, chap 9, §§ 10-13, being CL 1948, §§ 769.10-769.13 (Stat Ann §§ 28.1082-28.1085), provided for certain mandatory sentences to be imposed on criminals convicted of more than 1 felony. The statutes provided for sentenсing on an indeterminate basis for second, third and fourth offenders.
PA 1949, No 56, amending CL 1948, §§769.10-769.13 (Stat Ann 1951 Cum Supp §§ 28:1082-28.1085) made new provisions for' the sеntencing of habitual criminals, giving the trial court in its discretion the power to impose less than the former mandatory sеntence upon the offender.
Subsequently PA 1951, No 159, was passed by the legislature. Both parties concede that Act No 159,
supra,
is a legislative attempt to give PA 1949, No 56, retroactive effect upon sentences which were mandatоry on the trial judge under the habitual criminal act prior to the effective date of Act No 56,
supra,
and under which prior act defendant was sentenced. Defendant, claiming Act No 159,
supra,
to .be constitutional under article 5, § 28,
supra,
maintains that the legislature may provide for the relеase of persons imprisoned or detained on indeterminate sentence, Act No 159,
supra,
providing for such release. Defendant relies chiefly on
People
v.
Cook,
*310
The power of pardon and commutation of sentence rests in the governor alone, аrticle 6, § 9,
supra.
As stated in
Rich
v.
Chamberlain,
In
People
v.
Fox,
“To hold with defendant under the circumstances of this case that the court has power to amend a sentence after the prisoner has served a part of it would infringe upon the exclusive pоwer of the.governor under the Constitution to commute sentence.”
The Constitution by implication forbids the judiciary to сommute a sentence. It does not enable the legislature to pass a law that will infringe upon the exclusive рower of the governor to commute a sentence.
The trial judge was correct in denying defendant’s petition and the order of denial is affirmed.