Lynche, Cyrus N.

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North Dakota Law Review Volume 15 Number 11 Article 2 1938 Constitutional Law - Executive Powers - Legislative Powers - Restrictions on Pardoning Powers Cyrus N. Lynche Follow this and additional works at: https://commons.und.edu/ndlr  Part of the Law Commons Recommended Citation Lynche, Cyrus N. (1938) "Constitutional Law - Executive Powers - Legislative Powers - Restrictions on Pardoning Powers," North Dakota Law Review: Vol. 15 : No. 11 , Article 2. Available at: https://commons.und.edu/ndlr/vol15/iss11/2 This Comment is brought to you for free and open access by the School of Law at UND Scholarly Commons. It has been accepted for inclusion in North Dakota Law Review by an authorized editor of UND Scholarly Commons. For more information, please contact und.commons@library.und.edu. BAR BRIEFSCOMMENTCase Note, Ex Parte Chambers.CONSTITUTIONAL LAW - EXECUTIVE POWERS - LEGISLATIVEPOWERS - RESTRICTIONS ON PARDONING POWERS. - In 1936, byvirtue of an initiated measure, "engaging in the liquor traffic"ceased to be a crime. In 1937, petitioner was found guilty of thecrime of engaging in the liquor traffic, the offense having oc-curred in 1935. He was thereafter sentenced to the state peni-.tentiary. The Supreme Court affirmed the District Court, 280N. W. 196., and the Supreme Court of the United States dismissedhis appeal to it on April 10, 1939, 59 Sup. Ct. 588, so that, there-upon, he was committed to the penitentiary. A petition to theDistrict Court for a writ of habeas corpus was denied, and appli-cation to the Supreme Court followed. N. D. Comp. Laws 1913,Sec. 7316, saves the penalty for violation of a law prior to its re-peal. Such section was amended by Chap. 134, Laws of 1939, ef-fective March 18, 1939, so that prison sentences imposed for vio-lation of a repealed law should be extinguished, unless otherwiseprovided in the repealing act. Petitioner contends that, there-fore, after March 18, 1939, he was in the same position as if thelaw, for the violation of which he had been tried, had been re-pealed without any saving statute having been in effect. Petition-er further contends that on such date his appeal was pending,and that no court could henceforth compel compliance with thejudgment and sentence. The state claims that the act is uncon-stitutional, as applied to petitioner, in that it operates as a pardonby the legislature, whereas the pardoning power is vested exclu-sively in the Governor and the Board of Pardons. N. D. Const.Art. 76, as amended by Art. 3. Held, that Chap. 134, Laws of1939, was, as far as extinguishing petitioner's sentence is con-cerned, an exercise by the legislature of the pardoning powergranted to the Governor and the Board of Pardons, exclusively,except in case of treason or impeachment. Ex Parte Chambers,(N. D.) 285 N. W. 862 (1939)"The pardoning power is neither inherently nor necessarilyan executive power, but is a power of government inherent in thepeople, who may by constitutional provision place its exercise inany official board or department of government they choose.Jameson v. Flanner, 116 Kans. 624, 228 Pac. 82 (1924). Thepeople had the right to withhold all power from any one of thethree branches; or, on the other hand, they had the right to vestthe pardoning power in either the legislature or the judicialbranches of the government. The executive no more representsthe sovereignty of the state than either one of the other branchesof the state government. The pardoning power no more vests inthe governor, by virtue of his position, than it does in the judicialbranch of the government when the constitution is silent." Statev. Nichols, 26 Ark. 74 (1870). In the case under consideration,the court held that the act in question was an unconstitutionalusurpation of the exclusive executive power to grant pardons"after conviction," but the decision indicated that the meaningof the words "after conviction" is not settled and varies in differ-ent jurisdictions. In the instant case, the court declared that itBAR BRIEFSwas immaterial whether it meant "after a verdict of guilty" or"after judgment and sentence," and that in either event the actin question was an exercise of legislative clemency "after con-viction." The N. Y. Const. Art. 2, Sec. 2, provides that a "personconvicted" of an infamous crime shall forfeit the privilege of suf-frage. The court, considering the proposition in People v. Fabian,192 N. Y. 443, 85 N. E. 672 (1908), declared that the term "con-victed" did not apply in a case where there had been a verdict ofguilty, but sentence had been suspended without judgment. Theinstant case was still pending on appeal when Chap. 134 of theLaws of 1939 was enacted.There is a difference of opinion as to the authority of a legis-lative body to grant pardons. The matter is ably discussed proand con in "Legislative Pardons" (1939), 27 Cal. L. R. 371. Inthat article, while differing on the subject of legislative pardons,the exponents of either view indicated that the legislature is em-powered to grant amnesties. The point was not raised in theChambers case. Is it possible that Chap. 134, Laws of 1939, wasin the nature of an amnesty? An amnesty has been defined as"a general pardon, an act pertaining to a multitude without con-sideration of the special circumstances of individual cases."Generally, a pardon remits punishment to a specific person,whereas an amnesty remits punishment for a specific crime.N. D. Const., Art. 76, as amended by Art. 3, vests the power topardon after conviction in the Governor and the Board ofPardons, but the Constitution is silent on the subject of amnesty.A sovereign state has all powers not delegated to the FederalGovernment, or expressly prohibited by its own Constitution orthe Federal Constitution. North Dakota is a sovereign state.The power to grant an amnesty for violation of a state law hasnot been delegated to the Federal Government. Neither is it ex-pressly prohibited by the Federal Constitution or the State Con-stitution. Therefore, does the power to grant an amnesty not liein the sovereign State of North Dakota? If it does, in the absenceof mention of the subject in the State Constitution, may thelegislature exercise that power?There was a social reason back of the enactment of Chap.134, Laws of 1939. What had formerly been the crime of "en-gaging in the liquor traffic" was now a legitimate commercialenterprise. It was generally understood that numerous personshad engaged in the liquor traffic. Might not the legislature havedeemed it socially inexpedient to impose imprisonment for actsno longer generally considered to involve moral turpitude orstatutory infringement? If such were the intent of the legisla-ture, is there a difference under the Constitution of North Da-kota between a pardon to a specific person and an act which re-leases all persons within a designated group from imprisonment?CYRUS N. LYNCHE.University of North Dakota.LAW SCHOOL NOTESThe School of Law of the University of North Dakota beganits forty-first year September 19, 1939. The enrollment for thefirst semester of this year is 71 and the enrollment for the first

Constitutional Law - Executive Powers - Legislative Powers - Restrictions on Pardoning Powers

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Constitutional Law - Executive Powers - Legislative Powers - Restrictions on Pardoning Powers

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