The Clayton news. (Clayton, N.M.) 19??-1954, 1921-01-01

as to him, by virtue OF an executive |
order committing his sentence from |
that of death to life Imprisonment |
1t further pustifies the restraint by
virtue of an injunction order. It'll
further attacks the validity of the |
pardons upon the ground that the |
governor has no power to pardon, |
except with the concurrence of the |
board of penltentlary commissions |
ers It. further justifies the restraint |
of the petitioners by reason of the !
executive order of Hon. Benjamin L |
Pankey, as acting governor.
II further justfles the restraint
of the petitioners by virtue of GER
tain order for safekeeping of the pc
titioners, which was delivered to the
superintendent of the pententiary
by the sheriff of Luna county, said
sheriff having arrested said prison
ers ON the charge of murder of a
person other than that for which
the petitioners were convicted and
imprisoned, said charge being still
IN the county of Luna, undispOsed
of. The petitioners return to the
writ most of which answer consists
of conclusions of law, but they ad-
NIT the service of the new warrants
upon them by the sheriff of Luna
county. and that the sheriff has
committed them to the custody of
| the superintendent of the peniten-
tiary for safekeeping, but they deny
the power of the sheriff 50 to do.
Writ of Habeas Corpus discharged.
/ Prisoners remanded by reason of the
| commitment under the subsequent
arrest by the sheriff of Luna cOun-
/ ty.
Syllabus by the Court
/ /. The pardOning power in Amer
I lea both in the federal and state
/ governments, is not, as it is in Great
Britain. an attribute of the eXeCu-
tive departments, but it is power
/ which exists only because 1t is
\ stitutiOnal or statutory provision
:. This power, in this jurisdic-
ton is conferred by section =, article
! V, Of the state constitution upon
the governor, and the ultimate pow
cr therein granted is absolute, sub
ject only to such regulations as may
De prescribed by law.
3. Section 50S1 code 1918 was not
I'm force at the time we came into
statehood and was not carried for
ward as a part of the law of the
state by the provisions of section 1.
article xxi Of the constitution
which di dcarry forward, as the laws
of the state, all the laws sin force
in the territory at the time we came
into statehood
Z. By adoption of the code Of 1918,
section j087 thereof was enacted
and became a part of the laws of
the state.
-. Section 5OS1 code 1918, taken
as n whole, is a clear invasion of
the governors power of pardon a.
granted by the constitution and for
that reason is unconstitutional and
imperative.
6. No portion of section j087, code
1915, can be allowed 10 stand, the
provisions therein which are not oh
iectiOnable not being severable un-
der proper construction, from those
which are Objectionable.
Z. The provisions Of section of
article V Of the constitution are self
Iexeciting and require no legisa-
tive action to enable the governor
to exercise his power of pardon.
&. A person in the custody of one
authority or court has no legal in
terest in the question as to whether
another authority or court has the
right 10 arrest him. Such a question
concerns only two opposing author
itieS or courts.
9. Where The superintendent of
the penitenliary has been enioined
! from releasing persons pardoned by
the governor, such persons are not
legally interested in the question as
to whittier the superintendent has
violated the injunction in allowing
b them to, be arrested for another
= crime. The question III such case
! is between the superintendent and
the court which sued the iniunc-
tiOn.
Opinion by Parker, Chief Justice;
Roberts, Justice, and BrattOn, Dis
! lrict Judge cpRgurring.
II