The power to pardon is an executive power expressly vested by the Constitution of the state in the Governor. He does not hold the power simply because he is the chief executive, but because the sole power to pardon is delegated to his office. Const. art. 6, sec. 10 (159, Williams'). "As human actions are necessarily imperfect, the pardoning power must be vested somewhere in *Page 139 order to prevent injustice when it is ascertained that an error has been committed." Bouv. Law Dic. see "Pardon." A full, unconditional pardon reaches both the punishment prescribed for the offense and the guilt of the offender. It releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he never committed the offense. It obliterates, in legal contemplation, the offense itself.
The doctrine of the authorities is that:
"In contemplation of law it so far blots out the offense that afterwards it cannot be imputed to him [the convict] to prevent the assertion of his legal rights. It gives him a new credit and capacity and rehabilitates him to that extent in his former position, and hence its effect is to make the offender a new man." (4 Bl. Com. 404.)
In re Garland, 71 U.S. (4 Wall.) 333, 18 L. Ed. 366; Knote v.United States, 95 U.S. 149, 24 L. Ed. 442; Young v. Young, 61 Tex. 191;State v. Page, 60 Kan. 664, 57 P. 514.
A pardon is an act of grace and mercy bestowed by the state, through its chief executive, upon offenders against its laws. Yet a pardon properly granted is also an act of justice, supported by a wise public policy. While the power to pardon, parole, reprieve, or commute after conviction for offenses against the state is a matter of executive discretion, this discretion should be exercised on public considerations alone. An undue exercise of the pardoning power is greatly to be deplored. It is inexcusable. It is a blow at law and order and is an additional hardship upon society in its irrepressible conflict with crime and criminals. If the Governor believes a law under which the prisoner has been convicted to be unjust or too harsh, still he should not for that reason alone exercise the pardoning power. The duty of mitigating the severity of the law lies with the Legislature. As an officer he should look upon the law as wise and just, whatever may be his private opinion. An abuse of the pardoning power may be so great as to warrant an impeachment of the officer who exercises it.
Says Bishop: *Page 140
"No official person, whatever his station or the nature of his office, is justified in performing any official acts from private motives or in pursuance of mere private views. An executive officer, asked to grant a pardon, should neither comply nor refuse merely because he would personally be pleased to see the prisoner suffer or to see him go free. He should act upon public considerations. He does not sit as a court of appeal from the Legislature. If he believes the law under which a prisoner is suffering to be unwise or unjust, still this opinion cannot properly incline him to grant the pardon, because the power which makes and unmakes laws is not in him, and officially he is required to look upon the law as just and wise, however his private opinion may revolt. * * * In popular writings we often meet with injuriously false views on this subject. Nothing can be more pernicious than the opinion, sometimes afloat, which assigns to the President or Governor the authority to pardon without limit and denies to the impeaching power the right to interfere. The granting of pardons is discretionary in its nature; therefore it is necessarily the more open to control by the impeaching power. If it comes to be understood that a single man, intrusted with the high function of pardon, can open all the prisons of the country and let every guilty person go free, thus at a blow striking down the law itself and not be himself punished for the high misdemeanor, the most disastrous consequences to liberty and law will sooner or later follow. Such a conclusion is itself the annihilation of law, and only upon law can liberty repose. Still this sort of executive abuse will not authorize the courts to decline giving effect to the executive pardon." (1 Bish. New Cr. L. secs. 922 and 926.)
A full, unconditional pardon takes effect upon delivery either to the person who is the subject of the favor or to some one acting for him or in his behalf. After delivery, a pardon cannot be revoked. The authorities, without any conflict whatever, deny to the Governor any such power and hold the pardon, when delivered, to be irrevocable. In re Williams,149 N.C. 436, 63 S.E. 108, 22 L.R.A. (N.S.) 238; Rosson v. State, 23 Tex. App. 287[23 Tex. Crim. 287], 4 S.W. 897; Ex parte Powell, 73 Ala. 517, 49 Am. Rep. 71; United States v. Hughes, 1 Bond, 574, Fed. Cas. No. 15,418; State v. Nichols, 26 Ark. 74, 7 Am. Rep. 600; Ex parteReno, 66 Mo. 266, 27 Am. Rep. 337. Indeed, it would not only be contrary to principle that the Governor should be invested *Page 141 with such authority, but the power itself would be of the most dangerous and pernicious character. Great evils would inevitably flow, in ways that may he readily suggested, from the exercise of any such power; and hence, wisely, no such power exists. Knapp v.Thomas, 39 Ohio St. 377, 48 Am. Rep. 462.
An abuse of the pardoning power does not authorize the courts to decline to give effect to a pardon, and no court has the power to review the action of the executive in granting a pardon, for that would be the exercise of the pardoning power in part, and any attempt of the courts to interfere with the Governor in the exercise of the pardoning power would be manifest usurpation of authority. Our government is one whose powers, other than those reserved by the people, have been carefully apportioned between three separate co-ordinate departments, the legislative, executive, and judicial, which emanate alike from the people, having their powers alike limited and defined by the Constitution, each of equal dignity, and within their respective spheres of action equally independent, and exclusive in respect to the duties assigned. The language of the Constitution, art. 4 (50, Williams'), is:
"The powers of the government of the state of Oklahoma shall be divided into three separate departments, the legislative, executive, and judicial; and except as provided in this Constitution, the legislative, executive, and judicial departments of government shall be separate and distinct, and neither shall exercise the powers properly belonging to either of the others."
With these preliminary observations we will proceed to the consideration of the questions presented and state some of the reasons, without elaborating the arguments, which have led us to the conclusions and the decision heretofore announced in this case.
The pardon in question was granted, as appears from the petition and answer thereto, by the Lieutenant Governor, acting as Governor, in the absence of the Governor from the state. The decisive question in this case is whether the pardon granted by the Lieutenant Governor, acting as Governor, to George Crump, Jr., is valid and effectual so as to entitle him to be released by the warden of the penitentiary, who holds him in confinement *Page 142 under the judgment and sentence of the superior court of Pottawatomie county.
The provisions of the Constitution providing for succession to the office of Governor and for the Lieutenant Governor to become acting Governor and for the vacancy of the office of Lieutenant Governor are as follows:
"If, during a vacancy of the office of Governor, the Lieutenant Governor shall be impeached, displaced, resign, die or be absent from the state, or become incapable of performing the duties of the office, the president, pro tempore, of the Senate, shall act as Governor until the vacancy be filled or the disability shall cease; and if the president, pro tempore, of the Senate, for any of the above enumerated causes, shall become incapable of performing the duties pertaining to the office of Governor, the Speaker of the House of Representatives shall act as Governor until the vacancy be filled or the disability shall cease. Further provisions for succession to the office of Governor shall be prescribed by law." (Article 6, sec. 15 [164, Williams'].)
"In case of impeachment of the Governor, or of his death, failure to qualify, resignation, removal from the state, or inability to discharge the powers and duties of the office, the said office, with its compensation, shall devolve upon the Lieutenant Governor for the residue of the term or until the disability shall be removed." (Article 6, sec. 16 [165, Williams'].)
Counsel for petitioner contend that, by the express terms of the foregoing provision of the Constitution, the Lieutenant Governor was not only Governor de facto, but de jure, in the exercise of the powers and duties of that office, and might rightfully and lawfully assume and exercise all executive functions during the temporary absence of the Governor from the state. The sole argument against this contention is that the authority to act as Governor on such contingency is not given in terms, and counsel for respondent cite the cases of State ex rel.Warmoth v. Graham, 26 La. Ann. 568, 21 Am. Rep. 551, and State exrel. Crittenden v. Walker, 78 Mo. 139, in support of their position.
The Warmoth case was a proceeding by mandamus to compel the State Auditor to pay the warrant of the Governor for his salary from the 6th to the 19th of May and from the 26th of June to the 17th of July, 1871. The Auditor refused to pay *Page 143 this warrant on the ground and for the reason that during said periods the Governor was absent from the state, and that the duties of the Governor as well as his salary devolved upon the Lieutenant Governor to whom the salary had been paid. Under the Constitution of Louisiana it is provided that, in the absence of the Governor from the state or his inability to discharge the duties of the office, the powers and duties as well as the salary of the office devolve upon the Lieutenant Governor. It was held in that case that it was the duty of the Auditor to pay the warrant.
The Crittenden case was a proceeding by mandamus, and the only question presented was: Can the Governor, who absents himself from the state for the purpose of performing duties imposed upon him by the Constitution and laws of the state, be deprived of his salary during such absence? It was held that the Lieutenant Governor was not entitled to receive the salary of the Governor's office during such absence.
In these cases no question as to the validity of the executive acts of the Lieutenant Governor was raised. Clearly they are not authority in support of a collateral attack on the official acts of a de facto Governor, for the salary of an officer can be recovered on the strength of a title of a de jure officer, although he has not performed the duties of the office, and a de facto officer cannot recover the salary of the office, although his official acts are valid. Constantineau on the De Facto Doctrine, secs. 220 and 236. To entitle one to claim the emoluments of an office he must show, if his right be questioned, that he is an officer de jure. 29 Cyc. 1393.
That the decision in these cases is not applicable is settled by the case of State ex rel. Attorney General and Carey v.Barrow, 29 La. Ann. 243, a case to test title to the office of tax collector, where one Carey was removed and Barrow appointed by the Lieutenant Governor, acting as Governor in the absence of the Governor from the state, and the Supreme Court of Louisiana held that:
"The Governor has discretionary power to remove a tax collector and appoint his successor. In the absence of the *Page 144 Governor from the state, the Lieutenant Governor has a similar power."
And in the opinion say:
"The case contemplated by the Constitution had occurred, and, whatever power could have been exercised by the Governor had he been present, the same could have been lawfully exercised by the Lieutenant Governor in his absence."
It is submitted by counsel for petitioner that a pardon granted by a de facto Governor is valid.
An "officer de facto" is one whose acts, though not those of a lawful officer, the law, upon principles of policy and justice, will hold valid so far as they involve the interest of the public and third persons, where the duties and functions of the office are exercised by one who was in the actual possession of it under color of title. Numerous authorities are collated in the case ofMitchell v. Carter, 31 Okla. 592, 122 P. 691, and in the opinion, adopting the language of Chief Justice Fuller in ReWard, 173 U.S. 452, 19 Cup. Ct. 459, 43 L. Ed. 765. it is said:
"The result of the authorities is that the title of a person acting with color of authority, even if he be not a good officer in point of law, cannot be collaterally attacked."
This principle is recognized as applicable to pardons granted by a Governor de facto, and a pardon granted by a Governor defacto is valid. Ex parte Norris, 8 S.C. 471.
In the case of Territory v. Richardson, 9 Okla. 579,60 P. 244, 49 L.R.A. 440, the pardon was granted by the Secretary of the Territory, acting Governor in the absence of the Governor from the territory. And see Powers v. Commonwealth, 110 Ky. 386, 61 S.W. 735, 53 L.R.A. 245.
In all regular governments there is no interregnum, and there should always be some one capable of administering the laws at the head of the government. The de facto doctrine originated in England centuries ago and was carried so far with respect to the English crown that treasons committed under Henry VI (a King "in deed and not in right"), not in aid of the lawful claimant, were punished under Edward IV. Bacon says that "it hath been settled that all judicial acts done by *Page 145 Henry VI, while he was king, and also all pardons of felony and charters of designation granted by him, were valid." Bacon's Abr. Prerogative, A; Constantineau on the De Facto Doctrine, sec. 5. On the same principle, when the power of Cromwell was overturned and Charles II restored, the judicial decisions under the former remained unmolested and the judiciary went on as before, still looking only to the de facto government for the time being. Hale's History of the Com. Law.
As we think the validity of the pardon in question is sustained on higher and more satisfactory grounds than the defacto doctrine, it would subserve no useful purpose to further discuss this phase of the case.
It is also contended by counsel for petitioner that the contemporary construction of these provisions of the Constitution by the executive department and judicial acquiescence therein fixes the construction. From force of circumstances and conditions necessarily arising in the administration of the affairs of the government, both state and national, it is evident that those who are charge with official duties, whether executive, legislative, or judicial, must necessarily construe the Constitutions and laws in numerous instances. Marbury v.Madison, 1 Cranch, 137, 2 L. Ed. 60. Every department of the government, invested with certain constitutional powers, must in the first instance, but not exclusively, be the judge of its powers, or it could not act; and this practical construction by officials or departments outside of the judiciary may or may not be final, according to the circumstances and nature of each particular case.
This court takes judicial notice of the uniform construction placed by the executive department upon these constitutional provisions. This court judicially knows that from time to time, beginning almost immediately after statehood, the Lieutenant Governor has always been the acting Governor in the temporary absence of the Governor from the state and as such granted pardons, appointed and commissioned officers, including one of the present district judges of this state, issued proclamations creating cities of the first class and declaring the results of special elections to relocate county seats, issued and honored requisitions, *Page 146 appointed notary publics, and performed other executive acts, none of which have been questioned until the present time. On none of these occasions was there any pretense that anything prevented the Governor from exercising the powers and performing the duties of the office, except his mere temporary absence from the state. And when, as acting Governor he pardoned petitioner and four others, the Secretary of State recognized the Lieutenant Governor as the acting Governor of the state, as is evidenced by the attestation with his signature and the great seal of the state. And all executive acts heretofore performed by the Lieutenant Governor, as acting Governor in the absence of the Governor from the state, have been recognized by all the departments of the state government and by the public generally as valid and binding. The court also takes judicial notice that Hon. Henry S. Johnston, president pro tempore of the First Senate, and Hon. J.C. Graham, president pro tempore of the Second Senate, have each acted as Governor during the coincident absence of the Governor and the Lieutenant Governor from the state and at such times performed the duties of that office. In all cases before the nisi prius and appellate courts arising on matters relating to and connected with the official acts of the Lieutenant Governor as acting Governor, there has been a judicial acquiescence in this contemporaneous construction. The doctrine of the authorities is that contemporaneous and practical construction of constitutional provisions by the executive department will be considered by the courts in passing upon constitutional questions; and while they are not bound by such construction, except as to questions of a discretionary character, yet in all cases where there is doubt as to the meaning of such a provision, the courts will adopt and follow contemporaneous and practical construction by the officers whose duty it is to execute it, unless such construction is clearly erroneous.
It is evident that to reverse a construction put upon a constitutional provision by the department charged with its execution, after it has received such practical construction for any length of time, would be to occasion great injury to those who would be affected by such a change. 8 Cyc. 736, and cases *Page 147 noted; Cooley's Const. Lim. p. 67. The Supreme Court of this state has repeatedly recognized this doctrine. In the case ofLeague v. Town of Taloga, 35 Okla. 277, 129 P. 702, it is stated as follows:
"The construction placed on statutes or constitutional provisions by officers in the discharge of their duties, either at or near the time of the enactment, which has been long acquiesced in, is a just medium for its judicial interpretation."
And see Foote v. Town of Watonga, 37 Okla. 43, 130 P. 597;M., O. G. v. State, 29 Okla. 640, 119 P. 117; State v.Hooker, 26 Okla. 460, 109 P. 527. Says the Supreme Court of Oregon:
"In all cases where those persons whose duty it is to execute a law have uniformly given it a particular construction, and that construction has been acquiesced in and acted upon for a long time, it is a contemporary exposition of the statute, which always commands the attention of the courts and will be followed unless it clearly and manifestly appears to be wrong." (Kelly v.Multnomah County, 18 Or. 356, 22 P. 1110.)
And see Brown v. United States, 113 U.S. 568, 5 Sup. Ct. 648, 26 L. Ed. 1079; Hovey v. State, 119 Ind. 386, 21 N.E. 890; Stuartv. Laird, 1 Cranch, 299, 2 L. Ed. 115.
The right and duty of the judiciary to take jurisdiction and decide cases when constitutional questions are presented are both imperative and inseparable, and the authoritative exposition of the Constitution will be found in the decisions of the appellate courts. The highest function of this court is to pass upon constitutional questions arising in cases involving the life and liberty of the citizen. This is the first time that a question involving the construction of section 16, art. 6, of our Constitution, has been presented to the courts. The Constitutions of nearly all the states have similar provisions, but we have been unable to find any express adjudication construing the same, for the simple reason, as we suppose, that the language used is so clear and unmistakable and the intention so plain that it has not been questioned. The constitutional provisions already quoted are in pari materia and should be considered together. Impeachment of the Governor, his death, failure to qualify, or resignation, involves *Page 148 necessarily a vacancy in the office, and, if any one of said events occur, the right of the Lieutenant Governor to act is not open to question or doubt; and if, during a vacancy in the office of Governor, the Lieutenant Governor shall be impeached, displaced, resign, or die, then the right of the president protempore of the Senate to act as Governor is unquestionable. The question therefore arises upon the construction to be placed upon the latter clause of section 16. The language is as follows:
"* * * Removal from the state, or inability to discharge the powers and duties of the office, the said office, with its compensation, shall devolve upon the Lieutenant Governor for the residue of the term or until the disability shall be removed."
The offices of Governor and Lieutenant Governor are created
and their tenure, compensation, powers, duties, and functions are prescribed by the Constitution, and it is ordained that:
"The supreme executive power shall be vested in a chief magistrate, who shall be styled `the Governor of the state of Oklahoma.'" (Article 6, sec. 2 [151, Williams'].)
The duty of the courts in construing constitutional provisions is to give effect to the intent of the framers and of the people in adopting the same, and, whenever it is possible to do so, each provision must be construed so that it shall harmonize with all others, to the end that the intent may be ascertained and carried out and effect given to the instrument as a whole. In all cases where the meaning is clear and unambiguous, the question is not what was the intention, but what is the meaning of the language used.
Much stress is put upon the word "removal," as used in section 16, and counsel for respondent contend that the meaning of this word as used contemplates the permanent removal of the Governor from the state. We cannot agree with this contention. The word "removal," as used in section 16, and the word "absent," as used in section 15, are convertible terms. In Black's Law Dictionary, "absence" is defined as "the state of being absent, removed, or away from one's domicile or usual place of residence."
In the case of People v. Wells, 2 Cal. 198, the precise question before us was not presented, but Mr. Justice Anderson in *Page 149 his opinion, discussing constitutional provisions almost identical, said:
"The latter clause of the sixteenth section of the fifth article makes provision for the vacancy of the office of Lieutenant Governor. It sums up all causes of vacancy and, whether permanent or temporary, classes them under that head and by that single word. The recital of the language will enforce what I state. I repeat the clause: `If, during the vacancy of the office of Governor, the Lieutenant Governor shall be impeached, displaced, resign, die, or become incapable of performing the duties of his office, or be absent from the state, the president of the Senate shall act as Governor, until the vacancy be filled, or the disability shall cease.' Here the word `vacancy' is used both in a permanent and temporary sense. It may be absolute or become contingent upon the determination of the disability. It is previously provided that there shall be a Lieutenant Governor elected at the same time and place and in the same manner as the Governor, and only one Lieutenant Governor, as there are only three judges. But he may become incapable of performing his duties, or be absent, and so be under disability; and during this time another shall take his place. When, however, that disability ceases, he retakes his place; and from whence does he come? From that temporary vacancy. He was living, but out of his functions, either incapable or absent, and therefore disabled from the performance of his duties. It would have been absurd to have created that, or any other office, not subject to a temporary vacancy. That would have been the excess and folly of reverence and staid respect for the man, without the consideration for the public interests, to be found in the utility and necessity of the functions of the office. This train of incidents and reasonings runs through all the Constitution in relation to offices, their number, how to be occupied, how determined, and by what methods the functions shall always be kept in action. Thus the Constitution sustains the only practical doctrine, as laid down, that the vested rights of the tenure of the term attaches to the person of the elected incumbent, but that the functions of the office, in certain contingencies, separate from him temporarily and adhere to a distinct class of powers within its department for the use, benefit and protection of that great public for which the government was created. Thus, also, the Constitution has established the interpretation of the word `vacancy' to be, as used in it, that it means either permanent or temporary. The cause and the reason go together. The absence or incapacity of performance produces the disability; the *Page 150 vacancy of the functions, for so long, follows; when the former ends, the latter are resumed by the original incumbent. For all this, the Constitution has used the word `vacancy.' There it stands. There is no getting around it. It is the only truth; the solid and impregnable ground of the Constitution, not incidentally formed, but constructed for a particular purpose, with premeditation, thought, wisdom, and that good, practical common sense which the objects and the occasion demanded. But I am not done with the support even in this very place of the Constitution; and, although I do not think it necessary, I hold it to be my duty to add every rivet which may make the work more secure. The seventeenth, being the next section after that I have already quoted, declares that: `In case of the impeachment of the Governor, or his removal from office, death, inability to discharge the powers and duties of the said office, resignation, or absence from the state, the powers and duties of the office shall devolve upon the Lieutenant Governor for the residue of the term, or until the disability shall cease.' There are two things which this still further demonstrates: First, that the Constitution never lost sight of the proposition that a temporary vacancy might occur in the functions of an office, while the tenure of it was held by the stated incumbent; that in such event another might fill it; and that, when the disability ceased, the former should resume his constitutional functions. Can anything be plainer than this? Second, that the first section provides there shall be but one Governor, as there should be only three judges of the Supreme Court; but the section under consideration contemplates certain contingencies which may cause a temporary vacancy of the functions of his office, and, though he be living and holding the tenure of the term, another may occupy and administrate the functions. Thus the same idea is maintained throughout the Constitution, as applied to the very highest officer known to it. The mistake committed, usually, in forming an opinion upon this consists, as I have stated, in not drawing the proper distinction between the tenure of the term, which attaches to the person of the incumbent, and the functions of the office, which, under certain circumstances, he may exercise, but which belongs to the sphere of a department for the right as well as the good of the people. From that sphere they cannot be separated. The Constitution, we find, makes that distinction. The law makes it. The policy of all governments has made it. The usages of all civilized nations have incorporated it." *Page 151
In the same case Chief Justice Murray in his opinion used this language:
"It is said that our Constitution recognizes a temporary vacancy in the office of Governor, and that there cannot be two Governors in the abstract any more than there can be four judges. It is sufficient, by way of answer, to say that the Constitution has declared what shall constitute a temporary vacancy in the office of Governor and provided how the same shall be supplied, while it is silent with regard to every other officer. It is fair to suppose, upon every rule of construction, that, if vacancies for temporary incapacity in other constitutional offices had been contemplated, they would have been provided for."
A careful reading of the provisions (sections 15 and 16 of article 6) will show that the enumeration of the causes of vacancy in the office of Governor is so complete that they are susceptible of a construction which will cover every possible contingency, whether permanent or temporary. In case of a permanent vacancy of the office, the accession of the Lieutenant Governor continues for the residue of the term; if only temporary, until the disability shall be removed. As chief magistrate he has important functions to perform that can never be safely suspended for any period of time. As a convincing demonstration of this, it is only necessary to advert to a few of his powers, functions, and duties. He is commander in chief of the militia and as such represents the reserve force that constitutes the ultimate strength of the laws; and he shall cause the laws of the state to be faithfully executed; he is chairman of the most important state boards; he must issue extradition warrants for fugitives from justice, and a few days' delay would often defeat the ends of justice; without unreasonable delay he must pass upon extradition warrants from sister states; he must approve the official bonds of certain state officers within a time certain; and under section 5970, Rev. Laws 1910, he alone can reprieve or suspend the execution of a judgment of death beyond the time allowed by the trial court to perfect an appeal to this court, when the appeal has not been taken within the time allowed. See Opinion of the Judges, 3 Okla. Crim. 315,105 P. 684. *Page 152
The functions of chief magistrate were created for the benefit of the state and are local to it; and, as the constitutional functions of this office cannot be exercised out of the state, the effect of his absence from the state is to suspend his constitutional functions, and thereupon these functions devolve upon the Lieutenant Governor, and he becomes and is de jure and de facto Governor until the absent Governor returns to the state.
It is further provided by article 6, sec. 15, already quoted, that, if during a vacancy in the office of Governor the Lieutenant Governor shall "be absent from the state, the president pro tempore of the Senate shall act as Governor until the disability shall cease, and, if the president pro tempore of the Senate be absent from the state, the Speaker of the House of Representatives shall act as Governor until the disability shall cease. In all this there is a perfect consistency pervading both sections. The unequivocal language of the latter clause of section 16 is that, upon his removal from the state, said office shall devolve upon the Lieutenant Governor until the disability shall be removed, and the plain intention of the framers of the Constitution and the people in adopting it was to provide that in his absence from the state for any purpose or for any period of time, however short, his constitutional functions shall devolve upon the Lieutenant Governor as acting Governor. Such absence from the state is an abdication for the time being of the constitutional functions of his office, and the effect of that absence is to suspend his constitutional functions. He does not cease to be Governor by his temporary absence from the state. His vested right of tenure in the term of office attaches to his person and is distinct from his executive functions; it goes with him; but the constitutional functions of his office belong to the public and are confined to the state and cannot be exercised out of the state; when he leaves the state, the constitutional functions of his office devolve pro tempore upon the Lieutenant Governor; and, when he returns to the state, ipso facto, he resumes all of the powers, functions, and duties of his office, and the Lieutenant Governor, theretofore administering the executive functions temporarily under the Constitution, ceases to be acting Governor. *Page 153
The true distinction is founded upon the difference existing in the nature of things between a personal vested right of tenure in the term and the functions of the office created in the interest and for the benefit of the public. We think that this is the unmistakable meaning of the language used, and that this construction is alike supported by reason, common sense, public policy, known political truths, and the contemporaneous and practical construction of the respective departments of our state government and is conformable to the history of every state in the Union.
It follows that the pardon granted and delivered by the Lieutenant Governor as acting Governor, in the absence of the Governor from the state, is a valid and effectual pardon. Afortiori the warden had no authority to disregard it. As already indicated, the Governor has no power to revoke a full and unconditional pardon that has been delivered; therefore his order purporting to revoke this pardon was necessarily a mere nullity.
It is our opinion that the petitioner is unlawfully restrained of his liberty by the respondent and that he is entitled to a discharge from the imprisonment of which he complains, and he is therefore by the judgment of this court discharged therefrom.
ARMSTRONG, P.J., concurs.