At the last term of court this case was reversed and relator ordered discharged. The State filed a motion for rehearing, and at their instance the case was continued until this term to enable them to prepare and file a brief herein. Able and exhaustive briefs have been filed both for the State and relator, and we have carefully perused each of them, but being of the opinion the original judgment entered was correct, we would write no further, only that the State seems to have misunderstood the language we used, or we did not make our meaning clear. It is stated in the brief that "the judge of the lower court held that the judiciary of this State can not supervise, inquire into, set aside or disturb the action of the Governor, the chief executive of this State, in the performance of the powers and functions conferred upon him by and under the Constitution of this State," and by inference proceeds to argue that this court had held otherwise. In no line or syllable of the original opinion can such construction be placed on the language there used. But if there is any provision of the Constitution or in the statutes of this State that authorizes the Governor to revoke a pardon, State's counsel have failed to point it out, and we have been unable to find it. In fact, we may state that there is no such authority granted the Governor by the Constitution or laws of this State. In the brief filed in behalf of the State it seems that the contention is made that as the Governor is granted power and authority to grant a pardon, that this includes the right torevoke a pardon after it is granted, and that the State's contention is based upon the error that the Constitution confides to the Governor the power and authority to revoke a pardon as well as to grant it, is manifest throughout in the brief filed. An unconditional pardon could not be revoked unless obtained by fraud, etc., has been universally held by all the courts, and then it is revoked on the ground that it was void in itsincipiency because obtained by fraud. It *Page 601 is not a power of revocation which is being exercised, but an ascertainment of a fact which rendered it void when issued, — the same rule being applied to pardons that is applied to all other transactions in life. And if the Governor is not granted the authority and power to revoke an unconditional pardon at pleasure by the Constitution, and this certainly no one can so contend, then the right to revoke a conditional pardon comes not from any power conferred on him by the Constitution and laws of the State, but by reason of the conditions placed in the pardon, and solely from that source.
The State in its brief ably and learnedly discusses the three divisions of the government, to all of which we agree, and recites the history of the foundation of our government, which we do not deem necessary to discuss at this time. We would not, nor would we be authorized to, seek to control the actions of the Governor in matters in which the Constitution confers on him the authority and power. But if the Governor should seek to revoke an unconditional pardon on the ground that it was obtained by fraud, we would not inquire into whether or not the Governor had thepower to revoke the pardon if a fraud had been perpetrated in obtaining it, but upon proper allegations we would determine whether or not a fraud had been perpetrated. The mere recital that a fraud had been perpetrated would not be conclusive nor binding on this court. So in a conditional pardon, if it was recited that the conditions had been violated, we would inquire into and see if the conditions had been in fact violated, unless in the conditional pardon the Governor had reserved to himself the right to so find and the pardon had been accepted under such conditions.
The statement is made in the brief that the "Constitution confers upon and delegates to the Governor the power and jurisdiction over pardons." This is erroneous. The Constitution only grants to the Governor the power to grant pardons, and confers upon him no further or other jurisdiction in the premises, and all the argument and authorities based upon such premise is of little force, or of no force, because based upon an incorrect conclusion. The Governor in granting a pardon, can place therein conditions if he so desires, and provide for a revocation in the event the conditions are violated; and he and he alone must make the revocation, and this court and no other court would seek to control his action in revoking the pardon ifthe conditions have been violated. But his power and authority to revoke does not arise until a violation of the conditions has taken place. Then it is, and not until then, does a discretionary power vest in him to say whether or not he will revoke the pardon. If upon the violation of the conditions named, he revokes the pardon, we would not seek to stay his hand, nor would we have any authority to do so. If he should decide that a violation took place under such conditions that he would not revoke it, we would not and could not require him to do so. This is the discretion with which he is invested — whether or not he will revoke aftera violation of the conditions, and we heartily agree with all the authorities cited by the State that we *Page 602 should not seek to control a discretion of the Governor in a matter which is confided to him. But neither the Constitution nor the laws of this State invest the Governor with the authority to conduct an investigation and decide whether or not the condition has been violated. If he has this power it must arise from the language he uses and reservations he makes in the conditional pardon. But this feature of the case, to which the State devotes so much of its brief and argument, need not be discussed, because the Governor in the attempted revocation does not claim that the conditions named by him in the pardon have been violated by relator.
The State also claims in its brief that we hold a conditional pardon is the same as an unconditional pardon. This is a misconception of the language of the opinion, for we did not hold nor intend to hold any such thing. What we did hold was that the Governor had no more authority to revoke a conditional pardon until a violation of the condition than he has to revoke an unconditional pardon. This and nothing more, and upon this misconception of our holding the State builds a straw man and knocks him down. As hereinbefore stated, we did not in the original opinion, nor do we now, hold that this court can review or control the discretion of the Governor in any matter in which the Constitution or the law confides it to him. What we did hold and now hold is, that the Governor was invested with no discretion to act in the premises by the Constitution, nor the laws of this State, until some of the conditions placed by him in the pardon had been violated, and as he did not claim and does not now claim that any of the conditions have been violated, he had no power of revocation in this case, and will have none until some of the conditions named in the pardon have been violated by relator.
When the pardon was delivered to and accepted by relator, the conditions became binding on him, and the Governor as well, and before the Governor can act relator must violate the conditions named, or some one of them.
The motion for rehearing is overruled.
Overruled.