dissenting.
The petitioner was set free from imprisonment by order of commutation of sentence entered on June 19, 1979. The official action was not reported to this court until after hearing on the habeas corpus petition, so opinion has issued. I agree that the proceeding was not made moot by the commutation but for the reason that others, still imprisoned, have cause to assert the efficacy of merit time earned by compliance with the directives of the prison administrators to reduce sentence. I dissent because the majority do not accord to merit time so earned an absolute reduction of sentence.1
The majority rests on the premise, simply, that the power to commute sentence rests by Constitution [Art. IV, § 7] altogether with the grace and discretion of the Governor unconditioned by an entitlement to a reduction of sentence earned under a promulgated administrative procedure. In summary, the opinion holds: “The grant of nonstatutory good time has always been and continues to be a form of commutation under the governor’s constitutional power to grant pardons and commutations . [and] does not constitute an absolute credit [and] automatic reduction of sentence.” Implicit in this posture is the assumption that judicial interference with such a grace granted or withheld violates the constitutional separation of powers [Art. II, § 1] and so rests beyond the jurisdiction of a court to correct.
*81The conclusion of the majority, that administrative rules cannot compel an Executive commutation of sentence [Whitaker v. State, 451 S.W.2d 11 (Mo.1970)], however, can have no validity when the conditions for reduction of sentence are promulgations of the Executive, itself.
At least from year 1962, systematic provisions in the form of printed “Inmate Regulations” have issued from the successive prison administrators. These publications inform the convict population at the Missouri State Penitentiary for accrual of benefits, in addition to those under the statutory three-fourths rule, towards the reduction of sentence. This good time or merit time is designed as “reward for positive behavior which contributes to the achievement of correctional goals” — that is, to accomplish .rehabilitation. [Bulletin No. 45 (Revised), May 15, 1974]. The year 1967 rule book makes the procedure explicit:
INSTITUTIONAL MERIT TIME:
In addition to the benefits of the statutory three-fourths rule, an inmate may further reduce his sentence with good work and conduct by earning institutional merit time. This time ranges from five days a month through eight days a month on assignments inside the penitentiary and from eight days a month through ten days on minimum-security assignments.
BLOOD TIME:
Over and above the statutory three-fourths rule and institutional merit time, your sentence may be further reduced by donating blood to the Red Cross . You may be credited with fifteen days for each regular blood you give up to a maximum of thirty days for a calendar year.
COMMUTATION OF SENTENCE BY GOVERNOR:
Reduction of your sentence resulting from the three-fourths rule, institutional merit time, and blood time is a commutation of sentence. It is commonly referred to as a discharge and is distinguished from parole. It means that upon being commuted, you have finished that particular sentence and you are not under supervision of any person or agency upon release to the community, [emphasis added].
These provisions in essential terms are repeated in the year 1970 rule book for the penitentiary. They propose good conduct and donation of blood as the quid pro quo for merit time and promise without condition reduction of sentence by commutation to the extent of the merit time so earned— unless forfeited. The early publications [Warden’s Bulletins to Inmates and Personnel of July 1, 1968, and February 1, 1970, for instance] also make provision for forfeiture of merit time “by the Adjustment Board with the approval of the Warden.” In May of 1974 and thereafter [no doubt prompted by the imperatives of Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974)], the Director of Corrections [now Director of Division of Corrections] issued Bulletin No. 45 to modify the prior perfunctory procedure for forfeiture of merit time earned:
LOSS OF MERIT TIME: The courts have mandated that any loss of merit time must be by procedures which comport with constitutional due process, which includes:
1. Notification of the charges in writing.
2. Confrontation by the inmate of the allegation and accusors. [sic]
3. The right to call witnesses.
The classification/treatment teams shall be responsible for recommendations of merit time loss, and in no case shall merit time be recommended taken from any inmate without a meeting in which the inmate shall be permitted to fully discuss his position and present facts in his behalf ....
The procedure was reannounced by formal rule published on December 31, 1975.
It is conceded that since year 1962 the Governor has granted formal commutation of sentence “[i]n more than 99 percent of the cases that have been submitted” upon notice from the Director of Corrections that a prisoner, by composite computation of statutory three-fourths time and institu*82tional merit time, has reached release date.2 It is certain that no order to deny a commutation on merit time and statutory time was ever made by the incumbent or predecessor Governor. On this reckoning, the petitioner Parrish was placed by the Director of Corrections on the release list for November 6, 1975, his family gathered to receive him, but without explanation was never released.3 Hence, the petition for writ of habeas corpus.
The majority opinion holds, nevertheless, that a commutation results only from a completed Executive clemency — a pardon signed, attested and delivered — and that no equity earned by a prisoner compliance with regulatory conditions for discharge can compel the discretion of the Executive to perform that act of grace. The legalism that only formality of the Executive signature suffices to complete a commutation yields to the reality of a bargain struck between the prisoner and Executive administrator, adopted by the Executive, and given effect by unvaried practice from one Executive to the next. I respond to the majority that, taken on its own terms, the circumstances show that the Executive has exercised discretion that merit time, not otherwise forfeited, shall work an absolute reduction of sentence towards commutation on fulfillment by a prisoner of the conditions precedent for good conduct, donation of blood, and other regimen for rehabilitation promulgated by penitentiary regulation. That is the reality of the undisputed circumstances. The regulations to the inmates were formulated and published by the Director of Corrections, appointed by the Governor and subject to his pleasure. [§ 216.110 as amended by the Omnibus Reorganization Act, Laws 1974, p. 530.] They had the dual public purpose to encourage “positive behavior” by a system of reward and at the same time to facilitate penal administration. They held out expectation without condition, that reduction of your sentence from merit time so earned is a commutation of sentence.4 The incumbent Governor, as had each predecessor, adopted and affirmed the application by his administrator of the distinctive and intimate Executive power to commute as an expression of Executive policy. Thus, formal commutation of sentence has issued as of course on information referred by the prison administrator that a prisoner had accrued a sufficient statutory and merit time to earn release.
A power to pardon or commute, whether under constitution or statute, is construed in terms of the common law. Accordingly, the rules of construction as to deed or other grants apply to pardons and commutations. Ex parte Wells, 18 How. 307, 310, 15 L.Ed. 421 (U.S.1855); United States v. Wilson, 7 Pet. 150, 160, 8 L.Ed. 640 (U.S.1833). A pardon on condition, offered and accepted, in effect concludes a contract between the Executive and the prisoner that the Executive will release the prisoner on fulfillment of condition. State v. Eby, 170 Mo. 497, 71 S.W. 52, 60[3] (1902); Ex parte Seymour, 155 Tex.Cr.R. 112, 231 S.W.2d 448, 449[1] (1950); 67A C.J.S. Pardon and Parole §§ 25-27. On the same figurative principle, *83a condition of pardon must be construed according to the intention of the parties, and every doubt resolved in favor of the citizen and against the sovereignty. 60 A.L.R. 1410, Annotation: Conditional Pardon, p. 1414; 67A C.J.S. Pardon and Parole § 25.
A commutation may issue with condition or without condition. If on condition, then both the Executive and the convict are bound by that reservation. Silvey v. Kaiser, 173 S.W.2d 63, 64 (Mo. banc 1943); A pardon may reserve a condition precedent or a condition subsequent to the effective operation of commutation. Ex parte Webbe, 322 Mo. 859, 30 S.W.2d 612, 614[l-3] (banc 1929); Mo.Const. Art. IV, § 7 (1945). The condition may be of any nature so long as it is not illegal, immoral or impossible of performance. State ex rel. Stewart v. Blair, 356 Mo. 790, 203 S.W.2d 716, 718[2] (banc 1947). Although a matter of Executive grace, a commutation is subject to the election by the convict and does not come into effect until accepted with all attendant conditions. Ex parte Strauss, 320 Mo. 349, 7 S.W.2d 1000[1-4] (banc 1928); United States v. Wilson, supra, 7 Pet. l.c. 160. A condition subsequent of commutation that the prisoner “shall comply with all the rules and regulations of [the] Reformatory” is valid to bind a prisoner who assents. Ex parte Webbe, supra, 30 S.W.2d l.c. 615[2, 3]. The condition precedent that compliance by a prisoner with the institutional regulations earns merit time and entitlement to pro tanto reduction of sentence and the concurrent exercise of discretion to commute on those terms, by a parity of principle, binds the Executive to the expectation of release engendered by such an official practice. The lapse of an Executive signature on a paper when the right to the signature has fully accrued by acceptance and performance of condition becomes merely functus officio.
For these reasons I dissent to Part II of the majority opinion.
I dissent from Part III of the majority opinion as well. The refusal to give effect to the merit time earned in absolute reduction of sentence, without hearing or reason, denies the petitioner and those similarly situated due process of law. The majority dispatch that contention by the tautology that merit time earned under prison regulations prior to 1976 does not create “a liberty interest protected by due process guarantees.” That conclusion proceeds readily from the premise of the majority that a formal act of clemency is required for commutation, that the act was never completed and that no equity can compel the Executive to complete that act of grace. That answer evades altogether the declaration of Wolff v. McDonnell, supra, that the loss of good-time credits lengthens confinement and so is a deprivation of liberty protected by due process. What has become of the merit time earned by the petitioner? The majority answer with an enigma [Ex parte Collins, 94 Mo. 22, 6 S.W. 345, 346 (1887)]:
The status of the petitioner, then, is that he, so far as in him lay, has fully complied with the condition annexed to his case, when he entered the walls of the penitentiary. It may be conceded that he became entitled to whatever benefit an observance of those conditions gave him; but what benefit was that? Simply this: that he became entitled to be recommended to the governor as a fit subject of pardon. This benefit he has received. His right to a pardon does not lie in the terms of the statute . . . Equitably, the prisoner is perhaps entitled to his discharge; but that is a subject which lies entirely in the discretion of the executive. By virtue of the writ which has been issued, we can only make inquiry into his legal rights in the premises. The result is that he must be remanded to the custody of the warden, and it is thus ordered.
That principle was formulated at a time when prisoners were “mere slaves of the State” [Ruffin v. Commonwealth, 62 Va. 790, 794-6 (1871)] and before the due process of law ethic took account of infringement of convict rights from arbitrary action of the state. Wolff v. McDonnell, supra; Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); Gagnon v. *84Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). That was a time, also, when any civility to a convict — merit time included — was a matter of “grace.” Morales v. Schmidt, 489 F.2d 1335, 1338 (7th Cir.1973) modified on rehearing en banc, 494 F.2d 85 (1974). Merit time is no longer a grace, but a right. Time earned is time served — unless forfeited for reason, and is an interest in liberty protectible by due process. Wolff v. McDonnell, supra, 418 U.S. l.c. 571[28], 94 S.Ct. 2963.
The right-of the petitioner, and those who stand with him, arises from regulations promulgated under the authority of statute [§ 216.405] by an Executive appointée. Thus, state action gives rise to the right to absolute reduction of sentence to the extent of merit time earned. Regulation before year 1976 also provided that the merit time so accrued could be lost only “by rules which comport with constitutional due process.” Thus, state action also makes provision for forfeiture of merit time for cause shown. These procedures, without doubt, entitle the petitioner and those others to the expectation that their sentences would be reduced to the extent of the merit time earned and retained. They were rights and protections created — at least — by positive state authority and entitled to the due process of the law. Meachum v. Fano, 427 U.S. 215, 225[9], 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976); See Note: Procedural Due Process In Prisoners’ Rights, 57 B.U.L.Rev. 387 (1977). To deny commutation of sentence when that release has been earned without hearing or reason deprives a prisoner of a legitimate expectation of liberty. It also contradicts the governmental interest which prompted the regulations: orderly administration of the prisons on the one hand, and encouragement of prisoner behavior conducive to reinstatement into the community, on the other. That it is the Executive who must complete the commutation by formal act does not alter the nature of the expectation to reduction of sentence as a protecti-ble right of liberty or avoid the due process obligation to a hearing to determine cause for the forfeiture of that expectation. The constitutional due process of law protects against any arbitrary action of government to deny a right of liberty or property, no matter by what organ of government. Missouri v. Dockery, 191 U.S. 165, 171, 24 S.Ct. 53, 48 L.Ed. 133 (1903). That right to liberty or property — and thus the existence of a protectible interest — does not rest [as the majority has it] on any routine distinction between “grace” and “right” but on an entitlement to a benefit from state statute, regulation or other source. Board of Regents v. Roth, 408 U.S. 564, 571[9-11], 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Meachum v. Fano, supra, 427 U.S. l.c. 226[9], 96 S.Ct. 2532; Moody v. Daggett, 429 U.S. 78, 86[1, 2], 97 S.Ct. 274, 50 L.Ed.2d 236 (1976). The case of Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, - U.S. -, 99 S.Ct. 2100, 60 L.Ed.2d 668 [1979] cited by the majority on Point III sustains the position of petitioner. That case holds, as the majority cites, “whether any . . state statute provides a pro-tectible entitlement must be decided on [that] basis.” The very source for the right to absolute reduction of sentence time the petitioner claims is state regulations promulgated under authority of statute.
Part II of the majority opinion is wrong, even on the terms assumed, because the Executive exercised a de facto discretion to accord commutation in every case to a prisoner who fulfilled the conditions precedent of the regulations that good conduct earned merit time as an absolute reduction of sentence.
Part III of the majority opinion is wrong because the regulations promulgated by the administrator of the Executive under legislative authority and which, without qualification, accord to merit time earned an absolute reduction in sentence constitute state action which creates a legitimate expectancy of a benefit of liberty — a benefit which cannot be refused effect arbitrarily by the Executive organ of government without the hearing the very regulations direct.
For these reasons I dissent.
. The habeas corpus petitioner Parrish contends, and respondent Wyrick admits by return, that petitioner has earned 1,828 days of merit time which, if effective to reduce sentence, entitled him to release on November 6, 1975. The report from the Department of Social Services to Governor Teasdale on the record of commutation certified by the Secretary of State shows, however, an accrual of 609 days of merit time. We are given no accounting of this discrepancy. In any event, by whatever count, the prisoner has been eligible for commutation of sentence for more than a year before actual grant.
. There is no contention, in fact, that Executive commutation has ever been denied any prisoner [the petitioner now included] who has accumulated a sufficient statutory and merit time for release.
. The commutation, of course, finally issued on June 19, 1979.
. The year 1976 Inmate Rule Book, for the first time, propounds merit time, not in terms of absolute reduction of sentence, but as qualified by the possibility of refusal to commute by the Governor. Merit time, for the first time, becomes merely one criterion “for recommendation for commutation of sentence by the Governor.” And for the first time a prison regulation explicitly informs the inmates that the administrative recommendation upon accrual of merit time “in no way bind[s] the Governor” who, in the commutation of sentence, exercises a constitutional power. In any event, no belated rule can abrogate the full right to commutation of sentence already fully earned by the petitioner Parrish or the pro tanto reduction of sentence earned by those other prisoners, similarly situated, under the previous regulations which gave unconditional reduction of sentence as an award for good conduct and blood donations — a procedure for the award of commutation adopted by the Governor as an instrument of Executive policy.