Dissenting. — I am unable to concur in the conclusion reached by a majority of the court. I shall not discuss whether a parole is a conditional pardon or not, as I do not think that question very material here, and the only question of importance in this case is, whether the board of pardons exceeded its powers in imposing in the parole of the petitioner the following provision — “and upon his -return he shall serve out the full unserved term of his original sentence without any commutation of time.” Is that a condition that may be imposed by said board? In section 7 of article 4 of the constitution of Idaho, we find, among others, the following provision: “Said board, or a majority thereof, shall have *503the power to remit fines and forfeitures, and to grant commutations and pardons after conviction and judgment, either absolutely or upon such conditions as they may impose, in all cases of offenses against the state except treason or conviction on impeachment. The legislature shall by law prescribe the sessions of said board and the manner in which application shall be made and regulate the proceedings thereon. ’ ’
It is conceded by the majority, under certain authorities cited in the majority opinion and under our constitution and statute, as follows: “There can be no doubt but that under the constitution and statute as above cited, the board of pardons may, upon the granting of a pardon, commutation or parole, attach such conditions as they see fit so long as they are not immoral, illegal or impossible of performance, provided they are to be kept and performed or complied with during the term for which the prisoner was sentenced by the judgment of the court. ’ ’ They then proceed to hold that the above-quoted provision of the parole agreement was illegal because, as I understand them, they claim it increases the term of imprisonment of the petitioner. I do not maintain that the board would have power or authority, under said provision of the constitution, to make a valid parole agreement with a prisoner who had been convicted and sentenced to imprisonment for a term of years, that in case he violated his parole agreement, he might be arrested and hung for the violation of such agreement. But what I do maintain is, that the board has authority to require the convict to serve out the unexpired part of his term, in case he violates his parole; that he shall have no credit for the time he was out on parole, but must serve his entire term, in case of a violation thereof. As I view it, that condition is not immoral, impossible, nor is it illegal, and is not in violation of any provision of our statutes. I think it a very reasonable provision in such an agreement and one authorized by said provision of our constitution. The people of this state have spoken through the state constitution to the board of pardons, and said to them that in granting commutations, “you *504may grant them absolutely or upon such conditions as you may impose.” In commenting upon Fuller v. State, 122 Ala. 32, 82 Am. St. Rep. 17, 26 South. 146, 45 L. R. A. 502, my brothers say: “That the statute of that state in express terms provided that in case the prisoner should be returned, he should enter upon the service of his original sentence the same ‘ as though no parole had been granted. ’ ’ ’ And in commenting on Conlon’s Case, 148 Mass. 168, 19 N. E. 164, they say that that case is not in point here, for the reason that at the time the case was decided, there was a statute in Massachusetts providing that in case of the return of a prisoner who had been paroled there, “in computing the period of his conviction, the time between his release upon said permit and his return to the reformatory shall not be taken to be any part of the term of the sentence.” Thus the comments of my associates upon those cases would indicate that the legislature had the power to impose the terms there stated; but that as the legislature of this state had enacted no statute authorizing that condition in the parole agreement, the board did not have the power to impose it. I recognize the fact that this state has no statute in that regard, such as Alabama and other states have, where the legislatures of the several states have provided in express terms that in case a prisoner violates the terms of his parole, he may be returned to prison and serve out his sentence “as though no parole had been granted him.” Can it be possible that the legislature has greater power in this state in prescribing conditions on which a prisoner may. be paroled than the people authorized by the constitution and conferred on the board of pardons? The people of the state have spoken directly to the board of pardons and said, you may grant commutation and pardons after conviction and judgment, either absolutely or upon such conditions as you may impose, and the legislature shall, by law, prescribe the sessions of said board and the manner in which applications for pardon shall be made, and may regulate the proceedings thereon. That is the extent of legislative power. We have in section 7, article 4 of *505the constitution a power imposed on the-board of pardons to grant parole upon such conditions as they may impose, and in the same section the people have said to the legislature, you shall prescribe the sessions of said board and the manner in which application shall be made and regulate the proceedings thereon. The people by their constitution have prescribed in that section what the legislature may do in regard to paroles and pardons, and by provisions of said section have given the legislature certain authority therein and have prohibited the legislature from interfering in any manner with the “conditions” that may be imposed by said board in granting paroles. It is declared in section 2, article 1 of the constitution that all political power is inherent in the people, and my brothers, by their conclusions in this matter, would hold that, regardless of said provisions of the constitution, the legislature of this state has the power to limit the board of pardons in imposing conditions on paroled prisoners. They thus hold that the creature, the legislature, has greater power than the people, the creator. I cannot concur in that conclusion. So far as I have investigated, the constitutions of none of the states from which decisions have been cited have a similar provision in their constitution as said section 7, article 4 of the constitution of Idaho, and if they have, the acts of the several legislatures of those states, giving the pardoning power authority that it had under the constitution, would only be a work of supererogation, and not void. ¥e find in said section 7 a grant of power to the board of pardons, and we find in the same section a prohibition on the legislature from prescribing in any manner the conditions that may be imposed by the board on the paroled prisoner. In the opinion of the judges in the Matter of the Conditional Discharge of Convicts, 73 Vt. 414, 51 Atl. 10, 56 L. R. A. 658, the court said: ‘ ‘ The authorities seem to agree that, when a convict fails to perform the conditions of his pardon, he is liable to be remitted to his original sentence. This is the only logical result, for by nonperformance of the conditions the pardon becomes void, and the prisoner is in the *506same state in which he was at the time his pardon was granted. ’ ’ Can it be possible that the authorities agree upon that proposition and have not held such a condition of the parol illegal? It seems they have. In those states the sentence and judgment in a criminal case must be specific, certain and definite, the same as in our own state. A parole is not an increase of the sentence. In the Vermont case above cited, the court refers to the case of Arthur v. Craig, 48 Iowa, 264, 30 Am. Rep. 395, where the conditions were that during the remainder of the convict’s term of sentence he should refrain from the use of intoxicating liquors, use all proper exertion for the support of his mother and sister, and not be convicted of any criminal offense against the laws of the state, with the further condition that upon the failure to comply therewith, he should be subjected to summary arrest upon the warrant of thé governor, and thereon be remitted to his former custody to serve the remainder of the term of his sentence. The Vermont court said: “Reference might be made to pardons containing certain other and different conditions, but it is unnecessary. In the light of the authorities, what good reason can be given why the governor, under his constitutional powers, may not grant a parole with all the conditions intended by the law to be imposed by the board of prison commissions with like effect?” That question is answered by holding that there is no good reason why those conditions may not be imposed. There the pardoning board had the authority to impose that condition, and the question was as to whether the governor had the same power. But my brothers would say that Iowa has a statute authorizing those conditions. Can an illegal, immoral or impossible condition be made effective by legislative enactment? If the legislature has the authority by statute to authorize the board to impose these conditions, the people themselves certainly have the power, through their constitution, to grant that power to the board of pardons. Granted that the people did not intend by the said provision of the constitution to give the board of pardons power to impose on paroled convicts illegal, immoral, or impossible conditions; the condition in the par*507don under consideration is not illegal, immoral or impossible, and therefore the pardoning board had the right and authority granted them direct from the people to impose it. The prisoner should be remanded.