Dissenting.—By article 3 of the Constitution the powers of government are “divided into three separate departments, the legislative, the executive, and the judicial, ’ ’ and each is forbidden the right to exereise the powers of the other. Article 4 defines the powers and duties of the legislative department. Article 5 defines the powers and duties of the executive department. Article 5, entitled “Executive Department,” section 5, is as follows:
“The Governor shall have power to grant reprieves, commutation, and pardons, after convictions, for all offenses except treason and cases of impeachment, upon such conditions and with such restrictions and limitations as may be provided by law. ’ ’
If the pardoning power was not intended to be given to the Governor, the language used in article 5 defining the powers and duties of the Governor is without legal effect, and is meaningless.
The legislature, at the third special session of its first session, passed, over the Governor’s veto, an act that was subsequently referred to the people and by them approved at the 1914 November election, which undertakes to deprive the Governor of this pardoning power. The act so passed was subjected to the referendum power, a»nd the act was, by a vote on the question submitted, sustained. By this proceeding and its results no more binding effect can be given the law than can be given an ordinary act of the legislature. Had it been initiated and enacted by the people, its effect would be no different. “Any law which may not be enacted by the legislature under this Constitution shall not be enacted by the people.” Section 14, art. 22, State Constitution. Referred and initiated laws cannot be given the force and effect of amending the Constitution; neither can they be sustained when repugnant to the Constitution, although they may have had the popular approval. This act has as much sanctity and vitality as an act of the legislature, but no more.
*532The act in question appears in the Penal Code as “Title XXI—Pardons and Beprieves,” and is subdivided into sections 1297 to 1307, inclusive. Section 1297 is as follows: “The Governor has power to grant reprieves, commutations, and pardons, after conviction, for all offenses, except treason and cases of impeachment, upon such conditions and with such restrictions and limitations as he may think proper, subject to the regulations provided in this chapter.”
Section 1297 of the Penal Code, supra, does not encroach upon the Governor’s constitutional power to grant pardons, but section 1301 creates a board of pardons and paroles consisting of the state superintendent of public instruction, the Attorney General, and a third member to be selected by those two. Section 1302 provides that:
“Said board shall have exclusive power to pass upon and recommend reprieves, commutations, paroles and pardons, and no reprieve, commutation, parole or pardon shall be granted by the Governor unless the same has first been recommended by said board. All applications made for reprieves, commutations, paroles and pardons made to the Governor shall be at once transmitted to the chairman of the said board, and the said board shall return the same with their recommendation to the Governor.”
By section 1302 the Governor has no duty in the premises, except a clerical one. He may sign a pardon, if it be recommended, but not otherwise. The power to grant pardons is not his power, but the board’s. If this legislation is valid, article 5, section 5, to the effect that “the Governor shall have power to grant . . . pardons, . . . upon such conditions and with such restrictions and limitations as may be provided by law,” has no meaning as conferring a power, but, on the other hand, it means that he may, in the performance of what someone has said “is the most gracious act of government,” participate to the extent only of signing his name to the instrument granting mercy.
To uphold this legislation it would be necessary for this court to find that it was the intention of the Constitution makers to give the Governor no power in the granting of pardons, other than a clerical one. If he has no power to grant a pardon except upoD a recommendation, then he has no power to refuse to grant a pardon upon a recommenda*533tion. The legislative attempt is to control his discretion, judgment, power in granting mercy, not in refusing it. He is given the implied power to ignore the recommendation of the board, and refuse his signature to a pardon approved by the board, and there is no way of controlling his judgment, power or discretion. If he would extend mercy, mercy must be recommended by the board. Under the constitutional provision, the consent of the board is not essential in either case. It is the Governor’s judgment, discretion or power that constitutionally must be brought into action both in the exercise and the refusal to exercise the pardoning power. The effort is to take this power from the Governor, not in the constitutional way, by amendment, but by a legislative act. In its first section (1297) the statute concedes full and complete power of pardon in the Governor to be exercised “as he may think proper,’’ and in subsequent sections attempts to divest him of that power and give the power to the board of pardons and paroles. If the act alone is consulted for the source of the pardoning power, its contradictions would involve the question in great doubt and uncertainty.
The only three state legislatures that have ever created boards of pardon such as that attempted by said act are Michigan, Oklahoma and "Washington. Other states have pardoning boards, but, as is said in Rich v. Chamberlain, infra, they are invariably constitutional boards. The statutory boards of Michigan, Oklahoma and Washington, in so far as they were vested with the pardoning power, have been held unconstitutional under organic laws so much like ours as to give them great persuasive force. Whoever possesses the pardoning power may issue either the unconditional or the conditional pardon; it being generally conceded that the right to grant the former includes the right to grant the latter or lesser. 29 Cyc. 1570.
The great similarity to ours of the constitutional provisions of many other states, and the decisions of the courts construing those provisions, wherever the particular question now before us was involved, may be looked to with profit.
California Constitution, article 7, section 1:
“The Governor shall have the power to grant reprieves, pardons, and commutations of sentence, after conviction, for all offenses except treason and cases of impeachment, upon *534such conditions, and with such restrictions and limitations, as he may think proper, subject to such regulations as may be provided by law relative to the manner of applying for pardons. ’ ’
The qualifying words, “conditions, restrictions and limitations,” are identical with ours in place and meaning, and the provision is the same as ours, except that the legislature in California is authorized to provide the method of applying for pardon, and. the Governor may grant pardons as he may think proper, and in ours the legislature is authorized to provide the conditions, restrictions, and limitations of the pardon if granted.
In Ex parte Kelly, 155 Cal. 39, 20 L. R. A. (N. S.) 337, 99 Pac. 368, the court said:
“The power of the Governor ... to grant pardons and commutations ... is absolute under the Constitution.”
Constitution of Michigan, article 5, section 11, is the same as California, and in Rich v. Chamberlain, 104 Mich. 436, 27 L. R. A. 573, 62 N. W. 584, the supreme court of that state said:
“This section of the Constitution, in express terms, lodges the pardoning power with the Governor, and with it the coordinate branches of government have nothing to do, except as the legislature may by law provide how applications may be made, and is entitled to a report of action taken. People v. Brown, 54 Mich. 28, 19 N. W. 571; People v. Moore, 62 Mich. 498, 29 N. W. 80; People v. Cummings, 88 Mich. 251, [14 L. R. A. 285], 50 N. W. 310; United States v. Wilson, 7 Pet. 150 [8 L. Ed. 640] ; Ex parte Wells, 18 How. 307 [15 L. Ed. 421] ; Ex parte Garland, 4 Wall. 333 [18 L. Ed. 366]. The power conferred by this section of the Constitution is practically unrestricted, and the exercise of executive clemency is a matter of discretion, subject, perhaps, to the remedy by impeachment in case of flagrant abuse. It cannot, however, be treated as a privilege. It is as much an official duty as any other act. It is lodged in the Governor, not for the benefit of the convict only, but for the welfare of the people, who may properly insist upon the performance of that duty by him, if a pardon is to be granted. . . . The office of Governor seems to be generally considered the proper one with which to lodge such responsibility, and the public have the *535right to insist upon his performance of the duty. Not only is it beyond the power of the legislature to impose the duty upon others, but it should not in any way lessen his responsibility to the public, when he sets aside the judgment of court and jury by opening the doors of a prison to a convicted felon. If the act in question does this, it should not be sustained.”
Oklahoma Constitution, article 6, section 10:
“The Governor shall have power to grant, after conviction, reprieves, commutations, paroles, and pardons for all offenses, except cases of impeachment, upon such conditions and with such restrictions and limitations as he may deem proper, subject to such regulations as may be prescribed by law.”
The legislature of Oklahoma passed a law creating a board of pardons and paroles, and enacted that the Governor could not pardon or parole until he had presented the matter to, and obtained the advice of, the board of pardons and paroles. The criminal court of appeals of Oklahoma, in Re Ridley, 3 Okl. Cr. 350, 26 L. R. A. (N. S.) 110, 106 Pac. 549, adopted the reasoning and language of the Michigan court in Rich v. Chamberlain, supra, and held that the powers and duties attempted to be conferred on the board of pardons and paroles belonged, under the Constitution, to the Governor, and could not be taken from him nor controlled by the legislative department.
The only difference discernible between our constitutional provision as to the power of pardon and those of California, Michigan and Oklahoma is this: The California, Michigan and Oklahoma Constitutions provide that the Governor shall have power to grant pardons upon “such conditions, and with such restrictions and limitations, as he may deem proper,” and our Constitution provides that the Governor shall have power to grant pardons upon “such conditions and with such restrictions and limitations as may be provided by law.” The discretion given the Governors of the former states, as to what conditions the pardon shall contain, may be controlled by legislation in this state fixing those conditions. In those states the Governor may specify the conditions “as he may deem proper,” but in Arizona the legislature may, under the Constitution, “provide by law” the conditions, restrictions and limitations of the pardon, but it cannot control *536the power to pardon for that is fixed by the Constitution in the Governor.
Constitution of Arkansas of 1836, article 5, section 11:
“In all criminal and penal cases, except in those of treason and impeachment, he [the Governor] shall have power to grant pardons, after conviction . . . under- such rules and regulations as shall be prescribed by law.”
In Ex parte Hunt, 10 Ark. 284, it was held by the supreme court of that state that the Governor had the constitutional power to grant full and absolute pardons or pardons with such restrictions and conditions as he might deem proper, or pardons with such conditions and restrictions as specified by a legislative act.
Constitution of Washington, article 3, section 9:
“The pardoning power shall be vested in the Governor, under such regulations, and restrictions as may be prescribed by law.”
In State v. Jenkins, 20 Wash. 78, 54 Pac. 765, the supreme court of that state held that the Governor’s pardoning power could not, by a legislative act creating a board of pardons with power to recommend pardons, be restricted or controlled, since the power granted the legislature to regulate and restrict did not confer the power to abridge the executive functions.
Some of the states have provided in their Constitutions for the exercise of the pardoning power by pardoning boards, and in every such ease the Governor is made a member of the board. Such are the provisions of the Constitutions of Idaho, Minnesota, Montana, Nevada, New Jersey, Pennsylvania, South Dakota and Utah. By the Arizona legislative act the Governor is not a member of the board, and has no voice in its deliberations. He may only announce its findings and carry out its judgments.
Those states vesting the pardoning power in their Governors are Alabama, Arkansas, Delaware, Georgia, Kansas, Missouri, Nebraska, New York, North Carolina, South Carolina, North Dakota, Mississippi, Oregon, Tennessee, Texas, Virginia, West Virginia, Wisconsin, Wyoming, California, Michigan, Washington, Iowa, Ohio and Oklahoma. There is an absence of reported cases from these states wherein the power of the executive has been denied or abridged by any *537statutory board. In the states of Michigan, Washington and Oklahoma the power has been attacked, and in those states the courts have denied the right of the legislature to vest such boards with pardoning power, as above noted.
If we resort to the proceedings of the constitutional convention for assistance in arriving at the meaning intended to be given any provision of the Constitution, we find that in the organization of that body certain standing committees were appointed. Committee No. 3 was the “Executive, Impeachment and‘Removal from Office” Committee. This committee reported to the convention the provision that became, in substance, article 5 of the Constitution as a committee substitute for a number of separate propositions. A committee known as No. 21, ‘ ‘ Style, Revision and Compilation, ’ ’ was provided for, to consist of five members. M. J. Cunniff was made chairman, with Ingraham, Cassidy, Lynch and Winberger as members. The convention adopted rules to govern its deliberations. Rule 53 provided:
“The regular order to be taken by propositions introduced in the convention shall be as follows: . . .
“(e) . . . A proposition ordered engrossed shall be referred to the Committee on Style, Revision and Compilation for engrossment.
“(f) So soon as any entire proposition shall have been adopted, such proposition shall be referred to the Committee on Style, Revision and Compilation. The committee shall have power to revise the language used in the interest of grammatical excellence, uniformity, and consistency, but must not in any way destroy the sense of the convention.” See Minutes of Constitutional Convention.
Section 5 of article 5 of the Constitution, as adopted and incorporated in the Constitution, is in words and characters as follows:
“See. 5. The Governor shall have power to grant reprieves, commutation, and pardons, after convictions, for all offenses except treason and cases of impeachment, upon such conditions and with such restrictions and limitations as may be provided by law.”
The chairman of the Committee on Style, Revision and Compilation, having the arrangement of this sentence under consideration, was a recognized authority on language, having *538held a position as instructor of language in one of the most important colleges of the nation. The other members of the committee are men recognized as conversant with our written language. This committee was responsible for the arrangement of the above provision and its grammatical excellence, uniformity and consistency, to preserve the sense of the convention. As arranged, it was approved by the convention. The matter of punctuation becomes important to the understanding of the sentence because of the duty of the Style, Revision and Compilation Committee. 'The recognized rule of good punctuation of a sentence such as section 5 is to “put a comma between a relative clause and its antecedent, if the clause is nonrestrictive, and in that case only; never put a comma between a restrictive relative clause and its antecedent. ’ ’
“A restrictive clause is a relative clause the omission of which would make the principal clause meaningless or would change its meaning. A nonrestrictive relative clause is one without which the principal clause would have the same meaning. ” (I have quoted Edwin G. Woolery, “The Mechanics of Writing,” page 121, section 251, and page 122, section 252, and the rules are so elementary that any school text-book on the subject may be consulted with the same effect.) The antecedent here is:
“The Governor shall have the power to grant reprieves, commutation, and pardons, after convictions. ...”
Now, if the clause “upon such conditions and with such restrictions and limitations as may be provided by law” is to be nonrestrictive according to the rule, a comma should be placed after “convictions.” If the clause is a “restrictive relative clause” restricting the antecedent “The Governor shall have power,” etc., then, according to the rule, no comma should appear. A comma is there, and if it was placed there by the Style, Revision and Compilation Committee because of the grammatical -rules, and approved by the constitutional convention as conveying the sense of the convention, then the clause “upon such conditions and with such restrictions and limitations as may be provided by law” does not restrict the power of the Governor to grant reprieves, commutation and pardons, after conviction. The clause is a nonrestrictive relative clause, without which the principal clause has the *539same meaning. I am of the opinion that such was the meaning intended to be conveyed by the provision, and such meaning was given the provision as clearly as words can convey any meaning. The Governor is given the power to grant reprieves, commutation and pardons, after convictions, and that power cannot be taken from him except by amending the Constitution, and this has not been done.
I am of opinion that the board of pardons and paroles, as a board, cannot control, abridge or restrict the powers of the Governor in granting reprieves, commutations or pardons, and that the Governor may act in such matters in disregard of the board or any action taken by it.
For these reasons, the judgment of the trial court should be reversed and cause remanded, with directions that judgment be entered discharging the appellant from custody.