dissenting:
I respectfully dissent in part from the opinion of the majority. While the majority is correct in its holding that the governor possesses a wide-ranging and exclusive right to grant reprieves, the real question is whether the action in issue here is truly in the nature of a reprieve.
A reprieve is defined as the “[tjemporary relief from or postponement of execution of criminal punishment or sentence. It does no more than stay the execution of a sentence for a time_” Black’s Law Dictionary 1170 5th ed. (1979). See also 59 Am.Jur.2d Pardon and Parole §§ 4 & 22 (1987); 67A C.J.S. Pardon and Parole § 30 (1978).
Clearly, the governor has almost untram-melled authority to grant reprieves. But a reprieve necessarily involves a stay in the execution of a sentence. See Williams v. Brents, 171 Ark. 367, 284 S.W. 56 (1926); State ex rel. Waggoner v. Cozart, 222 La. 1039, 64 So.2d 424 (1953); Lime v. Blagg, 345 Mo. 1, 131 S.W.2d 583 (1939); Clifford v. Heller, 63 N.J.L. 105, 42 A. 155 (1899); Sterling v. Drake, 29 Ohio St. 457 (1876); Ex parte Bryant, 155 Tex.Crim. 23, 230 S.W.2d 824 (1950). In the case at hand, the issue revolves around a document which, though entitled a reprieve, not only fails to stay the execution of sentence, but specifically directs the prisoner to remain in the custody of the sheriff.
Aside from the fact that the governor’s action does not stay the execution of the sentence, and thus is not in the nature of a *15reprieve, the question should also be examined as to what power the governor possesses to direct the sheriff to retain in his custody a person lawfully convicted and sentenced to a state penitentiary for a felony offense.
As pointed out by the majority, this case does not present a situation where the governor has acted pursuant to emergency powers conferred upon him. W.Va. Code § 15-5-6 [1973]; See State ex rel. Dodrill v. Scott, 177 W.Va. 452, 352 S.E.2d 741 (1986). As this Court noted in Dodrill, supra
although imprisonment in a pentientiary (sic) is under some penal statutes a matter of discretion, that discretion is vested in the judiciary rather than the executive. In the absence of an exercise of such discretion by the court, the statute creates a mandatory, non-discretionary duty to imprison those so convicted in the state.
177 W.Va. at 456, 352 S.E.2d at 744-45.
Similarly, W.Va.Code § 62-13-5 [1977] provides in part that:
All persons committed by courts of criminal and juvenile jurisdiction for custody in penal, correctional or training institutions under the jurisdiction of the commissioner of corrections shall be committed to an appropriate institution, but the commissioner (or the director if the commissioner so approves) shall have the authority to and may order the transfer of any person to any appropriate institution within the department.
Thus the language of the statute places a mandatory duty on the commissioner to accept those persons sentenced by the courts for confinement in state penal institutions. See Dodrill, 177 W.Va. at 456, 352 S.E.2d at 745.
Consequently, the only time the governor, as executive, could direct sheriffs to hold prisoners, would be pursuant to the emergency powers enumerated in W.Va. Code § 15-5-6 [1973].1 In the present case, no such emergency powers were in effect at the time the reprieves were issued.
The majority would permit the governor not only to abdicate his responsibilities by a clever manipulation of words, but also essentially deposit his problem in the lap of the counties. I concur with the majority that certainly the State must be required to pay the reasonable maintenance and medical expenses incurred by the counties if the State is permitted to continue this practice; but I strongly dissent with their holding that this practice should be permitted to continue.
The writ should be granted and the governor required to discontinue a practice that is a ruse. The governor would then have two choices ... to either genuinely reprieve the prisoners in question and accept the consequent responsibility for any harm that might come to the community of law-abiding people; or else, live up to the State’s duty to keep and house in a constitutional manner those persons' lawfully sentenced to the State penitentiaries.
. But see W.Va.Code § 5-1-16 [1923] which gives the Governor the power to remit fines and penalties, along with the power to commute sentences, and grant reprieves, paroles and pardons.