(specially concurring).
Article 2, Section 1 of the Idaho Constitution provides that branches of government in this state shall be separate and shall not exercise any of the powers given to the other branches.
“§ 1. Departments of government.— The powers of the government of this state are divided into three distinct departments, the legislative, executive and judicial; and no person or collection of persons charged with the exercise of powers properly belonging to one of these departments shall exercise any powers properly belonging to either of the others, except as in this constitution expressly directed or permitted.”
This Court has in the past been vigilant in upholding the doctrine of separation of powers.
“This court always must be watchful, as it has been in the past, that no one of the three separate departments of the government encroach upon the powers properly belonging to another.” 1
Today’s decision, I believe, reflects a lack of concern for this important constitutional doctrine, and compels me to file this separate opinion.
*854It has long been recognized in this State: “. . . that the power to define crimes and prescribe penalties belongs to the legislative department of government; that the power to try offenders, and to enter judgments convicting and sentencing those found guilty, belongs to the judicial department; that the power and prerogative of granting pardons, paroles or commutations belong to the executive department.”2 [Emphasis added]
In reference to the power of the executive branch of government in the area of probation and parole, Article 10 Section 5 of the Idaho Constitution provides:
“§ 5. State prisons — Control over.— The state legislature shall establish a nonpartisan board to be known as the state board of correction, and to consist of three members appointed by the governor, one member for two years, one member for four years, and one member for six years. After the appointment of the first board the term of each member appointed shall be six years. This board shall have the control, direction and management of the penitentiaries of the state, their employees and properties, and of adult probation and parole, with such compensation, powers, and duties as may be prescribed by law.” [Emphasis added.]
The enactment of I.C. § 20-223 represents an attempt by the Legislative branch to limit the power and discretion of an arm of the executive in the area of parole. The following section of this statute removes from the board of corrections the right to grant parole for certain listed crimes until the convicted individual has served a prescribed number of years.
“The board shall not accept an application for parole and shall not interview any prisoner for parole who was committed for any of the following crimes; any crime for which the prisoner received a life sentence, any crime of violence, to-wit: homicide in any degree, treason, rape where violence is an element of the crime, robbery of any kind, kidnaping, burglary when armed with a dangerous weapon, assault with intent to kill, or murder in the second degree, any crime of rape, incest, crime against nature, or committing a lewd act upon a child, or with an attempt or assault with intent to commit any of said crimes, or any prisoner serving a sentence as a habitual offender, until said prisoner has served either a period of five (5) years or one-third (1/3) of the original sentence, whichever is the least The above limitation on parole eligibility shall affect only those prisoners who are sentenced on and after the first day of July, 1971.”
This provision interferes with the authority and duty of an executive agency in an area which under the state constitution was left exclusively to the executive domain. I do not believe this encroachment should receive judicial sanction.
. State v. McCoy, 94 Idaho 236, 241, 486 P.2d 247, 252 (1971).
. Spanton v. Clapp, 78 Idaho 234, 237, 299 P.2d 1103, 1104 (1956).