This appeal presents one question for our consideration: the validity of I.C. § 49-1102(d) as amended by the 1970 Legislature.1 The statute as amended will hereafter be referred to as I.C. § 49-1102(d). In proceedings below, the probate court refused to effect the provisions of this statute and the district court quashed an Alternative Writ of Mandate which would have compelled the probate court to enter judgment in accordance with the statute. The state has appealed this decision of the district court and asserts the validity of the statute in issue and the power of the legislature to enact it.
On June 24, 1970 Ernesto Medina was adjudged guilty of driving while under the influence of intoxicating liquor, an offense committed on June 4, 1970. Judge McCoy of the Probate Court of Twin Falls County fined Medina $175.00 and $5.00 court costs and sentenced him to thirty days in the county jail. The probate judge then suspended $125.00 of the fine and the entire jail sentence and placed Medina on probation for six months, despite I.C. § 49-1102(d) which provided a mandatory minimum ten day jail sentence upon a conviction for this offense.
The prosecuting attorney of Twin Falls County submitted a petition for writ of mandate to the district court on July 15, 1970. In his petition, the prosecuting attorney moved that the district court direct the probate court to sentence Medina to at least ten days in the county jail. An alternative writ of mandate was issued the following day in which the district court ordered the probate court to either sentence Medina according to the statute or show cause why the sentence should not be imposed.
A hearing was held on July 28, 1970 and judgment issued from the district court on August 7, 1970 quashing the alternative writ of mandate previously issued. The district court held that I.C. § 49-1102(d) conflicted with the legislative intent that the courts should have the power to grant *238probation in criminal cases found in the 1970 amendments to I.C. § 19-2601.2 I.C. § 49-1102(d) was also found to be contrary to Art. II, § 1 3 ; Art. Ill, § 19 4 ; and Art. V, § 135 of the Constitution of the State of Idaho. The district court further held the statute in question to be an infringement on judicial power and authority-
The state has appealed, challenging these conclusions of the district court. In its argument to this court the state asserts that the legislature has the constitutional authority to determine what the sentence for the various crimes shall be and such authority includes the power to prescribe mandatory sentences. The state further contends that the judiciary has no inherent power to suspend sentence; and while the courts may have had power to suspend sentence at common law, the common law can be amended by statute and this power abrogated.
The common law of, England has been recognized in this state since early, history, and this was tacitly . recognized in the adoption of our constitution. State ex rel. Rich v. Idaho Power Co., 81 Idaho 487, 346 P.2d 596. (1959). Our statutes also specifically declare the efficacy of the common law. I.C. § 73-1166. This statute, furthermore, leaves it indisputable that although the common law is accepted as part of the law of this state, it is subject to modification by the legislature.
Since this case raises the issue of the nature and extent of the power vested in the judiciary and reserved to it, inviolate, by Article II, § 1 and Article V § 13 of the constitution, we shall look initially to the powers possessed by the judiciary at common law. The Constitution of the State of Idaho does not specifically enumerate those powers reserved to this separate department of the government. Our research has disclosed many decisions from other jurisdictions in cases presenting questions similar to this which discussed the extent of the power of the judiciary to suspend sentence at common law. The courts have decided the issue both ways, many of them interpreting the same authority differently. In Ex parte United States, 242 U.S. 27, 37 S.Ct. 72, 61 L.Ed. 129 (1916), the Supreme Court held that a United States District Court had improperly suspended sentence in a criminal case for the purported reason that there was no inherent power in the judiciary to suspend sentence. Construing two authorities on the English common law, the Court concluded no such power existed there. The first passage relied upon by the Court is from Hale’s Fleas of *239the Crown, Vol. 2, ch. 58, p. 412, which states:
“Reprieves or stays of judgment or execution are of three kinds, viz:
“I. Ex mandato regis. * * *
“II. Ex arbitrio judicis. Sometimes the judge reprieves before judgment, as where he is not satisfied with the verdict, or the evidence is. uncertain, or the indictment insufficient, or doubtful whether within clergy; and sometimes after judgment, if it be a small felony, tho out of clergy, or in order to a pardon or transportation. Crompt. Just. 22b, and these arbitrary reprieves may be granted or taken off by the justices of gaol-delivery, altho their sessions be adjourned or finished, and this by reason of common usage. 2 Dyer, 205a, 73 Eng. Reprint, 452.
“III. Ex necessitate legis, which is in case of pregnancy, where a woman is convict of felony or treason.”
The second quote is found in Blackstone’s Commentaries on the Law, Bk. 4, ch. 31:
“The only other remaining ways of avoiding the execution of the judgment are by a reprieve or a pardon; whereof the former is temporary only, the latter permanent.
“I. A reprieve (from reprendre, to take back) is the withdrawing of a sentence for an interval of time; whereby the execution is suspended. This may ■be, first ex arbitrio as, where the judge is not satisfied with the verdict, or the evidence is suspicious, or the indictment is insufficient, or he is doubtful whether the offense be within clergy; or sometimes if it be a small felony, or any favourable circumstances appear in the criminal’s character, in order to give room to apply to the Crown for either an absolute or conditional pardon. These arbitrary reprieves may be granted or taken off by the justices of gaol delivery, although their session be finished, and their commission expired; but this rather by common usage, than of strict right.”
In its opinion, the Court seems to have focused on Blackstone’s qualification that a reprieve is only temporary and concluded that therefore the English courts only had power to temporarily stay execution of judgment. However, Hale makes no such qualification in his work and we believe his comments are subject to the contrary interpretation, thus supporting those courts which have held that the judiciary possesses the power to permanently suspend sentence.
Following the above interpretation of Hale, the Court of Appeals of the State of New York concluded that its courts had the power to suspend sentence in criminal cases. People ex rel. Forsyth v. Court of Sessions, 141 N.Y. 288, 36 N.E. 386 (1894). Quoting Hale, the author of the opinion stated:
“ * * * There can, I think, be no doubt that the power to suspend sentence after conviction was inherent to all such courts at common law. The practice had its origin in the hardships resulting from peculiar rules of criminal procedure, when the court had no power to grant a new trial, either upon the same or additional evidence, and the verdict was not reviewable upon the facts by any higher court. The power, as thus exercised, is described in this language by Lord Hale: ‘Sometimes the judge reprieves before judgment, as where he is not satisfied with the verdict, or the evidence is uncertain, or the indictment is insufficient, or doubtful whether within clergy; also, when favorable or extenuating circumstances appear, and when youths are convicted of their first offense. And these arbitrary reprieves may be granted or taken off by the justices of gaol delivery, although their sessions be adjourned or finished; and this, by reason of common usage.’ 2 Hale, P.C. c. 58, p. 412. This power belonged, of common right, to every tribunal invested with authority *240to award execution in a criminal case. 1 Chit. Cr. Law, (1st Ed.) 617, 758.”
Other decisions in which courts have reached a similar result are: Gehrmann v. Osborne, 79 N.J.Eq. 430, 82 A. 424 (1912); Weber v. State, 58 Ohio St. 616, 51 N.E. 116 (1898); People v. Goodrich, 149 N.Y. S. 406 (Sup.1914). In Spencer v. State, 125 Tenn. 64, 140 S.W. 597 (1911) the court, relying on Hale, determined that the right to suspend sentence had existed at common law, but concluded that such a practice had never been followed in that state.
We conclude from these authorities that the judiciary possessed the power at common law to suspend sentence. However, this does not, standing alone, nullify the statute under consideration for it is clear that the common law can almost always be overturned or modified by the legislature. I.C. § 73-116. If the common law was recognized as the law of this state at the time the constitution was adopted, State ex rel. Rich v. Idaho Power Co., supra, we must also conclude that the powers reserved to the several departments, but not enumerated, must be defined in the context of the common law. Were we deliberating upon a matter of substantive law, there would be no doubt that the legislature has effected a valid change in the common law. However, this is a consideration of much greater dimension. The constitution provides that the judiciary is a department separate from the others and that the “ * * * -legislature shall have no power to deprive the judicial department of any power or jurisdiction which rightly pertains to it as a coordinate department of the government * * * ” But, this document does not explicitly delineate what those powers shall be. For this reason we must go beyond the constitution itself to discover what were the powers held peculiarly by the judiciary. In this light, we perceive that the authority possessed by the courts to sentence necessarily includes the power to suspend the whole or any part of that sentence in proper cases and this is more than a bare rule of substantive law subject to change by the legislature. Rather, it is in the nature of an inherent right of the judicial department and one which the separation of powers concept in our system of government places above and beyond the rule of mandatory action imposed by legislative fiat.
Additionally, comon sense tells us that this must be so. Our system of laws, indeed, hopefully our civilization, has undergone a persevering evolution toward enlightenment. A judge is more than just a finder of fact or an executioner of the inexorable rule of law. Ideally, he is also the keeper of the conscience of the law. It is for this reason that the courts are given discretion in sentencing, even in the most serious felony cases, and the power to grant probation. We recognize that rehabilitation, particularly of first offenders, should usually be the initial consideration in the imposition of the criminal sanction. Whether this can be better accomplished through the penal system or some other means, it can best be achieved by one fully advised of all the facts particularly concerning the defendant in each case and not by a body far removed from these considerations. Doubtless, legislation in the interest of the safety on óur highways is for a salutory purpose. This legitimate end cannot be met, in addition to the other goals which must be sought within the law, by removing from the purview of the trial court consideration of the merits of each offense and offender. This statute provides for no exception in the case of the infirm, one driving in an emergency, nor for a pregnant woman. It not only abrogates the power of the court to suspend sentence when the circumstances and good conscience might justify such action; it also removes any authority to impose a lighter sentence.
This court has in the past been very circumspect in protecting the autonomy envisioned for the judiciary within our constitution. In Application of Kaufman, 69 *241Idaho 297, 206 P.2d 528 (1949), the court had before it a statute which granted admission to the bar of this state to any person who had been graduated from the University of Idaho School of Law (Ch. 73, § 1 [1949] Idaho Session Laws 126). Despite a showing of a history of legislation purporting to control the Idaho State Bar, this court overturned the statute as an invalid interference with judicial authority. In that case, as in this, there was no clear grant of authority stated in the constitution itself. The court was persuaded by the fact that control and administration of the organized Bar had always been recognized as a function peculiar to the judiciary.
In R.E.W. Const. Co. v. District Court of the Third Jud. Dist., 88 Idaho 426, 400 P.2d 390 (1965), this court confirmed the inherent authority vested in the judiciary to pass rules of procedure. This decision was reached in spite of the provision in Article V, § 13 stating “ * * * but the legislature shall provide a proper system of appeals, and regulate by law, when necessary, the methods of proceeding in the exercise of their powers of all the courts below the Supreme Court * * * ”
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. Thus we reach the decision in this case both as a matter of construction of the constitution of this state and to effect a more rational application of law and policy. Therefore, that portion of I.C. § 49-1102(d) providing:
“(d) * * * Every person convicted under this section shall serve at least ten (10) days in the county or municipal jail and this sentence shall be mandatory on every judge of every court of the state of Idaho without any right to exercise judicial discretion in said matter, except that the judge may allow said jail sentence to be served within a six (6) week period from the date of conviction in segments of times not less than one (1) day consisting of twenty-four (24) hours at each time. * * * ” (emphasis added)
is unconstitutional and therefore null, void and unenforceable.
Judgment of the district court quashing alternative writ of mandate affirmed.
McQUADE, C. J., and DONALDSON, J., concur.. Ck. 264, § 2 [1970] Idaho Session Laws 701.
“(d) Every person who is convicted of a violation of this section shall be punished by imprisonment in the county or municipal jail for not more than six (6) months or by fine of not more than three hundred dollars ($300) or by both such fine and imprisonment. Every person convicted under this section shall serve at least ten (10) days in the county or municipal jail and this sentence shall be mandatory on every judge of every court of the state of Idaho without any right to exercise judicial discretion in said matter, except that the judge may allow said jail sentence to be served within a six (6) week period from the date of conviction in segments of time not less than one (1) day consisting of twenty-four (24) hours at each time. On a second or consequent conviction he shall be imprisoned in the state penitentiary for not more than five (5) years.”
. Ch. 143, § 3 [1970] Idaho Session Laws 428.
. “§ 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 £o either of the others, except as in this constitution expressly directed or permitted.”
. “§ 19. Local and special laws prohibited. — The legislature shall not pass local or special laws in any of the following enumerated eases, that is to say:
“Creating, increasing or decreasing fees, percentages,, or allowances of public of-. , ficers during the term for which said officers are elected or appointed.”
. “§ 13. Power of legislature respecting courts. — The legislature shall have no power to deprive the judicial department of any power or jurisdiction which rightly pertains to it as a coordinate department of the government; but the legislature shall provide a proper system of appeals, and regulate by law, when necessary, the methods of proceeding in the exercise of their powers of all the courts below the Supreme Court, so far as the same may be done without conflict with this Constitution.
. “Common law in force. — The common law of England, 'so far as it is not repugnant to, or inconsistent with, the constitution or laws of the United States, in' all cases not provided for in these compiled laws, is the rule of decision in all courts of this state.”