(dissenting).
The majority opinion concludes that I.C. § 49-1102(d), as amended by S.L.1970, Ch. 264, § 2, is unconstitutional as being a legislative encroachment on the inherent powers of the judiciary. It is from this conclusion that I dissent.
It is to be kept in mind that defining the limits of authority of the three departments of government, Idaho Const, art. 2, § 1, is one of great importance and delicacy, and this court must exercise special caution in this area. In Leonardson v. Moon, 92 Idaho 796, 451 P.2d 542 (1969) in discussing the constitutionality of a legislative enactment, this court stated:
“In arriving at this conclusion, we are reminded of certain fundamental principles of constitutional law: (1) In determining the constitutionality of a legislative enactment, fundamental principles must ever be kept in mind and rigidly observed. Statutes are presumed valid and all reasonable doubts as to constitutionality must be resolved in favor of validity. (2) When a statute is susceptible to two constructions, one of which would render it invalid and the other would render it valid, the construction which sustains the statute must be adopted by the courts. (3) The burden of showing unconstitutionality of a statute is upon the party who asserts it and invalidity must be clearly shown. (4) It is the duty of the courts to uphold the constitutionality of legislative enactments when that can be done by reasonable construction. (5) Unlike the federal constitution, the state constitution is a limitation, not a grant, of power. We look to *242the state constitution not to determine what the legislature may do, but to determine what it may not do. If an act of the legislature is not forbidden by the state or federal constitution, it must be held valid, [citations.]” 92 Idaho at 806, 451 P.2d at 552.
The statute in question is the result of a public policy decision of the state legislature. That body has recognized that the operation on the highways of vehicles by persons who are under the influence of intoxicating liquor constitutes a menace to other users of the highways and to themselves. In an attempt to meet this problem the legislature considered that the ten day jail sentence would be of sufficient detexrent effect to reduce this hazard on the highways.
Turning to the issue at hand, the question of whether or not courts have an inherent power to suspend criminal sentences has received widely divergent answers by state appellate courts.- However, the decisions of those courts that have concluded there is such an inherent power, in my opinion failed to fully consider the issue and have tended to assume the authority existed, or have without discussion deferred to the wishes of the legislature.
The starting point for an analysis of the general proposition that courts do not have inherent authority to suspend sentences is the case of Ex parte United States, 242 U. S. 27, 37 S.Ct. 72, 61 L.Ed. 129 (1916, per White, C. J.), viewed as not controlling by the majority opinion today. In that case the federal trial judge had suspended the execution of a prison sentence over the objection of the prosecution. The shortest sentence prescribed by the applicable statute for the convicted criminal defendant was five years. The government applied for a writ of mandamus directed to the trial judge, requiring him to vacate the order suspending the sentence and instead, impose a sentence which accorded with the minimum punishment set forth in the statute. The Supreme Court in a unanimous decision agreed with the government’s contentions.
That opinion discussed the history of common law courts in this area and concluded, after reciting from Hale’s Pleas of the Crown, Vol. 2, Ch. 58, p. 412, and from 4 Blackstone, Ch. 31, pp. 394-395, that
“While it may not be doubted under the common law as thus stated that courts possessed and asserted the right to exert judicial discretion in the enforcement of the law to temporarily suspend either the imposition of sentence or its execution when imposed to the end that pardon might be procured, or that a violation of law in other respects might be prevented, we are unable to perceive any groxxnd for sustaining the proposition that, at common law, the courts possessed or claimed the right which is here insisted upon.” 242 U.S. at 44, 37 S.Ct. at 75, 61 L.Ed. at 141.
I am not persuaded by the majority’s placing such great weight on a distinction between Hale and Blackstone. It is a principle of analysis in judicial opinions that one looks to earlier cases to see what key issues were resolved by the decisions. What is apparent, from a reading of the brief passages on point by Hale and Blackstone as well as gaining some insight from Holdsworth, “A History of English Law,” is that early common law courts dealt with a system of criminal justice which by our standards was unresponsive, harsh, and unwieldy. The abuses .are well known to students of the law. Because of the ingrained abuses of the system we know that the more humanitarian judges of those early days conjured up various fictions to alleviate the otherwise rigid structure of the criminal law. It does not appear from any of the authorities cited above or in Ex parte United States that the issue presented here was squarely faced by those early justices. What becomes apparent is that a practice of suspending sentences grew up and was tolerated but never attained a quasi-constitutional status not subject to *243question. Thus, it is my view that the best that can be said about the common law is the question was unresolved.
In Ex parte United States the Supreme Court examined the relevant state court decisions. The majority of states which had decided the question denied the existence of the power. Those cases to the contrary were, in the Supreme Court’s view, weakened by unjustified reliance on erroneous authority or decisions merely recognizing established practice. The United States Supreme Court, relying on the Idaho decision, In re Peterson, 19 Idaho 433, 113 P. 729 (1911), put this state in the majority camp. The majority opinion has not discussed this or other Idaho decisions to which I now turn.
In re Peterson involved a criminal conviction on a guilty plea. The trial judge sentenced defendant to six months in jail plus a fine and costs. However, if the fine and costs were paid the six months confinement was suspended until further court order. On the same day the same defendant pleaded guilty to a similar charge and received a similar sentence. The defendant the next day paid both fines and walked out a free man.
Somehow commitments were issued to the local sheriff on both charges, each with copies of the judgments; however, those judgments failed to contain mention of the suspension of the sentences. The sheriff several days later took defendant into custody and defendant initiated a habeas corpus proceeding. The opinion discussed two cases which had declared that the trial courts abused their sentencing powers by making revocation of a suspended sentence purely a matter of unbridled discretion of the judge or prosecutor. In that case the court said no conduct on defendant’s part was alleged which would contravene a condition of suspension. No hearing on the revocation was held. Indeed, there were no conditions specified in the sentence by which defendant was to abide.
This court viewed the events as an attempt "to hang the sentence of six months’" imprisonment over the head of the defendant to be executed at such time as the court or judge might require.” 19 Idaho at 439, 113 P. at 730-731. The uncertainty of the sentence was viewed as abusive.
This court’s decision in Peterson was that the defendant be released from custody and be free from any further confinement. In effect the opinion invalidated the attempt by the district judge to impose any kind of suspended sentence. To understand the import of this result to our problem here one must go behind the Peterson opinion. The penalty provided by the statute under which defendant was convicted provided:
"The punishment for misdemeanors hereunder and for offenses under the several provisions of this Act, where not otherwise specifically provided for, shall be a fine of not less than twenty-five dollars nor more than five hundred dollars, or [emphasis mine] imprisonment in the county jail not less than ten days nor more than six months, or [emphasis mine] by both such fine and imprisonment.” S.L. 1909, p. 18, § 30.
The result of the case was that defendant only paid the fines. The trial court’s judgment as far as suspension of the sentence was criticized as follows:
“If said sentences were suspended on certain conditions, and the law authorized the district court to suspend them, in case the defendant was charged with violating the conditions of suspension, common justice would require that he be given a hearing, which was not done in this case. But that makes no difference in this case, as the court had no authority to suspend the sentence.” (Emphasis mine.) 19 Idaho at 439, 113 P. at 731.
In other words, this court held that the suspended jail sentence imposed by the court below was all in vain. The statute authorized a fine or jail or both, but not a suspended jail term. Thus, when the de*244fendant walked out of the court after paying the fine he was absolutely free from further involvement with his sentence. This court said, as quoted, that even if conditions of suspension were prescribed and even if a hearing were held to determine if a condition were broken, it would be for naught since the statute did not authorize a suspended sentence in the first place.
The quotation above says there was no authority for the court to suspend the sentence. It appears from the opinion that the sentence was rendered on December 10, 1910. At that date the applicable statutory provision was Idaho Revised Code, Vol. II, § 7991, which read:
“If no sufficient cause is alleged or appears to the court why judgment should not be pronounced, it must thereupon be rendered.”
This section reads the same as § 7991 of the Territorial Statutes of 1887.
An examination of Idaho’s penal code applicable to the time of Peterson reveals no provision pertaining to suspension of sentences. Sections 6312 and 6313 provided general punishment standards for felonies and misdemeanors, no mention being made of suspensions. The only code provision pertinent was § 7980 which mentions motions for arrest of judgment or new trial:
“After a plea or verdict of guilty, or after a verdict against the defendant on a plea of a former conviction or acquittal, if the judgment be not arrested or a new trial granted, the court must appoint a time for pronouncing judgment, which, in cases of felony, must be at least two days after the verdict, if the court intend to remain in session so long; but if not, then at as remote a time as can reasonably be allowed.” Idaho Revised Code, Vol. II (1908).
The opinion was thus correct when at 19 Idaho 438, 113 P. 730, it stated “[w]e know of no authority in our statutes for such judgments as the ones entered in said cases.” And because there was no statutory authority this court must have reasoned the courts had no general inherent authority to suspend the sentence if the result of the case is to make sense.
In 1915, perhaps as a reaction to the Peterson decision, the legislature amended I. R.C. § 7991 to grant to the court limited powers to suspend sentences for defendants under the age of 25. This was the progenitor of the present I.C. Title 19, Ch. 26. The amendment is S.L.1915, Ch. 104, p. 244, the statement of purpose reading:
“To amend section 7991 of the Revised Codes of the State of Idaho and to Grant to the District Court the Power to Suspend or Withhold Judgment in Criminal Cases and to put a Person Convicted of a Criminal Offense on Probation in the Charge of a Probation or Other Proper Person” (Emphasis mine.)
Subsequent cases in Idaho support my view of the Peterson decision. In re Jennings, 46 Idaho 142, 267 P. 227 (1928), involved a sentence whereby a jail sentence was suspended and the defendant paroled to the county sheriff on the condition defendant pay a fine. The fine was not paid at the time promised (defendant signed a promissory note) and defendant was jailed.
The issue presented was whether the jail sentence could be lawfully carried out even though by the calendar the term of imprisonment specified in the judgment had expired. The court first ruled that as in the Peterson case, the suspension of sentence was without authority, was surplusage, and would be disregarded. However, the opinion cited State v. Ensign, 38 Idaho 539, 223 P. 230 (1924), which somewhat modified Peterson, as will be explained.
In Peterson the suspended jail term was disregarded; the trial court there in effect lost jurisdiction where the prisoner went free after sentence and there the suspended jail term phase was ineffective. But in Jennings the defendant was required by this court to serve the improperly granted suspended jail sentence. A similar result is found in the Ensign case.
*245What can be distilled, then, from these cases is that the terms of the judgment will be literally enforced despite an attempt to suspend part of that judgment. The rule is harsher than the result in Peterson where defendant avoided any jail time. The crucial point to note, of course, is that this court reaffirmed the idea that absent a specific statutory grant of authority the court could not suspend a criminal sentence.1
There is another decision from this court which I believe will sum up the cases closely on point. In re Grove, 43 Idaho 775, 254 P. 519 (1927), involved a youthful offender who in 1923 was adjudged guilty but pronouncement of sentence was withTield and the defendant released on his own recognizance. Over three years later he again ran afoul of the law, but instead of being tried was sentenced to prison to serve under the original judgment. Defendant Grove contended in his habeas corpus petition that the 1923 sentence constituted a withholding of judgment for an indefinite period, and that the trial court was without jurisdiction to impose the judgment three years hence. This court agreed with defendant, reasoning that the 1923 sentence did not comply with the parole statute which required the sentence to clearly specify duration and conditions.2
The opinion also voided the prison sentence by referring to the holdings of the Peterson and Ensign decisions, supra. I believe the words of Chief Justice Wm. E. Lee bear on this case:
“Since the decisions in the Peterson and Ensign cases relate to the suspension of a sentence already entered, they are not strictly in point on the precise question here presented, to wit, the power to indefinitely withhold the pronouncement of judgment on a plea of guilty. However, those decisions indirectly sustain the proposition that the courts possess no such power, for, like the power to indefinitely suspend the execution of judgment, the power to indefinitely withhold the pronouncement of judgment is nothing more or less than the power to perpetually prevent punishment, which the courts do not possess.” 43 Idaho at 779, 254 P. at 520.
Two paragraphs later in the Grove opinion, Chief Justice Lee refers the reader to the case of Ex parte United States, supra, which of course supports the conclusion of the above quotation. It could not have escaped the court’s attention that the Supreme Court relied on the Peterson decision, supra, to bolster its decision in Ex parte United States and the fact that it is cited as authority for the Groves decision convinces me my position here is correct.
I am convinced this present situation is basically the same as the Jennings case, supra. Here the legislature has manifested its intent to impose a firm sentence and to leave fewer alternatives to the sentencing magistrate. I.C. § 49-1102(d), (1970 Supp.), says “this sentence shall be mandatory on every judge of every court of the State of Idaho without any right to exer*246cise judicial discretion in said matter.” The discretion barred refers to I.C. § 19-2601, (1970 Supp.), which is the general grant of authority to the trial court with reference to sentencing criminal defendants.
The majority has not adequately, in my opinion, come to grips with the constitutional framework here in Idaho. I, of course adhere to the separation of powers concept which is present in Idaho’s constitution. However, the courts, legislature and executive are creatures of the constitution and we must consult it first before blazing trail through any forest of primeval natural laws.
The principal constitutional provision that applies here is art. 4, § 7, which grants the pardoning power in this state to the executive department. My concept of the separation of powers doctrine as it applies here is that this state’s constitution has specifically delegated to the executive part of the power to grant relief from the punishment for criminal acts otherwise prescribed by the legislature. See State v. Ensign, supra.
There are a number of state appellate decisions which have held statutes granting the courts the power to suspend the imposition of punishment to be unconstitutional as violative of the exclusive pardoning power possessed by the executive. Montgomery v. Alabama, 231 Ala. 1, 163 So. 365 (1935).
Such an interpretation of Idaho’s constitution is too restrictive. Rather the executive and the legislature share the power to determine punishment for criminal behavior. The legislature has the duty to define crimes, In re Speer, 53 Idaho 293, 23 P.2d 239 (1933), as well as to prescribe appropriate punishment. This theory is in practice in this state as manifested by a statutory scheme granting wide latitude in most cases to the trial judge. See I.C. §§ 18-107, 19-2511 (1970 Supp.), 19-2601 (1970 Supp.), 19-2604 (1970 Supp.), and 16-1814 (1969 Supp.). These views square with the view of a substantial number of other jurisdictions. See Annot. 101 A.L.R. 1402.
Today the courts have a full arsenal of tools to prevent the miscarriage of criminal justice. Aside from the ameliorative sentencing power already listed3 courts have the power to grant a new trial (I.C. § 19-2406), arrest the judgment (I.C. § 19-2408), or arrest the judgment on the court’s own motion (I.C. § 19-2409). Defendants may also seek relief in the appellate courts (I.C. § 19-2801 et seq.). These procedures were not known at early common law. Of course, as at common law, the governor and Commission for Pardons and Paroles can negate convictions which do not comport with notions of justice and fairness.
For the foregoing reasons, I would reverse the decision of the district court and hold the statute to be constitutional.
SHEPARD, J., concurs.. In S.L.1915 Oh. 104, p. 244, supra, the new suspension power initially applied only to defendants under 25 years of age and then only for certain crimes.
. 43 Idaho at 778, 254 P. at 519: “Subsequent to the decision of the Peterson case, the Legislature enacted what is generally referred to as the parole statute (C.S., secs. 9041 to 9047), providing, among other things, that on a conviction of certain offenses, of which grand larceny is one, ‘ * * * the court may in its discretion, * * * withhold judgment on such terms and for such time as it may prescribe. * * * ’ A. reference to that portion of the order set forth shows that the court did not, on January 30, 1923, prescribe any terms or any time for withholding judgment, but unconditionally released the defendant from custody and indefinitely withheld the pronouncement of judgment. The parole statute undoubtedly requires that the terms on which, and time for which, judgment is withheld be made a part of the order in writing. It is apparent that, in the foregoing order, the court made no attempt to comply with the parole statute.”
. It appears the legislature anticipated that a 10 day jail sentence could be excessively harsh in some situations. A man could lose his job or a student miss a block of classes. Therefore, the judge may allow a person convicted under § 49-1102 to serve his jail time on weekends or days off.