In Re Upshaw , 247 Ala. 221 ( 1945 )

Response to Questions Certified by Court of Appeals.

In the matter of the application for probation of Frank Upshaw, convicted of an offense in the Circuit Court of Russell County, the Board of Pardons and Paroles, under the provisions of an Act approved July 7, 1945, submitted the case to the Court of Appeals for review; and the Court of Appeals (under section 98, Title 13 of the Code of 1940) certifies questions relating to the constitutional validity of said Act of 1945 to the Supreme Court.

Questions answered.

To the Supreme Court of Alabama:

The Board of Pardons and Paroles of the State of Alabama has forwarded to the Clerk of the Court of Appeals of Alabama the Probation Officer's report, together with a certificate by the Clerk of the Circuit Court of Russell County, of the action of the Judge of the Circuit Court of said County denying the application for probation of Frank Upshaw.

The action of said Board of Pardons and Paroles is in compliance with the provisions of Legislative Act, No. 426, amending Code 1940, Title 42, which was enacted in general session of the Legislature, 1945, and approved by the Governor on July 7, 1945.

We hereby certify to you the following abstract questions:

1. Is said Act No. 426, amending Code 1940, Title 42, invalid because violative of either Amendment 38 to the Alabama Constitution of 1901 or Section 45 of the Alabama Constitution of 1901?

2. Is said Act No. 426, amending Code, 1940, Title 42, invalid because in violation of any provision of the Constitution of the State of Alabama?

For your convenience we are herewith attaching a copy of said Act No. 426, and we are transmitting to you the record in the cause filed with the Clerk of the Court of Appeals.

The foregoing is certified under the provisions of Section 98, Title 13, Code 1940.

Respectfully,

C. R. Bricken Presiding Judge, Court of Appeals R. B. Carr Judge, Court of Appeals Robt. B. Harwood Judge, Court of Appeals

Section 2 of Act No. 426, approved July 7, 1945, is as follows:

Section 2. That Section 21 of Title 42 of the Code of Alabama of 1940 be amended so as to read as follows: Section 21,investigation. — In all cases in which the defendant is eligible for probation as heretofore provided, after a plea of guilty or after the returning of a verdict of guilty by a jury or the rendition of a judgment of guilty by the court in all cases certified to a court under Section 20 of this Title and in all cases in which an appeal has been taken and a final judgment of affirmance has been entered by an appellate court, the probation officer shall fully investigate and report to the court in writing the circumstances of the offense, criminal record, social history, present condition of the defendant, including if possible a health and mental report, which report shall be filed in duplicate. No defendant shall be placed on probation or released under suspension of sentence until the report of such investigation shall have been presented to and considered by the court, and no person shall be placed on probation except under the supervision of a probation officer. After conviction, the court may continue the cause for such time as may be reasonably necessary or make any other appropriate order to enable the probation officer to make his investigation and report. No defendant eligible for probation shall be confined in the penitentiary until the procedure in this section provided shall have been accomplished in his case. In every case the report of the probation officer above provided for shall be filed with the Clerk of the court before whom the case is pending for probation within ten days after the verdict of guilty, the plea of guilty, the judgment of guilty or the certification under Section 20 of this Title or the certificate of affirmance from the appellate court has been received by the Clerk of the Court in which the judgment of conviction was entered. The court shall act on such probation report or shall decline to act thereon and enter such action or declination of record in the proceedings on a docket to be known as the probation docket kept for that purpose within five days after the report of the probation officer shall have been filed. In event the court shall inadvertently fail or refuse to enter an order on any case within said period of five days such failure or refusal shall be considered a denial of probation for the purposes of further procedure hereunder. Thereupon in every case the clerk of the court shall immediately forward one copy of the probation officer's report and any affidavits or written evidence furnished the court by the defendant together with a certificate of the action of the court on the case together with such other information as the Board may require to the Board of Pardons and Paroles at Montgomery. Such Board shall immediately and not later than five days after receipt of same examine such proceedings and in the event it shall deem it proper and in the public interest so to do, shall forward such report, evidence, certificate and such further information and recommendations as it may see fit to add thereto to the Clerk of the Court of Appeals of Alabama and shall notify the Clerk of the Court where the conviction occurred of its action. The Court of Appeals shall immediately review the case on such written record and make such order in the premises as in its judgment the Court below should have made, including the concurrent right to revoke the order of probation which it entered. Such order shall be certified to the Clerk of the Court where the cause is then pending and shall be there entered on the dockets of that Court and shall have the effect which would be accorded an order of the Judge of said Court. If such Board of Pardons and Paroles shall not have forwarded the file to the Clerk of the Court of Appeals before the expiration of five days after receipt of the file by it, the disposition of the case made by the court below shall become effective. The findings of the Court of Appeals shall be made within seven days after receipt of the file in each case, provided that during the vacation time of said Court the Court may act through any one or more of its judges and the action of said Court or of such judge or judges thereof, as the case may be, shall not be subject to review. If such defendant is committed to an institution, a copy of the report of such investigation and all proceedings thereon shall be sent to the department of corrections and institutions at the time of commitment.

Response to Questions Certified by the Court of Appeals: We acknowledge receipt of your inquiry as to whether the Act of the Legislature, No. 426, approved July 7, 1945, amending Title 42, Code 1940, is contrary to the Constitution of the State of Alabama and especially contrary to Section 45 thereof and Amendment 38 thereof. We understand that the foregoing has been submitted to this court pursuant to Section 98, Title 13, Code 1940. We further understand that the constitutional questions relating to the aforesaid Act have arisen under the following circumstances:

Frank Upshaw was convicted and adjudged guilty in the Circuit Court of Russell County of unlawfully possessing a still and engaging in the unlawful manufacture of prohibited liquors in violation of Section 131, Title 29, Code 1940. Thereupon, in accordance with the Act, the probation officer filed with the Clerk of the Circuit Court his report showing the circumstances of the offense, the defendant's criminal record, social history, etc. Thereupon the Judge of the Circuit Court denied the application for probation. Thereupon the Board of Pardons and Paroles, upon examination of the proceedings, deemed it proper and accordingly forwarded to the Clerk of the Court of Appeals the report of the probation officer, together with a certificate by the Clerk of the Circuit Court of the action of the Circuit Court in denying the application for probation. According to the requirements of the Act, the Court of Appeals must now review the case on such written record and make such order in the premises as in its judgment the court below should have made.

We think it is clear that the validity of the procedure contemplated by the foregoing Act must turn on the interpretation to be given to Amendment 38 to the Constitution of 1901, because prior to the Amendment, the courts of the State had no power of pardon, parole or probation. Montgomery v. State, 231 Ala. 1, 163 So. 365, 101 A.L.R. 1394. The Amendment reads as follows: "The Governor shall have power to grant reprieves and commutations to persons under sentence of death. The Legislature shall have power to provide for and to regulate the administration of pardons, paroles, remission of fines and forfeitures, and may authorize the courts having criminal jurisdiction to suspend sentence and to order probation. No pardon shall relieve from civil and political disabilities unless specifically expressed in the pardon."

In order to reach a correct construction of the foregoing Amendment, "it is a well-settled rule of interpretation, applicable to constitutions as well as statutes, that it is permissible in ascertaining their purpose and intent to look to the history of the times, the existing order of things, the state of the law when the instrument was adopted, and the conditions necessitating such adoption." Houston County v. Martin, 232 Ala. 511, 514, 169 So. 13, 16. See also Fox v. McDonald, 101 Ala. 51, 13 So. 416, 21 L.R.A. 529, 46 Am.St.Rep. 98; Storrs v. Heck, 238 Ala. 196, 190 So. 78.

What, then, was the state of the law when Amendment 38 was adopted and what were the conditions necessitating such adoption? Simply stated, this was the situation. This court, in Montgomery v. State, supra, had held that the power to grant pardons and paroles lies wholly within the powers of the Governor enumerated in Section 124 of the Constitution and conversely that such power is not within the inherent power of the courts nor was the power to suspend the imposition or execution of sentences because the same was in the nature of a parole. According to said decision, it followed that the Legislature had no power by reason of Section 43 of the Constitution to delegate such power to the courts and its act with that end in view was unconstitutional. See Acts of Extra Session, 1932, p. 54.

It is apparent to us that the purpose of Amendment 38 was to meet the law as laid down by us in the foregoing decision. The purpose of the Amendment, in so far as the power of the court is concerned, was to grant to the Legislature the power to authorize the courts to exercise probation power. Pinkerton v. State, 29 Ala. App. 472, 198 So. 157, certiorari denied 240 Ala. 123,198 So. 162. Having in mind the background of the Amendment, we do not think that the Amendment was intended to do more than that so far as the question under consideration is concerned. Our system of government has always recognized three branches of the government — executive, judicial and legislative, each supreme and untrammeled in its own sphere. — Section 42, Article III, Constitution of 1901. The Amendment was not intended to make the courts subservient to the executive branch of the government or to enable the Board of Pardons and Paroles either to review the action of the Circuit Court or to direct the action of the Court of Appeals or to determine when an appeal may be taken.

Section 2 of the Act, when carefully read, discloses that the Board of Pardons and Paroles has discretion, when the case is certified to it, to determine whether probation is proper and in the public interest and if so to certify it to the Court of Appeals or if not so, take no action in that respect. So in the last analysis the Board of Pardons and Paroles is given full authority over cases so certified as to probation matters.

If the action of a circuit court is laid in error or shows abuse of discretion, there are ample remedies available to right the wrong by procedure within the courts, without the need of agencies in other branches of the government. Persall v. State, 31 Ala. App. 309, 16 So.2d 332. This fortifies us in the belief that the Amendment was not intended to grant the power sought to be exercised in the present case. We conclude that the Act contravenes the Constitution and is invalid in so far as Section 2 of the Act is concerned, but that the other sections of the Act do not violate Amendment 38 nor Section 45 and stand unaffected by the invalidity of Section 2. In view of the conclusion reached, further discussion is not necessary.

All the Justices concur.