The opinion
CARTER, J.
I dissent.
While the holding of the majority of this court in this case is in accord with In re Collie, 38 Cal.2d 396 [ 240 P.2d 275 ], I have concluded that the last mentioned case was erroneously decided and should therefore be overruled. In my opinion the legal principle here involved is comparatively simple. Article VII, section 1 of the Constitution of California was adopted in 1879. At that time there was no parole law in this state, the first parole law having been enacted in 1893 (Stats. 1893, p. 183). It is therefore obvious that when article VII, section 1, was adopted it was not contemplated that the governor would have power to impose as a condition of commutation of sentence that the prisoner whose sentence was commuted should not be eligible to parole.
Section 7 of article X of the Constitution was adopted in 1936, and in 1940 was amended to read as follows: “Notwithstanding a/nything contained elsewhere in this Constitution, the Legislature may provide for the establishment, government, charge and superintendence of all institutions for all persons convicted of felonies . . .
“All existing statutes and constitutional provisions, purporting to create such institutions or such agencies or officers or boards, to so delegate such government, charge and superintendence, to so prescribe such powers, duties, or functions, or to so provide for such punishment, treatment or supervision are hereby ratified, validated and declared to be legally effective until the Legislature provides otherwise.”
It is under the latter provision of the Constitution which was amended in 1940 that the Legislature has power to provide for the parole of prisoners. The Legislature has provided for a uniform system of parole (see Pen. Code, §§ 3040 et seq.) and a person sentenced to a life term in the penitentiary is eligible to parole after seven years confinement in prison (see Pen. Code, § 3046). The power of the Legislature to adopt such provision is conferred by section 7 of article X of the Constitution “notwithstanding anything *234 contained elsewhere in this Constitution” which would include anything contained in section 1 of article VII of the Constitution, adopted long prior to section 7 of article X of the Constitution and the parole law.
I think it is clear, therefore, that when section 7 of article X was framed, it was contemplated that the Legislature should have power to provide for a parole system which would apply to all persons convicted of felonies, and that the Governor should not have power to nullify the parole law by imposing as a condition of commutation of sentence that a prisoner should not be eligible for parole. It seems clear to me that if the governor has the power to impose such a condition when commuting a death sentence to life imprisonment, he may likewise impose such a condition when commuting a life or other lesser sentence to a lesser term of years. For instance, the governor could commute a life sentence to 50 years without possibility of parole for 25 years or any other period and thus deprive a prisoner of his right to apply for parole until he had served such time instead of only seven years as provided by statute. Under such a rule a governor could destroy the uniform operation of any system of parole, at least in its application to life termers.
While I think it is clear that it was not the intention of the framers of section 7 of article X of the Constitution to interfere with the governor’s power under section 1 of article VII of the Constitution ‘‘to grant reprieves, pardons, and commutations of sentence, after conviction, for all offenses except treason and cases of impeachment, upon such conditions, and with such restrictions and limitations, as he may think proper,” I do not think that it was contemplated that the governor could impose conditions, restrictions or limitations contrary to express statutory provisions which were enacted by the Legislature pursuant to a subsequent constitutional grant of power to the Legislature. Punishment for crime should be fixed by legislative act and not executive fiat.
It also appears to me that to so construe our constitutional and statutory provisions is to make it possible for the governor to create a situation where a prisoner such as petitioner here is denied equal protection of the law in violation of the 14th Amendment to the Constitution of the United States.
I would, therefore, reverse the judgment.