McGeehan, Bigelow and Jayne. The opinion of the court was delivered by McGeehan, S.j.a.d.
George Hildebrand was convicted, in the former Court of Oyer and Terminer of Burlington County, of murder in the first degree, and on November 21, 1935 a sentence of death was imposed upon him. On July 14, 1936 this sentence of death was commuted by the former Court of Pardons to imprisonment for life, and the defendant is now detained in State Prison for the term for which the sentence was commuted. On June 27, 1952 the defendant made an application to the State Parole Board to appear before that Board and be considered for parole. On July 3, 1952 the Parole Board ruled that it had no authority to consider for release on parole any prisoner upon whom a sentence of death had been imposed and whose sentence was commuted to imprisonment for life by action of the former Court of Pardons, and denied the defendant's application.
When the defendant's death sentence was commuted in 1936, our 1844 Constitution was in effect and Article V, paragraph 10 thereof provided that the Court of Pardons "may * * * grant pardons, after conviction, in all cases except impeachment." This constitutional grant of the pardoning power carried with it the lesser powers of granting remission of part of the penalty, of granting commutation of sentence, and of granting a limited or partial pardon, although none of these lesser powers is specifically mentioned. Cook v. Board of Chosen Freeholders , 26 N.J.L. 326 (Sup. Ct. 1857); In re Court of Pardons , 97 N.J. Eq. 555 (Ct. Pardons 1925, advisory opinion of Chancellor Walker). R.S. 2:197-1 (which carried forward, with editorial change only, sections 3 and 4 of "An act relative to the court of pardons," approved January 18, 1853, and section 1 of the supplement thereto, approved March 20, 1857) implemented this constitutional provision and provided that when the order of the Court of Pardons commuting a death sentence shall be received by the Principal Keeper of the State Prison, he shall detain such person "for the term for which the sentence was commuted, and such term of imprisonment shall
not be remitted or commuted, but nothing in this section shall be construed to limit the powers of the said court to grant pardons or remit fines and forfeitures in any case after conviction."
Article V, Section II of our 1947 Constitution provides as follows:
"1. The Governor may grant pardons and reprieves in all cases other than impeachment and treason, and may suspend and remit fines and forfeitures. A commission or other body may be established by law to aid and advise the Governor in the exercise of executive clemency.
2. A system for the granting of parole shall be provided by law."
Chapters 83 and 84 of the Laws of 1948 were passed to implement these constitutional provisions. L. 1948, c. 83 carried forward the provisions of R.S. 2:197-1, substituting "Governor" for "Court of Pardons," and repealed R.S. 2:197-1. L. 1948, c. 84 established a State Parole Board and defined its composition, powers and duties. Section 5 of chapter 84 provides:
"It shall be the duty of the board to determine when, and under what conditions, subject to the provisions of this act, persons now or hereafter serving sentences having fixed minimum and maximum terms or serving sentences for life, in the several penal and correctional institutions of this state may be released upon parole * * *";
"Any prisoner serving a sentence of life shall be eligible for consideration for release on parole after having served twenty-five years of his sentence, less commutation time for good behavior and time credits earned and allowed by reason of diligent application to work assignments."
That the defendant, at the time of his application, had served 25 years less credits on the term of life imprisonment, is not in question. The State Parole Board ruled that it had no authority to consider the defendant's application for parole for two reasons: (1) that section 4 of L. ...