103, 108 ; the power to call out the militia is discretionary and his judgment of the ne cessity is final ; Martin v. Mott, 12 Wheat. (U. S.) 29, 6 L. Ed. 537 ; and he may delegate the command of it; Rawle, Const. 193 ; 2 Sto. Const. (5th ed.) § 1492, n. 2. See Dilling ham v. Snow, 5 Mass. 548.
The power to require opinions from the heads of departments has been termed a mere redundancy ; Federalise, No. 74 ; but it is said to be not without its use and frequently acted upon ; 2 Sto. Const. § 1493 ; especially in two notable instances, by President Wash ington, 1793, relative to the condition of af fairs between France and Great Britain, and by President Grant in 1873 in reference to the subject of expatriation ; Miller, Const. U. S. 185.
The pardoning power of the president ex tends to any case in which it might have been exercised under the English law ; U. S. v. Wilson, 7 Pet. (U. S.) 150, 8 L. Ed. 640 ; In re Wells, 18 How. (U. S.) 307, 15 L. Ed. 421; and includes the power to grant a con ditional pardon ; In re Garland, 4 Wall. (U. S.) 333, 18 L. Ed. 366 ; to relieve against for feiture of property under a confiscation act; Armstrong's Foundry, 6 Wall. (U. S.) 766, 18 L. Ed. 882 ; or release from fines, penalties, and forfeiture which accrue from the offence ; Osborn v. U. S., 91 U. S. 474, 23 L. Ed. 388 ; or contempt of court ; State v. Sauvinet, 24 La. Ann. 119, 13 Am. Rep. 115 ; it includes amnesty ; U. S. v. Klein, 13 Wall. (U. S.) 128, 20 L. Ed. 519 ; and a general amnesty proc lamation includes domiciled aliens; Carlisle v. U. S., 16 Wall. (U. S.) 148, 21 L. Ed. 426. The power of the president to issue a proc lamation of general amnesty has been much drawn into question, and it was denied in a report of the judiciary committee of the sen ate made Feb. 17, 1869, that he could do it without the authority or assent of congress! It was the subject of legislation, an express power being granted to the president by sec tion 13 of the act of June 17, 1862, which was repealed by act of Jan. 19, 1867. It was, how ever, generally considered that the subject was within the power of the executive, and it was exercised by Presidents Washington, Adams, Madison, Lincoln, and Johnson, and independently of congressional action. See an
extended discussion of the subject in 8 Am. Law Reg. N. S. 513, 577. The president may act on pardons immediately, or first refer them to the executive departments; 14 Op. Att. Gen. 20.
The president has no power to interfere with a public prosecution, except to put an end to it and discharge the accused. He may not change the proceedings or place of trial; U. S. v. Corrie, Fed. Cas. No. 14,869; 1 Brun ner, Col. Cas. 686.
The executive cannot, except as permitted by the constitution, grant a reprieve or fix a day for the execution of a convicted crim inal, that being a judicial power ; Clifford v. Heller, 63 N. J. L. 105, 42 Atl. 155, 57 L. R. A. 312. His pardoning power is not affected by a provision in an act giving one-half of the fine imposed to an informer ; Meul v. People, 198 Ill. 258, 64 N. E. 1106 ; nor by a provi sion authorizing the commutation of sentence for good conduct and defining the credit to be given ; Fite v. Snider, 114 Tenn. 646, 88 S. W. 941, 1 L. R. A. (N. S.) 520, 4 Ann. Cas. 1108 ; or a provision for indeterminate sen tences ; People v. Cook, 147 Mich. 127, 110 N. W. 514; or release on parole ; People v. Madden, 120 App. Div. 338, 105 N. Y. Supp. 554; People v. Nowasky, 254 Ill. 146, 98 N. E. 242; so that in none of these cases was the act considered unconstitutional as an in vasion of the pardoning power of the execu tive. So an act creating a medical council and state boards of medical examiners where by the appointing power of the governor was limited by restricting the choice to a certain class of applicants was valid ; In re Registra tion of Campbell, 197 Pa. 581, 47 Atl. 860 ; and, since the power of appointment to office is not exclusively an executive prerogative, so was an act making officers of the board of agriculture elective by general assembly ; Cunningham v. Sprinkle, 124 N. C. 638, 33 S. E. 138 ; but the legislature has no power to authorize a state board of auditors to deter mine the guilt or innocence of a person con victed of crime, as the result of such action would be to constitute such board a court of appeals without any constitutional warrant therefor ; Allen v. Board, 122 Mich. 324, 81 N. W. 113, 47 L. R. A. 117, 80 Am. St. Rep. 573.