¶1A petition for rehearing filed by the defendant was granted and this case reargued. After further con*327sideration I have concluded that the result of our former opinion was proper but that it should have rested on a more fundamental ground. In an effort to give due consideration to acts of the legislative department, the court failed to give adequate consideration to the exclusive power over reprieves, commutations and pardons vested by the constitution in the executive department of our government.
¶2The provision of our constitution involved in this case is contained in Art V, § 14 as follows:
“He [the governor] shall have power to grant reprieves, commutations, and pardons, after conviction, for all offences (sic) except treason, subject to such regulations as may be provided by law.
¶3The pardoning power vested in the governor will be referred to herein as inclusive of the power to grant commutations. A commutation is generally defined as “a change of punishment to which a person has been condemned to one less severe.” See Fehl v. Martin, 155 Or 455, 64 P2d 631.
¶4Although some state constitutions grant to the legislature the power to restrict or limit the pardoning power, it is important to note that under our constitution the legislature may only regulate the power vested in our governor by the above provision. This was pointed out very emphatically by Mr. Justice Band in his opinion in Fehl v. Martin, supra, in the following language:
. … the constitutional power of pardoning vested in the governor is not subject to legislative control, either to limit the effect of a pardon or to exclude from its operation any class of offenders: Ex parte Garland, 4 Wall. 333 (18 L. Ed. 366). And, therefore, no act of the legislature could take away from the governor the power to grant an absolute *328or a conditional pardon at any time after sentence has been pronounced.”
¶5In our original opinion we said that one result of the 1955 amendment to ORS 421.120 was to vest in the governor a dual authority to release prisoners, one, by virtue of the constitution and the other, by virtue of the statute. We also said that in releasing plaintiff, the governor was not acting pursuant to his constitutional authority. After further consideration, I believe those statements were in error. The governor was vested with the complete power to commute sentences by the constitution and ORS 421.120 neither enlarged that power nor vested in the governor any additional overlapping or duplicating power.
¶6In referring to the pardoning power vested in the governor by the constitution of Vermont, the supreme court of that state, in In Be Conditional Discharge of Convicts, 73 Vt 414, 420, 51 A 10, said:
“… This power can neither be restricted nor taken away by legislative action. Nor can a like power be given by the legislature to any other officer or authority: Cooley’s Con. Lim. 133.”
¶7A similar statement was made by the supreme court of Washington in Ex parte Costello, 22 Wash2d 697, 157 P2d 713. If the legislature can not give a like power to any other officer, how can it give a like power to the same officer who already has the complete power?
¶8The completeness of the governor’s constitutional pardoning power was recognized in Fehl v. Martin, supra, when it was referred to as “the whole power” in the following portion of the opinion:
“It will thus be seen from a mere reading of this provision of the constitution [Art V, § 14] that the whole power to grant reprieves, commutations and *329pardons after conviction for all offenses except treason, subject to sucb regulations as may be provided by law, is committed to the governor.” (Italics supplied)
¶9I now conclude that in releasing plaintiff the governor acted pursuant to his constitutional authority to grant commutations and thus terminated plaintiff’s sentence on November 29, 1955. The reasons which have caused me to reach this conclusion will be briefly stated.
¶10The constitutionality of good conduct statutes has been frequently challenged on the ground that they infringe either the power of the executive or the power of the judiciary. It is now well established that such statutes are valid when they are not retrospective in effect and are of general application. On the other hand, good conduct statutes which were retrospective in effect have been held invalid in most cases where they were challenged on that ground. The leading cases on that point include: Commonwealth v. Halloway (1862), 42 Penn 446, 82 Am Dec 526; Ex parte Barling (1881), 16 Nev 98, 40 Am Rep 495; Ex parte Clawson (1887), 5 Utah 358, 15 P 328; State v. McClellan (1888), 87 Tenn 52, 9 SW 233; Fite v. State (1905), 114 Tenn 646, 88 SW 941; Ex parte Woodburn (1909), 32 Nev 136, 104 P 245.
¶11In one of the earliest eases the supreme court of Tennessee stated the rule in State v. McClellan, supra, as follows:
“The act of 1885 (passed at the extra session, June 12), Acts Ex. Sess., p. 87, is also referred to, and it is insisted that the relator was and is entitled to the benefit of that act, but such cannot be its effect, though it purports to be for the benefit of those then as well as thereafter confined in the *330penitentiary, because to the extent of provision for those then confined, it is an attempted exercise of the pardoning power which is vested alone in the Governor under the Constitution, and is void. … *79
¶12In a later Tennessee case, Fite v. State, supra, the rule applicable to retrospective good conduct statutes was stated in more detail by McAlister, J., as follows:
“We are of opinion, upon an examination of the authorities and upon principle, that such legislation, where the credits are specifically defined by statute, and where the provisions of the statute operate alone upon sentences of convicts who have been imprisoned subsequent to the passage of the statute, is not an invasion of the constitutional prerogative of the Governor. * # *
“We think it quite obvious that an act of the Legislature specifically defining credits for the good conduct, in existence at the date of the judgment against the convict, becomes a part of the sentence, and inheres into the punishment assessed.
íí íí ^ is* ^ ^
“Such, however, would not be the effect of an act of the Legislature passed subsequent to the conviction of a particular convict, for, as held in State ex rel. v. McClellan, supra, that would be a clear invasion of the prerogative of the Governor. …”
¶13The supreme court of Utah in Ex parte Clawson, supra, has stated the same rule in the following language :
“… If we should allow the act of the legislature passed since the sentence to control, it in effect is to say that the legislature can, after judgment, nullify the judgment, and set the prisoner free. If the legislature can reduce the sentence at all, subsequent to the sentence, it can reduce it to an unlimited extent. This would be encroaching *331■upon the authority of the executive, as it is the province of the executive, and not of the legislature, to reprieve or pardon. It would also be allowing the legislature to interfere with the judicial branch of the government, and to usurp its duties, and to make a sentence and judgment different from that entered in court. We are borne out in our view by the case of Ex parte Darling, 16 Nev., 98, and by the case of Com. v. Johnson, 42 Pa. St., 448.”
¶14It has also been held that an amendment operating retrospectively to increase the good conduct credits allowed by a prior statute renders such statute unconstitutional. In Ex parte Woodburn, supra, the supreme court of Nevada said:
“It is conceded that by reason of the good conduct of the said Hall he is entitled to be discharged, providing the said act of 1909 is applicable to Ms case. By the provisions of the last-mentioned act a prisoner serving a three-year sentence is entitled to eight months’ credits for good behavior, while under the act in force at the time the prisoner was committed he would only be entitled to seven months’ credits. The precise question here involved came before this court in the case of Ex Parte Darling, 16 Nev. 98, 40 Am. Rep. 495. In that case it was held that the legislature was without power to pass an act which, in effect, would commute any portion of the sentence imposed by the court prior to the time the act took effect, for the reason that the same interfered with the functions of the judiciary, and hence was violative of the constitution.
“… Our attention has not been called to the decision of any court taking a contrary view to that heretofore expressed by this court in the Darling case, and we see no sufficient reason for reversing the former decision of this court upon the question here involved.”
¶15*332To avoid the obvious constitutional objections to a retrospective good conduct statute the opinion of the majority on rehearing recommends that the governor be called upon, if necessity arises, to exercise his constitutional power to commute sentences. The majority say:
“We detected in the final brief of the Attorney General some apprehension as to results which might follow if it should be held that a good time statute could not constitutionally be given retroactive effect. If such a holding should in the future be made and if undue hardship or injustice should result from action taken by officials on the assumption that such good time statutes could be given retroactive effect, an adequate and prompt remedy could be found in the pardon or commutation power of the governor by the exercise of which the legislative intent could be lawfully effectuated.”
¶16In this instance the legislature appears to have found and adopted the recommended solution without benefit of advice from this court. According to the Attorney General’s Survey on Release Procedure, US Gov Printing Office, 1939, Yol. 1, at least 11 states, including Oregon, have adopted this procedure. The reason therefor is concisely stated in People v. Warden of New York County Pen., 178 NYS 595, 598, 109 Misc. Rep 248, where the court said, “there can be no serious doubt of the validity of a statute, which, in the last analysis, leaves the decision with the Governor, as does the present one.”
¶17That the Oregon legislature has already adopted the solution recommended by the majority cannot be questioned. The 1955 amendment to the good conduct statute inserted language providing that the industry and general reformation of the prisoner should be certified “to the governor” by the warden and that the prisoner *333shall be entitled “upon the order of the governor” to a deduction from the term of his sentence. This action was apparently taken to forestall any claim of invalidity resulting from the substantial increases in good conduct credits granted by the 1958 and 1955 amendments which were made retrospective in operation.
¶18It is possible that the 1955 amendment enlisting the aid of the governor may also have been to make the statute conform to prior administrative practice. On this point the legislative history of our present good conduct statute is interesting. House Bill No. 16, which became ORS 421.120, was originally introduced at the 1937 session of the legislature on January 14, 1937, by Representative Ellis "W. Barnes and others. On January 25, 1937, Representative Barnes, was advised in an opinion by the Attorney General (Atty Gen Ops 1936-38, 168) that the bill being retrospective in effect would violate Art III, § 1 of our constitution. Before the bill was enacted it was amended by adding thereto the phrase “and where industry and general reformation shall be certified to by the warden of the penitentiary.” The statute as enacted read as follows:
“Section 1. That each prisoner who is now confined, or hereafter may be confined, in execution of the judgment of sentence upon any conviction, in Oregon state penitentiary, for any term other than life, and whose record of conduct shows that he faithfully has observed the rules of the institution, and where industry and general reformation shall be certified to by the warden of the penitentiary, shall be entitled, upon the recommendation of the warden of said penitentiary, to a deduction from the term of his sentence and be computed as follows: …. (Italics supplied)
# * # # 99
¶19*334It is possible that from the effective date of this act the governor has always granted the good conduct credits upon the certification and recommendation of the warden and that the 1955 amendment by providing that the certification should be made to the governor and that the prisoner should be released upon the order of the governor merely made the statute conform to the administrative practice which had been followed since 1937. In any event, the 1955 amendment expressly enlisting the aid of the governor to terminate the sentence makes unnecessary any further inquiry as to the practice followed prior to that amendment.
¶20The question involved in this case is not whether the good conduct statute was retrospective as applied to the plaintiff but what power the governor was exercising in terminating the plaintiff’s sentence. The fact that the statute apparently did not operate retrospectively as to Fredericks is beside the point. What power did the legislature request the governor to exercise under a statute which in general was expressly intended to operate retrospectively? It was the same executive power, whether the statute in a particular case operated prospectively or retrospectively.
¶21In my opinion, the power which the legislature requested the governor to exercise was the power to commute sentences vested in the governor by the constitution. This is also the conclusion finally reached by the Attorney General. On the oral argument on rehearing, counsel for the defendant said:
“It is our position that when the governor is acting under the statute [OES 421.120] he is exercising his constitutional authority to commute sentences.”
¶22Although in the case at bar the governor was induced to act because of OES 421.120, it does not follow *335that in so acting he exercised anything less than his complete constitutional power to terminate the sentence. The situation in which the governor is placed by ORS 421.120 is clarified by pointing out that the governor had power to commute sentences regardless whether that statute was in effect or not. If the statute had been repealed, the governor could have continued without change the practice of releasing prisoners upon the recommendation of the warden using the identical good time credits specified in the statute. By the same token, he could have ignored the statute and adopted an entirely different system of allowing good time credits, and could have made this system uniform as to all prisoners or could have granted clemency to some prisoners and withheld it from some. In short, the power of the governor to commute sentences at any time and for any reason is unlimited.
¶23The fundamental question involved in this ease is whether the legislature may require the governor to terminate the sentence of a prisoner at times and upon conditions prescribed by the legislature. The majority holds that this duty may be imposed upon the governor by the legislature. It is interesting to note that no authority is cited to support this conclusion upon which the result reached by the majority directly depends.
¶24It is now conceded by the defendant that ORS 421.120 insofar as it invokes the aid of the governor is not mandatory and that a statute which required the release of prisoners by the governor would be an invasion of the pardoning power. This is in accord with the result reached in Fehl v. Martin, supra, where this court rejected the contention made by Kelly, J. in his dissenting opinion that the portion of the former good conduct statute, § 13-1906, Oregon Code 1930, granting *336certain credits for good behavior was mandatory. In the companion case of Fehl v. Lewis, 155 Or 499, 503, 64 P2d 648, the unanimous opinion of the court was written by Mr. Justice Kelly, who' said in referring to Fehl v. Martin, supra:
“… They think that at all times it is within the discretion of the governor to disregard the good conduct, industry and evidence of general reformation on the part of the prisoner and the certified record thereof. See Fehl v. Martin et al., ante p. 455 decided contemporaneously herewith, wherein these views are expressed in the prevailing opinion; Mr. Justice Bailey’s in a specially concurring, and Mr. Justice Belt’s, and the writer’s in a dissenting opinion.” (Italics supplied)
¶25The conclusion that the legislature cannot impose upon the governor the duty to terminate the sentence of prisoners at times and upon conditions prescribed by the legislature is in accord with the great weight of authority. The courts of other jurisdictions have almost unanimously held that statutes which attempt to control or influence the commutation power of the chief executive are either advisory in nature or unconstitutional.
¶26. In Rich v. Chamberlain, 107 Mich 436, 62 NW 584, a statute creating a board to advise the governor with regard to granting pardons and commutations was upheld although two of the justices wanted to hold that the pardoning power was so far removed from legislative interference that even an advisory board was unconstitutional. The recommendation of the board under the Michigan statute was akin to the certification by the warden of the industry and general reformation of the prisoner under ORS 421.120. The Michigan court made it clear that a statute which purported to require or compel action by the governor would be invalid.
¶27*337In Ex Parte Ridley, 3 Okla Crim 350, 106 P2d 549, the court considered the validity of an act creating a board of pardons and providing that “No pardons, nor paroles shall be granted by the Governor until he shall present the matter to and obtain the advice of the Board of Pardons and Paroles.” The Oklahoma constitution was similar to our constitution in that it vested in the governor the power to grant pardons “subject to such regulations as may be prescribed by law.” The court said:
“Under our Constitution the pardoning power is vested exclusively in the Governor of the state, and any law which restricted this power would be unconstitutional and void. The co-ordinate departments of the government have nothing to do with the pardoning power, except that the Legislature may by law provide how applications may be made, and is entitled to a report at each regular session of the action taken.
“… This constitutional provision is self-executing, and we believe that the legislative act creating the Board of Pardons is clearly unconstitutional and void. In it the Legislature has attempted to confer pardoning power upon other state officers, which is clearly an unconstitutional interference and infringement upon the executive power.”
¶28The Washington constitution vests the pardoning power in the governor “under such regulations and restrictions as may be prescribed by law.” The legislature created a board of pardons and provided that all applications for pardons before being acted upon by the governor should be submitted to the board for its approval, rejection or such advice as it may deem proper. The Secretary of State refused to attest the signature of the governor on a pardon because the board of pardons had recommended a commutation *338instead of afull pardon. The supreme court of Washington in State, Ex Rel. Rogers v. Jenkins, 20 W 78, 54 P 765, held that the legislature had not attempted by this act to limit the pardoning power of the governor and required the secretary of state to authenticate the pardon. The effect of such holding was to render the act advisory in nature.
¶29The ease of Ex Parte Bustillos, 26 NM 449, 194 P 886, involved pardons granted by the governor of New Mexico to certain followers of the notorious bandit Francisco Villa, all but one of whom had pleaded guilty to murder in the second degree and received life sentences in the penitentiary. The pardons had been granted contrary to the terms of a statute which read as follows:
“* … but no convict, who shall have been sentenced to the penitentiary, shall be pardoned before the expiration of his time, or have his time commuted by the Governor, unless the same be first recommended by the board of penitentiary commissioners, …
¶30In construing such statute, the supreme court of New Mexico said:
“We have then this situation: A constitutional grant of the pardoning power to the Governor subject to regulation by law. Section 5087 provides not only regulation of the exercise of the power, but imposes a restriction upon the power itself. The section absolutely prohibits the exercise of the power without the previous concurrence and recommendation of the penitentiary commissioners. This is a plain invasion of the rights and duties of the executive. It lies with the penitentiary commissioners to absolutely nullify the grant and to prohibit the Governor from the exercise of his discretion in this regard. For this reason the section, *339taken as a whole, must he held to he unconstitutional and inoperative. …”
¶31The cases heretofore cited, In Re Conditional Discharge of Convicts, supra, and Ex parte Costello, supra, likewise support the conclusion I have reached in this case.
¶32The case of Laird v. Sims, 16 Ariz 521, 147 P 738, stands virtually alone in opposition to the authorities cited above. In that case it was held that a statute which provided that no pardon could he granted by the governor unless first recommended hy the hoard of pardons did not violate the constitution which vested in the governor the power to grant pardons “upon such conditions and with such restrictions and limitations as may he provided by law.” For the reasons pointed out in the dissenting opinion of Cunningham, J., the majority opinion is unsound and entitled to scant consideration.
¶33The opinion of the majority attempts to draw an analogy between good conduct statutes and statutes providing for the parole of prisoners although such statutes are admittedly not analogous in purpose. The majority call attention to the right of the legislature to enact a parole law which vests in the parole hoard the power to parole prisoners without any participation hy the governor. This right is not questioned. Neither is the right of the legislature to pass a prospective good conduct statute without any participation by the governor. It is only when the legislature involves the power of the governor in its systems for the granting of paroles or good conduct credits that questions arise. If the legislature attempted to impose upon the governor a duty to terminate the sentence of a paroled prisoner upon the certification or recommendation of the parole hoard, we would have a situ*340ation analogous to the present case. Unless the recommendation of the parole board in such a case was purely advisory, the statute would be unconstitutional.
¶34The Supreme Court of Illinois in People v. Joyce, 246 Ill 124, 92 NE 607, upheld a statute which provided that the state board of pardons should have the power to enter an order discharging a prisoner “which said order, when approved by the Governor, shall operate as a complete discharge of such prisoner in the nature of a release or commutation of his sentence to take effect immediately upon the delivery of a certified copy thereof to the prisoner, … The court held in effect that this statute was purely advisory and being advisory did not infringe upon the pardoning power of the governor. We quote from the opinion:
“It is further insisted that the final discharge of a paroled convict under the provisions of this section is an encroachment upon the executive powers of the Governor, and therefore unconstitutional. The act of the board of pardons under said section is nothing more than an investigation of the conduct of the convict whose case is under consideration. It merely makes a recommendation to the Governor. The discharge or commutation, as we have seen, is made by the Governor. This section does not infringe the constitutional right of the Governor to grant pardons, reprieves, and commute sentences. …”
¶35As pointed out in our original opinion, a commutation may be granted with little formality. Technical terms are not necessary and the language used shall be construed most beneficially for the prisoner. By signing the letter of November 1, 1955, Governor Patterson directed that George Fredericks be released from the penitentiary on the date specified and nothing more was necessary to terminate plaintiff’s sen*341tence. The governor had the power to terminate the sentence and clearly indicated his intention to accomplish that result when he directed defendant to release the plaintiff from the penitentiary.
¶36The majority quote from Carpenter v. Lord, 88 Or 128, 171 P 577, which holds that a pardon is not effective unless it is accepted by the prisoner to whom it is offered. It is only necessary to point out that Fredericks unequivocally accepted the commutation by walking out of the penitentiary when the gate was opened for him. No formality was necessary.
¶37Having concluded that the sentence of the plaintiff was terminated by the commutation thereof by the governor, it follows that such commutation can not be revoked by the warden and that the reimprisonment of plaintiff was unlawful. It has been stipulated that the plaintiff was not guilty of any fraud or other imposition upon the governor.
¶38If the legislature can grant substantial good time credits to a prisoner previously sentenced and then require the governor to terminate the sentence whether he wishes to do so or not, the legislature has usurped in part the power of commutation vested exclusively in the governor by the constitution.
¶39Believing that our former opinion should be modified in accordance with the conclusions stated herein, I dissent.