20 Haw. 518 | Haw. | 1911
Lead Opinion
The first point to be considered is that raised by the appellant to the effect that the auditor, having no- personal interest in the money involved in this case, may not raise the question as to the validity of the statute because “the court will not listen to an objection made to the constitutionality of an act by a party whose rights it does not affect' and who, therefore, has no interest in defeating it.” The principle referred to has been applied by this court in several cases. In the case at bar no constitutional question, strictly speaking, is raised. The contention of the attorney general is that the
Assuming, however, that there is sufficients analogy to warrant the application of the principle the contention will, be considered on the basis upon which it is founded.
The question whether a public officer may set up the unconstitutionality of a statute in defense of his refusal to perform an alleged ministerial duty has frequently arisen in mandamus proceedings, .and, as pointed out in 19 Am. & Eng. Enc. Law (2nd ed), 764, the cases are in irreconcilable conflict. In Smith v. Indiana, 191 U. S. 138, 148, the court said, “We have no doubt of the power of the state courts to assume jurisdiction of the case if they choose to do so, although there are many authorities to the effect that a ministerial officer, charged by law with the duty of enforcing a certain statute, cannot refuse to perform his plain duty thereunder upon the ground that in his opinion it is repugnant to the Constitution. It is but just to say, however, that the power of a public officer to question the constitutionality of a statute as an excuse for refusing to enforce it has often been assumed, and sometimes directly decided, to exist. In any event it is a purely local question, and seems to have been so treated by this court in Huntington v. Worthen, 120 U. S. 97, 101.” The cases pro and con are not in accord among themselves in their reasoning. Perhaps a strict rule to apply to all cases should not be laid down as much depends upon circumstances. The attorney general argues that express authority to refuse to audit a claim such as that here in question is given to the auditor by the clause in section 1514 of the Revised Laws, which provides that “he shall have the power by withholding his approval when necessary, to prevent the misappropriation of public funds, as well as the disbursement of public moneys in excess of specific appropriations.” But the term “misappropriation” as there used evidently has reference to the use of public moneys for purposes other than those
The principle involved is applicable here although this is a summary appeal under the statute (E. L. Sec. 1535). The respective positions of the parties are the same as they would have been in a petition for a writ of mandamus.
The principal question which is presented for. decision is whether Act 144 is a valid enactment. The arguments on this question have taken a wide range, but it will not be necessary to discuss all the points in detail. My conclusion that, the statute is invalid rests upon certain broad principles the application of which should, I think, be obvious.
The legislative power was conferred by Congress upon the
As the fine so paid pursuant to the judgment of the military commission was beyond, the reach of the pardoning power of the executive, so also was it beyond that of the legislative power. Roberts v. State, 51 N. Y. S. 691; Allen v. Board of Auditors, 122 Mich. 324; State v. Railroad, 71 Conn. 43, 49; Haley v. Clark, 26 Ala. 439.
In the Connecticut case, above cited, the court said, “The separation of the powers of government into three departments, each of which within its own sphere is supreme, is a constitutional principle which cannot be overturned. The judgment is the final and supreme act of judicial power. The legislature
The appropriation of a sum of money by the legislature for the avowed purpose of refunding the amount of a fine paid pursuant to a judgment of a court of competent jurisdiction upon the assumption that the accused was innocent and the judgment erroneous is, clearly, an attempt to repudiate, overturn, and set aside that judgment. If such a thing can be done in one case, it could, of course, be done in .all similar cases, thereby establishing the anomalous and untenable situation of the legislature being called upon from time to time to review, revise and upset the verdicts of. juries and the findings and judgments of courts.
In Roberts v. State, it appeared that one John Roberts had been convicted in New York of the crime of burglary; that, after serving nearly two years in the state prison he was pardoned by the governor; that thereafter the state legislature passed an act authorizing Roberts “to present a claim to the board of claims for damages sustained by him by reason of his improper conviction and imprisonment;” that a claim was presented, and the board made an award in the claimant’s favor in the sum of $7500. On appeal, the supreme court set aside the award. The court said, “But why was the conviction of the plaintiff improper ? He was found guilty by the court of oyer and terminer of the crime of burglary. The conviction was not improper if he was in fact guilty. It-could only have been held improper if, although found guilty, he was in fact innocent. If the act in question shall be deemed a legislative determination that his conviction was improper, the legislature, in its enactment, was compelled to practically annul a judgment duly rendered in the oyer and, terminer in 1877. That judgment determined that the plaintiff was guilty. The legislature, by the act in question, in enacting that his conviction Avas improper, necessarily found that he Avas innocent. In doing so
The principle would be precisely the same whether the sentence imposed was one of imprisonment or a monetary fine, and whether the attempted compensation should takte the form of an act allowing a claim for damages to be made in some tribunal, or of a direct vote of money by the legislature.
The foregoing observations have an important bearing upon the contention made on behalf of the auditor by the attorney general to'the effect that the statute in question constitutes an illegal attempt on the part of the legislature to devote public moneys to a purely private purpose — in other words, to make a gift of public funds to a private individual.
In N. Y. Life Ins. Co. v. Commissioners, the circuit court of appeals said, referring to certain Ohio cases, “We think those last two cases do not sanction the conclusion that the court may sit in review of the legislative discretion, and itself determine the measure or degree of merit which a claim must have to entitle it to favorable consideration at the hands of the legislature. But they do decide that, if the facts upon which the legislature has acted are denied, the court may inquire whether they did in truth exist, and if it clearly appears that the purpose of the act was a private one, and so beyond the pale of legislation, the court will not regard- itself as concluded, but will adjudge the act void” (p. 132). Also-, that, “It may be conceded that if the legislature, departing from its functions, should, under the guise of legislation, devote public funds to be collected by taxation for an object in'no sense public, the judiciary has the authority to interfere and declare such action to be outside of the 'legislative power, and therefore void, as
“While an enactment is conclusive as to facts it states against those who are within its operation, though not as to such as are not within its enacting part, a mere recital in a statute, either of fact or law, is not conclusive. A court is at liberty to' decide the law differently, and to inquire independently as to the truth of the recited facts.” Sutherland, Statutory Construction, Sec. 213.
In the case at bar the surrounding facts and circumstances are undisputed. After indulging every possible presumption in favor of the validity of the action of the legislature, the facts remain that the fine paid by the appellant went into the public treasury many years ago; and that the judgment, in satisfaction of which the fine was paid, being valid and binding, was and is conclusive on all branches of the government, and no one of those branches can now say aught to the contrary. Under these circumstances it cannot be contended successfully that there is any possible moral obligation owing by the public to the appellant in satisfaction of which public moneys may lawfully be appropriated and paid over to him. The legislature cannot, by thus trespassing upon the judicial power and unearthing controversies which have been set at rest by the courts, uncover supposed moral obligations with a view to arighting what may seem to the legislators to have been acts of injustice.
Counsel for the appellant cite authorities to the effect that all governments are accustomed to recognize and pay moral and equitable claims though there may be no legal liability to pay them. This is conceded; but it is also true that the opinion or finding of the legislature that such an obligation existed is not necessarily binding on the courts. The case of United States v. Realty Company, 163 U. S. 427, is cited with apparent confidence. In that case the court was at pains to show that a strong moral obligation existed to support the legislation which
In a small community ivhere the judges are often personally acquainted with litigants, and when, at times, the calls of friendship and sympathy beckon aside, it may be difficult, in endeavoring to administer justice, to disregard the appeals and to adhere to the strict path of duty. But there can be only one proper course for a judge to follow.
However laudable may have been the motive which prompted the legislature to enact this statute,, to sustain its validity would be to ignore plain legal principles, and to set a precedent which, if followed, would lead to disastrous consequences. • The act trenches upon the judicial power, and it constitutes an attempt to divert public funds to1 private use without any moral obligation or other consideration of public policy to support it. It is not, therefore, a rightful subject of legislation.
In my opinion the ruling of the auditor should be sustained.
Concurrence Opinion
concurring. The preliminary question is presented as to whether the auditor may attack the constitutionality of the statute. It is true that “the objection of unconstitutionality will be listened to only when it is made by one having a legal interest in defeating the statute.” In re Craig, ante pp. 483, 490; Territory v. Miguel, 18 Haw. 402. The present case, however, does not fall within that rule. By B. L., §1514, the auditor is given “.the power, by withholding his approval when necessary, to prevent the misappropriation of public funds, as well as the disbursement of public moneys in exercise of specific appropriations.” Within the meaning of this section funds are misappropriated, not only when paid under or charged to an appropriation which was not intended to authorize the particular expenditure, but also when paid in the absence of any
Whatever merit there .may be in the view that the act is an appropriation of public moneys for a private purpose and constitutes an encroachment upon the judicial power, I think that for another reason it must be declared invalid.
Section 66 of the Organic Act of this Territory provides that “the executive power of the government of the Territory of Hawaii shall be vested in a governor, who * * ** may grant pardons or reprieves for offenses against the laws of the United States until the decision of the President is made known thereon.” It is well established that whenever by the fundamental law of a State or a Territory or other jurisdiction the power of pardon is vested in an executive officer or board of officers, the grant is exclusive and the power may not, aside from constitutional amendment, be lawfully conferred upon or exercised by the legislative or the judicial department'. This is in keeping with the accepted theory of our governments that the three depailments, except in so far as may be clearly provided to the contrary, are separate and distinct in their functions and is an application of the rule of construction that the enumeration of the one excludes all others. When, as by our Organic Act, the power is confided to the executive branch of the government it is virtually denied t> any other department and cannot, therefore, be exercised by the legislature any more than it could be exercised by the judiciary. In the distribution of the powers of government the framers of the fundamental law, in the case of this Territory the Congress of the United States, have the right to lodge the pardoning power where to them in their wisdom seems best and it is not competent for a lesser authority, in this instance the local legislature, to alter
It is equally clear that the power confided by Congress to the governor of Hawaii to grant pardons refers to and includes all manner of pardons known to the law and includes, more specifically, pardons which are partial in their operation as well as those which are full and absolute. The greater necessarily includes the less. Under the authority vested in him by section 66 the governor may in any case remit the fine imposed under the judicial sentence and leave all of the other penalties and disabilities in full force. 2 Story on the Constitution, §1504; 1 Bishop Crim. Law, §760; Ex parte Wells, 18 How. 307; Perkins v. Stevens, 24 Pick. 277; Holliday v. The People, 10 Ill. 214; Cook v. Freeholders, 26 N. J. L. 326; 24 Am. & Eng. Ency. L., 566, 567; 29 Cyc. 1569.
Act 144 of the Laws of 1911 was enacted in violation o-f these principles. It is in effect an attempt on the part of the legislature to exercise the pardoning power. The J. A. Cummins named in the act was in the early part of 1895 duly convicted (upon ¿ plea of guilty) by a lawfully constituted judicial tribunal, to wit, a military commission, having jurisdiction of the subject-matter and of the person (In re J. C. Kalanianaole, 10 Haw. 29) and was by the commission sentenced to be imprisoned at hard labor for the term of five years and to pay a fine -of five thousand dollars. Subsequently Sanford B. Dole,
It has been said in argument, that the act cannot be an exercise of the pardoning power vested in the governor because at the time of its enactment, after the payment of the fine, the governor had not any power to pardon. It seems to me that this attempted answer is insufficient. A pardon “is an act of grace * * * which exempts the individual on whom, it is bestowed from the punishment the law inflicts for a crime he has committed.” U. S. v. Wilson, 7 Peters 149, 160. The statute under consideration is an act of grace, exempting the present appellant from punishment which has been judicially inflicted upon him for a crime of which he was duly convicted. The character of the statute as an act of grace exempting from punishment is not affected by the mere fact that the act was done after the payment of the fine into the governmental treasury. The power to bestow such an exemption is by our fundamental law vested in the governor alone. That as to the remission of a fine it can be exercised, if at all, only within a stated time, that is to say, before payment of the fine, does not operate to make the grant any the less exclusive or to transfer it to the legislative department after the expiration of the time stated.
For these reasons I concur in the conclusion that the ruling of the auditor should be sustained.
Dissenting Opinion
dissenting. I concur in the opinion of Mr. Chief Justice Robertson as to the right of the auditor to raise the question as to the validity of the statute; but as to the merits of the appeal I am unable to concur in either of the foregoing opinions, or in the conclusion reached by the majority. The chief justice concludes that the statute in question is invalid because it “trenches upon the judicial power, and it constitutes
As I view the questions involved in this appeal, the legislature in the enactment of this statute did not trench upon or attempt to exercise any of the powers of either of the other two co-ordinate branches of the government, they having fully exercised all their powers in the premises, but it acted wholly within its own province, exercising its legislative discretion upon one of the “rightful subjects of legislation.” Sec. 55, Org. Act; 28 Am. & Eng. Ency..Law (2d ed), 60¿ Maynard v. Hill, 125 U. S. 190.
The Organic Act transferred from Congress to the territorial legislature the power to pass laws for the people of the Territory, and it takes the place of a constitution as a fundamental law of the local government. 28 Am. & Eng. Ency. Law (2d ed), 59; Ferris v. Higley, 20 Wall. (U. S.) 375; Nat’l. Bank v. Yankton County, 101 U. S. 129.
The conclusion reached by the majority, each member by a separate and distinct process of reasoning, is, in effect, a holding that the statute is unconstitutional. Can it be successfully claimed that the invalidity of the statute is placed beyond reasonable doubt when the members of the court declaring it invalid are each unable to adopt the reasoning of the other ? Presumably each entertains doubt as to the soundness of the views expressed by the other. “If it be doubtful, and the legislature has seen proper to exercise the power, the judiciary should not interfere. The doubt is then to be solved in favor of the legislative action.” Norman v. Ky. Bd. Managers World’s Columbian Exp., 20 S. W. 901. “A statute will not be declared void in whole or in part, unless its invalidity is distinctly pointed out and made clearly manifest. The general rule is
“It has been said by an eminent jurist, that when courts are called upon to pronounce the invalidity of an act of legislation, passed with all the forms and ceremonies requisite to give it the force of law, they will approach the question with great caution, examine it in every possible aspect, and ponder upon it as long as deliberation and patient attention can throw any new light upon the subject, and never declare a statute void, unless the nullity and invalidity of the act are placed, in their judgment, beyond reasonable doubt. A reasonable doubt must be solved in favor of the legislative action, and the act be sustained.
“The question whether a law be void for its repugnancy to the constitution is at all times a question of much delicacy, which ought seldom, if ever, to be decided in the affirmative in a doubtful case.” Cooley’s Const. Lim. (7th ed), 109, 252. The rule is universal that courts will presume in favor of the constitutionality of a law, until the contrary clearly appears. Adams v. Storey, Fed. Cas. No. 66; U. S. v. Mackenzie, Fed. Cas. No. 18,313; 6 Am. & Eng. Ency. Law (2d ed), 1086; 8 Oyc. 801. But, as I view the statute, there is no occasion to indulge in presumptions in favor of its validity. To my mind it is clear that the legislature had the power to pass it, and having done so, we are not concerned in the motives or reasons which prompted its enactment. Cooley’s Const. Lim. (7th ed), 257; 6 Am. & Eng. Ency. Law (2d ed), 1087; 8 Cyc. 804.
The chief justice, upon the proposition that the statute trenches upon the judicial power, cites the following cases: Knote v. United States, 95 U. S. 149; Roberts v. State, 51 N. Y. S. 691; Allen v. Board of Auditors, 122 Mich. 324; State v. Railroad, 71 Conn. 43; Haley v. Clark, 26 Ala. 439. Let us examine these cases in the order named.
Knote v. United States, as I read it, does not in any way militate against the validity of the statute before us, but on
In Roberts v. State, Roberts was convicted and sentenced to the state prison for a period of twenty years, and after serving about two years he was pardoned. The legislature then passed an act authorizing him to present a claim to the board of claims for damages sustained by him by reason of his improper con
In Allen v. Board of Auditors, Allen had been convicted and sentenced to imprisonment for a term of years and after serving a portion of his term he was pardoned, whereupon the legislature passed a joint resolution directing the board of state auditors to investigate his claim, and if found .to be true, i. e., innocent, to allow him a sum not to exceed ten dollars per month for a period not to exceed ten years. The court held that the joint resolution was an attempt on the part of the legislature to create a court of appeals, aside from the constitutional courts, to determine the guilt or innocence of a convicted criminal, which was “a violation of the plain provisions of the constitution establishing courts, and conferring the exclusive jurisdiction upon them to try civil and criminal cases.” It is obvious that no such questions are involved in the case at bar. The question as to the power of the legislature to make an appropriation in a case similar to the one under consideration was not before the court in that case. One of the reasons which the court assigned why Allen was not entitled to anything was, that “the state received nothing, but, on the contrary, incurred expense, by reason of his arrest, trial and imprisonment,” which reason does not exist in the case at bar. The appellant
Viewing the matter from the "standpoint of the people — the tax-payers — there is an important, practical distinction, financially, between punishment by imprisonment and punishment by fine. In the case of imprisonment, in the event of an appropriation being made for the benefit of the person who has suffered, the money must necessarily be raised by taxation, i. e., paid by the people; while in the case of a fine, the appropriation is simply a refunding of the money to the person who paid it into the treasury, which does not involve a question of taxation or payment by the people.
State v. Railroad did not involve any question such as we are called upon to determine in this appeal. In that case it appears that after the court had entered judgment requiring the respondent to construct a certain bridge over its railroad, the legislature passed an act providing that no structure should, be built over any railroad, until the railroad commissioners should have determined the length, width, material and plan of the structure, its height above the roadbed, and the necessity for its construction. An alternative writ of mandamus having issued to compel the respondent to construct the bridge in question, respondent moved to quash the writ on the ground, inter alia, that the railroad commissioners had not determined the matters required of them by the statute. The court overruled the motion and issued a peremptory writ. The respondent appealed. The appellate court in affirming the action of the- lower court held, “that inasmuch as the language of the Act did not expressly nor by necessary implication malee it applicable to pending cases — much less to cases already adjudicated — the Act could not be construed to affect such cases. Whether the legislature has the power, under the Constitution of this State,
Haley v. Clark, was an application for a writ of mandamus to compel Clark, as county treasurer, to- pay to Haley and three others the sum of $500, which he was directed, to pay to- them by an act. of the legislature, entitled, “An act for the relief of securities of John Douglass, late clerk of the Circuit Court of Marion County.” Clark demurred on the ground that the act was unconstitutional. The demurrer was sustained and the applicants for the writ appealed. Douglass, by reason of some delinquency, became liable to a fine of $500, for the payment of which, the appellants were his sureties. Douglass having failed to pay the fine the sureties paid it. The' case does not disclose upon what grounds the act was based. It is evident, however, that it was not founded upon any equitable or moral obligation, such as exist in the case at bar. So far as we are able to gather from tine language of the case, the act was a mere gift, “a donation,” as counsel for the appellant admitted. The court, however, proceeded upon the theory that the act in question was an attempt to remit a fine, that is to exercise the pardoning power. Assuming that no pardon had been granted in that case, the stain and stigma of the offense, of course, remained. This could only be removed by a full pardon, and thus an attempt to “remit” the fine was an attempt to exercise some part or all of the pardoning power. But where a full pardon has been granted there remains no stain, no stigma, no penalty, no fine — all have been remitted — although the money paid as a fine may have passed beyond the reach of the pardoning power, and for that reason cannot be refunded, except by an act. of the legislature. In the case at bar there remains no fine to. remit, that was included in the pardon. The money paid as a fine, however, can and should be refunded by authority of the
Mr. Justice Perry also cites Haley v. Clark. Therefore, what I have to say on the point suggested by that case may be stated now; and in this connection I cite Cook v. Freeholders of Middlesex, 26 N. J. L. 326, 328, wherein the court said: “There is no doubt that the word remit is sometimes used in the sense of return or restoration, though in this sense Dr. Johnson says that the word is obsolete. So in case of ‘remitter’ it is said, by Blaekstone, that the party is remitted, or sent back by operation of law to his ancient and more certain title. 3 Black. Com. 20. But as applied to the penalty of crime, the word has a totally different signification. It is used as equivalent to pardon or discharge from the penalty of transgression. ‘To remit’ is defined by our best lexicographers to be to forgive, to pardon, to release from punishment or penalty. It is so uniformly used in that rich mine of pure Anglo-Saxon, the English translation of the New Testament, numerous instances of which will occur to every familiar reader of that volume. Thus in John XX.: 23, ‘whomsoever sins ye remit they are remitted.’ It is used by legal writers to import discharge from the penalty of transgression. In this sense, Blaekstone uses it when he says the punishment of the offender may be remitted and discharged by the concurrence of all parties interested. 4 Black. Com. 316. Pardon, in the law, is the remitting or forgiving of an. offense committed against the King, Jacobs Law Diet., ‘Pardon.’ A full and free pardon in itself, necessarily involves a remission of the penalty of the crime. Hawk., b. 2, 31, §48. It is absurd to think of a man’s being pardoned, and yet left to pay the fine, to suffer imprisonment, or to endure any of the penalties of his transgression, subsequent to his pardon.”
The legislature in the enactment of the statute before us did not attempt to give or donate money to Mr. Cummins as a mere gratuity; nor did it attempt to remit a fine; nor did it attempt
Whether the claim was founded on the broad principles of equity and natural justice, and should or should not have been recognized, was a legislative and. not a judicial question. The legislature having determined this question, the judiciary is bound. Courts have no more right to review the exercise of legislative discretion than the legislature has to meddle with the judgments of the courts. Each, within its own province, is supreme and independent, and neither is answerable to the other for its .errors or failure to fulfill its mission in the governmental scheme.
The claim in question being founded upon equity and natr ural justice, it was within the power of the legislature to recognize it as a debt due from the people to' Mr. Cummins. In United States v. Realty Co., 163 U. S. 427, 440, the court said: “Under the provisions of the Constitution, (article 1, section 8,) Congress has power to lay and collect taxes, etc., To pay the debts’ of the United States. Having power to raise money for that purpose, it of course follows that it has power when the money is raised to appropriate it to the same object. What are the debts of the United States -within the meaning of
Cooley on Taxation (pp. 69, 91), lays down the same broad, humane principles, as expressed in the case just cited. See also Brewster v. City of Syracuse, 19 N. Y. 116; United States v. Weld, 127 U. S. 51; Williams v. Heard, 140 U. S. 529; Comegys v. Vasse, 1 Pet. (U. S.) 193; Emerson v. Hall, 13 Pet. (H. S.) 409; United States v. Jordan, 113 U. S. 418; Booth v. Town of Woodbury, 32 Conn. 118, 128; Agnew v. Brall, 124 Ill. 312, 316; Blanding v. Burr, 13 Cal. 343, 354; In re Flournoy, Atty.-Gen., 1 Ga. 606; Cook v. Freeholders of
As to the pardoning power, I agree with Mr. Justice Perry, that it is vested in the executive and cannot he exercised by either of the other departments of the government.
Mr. Cummins having paid the fine imposed upon him and the money with which the fine was paid having been covered into the treasury, he was subsequently granted a full pardon.
“A pardon is an act of grace which proceeds from the power intrusted with the execution of the laws, and exempts the individual on whom it is bestowed from the punishment which the law indicts for a crime that he has committed.
“A-pardon is full or absolute when it freely and unconditionally absolves the party from all the legal consequences of his crime and his conviction, direct*and collateral; including the punishment, whether of imprisonment, pecuniary penalty, or whatever else the law has provided.” 24 Am. & Eng. Ency. Law (2d ed), 551; 29 Oyc. 1559, 1566.
While a full pardon puts an end to all further punishment, it does not afford any relief for what has been suffered (29 Cyc. 1567), because a pardon is not restrospective, it does not operate upon that, part of the sentence which has been executed. But it blots out the crime and removes the stain and stigma of the offense committed. A fine, if it has not been paid into the treasury, i. e., if it remains within the scope of the pardoning power, it is impliedly remitted, forgiven, as an incident to- the pardon. If, however, the fine has been p^id into the treasury, obviously, it has passed beyond the power and control of the executive to refund., athough the crime, of which it was an incident, has been absolutely obliterated — every stain of it washed away. “A pardon is an act of grace by which the offender is released from the consequences of his offence, so far as such release is practicable and within control of the pardoning power.” Ill. Cent. R. R. v. Bosworth, 133 U. S. 92, 104. On the other hand, should the legislature, before the fine is paid into
The cases cited by Mr. Justice Perry on this phase of the question are, as it seems to me, clearly distinguishable from the case at bar. Many of the observations there expressed I accept unhesitatingly.
In Singleton v. State, 34 L. R. A. 251, the legislature attempted to restore to Singleton, who had been convicted of the crime of larceny, his civil rights. The mere statement of this proposition shows that the legislature attempted to exercise the pardoning power.
In State v. Sloss, 25 Mo. 291, the legislature attempted to release Sloss, as well as others, then indicted for certain offenses. Obviously, this was an unconstitutional act.
In State v. Fleming, 26 Tenn. 151, the legislature, by resolution, attempted to discharge Fleming and another who were indicted for selling spirituous liquors. Comment is unnecessary.
In Baldwin v. Scoggin, 15 Ark. 427, two persons had been fined in a certain sum for which a promissory note had been given and before its payment the governor pardoned the defendants, thus remitting the fine, which, of course, had not passed into the treasury, but remained under'his control. As the court said in that case, ■ “a note so given and received in such case, being no payment or satisfaction, the fine had not
State v. Nichols, 26 Ark. 74, does not seem to have any bearing upon any phase of the question before us for consideration. The court indulges in quite a lengthy discussion as to the pardoning power not naturally or necessarily being an executive function.
In Ogletree v. Dozier, 59 Ga. 800, it appears that one Moore had. been sentenced “to work on the chain-gang.” The county commissioners, under an act of the legislature, hired him to Ogletree to work on his plantation, or elsewhere, at Ogletree’s pleasure. Ogletree demanded Moore from the sheriff, who refused to give him up. Ogletree brought habeas corpus. The court held that the act of the legislature, so far as it permitted the change of the sentence of the court from work on the chain-gang to the hire of the convict to a private person for private work, was unconstitutional.
Rich v. Chamberlain, 104 Mich. 436, simply shows that an act of the legislature, which provides for an “Advisory Board in the Matter of Pardons,” and determines its powers and duties is not in conflict with section 11, art. 5, of the Constitution, which vests the pardoning power exclusively in the governor, “subject to regulations provided by law relative to the manner of applying for pardons.”
Forsyth v. County, 141 N. Y. 288, merely holds that a statute which in terms authorizes courts of criminal jurisdiction to suspend sentence in certain cases, is not violative of the provision of the state constitution (§5, art. 4) giving to the governor the power to grant reprieves and pardons. See Rep. Haw. v. Pedro, 11 Haw. 287; R. L. Chap. 184.
In State v. Kirby, 51 So. 811, held that an act authorizing the board of supervisors to discharge a convict from jail, if unable to labor from bodily infirmity, violates the constitution which confers upon the governor the sole power to pardon.
Having examined other cases cited and feeling that they are not in conflict with the views which I have endeavored to set