State ex rel. Kansas City v. Renick

157 Mo. 292 | Mo. | 1900

VALLIANT, J.

This is an original suit in which relator, Kansas City, seeks a writ of mandamus to require the defendant, who is the clerk of the criminal court of Jackson county, to issue an execution on a judgment in favor of relator against one E. A. Stevens.

It appears from the record that one Carrie Neal was convicted and sentenced in tbe police court of Kansas City for violating a city ordinance, and appealed to tbe criminal court of Jackson county giving an appeal bond with E. A. Stevens as ber surety. Tbe cause came on for trial in tbe criminal court, wbicb resulted, on September 3, 1890, in a conviction of Neal, sentence of a fine of $500 and judgment for tbat sum against ber and ber surety in favor of Kansas City. On appeal tbe judgment was affirmed by tbe Kansas City Court of Appeals [Kansas City v. Neal, 49 Mo. App. 72.] Then Stevens brought suit in equity to vacate it, wbicb suit was decided against bim in tbe circuit court, and on appeal tbat judgment was affirmed by tbis court. [Stevens v. Kansas City, 146 Mo. 460.] Then, upon tbe application of Stevens, tbe Governor of Missouri issued bim a pardon purporting to remit tbe judgment as to bim and relieve bim of its burden. Tbis document was presented to tbe criminal court of Jackson county, on January 19, 1899, and thereupon tbat court entered an order reciting tbe alleged pardon and declaring tbe judgment for tbat reason to be of no further force against Stevens. On tbe 23d of December, 1899, tbe plaintiff in tbe judgment, relator here, applied to tbe clerk of tbat court, tbe defendant here, to issue execution, wbicb be refused, and thereupon tbe relator instituted tbis suit to compel bim to do so. Defendant in bis return pleads to tbe jurisdiction of tbis court, invoking tbe provisions of section 12, article 6, of tbe Constitution. • Tbis suit requires a construction of tbe provisions of section 8, article 5, of tbe Constitution in relation to tbe pardoning power of tbe Governor, and therefore on tbat ground tbis court has jurisdiction of tbe cause. But independent of tbat question, tbis court has jurisdiction. Tbe power to issue original remedial writs, as they were known at common law, is conferred on tbis court by section 3, article 6, and is entirely independent of the provisions of section 12 of tbe same article.

It is said in the return that this suit is not of sufficient importance to justify the attention of this court. When the judiciary is required to pass judgment on the validity of an act of a co-ordinate branch of the government, challenged as being in conflict with the Constitution, it exercises the very highest duty entrusted to it, and the most important.

The point is also made that the relator has other full remedy at law. The only remedy besides that here sought, is hy suit on the clerk’s official bond, which is far more dilatory, liable to more contingencies and therefore not as adequate as this.

The return states that the relator has too long delayed asking for this remedy, the judgment having been rendered in September, 1890, and the application for the execution having been delayed until December, 1899. The record, however, shows that during those years the judgment debtor was engaging the relator in litigation affecting the validity of the judgment and it was not until the decision of this court in December, 1898, in Stevens v. Kansas City, supra, that the relator was free to demand a fieri facias of his judgment. But the defendant as clerk of the court has nothing to do with that question; if the judgment creditor asks execution on his judgment within the period of the statute of limitations, it is no concern of the clerk’s that the request may have been delayed, and for that matter it would be no defense on the part of the judgment debtor.

The return avers that it does not appear on the face of the alternative writ that the judgment has not been satisfied by the principal Neal; but that is a mistake of fact. It is averred in the writ that the judgment is in full force and unsatisfied.

The objections that the criminal court has not ordered tbe execution to issue and that in January, 1899, it entered an order vacating tbe judgment are without force. Tbe judgment itself is an order for its execution, and after tbe term bas passed, it is beyond tbe power of tbe court to vacate it.

Tbe objections urged against tbe validity of tbe judgment bave all been ruled upon in favor of tbe relator by tbis court and by our Kansas City Court of Appeals in tbe cases above cited.

There remains but one question for us to decide, and that is in relation to tbe validity of tbe alleged executive pardon.

Tbe judgment was for a fine imposed under and for violation of a city ordinance. Tbe suit arose in a city court and came by appeal into a State court. It involved no question of a violation of a law of tbe State. It was in effect and in form a judgment for the recovery of five hundred dollars in favor of Kansas City, and in which tbe State bad no interest whatever. We bave been referred to no case as a precedent for authority in a Governor to pardon one convicted of violating a city ordinance, and in a search made by us we bave found none. We find authority for tbe general proposition that tbe pardoning power of tbe State executive reaches only to matters in which tbe State is interested. [Pomeroy Const. Law, sec. 682; Shoop v. Commonwealth, 3 Pa. St. 126.] But if tbe precise question in tbis case bas ever been decided, we bave not seen tbe decision.

Under our Constitution tbe pardoning power is conferred in section 8, article 5, in these words: “The Governor shall bave power to grant reprieves, commutations and pardons, after conviction, for all offenses, except treason and cases of impeachment, upon such condition and with such restrictions and limitations as be may think proper, subject to such regulations as may be provided by law relative to tbe manner of applying for pardons. He shall, at each session of the General Assembly, communicate to that body each case of reprieve, commutation or pardon granted, stating the name of the convict, the crime of which he was convicted, the sentence and its date, the date of the commutation, pardon or reprieve, and the reason for granting the same.”

The term “offenses” as there used, means violations of State laws; the context forbids any other interpretation. That there is a well-recognized distinction between the nature of offenses which consist in violation of city ordinances and of those which consist in the violation of a State law is pointed out in Dillon on Municipal Corporations (4 Ed.), sec. 429, and the nature of the proceeding to recover the fine or penalty for violating an ordinance, and the character of court in which the proceeding may be had is shown. The nature of the proceeding and the character of the judgment, is also shown in Stevens v. Kansas City, above referred to. The section of the Constitution conferring this power, requires the Governor to communicate to the General Assembly every act of his under that section “stating the name of the convict, the crime for which he was convicted,” etc. That language clearly indicates that the. framers of the Constitution had in mind only offenses against the State law.

In this instance the Governor did not pardon the person who had violated the ordinance but only essayed to remit the penalty in so far as it was a judgment against the surety. But even if the so-called pardon had extended to the “convict,” it would have been invalid. The Governor of the State can pardon only those who are convicted of the violation of State laws. The pardon pleaded in the return is invalid.

The peremptory writ is awarded as prayed.

All concur.