The State . Nichols.

[DECEMBER exercised from time immemorial by the executive of that nation, whose language is our language, and to whose judicial institutions ours bear a close resemblance. * * * A pardon is an act of grace, proceeding from the power entrusted with the execution of the laws, which exempts the individual from the punishment the law inflicts for a crime he has committed."

"It is the private, though official act of the executive magistrate, delivered to the individual for whose benefit it is intended," etc.

Judge TANEY, who was then acting as Attorney General, said: "The pardoning power, under the Constitution, is the executive power." See also, Opinions of United States Attorney Generals, vol. 6, pp. 20, 39 and 488, and vol. 10, p. 455.

In the case of Garland, ex parte, 4 Wal., 380, the Supreme Court say: "The pardoning power of the President is not subject to legislative control. Congress can neither limit the effect of his pardon, nor exclude from its exercise any class of offenders," etc.

Thus, under the clause of the Federal Constitution merely granting the executive the right to pardon, the Supreme Court held that the pardoning power is vested in him, and cannot be limited or controled by Congress.

We are aware that it is urged that Congress has only delegated powers, and is therefore limited strictly to the grant. On the other hand, State Legislatures are limited by their Constitutions providing that they shall not exercise any of the powers belonging to the executive or judicial departments of the government: "No person or collection of persons, being of one department, shall exercise any power belonging to either of the others," and the source is immaterial, so there is a limitation upon legislative action.

Our own Supreme Court, in the case of Baldwin v. Scoggin, 15 Ark., 432, through Chief Justice ENGLISH, said: "The framers of our Constitution have intrusted the pardoning power to the Governor," etc. This court did not then seem to think the Legislature shared in that power.

We hold the Legislature can pass rules regulating executive action, just as they regulate proceedings in court, but the power to pardon is in the executive, and in the other case the power of rendering judgments and ordering executions is in the courts, and therefore excluded from the Legislature.

As stated by a majority of the court, the Legislature of Tennessee passed a law, subjecting persons to indictment and fine for retailing liquors. In 1846 the Legislature passed another act allowing persons, upon certain conditions, to retail liquors, and subsequently passed a resolution declaring that no fine or forfeiture or imprisonment should be imposed or recovered, for the offense of retailing under the former act of 1837, and that all causes pending in any of the courts for such offense should be dismissed. The circuit court vacated a judgment that had been published, and the Attorney General appealed, and the Supreme Court of that State said: "The question presented for our consideration is, whether the resolution of the Legislature, passed in 1846, is a constitutional exercise of power, and we think it is not. The question reduced to simplicity is this: Can the Legislature, by resolution, direct that an individual who stands charged with crime in a court of justice, be discharged therefrom? The mere statement of the question, it seems to us, answers it, necessarily, in the negative. The powers of the State of Tennessee are vested in legislative, executive and judicial departments, each separate and distinct from the other, with their power and duties well defined by the Constitution, and by which each is kept within its appropriate sphere of action.

"The Legislature can make the law, but the courts must expound it, and execute it, with the aid of the executive, when his action may become necessary for that purpose.

"The Legislature has no power to interfere with the administration of justice, either civil or criminal, in the courts. A resolution that a criminal or class of criminals shall be discharged by the courts is then necessarily, an assumption of power not warranted. After conviction the Governor may

The State v. Nichols.

[DECEMBER

pardon, but before conviction, the Attorney General and the court are the only power that can discharge without acquittal, and this by nolle prosequi. We are, therefore, constrained to hold that the resolution under which these defendants claimed their discharge is void, for want of power in the Legislature to pass it."

These courts give reasons why this legislative power is inhibited, but in each one the judgment goes to the vital question and decides that a Legislature has no power to pass an act of pardon.

A constitution or a law must be construed as a whole, and not by separate clauses, and when the constitution said the executive shall exercise a pardoning power, if it had there stopped we could have agreed, but it further says, in effect, no other department of the State government shall exercise any of the powers exercised by the executive. Then we say the others are excluded. So, in the case of Tucker, ex parte, if the Constitution that said justices of the peace shall have jurisdiction in cases of misdemeanors, had in some other clause said, where justices have jurisdiction no other court shall take jurisdiction, then we would have held quite differently.

But it is said, the Legislature here pardoned before conviction and the Governor pardons after conviction. This does not change the proposition. Both are pardoning powers-the Legislature is using a pardoning power, and the Governor a pardoning power-when the Constitution declares, that the same power shall not be exercised by persons belonging to different departments of government, meaning, beyond question, that the powers of the different departments shall not be blended.

Now, it will be seen by an examination of the various cases in Missouri, Tennessee and Alabama, that those courts did not base their decisions upon the question of time, as to when the offense was committed, or whether an indictment or conviction had been had. Some of the circumstances in each case are alluded to in the arguments of the judges, but upon the

TERM, 1870.]

The State v. Nichols.

main question they move up like men conscious that they are armed with the right, and declare that the Legislature has no power to pass acts of pardon, because, so far as the people have granted that power, it has been conferred upon the executive, and the same function cannot be exercised by two departments of the State government.

It seems to me that these cases are entitled to great weight, especially so, when not a single case has been cited to the contrary. I have carefully searched our voluminous library, to say nothing of the more diligent and efficient examination of the majority of the court, and not one case can be found where any Supreme Court has sustained a law granting pardons by legislative action.

Now, I repeat, if two branches of the State government cannot exercise the same functions, and the Constitution says they shall not, and the pardoning power is a function of government, I cannot see how the executive and Legislature can both pardon; and if the Constitution, in the clause referred to, had said the different departments of the government shall not at the same time exercise the same power, I could see some force of argument in the position of the majority; but it does not so ordain; and, with good authority to the contrary, and none to support what seems to me a misinterpretation of our Constitution, I cannot agree.

[DECEMBER

Hardy's Exr's. ex parte.

HARDY'S Exr's. Ex parte.

PRACTICE-Remittitur.-The rule adopted in Fowler v. Johnson, 11 Ark. 280,

affirmed.

Remittitur must be entered before cause disposed of, on appeal or writ of error, by this court.

The judgments of a court, after its adjournment, pass from under its control.

Motion to enter Remittitur.

J. L. Witherspoon, for petitioners.

WILSHIRE, C. J.

At the present term of this court the appellees in the cause of Ayliff v. Hardy's Executors, decided the judgment reversed and the cause remanded at the December term of this court, 1867, moved for leave to enter a remittitur for the excess of damages found by the jury in the Clark county circuit court, which was the sole error for which the judgment was reversed. and the cause remanded.

The rule was adopted by this court in the case of Fowler v. Johnson, 11 Ark. 380, that "where a remittitur will cure the only error complained of, it shall be allowed to be entered upon the terms of paying costs, as usual, and also of an abandonment of record of all right to proceed on the recognizance, whereupon the judgment will be immediately affirmed." This rule has been adhered to by this court in all cases since its adoption.

It must be observed that the remittitur must be entered before the cause is disposed of, upon the appeal or writ of error by this court. No other conclusion than this can be drawn from the language of the rule. The language of the rule is substantially that, upon the remittitur being entered, the right to proceed upon the recognizance, abandoned of record by the appellee, the judgment will be immediately affirmed. Then,