State v. Sloss

Scott, Judge,

delivered the opinion of the court.

In 1857 the general assembly passed an act to the purport that all persons in the state of Missouri, who are now indicted for the violation of the act to regulate dram-shops committed before the 15th December, 1856, be and they are hereby released from said prosecution ; provided each individual shall pay all the costs in said case, and a fee of two dollars to the circuit attorney.

The defendant was one of the individuals embraced within the purview of this act, and produced to the court satisfactory evidence that he had complied with the conditions of its proviso, and thereupon, upon his motion, the court dismissed the cause and entered judgment for the defendant. To this action of the court below the State excepted and took an appeal to this court.

The powers of the general assembly are not unlimited. All the departments of our' government are confined in their operations. They have prescribed limits, which they can not transcend. The union of the legislative, executive and judicial functions of government in the same body, as shown by experience, had been productive of such injustice, cruelty and *294 oppression that the framers of our constitution, as a safeguard against those evils, ordained that the powers of government should be divided into three distinct departments, and that no person charged with the exercise of powers properly belonging to one of these departments should exercise any powers properly belonging to either of the others, except in the instances expressly directed or- permitted by the constitution.

Although questions have sometimes arisen whether a power properly belonged to one department of government or anther, yet there is no contrariety of opinion as to the department of the government to which the power of pardoning offences properly appertains. All unite in pronouncing it an executive function. So the framers of our constitution thought, and accordingly vested the power of pardoning in the chief executive officer of the state.

There can be no question as to the nature of the act under consideration. It is as effectually a pardon as though it were one in form under the great seal of the state. Its being clothed with the forms of legislation can not vary its nature and effect. If such laws are warranted by the constitution, it is plain that the power of granting pardons is as fully in the general assembly as though it had been in express terms conferred on that body. The exercise of power involved in the passage of the act under consideration is not to be likened to that exerted in passing laws releasing sheriffs, collectors and others from forfeitures incurred for failing to collect and pay over the public money. The existence of such a power is incident to the relation of creditor and debtor and to the authority to pass laws for the management of the public revenue. The operation of the act under consideration is confined entirely to the release of individuals from prosecution who stand indicted for offences. That is its sole object. The justice or propriety of the act of pardon has nothing to do with the question of its constitutionality. We are not to presume that the governor, under suitable circumstances, will not exercise the power with which he has been clothed by the *295 constitution. He is the sole judge of the propriety of granting a pardon. The conditions prescribed in order to obtain the benefit of a release under the act do not the less make it a legislative pardon; they only change it from an absolute into a conditional pardon.

The time at which the act was passed renders it obnoxious to the objection that it interferes with the judicial department. The act, before trial and conviction, directs the disposition that shall be made of the cause. Where is the warrant in the constitution for the general assembly to direct what disposition shall be made of causes depending in the courts ? Is not the exercise of such a power a judicial function ? The governor can pardon both before and after conviction. His pardon before conviction being pleaded would be a defence to the accusation. Here is a prosecution depending in court and the legislature comes in and orders the party to be released from it. What is that in effect but entering a judgment of acquittal ?

In the case of the State v. Fleming, 7 Humph. 152 , a law very similar in its effects to that under consideration was examined, and the court did not doubt but that it was unconstitutional. Judgment reversed, and cause remanded;

Judge Kyland concurring ; Judge Leonard absent.