Horton v. Gillespie , 170 Ark. 107 ( 1926 )

On October 29, 1925, appellee was confined in the State Penitentiary, serving a sentence which had not then expired. On that date, the Governor of the state being absent therefrom, the functions of Governor were being discharged by the President of the Senate as acting Governor, and, while so acting, he granted appellee a "full and free pardon." After reciting appellee's conviction, and the time of his sentence, it was recited in the pardon that, "by virtue of the authority vested in me by the Constitution of the State of Arkansas I do hereby grant to the said W. W. Gillespie a full and free pardon of, for and from the said offense of grand larceny of which he was convicted as above set forth, fully pardoning and absolving him of and from the said judgment and all the effects and consequences thereof." This pardon was duly filed in the office of the Secretary of State, and was recorded there in the record which that officer is required to keep.

Upon the return of the Governor of the State to the State he ordered the recapture of appellee, who, pursuant to the pardon, had been released from the custody of the penitentiary authorities, and, upon appellee being retaken by the penitentiary authorities, he brought habeas corpus to obtain his release. The chancery court held the pardon was valid, and directed that appellee be discharged from custody, and from this decree the warden of the penitentiary, the officer having appellee in custody, has appealed.

It was shown by appellee at the hearing from which this appeal comes that, on the day before the hearing, and while the Governor of the State was within the State and discharging the functions of his office, a notation was made on the pardon by the President of the Senate reading as follows: "I, S. B. (Pete) McCall, hereby state that this pardon to W. W. Gillespie was granted by me without application being made to me by an attorney or paid representative of W. W. Gillespie." This notation did not appear on the pardon when it was granted by the acting Governor, and does not appear in the pardon as recorded in the office of the Secretary of State.

The question presented for decision is, of course, the validity of the pardon.

It may be first said that pardons are to be liberally construed in favor of the pardonee, and that there is a presumption in favor of their validity. There is some conflict in the authorities as to the extent to which this presumption is to be indulged and as to the character of the proceedings in which the question of its validity can be raised, but we think this question can be raised in a proceeding by habeas corpus where the pardonee asserts his immunity from the consequences of the judgment from which the pardon attempts to absolve him. It may be said, in this connection, that much of the apparent conflict in the authorities arises out of the language of the provisions of the Constitutions of the different States on the subject of pardons.

It appears that in the Constitution of the United States and in the Constitutions of all of the States provision is made whereby this right may be exercised. These provisions vary widely, and the value of any particular decision depends on the similarity of the Constitutions construed to our own.

The most elaborate opinion on the subject to which our attention has been called is that of Jamison v. Flanner,116 Kan. 624, 228 P. 82, 35 A.L.R. 973. The opinion in this case by the Supreme Court of Kansas evidences the most exhaustive examination of the subject of the pardoning power, and in the opinion it was stated that this was done because of "the loose notion which sometimes prevails that the pardoning power is an executive power, to be exercised by the Governor in his discretion, and that no other official or department of the government can interfere with it," but the review of the cases there made, both State and Federal, shows incontrovertibly that, as was there said, this "is so only when made so by the Constitution."

The provision of our own Constitution on the subject, which is similar to that of the State of Kansas, is found in 18 of article 6, and reads as follows: "In all criminal and penal cases, except in those of treason and impeachment, the Governor shall have power to grant reprieves, commutations of sentences and pardons after convictions, and to remit fines and forfeitures, under such rules and regulations as shall be prescribed by law."

The remainder of this section of the Constitution need not be quoted here, but it may be said that the last sentence of this section of the Constitution requires the Governor to communicate to the General Assembly at every regular session each case of reprieve, commutation, or pardon, with his reasons therefor, stating the name and crime of the convict, the sentence, its date, and the date of the commutation, pardon or reprieve. This provision contemplates that a record of some kind shall be kept whereby this information may be supplied for the use of the General Assembly.

At the 1903 session of the General Assembly of this State an act was passed entitled, "An act to regulate applications for pardons." Act 154, Acts 1903, page 270. It reads as follows:

"Section 1. The Governor is hereby prohibited from considering or granting any application for pardon, or remission of forfeiture of bail bond, until there is filed in his office a certificate of the county clerk, or the affidavit of two persons known to be credible, that the application for such pardon or remission of forfeiture has been published as hereinafter provided.

"Section 2. In application's for pardon in all cases of convictions for felony, and the offenses of wife-beating, unlawful carrying of weapons and the unlawful sale of liquors, the application setting forth the grounds upon which the pardon is asked, together with a list of the signers or petitioners uniting in the request for pardon, shall be published for two insertions in a weekly newspaper, if one be published therein, in the county where the conviction was had, or if the conviction was had in a county other than that in which the offense took place, then in the county where the offense was committed, in addition to the county where the conviction was had.

"Section 3. In all cases of conviction for offenses other than those above mentioned, the publication of the intended application shall be made by posting the application, containing a statement of the grounds upon which the pardon is asked, as well as a list of the signers to any petition asking that the same be granted, in front of the usual entrance door of the courthouse of the county or counties, as above provided, for the period of ten days prior to the presentation of such application to the Governor.

"Section 4. In all cases where it is made to appear to the satisfaction of the Governor that the person or persons interested, or concerned in any way, in the preparation or presentation of such application as attorney, agent or otherwise, have become so interested therein, and are actually rendering services in the prosecution thereof without fee, or the contract therefor to be afterwards paid or secured, and that the person whose pardon is asked, or relative's upon whom he can call for assistance in promoting his application, are not financially able to pay the expense of such publication, then he shall have the discretion to consider and grant such application without requiring the proof of publication herein provided for. And the Governor, acting upon his own motion, or being prompted thereto by the result of investigations made at his instance, shall have the right to grant a pardon in any case without the publication provided for herein; but all such pardons so granted by the Governor shall state on the face of the certificate thereof that the same was granted by the Governor without application therefor being made to him by any attorney or paid representative of the person pardoned."

Section 5 imposes penalties upon persons presenting applications for pardons, etc., without complying with the provisions of the preceding sections. See Crawford Moses' Digest, 3370-3374.

We set out the act in full because it has never been construed by this court, and it is necessary to consider it in its entirety to determine: (a) its constitutionality; (b) the extent to which the power to pardon has been restricted; and (c) the applicability of the provisions of the act to the facts in this case.

The portion of 18 of article 6 of the Constitution of 1874 set out above comprising the first sentence of that section is substantially identical with the provisions on that subject found in the previous Constitutions of the State, except that of 1868.

It is apparent, of course, that the power to pardon is conferred on the Governor by the Constitution except in cases of treason and impeachment, and that it was not essential that any legislation be passed to make this power effective. In the absence of legislation the Governor might have exercised the power conferred in any manner he pleased, and might have prescribed any rules or regulations concerning its exercise which he thought would be helpful to him. But the Governor was not given the absolute power to grant reprieves, commutations, or pardons, but was given this power "under such rules and regulations as shall be prescribed by law."

Legislation which denied the right to pardon except in cases of treason and impeachment, or which so hampered the right as to make the power substantially unavailing, would be void as an abridgment of the power conferred. But the very sentence of the Constitution which conferred the power also gave the Legislature the right to regulate its use.

This limitation has been frequently recognized and declared. At page 161 of Cooley on Constitutional Limitations (7th ed.) there is a note which reads: "The power to pardon offenders is vested by the several State Constitutions in the Governor. It is not, however, a power which necessarily inheres in the executive. State v. Dunning, 9 Ind. 20. And several of the State Constitutions have provided that it shall be exercised under such regulations as shall be prescribed by law. There are provisions more or less broad to this purport in those of Kansas, Florida, Alabama, Arkansas, Texas, Mississippi, Oregon, Indiana, Iowa and Virginia."

In the early case of Baldwin v. Scoggin, 15 Ark. 427, this court said: "The framers of our State Constitution have entrusted the pardoning power to the Governor, but thought proper to preserve to the Legislature the right to regulate its exercise." In that case it was also said that the failure of the Legislature to regulate the exercise of the power would be rather an indication of confidence in the sound discretion of the executive than of a disposition to deny him the right to exercise the prerogative. It was there further said: "We are of the opinion therefore that the Governor has the power to remit fines under the provision of the Constitution above copied; and, until this power is regulated by law, may exercise it according to his own sound discretion."

In the still earlier case of Ex parte Hunt, 10 Ark. 284, a pardon was granted which contained the condition that the pardonee should depart without delay from the State. At that time there was a statute giving the Governor the right to grant a pardon on condition that the pardonee should depart from the State and not return (3375, C. M. Dig.). The pardon to Hunt stipulated only that he should "depart without delay," but did not state that he should not return, as the statute authorized the Governor to provide. It was insisted that the pardon was void because it did not recite the condition that the pardonee should not return. The court disposed of this contention by saying: "By comparing the condition's annexed to the pardon in this case with these provisions of the law, it will at once be seen that the executive clemency was exercised under his general discretionary power, not this latter special statutory clause. This is evident, because the terms annexed to the pardon are clearly within the power conferred to grant pardons prescribing his own terms, and cannot be made to apply to the latter clause for the obvious reason that the statute having specifically defined the conditions, terms, and penalties for a violation of that clause, the executive has no discretion in regard to such punishment, and, when he designs to act under it, must adopt its provisions. The fact therefore that he did not conform to this latter statute must be taken as strong evidence that he did not intend doing so. If he did, however, and has inadvertently omitted part of the provisions of the law in the condition annexed to his pardon, we are not at liberty, by presuming what his intention might have been, to impose other and different terms upon the convict than the language used imports. Penal laws are ever construed strictly and in favor of liberty. (United States v. Wilson Porter, 1 Bald. C. C. R. 78); and pardons are to be construed most favorably to the convict. 4 Blackf. 401; 1 Chit. Cr. Law 772."

In other words, the right of the Legislature to prescribe regulations, and the duty of the Governor to follow them, were declared, but, inasmuch as the Legislature had not then attempted to exercise its right to regulate in all cases, the presumption was indulged that the Governor had acted pursuant to his general power, which gave him the right to impose conditions, and not pursuant to the statute which exercised of part only of the power of regulation conferred on the Legislature by the Constitution. We shall later see that the act of 1903, which is now the law, is much more comprehensive in the matter of regulating the exercise of this power by the Governor.

The case of State v. Nichols, 26 Ark. 74, was one in which the nature of the power to pardon and the right of the Legislature to regulate was thoroughly considered. After discussing the nature of the Constitution of a State and of the restrictions imposed by the Constitution of the United States, it was said: "So long as the people do not infringe upon the power already delegated to the general government, they are fully authorized to deposit the power in such branches as to them may seem best. To illustrate: They had the right to withhold all pardoning power from any one of the three branches (of government); or, on the other hand, they had the right to vest the pardoning power in either the legislative or judicial branches of the government.

"The executive no more represents the sovereignty of the State than either one of the other branches of the State Government. The pardoning power no more vests in the Governor, by virtue of his position, than it does in the judicial branches of the government, when the Constitution is silent." It was there further said that "the chief duty of the executive is to see that the laws are executed, and, where the power to dispense with the execution of the law is given him, it should not be extended by implication. The power of dispensing with the law and its penalties partake more of a legislative than of an executive character."

It is argued, however, that, inasmuch as the case of Baldwin v. Scoggin, supra, was decided while the Constitution of 1836 was in effect, the force of that decision is destroyed by the differences between our present Constitution of 1874 and our first Constitution of 1836. The difference is that a comma appeared after the word "conviction" in the Constitution of 1836, whereas in the Constitution of 1874 a semicolon appears after the word "conviction," and it is argued that the effect of this punctuation was to change the meaning of the Constitution so as not to give the Legislature any right to prescribe regulations as to applications for pardons "in all criminal and penal cases."

We concur, however, in the view expressed by counsel for the State in their brief that the framers of the Constitution would not have relied upon a mere change in punctuation to effect an entirely different policy in a matter of this importance, and we are of the opinion that this slight change in punctuation does not warrant us in departing from the construction given the earlier constitution.

We discussed the effect of this change of punctuation in the case of Hutton v. McCleskey, 132 Ark. 391, where we said: "The fact that a semicolon follows the word ``conviction,' instead of a comma, as in the similar clause in the Constitution of 1836, cannot be treated as altering the meaning of the sentence. If we failed to so interpret the whole sentence, it would confine the concluding phrase, ``under such rules and regulations as shall be prescribed by law,' entirely to the preceding words concerning the remission of fines and forfeitures, and exclude the power of the lawmakers to prescribe rules and regulations concerning reprieves, commutations and pardons, a power which was clearly recognized by this court in the case of Baldwin v. Scoggin, supra."

We conclude therefore that the act in question is constitutional, and that the power of the Governor to pardon is not absolute, but is subject in its exercise to such regulations as the Legislature may see proper to impose and which do not substantially deprive the chief executive of this power.

It is apparent that the regulations of the act of 1903 are simple and can be easily complied with. An analysis of the act readily demonstrates this.

By 1 of the act the Governor is prohibited from granting pardons until there is filed in his office a certificate showing that the application for the pardon has been published as in the act provided.

By 2 it is provided that applications for pardons in cases of conviction for felony, wife-beating, carrying weapons, and the unlawful sale of liquor, shall be published for two insertions in a weekly newspaper, if one be published, in the county where the conviction was had, and that, if the conviction was not had in the county where the offense was committed, publication should be made in both counties.

By 3 it is provided that in all cases of conviction for offense's other than those mentioned in 2 of the act the publication may be made by posting the notice therein required on the door of the courthouse.

Appellee was convicted of a felony, and the provisions of 2 would therefore apply in his case; but the undisputed testimony shows, indeed it is an admitted fact, that no attempt was made to comply with the requirements of that section, and that no proof of publication of any kind was ever filed in the Governor's office. While we do not take judicial notice of individual pardons, we do know judicially that proof of publication of applications for pardons which are not made under 4 of the act are filed, or are required to be filed, in the Governor's office, and the affirmative and undisputed showing has been made that there was no such filing in the matter of appellee's application.

It is provided in the act, however, that pardons may be granted in certain cases without complying with either the second or the third section of the act. These exceptions are contained in the fourth section of the act.

The first exception is where it is made to appear that the persons concerned in the presentation of the application are rendering service without fee or a contract for compensation to be thereafter paid or secured, and that neither the person for whom the pardon is asked nor any relative upon whom he might call for assistance is financially able to pay the expense of such publication, in which cases the Governor may consider and grant the application without requiring proof of publication.

Section 4 further provides that the Governor, acting upon his own motion, or being prompted by the result of an investigation made at his instance, shall have the right to grant a pardon in any case without the publication being made under either 2 or 3 of the act. After enumerating the exceptions stated above, when publications shall not be required, it is further provided in 4 that "all such pardons so granted by the Governor shall state on the face of the certificate thereof that the same was granted by the Governor without application therefor being made to him by any attorney or paid representative of the person pardoned."

There is nothing in this act which substantially deprives the Governor of the pardoning power, for, to summarize its provisions, applications may be considered and granted to offenders of one class on the publication of a notice in a newspaper, and pardons may be granted to other's not embraced in this first class by posting a notice, but, if notice is not published in either way, the Governor may grant pardons, whether moved thereto by the representations of others or by an investigation made by himself, provided, in all cases where publication is not made in one of the two ways, he shall state on the face of the certificate that if was granted by him without application therefor being made to him by any attorney or paid representative of the person pardoned.

This statute was enacted under the authority of and pursuant to the provisions of the same section of the Constitution which gives the Governor such right to pardon as he has at all, and it must therefore be construed as being mandatory, and any pardon which does not substantially comply with the requirements of the act must be held to be void.

It is pointed out that the pardon granted appellant states on its face that it was granted without application being made by any attorney or paid representative, and it is insisted that this recital should conclude the whole matter. It appears, however, as an undisputed fact, that this recital was placed on the pardon by the President of the Senate at a time when he was not acting as Governor. His authority to act had therefore ceased, and, if the purported pardon which he had issued and delivered was not valid during the time he was acting as Governor, nothing that he might do after he had ceased to be clothed with the powers of that office could give validity to it.

It is finally insisted that we have no right to inquire whether the statute was complied with or not, that is, that it was the exclusive function of the Governor to determine that fact, and that the grant of the pardon imputes a finding which is conclusive of the fact that the statute was complied with, even though the finding is now shown to have been erroneously made. We are cited to the old case of Davis v. Gaines, 48 Ark. 370, in which it was hold that the court would not inquire whether proof of publication of intention to introduce a local bill had been given after the same had been passed by the Legislature, and it is insisted that, unless we indulge the same presumption here, we are in the attitude of applying one rule to the legislative department of the Government and a different rule to the executive head.

We do not think, however, that we are doing this. It was not held that the provision of the Constitution in regard to notice of intention to introduce a local bill is directory merely and may be disregarded by the Legislature. In the case of Booe v. Road Imp. Dist., 141 Ark. 140, we had occasion to review the case of Davis v. Gaines, supra. There was a majority and a dissenting opinion in that case, but it was agreed in both opinions that the provision of the Constitution in regard to notice was mandatory, and the majority disapproved language appearing in the Davis v. Gaines case which they construed as holding that the Legislature might, if it saw proper so to do, disregard the provision concerning notice entirely. It was the view of the dissenting judges that such was not the meaning of the decision, and that what was meant and had been decided was that the legislative determination that notice had been given was conclusive, so that it was the opinion of all the judges that the constitutional direction in regard to notice was mandatory. The Booe case and the cases cited in it make it plain how this conclusion was reached. It was pointed out that the Constitution did not require the proof of notice to be spread upon the journal of either House or that any other record be kept to evidence the fact that publication was made, and that, this being true, and it being the duty of the Legislature to determine in some manner satisfactory to itself that notice had, in fact, been given, and that, as this duty was imposed upon the Legislature, it would be conclusively presumed that the Legislature had discharged the duty imposed upon it by the Constitution and had ascertained that notice had been given, and that this finding would not be reviewed unless, as was pointed out in the Booe case, it was made to appear from some fact of which we could take judicial notice that the requirement in regard to giving of notice could not, as a physical fact, have been complied with,

Unlike the failure of the Constitution to provide that the Legislature should preserve in some way evidence that notice of intention to introduce a local bill had been given, the act of 1903 regulating pardons does contain that provision. The condition precedent is imposed by the first section of the act that there shall be filed in the Governor's office a certificate of the county clerk, or the affidavit of two credible persons, that notice of the application has been made in, accordance with the provisions of the act hereinbefore set out and discussed.

Now, the word "filed", as used in this section, in legal terminology, has a fixed and well understood meaning. "A paper or document is said to be ``filed' when it is delivered to the proper officer and lodged by him in his office." "In the sense of the statute requiring the ``filing' of a paper, it is ``filed' when delivered to, and received by, the proper officer to be kept on file. The word carried with it the idea of permanent preservation of the thing so delivered and received that it may become a part of the public record." These are among the definitions collated in 2 Words Phrases under the word "File", where numerous authorities are cited. That this is the correct meaning of the word "filed" is recognized by all courts and lexicographers. In addition to the authorities collated in Words Phrases, supra, see 25 C.J. 1124, 4, "D", and numerous cases cited in note; Bouvier's, Anderson's, and Black's Law Dictionaries, and cases there cited; Webster's and Funk Wagnalls', verbo "File."

Unless and until this requirement is met, the Governor is prohibited from considering or granting an application for a pardon except as stated in 4 of the act, and, if the pardon is granted pursuant to this exception, he must state on the face of the pardon itself that the same was granted without application being made to him by any attorney or paid representative of the person pardoned, so that if there had been publication that fact was required to be evidenced by the filing of the application in the office of the Governor, and if there were no notice, that fact should be evidenced by the recital which the Governor was required to make on the face of the pardon itself.

We have said that it was an undisputed fact that no proof of publication was filed in the Governor's office, and, as it appears that the notation that no paid representative had made application for the pardon was not placed on the pardon while the President of the Senate was acting as Governor, it follows that the pardon was not issued in the manner provided by law, and is therefore void as such.

The decree of the chancery court will therefore be reversed, and appellee will be remanded to the custody of the warden.

McCULLOCH, C.J., and HART, J., dissent.