State v. Sloss

• Decision Date: 31 July 1857
• Citation: 25 Mo. 291
• Parties: THE STATE, Appellant, v. SLOSS, Respondent.
• Court: Missouri Supreme Court

25 Mo. 291

THE STATE, Appellant,

v.SLOSS, Respondent.

Supreme Court of Missouri.

July Term, 1857.

1. The pardoning power belongs exclusively to the executive department of the government, and cannot be exercised by the legislative department.

2. The “Act to relieve certain persons from the penalties of an act, entitled: ‘An act to regulate dram-shops,’ approved December 13, 1855 (R. C. 1855, p. 682),” approved February 12, 1857 (Sess. Acts, 1857, p. 60), releasing all persons, then indicted for violations of the said act to regulate dramshops committed before December 15, 1856, from prosecution, provided each individual shall pay all the costs and a fee of two dollars to the circuit attorney--and declaring that, whenever any person so indicted shall pay said costs and fee, it shall be the duty of the circuit judge to order said case to be dismissed-- is unconstitutional, it being an attempted exercise of the pardoning power, and also an interference with the judicial department of the government.^a1

Appeal from St. Clair Circuit Court.

The facts are sufficiently set forth in the opinion of the court.

Ewing (attorney-general), for the State.

The act of December 13th, 1855, under which the indictment was found, took effect 1st May, 1856. The act of 1857 does not repeal or modify the law of 1855, but releases defendant from a pending prosecution for an offense against that law, upon the performance of certain conditions. It is an act of legislative pardon. The conditions annexed do not make it less an act of pardon, and the performance of such conditions by defendant cannot give validity to the act. The pardoning power is vested in the governor by the constitution, and it is an exclusive power in that officer. The act in question blends the powers of the legislative and judicial departments of the government; is an interference by the former with the administration of criminal justice, and, therefore, unconstitutional. (Art. 2, Constitution; State v. Fleming et al., 7 Humph. 152.) The act authorizes the criminal judge to dismiss the prosecutions. An expression of the will of the lawmaking power that defendant, and others against whom indictments were pending at the time, be released from such prosecutions, is not to enact a law; it is an order, a judgment, a decree.Johnson, for respondent.

The Circuit Court did right in dismissing this case according to the terms and provisions of the act of the general assembly, approved 12th February, 1857. The act of the general assembly above referred to merely changes the penalty from a fine of twenty dollars, upon trial and conviction, to the costs incurred, and a fee of two dollars to the circuit attorney--a change of punishment, nothing more--a power which has been exercised by the Legislature without question from the earliest period of the state government, and acquiesced in by all the departments of government up to the present time. See the various bills passed to relieve sheriffs and other officers from penalties incurred--much stronger cases than the one at bar.

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 cannot 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 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...