
    CASH 72 — ACTION BY. THE CITY OF PARIS AGAINST E. T. HINTON, JUDGE, AND OTHERS.
    March 10, 1909.
    City of Paris v. Hinton, Judge, &c.
    Appeal from Bourbon Circuit Court.
    R. L. Stout, Circuit Judge.
    Judgment for defendants. Plaintiff appeals
    Reversed.
    Pardon — Authority of Governor to Pardon. — 'Const, sec. 77, provides that the Governor shall have power to grant pardons, but “he shall have no power to remit the fees of the clerk, sheriff, or commonwealth’s attorney in penal or criminal cases.” Section 79 provides that the Governor shall from time to time give to the General Assembly information of the state of the commonwealth, and recommend such measures as he may deem expedient. Section 81 provides that the Governor shall take care that the laws he faithfully executed. Ky. St. 1909, sec. 3499 (Russell’s St. sec. 1556), provides that the mayor or chief executive of a city of the fourth class shall see that the laws and ordinances of the city are duly enforced. Section 350 (section 1557) provides that the mayor or chief executive, with two councilmen selected by the city council, may remit or suspend the imprisonment portion of -any sentence and the fine imposed, when such punishment ishall have been imposed for violation of any ordinance. Held, that the Governor has no authority to pardon one convicted of a violation of .a city ordinance of a municipality of the fourth class.
    WM. GRANNAN and JAS. M. O’BRIEN for appellant.
    POINTS AND AUTHORITIES.
    1. Power of the Governor to pardon limited to offenses against the laws of the State. (Ky. Const, sec. 77; American & Eng. Ency. of Law, 2d. Ed., vol. 24, p. 574; V. S. v. Wilson, 7 Pet. 159; Ex Parte Wells, 18 How. .307; People v. Bowen, 13 Amer. Rep. 148; Lee v. Murphy, 12 2Amer. Rep. 563; Edwards v. Comth., 49 Amer. Rep. 380; Amer. & Eng. Ency. of Law, vol. 20, p. 1131; Abbott on Municipal Corporations, sec. 7; Dillion on Municipal Corporations, 4th Ed., sec. 20; Ky. Stats., sec. 3157, 3526; Berry v. Sheehan, 87 Ky. 436; Comm. v. Sipraggins, 18 B. Mon. 511; Williams v. Shelbourne, 19 Ky. Law Rep. 1924; Amer. & Eng. Eincy of Law, vol. 24, p. 572; In Re Nevin, 117 Fed. Rep. 459; Ex Parte Garland, 4 Wall, 333; Cope v. Comm., 28 Penn St. 303; Amer. & Eng, Ency. of Law, vol. 24, p. 569; State ex rel. Kansas City v. Renick, 157 Missouri, 292; Ky. Const, sec. 28; Ky. Stats., sec. 3500.)
    2.Even if the Governor has the authority to pardon for violations of municipal ordinances, the pardon granted in this case is void because, before it was granted, the judgment had been satisfied. (Rucker v. Bosworth, 30 Ky. 645; Comm. v. Merrigan, 8 Bush 131; Chitty v. Glenn, 3 T. B. Mon. 424; Harrison v. Wilson, 2 A. K. Marshall 547; Hannah v. Guy, 3 Bush 91; Ettlinger v. Tansey, 17 B. Mon. 364; Gray v. Merrill, 11 Bush 633; Kouns v. Bank of Kentucky, 2 B. Mon. 303; Hoskins v. Parsons, 1 Met. 251; 23 Cyc. 1475.)
    MeMILLAN & TALBOTT for appellees.
    AUTHORITIES CITED.
    ■ 1. Second, third and present Constitution of Kentucky as to pardons.
    2. Executive and contemporaneous construction. See instances cited in brief of pardons issued by the Governors of Kentucky for fines and punishments imposed by police or city courts.
    3. Judicial construction. (See Routt v. Feemster, 7 J. J. Mar. 132; Com. v. Bush, 2 Duvall, 265.)
    4. As. to pardon being void because the debt was replevied. (Note to Lawyers’ Rep. Annotated, Vol. 15, 395; Baldwin v. Scoggin, 15 Ark. 427; Re Flournoy, 1 Ga. 606; Parrott v. Wilson, 51 Ga. 255; Com. v. Schick, 61 Pa. 495; Com. v. Denniston, 9 Watts 142; Com. v. Bush, 2 Duvall 265; Brown v. U. S., McCahon, 292; f Woolw. C. C. 198; Skaggs v. Hines, 44 Ky. Law Rep. 994 Same, '5 Ky. Law Rep. 106.)
    5. Granting to the city was subject to the right of the defendant to appeal to the Governor for executive clemency. (Routt v. Feemster, 7 J. J. Mar. 132.)
   Opinion of the Court by

Judge Barker

Reversing.

The question arising on this record is whether or not the Governor of the commonwealth of Kentucky may legally pardon one who has been convicted in the police court of a city for an infraction of a municipal ordinance, or remit the fine imposed. The power to pardon offenses and remit fines is given to the Governor by section 77 of the Constitution, which is as follows: “He shall have power to remit fines and forfeitures, commute sentences', grant reprieves and pardons, except in case of impeachment, and be shall file with each application’therefor a statement of the reasons for his decision thereon, which application and statement shall always be open to public inspection.’ In cases of treason, he shall have power to grant reprieves until the end of the next session of the General Assembly, in which the power of pardoning shall be vested; but shall have no power to remit the fees of the clerk, sheriff, or commonwealth’s attorney in penal or criminal cases.” The following sections of the Constitution seem, also, to bear upoou the subject in hand:

“Sec. 79. He shall from time to time give to the General Assembly information of the state of the Commonwealth, and recommend to their consideration such measures as he may deem expedient.”
“Sec. 81. He shall take care that the laws be faithfully executed.”

There is no intimation in any of these sections of the Constitution that the Governor has any duty with reference to the enforcement of the local laws of a municipal corporation, and we see no reason which requires us .to extend the meaning of the w’ords used in them to embrace the enforcement of municipal ordinances or. so as to give him the power to pardon infractions of them. On the contrary, some of the words used in section 77 seem to restrict the pardoning power of the Governor to infractions of the state laws. The last sentence of section 77 is as follows.: “* * * But he shall have no power to remit the fees of the clerk, sheriff, or commonwealth’s attorney in penal or criminal oases.” Now, neither the sheriff nor the commonwealth’s ’ attorney has anything to do with the enforcement of municipal ordinances, and therefore they could not have an interest in the fines or penalties. Municipal corporations usually have an officer called the marshal or bailiff, and a city attorney, whose duties are in part the enforcement of the ordinances of the city. And these officers usually have an interest in the fines and. penalties; but, if the Governor may pardon those convicted of infractions of municipal ordinances, he is not prohibited by the Constitution from releasing or remitting the fees due the marshal or bailiff or city attorney. No good reason can be given for such invidious distinction, and w'e think the fact that the framers of the Constitution so particularly guarded the rights of the officers interested' in the fines or penalties for infractions of state laws without a similar protection being extended to the interests of municipal officers shows that it was not contemplated that the Governor should have any pardoning power of infractions of municipal ordinances.

Paris is a city of the fourth class; and section 3499, 3500, Ky. St. (Russell’s St. sections 1556, 1557), which relate to the charter of cities of that class, are as follows;

“Sec. 3499. The mayor or chief executive shall see that the law's and ordinances of the city are duly enforced and observed, and are faithfully executed. He may require information, in writing, from all officers of the city upon any subject relating to the duties of their respective offices.
“Sec. 3500. The mayor or chief executive may, with two oouncilmen selected by the city council, at their first regular meeting in each fiscal year, upon due investigation and in the exercise of .a sound discretion, remit or suspend the imprisonment portion of any sentence, and the. fine when the defendant, is confined for nonpayment of the fine, when such punishment shall have been imposed tor violation of any ordinance. ’ ’

Now, of course, these sections are invalid if they are in contravention of section 77 of the Constitution; but the fact that they impose upon the mayor the duty of enforcing all city laws and establish a board for the remission of fines and penalties is a legislative construction that section 77 of the Constitution does not give to the Governor the power to remit fines inflicted for infractions of municipal ordinances. The very question we have here arose in the case of State v. Renick, 157 Mo. 292, 57 S. W. 713. In that case one Carrie Neal had been convicted and sentenced in the police court of Kansas City for violating a city ordinance, and a fine of $500 inflicted upon her. This fine the Governor of the state of Missouri sought to remit. The Constitution of the state of Missouri authorizing the pardoning of offenses by tbe Governor is substantially tbe same as ours. It was there held that tbe Governor of tbe state can pardon •only those wht> are convicted of violations of state laws, and that bis pardon of Carrie Neal was invalid. To tbe same effect is Shoop v. Commonwealth, 3 Pa. 126. In 24 Am. & Eng. Encyc. of Law, p. 569, the rule is thus stated: “Tbe pardoning power of a Governor of a state or territory is confined in its •operation to offenses against tbe laws of that state or territory. It does not include an offense against the laws of the United States, since such an offense is solely within the pardoning power of the President Neither does it include an offense against a municipal corporation, such, for instance, as the violation of a city ordinance. ” We have been referred to no authority extending the power of a Governor of a state to pardon offenses other than infractions of state law, and we. believe none exists.

Appellees rely in their brief upon tbe doctrine of contemporaneous construction as authorizing tbe Governor to pardon violations of municipal ordinances. They cite in their brief various instances where tbe Governors of the state have pardoned persons punished in tbe police courts of tbe municipalities of tbe commonwealth. We do not attach the same importance to the exercise of this power by tbe Governors as do appellees. An examination of the instances cited shows, however, that tbe pardons were granted for infractions of state laws, and not of municipal ordinances. It is true, tbe judgments against the defendants were- inflicted in tbe police courts of the various municipalities, but the offenses were violations of state laws, and most of tbe instances ere for violations of the statute against carrying concealed deadly weapons.

We are of opinion, both upon reason and authority, that the Governor in this case had no authority to pardon the defendant, who had been convicted of a violation of a city ordinance of the municipality of Paris., and that his pardon was invalid.

The judgment is reversed for proceedings- consistent with this opinion.  