
    Hosea W. Libby v. Felix Nicola.
    A person wbo has been convicted and sentenced to the penitentiary for manslaughter, and against whom a judgment has been rendered for the costs of prosecution, obtains from the governor a pardon, in which, after reciting the sentence of imprisonment, but making no reference to the judgment for costs, the governor declares that a general pardon is granted to such person “from the sentence aforesaid” — Held, that such pardon does not operate to release the judgment for costs.
    Appeal. Reserved in the district court of Cuyahoga county.
    The plaintiff brought his suit to restrain the collection of a judgment rendered against him for the costs in a prosecution in which he was convicted and sentenced for manslaughter. The plaintiff claims that he is released from the judgment for costs by virtue of a pardon from the governor. The pardon is as follows :
    “ The State oe Ohio, ) Executive Department, j
    “ Whereas, at the February term of the court of common pleas held in and for the county of Cuyahoga in this State, in the year one thousand eight hundred and sixty-six, Hosea W. Libby was then and there convicted, by a jury of the county, of having committed the crime of manslaughter, and sentenced by the court thereof to imprisonment in the Ohio penitentiary for the term of eight years, by virtue of which he is now confined therein. And whereas such representations have been made as induce the belief that the said Hosea W. Libby may with propriety be pardoned by the executive authority of the State: Therefore, I, Jacob D. Cox, governor and commander-in-chief of the State aforesaid, do hereby grant the said Hosea W. Libby a general pardon from the sentence aforesaid, and do by these presents release him from all further confinement in said peni tentiary in consequence thereof.
    
      In testimony whereof, I have hereunto subscribed my name and caused the great seal of the State of Ohio to be affixed at Columbus, the 4th day of September, in the year of our Lord one thousand eight hundred and sixty-six
    
      
    
    By the Governor, J. D. Cox.
    Wm. Henry Smith,
    
      Secretary of State.
    
    The decision of the court of common pleas being against the plaintiff’, he appealed to the district court, where the cause was reserved to this court for decision.
    
      J. W. Towner (with JR. P. Ranney) for plaintiff:
    A general pardon by the governor discharges and releases the convict receiving it from the payment of the costs of his conviction.
    . The proviso to the 41st section of the crimes act, (S. & C. 417,) is not applicable to the present case — a convict sentenced for manslaughter under section three; but only to cases of convicts sentenced for any crime specified in the act of 1835, except under the third and-twenty-fifth sections.
    As to rules of construction, see 5 Coke, 118; 20 Wend. 555; 1 Wheat. 326; 1 Term. Rep. 44, 52; 4 Dallas, 30; 7 Hill, 511.
    As to the nature of a proviso, see 10 Pet. 449.
    If the proviso under consideration is applicable to pardoned convicts sentenced under the third and twenty-fifth sections of the act as well as others, it is unconstitutional and void. By the constitution of this State (art: 3, sec. 11) the governor may, after conviction, grant pardons for crimes, except treason and cases of impeachment, upon such conditions as he may think proper. - The only power the legislature has in the premises, is to make regulations as to the manner of applying for pardons. It has no power to prohibit, in any manner, the granting of pardons by the executive; nor has it the power to limit or control their effect or operation. A full or general pardon by the governor has, iii this State, the same operation and effeet as such a pardon would have at common law, unless limited by conditions imposed by the pardoning power itself. If at common law, a general pardon would operate to release a convict from the costs of his conviction, it must do so here, unless the executive authority itself imposes payment of the costs as a condition. Ex parte Garland, 4 Wall. 333. And if the legislature has no power to limit this constitutional power of the executive, the attempt to do so is futile, and this proviso is void. See 7 Pet. 160; 18 How. 310; 4 Wall. 333; 1 Bla. Com. 269; 4 Ib. 398.
    As to the construction of the pardon in the present case. It is “a general pardon from the sentence aforesaid,” &c. The sentence is an entirety, composed of imprisonment and payment of costs. This is not a special, but a general, pardon. The word “ general” must have its full effeet.
    
    The pardon must be taken most beneficially for the subject, and most strongly against the executive. 4 Bla. Com. 401; 1 Bish. Cr. L. 707, 711; 3 Johns. Cas. 333.
    A general pardon releases everything penal in its nature and consequences. 12 Mod. 119 ; Com. Dig. 243 ; 1 Bish. Cr. L. 713 ; 10 Johns. 232 ; 4 Wall. 380.
    As to the objection that costs are not penal: even if that be conceded, for the sake of the argument, yet they are a part of the efFeets and consequences of conviction, and dependent upon it. Costs are a part of the sentence in every case in Ohio, (Chase Stat. 862, 1333,) and are “penalties annexed to conviction,” and are discharged by a pardon. Blanchard v. The State, Wright’s Rep. 377.
    Costs are, in their nature, penal. Dwarris, 746 ; Sedgwick’s Stat. & Const. Law, 358 : 3 Bla. Com. 399, 400 ; 4 Serg. & R. 127.
    And so regarded in Ohio, both by the legislative and the judicial departments. Wright’s Rep. 377, decided in 1833. The proviso attached to the 41st section of the crimes act was not then enacted. 10 Wheat. 1, 30.
    Although private vested rights are not divested by a pardon, (1 Bish. Cr. L. 708,) yet it does take away the claim, or vested rights, of the State. 2 Bay 565 ; 1 Nott & McCord, 26; 1 Kelley, 606 ; 28 Penn. 297 ; 5 Gilman, 214 ; 9 Watts, 142.
    The doctrine of private vested rights is not applicable to this case, or to costs in this State. The only right to these costs was in the State. Chase, 863, 1178, 1221, 1337 Curwen, 164, 375 ; S. & C. 1184.
    There is no adequate remedy at law for the plaintiff. 6 Ohio, 144 ; 7 Ohio, pt. 2, 133 ; 7 Ohio St. 42 ; 16 Wend. 562 ; 1 Hill, 118 ; 3 Pet. 110 ; 5 Wall. 74.
    
      James M. Jones for defendant:
    1. The proviso of section 41 (S. & C. 417) was intended by the legislature to be as broad as the governor’s power to .pardon.
    2. The effect of a pardon at common law, and now, is to-acquit the convict of all fines, penalties, forfeitures, punishment and disabilities consequent on the crime, and nothing more. 7 Bacon’s Abr. 416 ; 2 Russell on Cr. 975 ; 1 Archb. Cr. L. 378 ; 10 Johns. 232.
    3. A full pardon from all pains, penalties, forfeitures and punishments does not relieve a party from the costs of conviction, or such costs as the State has paid, or is bound to pay ; nor does it remit that portion of a fine or penalty to which any individual is entitled, such as the moiety of the-informer. The individual has, in such case, a vested right which cannot be taken away. 1 Archb. Cr. Pr. & Pl. 378, 694 ; 7 English, (Ark.) 122; 4 Barr. 144 ; 2 Bay 565 ; 21 Mis. 272 ; 10 Grattan, 696 ; 5 Gilman, 214 ; 8 Blackf. 229 ; 2 Wharton, 444 ; 46 Penn. St. 357 ; 1 Kelley, 606 ; 4 Wash. C. C. 64.
    The costs in this case were really for the benefit of the-clerks, sheriffs and they witnesses, and could have had execution to collect the same. The State having paid them, issubrogated to their rights. 10 Grattan, 696.
    The payment of costs was no part of the sentence. The-judgment for costs was an incident to the case. S. & C. 416, sec. 38.
    
      4. The pardon is not general. It pardons from the sentence and imprisonment, but says nothing about costs.
    
    5. The plaintiff has an adequate remedy at law.
   White J.

This case depends on the question whether the pardon had the effect to release the plaintiff from the judgment for costs. '

In determining this question, we deem it unnecessary to consider the meaning and operation of section forty-one of the act providing for the punishment of crimes, to which our attention has been directed in the argument. S. & C. Stat. 417.

Under the constitution the governor has “power, after conviction, to grant reprieves, commutations and pardons, for all crimes and offences except treason and cases of impeachment, upon such conditions as he may think proper ; subject, however, to such regulations as to the manner of applying for pardons, as may be prescribed by law.”

The plaintiff was convicted of manslaughter, and the statute provides, that every person found guilty of that offence shall be imprisoned in the penitentiary, and kept at hard labor for not more than ten years, nor less than one year. S. & C. Stat. 408.

Section thirty-eight of the act declares what the sentence shall contain, and also-provides for a judgment for costs. The section is as follows : “ That in all cases, when any person shall be convicted of any offence by this act declared criminal, and made punishable by imprisonment in the penitentiary, the court shall declare, in their sentence, for what period of time, within the respective periods prescribed by law, such convict shall be imprisoned, at hard labor, in the penitentiary; and shall, moreover, determine and declare in their sentence,whether any, and if any, for what period of time such convict shall be kept in solitary confinement in the cells of the penitentiary, without labor; and shall render judgment against such convict for the costs of prosecution, and award execution thereon, against the goods and .chattels, lands and tenements of said convict.”

By the act of March 7, 1835, in relation to the collection of costs in such cases, it is made the duty of the prosecuting attorney of the county in which the judgment has been rendered, to take charge of, and superintend the collection thereof by execution. The act of March 4, 1844, “ further to provide for the collection of costs in criminal cases,” requires the clerk, immediately upon the passage of sentence, to issue an execution against the goods and chattels, lands and tenements of the person convicted; which execution the sheriff is required to return within ten days, with the indorsement of his proceedings thereon, or the want of property upon which to levy, as the case may be. No costs can be paid out of the State treasury until the property of the defendant, liable to execution, appears to have been exhausted. S. & C. Stat. 1185, 6, 7.

By these statutes the convicted defendant is charged with the payment of the costs. The taxation of costs is designed to provide a compensation for those who have been required to render services in the prosecution. The provision authorizing the payment of the costs out of the county treasury is intended for the security and convenience of those to whom they are due; and the county is to be reimbursed from the property of the defendant, or, if that should fail, from the State treasury

The pardon is to be read in the light of the constitutional provision, and of these statutes. Read in this light, can it, by fair construction, be held to release the plaintiff from the judgment for costs ?

The governor was authorized to grant the pardon upon such conditions as he saw proper. At the time it was granted the plaintiff was a judgment debtor for the costs; and was also under sentence of imprisonment in the penitentiary for a term of years. The pardon recites the fact of the plaintiff’s conviction and of his sentence to imprisonment, but makes no reference to the judgment for costs. The grant is declared to be of pardon from “ the sentence aforesaid;” that is, the sentence of imprisonment.

True, the pardon is characterized as general, and to the extent that it operates at all, its operation is general. But, in our opinion, it does not reach the judgment for costs.

This view is fully sustained by the authorities : 2 Hawk. P. C. 535, s. 12 ; 7 Bac. Ab. 411, title “Pardon,” letter D.; Anglea v. The Commonwealth, 10 Gratt. R. 696 ; People v. Pease, 3 Johns. Cas. 334; 1 Bishop’s C. L. §§ 756 (707), 760 (711).

The case of Blanchard v. The State (Wright’s R. 377), is cited in support of the plaintiff. We have examined that case and the authority cited in support of the decision. The terms of the pardon do not appear in the report. We cannot say, therefore, whether our opinion as to the construction of the terms of the pardon in this case is in conflict with that decision or not. It is to be observed, however, that the case was decided before the passage of the acts to which we have referred, in the light of which the pardon in the present case is to be construed.

We do not question the authority of the governor, in granting a pardon, to release the uncollected costs that may be coming to the State. What we hold is, that in the present instance he is not shown to have done so.

The injunction is dissolved, and the petition dismisssed.

Welch, C.J., and Day, McIlyaine and West, J.J., concurred.  