I maintain that the conclusion of the majority is erroneous for two sufficient reasons: (A), that the statute regulating the manner of presenting petitions for pardons is, so far as it affects the power of the Governor, merely directory, and that his failure to require observance of the statute does not invalidate a pardon; (B), that, even if the statute be held to be mandatory, the courts, in testing the validity of a pardon, must indulge the conclusive presumption that the Governor has correctly found and decided that the statute has been complied with.
In the first place, the statute bears all the earmarks of a merely directory provision, and none of the indicia of a peremptory command. Nor does the Constitution itself authorize the Legislature to place conditions or restrictions upon the power of the Governor. The authority conferred is to regulate, not to hinder or restrain. Any mandatory provision on the subject which would operate as a restraint upon the Governor is void. The authority conferred on the lawmakers is to regulate by giving directions to the Governor as to the method of granting pardons and to provide punishment for others who violate the requirements. This the statute under consideration *Page 123 has done, and no more. In that view, the statute is valid, otherwise it is void. If the Governor abuses the power vested in him by the Constitution, he may be called to the bar of the Senate for impeachment, but his acts are not void.
The statute does not declare that a pardon granted without complying with the terms of the statute is void. It merely prescribes punishment for offenders who present petitions for pardons without complying with the statute.
A statute formerly in force in this State prohibited foreign insurance companies from doing business here without conforming to certain specified legal requirements and prescribing a punishment by fine for so doing, but this court decided that contracts made by such companies without complying with the statute were not void. State Mut. Fire Ins. Assoc. v. Brinkley, 61 Ark. 1. In disposing of the question, the court in that case said:
"It will be observed that, though penalties are imposed in this act upon the persons or corporations doing the things therein prohibited without first complying with its requirements, it does not make void the contracts made by the insurance companies without such compliance either as the corporations named therein, or the policy holders in such companies. * * * The insurance contracts in this case were not void on account of the failure of the insurance company to comply with the statutory prerequisites to the right of a foreign insurance company to do business in this State. The penalty imposed by the statute was exclusive of any other forfeiture."
In an early case this court, in defining the distinction between directory and mandatory provisions of a statute, said that requirements which are of the essence of the thing to be done are mandatory, but those which are not of the essence are merely directory. Miss. C. R. Co. v. Gaster, 20 Ark. 455. Requirements in regulation of the method of granting pardons are not of the essence of the thing to be done — the act of granting the pardon. *Page 124
In Sonfield v. Thompson, 42 Ark. 46, Mr. Justice EAKIN, speaking for the court, said: "The definition of a directory, as distinct from a mandatory, provision in a statute is that it enjoins something which it is the duty of the officer or person to perform, and for willful neglect of which he may be held liable in damages to any one injured, but the failure to do which does not have the effect of invalidating the act." There are very numerous decisions of this court defining this distinction. It has generally been, held that statutes prescribing the method of discharging duties by public officers are directory unless expressly or by necessary implication made mandatory. Ex parte Buckner, 9 Ark. 73; Byers McDonald v. Fowler, 12 Ark. 218; Randolph v. Thomas, 23 Ark. 69; Thompson v. State, 26 Ark. 323; Little Rock v. Willis, 27 Ark. 572; Pierce v. Lyman,28 Ark. 550; State v. Jones, 29 Ark. 127; Field v. Dortch,34 Ark. 399; Holland v. Davies, 36 Ark. 446; Swepston v. Barton, 39 Ark. 549; State v. Certain Lands, 40 Ark. 34; Milleford v. State, 43 Ark. 62; Moore v. Turner, 43 Ark. 257; National Lbr. Co. v. Snell, 47 Ark. 407; State v. Agnew, 52 Ark. 275; Katz v. Goldman, 64 Ark. 395; Nixon v. Grace, 98 Ark. 505.
The holding in Baldwin v. Scoggin, 15 Ark. 427, to the effect that the failure of the Legislature to regulate the exercise of the constitutional power of granting pardons and of remitting fines vested in the Governor does not deprive him of that power, shows that the provision of the Constitution in question is self-operating, and the power given to the Legislature is merely directory, for the power and duty of the Governor to act in the premises is given by the Constitution and cannot be suspended or postponed until the Legislature shall speak, for the Governor alone can grant pardons, and the Legislature, as it is conceded, cannot abridge that right, such rules and regulations would, in the very nature of things, be directory, so far as the Governor is concerned. As stated by the Supreme Court of Arizona in Gherna v. State, *Page 125 146 P. 494, Annotated Cases, 1916D, p. 94, a self-executing provision of the Constitution does not necessarily exhaust legislative power on the subject, but any legislation must be in harmony with the Constitution and further the exercise of constitutional right and make it more available. The reason is that the Legislature is intrusted with the general power to make laws at its discretion, and is not a special agency for the exercise of specifically defined legislative powers. In that case the court had under consideration an amendment to the Constitution making it unlawful to manufacture or introduce into the State intoxicating liquors or to sell the same.
Therefore, the better reasoning in the case at bar is to hold that the framers of the Constitution merely meant to recognize the general power of the Legislature, and that the provision with regard to rules and regulations is directory. Of course, it would be just as much the duty of the Governor to obey a directory as a mandatory statute. If a constitutional provision imposes a duty on an officer and no legislation is necessary to require the performance of such duty, it would seem that the important and particular thing sought was the performance of the duty imposed, and that the manner and method of its performance was directory merely. In other words, the essence of the thing to be done is the performance of the duty, and not the prescribed method of doing it, which is merely directory.
Even if the statute is mandatory, the courts ought, when the Governor has granted a pardon, to indulge the presumption that all of the statutory requirements with respect to the presentation of the application have been complied with. There is always a presumption that public officers have discharged their duties until it is shown in proper form to the contrary. And there is a special reason for indulging this presumption with regard to the acts of the highest officer of a coordinate branch of the government. Such presumption has always been indulged by this court in regard to the proceedings of the *Page 126 General Assembly, except as to the single matter of recording the ayes and nays on the final passage of a bill, which is expressly required by the Constitution. Most courts, including the Supreme Court of the United States, hold that there is a conclusive presumption arising from the enrollment and signing of a bill by a legislative body that all requirements were complied with, and, as before stated, this court has announced in many cases that such a presumption will be indulged with reference to legislative proceedings except as to the matter of recording the ayes and nays on the final passage of a bill. This court has for a long time persistently held in regard to the requirement of notice of the introduction of a local bill in the General Assembly that there is a conclusive presumption that the Legislature found that the notice had been given, unless the records, of which we take judicial notice, show affirmatively that the notice was not given. In one of the late cases on that subject we said: "The result of our present view is that the provision of the Constitution is mandatory and should be obeyed by the General Assembly, but there is always a presumption in favor of the legality of the legislative proceedings and that such proceedings are conclusively presumed to have been in accordance with the constitutional requirements, unless the record of which the courts can take judicial notice show to the contrary." Booe v. Road Imp. District, 141 Ark. 140. The test is whether or not there are records of which courts will take judicial knowledge showing affirmatively that the prerequisites have not been complied with. Now, there is no sound principle of law which would justify us in holding that the courts can take judicial notice of the records in the office of the Governor with respect to the application for pardon. There is no law requiring the Governor to keep in his office a record of his proceedings. On the contrary, the statutes of the State provide that the Secretary of State shall be the custodian of records which are to be kept, and that he shall "keep a full and accurate record *Page 127 of all the official acts and proceedings of the Governor." Crawford Moses' Digest, 4396. If it had been intended by the lawmakers to require the preservation of the record, the proper way to give such a direction would have been to require the filing of the application for pardons and proof of publication with the Secretary of State, either by the applicant or by the Governor. There is no provision at all for the preservation of the proof of publication, and there is nothing in the language of the statute which would justify an interpretation that the validity of a pardon depended upon the preservation of the record. Stress is laid in the opinion of the majority on the use of the word "filed" with reference to the proof of publication, but there is no significance in the use of that word, which has many dictionary meanings and was evidently used by the lawmakers as specifying a requirement to present or deliver to the Governor such proofs. At any rate, the statute is complied with if the applicant for a pardon, his agent or attorney, hands the application and proof of publication to the Governor. If the Governor receives and considers it and grants the pardon, it is an extreme view of the law to say that the pardon is not valid unless the Governor preserves the evidences upon which he acted in granting it. Even if there was such a record kept, the courts would not take judicial knowledge of individual pardons. This is conceded in the opinion of the majority. Then how can a court in testing the validity of a pardon possess itself of facts with respect to compliance with the statute other than by hearing testimony pro and con? When the certificate of the county clerk or of "two persons known to be credible" is presented to the Governor, it is necessary for some one to determine whether the certificate of the clerk is sufficient in form and substance, or whether the two affiants are credible persons within the meaning of the statute, and this duty necessarily devolves upon the Governor. Who else is there to determine that question? Will the courts do so in passing upon the validity of the pardon? When a pardoned convict is called to the *Page 128 witness stand in the court of a justice of the peace and the validity of his pardon is challenged, must he produce proof from the Governor's office that there was an affidavit of two persons filed, and that they were credible persons? It is inconceivable to me that the lawmakers ever intended such a spectacle, and yet such is the effect of the opinion of the majority. The fact that there was no dispute about the facts in the present case is not important, for, if the opinion of the majority is correct, in any case where there is a dispute, the trial court must go behind the face of the pardon and determine whether or not the law was complied with. The very fact that the Governor must necessarily determine, before issuing a pardon, whether or not the statute has been complied with, carries with it a conclusive presumption that he has properly discharged his duty. There are authorities supporting the view that such a presumption should be indulged, and none to the contrary, so far as I have been able to discover. In re Moore,4 Wyo. 98; Hester v. Commonwealth, 85 Pa. 139; In re Edymoin, 8 Howard Pr. (N.Y.) 478.
There is another principle not to be overlooked that the court should not lightly disregard long and continuous interpretations placed upon statutes by other departments of government, and it is undeniable that the universal interpretation of this statute by governmental departments and the public generally has been in accordance with the views hereinbefore expressed. In Lake County v. Rollins, 136 U.S. 662, Mr. Justice Lamar said that the simplest and most obvious interpretation of a Constitution, if in itself sensible, is the most likely to be that meant by the people in its adoption. The construction hereinbefore stated has been the general understanding of the bench and bar and those who have heretofore been Governors of the State. This court has recognized that in cases of ambiguous expressions or where the language admits of doubt, much persuasive force should be given to the construction given by the executive department *Page 129 whose duty it is to enforce the provision and language accepted by the agencies of government and the people. Vahlberg v. Keaton, 51 Ark. 534; Reynolds ex parte, 52 Ark. 330. The rule was clearly and forcibly expressed by Judge Mitchell in delivering the opinion of the Supreme Court of Minnesota in Willis v. Mabon, 16 L.R.A. 281, as follows:
"Of course it is true, as counsel suggests, that this court has never before been called on to decide the question, and that mere assumption on the part of either bench or bar does not make a thing law; but, on the other hand, it is also true that a construction which has for a third of a century been accepted by every one as so obviously correct as never to have been questioned or doubted is much more likely to be right than a newly discovered one, suggested at this late day by the emergencies of present litigation. The fact that no such view ever before suggested itself to the minds of court or counsel in the numerous cases where the point might have been made and where it was to the interest of counsel on one side or the other to make it, certainly raises a strong presumption against it."
The fact that great inconvenience and harmful results will follow from this decision should make the courts slow to depart from the general interpretation heretofore placed upon this statute. Many an individual who has, in fancied security, carried away from the Governor's office a full and free pardon from the effects of his crime will have his hopes dashed by being informed in the opinion of this court that his pardon is void. A pardon regular on its face ought to be impervious to collateral attack, and I believe that it is so. Otherwise, it must be reckoned among the elusive things "that keep the word of promise to our ear, and break it to our hope."
I am authorized to say that Mr. Justice HART agrees with me in all that is said in this opinion. *Page 130