[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 219 It is manifest that the appellant's pardon and restoration to the rights of citizenship had no retroactive effect upon the judgment of conviction which remains unreversed and has not been set aside. We think the effect of a pardon is to relieve the offender of all unenforced penalties annexed to the conviction, but what the party convicted has already endured or paid, the pardon does not restore. When it takes effect, it puts an end to any further infliction of punishment, but has no operation upon the portion of the sentence already executed. A pardon proceeds not upon the theory of innocence, but implied guilt. If there was no guilt, theoretically at least, there would be no basis for pardon. *Page 222 It is granted not as a matter of right, but of grace. In the language of another: "A party is acquitted on the ground of innocence; he is pardoned through favor." The pardon in this case shows upon its face that it was granted as an act of mercy, and not as one of justice. It was upon the representation that the appellant was a fit subject for mercy that it was obtained, and not upon the ground that the judgment was unjust or invalid. If the judgment was erroneous, the remedy was by appeal or by application to set it aside, and not by pardon. That question was for the judicial branch of the state government to determine, and not for the legislative or executive department. Upon this branch of the case we concur in the conclusion reached by the learned Appellate Division, which has so carefully considered the question that no further discussion seems necessary.
Assuming, as we must, that the appellant's pardon and restoration to citizenship affected the judgment of conviction only to relieve him from future or further punishment, it follows that the imprisonment for which he seeks to recover damages was in all respects proper. The judgment of conviction was introduced in evidence before the Court of Claims, so that the record of the trial in this action contains a judgment adjudging the appellant guilty of the crime with which he was charged and for which he was convicted and imprisoned. Thus, it was conclusively established that he was guilty of the offense charged and that his punishment was legal. Under these circumstances, it is obvious that he was not entitled to recover unless that right is expressly conferred by the statute of 1895, or is to be clearly and necessarily implied from its provisions.
This brings us to a consideration of the provisions of that act. By it the appellant was authorized to present a claim to the Board of Claims for damages sustained by reason of his conviction and imprisonment. The board was then authorized to hear and pass upon the claim, and award such compensation as should appear to be just and reasonable.
The evident purpose of this statute was threefold: 1. To *Page 223 permit the appellant to present to the Board of Claims any claim he had or supposed he had against the state for damages sustained by reason of his conviction and imprisonment for the crime of burglary. 2. When a claim was presented, to authorize the board to pass upon it and determine whether it was valid or invalid; and 3. If found valid, to allow it to determine what just and reasonable compensation he should receive for the damages he had sustained by reason thereof.
Thus, if a claim was presented, the statute contemplated a trial before the board of two questions. The primary and fundamental one was whether the claim was proper and valid, which included the propriety or impropriety of the appellant's conviction and imprisonment. The other related to the amount of damages, and became important only after the board determined that the appellant's imprisonment was improper and the claim presented by him valid. The solution of these questions was dependent upon the proof adduced upon the trial.
Obviously it was not the intention of the legislature to itself pass upon the question whether the appellant's conviction was proper or otherwise, but to submit that question, together with the question of damages, to the board for its consideration and determination. With this conclusion the appellant's attorney seems to be at least in partial accord, for he states in his brief that "the use of the word `improper' is merely descriptive of the legislature's opinion. It is at most harmless. If it were omitted the act would still authorize an award to the claimant upon proof of damages." If the appellant was not improperly convicted and imprisoned, then he had no valid claim, and it was the duty of the board under the statute to dismiss the proceeding. It was, therefore, incumbent upon him to establish that he was improperly convicted and imprisoned and the amount of damages he had sustained by reason thereof. While a great volume of evidence was given upon the second question, we find nothing in the record which justified the board in finding that his conviction and imprisonment were improper. But, instead, the *Page 224 evidence upon which he was convicted and the judgment of conviction were introduced, both of which show that his conviction was proper, the former presumptively and the latter conclusively. With this condition of the record, it is evident that the Board of Claims had no power or authority to award him any damages whatsoever.
The appellant, however, in his eighth point contends that the liability of the state has been conceded by the legislature, and cites the case of Cayuga County v. State (153 N.Y. 279) as sustaining that proposition. An examination of the case cited discloses that the question there under consideration was totally unlike the question involved in this case. The question there was whether the county of Cayuga had been compelled to bear more than its proper share of taxation by the payment of taxes to defray certain expenses which should have been borne by the state. In that case it was held that the claim was not a private claim within the purview of section 19 of article 3 of the Constitution forbidding the legislature to pay or audit any private claim against the state, but was a public one. If the contention of the appellant be correct and the statute is subject to the construction claimed by him, its constitutionality may well be doubted. But we think it is entitled to no such construction, but should be given that already suggested.
That conclusion renders the determination of the various other interesting and important questions raised and discussed upon the argument and in the briefs of the respective counsel relating to the limitation of the plaintiff's right of action, the constitutionality of the act, or the adequacy or inadequacy of the award, wholly unnecessary. We think the conclusion reached by the Appellate Division was correct, and that the judgment appealed from should be affirmed, with costs.
All concur (BARTLETT, J., in result).
Judgment affirmed. *Page 225