dissenting. I concur in the opinion of Mr. Chief Justice Robertson as to the right of the auditor to raise the question as to the validity of the statute; but as to the merits of the appeal I am unable to concur in either of the foregoing opinions, or in the conclusion reached by the majority. The chief justice concludes that the statute in question is invalid because it “trenches upon the judicial power, and it constitutes *536an attempt to divert public funds to private use without any moral obligation or other consideration of public policy to support it.” Mr. Justice Perry concurs in tire conclusion reached by the chief justice, but upon the ground that .the statute “is in effect an attempt on the part of the legislature to exercise the pardoning power.”
As I view the questions involved in this appeal, the legislature in the enactment of this statute did not trench upon or attempt to exercise any of the powers of either of the other two co-ordinate branches of the government, they having fully exercised all their powers in the premises, but it acted wholly within its own province, exercising its legislative discretion upon one of the “rightful subjects of legislation.” Sec. 55, Org. Act; 28 Am. & Eng. Ency..Law (2d ed), 60¿ Maynard v. Hill, 125 U. S. 190.
The Organic Act transferred from Congress to the territorial legislature the power to pass laws for the people of the Territory, and it takes the place of a constitution as a fundamental law of the local government. 28 Am. & Eng. Ency. Law (2d ed), 59; Ferris v. Higley, 20 Wall. (U. S.) 375; Nat’l. Bank v. Yankton County, 101 U. S. 129.
The conclusion reached by the majority, each member by a separate and distinct process of reasoning, is, in effect, a holding that the statute is unconstitutional. Can it be successfully claimed that the invalidity of the statute is placed beyond reasonable doubt when the members of the court declaring it invalid are each unable to adopt the reasoning of the other ? Presumably each entertains doubt as to the soundness of the views expressed by the other. “If it be doubtful, and the legislature has seen proper to exercise the power, the judiciary should not interfere. The doubt is then to be solved in favor of the legislative action.” Norman v. Ky. Bd. Managers World’s Columbian Exp., 20 S. W. 901. “A statute will not be declared void in whole or in part, unless its invalidity is distinctly pointed out and made clearly manifest. The general rule is *537that every intendment must be given in its favor.” Crowley v. State, 11 Org. 512.
“It has been said by an eminent jurist, that when courts are called upon to pronounce the invalidity of an act of legislation, passed with all the forms and ceremonies requisite to give it the force of law, they will approach the question with great caution, examine it in every possible aspect, and ponder upon it as long as deliberation and patient attention can throw any new light upon the subject, and never declare a statute void, unless the nullity and invalidity of the act are placed, in their judgment, beyond reasonable doubt. A reasonable doubt must be solved in favor of the legislative action, and the act be sustained.
“The question whether a law be void for its repugnancy to the constitution is at all times a question of much delicacy, which ought seldom, if ever, to be decided in the affirmative in a doubtful case.” Cooley’s Const. Lim. (7th ed), 109, 252. The rule is universal that courts will presume in favor of the constitutionality of a law, until the contrary clearly appears. Adams v. Storey, Fed. Cas. No. 66; U. S. v. Mackenzie, Fed. Cas. No. 18,313; 6 Am. & Eng. Ency. Law (2d ed), 1086; 8 Oyc. 801. But, as I view the statute, there is no occasion to indulge in presumptions in favor of its validity. To my mind it is clear that the legislature had the power to pass it, and having done so, we are not concerned in the motives or reasons which prompted its enactment. Cooley’s Const. Lim. (7th ed), 257; 6 Am. & Eng. Ency. Law (2d ed), 1087; 8 Cyc. 804.
The chief justice, upon the proposition that the statute trenches upon the judicial power, cites the following cases: Knote v. United States, 95 U. S. 149; Roberts v. State, 51 N. Y. S. 691; Allen v. Board of Auditors, 122 Mich. 324; State v. Railroad, 71 Conn. 43; Haley v. Clark, 26 Ala. 439. Let us examine these cases in the order named.
Knote v. United States, as I read it, does not in any way militate against the validity of the statute before us, but on *538the contrary, it clearly recognizes the doctrine for which the appellant contends, namely, that when money, as a fine, penalty or forfeiture, has been paid into- the treasury the judicial and executive departments o-f government thereby lose all jurisdiction, power and control over it, and that the legislative department thereupon acquires sole and exclusive power over it and it can only be withdrawn by an appropriation by law. Art. 1, Sec. 9, Constitution of the United States; Secs. 52, 55, Org. Act. Observe the following language, quoting from page 154 of the case cited: “If the proceeds have been paid into the treasury, the right to them has so far become vested in the United States that they can only be secured to the former owner of the property through an act of Congress. Moneys once in the treasury can only be withdrawn by an appropriation by law.” There is not even an intimation by the court that the suggested legislation for the express purpose of withdrawing the money from the treasury for the purpose of refunding it would, in any way whatsoever, “trench” upon or be an attempt to “exercise” any of the “powers” of either of the other coordinate branches of the government, although the property of the claimant had been seized by the Federal authorities and declared forfeited, was sold, and the proceeds paid into the treasury, in pursuance of an order of a court of competent jurisdiction as a punishment for his treason and rebellion, for which he was subsequently pardoned. To- the same effect, see United States v. Padelford, 9 Wall. (U. S.) 531; Osborn v. United States, 91 U. S. 474; Armstrong’s Foundry, 73 U. S. 766; Ill. Cent. R. R. Co. v. Bosworth, 133 U. S. 92; 2 Op. Atty.-Gen. 329; 8 Op. Atty.-Gen. 281; 14 Op. Atty.-Gen. 599; 16 Op. Atty.-Gen. 1.
In Roberts v. State, Roberts was convicted and sentenced to the state prison for a period of twenty years, and after serving about two years he was pardoned. The legislature then passed an act authorizing him to present a claim to the board of claims for damages sustained by him by reason of his improper con*539viction and imprisonment and to award such compensation as should appear just and reasonable. It is apparent that Roberts proceeded upon the theory that he had a valid claim against the State, such as a court of law could entertain. The coui’t in that case said: “We conclude that, if the statute in question did not have the effect of validating or creating the claim of the plaintiff presented to the court below, it was ineffectual; and a finding of that court cannot be sustained, as in that case no legal demand existed in favor of the plaintiff against the state.” It is clear that the court did not have before it, or consider, the question as to the power of the legislature to make an appropriation for the payment of a claim such as is now before this court. The ease is clearly distinguishable from the case at bar.
In Allen v. Board of Auditors, Allen had been convicted and sentenced to imprisonment for a term of years and after serving a portion of his term he was pardoned, whereupon the legislature passed a joint resolution directing the board of state auditors to investigate his claim, and if found .to be true, i. e., innocent, to allow him a sum not to exceed ten dollars per month for a period not to exceed ten years. The court held that the joint resolution was an attempt on the part of the legislature to create a court of appeals, aside from the constitutional courts, to determine the guilt or innocence of a convicted criminal, which was “a violation of the plain provisions of the constitution establishing courts, and conferring the exclusive jurisdiction upon them to try civil and criminal cases.” It is obvious that no such questions are involved in the case at bar. The question as to the power of the legislature to make an appropriation in a case similar to the one under consideration was not before the court in that case. One of the reasons which the court assigned why Allen was not entitled to anything was, that “the state received nothing, but, on the contrary, incurred expense, by reason of his arrest, trial and imprisonment,” which reason does not exist in the case at bar. The appellant *540caused tbe government but little, or no expense, and, moreover, tbe people have had the use of the $5000 he paid as a fine for over sixteen years, interest on which, at the legal rate would now amount to about $5000, which the appellant does not ask for.
Viewing the matter from the "standpoint of the people — the tax-payers — there is an important, practical distinction, financially, between punishment by imprisonment and punishment by fine. In the case of imprisonment, in the event of an appropriation being made for the benefit of the person who has suffered, the money must necessarily be raised by taxation, i. e., paid by the people; while in the case of a fine, the appropriation is simply a refunding of the money to the person who paid it into the treasury, which does not involve a question of taxation or payment by the people.
State v. Railroad did not involve any question such as we are called upon to determine in this appeal. In that case it appears that after the court had entered judgment requiring the respondent to construct a certain bridge over its railroad, the legislature passed an act providing that no structure should, be built over any railroad, until the railroad commissioners should have determined the length, width, material and plan of the structure, its height above the roadbed, and the necessity for its construction. An alternative writ of mandamus having issued to compel the respondent to construct the bridge in question, respondent moved to quash the writ on the ground, inter alia, that the railroad commissioners had not determined the matters required of them by the statute. The court overruled the motion and issued a peremptory writ. The respondent appealed. The appellate court in affirming the action of the- lower court held, “that inasmuch as the language of the Act did not expressly nor by necessary implication malee it applicable to pending cases — much less to cases already adjudicated — the Act could not be construed to affect such cases. Whether the legislature has the power, under the Constitution of this State, *541to open or vacate final judgments and provide another tribunal or retry matters once determined by the judicial department, quaere." The statute in question does not attempt to open or vacate any judgment, nor to provide another tribunal to- retry matters heretofore determined.
Haley v. Clark, was an application for a writ of mandamus to compel Clark, as county treasurer, to- pay to Haley and three others the sum of $500, which he was directed, to pay to- them by an act. of the legislature, entitled, “An act for the relief of securities of John Douglass, late clerk of the Circuit Court of Marion County.” Clark demurred on the ground that the act was unconstitutional. The demurrer was sustained and the applicants for the writ appealed. Douglass, by reason of some delinquency, became liable to a fine of $500, for the payment of which, the appellants were his sureties. Douglass having failed to pay the fine the sureties paid it. The' case does not disclose upon what grounds the act was based. It is evident, however, that it was not founded upon any equitable or moral obligation, such as exist in the case at bar. So far as we are able to gather from tine language of the case, the act was a mere gift, “a donation,” as counsel for the appellant admitted. The court, however, proceeded upon the theory that the act in question was an attempt to remit a fine, that is to exercise the pardoning power. Assuming that no pardon had been granted in that case, the stain and stigma of the offense, of course, remained. This could only be removed by a full pardon, and thus an attempt to “remit” the fine was an attempt to exercise some part or all of the pardoning power. But where a full pardon has been granted there remains no stain, no stigma, no penalty, no fine — all have been remitted — although the money paid as a fine may have passed beyond the reach of the pardoning power, and for that reason cannot be refunded, except by an act. of the legislature. In the case at bar there remains no fine to. remit, that was included in the pardon. The money paid as a fine, however, can and should be refunded by authority of the *542legislature — the only department of the government having any power over it.
Mr. Justice Perry also cites Haley v. Clark. Therefore, what I have to say on the point suggested by that case may be stated now; and in this connection I cite Cook v. Freeholders of Middlesex, 26 N. J. L. 326, 328, wherein the court said: “There is no doubt that the word remit is sometimes used in the sense of return or restoration, though in this sense Dr. Johnson says that the word is obsolete. So in case of ‘remitter’ it is said, by Blaekstone, that the party is remitted, or sent back by operation of law to his ancient and more certain title. 3 Black. Com. 20. But as applied to the penalty of crime, the word has a totally different signification. It is used as equivalent to pardon or discharge from the penalty of transgression. ‘To remit’ is defined by our best lexicographers to be to forgive, to pardon, to release from punishment or penalty. It is so uniformly used in that rich mine of pure Anglo-Saxon, the English translation of the New Testament, numerous instances of which will occur to every familiar reader of that volume. Thus in John XX.: 23, ‘whomsoever sins ye remit they are remitted.’ It is used by legal writers to import discharge from the penalty of transgression. In this sense, Blaekstone uses it when he says the punishment of the offender may be remitted and discharged by the concurrence of all parties interested. 4 Black. Com. 316. Pardon, in the law, is the remitting or forgiving of an. offense committed against the King, Jacobs Law Diet., ‘Pardon.’ A full and free pardon in itself, necessarily involves a remission of the penalty of the crime. Hawk., b. 2, 31, §48. It is absurd to think of a man’s being pardoned, and yet left to pay the fine, to suffer imprisonment, or to endure any of the penalties of his transgression, subsequent to his pardon.”
The legislature in the enactment of the statute before us did not attempt to give or donate money to Mr. Cummins as a mere gratuity; nor did it attempt to remit a fine; nor did it attempt *543to interfere with or in any way to question the judgment of the military commission. The matter had passed beyond the control, of the judiciary and executive. The power of each had been fully exercised. But, considering the equity and natural justice of the claim, as well as other proper matters, including the historical events covering the period of transition from the Monarchy to the organization of the Territory, that there was strife and turmoil in the land, and that the political and economical views of honest men were in conflict, all of which we are bound to assume the legislature considered, and in the exercise of its legislative discretion, which we have no right to question, it appropriated $5000 for the purpose of refunding, not giving, to Mr. Cummins the amount of the fine, — not to remit, forgive, or pardon, — because the executive had already performed that act of clemency without limitation.
Whether the claim was founded on the broad principles of equity and natural justice, and should or should not have been recognized, was a legislative and. not a judicial question. The legislature having determined this question, the judiciary is bound. Courts have no more right to review the exercise of legislative discretion than the legislature has to meddle with the judgments of the courts. Each, within its own province, is supreme and independent, and neither is answerable to the other for its .errors or failure to fulfill its mission in the governmental scheme.
The claim in question being founded upon equity and natr ural justice, it was within the power of the legislature to recognize it as a debt due from the people to' Mr. Cummins. In United States v. Realty Co., 163 U. S. 427, 440, the court said: “Under the provisions of the Constitution, (article 1, section 8,) Congress has power to lay and collect taxes, etc., To pay the debts’ of the United States. Having power to raise money for that purpose, it of course follows that it has power when the money is raised to appropriate it to the same object. What are the debts of the United States -within the meaning of *544this constitutional provision ? It is conceded and indeed it cannot bo questioned that the debts' are not limited to those which are evidenced by soane written obligation or to those which are otherwise of a strictly legal character. The term 'debts’ includes those debts or claims which rest upon a merely equitable or honorary obligation, and which would not be recoverable in a court of law if existing against an individual. The nation, speaking broadly, owes a 'debt’ to an individual when his claim grows out of general principles of right and justice; when, in other words, it is based upon considerations of a moral or merely honorary nature, such as are binding on the conscience or the honor of an individual, although the debt could obtain no recognition in a court of law. The power of Congress extends at least as far as the recognition and payment of claims against the government which are thus founded. To no other branch of the government than Congress could any application be successfully made pn the part of the owners of such claims or debts for the payment thereof. Their recognition depends solely upon Congress, and whether it will recognize claims thus founded must be left to the discretion of that. body. Payments to individuals, not of right or of a merely legal claim, but payments in the nature of a gratuity, yet having some feature of moral obligation to support them, have been made by the government by virtue of acts of Congress, appropriating the public money, ever since its foundation. Some of the acts were based upon considerations of pure charity.”
Cooley on Taxation (pp. 69, 91), lays down the same broad, humane principles, as expressed in the case just cited. See also Brewster v. City of Syracuse, 19 N. Y. 116; United States v. Weld, 127 U. S. 51; Williams v. Heard, 140 U. S. 529; Comegys v. Vasse, 1 Pet. (U. S.) 193; Emerson v. Hall, 13 Pet. (H. S.) 409; United States v. Jordan, 113 U. S. 418; Booth v. Town of Woodbury, 32 Conn. 118, 128; Agnew v. Brall, 124 Ill. 312, 316; Blanding v. Burr, 13 Cal. 343, 354; In re Flournoy, Atty.-Gen., 1 Ga. 606; Cook v. Freeholders of *545Middlesex, 27 N. J. L. 637, 643; Cope v. Com., 28 Pa. St. 297; Guilford v. Chenango County, 13 N. Y. 143.
As to the pardoning power, I agree with Mr. Justice Perry, that it is vested in the executive and cannot he exercised by either of the other departments of the government.
Mr. Cummins having paid the fine imposed upon him and the money with which the fine was paid having been covered into the treasury, he was subsequently granted a full pardon.
“A pardon is an act of grace which proceeds from the power intrusted with the execution of the laws, and exempts the individual on whom it is bestowed from the punishment which the law indicts for a crime that he has committed.
“A-pardon is full or absolute when it freely and unconditionally absolves the party from all the legal consequences of his crime and his conviction, direct*and collateral; including the punishment, whether of imprisonment, pecuniary penalty, or whatever else the law has provided.” 24 Am. & Eng. Ency. Law (2d ed), 551; 29 Oyc. 1559, 1566.
While a full pardon puts an end to all further punishment, it does not afford any relief for what has been suffered (29 Cyc. 1567), because a pardon is not restrospective, it does not operate upon that, part of the sentence which has been executed. But it blots out the crime and removes the stain and stigma of the offense committed. A fine, if it has not been paid into the treasury, i. e., if it remains within the scope of the pardoning power, it is impliedly remitted, forgiven, as an incident to- the pardon. If, however, the fine has been p^id into the treasury, obviously, it has passed beyond the power and control of the executive to refund., athough the crime, of which it was an incident, has been absolutely obliterated — every stain of it washed away. “A pardon is an act of grace by which the offender is released from the consequences of his offence, so far as such release is practicable and within control of the pardoning power.” Ill. Cent. R. R. v. Bosworth, 133 U. S. 92, 104. On the other hand, should the legislature, before the fine is paid into *546the treasury, as well as before the exercise of executive clemency, attempt to remit the fine, unquestionably, that would, not only be an attempt to exercise the pardoning power, but it would also be an interference with the judgment of the court. Neither department of the government can invade the province of another or assume any power over any matter under the control of either of the others. This view is practical, and as matters pass from the control of one to another, the power of the former ceases and the power of the latter may be invoked. This affords a full and complete exercise of all the functions of each department, and. is in perfect harmony with constitutional requirements and inhibitions.
The cases cited by Mr. Justice Perry on this phase of the question are, as it seems to me, clearly distinguishable from the case at bar. Many of the observations there expressed I accept unhesitatingly.
In Singleton v. State, 34 L. R. A. 251, the legislature attempted to restore to Singleton, who had been convicted of the crime of larceny, his civil rights. The mere statement of this proposition shows that the legislature attempted to exercise the pardoning power.
In State v. Sloss, 25 Mo. 291, the legislature attempted to release Sloss, as well as others, then indicted for certain offenses. Obviously, this was an unconstitutional act.
In State v. Fleming, 26 Tenn. 151, the legislature, by resolution, attempted to discharge Fleming and another who were indicted for selling spirituous liquors. Comment is unnecessary.
In Baldwin v. Scoggin, 15 Ark. 427, two persons had been fined in a certain sum for which a promissory note had been given and before its payment the governor pardoned the defendants, thus remitting the fine, which, of course, had not passed into the treasury, but remained under'his control. As the court said in that case, ■ “a note so given and received in such case, being no payment or satisfaction, the fine had not *547passed beyond the pardoning power of the governor.”
State v. Nichols, 26 Ark. 74, does not seem to have any bearing upon any phase of the question before us for consideration. The court indulges in quite a lengthy discussion as to the pardoning power not naturally or necessarily being an executive function.
In Ogletree v. Dozier, 59 Ga. 800, it appears that one Moore had. been sentenced “to work on the chain-gang.” The county commissioners, under an act of the legislature, hired him to Ogletree to work on his plantation, or elsewhere, at Ogletree’s pleasure. Ogletree demanded Moore from the sheriff, who refused to give him up. Ogletree brought habeas corpus. The court held that the act of the legislature, so far as it permitted the change of the sentence of the court from work on the chain-gang to the hire of the convict to a private person for private work, was unconstitutional.
Rich v. Chamberlain, 104 Mich. 436, simply shows that an act of the legislature, which provides for an “Advisory Board in the Matter of Pardons,” and determines its powers and duties is not in conflict with section 11, art. 5, of the Constitution, which vests the pardoning power exclusively in the governor, “subject to regulations provided by law relative to the manner of applying for pardons.”
Forsyth v. County, 141 N. Y. 288, merely holds that a statute which in terms authorizes courts of criminal jurisdiction to suspend sentence in certain cases, is not violative of the provision of the state constitution (§5, art. 4) giving to the governor the power to grant reprieves and pardons. See Rep. Haw. v. Pedro, 11 Haw. 287; R. L. Chap. 184.
In State v. Kirby, 51 So. 811, held that an act authorizing the board of supervisors to discharge a convict from jail, if unable to labor from bodily infirmity, violates the constitution which confers upon the governor the sole power to pardon.
Having examined other cases cited and feeling that they are not in conflict with the views which I have endeavored to set *548forth in this opinion, I deem it unnecessary to prolong the matter. I am of the opinion that- Act 144 of the Laws of 1911 is valid and constitutional.
Lorrin Andrews and Eugene Murphy for appellant. Alexander Lindsay, Jr., Attorney General, for the Auditor.