—The appellants claim under a private-act (Acts 1849-50, p. 452), by the first section of which it is enacted “ that the treasurer of Marion county be, and he is hereby directed to pay Allen Haley, John M. Frederick, John T. Sanders, and William Warren, the securities of John Douglass, late clerk of the Circuit Court of Marion county, the sum of five hundred dollars, that being the amount of a fine which they have paid for said Douglass, in consequence of said Douglass having failed to'comply with the requisitions of the second section of the act of 1834.” The second section provides for the payment of the amount out of the funds of the county, arising from fines and forfeitures, upon making it appear that they have paid off and settled the fine, and all costs and damages in relation thereto, and also that Douglass has accounted for and paid all public moneys for which he as such clerk was liable.
The principal question is, whether this act is unconstitutional. By article IY, section 11, of the constitution of Alabama; the power to remit fines and forfeitures is given to the Governor, and by the second article, the powers of the gov-*442eminent are divided into tliree distinct departments — the legislative, executive and judicial, and no one of these departments, or person belonging thereto, can exercise any power properly belonging to either of the others,- unless expressly directed or permitted by the constitution. The power to pardon offences, except in case of treason and impeachment, and to remit fines and forfeitures, being, as we have seen, confided by the fundamental law to the executive branch of the government alone, this power is virtually denied to any other department, and cannot, therefore, be exercised by the Legislature. The only question is, whether the act referred to is, directly or indirectly, an attempt to remit a fine; for if it be so, the mode or manner in which it is to be done is entirely immaterial. It is the right which the constitution denies, without reference to the mode in which it may be exercised. We regard the act in question as a donation to the parties therein named of the amount of a fine which had been imposed on them in pursuance of law, upon making proof to the treasurer that they had paid it. A pardon is nothing more than relieving one from the penalty which the law has placed him under, and has the effect of restoring him to his condition before conviction.
It is impossible for any one to read the first section of the act, without seeing that its purpose is identical with a pardon. The plain intention is, to relieve the parties “against a fine which the law has imposed on them — to place them, by the re-payment of the money, in the same condition they occupied before conviction; and this being the case, it matters not whether the act is passed before or after the fine is paid. It is the substance of the thing we must look at; and certainly it never could have been the intention of the framers of the constitution, to prohibit the Legislature from remitting a fine, and yet allow that body to accomplish the same result by compelling the fine when paid to be refunded. If that could be done, the prohibition would be nugatory. The Governor might refuse to pardon, and the Legislature direct the treasurer to pay the party the amount of his fine. We can see no real difference between the two cases. If the Legislature have the right to give away the public money — in relation to which we say nothing — they at least have not the coustitu-
*443tional right to give it for the purpose of enabling an offender to relieve himself against a fine; and if that purpose appears upon the face of the act, courts could not do otherwise than declare it invalid. This is the case here: certain parties have been fined ; it is not pretended the fine has been remitted by the Governor ; it is conceded that the Legislature has not the authority to remit; but after payment, it is insisted, that body may legitimately refund the fine. To sustain this position would be to allow one department of the government to trench upon the powers of another, and to defeat the purpose which the constitution contemplated in confining the pardoning power to one branch of the government, by permitting it to be indirectly exercised by another.
The act we have considered being void, the judgment of the court in refusing to sustain any legal proceeding based upon it was correct.
Judgment affirmed.