except treason and impeachment, subject to such regulations as may be prescribed by law relative to the manner of applying for pardons, and we are of the opinion that the pardoning power after conviction, conferred by this section upon the board of pardons designated, is exclusive, and that the legislature cannot exercise such power. The Constitution of Mis souri vested the pardoning power in the governor, and it was decided in State v. Sloss, 25 Mo. 291, 69 Am. Dec. 467, that such power belonged exclusively to the executive department, and could not be exercised by the legislature. The Constitution of the United States confers upon the President the power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment, and Judge Story says (on the Constitution, vol. 2, 1404) that "no law can abridge the constitutional powers of the executive department, or interrupt its right to interpose by pardon in such cases. It was held in Ex parte Garland, 71 U. S. 4 Wall. 333, 18 L. ed. 366, that the pardoning power conferred on the President was not subject to legislative control. In this case it is said, in reference to the effect of a pardon, that it "reaches both the punishment prescribed for the offense, and the guilt of the offender. When the pardon is full, it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the Be offense." This has been approved in an opinion of the justices of this court (Re Executive Communication, 14 Fla. 318). It is settled law that the pardon of an offense not only blots out the crime committed, but removes all disabilities resulting from the conviction. "Imprisonment and hard labor are not the only punishments which the law inflicts upon those who violate its commands. sides these are disabilities which are the conse quences of conviction, and which remain after incarceration has ceased. A pardon is supposed to be granted to one who has been improperly convicted, or who has sufficiently expiated his offense. If it was only efficacious when the party was in duress, its effects would only be a half-way relief. The doctrine, now well recognized upon this subject, we believe, is that a pardon gives to the person in whose favor it is granted a new character and makes of him a new man. When extended to him in prison, it relieves him and removes his disabili ties; when given to him after his term of imprisonment has expired, it removes all that is left of the consequences of conviction,—his disabilities." State v. Baptiste, 26 La. Ann. 134. Under the section of the Revised Statutes referred to a conviction of the crime of larceny in the courts of this state disqualifies the convict as a witness, and there can be no question that a pardon in such a case would restore his competency in this respect. From the con restrict the pardoning power of the executive is | S. 149, 152, 24 L. ed. 442, 443, as follows: "The Constinot within the scope of this note. It may be ob.tution does not use the word 'amnesty;' and, except served, however, that in many states the Constitution provides that the executive shall exercise the pardoning power subject to such rules and regulations as shall be prescribed by law. By U. S. Rev. Stat. § 5294, Congress authorized the remission of certain penalties by the Secretary of the Treasury. The constitutionality of this provision was attacked on the ground that it infringed on the President's pardoning power, but the section was held valid "in view of the practice in reference to remission by the Secretary of the Treasury and other officers which had been sanctioned by statute and acquiesced in for nearly a century." Pollock v. Bridgeport S. B. Co. ("The Laura"), 114 U. S. 411, 29 L. ed. 147, Affirming 8 Fed. Rep. 612. While the special acts of Congress granting pardon or amnesty have not been brought into the courts for adjudication of their constitutionality, there is a declaration in favor of the power of Congress to pass acts of general amnesty made by the Supreme Court of the United States in Brown v. Walker, 161 U. S. 591, 40 L. ed. 819, 5 Inters. Com, Rep. 389, where the court, in upholding the act of Congress exempting a witness from prosecution on account of any transaction to which he may testify before the Interstate Commerce Commission, says: "The act of Congress in question securing to witnesses immunity from prosecution is virtually an act of general amnesty, and belongs to a class of legislation which is not uncommon either in England (2 Taylor, Ev. § 1455, where a large number of similar acts are collated), or in this country. Although the Constitution vests in the President power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment, this power has never been held to take from Congress the power to pass acts of general amnesty." that the term is generally employed where pardon is extended to whole classes or communities, instead of individuals, the distinction between them is one rather of phiological interest than of legal importance." But the opinion in the case of Brown v. Walker further proceeds to say: "Amnesty is defined by the lexicographers to be an act of the sovereign power granting oblivion, or a general pardon for a past offense, and is rarely, if ever, exercised in favor of single individuals, but is usually exerted in behalf of certain classes of persons, who are subject to trial, but have not yet been convicted." III. Incidental or implied pardon. It is perfectly plain that all the effect of a pardon or grant of amnesty before conviction, so far as the criminal is concerned,can be achieved by the legis lature through the repeal of a statute creating the offense without any saving clause. The rule that all pending prosecutions fall, and all prior offenses not yet prosecuted are wiped out by such a repeal, is too well established to need discussion or citation of authorities. But there are some other cases in which statutes not so directly granting amnesty as the act of Congress upheld in Brown v. Walker, 161 U. S. 591, 40 L. ed. 819, 5 Inters. Com. Rep. 369, have an incidental effect which has been alleged to be equivalent to a pardon. Thus, a statute providing for good-time credits to a convict was held as to all prior sentences to amount to an unconstitutional pardon in State, Johnston, v. McClellan, 87 Tenn. 52. (For good-time credits as affecting definiteness of sentence, see Howard v. United States (C. C. App. 6th C.) post, --, and note. So, in People v. Cummings, 88 Mich. 249, 14 L. R. A. 285, a statute authorizing a parole or conditional release by the board of control of persons of a The distinction between amnesty and pardon prisoner sentenced for an indefinite time, whereby is said by the court in this case to be "of no prac-he remains in the legal custody of the board, altical importance," and the court quotes from the though outside of the prison and subject to be opinion in the case of Knote v. United States, 95 U. | taken back on the order of the board if he violates 1896. SINGLETON V. STATE. clusions stated, it is evident that an attempt on the part of the legislature to exercise any part of the pardoning power exclusively conferred upon the board of pardons by 12, article 4, of the Constitution, would be in conflict with that instrument, and therefore void. act would include the restoration of com- The act relied on to qualify the witness, Bishop, provides for his restoration to "civil rights." There is, in a section in the suffrage and eligibility article of the Constitution, a provision that no person convicted of felony by a court of record shall be qualified to vote at any election unless restored to civil rights, and within the meaning of this provision it may be that the elective franchise is embraced within To accomplish the civil rights contemplated. the purpose for which the act of 1895 is invoked, it must have the effect to relieve Howard Bishop from the disability of not being able to testify as a witness attaching, under the law, to the conviction of the crime of larceny. This disability is as much a part of the pains and penalties of the violated law as incarceration, and after conviction it attaches as surely as any other part of the punishment. In our judgment the power to commute punishment and grant pardons for crimes after conviction has been conferred upon the gov-nied. There was also a plea in abatement of ernor, the secretary of state, comptroller, commissioner of agriculture, and attorney general, and it is not competent for the legislature to In this view it is not exercise such power. necessary to determine definitely whether the restoration to civil rights as provided in the the condition of his parole or release, is held to vio- So, a statute authorizing a court to suspend sentence is sustained in People, Forsyth, v. Monroe County Ct. of Sessions, 141 N. Y. 288, 23 L. R. A. 856. The court denies that this statute encroaches on the governor's power to reprieve and pardon, since it holds that this power to suspend sentence is a common-law power of the court, and totally distinct and different from the power to grant reprieves and pardons; but the court says there can be no doubt that if the amendment distributed any part of the pardoning power conferred upon the executive to some other department of the government, the legislation would be in conflict with the Constitution and invalid. So, a statute giving an appellate court power to stay sentence of death or of fine, pending an appeal, is sustained in Parker v. State, 135 Ind. 534, 23 L. R. A. 859, and it is held that the governor's power to grant reprieves and pardons is not infringed thereby. So, a statute providing a board of pardons to investigate the facts on a petition for pardon and report to the governor with recommendations, if the recommendations have no binding force upon him, is sustained in Rich v. Chamberlain, 104 Mich. 436, 27 L. R. A. 573. The basis of the decision is that the governor's power is in fact unrestricted by the act of the board, since he is entirely at liberty to disregard their recommendations. The accused made an application for a change of venue, upon which affidavits pro and con, were filed. The application was de the indictment, alleging certain defects in the organization of the grand jury that presented the indictment, and there were certain proceedings on this plea. We do not think there was reversible error in the rulings on the application for change of venue and plea in abatement. So, a statute which authorizes the supension of certain penalties of a prohibitory liquor law in any town or city upon certain conditions, including the consent of a specified portion of the electors, is held valid, and the act is held not to constitute an infringement of the governor's pardoning power. State, Witter, v. Forkner (Iowa) 28 L. R. A. 212. The court says, "The power to pardon must not be confounded with the power of dispensation or suspension. The former is undoubtedly a prerogative of the executive, while the latter must be exercised by the legislative department of the government." Reference is also made to somewhat similar statutes which are said to have passed unchallenged for years, such, for instance, as that which provides for the discharge of a person convicted for intoxication and the remission of his fine upon giving information under oath as to the person from whom he obtained the intoxicating liquor, and the statutory provision as to the effect of marriage to bar an indictment for seduction, and the provisions for the bar of certain prosecutions upon a compromise. But a statute to authorize county commissioners to change the sentence of a court from work on a chain gang to the hire of the convict to a private person for private work is held to infringe on the governor's exclusive power to commute sentences. Ogletree v. Dozier, 59 Ga. 800. On the other hand, a Missouri case upholds a statute giving a justice power to commute a fine to imprisonment for a definite time on the ground that such an alternative punishment is wholly unlike a pardon. Er parte Parker, 108 Mo. 551. These cases, so far as they support legislation which has the effect to relieve from punishment, are based on distinctions between the powers actually exercised and the pardoning power, without B. A. R. at all deciding that the legislature can exercise the power to pardon. Under the laws of this state an accused is en- | sider the instructions of the court to the jury; titled to be tried by an impartial jury, and but we direct attention to the general proposiwhen it shall appear to the trial judge that a tion stated in one of the instructions, that an fair and impartial trial cannot be had in the aggressor in a personal difficulty can never be county where the offense was committed, he heard to acquit himself of liability for its conshould direct that the accused be tried in an- sequences on the ground of self-defense. Withother county. Under our decisions this matter out considering now whether this portion of is left largely to the discretion of the trial court, the charge, in the terms stated, contains a corand its ruling on such matters will not be dis- rect proposition of law under any state of cirturbed unless it appear from the facts pre- cumstances, it may, so far as we can see, be sented that the court acted unfairly and com- omitted or modified in this case. mitted a palpable abuse of a sound discretion. We cannot anticipate what the evidence will be on another trial of the case, and do not con The judgment will be reversed and a new trial ordered. KENTUCKY COURT OF APPEALS. W. R. BELKNAP et al., Appts., C. City of LOUISVILLE et al. People, Wheaton, v. Wiant, 48 Ill. 263; People, Mitchell, v. Warfield, 20 Ill. 160; People, Davenport, v. Brown, 11 Ill. 478; Bayard v. Klinge, 16 Minn. 249; Taylor v. Taylor, 10 Minn. 107; Everett v. Smith, 22 Minn. 53; Enyart v. Hanover Tup. Trustees, 25 Ohio St. 618; 1. A special election upon the question of State, Cope, v. Foraker, 46 Ohio St. 677, 6 L issuing municipal bonds cannot be held where the R. A. 422; State, Jones, v. Lancaster County Constitution provides that not more than one Comrs. 6 Neb. 474; People, Crowell, v. Lawelection shall be held in each year, but such ques-rence, 36 Barb. 186; State v. Winkelmeier, 35 tion must be submitted at a general election. Mo. 103; South Bend v. Lewis, 138 Ind. 2. Two thirds of the voters voting at an 512. election to be held for that purpose, whose assent is necessary to authorize municipal indebtedness, means two thirds of all the votes cast for any purpose at the election, where but one election can be held during the year, at which all questions to be submitted to the voters must be decided. In Armour Bros. Bkg. Co. v. Finney County Comrs. 41 Fed. Rep. 321, it is said: "The words 'a majority of all the votes cast' do not mean cast at a poll opened for the purpose of a general election, but cast for the purpose of such assessment, at a poll opened for that purpose." Marion County Comrs. v. Winkley, 29 Kan. 36: State, Crooker, v. Echols, 41 Kan. 1; Cass County v. Johnston, 95 U. S. 369, 24 L. ed. 417; Walker v. Oswald, 68 Md. 146; Gillespie v. Palmer, 20 Wis. 544; Sanford v. Prentice, 28 Wis. 358. Courts are steadfastly opposed to the presumption that a majority of all the legal voters" is intended, because that would lead to an inquiry outside of the ballot box and require proof as to who is a legal voter, which is the first case. Carroll County Supers. v. Smith, 111 U. S. 556, 28 L. ed. 517. If the ballot shows that a minority has voted on a question submitted at a general election, it shows that it is a minority and not a majority of those voting. If the lawmaker intends to confine the evidence to those voting on the question, it should so express it in the act, otherwise the rule should control. The debates in the constitutional convention, and the statutes of Kentucky on the subject, conclusively show that by the expression "two thirds of the voters voting at an election to be held for that purpose" was meant two thirds of all voting at a general election, and not simply two thirds of those voting on any particular question submitted. NOTE.-As to what constitutes a sufficient major-gersoll (Tenn.) 6 L. R. A. 310; also People, Wells, v. ity to carry an election, sce note to Lawrence v. In- Berkeley (Cal.) 23 L. R. A. 838. Messrs. Humphrey & Davie, with Mr. H. S. Barker, for appellees: In testing the validity of the election to be held for that purpose to determine whether these bonds should or should not be issued, the only question to be considered is whether the votes in favor of issuing the bonds were more than two thirds of those voting for that purpose, i. e., more than two thirds of those voting for and against the issue of the bonds. When the Constitution comes to define what "elections" shall be held on the 1st Tuesday in November it carefully limits it to the election of "officers." Fidelity Trust & S. V. Co. v. Morganfield, 96 Ky. 564. | that the majority cast for a proposition—at a special election where it alone is voted for-is not the real majority in fact of the actual number of voters in the district. Carroll County Supers. v. Smith, 111 U. S. 556, 28 L. ed. 517; Douglass v. Pike County, 101 U. S. 685, 25 L. ed. 971; Bassett v. State, Renick, 37 Mo. 270; State v. Binder, 38 Mo. 450; Knox County v. Ninth Nat. Bank, 147 U. S. 99, 37 L. ed. 96; Dill. Mun. Corp. 4th ed. § 277; Cooley, Const. Lim. 6th ed. 779; McCrary, Elections, 3d ed. 173; First Parish in Sudbury v. Stearns, 21 Pick. 154; Vance v. Austell, 45 Ark. 406; Richardson v. Mc Reynolds, 114 Mo. 641; Yesler v. Seattle, 1 Wash. 308. Were the language of the Indiana Constitution like ours, the Indiana court would hold the way we contend for. Lamb v. Cain, 129 Ind. 486, 14 L. R. A. 518; Rushville Gas Co. v. Rushville, 121 Ind. 209, 6 L. R. A. 315. The law does not permit the absent or indifferent to neutralize the efforts of the public spirited and enterprising, but compels every one who would make his influence effective to attend the meeting and vote in the manner The question whether bonds should be issued by the city of Louisville was a question which was not constitutionally to be submitted on the day in November at which the elections for officers were to be held, but could have been submitted to a vote of the people on any day and at any time that the legislature should fix. No one would have pretended if this election had been fixed and held in August or September that the question submitted to the voters was to be decided otherwise than by adding up the total vote cast on this “question sub-provided by law. mitted to them" and seeing whether two thirds of those voting on the "question so submitted" were in favor of the issuing of the bonds. Carroll County Supers. v. Smith, 111 U. S. 556. 28 L. ed. 517; McCrary, Elections, 3d ed. $ 173. The fact that the legislature or the city ordinance happened to fix, for the sake of economy, the same day on which elections were being held for other purposes or to elect candidates cannot in any manner change the principle or the result. When a matter is submitted to the vote of the people the question of its passage or rejection is to be determined by the vote of those people who choose to express themselves upon that subject-for or against it; and is not to be determined by persons not voting upon it. Gillespie v. Palmer, 20 Wis. 544; Thomp. Corp. 728; Carroll County Supers. v. Smith, 111 U. S. 565, 28 L. ed. 520. Where a question is to be settled by a vote of the majority or two thirds of the " voters voting at an election to be held for that purpose," it means that it is to be settled by the votes cast on the question submitted, and not by the votes cast in elections held for other purposes or upon other questions. Smith v. Procter, 130 N. Y. 319, 14 L. R. A. 403. As the Constitution does not derive its force from the convention which framed, but from the people who ratified it, the intent to be arrived at is that of the people; and it is not to be supposed that they have looked for any dark or abstruse meaning in the words employed, but rather that they have accepted them in the sense most obvious to the common understanding, and ratified the instrument in the belief that that was the sense designed to be conveyed. Exchange Bank v.'Hines, 3 Ohio St. 47; Cooley, Const. Lim. 6th ed. 80, 81. The proper construction of this clause had been thoroughly settled by the courts long before it was adopted into our new Constitution, and where a clause or language has received a construction by the courts of the states where it was formerly used, and it is then adopted by a convention or legislature of our state, it will be considered as adopted within the construction previously given. Metropolitan R. Co. v. Moore, 121 U. S. 558, 30 L. ed. 1022; Coolam v. Doull 133 U.S. 223, 33 L. ed. 597; Allen v. Ramsey, 1 Met. (Ky.) 637; Cooley, Const. Lim. 6th ed. 66, note; Endlich, Interpretation of Statutes, 530; McDonald v. Hovey, 110 U.S. 619, 28 L. ed. 269. Armour Bros. Bkg. Co. v. Finney County Comrs. 41 Fed. Rep. 321; Walker v. Oswald, 68 Md. 155; St. Joseph Twp. v. Rogers, 83 U.S. 16 The phraseology of this section of the new Wall. 644, 21 L. ed. 328; Cass County v. John Kentucky Constitution has often been conston, 95 U. S. 360, 24 L. ed. 416; State, Lara-strued before its adoption here. bee, v. Barnes, 3 N.D. 319; Metcalfe v. Seattle, 1 Wash. 302; Gillespie v. Palmer, supra; Marion County Comrs. v. Winkley, 29 Kan. 36; State, Durkheimer, v. Grace, 20 Or. 154; State, Crooker, v. Echols, 40 Kan. 1; Sanford v. Prentice, 28 Wis. 358; Holcomb v. Davis, 56 Ill. 413; Constitutional Prohibitory Amendment, 24 Kan. 721; Smith v. Procter, 130 N. Y. 319, 14 L. R. A. 403. Metcalfe v. Seattle, Wash. 302; Walker v. Oswald, 68 Md. 155; Carroll County Supers. v. Smith, 111 U. S. 556, 28 L. ed. 517; Sanford v. Prentice, 28 Wis. 358; Knox County v Ninth Nat. Bank, 147 U. S. 99, 37 L. ed. 96: Vance v. Austell, 45 Ark. 406; Richardson v. Mc Reynolds, 114 Mo. 641; Yesler v. Seattle, 1 Wash. 308; Douglass v. Pike County, 101 U. S. 679, 25 L. ed. 969; Cass County v. Johnston, 95 U. Neither parol evidence, nor registration S. 369, 24 L. ed. 417; South Bend v. Lewis, 138 lists, nor the records of the numbers of voters Ind. 512; McCrary, Elections, § 173; Endlich, in previous elections, can be looked to, to show | Interpretation of Statutes, § 530; Franklin County Ct. v. Deposit Bank, 87 Ky. 382; Peo- | therefore "a question submitted to the voters" ple, Mitchell, v. Warfield, 20 Ill. 163; Louisville & N. R. Co. v. Davidson County Ct. 1 Sneed, 692, 62 Am. Dec. 424; Bridgeport v. Housatonic R. Co. 15 Conn. 475; State, Bassett, v. Renick, 37 Mo. 270; St. Joseph Twp. v. Rogers, 83 U. S. 16 Wall. 644, 21 L. ed. 328; Everett v. Smith, 22 Minn. 53; State v. Binder, 38 Mo. 450; People, Gaines, v. Garner,47 Ill. 253. Du Relle, J., delivered the opinion of the court: This suit was brought for an injunction to restrain the city of Louisville from issuing $1,000,000 of bonds for park purposes. There were two grounds alleged for the injunction, the first and main ground urged being that at the election of November 6, 1894, the question of the issue of bonds was submitted to the voters of the city, and that the proposition to issue did not receive the assent of two thirds of the voters thereof, within the meaning of 157 of the Constitution, and 2854 of the Kentucky Statutes. It appears that at the election there were cast in the city of Louisville a total of 32,425 votes, and that on the question of the issue of park bonds there were cast only 9,204 votes, of which 6,483 were cast in favor of the issue, and 2,721 against it. Section 157 of the Constitution provides that no county, city, town, taxing district, or other municipality, shall be authorized or permitted to become indebted in any manner, or for any purpose, to an amount exceeding in any year the income and revenue provided for such year, without the assent of two thirds of the voters thereof, voting at an election to be held for that purpose; and any indebtedness contracted in violation of this section shall be void." It is contended for appellants that, the total number of votes cast at the election in favor of the bond issue being less than two thirds of the whole number cast at the election, the bond issue failed to carry, upon the ground that the section referred to requires that two thirds of the total vote cast at the election shall be cast in favor of the issue. Appellees contend that the words," two thirds of the voters thereof voting at an election to be held for that purpose," restrict us to the consideration of the total number of votes cast for and against the question of issuing bonds, and that, therefore, more than two thirds of the votes of those voting "for that purpose" were cast in favor of the bond issue. In other words, appellees' contention is that, in the "election held for that purpose," only the votes cast for that purpose-for and against the bond issue-can be considered, and that no account can be taken of votes cast for other purposes, such as the election of officers, although cast on the same day. Great stress was laid by appellees' counsel upon the argument that the legislature might have provided for the submission of the question of the bond issue at a special election, held on a different day from the regular annual election, and at which no other question or election was determined; and as at such special election only the votes cast upon the bond issue could be considered, though the vote might, and probably would, be much less than the vote cast at the regular annual election, is not in any way dependent on or connected with an election of officers, although submitted on the same day and by means of the same ballots; and, as the Constitution left it to the legis lature to determine whether the question should be submitted on the day of the general election or on some other day, the action of the legislature in fixing the submission for the same day as the general election did not commingle or make them interdependent. In support of this contention the case of Fidelity Trust & S. V. Co. v. Morganfield, 96 Ky. 564, is relied on. In that case it was held that the submission of an issue of bonds for municipal purposes might be upon a different day from that of the general election. After careful consideration by a full bench, a majority of the court are unable to adhere to the doctrine laid down in that opinion. Section 147 of the Constitution, requiring elections by the people to be by secret official ballot, provides that "the word 'elections' in this section includes the decision of questions submitted to the voters, as well as the choice of officers by them." Section 148 provides that "not more than one election in each year shall be held in this state or in any city, town, district, or county thereof, except as otherwise provided in this Constitution. All elections of state, county, city, town, or district officers shall be held on the 1st Tuesday after the 1st Monday in November." It is otherwise provided as to elections for school trustees by $ 155, which excepts those elections from the provisions of SS 145 to 154 inclusive, and as to elections for taking the sense of the people of a county, city, etc., as to whether liquors shall be sold therein, by $ 61, which provides: "All elections on this question may be held on a day other than the regular election days." In this section the word "election" is used in the sense provided in 147, and this provision indicates clearly that the word is used in § 148 to include questions submitted to the people, for otherwise there would be no need for the permission given by $61. By § 152 vacancies in the general assembly may be filled at a special election. It seems clear that the provision of § 148, that not more than one election each year shall be held in this state, or in any city, town, district, or county thereof, except as otherwise provided in the Constitution, applies to questions submitted to the voters; and the only provision otherwise in the Constitution, in reference to such questions, is the one in regard to the submission of questions as to the sale of liquor. When it is considered that the manifest purpose of the framers of the Constitution, and of the people who ratified and gave it effect, was to put limitations upon the power of the local authorities in the matter of incurring debts which would result in oppressive taxation, and even to limit the power of the people themselves improvidently to authorize the assumption of such obligations, the wisdom of the restriction of such elections to the day of the general election is evident. Not only is a much larger vote usually brought out on the occasion of the general election, but the people at large are usually better informed of the matters upon which they are entitled to vote, by reason of the greater interest taken,. and the fuller discussion of such matters. |