Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1872-04-25
IMPORTANT OPINION.
The Enrolment of Causes by Clerks
of COurts-The Legislature has NO
PardOninS Power.

The Enrolment of Causes by Clerks
of COurts-The Legislature has mo
PardOning Power.
Judge Baxter rendered an opinion in the
| Circuit Court yesterday of considerable i'm
pOrtance to clerks Of courts throughout the
State. Section 1921 of the Code provides
that the clerks Of the several courts, when
any cause required to be enrolled by them
is finally determined, shall, within six
months thereafter, enter all the proceedings
therein in a well bound book, and an entire
and perfect record made thereof under the
provisions of this chapter.
Some time last year the Attorney Gener
al in this district entered motions against
clerks for fees Illegally charged, because of
the failure of making the enrolment above
mentioned. Pending this motion, the Leg
islature passed an act on the 18th day Of
December, 1871, entitled an act to extend
the time allowed the clerks of the several
courts for the enrolment of causes, and
extending the time twelve months to those
whose terms of office have expired, as well
as those remaining in office.
The opinion of Judge Baxter was upon
a motion on the part of the counsel of one
Of the defendants to dismiss or suspend the
plaintiffs motion. In the opinion rendered
Judge Baxter SAYS:
'There is no doubt of the power of the
Legislature in its character as chief finan-
cial agent of the Stale and guardian of her
funds to institute suits in the name Of or
for the benefit Of the State, to collect those
funds when by any means they get out of
the Treasury into the hands of
=. l. "a
such agent to compromise or dismiss
such suits. Nor can it be questioned that
the Legislature as such agent may release a
debt due to the State. This was so held in
the case of the Governor and others VS..
McEwen and others in 9Th Humphreys
241; see page 284, and State VS.. Fleming,
9Th Humphreys on page I54. If this mo-
ton was TO recover a debt due TO the State
or to recover a fund in the hands of the de-
PENDANT belonging to the State or the
county of Davidson, there would be no
doubt Of the power Of the Legislature to
dismiss the motion, or release the
debt or fund, or to extend the
time for payment, or do any
thing else that a private citizen could do in
the conduct and management of a law suit
of his own. But this is rot a suit by the
State to recover a debt due from the de-
PENDANT nor fund in the hands of the de-
PENDANT. it is a proceeding under section
3,22S of the Code which has for its object
10 punish clerks for being guilty of official
delinquency, by taking from them certain
fees by them illegally charged"
'If the Legislature, as the financial agent
Of the State, has no power to interfere, the
next question is, was the Legislature COM
petent rs The law-making power of the
State, to pass the act under which defen-
dant makes bis motion to dismiss the pro-
ceedingS.
at is insisted for defendant that the Leg
islature had the power to remit the penalty
by way Of legislative pardon, and if so, as a
consequence, it had the power to suspend
the enforcement Of it. The Legislature
has the power to make laws, and to repeal
them, but the pardOning power belongs
to the Executive. l. is expressly
conferred upon the Governor by the
Constitution, and a power expressly
conferred upon one department by the con
sliJu!iOu is withheld from both the others.
The Legislature may say the
section Of tie Code defining and Furnishing
larceny is hereby repeated. 1t has the
power to do that. That is legislation, and
belongs to the law-making power. But
while the section remains in force and un-
repealed, if A be charged with larceny the
Legislature has no power to order his dis
charge, and if convicted, it has no power to
pardon him, or suspend the execution of
has sentence"
For want of space, we have been com
PEELED to give olny some points touched
upon by the Judge in his decision. The
lengthy opinion rendered concludes as fol-
lows:
"There is plain law on the statute book
requiring of certain officers the perform
ance Of certain duties, and annexing GER
tain penalties for failures. They fail to
perform them, notwithstanding, and incur
the penalty. The proper officer, in the
proper manner, brings the delinquent into
court, and asks the Court to enforce the
penalty. At this point the Legislature saws
TO the court stop The law is a good
law, aud we choose neither to repeal it nor
suspend it, and it is true the defendant has
violated it and incurred the penalty an
neXed. But it is our pleasure TO order you
not to administer or enforce the law in this
instance. Dismiss this proceeding, and if
the defendant don't perform the duty with
in a year then you may proceed, but
if he does then it is our
pleasure to pardon the past offence, and
blot it out from the book of remembrance
Whereas l think the Legislature in such
case has neither the power to order the dis
missal of the proceeding while it is pending
in court, nor the power TO pardon the de-
PENDANT if he should be convicted. The
motion of defendant TO dismiss the proceed
iugs is therefore disalloWed"