The opinion
CocKRiLLj C. J. The power of the Governor to remit a fine by pardon after conviction is fixed by the constitution. Art. 6, sec. 18. The fact that the.statute directs that the fine shall go to the county or into the county treasury for the use of the school fund does not interfere with the power of the executive - to remit it. Baldwin v. Scoggin, 15 Ark., 427. The only question in this case-not previously determined by this court is, whether the fund has passed beyond recall, while it is in the hands of the-sheriff by virtue of payment made in pursuance of the judgment of conviction before pardon.
The judgment establishes the county’s right to the fine if it remains in force until the county can enjoy its fruits, but it may be deprived of the fruits by executive clemency. That is a condition upon which the judgment is rendered. In collecting the amount due on the judgment, the sheriff' acts as the arm of the court in which the conviction was had, and not as the fiscal agent of the county. Until he has-paid the amount into the county treasury, or at least untiL the county court has charged him with it in auditing his accounts, and has thereby appropriated it to the use of the county by its judgment, the county’s right to the fund is no-more vested than it was upon the rendition of the judgment. But the rule established by th'e authorities is that until a vested right intervenes, the .power of the Governor to remit the fine remains. Baldwin v. Scoggin, 15 Ark., supra; Ill. Central R. Co. v. Bosworth, 133 U. S., 92 . Say the Supreme Court of the U. S., in Knote v. U. S., 95 U. S., 149 : “ 'fhe property ”—that is, property condemned by the-court in a confiscation proceeding—“and the proceeds are not considered as so absolutely vesting in third parties or in. the United States as to be unaffected'by the pardon until they have passed out of the jurisdiction of the officer or tribunal. The proceeds have thus passed when paid over to-the individual entitled to them, in the one case, or are covered into the treasury, in the other.” That is a succinct statement of the law governing this class of cases. It is applicable to the case in hand and is decisive of it in' appellant’s favor.
A case in point is Commonwealth v. Denniston, 9 Watts (Pa.), 142, as is also the opinion of Attorney General Cushing, which is stated and cited with approval by the court in. Knote v. U. S., 95 U. S., sup. See too Commonwealth v. Shick, 61 Pa. St., 495; Cope v. Com., 28 id., 297 ; Brown v. U. S., McCahon (Kas.), 229; In re Flournoy, 1 Kelly (Ga.), 606; Ill. Central R. Co. v. Bosworth, 133 U. S., sup.
Reverse the judgment and enter judgment here for the appellant in accordance with the agreed statement of facts- and the prayer of the complaint.