Slater v. Olson , 230 Iowa 1005 ( 1941 )

I find myself unable to join in the majority opinion and consequently respectfully dissent.

It is my thought that the statutory restriction prohibiting a person who has been convicted of a felony from being appointed to any department which is governed by civil service is not a restriction upon the pardoning power of the governor. The majority opinion holds that the provision of paragraph 5 of section 5701 is an encroachment by the legislature upon the exclusive constitutional power to pardon, lodged in the governor, and in effect, if not in so many words, holds this provision unconstitutional.

The majority opinion states that "the decision of the issue rests primarily upon the legal effect of a pardon on the status of a person convicted of a felony." The statute, in no way, restricts the governor in exercising his pardoning power. The pardon, when granted, unquestionably restores the convicted person to the rights of his previous citizenship — that of suffrage but it appears that is all that it can do. See Code section 3823, 1939 Code of Iowa.

It should be kept in mind that once a person has received civil service status he, in effect, has received a lifetime appointment. It undoubtedly was the purpose and thought of the legislature to make the qualifications for appointment such that the appointees would be of unquestionably high caliber and character. The fact remains that regardless of the pardon the plaintiff has been convicted of a felony.

In commenting upon the case of Ex parte Garland, 4 Wall. (71 U.S.) 333, 380, 18 L. Ed. 366, mentioned in the majority opinion, Deady, J., in In re Spenser (C.C. Or. 1878), 22 Fed. Cas. No. 13234, 5 Sawy. (U.S., 9th Cir.) 195, 199, 1 N.J. Law J. 248, 251, said:

"This is probably as strong and unqualified a statement of the scope and efficacy of a pardon as can be found in the books. And yet I do not suppose the opinion is to be understood as going the length of holding that while the party is to be deemed innocent of the crime by reason of the pardon from and after the taking effect thereof, that it is also to be deemed that he never did commit the crime or was convicted of it. The effect of the pardon is prospective and not retrospective. It removes the guilt and restores the party to a state of innocence. But it does not change the past and cannot annihilate the established fact that he was guilty of the offense."

In the case of In re Rouss (1917), 221 N.Y. 81, 85,116 N.E. 782, 783, where disbarment proceedings were under consideration of an attorney who had previously admitted his implication in a criminal act, although there was no criminal charge filed, Cardozo, J., then sitting on the New York Court of Appeals made the following statement:

"* * * On that high plane the jurisdiction was thus early placed, and in that high spirit it has been exercised. Even pardon will not elude it. Pardon blots out the offense and all its penalties, forfeitures and sentences; but the power to disbar remains. Matter of an Attorney, 86 N.Y. 563."

Further consideration has been given to the effect of a pardon where a defendant was charged with a second offense, in People v. Carlesi (1913), 154 A.D. 481, 486, 139 N.Y.S. 309, 312, (affirmed in (1913) 208 N.Y. 547, 101 N.E. 1114, which was affirmed in (1914) 233 U.S. 51, 34 S. Ct. 576, 58 L. Ed. 843), where the court said:

"The pardon of this defendant did not make `a new man' of him; it did not `blot out' the fact or the record of his conviction, and of course the Supreme Court, in deciding that the Congress could not impinge upon the pardoning power of the Executive, did not intend to hold that the Executive could blot out a solemn record of the judicial branch of government. See Roberts v. State [1898] 30 A.D. 106, 51 N.Y. Supp. 691; [affirmed in (1899)]160 N.Y. 217 [54 N.E. 678, 15 Am. Crim. Rep. 561]. The pardon in this case merely restored the defendant to his civil rights. If it had been granted before his term of imprisonment had been served, it would also have relieved the defendant of that. But it did not obliterate the record of his conviction or blot out the fact that he had been convicted. Matter of __________, an Attorney [1881], 86 N.Y. 563. It relieved the defendant of the consequences which the law attached to his offense. But the defendant is to be punished now solely in consequence of his second offense. The fact of the former conviction is an element merely in determining the criminality of the second offense. People v. Sickles [1898], 26 A.D. 470, 50 N.Y. Supp. 377 [affirmed in 1898]; Id., 156 N.Y. 541, 51 N.E. 288; People ex rel. Cosgriff v. Craig [1909], supra [195 N.Y. 190, 88 N.E. 38]. The Legislature of this state has said that one who commits a crime after having been convicted of another crime is a greater offender than as though he had not previously been convicted, and the punishment inflicted is solely for the second offense to which a greater degree of criminality is thus attached. That degree of criminality is not at all lessened by the fact of a pardon which assumes his guilt, remits the punishment, and affords him an opportunity to become a law-abiding citizen. It was solely within the province of the Legislature to attach such greater criminality to the second offense from the mere fact of a conviction for a first, and the Executive by the exercise of the pardoning power could no more interfere with that exercise of legislative power than the Legislature could interfere with the power to pardon."

There are numerous cases wherein the courts have held that a conviction of a felony is a proper ground to revoke the license of an attorney to practice law, or to revoke the license of a physician to practice medicine. If it has been deemed advisable by certain courts to protect the public from an attorney or physician who has been convicted of a felony, even though such persons have been pardoned; and the courts have also held that consideration might be given to charges as to a second criminal offense, where there has been a pardon of the first offense, it would seem to me that this court should not now hold that the legislature could not place certain standards for those who are to be appointed to a civil service status. See cases cited in notes in 58 A.L.R. 49, 82 A.L.R. 362, 116 A.L.R. 225.

It is commendable to give encouragement to one who has paid the penalty for his past errors. But it is more important to have public officials of unquestionable standing, especially those, who are to receive civil service status. The legislature has endeavored by its statutory enactment to set a high standard and its efforts should not be restricted, in the manner, that I fear, the majority opinion does.

By reason of our complex governmental activities our citizenry are more and more the subject of governmental control through bureaus, departments and agencies. Some of these departments are under civil service. The personnel should be such that our citizens can feel that they are in good hands.

It is a strained conclusion to say that this statutory enactment is a restriction on the right of the governor to pardon. To so hold is just a further step in restricting the legislature from controlling the governmental affairs of the state. And the legislature, it should be called to mind, is the closest contact the people have to their government. I would reverse.

I am authorized to state that BLISS and HALE, JJ., concur in this dissenting opinion.