State Ex Rel. Attorney General v. Irby , 190 Ark. 786 ( 1935 )

In the case of Irby v. Day, 182 Ark. 595, 32 S.W.2d 157, the court laid down the broad rule that no person convicted of embezzlement of public money shall be eligible to hold an office of representative in the General Assembly. This rule was based on 9, article 5, of the Constitution, and did not take into consideration whether or not the conviction was in a court of foreign jurisdiction or for violation of its laws. An examination of the record and briefs in that case discloses the fact that the attention of the court was not called to the proposition that the ineligibility to hold office under 9, article 5, supra, related to offenses against the laws of the State of Arkansas and convictions for such in its courts.

The essential distinction between the government of the United States and that of any State, as two independent political identities, is recognized, and has been frequently pointed out, in the decisions of the Supreme Court of the United States. Fox v. Ohio, 5 How. 432; Moore v. People, 14 How. 17; Slaughter House Cases, 16 Wall. 36; Twining v. New Jersey, 211 U.S. 78,29 S. Ct. 14. The necessary effect of this distinction is that Federal courts are courts of entirely different sovereignty, foreign to, and wholly independent of, State courts. Brown v. U.S., 233 F. 353, L.R.A. 1917A, 1133, and cases therein cited.

A judgment of a court of the United States, being therefore one of a foreign tribunal, the question arises: do the qualifications to hold office under 8 and 9 of article 5 of our Constitution relate to offenses against a foreign jurisdiction and conviction in its courts? It has been held, upon great consideration, that a conviction and sentence for felony in one of the States and the disabilities arising from the same would not come within the inhibition of statutory and constitutional provisions of another State and the disqualifications therein denounced. Greenleaf on Evidence, 15th ed., 376.

The rule stated in 46 C.J. 949, 60, is as follows: "Constitutions or statutes frequently disqualify for office one who has been convicted of a felony or a crime generally. Whether or not a crime is within the meaning of such a provision is a question for the courts. Ordinarily conviction in the courts of the United States of an offense created by an act of Congress does not constitute a disqualification, but the Legislature, under authority of the Constitution, may declare that such a crime, either against the laws of the State, United States, or a sister State, shall operate as a disqualification."

The general rule for the construction of the Constitution with reference to disqualifications seems to be uniform and may be thus stated: where the Constitution disqualifies for office one who has been convicted of crime, such provision applies to crimes committed under the jurisdiction of the State providing the disqualifications, and not crimes against another government. The following cases support this rule: Wisconsin v. Insurance Co.,127 U.S. 265, 8 S. Ct. 1370, 32 L. Ed. 239; Logan v. United States, 144 U.S. 263, 12 S. Ct. 617, 36 L. Ed. 429; Hildreth v. Heath, 1 Ill. App. 82; Garitee v. Bond,102 Md. 379, 62 A. 631, 111 Am. St. Rep. 385, 5 Ann. Cas. 915; Commonwealth v. Green, 17 Mass. 515; Compare Commonwealth v. Hall, 4 Allen (Mass.) 305; State v. Landrum,127 Mo. App. 653, 106 S.W. 1111; State ex rel. Mitchell v. McDonald, 164 Miss. 405, 145 So. 508, 86 A.L.R. 290; In re Ebbs, 150 N.C. 44, 63 S.E. 190, 19 L.R.A. (N.S.) 892, 17 Ann. Cas. 592; National Trust Co. v. Gleason,77 N.Y. 400, 33 Am. Rep. 632; Sims v. Sims, 75 N.Y. 466; People v. Gutterson, 244 N.Y. 243, 155 N.E. 113; In re Kaufman, 245 N.Y. 423, 157 N.E. 730; Queenan v. Territory of Oklahoma, 11 Okla. 261, 71 P. 218, 61 L.R.A. 324; Weber v. State, 18 Okla. Crim. 421, 195 P. 510; Ex parte Biggs, 52 Or. 433, 97 P. 713; State ex rel. v. DuBose,88 Tenn. 753, 13 S.W. 1088; Brown v. U.S. (C.C.A. Tenn.), 233 F. 353, L.R.A. 1917A, 1133; note Goldstein v. State, 75 Tex. Crim. 390,171 S.W. 709; Ex parte Quarrier, 2 W. Va. 569.

The case of State v. Langer, 256 N.W. (N.D.) 377, is the only direct authority I have discovered stating a contrary doctrine. The case of State v. Langer, supra, cites a number of authorities in support of the conclusion reached by the majority, but, in an able dissenting opinion, these authorities are reviewed and it is clearly pointed out that they deal with different questions and do not sustain the position of the majority. From the foregoing it is perfectly apparent that the doctrine announced in Irby v. Day, supra, should be qualified to conform to the overwhelming weight of authority.

2. The appellee recognizes the effect of the decision in Irby v. Day, supra, as to his particular case, but contends that the pardon issued to him by the President of the United States absolves him from all the consequences of his conviction and places him in the attitude, in the eyes of the law, of never having committed the crime. To this contention the majority do not agree and base their conclusion upon 8 and 9 of article 5 of the Constitution, ignoring all other constitutional provisions.

The Constitution of this State and the Constitution of the United States, alike, give to the chief executive the power to pardon, that of the President being unlimited except as to convictions under impeachment proceedings, and that of the Governor of a State except to impeachment proceedings and convictions for treason. One of the rules of construction and interpretation of any particular constitutional provision is that it should be considered in connection with other provisions in the Constitution so that effect may be given to all, and no one provisions Superior to the others. Another rule is that the Constitution must be interpreted in the light and by the assistance of the common law. Cooley on Constitutional Limitation, 8th ed., vol. 1, p. 133.

Under the common law, the power to pardon was one of the prerogatives of the Crown, unlimited in extent, which, when exercised, removed not only the guilt of the one pardoned but likewise the legal infamy resulting therefrom and all other consequences arising out of the conviction. Bracton, Twiss' Translation, vol. 2, p. 371, and the case of Cuddington v. Wilkins, decided in 1615, and reported in Hob. 67, 81; also the case of Searle v. Williams, 2 Hob. 288, 294; 4 Blackstone, Comm. 402.

The power to pardon, as it existed under the common law of England, was conferred by the Constitution of this State upon the Governor and by that of the United States upon the President. "The power of pardon conferred by the Constitution on the President is plenary and unlimited, except in cases of impeachment. It is co-extensive with the power to punish, and extends to every offense known to the law; and it may be exercised at any time after the commission of the offense, either before legal proceedings are taken, or during their pendency, or after conviction and judgment. Its exercise, and the mode of its exercise, are placed, without condition or limitation, wholly in the discretion of the President, and it is not subject to legislative control. It includes the power to grant conditional as well as absolute pardons, and of commuting to a milder punishment that which has been adjudged against the offender. These propositions are fully supported by decisions of the Supreme Court of the United States in the cases of U.S. v. Wilson, 7 Pet. 150; Ex parte Wells, 18 How. 307; and Ex parte Garland, 4 Wall. 333. The power of pardon may be exercised even after the full punishment awarded for the offense has been suffered, if any of the legal consequences of the conviction remain." 8 Amer. Law Register, N.S., p. 516.

If effect is to be given to the constitutional provisions relating to the power of pardon, then, by necessary implication, 8 and 9 of art. 5 of our Constitution and the disqualifications therein mentioned relate only to such convictions as have not been affected by the pardoning power. This proposition appears to be clearly established as a necessary result of decisions of our own court and of courts of the United States and also of courts of other states dealing with constitutional limitations on the right to hold office similar to our own.

A leading case is Ex parte Garland, supra, which quotes from the Constitution of the United States that the President "shall have power to grant reprieves and pardons for offenses against the United States except in cases of impeachment." Art. 2, 2. It recognizes that the power is unlimited with the exception stated and extends to every offense known to the law. In discussing the effect of the exercise of the pardoning power, the court said: "A pardon reaches both the punishment prescribed for the offense and the guilt of the offender; and 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 offense. If granted before conviction, it prevents any of the penalties and disabilities consequent upon conviction from attaching; if granted after conviction, it removes the penalties and disabilities, and restores him to all his civil rights; it makes him, as it were, a new man, and gives him a new credit and capacity. There is only this limitation to its operation; it does not restore offices forfeited, or property or interests vested in others in consequence of the conviction and judgment."

In Williams v. Brents, 171 Ark. 367, 284 S.W. 56, this court quoted with approval the first sentence of the quotation, supra, from Ex parte Garland and following this quotation, said: "Such is the effect of our own decisions."

The effect of this rule is that the pardon extended to Irby in the case at bar relieves him, first, of the debt due the United States Government. Osborn v. U.S., 91 U.S. 474, was a case where the appellant, having violated the laws of the United States, was decreed to have forfeited — as part of the penalty for his offense — certain property which was sequestered by the officers of one of its courts and a part converted into money in the sum of over $20,000. Appellant was pardoned and applied to the district court for the restoration of his property, which being denied, the case finally reached the Supreme Court of the United States where the relief prayed was granted, and, in passing, that court said: "The pardon of that offense necessarily carried with it the release of the penalty attached to its commission, so far as such release was in the power of the government, unless specially restrained by exceptions embraced in the instrument itself. It is of the very essence of a pardon that it releases the offender from the consequences of his offense."

To the same effect are the earlier cases of U.S. v. McKee, 4 Dill. 128; U.S. v. Culbertson, 8 Biss. 166; also Armstrong's Foundry, 6 Wall. 766; Carlisle v. U.S., 16 Wall. 147; U.S. v. Cullerton, 25 Fed. Cases, No. 14,899, page 717.

Secondly, the effect of this rule is that the pardon relieves Irby of the consequences attendant upon his conviction and restores his status as a citizen as if he had never been convicted. This is the doctrine of the cases above cited in State of Washington v. Hazzard, a case from the Supreme Court of the State of Washington,139 Wash. 487, 247 P. 957, 47 A.L.R. 538, the court held in line with the case of Ex parte Garland, supra, and State v. Carson, 27 Ark. 469, that a pardon does not restore one to all office forfeited by conviction, but announced the general rule, as follows: "The doctrine has generally been accepted by the courts that a pardon, unless limited, restores one to the customary civil rights which ordinarily belong to a citizen of the State. These are generally stated to be the right to hold office, to vote, to serve on a jury, to be a witness, and, in earlier times, the return of property forfeited by reason of, and punishment for, conviction of crime. But it does not restore offices forfeited nor property or interests vested in others in consequence of conviction."

In note 4 to the case of State v. McIntire, 59 Am. Dec. 579, a great many cases are noted which support the statement of law above quoted from State v. Hazzard, supra.

In all early case decided by the court of last resort of the State of New York — People v. Pease, 3 Johns. 333 — it was said: "It is admitted, on all sides, that the right of pardoning in cases of forgery resides in the Governor of this State to the same extent as in the King of Great Britain. Hence it is material only to ascertain whether the pardon of the Governor does away with all the consequent legal disabilities which have attached to him. The disabilities to which I refer form no part of the judgment against a convict, but are the legal marks of infamy which it fixes upon him. When, therefore, the judgment is pardoned, the legal infamy flowing from it is equally disposed of by the pardon. For the proposition appears to me untenable, that the judgment to which those disabilities are merely consequential, can be released, and yet the disabling effect thereof remain."

In the case of Hildreth v. Heath, 1 Ill. App. 82, one elected to the city council of Chicago was denied his seal because he had been convicted in the Federal District Court of the United States for an offense against the government involving moral turpitude. He had been pardoned for this offense by the President before his election to office, and the court held that the pardon removed and cured his disqualifications and ineligibility.

Quoting a headnote from Rison v. Farr, 24 Ark. 162-3: "The pardon of the President of the United States relieves the person pardoned from all the penalties attached to the specific act and restores him to his former rights and privileges."

In Jones v. Board, etc., 56 Miss. 766, 31 Am. Rep. 385, the court quotes with approval from Ex parte Garland, supra, and other decisions of the United States Supreme Court which are to the effect that a pardon absolves not only from the punishment for the crime for which one is convicted, but also from the attendant disabilities. The court found that the American and English authorities are univocal as to the effect of a full pardon and alike agree with the doctrine of the cases cited in that decision, and continuing, said:

"A pardon by the Governor is an act of sovereign grace, proceeding from the same source which makes conviction of crime a ground of exclusion from suffrage. The act of absolution is of as high derivation and character as the act of proscription. The pardon must be held to rehabilitate the person in all his rights as a citizen, and to deny to any officer of the State the right to impute to him, the fact of his conviction. After the pardon, he is as if he was never convicted. It shall never be said of him that he was convicted. The pardon obliterates the fact of conviction, and makes it as if it never was.

"We have spoken of a pardon by the Governor, because our Constitution relates to that. The case before us involves a pardon by the President of the United States of a person convicted under the laws of the United States. The same effect must be given to such pardon as to a pardon by the Governor of one convicted under the law of the State. And if conviction under the laws of the United States will exclude from suffrage under our Constitution, a pardon by the President must absolve from guilt, and free from all the consequences of conviction, in the same manner and to as full extent as would a pardon granted by the Governor to one convicted under the law of the State."

Section 18 of article 5 of the Constitution of the State of Oklahoma provides: "No person shall serve as a member of the Legislature who is at the time of such service an officer of the United States, or of the State Government, or is receiving compensation as such; nor shall any person be eligible to election to the Legislature who has been adjudged guilty of a felony." In construing that section in connection with the constitutional provision relating to pardons for those convicted of crime, the Supreme Court of Oklahoma, in the case of State ex rel. v. Election Board, etc., 36 P.2d 20, held that a pardon removed the disqualification named in 18 of art. 5, supra. That was a case where one Kiker had been indicted for embezzlement. He had pleaded guilty to the charge and was sentenced to a term of three years' imprisonment in the State penitentiary. Thereafter, he was granted a full and free pardon, and subsequently became a candidate for the office of State representative. The contention was that Kiker was ineligible to hold this office, and therefore to become a candidate for the same. Section 10 of art. 6 of the Oklahoma Constitution authorizes the Governor to grant pardons for all offenses, except in cases of impeachment, upon such conditions, etc., as he may deem proper, subject to such regulation as may be prescribed by law. No express grant is contained in this section to remove by the pardon the ineligibility mentioned in 18, supra, but the effect of the court's holding is that this is implied if due effect is to be given to both provisions. In holding that the ineligibility was removed by the pardon, the court said: "Provision is made by the Constitution to the effect that a convicted felon is ineligible for election as representative. Provision is also made by the Constitution for the removal of such ineligibility by the grant of a full pardon by the Chief Executive of the State. Such ineligibility of respondent having been removed, relator is without right."

We have examined the cases cited by the majority and many others. We have found none which, upon a state of facts similar to those of the instant case, announces a contrary doctrine. In 46 C.J. 949, the following statement is made: "It would seem to be the rule that the pardon of the executive will not remove disqualification resulting from conviction of crime." To support this statement, but one case is cited, that of Commonwealth v. Fugate, 2 Leigh's Reports (Va.), p. 724. This case is not authority, however, for the declaration of the text. The point there decided was whether or not one holding office, upon being convinced of a felony the effect of which was to forfeit his office, was restored. thereto by reason of having obtained a full and free pardon. The court said: The court is decidedly of the opinion that such judicial officer forfeits his office by conviction and attainder of a felony; that no pardon can restore him, to his former office.

There are decisions which use language of the following character: "A pardon implies guilt. It does not obliterate the fact of the commission of the crime and the conviction thereof. It does not wash out the moral stain." Such language is used in State v. Hazzard and Commonwealth v. Fugate, supra. These cases, however, in using this language, refer to the past and not to the future, and, as relating to the past, a pardon would be ineffectual to restore what had been lost by reason of conviction of crime. Carson v. State, supra.

The rules for construction stated by the majority are freely conceded: the vice of its opinion lies in overlooking another and cardinal rule of construction which I have named heretofore, and in giving prominence and preeminence to one provision without considering it in connection with another.

The conclusion that "political rights" are not civil rights, in my opinion, is unsound. True, they are not civil rights in the sense of the right to acquire, hold and dispose of property, and the like, but are civil rights in the broader and more comprehensive meaning of the term. As I understand "civil rights," they are not to be confounded with "natural rights," the birthright of all humanity, but are such as spring from the necessities of a civilized community and are designed to promote the welfare of the individual and the perpetuation of the State. Therefore, all rights which thus arise are, justly speaking, civil rights. These include both personal and property rights and the right to take part in the conduct of those matters relating to government — such as the right to elective franchise, to hold office and the like which as distinguished form property and personal rights, are political rights and included within and abridged, extended, protected and enforced by the more comprehensive term, "civil rights," comprehending and circumscribing all rights which the code, written or written, of a civilized community gives to its citizens. Byers v. Sun Savings Bank, 41 Okla. 728, 139 P. 948, Ann. Cas. 1916D, 222; State v. Hazzard, supra. I submit it requires a strained and illogical interpretation of Taylor v. Governor, 1 Ark. 21, and State ex rel. Gray v. Hodges, 107 Ark. 272, 154 S.W. 506, to discover in those cases authority for the position of the majority, or which impairs the doctrine of the cases last cited above.

It seems, whatever "political rights" may be thought to be is immaterial to the determination of the principle involved, for, after all, it is not the nature of the right, but its existence that matters, and that one is deprived of it, whether as a part of the judgment of conviction or as a consequence flowing from it. For the majority to say that ineligibility to hold office, denounced by 9 of art. 5 on one convicted of crime, is no part of the punishment inflicted is to state a proposition, the truth of which is difficult to perceive, and, save to the mind of a casuist, no argument however adroit and subtle can convince. As well to say that pain is but a figment of the imagination and the pangs attendant upon dissolution are no part of the article of death as to argue that the infamy resulting from the commission of crime and its disabling effect is no part of the penalty the offender must pay. This novel argument finds no support in our decisions, and is completely answered by the cases we have cited.

In support of the main proposition, — i.e., that the pardon is ineffectual to remove the infamy of conviction or to remove the ban from holding office — State v. Carson, supra, and 40 C.J. 1192, are cited. These are authority for the rule — and that only — about which there is no dispute, but as to which the authorities are in entire accord, that a pardon does not undo the past or obliterate the fact of previous guilt, and therefore "does not restore offices forfeited, or property or interests vested in others in consequence of the conviction and judgment." This is the extent to which these decisions go, and they therefore do not support the majority opinion

In so far as I have been able to discover, in this State from its beginning it has been the universal opinion of its chief executives, the bench and bar, that, even after the person convicted has "served his time" other disqualifications remained which a pardon could reach and remove; and so, from earliest times until the present, the Governor, after punishment adjudged had been fully endured, has granted frequent pardons "to restore citizenship" and persons pardoned (some being among the most able and respected of our citizens) have offered for responsible offices and have been elected and served without question. This is no unfounded opinion, for it is sustained by reason, principles of natural justice and by the voice of authority from remotest times.

I yield to none in profound respect for the judges who make the opinion of the majority, and it is with a measure of embarrassment that I have written in opposition to their able opinion; but, so strong are my convictions and so unfortunate the consequences, as I foresee them, that may arise, I am constrained to express my views, in which, I am authorized to say, Mr. Justice SMITH and Mr. Justice McHANEY, concur.