State Ex Rel. Olson v. Langer , 65 N.D. 68 ( 1934 )

It is my view that the majority opinion in this case is based upon a wrong premise, by reason of which the superstructure erected thereon cannot stand. The underlying theory sustaining the order ousting the respondent from the duties of the office of governor is, briefly, that a conviction of a felony in a federal court works a disqualification as to an elector in this state, under § 127 of the Constitution of North Dakota, and that, as one of the qualifications for governor requires that he be a qualified elector of the state, without such qualification at any time during his term of office, a disability occurs, and the duties of the office, ipso facto, devolve upon the lieutenant-governor.

As I view this matter, the error in the first instance, lies in the construction placed upon § 127 of the Constitution of this state. This section reads:

"No person who is under guardianship, non compos mentis or insane, shall be qualified to vote at any election; nor any person convicted of treason or felony unless restored to civil rights; . . ."

A controversy arises over the meaning of the word "felony" as contained in this section of the constitution. Does it mean "felonies" as defined and punishable by the laws of North Dakota, or does it mean, in addition thereto, such other felonies as are defined and punishable in other jurisdictions, such as the jurisdictions of the various states, or of the United States, or of a foreign country?

It is plain to me that this term in the Constitution means felony as defined by the laws of this state only, and punishable under such laws; and I am unable to read into this section of our constitution that the term "felony" as used therein, as a disqualifying act, includes felonies as defined by the laws of the United States or of the laws of the various states. It is a well established rule that in construing the provisions of a constitution, where there may be doubt as to the meaning, in arriving at a conclusion we should gather the purpose and intention of the framers of the constitution.

Section 127 states that no person who is under guardianship, non compos mentis, or insane, shall be qualified to vote at any election, "nor any person convicted of treason or felony unless restored to civil rights." Section 19 of the State Constitution defines treason as follows: "Treason against the state shall consist only in levying war against it, adhering to its enemies or giving them aid and comfort." (Italics ours.)

It is evident, therefore, that the treason mentioned in connection with the word "felony" in § 127 of the Constitution, has reference to treason committed against the state of North Dakota only; and this was evidently the view of the code commission authorized by the legislative assembly after the adoption of the constitution, as the commission presented to the legislature and there was enacted the measure as contained in § 7043, Code of 1895 (Comp. Laws 1913, § 9447), which provides:

"Every person owing allegiance to this state who levies war against it, or adheres to its enemies or gives them aid or comfort within this state or elsewhere, is guilty of treason. . . ."

In attempting to determine the meaning of the word "felony" as contained in this section, in view of the definition of treason as it is found in the constitution, — and as subsequently enacted in the statute, — did the framers of the constitution have in mind, at the time of the adoption of this particular section, that the term "treason" was used in a restrictive sense, and applied singularly to treason against the state, and then, with only the connective "or" between, use the term "felony" in the broadest sense, and include felonies committed, not only against the laws of this state, but against the laws of all the other states, or of the United States?

It is significant that treason is regarded by all of the states and the federal government, as well as practically all other governments of the world, as a greater offense than felony; and why would the framers of our state constitution, therefore, use the term "treason" in a restricted sense as applicable to this state only, and then immediately, in the same sentence, use the term "felony" in its broadest sense. As the framers of the constitution certainly confined their efforts to formulating fundamental laws for the territory comprised within the new state only, I have every reason to believe that they did not concern themselves with what other states or jurisdictions might wish to legislate upon the subject of felony, or what offenses they would place in that category.

In determining what the makers of the constitution had in mind at the time of the adoption of this section of our constitution, considerable light is shed upon the situation by the historical setting or environment at the time. Thus, we find that at the time of the assembly of the Constitutional Convention in the summer of 1889, there existed in the laws of the Territory of Dakota, a specific definition of felony. The Penal Code of the Compiled Laws of Dakota for 1887, § 6204, defines felony in the following language: "A felony is a crime which is, or may be, punishable with death, or by imprisonment in the territorial prison."

We find in the criminal procedure of the same code (§ 7028) that felony his again defined in precisely the same language. It should be noted that in both instances the offense is defined as one which is punishable with death or by imprisonment in "the territorial prison." The language clearly signifies that the offense contemplated is one confined exclusively to the Territory of Dakota, and not otherwise, as it states that the punishment therefor is in "the territorial prison," as distinguished from any other prison, and means that it is such crime only that the punishment must be exacted in the particular prison provided by the Territory of Dakota.

After the adoption of the constitution by the electors, the legislative assembly provided for a code commission to prepare and codify laws for the new state; and in pursuance thereof the commissioners performed their duties and submitted the result of their efforts to the Legislative Assembly of 1895. This code commission and the legislature, no doubt with the territorial laws in mind, and the new constitution, had occasion to define the term "felony," and as found in the Revised Codes of North Dakota for 1895. The Penal Code, § 6804, defines the offense as follows: "A felony is a crime which is or may be punishable with death or imprisonment in the penitentiary; every other crime is a misdemeanor. . . ." (Italics ours.) The criminal procedure of the same code, § 7743, likewise defines a felony in the same identical language. Thus, we have the definition of felony, as contained in the laws of the new state, incorporating the definition of felony under the territorial laws, in its exact language, except that the imprisonment in "the territorial prison" is changed to imprisonment in "the penitentiary," meaning, of course, the penitentiary of the state of North Dakota.

If the members of the Constitutional Convention had intended the conviction of a felony, as defined in any other jurisdiction, to work a disqualification as to an elector of this state, or to disqualify a governor, I have every reason to believe that they were sufficiently familiar with the English language, and the meaning of legal terms, to clearly express such intention. Of the seventy-five members comprising the convention, twenty-five were lawyers, several of whom became eminently known in the profession, and some as distinguished jurists of this state.

The majority opinion cites certain cases as authority for the determination of this case, in the manner that it has been determined, which cases I shall analyze and discuss later; but suffice it to be said that none of these cases cited as authority were in existence at the time our constitution was framed, or for several years thereafter, except a few early cases of an isolated character, which had been subsequently discredited as authorities prior to the time of the convention. Nor do they shed any light on the construction of said section of our constitution.

On the other hand, there existed at that time, and at all times since, the well established doctrine that a criminal judgment procured in one jurisdiction is not enforceable in a foreign jurisdiction; or, in other words, a criminal judgment procured in one jurisdiction does not have any extraterritorial effect. Such are the holdings of all the reported cases where the courts had passed upon the matter, except a few early cases appear to the contrary. These latter cases were based upon the erroneous assumption that penalties of a criminal character, procured in the jurisdiction of one state, could be enforced in the jurisdiction of another state, under the provisions of Article 4 of the Constitution of the United States, which provides: "Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof."

The Supreme Court of the United States, however, clarified this situation in the early case of Wisconsin v. Pelican Ins. Co.127 U.S. 265, 32 L. ed. 239, 8 S. Ct. 1370, decided May 14, 1888, and had occasion to comment on the cases holding to the contrary in the following language: "The only cases cited in the learned argument for the plaintiff . . . are Spencer v. Brockway, 1 Ohio, 259, 13 Am. Dec. 615, . . . Healy v. Root, 11 Pick. 389, . . . and Indiana ex rel. Stone v. Helmer, 21 Iowa, 370, . . . based upon the supposed effect of the provisions of the constitution and the act of congress as to the faith and credit due to a judgment rendered in another State, which had not then received a full exposition from this court; and the other reasons assigned are not such as to induce us to accept those decisions as satisfactory precedents to guide our judgment in the present case."

The general rule for the construction of a constitution or a statute, with reference to disqualification, has been uniformly laid down by the text writers on the subject. Thus, in 29 Cyc. 1385, the rule is presented as follows: "The constitution or a statute frequently disqualifies for office one who has been convicted of a felony or a crime generally. Where the constitution contains such a provision it applies to crimes committed under the jurisdiction of the state providing the disqualification and not to crimes against another government."

In 46 C.J. page 949, § 60, the text presents the rule thus: "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."

This general rule is sustained by the overwhelming weight of authority, as indicated by many decisions of both state and federal courts. One of the earliest, and a leading case on the subject, is Com. v. Green, 17 Mass. 515, decided March, 1822. The question arose whether the witness Stoddard, who had testified in the case, was incompetent as a witness by reason of the fact that he had been convicted of larceny in the courts of New York. The laws of New York provided that any one convicted of a felony was rendered infamous and incompetent to testify in its courts. The question arose whether such disqualification followed him beyond the jurisdiction of New York. The Massachusetts court held that it did not, and that he was competent to testify. Chief Justice Parker delivered the opinion, and analyzed and discussed at length the fundamental principles underlying the effect of a conviction in a jurisdiction foreign to the state, as bearing upon whether a disqualification existed. The court said, in part:

". . . But it is manifest that a judgment on a criminal prosecution cannot be carried into effect, beyond the jurisdiction of the state, within which the offense was committed; or, if this might be done by virtue of any act of congress, founded upon such a construction of the constitutional provision, it is clear that such power has never been challenged; and it is hardly possible to conceive that such a construction will ever be adopted, so long as any portion of sovereignty remains with the states. For the right and duty of punishing offenses must necessarily be limited to the authorities, against which the offenses have been committed. Indeed the provision in the second section of the fourth article of the constitution of the United States is wholly inconsistent with the supposition of such a power. . . .

"I think this proves satisfactorily that the clause in the Constitution of the United States, relating to the faith and credit to be given to judgments, has no effect whatever on judgments upon criminal suits; and that, in this respect, the relation of the state's to each other is left wholly unaffected by the Constitution."

In the case of Sims v. Sims, 75 N.Y. 466, an objection was raised as to the competency of a witness to testify who had been convicted of crime in the state of Ohio. The court followed the rule laid down in the case of Com. v. Green, supra, and held that the witness was competent to testify. The court said, in part:

"The case last referred to (Com. v. Green) rests upon the ground that the disqualification is in the nature of an additional penalty, following and resulting from the conviction, and cannot extend beyond the territorial limits of the state where the judgment was pronounced. . . . I think this doctrine applicable to the question now in hand and that there is nothing in the Constitution of the United States which prevents such application, or requires that the personal disabilities, such as incompetence to testify, or to vote, which may be imposed upon a person convicted of crime in one state, should follow him and be enforced in all the others. If such were the operation of the constitutional provision the qualifications of witnesses called in our courts and of voters at our elections might be made to depend upon the laws of other states instead of our own."

To the same effect is National Trust Co. v. Gleason, 77 N.Y. 400, 33 Am. Rep. 632.

In the case of Logan v. United States, 144 U.S. 263, 36 L. ed. 429, 12 S. Ct. 617, a question arose as to the competency of two witnesses offered on behalf of the government. Objection was made to their competency to testify, upon the grounds that each had been convicted of felony in another jurisdiction. The Supreme Court of the United States, in passing upon the matter, held, that they were competent to testify, and followed the rule laid down in Com. v. Green, 17 Mass. 515, supra, which is cited in the opinion. Justice Gray, speaking for the court, said, in part:

"At common law, and on general principles of jurisprudence, when not controlled by express statute giving effect within the State which enacts it to a conviction and sentence in another State, such conviction and sentence can have no effect, by way of penalty, or of personal disability or disqualification, beyond the limits of the State in which the judgment is rendered. Wisconsin v. Pelican Ins. Co. 127 U.S. 265, 32 L. ed. 239, 8 S. Ct. 1370; Com. v. Green, 17 Mass. 515; Sims v. Sims, 75 N.Y. 466; National Trust Co. v. Gleason, 77 N.Y. 400, 33 Am. Rep. 632; Story, Confl. Laws, § 92; 1 Greenl. Ev. § 376." (Italics ours.)

The rule of law, so clearly and succinctly presented in the latter case, has been cited and followed by many courts.

The terms "penalty," or "personal disability," or "disqualification," referred to in the Logan Case and the other cases cited, contemplate, not only punishments by way of imprisonments and fines imposed, or disqualification to testify as witnesses, but embrace all other personal disabilities or disqualifications, including the right to vote and the right to hold political or other civil office, as several of the cases disclose that are hereinafter cited and discussed.

It is significant, also, that we have no "express statute" giving effect to a "conviction and sentence in another state" or in another jurisdiction; nor does said § 127 of the Constitution contain any "express" provision to that effect. No exceptions to the rule hereinbefore set forth by the text writers and the decisions cited, existing in either our constitution or our statutes, the general rule must certainly apply in the instant case; and so applying such rule, I am unable to arrive at the conclusion, as my associates have, that a disqualification exists in the instant case with reference to the respondent, the Governor.

In the case of Hildreth v. Heath, 1 Ill. App. 82, involving the competency of the defendant to hold public office, the court held that conviction of a crime as a disqualification was confined to those offenses committed against the laws of Illinois only; and that a conviction in the federal court sitting in that state, did not operate to disqualify or render him ineligible.

In Queenan v. Territory, 11 Okla. 261, 71 P. 218, 61 L.R.A. 324, involving the competency of a juror to sit in the trial of a case, the same principle of law was involved. The court cited and quoted approvingly from Logan v. United States, 144 U.S. 263, 36 L. ed. 429, 12 S. Ct. 617, supra, and decided the case in accordance with the rule of law set forth in the Logan Case.

In the case of Garitee v. Bond, 102 Md. 379, 62 A. 631, 111 Am. St. Rep. 385, 5 Ann. Cas. 915, involving the competency of an executor under the laws of Maryland, who had been convicted of a felony in the district court of the United States for the district of Maryland, the court, upon the authority of Logan v. United States, supra, and cases cited therein, determined that the jurisdiction of the United States district court "must be considered quoad hoc as foreign to that of the Maryland courts."

The penal code of New York provides that a sentence, in addition to the regular sentence, may be imposed if the defendant has been previously convicted of a crime punishable by imprisonment in a state prison. In People v. Gutterson, 244 N.Y. 243, 155 N.E. 113, decided December 31, 1926, the defendant Gutterson had been convicted and sentenced previously on a felony charge in another jurisdiction. The court held that the lower court erred in imposing an additional sentence, and cited as a precedent for so holding the early New York case of Sims v. Sims,75 N.Y. 466, supra, and cited, also, among other authorities, the case of Logan v. United States,144 U.S. 263, 36 L. ed. 429, 12 S. Ct. 617, supra. The syllabus in the case sets forth the rule of law in the exact language of the Logan Case.

In the case of Re Ebbs, 150 N.C. 44, 63 S.E. 190, 19 L.R.A.(N.S.) 892, 17 Ann. Cas. 592 (decided December 22, 1908), the court quoted approvingly from Judge Parker's opinion in the case of Com. v. Green, 17 Mass. 515, supra, wherein it is said: "What is felony also in one country may not be felony in another, and it is competent for the legislature of every nation to attach disabilities to the commission of offenses which by the laws of other nations may be wholly without such consequences." The North Carolina court, commenting further, said:

"We know that the federal government punishes practically all offenses with imprisonment in the penitentiary. Violations of the revenue laws, often technical and involving no moral turpitude whatever, may be so punished. Again, acts which in our state are deemed misdemeanors, punishable by fine or a short term in the county jail or house of correction, are deemed of grave character and punished by imprisonment in the state's prison in other states. Each state makes its penal codes, and the federal government does the same. If any other interpretation were put upon our statute, it would logically follow that, for violation of the federal statutes or statutes of other states, citizens of this state would forfeit their right to vote under our Constitution. Certainly the people of North Carolina never contemplated that any such construction would be put upon their laws."

In the recent case of State ex rel. Mitchell v. McDonald,164 Miss. 405, 145 So. 508, 86 A.L.R. 290 (decided January 9, 1933), a petition filed by the state of Mississippi, on the relation of its attorney general, charged that the appellee, Dr. McDonald, unlawfully and without any warrant or right whatever, was holding and exercising the duties of the office of supervisor of district No. 3, Lauderdale county, for the reason, it is alleged, that he was disqualified to hold such office in that he had been convicted of felony in the United States district court for the eastern district of Louisiana before his election to said office. The Supreme Court of Mississippi determined that a disqualification did not exist by reason of such conviction. The court held: "The question as applied to the disability of a person to testify has arisen in many cases, and the reasoning and principles applied in those cases apply with equal force to a disqualification for holding office arising out of a conviction of crime, and lead to the conclusion that only convictions of crimes committed under the jurisdiction of this state will disqualify one from holding office in this state." Among the authorities cited by the court as in point are Com. v. Green, 17 Mass. 515; Logan v. United States, 144 U.S. 263, 36 L. ed. 429, 12 S. Ct. 617, and Re Ebbs,150 N.C. 44, 63 S.E. 190, 19 L.R.A.(N.S.) 892, 17 Ann. Cas. 592, supra.

Without discussing all of the cases bearing on the subject, the following authorities are cited as sustaining the principle of law announced in Com. v. Green, Logan v. United States, and the other authorities hereinbefore mentioned: Weber v. State,18 Okla. Crim. 421, 195 P. 510; Goldstein v. State, 75 Tex. Grim. Rep. 390, 171 S.W. 709; State v. Landrum, 127 Mo. App. 653, 106 S.W. 1111; 1 Greenl. Ev. § 376; 1 Wigmore, Ev. (2d ed.) § 522; Story, Confl. Laws, §§ 91, 93, 104, 620 and 625; Gandy v. State, 10 Neb. 243, 4 N.W. 1019; Brown v. United States (C.C.A. 6th) 233 F. 353, L.R.A. 1917A, 1133.

In the federal case of Brown v. United States (C.C.A. 6th) 233 F. 353, L.R.A. 1917A, 1133, supra (decided May 12, 1916), it is indicated that the rule as laid down by the Supreme Court of the United States in Logan v. United States still obtains in the federal courts. In this case it was held that a conviction in a state court, of an infamous crime, does not render one incompetent as a witness in a federal court sitting in the same state. The court said, in part:

"The effect of the doctrine, summarized by professor Greenleaf, that it is nothing less than the judgment of conviction making infamy, which is effective to disqualify, part of the penalty, is such that, if we hold that a court of another sovereignty than that of the tribunal rendering the judgment, must also, ipso fact, regard the convict as disqualified, we are not simply applying a rule of decision, but are enforcing a penal judgment.

"Federal practice enforces the principle that a judgment of infamy has, at the best, no extraterritorial applicability."

In this case the court had occasion, also, to point out the separate and distinct character of the government of the United States in its relation to the states, and of the states to each other, with reference to criminal judgments procured in the courts of such governments, respectively. In discussing the question, the court said:

". . . state and Federal courts, sitting in the same state, and having the same territorial jurisdiction, are foreign to each other in the sense that the courts of two states are foreign.

"The essential distinction between the government of the United States and that of any state, as two independent political identities, has been frequently pointed out in the decisions of the Supreme Court. Fox v. Ohio, 5 How. 432, 12 L. ed. 222; Moore v. Illinois, 14 How. 17, 14 L. ed. 307; Slaughter-House Cases, 16 Wall. 36, 21 L. ed. 394; United States v. Cruikshank,92 U.S. 542, 23 L. ed. 588; Ex parte Siebold, 100 U.S. 371, 25 L. ed. 717. The last exposition of the subject is found in Twining v. New Jersey, 211 U.S. 78, 53 L. ed. 97, 29 S. Ct. 14. The rule arises most frequently, as in cases just cited, where there is an apparent conflict of law between a state and the Federal government touching crimes. The absolute separation of the two sovereignties, with independent jurisdictions unburdened with responsibilities one to the other, save as occasionally the paramount authority of the Federal power is called into operation, is certainly emphasized by the fact that, upon the same state of facts, a wrongdoer may be called upon to answer to both governments."

Quoting further from the opinion:

"Obviously the courts of one state in the Union are regarded as `foreign' to the courts of another, not because of geographical separation, but because they are instrumentalities of independent sovereignties. A district court of the United States sitting in one state cannot be said to be geographically `foreign' to the state courts of another state, for the reason that the sovereignty of which it is a part has geographical extension over the territory of the other state. It is limited, to be sure, to a territorial jurisdiction which may not include the situs of a state court, but it is nevertheless an integral part of a judicial system which extends over the situs of every state court. It is therefore `foreign' to the court of a state beyond its territorial limitations only because its jurisdiction depends upon the question of sovereignty, and it obtains its authority from a sovereign distinct from and independent of that creating the state court. For that reason, for instance in the case cited above, a Federal and a state court of the same state are free, each independent of the other, to punish as an offense against their respective sovereignties, the same act which serves as the predicate of a crime within the definition of the laws of the two sovereignties, . . ."

Said case of Brown v. United States makes clear that the jurisdictions of the United States district courts are foreign to the states in the same sense and to the same extent as the jurisdictions of the state courts are foreign to each other, and definitely independent and free in their acts, as indicated by the several decisions of the Supreme Court of the United States cited in the opinion in the Brown Case. A state government has no part in the procurement of a criminal judgment in the federal courts, or in the execution of such judgment. Conversely, the federal government has no part in the procurement of criminal judgments in the courts of the states, or in the execution of their judgments.

Article 6 of the Constitution of the United States and § 3 of the Constitution of North Dakota, both cited and quoted in the majority opinion, are not in conflict, in any manner, with the principles laid down in the Brown Case, or the asserted rule of law therein that, "Federal practice enforces the principle that a judgment of infamy has, at the best, no extraterritorial applicability."

In view of the absolutely independent character of a criminal judgment procured in a jurisdiction foreign to this state, it is difficult to conceive that the framers of our state Constitution intended an automatic disfranchisement and deposition of an incumbent of the high office of governor, upon a mere conviction of a felony in such jurisdiction and before a final determination of the same on appeal, and even though the act complained of may not involve any moral turpitude whatever.

Such is the plain implication of the majority opinion, as I read it, wherein it says: "We therefore hold that consistent with the theory and purpose of § 127, whether an offense for which a conviction is had is a felony must be determined by the law of the jurisdiction where it is committed."

Such construction, it seems to me, would lead us into strange paths and byways. As indicated hereinbefore, what may be a felony in one state or in one jurisdiction may not be a felony in another, or even a crime whatever. Thus, in North Dakota, to carry on one's person, or in one's personal possessions, a pistol or small firearm beyond his dwelling or place of business, is a felony with a minimum punishment of at least one year's imprisonment and no maximum amount fixed in the law. 1925 Supplement to the Comp. Laws 1913, § 9803a6.

In the state of Texas — and in some of the other states — a citizen while traveling is privileged to carry a small firearm on his person or in his personal possessions. Penal Code, Tex. Stat. 1928, art. 484. If the governor of Texas on a visit to North Dakota should have on his person or in his baggage a small firearm, in accordance with lawful custom in the state of Texas, and enter the state of North Dakota with the same in his possession, he would be guilty of a felony under our laws, although he acted in ignorance of the law — and moral turpitude in fact was not involved.

Assuming the Constitution of Texas to be the same as that of North Dakota, and assuming the same construction placed thereon as in the majority opinion in this case, upon conviction, the governor of Texas, ipso facto, would be disqualified to longer perform the duties of his office even though he was never imprisoned or incapacitated otherwise to perform the duties of the office. The state of Texas would have no control over the judgment of conviction in North Dakota, or right to pardon or restore civil rights thereunder, as such authority would rest with the pardoning power of the state in which the judgment was procured. The governorship of Texas, therefore, in such circumstances, would be at the sufferance of the powers of another state.

As stated in Re Ebbs, 150 N.C. 44, 63 S.E. 190, 19 L.R.A.(N.S.) 892, 17 Ann. Cas. 592, supra, practically all offenses against the United States government are classed as felonies; and, again quoting from the decision, "the federal government punishes practically all offenses with imprisonment in the penitentiary. Violations of the revenue laws, often technical and involving no moral turpitude whatever, may be so punished."

Let us assume that a governor of this state, being required to do so, fails to comply with the federal revenue laws, by reason of press of business he neglected the matter, or because of other inadvertence, and that the penalties in such failure constitute a felony. In such circumstances, upon conviction, he would be disqualified to longer perform his duties as governor, in the light of the majority opinion in the instant case, and even though no imprisonment took place and no moral turpitude whatever was involved.

In the instant case the respondent, the Governor, was convicted of conspiracy in the United States District Court, sitting in the District of North Dakota, the particular acts complained of being, that certain parties, with the knowledge and prearrangement of the respondent, had solicited from federal employees subscriptions to a newspaper in which the Governor was interested, to the extent of $179.50. This the government contended is contrary to the provisions of certain federal statutes.

The conspiracy statute under which the respondent was convicted is § 5440, as amended, § 88 (Criminal Code, § 37), USCA, title 18. This statute reads: "If two or more persons conspire either to commit any offense against the United States, or to defraud the United States in any manner or for any purpose, and one or more of such parties do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be fined not more than $10,000, or imprisoned not more than two years, or both."

The offense defined by said § 5440 was originally a misdemeanor. Berkowitz v. United States (C.C.A. 3d 93 F. 452. By the Act of March 4, 1909, chapter 321, § 335 (USCA, title 18, § 541), all offenses punishable by imprisonment exceeding one year are deemed felonies. At common law a conspiracy whether for the commission of a misdemeanor or a felony, is a misdemeanor, only. 12 C.J. 581, § 97. Under the laws of North Dakota criminal conspiracies are misdemeanors only. Comp. Laws 1913, § 9441.

The majority opinion cites as authorities for the construction placed upon § 127 of the Constitution and the resulting disqualification of the Governor, certain cases, eighteen in number, which I shall analyze and discuss at this time, and which I believe can have but little, if any, weight as authorities with reference to the questions involved in the instant case. The cases referred to and cited in the opinion are as follows: Cowan v. Prowse, 93 Ky. 156, 19 S.W. 407; State v. Candler, 10 N.C. (3 Hawks) 393; Chase v. Blodgett, 10 N.H. 22; State v. Foley,15 Nev. 64, 37 Am. Rep. 458; Seitz v. Ohio State Medical Bd.24 Ohio App. 154, 157 N.E. 304; Re Hodgskin,193 A.D. 217, 183 N.Y.S. 401; Re Lindheim, 195 A.D. 827, 187 N.Y.S. 211; Barnes v. District Ct. 178 Cal. 500, 173 P. 1100; Re O'Connell, 184 Cal, 584, 194 P. 1010; Re Kerl, 32 Idaho, 737, 188 P. 40, 8 A.L.R. 1259; Re Peters, 73 Mont. 284, 235 P. 772; Re Elliott,122 Okla. 180, 253 P. 103; Re Kirby, 10 S.D. 322, 414, 73 N.W. 92, 907, 39 L.R.A. 856, 859; Re Finch, 156 Wash. 609, 287 P. 677; Re Comyns, 132 Wash. 391, 232 P. 269; Re Minner, 133 Kan. 789, 3 P.2d 473, 79 A.L.R. 35; State ex rel. Anderson v. Fousek,91 Mont. 448, 8 P.2d 791, 84 A.L.R. 303; State ex rel. Beckman v. Bowman, 38 Ohio App. 237, 175 N.E. 891.

With reference to the Kentucky case of Cowan v. Prowse, cited, the question arose as to whether a certain witness was entitled to vote at an election, he having been convicted of felony in a United States court and later pardoned by the President. It was held that he was entitled to vote. The effect of the conviction in the United States court is briefly mentioned, to the effect that the conviction would disqualify him the same as if convicted in the courts of the same state. The case is somewhat involved, and a number of points were determined, but the whole treatment of the subject, with reference to the effect of said conviction, is contained in a very brief statement and constitutes only a part of a single paragraph in the opinion. No authorities are cited. The pertinent legal question determined by this case, in connection with this matter, was that a pardon restored all civil and political rights. The date of this decision is just thirty-one days after the Supreme Court of the United States had decided the case of Logan v. United States, 144 U.S. 263, 36 L. ed. 429, 12 S. Ct. 617, supra, and it is quite probable that the opinion in the latter case was not before the Kentucky court at the time the Cowan Case was determined. It seems to me that no weight as an authority on the question involved in the case at bar, can be attached to this decision.

The cases of State v. Candler, 10 N.C. (3 Hawks) 393, and Chase v. Blodgett, 10 N.H. 22, also cited, were both strongly disapproved in the subsequent New York case of Sims v. Sims,75 N.Y. 466, supra. Moreover, the said North Carolina case mentioned, State v. Candler, was disapproved by the same court, the Supreme Court of North Carolina, in the more recent case of State v. Ebbs hereinbefore cited and discussed, which court had occasion to refer to the Candler Case in the following language: "The question, as applied to the disability of a person offered as a witness to testify, arose in this state in State v. Candler, 10 N.C. (3 Hawks) 393, when it was held by a divided court that a witness convicted of an infamous crime in Tennessee was incompetent to testify in this state. . . . The question has been decided otherwise in many other states, and the decided weight of authority is against the decision in Candler's Case." The court determined the case upon the rule laid down in Com. v. Green, 17 Mass. 515, Sims v. Sims, 75 N.Y. 466, and Logan v. United States, 144 U.S. 263, 36 L. ed. 429, 12 S. Ct. 617, supra, as hereinbefore indicated.

I desire to note in passing, that the North Carolina case of State v. Jones, 82 N.C. 685, quoted in the majority opinion, to the effect that "the disqualification for once and the loss of the right of suffrage imposed by article 6 of the Constitution, upon persons convicted of infamous offenses, constitute no part of the judgment of the court, but are mere consequences of such judgment," has reference to criminal judgments procured in the courts of North Carolina only, and not to judgments in another jurisdiction. This I believe to be a fair statement of the law, as the same court in the subsequent North Carolina case of Re Ebbs, 150 N.C. 44, 63 S.E. 190, 19 L.R.A.(N.S.) 892, 17 Ann. Cas. 592, supra, in denying that a judgment of conviction had extraterritorial effect, said:

"If any other interpretation were put upon our statute, it would logically follow that, for violation of the federal statutes or statutes of other states, citizens of this state would forfeit their right to vote under our constitution. Certainly the people of North Carolina never contemplated that any such construction would be put upon their laws."

The Nevada case of State v. Foley, 15 Nev. 64, 37 Am. Rep. 458, cited, concerns the qualifications of a witness to testify in the courts of Nevada, the witness having been previously convicted of crime in another state. The court held the witness was disqualified. This case is unique, as the determination therein is opposed to the rule laid down in the long line of state and federal cases holding to the contrary, as hereinbefore cited. The court stresses the early North Carolina case of State v. Candler, 10 N.C. (3 Hawks) 393, supra, as authority. However, North Carolina disapproved the Candler Case in Re Ebbs, supra, as hereinbefore indicated.

The said cases of State v. Candler and Chase v. Blodgett had both been decided long prior to a determination of the same question in the Logan Case; and the said case of State v. Foley had been determined more than ten years before the Supreme Court of the United States spoke in the Logan Case. Whether or not the court in State v. Foley had some doubt as to the wisdom of the rule to which it adhered, or whether any significance can be attached thereto, nevertheless the court used the following language: "It may be that the tendency of enlightened opinion and of recent legislation in other states and countries is against the rule . . .; it may be that it is an unwise and impolitic rule, but it is unquestionably the law of this state."

The case of Seitz v. Ohio State Medical Bd. 24 Ohio App. 154, 157 N.E. 304, cited, involves the right or authority of the Medical Board of the state of Ohio to revoke a doctor's license to practice medicine, he having been convicted in a federal court of offenses in violation of the narcotics law; and eleven of the remaining thirteen cases cited involve the disbarment of attorneys at law.

An analysis of these disbarment cases cited in the majority opinion discloses that they can hardly be considered as authorities for the precise question involved in the instant case. These disbarment cases are in the nature of disciplinary measures. An attorney at law is an officer of the court, officially created by the court, and the courts generally claim the inherent power to discipline or disbar attorneys for conduct or crimes wherever committed, whether in the same state, or in another state, or even in a foreign country.

What has been said with reference to the office of attorney at law applies with equal force to the revocation of licenses of medical doctors. Medical boards, under the police powers, have the broadest authority in the licensing of members of the profession, and in the revocation of such licenses on account of crimes or misconduct; and with few exceptions the courts will not review their determinations. Meffert v. State Bd. of Medical Registration (Meffert v. Packer) 66 Kan. 710, 72 P. 247, 1 L.R.A.(N.S.) 811, affirmed in 195 U.S. 625, 49 L. ed. 350, 25 S. Ct. 790; Richardson v. Simpson, 88 Kan. 684, 129 P. 1128, 43 L.R.A.(N.S.) 911; State ex rel. Williams v. Purl, 228 Mo. 1, 128 S.W. 196; Lawrence v. Board of Registration in Medicine,239 Mass. 424, 132 N.E. 174; 48 C.J. p. 1098, § 68.

The powers of the courts with reference to the regulation, discipline and disbarment of attorneys, and the rules of construction with reference to constitutional provisions or statutes concerning the same, are clearly set forth in 2 R.C.L. p. 1086, § 179. The text reads:

"In the absence of constitutional or statutory restrictions, a court of superior or general jurisdiction has authority to suspend an attorney from practice as such, or to disbar or strike from the rolls an attorney of such court upon proper grounds, because attorneys are officers of the court in which they are admitted to practice. The court, by reason of the necessary andinherent power vested in it to control the conduct of its own affairs, and to maintain its own dignity, has a summary jurisdiction to deal with the alleged misconduct of an attorney. . . ." (Italics ours.)

Such inherent power exists even without express constitutional provision or statutory enactment; and since this power is inherent in the courts, any constitutional or statutory restriction on this power must specifically and clearly appear. In other words, the courts have the power within themselves to regulate, discipline or disbar attorneys for misconduct regardless of where the misconduct occurs, whether in the state, in another state, or in a foreign country, unless constitutional or statutory provisions limit their scope. It is plain, then, that a different rule of construction applies, concerning such matters, than applies to constitutional or statutory provisions with reference to disqualification or infamy of voters. No court claims the inherent power to disqualify a voter or a governor, but constitutional or statutory authorization must exist, and therefore the rule of construction would be the opposite of the rule of construction with reference to the powers and duties of the courts pertaining to disbarment of attorneys. The rule of construction, on the one hand, concerns a limitation of power; and the rule, on the other hand, concerns a grant of power.

I believe that a careful reading of these disbarment cases will disclose this distinction in principle, and that there is no conflict in any of these cases with the rule of construction as laid down in Com. v. Green, 17 Mass. 515, and Logan v. United States, 144 U.S. 263, 36 L. ed. 429, 12 S. Ct. 617, supra, and the long line of decisions of both federal and state courts sustaining such rule.

The Montana case of State ex rel. Anderson v. Fousek, 91 Mont. 448, 8 P.2d 791, 84 A.L.R. 303, cited in the above list of cases from the majority opinion, places considerable stress upon the South Dakota case of Re Kirby, 10 S.D. 322, 414, 73 N.W. 92, 907, 39 L.R.A. 856, 859, also a disbarment case. It is interesting to note, however, that the courts of South Dakota, like almost all of the other states, including North Dakota, claim such inherent powers as existing in the courts with reference to disbarment of attorneys. Re Egan, 22 S.D. 355, 117 N.W. 874; Danforth v. Egan,23 S.D. 43, 47, 119 N.W. 1021, 1023, 139 Am. St. Rep. 1030, 20 Ann. Cas. 418.

In the case of Re Egan, supra, the Supreme Court of South Dakota said: "The court's control over an attorney as an officer of the court is inherent, and does not depend upon statutory authority."

In the case of Danforth v. Egan, supra, the Supreme Court of South Dakota had occasion to again speak concerning the inherent power of the court with reference to regulation and disbarment of attorneys, in the following language: "This right of the courts is as much the law of our land, and of as much dignity as such, as any law found in the Constitution or statutes. It is not dependent upon either the Constitution or statutes for its existence, but exists fully in all courts of record unless expressly restricted or taken away by express legislation. . . ." See also Re Simpson, 9 N.D. 379, 83 N.W. 541; Re Robinson,48 Wash. 153, 92 P. 929, 15 L.R.A.(N.S.) 525, 15 Ann. Cas. 415; 6 C.J. p. 580, § 37.

Evidently, the high court of New York did not consider any of these disbarment cases, either as authorities or as precedents, in construing a statute involving a similar question to the one at bar. In two of the said New York disbarment cases cited in the majority opinion, Re Hodgskin, 193 A.D. 217, 183 N.Y.S. 401, decided in 1920, and Re Lindheim, 195 A.D. 827, 187 N.Y.S. 211, decided in 1921, the respondent in each case had been convicted of felony in the United States District Court, sitting in the state of New York, and each was disbarred summarily upon proof of the judgment of conviction only. The subsequent New York case of People v. Gutterson, 244 N.Y. 243, 155 N.E. 113, supra, decided December 31, 1926, and hereinbefore cited and discussed, despite the said disbarment cases, and apparently in total disregard thereof, quite consistently adhered to the rule laid down in the early New York case of Sims v. Sims, 75 N.Y. 466, and the federal case of Logan v. United States, 144 U.S. 263, 36 L. ed. 429, 12 S. Ct. 617; the Gutterson Case holding, "In absence of express statute, conviction or sentence under the laws of another state, government, or country can have no effect by way of penalty or of personal disability or disqualification, beyond the limits of the state in which the judgment is rendered." This quotation from the holding of the court is in the exact language used by the Supreme Court of the United States in the case of Logan v. United States cited in the case. The opinion is concurred in by Judge Cardozo, now a member of the Supreme Court of the United States.

Of the two remaining cases cited in the above list of cases from the majority opinion, the Montana case of State ex rel. Anderson v. Fousek, 91 Mont. 448, 8 P.2d 791, 84 A.L.R. 303, supra, likewise occupies a unique position with reference to the rule of law which it proclaims. The authorities relied on in that case, with one exception, are disciplinary and disbarment cases of attorneys at law, and a case involving the revocation of license of a medical doctor. This case is opposed to the long line of decisions cited herein to the contrary, of both state and federal courts, including the Supreme Court of the United States, and contrary to the rule laid down by the law writers in the text books and encyclopedias on the subject. Since the authority for the decision is apparently based largely upon disbarment and doctors' cases, and which are not analogous in principle to the case at bar, I do not believe this case can have any weight in determining the matter before us.

The only case relied on as authority in the said case of Anderson v. Fousek, other than those involving disbarment of lawyers, and a single case involving the revocation of a license of a medical doctor, is the Ohio case of State ex rel. Beckman v. Bowman, 38 Ohio App. 237, 175 N.E. 891, which is also cited and relied upon in the majority opinion together with the said case of State ex rel. Anderson v. Fousek, as the two cases which, it is claimed, are directly in point in this case.

The State ex rel. Beckman v. Bowman Case involved a mandamus proceeding, prosecuted by Bowman, to compel the Trustees of the Police Relief Fund of the police department of the city of Cincinnati to grant relator's application for a pension. The trustees had refused his application, apparently upon the ground that relator had plead guilty to a felony charge concerning intoxicating liquors, in the United States District Court, and was sentenced to three months in jail and that, therefore, he could not qualify for the pension. Section 4616, General Code of Ohio, states that where a city has an organized police department, the city council may by ordinance provide for a police relief fund, to be administered by a board of trustees. The trustees are selected by the members of the police force, and the fund is created, partly by taxation and partly by donations. Section 4628 of the same code reads: "Such trustees shall make all rules and regulations for distribution of the fund, including the qualifications of those to whom any portion of the fund shall be paid, and the amount thereof. . . ."

Section 45 of the rules and regulations promulgated by the trustees provides: "Any member of the Police Department who has served fifteen consecutive years, who is discharged for any offense other than dishonesty, cowardice, or being convicted of felony, shall, upon the approval of the Board of Trustees of the Police Relief Fund, be paid a pension from said fund. . . ." The trustees had denied the application and had evidently ruled that a conviction of felony in another jurisdiction would disqualify, and the Supreme Court sustained this ruling in denying the writ.

The scope and power of the trustees under the said law for creating and administering the fund, came into question in the case of State ex rel. Little v. Selby, 22 Ohio L. Rep. 410, which is also a mandamus proceeding, to compel the trustees to allow a certain petition praying for participation in the fund. The petition had been denied and the Supreme Court of Ohio, in commenting upon the powers of the trustees and particularly their judicial powers in the administration of the fund, said, in part: "In the case a bar, there is no statute specifically enjoining upon the trustees the duty to grant a pension upon any specified state of facts; on the contrary, the statute specifically invests the trustees with authority to distribute a gratuity, to make rules therefor, and to some extent at least, to interpret such rules and apply the same in accordance with facts to be found by them, and as to all of which they are to exercise some degree of discretion and judgment."

The court also said: "The rule as stated by the Supreme Court of the United States is that the court will not interfere by mandamus with the exercise of duties of boards of this character, `even where those duties require an interpretation of the law, the court having no appellate power for that purpose; but when they refuse to act at all, or when by special statute, or otherwise, a mere ministerial duty is imposed on them — that is, a service which they are bound to perform without further question — then, if they refuse, a mandamus may be issued to compel them.' United States ex rel. Dunlap v. Black,128 U.S. 40, 32 L. ed. 354, 9 S. Ct. 12.

"In the above case the officer whose act was sought to be reviewed interpreted the law adversely to the relator and the Supreme Court said, `Whether, if the law were properly before us for consideration, we should be of the same opinion or of a different opinion, is of no consequence in the decision of this case.' . . .

"As a general rule, where the duty is such as necessarily requires the examination and consideration of evidence and the decision of questions of law or fact, such a duty is not ministerial, but involves the exercise of judgment and is therefore classed as a discretionary duty."

I have perhaps extended this presentation unduly, but in view of the important consideration of this case given in the majority opinion as an authority, it seems to me its force or lack of force as such cannot be fully comprehended without this background. Briefly, this police fund is administered by a board of trustees clothed with broad legislative and judicial powers. They make all the rules and regulations and they also have the power to interpret or construe those rules, and the courts will not interfere if they take action. If they refuse to act one way or the other, then the courts may interfere; and such are about the only instances wherein the courts pretend to be concerned.

While the reported case of State ex rel. Beckman v. Bowman,38 Ohio App. 237, 175 N.E. 891, is quite brief, it is evident that the trustees had refused Bowman's petition for the reason that they had interpreted their own rules to preclude one convicted of felony in another jurisdiction from participation in the fund. They had the authority to make such rule, and to so interpret it, and the Supreme Court of Ohio refused to grant the writ of mandamus. This case is analogous in principle to the said case of State ex rel. Little v. Selby, 22 Ohio L. Rep. 410, supra.

But this interpretation or construction of a local rule fixed by the Trustees of the Police Fund of Cincinnati, with almost plenary powers in its administration and interpretation, can have no bearing or shed any light upon interpreting or construing § 127 of the Constitution of North Dakota.

But there is another reason, equally potent, why the framers of our state constitution, and the people who adopted it, never intended that an incumbent of the high office of governor should be automatically deposed by reason of a mere conviction and sentence in a jurisdiction foreign to the state, as the makers of the instrument provided for every contingency, and in keeping with the definite plan of self-government which the constitution establishes.

Thus § 196 of the Constitution of North Dakota provides: "The governor and other state and judicial officers, except county judges, justices of the peace and police magistrates, shall be liable to impeachment for habitual drunkenness, crimes, corrupt conduct, or malfeasance or misdemeanor in office."

Section 194 of the Constitution states that the house of representatives shall have the sole power of impeachment, and § 195 provides that such impeachment shall be tried by the Senate. Section 198 asserts that no officer shall exercise the duties of his office after he is impeached and before he is acquitted of the charge; and § 200 of the Constitution provides that the officer may be tried for the offenses charged at any time after the expiration of twenty days from the date that a copy of the impeachment charges is served upon him.

The offenses for which the house of representatives may impeach a constitutional officer such as governor, are not confined to crimes or corrupt conduct committed within the state of North Dakota but include all such crimes or corrupt conduct committed in other states, or against the United States, or committed in any other country, or upon the high seas. The constitution wisely contemplates that those acts where moral turpitude is involved, wherever committed, come within the authority of the legislature to investigate, try and determine, and, if warranted, to remove from office temporarily or permanently. State ex rel. Shartel v. Brunk, 326 Mo. 1181, 34 S.W.2d 94; State ex rel. Trapp v. Chambers, 96 Okla. 78, 220 P. 890, 30 A.L.R. 1144; Ferguson v. Maddox, 114 Tex. 85, 263 S.W. 888.

A governor, like any other individual, must meet the consequences and pay the penalties for such crimes as he commits; but, like any other individual, he is entitled to his day in court — his full day in court — and he has not had his full day in court where an appeal is taken and the matter is not finally determined on the appeal. Whether, upon conviction and pending an appeal to the higher court, a governor should lay aside the duties of his office, either temporarily or permanently, depends, not upon what name may be given to the particular offense charged, but upon the nature and character of the alleged act and the degree of moral turpitude involved.

If § 127 of our constitution contemplates, that in case a constitutional officer of this state is convicted of an offense in Minnesota, denominated by the latter state as a felony, and, ipso facto, the officer is thereby disqualified to perform his duties further; or, if he should be convicted in Illinois of the same character of act, which by the latter state is denominated a misdemeanor only, and consequently no disqualification to hold the office results therefrom; then, whether or not he shall continue in the performance of his official duties, on the one hand, or be deposed, on the other hand, is dependent merely upon nomenclature, or the choosing of names, rather than upon the science of criminal punishments, which is naturally and logically based upon the degree of moral turpitude involved.

Nor is impeachment dependent upon what may be the outcome of a prosecution in a foreign jurisdiction. On conviction in another jurisdiction, an appeal may be taken or a new trial granted, either by the trial court or the appellate court, and the delay occasioned thereby may extend over a period of several months, or a year or more; or, an acquittal of the charge may result in the courts. But this would not affect the power and authority of the legislature, the house of representatives to impeach, and the senate to try the charges.

Thus, the constitution provides a complete and expeditious system for investigation by the legislature of charges against a constitutional officer, including governor, with power to remove temporarily or permanently, and in a consistent and orderly manner, fully contemplating, however, such safeguards as may be essential to prevent undue or untoward designs or encroachments upon such office, or upon such department of the government. It is one thing to disqualify a voter; but it is a matter of quite different import to depose a governor engaged in the performance of his duties.

The removal of a governor is not a trivial matter but is fraught with deep responsibilities and grave consequences. His office is that of sovereign executive power, and its position in the state is comparable with the office of president in its relation to the United States. The office of governor is a heritage of colonial times, and its historical background has firmly established its significance and importance. In fact, the authors of our federal constitution fashioned the office of president after the office of governor, as it was known and had existed prior thereto for considerably more than a century.

In the performance of his duties a governor not only executes the laws of the state, but he recommends to the legislature and to the people such policies and measures as he deems wise and expedient. His hand is on every legislative enactment, in approval or in disapproval. He occupies a unique position of leadership. He is the one individual of all the inhabitants of the state whom the people have chosen for such responsibility and trust.

In construing a provision of our constitution affecting the tenure of a constitutional officer, such as governor, the subject must be viewed in its broadest aspects, and the particular case under consideration must be regarded as but one of several, perhaps many, instances contemplated by the provision. If, in considering the practical operation of such provision of law, striking inconsistencies would result, highly antagonistic to the thought of self-government, — the very purpose for which the constitution was formulated and adopted, — then we may well seriously doubt that the framers of the constitution intended such construction; and this view would certainly be fortified where the constitution itself provides a remedy consistent with and expedient for any and all emergencies.

In construing certain provisions of the Constitution of Colorado, the Supreme Court of the United States said, "The simplest and most obvious interpretation of a constitution, if in itself sensible, is the most likely to be that meant by the people in its adoption." Lake County v. Rollins, 130 U.S. 662, 32 L. ed. 1060, 9 S. Ct. 651.

In viewing the situation as it exists in this case, therefore, it is apparent that the construction placed upon § 127 of the Constitution, by the majority opinion, is contrary to the rule of construction as laid down by the long line of decisions of both state and federal courts, including the Supreme Court of the United States, and which cases are directly in point; it is contrary to the view of such eminent authorities as Corpus Juris, Cyc., Wigmore, Ev. Greenl. Ev. and Story, Confl. Laws. That no authorities of a substantial or persuasive character, which are in point or analogous in principle, exist to the contrary, it seems to me, is borne out by a careful consideration of all of the cases touching on the subject; and that the Montana case of State ex rel. Anderson v. Fousek,91 Mont. 448, 8 P.2d 791, 84 A.L.R. 303, stands practically alone in the rule which it proclaims.

Moreover, to establish a system of automatic deposition of a constitutional officer, such as governor, by powers wholly beyond the jurisdiction of the state, and without any element of control by the authority of the state, and without regard to the degree of moral turpitude involved, is an innovation in government contrary to the generally accepted ideas of self-government, and not in keeping with the intention of the men who framed the constitution or of the people who adopted it. From my knowledge of the men who wrote the constitution of this state, and the rugged independence of those pioneers, the people who adopted it as the fundamental law of this state, I do not believe that they ever intended such construction to be given to that instrument.

The petition in this case and the stipulated facts do not indicate any cause of action and the writ should be denied.