State Ex Rel. Attorney General v. Irby

This is a quo warranto proceeding instituted by the attorney general against W. O. Irby, acting as county judge of Clay County, Arkansas, in the Clay Circuit Court to oust him from said office. The complaint after alleging formal matters states:

"W. O. Irby is ineligible to hold the office of county and probate judge for the following reasons:

"That, on and prior to November 30, 1921, he was postmaster in the town of St. Francis, in Clay County, Arkansas, and as such postmaster had in his custody the money received from his said office, said money being the property of the United States of America, that the said W. O. Irby feloniously embezzled a large sum of money, to-wit, the sum of $2,266.80, the property of the United States; that said W. O. Irby was indicted for said embezzlement under 225, of the Revised Criminal Code of the United States, in the district court of the United States for the Jonesboro Division of the Eastern District of Arkansas, and was arrested in the State of Mississippi, and brought back to Arkansas for trial; that said cause was transferred to the Little Rock Division of said district court for trial, and at said trial the said W. O. Irby was convicted of the crime with which he was charged in the indictment, and was sentenced to serve a year and a day in the Federal penitentiary at Atlanta, Georgia; that said W. O. Irby was taken to said penitentiary and served the required time according to his sentence and then liberated."

Appellee answered the complaint thus filed by alleging:

"For further answer and defense defendant admits that on and prior to November 30, 1921, he was the postmaster in the town of St. Francis, Arkansas and that he was convicted in the district court of the United States for the Eastern District of Arkansas, of the crime of embezzlement of moneys of the United States and that he was sentenced to the Federal penitentiary for said crime and served the term of his sentence; admits that he has not paid over to the United States of America the amount of money embezzled by him as set forth in the indictment, but states that prior to his election to said office to county and probate judge of Clay County, Arkansas, he was absolved from all liability to the United States for any moneys embezzled by him and ceased to owe it anything and had removed any disqualification or ineligibility that may have existed to his right to hold the office of county and probate judge, or any other office in the State of Arkansas, by reason of having had issued to him, and having received and accepted on the 19th day of February, 1931, a pardon from the Honorable Herbert Hoover, then President of the United States, pursuant to the powers in him vested as such President, which pardon in words and figures reads as follows:

"HERBERT HOOVER,

"PRESIDENT OF THE UNITED STATES

OF AMERICA

"TO ALL TO WHOM THESE PRESENTS SHALL COME, GREETINGS:

"Whereas W. O. Irby pleaded guilty in the United States District Court for the Eastern District of Arkansas, to embezzlement of postal funds, in violation of 225, United States Criminal Code, and was sentenced February 17, 1922, to imprisonment for one year and one day in the United States Penitentiary at Atlanta, Georgia; and

"Whereas the said W. O. Irby served his term, less allowances for good conduct, and was released January thirty-first, 1923, and

"Whereas it has been made to appear to be that the said W. O. Irby, since his release, has not been guilty of any further violation of law;

"Now, therefore, be it known, that I, Herbert Hoover, President of the United States of America, in consideration of the premises, divers other good and sufficient reasons me thereunto moving, do hereby grant unto the said W. O. Irby a full and unconditional pardon, the purpose of restoring his civil rights.

"In testimony whereof I have hereunto signed my name and caused the seal of the Department of Justice to be affixed.

"Done in the District of Columbia this nineteenth day of February in the year of our Lord One Thousand Nine Hundred and Thirty-one and of the Independence of the United States the One Hundred and Fifty-fifth.

"HERBERT HOOVER.

"By the President; "William D. Mitchell,

"Attorney General."

To the answer thus filed the Attorney General demurred, and, the demurrer being overruled by the trial court and the complaint subsequently dismissed, this appeal is prosecuted to test the sufficiency in law of said answer.

In Irby v. Day, 182 Ark. 595, 32 S.W.2d 157, we expressly held that Irby was disqualified to receive the democratic nomination to public office in this State because of his previous conviction for embezzlement of public funds, therefore any question as to his conviction resting in a foreign jurisdiction is laid at rest, and we shall not again consider it. The sole question here presented for consideration is, does a pardon by the Chief Executive restore to Irby all civil rights and political privileges enjoyed by him prior to his conviction?

We shall consider the question presented from three viewpoints, namely First, is a public office a political privilege or a civil right under the Constitution and laws of this State: Secondly, if a political privilege, is it a part of the punishment inflicted upon one convicted of embezzlement of public funds? Third, if a political privilege and not a civil right, does executive pardon destroy the stigma of conviction and restore political privilege? As a preliminary to a consideration of these questions, it may be said that we are irrevocably committed to the rule that the Constitution of this State should be construed as a frame of laws and not as an ordinary statute (Pulaski County v. Irvin, 4 Ark. 473 State v. Scott, 9 Ark. 270), and that where the language employed in the Constitution is plain and unambiguous the courts cannot and should not seek other aids of interpretation (Clayton v. Berry, 27 Ark. 227; State v. Ashley,1 Ark. 513; Ellison v. Oliver, 147 Ark. 252, 227 S.W. 586), and that every word used should be expounded in its plain, obvious and common acceptation (State v. Martin,60 Ark. 343, 30 S.W. 421; Ex parte Reynolds, 52 Ark. 330,12 S.W. 570), and that inherently the chief executive has no power or authority to grant pardons except that expressly granted by constitutional mandate. Baldwin v. Scoggins, 15 Ark. 427, and Hutton v. McClesty,132 Ark. 391, 200 S.W. 1032.

The pertinent provisions of the Constitution are as follows:

Section 9, of art. 5, provides: "No person hereafter convicted of embezzlement of public money, bribery, forgery or other infamous crime shall be eligible to the General Assembly or capable of holding any office of trust or profit in this State."

Section 18, of art. 6, is as follows: "In all criminal and penal cases, except in those of treason and impeachment, the Governor shall have power to grant reprieves, commutations of sentence and pardons after conviction; and to remit fines and forfeitures under such rules and regulations as shall be prescribed by law. In cases of treason he shall have power, by and with the advice and consent of the Senate, to grant reprieves and pardons and he may, in the recess of the Senate, respite the sentence until the adjournment of the next regular session of the General Assembly. He shall communicate to the General Assembly at every regular session each case of reprieve, commutation or pardon, with his reasons therefor, stating the name and crime of the convict, the sentence, its date and the date of the commutation, pardon or reprieve."

Reverting to the first question, is the right to hold public office a political privilege or a civil right? it may be said that this question was laid to rest in the early case of Taylor v. The Governor, 1 Ark. 21, and the court there so clearly announced our views on the subject that we quote from it at length, as follows:

"The office of sheriff is a public trust or agency, and it never becomes a right till the individual who claims it shows that he is constitutionally eligible. In the present case the applicant claiming a pretended right under the Constitution, clearly demonstrates (within the meaning of the instrument) that he is a defaulter, and hence he falls within its disqualification, and has no right to demand the office.

"The applicant has neither been dispossessed of his freehold nor in any manner deprived of his right, privileges or property, nor has he been denied the law of the land or judgment of his peers, or the freedom or equality of elections. All these privileges he possesses in as ample a manner and in as full a degree as any other citizen. The Constitution simply withholds from him public trust which depended upon his own volition or will, provided he complied with the condition annexed to the office. An ex post facto law declares that to be punishable in a manner that it was not punishable at the time it was committed, and relates exclusively to criminal proceedings. How then can it be said (when the Constitution annexes no penalty to the grant and inflicts no punishment) that it is void, being repugnant to the Constitution of the United States? This question is so plain in the opinion of the court that it requires no further solution. That the convention had full and ample powers to withhold office from public defaulters, and that they have done so, is equally certain. To deny the people, when acting in convention, this power is to impeach the right of self-government, and to destroy the means by which its blessings and excellence can alone be perpetuated.

"What is a Constitution? The Constitution of an American State is the supreme, organized, and written will of the people acting in convention, and assigning to the different departments of the government their respective powers. It may limit and control the action of these departments, or it may confer upon them any extent of power not incompatible with the Federal compact. By an inspection and examination of all the Constitutions of our own country, they will be found to be nothing more than so many restrictions and limitations upon the departments of the government and people. ``And the distinction,' says Chief Justice Marshall, ``between a limited and unlimited government is abolished if those limits do not confine the persons on whom they are imposed; and acts allowed and acts prohibited are of equal obligation.'

"If the Constitution can restrict the right of suffrage and the night of representation (and it has certainly done both) by positive enactments, and if it imposes conditions and limitations on all the departments of the government, legislative, executive and judicial, and confines them within their proper and appointed spheres, can it be imagined that it is incompetent to annex a condition to the office of collector and holder of the public revenue? The question again occurs, can the applicant claim the office of sheriff or demand the commission under the Constitution and by virtue and authority of his certificate of election, when by his own showing he had already demonstrated that his pretended right is an express violation of one of its most important and salutary provisions? The simple statement of the question carries with it the answer. The applicant having failed to establish any legal or vested right to the office or commission, he is not therefore entitled to the benefit of the writ, for when there is no injury the law affords no redress. It is clear he is a defaulter both to the Territorial and State government, and that he continued to be so at the time of the adoption of the Constitution and at the time of his election and at the time of the demand and refusal of his commission and at the time of filing his petition; and that he was in the exercise of the duties of sheriff, both before and after the adoption of the Constitution, and after its acceptance and ratification by Congress. He is then clearly within the meaning of the Constitution, and consequently ineligible to any office of profit or trust. So far as the rights and interest of the present applicant are concerned, the executive has done nothing that the law forbids; and whether his subsequent acts in relation to the same matter are inconsistent with his constitutional obligations to the county, or in violation of private rights, this court will not take upon themselves to determine; for that question is not properly before them. The executive in common with every other officer, is bound by oath to support the Constitution, and wherever an effort is made to evade or violate it, it is not only his privilege but his duty to interpose and prevent it.

"The court conceive it to be no part of their duty to intimate an opinion in relation to the wisdom or folly of the clause disqualifying the applicant from office, or to say anything in regard to its effect or consequences. It is sufficient for them that they have found it in the Constitution, and of course they are bound to obey it."

In the more recent case of State ex rel. Gray v. Hodges, 107 Ark. 272, 154 S.W. 506, we expressly conceded that a notary public was a public office, but denied the privilege of holding such office to women because they were not then qualified as such to hold public office. The late Chief Justice HART, who wrote the opinion, said:

"This view is greatly strengthened when we consider that, under the common law which was in force in this State at the time of the adoption of our Constitution, a woman could not hold a public office. Opinion of the Justices, 73 N.H. 621, 62 A. 969, 5 L.R.A. (N.S.) 415, 6 A. E. Ann. Cas. 283, and case note; Attorney General v. Abbott, 121 Mich. 540, 80 N.W. 372, 47 L.R.A. 92; Robinson's Case, 131 Mass. 376, 41 Am. Rep. 239. In the latter case the right of a woman to hold office was fully discussed, and the court, after citing and reviewing at great length the authorities hearing on the question, held that the political privilege of voting and holding public office was denied to women under the common law."

It will be noted that the gist of the opinion in the Gray case was that the right to hold public office in this State was and is a political privilege as distinguished from a civil right, and for this reason, and for this reason only, the privilege to hold public office was denied to women as the Constitution then existed. True, this disqualification of women was subsequently removed by an amendment to the Constitution, but this in no wise impairs the effect or logic of the opinion here.

Without discussion of cases cited from other jurisdictions, we think we are irrevocably committed to the doctrine that the right to hold public office under the constitutional laws of this State is a political privilege and not a civil right. Next, is the denial of the political privilege of holding public office, as set forth in 9 of art. 5, a part of the punishment inflicted upon one convicted of embezzlement of public funds? We can not conceive that it is. It is no more a part of the punishment inflicted for the commission of a crime than is 5 of art. 6, which provides that no person shall be eligible to the office of Governor unless a citizen of the United States, thirty years of age and a resident of this State for seven years. Under the plain mandate of this section, all persons under thirty years of age are ineligible to be Governor; likewise all residents of this State of a less period than seven years are ineligible. It must be granted that neither the executive nor the legislative branch of his State Government has power or authority to remove and set at naught these constitutional disqualifications. Rison v. Fair, 24 Ark. 161. Likewise 6 of art. 7 of the Constitution provides that a judge of the Supreme Court shall be at least thirty years of age, two years a resident of this State, and who has been a practicing lawyer eight years, etc. Manifestly, a person only twenty-nine years of age is excluded, or if such person does not possess the other designated qualifications he is likewise excluded, and neither the executive nor the legislative branches of the State Government have any power or authority to set at naught these constitutional qualifications. Similarly, 4 of art. 5 of the Constitution provides that Senators and Representatives must be citizens of the United States, two years a resident of this State, and Senators shall be at least twenty-five years of age. Neither the executive, judicial nor legislative branch has any power or authority to set at naught these constitutional disqualifications. Many other constitutional disqualifications might be cited but these will suffice to show the intend and purpose of the framers of the Constitution in arranging restrictions and safeguards upon its officeholders to protect the welfare of the State.

To hold that these safeguards and restrictions as they appear in our Constitution were promulgated as a punishment against the banished class can not be justified by interpretation. Such was neither the intent nor purpose of the framers of our Constitution. The clear and unmistakable intent and purposes was to safeguard the welfare of the State against such invasions as is now thrust upon it. Evidently it was the paramount thought that one who had been convicted for embezzling public funds should not again be trusted with their use, and we are unwilling to admit lack of wisdom in the framers of our Constitution in this regard.

The rule which we deem to be sound and based upon reason and logic is stated by the Supreme Court of North Dakota in State, etc., v. Langer, 256 N.W. 377, as follows:

"A State has an undoubted right to provide in its Constitution that persons may be * * * deprived of the right of suffrage by reason of having been convicted of crime. The manifest purpose of such restrictions upon this right is to preserve the purity of elections. The presumption is that one rendered infamous by conviction of felony, or other base offense indicative of moral turpitude, is unfit to exercise the privilege of suffrage. * * * The exclusion must for this reason be adjudged a mere disqualification, imposed for protection and not for punishment, the withholding of a privilege and not the denial of a personal right. 9 R.C.L. 1942. See also 20 C.J. 60. As the Supreme Court of North Carolina, considering a constitutional provision similar to the one involved in the case at bar, said: ``The disqualification for office and the loss of the right of suffrage imposed by art. 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. State v. Prince Jones, 82 N.C. 685'." * * *

"The presumption is that one rendered infamous by conviction of a felony, or other base offense, indicative of great moral turpitude, is unfit to exercise the privilege of suffrage, or to hold office upon terms of equality with freemen who are clothed by the State with the toga of political citizenship. It is proper therefore that this class should be denied a right, the exercise of which might sometimes hazard the welfare of communities, if not the State itself, at least in close political contests. The exclusion must for this reason be adjudged a mere disqualification, imposed for protection and not for punishment — withholding an honorable privilege, and not denying a personal right or attribute or personal liberty. Pomeroy on Const. Lim., 535; Anderson v. Baker, 23 Md. 531; Blair v. Ridgley, 41 Mo. 63, 97 Am. Dec. 248; Ex parte Stratton, 1 W. Va. 305; Kring v. Missouri,107 U.S. 221, 2 S. Ct. 443, 27 L. Ed. 506."

We think it is obvious, and therefore have no hesitancy in so deciding, that 9 or art. 5 or the disqualifications therein announced are no part of the punishment inflicted upon one convicted for embezzling public funds.

In view of what has been stated, does an executive pardon destroy the stigma of conviction and restore political privileges? We think this question in principle has been decided adversely to appellee's contention in the case of State v. Carson, 27 Ark. 469, wherein we held:

"The question now arises, does the Governor's pardon restore the office of probate and county judge to Carson, or does it only restore him to certain civil rights? In Ex parte Garland, (4 Wall. 381) the Supreme Court of the United States, in speaking of the effect of a pardon said: ``It does not restore to offices forfeited, or property or interests vested in others, in consequence of the conviction and judgment.' 4 Blackstone's Comm. 402; 7 Bacon's Abridgment Title, Pardon. In this cause there was a trial, verdict and sentence. The appeal did not set aside the judgment of the circuit court, it merely suspended judgment, or rather, the execution of the judgment. Section 327, Criminal Code, page 329. * * *

On the other hand, if it appears that a conviction took place before pardon, then it clearly follows, that the defendant cannot assume to exercise the functions and duties of the office of county and probate judge. In the case of the Commonwealth v. Fugate, (2 Leigh, Va., 724) a justice of the peace was convicted of a felony, and afterwards pardoned by the Governor. On his return home, he resumed the exercise of the office of justice of the peace. A rule was made upon him to show cause why an information, in the nature of quo warranto, should not be filed against him, etc. To the rule, he pleaded his commission, qualification and pardon, as is done in this case. In disposing of the case BROCKENBROUGH, J., said: ``The court is decidedly of opinion that such judicial officer forfeits his office by conviction of a felony, and that no pardon can restore him'."

Moreover, the rule which seems to be supported by the great weight of American authority, and is grounded upon reason and logic, is stated in 46 C.J. 1192, as follows:

"When a full and absolute pardon is granted, it exempts the individual upon whom it is bestowed from the punishment which the law inflicts for the crime which he has committed. The crime is forgiven and remitted, and the individual is relieved from all of its legal consequences. The effect of a full pardon is to make the offender a new man. While a pardon has generally been regarded as blotting out the existence of guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offense, it does not so operate for all purposes, and, as the very essence of a pardon is forgiveness or remission of penalty, a pardon implies guilt; it does not obliterate the fact of commission of the crime and the conviction thereof; it does not wash out the moral stain; as has been tersely said, it involves forgiveness and not forgetfulness." State v. Hazard, 139 Wash. 497,247 P. 957, 47 A.L.R. 538; 69 L.R.A. 71; 214 Ill. 569.

We think it self-evident that the issuance and acceptance of a pardon within its self irrevocably acknowledges a conviction of the crime pardoned, and has the effect only of restoring civil rights as distinguished from political privileges.

To give to executive pardon the effect contended for by appellee would nullify and destroy the safeguard retained in 9 of art. 5, and when 18 of art. 6, which gives to the Chief Executive of this State the power to grant pardons and 2 of art. 2 of the Constitution of the United States which gives to the Chief Executive power to grant pardons, are construed in the usual and ordinary manner, there is no contradiction. Section 18 of art. 6 and 2 of art. 2 of the Constitution of the United States operate only after conviction ascertained, whereas 9 of art. 5 of the Constitution of this State is a condition precedent to any one's right to hold public office in this State. When these provisions are thus construed, they are harmonious, and all doubts in reference thereto disappear.

Appellee contends that Rison v. Farr, supra, is in conflict with the views here expressed. The Carson case heretofore referred to and relied upon was decided subsequent to the Rison case therefore it is our duty to follow the more recent case, if conflict exists. Ex parte Garland, 4 Wallace 333, is likewise urged upon us, but this case was cited with approval in the Carson case, supra, and does not conflict therewith. Cases are likewise cited from other jurisdictions, for instance. Mississippi and Oklahoma which seem to hold contrary to our views, but, irrespective of this, it is our duty to follow our own cases in preference to cases from foreign jurisdictions, and, since we deem the vital questions here presented to have been decided in our own forum, we feel impelled to follow them.

It follows from what we leave said that the judgment must be reversed and remanded, with directions to proceed in accordance with this opinion.