Slater v. Olson

DISSENT: Wennerstrum, Bliss, and Hale, JJ. Section 5701, Code 1939, designates the qualifications required of employees under civil service. The section reads in part as follows:

"5701 Employees under civil service — qualifications. * * * In no case shall any person be appointed or employed in any capacity in the fire or police department, or any department which is governed by civil service, unless such person:

"* * *

"2. Is of good moral character.

"* * *

"5. Has not been convicted of a felony."

On January 5, 1934, plaintiff was convicted of larceny of a motor vehicle in Polk County, Iowa. On January 25, 1935, he was granted a full pardon by the governor which restored him to all his rights of citizenship.

On September 19, 1940, plaintiff filed his application with the Civil Service Commission of Des Moines for the position of Assistant Smoke Inspector.

Prior to the date set for the civil service examination, plaintiff was notified by the commission that his application was rejected because of his failure to meet the requirements of section 5701, subsection 5, that is, because he had been convicted of a felony.

Plaintiff, in the certiorari proceeding, stated that he had been granted a full pardon and restoration to all the rights, privileges and immunities of citizenship which were forfeited by reason of his conviction; that the Des Moines Civil Service Commission exceeded its jurisdiction in denying plaintiff the right to take the examination and that paragraph 5 of section 5701 is unconstitutional as being a limitation upon and a restriction of the pardoning power exclusively vested in the governor of the state by both constitutional and statutory provisions.

The trial court sustained the writ of certiorari on the following grounds:

"(a) The Civil Service Commission, in denying plaintiff the right to take the civil service examination, exceeded its jurisdiction, authority and power.

"(b) That Paragraph 5, section 5701, Chapter 289, Code of Iowa (1939) is an unlawful invasion of the pardoning power conferred on the Governor of Iowa by Article IV, Section 16 of the Constitution of this state, and can not be sustained."

Section 16, Article IV of the Constitution of the State of Iowa vests in the governor the exclusive power to grant pardons after conviction.

We are not concerned on this appeal whether the legislature acted wisely in enacting subsection 5 of section 5701, which, in effect, provides that a prior conviction conclusively establishes the bad moral character of the applicant or whether it violates the constitutional prohibition against the passage of a bill of attainder or ex post facto law, or with its application to a person who has been convicted of a felony but has not received a pardon.

[1] The sole issue presented by this appeal is whether paragraph 5 of section 5701 constitutes an encroachment by the legislature upon the exclusive constitutional power to pardon lodged in the chief magistrate and the decision of the issue rests primarily upon the legal effect of a pardon on the status of a person convicted of a felony.

In State v. Forkner, 94 Iowa 1, 18, 62 N.W. 772, 777, 28 L.R.A. 206, 212, the opinion states:

"No doubt, a pardon, in its strict sense, contemplates a remission of guilt, both before and after a conviction. Ex parte Wells, 18 How. 309; Ex parte Garland, 4 Wall. 333; 4 Blackstone, Comm. 316."

In Ex parte Garland, 4 Wall. (71 U.S.) 333, 180, 18 L. Ed. 366,371, the opinion states:

"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."

It is now accepted doctrine that a full pardon absolves a party from all legal consequences of his crime. Osborn v. United States, 91 U.S. 474, 23 L. Ed. 388.

"Amnesty or pardon obliterates the offense, it is true, at least to such extent that for all legal purposes the one-time offender is to be relieved in the future from all its results; but it does not obliterate the acts themselves. It puts the offender in the same position as though what he had done never had been unlawful;" etc. United States v. Swift, 186 F. 1002, 1016.

The case of People v. Biggs, 9 Cal. 2d 508, 71 P.2d 214, holds a legislature has the power to impose a heavier penalty on account of a prior conviction although the offender has received a pardon. However, the court, in the course of its opinion, states that it is universally established that a pardon exempts the individual from the punishment which the law inflicts for the crime which he has committed; and, generally speaking, it also removes any disqualifications or disabilities which would ordinarily have followed the conviction. We do not approve the statement in the case of Ex parte Garland, 71 U.S. 333, supra, that the effect of a full pardon is to make the offender "a new man" that "in the eye of the law the offender is as innocent as if he had never committed the offense" because of the broad implications that may be attributed to them. The statements have been approved by some courts, but are strongly disapproved by many authorities. See People v. Biggs, supra; Beck v. Finegan, 3 N.Y.S.2d 1009; U.S. ex rel. Palermo v. Smith, 17 F.2d 534, and generally on the effect of a pardon, 46 C.J. 1192, section 32, and cases cited.

[2] We do hold however, that a full pardon granted after conviction contemplates, as stated in State v. Forkner, 94 Iowa 1,62 N.W. 772, supra, a remission of guilt "both before and after conviction", forgives the offender and relieves him from the results of the offense, relieves not only from the punishment which the law inflicts for the crime but also exempts him from additional penalties and legal consequences in the form of disqualifications or disabilities based on his conviction. Undoubtedly the legislature may prescribe qualifications for office but the power must be exercised subject to the right of the pardoned man to be exempt from additional disabilities or disqualifications imposed because of the conviction. When, through the power of the pardon, the doors of the penitentiary opened to plaintiff, he took his place in society with all his civil rights restored entitled to start life anew unburdened of the onus of his conviction.

[3] The Constitution vests the pardoning power exclusively in the governor, and, because of the division of the powers of government by section 1, Article III of the Constitution, neither the judiciary nor the legislature may interfere with or encroach upon this constitutional power lodged in the chief executive of the state. Section 5701, subsection 2, provides that one of the qualifications of civil service employment is a good moral character. Subsection 5 of said section disqualifies a person from employment under civil service solely because he has been convicted of a felony. The result is that it establishes a conclusive presumption that a person who has been convicted of a felony is not of good moral character and imposes legal consequences and disabilities because of the conviction from which plaintiff was exempted by the pardon, which, as stated, not only removed the statutory penalties prescribed for the crime of larceny, but also prevented other disabilities and penalties from attaching because of the fact of conviction.

To interpret subsection 5, section 5701, as applicable to one who has received a full pardon would render it unconstitutional as a clear encroachment by the legislature upon the pardoning power of the chief magistrate.

While the pardon did not, of itself, conclusively restore the character of the plaintiff, and although the acts done by him were not obliterated by the pardon they were purged of their criminality and plaintiff was entitled to an opportunity of proving to the commission that, although he committed the acts resulting in his conviction, he is now a man of good moral character. In this connection, we deem it appropriate to quote the language of Tennyson, presented to us by counsel for plaintiff:

"I hold it true * * * that men may rise on stepping-stones of their dead selves, to higher things."

We will refer to some of the cases cited by appellants: State v. Hazzard, 139 Wash. 487, 247 P. 957, 47 A.L.R. 538, adheres to the general rule and holds a pardon does not restore a specific privilege or office forfeited by conviction. In Hawker v. State of New York, 170 U.S. 189, 18 S. Ct. 573, 42 L. Ed. 1002, the question of the effect of a pardon is not involved. The case holds a legislature can make the record of conviction conclusive evidence of the absence of good character.

In Beck v. Finegan, 3 N.Y.S.2d 1009, a civil service commission rule provides (a) where the commission has information that a candidate whose name appears on the eligible list has a questionable character or reputation he will be marked "not qualified" and his name withheld from certification and (b) the name of such person shall, after due notice to him and an opportunity to be heard, if he so desires, be stricken from the list if the commission so orders. The applicant had the burden of proving good character. The petitioner was number one on the eligible list. The hearing disclosed he had been convicted of a crime and the commission in the exercise of its discretion placed his name on the list of persons disqualified for employment in city civil service. The court, in reviewing the criminal record of the petitioner, held there was ample justification for the conclusion reached by the commission that he had a questionable character and reputation.

In In re Lavine, 2 Cal. 2d 324, 327, 329, 41 P.2d 161, 162,163, 42 P.2d 311, petitioner, who had been disbarred from the practice of law pursuant to the provision of the statute upon his conviction of attempted extortion, applied, after receiving a full pardon, for reinstatement as an attorney at law. The court said that "Reduced to its simplest terms, the * * * proceeding requires us to determine whether a pardon standing alone and unsupported by evidence of moral rehabilitation, requires this court * * * to reinstate * * * [the applicant who had] forfeited his right to practice by reason * * * of an offense involving moral turpitude." The opinion states:

"The mere presentation of a pardon, without more, by an applicant, situated as is petitioner here, does not, in our opinion, satisfy the burden resting on him of showing that he possesses that moral stamina essential to one qualified to engage in the practice of the law, for it has been held that while a pardon obliterates an offense to such an extent that for all legal purposes the one-time offender is to be relieved in the future from all its results, it does not obliterate the act itself. It puts the offender in the same position as though what he had done never had been unlawful, but it does not close the judicial eye to the fact that once he had done an act which constituted the offense. (United States v. Swift, 186 Fed. 1002; People v. Weeber, 26 Colo. 229 [57 P. 1079, 1080].)"

The court further said in the Lavine case: "* * * in so far as the * * * ``pardon statute' purports to reinstate, or to direct this, or any other, court to reinstate, without any showing of moral rehabilitation, an attorney who has received an executive pardon of the offense upon the conviction of which the disbarment was based" it was void as a legislative encroachment upon the inherent power of the court and tantamount to vacating a judgment order by legislative mandate.

The cited cases either do not control or are reconcilable with the conclusion we have reached in this case. — Affirmed.

MILLER, C.J., and SAGER, OLIVER, MITCHELL, and GARFIELD, JJ., concur.

WENNERSTRUM, BLISS, and HALE, JJ., dissent.