Hogan v. Hartwell

• Citation: 7 So.2d 889,242 Ala. 646
• Decision Date: 07 May 1942
• Docket Number: 1 Div. 166.
• Parties: HOGAN v. HARTWELL.
• Court: Supreme Court of Alabama

7 So.2d 889

242 Ala. 646

HOGAN v. HARTWELL.

1 Div. 166.

Supreme Court of Alabama

May 7, 1942

Jesse F. Hogan, of Mobile, pro se.

Harry T. Smith, & Caffey, of Mobile, for appellee.

GARDNER Chief Justice.

Appellant a qualified elector of the City of Mobile, instituted this contest of the election of Harry T. Hartwell to the office of Commissioner of said city for the term beginning October 1 1941. The contest is based upon two grounds: First, it is insisted that Hartwell, at the time of the election, was ineligible to hold the office by reason of his conviction in the United States District Court for the Southern District of Alabama on May 11, 1939, of an offense punishable by imprisonment in the penitentiary and in the second place the contention is that said Hartwell was ineligible because not a qualified elector, as he had failed to re-register following said conviction.

Upon the trial it developed, undisputedly, that contestee Hartwell in May, 1939, was duly convicted in the United States District Court for the Southern District of Alabama under an indictment which in the first two counts charged a violation of Section 1731(a), Title 12 U.S.C.A., in that false statements were made for the purpose of procuring a loan from a Federal agency, and in the third count with a use of the mails to defraud in violation of Section 338, Title 18 U.S.C.A.

There was a general verdict of "guilty as charged in the indictment", and punishment was imposed of a fine of $250 and imprisonment in the penitentiary for one year and a day. The fine was duly paid and the sentence suspended. At the time of the election for City Commissioner of Mobile in September, 1941, therefore, the fine had been paid and the period covered by the sentence of imprisonment had expired.

Standing alone the foregoing admitted facts establish a prima facie case in favor of the contestant and point to the ineligibility of the contestee to hold the office. Section 60, Alabama Constitution 1901; State ex rel. v Blake, 225 Ala. 124, 142 So. 418; Title 17, § 16, Code 1940; Title 41,§ 5, Code 1940; Finklea v. Farish, 160 Ala. 230, 49 So. 366.

But these facts do not stand alone. Contestee offered as a complete answer the order of the State Board of Pardons and Paroles restoring to said Hartwell "all Alabama Civil and Political Rights" of which he was "by law deprived upon his conviction in said Federal Court". Before becoming a candidate, Hartwell made application to the State Board and received and accepted the above order restoring his civil and political rights.

It appears also without dispute no other proceedings had ever been brought against Hartwell in the Federal Court. There was but one indictment containing three counts and contestant makes the point that the order of the State Board makes reference only to a violation of Section 1731(a), Title 12, United States Code Annotated, omitting reference to the third and last count charging a use of the mails to defraud in violation of Section 338, Title 18, United States Code Annotated. But the verdict of the jury was general in character and without reference to any particular count in the indictment. Undisputedly this was the only judgment of conviction ever entered against the contestee. The preliminary statements contained in the order indicate the conviction to which reference is made, and the intent and purpose of the order are clear beyond dispute.

A pardon is to be construed as a whole to carry out the general intent and is to be liberally construed in favor of the person pardoned. 46 C.J. 1192. The following illustrative cases are here much in point: Ex parte Eggleston, 118 Kan. 381, 234 P. 970; Ex parte Stanley, 120 Kan. 1, 241 P. 685, and Redd v. State, 65 Ark. 475, 47 S.W. 119. Contestant's contention would too narrowly interpret the order and is not here accepted as well founded.

But coming to matters of substance, contestant insists the order is without force and that only the President of the United States could issue any effective order of that character, citing Section 2, Art. II, United States Constitution, and Harrison v. Snook, D.C., 22 F.2d 169. But there is here involved no matter of remission of fine or release from imprisonment. The fine has long since been paid and the time of sentence long since expired. The only matter, therefore, in which Hartwell was interested bears relation to the restoration of his civil rights. This was originally a function of the Governor under Section 124, Constitution 1901. This duty (death sentences excepted) now devolves upon the State Board of Pardons and Paroles as authorized under Amendment 38, Constitution 1901, as found on page 332, Title 1, Code 1940, and as set forth in Title 42, § 16, Code 1940. In this latter section it is provided that "no pardon shall relieve from civil and political disabilities unless specifically expressed in the pardon".

True only the President could grant a pardon for remission of the fine and release from imprisonment. But no official of the Federal government would have interest in the matter of restoration of civil rights tending to the qualifications of the convicted person for an office under State authority.

Speaking of the provision of our Federal Constitution, and with particular reference to Section 2, Article 4, the authorities are generally agreed that the privileges and immunities which are protected by Constitutional inhibition concern the person and private rights of the citizen, and do not include the right to hold office. 6 R.C.L. 289; 12 Amer.Jur. p. 123; Shaw v. City Council, 131 Iowa 128, 104 N.W. 1121, 10 L.R.A., N.S., 825, 9 Ann. Cas. 1039. And this general principle was recognized by this Court in Davis v. Teague, 220 Ala. 309, 125 So. 51, where sustaining authorities are noted.

The Shaw case [131 Iowa 128, 104 N.W. 1124], cited above, contains an interesting discussion of this question wherein it is stated that the "state has the same freedom of employment that belongs to the individual", and that "the right to hold a public office or to be employed by the state in any capacity is not a privilege within the meaning of the Constitution".

It was there further observed: "The right to pursue any lawful calling in a lawful way is undoubtedly a fundamental right; but there is a marked distinction between this right and the so-called right to be employed by a particular person or in a particular line of service. For the purpose of government, the counties, cities, and towns of the state are its agents and under its control; and what the state may constitutionally do with reference to public matters it may direct its agents to do, and by the act in question the state has simply said that it will employ in all public departments and upon all public works only those of a certain class of its citizens, other things being equal."

The State, therefore, alone is interested in the matter of qualifications of one holding the office of Commissioner of the City of Mobile and neither the President nor any other official of the Federal Government is concerned therewith.

Contestant would argue there was no pardon and that restoration of contestee's civil rights was without foundation upon which to rest. But we think this argument overlooks the broad and comprehensive meaning of the word "pardon" as found in the authorities to the effect that it is a declaration on record by "the chief magistrate of a state or country that a person named is relieved from the legal consequences of a specific crime". 20 R. C.L. 521. And in referring to this character of pardon the authorities hold that when the pardon is granted after the term of imprisonment has expired "it removes all that is left of the consequences of conviction-his disabilities". 20 R.C.L. 557, 558.

The argument that the President only can act in cases of this character is to leave the citizen of the State entirely dependent upon the will of an officer of the Federal Government concerning a matter in which the Federal government is without interest or concern. By analogy the case of State v. Riddle, 213 Ala. 430, 105 So. 259, is authority for the conclusion that in instances of this character the State Board of Pardons and Paroles has authority to act whether the conviction be in a State or Federal Court. And the provisions in Title 17, § 16, Code 1940, conferring power on the State Board to restore "citizenship with the right to vote" of one who is disqualified from voting by reason of conviction, whether the conviction was had in a State or Federal Court, likewise points to the same end.

The very question here presented was considered by the Kentucky Court in the very recent case of Arnett et al. v. Stumbo et al., 287 Ky. 433, 153 S.W.2d 889, 135 A.L.R. 1488. So far as here applicable the gist of that decision is to be found in headnotes 3 and 4 as follows:

"3. The right to vote and to hold office in a state comes from the state and is subject to regulation and control of state.

"4. Under provisions of constitution authorizing governor to restore suffrage and office holding...