Slater v. Olson
| Decision Date | 16 September 1941 |
| Docket Number | 45652. |
| Citation | 299 N.W. 879,230 Iowa 1005 |
| Parties | SLATER v. OLSON, Chairman, Civil Service Commission et al. |
| Court | Iowa Supreme Court |
Appeal from District Court, Polk County; Loy Ladd, Judge.
A proceeding in certiorari to review the action of the Civil Service Commission of the City of Des Moines in rejecting the application of plaintiff for civil service examination because he had been convicted of a felony although he had subsequently received a full pardon. The Commission based its rejection of plaintiff's application on the provisions of subsection 5 of section 5701, Code 1939. The trial court sustained the writ.
Affirmed.
F. T Van Liew, Bruce J. Flick, Sam Orebaugh, and Sol Glick, all of Des Moines, for appellants.
Chauncy A. Weaver, of Des Moines, for appellee.
Section 5701, Code 1939, designates the qualifications required of employees under civil service. The section reads in part as follows:
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:
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.
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, loc. cit. 18, 62 N.W. 772, loc. cit. 777, 28 L.R.A. 206, the opinion states:
In Ex parte Garland, 4 Wall. 333, 380, 18 L.Ed. 366, 368, 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.
; etc. United States v. Swift, D.C., 186 F. 1002, 1016.
The case of People v. Biggs, 9 Cal.2d 508, 71 P.2d 214, 116 A.L.R. 205 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, 4 Wall. 333, 381, 71 U.S. 333, 18 L.Ed. 366, 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 offence" 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, 254 A.D. 110, 3 N.Y.S.2d 1009; United States v. Smith, 2 Cir., 17 F.2d 534, and generally on the effect of a pardon, 46 C.J. 1192, section 32 and cases cited.
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, 777, 28 L.R.A. 206, supra, a remission of guilt " both before and after a 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.
The Constitution vests the pardoning power exclusively in the governor, and, because of the division of the powers of government by section 1, Article 3 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 steppingstones 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. People of 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, 254 A.D. 110, 3 N.Y.S.2d 1009, a civil service commission rule...
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