State v. Hazzard

• Decision Date: 12 July 1926
• Docket Number: 19955.
• Citation: 139 Wash. 487,247 P. 957
• Parties: STATE v. HAZZARD.
• Court: Washington Supreme Court

247 P. 957

139 Wash. 487

STATE v. HAZZARD.

No. 19955.

Supreme Court of Washington

July 12, 1926

Department 1.

Appeal from Superior Court, Kitsap County; French, Judge.

Proceeding by the State against Linda Burfield Hazzard. From the judgment defendant appeals. Affirmed.

Marion Garland, of Bremerton, for appellant.

Ray R Greenwood, of Bremerton, for the State.

ASKREN J.

This matter was submitted to the trial court upon stipulation and from an adverse decision the defendant appeals.

The material facts stipulated are: The defendant, Hazzard, in 1912 was the holder of a license issued by the state of Washington authorizing her to practice the art of healing. In that year she was convicted of manslaughter, and sentenced to the penitentiary. Upon the strength of the record of conviction the state medical board revoked her license. She was later pardoned by the Governor. The material portion of the pardon necessary to be observed in this inquiry is as follows:

'Now, therefore, I, Ernest Lister, Governor of the state of Washington, by virtue of the authority in me vested, do hereby pardon the said Linda Burfield Hazzard and restore her to all the rights and privileges she forfeited by reason of her conviction and confinement.'

After the pardon, appellant commenced to practice again upon the theory that the issuance of the pardon automatically restored the license to practice.

Counsel for both sides have narrowed the inquiry here to the sole question of whether an unconditional pardon has the effect of restoring to one convicted of a crime a license to practice the art of healing, if the revocation thereof was upon the ground of conviction of that crime.

Const art. 3, § 11, provides:

'The Governor shall have power to remit fines and forfeitures, under such regulations as may be prescribed by law.'

The Legislature has not seen fit to enact any regulations upon the exercise of the power, so it must be assumed that the chief executive has been granted that full power of pardon unobstructed in any manner, that reasonably follows with reference to remitting fines and forfeitures. Counsel for appellant claim that the words contained in the pardon, 'all the rights and privileges she forfeited,' show a clear indication to restore the license to practice, since such a license gives to one who holds it a right and privilege. But in construing the words of the pardon it must be borne in mind that the Constitution only gives the power to remit 'fines and forfeitures,' and that the words in the pardon cannot be construed any stronger than if it read that appellant was restored to all she had forfeited by reason of conviction and confinement. The very essence of a pardon is forgiveness or remission of penalty. Now, if the revocation of the license of appellant can be said to be a portion of the penalty provided by law upon conviction of crime of manslaughter, then it might reasonably be argued that the pardon which releases from the penalty would return the license. It is conceded that the revocation of the license is not a part of the punishment provided by law for the crime of manslaughter, for the license may be revoked for the commission of acts amounting to manslaughter, although there be no conviction thereof. It is urged, however, that, when the license is revoked because of the commission of the crime of manslaughter, that in effect it is a punishment therefor, since it precludes appellant from pursuing her profession. In this connection is cited Ex parte Garland, 71 U.S. (4 Wall.) 333, 18 L.Ed. 366. It is true that in that case the court held that any act which excludes one from the ordinary avoidations and professions of life for past conduct could be regarded in no other light than a punishment for such conduct. That decision has been robbed of much of its virility by later decisions of the court, notably Hawker v. New York, 170 U.S. 189, 18 S.Ct. 573, 42 L.Ed. 1002, where the court had before it a case involving the right of the state to exclude one from the practice of medicine upon the ground of conviction of crime, even after he had suffered the punishment pronounced. It was there held that such a right was well within the police power of the state in the performance of its duty to protect the public against those of bad character. The court said:

'On the one hand it is said that defendant was tried, convicted, and sentenced for a criminal offense. He suffered the punishment pronounced. The Legislature had no power to thereafter add to that punishment. The right to practice medicine is a valuable property right. To deprive a man of it is in the nature of punishment, and after the defendant has once fully atoned for his offense a statute imposing this additional penalty is one simply increasing the punishment for the offense, and is ex post facto.

'On the other [hand], it is insisted that within the acknowledged reach of the police power, a state may prescribe the qualifications of one engaged in any business so directly affecting the lives and health of the people as the practice of medicine. It may require both qualifications of learning and of good character, and, if it deems that one who has violated the criminal laws of the state is not possessed of sufficient good character, it can deny to such a one the right to practice medicine, and, further, it may make the record of a conviction conclusive evidence of the fact of the violation of the criminal law and of the absence of the requisite good character.'

The court also took occasion in that case to explain Ex parte Garland, 4 Wall. 333, 18 L.Ed. 366, the broad statement in which had given rise to much misunderstanding as to the effect thereof, saying:

'They [Ex parte Garland and Cummings v. The State of Missouri, 4 Wall. 277, 18 L.Ed. 356] only determine that one who is in the enjoyment of a right to preach and teach the Christian religion as a priest of a regular church, and one who has been admitted to practice the profession of the law, cannot be deprived of the right to continue in the exercise of their respective professions by the exaction from them of an oath as to their past conduct, respecting matters which have no connection with such professions.'

Appellant argues that the pardon requires us to assume that the Governor investigated the facts, and found that the appellant was innocent of the crime, and that its effect, therefore, is to restore her good character. To assume that all or even a major number of pardons are issued because of innocence of the recipients is not only to indict our judicial system, but requires us to assume that which we all know to be untrue. The very act of...