(concurring in the result)—Article I, § 22, of the state constitution (the tenth amendment) guarantees the right of appeal in all criminal cases, while the Organic Act contained no such guarantee, so it was within the province of the territorial legislature to grant or deny appeal in a criminal case.
The territorial legislature of 1866 enacted RCW 42.12.010, which provides that a public office is vacated if the occupant thereof be convicted of specified crimes. This statute has not been re-enacted since statehood. Territorial statutes in conflict with the subsequently adopted constitution were repealed thereby. State ex rel. Washington State Sportsmen’s Council v. Coe, 49 Wn. (2d) 849, 307 P. (2d) 279.
The criminal code of 1909 (Laws of 1909, chapter 249, § 37, p. 900), which was adopted from the criminal code of New York, contains a similar provision (RCW 9.92.120) *434declaring that a public office is vacated if the occupant thereof be convicted of specified crimes. New York has no constitutional provision guaranteeing a right of appeal from a conviction of a criminal offense. Consequently, the legislature of that state may grant or deny an appeal in a criminal case. People v. Gersewitz, 294 N. Y. 163, 61 N. E. (2d) 427.
The court decides that neither RCW 42.12.010 nor RCW 9.92.120 violate the constitutional guarantee of a right of appeal in all criminal cases contained in the tenth amendment to the state constitution.
The precise question here is: Do the two statutes declaring a public office forfeited upon a judgment of conviction of specified crimes violate the provision in the tenth amendment guaranteeing a right of appeal in all criminal cases?
While the constitution of Nebraska (Art. I, § 23) provides for a writ of error as of right in felony convictions,4 only two states besides Washington, Arizona (Art. II, § 24) and Utah (Art. I, § 12), constitutionally guarantee a right of appeal in all criminal cases. Therefore, I at once put aside all decisions from other states on both sides of the question because, under such circumstances, the legislature may deny any appeal. People v. Gersewitz, supra.
State ex rel. Guthrie v. Chapman, 187 Wash. 327, 60 P. (2d) 245,5 106 A. L. R. 640, and State ex rel. Knabb v. Frater, *435198 Wash. 675, 89 P. (2d) 1046, specifically decide that an office is vacated by the judgment of conviction and that such forfeiture is not superseded by appeal. However, in neither case did the court consider any conflict between the statutes and the constitutional guarantee of a right of appeal.
The highest courts in the other two states, without mention of the constitutional guarantee but relying on our Guthrie decision, decided that the forfeiture of the office was not suspended by an appeal. State ex rel. De Concini v. Sullivan, 66 Ariz. 348, 188 P. (2d) 592; State ex rel. Giles v. Burke, 101 Utah 48, 117 P. (2d) 454.
If this were an open question, a very strong argument could be made that the statutes involved conflict with Art. I, § 22, of the state constitution, guaranteeing a right of appeal in all criminal cases, but in the light of the judicial history it is not now possible to reverse this judgment unless the prior cases are overruled.
For this reason, I concur in the affirmance.
Index Digest of State Constitutions (2d ed., 1959), Courts, Appeals, p. 199.
The court’s opinion in the Guthrie case was based upon Becker v. Green Cy., 176 Wis. 120, 184 N. W. 715, 186 N. W. 584. In the Guthrie case, the court said:
“. . . The only case cited to us, and the only one that we have been able to find, bearing any close similarity to the facts of this case is that of Becker v. Green County, 176 Wis. 120, 184 N. W. 715, 186 N. W. 584.”
It is interesting to note that after the conviction but before the opinion of the Supreme Court of Wisconsin in the Becker case, the statute was amended to provide:
“ . . . Reversal of the judgment against such officer shall forthwith restore him to office, if the term for which he was elected or appointed has not expired ...” Wis. Stat. Ann., §17.03(5).
Article 5969, Vernon’s Ann. Texas Civ. Stat., provides that the appeal *435shall supersede the forfeiture unless the court shall deem it in the public interest to suspend the convicted officer from his office pending appeal.