(dissenting)—I dissent. The majority opinion is a labored explanation of when a conviction is not a conviction, which I do not find convincing.
The question should be: When does a disqualification to hold public office cease to be a disqualification?
The statute with which we are concerned is set forth on the first page of the majority opinion and says that the “conviction of a public officer of any felony or malfeasance in office” entails the forfeiture of his office and disqualification from ever after holding any public office in this state.
We were adamant as flint about this statute meaning what it says in State ex rel. Carroll v. Simmons, 61 Wn.2d 146, 377 P.2d 421 (1962), and State ex rel. Zempel v. Twitchell, 59 Wn.2d 419, 367 P.2d 985 (1962).
We are adamant as putty in the present case where “Ez” Kaiser, after resigning as Sheriff of Klickitat County, plead guilty to misappropriating a public record while occupying that position. This offense is conceded to be a felony and, obviously, constitutes misfeasance in office. A judgment of conviction was entered on that plea. However, there is ample authority that a plea of guilty in itself constitutes a conviction. In 21 Am. Jur. 2d Criminal Law § 495, at 484, it is said:
In short, a plea of guilty is an admission or a confession of guilt, and as conclusive as a verdict of a jury; it admits all material fact averments of the accusation, leaving no issue for the jury, except in those instances where the *241extent of the punishment is to be imposed or found by the jury.
This court has said:
Such plea is a confession of guilt and is equivalent to a conviction, leaving no issue for the jury, except in those instances where the extent of the punishment is to be imposed or found by the jury. By pleading guilty the defendant admits the acts well pleaded in the charge, waives all defenses other than that the indictment or information charges no offense, and waives the right to trial and the incidents thereof. In re Brandon v. Webb, 23 Wn.2d 155, 160, 160 P.2d 529 (1945)
The majority upholds Kaiser’s right to now hold the office of sheriff, to which he has been re-elected, urging that having been placed on probation following his conviction and having satisfactorily completed the probationary period, the conviction and the offense can be and were wiped out as provided in RCW 9.95.240.
The majority has quite forgotten our rather critical appraisal—in the Twitchell case, supra—of the courts in a few jurisdictions that “have yielded to sentimentality or empathy for public officials.” We pointed out in that case that RCW 42.12.010 and RCW 9.92.120 are expressions of legislative policy. It seems to me that a disqualification “from ever afterward holding any public office in this state,” after a judgment of conviction of a felony or of misfeasance in office is a declaration of public policy that should not be wiped out by the partial erasure process provided for in RCW 9.95.240, on which the majority places its reliance. (I say “partial erasure” because, as the majority points out, the guilty plea will count as a conviction in any subsequent prosecution.)
I am aware of our decision in Tembruell v. Seattle, 64 Wn.2d 503, 392 P.2d 453 (1964), holding that a plea of guilty is not a conviction under RCW 41.20.110—a statute depriving a retired policeman of his pension upon being convicted of a felony. There was involved in that case a property right in deferred compensation. It is my view that under RCW 9.95.240 a plea of guilty is a conviction *242because it deprives the public officer of his office forthwith and, by the same token, should disqualify him—in the absence of a pardon—from again being eligible for any public office in this state.
I also question the constitutionality of a statute giving to the courts the pardoning power (the wiping out of a conviction). The pardoning power is vested in the Governor “under such regulations and restrictions as may be provided by law.” Const, art. 3, § 9. While courts may suspend or defer sentence upon a convicted person, the pardoning power rests with the Governor.
With some questioning,2 it seems to be the rule that the exercise of the constitutional pardoning power by the Governor can restore eligibility to public office lost by the conviction for certain crimes. State ex rel. Cloud v. State Election Bd., 169 Okla. 363, 36 P.2d 20, 94 A.L.R. 1007 (1934). The legislature cannot restore such eligibility. Ferguson v. Wilcox, 119 Tex. 280, 28 S.W.2d 526 (1930). I find no authority that the courts can constitutionally do so. Suspend or defer sentences, yes; restore eligibility to office after conviction, no!
I would direct the trial court to enter a judgment of ouster and remove Mr. Kaiser as the Sheriff of Klickitat County.
Weaver and Rosellini, JJ., concur with Hill, J.
October 1,1968. Petition for rehearing denied.
See Pardon as restoring eligibility to public office, Annot., 94 A.L.R. 1011 (1934).