specially concurring in the result.
I agree that defendant Arthur Wermuth is the duly appointed and qualified sheriff of Jefferson County, but if the majority opinion in this case is to be the -law of this state in the future governing disqualification of persons convicted of infamous crimes or felonies to hold office, then I wish to make it clear that I had no part in the making.
While it is a matter of debate, by no means settled, that conviction such as would create automatic vacancy in a county office means final conviction (after all appellate remedies are exhausted), I am in agreement that as of January 11, 1957, Enlow was the sheriff. This is so because on that date Enlow was in a position to pursue additional review in the áppellate courts of his conviction by a federal jury. On this point the majority opinion and I agree. If the court had stopped there, as well it could and should have under the facts before us, I would append my Amen to the pronouncement. Beyond that I refuse to be involved. I am convinced, that if En-low had not resigned on January 11th, on the 12th, when he abandoned further appellate proceedings and accepted the conviction and sentence of the court, it would have as effectively, and ipso facto, vacated the office as would his death or resignation. As I read the pronouncement of my brethren of the majority, if Enlow had not resigned, he would still be sheriff of Jefferson County, notwithstanding his final conviction of a felony in the federal courts and notwithstanding that he now languishes in a federal penitentiary. As I read the opinion, it would require some laborious and circuitous procedure to be instituted, by whom we know not, successfully to *268rid a county of a faithless county public official who by his indiscretions, aye even his outright disregard of the law, has managed to confine his unlawful acts exclusively within the realm of federal law. I contend that infamy is universal and universally recognized. It has no narrow or ambiguous meaning. I believe that final conviction of an infamous crime, no matter where committed, and regardless of the court in which conviction is had, works an automatic and ipso facto vacancy in a county office pursuant to the clear and unequivocal provisions of C.R.S. ’53, 35-1-5. I do not find in the majority opinion solid authority for the declaration that infamous crime within the meaning of the statute means only those felonies committed in the state of Colorado and which subject the perpetrator to punishment in the Colorado penitentiary. The Supreme Court of the United States, the highest authority we recognize in constitutional and statutory interpretation, defines the word “infamous.” To follow its definition would give full protection to the public and would not offend against just and reasonable construction of our statutes. Other states have so declared. Becker v. Green County, 176 Wis. 120, 184 N.W. 715; Crampton v. O’Mara, 193 Ind. 551, 139 N.E. 360.
The United States Supreme Court in Ex Parte Wilson, 114 U.S. 417, considered the question of infamous crimes and punishment, and we there find these quotations:
“The question is whether the crime is one for which the statutes authorize the court to award an infamous punishment, not whether the punishment ultimately awarded is an infamous one. * * * ” (Emphasis supplied.)
The court further stated:
“For more than a century, imprisonment at hard labor in the State prison or penitentiary or other similar institutions has been considered an infamous punishment in England and America. * * * ” (Emphasis supplied.)
“ * * * our judgment is that a crime punishable by *269imprisonment for a term of years at hard labor is an infamous crime, * * *.”
Thus the court reaffirmed the original construction of these terms in Mackin v. United States, 117 U.S. 348.
A quotation from Crampton v. O’Mara, supra, involving a city councilman and a violation of a federal statute concerning the right of citizens to vote 'in elections for United States Senator, points up the inconsistencies and the danger of limiting infamous crimes to those against the laws of the state only. In construing a statute similar to ours, the court said:
“It was suggested at oral argument that the power of the Legislature is limited to infamous crimes against the laws of the state; that is to say, those guilty of infamous crimes against the laws of the United States and sister states, are eligible, while those guilty of infamous crimes against the laws of this state are ineligible. We. cannot assent to the proposition that the framers of our Constitution intended a thing so anomalous, illogical, and unjust.
“We hold that, * * * a person who has been convicted of an infamous crime within the definition hereinbefore set out, either against the laws of the State, the United States, or a sister state, is disqualified for office in this state.” (Emphasis supplied.)
Historically, the statute under consideration here was one adopted by our pioneer legislature in territorial days. It was carried over by the legislature when the transition was made from Territory to Statehood and Colorado was admitted to the Union. It is significant that the framers of our state Constitution had come from other states, and they and their fellow citizens of the new state had trekked across the plains in covered wagons. It is significant also that those who were to come after them would, for the most part, be from “foreign” jurisdictions, the then existing sister states. The strong arm of the law in those days was the United States Marshal. In such a background and setting is it to be thought that *270the writers of the Constitution had in mind that those convicted of felonies and infamous crimes in other jurisdictions or under the federal law were not to be disqualified from holding office; practicing law; voting or serving on a jury within the plain meaning of the several statutes on this subject? We in this country have marveled that the constitutions of the several states and the Constitution of the United States have endured down through the years without many necessary amendments. We have been want to ascribe this phenomenon in self government to the virtues of our forefathers in being careful and far-sighted. While this may be true, it is certain that one of the reasons the constitutions have endured is because courts have been alert within the demands of reason and logic to afford wide application to broad constitutional principles, thus contributing to stable and orderly government and a sensible construction of our constitution and laws. The majority opinion would so narrowly construe the laws and constitution as to render them less effective, or if the trend continues, totally ineffectual.
Article XVIII, section 4, defines a felony as follows:
“The term felony, wherever it may occur in this constitution, or the laws of the state, shall be construed to mean any criminal offense punishable by death or imprisonment in the penitentiary, and none other.”
I find the majority opinion amending this section by the insertion of the words “of this state.” I quote from the opinion:
“A felony involves an ‘offense punishable by death or imprisonment in the penitentiary, and none other.’ ‘The penitentiary’ does not mean a penitentiary or any penitentiary; it means the penitentiary of this state.”
The opinion also adds that punishment by death must be in the Colorado staté penitentiary likewise to be a capital offense, but we need not concern ourselves with that because if a person is executed, no matter where, there would be no problem.
*271I cannot agree that the words “the penitentiary” as used in the constitution is so limited as to refer only to the Colorado State Penitentiary. A sufficient answer to such narrow construction is furnished by Mr. Justice Burke in People v. Kilpatrick, 79 Colo. 303, 245 Pac. 719:
“The construction given the act in question by the trial court is fraught with such momentous and disastrous results that we need go no further than invoke against it the fundamental rule that absurd interpretations will not be given statutes when reasonable ones may be resorted to. A reasonable one here lies at hand.”
I believe a more reasonable construction of the constitutional definition of a felony lies at hand; that what the framers of our constitution had in mind was punishable “in the penitentiary” (of the jurisdiction administering or prescribing such punishment). I pose the question, “Were the framers of the constitution and the legislature less adept at clear expression than the courts? The legislature attempting to further define the difference between a felony and misdemeanor enacted C.R.S. ’53, 39-10-19, as follows:
“Penalty not fixed by statute — punishment. — In all cases where an offense is denominated by statute as being a felony, and no penalty is fixed in the statute therefor, the punishment shall be not more than five years in the penitentiary. In all cases where an offense is denominated a misdemeanor, and no penalty is fixed in the statute therefor, the punishment shall be not more than one year in the county jail, or a fine of not more than three hundred dollars, or both such fine and imprisonment in the discretion of the court.” (Emphasis supplied.)
Likewise the majority opinion quotes from Brooks v. People, 14 Colo. 413, 24 Pac. 553, and People v. Godding, 55 Colo. 579, 136 Pac. 1011, as follows:
“ * * * under our constitution the test by which to determine whether an offense less than capital shall be *272deemed a felony or a misdemeanor is made to depend upon whether the same is punishable by imprisonment in the penitentiary or in the county jail.” (Emphasis supplied.)
Both the legislature and the court in expressing the difference in the constitutional definition of felony and misdemeanor used the word “the” in two places, both of them modifying a noun; one “the penitentiary” and the other “the county jail.” The majority opinion would construe the first “the” as limiting it to the Colorado State Penitentiary. How then would they construe the second “the”? There are sixty-three county jails in the state of Colorado! To which county jail does the law or the court’s opinion refer in defining misdemeanor? The answer it seems is plainly “the” county jail (of the jurisdiction administering or prescribing the punishment). If we can understand the use of the word “the” when referring to a number of county jails, I think it is not strained construction to say that the framers of the constitution intended the words “the penitentiary” to refer to such institutions in the several states or of the United States.
Another point should be noted. The majority opinion overlooks the gist of the federal offense of which Enlow now stands convicted and for which he is now confined in the penitentiary prescribed by the United States District Judge. The gravamen of the charge is the filing of a “false and fraudulent” tax return. Fraud, deceit, misrepresentation or any form of lying is infamous whether in Colorado or elsewhere. We have a similar provision in the state income tax law taken almost verbatim from the Congressional Act. Thus, according to the opinion, we may envision a county official convicted of evading state income taxes by the filing of false and fraudulent returns, and therefore subject to immediate removal from office, while another official, who had merely defrauded the United States, is permitted to continue in office because he had not offended against the *273laws of Colorado. In my view it is unbecoming for this court to label the laws of the legislature or the language of our historic constitution as being inadequate when by a reasonable interpretation both can be made adequate. It is no answer to suggest that our courts have no responsibility in the matter and the people obliged constantly to run to the legislature for minute and numerous amendments to meet reoccurring judicial opinions. Laws are not easy of amendment. Amending a constitution is even more difficult.
The opinion makes much of what this court has done in disbarment and disciplinary proceedings against lawyers. There is no statute similar to 35-1-5 affecting lawyers. The matter of disbarment and disciplining of lawyers is exclusively within the jurisdiction of the Supreme Court. If a lawyer is convicted of a felony in this or any other state or by federal law and is incarcerated in the penitentiary of the jurisdiction offended against, he is, by reason thereof, as a practical matter, prevented from practicing. The practice of law involves the personal representation of clients. If time-consuming procedures are followed in that regard the public is not harmed. If we should grant a person convicted in some other jurisdiction the privilege of practicing in this state, the public can take care of that since there is no compulsion to employ his services. However, there is only one sheriff in a county. He is a law enforcement officer with broad policy making authority. He operates his office by the use of deputies and other employes. To state that one could occupy the office through deputies and others and could dictate policies while languishing in the penitentiary so long as his offense was not against the laws of Colorado, is a construction so strained that I am unable to follow it.
Articles in newspapers and magazines reveal how convicted felons, while serving time in the penitentiary, have built up businesses, "accumulated fortunes, played the stock market, taken a wife, and otherwise engaged *274in activities common to the privileges normally exercised by law-abiding citizens. With the aid of this opinion county officers, if in a federal prison or the prison of some other state, may operate their offices without restraint while so confined. That the public has no remedy is amply demonstrated in this case where with strong evidence in the hands of United States officials, equally accessible to the district attorney of the county involved during the entire period in which Enlow was attempting to reverse his conviction, no move was made by that officer to oust the sheriff under the doubtful procedure prescribed in the majority opinion. If the district attorney refuses to act, what then is the remedy? My answer is that forfeiture of the office, as I believe the law intended, presents no such dilemma.
Other mischief inherent in the opinion, as I perceive it, is the danger that it appears to broaden the holding in Smalley v. People, 134 Colo. 360, 304 P. (2d) 902, which is cited with approval and as authority for some of the pronouncements therein. Smalley v. People, supra, does not remotely touch on the question here involved. It should be read only in the light of the problem presented which was simply that since a minor first offender is by law not liable to punishment in the state penitentiary, such first offense is not a felony.
In like manner I find in the opinion that the phrase taken from the constitutional definition of a felony “in the state penitentiary and none other” is loosely used in at least one portion of the opinion so as to appear to construe the words “and none other” as relating to “the penitentiary.” It is clear, however, that these words relate back to the words “the offense” as clearly set out in People v. Godding, supra.