In Irby v. Day; 182 Ark. 595, 32 S.W.2d 157, ". . . we expressly held that Irby was disqualified to receive the democratic nomination to public office in this state because of his previous conviction of embezzlement of public funds. Therefore, any question as to his conviction resting in a foreign jurisdiction is laid at rest, and we shall not again consider it. The sole question here presented for consideration is, Does a pardon by the chief executive restore to Irby all civil rights and political privileges enjoyed by him prior to his conviction?"1 The opinion was delivered Nov. 3, 1930. The pardon came nearly three months later.
The author of the opinion in Irby v. Day (the preceding quotation having been taken from State Ex. Rel. Attorney General v. Irby, 190 Ark. 786, 81 S.W.2d 419) said: "Appellant's second and last contention for a reversal of the judgment is that the plea did not constitute *Page 691 a defense to the cause of action. The plea was sufficient to show that the appellant was ineligible to hold the office of representative from Clay county, and for that reason had no right to contest appellee's certificate of nomination. Section 9 of art. 5 of the constitution of 1874 provides that no person convicted of embezzlement of public money shall be eligible to hold an office of representative in the general assembly."
From what I have been able to ascertain by reading the majority opinion of today, and from discussions in conference, it is not intended that State Ex Rel. Attorney General v. Irby be overruled. On the contrary, my understanding is that if the result brings about an impairment of the opinion written by Chief Justice Johnson, a majority of the justices did not so intend. In other words, there were not four votes to overrule the former holding. We have, then, reaffirmation of the rule that one convicted of embezzling public money may not hold office, and this status is not altered by pardon.
By circuitous construction the opinion in State v. Irby is bypassed. It is now held that the state committee could not exercise a judicial function by deciding that Irby was not eligible; that the committee's functions were ministerial; that its members close their vision and their minds to what this court has said on previous occasions — all this because, as it is argued, Irby might be nominated and elected, and under art. 5, 11, of the constitution, he could be seated.
Unless it should be held that the presidential pardon restored appellant's political rights, as well as his civil rights, I do not agree that if elected he can be seated by the senate. Section 11 of art. 5 of the constitution authorizes each house of the general assembly to appoint its officers; and it shall be the sole judge of the qualifications, returns and election of its own members when there has been an election. But this right must be read in connection with art. 5, 9, and with 8 of art. 5 when it is applicable. Section 8 provides: "No person who now is or shall be hereafter a collector or holder of public money), nor and assistant or deputy of such holder or collection of public money, shall be eligible to a seat in *Page 692 either house of the general assembly, nor to any office of trust or profit, until he shall have accounted for and paid over all sums for which he may have been liable."
Section 9 is: "No person hereafter convicted of embezzlement of public money . . . shall be eligible to the general assembly or capable of holding any office of trust or profit in this state."
Effect of the majority opinion is to hold that the chairman and secretary of the state committee are guilty of tyrannical conduct, or at least grave indiscretion, in following the law as laid down in 1935.
It is my view that they were justified in believing the court meant what it said. They would have been insensible to a public trust had they ignored State ex rel. Attorney General v. Irby. No discretion was exercised; no judicial function was usurped. This court had already made the law. There was more understanding in what they did than would have been the case had they simulated estrangement to the law as it had been written.
1 Irby was sentenced February 17, 1922, on a charge of embezzling post office funds. He entered a plea of guilty. February 19, 1931, President Hoover issued a pardon, "the purpose being to restore Irby's civil rights."