Donham v. Gross

THE COURT.

Petition for writ of mandate, the effect of which will be to estop the respondent Henry P. Dalton from being a candidate for nomination for the office of county assessor of the county of Alameda at the approaching primary election. The respondent county clerk answers, and the respondent Dalton demurs and answers separately. Following his conviction on a charge of asking and receiving a bribe during his term of office as assessor of Alameda County, Dalton was, on the twenty-fourth day of July, 1911, sentenced to a term of eight years in the state prison. His conduct at the prison during his confinement was such as to entitle him to have thirty-two months deducted from the term for which he was sentenced. As a consequence, on the twenty-seventh day of November, 1916, Dalton was released from custody, the order of the Governor of the state reciting, pursuant to section 1579 of the Penal Cod§, that he be “restored to citizenship. ’ ’ Dalton has now registered as a voter of Alameda County, and has filed with the respondent county clerk a certificate entitling him, on its face, to become a candidate for the nomination for the office of assessor, unless some legal disqualification prevents.

As the ministerial officer charged with the duty of making all arrangements for the conduct of the approaching general county-wide primary, the respondent clerk takes the position that he is not required to ascertain whether or not a candidate who offers himself is or is not eligible to hold the office for which he stands, and that, therefore, he will place the name of Henry P. Dalton on the ballot unless legally restrained from doing so. Petitioner contends that Dalton is barred from becoming a candidate for the office to which he aspires by the provisions of section 68 of the Penal Code, which declares that every executive officer

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who asks and receives a bribe upon any agreement or understanding that his action upon any matter then pending, or which may be brought before him in his official capacity, shall be influenced thereby, in addition to a term of imprisonment in the state prison, shall be

forever disqualified from holding any office in this state.

The respondent Dalton defends against the contention of the petitioner on the theory “that by the restoration to citizenship hereinabove mentioned” he ‘ ‘ was thereby pardoned, restored to citizenship and to his right as an elector and his right to run and hold office. ’ ’ This court has held to the contrary. The executive act of the Governor, ordering the release of Dalton at the expiration of the term for which he was sentenced, less the number of months allowed and credited to him, was not a pardon, nor was it intended to be such. It did not purport to remove the guilt of Dalton, nor wipe away the infamy by the law of the land attaching to him by reason of his conviction. ‘1 The stain of his iniquity, flowing from his conviction, is still left upon him by the Executive.”