consin serve as the basis for the charge stated in the warrant of arrest. Counsel in support of his motion submitted evidence of executive clemency for the offenses committed in the State of Wisconsin. Counsel also urged the application of the decision by the Supreme Court in the case of Fong Haw Tan v. Phelan, 333 U. S. 6, 92 L. Ed. 433 (February 2, 1948), insofar as the separate offenses committed in the State of Illinois are concerned with the respondent having been sentenced more than once.

The respondent, a native of Scotland, a subject of Great Britain, testified that he last entered the United States at the port of Detroit, Mich., on July 5, 1926. The charge pertaining to conviction of a crime involving moral turpitude prior to entry is predicated upon his conviction and sentence before the county court for Walworth County, Wis., on October 20, 1920, of the crime of larceny. The charge relative to his sentence more than once subsequent to his last entry to terms of 1 year or more for crimes involving moral turpitude is predicated upon the respondent's sentence before the Municipal Court for Rock County, Wis., on April 10, 1934, of the crime of breaking and entering in the nighttime with intent to commit robbery and his sentence at the Rockford, Winnebago County, Ill., on April 23, 1936, by the 17th Judicial Circuit Court to concurrent terms of from 1 year to life on indictments #7036, 7037, 7038 and 7039, charging, respectively, larceny, larceny of a motor vehicle, burglary and larceny, and burglary, larceny and receiving stolen property.

The record affirmatively establishes that the respondent was sentenced on a plea of guilty only once in the State of Illinois on April 28, 1936, for various terms to run concurrently. There is no showing that subsequent to his sentence on April 28, 1936, he has committed another crime, has been sentenced again to a term of a year or more and served the sentence. Under these circumstances, the decision of the Supreme Court in the Fong Haw Tan case (supra), clearly requires that the outstanding order and warrant of deportation be withdrawn provided the executive clemency granted the respondent by the Governor of the State of Wisconsin is deemed a full and unconditional pardon within the meaning of the immigration laws. The sole issue before us, therefore, is whether the certificate of executive clemency presented by the respondent is a pardon within the meaning of the Immigration Act of 1917, as amended. If it is, then the respondent is not subject to deportation on the above-stated charges.

This Board must consider the question of whether the executive clemency granted the respondent on June 26, 1946, by the Governor of Wisconsin has the effect of relieving the respondent from the legal disabilities incurred by his conviction of the offenses in question and

of restoring to him all civil rights forfeited by such offenses or conviction thereof1 in light of the Acting Attorney General's recent decision in Matter of 0, A-5877015 (February 4, 1950). In that decision the Acting Attorney General concluded that a certificate evidencing the restoration of a criminal alien's civil rights issued by the Board of Pardons in the State of Nebraska was not a pardon within the meaning of the immigration laws. Since the Acting Attorney General gave no reasons for his conclusion in his memorandum of transmittal, our only approach to the issue is a comparison of the substance of the power to pardon and the effect thereof inherent in the laws of the two states involved, namely, Nebraska and Wisconsin.

The Constitution of Nebraska vests the pardoning power in a board composed of the Governor as chairman, the Attorney General and the Secretary of State. The Constitution reads in part as follows:

Said Board, or a majority thereof, shall have power to remit fines and forfeitures and to grant commutations, pardons, and paroles after conviction and judgment under such conditions as may be prescribed by law, for any offenses committed against the criminal laws of this state except treason and impeachment *

Statutory provisions require each application for relief from the complete consummation of an imposed sentence by way of clemency to be made on forms provided by the Board of Pardons. Furthermore, publication of notice of hearing is required, recommendations are requested after due investigation, a full hearing in open session must be granted after due notice and "any citizen of Nebraska and the applicant for clemency shall be given the right to appear and be heard." Persons deemed incompetent, by reason of conviction and sentence for felony, to be an elector or juror, or to hold any office of

1A document designated as a pardon is not effective to avert deportation if by its terms refrains from extending to the recipient all the benefits which accrue to the holder of the pardon. It is the general rule that the authority to whom was committed the power to pardon must exercise it to exempt the felon from any and all punishment resulting from the conviction and to free him from any and all future legal consequences of the crime, without condition, if deportation is to be averted. In this respect, it has been stated that a pardon wipes out the legal consequences which flow from an adjudication of guilt. People ex rel. Prisament v. Brophy, 287 N. Y. 132 (1941); 3 Attorney General's Survey of Release Procedures, 268 (1939).

2

Nebraska Constitution, art. IV, sec. 13: Nebraska comp. stat. (1943), chap. 29, secs. 2602-2604. Before the amendment of the constitution in 1920 the pardoning power was vested in the Governor alone. In 1911 an advisory board of pardons was created (Nebraska laws, (1911), chap. 133). Now, since any two members of the board can exercise the powers conferred upon it, it is possible for the Attorney General and Secretary of State to grant a pardon against the wishes of the Governor.

2 Nebraska comp. stat. (1943), ch. 29, sec. 2606.

Nebraska comp. stat. (1943), ch. 29, secs. 2606, 2607, 2608, 2609, 2611, 2618, 2636.

honor, trust or profit within the state, are restored to their civil rights and privileges by a general pardon from the Board of Pardons granted under the seal of the state and countersigned by the Secretary of State.5

A more general method of restoring the prisoner's civil rights is provided by section 2634 of chapter 29, Nebraska comp. stat. (1943). This statute reads:

Whenever any convict shall have completed the lawful requirements of his sentence, the Board of Pardons, upon receiving a certificate of good conduct from the warden, shall immediately issue a warrant for the discharge of such convict, and such warrant shall in all cases restore the prisoner's civil rights the same as though a pardon had been issued.

This Board in the O- case (supra) reached the conclusion that there was no distinction between the general pardon granted by the Board of Pardons and a warrant of discharge issued pursuant to section 2634 (supra). The Acting Attorney General assigned no reason for the position he took. We assume that since the laws of Nebraska provide for a general pardon as well as a restoration of civil rights by a warrant of discharge, nothing less than a pardon will satisfy the requirements of the immigration laws. In other words, only a full pardon of the offense by the Board of Pardons of Nebraska can wipe away the infamy of the conviction and restore the convict to all of his rights, privileges and immunities. A warrant of discharge does not have this effect notwithstanding the phrase found in the statute, to wit, "the same as though a pardon had been issued."

We will now turn to a consideration of the certificate of executive clemency granted the respondent by the Governor of Wisconsin to see if there is any basis for distinguishing it from the warrant of discharge discussed above. Both of the documents by their express terms restore civil rights. We must, as we did in the case of Nebraska, look to the substance of the power to pardon inherent in the laws of Wisconsin.

The pardoning power in Wisconsin has always been lodged in the Governor, both under the territorial government and under its State constitution. Article 5, section 6, of the State constitution provides:

The governor shall have power to grant reprieves, commutations, and pardons, after conviction, for all offenses, except treason and cases of impeachment, upon such conditions and with such restrictions and limitations as he may think proper, subject to such regulations as may be provided by law relative to the manner of applying for pardons. *** He shall annually communicate to the legislature each case of reprieve, commutation, or pardon granted, stating the name of the convict, the crime of which he was convicted, the sentence and its date, and the date of the commutation, pardon or reprieve, with his reasons for granting the same.

"Nebraska comp. stat., ch. 29, secs. 112 and 2616.

5 Wis. Stats. (1896) sec. 10.

'Wisconsin has had but one constitution.

Since 1935 the Governors of Wisconsin have created a "State Pardon Board" of three members by executive order. Their powers are merely advisory. The Governor has fully retained the authority vested in him by the Constitution to make the final decision. The statutory formalities of procedure do not apply where the sentence has already been served and the person is applying for a pardon which, among other things, would restore his civil rights. However, the rules and regulations promulgated by the governor prevent the granting of such pardon until 1 year after the expiration of the sentence and then only permit it upon a petition endorsed by reputable citizens.10

9

There is no provision either by statutory enactment or in the Wisconsin constitution which provides that one convicted of a felony is restored to his civil rights merely by serving the full time of his sentence in a penal institution or by being discharged from probation. His civil rights can be restored only by a governor's pardon." A full and unconditional pardon granted by the Governor of Wisconsin under the Constitution "removes the disabilities resulting from the conviction of the offense for which the pardon was granted." 12 Concerning the inherent power of the Governor to pardon, the Wisconsin Supreme Court has said:

As the governor is charged with the duty of seeing that the laws be faithfully executed, it is in strict accordance with the theory of the power of pardon that he should have power to pardon offenders against the laws which it is his duty to execute.1

Unlike Nebraska, it is apparent from the foregoing that in the State of Wisconsin the Governor has the sole authority to grant pardons (except in the cases of treason and impeachment) and that a pardon by the Governor removes the disabilities resulting from the conviction.14

1 A. G. Survey of Release Procedures 1198. "Wis. Stats. 1935, ch. 57, sec. 8.

1o Governor's Rules and Regulations in re applications for pardons, State of Wisconsin, Rule 5, Wis. Admin. Orders (1942), p. 156.

11

Op. A. G. Wis. (1902) p. 205; id. (1916) p. 107; but see footnote 18 for the statute passed in 1947. The pardon in the case before us was granted in 1946. Op. A. G. Wis. (1908) p. 293.

12

13 Rodd v. Verage, 177 Wis. 295 (1922); 187 N. W. 830, 842.

14 'It is well established under the laws of Wisconsin that one of the disabilities incurred by a conviction for felony is the "loss of civil rights" such as the right of franchise and the right to hold public office (see ch. 6, sec. 1, Laws of Wis., (1947), also art. 3, sec. 2, and art. 13, sec. 3 of the Wis. State constitution). While it is true that an alien does not have the right of franchise and in most cases is not permitted to hold public office, there are disabilities which are removed by a pardon restoring civil rights, such as the right to receive old-age assistance under the state law and the right to have his driver's permit restored where he has been convicted for driving while intoxicated (see 26 Op. A. G. Wis. 375; 27 Op. A. G. Wis. 331).

Since the State Constitution empowers the governor to attach any condition, restriction or limitation to a pardon which may seem proper to him,15 we must examine the language of the instrument presented by the respondent to determine whether the governor placed any condition therein which would limit its scope, thereby affecting its status as a full and unconditional pardon. After setting forth the specific crimes to which it is made applicable, the instrument reads as follows:

Whereas, pardon is solicited in behalf of the said R- W- G, otherwise known as RS, to prevent deportation, and it appearing that he had led an upright and honorable life, and has conducted himself as a peaceable and law-abiding citizen for approximately two years last past, and it appearing that he is deserving of executive clemency.

Now therefore, know ye, That, in consideration of the premises, I, Walter S. Goodland, as Governor of the State of Wisconsin, have restored, and by these presents do restore to the said R- W- G-, otherwise known as RS——, all civil rights forfeited by him in consequence of the said offenses or of the said convictions.

The foregoing restores to the respondent "all civil rights 16 forfeited by him in consequence of the said offenses or of the said convictions." The document on its fact states "pardon is solicited." As noted above, a petition for a pardon after completion of sentence must be submitted in conformity with the rules promulgated by the Gov(See footnote 10.) It was granted without any conditions or restrictions of any kind.

ernor.

Whereas in the State of Nebraska the legislature has provided an alternative method for restoration of civil rights outside of the constitutional grant of this power and civil rights are restored as a matter of course upon completion of sentence, this is not true in Wisconsin. A study of the authorities available, the Wisconsin statutes and the State Constitution, leads us to conclude that where a pardon has been solicited and executive clemency has been granted without restriction restoring a person to his civil rights, that all of the legal consequences incurred by the convictions stated within the document are thereby exempt from any express pardon stating that the recipient was thereafter exempt from any and all punishment resulting from his conviction and freeing him from any and all future legal consequences of the crime involved, without condition, would not, under the laws of Wisconsin, result in a fuller or more complete pardon than his restoration to all civil rights.

15 19 Op. A. G. 162 (1936); 18 id. 706 (1920).

16

This terminology is used by the governor apparently for the reason that it is the exact wording used in the State Constitution, art. III, sec. 2 of which reads in part as follows: "*** nor shall any person convicted of treason or felony be qualified to vote at any election unless restored to civil rights."